# Ram Khelawan v. Commissioner Faizabad Division & Ors

- **Citation:** (2025) 11 ILRA 957
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-11-13
- **Case number:** Writ - C No. 1002907 of 2004
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-khelawan-v-commissioner-faizabad-division-ors-54813
- **Pages:** 23

## Headnote

Whether the suit instituted under Section 229-B
of the U.P. Zamindari Abolition and Land
Reforms Act, 1950 claiming co-bhumidhari rights
alleging acquisition of land by father of
petitioner as Karta of joint Hindu family was
barred by Section 49 of the U.P. Consolidation of
Holdings Act, 1953.

HEADNOTE
U.P. Zamindari Abolition and Land Reforms Act,
1950 - S.229-B - U.P. Consolidation of Holdings
Act, 1953 - s.49 - Suit for declaration of cobhumidhari rights filed by respondents alleging
acquisition of land by father of petitioner as Karta
of joint Hindu family - Assistant Collector
dismissed suit holding it barred by s.49 of the Act
of 1953 as no objection was raised during
consolidation and land was acquired individually -
Commissioner allowed appeal holding s.49 not
applicable - Second appeal dismissed by Board of
Revenue -
HELD:
Bar contained in s.49 of the Act of 1953 is wide
and comprehensive and bars declaration and
adjudication of rights of tenure-holders and any
other right which could or ought to have been
raised in consolidation proceedings - 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 res-judicata as well as principles
of constructive resjudicata - No objection having
been raised during consolidation, suit under s.229-B
was barred - Land acquired by father of petitioner
personally and not from joint family funds - No
evidence produced to establish joint family acquisition
- Respondents never objected during lifetime of
tenure-holder or at the time of mutation - Reliance
upon forged compromise shows malafides -
Commissioner and Board of Revenue reversed a wellreasoned trial court judgment without discussing
findings or considering documentary evidence
including patta, mutation entries and revenue records
- Impugned orders arbitrary, violative of s.49 of the
Act of 1953 and offending Article 14 of the
Constitution - Impugned orders quashed - Writ
petition allowed. [Paras 20-34] (E-5)

CASE LAW CITED
Narender Singh v. Jai Bhagwan, JT 2004 (10) SC
345;
Sita Ram v. Chhota Bhondey, 1990 RD SC 439;
Ram Briksha v. Deputy Director of Consolidation,
2017 (6) ADJ 356;
Raghubar Dayal v. D.D.C./Addl. D.M., Sitapur,
2017 (134) RD 7;
Sriram v. Deputy Director of Consolidation, 2016
(133) RD 785;
Karbalai Begum v. Mohd. Sayeed, AIR 1981 SC
77

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

List of Keyword
Section 49 bar; Consolidation proceedings; Suit
under Section 229-B; Co-bhumidhari rights;
Joint
Hindu
family
property;
Individual
acquisition;
Forged
compromise;
Mutation
958 INDIAN LAW REPORTS ALLAHABAD SERIES
entries; Res judicata; Constructive res judicata;
Arbitrary orders.

CASE ARISING FROM
From the judgments and orders dated
26.07.1995 passed by the Commissioner,
Faizabad Division and 19.06.1997 passed
by the Board of Revenue, U.P.

Appearances for Parties
Advs For Petitioner: R.S. Pande, Sr. Adv., Ankit
Pande.
Advs For Respondents: C.S.C., N.K. Seth, R.K.
Srivastava, Sudeep Seth.

## Text

_Characters 0–39,231 of 76,050. This is a partial read: ask again with offset=39231 for what follows._

11 All. Ram Khelawan Vs. Commissioner Faizabad Division & Ors.
957
----------
(2025) 11 ILRA 957
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.11.2025

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ - C No. 1002907 of 2004

Ram Khelawan ...Petitioner
Versus
Commissioner Faizabad Division & Ors.
 ...Respondents

Counsel for the Petitioner:
R.S. Pande, Ankit Pande

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

ISSUE FOR CONSIDERATION
Whether the suit instituted under Section 229-B
of the U.P. Zamindari Abolition and Land
Reforms Act, 1950 claiming co-bhumidhari rights
alleging acquisition of land by father of
petitioner as Karta of joint Hindu family was
barred by Section 49 of the U.P. Consolidation of
Holdings Act, 1953.

