SRIRAM vs DEPUTY DIRECTOR OF CONSOLIDATION, ALLAHABAD CAMP, FATEHPUR

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(All) 2646

[2009(6) ADJ 466]
ALLAHABAD HIGH COURT
BEFORE : A.P. SAHI, J.
SRIRAM AND OTHERS .....Petitioners
Versus
DEPUTY DIRECTOR OF CONSOLIDATION, ALLAHABAD CAMP, FATEHPUR AND OTHERS ...Respondents
(Civil Misc. Writ Petition No. 8512 of 2008, decided on 21st July, 2009)

Advocates:
Counsel :
Maurya for the Petitioners; Chaudhary for the Respondent-3.

Headnote:(A) U.P. Consolidation of Holdings Act, 1953—Sections 49 and 9-A(2)—(Indian) Evidence Act, 1872—Section 115—Bar to Civil jurisdiction—Reference to judgment of Jagdeo v. D.D.C., Allahabad—Rejection of restoration application of petitioner by D.D.C., and setting aside order of C.O. and S.O.C., declaring respondent No. 3 to be co-sharer of land of Khata Nos. 264 and 266, disputed property in instant proceedings—In a case of claiming co-tenancy rights in aforesaid Khatas and also by filing objections by respondents under Section 9-A(2) of the Act—Question whether bar of Section 49 would operate against respondent-3—And, that his objection was rightly rejected by C.O. and S.O.C. or not—And, whether D.D.C. has erred in proceeding to overrule bar of Section 49, and, therefore, had acted in teeth of decision of Jagdeo v. D.D.C., Allahabad, 2006(101) RD 216—Court held that certain question to be considered by a larger Bench for an authoritative pronouncement—(i) Whether law laid down by Single Judge in the case of Jagdeo, is in conflict with other decisions of this Court (ii) Whether Single Judge could have referred matter to a Larger Bench in view of Rana Pratap Singh's case, (iii) Whether Single Judge in Jagdeo's case was justified in invoking principles of doctrine of estoppel and acquiescence for creating an implied bar; (iv) whether provisions of U.P.C.H. Act of 1953 have an overriding effect over all other Acts in view of provisions of Section 49, and (v) whether long standing entries, which are questioned in an objection filed under Act of 1953 hold only a presumptory value or they can be taken to be an absolute proof in law on the principle of estoppel, acquiescence and waiver and thereby attract an automatic bar of Section 49 of U.P.C.H. Act—Therefore, Court referred matter to Hon'ble C.J. to constitute Larger Bench for passing appropriate order. [Paras 8, 11, 30 and 31]
       (B) U.P. Consolidation of Holdings Act, 1953—Section 49—Bar under—Reference to judgment of Jagdeo v. D.D.C., Allahabad—Proof of title has to be examined in order to ascertain source of title and for that there is no bar preventing a person from staking his claim—Bar of Section 49 was created in order to avoid multiplicity of forums—Creation of a separate forum therefore, was also an important factor, which has been overlooked in Jagdeo's case. [Para 24]
       (C) U.P. Consolidation of Holdings Act, 1953—Sections 49, 5 and 9-A(2)—Bar of Section 49—Applicability of—Object and scope of enactment of Act of 1953. [Paras 25 and 29]
       (D) Evidence Act, 1872—Section 115—U.P. Consolidation of Holdings Act, 1953—Section 49—Applicability of doctrine of estoppel would be essentially a question of fact to be adjudicated upon, and not a matter of automatic law to prevent filing of an objection. [Para 28]
       (E) U.P. Consolidation of Holdings Act, 1953—Section 49—U.P. Zamindari Abolition and Land Reforms Act, 1950—Section 176—Object of introducing U.P.Z.A. & L.R. Act was to do away with maladies of land settlement—And to create a fresh rights in order to bring about uniformity in land tenures—Object to bring about Act of 1953 was to ensure compactness of holdings—And at the same time to provide a forum for settlement of disputes of all nature—In effect, it is Act of 1953 which provides for adjudication of disputes relating to pre-existing rights and new rights under U.P.Z.A. & L.R. Act—Hence, jurisdiction of consolidation Courts has been accepted to be a final forum for decision of such rights. [Para 29]

