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Dalel and anr. Vs. Baroo and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal Nos. 3025 and 4073 of 1958
Judge
Reported inAIR1967All59
ActsTenancy Law; U. P. Consolidation of Holdings Act, 1954 - Sections 3(5), 4 to 12, 40(1) and 49
AppellantDalel and anr.
RespondentBaroo and ors.
Appellant AdvocateN.S. Singhal, Adv.
Respondent AdvocateP.S. Gupta, Adv.
DispositionAppeal allowed
Excerpt:
.....1993 mah.lj 74; 1993 lab ic 1858 overruled]. - there has been a good deal of controversy as regards the nature of orders passed under section 8 of the act. the respondents were not bound to wait for preparation of the statement under section 11. for purposes of section 49 of the act, the relevant date is 26-2-1955 (the date on which the respondents filed the suit). as explained above, it was impossible for the respondents to file an objection under section 12 of the act on or before 26-2-1955. the appellants have failed to prove that 'an application could be filedunder the provisions of this act' on or before 26-2-1955. 31. my conclusion is that, under slightly different circumstances, such a suit might nave been barred under section 49 of the act......determination of the question of title to land. in spite of an adverse order under section 40, landrevenue act, it is open to the aggrieved party to file a suit before the competent court for a declaration of title. it is true that the provisions of chapter iii of the u. p. land revenue act have not been expressly made applicable to proceedings under chapter ii of the u. p. consolidation of holdings act. but, considering the nature of the corresponding proceedings under the two acts, the nature of proceedings under sections 5, 7 and 8 of the u. p. consolidation of holdings act cannot be different from the nature of proceedings under chapter hi of the land revenue act. an order under section 8 of the act does not constitute a final decision on the question of title. it is true that.....
Judgment:

Takru, J.

1. I have had the advantage of reading the judgment prepared by brother Oak, but regret my inability to share the view expressed by him therein.

2. The question raised in this second appeal is, whether the suit filed by the plaintiffs in the Civil Court for a declaration that they, along with defendant No. 3, were the bhumidhars of the grove in question, was barred by Section 49 of the U. P. Consolidation of Holdings Act (hereinafter called the Act).

3. The facts giving rise to this appeal are stated in full in the judgment of brother Oak, and it is unnecessary therefore, to repeal them. Suffice it to say, that the necessity for seeking the declaration mentioned above arose as a result of the fact that the village in which the said grove was situate had come under consolidation operations in the course of which defendants Nos. 1 and 2 succeeded in getting their names recorded over the said grove by the Assistant Consolidation Officer. One of the pleas raised in defence was that the suit was barred by Section 49 of the Act. That plea was rejected by the court as also by the lower appellate court. When it was raised in this Court before brother B. Dayal, he referred the appeal to a larger Bench, as in his opinion there was a conflict of view on that point. It is in these circumstances that this appeal has come up before us for our decision.

4. From what has been said above, it is clear that the whole case turns upon the correct construction of Section 49 of the Act. That section, at the material time, was in the following terms:

'No person shall institute any suit or other proceeding in any Civil Court with respect to any matter arising out of consolidation proceedings or with respect to any other matter in regard to which a suit or application could be filed under the provisions of this Act.'

5. The short question, therefore, is whether the expression with respect to any matter arising out of consolidation proceedings or with respect to any other matter in regard to which a suit or application could be filed under the provisions of this Act', includes a suit of the present nature.

