Peaceful co-habitation among co-sharers does not necessitate objections under Section 49 of the U.P. Consolidation of Holdings Act, preserving their property rights under the Constitution.

ORDER :

Saurabh Shyam Shamshery, J.

Order on Substitution Application

1. Heard.

2. Substitution application is allowed at the risk of petitioner.

3. Necessary substitution be carried out during course of day.

Order on Writ

1. Heard Sri D.K. Singh, learned Senior Advocate assisted by Sri M.N. Singh, learned counsel for petitioners and Sri N.C. Rajvanshi, Senior Advocate assisted by Sri Vishesh Rajvanshi, learned counsel for respondents.

2. This Court has passed following orders on 30.01.2009 and 30.10.2014 :-

“Four weeks for C.A.

Two weeks for R.A.

List.

Status quo until further orders.

30.01.09”

xxxxxxx

“Issue of bar of Section 49 of UP Consolidation of Holdings Act 1953 arising in the writ petition has been referred for decision of the larger Bench by the order dated 29.10.2013 in Writ B No. 52717 of 2013 ( Ram Briksha and another vs. Dy. Director of Consolidation and others).

Connect this writ petition with the aforesaid writ petition.

30.10.2014”

3. There is a judgment passed by Division Bench of this Court in Ram Briksha and another vs. Dy. Director of Consolidation , 2017 SCC Online All 4417, which is placed on record that said reference is being decided in following manner :-

“Issue No. I

63. Whether use of words “could or ought to have been taken” in latter part of Section 49 of the Act, compulsorily forces the co-sharers, who are living jointly, peacefully and have no grievance against their father/brother/co-sharer, whose name is recorded in representative capacity, or they were willing to live jointly, due to situation of their family, i.e. (father and minor son), (mother and minor son), (brother and minor brother) and (some co-sharer was student and had gone abroad for study and fully depends upon other co-sharers) etc. to file an objection under Section 9 of the Act for separation of his share?

A. Because of the words “could or ought to have been taken” in latter part of Section 49 of the Act, same does not compulsorily force the co- sharers, who are living jointly, peacefully and have no grievance against their fa- ther/brother/co-sharer whose name is recorded in representative capacity or they were willing to live jointly due to situation of their family and who have not filed an objection under Section 49 of the Act for separation of their share inasmuch as under the provisions of U.P. Consolidation of Holdings Act, 1953, it is the statutory obligation cast upon the authorities and the incumbent, who has been holding the property in question in the representative capacity to get the records corrected and in case in designed manner the obligation in question has not been discharged by Consolidation Authorities as well as by the incumbent holding the property in the representative capacity, men in such a situation Section 49 of the Act would not at all be attracted and such situation would be covered under the contingency of planned fraud to drop the name of other co-sharers from the revenue records.

Issue No. II

64. Whether by operation of law, the parties can be thrown into litigation against their will need and by not raising claim to land or partition and separation of the chak their right to property can be taken away in spite of protection available under Article 19(1) (f) and now Article 300-A of the Constitution?

A. The answer is that a party cannot be thrown in litigation against their will/need and by not raising claim to land of, partition and separation of chak, their rights to property cannot be taken away under the protection provided for under Article 19(1)(f)/Article 300-A of the Constitution of India.”

4. Learned Senior Advocates ap