Ashok Bhushan, J. - (1.) THIS Bench has been constituted by order of Hon'ble The Chief Justice dated 03/8/2009 to answer the following five questions as framed by referring order dated 21/7/2009, by the learned Single Judge hearing the writ petition: (I) Whether the law laid down by the learned single Judge in the case of Jagdeo and Ors. v. Deputy Director of Consolidation, Allahabad, and others, 2006 (101) RD 216, is in conflict with the other decisions of this Court referred to herein above and as noticed by the learned single Judge himself in paragraph No. 32 of the said judgment? (II) Whether the learned single Judge merely because of having arrived at a different conclusion as against the decisions cited to the contrary, on a consideration of additional aspects, could have rendered the decision himself, instead of referring the matter to a larger Bench in view of the law laid down in the case of Rana Pratap Singh and Ors. v. State of U.P. and Ors. : 1995 ACJ 200? (III)Whether the learned single Judge in Jagdeo's case was justified in invoking the principles of the doctrine of estoppel and acquiescence for creating an implied bar merely because a co -tenant had failed to assert his rights under The U.P. Zamindari Abolition & Land Reforms Act and was, therefore, barred from raising an objection under the Uttar Pradesh Consolidation of Holdings Act, 1953 and the rules framed there under? (IV)Whether the provisions of the U.P. Consolidation of Holdings Act have an over riding effect over all other Acts for the time being in force keeping in view the provisions of Section 49 and have the exclusive jurisdiction to decide right, title and interest of claimants relating to land tenures upon a notification under Section 4 or not? (V)Whether long standing entries which are questioned in an objection filed under the Uttar Pradesh Consolidation of Holdings Act hold only a presumptory value or they can be taken to be an absolute proof in law on the principle of estoppel, acquiescence and waiver and thereby attract an automatic bar of Section 49 of the U.P.C.H. Act.
(2.) THE facts giving rise to the writ petition necessary to be noted for answering the questions referred are; The Village Dinwapur, Mazare -Danda Amauli, Pargana -Tappajar, Tehsil -Bindki, District -Fatehpur was notified by the State Government for consolidation operation under the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act, 1953). The Respondent No. 3, and one Banshi filed an objection under Section 9(A)(2) of Act, 1953 with regard to Khata No. 264 and 266 claiming that the land of the aforesaid Khatas is an ancestral acquisition acquired by common ancestor Bhura in which they are co -tenants to the extent of half share. The Consolidation Officer rejected the objection of the Respondent No. 3, against which an appeal No. 4646 of 1998, was filed before the Settlement Officer Consolidation, by the Respondent No. 3. The appeal of the Respondent No. 3 was dismissed vide judgment and order dated 26/8/2002. Both the Consolidation Officer and the Settlement Officer Consolidation took the view that the claim of the Respondent No. 3 is barred by Section 49 of the Act, 1953, since the claim of co -tenancy was not raised during the earlier consolidation proceedings. The Respondent No. 3, filed a revision before the Deputy Director of Consolidation against the judgment and order dated 26/8/2002. The Deputy Director of Consolidation, vide judgment and order dated 16/2/2006, allowed the revision and declared the Respondent No. 3, co -tenant to the extent of half of the share. This writ petition has been filed by the Petitioners challenging the order of the Deputy Director of Consolidation dated 16/2/2006. Learned Counsel for the Petitioners in support of the contentions raised had relied on the judgment of the learned Single Judge reported in Jagdeo and Anr. v. Deputy Director of Consolidation, Allahabad & Ors., 2006 (101) RD 216, to urge that the claim of the Respondent No. 3, was barred by Section 49 of the Act, 1953.
(3.) THE learned Single Judge while hearing the writ petition expressed his disagreement with the view expressed in Jagdeo's case (supra) and has referred the above five questions for decision by this larger Bench.;