# Mohammad Juned Khan v. Addl. Commissioner Administration Iind, Devi Patan Mandal, Gonda & Ors

- **Citation:** (2025) 11 ILRA 850
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-11-12
- **Case number:** Writ - C No. 10403 of 2025
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-juned-khan-v-addl-commissioner-administration-iind-devi-patan-mandal-52763
- **Pages:** 9

## Headnote

C.S.C., Pankaj Gupta

ISSUE FOR CONSIDERATION
Whether the suit for declaration filed by the
petitioner in his individual capacity, claiming
himself to be a Mutwalli of Alal Khair
Qabristan Committee, seeking declaration for
the entire property of Gata No. 151 to be
recorded in the name of the plaintiff, was
maintainable when the rights as prayed for in
the suit proceedings were being sought on
behalf of the Qabristan Committee; and
whether
the
suit
proceedings
seeking
declaration in respect of land recorded as
'Talab' were barred by Section 49 of the U.P.
Consolidation of Holdings Act, 1953.

HEADNOTE
U.P. Consolidation of Holdings Act, 1953,
S. 49 - Bar of jurisdiction - Suit for declaration
- Land recorded as 'Talab' during consolidation
proceedings
-
Claim
of
'Qabristan'
-
Proceedings under Section 33/39 of Land
Revenue Act - Suit instituted by Mutwalli in
individual capacity - Maintainability.
HELD:
Suit proceedings were instituted by the
petitioner in his individual capacity describing
himself as a Mutwalli of Alal Khair Qabristan
Committee - However, the rights were sought
on behalf of the Qabristan Committee -
Serious defect in the cause title - Cause title
ought to have been described as the Alal Khair
Qabristan Committee through its Mutwalli -
Declaration of rights could not have been
granted in favour of the individual - Portion of
the land was recorded as 'Talab' during
consolidation
proceedings
-
Once
consolidation operations were concluded, suit
proceedings were hit by the bar of Section 49
of the U.P. Consolidation of Holdings Act, 1953
- Matters for which proceedings could or
ought to have been taken under the
Consolidation Act cannot be adjudicated by
Civil or Revenue Courts - No cogent material
to show that the entries were fraudulently
made - Bar of Section 49 clearly applicable -
Proceedings under Section 33/39 of the Land
Revenue Act had already been taken - Writ
petition dismissed - Liberty granted to assail
any adverse order passed under Section
33/39 of the Land Revenue Act in appropriate
proceedings. [Paras 11-19] (E-5)

CASE LAW CITED
Saraswati Vidya Mandir, Rewatipur, Ghazipur
through its Manager Smt. Ram Rakhi Devi v.
State of U.P. and others, (2002) 3 UPLBEC 2777;
Amar Singh v. State of U.P. and others, 2008
(26) LCD 1051;
Sita Ram v. Chhota Bhondey and others, 1990
RD 439;
Zafar Khan and others v. Board of Revenue, U.P.
and others, 1984 RD 328

List of Acts
U.P. Consolidation of Holdings Act, 1953;
U.P. Land Revenue Act.

List of Keyword
Qabristan; Mutwalli; Suit for declaration; Cause
title;
Individual
capacity;
Consolidation
proceedings; Land recorded as Talab; Bar of
11 All. Balwant Educational Society & Ors. Vs. State of U.P. & Ors.
851
jurisdiction; Section 49; Correction of revenue
records; Maintainability of suit.

CASE ARISING FROM
Order dated 25.02.2010 passed by the Sub
Divisional Magistrate, Sadar, Gonda, and
revisional order dated 23.04.2025 passed
by
the
Additional
Commissioner,
Administration-II, Devi Patan Mandal,
Gonda.

Appearances for Parties
Advs For Petitioner: Karunakar Srivastava, Rahul
Srivastava, Shiv Sinha
Advs For Respondents: C.S.C., Pankaj Gupta

## Text

850 INDIAN LAW REPORTS ALLAHABAD SERIES
 (viii)
Directions
made
in
paragraph 46 shall also be complied with
before 01.01.2026.

