# Rajkumar Dubey v. Board of Revenue & Ors

- **Citation:** (2025) 4 ILRA 462
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-04-24
- **Case number:** Writ- B No. 13075 of 2012
- **Bench:** Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajkumar-dubey-v-board-of-revenue-ors-53139
- **Pages:** 18

## Headnote

A. U.P. Consolidation of Holdings Act,
1953 - Section 49 - Bar to civil Courts
jurisdiction - Fraud - fraud cannot be
inferred on mere allegation - Fraud must
be proved and not merely alleged and
inferred. Mere assertion of fraud is not
sufficient to render the judicial proceeding
concluded by the court competent illegal
unless it is proved by credible and
unimpeachable evidence. As per plaintiff's
case, he has executed a power of attorney
in favour of Nanhu Singh to get the land
revenue entry corrected in his name
during
the
consolidation
operation.
Pleading in the plaint in that regard was
specifically

denied
by
defendantsrespondents in written statement. In
support of the aforesaid pleading no
documentary evidence was filed before
any of the three revenue courts. However,
for the first time, petitioner filed the
photostat copy of alleged power of
attorney dated 22.08.1966 as Annexure
to
the
writ
petition.
It
was
an
unregistered document bearing signature
of
the
present
petitioner
and
two
witnesses. Court held that document filed
for the first time before High Court is not
admissible in evidence if the same is a
photostat copy of unregistered document
(Para 27, 28)

 B. In the instant case , petitioner case
was that he has executed a power of
attorney
in
favour
of
Nanhu
Singh
(brother of defendant no.2 ) to look after
the property and get the name of the
plaintiff-petitioner in the consolidation
record, however, he got the name of the
plaintiff-petitioner expunged from the
record. By playing fraud on the plaintiffpetitioner,
he
got
his
name
and
defendants'
name
recorded
in
the
consolidation record. Name of defendants
was fraudulently recorded in the revenue
record which came to the knowledge of
the plaintiff-petitioner for the first time on
27.1.1987 and, consequently, he filed suit
for declaration. All the three revenue
4 All. Rajkumar Dubey Vs. Board of Revenue & Ors.
463
courts held the suit barred under Section
49 of the U.P.C.H. Act. Held : Plaintiffpetitioner claimed his right and title over
the property in question being mortgagee.
However, in pursuance of the judgment
passed in Suit No. 4/5 under Section 99 of
U.P. Act No. 3 of 1926 possession of the
property
was
handed
over
to
the
mortgagor (defendant-respondent). Thus,
right of the mortgagee came to an end.
Mortgagee
(plaintiff-petitioner
or
his
predecessor in his interest) were never
recorded in the land revenue record in
their individual capacity. On the date of
advent of consolidation operation, his
name was not recorded in the basic
consolidation record. Court held that plea
of fraud as raised on behalf of the
plaintiff-petitioner
cannot
be
substantiated. No illegality in the order
under challenge. Writ petition dismissed
(Para 3, 30, 32)

Dismissed. (E-5)

## Text

_Characters 0–39,703 of 61,616. This is a partial read: ask again with offset=39703 for what follows._

462 INDIAN LAW REPORTS ALLAHABAD SERIES
respect to petitioners' lease cannot be said
to be within reasonable period.

19. Considering the entire facts
and circumstances as well as the
judgement rendered by this Court in
Prabhu Dayal (Supra) where it has
been held that holding of the father will
not be included in the holding of their
sons as well as the situation of the plot
in question in the Bundelkhand area, the
impugned
order
dated
12.11.1992
passed by respondent no.1/Board of
Revenue and order dated 16.10.1982
passed by respondent no.2/Additional
District Magistrate cannot be sustained
in the eye of law and the same are
hereby set aside.

20. Writ petition stands allowed
and the authorities are directed to
record the name of petitioners over the
plot in question forthwith.

21. No order as to costs.
----------
(2025) 4 ILRA 462
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.04.2025

BEFORE

THE HON'BLE DINESH PATHAK, J.

Writ- B No. 13075 of 2012

Rajkumar Dubey ...Petitioner
Versus
Board of Revenue & Ors. ...Respondents

Counsel for the Petitioner:
Anurag Singh, Ashutosh Srivastava, Govind
Krishna,
Satyendra
Nath
Srivastava,
Shreyas Srivastava

