# Ram Gopal & Ors v. Smt. Parvati & Ors

- **Citation:** (2025) 12 ILRA 579
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-12-09
- **Case number:** Writ B No. 15591 of 2016
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-gopal-ors-v-smt-parvati-ors-52951
- **Pages:** 14

## Text

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12 All. Ram Gopal & Ors. Vs. Smt. Parvati & Ors.
579
reference is pending before the CO or the
SOC as the case may be, can be treated to
be pending on the date of notification made
under Section 52(1) then such cases can be
said to be saved in terms of Section 52(2)
of the Act.

186. Questions nos. (ii) and (iii) are
answered thus.

IX SEQUITUR:-

187.
In
light
of
the
detailed
discussions
recorded
hereinabove,
the
scope of reference under the Act can be
succinctly put as under: -

(i) It relates to such disputes
which may occur on account of any error in
preparation of records or anomalies arising
or difficulties created as well as such
disputes which may occur on the ground
level while implementing the scheme of
consolidation in light of the guiding
principles mentioned in Section 19 of the
Act as well as relatable to preparation of
final records. The reference may arise out
of corrective and executory jurisdiction but
it is adjudicatory in nature, as it has the
impact of an order passed by the Deputy
Director of Consolidation which is binding
and unless challenged, is final between the
parties.

(ii) Since the power of reference
is some what different than the power of
revision, hence, the legislature has provided
for a two tiered hearing, one before the
Consolidation Officer or the Settlement
Officer of Consolidation, as the case may
be and the other before the Deputy Director
of Consolidation himself. The power of
reference is exercised not in an ordinary
course, hence, it should be resorted to
sparingly with utmost caution and only in
expedient circumstances which have been
detailed in the earlier part of this judgment,
which have been noted to be illustrative
and not exhaustive.

(iii)
As
explained
in
this
judgment, the power of reference is born
out of corrective jurisdiction but it is
adjudicatory in nature.

188. Insofar as when the power of
reference can be exercised, it is held that
the power of reference cannot be exercised
after de-notification of the village in terms
of Section 52(1) of the Act and the
reference proceedings are not saved in
terms of Section 52(2) except in those cases
where on the date of notification under
Section 52(1), the reference is pending
either
before
the
Consolidation
Officer/Settlement Officer of Consolidation
in terms of first tier of hearing and/or
pending before the Deputy Director of
Consolidation in terms of the second tier
hearing.

189. The questions referred to this Full
Bench stands answered. Now, the matter
may be placed before the Court concerned
to decide the matter on its own merits.
----------
(2025) 12 ILRA 579
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.12.2025

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ B No. 15591 of 2016

Ram Gopal & Ors. ...Petitioner
Versus
Smt. Parvati & Ors. ...Respondent

ISSUE FOR CONSIDERATION
Whether the petitioner/defendant's defence in
the partition suit that the Will dated 10.01.1961,
580 INDIAN LAW REPORTS ALLAHABAD SERIES
being one granting a life estate to the plaintiff,
Parwati, did not entitle her to seek partition,
was open to be determined by the Revenue
Court, when the said claim was not raised
during consolidation proceedings and whether it
attracted the bar under Section 49 of the
Consolidation of Holdings Act.

HEADNOTE
Constitution of India, Art. 226 - U.P. Zamindari
Abolition and Land Reforms Act, 1950, Ss.
169(3), 176 - U.P. Consolidation of Holdings
Act, 1953, Ss. 4, 9, 49 & 52 - Registration Act,
1908, Ss. 17 & 40 - Will relating to agricultural
land - Requirement of registration - Will dated
10.01.1961
does
not
require
compulsory
registration - Requirement of registration came
in with effect from 23.08.2004 - A bhumidhar
with transferable rights could devise a life estate
in favour of his wife with reversion to his blood
relatives - Validity of bequest of limited/life
estate - Dispute of pure title - Defendant's
defence based on Will never raised during
consolidation proceedings - Bar under S. 49 of
the U.P. Consolidation of Holdings Act attracted
- Suit for partition by a co-sharer not barred by
S. 49 - Revenue Court's jurisdiction to
investigate the nature and extent of the
plaintiff's right and title based on the Will barred
- Final consolidation records showing parties
recorded as bhumidhar to the extent of a half
share each - Board of Revenue committed no
error in restoring the Trial Court's decree.

