# Lalta Prasad & Ors v. Haunsla Prasad & Ors

- **Citation:** (2021) 10 ILRA 708
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-01
- **Case number:** Consolidtation No. 2572 of 1978
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lalta-prasad-ors-v-haunsla-prasad-ors-46406
- **Pages:** 23

## Headnote

A. Civil Law - Consolidation - Co-tenancy
rights - Uttar Pradesh Consolidation of
Holdings Act, 1953 - Sections 9-A(2), 48 &
49; United Provinces Tenancy Act, 1939 -
Land Revenue Act: Section 39(2).

Oudh Rent Act, 1886 - Section 108 -
Challenge to jurisdiction to pass judgment
and decree dated 11.03.1930, (which is
the basis of three impugned orders),
passed in R.S. No. 204 of 1929 - A suit for
recovery of possession of lands, held in
the right of occupancy tenancy, by a
person claiming title on the general law of
inheritance against a person, who is not a
landlord, is not barred by Clause (10b) of
Section 108 of the Oudh Rent Act, 1886.
(Para 46)

Thus, a suit by tenants i.e. from the branch of
the petitioner as well as amongst other cotenants of the other branch i.e. private
respondents, was maintainable. The judgment
and decree dated 11.03.1930, was passed by
the Court of Competent Jurisdiction and could
not be treated to be a nullity. (Para 49, 53)

The learned Munsif in its judgment dated
11.03.1930 after referring to the evidence both
oral and documentary held that the plaintiff
Raghuvir Tiwari (father of petitioner) had failed
to prove that the property in suit was a joint
family property while the defendants had
succeeded in showing that it was their specific
and separate property. (Para 52)

The said decree dated 11.03.1930 was never
challenged nor ever set aside, moreover, the
ground that the aforesaid decree was wholly
without jurisdiction was also not raised before
the three Consolidation Authorities and it is for
the first time that it is being urged before this
Court in writ jurisdiction. (Para 23)

The three Courts (Consolidation Authorities)
have specifically taken note of the judgment
dated 11.03.1930 to hold that once the right of
the father of the petitioner was rejected by the
Court holding that the property was not joint
and the same issue could not be re-agitated,
hence, the claim of the petitioner has been
rejected. (Para 31)

B. Code of Civil Procedure, 1908 - Order
XXII Rule 9 - Effect of Abatement or
dismissal - Effect of the plaint in suit filed
by the landlord in the year 1949 seeking
eviction and arrears of rent which abated -
The effect of abatement is clear from the
explanation which is appended to Order
22 Rule 9 and it clarifies that in a later suit
a defence which is based on the facts
which constituted a cause of action in the
suit which abated or is dismissed under
the said Rule does not operate as a bar.
Thus, the effect of abatement does not
create any conclusive bar. (Para 57)

The peti

## Text

_Characters 0–39,923 of 80,204. This is a partial read: ask again with offset=39923 for what follows._

708 INDIAN LAW REPORTS ALLAHABAD SERIES
authority, the excess amount, whether with
interest, if any, awarded by the arbitrator.
The same can be withdrawn within 30 days
of the communication of the Arbitrator's
award for disbursement to the land owners
or persons interested therein, unless such
award has been further challenged by either
of the aggrieved parties. Thus, Section 3H
of the Act, 1956 read with the aforesaid
Rules,
2019
themselves
contain
a
mechanism for payment of the amount
awarded by the Arbitrator, as such, there is
merit in the contention of learned counsel
for petitioner that recourse to Section 36 of
the Act, 1996 Act may not be necessary. Of
course, in the event the award of the
Arbitrator is challenged under Section 34
of the Act, 1996, then, the withdrawal and
disbursement as envisaged in Rule 3 of
Rules, 2019 may not take place. We were
not apprised of these rules on the earlier
occasion, when we decided Writ Petition
No. 533 (LA) of 2021.

8. In view of the opening word of
Sub-section (6) of Section 3G - "subject to
the provisions of this Act" as there is a
mechanism for payment of the amount
awarded by the Arbitrator under Section 3H
read with Rules, 2019, therefore, the
remedy under Section 36 of the Act 1996
would not apply at least at this stage of the
case. This aspect of the matter could not be
considered earlier.

9. Shri Dubey, learned counsel for the
National Highway Authority says that the
award dated 12.03.2018 in its entirety has
been challenged under Section 34 of the
Act, 1996. However, he is not sure as to
whether the petitioner's land is included in
the said award.

10. We are of the considered opinion
that the matter can be resolved by allowing
the petitioner to approach the competent
authority, under the Act, 1956, who shall
verify the fact as to whether there is an
award in favour of the petitioner, if it is so,
whether it has been challenged by the
authority or any other aggrieved person
under Section 34 of the Act, 1996 or not. If
the award has not been challenged, then, he
shall proceed in accordance with Section
3H of the Act, 1956 read with Rules, 2019
as discussed herein above. If he finds that
there is a challenge to the award under
Section 34 of the Act, then of course, he
cannot proceed any further, but in such
eventuality, he shall inform the petitioner in
writing about the factual position. This
exercise shall be completed within one
month. Whether the remedy under Section
36 of the Act, 1996 would be available in
the event the provisions of Section 3H of
the Act, 1956 and Rules, 2019 are not
complied, or not, and whether it will be
available after disposal of proceedings
under Section 34 or for that matter during
its pendency, if there is no stay of the
award, are questions which are left open for
consideration in some other appropriate
case.

