# Matashiromani v. State of U.P. & Anr

- **Citation:** (2022) 10 ILRA 1044
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-09
- **Case number:** Second Appeal No. 1284 of 2018
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/matashiromani-v-state-of-u-p-anr-47664
- **Pages:** 7

## Headnote

Civil Law - U.P. Consolidation of Holdings
Act, 1953 - Section 49 - Bar to Civil Courts
jurisdiction - disputed Plot recorded as
Navin Parti during consolidation operation
and no proceeding was initiated by
plaintiff during consolidation operation to
get the entry corrected, as such, civil suit
of plaintiff rightly held to the barred by
Section 49 of the U.P.C.H. Act - if no claim
is raised during consolidation operation,
claim
after
close
of
consolidation
operations would be barred by Section 49
of U.P.C.H. Act - civil suit by the plaintiff
who is not recorded in revenue record
cannot be entertained by civil Court - In
respect to Abadi land title cannot be
adjudicated by consolidation Court rather
consolidation Court can only order to
make entry of the nature of land as Abadi
(Para 15, 18, 19)

Dismissed. (E-5)

List of Cases cited:

## Text

1044 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2022) 10 ILRA 1044
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2022

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Second Appeal No. 1284 of 2018

Matashiromani ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Sri Anil Kumar Misra

Counsel for the Respondents:
Sri Jitendra Narayan Rai, Addl. C.S.C., Sri
Pradeep Kumar Tiwari, S.C.

Civil Law - U.P. Consolidation of Holdings
Act, 1953 - Section 49 - Bar to Civil Courts
jurisdiction - disputed Plot recorded as
Navin Parti during consolidation operation
and no proceeding was initiated by
plaintiff during consolidation operation to
get the entry corrected, as such, civil suit
of plaintiff rightly held to the barred by
Section 49 of the U.P.C.H. Act - if no claim
is raised during consolidation operation,
claim
after
close
of
consolidation
operations would be barred by Section 49
of U.P.C.H. Act - civil suit by the plaintiff
who is not recorded in revenue record
cannot be entertained by civil Court - In
respect to Abadi land title cannot be
adjudicated by consolidation Court rather
consolidation Court can only order to
make entry of the nature of land as Abadi
(Para 15, 18, 19)

Dismissed. (E-5)

List of Cases cited:

1. Ramdeo & ors. Vs Deputy Director of
Consolidation & ors. 2007 (207) R.D.
761
2. Ram Prasad & ors. Vs. Deputy Director of
Consolidation Pratapgarh & ors. 2004 (96) R.D.
303

3. Jai Narain & ors. Vs. Deputy Director of
Consolidation Deoria 2004 (97) R.D. 705

4. 2007 (102) R.D. 761

5. Abhairaj & ors. Vs. Gaon Sabha / Gram
Panchayat, LMC & anr. reported in 2017 (136)
R.D. 603

6. Shri Ram Vs. First Additional District Judge &
ors., J.T. 2001 (2) S.C. 573

7. Kamla Prasad & ors. Vs. Krishna Kant Pathak
& ors. (2007) 4 Supreme Court Cases 213

(Delivered by Hon'ble Chandra Kumar
Rai, J. )

1. Heard Mr. Anil Kumar Mishra,
learned counsel for the appellant and Mr.
Jitendra Narayan Rai, learned Additional
Chief Standing Counsel along with Mr.
Pradeep Kumar Tiwari, learned Standing
Counsel for the State.

2. The present second appeal under
Section 100 of Civil Procedure Code has
been filed on behalf of plaintiff against the
judgment and decree dated 30.8.2018 /
5.9.2018 passed by District Judge Bhadohi
Gyanpur in Civil Appeal No.21 of 2018
arising out of Suit No.112 of 2013, the trial
Court vide judgment and decree dated
2.4.2018/13.4.2018 dismissed the plaintiff's
suit for declaration and injunction and the
decree of trial Court has been maintained
by lower Appellate Court.