HELD:
Ram Narain on 10.01.1961 executed a Will
granting a life estate to his wife, Smt. Parwati,
with reversion to his blood relatives. During
consolidation, Smt. Parwati and Ramgopal were
recorded as co-bhumidhars to the extent of half
share each in the joint khata. No objection u/s 9
of the U.P. Consolidation of Holdings Act, 1953
was filed by Ramgopal disputing the nature or
extent of Smt. Parwati's title. In 1992, Smt.
Parwati instituted a suit for partition. Ramgopal
filed a written statement disputing Smt.
Parwati's status as the lawfully wedded wife and
contending that Smt. Parwati had only a life
estate and no right to seek partition. The Trial
Court passed a preliminary decree for partition
in favour of Smt. Parwati for her half share.
Ramgopal's appeal was allowed and the suit for
partition was dismissed. The Board of Revenue
restored
the
preliminary
decree
dated
28.02.1994 passed by the Trial Court.
Held: A dispute relating to title about tenure
land covered by the ZA & LR Act, if not raised
after the issue of a notification under Section
4(1) of the CH Act, cannot, afterwards, be
raised. Section 49 of the CH Act envisages a
constructive bar to the adjudication of rights by
a Civil or Revenue Court, not limited to rights
arising out of consolidation proceedings, but the
declaration and adjudication of the rights of
tenure holders in respect of land falling in an
area, for which, a notification under Section 4(2)
of the CH Act has been issued. Court held that
under the unamended Section 169(3) of the ZA
& LR Act, a Will relating to agricultural land
executed prior to 23.08.2004 did not require
compulsory
registration.
The
Will
dated
10.01.1961, therefore, was not invalid merely
because it was unregistered. It was held that a
bhumidhar
with
transferable
rights
can
bequeath a limited estate or life interest in
favour of a legatee, and such a bequest was
legally permissible under the ZA & LR Act. The
Court
noted
that
during
consolidation
proceedings, Smt. Parwati and Ramgopal were
recorded as co-bhumidhars to the extent of half
share each in the khata. It was held that the
defendant, who propounds the Will to establish
a life estate for the plaintiff, could and ought to
have raised the plea that the plaintiff had only a
life estate under the Will during consolidation
proceedings, as it raised a dispute as to the
nature and extent of title. Having failed to do
so, the defendant was barred by Section 49 of
the CH Act from raising such a title dispute in
subsequent partition proceedings. The suit for
partition of the parties' shares in accordance
with
the
determination
made
by
the
Consolidation Authorities can proceed and a
final decree too can be passed in accordance
with the preliminary decree. The Court held
that the Board of Revenue committed no error
in restoring the preliminary decree of the Trial
Court granting partition on the basis of the
shares determined during consolidation. The
High Court dismissed the writ petition. (Paras
19, 24, 28 & 34) (E-5)

CASE LAW CITED
Sobhnath Dube; In the Matter of the Goods of
Late Kashinath Dube, 2015 SCC OnLine All 7548
: 2015 (128) RD 507;
12 All. Ram Gopal & Ors. Vs. Smt. Parvati & Ors.
581
Jahan Singh v. State of U.P., AIR 2017 All 247;
Pramila Tiwari v. Anil Kumar Mishra, AIR 2024
All 227;
Jagan Singh (Dead) through LRs v. Dhanwanti,
(2012) 2 SCC 628;
Ram Briksha v. Dy. Director of Consolidation,
2017 SCC OnLine All 4417 : 2017 (6) ALJ 610;
Rishal Singh v. Board of Revenue, 1969 SCC
OnLine All 394 : 1970 RD 413;
Rakesh Kumar Minor u/g Smt. Shanti Devi v.
Board of Revenue, 1972 SCC OnLine All 81 :
1972 RD 326;
Shri Ram v. Deputy Director of Consolidation,
2011 SCC OnLine All 417 : (2011) 112 RD 734;
Madan Mohan Mishra v. Chandrika Pandey
(Dead) by Lrs., (2009) 3 SCC 720;

List of Acts
Constitution of India;
U.P. Zamindari Abolition and Land Reforms Act,
1950;
U.P. Consolidation of Holdings Act, 1953;
Registration Act, 1908.

