S.P.PANDEY, J. - (1.) THIS is a second appeal under Section 331 of the UPZA and LR Act (hereinafter referred to as the Act), preferred against the judgment and decree, dated 12-12-1990, passed by the learned Additional Commissioner, Jhansi Division, Jhansi, in Appeal No. 9/14 of 1988-89 Jalaun, dismissing the same and confirming the judgment and decree, dated 27-12-1988, passed by the learned trial Court in a suit under Section 229-B/202 of the Act.
(2.) BRIEFLY stated, the facts, giving rise to the instant second appeal are that the plaintiff, Smt. Shyam Kunwar instituted a suit under Section 229-B/202 of the Act for declaration of her rights as bhumidhar of the land, in dispute, against the defendant, Smt. Kishori Devi etc. On the basis of a sale-deed, dated 12-6-1974, ececuted by the Defendant No. 2, Lakshmi Prasad in repect of an area of six acres out of the land, in dispute. It has also been prayed that in case the possession of the plaintiff is not found to be proved, the Defendant Nos. 2 to 10 may be ejected from the land, in dispute and the same may also be delivered to her. On notice, the Defendant No. 2 Lakshmi Prasad contested the suit, denying the allegations and inter-alia, pleading that he had taken a loan of Rs. 7,500/- from the plaintiff and had executed a farzi sale-deed, in question, in her favour for her satisfaction and therefore, no rights or title could accrue to her on this basis, that since that suit as barred under Section 49 of the UPCH Act, the same has been filed out of sheer dis-honesty in order to usurp the land, in dispute. The learned trial Court, after completing the requisite trial, dismissed the suit of the plaintiff, vide its judgment and decree, dated 27-12-1988 against which she went up in appeal before the learned Additional Commissioner, who has also dismissed the same vide his judgment and decree dated 12-12-1990 and therefore, it is against these judgments and decrees that the instant second appeal has been filed by her before the Board. This second appeal stood allowed and the case was remanded to the learned trial Court for decision, afresh by the Board on 9-2-1994. On remand, the learned trial Court decreed the suit of the plaintiff, vide its judgment and decree, dated 10-7-1995 against which a first appeal was preferred before the learned Additional Commissioner, the proceedings of which were stayed, vide his order, dated 24-10-1996. The order of Board, dated 9-2-1994 was set aside, later on 6-12-1995 and the Second Appeal No. 90 of 1990-91 Jalaun was restored to its original number and thereafter, the judgment and decree, dated 10-7-1995, passed by the learned trial Court by which the suit of the plaintiff was decreed, becomes null and void and the first appeal, arising out of the same has also become infructuous, and therefore, the same are being disposed of accordingly. I have heard the learned Counsel for the parties and have also perused the record, on file. Assailing the impugned judgments and decrees, the learned Counsel for the appellant contended that since the matter before the consolidation authorities was in respect of mutation and no adjudication upon title or right was made, the suit was not barred by Section 49 of the UPCH Act; that since on the date of the transfer, made in favour of two persons the plaintiff and the wife of the transferor, by a single deed for which there was no restriction, the permission of the SOC concerned was not at all necessary and therefore, the impugned judgments and decrees are bad in law; that the fragment has been defined under Section 3(8-b) of the Act as an area less than 3.125 acres and since the transfer in question was made in respect of six acres, the same was not in respect of a fragment and as such, a permission of the SOC, concerned was necessary and therefore, the learned Courts, below, have committed manifest error of law as well as fact in dismissing the suit of the plaintiff; that since the provisions of Section 5(1) (c) (ii) of the UPCH Act, in corporated by Act XXXIV of 1974 w.e.f, 7-12-1974 and the sale-deed, in question, is dated 12-6-1974, the said provision has no effect, whatsoever upon the document, in question by which the plaintiff is claiming her rights and title over the land, in dispute; that it is the settled principle of law that the findings recorded inmutation proceedings are not binding upon a regular suit and therefore, the learned Courts, below, have grossly erred in holding otherwise, contrary to law; that the finding, recorded by the learned Courts, below that the sale-deed, in question, is void ab-initio, for want of the permission of the SOC, concerned, is also bad in law, in view of the settled principle of law; that in any view of the matter, the impugned judgments and decrees are illegal, perverse and without jurisdiction, which cannot, at any stretch of imagination, be allowed to sustain and therefore, this second appeal very richly deserves to be allowed, in to. In support, reliance has been placed on the case law, reported in 1985 RD 167, AIR 1986 SC 500, 1987 RD 109, 1965 RD 417, 1984 ALJ 82. The learned Counsel for the respondent, in reply, urged that since in the mutation proceedings before the consolidation authorities, the transfer itself was held to be void ab-initio, which became final, the suit was clearly barred by Section 49 of the UPCH Act and since the mutation proceedings also decided the question of title, which also became final, in the facts and circumstances of the instant case, the learned Courts below were perfectly justified in rendering the impugned judgments and decrees as well as in dismissing the suit of the plaintiff objection under Section 9 of the UPCH Act was filed before the consolidation authorities and therefore, after the publication of notification under Section 52 of the UPCH Act, the suit for declaration of rights would not lie and would be barred by Section 49 of the UPCH Act and therefore, this second appeal, having no force, very richly deserves dismissal out right. In support, reliance has been placed on the case laws, reported in 2000 RD 96 (H) and 290, 1977 RD 331, 1990 RD 193, 1986 RD 292.
(3.) I have closely and carefully considered the arguments, advanced before me by the learned Counsel for the parties and have also scanned the record, on file. The crux of the matter, in question, is whether or not the suit of the plaintiff is barred by Section 49 of the UPCH Act in view of the fact that the decision of the consolidation authorities are in respect of mutation case under Section 12 of the UPCH Act. Both the learned Courts, below, have held the suit barred under Section 49 of the UPCH Act. As a matter fact, Lakshmi Prasad executed a sale deed and also a gift deed on 12-6-1974 in favour of two persons the plaintiff as well his wife. It is noticeable that only an area of six acres has been transferred in favour of Mst. Shyam Kunwar. The consolidation authorities have held the sale deed void ab-initio in view of the fact that permission of the SOC concerned under Section 5(1)(c) of the UPCH Act was not taken before the execution of such sale deed, as only an area of 6 acres out of the total holding has been transferred in favour of the plaintiff, which clearly amounts to fragmentation of the holding. It is true that the decision in the mutation case is not binding upon a regular suit but here, in the instant case, the very basis of such decision i.e. the sale-deed in question, has been held void, ab initio, by the consolidation Courts. Since the veracity and legality of the sale deed, in question, has been adjudicated upon by the consolidation authorities, Section 49 of the UPCH Act, to my mind also, shall certainly come into play which puts a bar upon civil and revenue Courts in respect of the disputes with regard to which proceedings could or ought to have been taken under that Act and therefore, in my considered opinion, the learned Courts, below, were perfectly justified in rendering the impugned judgments and decrees and in holding the suit of the plaintiff barred under Section 49 of the UPCH Act. Both the learned Courts, below, have dealt with the matter, in question, through and through in correct perspective of law with which I also concur and therefore, no interference with the views, expressed by the learned Courts, below, is called for, as no illegality or material irregularity has been committed by them. The contentions of the learned Counsel for the appellant, who has miserably failed to substantiate his claim, are rather untenable for the same reason and, likewise, the case laws, cited by him are also of no help to him for the simple reason that the facts and circumstances of the instant case are rather quite different those of the reported case and therefore, this second appeal, having no force, very richly deserves dismissal outright, as nothing remains to be decided.;