Kuber Nath Srivastava, J. - (1.) This is an appeal by the unsuccessful plaintiff arising out of the following facts: The plaintiff and his cousin Tribhunath were owners of a Chak, the area of which was 2.25 acres. Both the brothers had half and half share in this plot. By a sale deed dated 9 -11 -1962, Tribhunath sold his half share in this Khata to Pheru and three others. Pheru has a field contiguous to the above Khata. The other three vendees namely Daya Ram, Doodhnath and Dwarika had no field contiguous to this land. The sale was joint in favour of the defendant -vendees. The plaintiff therefore filed the suit that the sale deed was void as provided u/S. 168 of the UP ZA & LR Act and, therefore, he prayed for an injunction restraining the defendant -vendees from interfering with his possession. The suit was contested by the defendants and inter alia it was pleaded that Pheru had a plot contiguous to this area. The defence contention found favour with the trial court. The trial court dismissed the suit. On the same ground, the lower appellate court also dismissed the appeal. Being dissatisfied, the plaintiff has filed this appeal. There are certain facts which have not been disputed in this case. They are: Firstly, that the Khata jointly belonged to Tribhunath and the plaintiff; secondly, that in the consolidation proceedings, a single Chak was formed of this Khata in the names of Tribhunath and the plaintiff; thirdly, that the plaintiff and Tribhunath had half and half share in this land and fourthly that one of the vendees namely Pheru had a plot of land contiguous to this Khata. U/S. 168A of the UP ZA & LR Act, the fragmentation of a Khata, with an area of 3.125 or below was not permitted and such a fragmentation was void. There were two provisions to this rule. The first was that if the sale was in favour of a person who had a plot of land contiguous to the land sold, then the sale could be effective. The second provision was that it was a Bhumidhari land and was sold to a person as a whole or as much of that plot which has Bhumidhari right. There is no dispute that the second condition laid down u/S. 168A of the UP ZA & LR Act does not apply to the facts of the case. The trial court and the lower appellate court dismissed the suit only on the ground that Pheru had a plot contiguous to this Khata. Gould Pheru resist the claim of the plaintiff on this ground when he had joined three other persons with him as vendees who had no plot contiguous to the disputed plot. If this kind of sale is permitted, then the very object of S. 168A is likely to be frustrated because the strangers can subsequently divide the plot and it will result in fragmentation. After reading S. 168A, I feel that the transfer in contravention of S. 168A of the UP ZA & LR Act was permitted only in favour of a person who had contiguous plot because a sale to such a person was not likely to result in fragmentation of an area of 3.125 acres or less. I have already observed that three of the vendees namely Daya Ram, Doodhnath and Dwarika had no plot contiguous to the disputed plot and therefore they cannot be permitted to take advantage of Pheru's having a plot contiguous to the disputed Khata.
(2.) The learned counsel for the respondents next argued that that share of the plot sold which belonged to Pheru was protected u/S. 168A because Pheru had a plot contiguous to the disputed plot. This argument too cannot prevail. The sale of the entire area is jointly in the names of Pheru and the other three co -vendees. No demarcated or defined area is sold in favour of Pheru. The land being joint every vendee will have interest in every inch of land and it will be difficult to hold that the sale deed to the extent of share of Pheru would not be void. For these reasons, the above argument has no force in it.
(3.) It was next argued that the suit was barred by S. 49 of the U.P. Consolidation of Holdings Act. This argument has no force in it because S. 168A applied to consolidated area. Besides this, S. 49 bars only such suits which have been decided or ought to have been decided by the consolidation authorities.;