List of Keyword
Partition; Will; Registration of Will; Agricultural
land; Section 169(3) U.P. Zamindari Abolition
and Land Reforms Act, 1950; Life estate;
Bhumidhar
with
transferable
rights;
Consolidation proceedings; Section 49 U.P.
Consolidation of Holdings Act, 1953; Bar of
jurisdiction; Question of title; Defence based on
Will; Co-sharer; Moiety; Final consolidation
records; Restoration of Trial Court decree.

CASE ARISING FROM
Challenge to the judgment passed by the
Board of Revenue, U.P., allowing the
second appeal, setting aside the appellate
decree of the Additional Commissioner
and restoring the preliminary decree
passed by the Sub-Divisional Officer in a
suit for partition under Section 176 of the
U.P.
Zamindari
Abolition
and
Land
Reforms Act, 1950.

Appearances for Parties
Advs For Petitioner: Shashi Kant Shukla
Advs For Respondents: Udayan Nandan (for
respondent No. 1/1); Sanjay Kumar Ray
(Standing Counsel for respondents Nos. 3 & 4)
(Delivered by Hon'ble J.J. Munir, J.)

This is a defendant's writ petition
arising out of a suit for partition under
Section 176 of the Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950 (for
short, 'ZA & LR Act').

2. The suit for partition was instituted
by Smt. Parwati, widow of Ram Narain,
against Ramgopal, her late husband's
brother, claiming a half share in the suit
property (hereinafter referred to as 'land in
dispute') on foot of a bhumidhari right that
she inherited from her late husband, Ram
Narain, upon his demise. She sought a
decree of partition and separate possession
of her half share. A written statement was
filed by Ramgopal before the SubDivisional Officer, where the suit has been
instituted, resisting the plaintiff's claim on
ground that Parwati was not Ram Narain's
lawfully wedded wife, and for the said
reason, through a devise made by Ram
Narain, Parwati was given a life estate
alone in the land in dispute. She had no
right
to
seek
partition
or
separate
possession. A copy of Ram Narain's Will
dated 10.01.1961 was filed along with the
written statement and a typewritten copy
thereof has been annexed to the writ
petition.

3. The Trial Court framed the
following issues (translated into English
from Hindi) :

(1) Whether the plaintiff, Parwati,
and defendant No.1, Ramgopal, are cotenure holder bhumidhar in possession of
the land in dispute?

(2) What are the shares of the
plaintiff, Parwati, and defendant No.2 (sic),
Ramgopal, in the disputed land?
582 INDIAN LAW REPORTS ALLAHABAD SERIES

(3) To what relief is the plaintiff
entitled?

(4) Whether the plaintiff has the
right to seek partition?

(5) Whether the plaintiff has the
right to alienate the land in dispute by Gift,
Will, Mortgage etc.?

(6) Whether the defendant's case
is
barred
by
Section
49
of
the
Consolidation of Holdings Act?

(7)
Whether
the
document
mentioned in paragraph No.14 of the W.S.
is forged and illegal?

4. The Trial Court answered Issue
No.1 in the affirmative; Issue No.2, holding
that the plaintiff and the defendant had a
half
share,
as
recorded
during
the
consolidation proceedings; Issues Nos.3
and 4 have been decided together in terms
of the remark that the plaintiff is a recorded
co-tenure holder and there is nothing
written in the Will about partition. The
answer to the issues is not explicit; Issue
No.5 has been answered holding that
since the plaintiff is a bhumidhar with
transferable rights, she has every right to
alienate, but if the Will were proved, the
right would end; Issue No.6 has been
answered, holding that the suit is not
barred by Section 49 of the Uttar
Pradesh Consolidation of Holdings Act,
1953 (for short, 'the CH Act'); and,
Issue No.7 has been decided, holding
that though it was not necessary for the
Will to be registered, but the fact that for
33 years, after its execution, no rights
were asserted on the basis thereof,
renders it suspicious. There is a remark
to the effect also in answering this issue
that there is nothing said about division
of crops. The Trial Court held that the
plaintiff had a half share in the land in
dispute and passed a preliminary decree
to that effect on 28.02.1994.

5. The defendant, Ramgopal, carried
an appeal to the Commissioner, Kanpur
Division, Kanpur from the preliminary
decree passed by the Sub-Divisional
Officer. This appeal came up for hearing
before
the
Additional
Commissioner,
Kanpur Division, Kanpur, being Appeal
No.127 of 1994 on 20.01.1995. It was
allowed by the Additional Commissioner
and the suit dismissed.