49. With the aforesaid observations
and directions, this writ petition is disposed
of.
----------
(2025) 11 ILRA 850
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.11.2025

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ - C No. 10403 of 2025

Mohammad Juned Khan ...Petitioner
Versus
Addl. Commissioner Administration Iind,
Devi Patan Mandal, Gonda & Ors.
 ...Respondents

Counsel for the Petitioner:
Karunakar Srivastava, Rahul Srivastava,
Shiv Sinha

Counsel for the Respondents:
C.S.C., Pankaj Gupta

ISSUE FOR CONSIDERATION
Whether the suit for declaration filed by the
petitioner in his individual capacity, claiming
himself to be a Mutwalli of Alal Khair
Qabristan Committee, seeking declaration for
the entire property of Gata No. 151 to be
recorded in the name of the plaintiff, was
maintainable when the rights as prayed for in
the suit proceedings were being sought on
behalf of the Qabristan Committee; and
whether
the
suit
proceedings
seeking
declaration in respect of land recorded as
'Talab' were barred by Section 49 of the U.P.
Consolidation of Holdings Act, 1953.

HEADNOTE
U.P. Consolidation of Holdings Act, 1953,
S. 49 - Bar of jurisdiction - Suit for declaration
- Land recorded as 'Talab' during consolidation
proceedings
-
Claim
of
'Qabristan'
-
Proceedings under Section 33/39 of Land
Revenue Act - Suit instituted by Mutwalli in
individual capacity - Maintainability.
HELD:
Suit proceedings were instituted by the
petitioner in his individual capacity describing
himself as a Mutwalli of Alal Khair Qabristan
Committee - However, the rights were sought
on behalf of the Qabristan Committee -
Serious defect in the cause title - Cause title
ought to have been described as the Alal Khair
Qabristan Committee through its Mutwalli -
Declaration of rights could not have been
granted in favour of the individual - Portion of
the land was recorded as 'Talab' during
consolidation
proceedings
-
Once
consolidation operations were concluded, suit
proceedings were hit by the bar of Section 49
of the U.P. Consolidation of Holdings Act, 1953
- Matters for which proceedings could or
ought to have been taken under the
Consolidation Act cannot be adjudicated by
Civil or Revenue Courts - No cogent material
to show that the entries were fraudulently
made - Bar of Section 49 clearly applicable -
Proceedings under Section 33/39 of the Land
Revenue Act had already been taken - Writ
petition dismissed - Liberty granted to assail
any adverse order passed under Section
33/39 of the Land Revenue Act in appropriate
proceedings. [Paras 11-19] (E-5)

CASE LAW CITED
Saraswati Vidya Mandir, Rewatipur, Ghazipur
through its Manager Smt. Ram Rakhi Devi v.
State of U.P. and others, (2002) 3 UPLBEC 2777;
Amar Singh v. State of U.P. and others, 2008
(26) LCD 1051;
Sita Ram v. Chhota Bhondey and others, 1990
RD 439;
Zafar Khan and others v. Board of Revenue, U.P.
and others, 1984 RD 328

List of Acts
U.P. Consolidation of Holdings Act, 1953;
U.P. Land Revenue Act.

List of Keyword
Qabristan; Mutwalli; Suit for declaration; Cause
title;
Individual
capacity;
Consolidation
proceedings; Land recorded as Talab; Bar of
11 All. Balwant Educational Society & Ors. Vs. State of U.P. & Ors.
851
jurisdiction; Section 49; Correction of revenue
records; Maintainability of suit.

CASE ARISING FROM
Order dated 25.02.2010 passed by the Sub
Divisional Magistrate, Sadar, Gonda, and
revisional order dated 23.04.2025 passed
by
the
Additional
Commissioner,
Administration-II, Devi Patan Mandal,
Gonda.

