Satish Chandra, J. - (1.) ON the death of Girdhari Lal, the plots in dispute were mutated in the name of his son Phundan. When consolidation proceedings commenced, Phundan was the recorded tenure -holder. No objection as to his title having been filed, he was in due course allotted plot No. 25. It appears that soon after the consolidation scheme was finalised Under Section 23 of the U.P. Consolidation of Holdings Act. Thereafter Phundan died on 20 -9 -1958.
(2.) SUNDER the Respondent before us made an application for mutation of his name in place of Phundan. He claimed to be the brother of Phundan. His claim was disputed by Smt. Bhuri, the Appellant before us. She put forward a preferential claim on the ground that she was the sister of Phundan. The Consolidation Officer held that Sunder was a real brother of Phundan and as such he was a preferential heir to him. Smt. Bhuri filed an appeal which was dismissed by the SO (C) on 17 -1 -1959. Thereafter Smt. Bhuri filed a suit in the revenue court Under Section 209 of the U.P.Z.A. and L.R. Act for the ejectment of Sunder. The principal point that arose for consideration in that suit was whether Smt. Bhuri was the heir of Phundan. The trial court decreed the suit on the finding that Smt. Bhuri was the preferential heir because Sunder was not the brother of Phundan. Sunder filed an appeal. The Addl. Commr. held that the suit was barred by Section 49 of the U.P. Consolidation of Holdings Act. This finding was upheld by the Board of Revenue, with the result that the suit was dismissed as incompetent. Aggrieved, Smt. Bhuri carried the dispute to this Court Under Article 226 of the Constitution. A learned Single Judge held that the suit was not maintainable and dismissed the writ petition. Hence the present appeal by Smt. Bhuri.
(3.) IT is clear that when Phundan died on 20 -9 -1958, proceedings for the allotment of Chaks had been completed and finalised. The question is whether the Consolidation of Holdings Act as it stood after its amendment by U.P. Act No. XXXVIII of 1958, which came into force on 27 -11 -1958, would apply to the application for mutation made by Sunder. Section 49, which was a transitory provision under the Amending Act, provided - - Where consolidation operations are pending in any unit at the commencement of this Act - - (i) if the operations are at the stage of examination of the land records Under Section 7 of the Principal Act, then the Asstt. Consolidation Officer shall complete the preparation of the statement mentioned in that section as if this Act had not come into force and such revision and preparation of statement shall thereupon be deemed to be the revision and preparation of statement mentioned in Sections 7 arid 8 of the amended Act and thereafter all further proceedings shall be conducted and conclude in accordance with the provisions of the amended Act, beginning with the proceedings Under Section 9 thereof; (ii) if the operations are at the stage of proceedings Under Section 8 of the Principal Act, or at any later stage, then all further proceedings shall be continued and concluded in accordant with the Principal Act as if this Act had not come into force. Explanation. In this section "amended Act" means the Principal Act as amended by this Act. It will be seen that both the clauses of Section 49 speak of 'all further proceedings'. If the proceedings under the Act are at the stage of Section 8 or thereafter, then under Clause (ii) they are be continued and concluded in ' accordance with the provisions of the unamended Act.;