6. The plaintiff carried a second appeal
to the Board of Revenue, U.P. at
Allahabad, which was registered as Second
Appeal No.35 of 1994-95 before the Board.
The Board, by the judgment and decree
impugned dated 14.01.2016, allowed the
second appeal, set aside the Additional
Commissioner's decree and restored that of
the Trial Court.

7. Aggrieved, this writ petition has
been instituted by the heirs and LRs of the
defendant, Ramgopal under Article 226 of
the Constitution. It need be mentioned here
that Ramgopal, the original defendant,
apparently passed away sometimes after the
judgment in the second appeal was
delivered or after it was reserved by the
Board, and before the institution of this
writ petition. His heirs and LRs have,
therefore, instituted this writ petition,
representing his estate and are arrayed as
petitioner Nos.1/1 to 1/5/2. The heirs of
Ramgopal, who have actually instituted this
writ petition in his right, are seven in
number and shall be collectively referred to
as 'the defendant', unless the context
requires otherwise.

8. The plaintiff, Parwati, passed away
pending the second appeal before the Board
and her heir and LR, Smt. Kamla
Kushwaha, was substituted on record.
Here, Smt. Parwati's estate is represented
12 All. Ram Gopal & Ors. Vs. Smt. Parvati & Ors.
583
by
respondent
Nos.1/1,
Smt.
Kamla
Kushwaha, her LR, heir and daughter.
Parwati, represented by her L.R., shall be
called, "the plaintiff".

9. Heard Mr. Shashi Kant Shukla,
learned Counsel for the defendant, Mr.
Udayan
Nandan,
learned
Counsel
appearing on behalf of the plaintiff and Mr.
Sanjay Kumar Ray, learned Standing
Counsel appearing on behalf of respondents
Nos. 3 and 4, representing the State. No
one appeared for the Gaon Sabha.

10. Upon hearing learned Counsel for
parties, what we find is that the remark in
the judgment of the Board of Revenue that
the Will was not registered tends to show
that the Board overturned the judgment of
the Additional Commissioner on the
premise that an unregistered Will created
no rights in favour of the legatee.

11. A reading of the provision to
Section 169 of the ZA & LR Act shows
that under the unamended provisions of
Section 169(3) of the ZA & LR Act, all that
was required is that the Will had to be
made in writing and attested by two
witnesses. When we say unamended
here, we mean to refer to Section
169(3) of the ZA & LR Act as it stood
before the amendment made by U.P.
Act No. 27 of 2004 with effect from
23.08.2004. It was with effect from
23.08.2004 that U.P. Act No. 27 of
2004
amended
sub-Section
(3)
of
Section 169 of the ZA & LR Act to
provide
that
a
Will
relating
to
agricultural land governed by the said
Act had to be in writing, attested by two
witnesses
and
registered.
The
requirement of registration, therefore,
came in with effect from 23.08.2004.
There was no such requirement earlier.

12. In the present case, the Will is a
document
dated
10.01.1961
and
the
testator, Ram Narayan son of Lallu died
some time before 28.07.1992, as the written
statement was filed on that date in the suit
before the Sub-Divisional Officer, taking a
defence based on the Will of 1961.

13. The difference of opinion between
the two learned Judges of this Court In reSobhnath Dube; In the Matter of the
Goods of Late Kashinath Dube, 2015
SCC OnLine All 7548: 2015 (128) RD
507 on one hand, and, that in Jahan Singh
v. State of U.P. and others, AIR 2017 All
247, on the other, about the retrospective
application of the amended provisions of
Section 169(3) of the ZA & LR Act to a
will executed before the amendment, but
which takes effect later after U.P. Act
No.27 of 2004 came into force, would not
be at all relevant in this case. The reason is
that the Will was one dated 10.09.1961 and
the
testator
died
some
time
before
28.07.1992. The result would be that the
Will would take effect before U.P. At No.
27 of 2004 came into effect on 23.08.2004.
Therefore, so far as the Will, that is subject
matter of action here, is concerned, there
can be no cavil that it never required
compulsory registration by dint of the
amended provisions of sub-Section (3) of
Section 169 of the ZA & LR Act.