Appearances for Parties
Advs For Petitioner: Karunakar Srivastava, Rahul
Srivastava, Shiv Sinha
Advs For Respondents: C.S.C., Pankaj Gupta

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Shri Karunakar Srivastava,
learned counsel for the petitioner as well as
Shri Upendra Singh and Shri Dev Prakash
Mishra, learned Additional Chief Standing
Counsel for respondents no. 1 to 3 and Shri
Pankaj Gupta, learned counsel for the
respondent no.4.

2. By means of present writ petition,
the petitioner who claims himself to be a
Mutwalli
of
Alal
Khair
Qabristan
Committee, Saray Jargar Pargana, Tehsil
and District Gonda, has preferred the
present writ petition assailing the order
dated 23.04.2025, passed by the Additional
Commissioner,
Administration-II,
Devi
Patan Mandal, Gonda in revision against
the order of Sub Divisional Magistrate,
Sadar, Gonda, wherein the suit of the
petitioner for declaration was rejected.

3. It has been submitted by learned
counsel for the petitioner that the petitioner
is a Mutwalli of Alal Khair Qabristan being
the President of the Committee at Gata No.
316 total area 0.41 decimal (current Gata
No. 151) situated at Village Saray Jargar
Pargana, Tehsil and District Gonda was
recorded as a Graveyard in the revenue
records from 1356 to 1359 Fasli. It is stated
that subsequently due to certain error 0.39
decimal came to be recorded as 'Talab' and
in
the
aforesaid
circumstances
an
application for correction under Section
33/39 of the U.P. Revenue Code was filed
before the Sub Divisional Magistrate in
2010. These facts have been mentioned by
the petitioner himself int he plaint filed
before the Sub Divisional Magistrate,
wherein it has been stated that in Gata No.
151 total area 0.39 decimal was recorded as
'pond', while 0.02 decimal was recorded as
a 'Qabristan' and some land was shown as a
public land and consequently an application
for correction was made. Though the order
has not been annexed but it seems that the
petitioner could not succeed in the
proceedings instituted under Section 33 of
the Land Revenue Act.

4. It is in the aforesaid circumstances,
the petitioner had filed the aforesaid suit for
a declaratory decree to be issued with
regard
to
the
disputed
land, which
according tot he petitioner should be
declared as a 'Qabristan' and necessary
directions should be issued for deleting it as
a 'Talab' and recording it as a 'Qabristan'.
The Sub Divisional Magistrate, by means
of order dated 25.02.2010 rejected the suit
after recording the fact that during the
consolidation proceedings 0.39 decimal of
the said land has been recorded as a 'Talab'.
While in the suit proceedings the petitioner
has categorically stated that this land is not
a 'Talab' but a 'Qabristan' is existing at the
same and accordingly in the aforesaid
proceedings
where
the
consolidation
operations have concluded and the land has
been recorded as a 'Talab' and the suit
proceedings were hit by the provision of
Section 49 of the Consolidation of
Holdings Act and accordingly the suit
852 INDIAN LAW REPORTS ALLAHABAD SERIES
would not be maintainable and hence it was
dismissed on 25.02.2010.

5. The petitioner had filed a revision
against the said order and the revisional
authority also upheld the order of the trial
court dated 25.02.2010 by means of order
dated 23.04.2025 and in the present writ
proceedings order dated 23.4.2025 as well
as 25.2.2010 have been challenged.

6. It has been submitted by learned
counsel
for
the
petitioner
that
the
'Qabristan' is existing at Gata No. 151 area
of 0.41 decimal and a portion of said land
has wrongly been recorded as a 'Talab' and
therefore there was no infirmity in the suit
proceedings instituted by him and both the
Authorities have failed to exercise their
jurisdiction
vested
in
them
and
consequently prayed for allowing the writ
petition and setting aside of both the
impugned orders.