6. In order to answer this question, a reference to certain sections of the Act is necessary at this stage. They are Sections 4, 5, 7, 8, 9, 11 and 12. Section 4 states that with a view to consolidation, the State Government may declare that it has decided to make a scheme of consolidation for any district or other local area and every such declaration shall be published in the official Gazette and in each village of the said district or local area. As soon as such a declaration is made then under Section 5 the duty of preparing and maintaining the maps, the khasra and the annual register under Chapter III of the U. P. Land Revenue Act, 1901 stands transferred to the Settlement Officer (Consolidation), and thereupon all the powers conferred on the Collector, Assistant Collector and the Tahsildar under the said Chapter shall so long as that district or area remains under consolidation operations be exercised respectively by the Settlement Officer (Consolidation), Consolidation Officer and the Assistant Consolidation Officer. Section 7 then lays down that the Assistant Consolidation Officer shall before proceeding to prepare a provisional consolidation scheme examine and test the accuracy of the village map, Khasra and the current annual registers by making a field to field partal of the entire village and shall prepare a statement showing the mistakes, with their nature, discovered in the map, khasra and khatauni, and the number and nature of disputes relating to land records under the U. P. Land Revenue Act, 1901. Section 8 deals with the revision and correction of records, and Sub-section (4), thereof lays down that any person aggrieved by the order of Assistant Consolidation Officer under Sub-section (3) -- i.e. order making the necessary corrections in Annual Register -- may appeal to the Consolidation Officer, whose decision shall, except as otherwise provided by or under this Act, shall be final. After the records have been corrected, the Annual Register prepared under Section 8 has to be published in the village. After the publication under Section 9, the Assistant Consolidation Officer, under Section 11, has to prepare.

(a) a list of all plots comprised in the holdings of each tenure-holder, showing--

(i) the area of each plot;

(ii) the soil classes of the plots determined in the manner prescribed in consultation with the Land Management Committee;

(iii) the hereditary rent rates sanctioned for the soil classes at the last settlement, roster or revision operations, whichever is the latest;

(iv) the rental value of each plot;

(v) the revenue or the rent, as the case may be, of each plot, calculated in the manner prescribed;

(vi) such other particulars as may be prescribed;

(b) a list of each tenure-holder, showing,

(i) the total area held by the tenure-holder in all classes of tenures;

(ii) the revenue or the rent, as the case may be, for his share;

(iii) the rental value of the area held by the tenure-holder; and

(iv) such other particulars as may be prescribed;

and under Sub-section (2) the statement thus prepared is required to be published in the village.

7. After the preparation and publication of the aforesaid statement, Section 12(1) lays down that any person who feels aggrieved against the statement prepared under Section 11 can file his objection disputing the correctness or nature of an entry in the statement or pointing out any omission therefrom. Sub-section (2) then enjoins on the Assistant Consolidation Officer the duty to hear the parties and to submit his report on those objections to the Consolidation Officer, and the latter shall, subject to provisions of Sub-section (4), dispose of those objections. Sub-section (4) requires that:

'Where the objection filed under Sub-section (1) involves a question of title and such question has not already been determined by a competent Court, the Consolidation Officer shall refer the question for determination to the Arbitrator.'

Under Sub-section (5) all suits or proceedings in the Court of first instance or appeal in which a question of title in relation to same land has been raised shall be stayed, and under subsection (6) the decision of the arbitrator under Sub-section (4) shall be final.

8. Sections 4 to 12, some of which have been summarised above, figures in Chapter II, which is headed 'Revision and Correction of Maps and Records'. The said sections must therefore, be held to provide a complete code for the disposal of objections arising at various stages in connection with the correction of maps and records of the local area concerned. There is nothing in these sections to exclude grove-lands from their operation. On the contrary, the facts (1) that consolidation proceedings are in respect of a local area without exclusion of any land therefrom, and (2) that the word 'land' - which under Section 3(5) also means land used for horticulture, i.e. groveland -- is used in Sub-section (5) of Section 12, it is clear that an objection regarding title to groveland has also to be made under Section 12, and it is for that reason that all suits or proceedings in which a question of title of that nature is pending are required to be stayed.

