Hari Swarup, J. - (1.) Through this petition the petitioner, Hari Singh has challenged the legality of the orders passed by the first three respondents. Respondent No. 4, Smt. Masoom Banoo had filed a suit u/S. 209 of the UP ZA & LR Act (hereinafter called the Act) for the ejectment of Hari Singh. The suit was decreed by the Judicial Magistrate. Appeal filed by Hari Singh was dismissed by the Commr. and the second appeal filed by him was dismissed by the Board of Revenue. The contention of the petitioner is that the suit u/S. 209 of the Act was not maintainable in view of S. 49 of the UP Consolidation of Holdings Act. On the other hand the contention of the plaintiff respondent is that the suit was maintainable by reason of S. 48 -A of the UP Consolidation of Holdings Act and that the sale deed executed by the Custodian in favour of the plaintiff had conferred on her fresh rights which could be enforced through a suit u/S. 209 of the Act. The Board of Revenue accepted the plaintiff's plea that the suit was maintainable in view of S. 48 -A and overruled the objection of the defendant.
(2.) The facts giving rise to the case are that originally there was a joint tenancy of Masoom Banoo, plaintiff and one Abu Zafar. Abu Zafar became an evacuee and u/S. 2(f) of the Administration of Evacuee Properties Apt the share of Abu Zafar became evacuee property. On 17 -1 -53, the Custodian of Evacuee Property (hereinafter called the Custodian) granted a lease in respect of the half share of the evacuee to Hari Singh, the petitioner. In 1956, the village came under consolidation operations and in consolidation proceedings Hari Singh was held entitled to half share in the holding. Finally, the Chaks were prepared and Hari Singh also got a Chak in lieu of what had been declared as belonging to him in the plot in dispute. The land in dispute came in the Chak of Hari Singh. Subsequently Masoom Banoo applied for separation of her interest. On 8 -10 -60 a sale deed was executed in respect of the evacuee share by the Custodian in favour of Masoom Banoo. Thereafter the Custodian on 28/29 -12 -60 executed a sale deed in respect of the same property in favour of Hari Singh. It was subsequently cancelled. This fact is, however, disputed by the petitioner. Masoom Banoo then filed the present suit u/S. 209 of the Act for ejectment of the defendant Hari Singh and for possession.
(3.) S. 49 of the UP Consolidation of Holdings Act bars the jurisdiction of civil and revenue courts, notwithstanding anything contained in any other law for the time being in force, for declaration and adjudication of rights of tenure -holders in respect of land lying in an area in respect of which a notification has been issued u/sub -S. (2) of S. 4 or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under the Act. Once a notification u/S. 4 is issued certain consequences follow. All the land in the area covered by the notification comes in the consolidation operation and the land is demarcated for certain purposes and distributed amongst tenure -holders in accordance with the consolidation scheme. No tenure -holder remains entitled to his own particular piece of land but gets land in lieu of his land which goes in the consolidation land pool. The entire holdings are disrupted and reformed, resulting in division, unison and interchange of plots. There is nothing in the Consolidation of Holdings Act which may exclude the evacuee land from consolidation operations or which may prohibit the Custodian from representing the interests of the evacuee or lodging his objections or claiming rights in respect of holdings before the consolidation authorities. Sub -S. (2) of S. 48 -A of the Consolidation of Holdings Act also suggests that the land belonging to an evacuee and vesting in the Custodian is also subject to consolidation operations. Under the cl. (a) of sub -S. (2), land vesting in the Custodian which is included in a holding not so vested will cease to be so vested in the Custodian on coming into force of the consolidation scheme and the provisions of the Administration of Evacuee Property Act shall thereupon cease to apply in relation thereto. U/cl. (b), in lieu of such land corresponding land is to be included in a holding which is vested in the Custodian and such land from the date of the coming into force of the consolidation scheme will be deemed to be evacuee property and the provisions of that Act will begin to apply to such land. This suggests that the consolidation operations will affect even the rights of the evacuee and the Custodian in evacuee properties. Cl. (a) of sub -S. (1) of S. 48A provides that no decision of the Custodian in relation to title of any land vested in the Custodian shall be called in question or varied or reversed by any officer under the Consolidation of Holdings Act. It only means that when the consolidation operations are going on the orders passed by the Custodian in relation to title to any land vested in him shall be taken as conclusive proof of the fact that it was evacuee property vesting in the Custodian. It does not oust the jurisdiction of the consolidation authorities to proceed with the matter. If the decision of the Custodian is not brought to the notice of the consolidation authorities or if the consolidation authorities take an erroneous view and treat the evacuee property as belonging to somebody else, it will only be a wrong order but it will not be an order without jurisdiction so as to make it null and void. It may even be open to the Custodian to lay a claim before the consolidation authorities or to challenge the order passed by them or to take any other steps for the protection of his rights but the order of the consolidation authorities cannot be ignored on the ground of its being a nullity. S. 49 will come into operation even in case of evacuee properties and rights can be got declared only under the provisions of the Act and not through a suit.;