7. The petition has been vehemently
opposed by the learned Standing Counsels.
They have firstly submitted that the suit
proceedings were defective in as much as
they were instituted by the petitioner in his
personal
capacity
i.e.
Mohd.
Junaid
describing himself as a Mutwalli of Alal
Khair Qabristan Committee. They have
stated that from the cause title of the suit
proceedings it would be abundantly clear
that the rights are sought by the petitioner
personally and the suit proceedings were
not instituted at the behest of the Alal
Khaair Qabristan Committee.

8. It was submitted that there was
serious defect in the suit itself and should
have been dismissed by the trial court at the
very outset after recording the aforesaid. In
support of submissions they relied upon the
judgment of this Court in the case of
Saraswati
Vidya
Mandir,
Rewatipur,
Ghazipur through its Manager Smt. Ram
Rakhi Devi Vs. State of U.P. and others
[(2002)3 UPLBEC 2777].

9. It was further submitted that the suit
proceedings were hit by provision of
Section 49 of U.P. Consolidation of
Holdings Act. It was canvassed that the
dispute in the present case pertains to Gata
No. 151 which as per the revenue record
0.39 decimal has been entered as a 'Talab'
while only 0.02 decimal is recorded as a
'Qasbristan' and in view of the aforesaid
circumstances, during the suit proceedings
decree of declaration was sought by the
petitioner on the entire land of Gata No.151
measuring 0.41 decimal.

10. It was submitted that once the
consolidation operations were concluded
then a suit with regard to the same land was
not maintainable as per provision of
Section 49 of Consolidation of Holdings
Act, 1953 It was stated that it has been
clearly stated in Section 49 of the
Consolidation of Holdings Act that with
regard to the matters, for which the
proceedings could or ought to have been
taken under Consolidation of Holdings Act
would be a bar for filing a decree of
declaration of the suit and hence they
supported the findings recorded by the trial
court and the revisional court and prayed
for dismissal of the writ petition.

11. I have heard learned counsel for
the parties and perused the record. The
facts in suit are not in dispute in the present
case, in as much as the petitioner had
claimed declaration for entire property of
Gata No. 151 to be recorded in the name of
the plaintiff, which is Mohd. Junaid
Mutawalli
Alal
Khaair
Qabristan
Committee. Undoubtedly the plaint was
11 All. Balwant Educational Society & Ors. Vs. State of U.P. & Ors.
853
instituted by Mohd. Junaid, who has
described himself as a Mutawalli of Alal
Khair Qabristan Committee. In case the
rights as prayed for in the suit proceedings
were being sought on behalf of the
Qabristan Committee then the cause title
would have been described as the Alal
Khair Qabristan Committee though its
Mutawalli.

12. Accordingly, I find a serious
defects in the cause title and even in the
prayer made by the petitioner for a
declaration of the rights to be vested in the
plaintiff could not have been granted in
favour of the individual (petitioner). I find
that this aspect of the matter has been duly
considered by this Court in the case of
Saraswati
Vidya
Mandir,
Rewatipur,
Ghazipur through its Manager Smt. Ram
Rakhi Devi Vs. State of U.P. and others
[(2002)3 UPLBEC 2777] and the relevant
portion is quoted herein below:-

"..........
The
Committee
of
Management is a statutory authority under
the Act and the Regulations and it is legally
entitled to take action in matters relating to
the affairs of the administration of the
College. The Committee of Management
has not filed these petitions. There is no
material on record to show that the
Committee of Management adopted any
resolution authorising the Manager to file
these petitions The petitions as framed are
not maintainable because the VV Inter
College, Shamli cannot be an aggrieved
person to challenge the impugned orders.
The aggrieved party, if any, could be the
Committee of Management of the Society
itself. In Writ Petition No. 10663 of 1975,
decided on 1st March, 1976, I took a
similar view. Another learned Single Judge
of this Court dismissed Writ Petition No
580 of 1970 on 7th January, 1974,
precisely on this very ground. The view
taken by me and the other learned Single
Judge is fully supported by a Full Bench
decision of this Court in Indian Sugar Mills
Association through its President Hari Raj
Swarup v. Secretary to Government, AIR
1951 All 1.