11. With the aforesaid observations,
the writ petition is disposed of.
----------

(2021)10ILR A708
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.10.2021

BEFORE

THE HON'BLE JASPREET SINGH, J.

Consolidtation No. 2572 of 1978

Lalta Prasad & Ors. ...Petitioners
Versus
Haunsla Prasad & Ors. ...Respondents
10 All. Lalta Prasad & Ors. Vs. Haunsla Prasad & Ors.
709
Counsel for the Petitioners:
SK Mehrotra, Rakesh Kumar Srivastava

Counsel for the Respondents:
C.S.C., R.K. Srivastava

A. Civil Law - Consolidation - Co-tenancy
rights - Uttar Pradesh Consolidation of
Holdings Act, 1953 - Sections 9-A(2), 48 &
49; United Provinces Tenancy Act, 1939 -
Land Revenue Act: Section 39(2).

Oudh Rent Act, 1886 - Section 108 -
Challenge to jurisdiction to pass judgment
and decree dated 11.03.1930, (which is
the basis of three impugned orders),
passed in R.S. No. 204 of 1929 - A suit for
recovery of possession of lands, held in
the right of occupancy tenancy, by a
person claiming title on the general law of
inheritance against a person, who is not a
landlord, is not barred by Clause (10b) of
Section 108 of the Oudh Rent Act, 1886.
(Para 46)

Thus, a suit by tenants i.e. from the branch of
the petitioner as well as amongst other cotenants of the other branch i.e. private
respondents, was maintainable. The judgment
and decree dated 11.03.1930, was passed by
the Court of Competent Jurisdiction and could
not be treated to be a nullity. (Para 49, 53)

The learned Munsif in its judgment dated
11.03.1930 after referring to the evidence both
oral and documentary held that the plaintiff
Raghuvir Tiwari (father of petitioner) had failed
to prove that the property in suit was a joint
family property while the defendants had
succeeded in showing that it was their specific
and separate property. (Para 52)

The said decree dated 11.03.1930 was never
challenged nor ever set aside, moreover, the
ground that the aforesaid decree was wholly
without jurisdiction was also not raised before
the three Consolidation Authorities and it is for
the first time that it is being urged before this
Court in writ jurisdiction. (Para 23)

The three Courts (Consolidation Authorities)
have specifically taken note of the judgment
dated 11.03.1930 to hold that once the right of
the father of the petitioner was rejected by the
Court holding that the property was not joint
and the same issue could not be re-agitated,
hence, the claim of the petitioner has been
rejected. (Para 31)

B. Code of Civil Procedure, 1908 - Order
XXII Rule 9 - Effect of Abatement or
dismissal - Effect of the plaint in suit filed
by the landlord in the year 1949 seeking
eviction and arrears of rent which abated -
The effect of abatement is clear from the
explanation which is appended to Order
22 Rule 9 and it clarifies that in a later suit
a defence which is based on the facts
which constituted a cause of action in the
suit which abated or is dismissed under
the said Rule does not operate as a bar.
Thus, the effect of abatement does not
create any conclusive bar. (Para 57)

The petitioner has relied upon the pleading of
the suit instituted by the then landlord. The
then landlord had initiated proceedings for
arrears of rent and ejectment against his
tenants which included the petitioners as well as
the private respondents which clearly indicates
that the petitioner was in possession. Had the
property been partitioned between Bhagirathi
and Nand Kishore and the petitioner and his
predecessors had no right, then obviously the
then landlord would not have impleaded the
petitioner and his predecessors as a party. (Para
54)

Even if the same is taken at its face value what
could not be disputed by the learned counsel for
the petitioner is that the aforesaid proceedings
abated. There is nothing on record to indicate
that in response to the said plaint any of the
private respondents or even for that matter the
predecessor-in-interest of the petitioner had
filed their response. Even if taking the best case
scenario, the aforesaid plaint and its averments
can only be taken as an admission in so far as
the then landlord was concerned, however, the
same could not be pressed against either the
private respondents or their predecessor-ininterest. Since, there is nothing on record to
indicate that any of the private respondents or
their predecessors had accepted the aforesaid
averments. (Para 56)
710 INDIAN LAW REPORTS ALLAHABAD SERIES
C. It is fairly well settled that in order to
entitle a party to claim co-tenancy rights
in the holding on the ground of its being
ancestral the unbroken identity of the
holding
has
got
to
be
established
throughout the period. If the identity has
changed of the holding the claim cannot
succeed. (Para 61)