9. Now, if the view expressed by me above is correct, then there is no escape from the conclusion that Section 49 bars the jurisdiction of the Civil Court to take cognizance of a suit involving the question of title to groveland, as that would be a matter in regard to which an application could be filed under the provisions of the Act viz. Section 12. Brother Oak's viewon this matter is based upon the use of the word 'could' in Section 49. With the greatest respect I am unable to accept the reasoning on which the said view is based. In my opinion, having regard to the context in which the word 'could' is used, it can only mean that if in respect of a particular matter, the aggrieved person has a method of redress under the Act, then in regard to such a matter the jurisdiction of the Civil Court is barred. The reasoning that a person is not bound to wait till a statement to which he has objection has been prepared under Section 11, is, and I again say so with great respect -- not sound, (1) because if the Act forbids it -- as I have endeavoured to show above that it does -- then the aggrieved person has no choice but to wait and (2) because even if some waiting has to be done it does not cause any injustice to that person. It will be recalled that under Section 5(2) the annual register is prepared on the basis of possession under Section 40(1) of the U. P. Land Revenue Act, so that if the grove-holder is in possession he had nothing to loose by waiting, and if he is not in possession and he bases his case on title even then a little waiting which he may have to do till the adverse statement under Section 11 is prepared, is not likely to cause him any real hardship.

10. The view which I have taken above has the further advantage that it is in consonance with the raison detre underlying the Act, for as observed by S. D. Singh, J. in Kushar v. Ahmad Khan, 1962 All LJ 564 a decision which fully supports the view taken by me above--

'The Consolidation of Holdings Act, 1953, was placed on the statute book for providing for the consolidation of agricultural holding in Uttar Pradesh. The scheme of consolidation could not possibly be successful unless all disputes relating to title in respect of different holdings in a village were first adjudicated upon, and decided finally between the parties. If that were not so, even after the consolidation of holdings has taken place, rival claimants would continue to agitate matters in respect of their rights and there was likely to be fragmentation of the holdings again as the disputes may be decided one way or the other. That is the main reason why the Act makes specific provision for the disposal of all disputes relating to questions of title in the course of the consolidation proceedings themselves.'

11. For all these reasons, I am of the opinion that the plaintiff's suit was barred by Section 49 of the Act. I would, therefore, allow this second appeal with costs.

B. Mukerji, J.

12. I agree with the opinion of my brother Takru, J.

Oak, J.

13. The question raised in this Second Appeal is whether the suit filed by the plaintiff-respondents was barred by Section 49 of the U. P. Consolidation of Holdings Act (hereafter referred to as the Act).

14. Baroo and others filed the suit against Dalel and others on these allegations. There is a grove in a certain village Gowan Talalpur, Pargana Thanabhawan, District Muzaffarnagar. The plaintiffs and defendant No. 3 are Bhumidhars of the grove. The village came under consolidation operations. Defendants Nos. 1 and 2 filed an application before the Consolidation Authorities praying that the plot should be recorded in their names. The application was allowed by the Assistant Consolidation Officer. The plaintiffs therefore filed the suit in the Munsif's Court for a declaration that the plaintiffs and defendant No. 3 are Bhumidhars of the grove in suit, and that defendants Nos. 1 and 2 have no concern with it. The suit was contested by defendants Nos. 1 and 2. They denied the plaintiff's title. The defendants pleaded that they were themselves Sirdars of the land in suit. One of the pleas raised in defence was that, the suit was barred by Section 49 of the U. P. Consolidation of Holdings Act. That plea was rejected by the learned Munsif. The issues relating to title were decided in favour of the plaintiffs and against the contesting defendants. The plaintiffs suit was, therefore, decreed. The Court declared that the plaintiffs and defendant No. 3 are Bhumidhars of the land in suit. An appeal by defendants Nos. 1 and 2 was dismissed by the learned Additional Civil Judge, Muzaffarnagar.

15. Defendants Nos. 1 and 2 have now come to this Court in Second Appeal. When the case came before a learned single Judge of this Court, he was of the opinion that the questions of law involved in this case are important and of frequent application. He, therefore, referred the case to a Division Bench. When the case came up before a Division Bench, the learned Judges were of the view that, there was a conflict between decisions of two Division Benches of this Court. The case was, therefore, referred to a larger Bench. That is how this Second Appeal has come up before this Full Bench.