During the course of hearing
amendment applications were filed seeking
relief for the amendment of the writ
petitions
for
adding
Committee
of
Management
as
petitioner.
The
applications have been rejected by me by a
separate order."

13. With regard tot he second ground
raised by the petitioner of Section 49 of
Consolidation of Holdings Act it is
necessary to quote for ready reference the
provision
of
Section
49
of
the
Consolidation of Holdings Act, 1953 :-

"Bar to Civil Court jurisdiction. -
Notwithstanding anything contained in any
other law Courts for the time being in
force, the declaration and adjudication of
rights of tenure-holder in respect of land,
lying
in
an
area,
for
which
a
133notification has been issued 134under
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
proceeding could or ought to have been
taken under this Act : 135 Provided that
nothing in this section shall preclude the
Assistant
Collector
from
initiating
proceedings under Section 122-B of the U.
854 INDIAN LAW REPORTS ALLAHABAD SERIES
P. Zamindari Abolition and Land Reforms
Act, 1950(U.P. Act No. 1 of 1951) in
respect of any land, possession over which
has been delivered or deemed to be
delivered to a Gram Sabha under or in
accordance with the provisions of this
Act."

14. From the plaint preferred by the
petitioner it is clear that the petitioner had
moved an application under Section 33/39
of the Land Revenue Act for correction of
the revenue records, in as much as the
portion of disputed land i.e. 0.39 decimal
was recorded as a 'Talab'. Had the
application of the petitioner been allowed
then it would have not been any necessarily
of filing a suit proceedings but it seems that
the
application
was
rejected
which
necessitated filing of the suit proceedings.
Again I find that the said is the subject
matter of the consolidation proceedings and
it is during the consolidation proceedings
that 0.39 decimal of land was recorded as
'Talab'.

15. It is in the aforesaid circumstances
the question before this Court is as to
whether the suit proceedings are hit by the
bar of Section 49 of the Consolidation of
Holdings Act, 1953. This aspect of the
matter has been considered in detail by this
Court in the case of Amar Singh v. State of
U.P. and others [2008 (26) LCD 1051]
where the judgment of the Supreme Court
in the case of Sita Ram v. Chhota Bhondey
and others, reported in 1990 RD 439 has
been considered and the following have
been observed:-

"4. Learned counsel for the
petitioner
challenging
the
impugned
orders, contends that the bar of Section 49
of the UP. Consolidation of Holdings Act,
1953 is fully attracted in the facts of the
present case as the plaintiff has not taken
any
proceedings
in
consolidation
proceedings. The reliance has been placed
on the judgments of the Supreme Court in
the case of Sita Ram v. Chhota Bhondey
and others, reported in 1990 RD 439 and
in the case of Zafar Khan and others v.
Board of Revenue. UP. and others,
reported in 1984 RD 328 and the
judgment of this Court in the case of
Ram Sanehi Lal v. Board of Revenue.
U.P., reported in 1974 RD 241, Asha Ram
Singh v. Board of Revenue. UP, reported
in 1992 Revenue Judgments Page 354,
Smt. Hasiniya Begum v. Smt. Phool Bi
and others, reported in 1982 Revenue
Judgments page 271, Dina Nath Verma
Land others v. Gokaran and others.
reported in 2003 (5) ALR 411.

5. Learned counsel for the
petitioner further contends that both the
Courts below have committed error in
overruling the objection of the petitioner
that suit is barred by Section 49 of the U.P.
Consolidation of Holdings Act, 1953.

6.
I
have
considered
the
submissions made by learned Counsel for
the petitioner and have perused the record.

7. The only issue which has
arisen in the present writ petition is as to
whether suit filed by the respondent No.4
was barred by Section 49 of the U.P.
Consolidation of Holdings Act, 1953. The
trial Court decided only issue No. 2 which
was with regard to bar under Section 49 of
the Act. The suit is still pending for final
decision by the trial Court. Section 49 of
the U.P. Consolidation of Holdings Act,
1953 is as follows:

"Bar
to
civil
jurisdictionNotwithstanding anything contained in any
11 All. Balwant Educational Society & Ors. Vs. State of U.P. & Ors.
855
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 right arising out
of consolidation proceedings and in regard
to which a proceeding could or ought to
have been taken under the Act, shall be
done in accordance with the provisions of
the 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 nave been
taken under the Act."