3. The plaint case as pleaded in brief
is that Plot No.146 area 0.183 hectare
situated in Village- Sherpur Gopalaha,
District Sant Ravidas Nagar Bhadohi is
recorded as Navin Parti in the revenue
10 All. Matashiromani Vs. State of U.P. & Anr.
1045
records. The old number of Plot No.146
before consolation operation was 3755,
3756, 3757, 3758, 3759, 3760, 3761 and
3763. It is further mentioned in the plaint
that actual owner of the aforementioned
plot were Hanuman Baksh Singh and
others, Jokhai, Dangar, Kashav (plaintiff's
father) and Ram Prasad Singh. It is further
pleaded that aforementioned plots are
situated adjacent to Abadi Plot No.317 (old
no.3820) in which plaintiff's old residential
house is situated. It is further pleaded that
at
the
time
of
the
partal
during
consolidation operation disputed plot was
Abadi on spot but due to the fault of
Consolidation Authorities, the plot in
dispute was recorded as Navin Parti in the
revenue records, as such, defendants
threatened to interfere with the possession
as well as to dispossess the plaintiff from
the disputed Abadi land and further
threatened to allot the same to other person,
hence the suit.

4. Defendant No.1 and 2 (State and
Gram Panchayat) have not filed any written
statement in spite of service of notices upon
them, hence suit was proceeded against
defendant nos. 1 and 2 under Order 8 Rule
10 of Civil Procedure Code. Plaintiff
adduced oral and documentary evidence in
support of his case.

5. Before trial Court following issues
were framed:

"1. क्ा वादी वाद पत्र के कथनोों के आधार
पर कववाकदत भूकम का माकलक काकबज दाखखल है?

2. क्ा वादी कववाकदत भूकम को व्यखक्तगत
आबादी घोकर्त करा पाने का अकधकार है?"

6. While deciding the Issue No.1, trial
Court after considering the oral and
documentary
evidences
adduced
by
plaintiff recorded finding of fact that
disputed land is recorded as Navin Parti
and is a Gaon Sabha land, plaintiff is not
allottee or Patta holder of the Gaon Sabha,
as such, plaintiff is not entitled to any
injunction against the owner of the land,
accordingly, Issue No.1 was decided
against the plaintiff in negative. While
deciding the Issue No.2, trial Court
recorded finding of fact that during
consolidation disputed land was recorded
as Navin Parti but plaintiff has not taken
any step to get the entry corrected during
consolidation operation, as such, Civil
Court cannot pass decree in the nature of
declaration or injunction in respect of
disputed land that the same is plaintiffs
Abadi, accordingly, Issue No.2 was also
decided against the plaintiff in negative, the
trial Court by judgment and decree dated
2.4.2018 dismissed the plaintiff's suit.

7. Against the judgment and decree of
the trial Court dated 2.4.2018, plaintiff filed
civil appeal under Section 96 of the Civil
Procedure Code before District Judge
which was registered as Civil Appeal No.21
of 2018. In Civil Appeal following points
of determinations as provided under Order
41 Rule 31 of the Civil Procedure Code
were framed:-

"1. क्ा वादग्रस्त भूकम अपीलाथी/वादी की
आबादी की भूकम है और इस पर वादी चकबन्दी के पूवष से
वतौर आबादी काकबज दखील रहकर उस पर अपना मकान,
नाद, खूटा, चरनी व पखपोंगसेट कायम कर आबाद है?

2. क्ा वादग्रस्त भूकम नवीन परती की भूकम है
और उससे वादी/अपीलाथी से कोई वास्ता सरोकार नही है।

3. क्ा दावा धारा 49 उ०प्र० जोत
चकबन्दी अकधकनयम से बाकधत है?"
1046 INDIAN LAW REPORTS ALLAHABAD SERIES

8. Lower Appellate Court while
deciding the points of determinations
considered the revenue entries, provisions
of Uttar Pradesh Consolidation of Holdings
Act as well as provisions of U.P.Z.A. and
L.R. Act and came to the conclusion that
civil suit filed by plaintiff for declaration
and injunction in respect of Gaon Sabha
Land (Navin Parti) to the effect that the
same is Abadi of plaintiff since long is
barred by provisions of Section 49 of the
U.P.C.H. Act as plaintiff has not taken any
step during consolidation operation to get
the entry corrected from the Navin Parti to
Abadi. Lower Appellate Court has also
recorded finding that area of disputed plot
is 14 Biswa, 10 Dhoor which cannot
become Abadi of any person, accordingly,
lower Appellate Court came to the
conclusion that no interference is required
against judgment and decree passed by trial
Court and dismissed the civil appeal by
judgment and decree dated 30.08.2018,
hence present second appeal on behalf of
plaintiff formulating following substantial
questions of law in memorandum of second
appeal:

"1. Whether the plot in dispute
can
be
settled
in
favour
of
plaintiff/appellant in view of Section 123
(1) Of U.P.Z.A. and L.R. Act?