16. As already mentioned, the question for consideration is whether the suit filed by the plaintiffs-respondents was barred by Section 49 of the U. P. Consolidation of Holdings Act, 1953 (U. P. Act No. V of 1954). The Act was amended several times between 1954 and 1958. The amending Act No. XXVI of 1954 came into force in December 1954. The next amending Act was U. P. Act No. XIII of 1955, which came into force in June 1955. The last amendment was under, U. P. Act No. XXXVIII of 1958. It will be shown later that, the events, which are material in the present case, took place in February 1955. We have, therefore, to consider the position in February 1955. The Act then in force was the principal Act (U. P. Act No. V of 1954) as amended by U. P. Act No. XXVI of 1954. It will be convenient to refer to that Act as the old Act. The amendments introduced between 1954 and 1958 are not of importance for our present purposes. The principal Act as amended by U. P. Act No. XXXVIII of 1958 may conveniently be referred to as the new Act.

17. Certain provisions of the old Act may now be noticed. Chapter II of the Act provides for revision and correction of maps and records. Section 4 provides for a declaration by the State Government to the effect that, consolidation operations were being started in a certain area.Section 5 deals with the effect of declaration. The duty of preparing and amending the Khasra and other annual registers under Chapter III of the U. P. Land Revenue Act stands transferred to the Settlement Officer (Consolidation). Section 7 provides for examination of revenue records. Section 8 deals with revision and correction of records. The records so corrected are published under Section 9 of the Act. Section 11 provides for preparation of a statement oflots and tenure-holders. Section 12 provides for objections against entries made in the statement prepared under Section 11 of the Act. Subsection (4) of Section 12 states:

'Where the objection filed under Sub-section (1) involves a question of title and such question has not already been determined by a competent Court, the Consolidation Officer shall refer the question for determination to the Civil Judge having jurisdiction who shall thereupon refer it to the Arbitrator.'

According to Sub-section (6) of Section 12 of the Act, the decision of the Arbitrator under Subsection (4) shall be final. Section 49 of the Act deals with the bar to Civil Court jurisdiction.

18. Two decisions by two Division Benches of this Court have been mentioned in the order of reference, dated 18-7-1962. Both the decisions are under Section 49 of the Act. In 1962 All LJ 564 it was held by one Division Bench that, jurisdiction of Civil and Revenue Courts to question the correctness or otherwise of entries which are made in revenue records as a result of consolidation proceedings is completely barred.

19. The case Radhey Govind v. Hira Lal, Civil Misc. Writ No. 1689 of 1959 (AID was decided on 10-5-1962 by another Division Bench. In that case the petitioners had applied to Consolidation Authorities under Section 5-A of the Act for correction of records. That application was dismissed by the Consolidation Authorities. The petitioner, therefore, filed a writ petition before this Court praying for the quashing of the orders of the Consolidation Authorities. The respondents raised a preliminary objection that, the writ petition was not maintainable, because this Court does not interfere with orders passed in mutation proceedings. The respondents suggested that it was open to the petitioners to file a regular suit for a declaration of their title. The petitioners replied that, such a suit would be barred by Section 49 of the Act. The Court, therefore, had to consider whether such a suit was barred by Section 49 of the Act. The Court concluded that a suit of this kind was not barred by Section 49 of the Act. The respondents' preliminary objection was upheld; and the writ petition was dismissed.

20 The conflict between the two decisions is only apparent. For, Kushar's case, 1962 All LJ 564 was decided with reference to the new Act; while Radhey Govind's case, Civil Misc. Writ No. 1689 of 1959 dated 10-5-1962 (All.) is a decision under the old Act. This fact was emphasized by the learned Judges, who decided Radhey Govind's case, Civil Misc. Writ No. 1689 of 1959, dated 10-5-1962 (All.). On comparing the two Acts, we find that the relevant provisions under the new Act are materially different from the relevant provisions under the old Act. Since the respondents filed the suit in the present case in Feb. 1955, the situation is governed by the old Act. The decision in Kushar's case, 1962 All LJ 564 is, therefore, of little assistance in the present case. The decision in Radhey Govind's case, Civil Misc. Writ No. 1689 of 1959, dated 10-5-1962 (All.) is more to the point.

