N.D.Ojha, J. - (1.) This appeal has been filed against the judgment of a learned Single Judge and arises out of proceedings under the U.P. Consolidation of Holdings Act (hereinafter referred to as the Act) . When the village in which the plots which are the subject-matter of the present appeal are situated, was brought under consolidation operations the names of appellants along with others stood recorded in the statement of tenure-holders published under Sec. 11 of the Act as it stood before its amendment by U.P. Act 38 of 1958. Several sets of objections were filed under Sec. 12 of the Act. One set of these objections was filed by Pheku Singh, respondent No. 1, who claimed to be the sole sirdar of the plots in dispute on the allegation that his father Narottam Singh was the sirdar of these plots and on his death in April, 1955 these plots devolved upon him. The Consolidation Officer allowed the objection of Pheku Singh and dismissed those filed by the others. The order of Consolidation Officer was, however, set aside on an appeal filed by the present appellants, Pheku Singh thereupon filed a revision. The Deputy Director of Consolidation came to the conclusion that the appellants were licensees of Narottam Singh but on his death in April, 1955 their possession became adverse and no suit having been filed within three years from 1st July following, namely, 1st July, 1955 the rights of Pheku Singh extinguished and the appellants became sirdars of the plots in dispute. Aggrieved against the order of the Deputy Director of Consolidation Pheku Singh filed a writ petition in this Court. Before the learned Single Judge it was not disputed that the requisite notification under Sec. 4 of the Act had been published before the period of three years had expired from 1st July, 1955. The learned Single Judge took the view that on the notification under Sec. 4 of the Act being published no suit under Sec. 209 of the U.P. Zamindari Abolition and Land Reforms Act could be filed for ejectment of the appellants because of the bar created by Sec. 49 of the Act and as such the appellants could not acquire sirdari rights under Sec. 210 of the U.P. Zamindari Abolition and Land Reforms Act. It is this order of the learned Single Judge which is under challenge in the present special appeal.
(2.) Learned counsel for the appellants has urged that since the proceedings for consolidation of holdings in the instant case had commenced under the Act as it stood before its amendment by U.P. Act 38 of 1958 and since the wordings of Sec. 5 of the Act as they stood at the relevant time were different then those which were introduced by the amending Act of 1958 a suit under Sec. 209 could be filed notwithstanding a notification having been issued under Sec. 4 of the Act and the learned Single Judge has erred in taking a contrary view. In support of his contention learned counsel for the appellants has placed reliance upon two decisions, viz. Ahsan Ali v. Deputy Director of Consolidation, 1965 ALJ 1161 and Garaldwaj v. Bhadeshwar, 1966 ALJ 162 . The decision in Ahsan Ali's case is by a learned Single Judge who followed the decision of the unreported Division on Bench case in Noor Mohd. v. Chinnu, Special Appeal No. 384 of 1959, decided on 25.8.1959 . Reference has also been made in Ahsan Ali's case to the decision of another learned Single Judge in Dwarka v. Deputy Director of Consolidation, Civil Misc Writ No. 632 of 1959, decided on 16.8.1960 . In that case too the observations made in Noor Mohammad's case were followed.
(3.) The relevant observation which was made in Noor Mohammad's case is as follows : "The suit to recover possession could not be filed before the consolidation authorities. An objection under Sec. 12 of the Act is merely with respect to the fact that the recorded entries be corrected after a decision of the rights of the parties. The objection under Sec. 12, therefore, was neither an application for recovering possession nor a suit for the recovery of possession and, therefore, Sec. 49 of the Act did not bar a regular suit or application for the recovery of possession.";