At the very outset, it may be stated that the
petitioner had laid his claims before the
Consolidation Courts on the ground that the
property was joint family property. It was never
his case that it was ancestral but nevertheless
this Court giving the benefit to the petitioner is
assessing the claim of the petitioner on both the
counts treating it to be ancestral as well as joint
family property. (Para 60)

It is not disputed nor could be shown from the
record that the property in question at any point
of time was recorded in the name of Debi
Charan. It has also not been shown that the
partition
which
had
occurred
between
Nageshwar belonging to the branch of Nand
Kishore and Bhagirathi in the year 1901 was
ever assailed and since that point of time, the
property has been recorded separately. The
petitioner also could not explain that it is Nand
Kishore and Bhagirathi who had granted 8
bighas of land out of their own holdings in
favour of Sri Raghuvir which continues to be
held by the petitioner in a separate Khata No.
126. From the said Khata No. 126, the father of
the petitioner had leased out certain lands.
(Para 66)

There is a difference between a joint
family and a joint family property merely
because a joint family exists does not give
rise to a presumption that the property
also belongs to the joint family. (Para 62)

There is no presumption of a property being
joint family property only on account of
existence of a joint Hindu family. The one who
asserts has to prove that the property is a joint
family property. If, however, the person so
asserting proves that there was nucleus with
which the joint family property could be
acquired, there would be presumption of the
property being joint and the onus would shift on
the person who claims it to be self-acquired
property to prove that he purchased the
property with his own funds and not out of joint
family nucleus that was available.

So far as the claim of the petitioner treating the
property to be joint is concerned, there is
neither any pleading nor any material to indicate
that the property in question was acquired in a
representative capacity. There is nothing on
record to indicate that the property was
acquired from the joint family nucleus. (Para 63)

Moreover, even though, there is absence of
pleadings and proof in this regard another fact
which cannot be effaced from the record is that
the father of the petitioner had instituted a suit
claiming partition on the very same premise that
the property was joint which in terms of the
judgment dated 11.03.1930 was held to be
separate
property
of
Nand
Kishore
and
Bhagirathi. (Para 64)

Writ petition dismissed. (E-4)

Precedent followed:

1. Mst. Maluka Kunwar Vs Pateshwar Singh &
ors., 1926 Rent Cases 301 (Para 27)

2. Karingan Vs Harihar Datt @ Bhola and
Rajaram, 1926 Rent Cases 48 (Para 28)

3. Jagdamba Singh & ors. Vs Deputy Director of
Consolidation & ors., 1984 (2) LCD 398 (Para
28)

4. Dropadi Devi & ors.Vs Shiv Chandra Dixit,
2020 SCC Online, All 104 (Para 61)

Precedent distinguished:

1. Muthavalli of Sha Madhari Diwan Wakf, S.J.
Syed Zakrudeen & anr. Vs Syed Zindasha & ors.,
2009 (12) SCC 280 (Para 19)

2. Radhavar Vs Devda, 2016 (132) RD 23 (Para
19)

3. Gujarat Urja Vikas Nigam Ltd. Vs S.R. Power
Ltd., 2008 (4) SCC 755 (Para 21)

4. V.K. Naswa Vs Home Secretary, U.O.I. & ors.,
2012 (30) 375 (SC) (Para 21)
10 All. Lalta Prasad & Ors. Vs. Haunsla Prasad & Ors.
711
5. Shree Ram & ors. Vs DDC & ors., 2011 (29)
LCD 764 (Para 20)

Present petition assails orders dated
30.04.1970, 07.09.1974 and 15.07.1978,
passed by Consolidation Officer,
Settlement Officer of Consolidation and
Deputy Director of Consolidation
repectively.

(Delivered by Hon'ble Jaspreet
Singh, J.)

1. The instant writ petition calls in
question the judgment and order passed by
the Consolidation Officer in Case No. 165
under Section 9-A(2) of the Uttar Pradesh
Consolidation of Holdings Act, 1953
(hereinafter referred to as 'U.P.C.H. Act,
1953') dated 30.04.1970 whereby the claim
of the petitioners relating to co-tenancy
rights in respect of base year Khata No. 123
and 141 was rejected. The petitioner
preferred an appeal before the Settlement
Officer of Consolidation which also was
rejected by means of judgment and order
dated 07.09.1974. The effort of the
petitioner to challenge the aforesaid two
judgments as mentioned above before the
Deputy Director of Consolidation by filing
a Revision under Section 48 of the
U.P.C.H. Act of 1953 ended in an
unsuccessful endevour.

2. Being faced with three such
judgments, the petitioner have invoked the
jurisdiction of this Court under Article 226
of the Constitution of India wherein by
means of order dated 07.11.1978, the
petition was admitted and the operation of
the impugned orders was stayed.

3. During the pendency of the petition,
the original petitioner Lalta Prasad expired so
also the private respondent nos. 1, 5, 6, 8, 10,
11 and 12 expired and they were substituted
by their legal heirs, however, for the sake of
convenience, the Court has referred to the
original parties, as they were impleaded at the
time of institution of the writ petition.