14. Much later, a Division Bench of
this Court in Pramila Tiwari v. Anil Kumar
Mishra, AIR 2024 All 227 held the
provisions of Section 169(3) of the ZA &
LR Act, as amended by U.P. Act No.27 of
2004, to the extent these provided for
compulsory registration of wills relating to
agricultural land, void on ground that these
were repugnant to Section 17 read with
Section 40 of the Registration Act, 1908, a
central legislation. Therefore, on any view
584 INDIAN LAW REPORTS ALLAHABAD SERIES
of the law applicable, the Will, subject
matter of action here, is not required to be
compulsorily registered. The Board of
Revenue in proceeding on the premise that
the unregistered Will here is not legally
enforceable, a finding that has been
recorded rather in the passing and in words
lacking certitude, cannot be countenanced.
The Will dated 10.01.1961 does not require
compulsory registration by dint of Section
169(3) of the Act of 1950. It is held,
accordingly.

15. Admittedly, the testator in this
case Ram Narain, a bhumidhar with
transferable rights, could devise a life estate
in favour of his wife, Smt. Parwati with a
reversion to his blood relatives. The
principle that a bhumidhar can bequeath his
bhumidhari rights by Will, granting a
limited right and a lifetime interest to the
legatee in view of the law laid down by the
Supreme Court in Jagan Singh (Dead)
through LRs v. Dhanwanti and another,
(2012) 2 SCC 628, is well settled. The Will
in this case, propounded by the defendant,
if proved in accordance with law, cannot be
held an invalid bequest on ground that it
grants a lifetime estate alone to the legatee,
Ram Narain's widow, under Section 169(3)
of the ZA & LR Act.

16. This brings us to the most
important question, whether the defendant's
defence in the suit that the Will dated
10.01.1961, being one granting a life estate
to the plaintiff, Parwati, did not entitle her
to seek partition, was open to be
determined by the Revenue Court, the said
claim
never
being
raised
during
consolidation proceedings held under the
CH Act. There is no cavil that there were
consolidation operations in the village that
went through full course and came to be
de-notified under Section 52 of the CH Act
before the suit was instituted. In those
proceedings, the plaintiff, Parwati, was
recorded
in
the
khata,
along
with
Ramgopal, as bhumidhar to the extent of a
half share or a moity.

17. In the supplementary counter
affidavit, a copy of the CH Form 41,
relating to Mauza Tajpur, has been filed as
Annexure No. SCA-1. In the joint khata of
parties, Parwati widow of Ram Narain and
Ramgopal son of Lallu, are recorded in
Column 8 as bhumidhar to the extent of a
half share each. Final consolidation forms
were drawn on this basis. CH Form 41 and
CH Form 45 are also annexed to the
supplementary counter affidavit. A perusal
of CH Form 45 again shows that in the
joint khata of parties, Parwati widow of
Ram Narain and Ramgopal son of Lallu are
recorded as co-sharers. The two apparently
hold a half share each in the khata. In the
six yearly khatauni for the fasli years 13891394 again Parwati widow of Ram Narain
and Ramgopal son of Lallu are recorded as
bhumidhar alone, giving rise to the
inference that the two of them hold a half
share in the khata that Parwati inherited
from her husband, Ram Narain.

18. It is true that Ram Narain inherited
the land in dispute from his father, Lallu,
along with his brothers. There is no concept
of a Joint Hindu family property in tenure
land governed by the ZA & LR Act. The
ZA & LR Act predicates a uniform civil
code for all citizens and, therefore, a
bhumidhar, upon the demise of his
predecessor-in-title,
succeeds
to
the
bhumidhari as his own property and not
one that is a Joint Hindu family property or
coparcenary.
At
the
same
time,
a
bhumidhar, who has inherited property
from his predecessors, can devise by Will a
limited estate, as claimed to be done in the
12 All. Ram Gopal & Ors. Vs. Smt. Parvati & Ors.
585
present case, in Parwati's favour, by Ram
Narain.

19. The question that then arises is, if
during consolidation operations, Parwati,
who was admittedly recorded as a co-sharer
along with her deceased husband's brother,
Ramgopal, in the khata, was not challenged
about her right by filing an objection under
Section 9 of the CH Act, questioning her
rights as a bhumidhar recorded to the extent
of a half share by Ramgopal, can Ramgopal
now say that she has a life estate alone
under Ram Narain's Will, when she seeks
partition. There is admittedly nothing to
show in the rights recorded during
consolidation,
or
right
through
the
proceedings under the CH Act, until the
drawing up of the final consolidation
records that might suggest that Parwati had
a life estate alone as a bhumidhar.

