JUDGMENT Sanjay Misra, J.
1. The present second appeal has been filed against the judgment and decree dated 7.4.1977 passed by VI Addl. District and Sessions Judge, Bareilly in Civil Appeal No. 216 of 1976 between Babu Ram (Plaintiff) and Prem Raj and Ors. (defendants). By an order dated. 19.7.1982 this court dismissed the appeal against the respondent No. 2 for non- prosecution. The relief sought in this appeal is that judgment and decree of the courts below may be set aside and the plaintiffs suit be dismissed.
2. The plaintiff filed a suit for permanent injunction to restrain defendants No. 1 to 4 from interfering in the plaintiffs possession over plot No. 356 situate in village Akhlabad, Tahsil Behuri district Bareilly. The plaintiff's case was that he was bhumidhar of plot No. 356 having an area of 2 biswas 9 biswas. it is the case of the plaintiff that the neighboring plot No. 354 having an area of 1 bigha 8 biswas had been purchased by defendants No. 1 to 4 from defendant No. 5. The said purchasers wanted to forcibly occupy a portion of the plaintiff's plot which has been shown in the plaint map. The defendants 1 to 4 denied the claim of the plaintiff and said that they have no intention to forcibly occupy the land as described in the plaint and the suit has been filed only for harassing the defendants.; Upon pleadings of the parties, the trial court framed issues, the main issue being "whether the land in suit is a part of Chak -2- No. 356." On the basis of documents the trial court found that the plaintiff was bhumidhar of plot No. 356 and that the plot No. 354 belonged to Shaukat Ali Shah which was subsequently purchased by defendants No. 1 to 4. It found that another neighbouring plot No. 355 belonged to Smt. Parvati. On the basis of documents the trial court held that these are new numbers given to the plots during the consolidation operation. On the main controversy with respect to disputed piece of land the trial court issued several commissions as it could not be found by such commissions as to which plot the disputed land belonged. However, the Amin's commissioner report found that the total area of plot No. 354 on the spot is 1 bigha 10 biswas whereas in the record of right it has been recorded as having an area of 1 bigha 8 biswa. Therefore, plot No. 354 was having an area of 2 biswas excess land on the spot. It was further found by the trial court that plot No. 356 had a recorded area of 2 bigha 9 biswas whereas on. the spot it was found to have 2 bigha 7 biswas and 16 biswansi. Therefore, plot No. 356 had a less area on the spot by 1 biswa and 4 biswansi than the area recorded in the revenue record. It was recorded by the trial court that upon a re-issue of commission the area of plot No. 355 was also excess. It was found that plot No. 355 had recorded area of one bigha 11 biswas whereas on the spot plot No. 355 it was found to have an area of 1 bigha 12 biswas and 17 biswansis, The trial court concluded that on the basis of record of rights and Amin commissioner report plot No. 354 belonging to defendants and plot ao.355 belonging to Smt. Parvati were -3 having excess land on the spot than that which has been recorded in the record of rights. Upon reaching at the aforesaid findings the trial court held that since the plaintiff has no grievance against Smt. Parvati the owner of plot No. 355, therefore, the excess land in plot No. 354 of defendants No. 1 to 4 is the land in dispute.
3. The trial court also considered the oral evidence of the parties wherein the plaintiff's witnesses stated that during the consolidation operation "Tudens" were fixed on the north and south of the western Mend of plot No. 356 and that the defendants had removed the same in order to include the piece of land in dispute in their own plot. The defendants' witnesses denied the fixing of "Tudens". The trial court considered the statement made by the defendant Hori.Lal in suit No. 138 of 1971 wherein he has specifically stated that "Tudens" and Pakki Mend existed on the spot. The defendants' witnesses also admitted about the existence of a well of the plaintiff in plot No. 356 which was 6 feet away from the Pakki Mend. Upon the aforesaid evidence the trial court concluded that there was encroachment from the side of plot No. 354 belonging to defendants No. 1 to 4. The plaintiff's case was that after consolidation operation he was given possession of his plot No. 356 and he had left a small portion for the purpose of ingress and egress of his bullocks for the purpose of operating his well. The trial court, therefore, decided the issue No. 1 in favour of the plaintiff and held that the excess land found on the spot in plot No. 354 was the land which was part of plot No. 356 and, therefore, proceeded to decree the plaintiff's suit.
