JUDGMENT S.U. Khan, J.
1. Heard learned Counsel for the parties.
2. Petitioner Smt Manjhari executed a sale deed on 8.10.1952 in respect of agricultural land in dispute in favour of Bhodal and two others i.e. Surya Bali and Ram Bali who were sons of Katwaroo real brother of Bhodal. After four days of the execution of the sale deed, petitioner filed Civil Suit for cancellation of the said sale deed on the ground that it was obtained by fraud. The defence in the suit was that the sale deed was not result of fraud and original petitioner having remarried lost the right in the agricultural land sold by her as she had inherited the same from her deceased husband (Bhodal was third cousin of husband of Manjhari according to pedigree given in para 3 of the writ petition). The suit was decreed holding that the sale deed was result of fraud and in the family there was custom of remarriage hence after remarriage the original petitioner did not forfeit her right in the agricultural land in dispute. First Appeal against the said judgment was dismissed and Second Appeal being Second Appeal No. 887 of 1959 was also dismissed by this court on 10.7.1962.
3. Thereafter original petitioner filed suit for partition in respect of her half share in the entire agricultural land. The suit was decreed and separate possession over half share was delivered to the original petitioner. Thereafter Bhodal and two other defendants in the earlier civil suit filed suit for cancellation of decree passed in the said suit. The suit was dismissed and thereafter appeal was filed and in appeal matter was remanded to the trial court for decision afresh. Thereafter Consolidation proceedings started hence suit was abated under Section 5 of U.P.C.H. Act.
4. Thereafter proceedings were initiated before consolidation Officer (CO). Meanwhile proceedings under Section 145 Cr.P.C. were also initiated which terminated in favour of original petitioner.
5. CO. as well as S.O.C. in appeal decided the matter in favour of the original petitioner however in revision D.D.C. reversed the said judgment and decided the matter in favour of Bhodal and others. Against the order of DDC writ petition was filed being Writ Petition No. 458 of 1972 which was allowed on 27.4.1979 by this court and order of DDC was quashed. Consequently order of SOC and CO stood restored. Against the judgment of this court dated 27.4.1979, S.L.P. was filed before the Supreme Court which was also dismissed on 5.5.1980.
6. On 29.6.1965 original petitioner sold some of the property in dispute to respondent No. 5 to 17 (Respondents No. 3 and 4 Arjun and Ram Sevak both sons of Bhodal are contesting respondents in this writ petition).
7. Even after so much litigation the matter did not end. In the year 1982 Basanti wife of Bhodal filed O.S. No. 49 of 1982 before Munsif Jaunpur in respect of the land in dispute. Copy of the plaint is annexure 3 to the writ petition. In the plaint, it was pleaded that Sita Ram husband of original petitioner from whom original petitioner inherited the property had executed a will in respect of the land in dispute in favour of plaintiff on 10.10.1947.
8. According to the further case taken in the plaint the entire property had been bequeathed through the will to the plaintiff however names of Smt Manjhari the original petitioner and her widowed mother in law were permitted to be recorded in the revenue record for their solace. The relief claimed in the suit was that defendant petitioner be restrained from transferring the property in dispute. In the said suit (O.S No. 49 of 1982) petitioner defendant filed written statement and pleaded that the suit was barred by res judicata and Section 49 of U.P.C.H. Act. It was also pleaded that as question of title to agricultural land was involved hence Civil Court had no jurisdiction to try the suit. In respect of these points issues No. 4, 5 and 10 were framed along with other issues. The said issues were directed to be decided as preliminary issues. Additional Munsif Court No. 5 Jaunpur decided all the preliminary issues against defendant petitioner on 21.2.1987. Against the said order, Civil Revision No. 60 of 1987 was filed, which was dismissed on 24.4.1990 by II Additional District Judge Jaunpur, hence this writ petition.
9. During pendency of the suit plaintiff Smt Basanti died and was substituted by her sons Arjun and Ram Sevak respondent No. 3 and 4 in this writ petition. Copy of the unregistered Will stated by the plaintiff to have been executed on 10.10.1947 by Sita Ram has been filed as annexure RA1 to Rejoinder Affidavit. In the said Will, it is stated that after the death of the testator, Smt Basanti alone would become the owner of the property; Smt Rajwanti and Smt Manjhari would be entitled to maintenance (paravarish) till their lives and for the said purpose they would be entitled to remain in possession and get their names entered in the revenue records for solace. It has further been provided that Smt Rajwanti and Manjhari would not be entitled to become the owner and to transfer the land. In the end, it was reiterated that the ultimate legatee Smt Basanti would not be entitled to get her name entered in the revenue records during the lifetime of Smt Rajwanti and Manjhari.
10. Under Section 33 and 40 U.P.L.R. Act only such persons are to be recorded in the revenue records who are entitled to hold the agricultural land and are in possession of the same and possession is relatable to title.
11. The person who is entitled to remain in possession but does not hold any other title and is not entitled to transfer the land could not be recorded as Sirdar/Bhoomidhar. The person who has been given agricultural land as owner under a will prior to U.P.Z.A.L.R. Act is to be recorded as Sirdar/ Bhoomidhar after enforcement of the said Act. The restriction under the will that Musammat Basanti would not be entitled to get her name mutated in the revenue records during the life time of Musammat Rajwanti and Manjhari was against the provisions of U.P.Z.A.L.R. Act and U.P.L.R. Act hence it was not legal. Musammat Basanti was fully entitled to get her name mutated in the revenue records after the death of Sita Ram. However, as she did not take any steps for getting her name mutated in the revenue records hence the suit (O.S. No. 49 of 1982) was clearly barred by Section 49 of U.P.C.H. Act. Even otherwise in the suit pure and simple declaration of title has been sought hence it is barred by Section 49 of U.P.C.H. Act. Section 49 of the U.P.C.H. Act is quoted below:
49- Bar to Civil Court jurisdiction.- Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of rights of tenure holders in respect of land by the lying in an area, for which a notification has been issued [under Sub-section (2) of Section 4], or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under this Act, shall be done in accordance with the provisions of this Act and no Civil or Revenue Court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act.
Provided that nothing in this section shall preclude that Assistant Collector from initiating proceedings under Section 122-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 in respect of any land, possession over which has been delivered or deemed to be delivered to a Gaon Sabha under on in accordance with the provisions of this Act.
12. The Supreme Court in Narendra Singh v. Jai Bhagwan under somewhat similar circumstances has held that claim of unrecorded tenure holder if not raised during consolidation proceedings becomes barred under Section 49 of U.P.C.H. Act.
13. Under the facts and circumstances of the case the relief for injunction can not be granted without declaring the title and declaration of title is clearly barred by Section 49 of U.P.C.H. Act.
14. Learned Counsel for the respondent has cited 1981 ALJ 812, 1999(1) ACJ 573 and 2003 (95) RD 381. In these authorities the only thing which has been said is question of bar of Section 49 of the Act need not be decided in every case as preliminary issue. However, in appropriate cases bar of jurisdiction of Section 49 of the Act may be decided as preliminary issue. There is no absolute bar in that regard.
15. Accordingly the suit (O.S. No. 49 of 1982) is clearly barred by Section 49 of U.P.C.H. Act. Both the courts below wrongly held otherwise.
16. Writ petition is therefore allowed. Impugned orders are set-aside. The suit is dismissed as barred by Section 49 of U.P.C.H. Act.