- (1.) HEARD learned Counsel for the parties at the admission stage under Order XLI, Rule 11, C. P. C.
(2.) THIS is plaintiff's second appeal. It arises out of original No. 798 of 1978. The relevant pedigree, which is essential to appreciate the controversy involved in the case is given below: - Bansraj Ram Nain ram Harakh = Budhna (dead)Ram Tahal (dead)Sarju (dead) Ramlaut (pltff.) Vikram Ramanand ramdeo D. 4 Tilak harangi D. 5 Janardan D. 6 The suit was dismissed by Vth 29. 8. 1987. Against the judgment and de-Additionaf Munsif, Gorakhpur on cree, plaintiff appellant filed Civil Appeal No. 304 of 1987, which was dismissed by 1st A. D. J. , Gorakhpur on 25. 8. 1991, hence this second appeal. The relief claimed in the suit was for the cancellation of the sale deed executed by Ramdeo original defendant respondent No. 4- since deceased and survived by legal representatives in favour of respondents No. 1 to 3 dated 10. 9. 1974 in respect of agricultural land. Plaintiff and defendants No. 4, 5 and 6 are descendents of common ancestors of Bansraj. Bansraj had four sons, i. e. Ram Nain (father of the plaintiff) Sarju (father of defendant No. 4) and Ram Harak, who died issue-less and Ram Tahal (father of defendant No. 5 and grand-father of defendant No. 6 ). After the death of Bansraj, his sons inherited the land in dispute and some other agricultural land. The agricultural land left behind by Bansraj was situate in two villages of two districts, i. e. Basti and Gorakhpur. Through the impugned sale deed Ramjeo sold his 4/9th share of the agricultural land situate in Gorakhpur. The plaintiff alleged that on 16. 3. 1962, an agreement had taken place in between the sons of Bansraj and through the said agreement, agricultural land, had been divided and in the said agreement/family settlement, agricultural land left behind by Bansraj situate in the village Mahuwa of District Gorakhpur came to the share of the branch of Ram Nain and the other three sons of Bansraj or their descendents were given the land situate in the village Thawaipar, Basti, hence defendant No. 4 had no right to execute the sale deed. It was admitted by the plaintiff that the alleged family settlement of 1962 was not given effect to in the revenue records. The reason given was that plaintiff had purchased some other agricultural land also and in case he had got his name entered in the revenue records over the land, which he got in alleged family settlement of 1962, he would have been liable to surrender some land to the State under U. P. Imposition of Ceiling on Land Holdings Act. It was further pleaded and admitted by the plaintiff that during consolidation proceedings, which had taken place 10 or 12 years' before filing of the suit no application for separate entries in tie revenue records was made in order to avoid the application of Coiling Act. Both the Courts below found that the alleged agreement was neither a family settlement nor partition. Copy of the said agreement dated 16. 3. 1962 has been annexed along with supplementary affidavit. In the said agreement, it was mentioned that over the laid situate in the village of Gorakhpur, the names of Sarjui son of Bansraj and Tilak and Harangi sons of Ram Tahal and of Musammat Budhna-widow of Ram Harakh were wrongly recorded and they were not in possession and Vikram and Rama Nand sons of Ram-laut were entitled to get their names recorded in the revenue records after getting the names of other persons scored off. The Courts below rightly held that the said agreement could not be said to be a deed of partition or family settlement. In any case under the said document right in respect of property in dispute was purported to be created in favour of sons of plaintiff appellant and not the appellant. For partition of agricultural land, a suit is to be filed under section 176 of U. P. Z. A. & L. R. Act, which was never done. Moreover, during consolidation proceedings also no objection was raised, hence the plea was clearly barred by section 49 of U. P. Consolidation of Holdings Act, which is quoted below:- " 49. Bar to Civil jurisdiction.- 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 an area for which a [notification] has been issued [under sub-section (2) of section 4, or adjudication of any other rights 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. "
(3.) THE plea was further barred by section 41 of Transfer of Property Act, which is quoted below "41. Transfer by ostensible owner- Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it:" The name of Ramdeo continued to be recorded in the revenue records until the execution of the sale-deed in execution by him in the Year, 1974. Plaintiff never objected to the entry of the name of Ramdeo hi revenue records rather according to him in order to avoid application of Ceiling Act, he expressly allowed the name of Ramdeo to continue to be recorded in the revenue records. Accordingly, the doctrine of section 41, T. P. Act was squarely applicable.;