B. D. Agarwal, J. - (1.) THIS appeal is directed against the judgment and decree of Sri D. N. Shukla, Additional Civil Judge, Azamgarh dated March 28, 1962.
(2.) THE dispute is with respect to a portion of plot no. 611 situate in village Raipur district Azamgarh. THE area of the land involved in controversy is 16-Rep. (Suppl.) 200 links only. THE plaintiff has his house north faced in village Raipur. THE land in question lies towards the south of this house. THEre are certain trees also standing on this land including the bamboo clumps. THE plaintiffs brought the suit on July 10, 1958 alleging that this land constitutes his Sahen and he has been making use thereof for miscellaneous agriculturcal purposes. It was asserted that the trees also belong to him. THE defendants 1 to 4 obtained a deed of sale from the defendant no. 5 on July 15, 1957 in respect of this land and the trees existing thereon. THE defendant no. 5 was not competent to make transfer since he had no right, title or interest. On or about July 15, 1957 the defendants 1 to 4 interfered with the possession of the plaintiff and hence the suit claiming the relief of cancellation of the aforesaid deed of sale and perpetual injunction. In the alternative possession has also been claimed. THE defendant 1 to 4 resisted the suit refuting that the land was held by the plaintiff as his Sahen at any stage. It was pleaded that the land constitutes a grove and it was held as such by the defendant no. 5 who became bhumidhar thereof on the date of vesting under the U. P. Zamindari Abolition and Land Reforms Act and thereafter made sale to the contesting defendants for consideration by a registered instrument. THE defendants had stepped into possession by virtue of this purchase. THE Sahen of the plaintiff, it was asserted, lies to the north of his house and in part towards the east thereof, and not towards south. The trial court dismissed the suit on March 14, 1961 being of the view that the land in question did not constitute the plaintiffs' Sahen and that the defendants 1 to 4 had acquired valid title by the purchase made by them on July 15, 1957 from the defendant no. 5. The decree passed by the trial court was, however, reversed in appeal on March 28, 1962. Aggrieved the defendants 1 to 4 preferred this second appeal on August 1, 1962. This was admitted at the preliminary hearing on March 9, 1976.
(3.) SRI U. K. Misra, learned counsel for the appellants contended that section 49, U. P. Consolidation of Holdings Act bars the suit giving rise to this appeal. It is argued that there was notification of the State Government under section 4 (i) of this Act concerning this aera. In the khatauni of the period 1363-65 F. Paltu- the defendant no. 5 (the predecessor- in- interest of the appellants) is recorded as Bhumidhar of the disputed land vide Ex A-4. Subsequent to the purchase made by the defendants 1 to 4 by the registered deed of sale dated July 15, 1967 corresponding to 1375 F. the defendants were mutated in the revenue papers over this land by the order of the Assistant Collector passed on May 31, 1958 vide Ex A-1. In veiw of the consolidation operations having commenced in the area, it was open to the plaintiff, it is argued, to have raised objections within the period specified under section 9 (2) of the U. P. Consolidation of Holdings Act (hereinafter referred to as the Act). The plaintiff filed objections purporting to be under this provision on August 31. 1976. This was rejected by the Consolidation Officer on June 21, 1977 under section 9-A of the Act on the ground that the same was beyond limitation and the delay had not been satisfactorily accounted for. It was observed that the plaintiff-objector could not plead in the circumstances of lack of kaowledge of the proceedings. The plaintiff preferred revision under section 48 of the Act against this order but that also was dismissed by the Deputy Director of Consolidation on October 5, 1977. It was found that the notification under section 9 had been made on August 31, 1970 ; the notification under section 20 had taken place on May 14, 1972. The appellants have placed on record copies of these orders accompanied with affidavit. The submission for the appellant is that in view of the provisions contained in Sees. 49 and 11-A of the Act, the plaintiff-respondents had the remedy to move the consolidation authorities within the prescribed period and that due to this failure on his part he is precluded from asserting any longer that the defendants-appellants are not the Bhumidhars of the land in dispute or that the same was not held as grove by Paltu who made the sale in favour of the appellants. The argument is possessed of merit in my opinion. Section 49 reads as under :- "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 area, for which a (notification) has been issued under sub-section (2) of Sec. 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." According to Sec. 11-A no question in respect of claims to land, relating to the consolidation area made or which ought to have been raised under Sec. 9 but has not been raised, shall be raised or heard at any subsequent stage of the consolidation proceedings. The crux of the dispute as will appear from the narration of the facts made above, is whether the defendants -appellants can claim the land to be held by them as Bhumidhars or in other words as to whether this was grove held as such by Paltu before he made the sale in favour of the defendants-appellants. In case the land belongs to the defendants as Bhumidhars, the plaintiff respondent would be precluded from asserting right, title or interest as Sahen over the same land. There can be little doubt in view of the provisions referred above that the plaintiff-respondents could and ought to have raised before the consolidation authorities the contention that the defendant-appellants are not the Bhumidhars or that Paltu was himself not the Bhumidhar and as such was not competent to make the sale. From the plaint, it would appear, to be clear that the plaintiffs' case is that the sale executed by the defendant no. 5 is unauthorised or void in other words since this was made by the defendant no. 5 having any title over the land. The consolidation authorities will have had the jurisdiction to decide whether the land constitutes a grove and is held as Bhumidhars by the defendant-appellants or as to whether the same has the character of Sahen situate in the Abadi as asserted by the plaintiff-respondents. In case they found that the land is Sahen, the consolidation authorities could not adjudicate as to whom does it belong, but in case the finding was that this constitutes grove, the consolidation authorities could certainly adjudicate the right, title or interest over the said land and find whether the defendant appellants are or are not Bhumidhars thereof. This, it would appear is the settled view of this Court as indicated from the decisions in Second Appeal no. 343 of 1968, Sahdeo Pandey v. Sheo Adhar dated 7-4-1969; Badn Ahir v Sahdeo Ahir, 1981 RD 15 ; Bishambhar v, Suraj Bali, 1981 ACJ 562 ; Mumtaz All v. Babu Raw, 1982 ACJ 477 ; motilal v. Puranawasi, 1982 RD 375 ; Chandar Shekhar v. Kardhi, 1981 ALJ 618.;