M.H. Beg, J. - (1.) THE Petitioner seeks a writ of certiorari to quash the judgment and decree dated 26 -6 - 1965 passed by the Board of Revenue, U.P., opposite party No. 1, allowing a second appeal filed by Bhikkan alias Bhikku opposite party No. 3.
(2.) THE abovementioned Bhikkan was Plaintiff in a suit under Section 202 UPZA and LR Act filed in the Court of the Assistant Collector, First Class, Sikandarbad, Bulandshahr, which was decreed on 7 -6 -1962. The Assistant Collector had proceeded on the assumption that the entry in C.H. Form 25 of the rights of the Plaintiff as bhumidhar and Defendant as asami of plot No. 299 in place of plot No. 425, of which the Defendant Petitioner Dalel Singh was in possession, was conclusive declaration of rights of parties. The Assistant Collector equated the allotment order in C.H. Form No. 25 with an entry in the record of rights prepared under Section 27(1) of the UP Consolidation of Holdings Act and thought that he need not explore the respective claims of the parties beyond examining what was contained in C.H. Form 25. Hence, the suit was easily decreed. The Petitioner Defendant then appealed to the Additional Commissioner who examined the facts more carefully and allowed the Petitioner's appeal. He observed that the Plaintiff Bhikkan had declined to give any proof of the liability of the Defendant to ejectment except a statement in Form 25 of the UP Consolidation of Holdings Act. After that, the Additional Commissioner went into the question of possession and held that the Petitioner Dalel Singh appears to have taken possession of plot No. 425 in 158F and that he retained possession of it inspite of a decree Under Section 180 UP Tenancy Act obtained by Bhikkan. The Additional Commissioner also referred to two civil suits, one numbered 517/51 for the realisation of Rs. 300/ - as price of Jawar which was dismissed on the ground that the crop had been sown by Dalel Singh, and another, numbered 416/55 in which Bhikkan had claimed that Dalel Singh Petitioner had taken forcible possession of the plot after 18 -6 -1954. In the second civil suit, a revenue court to which the question was referred, had held, by an order dated 21 -9 -1957, that the Petitioner Dalel Singh had acquired the rights of a Sirdar. The Civil Court accepted this finding and dismissed the suit of Bhikkan. On appeal, the appellate court dismissed the suit on the ground of want of jurisdiction to evict an asami. After this, came the consolidation proceedings in the course of which the name of Bhikkan was removed from plot No. 425 and the name of Dalel Singh Petitioner was recorded as sirdar. According to the Additional Commissioner this entry of the Petitioner as "sirdar" continued for over three years, but at the "winding up" operations the Consolidation Officer on 1 -9 -1959, made an order Under Section 38(2) of the UPCH Act, entering the Petitioner as an asami and Bhikkan as the bhumidhar of the plot. The Additional Commissioner's judgment indicates that there was some endorsement made in CH Form No. 25 showing a sudden inexplicable change. In other words, the entry was not there originally, but some change was made Under Section 38(2) of the Act, which existed until 27 -11 - -1958 for correcting patent or arithmetical errors only, so as to alter what was entered in CH Form 25 originally. Unfortunately, no judgment of the revenue courts explains how this took place or could take place Under Section 38(2).
(3.) THE Additional Commissioner held that even if the entry in consolidation operations was conclusive, no suit under the provisions of Section 202 of the UP ZA and LR Act lay as the Petitioner had acquired rights by lapse of time. The Additional Commissioner relied upon the view taken by this Court in the case of Unchan Singh v. Board of Revenue, 1962 AWR 26. Evidently, the Additional Commissioner was of opinion that the Petitioner had acquired new rights by adverse possession which had to be investigated by the revenue courts irrespective of the mere entry in CH. Form 25 which did not conclude matters. It is true that Unchan Singh's case (supra) relied upon by the Additional Commissioner did not deal with a case in which any proceedings under the C.H. Act had taken place. Therefore, it could be distinguished on facts. In consolidation proceedings, the rights in a plot are often transferred to another plot allotted in accordance with the provisions of the Act. In this process of transfer of rights even erroneous decisions may bind parties affected and thus transform the character of these rights.;