4. In order to appreciate the controversy
involved in the instant petition, an undisputed
family tree as set up by the parties is being
referred to.

5. Sri Debi Charan is the common
ancestor who was survived by his four sons
namely (i) Ram Avatar (ii) Nand Kishor (iii)
Kali Prasad (iv) Bhagirathi.

6. As far as the petitioner is concerned,
he is the son of Raghuvir son of Arjun who in
turn is the son of Ram Awatar. While the
private respondents no. 1 to 3 are the sons of
Sarju Saran while private respondent nos. 4
and 5 are sons of Raj Narayan. They claim
through the branch of Bhagirathi whereas the
private respondent no. 6 is the son of Chandi
Sahai, respondent no. 7 is the son of Suraj
Narayan, private respondent nos. 8 and 9 are
sons of Uday Narayan, private respondent no.
10 is the son of Lal Bahadur, private
respondent no. 11 and 12 are the sons of
Indrabali. All the aforesaid respondents nos. 6
to 12 claim their rights through the branch of
Sri Nand Kishore.

7. It will also be relevant to notice
that it is not disputed that Kali Prasad died
issueless. Thus, on one hand the petitioner
claiming his 1/3rd right through the branch
of Ram Awatar whereas private respondent
nos. 1 to 5 are the successors in interest
from the branch of Bhagirathi while the
respondent nos. 6 to 12 are from the branch
of Nand Kishore.

8. The disputes arose upon the
commencement
of
the
consolidation
operations in Village Sahra Mau, Pargana,
712 INDIAN LAW REPORTS ALLAHABAD SERIES
Bidhar, Tehsil, Tanda, District Faizabad
(now District Ambedkar Nagar).

9. In the base year, Khata No. 123
was recorded in the names of the
respondents nos. 6 to 12 (from the branch
of Nand Kishore) while Khata No. 141 was
recorded in the names of respondents nos. 1
to 5 (from the branch of Bhagirathi).

10. It was the case of the petitioner
that initially the land comprising of Khata
No.
123,
141
and
126
was
the
ancestral/joint family property. Though, the
land of Khata No. 126 stands exclusively in
the name of the petitioner while the other
plots of the Khata in question was joint
family property, hence the petitioner have
1/3rd share in each of the three Khatas.

11. The basis of the petitioner's claim
was that Sri Nand Kishore was the Karta of
the joint family which consisted of his
brothers and sons. Since the land was
acquired
within
the
family
in
a
representative
capacity,
hence,
the
petitioner also had 1/3rd right therein.

12. Upon the commencement of the
consolidation operations, the petitioner
found that the land comprising of Khata
No. 123 was in the name of the respondents
nos. 6 to 12 whereas the land of Khata No.
141 was in the name of respondent nos. 1
to 5 and the petitioner claimed 1/3rd share
in both the Khatas, thus, he filed his
objections under Section 9-A(2) claiming
co-tenancy rights to the extent of 1/3rd
share. He elaborated in his objections that
Debi Charan was the common ancestor
who had four sons. One of the sons namely
Kali Prasad expired issueless, hence, the
property being joint and ancestral devolved
amongst the three sons namely Ram
Awatar, Nand Kishore and Bhagirathi.

13. He further states that both, his
father namely Raghuvir and his grandfather
namely
Arjun,
indulged
in
intoxication and thus both Arjun as well as
Raghuvir were excluded and the property
came to be recorded only in the names of
Nand Kishore and Bhagirathi while the
father and the grand-father of the petitioner
also had 1/3rd share in the land in question.

14. The proceedings before the
Consolidation Officer came to be contested
by both the predecessors-in-interest of the
respondents nos. 1 to 5 and 6 to 12 who
categorically took the defence that the land
in question was never recorded in the name
of Debi Charan at any point of time. It was
stated that the land was divided between
Nand
Kishore
and
Bhagirathi
and
accordingly the name of their successor
continued to be recorded and so reflected in
the basic year Khata No. 123 and 141. It
was further objected by the private
respondents that the father of the petitioner
namely Raghuvir in the year 1929 had filed
a suit claiming co-tenancy rights in the
property in question before the Court of
Munsif, Akbarpur, District Faizabad. The
said suit was contested and was dismissed
wherein it was held that the property in
question was not joint, consequently, once
the father of the petitioner had lost his right
to claim co-tenancy rights, it was not open
now for the petitioner to raise the issue
once
again
in
the
consolidation
proceedings.

15. It was also objected that the
petitioner was not the legitimate son of
Raghuvir and as such he was not entitled to
any share. Moreover, both Bhagirathi and
Nand Kishore out of their own tenure
holding had provided 8 bighas each to
Raghuvir and a Khata No. 126 comprising
of the aforesaid was recorded in the name
10 All. Lalta Prasad & Ors. Vs. Haunsla Prasad & Ors.
713
of the petitioner, hence, neither on the basis
of the property being joint nor on the basis
that the property was ancestral, the
petitioner could not get any right.