2. Whether, the possession and
Sahan of the predecessor of the plaintiff/
appellant thereafter the plaintiff/ appellant
starts from 1960 up till now, can be ignored
when the land in dispute is subsequently
recorded as Navin Parti?

3. Whether, the right and title of
the plaintiff/appellant can be perfected over
the land in dispute on the basis of long
possession?

4. Whether, the Court Amin report
regarding the possession over the land in
question, which is unrebutted can be
ignored?

5.
Whether,
the
unrebutted
claim/relief of the plaintiff/ appellant in the
plaint suit can be ignored by the Courts
below?"

9. Counsel for the appellant submitted
that plaintiff is in possession of disputed
plot since 1960, as such, plaintiff perfected
his title over the land on the basis of long
possession. He further submitted that
plaintiff is entitled to the benefit of Section
123 (1) of U.P.Z.A. and L.R. Act but Courts
below
have
illegally
dismissed
the
plaintiff's suit without considering the
plaintiff's case. He further submitted that
defendants have not filed any written
statement in the suit nor adduced any
evidence, as such, the plaintiff's suit was to
be decreed but Courts below have erred in
dismissing the plaintiff's suit. Counsel for
the appellant placed reliance upon the
following judgments:

1. 2007 (207) R.D. 761, Ramdeo
and Others Vs Deputy Director of
Consolidation and Others.

2. 2004 (96) R.D. 303, Ram
Prasad and Others Vs. Deputy Director of
Consolidation Pratapgarh and Others.

3. 2004 (97) R.D. 705, Jai
Narain and Others Vs. Deputy Director of
Consolidation Deoria

4. 2007 (102) R.D. 761

10. On the other hand, learned
Additional
Chief
Standing
Counsel
submitted that land in dispute is recorded as
10 All. Matashiromani Vs. State of U.P. & Anr.
1047
Navin Parti in the revenue records and
plaintiff has not filed any objection during
consolidation operation, as such, civil suit
is barred as provided under Section 49 of
U.P.C.H. Act. He further submitted no right
will accrue to the plaintiff in respect of
Gaon Sabha / State land in spite of the fact
that defendants have not contested the suit
in Courts below. He finally submitted that
second appeal filed by plaintiff-appellant is
concluded by findings of fact, as such, is
liable to be dismissed.

11. I have considered the argument
advanced by learned counsel of the parties
and perused the record of this Court as well
as record of the Courts below which were
summoned by this Court vide order dated
7.12.2018.

12. There is no dispute about the fact
that Plot No.146 area 0.183 hectare was
recorded
as
Navin
Parti
during
consolidation operation which is supported
by entry of C.H. Form 2 Ka, Paper No.30
Ga, the village in question came under
consolidation operation in the year 1964
and village was de-notified under Section
52 of U.P.C.H. Act in the year 1979-80.
There is also no dispute about the fact that
plaintiff has not filed any objection etc. to
get the entry corrected with respect to
disputed Plot No.146 area 0.183 hectare.

13. In order to appreciate the
argument of learned counsel for the
appellant as well as substantial questions of
law as framed in memorandum of second
appeal as quoted above the perusal "Section
49 of U.P. Consolidation of Holdings Act"
will be necessary which is as follows:

"49.
Bar
to
civil
Courts
jurisdiction.-
Notwithstanding
anything
contained in any other law for the time
being in force, the declaration and
adjudication of right of tenure-holders in
respect of land lying in an area, for which a
[notification] has been issued [under subsection (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
proceeding 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 122-B 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."

14. This Court in the case of Abhairaj
and Others Vs. Gaon Sabha / Gram
Panchayat, LMC and Another reported in
2017 (136) R.D. 603 has held that if no
claim has been raised during consolidation
operation,
claim
after
close
of
consolidation operations would be clearly
barred by Section 49 of U.P.C.H. Act.
Paragraph No.18 of the judgment rendered
in Abhairaj (supra) is as follows:

"18.
Since,
no
claim
was
admittedly raised during consolidation
operations, any claim after the close of
consolidation
operations
was
clearly
barred
by
Section
49
of
the
U.P.
Consolidation of Holdings Act. Moreover,
no injunction could be granted regarding
1048 INDIAN LAW REPORTS ALLAHABAD SERIES
land of public utility covered by Section
132 of the U.P. Zamindari Abolition and
Land Reforms Act."