JUDGMENT

Hon’ble A.P. Sahi, J.—The present writ petition has been preferred against the order of Deputy Director of Consolidation, Allahabad, dated 16.2.2006 and the rejection of restoration application in the said revision whereby the Deputy Director of Consolidation has set aside the order of Consolidation Officer dated 9.10.1998 and order of the Settlement Officer Consolidation in Appeal dated 26.8.2002 and has declared Respondent No. 3 to be the co-sharer of the land of Khata Nos. 264 and 266, the disputed property in the present proceedings.

2. The respondent-Ram Ratan and one Banshi filed objections under Section 9-A (2) of the Uttar Pradesh Consolidation of Holdings Act, 1953 claiming co-tenancy rights in the Khatas aforesaid. The Consolidation Officer rejected the said objection on 9.10.1998 against which an appeal was filed before the Settlement Officer Consolidation which met the same fate. The appellate order is dated 26.8.2002. The respondent No. 3 filed a revision under Section 48 of the Uttar Pradesh Consolidation of Holdings Act and the Deputy Director of Consolidation by the impugned order has reversed the order of the Consolidation Officer and the Settlement Officer Consolidation and has proceeded to declare the respondent No. 3 to be a co-tenant of the property in dispute.

3. The Petitioners contend that the consolidation proceedings had been undertaken earlier and that the respondent No. 3 did not choose to stake any claim in the first round of proceedings, therefore, in view of the provisions of Section 49 of the Uttar Pradesh Consolidation of Holdings Act, the Respondent No. 3 was not entitled to file any objection in the second round of fresh consolidation proceedings in view of the bar operating against him under the provisions referred to herein above. To appreciate the controversy, Section 49 of the Uttar Pradesh Consolidation of Holdings Act, is quoted herein below :

“[49. Bar to civil jurisdiction.—Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of right of tenureholder in respect of land 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 proceedings could or ought to have been taken under this Act:]

[Provided that nothing in this section shall preclude the 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 or in accordance with the provisions of this Act.]

4. On this vital issue, the opinion of the Consolidation Officer and that of the Settlement Officer Consolidation was unanimous to the effect that the bar of Section 49 operated against the respondent No. 3 and, therefore, the objection deserves to be rejected. The Consolidation Officer, while deciding issue No. 3, has clearly recorded that Respondent No. 3 had attained majority when the previous consolidation proceedings had intervened, and his father was also alive. In the event, they had a claim of co-tenancy rights on the basis of the share claimed by them in accordance with the pedigree, they ought to have filed objections which they did not do and, therefore, the provisions of Section 49 directly stared in their face. The Settlement Officer Consolidation in appeal affirmed the said finding and also relied on the decision in the case of Dudh Nath v. Sugani and others, 2000 RD 96. In a revision preferred by Respondent No. 3, the Deputy Director of Consolidation, after d

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2009 Supreme(All) 2646

[2009(6) ADJ 466]ALLAHABAD HIGH COURTBEFORE : A.P. SAHI, J.SRIRAM AND OTHERS .....PetitionersVersus DEPUTY DIRECTOR OF CONSOLIDATION, ALLAHABAD CAMP, FATEHPUR AND OTHERS ...Respondents(Civil Misc. Writ Petition No. 8512 of 2008, decided on 21st July, 2009)

Cases Referred (2)

Judicial Analysis

[2009(6) ADJ 466]
ALLAHABAD HIGH COURT
BEFORE : A.P. SAHI, J.
SRIRAM AND OTHERS .....Petitioners
Versus
DEPUTY DIRECTOR OF CONSOLIDATION, ALLAHABAD CAMP, FATEHPUR AND OTHERS ...Respondents
(Civil Misc. Writ Petition No. 8512 of 2008, decided on 21st July, 2009)