16.

The
Consolidation
Officer
considering the material available on record
including
the
oral
as
well
as
the
documentary
evidence
dismissed
the
objections of the petitioner by means of
judgment dated 30.04.1970.

17. The petitioner being aggrieved
preferred two appeals bearing No. 798 and
797 before the Settlement Officer of
Consolidation and both the appeals were
dismissed by means of order dated
07.09.1974. The petitioner preferred two
Revisions bearing No. 1 of 1974 and 2 of
1974 which were also dismissed by means
of judgment dated 15.07.1978.

18. Being aggrieved, the petitioner
preferred the instant writ petition assailing
the three orders and Sri I.D. Shukla,
learned counsel for the petitioner while
assailing the impugned orders has primarily
raised the following submissions:-

(i) It has been urged that the three
Consolidation Authorities have misdirected
itself and have relied simplicitor on the
judgment passed in Regular Suit No. 204 of
1929 dated 11.03.1930 to hold that once the
right of the petitioner's father namely
Raghuvir was negatived by the Court of
Munsif in an action claiming co-tenancy
rights, hence, the same could not be raised
again during the consolidation proceedings.

It is submitted that this approach
was erroneous, inasmuch as, the three
Authorities, whose decision is under
challenge, did not appreciate that in so far
as the family tree is concerned, it was not
disputed that the father and grand-father of
the petitioner was deriving their rights from
the branch of Ram Awatar. It is not
disputed that Ram Awatar was the real
brother
of
Sri
Nand
Kishore
and
Bhagirathi. It is also not disputed that the
land comprising of Khata No. 123, 141 and
126 were part of the land which was
initially created and acquired within the
family, hence, it was ancestral in nature as
well as that since the father and grand
father of the petitioner had co-tenancy
rights, hence, his right claiming 1/3rd share
has neither been adjudicated which is an
error apparent on the face of record.

It has further been urged that the
judgment and decree which is the basis of
the three decisions under challenge is the
one dated 11.03.1930 passed in R.S. No.
204 of 1929 which is wholly without
jurisdiction, inasmuch as, at the relevant
time, the Oudh Rent Act, 1886 was in
operation and in terms of the aforesaid Act,
the tenancy was neither heritable nor
transferable, hence by virtue of the Section
108 of the Oudh Rent Act, 1886 no suit of
partition or claiming co-tenancy rights
could have been preferred before the Civil
court, hence, the aforesaid judgment and
decree dated 11.03.1930 was wholly
without jurisdiction and such a decree
could be ignored as it suffered from the
vice of coram-non-judice.

(ii) It is also urged that since
Oudh Rent Act, 1886 prohibited any
transfer or division of the holding amongst
the tenants, hence, the decree could not be
made binding and in any case, the
possession of the petitioner continued
throughout which was also evidenced and
reflected in a suit filed by the then landlord
against the predecessors-in-interest of both
the petitioners as well as the private
respondents who were jointly impleaded as
the defendants and in the said suit it was
clearly reflected that the predecessors of
714 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioner was in possession along with
the predecessors-in-interest of the private
respondents which also indicated the
continuity and jointness and this aspect has
also been lost sight of by the three
Authorities.

(iii) It has further been urged that
even though the names of the predecessorsin-interest of the private respondents
remained recorded in the basic year Khata
and even in the base year Khatauni of 1359
Fasli (year 1952) such entries were only
presumptive and it did not prevent the
Consolidation Authorities to adjudicate the
matter regarding the rights of the petitioner
which has not been done and thus the
Authorities have committed an error in
dismissing and rejecting the claim of the
petitioner on technical reasons without
entering into the merits of the case which
has resulted in sheer miscarriage of justice,
consequently, the three decisions deserve to
be set aside and the petitioner's right may
be recognized granting him 1/3rd share in
the aforesaid two Khatas bearing No. 123
and 141 relating to Village Sahra Mau,
Pargana Bidhar, Tehsil, Tanda, District
Faizabad (now District Ambedkar Nagar).

19. In support of his submissions, Sri
I.D. Shukla, learned counsel for the
petitioner has relied upon the decision of
the Apex Court in Muthavalli of Sha
Madhari
Diwan
Wakf,
S.J.
Syed
Zakrudeen
and
Another
Vs.
Syed
Zindasha and Others reported in 2009 (12)
SCC 280 as well as in Radhavar Vs. Devda
2016 (132) RD 23 for the proposition that
no
amount
of
consent
can
confer
jurisdiction on a court which has none. If a
Court had no jurisdiction, any order passed
by it would be a nullity and a decree
suffering from inherent lack of jurisdiction
does not attract the procedural provisions
of estoppel, waiver or res-judicata.