Counsel for the Respondents:
D.D. Chauhan, Madhur Prakash, Satya
Prakash

A. U.P. Consolidation of Holdings Act,
1953 - Section 49 - Bar to civil Courts
jurisdiction - Fraud - fraud cannot be
inferred on mere allegation - Fraud must
be proved and not merely alleged and
inferred. Mere assertion of fraud is not
sufficient to render the judicial proceeding
concluded by the court competent illegal
unless it is proved by credible and
unimpeachable evidence. As per plaintiff's
case, he has executed a power of attorney
in favour of Nanhu Singh to get the land
revenue entry corrected in his name
during
the
consolidation
operation.
Pleading in the plaint in that regard was
specifically

denied
by
defendantsrespondents in written statement. In
support of the aforesaid pleading no
documentary evidence was filed before
any of the three revenue courts. However,
for the first time, petitioner filed the
photostat copy of alleged power of
attorney dated 22.08.1966 as Annexure
to
the
writ
petition.
It
was
an
unregistered document bearing signature
of
the
present
petitioner
and
two
witnesses. Court held that document filed
for the first time before High Court is not
admissible in evidence if the same is a
photostat copy of unregistered document
(Para 27, 28)

 B. In the instant case , petitioner case
was that he has executed a power of
attorney
in
favour
of
Nanhu
Singh
(brother of defendant no.2 ) to look after
the property and get the name of the
plaintiff-petitioner in the consolidation
record, however, he got the name of the
plaintiff-petitioner expunged from the
record. By playing fraud on the plaintiffpetitioner,
he
got
his
name
and
defendants'
name
recorded
in
the
consolidation record. Name of defendants
was fraudulently recorded in the revenue
record which came to the knowledge of
the plaintiff-petitioner for the first time on
27.1.1987 and, consequently, he filed suit
for declaration. All the three revenue
4 All. Rajkumar Dubey Vs. Board of Revenue & Ors.
463
courts held the suit barred under Section
49 of the U.P.C.H. Act. Held : Plaintiffpetitioner claimed his right and title over
the property in question being mortgagee.
However, in pursuance of the judgment
passed in Suit No. 4/5 under Section 99 of
U.P. Act No. 3 of 1926 possession of the
property
was
handed
over
to
the
mortgagor (defendant-respondent). Thus,
right of the mortgagee came to an end.
Mortgagee
(plaintiff-petitioner
or
his
predecessor in his interest) were never
recorded in the land revenue record in
their individual capacity. On the date of
advent of consolidation operation, his
name was not recorded in the basic
consolidation record. Court held that plea
of fraud as raised on behalf of the
plaintiff-petitioner
cannot
be
substantiated. No illegality in the order
under challenge. Writ petition dismissed
(Para 3, 30, 32)

Dismissed. (E-5)

(Delivered by Hon'ble Dinesh Pathak, J.)

1. Heard learned counsel for the
petitioner,
learned
counsel
for
the
contesting private respondents as well as
learned Standing Counsel for the Staterespondents.

2. The petitioner is aggrieved with
the orders passed by the revenue courts
under the U.P. Zamindari Abolition and
Land Reforms Act, 1950 (in brevity 'Act,
1950') whereby suit filed on his behalf for
declaration of his rights and title under
Section
229-B
of
Act,
1950
has
concurrently been discarded by all the three
revenue
courts
on
the
point
of
maintainability of suit being barred under
Section 49 of U.P. Consolidation of
Holdings Act, 1953 (in brevity 'U.P.C.H.
Act'), while deciding the issue no.7 framed
by the learned trial court.

3. As per plaint case, the plaintiffpetitioner is claiming his right, title and
interest over the property in question on the
basis of mortgage deed dated 27.2.1901,
registered on 04.3.1901, said to have been
executed by Khuman Singh s/o Preetam
Singh
(predecessor-in-interest
of
the
defendants-respondants) in favour of Radha
Kishan s/o Bhola Nath (predecessor-ininterest of the plaintiff-petitioner). Through
the aforesaid mortgage deed, the land in
question was mortgaged for thirty years
against the loan amounting to Rs.290/-.
Mortgage money was paid from the Hindu
Undivided Family Fund. Subsequently,
predecessors-in-interest of the petitioner
had filed a suit for possession against
Khuman Singh (father of defendant no.1)
being Civil Suit No.418 of 1911 (Pitambar
Lal & Others vs. Khuman Singh & Others).
Aforesaid suit was decreed on 24.2.1912
and based on the said decree, possession
was delivered on 29.3.1912. Since 1348
fasli, name of Smt. Ram Dulari (grandmother of the plaintiff-petitioner) was
recorded and thereafter name of the
plaintiff-petitioner is recorded in Khatauni
being mortgagee. The plaintiff-petitioner
was initially Seerdar of the property in
question. Subsequently, by operation of
law, became Bhumidhar with transferable
rights. On the advent of consolidation
operation, he has executed a power of
attorney in favour of Nanhu Singh (brother
of defendant no.2 namely Rajendra) to look
after the property and get the name of the
plaintiff-petitioner in the consolidation
record, however, he did nothing and got the
name of the plaintiff-petitioner expunged
from the record. By playing fraud on the
plaintiff-petitioner, he got his name and
defendants'
name
recorded
in
the
consolidation record. Thus, name of
defendants are fraudulently and illegally
recorded in the revenue record which came
464 INDIAN LAW REPORTS ALLAHABAD SERIES
to the knowledge of the plaintiff-petitioner
for the first time on 27.1.1987 and,
consequently, he filed suit for declaration.

