B.L. Yadav, J. - (1.) The present petition under Art, 226 of the Constitution of India is directed against the judgment and order of the Board of U.P. at Allahabad dated 5th April 1975 Annexure '7') and that of the Additional Commissioner dated 23rd Oct. 1970 (Annexure '6') in a suit under S. 229 -B of the U.P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act for the purpose of brevity), filed by the petitioner for a declaration of Bhumidhari and sirdari rights which was decreed by the trial court vide its judgment and decree dated 22nd Jan. 1970 and the appeal by the contesting respondents was allowed and the Board of Revenue has dismissed the second appeal filed by the petitioner. The prayer is that the orders passed by the Additional Commissioner and the Board of Revenue may be quashed by issuing a writ of Certiorari. The facts of the case are in a very narrow compass. The suit under S. 229 -B of the Act. was filed by the petitioner with the allegations that the petitioner was the bhumidhar on the basis of a gift -deed dated 7th Aug. 1963 executed by Smt. Phullo who had inherited the plots from her husband, namely, Hargulal, before the date of vesting and she had become bhumidhar thereof and was entitled to execute the gift -deed and she, for the sake of precaution, has also executed a will dated 15th June, 1964. It was alleged that the petitioner continued in peaceful possession as bhumidhar since the date of the execution of the gift -deed. In the alternative he also alleged that he acquired sirdari rights under S. 210 of the Act and in any case he became Bhumidhar on the basis of will aforesaid. Smt. Phullo died later on and after her death the dispute arose when the consolidation operations commenced in the village. The objection was filed by Nanak Chand claiming to be entitled to the land in dispute as bhumidhar, being the real sister's son of the husband of Smt. Phullo and ultimately his name was ordered to be mutated in place of Smt. Phullo deceased. But those proceedings were under S. 12 of the U.P. Consolidation of Holdings Act. These proceedings under S. 12 of the Act are summary in nature and have nothing to do with the suit based on title. Hence the present suit was maintainable.
(2.) Sri Nanak Chand, Respondent No. 5, was defendant No. 1 He contested the suit alleging that the plaintiff did not derive any title either on the basis of the gift -deed or the will rather his name was entered correctly being the real sister's son of the husband of Smt. Phullo the donor and the testator, in favour of the plaintiff -petitioner. He further, alleged that the suit was barred by S. 49 of the U.P. Consolidation of Holdings Act as his name was entered in the proceedings under S. 12 of the U.P. Consolidation of Holdings Act. On the death of Smt. Phullo the judgments of the consolidation authorities became final and would operate as res judicata and the petitioner could have no right to agitate the same controversy again.
(3.) The trial court vide its judgment and decree dated 26th Jan. 1970 decreed the suit holding that the suit was not barred by S. 49 of the U.P. Consolidation of Holdings Act and that the petitioner has acquired Bhumidhari rights and he continued in possession and in any case he becomes sirdar.;