20. The learned counsel for the
petitioner has also relied upon a decision of
a larger bench of this Court in the case of
Shree Ram and Others Vs. DDC and
Others reported in 2011 (29) LCD 764 for
the proposition that the doctrine of estoppel
and acquiescence does not create an
implied bar if a co-tenant has failed to
assert his right under the U.P.Z.A. & L.R.
Act and such a tenant can raise objections
under the U.P.C.H. Act, 1953 which is a
special Act and has an overriding effect
over the other Acts. The other proposition
for which the aforesaid Authority has been
pressed into service is that the long
standing entries can be questioned by filing
objections under the U.P.C.H. Act of 1953
as the said entries only have presumptive
value and cannot be taken to be the
absolute proof for pressing the principles of
estoppel and acquiescence so also Section
49 of the U.P.C.H. Act, 1953 shall not
operate as an automatic bar.

21. In order to further buttress his
submission, the learned counsel for the
petitioner has relied upon a decision of the
Apex Court in Gujrat Urja Vikas Nigam
Ltd. Vs. S.R. Power Ltd. reported in 2008
(4) SCC 755 and V.K. Naswa Vs. Home
Secretary, Union of India and Others
reported in 2012 (30) 375 (SC) to submit
that the provisions of a special Act will
override the provisions of the general law
as well as that the Court by a legal
proposition can neither legislate nor issue a
direction to legislature to enact in a
particular manner. Though, certain other
decisions have also been relied upon but
since they primarily relate to the aforesaid
propositions, hence, this Court does not
deem necessary to burden the judgment by
multiplying the Authorities where the
propositions and decisions on the points
have been noticed.
10 All. Lalta Prasad & Ors. Vs. Haunsla Prasad & Ors.
715

22. Sri Rakesh Srivastava, learned
counsel
appearing
for
the
private
respondents on the other hand has refuted
the aforesaid contentions and has submitted
that it is not a case where the Court of
Munsif, Faizabad in R.S. No. 204 of 1929
while deciding the claim of the father of the
petitioner namely Raghuvir was not the
Competent Court or that the decree passed
by the said Court was a nullity, inasmuch
as, there is no bar either in Section 108 of
the Oudh Rent Act which prohibited such
proceedings while there are authorities to
the effect that it was only a bar for the
Revenue Court but no such bar was
attracted on the Civil Court which was
competent to deal with the matter and pass
appropriate orders.

23. It is further submitted that the
petitioner has not come to the Court with
clean hands and has not disclosed the
complete facts. It is urged that the father of
the petitioner had already instituted a suit
claiming co-tenancy rights in respect of the
disputed property in question which after
due contest was decided in the negative.
The said decree dated 11.03.1930 was
never challenged nor ever set aside,
moreover, the ground that the aforesaid
decree was wholly without jurisdiction was
also
not
raised
before
the
three
Consolidation Authorities and it is for the
first time that it is being urged before this
Court in writ jurisdiction apart from the
fact that neither there are adequate
pleadings nor ground raised in the writ
petition to support the aforesaid contention.

24. It is also urged by the learned
counsel for the private respondents that the
petitioner has also incorrectly stated that
the possession of the petitioner and his
predecessors was admitted by the landlord
who had instituted the suit for eviction and
arrears of rent in the year 1949. It is
submitted that the alleged suit which is
referred to by the petitioner was instituted
by the then landlord wherein the primary
relief was against the predecessors in
interest
of
the
answering
private
respondents, however, as a matter of
abundant caution the then landlord had
impleaded
the
petitioner
and
his
predecessors, however, since the said suit
abated and was never taken to its logical
conclusion, hence, no benefit can be
derived by the petitioner from the said suit.

25. It is further stated that in so far as
the three Consolidation Authorities are
concerned, each have taken note of the
evidence
led
and
have
recorded
a
categorical finding of fact that the property
was never ancestral nor it could be shown
to be joint property having been acquired in
a representative capacity rather the effort of
the father of the petitioner to claim cotenancy rights stood already rejected. The
evidence on record rather indicated that
both Nand Kishore and Bhagirathi out of
their own holdings had given 8 bighas each
to Raghuvir the father of petitioner who has
a separate khata of his own. At no point of
time, the father of the petitioner or his
grand father ever claimed or raised any
issue after having lost the case in the year
1930, hence, it was not open for the
petitioner to re-agitate the same issues
which have rightly been held by the three
courts to have attained finality.

26. It is also urged that the father of
the petitioner had leased out 5 bigahas of
land to various tenants whereas he still has
11 bighas of land and only to linger on the
disputes, the aforesaid case has been filed
which deserves no attention and three
decisions being concluded by findings of
fact are not liable to be disturbed in
716 INDIAN LAW REPORTS ALLAHABAD SERIES
exercise of powers conferred under Article
226 of the Constitution of India.

27. Sri Rakesh Srivastava, learned
counsel for the respondents in support of
his submissions has relied upon a full
bench decision of the Chief Court of Oudh
in the case of Mst. Maluka Kunwar Vs.
Pateshwar Singh and Others reported in
1926 Rent Cases 301 wherein the issue
before the Full Bench was whether a suit
for seeking possession of land held in
occupancy rights under the Oudh Rent Act,
claimed, on the basis of title and law of
inheritance against another person not
being a landlord is barred by Section 108
(Clause 10 (b) and by a unanimous
decision, the Full Bench answered the
question in the negative.