HEADNOTE
U.P. Zamindari Abolition and Land Reforms Act,
1950 - S.229-B - U.P. Consolidation of Holdings
Act, 1953 - s.49 - Suit for declaration of cobhumidhari rights filed by respondents alleging
acquisition of land by father of petitioner as Karta
of joint Hindu family - Assistant Collector
dismissed suit holding it barred by s.49 of the Act
of 1953 as no objection was raised during
consolidation and land was acquired individually -
Commissioner allowed appeal holding s.49 not
applicable - Second appeal dismissed by Board of
Revenue -
HELD:
Bar contained in s.49 of the Act of 1953 is wide
and comprehensive and bars declaration and
adjudication of rights of tenure-holders and any
other right which could or ought to have been
raised in consolidation proceedings - 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 res-judicata as well as principles
of constructive resjudicata - No objection having
been raised during consolidation, suit under s.229-B
was barred - Land acquired by father of petitioner
personally and not from joint family funds - No
evidence produced to establish joint family acquisition
- Respondents never objected during lifetime of
tenure-holder or at the time of mutation - Reliance
upon forged compromise shows malafides -
Commissioner and Board of Revenue reversed a wellreasoned trial court judgment without discussing
findings or considering documentary evidence
including patta, mutation entries and revenue records
- Impugned orders arbitrary, violative of s.49 of the
Act of 1953 and offending Article 14 of the
Constitution - Impugned orders quashed - Writ
petition allowed. [Paras 20-34] (E-5)

CASE LAW CITED
Narender Singh v. Jai Bhagwan, JT 2004 (10) SC
345;
Sita Ram v. Chhota Bhondey, 1990 RD SC 439;
Ram Briksha v. Deputy Director of Consolidation,
2017 (6) ADJ 356;
Raghubar Dayal v. D.D.C./Addl. D.M., Sitapur,
2017 (134) RD 7;
Sriram v. Deputy Director of Consolidation, 2016
(133) RD 785;
Karbalai Begum v. Mohd. Sayeed, AIR 1981 SC
77

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

List of Keyword
Section 49 bar; Consolidation proceedings; Suit
under Section 229-B; Co-bhumidhari rights;
Joint
Hindu
family
property;
Individual
acquisition;
Forged
compromise;
Mutation
958 INDIAN LAW REPORTS ALLAHABAD SERIES
entries; Res judicata; Constructive res judicata;
Arbitrary orders.

CASE ARISING FROM
From the judgments and orders dated
26.07.1995 passed by the Commissioner,
Faizabad Division and 19.06.1997 passed
by the Board of Revenue, U.P.

Appearances for Parties
Advs For Petitioner: R.S. Pande, Sr. Adv., Ankit
Pande.
Advs For Respondents: C.S.C., N.K. Seth, R.K.
Srivastava, Sudeep Seth.

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Sri R.S. Pande, learned
Senior Advocate assisted by Sri Virendra
Bhatt, learned counsel for the petitioner and
learned Standing Counsel for the Staterespondent.

2. By means of the present writ
petition, the petitioner has prayed for
issuance of a writ in the nature of Certiorari
quashing the judgment and order dated
26.7.1995 passed by opposite party no.1
contained in Annexure.6 and judgment and
order dated 19.6.1997 passed by opposite
party no.2 contained in Annexure No.11.

3. Facts in brief are that the
petitioners father Buddhu was granted a
patta on 10.06.1947 by Raja Ayodhya
Estate in respect of Plot No. 231/90, area
5 bigha. His name was duly recorded in
the revenue records. After Buddhus
death in 1976, the petitioner being his
sole heir was mutated in the revenue
records and is in peaceful possession of
the land.