4. On the contrary, defendants have
filed
written
statement
denying
the
pleadings made in the plaint with the
contention that mortgage deed dated
27.2.1901, registered on 4.3.1901, was
redeemed by judgment dated 29.2.1936 and
decree dated 3.3.1946 passed by the
Assistant Collector (Ist Class) in a Suit
No.4/5. Nanhu Singh was never appointed
as power of attorney by the plaintiffpetitioner to look after the property in
question. The plaintiff-petitioner does not
belong to the family of the original
mortgagee and he is never recorded in the
revenue record, therefore, suit on his behalf
is not maintainable being barred under
Section 49 of the U.P.C.H. Act.

5.
Learned
trial
court,
after
exchange of pleadings, has framed as many
as ten issues to decide the suit. Out of them,
issue no.7 was framed regarding bar of suit
under Section 49 of U.P.C.H. Act which is
quoted herein below:-

"Whether plaintiff's suit is barred
under Section 49 of the Act ?"

6. The Assistant Collector (Ist
Class)/Sub Divisional Officer, Bilhaur,
Kanpur
Nagar,
vide
judgment
dated
7.11.2007, has decided the aforesaid issue
in affirmative in favour of the defendants
and held that the suit is barred under
Section 49 of the U.P.C.H. Act. Having
been aggrieved with the judgment dated
7.11.2007, the plaintiff has filed first appeal
being Appeal No.46 of 2008 under Section
331(3) of Act, 1950. Learned Additional
Commissioner, Kanpur Division, Kanpur,
vide order dated 3.11.2008, has dismissed
the appeal affirming the order passed by the
trial court. Being dissatisfied with the order
passed by the first appellate court, the
plaintiff-petitioner has filed Second Appeal
No.14 of 2008/09 before the Board of
Revenue, U.P. at Allahabad which has been
dismissed as well by the judgment dated
20.1.2011, which is under challenge before
this Court.

7. Learned counsel for the plaintiffpetitioner, while assailing the concurrent
finding of fact returned by all the three
revenue courts in a proceeding arisen out of
suit under Section 229-B of Act, 1950, has
advanced fourfold following submission:-

7.1- The bar under Section 49 of
U.P.C.H. Act is applicable only for the
certain period i.e. from the date of
promulgation of notification under Section
4 of U.P.C.H. Act up to the de-notification
under Section 52 of the U.P.C.H. Act. As
per his submission, Section 4 of the
U.P.C.H.
Act
was
promulgated
on
16.9.1965 and the village was de-notified
under Section 52 of U.P.C.H. Act by
notification promulgated on 14.5.1977,
however, suit was filed on 23.5.1988,
therefore, provisions as enunciated under
Section 49 of U.P.C.H. Act are not
attracted in the instant matter. In support of
his submission, learned counsel for the
plaintiff-petitioner placed reliance on the
case of Prashant Singh & Others vs. Meena
& Others reported in 2024 (9) ADJ 187.

7.2- He has tried to point out the
forgery committed against the plaintiffpetitioner and came with the plea that fraud
vitiates
everything
even
solemn
proceedings. He has laid emphasis on the
pleadings of the plaint that the plaintiffpetitioner has executed a power of attorney
in favour of Nanhu Singh (brother of the
4 All. Rajkumar Dubey Vs. Board of Revenue & Ors.
465
defendants-respondents) to get his name
recorded in the land revenue record during
consolidation proceeding, however, by
playing fraud Nanhu Singh got his and his
brother's name recorded over the property
in question and managed to expunged the
name of plaintiff-petitioner. Plea of fraud
has not appropriately been considered by
all the three revenue courts and illegally
held the suit barred under Section 49 of the
U.P.C.H. Act. In support of his submission,
learned counsel for the petitioner has
placed reliance upon the case of Ram
Briksha & Another vs. Deputy Director of
Consolidation & 3 Others reported in 2017
(6) ADJ 356 (DB); Sagir Ahmad & Others
vs. Deputy Director of Consolidation &
Others reported in 2019 (6) ADJ 336 and
Amar Singh vs. State of U.P. & Others
reported in 2008 (2) ADJ 688.

7.3- It is next submitted that
name of Smt. Ram Dulari (predecessor-ininterest of the plaintiff-petitioner) was
recorded in 1348 fasli and 1366 fasli to
1369
fasli
being
a
mortgagee.
Predecessors-in-interest of the plaintiffpetitioner and, thereafter, he himself is in
continuous possession over the property in
question.