21. Mr. P. C. Gupta appearing for the plaintiffs-respondents contended that the plot in dispute is a grove. No objection with respect to a grove could be filed under Section 12 of the Act. So, the bar under Section 49 of the Act does not come into play in the present case. This point has been discussed by me at length in Second Appeal No. 3025 of 1958. I have explained there that, it is permissible to file an objection under Section 12 of the Act with reference to a grove. So, the mere fact that the plot in dispute is a grove is not an answer to the alleged bar under Section 49 of the Act.

22. In February 1955 the Assistant Consolidation Officer passed an order to the effect that, names of defendants should be recorded in village papers against the plot in dispute. That decision appears to have been made under Section 8 of the Act. There has been a good deal of controversy as regards the nature of orders passed under Section 8 of the Act. In Bhupal Singh v. The State of U. P., 1956 All LJ 929 it was held by a Division Bench of this Court that, according to the scheme of the Consolidation of Holdings Act, there is a revision and correction of records under Section 8. No question of title is raised in these proceedings. These are proceedings merely on the lines of correction of record proceedings under the U. P. Land Revenue Act and are decided on the basis of possession. I substantially agree with that view.

23. Under Section 5 of the Act, the duty of preparing and maintaining village registers under Chapter III of the U. P. Land Revenue Act stands transferred to Consolidation Authorities. It, therefore, appears that orders passed by Consolidation Authorities under Section 8 of the Act are of the nature of orders passed by the Collector under Chapter III of the Land Revenue Act. Section 40 of the U. P. Land Revenue Act provides for settlement of disputes as to entries in annual registers. Section 40(1), Land Revenue Act states:

'All disputes regarding entries in the annual registers shall be decided on the basis of possession.'

Section 40(3), Land Revenue Act states:

'No order as to possession passed under this section shall debar any person from establishing his right to the property in any Civil or Revenue Court having jurisdiction.'

Section 44, Land Revenue Act lays down:

'All entries in the annual register shall, until contrary is proved, be presumed to be true.'

24. It is settled law that, an order passed by the Collector under Section 40 of the Land Revenue Act does not result in a final determination of the question of title to land. In spite of an adverse order under Section 40, LandRevenue Act, it is open to the aggrieved party to file a suit before the competent Court for a declaration of title. It is true that the provisions of Chapter III of the U. P. Land Revenue Act have not been expressly made applicable to proceedings under Chapter II of the U. P. Consolidation of Holdings Act. But, considering the nature of the corresponding proceedings under the two Acts, the nature of proceedings under Sections 5, 7 and 8 of the U. P. Consolidation of Holdings Act cannot be different from the nature of proceedings under Chapter HI of the Land Revenue Act. An order under Section 8 of the Act does not constitute a final decision on the question of title. It is true that the word 'final' has been used in Section 8 of the Act. But that finality is for purposes of the summary decision only. The mere fact that an adverse order was passed under Section 8 of the Act did not preclude the plaintiffs from filing a suit before the Civil Court for a declaration of their title.

25. The position, however, is different under Section 12 of the Act. The statement under Section 11 of the Act is prepared on the lines of the records published under Section 9 of the Act. A party aggrieved by an unfavourable entry is entitled to file an objection under Section 12. Sub-section (4) of Section 12 makes an express provision for decision of the question of title by the Arbitrator. It is further laid down in Section 12 that the Arbitrator's decision shall be final. It, therefore, appears that a decision by the Arbitrator under Sub-section (4) of Section 12 of the Act does result in a final decision on the question of title.