4. Respondent Nos. 3 & 4 filed a suit
under Section 229-B U.P.Z.A. & L.R. Act
claiming co-bhumidhari rights, alleging
that Buddhu had acquired the land in a
representative capacity as Karta of the
joint Hindu family.

5. The Assistant Collector dismissed
the suit on 21.02.1986 holding that the
claim was barred by Section 49 of U.P.
Consolidation of Holdings Act, as no
objection was filed during consolidation.
The land was acquired by Buddhu
individually, not from joint family funds.

6. Thereafter, the Commissioner,
Faizabad Division, Faizabad allowed the
appeal on 26.07.1995, setting aside trial
court judgment, holding that Section 49
not applicable.

7. Second Appeal filed before the
Board of Revenue, U.P. was dismissed on
19.06.1997, affirming Commissioners
order.

8. Submission of learned counsel for
the petitioner is that meanwhile, opposite
parties nos. 3 & 4 fraudulently procured a
forged compromise before the Naib
Tehsildar in 1991 to get their names
entered in revenue records. This was set
aside upon petitioners application, and
their subsequent appeals and revisions
were dismissed.

9. Submission of learned counsel for
the petitioner is that bar of Section 49 has
been ignored since no objection was raised
during consolidation, the suit under Section
229-B is barred.

10. It is further submitted that the land
was acquired by Buddhu personally. No
evidence has been produced by opposite
parties to prove joint family acquisition.

11. Learned counsel for the petitioner
further submitted that the respondents
11 All. Ram Khelawan Vs. Commissioner Faizabad Division & Ors.
959
never objected during Buddhus lifetime
or at the time of mutation after his death.
Their reliance on a forged compromise
shows malafides.

12. It is submitted that the impugned
orders are arbitrary and non speaking. The
Commissioner and Board of Revenue
reversed a well-reasoned trial court judgment
without discussing findings or considering
documentary evidence such as the patta,
mutation entries, and revenue records.

13. Submission of learned counsel for
the petitioner is that the impugned orders
are arbitrary, violative of Section 49 U.P.
Consolidation of Holdings Act and offend
Article 14 of the Constitution of India.

14. In support of the submission
advanced, learned counsel for the petitioner
placed reliance upon the judgments, which
are as under :-

(i) Narender Singh and others v.
Jai Bhgwan and others reported in JT 2004
(10) SC 345.

(ii) Sita Ram v. Chhota Bhondey
and others reported in 1990 RD SC 439.

(iii) Ram Briksha and another v.
Deputy Director of Consolidation and
others reported in 2017(6) ADJ 356.

(iv) Raghubar Dayal and another
v. D.D.C./ Addl. D.M., Sitapur reported in
2017 (134) RD 7.

(v) Sriram and others v. Deputy
Director of Consolidation and others
reported in 2016 (133) RD 785.

15. On the other hand, learned
Standing Counsel submitted that the
petitioner has got his name mutated in the
revenue record by committing fraud and
deceit and the answering opposite parties
have not been rightly granted declaration as
co-bhumdars along with the petitioner in
respect of the said plot of land.

16. Learned Standing Counsel next
submitted that the judgment and order
dated 21.2.1986 passed by the Assistant
Collector, Faizabad is wholly erroneous
and has rightly been set aside by the Court
of
Commissioner,
Faizabad
Division,
Faizabad and the Board of Revenue has
upheld the judgment and order of the
Commissioner.

17. Learned Standing Counsel next
submitted that the bar of Section 49 of the
U.P. Consolidation of Holdings Act is not
attracted on the basis of concurrent finding
of fact that the land in question was a joint
family property and the answering opposite
parties have sought a declaration as Cobhumidar.

18. Learned Standing Counsel lastly
submitted that the judgment and orders
passed by the Board of Revenue as well as
the Court of Commissioner, Faizabad
Division, Faizabad are in accordance with
law and have suitably dealt with dispute.