9. In view of the above, it is clear
that any adjudication done with regard to
land lying in the area in which a
notification under Section 4(2) of the U.P.
Consolidation of Holdings Act, 1953 has
been issued operates a bar of reagitating in
any other revenue or civil Court. Second
limb of section also creates a bar with
regard to adjudication of any other right
regarding which proceedings could or
ought to have been taken under U P.
Consolidation of Holdings Act, 1953. The
provision contains the principles of resjudicata
as
well
as
principles
of
constructive res-judicata. The judgment of
the Apex Court relied on by learned
counsel for the petitioner in the case of Sita
Ram (supra) dea's with the scope and ambit
of Section 49 of the Act. It is useful to note
the facts of the case of Sita Ram. In
consolidation proceedings an objection
was filed by respondent Chhota Bhondey
son of Chhota claiming share in Khata
Nos.72 and 73. The Khatas were recorded
in the name of one Nanha alone. The
objection was opposed claiming that Khata
No.73 was acquired by Nanha in his
individual capacity. The Consolidation
Officer allowed the objection of the
respondent and gave him half share. The
appeal filed before the Settlement Officer,
Consolidation
was
allowed.
The
respondents went in the revision. The
revision was allowed. The matter came to
the High Court by means of writ petition,
which
was
dismissed.
The
appellant
thereafter filed a civil suit for declaration
that the order of the Deputy Director of
Consolidation was without jurisdiction. In
the suit objection of bar under Section 49
was raised which was answered by the trial
Court in favour of the defendant. The said
decree was affirmed in appeal and also in
the second appeal by the High Court.
Against the aforesaid judgment, the appeal
was filed in the Apex Court. The Apex
Court laid down following:

"From a perusal of Section 49 it
is evident that declaration and adjudication
of rights of tenure-holders in respect of
land lying in an area for which a
notification has been issued under Section
4(2) and 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 the Act,
had to be done in accordance with the
provision of the Act only and the
jurisdiction of the civil or revenue Courts
to entertain any suit or proceeding with
respect to rights in such land or with
respect to any other matter for which a
proceeding could or ought to have been
taken under the Act, has been taken away.
The language used in Section 49 is wide
and
comprehensive.
Declaration
and
adjudication of rights of tenure-holders in
respect of land lying in the arca covered by
the notification under Section 4(2) of the
Act and adjudication of any other right
arising
out
of
the
consolidation
proceedings and in regard to which a
856 INDIAN LAW REPORTS ALLAHABAD SERIES
proceeding could or ought to have been
taken
under
the
Act,
would
cover
adjudication of questions as to title in
respect of the said lands. This view also
finds support from the other provisions of
the Act and the amendments that have been
introduced therein.

10. The judgement of this court
relied on by the petitioner in Ram Sanehi
Lal Hasiniya Begum, Asha Ram and Dina
Nath verma (supra) lay down the same
proposition regarding bar of Section 49 of
the UP. Consolidation of Holdings Act
1953: The Apex Court in the case of Zafar
khan (supra) also laid down the same
principle. In the said case following was
observed by the Apex Court

"The
question
is,
once
the
allotment under 1953 Act became final
would a suit lie before the civil or revenue
Court with respect to rights in land or with
respect to any other matter for which a
proceeding could or ought to have been
taken under the 1953 Act? When the village
in which the plots in dispute are situated
was put into consolidation was not made
clear to us. But the statutory authorities
and the High Court while dismissing the
appeal of the appellants had noticed that
the village was put into consolidation
several years before the suit from which the
present appeal arises was filed and village
was denotified in the year 1958. Once the
village was denotified, the allotment made
under the 1953 Act became final. The final
allotment cannot be questioned by the suit
before civil or revenue Court in view of the
bar enacted in Section 49.