7.4- He has also laid emphasis on
the condition no.6 of the mortgage deed,
whereby mortgage would be foreclosed
after thirty years, and the judgment passed
in Suit No.418 of 1911 whereby possession
has been delivered in favour of the
mortgagee (predecessor-in-interest of the
plaintiff-petitioner). After the judgment
passed in Original Suit No.418 of 2011 and
foreclosure of the mortgage deed as per
condition no.6 of the mortgage deed,
defendants have no right, title and
possession over the property in question.
Thus, the present writ petition be allowed
and the orders impugned passed by the
revenue courts be quashed, being illegal
and unwarranted under the law.

8. Per contract, learned counsel for
contesting respondents has vehemently
opposed the submissions advanced by
learned counsel for the petitioner and
contended that:-

8.1- The suit for redemption and
possession of collateral property filed on
behalf of the mortgagor against the
mortgagee under Section 99 of Agra
Tenancy Act (Act No. 3 of 2026) had been
decreed on 29.2.1936 and got executed on
3.3.1946.
Thus,
the
mortgagee
(predecessors-in-interest of petitioner) has
no right, title and possession over the
property in question.

8.2- He vehemently opposed the
execution of any power of attorney
(unregistered) in favour of Nanhu Singh, as
averred in paragraph number 13 of the
plaint, and contended that copy of such
power of attorney had never been filed
before any of the three revenue courts.
However, for the first time, the alleged
document has been filed before this court
which is a forged document.

8.3- Learned counsel for the
respondents has emphasized that the name
of the petitioner was never recorded in the
Record of Rights, i.e., Khatoni 1356 fasli,
1348 fasli, and 1359 fasli. Even his name
was
not
recorded
in
the
Basic
Consolidation Record, to wit, at the advent
of the consolidation operation by way of
notification under Section 4(2) of the
U.P.C.H. Act.

8.4- It is next contended that no
foul play or fraud has been committed
466 INDIAN LAW REPORTS ALLAHABAD SERIES
against the plaintiff-petitioner, who was
reluctant towards his right during the
consolidation operation. Mere assertion of
fact with regard to fraud is not sufficient to
avert the bar under section 49 of the
U.P.C.H. Act. In paragraph 13 of the plaint,
the plaintiff has taken a contradictory plea
that he himself was taking care of the
property in question at the relevant time.

8.5- It is next contended that
orders under challenge, holding the suit
barred under Section 49 of the U.P.C.H.
Act, do not warrant any interference in the
writ jurisdiction, thus, the same may be
dismissed being misconceived and devoid
of merits. In support of his contention,
learned
counsel
for
the
contesting
respondents has relied upon the case of
Kushar Vs. Ahmed Khan, 1962 R.D. 172
decided by division bench of this court,
Madan Mohan Mishra v. Chandrika Pandey
(dead) by L.Rs., 2009 (107) R.D. 2 SC and
the case of Ram Briksha and another
(supra) and the case of Sagir Ahmed and
others (supra).

9. Having considered the rival
submissions advanced by learned counsel
for the parties and upon perusal of the
record, it is manifest that the question for
consideration in the instant matter lies in a
narrow compass as to whether the suit for
declaration filed on behalf of the plaintiff
under Section 229 B of the Act, 1950 is
barred and not maintainable under Section
49 of the U.P.C.H. Act. Thus, nature and
scope of Section 49 UPCH Act is required
to be discussed, which is quoted herein
below:

"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-holder 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 be 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."

10. Needless to say that object of
the U.P.C.H. Act is to provide for
consolidation of agricultural holding for the
development of agriculture. It is a complete
code
which
contains
provisions
for
redressal of grievance of tenure holders
relating to their right, title and interest over
the holding as well as grievances in relation
to the chak allotment, its valuation and
area, etc. While enforcing the object of
U.P.C.H. Act to consolidate the holding
and avoid fragmentation or scattered
holding, consolidation authorities are also
authorised to examine the revenue entries
made in favour of the tenure holders. For
this
purpose,
Section
8A
provides
preparation of statement of principles,
stating forthwith the principle to be
4 All. Rajkumar Dubey Vs. Board of Revenue & Ors.
467
followed in carrying out consolidation
operation in the unit. In Section 9,
provision is made for issuing notice to the
statement of principle prepared under
Sections 8 and 8 A of the U.P.C.H. Act to
tenure holders concerned and to persons
interested calling upon them to file
objection before him, if any, disputing the
correctness or nature of entry in the extract
and
pointing
out
of
any
omission
therefrom. Section 10 provides that annual
register shall be revised on the basis of the
order passed by the Consolidation Officer.
Section 19 onwards, Sections 20 and 21 are
relating to the Provisional Consolidation
Scheme (Chak allotment proceedings).
Thus, there is a provision under the
U.P.C.H. Act to examine the right, title and
interest of the tenure holders, while
examining the correctness of entries.
However, intending to discourage the
multiplicity of proceedings, legislation has
forbidden the jurisdiction of Civil and
Revenue Court, under Section 49 of the
U.P.C.H. Act from entertaining any of the
following matters :-

