- (1.) GIRDHARI Lal, J. This appeal has been filed by Ram Parikshan against the order dated 6-5-1989 passed by Addi tional Commissioner, Varanasi Division, Varanasi in which he has dismissed the appeal filed by Ram Parikshan preferred against the order dated 29-4-1986 passed by ASDO Rasra, Ballia in a case under Section 229-B of the UPZA and LR Act.
(2.) IN brief, facts of the case are that Sri Ram Parikshan has filed a declaratory suit under Section 229-B of the UPZA and LR Act against Sri Ashok Kumar etc. regard ing the disputed land alleging that the disputed land was acquired by common ancestor Sri Ram Sunder. A lease was taken in the name of Ram Sunder on 30-12-49 from the original tenure holder Sri Prabhu Tewari and after the death of Ram Sunder, plaintiff and defendants became sirdar and after wards bhumidhar and both plaintiff and defendants are in possession. But now the defendants are claiming sole bhumidhari rights over the disputed land. Written statement was filed by defendants in which allegations men tioned in the plaint were denied by them and it was also alleged that after the expiry of the lease period Sri Parshottam Tewari has executed a fresh lease in favour of Sri Bikau on 28- 12-1953 and on the basis of that lease the defendants are in possession and hence they are the sole tenure holders of the disputed land. It has also been alleged by the defendants Ashok Kumar that Bikau has taken him in adoption, there fore, he is in possession of the disputed land on the basis of adoption taken by Sri Bikau and the disputed land had no con cern with the rest of the defendants. It has also been alleged in the written statement that a dispute arose regarding the disputed land in the consolidation proceedings and finally decision was pronounced in this favour and that decision is now final and under Section 11 CPC and the suit filed by the plaintiff is barred by Section 49 of UPCH Act. Heard the learned Counsel for the plaintiff appellant and perused the original file. No body had appeared on behalf of the respondents.
(3.) IT has been argued by the learned Counsel for the plaintiff- appellant that once palta was granted in favour of Ram Sunder by the original tenure holder on 30-12-49 after the expiry of the lease in 1362 Fasli, lease-holder Ram Sundar be came sirdar of the disputed land and in the above circumstances 'the second lease which is alleged to have been executed in favour of ancestors of defendants on 28-12-1953 is void because when rights of the original tenure holder was extinguished he has no right to grant a fresh lease in favour of defendant's ancestors and it has also been alleged that the appellants right has been perfected under Section 23 of the UPZA and LR Act. IT has also been alleged that the lease granted in favour of defen dants was void hence Section 49 of the UPCH Act will not apply and the suit is not barred by Section 49 UPCH Act. The learned Counsel for the appellant has cited two rulings 1992 RD Page 77 and 1994 ACJ Page 251. Ihavc considered thcsamc. In the present case nine issue were framed by the trial Court. Issue No. 4 which was related to the maintainability of the suit and Issue No. 5 which was related to bar of Section 49 of UPCH Act were decided first as legal issues by the order dated 29-4-1986. ASDO Rasra, Ballia had decided both the issues against the plain tiff and it was held that the suit was not maintainable and also the suit filed by the plaintiff is barred by Section 49 of UPCH Act. No decision was pronounced on the merits of the case but the suit was dismissed only on the jurisdictional point. It is clear form the file of the trial Court and order of the trial Court that objections were filed by the parties before the Con solidation Officer and it is clear from the khatauni 1366-1368 Fasli in which the order of Consolidation Officer has been mentioned that objections filed by Bashisht Tewari etc. were rejected by the Consolidation Officer. When the lease granted in favour of the defendant's ances tor was upheld in the consolidation proceedings and no appeal or revision was filed against the order of the Consolida tion Officer in the Consolidation proceed ings that order became final and when this matter has been finally decided in the con solidation proceedings the present suit is barred by Section 49 of the UPCH Act. It is also clear that no objection was filed in the consolidation proceedings by the present plaintiff. When no objection has been filed by the present plaintiff in the consolida tion proceedings his case is barred by Sec tion 49 of UPCH Act. The argument of the plaintiff has no force that patta executed in favour of the defendants ancestor is void. Once the rights were declared on the basis of lease executed in favour of the defen dants in the consolidation proceedings that mailer cannot be reopened now. If ihc plaintiff has any right in the disputed land he should have fifed an objection in ihe consolidation proceedings. Therefore, in the present circumstances the orders passed by both the Courts below needs no interference.;