- (1.) Heard learned Counsel for the parties.
(2.) The only question involved in this writ petition is as to whether bar of Section 49 of U.P. Consolidation of Holdings Act applies to grove land or not? Para-1 of the writ petition is quoted below: That the opposite parties 1 and 2 filed a Suit under Section 229-B of the U.P. Zamindari Abolition and L.R. Act on 30.10.70 on the ground that even though initially the plot in dispute belonged to Purnvasi, Shiv Nath and Vira yet when the Zamindar had given permission to the Plaintiffs Tapeshwar and Munni Lal for the plantation of a grove then the Plaintiffs alone became the grove holders and after the abolition of Zamindari the Plaintiffs alone became Bhumidhars.
(3.) The number of the plot in dispute is 40, area 13 biswas 16 biswansis. S.D.O., Ghazipur dismissed the Suit No. 359 on 15.03.1986 holding the same to be barred by Section 49 of U.P.C.H. Act as consolidation in the area in question had taken place and the plea raised in the suit by the Plaintiff could be raised by him before consolidation courts but it was not done. Against the said order, Appeal No. 33 of 1986 was filed. Additional Commissioner First, Varanasi Division, Varanasi allowed the appeal on 26.06.1989 (Annexure-III to the writ petition). The lower appellate court in Para-10 of its judgment held that Plaintiffs appeared to be the only grove holders/ bhumidhars in use and occupation of the land in dispute. Ultimately lower appellate court set aside the judgment and decree passed by the trial court and remanded the matter to it. Against the appellate court judgment and decree, Second Appeal No. 39 of 1988-89 was filed. Board of Revenue, Allahabad dismissed the second appeal on 30.05.1994, hence this writ petition.;