(i)
Declaration
and
adjudication of right of tenure
holders qua land covered by
notification under Section 4(2) of
the U.P.C.H. Act,

or

(ii) Adjudication or any
other
right
arising
out
of
consolidation proceedings,

And

(iii) in regard to these
matters (as mentioned above),
proceedings could or ought to have
been taken under the U.P.C.H. Act,
(iv) shall be done in
accordance with the provisions of
the U.P.C.H. Act.

11. Non-obstante clause used at the
commencement of the Section 49 of
U.P.C.H. Act coupled with the latter part of
the Section, to wit, "proceedings could or
ought to have been taken under this Act",
imposes an absolute bar on civil or revenue
courts from entertaining any proceedings in
respect of the declaration and adjudication
of right of a tenure holder or adjudication
of any other rights arising out of
consolidation operations, for which person
concerned ought to have or could have
taken proceedings at the time when the
village was brought under the consolidation
operations by promulgation of notification
under Section 4(2) of the U.P.C.H. Act.
Meaning thereby, final record of rights
prepared under the provisions of the
U.P.C.H. Act attaches finality concerning
the declaration and adjudication of right of
tenure
holders,
therefore,
after
denotification under Section 52 of the
U.P.C.H. Act, civil or revenue courts have
got
no
jurisdiction
to
reopen
such
adjudication or declaration of rights.
Hon'ble Supreme Court, in the case of Sita
Ram vs. Chhota Bhondey and others,
AIR 1991 Supreme Court 249, while
discussing the scope of Section 49 of
U.P.C.H. Act has held that it is wide and
comprehensive. Facts giving rise to the
aforesaid cited case are that Chhota and
Nanha
are
real
brothers.
In
basic
consolidation record, name of Nanha was
recorded in the representative capacity on
behalf of himself and his brothers. Son of
Chhota has filed objection claiming his cotenancy right over the property in question.
Consolidation Officer has granted cotenancy right, however, the appeal having
been filed, order of Consolidation Officer
468 INDIAN LAW REPORTS ALLAHABAD SERIES
was reversed. Having been aggrieved,
revision was preferred and the Deputy
Director of Consolidation has upheld the
order passed by the Consolidation Officer.
In writ petition, order of the Consolidation
Officer had been affirmed. At subsequent
stage, civil suit had been filed for the
declaration that order of Deputy Director of
Consolidation was without jurisdiction.
Contesting the suit, other side has raised
preliminary objection that the suit is barred
under Section 49 of the U.P.C.H. Act.
Learned trial court has allowed the
preliminary objection which has been
upheld up to the stage of second appeal
before Hon'ble High Court. Learned
counsel for the appellant before Hon'ble
Supreme Court came with the plea that the
bar under Section 49 of the U.P.C.H. Act is
not applicable to the suit on two grounds;
that consolidation authorities could not
decide question as to title to the land, and
question relating to the parentage of the
respondent, which the civil court alone
could decide.

12. In this backdrop of the fact,
Hon'ble Supreme Court has upheld that:

 "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
provisions 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 area covered by
the notification under Section 4(2) of the
Act 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,
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."

