R.S.Singh, J. - (1.) THIS is a defendant's second appeal against the decree and judgment of the Additional Civil Judge, Jaunpur dated 19-12-1970 dismissing the appeal filed by him.
(2.) THE facts of the case, in brief, are that Shri Jaishri Bhar, defendant-respondent, executed a pronote for Rs. 800/- in favour of the plaintiff-respondent no. 1 on 30-5-1963. A suit for recovery of the money advanced was filed by the plaintiff-respondent against Sri Jaishri Bhar, defendant-respondent. THE suit was decreed in 1966. THE decree was put into execution by plaintiff-respondent and the plot in dispute measuring " 88 acre was attached on 8-11-1966. Against the attachment an objection was filed by the defendant appellant on the ground that he has purchased the land under attachment from Sri Jaishri Bhar through a sale-deed dated 18-4-1966 before attachment. THE objection was allowed under Order XXI, Rule 58 CPC and it was held that the property in suit is not liable to attachment and sale. THE plaintiff-respondent filed the present suit under Order XXI, Rule 63 CPC against Sri Jaishri Bhar and Jokhan, the defendant-appellant for a declaration that the property in dispute is liable to attachment and sale in execution of the decree. THE suit was contested by the appellant on various grounds that the suit is not maintainable under Order XXI, Rule 63 CPC, that the sale in question is genuine and the defendant appellant is a bonafide purchaser for value, that the defendant appellant had been declared as bhumidhar of the land in suit during the consolidation of holding proceedings and that the suit was barred under section 49 of the U. P. Consolidation of Holdings Act. The trial court decreed the suit for declaration that the plot in dispute is liable to attachment and sale in execution of the decree passed in suit No. 188 of 1966. The defendant-appellant preferred an appeal against the decree and judgment of the trial court which was dismissed by the lower appellate court. The defendant-appellant has filed the present second appeal against the judgments and decrees of the courts below in this Hon'ble court. It has been contended by the learned counsel for the appellant that the appellant was a bonafide purchaser for consideration and the sale-deed was valid and genuine. The finding recorded by the lower appellate court that it was sham transaction is illegal. The lower appellate court while dealing this point has observed that the appellant is the son-in-law of the judgment-debtor and he is a resident of a village which is at a distance of about nine miles from the land In dispute.
(3.) I have perused the judgment of the lower appellate court. The lower appellare court has taken all the necessary facts and circumstances of the case into consideration to arrive at the finding that the sale-deed was a sham transaction and was not a valid and genuine document. The learned counsel for the appellant has not been able to challenge this finding of fact and to prove that this finding recorded by the lower appellate court is erroneous in law. Therefore, the finding of fact recorded by the lower-appellate court is in accordance with law and cannot be challenged in second appeal in this Hon'ble court. It was vehemently pressed by the learned counsel for the appellant that during consolidation of holding proceedings the appellant was declared to be a bhumidhar of the land in dispute and no objection was filed by the plaintiff-respondent. Therefore, section 49 of the U. P. Consolidation of Holdings Act bars the suit. This according to the learned counsel for the plaintiff-respondent is also not tenable for the simple reason that the plaintiff-respondent was not the bhumidhar of the land in dispute at that time and even upto this time. He had no locus standi to file any objection before the Consolidation Authorities for declaration of his title as bhumidhar in respect of the land in dispute. Section 49 of the Consolidation of Holdings Act is as follows :- "49. Bar to civil jurisdiction :-Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of rights of tenure-holders in respect of land lying in an area, for which a notification has been issued under sub-section (2) of section 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 this Act, shall be done in accordance with the provisions of this Act and no civil or revenue court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act." This section contemplates declaration and adjudication of rights of tenure-holders in respect of land lying in that area or adjudication of any other right arising out of consolidation of holding proceedings and in regard to which a proceeding could or ought to have been taken under this Act and where these conditions are fulfilled, the declaration and adjudication of rights should or ought to have been decided under that Act, otherwise, that declaration and adjudication of rights in respect of that land could not be granted by Civil or Revenue court in the subsequent suit as this section will bar the jurisdiction of that court. In this case the plaintiff-respondent was not a tenure-holder of the disputed land and moreover the relief claimed in this suit that the property in suit was liable to attachment and sale in execution cf decree could not be declared and adjudicated in the consolidation of holding proceedings. Therefore, section 49 of the U. P. Consolidation of Holdings Act was wholly inapplicable in this case and the suit was not barred under section 49 of the U. P. Consolidation of Holdings Act.;