20. It was submitted with formidable
force by Mr. Shashi Kant Shukla that a
co-sharer during consolidation, who is at
peace with others, would not oblige those
others to file objections under Section 9
of the CH Act and seek partition of the
khata upon pain of loosing their right to
partition on account of the bar under
Section 49 of the CH Act. The reason is,
as Mr. Shukla rightly submits, that cosharers, who are living at peace during
consolidation proceedings, would not
loose their right to seek partition at a later
point of time, when the animus to
separate comes into existence. A partition
suit by one of the co-sharers, who have
remained joint with their share recorded
during consolidation proceedings, until
denotification under Section 52 of the CH
Act, would have a right at any time to
seek partition and sue for it. We agree
that a suit for partition by a co-sharer of a
joint
holding,
that
has
suffered
consolidation under the CH Act, would
not be barred by Section 49.

21. In support of his submission, Mr.
Shukla has placed reliance upon a Bench
decision of this Court in Ram Briksha v.
Dy. Director of Consolidation and
others, 2017 SCC OnLine All 4417:
2017 (6) ALJ 610. Reference was made
to a Larger Bench by a learned Single
Judge, where three questions, directly
bearing on the issue, were involved.
These questions were answered in Ram
Briksha (supra) in the following terms :

Issue No. I

63. 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
(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?

A. Because of the words "could or
ought to have been taken" in latter part of
Section 49 of the Act, same does not
compulsorily force the co-sharers, who are
living jointly, peacefully and have no
grievance against their father/brother/cosharer
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
586 INDIAN LAW REPORTS ALLAHABAD SERIES
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
incumbent holding the property in the
representative capacity, men 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

64. 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?

A. 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

65. 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,
mere had been no ouster from joint
property?

A. 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.

22. The position of the law, which
Mr. Shukla emphasizes, is well settled
and he is right in stating the principle
that he urges, but the question is that
this is not a case, where the plaintiff
has been non-suited because she did
not file objections under Section 9 of
the CH Act. There was not even an
issue, if her suit seeking partition is
barred by Section 49 of the CH Act. To
the contrary, Issue No.6, framed here,
is not about the suit for partition being
barred
by
Section
49,
but
the
defendant's defence, based on the Will,
being
barred
under
the
aforesaid
provision.

23. There is little cavil that if
Parwati and Ramgopal did not file
objections under Section 9 of the CH
Act while the consolidation operations
were
current
and
before
the
denotification under Section 52, because
they did not want to partition at that
time, the plaintiff's cause of action to
sue for partition, when one of the cosharers intended to separate, cannot be
held barred by Section 49. But, this is a
case where applying these principles are
besides the point. It is not a simple case
where parties have a moiety in the joint
khata,
which
the
plaintiff
wants
partitioned.
12 All. Ram Gopal & Ors. Vs. Smt. Parvati & Ors.
587

24. To the contrary, there is an
underlying dispute of pure title between
parties, which has necessarily arisen during
consolidation, but not objected to by the
defendant. That dispute is that whereas the
plaintiff says that she has inherited intestate
a half share in the khata, being her
deceased husband's share, Ramgopal, the
defendant says that Parwati does not have
an absolute bhumidhari estate to the extent
of the moiety that she claims. He asserts
that it is not an estate that she has inherited
intestate from her husband, but one taken
under the Will dated 10.01.1961. The Will
has given her a life estate alone, as
distinguished
from
an
absolute
and
unlimited
bhumidhari.
The
dispute,
therefore, is not about the plaintiff's moiety
in the joint khata, but the nature of her
right, to wit, whether it is unlimited and
absolute or just a life estate, which she
cannot seek partition of or assign or
bequeath.

25. Now, this is a pure question of
title, which had to be raised during
consolidation proceedings by the party,
who thought that the nature of the other's
estate was incorrectly recorded by the
Consolidation Authorities. Even if one
of
the
parties
thought
that
the
Consolidation Authorities did not err in
recording the nature of their respective
estates, it has to be seen the way the
Consolidation
Authorities
have
recorded the rights or shares of both
parties, vis-a-vis the nature of their
right and title in the khata. A plain
reading of CH Form-11, which comes at
a quite late stage of the consolidation
proceedings, in this case shows that in
the said CH Form, as already noticed,
the plaintiff, Parwati, and defendant,
Ramgopal, were shown in Column-8 as
shareholders of a moiety.