13. Section 49 of the U.P.C.H. Act,
which bars the jurisdiction of the civil court
and the revenue court, gives affect to the
provisions enunciated under Section 5(2) of
the U.P.C.H. Act, thus, to better understand
the provisions of Section 49 of the
U.P.C.H. Act, the provisions enunciated
under Section 5(2) of the U.P.C.H. Act are
also referable which denotes the effect of
notification under Section 4(2) of U.P.C.H.
Act that, at the advent of consolidation
operation by way of notification under
Section 4 (2) of the U.P.C.H. Act in the
official gazette, until the publication of
denotification under Section 52 of the
U.P.C.H. Act or cancellation of such
notification under Section 6 of the
U.P.C.H. Act, as the case may be, every
proceeding for correction of record and
every suit and proceeding in respect of
declaration of right or interest in any land
lying in the area of notification, or of
declaration or adjudication of any other
right in regard to which proceedings can or
ought to be taken under this Act, pending
before any court or authority, whether of
the first instance or of appeal, reference or
revision, shall on an order been passed on
behalf of the court or authority before
4 All. Rajkumar Dubey Vs. Board of Revenue & Ors.
469
whom such suit or proceeding is pending,
stand abated. Thus, the bar under Section
5(2) of the U.P.C.H. Act and the bar under
Section 49 of the U.P.C.H. Act are
operating in different dimensions, however,
Section 49 is adjuvant to preserve the legal
sanctity of declaration and adjudication of
any
right
during
the
consolidation
operation. Section 5 of the U.P.C.H. Act
operates when the unit/area is notified for
consolidation operation under Section 4 (2)
of the U.P.C.H. Act, to wit, during the
consolidation
operation,
before
it's
cessation under Section 6 or completion by
denotification under Section 52. However,
in furtherance of Section 5, the bar under
Section 49 of the U.P.C.H. Act operates
after de-notification under Section 52 of the
U.P.C.H. Act, when the right, title and
interest of the parties and other rights
arising out of consolidation operation has
attained finality. While enforcing the bar
under Section 49 of the U.P.C.H. Act,
legislation is intended to cut short the
multiple litigations and do not encourage
the litigants to indulge in unended litigation
process to get their right, title and interest
adjudicate upon qua property in question.
The phrase employed under Section 49 of
the U.P.C.H. Act in the last part of the
Section i.e. "for which a proceeding could
or ought to have been taken under this Act"
is quite meaningful and significant to
preclude the jurisdiction of Civil Courts
and Revenue Courts from entertaining any
such litigation to adjudicate and declare the
right, title and interest of the parties with
respect to land which has already passed
through consolidation operation and record
of rights are finalized with respect thereto
after de-notification under section 52 of the
U.P.C.H. Act. Any tenure holder who
ought to have vigilant and could have
raised his voice by way of filing an
appropriate objections under the U.P.C.H.
Act during consolidation operation, if so
reluctant and not filed an appropriate
objection, would be stopped from raising
such objection at subsequent stage before
any civil or revenue court. In the matter of
Sita Ram (supra) Hon'ble Supreme Court
has observed that :

"As
a
result
of
the
said
amendment which has been introduced in
Section 5 the right of the Courts to
adjudicate in respect of declaration of
rights or interest in any land lying in the
area for which the notification has been
issued
under
Section
4(2)
or
for
declaration or adjudication of any other
right in regard to which proceedings can or
ought to be taken under the Act has been
completely
taken
away
and
the
adjudication of these rights is to be done by
the consolidation authorities under and in
accordance with the provisions of the Act
and the Rules made thereunder. Section 49
of the Act which bars the jurisdiction of the
civil and revenue Courts gives effect to the
aforesaid provisions contained in Section
5(2) of the Act. As a result of these
amendments civil and revenue Courts have
no role in the matter of determination of
rights or interests in any land lying in the
area for which notice has been issued
under Section 4(2) of the Act or for the
declaration or adjudication of any other
right in regard to which proceedings can or
ought to be taken under the Act.

xx xx xx

In the instant case respondent No.
1 was claiming an interest in the land lying
in the area covered by notification issued
under section 4(2) on the basis that he is
the son of Chhota, brother of Nanha and
that the lands were recorded in the name of
Nanha in a representative capacity on
470 INDIAN LAW REPORTS ALLAHABAD SERIES
behalf of himself and his other brothers.
This claim which fell within the ambit of
Section 5(2) had to be adjudicated by the
consolidation authorities. Since it was a
matter
falling
within
the
scope
of
adjudicatory functions assigned to the
consolidation authorities under the Act the
jurisdiction of the Civil Court to entertain
the suit in respect of the said matter was
expressly barred by Section 49 of the Act
and the suit of the appellant was rightly
dismissed on that ground."
(emphasis supplied)

14. However, through judicial
proclamation, an exception on the ground
of fraud has been carved out under the legal
presumption that fraud vitiates everything,
even solemn acts of judicial proceedings.
The learned counsel for the petitioner has
emphasized on this point and submitted
that
fraud
has
been
played
upon
plaintiff/petitioner and his name has been
got expunged from the revenue record. The
defendants got their names recorded during
consolidation operation, despite the fact
that plaintiff/petitioner has executed a
power of attorney in favour of Nanhu Singh
to get the entry corrected during the
consolidation operation. In all the cited
cases relied upon by the learned counsel for
the petitioner, one thing is common which
has been taken into account by the Hon'ble
High Court and the Hon'ble Supreme Court
that aggrieved persons have their preexisting co-tenancy over the holding in
question and having considered the preexisting right, it has been summarised by
Hon'ble Courts concerned that by playing
fraud upon the party his name was left to be
recorded
during
the
consolidation
operation,
to
wit,
after
notification
promulgated under Section 4(2) and before
de-notification promulgated under Section
52 of U.P.C.H. Act. Thus, in the
eventuality of fraud, it would not be
justifiable to hold the suit filed on behalf of
the aggrieved person at subsequent stage
barred under Section 49 of U.P.C.H. Act.