16. In support of his submission,
learned Standing Counsel placed reliance
upon a judgment in the case of Ram Nath
Vs. Additional Commissioner Judicial
Lucknow & others dated 30.3.2022,
passed in Writ-C No.5781 of 2016.

17.
To
resolve
the
controversy
involved in the present writ petition,
operative portion of the judgments relied
upon by learned counsel for the petitioner
is extracted hereinbelow:
960 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) Narender Singh (supra) :-

"6. Assailing the reasoning of the
First Appellate Court and the High Court,
it is argued that the plea of co-ownership in
respect of the land in suit could not have
been raised in proceedings under the Act of
1953 as there was no cause of action or
occasion for the same. In the Consolidation
proceedings an inter-se dispute between the
father and the sons never arose. It was not
a subject matter which fell within the
exclusive jurisdiction of the consolidation
authorities under the Act of 1953.

7. Learned counsel appearing for
the
respondent-plaintiff
supported
the
judgment of the First Appellate Court and
the High Court. It is submitted that the
legal question raised on behalf of the
appellant has been rightly answered
against them on the decision of this Court
inSita Ram vs. Chhota Bhondey.

8. It is not in dispute that the suit
lands were recorded exclusively in the
name of the deceased defendant who was
the father. The sons, even after becoming
major and fully aware of the execution of
the agreement of sale, did not make any
attempt to get their names jointly recorded
in the Revenue papers by appropriate
proceedings underSection 49of the Act
of 1953. The present appellants have been
brought on record of the suit only as legal
representatives after death of the original
defendant. Section 49 of the 1953 Act bars
jurisdiction of Civil Court to adjudicate
upon dispute of rights and title relating to
lands
included
in
Consolidation
Proceedings. The jurisdiction to decide
dispute of rights and title of the lands in
Consolidation
Proceedings
has
been
conferred by the Act exclusively on the
authorities under the said Act.

9. Section 49of the Act of 1953
reads thus :-

"49.
Bar
to
Civil
Court
jurisdiction.
Notwithstanding
anything
contained in any other law for the time
being in force, the declaration and
adjudication of rights of tenure-holders in
respect of land by the lying in an area, for
which a notification has been issued [under
sub-section
(2)
orSection
4],
or
adjudication of any other right arising out
of consolidation proceedings and in regard
to which a proceeding could or ought to
have been taken under this Act, shall be
done in accordance with the provisions of
this Act and no Civil or Revenue Court
shall entertain any suit or proceeding with
respect to rights in such land or with
respect to any other matters for which a
proceeding could or ought to have been
taken under this Act :

Provided that nothing in this
section shall preclude that Assistant
Collector
from
initiating
proceedings
undersection
122-Bof
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.[Emphasis supplied]

10. The learned counsel for the
respondents is right in his reply that the
lands being exclusively recorded in the
name of the father, the sons who claim joint
ownership in the lands could and ought to
have approached the authorities under the
Act for getting them jointly recorded in the
Revenue Papers. Such proceedings for
recording them as joint owners having not
been initiated under the Act of 1953, the
High Court was right in invoking bar
11 All. Ram Khelawan Vs. Commissioner Faizabad Division & Ors.
961
against such plea in the suit in accordance
withSection 49of the Act. We find that
the contention advanced and accepted by
the High Court gets full support from the
following observations of this Court in the
case ofSri Ram(supra) :-

"In the instant case respondent 1
was claiming an interest in the land lying
in the area covered by notification issued
underSection 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
behalf of himself and his other brothers.
This claim which fell within the ambit
ofSection 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 bySection 49of the Act
and the suit of the appellant was rightly
dismissed on that ground."

11. The argument that revenue
entry in the name of father should have
been treated as in representative capacity
for sons is misleading. Whether the father
was Karta and Manager of the family and
as such could be recorded in representative
capacity for all co-owners in the family was
also a question of title which fell within
exclusive jurisdiction of the authorities
under the Act.