26. Now we are in a position to judge the true scope of Section 49 of the old Act. The marginal note to Section 49 is 'Bar to Civil Court Jurisdiction.' Section 49 of the old Act ran thus:

'No person shall institute any suit or other proceedings in any Civil Court with respect to any matter arising out of consolidation proceedings or with respect to any other matter in regard to which a suit or application could be filed under the provisions of this Act.'

27. Section 49 consists of two parts. The first part deals with a suit 'with respect to any matter arising out of consolidation proceedings.' It is true that the plaintiffs-respondents were dissatisfied with the order passed by the Assistant Consolidation Officer under Section 8 of the Act. But the suit filed by the plaintiffs was not by way of an appeal against that adverse order. The adverse order was only the reason why the plaintiffs thought it expedient to file such a suit. The plaintiffs prayed for a declaration of their title. It is, therefore, difficult to hold that the suit was with respect to a matter arising out of consolidation proceedings. It was open to the plaintiffs to ignore the order passed by the Assistant Consolidation Officer completely, and sue for a declaration of their title. The bar under the first part of Section 49 does not operate against the plaintiffs-respondents.

28. The second part of Section 49 relates to a suit 'with respect to any other matter in regard to which a suit or application could befiled under the provisions of this Act.' The expression 'Any other matter' is wide enough to cover a declaration about title. I do not find any provision for suits to be filed under the provisions of the Act. But we are still left with applications which could be filed under the provisions of the Act. An objection under Section 12 of the Act may be treated as an application under the provisions of the Act. If a person is aggrieved by an adverse order passed under Section 8 of the Act and an unfavourable entry in the statement under Section 11 of the Act, he may file an objection under Section 12 of the Act raising the question of title. Under certain circumstances, a civil suit would be barred under the second part of Section 49 of the Act.

29. But the word 'Could' used in Section 49 creates some difficulty. According to the New English Dictionary the word 'could', is the past tense of 'can'. According to the Concise Oxford Dictionary, there are certain idiomatic uses of the word 'can'. But the primary sense of the word 'could' is the past tense of the word 'can'. There is no indication in Section 49 of the Act that, the word 'could' has been used there in some special sense. So the word 'could' should be understood in its ordinary sense. The ordinary sense of the word could is 'was able to'.

30. In the judgment of the learned Additional Civil Judge it is mentioned that, the Assistant Consolidation Officer's order is dated 26-2-1965. But the learned counsel for the parties informed us that, the order under Section 8 of the Act is dated 22-2-1955. The respondents filed their suit on 26-2-1955 - only four days after the adverse order was passed. The question now arises whether the bar under Section 49 of the Act arose in the instant case. We were informed that in the present case the statement under Section 11 of the Act was published some time in 1956. An objection under Section 12 of the Act is directed against a wrong entry made under Section 11 of the Act. It is impossible to file an objection under Section 12 before the statement under Section 11 is prepared. It was not, therefore, possible for the respondents, to file any objection under Section 12 of the Act in 1955. It was suggested for the appellants that, the respondents might have waited for the statement under Section 11 of the Act. But the plaintiffs were not bound to wait. Section 6 of the Act provides for cancellation of a declaration under Section 4 of the Act. Such cancellation may be ordered by the State Government at any time. An order under Section 6 could be passed even after revision of records under Section 8. It was, therefore, by no means certain that, a statement under Section 11 of the Act would be issued at all. The respondents were not bound to wait for preparation of the statement under Section 11. For purposes of Section 49 of the Act, the relevant date is 26-2-1955 (the date on which the respondents filed the suit). As explained above, It was impossible for the respondents to file an objection under Section 12 of the Act on or before 26-2-1955. The appellants have failed to prove that 'an application could be filedunder the provisions of this Act' on or before 26-2-1955.

31. My conclusion is that, under slightly different circumstances, such a suit might nave been barred under Section 49 of the Act. But on the facts of the present case, the suit filed by the plaintiffs-respondents was not barred by Section 49 of the U. P. Consolidation of Holdings Act, 1953.

32. 1 would dismiss the second appealwith costs.


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