15. To elucidate this proposition, I
would like to discuss all the cited cases
relied upon by the learned counsel for the
petitioner. In the matter of Ram Briksha
and another (supra), decided by Division
Bench of this Court, the facts giving rise to
the said writ petition are that Ram Briksha
(petitioner) was recorded in the basic
consolidation record. In the previous
consolidation operation, no objection was
filed by Ram Vilas, however, in subsequent
consolidation operation, he has filed an
objection under Section 9A-2 of U.P.C.H.
Act claiming himself as the real brother of
the petitioner whose name got expunged by
playing
fraud.
The
petitioner
(Ram
Briksha) has contested the case with the
plea that while the objection was not filed
in the previous consolidation operation and
finality
is
attached
with
the
final
consolidation record, the objection filed in
the subsequent consolidation operation is
barred under Section 49 of U.P.C.H. Act.
In this backdrop of the facts, co-ordinate
bench of this court has formulated three
questions and referred the matter before
Division Bench for consideration, which
are quoted herein below:-

"(i) Whether use of words "could
or ought to have been taken" in latter part
of Section 49 of the Act, compulsorily
forces the co-sharers, who are living
jointly, peacefully and have no grievance
against
their
father/brother/co-sharer,
whose name is recorded in representative
capacity, or they were willing to live
jointly, due to situation of their family, i.e.
(father and minor son), (mother and minor
son), (brother and minor brother) and
4 All. Rajkumar Dubey Vs. Board of Revenue & Ors.
471
(some co-sharer was student and had gone
abroad for study and fully depends upon
other co-sharers) etc., to file an objection
under Section 9 of the Act for separation of
his share?

(ii) Whether by operation of law,
the parties can be thrown into litigation
against their will/need and by not raising
claim to land or partition and separation of
the chak their right to property can be taken
away in spite of protection available under
Article 19 (1) (f) and now Article 300-A of
the Constitution?

(iii) Whether, in spite of well
settled legal principle in respect of joint
property, right of a co-sharer will come to
an end under Section 49 of the Act, on the
notification under Section 52, due to not
claiming partition of his share and separate
chak in his name, although, there had been
no ouster from joint property?"

16.
Replying
all
the
three
questions, Hon'ble Division Bench has
held that right of the parties in the holdings
cannot be directed to be defeated merely
because they have not at all participated in
the consolidation proceedings and as to
whether the bar under Section 49 of
U.P.C.H. Act would be attracted or not,
would essentially be a question of fact that
can be answered on the basis of evidence
adduced and to said bar in question,
exceptions have to be carved out wherein
suit in question would not be barred and
Section 49 of U.P.C.H. Act would not
come into play where from the series of
documents and circumstances it is reflected
that planned fraud has been made to delete
the plaintiff's name from the revenue
record.
From
the
record
of
the
consolidations, it is clearly reflected that
neither the incumbent, who has proceeded
to get his name recorded, nor consolidation
authorities have proceeded to discharge
their duties faithfully in consonance with
the provisions of U.P.C.H. Act wherein
consolidation authorities are empowered to
ascertain the share of each owner if there
be more owners than one and if such an
exercise has not been undertaken, then it
would be a case of legal malice and it
cannot be ipso facto presumed that there
has been ouster from the property in
question
and
in
such
situation
any
incumbent, who claims his right in the
property in question, has got every right to
regain his property based on title for the
reason that right has been sought to be
defeated based on fraud and manipulation.

(emphasis supplied)

17. Answers given by Hon'ble
Division Bench for all the three referred
questions are quoted hereinbelow:

Issue No. I:- Because of the
words "could or ought to have been taken"
in latter part of Section 49 of the Act, same
does not compulsorily forces the cosharers, who are living jointly, peacefully
and have no grievance against their
father/brother/co-sharer whose name is
recorded in representative capacity or they
were willing to live jointly due to situation
of their family and who have not filed an
objection under Section 49 of the Act for
separation of their share inasmuch as under
the provisions of U.P. Consolidation of
Holdings Act, 1953, it is the statutory
obligation cast upon the authorities and the
incumbent, who has been holding the
property in question in the representative
capacity to get the records corrected and in
case in designed manner the obligation in
question has not been discharged by
Consolidation Authorities as well as by the
472 INDIAN LAW REPORTS ALLAHABAD SERIES
incumbent holding the property in the
representative capacity, then in such a
situation Section 49 of the Act would not at
all be attracted and such situation would be
covered under the contingency of planned
fraud to drop the name of other co-sharers
from the revenue records.