11. There can not be any dispute
to the above proposition laid down by the
Apex Court and this Court, however there
are authorities of this Court as well as
Apex Court carving out an exception to the
above proposition. The exception carved
out is to the effect that when the name of a
co-tenure holder could not be recorded by
practicing
fraud,
the
entries
in
consolidation can be challenged and bar of
Section 49 could not come into play since
the fraud vitiates even the most solemn
proceedings. The judgment of this Court
relied on by learned Counsel for the
petitioner in the case of Ram Sanehi Lal
(supra) also noted the submissions made in
the said case that bar of Section 49 could
not be applicable if the name was added as
a
result
of
fraud
in
consolidation
proceedings.
The
Court
noted
the
proposition but rejected the same taking
the view that the said argument was not
pressed before the Board of Revenue. It is
relevant to quote paragraph 4 of the
judgment, which is to the following effect:

It was then urged for the
petitioner that the name of respondent No.4
having
been
added
in
consolidation
proceedings as a result of fraud, the bar of
Section 49 could not be applied inasmuch
as fraud would vitiate even the most solemn
act. In regard to this point, suffice it to say
that it does not appear to have pressed
before Board of Revenue; there is no
mention in regard to this point in the order
of Board of Revenue. In Debi Singh v.
Deputy Director of Consolidation and
others relying upon a decision of the
Supreme Court in Tika Ram and sons v.
Workmen (3) it was held that if a judgment
is silent about a certain point would be
legitimate to infer that it had not been
argued before the Court. If certain
objection, which should have been raised at
an earlier stage, had not been raised, it
should not be allowed to be raised in a writ
petition in the extra-ordinary powers of the
High Court. Since the order of the Board of
11 All. Balwant Educational Society & Ors. Vs. State of U.P. & Ors.
857
Revenue is silent on the question o' fraud, it
can in view of the aforesaid decision be
presumed that this point was not pressed
before the Board of Revenue."

16.
Considering
the
aforesaid
judgment, it is clear that according to
Section 49 of Consolidation of Holdings
Act, 1953, a suit cannot be filed with
regard to an area for which a notification
has been issued under Section 4 of Act
1953 or adjudication of any other rights
arising out of consolidation proceedings
and in regard to which proceedings could
or ought to have been taken under the said
Act.

17. Undoubtedly the portion of the said
land has been recorded as a 'Talab' during the
consolidation proceedings and in case the
petitioner have any objection the same could
have been raised during the consolidation
proceedings. Apart from the above, I find that
the petitioner has instituted proceedings
under Section 33/39 of Land Revenue Act for
correction of the revenue records, where he
could not succeeded.

18. We even considered as to whether
the case of the petitioner can be covered by
any of the exceptions of Section 49 of the
Consolidation of Holdings Act, 1953,
which has been considered by the court in
the case of Amar Singh (supra). I find that
there is no cogent material stating that the
entries have been fraudulently made, in as
much as, against the said entry the
petitioner had already taken recourse to
proceedings under Section 33/39 of the
Land Revenue Act and there is no dispute
that in a portion of the said land the name
of the Qabristan still find mention.

19. Accordingly, in the light of above,
I find that firstly the suit proceedings were
not maintainable at the behest of the
petitioner in an individual capacity. Apart
from which, I find that bar of Section 49 of
Consolidation of Holdings Act clearly
apply to the facts and dispute raise in the
plaint preferred by the petitioner and
accordingly I do not find any merit in the
challenge of the impugned orders and
hence
the
petition
stands
dismissed.
However, I observe that in case any order
has been passed in proceedings under
Section 33/39 of Land Revenue Act, which
were adverse, the petitioner then he has a
liberty to assail the said order in an
appropriate proceedings in accordance with
law.