15. After considering the provisions
of Section 49 of the U.P.C.H. Act as well as
after considering the findings of Courts
below on the basis of evidence on record it
is very much clear that disputed Plot
No.146 was recorded as Navin Parti during
consolidation operation and no proceeding
was
initiated
by
plaintiff
during
consolidation operation to get the entry
corrected, as such, civil suit of plaintiff was
rightly held to the barred by Section 49 of
the U.P.C.H. Act and no right will accrue to
the plaintiff in respect of Gaon Sabha land.

16. So far as the argument advanced
by
appellant
as
well
as
substantial
questions of law framed by appellant with
respect to Section 123 of U.P.Z.A. and L.R.
Act is concerned the perusal of Section 123
of U.P.Z.A. and L.R. Act will be necessary,
the Section 123 of U.P.Z.A. and L.R. Act
was as follows:

"123. Certain house sites to be
settled with existing owner thereof. -[(1)]
Without prejudice to the provisions of
Section 9, where any person referred to in
sub-section (3) of Section 122-C has built a
house on any land referred to in subsection (2) of that section, not being land
reserved for any public purpose, and such
house exists on [May 13, 2007] the site of
such house shall be held by the owner of
the house on terms and conditions as may
be prescribed.

[(2) Where any person referred to
in sub-section (3) of Section 122-C has
built a house on any land held by a tenureholder (not being a Government lessee)
and such house exists on [June 3, 1995] the
site of such house shall, notwithstanding
anything contained in this Act, be deemed
to be settled with the owner of such house
by the tenure-holder on such terms and
conditions as may be prescribed.

Explanation - For the purposes of
sub-section (2), a house existing on [June
3, 1995] on any land held by a tenureholder shall, unless the contrary is proved,
be presumed to have been built by the
occupant thereof, and where the occupants
are members of one family by the head of
that family.]"

17. After reading the provisions of
Section 123 of U.P.Z.A. and L.R. Act and
considering the revenue entry of Navin
Parti in respect to disputed Plot No.146 as
well as considering the plaint allegation
that disputed land is Abadi of the plaintiff
but the same was wrongly recorded as
Navin Parti during partal of consolidation
operation, there will be no application of
Section 123 of U.P.Z.A. and L.R. Act. In
the present dispute as the land in dispute
was recorded as Navin Parti in the revenue
record during consolidation operation, as
such, the argument advanced on behalf of
appellant has no merit and the substantial
question of law also does not arise with
respect to benefit of Section 123 of
U.P.Z.A. and L.R. Act.

18. So far as case law cited by learned
counsel for the appellant are concerned that
will not apply in the present dispute as all
the three case law relates to Abadi land and
order was passed by consolidation Courts
with respect to title of Abadi land, as such,
this Court has held that in respect to Abadi
land title cannot be adjudicated by
consolidation Court rather consolidation
Court can only order to make entry of the
nature of land as Abadi.
10 All. Matashiromani Vs. State of U.P. & Anr.
1049

19. So far as the maintainability of
civil suit in respect of the land which is not
recorded in the name of plaintiff the civil
suit will not be maintainable at the instance
of the plaintiff as held by Apex Court in the
case of Shri Ram Vs. First Additional
District Judge and Others, J.T. 2001 (2)
S.C. 573. The Paragraph No.7 of the
judgment of Shri Ram (supra) is as
follows:

"7. On analysis of the decisions
cited above, we are of the opinion that
where a recorded tenure holder having a
prima facie title and in possession files suit
in the civil court for cancellation of sale
deed having obtained on the ground of
fraud or impersonation cannot be directed
to file a suit for declaration in the revenue
court reason being that in such a case,
prima facie, the title of the recorded tenure
holder is not under cloud. He does not
require declaration of his title to the land.
The position would be different where a
person not being a recorded tenure holder
seeks cancellation of sale deed by filing a
suit in the civil court on the ground of fraud
or impersonation. There necessarily the
plaintiff is required to seek a declaration of
his title and, therefore, he may be directed
to approach the revenue court, as the sale
deed being void has to be ignored for
giving him relief for declaration and
possession."