28. Sri Srivastava has relied upon a
Division Bench Decision of Judicial
Commissioners Court in Karingan Vs.
Harihar Datt @ Bhola and Rajaram
reported in 1926 Rent Cases 48 for the
proposition that a Civil suit for the relief
of partition for cultivatory holdings
amongst the tenant is maintainable.
Lastly, reliance has been placed on a
decision of this Court in the case of
Jagdamba Singh and Others Vs. Deputy
Director of Consolidation and Others
reported in 1984 (2) LCD 398 to
highlight the difference between an
ancestral and joint holding and what
ingredients are required to establish a
case under the aforesaid two claims. It
has been urged that for all the aforesaid
reasons, neither the decree passed by the
Civil Court in the year 1930 was a
nullity, nor the petitioner was able to
establish any case either of ancestral
property or of joint family property,
hence, the findings recorded by the three
Consolidation Courts are absolutely just
and
proper
which
requires
no
interference, hence, the writ petition
deserves to be dismissed.

29. The Court has heard the learned
counsel for the parties at length who have
painstakingly taken the Court through the
records of the writ petition to support the
irrespective contentions.

30.

Before
adverting
to
the
respective
contentions,
it
will
be
appropriate to formulate the questions
which arise for consideration.

(i) The effect of the judgment and
decree dated 11.03.1930 passed in R.S. No.
204 of 1929, whether the said decree was
without jurisdiction;

(ii) The effect of the plaint in suit
filed by the landlord in the year 1949
seeking eviction and arrears of rent which
abated.

(iii) Whether the petitioner has
been able to establish its case seeking cotenancy rights on the basis of the property
being ancestral in nature.

31. Referring to the first issue at hand,
it would be noticed that the three Courts
have specifically taken note of the
judgment dated 11.03.1930 passed in R.S.
No. 204 of 1929 to hold that once the right
of the father of the petitioner was rejected
by the Court holding that the property was
not joint and the same issue could not be
re-agitated, hence, the claim of the
petitioner has been rejected.

32. The primary submission of the
learned counsel for the petitioner while
attacking the three judgments that the
judgment and decree dated 11.03.1930 is
without jurisdiction on the premise that
since at the relevant time the Oudh Rent
10 All. Lalta Prasad & Ors. Vs. Haunsla Prasad & Ors.
717
Act, 1886 was in operation, hence, the said
Act did not permit the tenants to either
have the rights of inheritance or division or
transfer of the holding, hence, the decree
passed by the Civil Court was wholly
without jurisdiction and specific attention
has been drawn to Section 108 of the Oudh
Rent Act, 1886 which relates to the
jurisdiction of the Court.

33. On the other hand, the aforesaid
contention is repelled on the ground that
the bar of the jurisdiction as contained in
Section 108 is only in respect of such
matters where a tenant institutes a suit
against the landlord, however, where there
is a claim between two co-tenants, the same
was cognizable by the Civil Court and was
preserved by Clause 10 (b) of Section 108.

34. Before proceeding further, it will
be relevant to notice the tenor and contents
of Section 108 which is the pivot upon
which the controversy is revolving and it
reads as under:-

" Chapter VIII

 Jurisdiction of the
Court

 Suits Cognizable

108. Suits cognizable under the
Act.- Except in the way of appeal as
hereinafter provided, Courts other than
Courts
to
Revenue
shall
not
take
cognizance of the following descriptions
of suits, and those suits shall be heard
and determined in Courts of Revenue in
the manner provided in this Act, and not
otherwise-

A-Suits by a Landlord

(1) For the delivery by a tenant
of the counter-part of a patta;

(1-a) for a declaration that a
notice of relinquishment is invalid;

(2) for arrears of rent, or where
rent is payable in kind, for the money
equivalent of rent;

(3) for the enhancement of the
rent of a tenant;

(3-a) for the determination of
the rent of a tenant;

(3-aa) for the determination of
the rent of a tenant in respect of a
holding
part
of
which
has
been
relinquished under the first proviso to
Section 20 (3);

(4) for the ejectment of a tenant;

(5) against patwaris or agents
employed
by
landlords
in
the
management of land or the collection of
revenue or rent, or against the sureties of
those patwaris or agents for money
received or accounts kept by then
patwaris or agents in the course of their
employment as aforesaid, or for papers in
their possession or for the rendering and
settlement of accounts;

(5-a) for resumption of, or
assessment or enhancement of, rent on
land held rent free or at a favourable rate
of rent or for declaration of any right as
determined under Section 107-G or
Section 107-H;

B- Suits by a underproprietor or a tenant

(6) for establishing a right of
occupancy;

(7) for the delivery by a landlord
of a patta;

(8) for contesting a notice of
enhancement or ejectment;

