T.S. Misra, J. - (1.) Defendants Nos. 1 and 2 have filed this appeal from the decree passed by the Civil Judge, Allahabad, restraining them from raising any constructions in the portion of plot No. 260/4 in suit. The case of the Plaintiffs was that they and the Defendants Nos. 1 and 2 were the grove -holders of the suit plot and on the enforcement of the UP ZA and LR Act they became the Bhumidhars thereof. On a portion of the said land there stands a house 46 feet in length and 42 feet in width having its sahan Darwaza towards the west thereof. The rest of the land is still jointly held by the Plaintiffs and the Defendants Nos. 1 and 2. The Defendants Nos. 1 and 2, however, due to ill will and with a view to make constructions on the remaining land lying towards the east of the house started storing bricks thereon with effect from 5 -4 -64 and when they were asked to desist from doing so they wanted to pick up quarrels and threatened to raise the constructions as early as possible. The Plaintiffs, therefore, filed the suit for permanent injunction to restrain the Defendants from making any constructions on the said land and from converting its character in any manner whatsoever and also from interfering with the joint possession of the Plaintiffs thereon. The suit was resisted by the Defendants Nos. 1 and 2. They denied that the sahan darwaza was towards the west; according to them the sahan darwaza is towards the east of the house. They further contended that the land did not bear the character of a grove and denied the possession of the Plaintiffs on the said land. The trial court dismissed the suit. On appeal by the Plaintiffs the appellate court below decreed the suit as prayed. It found that the land towards the east of the house was never used as sahan by the Defendants Nos. 1 and 2. It also found that the character of the land was still that of a grove land and the Plaintiffs and the Defendants Nos. I and 2 are the joint Bhumidhars of that portion of the suit plot which lies towards east of that house and were in joint possession of the same. On these findings it was held that the Defendants Nos. 1 and 2 had no right to raise any constructions in this land. Aggrieved, the Defendants Nos. 1 and 2 have come to this Court in second appeal.
(2.) At the outset it was contended on behalf of the Appellants that as the village in question where the land is situate has been brought under consolidation operations the suit and the appeal abated Under Sec. 5 of the U.P. Consolidation of Holdings Act. It was not disputed by the learned Counsel appearing for the Respondents that the village in question has been brought under consolidation operations. It was, however, contended that as the land is a grove land it was out of the purview of the said Act and as such the suit and the appeal should not abate. The learned Counsel referred to the definition of the term 'Consolidation' as given in Sub -clause (2) of Sec. 3 of the Act. According to this definition 'Consolidation' means re -arrangement of holding in a unit amongst several tenure holders in such a way as to make their respective holdings more compact. An Explanation is added to Sub -clause (2), the relevant portion of which reads as follows: For the purposes of this clause, holding shall not include the following: (i) land which was grove in the agricultural year immediately preceding the year in which the notification Under Sec. 4 was issued.
(3.) In view of this provision it was submitted that for the purposes of 'Consolidation' land which was grove in the agricultural year immediately preceding the year in which the notification Under Sec. 4 was issued shall not be considered as holding and as such id would not fall within the purview of 'Consolidation'. It was argued that the purpose of 'Consolidation? is to re -arrange the holding it a unit amongst several tenure holders in such a way as to stake their respective moldings more compact and as the grove could not be shifted it was excluded from the 'holding' for the purposes of consolidation and the notification issued : Under Sec. 4 of the Act would, therefore, not include within its ambit the land recorded as a grove. There is no force in this contention. The import and effect of the explanatory clause added to Sub -clause (2) of Sec. 3 is to be determined keeping in view the scheme of the said Act. By a declaration and notification made Under Sec. 4 of the Act a district or part there of is brought under consolidation operations. Sec. 7 deals with the examination of revenue records. Sec. 8 deals with the revision of the field book and current annual register as well as determination of valuations and shares in joint holdings. Under Sec. 8 -A the principles to be followed in carrying but the consolidation operations in the unit are prepared. Under Sec. 9(2) objections disputing the correctness or nature of the entries in the records or in the extracts there from or in the statement of principles or the need for partition can be raised. Such abjections are disposed of Under Sec. 9 -A or, 9 -B or 9 -C as the case may be. Sec. 11 provides for appeal from certain orders. Sec. 11 -A provides inter alia, that no question in respect of joint holdings valuation of plots which might Or ought to have been raised Under Sec. 9 but has not been so raised shall be raised or heard at any; subsequent stage of consolidation operations. Provisional consolidation scheme is prepared Under Sec. 19 -A and is published Under Sec. 20 and is confirmed Under Sec. 23 of the Act. There is no indication in Ch. II of the Act that the consolidation authorities have to ignore groves at the time of revision and correction of maps and revenue records. The annual register must cover the entire area mentioned in the notification issued Under Sec. 4 of the Act. Groves would therefore appear in the annual registers and if a party finds that a grove has been wrongly entered in the name of another person he (sic) file objections. Objections in respect of claims to land or partition of joint holding may, be raised and disposed of under the provisions of the Act. It is thus plain that grove was excluded from 'holding' only in connection with re -arrangement of the plots, i.e. in allotment of chaks. For all other purposes 'Grove' is included within the purview of the said Act. While considering the provisions of Sec. 5 of the Act the Supreme Court in the case of R.A. Singh v/s. Ramroop singh, 1968 AWR 14 held that: Suits for possession as such has, nil been expressly referred to in the amended Sec. 5 of Act XXI of 1966 but the expression every suit and proceeding in respect of declaration of rights or Interest in any land...are comprehensive enough to take in suits for possession of land, because, before a claim for possession is accepted, the court will have necessarily, to adjudicate upon the right or interest of the Plaintiff, in respect of the disputed property, taking into account the claim of the opposite party. Therefore, the suit instituted by the Respondent and the appeal arising out of that suit is covered by the amended Sec. 5 of the Act.;