26. Column 8 in CH Form-11 carries
the following particulars, according to the
specified form in the rules : The name of
the tenure holder with details of shares if
partitioned on the basis of shares. The entry
of a half share in Column 8 for the plaintiff
and the defendant clearly shows that the
two of them held a moiety each, though
they might not have decided to partition by
metes and bounds. That decision was taken
much later, when the suit was filed.

27. However, in the nature of
consolidation proceedings, title of a person
has to be recorded. It is at the cynosure of
these proceedings, quite apart from the
creation of compact chak. It is for this
reason that all issues of title, amongst the
chak
holders,
that
arise
during
consolidation,
have
been
entrusted
exclusively to be decided under the CH
Act, be it Section 9-A or 12 thereof. The
same position about the plaintiff and the
defendant holding a moiety each in the
khata is reflected in C.H. Form 45, again,
subject to the right of the parties to seek a
partition of their share, whenever they
willed.

28.
The
jurisdiction
is
all
encompassing. It is also much settled for a
principle that a dispute relating to title
about tenure land covered by the ZA & LR
Act, if not raised after the issue of a
notification under Section 4(1) of the CH
Act, cannot, afterwards, be raised. Section
49 of the CH Act envisages a constructive
bar to the adjudication of rights by a Civil
or Revenue Court, not limited to rights
arising out of consolidation proceedings,
but the declaration and adjudication of the
rights of tenure holders in respect of land
falling in an area, for which, a notification
under Section 4(2) of the CH Act has been
issued. In fact, in the scheme of things, the
588 INDIAN LAW REPORTS ALLAHABAD SERIES
CH Act envisages a final settlement of all
rights relating to land of a tenure holder,
which
is
subject
to
consolidation
proceedings, also constructively, if not
raised, before proceedings for carvation of
compact chak commence.

29. One of the early and most eloquent
authorities on the point is Rishal Singh v.
Board of Revenue, U.P., Alld. and
others, 1969 SCC OnLine All 394 : 1970
RD 413. In Rishal Singh (supra), it was
held by Hari Swarup, J. :

5. Section 49 of the U.P.
Consolidation of Holdings Act/hereinafter
referred to as the Act) provides that
notwithstanding anything contained in any
other law for the time being in force the
declaration of adjudication of rights of
tenure-holders in respect of land lying
within an area for which a notification has
been
issued
under
Section
4
or
adjudication of any 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 right in such land or with respect
to any other matters for which the
proceeding could or ought to have been
taken under this Act'. Interpreting this
section along with Section 5 of the Act, the
Supreme Court in the case of Ram Adhar
Singh v. Ram Roop Singh ( [1968 A.W.R.
14 SC.] ) held: 'Section 49 excludes the
jurisdiction of Civil Courts to entertain any
suit or proceeding with respect to rights in
respect of lands covered by the notification,
under Section 4, or with respect to any
other matter for which a proceeding could
or ought to have been taken under the Act'.
Admittedly the opposite parties could have
taken the plea before the consolidation
authorities under Sections 9 and 9-A of the
Act to the effect that they were the exclusive
owners of the plots and that the petitioner
had no right therein. It is also not denied
that no such action was taken. The
adjudication on this point is therefore,
barred by the provisions of Section 49 of
the Act. Section 9-A(1)(ii) provides that
where no objections are filed the Asstt.
Consolidation Officer shall, after making
such enquiry, as he may deem necessary,
correct the mistakes. Section 10 of the Act
deals
with
the
preparation
and
maintenance of the revised annual register
in accordance with the order passed under
Section 9-A of the Act. Any order passed
under Section 9-A of the Act is appealable
under Section 11 of the Act and the same
becomes final and not liable to be
questioned in any court of law. If no appeal
is filed the order of the Asstt. Consolidation
Officer remains final. Subjection (3) of
Section 9-A provides that the Asstt.
Consolidation Officer while acting under
sub-section (1) of Section 9-A of the Act
shall be deemed to be a court of competent
jurisdiction
notwithstanding
anything
contained in any other law. It may be that
the Asstt. Consolidation Officer is not a
court in the strict sense of the term but for
the purposes of determining the rights of
the parties to the land which is brought
under consolidation he is deemed to be a
court and any order passed by him
directing the making of corrections or not
ordering any corrections in the event it is
not necessary will be deemed to be final
and not questionable in any civil or
revenue court. This is the effect of Section
49 read with Section 5 of the Act.