(9) for compensation-

(a)
on
account
of
illegal
enhancement of payment of rent, or of any
sum in excess of rent due, or

(b) on account of the withholding
of a receipt for a payment of rent, or

(c)
on
account
of
illegal
ejectment, or
718 INDIAN LAW REPORTS ALLAHABAD SERIES

(d) on account of loss caused by
the making of an improvement under
Section 29, sub-Section (3), or

(e) on account of the value of
standing crops under Section 66;

(10) for the recovery of the
occupancy of any land which has been
treated by a landlord as abandoned or from
which an under-proprietor or tenant has
been illegally ejected by the landlord or for
possession by a person in whose favour an
ex-proprietary
tenancy
arises
under
Section 7-A:

Provided that nothing in this
section shall operate to debar any person
claiming to be an under-proprietor who
has been ejected under the provisions of
Section 60 from bringing a suit for
possession in a civil court;

(10-a) under the third proviso to
Section 30-A or for the recovery of the
occupancy of a holding or part thereof, and
for compensation for dispossession;

(10-b)
for
occupancy
of
a
holding by a person claiming such
occupancy as the heir of the deceased
tenant of the holding;

(11) for contesting the exercise of
the power of distraint conferred on
landlords and others by this Act, or any act
purporting to be done in exercise of that
power, or for compensation for illegal
distraint or for recovery of the amount
realized by proceedings in distraint;

(12) for abatement of rent [***];

(13)
for
the
recovery
of
compensation for improvements [***];

(13-a) for the recovery of an
amount which was recovered from him
under Section 12-A in excess of the amount
due from him;

C-Suit regarding the division or
appraisement of produce

(14) to set aside an award in
respect
of
a
division,
estimate,
appraisement or proceeding under Section
32;

D-
Suit
by
and
against
lambardars, co-sharers and muafidars

(15) by a sharer against a
lambardar or Co-sharer for a share of the
profits of an estate or any part thereof, or
for the rendering and settlement of
accounts in respect to those profits;

(16) by a lambardar, or by a
pattidar who is entitled to collect the rents
of the patti, for arrears of revenue or rent
payable through him by the Co-sharers
whom the represents, or by a lambardar for
village expenses and other dues for which
the Co-sharers may be responsible to him,
or
against
a
joint
lambardar
for
compensation for revenue or rent paid by
the lambardar on account of the joint
lambardar;

(17)
by
Co-sharers
against
lambardars, or by proprietors, or lessees
against muafidars or assignees of revenue,
for compensation on account of exaction in
excess of revenue or rent, or on account of
the withholding of a receipt for a payment
of revenue or rent;

(18) by muafidars or assignees of
revenue for arrears of revenue. "

35. Sri Shukla, learned counsel for the
petitioner has submitted that Section 108
which is part of the Oudh Rent Act, 1886 is
a special Act which contemplated only
occupancy rights for the tenants. The Act
did not provide for any inheritance or any
transfer of the holding by the tenant. It has
further been urged that there has been a
marked shift, inasmuch as, under the Oudh
Rent Act, 1886, the rights conferred on the
tenant did not include the right of transfer
or inheritance. Later, with the advent of the
United Provinces Tenancy Act, 1939 which
later was followed by the U.P.Z.A. & L.R.
Act 1950 which provided both heritable
10 All. Lalta Prasad & Ors. Vs. Haunsla Prasad & Ors.
719
and transferrable rights to the tenure
holders which has also further found its
reflection in the U.P. Revenue Code, 2006,
however, the fact remains that under the
Oudh Rent Act no such right was granted.

36. Section 108 clearly provided that
no courts other than the courts of Revenue
shall take cognizance of the suits which
have been described in the said Section and
it would indicate that there is no category
of a suit relating to either division of the
holding amongst co-tenants hence the
necessary corollary is that since the Act
prohibited inheritance and transferability,
thus, there was no category of such a nature
of a suit followed by the fact that where
such specific type of suits were provided to
be cognizable by the Revenue Court, the
jurisdiction of the Civil Court would stand
excluded.

37. It is in the aforesaid context that
the learned counsel for the petitioner has
relied upon a decision of the Apex Court as
well of this Court in Mst. Mutwalli (Supra)
and Radhawar (Supra) to contend that a
decree which was without jurisdiction, no
amount of consent can cure the defect nor
the principles of resjudicata, acquiescence
can be pressed into service and for the said
reason, the petitioner could not be have
been non-suited only on account of the
judgment and decree dated 11.03.1930.

38. It is in the aforesaid context as
well that the decision of the Apex Court in
the case of Gujarat Urza Vikas Nigam Ltd.
(Supra) and V.K. Nasva (supra) has been
pressed into service to indicate that the
provisions of U.P.C.H. Act, 1953 is part of
a special Act which has an overriding effect
and thus the claim of the petitioner ought to
have been adjudicated on its own merits
after considering the effect of the judgment
and decree and not merely on the ground
that there has been a decree of 1930 and the
matter was not adjudicated at all.

39.