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 13-1-1994, passed by the learned Additional Commissioner, Jhansi Division, Jhansi, in Appeal No. 19/89 of 1993, dismissing the same and confirming the judgment and decree dated 30-12-1992, passed by the learned Trial Court in a suit under Section 229-B of the Act.
(2.) BRIEFLY stated, the facts, giving rise to the instant second appeal are that the plaintiff, Smt. Phoola Rani instituted a suit under Section 229-B of the Act for declaration of her rights as a co-tenant along with the defendants 1 to 5 with her 6/7 share in the land, in dispute, being an ancestral property, against the defendants, Shiv Balak etc., inter alia pleading that since Durjan was recorded on the land, in dispute, in re-preventative capacity, she is entitled to the relief, sought for by her. On notice, the defendants contested the suit, denying the allegations and inter alia pleading that the suit of the plaintiff is barred by Section 49 of the U.P.C.H. Act as well as Section 34 of the Specific Relief Act. The learned Trial Court, after completing the requisite Trial, dismissed the suit of the plaintiff, vide its judgment and decree, dated 30-12-1992 and as such, the plaintiff went up in first appeal before the learned Additional Commissioner, who has also dismissed the same vide his judgment and decree, dated 13-1-1994 and therefore, it is against these judgments and decrees of the learned Courts below that the instant second appeal has been preferred by her before the Board. I have heard the learned Counsel for the appellant and have also perused the record on file. None responded for the respondents, despite due notice and repeated calls and therefore, the case proceeded ex parte against them. Assailing the impugned judgments and decrees, the bone of contentions of the learned Counsel for the appellant inter alia, in a nut shell, is that since Durjan was entered on the land, in dispute, in a representative capacity and a suit against the co-sharers for obtaining exclusive entry in the consolidation proceedings with suppressing the facts, amounting to fraud, is not a bar under Section 49 of the U.P.C.H. Act to the present suit of the plaintiff, both the learned Courts below have grossly erred in holding otherwise and as such, the plaintiff was very justifiably entitled to the relief, sought for by her and therefore, this second appeal very richly deserves to the allowed, in toto. In support, reliance has been placed on the case-laws, reported in 1982 AWC 88 and 1978 RD 226.
(3.) I have closely and carefully considered the arguments, advanced before me by the learned Counsel for the appellant and have also scanned the record on file. On the pleadings of the parties, concerned, following substantial questions of law emerges out, for decision in the instant appeal : “1. Whether or not, in the facts and circumstances of the instant case, the suit of the plaintiff is barred by Section 49 of the U.P.C.H. Act? “2. Whether or not the suit of the plaintiff is barred by Section 34(5) of the Specific Relief Act?” As a matter of fact, both the learned Courts below, have held the suit of the plaintiff barred by Section 49 of the UPCH Act as well as Section 34(5) of the Specific Relief Act. The claim of the plaintiff is rather based on the analogy that since Durjan was entered on the land in dispute, in representative capacity and she had no knowledge about the consolidation proceedings going on in the village, concerned and the defendants got their names exclusively recorded over it by suppressing the facts, which amounts to fraud, she is entitled to the relief, sought for by her. At the very outset, it is pertinent to mention here that as per the settled principle of law, the entry of only one person in representative capacity implies the existence of the rights and title of other co-tenants, as well, because where a person is recorded in such capacity, the other co-sharers remain assuredly rest content with rights and title in such a land to remain intact inspite of the fact that their names are not recorded and that another person's name is recorded in a representative capacity. Both the learned Courts below have manifestly erred in applying the general principle of law that after the close of the consolidation operations, the suit is barred by Section 49 of the U.P.C.H. Act. But there are exceptions to this general rule. They ought to have thrashed out the situation through and through, in an analytical and logical manner before holing the suit of the plaintiff, barred by Section 49 of the UPCH Act as well as Section 34(5) of the Specific Relief Act which is badly lacking in the instant case and therefore, I, without commenting upon the merits of the case, am, in the facts and circumstances of the instant case, of the considered view that this is rather a fit case for remand to the learned Trial Court for decision afresh on merits, according to law.;