6. After the proceedings under
Section 9-A of the Act are over, the land
which is subject to consolidation scheme is
brought into the common consolidation
12 All. Ram Gopal & Ors. Vs. Smt. Parvati & Ors.
589
pool and thereafter the land distributed to
various persons who have contributed to
the pool. The Chaks are thereafter formed
and proceedings are taken for finalisation
of the chaks. After the Chaks are ultimately
formed information is given by form No. 25
and thereafter the entries are made in the
revenue records under Section 27 of the Act
and form No. 45 is prepared to show the
names of the parties and the consolidated
areas which they have been allotted. After
the consolidation comes to an end the
rights of the parties get crystallised and
new areas get allotted to the Chak-holders.
These also become final.

30. In Rakesh Kumar Minor u/g
Smt. Shanti Devi v. Board of Revenue,
U.P. and others, 1972 SCC OnLine All
81 : 1972 RD 326, it was held by Satish
Chandra, J. (as the learned Chief Justice
then was), speaking for the Division :

6. .... Sec. 49 by its first clause
declares that adjudication of rights of
tenure-holders shall be done in accordance
with the provisions of the Consolidation of
Holdings Act while the second clause
thereof debars civil or revenue court from
entertaining any suit or proceeding with
respect to rights which could or ought to
have been so adjudicated. The defence in
the present suit raises a question as to
adjudication of right with respect to the
plots in dispute. Such a defence cannot be
entertained by the revenue court if "a
proceeding could or ought to have been
taken under the Act" with respect to the
rights now sought to be questioned.

7.
When
Consolidation
proceedings commenced the plaintiff was
entered as a co-tenant. The defendant did
not say that they were unaware of the
consolidation proceedings or the state of
entries at that time. Har Swarup had died
in
1936.
The
cause
of
action
for
adjudication of the question whether his
widow inherited any share in the family
properties arose on his death. After his
death the defendant could have instituted a
suit for the adjudication of the plaintiff's
title. On commencement of Consolidation
proceedings he could have raised a dispute
about it by filing an objection under Sec. 9
of the Act. There is nothing upon which it
could be held that the defendant could not
have taken proceedings under the Act for
the adjudication of the plaintiff's right or
title. If he could, then Sec. 49 bars the civil
or Revenue court from entertaining such a
question of title.

8. The plaintiff's suit is of course
not barred because it proceeds to enforce
the
entries
made
in
Consolidation
proceedings. The cause of action for the
present suit arose after the closure of the
consolidation proceedings, as is apparent
from the plaint. The plaint is not asking for
any disturbance of the entries made during
the Consolidation operations. It is the
defence
which
raises
questions
the
acceptance of which will mean the setting
aside and cancellation or ignorance of the
entries made in consolidation proceedings;
and that is, under the circumstance of the
case, not permissible. Sec. 49 was a clear
bar to this plea in defence.

31. Much later in the day, in Shri
Ram and others v. Deputy Director of
Consolidation, Allahabad and others,
2011 SCC OnLine All 417 : (2011) 112
RD 734, one of the questions, that were
referred for consideration to the Division
Bench by a learned Single Judge, was to
the following effect :

(IV) Whether the provisions of the
U.P. Consolidation of Holdings Act have
an over riding effect over all other Acts for
590 INDIAN LAW REPORTS ALLAHABAD SERIES
the time being in force keeping in view the
provisions of Section 49 and have the
exclusive jurisdiction to decide right, title
and interest of claimants relating to land
tenures upon a notification under Section 4
or not?

32. In answering Question No. IV, it
was opined by their Lordships of the
Division Bench in Shri Ram (supra) :

As noted above, Section 5(2) of
the Act, 1953 provides for abatement of all
proceedings for the correction of records
and every suit and proceedings in respect
of declaration of rights or interest in any
land laying in the area, or for declaration
or adjudication of any other right in regard
to which proceeding can or ought to be
taken under this Act, pending before before
any Court or authority whether of the first
instance or of appeal, reference of revision.

A plain reading of Section 49,
indicates that after the issuance of
notification under sub-section (2) of
Section 4 for declaration and adjudication
of right of tenure-holder or adjudication of
any
other
right,
the
forum
is
the
consolidation court and no Civil or
Revenue Court shall entertain any suit or
proceedings with respect to rights in such
land.