The availability of remedy under a different statute does not bar the remedy of suit under the relevant statute, and the court cannot dismiss a suit for not giving notice under section 80 C.P.C. if the plea is deemed to have been waived.

Ram Surat Ram (Maurya), J.

1. Heard Sri A.A. Ansari for the petitioners and Sri Vinod Sinha for the contesting respondents. This writ petition has been filed against the order of Revenue Court dated 21/24.9.1991, dismissing the suit under section 229B of U.P. Act No. 1 of 1951 and orders dated 30.10.1992 and 14.3.1996, dismissing the appeals of the petitioner from the aforesaid orders.

2. The petitioner filed a suit (registered as Suit No. 82 of 1990) under section 229B of U.P. Act No. 1 of 1951, for recording his name as bhumidhar with transferable right over plot No. 134 (area 3-9-18 bighas) situated in village Chilkana, pargana Sultanpur, district Saharanpur. It has been stated that the land in dispute was the property of the petitioner. During consolidation, it was recorded in his name and a chak was carved out in his name, but by making a forgery, the name of Jainath was recorded over it by the alleged order dated 8.2.1967. On the basis of that forged entry, Jainath executed a sale-deed dated 12.8.1971 of the land in dispute, in favour of defendant-1.

3. The suit was contested by the defendants on various grounds in their written statements. The suit was tried by Additional Sub-Divisional Officer, who by the judgment dated 31.9.1991, held that the plaintiff has not given any notice under section 80 C.P.C. to State of U.P., as such, the suit was not maintainable. He further held that in view of provision of section 52(2) of U.P. Consolidation of Holdings Act, 1953, the petitioner has remedy for getting the entry corrected by consolidation authorities and the suit is not maintainable. On these findings, the suit was dismissed. The appeal filed by the petitioner against the aforesaid order was also dismissed by Additional Commissioner by order dated 30.10.1992 and Second Appeal was dismissed by Board of Revenue by order dated 14.3.1996. Hence this writ petition has been filed.

4. I have heard Counsel for the parties and examined the record. Section 27(2) of U.P. Consolidation of Holdings Act, 1953 provides that all entries in the record of right prepared in accordance with the provisions of sub-section 1 shall be presumed to be true, until contrary is proved. Therefore, entries made in final consolidation record can be proved to be incorrect in the proceedings under U.P. Land Revenue Act, 1901 or under U.P. Act No. 1 of 1951. In this case there is allegation that the name of Jainath was entered by making forgery in consolidation record. On such allegations, the suit was maintainable and the plaintiff is entitled to prove that final consolidation records have been forged. Suit under section 229-B of U.P. Act No. 1 of 1951 was maintainable.

5. The Courts below held that the petitioner has remedy before the consolidation authorities for getting the forged entry corrected in view of provisions under section 52(2) of U.P. Consolidation of Holdings Act, 1953 as such suit is not maintainable. Section 52(2) of the Act, 1953 has no application in this case. Forged entry can be corrected by consolidation authorities in exercise of powers under section 42A of the Act, 1953. But remedy available under Act, 1953 does not bar the remedy of suit under section 229-B of U.P. Act No. 1 of 1951. When remedy is available in different statutes and no bar has been created under any of such statute, then the remedy can be availed by the aggrieved person in any of the statute. The suit filed by such person under one statute cannot be rejected on the ground that the remedy is also available in other statute. In such circumstances, the order of Revenue Court dismissing the suit of the petitioner on the ground that remedy is available under the provisions of U.P. Consolidation of Holdings Act, 1953, is illegal and liable to be set aside.

6. So far as dismissal of the suit on the ground that notice under section 80 C.P.C. was not served, is concerned, the plaintiff in paragraph-8 of the plaint has stated that notice under section 80 C.P.C. was served