JUDGMENT

H.N. Agarwal, Member. - This is a second appeal against the decree dated July 25, 1974, passed by the Addl. Commissioner, Bareilly division, dismissing the appeal no. 240 of 1971 and confirming the decree dated July 3, 1971, of the Asstt. Collector 1st Cl. distt. Badaun in a suit no. 182 u/s 176 of U.P.Z.A. and L.R. Act.

2. I have heard the Id. counsels for the parties and have gone through the record.

3. Smt. Krishna Devi the mother of the appellant Pawan Kumar had filed a suit for division of holding claiming ?th share in the Bhumidhari plot nos. 138-A, 204 and 208 and of Sirdari plot no. 138-B situated in village Aurangbad. The trail court decreed the plaintiff's suit for 1/10th share in Sirdari holding only and dismissed the suit in other respects. The order of the trial court has been upheld by the lower appellate court. Smt. Krishna Devi died during the pendency of the suit and has been substituted by her minor son Pawan Kumar who has come up in scone appal before this court.

4. The Id. counsel for the appellant has contended that the shares of recorded co-Bhumidhars and co-Sirdars should be determined on the basis of per capita in accordance with the entry in the final Khatauni prepared during consolidation and that the court below have entered into irrelevant consideration of evidence of pre-consolidation time. He has also argued that the defendant's evidence was not admissible as against the Consolidation records.

5. The facts of the case may be briefly stated here. In the Khataunis of 1375 to 1377 Fasli the land in dispute is recorded in the name of Brij Lal and Sohan Lal s/o Dori Lal, Smt. Krishna Devi and Smt. Bhoop Kali D/o Dori Lal and Smt. Bhawani Kr. widow of Dori Lal. There has been Consolidation in the village and the above names have also been recorded in C.H. form 23, C.H. form 25 and C.H. form 45. The Id. counsel for the appellant has argued that the adjudication done by the Consolidation courts is final and has cited Risal Singh v. Board of Revenue U.P. R.D. 1970 page 413 in which a Id. Judge of the Allahabad High Court has observed as follows:-

"Section 49 bars the adjudication of the rights of the tenure-holders through a suit. It the institution of the suit itself is barred for the determination of the rights of the tenure-holders in respect of land which has gone to the consolidation pool it will certainly bar the adjudication of those rights whether the plea is raised by plaintiff or the defendant. The defence that the plaintiff did not have any right in the land in dispute before it came to the consolidation pool was, therefore, no open to the defendants."

Section 49 of the Consolidation of Holdings Act provides as follows:-

"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 laying 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 right in such land or with respect to any other matter for which a proceeding could or ought to have been taken under this Act."

6. The Id. counsel for the respondent has not been able to show that the view taken in R.D. 1970 p. 413 is in any way unsound or has been since overrule. I, therefore hold that in the present Sec. 49 C.H. Act completely bars adjudication of the title of the contesting parties in the present case. The contention of the Id. counsel for the appellant that the courts below have entered into irrelevant consideration of evidence of pre-consolidation time and that the defendant's evidence as not admissible as against the consolidation courts must be upheld. The