B. L. Yadav, J. - (1.) THIS petition under Article 226 of the Constitution of India is directed against the order dated 4-11-80 passed by the Deputy Director of Consolidation, Varanasi, allowing the revision under Section 48 of the U. P. Consolidation of Holdings Act, 19:4 (for short the Act).
(2.) THE land in dispute was contained in Khata No. 1111. Plot No. 2937 area 0.47 was entered twice and plot no. 2937 was Matruk. An objection under Section 9-A (2) of the Act was filed by the petitioners alleging that plot no. 3937 was incorrectly entered twice rather at one place it must have been 2937 and plot no. 3937 was entered at two places as plot no. 2937 could not be entered at the proper place and it became consequently Matruk. It was further alleged that Sri Mangru, father of the petitioner was entered in 1356 Fasli with three years duration and the entries in his came continued till 1362 Fasli and proceedings under Section 240 (G) were also started and they were decided in favour of Mangru holding him to be sirdar and the names of all the land holders was ordered to be expunged. ZA Form 101 etc. were issued where Mangru was shown to be adhivasi and in case the contesting respondent no. 2 etc. (the land holders) wanted to challenge the entry of Adhivasi in the name of Mangru in proceedings under Section 240-G of the Act, they should have challenged the same by filing objections. But as those proceedings became final, they would operate as res-judicata and hence the claim of respondent no. 2 etc. may be dismissed. During Consolidation Partal respondent no. 2 etc. were shown to be in possession. An objection was filed by respondent no. 2 etc. alleging that they were in possession and that the petitioners or their father had incorrectly been entered and their names may be expunged ; that one Mohammad Ismail was the original tenure holder and he executed a sale deed dated 18th June, 1958 in his favour and that the names of vendees may be entered as bhumidhar and this names of the petitioners may be expunged. The Consolidation Officer by his order dated 31-5-75 rejected the objection of respondent no. 2 etc. Respondent no. 2 etc. filed an appeal which was also dismissed by the order dated 10-12-76. But their revision was allowed by the impugned order dated 4-11-80. On behalf of the petitioner it was urged that Mangru, father of the petitioner was entered in 1356 Fasli and he was alleged to have died before 1359 Fasli, but was recorded occupant under the provisions of Section 20 (b) of the UP ZA and LR Act, and in fact ZA Form 101 etc. were correctly issued in the name of Mangru showing him to be adhivasi, rather respondent no. 2 etc. were incorrectly entered in revenue papers. The proceedings under Section 240-G became final and would operate as Res Judicata. The land holders were bound by the orders passed in proceedings under Section 240-G.
(3.) LEARNED counsel for respondent nos. 2 and 3 on the other hand urged that as Mangru died before the date of vesting, hence even though he was recorded as occupant in 1356 Fasli, but he could not acquire adhivasi rights and the proceedings under Section 240-G of the Act did not become final as respondent nos. 2 etc. who had no knowledge about the same nor they were served with notices. Having heard the learned counsel for the parties I am of the view that the submissions urged on behalf of the petitioners are well founded. It is a fact that Mangru was entered in 1356 Fasli and his name continued till 1362 Fasli and in ZA Form 101 he was shown as adhivasi and respondent nos. 2 and 3 were shown as land holders. The proceedings under Section 240-G of the Act commenced and it was found that Form ZA 101 etc. were correct and adhivasi was ordered to have become sirdar. It appears that the land holder did not contest even after notice. It is now too late for the land holders to contest during the consolidation operations. The proceedings under Section 240-G of the Act would operate as res judicata and they cannot be reopened. As ZA Forms 101 etc. appear to have been issued showing the name of Mangru as adhivasi and respondent nos. 2 etc. as land holders, in case the latter had any right, they should have challenged the same after receiving the notice in proceedings under Section 240-G of the Act. But they did not do so. As held by a five Judge Full Bench of this Court in Avdhesh Singh v. Bikarma Ahir, 1975 AWC 107, that in case an order is passed under Section 240-G of the Act, the same cannot be challenged subsequently unless it was shown that the procedure provided under the UP ZA & LR Act and Rules are violated. In the instant case it has not been shown by the contesting respondents that any such procedure was violated. Even if there was some mistake as suggested by the contesting respondents, they should have challenged the same in those proceedings under Section 240-G within time. But they did not do so till the start of consolidation operation. The result was that those proceedings under Section 240-G became final and there was no illegality in those proceedings.;