Issue No. II:- The answer is that a
party cannot be thrown in litigation against
their will/need and by not raising claim to
land of partition and separation of chak,
their rights to property cannot be taken
away under the protection provided for
under Article 19(1)(f)/ Article 300-A of the
Constitution of India.

Issue No. III:- The rights of the
co-sharers will not at all come to an end
under Section 49 of the Act, on the
notification under Section 52 due to not
claiming partition of his share and separate
chak in his name and till there is no ouster
from the joint property his right in the
property will continue to exist.

18. Hon'ble Division Bench, as
mentioned above, has acknowledged the
pre-existing co-tenancy right of Ram Vilas
being a co-sharer along with his brother,
whose name was left to be recorded in the
first consolidation operation due to some
inadvertent mistake or fraud. Thus, in this
backdrop, Hon'ble Division Bench came to
the conclusion that his pre-existing right
cannot be curtailed on the ground of bar
under Section 49 of UPCH Act.

19. Almost similar facts were
examined by Co-ordinate Bench of this
Court in the case of Sagir Ahmad and
others (supra) wherein pedigree was
admitted to both the parties. Mr. Bechai
Shah and Bhaggu Shah S/O Wazid Shah
were real brothers. In the first consolidation
operation, the name of Bechai Shah was
exclusively recorded, however, name of
Bhaggu Shah was left to be recorded
despite the fact that in Khatauni pertaining
to 1359 F. name of both the brothers were
jointly recorded. On the advent of second
consolidation operation, Bhaggu Shah has
filed objection under Section 9A-2 of
UPCH Act claiming co-tenancy rights
along with his brother, after his death along
with his heirs, to the land in question. The
co-ordinate Bench of this Court, relying
upon the verdict of Division Bench of this
Court in the matter of Ram Briksha (supra),
came to the conclusion that the bar of
Section 49 of UPCH Act would not operate
where it is reflected from the record and
circumstances that name of the recorded
tenure holder has been removed by playing
fraud. Accordingly, if it is found that name
of recorded tenure holder or co-sharer has
been expunged from the revenue record by
playing planned fraud, it would be a case of
legal malice and in such situation, the
person whose name has been expunged will
have right to claim the property in question
based on title for reason that such a right
has been established to be defeated on
manipulated.

20. Case of Amar Singh (supra), relied
upon by learned counsel for the petitioner,
is sailing on the same boat so far as it
relates to the facts of the case wherein plot
in dispute was purchased through registered
sale deed dated 17.03.1969 by plaintiff
(Saru)
and
defendant
(Amar
Singhpetitioner). The case of the plaintiff was
that the defendant/petitioner used to look
after the cases in different courts and
plaintiff used to live in a forest being
gadariya, looking after his goats. However,
he has been duped by defendant in
removing his name from the revenue
record. Plaintiff has also claimed that after
4 All. Rajkumar Dubey Vs. Board of Revenue & Ors.
473
the registered sale deed dated 17.03.1969,
both the parties came in possession over the
subject matter of the sale deed (suit
property). Thus, in this backdrop of the
facts, it has been held that a co-sharer, who
claimed to be in the possession over the
property in question and his name being not
recorded in the consolidation proceeding, is
not debarred from bringing a suit under 229
B of Act, 1950 for correcting the land
revenue entries and recording his name also
if allegation is that his name was removed
by practising fraud on him. In support of
his observation learned coordinate Bench
of this Court has relied upon the case of
Karbalai Begum vs. Mohd. Sayeed and
another, AIR 1981 SC 77.

21. Hon'ble Supreme Court in the
matter of Karbalai Begum (supra) had an
occasion to consider the scope of bar under
Section 49 of U.P.C.H. Act. In the peculiar
facts and circumstance, Karbalai Begum
(appellant before Hon'ble Supreme Court)
had been denied her co-tenancy right over
the property in question on the ground of
bar under Section 49 of U.P.C.H. Act. The
facts giving rise to the aforesaid case was
that Karbalai Begum (widow) was cotenant with the defendants no.1 and 2 who
were cousins of her husband. They were in
joint possession of the plot in dispute being
co-bhumidhars. They had a joint khata upto
1959
fasli.
During
consolidation
proceeding, name of defendants were
exclusively recorded over the plot in
question. At later stage, Karbalai Begum
had filed a suit for co-tenancy to the extent
of her share. The defendants came with the
plea that the suit is barred under Section 49
of U.P.C.H. Act inasmuch as right and title
of
the
parties
became
final
during
consolidation operation. The trial court has
dismissed the suit, however, the District
Judge, on appeal being filed, has allowed
the same with specific finding of fact that
clear
fraud
was
committed
during
consolidation operation either by the
defendants or by somebody else as a result
whereof rights of the plaintiff was said to
be extinguished.