4. Feeling aggrieved, the defendants No. 1 to 4 filed appeal No. 216 of 1976. The appellate court considered the commissioner's report and found that the Amin's report being paper No. 26/C along with map paper No. 27/C was confirmed by the trial court against which a revision was filed and it was dismissed by the learned District Judge and the said Amin's report was confirmed by the revisional court. The appellate court, however, proceeded to re-assess the correctness of the two reports. On the basis of evidence the appellate court found that the report of Sri Saxena does not mention the existence of "Tudens" on the spot nor method of measuring the plot has been shown. No rough map appears to have been prepared by Sri Saxena and, therefore, his report is not helpful to judge the correctness of Amin's report paper No. 26/C. It has proceeded to rely upon the report of the Amin. It has been recorded that the Amin found the "Tudens" on the spot and the land in dispute was within the area of the plantiffs plot No. 356. The appellate court held that the during the consolidation proceeding the plots have been demarcated by the boundary pillars known as 'Tudens' and they, were found by the Amin in the report paper No. 26/C. With respect to shape of the plot as contended on behalf of the defendants, the appellate court has found that in the Amin's report the correct boundary has been shown with respect to the plaintiffs plot and has proceeded to hold that the presumption of correctness of settlement record Under Section 27 of U.P. Consolidation of Holdings Act extends only to record of rights and not to the map which is not a record of rights. Upon the aforesaid finding, the appellate court dismissed the appeal and made Amin's map paper No. 27/C as | part of the decree.
5. Heard Sri Pravin Kumar Mishra holding brief of Sri Bharat Ji Agarwal. senior Advocate on behalf of the appellant. Although respondents are represented, none has appeared on their behalf even in the revised list.
6. It has been argued on behalf of the appellant that the claim of the plaintiff was different than the report of Amin which was confirmed and as such it was found that only a part of the disputed land was encroached hence no decree with respect to entire land could have been granted by the court below.
7. Having gone through the impugned judgment it is found that the claim set up by the plaintiff as shown in the map related to a portion of land of plot No. 356 which was alleged to have been encroached upon by the defendants No. 1 to 4 who were owners of neighbouring plot No. 354. A perusal of the Amin's map paper No. 27/C shows that the boundaries of plot No. 356 and 354 are joint. The allegation of the plaintiff was that the owners of plot No. 354 have encroached upon an area of land of plot No. 356. The Amin found the said encroachment on the spot on the basis of boundary pillar fixed during the consolidation operation. The said report was confirmed even by the revisional court. No evidence was filed by the defendants to controvert the said Amin's report except mere oral denial to the effect that no boundary pillars were fixed during the consolidation operation. The courts below have proceeded to i place reliance upon the Amin's report and have not believed upon the subsequent commissioner's report which according to the courts below did not indicate the method of measurement and other details. No error is found in the conclusion arrived at by the courts below wherein they have proceeded to place reliance upon the Amin's report: being paper No. 26/C and map being paper No. 27/C. Another report of Amin Commissioner dated 30.1.1976 being paper No. 118C indicates that there was encroachment on plot No. 354 from the abadi site for the purpose of covering the encroachment over the disputed land by the defendants. This report has gone unrebutted.
8. Apart from relying upon the said Amin's report the courts below have based their findings on the basis of revenue records of title as proved by the parties and marked 'as exhibits. It was found by the courts below that the area of plot No. 356 : as shown in the record of rights was not actually found on the spot. On the other hand on the basis of Amin's report it was found that the area of plot No. 354 as found on the spot was in excess than what was shown in the record of rights. The aforesaid findings were based upon the record of rights as produced by the parties before the courts below. A compatible reading of the evidence pertaining to area of the two plots as recorded in the record of rights and the area of the two plots as found on the spot, by the Amin compelled the courts below to conclude that plot No. 354 belonging to defendants No. 1 to 4 ' was occupying excess land than shown in the record of right is produced by the defendants No. 1 to 4. On the other hand the area of plot No. 356 was found to be less than what has been shown in the record of rights. The inevitable conclusion which has. been arrived at by both the courts below was on the. basis of aforesaid evidence. I do not find any error in the findings recorded by the courts below with respect to appreciation of. evidence as produced by the parties and proved before the courts below.