Heard
on
application
for
impleadment

1. An application for impleadment has
been filed by the petitioner praying that the
Committee of Waqf Qabristan Pathanwala,
Waqf No.173 Gonda, through its Mutwalli
Mohammad Juned Khan son of late
Salamatullah Khan urf Baba, Resident of
Village - Saray Jargar Pargana Tehsil and
District Gonda, be impleaded as a opposite
party no.2.

2. It has been stated that inadvertently
the
Committee
of
Waqf
Qabristan
Pathanwala could not be impleaded as a
petitioner and accordingly, the aforesaid
prayer was made.

3. Learned Standing Counsel on the
other hand opposed the application for
impleadment. He has submitted that in the
present writ petition the orders which have
been assailed, have been passed by the Sub
Divisional Magistrate, Gonda in a suit
instituted by the petitioner, where the
proposed Committee of Qabristan is not a
party and even in the revisional proceedings
858 INDIAN LAW REPORTS ALLAHABAD SERIES
the Committee of Qabristan was not a party
and therefore, such a party cannot be
impleaded for the first time in the writ
petition and submits that with regard to the
proposed petitioner no averments have been
made in the writ petition and accordingly
such an application cannot be allowed.

4. It is in the aforesaid circumstances, this
Court is of the view that there is no averment
adding in the writ petition with regard to the
Committee of Management being the owner
of the disputed land or also that no prayer has
been made with regard to the proposed
petitioner and even otherwise the entire suit
proceedings and the revisional proceedings
were contested by the petitioner in his
individual capacity and therefore, I do not find
any ground or the reason to implead the
Committee as a party in the writ petition.

5. For the aforesaid reasons, the
application for impleadment is rejected.
----------
(2025) 11 ILRA 858
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.11.2025

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ - C No. 10995 of 2025

Anupam Kumar Mishra ...Petitioner
Versus
State of U.P.& Ors. ...Respondents

Counsel for the Petitioner:
Pawan Shukla, Alok Kr. Misra

Counsel for the Respondents:
C.S.C.

ISSUE FOR CONSIDERATION
Whether the notice issued by the Area Lekhpal
directing illegal occupants of land recorded as
Gaon Sabha (Naveen Parti, Banjar Bhumi) to
remove encroachment suffers from any illegality
or arbitrariness warranting interference under
Article 226 of the Constitution of India.

HEADNOTE
U.P.
Revenue
Code,
Section
67-A
-
Constitution of India, Article 226 - Writ
petition challenging notice issued by Area
Lekhpal, directing illegal occupants of land
recorded as Naveen Parti and Banjar Bhumi
to
remove
encroachment
-
Petitioner
admitted occupation for more than 50 years
- No Revenue Record or document filed to
justify occupation - No application moved by
petitioner under Section 67-A of the U.P.
Revenue Code - Revenue Authorities under
mandate to protect Gaon Sabha land - No
illegality or arbitrariness found - Writ petition
dismissed. (E-5)
HELD:
Petitioner was not a recorded tenure holder
of the land recorded as Gaon Sabha.
Revenue Authorities are under the mandate
to protect the Gaon Sabha land and to take
action to remove the illegal encroachers.
Petitioner could not justify his occupation
on the said land. Action, if any, is to be
taken in accordance with law. No ground for
interference made out. Revenue Authority
shall act against all the persons, in case the
encroachment is found on the disputed
land. (Paras 6-8)

CASE LAW CITED
- Nil -
List of Acts
U.P. Revenue Code;
Constitution of India

List of Keyword
Gaon Sabha land - Illegal encroachment
- Area Lekhpal - Notice to vacate -
Section 67-A - U.P. Revenue Code -
Protection of Gaon Sabha land - Article
226 - No interference - Dismissal of writ
petition.

CASE ARISING FROM
Notice dated 29.10.2025 issued by Area
Lekhpal, Tehsil Colonelganj, District Gonda
directing removal of encroachment from Gaon
Sabha land.