O. P. Trivedi, J. - (1.) FOR proper appreciation of the facts, it is necessary to bear in mind the following pedigree which is admitted :- Thakur Bahadur Singh Ram Adhin Singh - Smt. Umrai (Defdt. No. 1 deceased) ____I____________________ I J Jagannath Baksh Singh Late Vishwanath Singh (From the first wife) (from the second wife Smt. Umrai) Krishna Kumar Singh I (Defendant No. 5) I ______________I___ _ -
(2.) YOGENDRA Vikram Virendia Vikram Surendra Vikram Singh Singh, Defdt. No. 2 Singh, defdt. No. 3 Defdt. No. 4. Admittedly there arose a dispute between Ram Adhin Singh and Vishwanath Singh on one hand and Jagannath Baksh Singh and his son, defendant No. 5, on the other regarding their ancestral and Joint family property. This dispute was referred to Arbitrators who vide their original award passed in the year 1941 and supplementary awards dated 19-8-1941 and 5-3-1942 made a partition of the disputed property between the contenders allotting definite shares to different coparceners. This award was made rule of the court on 24-7-1942 in Case No. 63 of 1941 decided by the Civil Judge Mohanlalganj, Lucknow. Under this award properties mentioned in list 'B' were given to Ramadhin Singh and his wife Smt. Umrai for maintenance. They were to maintain themselves from the usufruct of the properties without any right of transfer. There was a provision that on the death of both of them the property will devolve in equal shares on the branches of Jagannath Baksh Singh and Vishwanath Singh. List 'B' of the award comprised trees, Sir and Khudkasht plots and forms part of list 'A'. It is not disputed between the parties that the plots given in list 'B' were Sir and Khudkasht of the intermediaries. On 7-4-1964 Smt. Umrai the second wife of Ram Adhin Singh made a transfer of the plots mentioned in list 'B' in favour of Yogendra Vikram Singh appellant No. 1 (defdt. No. 2) and also delivered possession of the plots to the vendee. Jagannath Baksh Singh who died during the pendency of this appeal filed a suit for cancellation of sale-deed and for recovery of possession of the plots transferred by Smt. Umrai in favour of appellant No. 1 on the ground that Smt. Umrai did not possess any transferable rights in these plots ; that she was in possession of the plots in lieu of maintenance. The defence was that Smt. Umrai acquired sirdari rights on coming into force of U. P. Zamindari Abolition and Land Reforms Act ; that she was also declared Bhumidhar by the Consolidation Auhtorities ; that her rights will be determined not with reference to the terms of the award but with reference to Section 18 of U. P. Act No. 1 of 1951. There was also a plea that the plaintiff never raised an objection under Section 9 of U. P. Cosolidation of Holdings Act challenging correctness of the entry in the name of Smt. Umrai as Bhumidhar. The decision of the consolidation authorities that she was Bhumidhar has become final and was no longer open to challenge in view of Section 49 of the U. P. Consolidation of Holdings Act. The trial court held that Smt. Umrai possessed only Asami rights in the disputed plots in view of Section U of the U. P. Zamindari Abolition and Land Reforms Act, hereinafter referred to as the Act, and therefore she was incompetent to make a transfer of the land in favour of the appellant. The trial court, therefore, declared that the sale-deed in question is void but refused a decree for possession on the ground that plaintiff could not claim possession of the land during the life time of Smt. Umrai. Defendants appealed and the plaintiff filed a cross-objection. The appeal was dismissed by the lower appellate court affirming the trial court's finding that Smt. Umrai was only a Asami of the disputed land, but the cross-objection was allowed and a decree for joint possession was granted in favour of the plaintiff along with defendants 2 to 5. Yogendra Vikram Singh defendant No. 2 along with his brothers defendants 3 and 4 and the widow of Vishwanath Singh have, therefore, come to this Court in second appeal. The first submission of the learned counsel for the appellants is that the lower appellate court was in error in holding that Section 11 of the Act applied and Smt. Umrai acquired Asami rights in the disputed land and not bhumidhari rights under Section 18 of the Act. Section 11 of the Act is in these words : "Notwithstanding anything contained in Section 10 where Sir or Khudkasht has been allotted by the Sir or Khudkasht-holder to a person in lieu of maintenance allowance, such person shall be deemed to be the asami thereof entitled to hold the land for so long as the right of maintenance allowance subsists." The submission of the learned counsel is that Section 11 of the Act does not apply because the disputed land is not Sir or Khudkasht and because under the award specific proprietary share in certain villages and in plots mentioned in list 'B' was allotted to Smt. Umrai for the purpose of maintenance and that Sir and Khudkasht was not allotted to her in lieu of maintenance. This argument is entirely fallacious in view of the admitted position that plots mentioned in list 'B' of the award including the disputed plots were Sir and Khudkasht of the erstwhile intermediaries ; and Smt. Umrai was in actual possession of this land and had delivered possession of the same to the vendee-appellant No. 1. No doubt under the award specific proprietary share in certain villages mentioned in list 'A' was also charged for the purpose of maintenance of Smt. Umrai, but this proprietary share became extinguished on coming into force of the Act and what left with her was only Sir and Khudkasht land and she continued to remain in possession over this land in lieu of maintenance after coming into force of the Act. It follows, therefore, that the disputed land was Sir and Khudkasht in character and was allotted to this lady in lieu of maintenance allowance. All the conditions of Section 11 of the Act are, therefore, satisfied and the court below was right in arriving at the conclusion that Smt. Umrai became Asami under the terms of Section 11 of the Act. Similar view was taken in C 1969 AWR 90.
(3.) THE only other point made by the learned counsel is that the respondent-plaintiff was debarred from challenging the title of Smt. Umrai as bhumidhar in view of Section 49 of the U. P. Consolidation of Holdings Act as the plaintiff never raised an objection challenging her right in consolidation proceedings and never asserted any Iright in himself. In my judgment the bar of Section 49 does not operate as u/Section 27 (2) it is open to the respondent to show that the entries in the record of rights prepared in accordance with sub-section (1) of Section 27 of the U. P. Consolidation of Holdings Act showing Smt. Umrai as bhumidhar was not true. Section 27 (2) was substituted by U. P. Act 12 of 1965 and is in these terms : - "All entries in the record of rights prepared in accordance with the provisions of sub-section (1) shall be presumed to be true unless the contrary is proved." It is clear from this provision that although normally a presumption of correctness of the entries in the record of rights prepared in accordance with sub-section (1) of Section 27 of the U. P. Consolidation of Holdings Act attaches to such entries, but it is a rebuttable presumption. This presumption has, to my mind, been adequately rebutted by the respondents when they show that the consolidation authorities did not apply their minds to the provisions contained in Section 11 of the U.P. Zamindari Abolition and Land Reforms Act. I find no force in this submission also which is repelled- See Jagdeo v. Lauhar, 1970 AWR 532. These were the only points raised in the appeal which appear to be without any substance. The judgment and decree passed by the Civil Judge is not shown to be contrary to law and there is no ground for interference. The appeal is dismissed with costs to the respondents. Appeal dismissed.;