20. Apex Court again in the Case of
Kamla Prasad and Others Vs. Krishna
Kant Pathak and Others (2007) 4
Supreme Court Cases 213 has followed the
decision of Shri Ram (supra), the Paragraph
Nos.12, 13 and 16 of the judgment of
Kamla Prasad (supra) are as follows:

"12. Having heard the learned
advocates for the parties, in our opinion,
the submission of the learned counsel for
the appellants deserves to be accepted. So
far as abadi land is concerned, the trial
Court held that Civil Court had jurisdiction
and the said decision has become final. But
as far as agricultural land is concerned, in
our opinion, the Trial Court as well as
Appellate Court were right in coming to the
conclusion that only Revenue Court could
have entertained the suit on two grounds.
Firstly, the case of the plaintiff himself in
the plaint was that he was not the sole
owner of the property and defendant Nos.
10 to 12 who were proforma defendants,
had also right, title and interest therein. He
had also stated in the plaint that though in
the Revenue Record, only his name had
appeared but defendant Nos. 10 to 12 have
also right in the property. In our opinion,
both the Courts below were right in holding
that such a question can be decided by a
Revenue Court in a suit instituted under
Section 229B of the Act. The said section
reads thus:

"229B.
Declaratory
suit
by
person claiming to be an asami of a
holding or part thereof.-

(1) Any person claiming to be an
asami of a holding or any part thereof,
whether exclusively or jointly with any
other person, may sue the landholder for a
declaration of his rights as asami in such
holding or part, as the case may be.

(2) In any suit under sub-section
(1) any other person claiming to hold as
asami under the landholder shall be
impleaded as defendant.

(3) The provisions of sub-sections
(1) and (2) shall mutatis mutandis apply to
a suit by a person claiming to be a
bhumidhar, with the amendment that for the
word 'landholder' the words "the State
1050 INDIAN LAW REPORTS ALLAHABAD SERIES
Government and the Gaon Sabha" are
substituted therein."

13. On second question also, in
our view, Courts below were right in
coming to the conclusion that legality or
otherwise
of
insertion
of
names
of
purchasers in Record of Rights and deletion
of name of the plaintiff from such record
can only be decided by Revenue Court
since the names of the purchasers had
already been entered into. Only Revenue
Court can record a finding whether such an
action was in accordance with law or not
and it cannot be decided by a Civil Court.

16.The instant case is covered by
the
above
observations.
The
lower
Appellate Court has expressly stated that
the name of the plaintiff had been deleted
from Record of Rights and the names of
purchasers had been entered. The said fact
had been brought on record by the
contesting defendants and it was stated that
the plaintiff himself appeared as a witness
before the Mutation Court, admitted
execution of the sale deed, receipt of sale
consideration and the factum of putting
vendees into possession of the property
purchased by them. It was also stated that
the records revealed that the names of
contesting defendants had been mutated
into Record of Rights and the name of
plaintiff was deleted."

21. In view of ratio of law laid down
by Apex Court on the question of
maintainability of civil suit by plaintiff who
is not recorded in revenue record the civil
suit filed by plaintiff cannot be entertained
by civil Court.

22. Considering the findings of fact
recorded by both the Courts below to the
effect the plaintiff is neither owner nor
recorded in the revenue records rather
disputed plots was recorded as Navin Parti,
as such, suit is barred by Section 49 of
U.P.C.H. Act. No substantial question of
law arises in the second appeal. No
interference
is
required
against
the
impugned judgment and decree passed by
Courts below.

23. The present Second Appeal lacks
merit and same is hereby dismissed under
Order 41 Rule 11 of Civil Procedure Code
----------
(2022) 10 ILRA 1050
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.09.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE CHANDRA KUMAR RAI, J.

First Appeal No. 723 of 2022

Smt. Shyamshri ...Appellant
Versus
Sumant Kumar ...Respondent

Counsel for the Appellant:
Sri Jamal Ahmad Khan

Counsel for the Respondent:
Sri Rajeev Upadhyay

Civil Law - Hindu Marriage Act, 1955 -
Section 13 B (2) - relaxing the period of
second motion of six months - period
mentioned in Section 13 B(2) of the Hindu
Marriage Act, 1955 is not mandatory but
directory and it is open to the Court to
exercise its discretion in the facts and
circumstances of each case - For exercise
of the discretion to waive the statutory
waiting period of six months for moving
the motion for divorce under Section 13B
(2) of the Hindu Marriage Act, the Court
would consider the following amongst