A.P.Sahi - (1.) THE present writ petition has been preferred against the order of Deputy Director of Consolidation, Allahabad, dated 16.2.2006 and the rejection of restoration application in the said revision whereby the Deputy Director of Consolidation has set aside the order of Consolidation Officer dated 9.10.1998 and order of the Settlement Officer, Consolidation in appeal dated 26.8.2002 and has declared respondent No. 3 to be the co-sharer of the land of Khata Nos. 264 and 266, the disputed property in the present proceedings.
(2.) THE respondent-Ram Ratan and one Banshi filed objections under Section 9A (2) of the Uttar Pradesh Consolidation of Holdings Act, 1953 claiming co-tenancy rights in the khatas aforesaid. THE Consolidation Officer rejected the said objection on 9.10.1998 against which an appeal was filed before the Settlement Officer, Consolidation which met the same fate. THE appellate order is dated 26.8.2002. THE respondent No. 3 filed a revision under Section 48 of the Uttar Pradesh Consolidation of Holdings Act, and the Deputy Director of Consolidation by the impugned order has reversed the order of the Consolidation Officer and the Settlement Officer, Consolidation and has proceeded to declare the respondent No. 3 to be a co-tenant of the property in dispute. The petitioners contend that the consolidation proceedings had been undertaken earlier and that the respondent No. 3 did not choose to stake any claim in the first round of proceedings, therefore, in view of the provisions of Section 49 of the Uttar Pradesh Consolidation of Holdings Act, the respondent No. 3 was not entitled to file any objection in the second round of fresh consolidation proceedings in view of the bar operating against him under the provisions referred to hereinabove. To appreciate the controversy, Section 49 of the Uttar Pradesh Consolidation of Holdings Act, is quoted hereinbelow : "[49. Bar to civil jurisdiction.-Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of right of tenure-holder 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 right 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 proceedings could or ought to have been taken under this Act : ] [Provided that nothing in this section shall preclude the Assistant Collector from initiating proceedings under Section 122B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 in respect of any land, possession over which has been delivered or deemed to be delivered to a gaon sabha under or in accordance with the provisions of this Act.' On this vital issue, the opinion of the Consolidation Officer and that of the Settlement Officer, Consolidation was unanimous to the effect that the bar of Section 49 operated against the respondent No. 3 and, therefore, the objection deserves to be rejected. The Consolidation Officer, while deciding issue No. 3, has clearly recorded that respondent No. 3 had attained majority when the previous consolidation proceedings had intervened, and his father was also alive. In the event, they had a claim of co-tenancy rights on the basis of the share claimed by them in accordance with the pedigree, they ought to have filed objections which they did not do and, therefore, the provisions of Section 49 directly stared in their face. The Settlement Officer of Consolidation in appeal affirmed the said finding and also relied on the decision in the case of Dudh Nath v. Sugani and others, 2000 RD 96. In a revision preferred by respondent No. 3, the Deputy Director of Consolidation, after discussing certain judgments of this Court and the Apex Court, came to the conclusion that whenever there is an allegation of fraud relating to forged entries or a claim of co-tenancy, the bar of Section 49 of the Act, would not operate. He has further held that respondent No. 3 has also claimed that he was a minor when the earlier proceedings of consolidation operations in the first round had intervened. Accordingly, he reversed the orders of Consolidation Officer and the Settlement Officer, Consolidation and allowed the objection of respondent No. 3 declaring him to be a co-tenant.
(3.) SRI Maurya, learned counsel for the petitioners, urged that Deputy Director of Consolidation has erred in law by treating the bar of Section 49 to be not applicable in the controversy and for that learned counsel for the petitioners has heavily relied on the decision in the case of Jagdeo and others v. Deputy Director of Consolidation, Allahabad and others, 2006 (101) RD 216 : 2006 (4) AWC 4216. Learned counsel for the petitioner on the strength of the ratio in the case of Jagdeo (supra), has contended that the bar not only operates because of the first round of consolidation having been concluded but also because of the fact that long standing entries clearly demonstrate that the petitioners were the sole successors to the property and, therefore, were rightly recorded as sole tenants. For this, he invited the attention of the Court to various paragraphs of the judgment in Jagdeo's case (supra) and urged that Deputy Director of Consolidation has grossly erred by taking a decision contrary to the law laid down by this Court.;