9. In so far as the finality and conclusiveness of entries made under Section 27 of U.P. Consolidation of Holdings-Act are concerned it is settled law that the said entries shall be presumed to be true until proved to the, contrary. Prior to the amendment made in-Section 27 by U.P. Act No. 12 of I965 Sub-clause (2) of Section 27 read as under:-
" (2) The entries in the map, the field-book and the record-of-rights, prepared under Sub-section (1) shall he final and conclusive."
11. However, by virtue of| the said amendment the above clause was substituted to read as under:-
"(2) All entries in the record of rights prepared in accordance with the provisions of Sub-section (1) shall be presumed to be true until the contrary is proved."
12. The amendment made in 1965 has taken away the finality and conclusiveness of the entries made in consolidation records. The map can be corrected if some error is found therein. Therefore, the presumption of correctness of entries in the map, field book and record of rights prepared in accordance with Section 27 is rebuttable. In case there is a difference in the matter of size of a plot between the entries in the record of rights and the map Section 42-A of the Act provides for correction of clerical or arithmetical error to reconcile the size in the map and the size recorded in the record of rights. In the If A 1 present case it was not the case of the plaintiff with respect to correction of map to reconcile it with the entries relating to his plot as found in the-record of rights. Where the entries made in record of rights are in accordance with the adjudication of title done by the consolidation authorities the jurisdiction of the civil or revenue court is barred, it was the case of the plaintiff that the record of rights and demarcation done on the spot in accordance with the map was correct. Therefore, the issue in the present case was not with respect to finality or otherwise of the map prepared by the consolidation authorities Under Section 27 of the Consolidation of Holdings Act. The suit was for injunction relating to encroachment.
13. The bar of Section 49 of U.P. Consolidation of Holdings Act has also been raised in this appeal although the learned counsel arguing this appeal has not addressed the court on the said point. A reading of Section 49 clearly shows that the declaration and adjudication Of' rights of tenure holder in of land lying in such area shall be done in accordance respect with the provisions of the Act and no civil or revenue court shall entertain any suit or Proceedings with respect to such right in such land, The dispute raised by the plaintiff in this case was not with respect to declaration and adjudication of his righs as were found by the consolidation authorities. The case of the plaintiff was in fact based upon the right declared in his favour by the consolidation authorities and, therefore, his suit' for injunction against the act of encroachment by the defendants No. 1 to 4 was maintainable. Such a suit for injunction which was based upon the right declared by the consolidation authorities, can not be said to be barred under Section 49 of the U.P. Consolidation of Holdings Act. A suit which proceeds to enforce the entries made in consolidation proceedings is not barred. The plaintiff had not raised the question of title with respect to the piece of land as shown in the plaint. The plaintiff has not assailed any order of consolidation authorities which might have been passed in favour of the defendants. The plaintiff's claim for injunction related only to a portion of land which belongs to him by virtue of declaration by the consolidation authorities and upon which the defendants No. 1 to 4 were encroaching. Such a suit filed after close of consolidation operations by denotification under Section 52 of the Act cannot be barred by Section 49 of the Act, particularly when the encroachment has taken place after such denotification. The plaintiff has pleaded that he was given possession during course of consolidation. Therefore, it can not be said that the plaintiff was in any manner seeking a correction of either record of rights or the map prepared Under Section 27 of the U.P. Consolidation of Holdings Act nor the bar of Section 49 of the Act would apply.
14. For the aforesaid reasons this second appeal has no force and is accordingly dismissed. There will be no order as to costs.