12.
Apart
from
the
bar
undersection 49of the Act of 1953,
there is no equity in favour of defendant
and
his
Legal
Representatives.
The
jurisdiction
exercised
underSpecific
Relief Actis both legal and equitable. The
father entered into an agreement of sale
when the sons were major. In his oral
evidence, plaintiff states that one of the
sons took part in the negotiations of sale. In
this appeal, learned counsel appearing
submits that the sons were not parties to
the suit in trial court and the statement of
plaintiff against them cannot be accepted
without availability of any opportunity to
lead evidence in rebuttal.

13. It is difficult to believe that
the sons had no knowledge of the execution
of the sale agreement by their father. Even
after institution of suit, no attempt was
made by the sons to approach the
authorities under the Act of 1953 for
getting get their names recorded on the
lands
as
joint
owners.
In
such
circumstances, they cannot be heard to say
that the father was not competent to
execute the agreement of sale and it is not
binding on them."

(ii) Sita Ram (supra) :-

"From a perusal ofSection
49it is evident that declara- tion and
adjudication of rights of tenure-holders in
respect of land lying in an area for which a
notification has been issued underSection
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
provi- sions 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 inSection 49is wide
and
comprehensive.
Declaration
and
adjudication of rights of tenure-holders in
962 INDIAN LAW REPORTS ALLAHABAD SERIES
respect of land lying in the area covered by
the notification underSection 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."

(iii) Ram Briksha (supra) :-

"23.
The
bar
provided
for
underSection 49of U.P. Consolidation
of Holdings Act, 1953 has been subject
matter of interpretation before the Apex
Court time and again and in the case
ofKarbalai Begum vs. Mohd. Sayeed and
anotherAIR 1981 SC 77, a suit by a cosharer to challenge deletion of her name in
joint Khewat in consolidation proceeding
on the ground of fraud of other co-sharers
in possession has been held to be not
barred underSection 49of the Act and
suit has been held to be maintainable
where dishonest cousins, looking after the
lands of their brother's widow casted
covetous eyes on their sister-in-law's share
with deplorable design seeking to deprive
her of her legal share.

24. Apex Court in the case of Sita
Ram vs. Chotta Bhonde AIR 1991 SC 249
elaborately consideredSection 49of the
Act 1953 and therein has held that the bar
underSection 49does not come into play
in context of consolidation proceedings
itself, rather after the amendment in
question has been introduced declaration
and adjudication of rights of tenure holders
in respect of land lying in area wherein
notification has been issued undersection
4(2)and adjudication of any other rights
arising out of consolidation proceedings in
regard to which proceedings could or
ought to have been undertaken under the
Act has to be done in accordance with the
provisions of the Act only and the
jurisdiction of the Civil Courts or Revenue
Courts to entertain any suit or proceedings
with respect to the rights in such land or
with respect to any other land in which
proceedings could or ought to have been
taken under the Act have been taken away.
The claim set up by Respondent no.1 on the
basis that he is the son of Chota, brother of
Nanhu and that the lands were recorded in
the name of Nanhu in representative
capacity on behalf of himself and his other
brothers fell within the ambit ofSection
5(2)had
to
be
adjudicated
by
consolidation authorities, since it was
matter
falling
within
the
scope
of
adjudicatory
functions
assigned
to
consolidation authorities under the Act, the
jurisdiction of Civil Court to entertain the
suit in respect of said matter was expressly
barred bySection 49of the Act.

25.
The
language
used
inSection 49is wide and comprehensive.
Declaration and adjudication of rights of
tenure holders in respect of land lying in
the
area
covered
by
notification
underSection
4(2)of
the
Act
and
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 Act and would
cover interpretation of questions as to title
in respect of the said lands.

pex Court in the case of Narendra Singh
and others vs. Jai Bhagwan AIR 2005 SC
582, followed the dictum of Sita Ram
(supra)
while
upholding
the
bar
underSection 49of U.P.C.H. Act by
mentioning that land being exclusively
11 All. Ram Khelawan Vs. Commissioner Faizabad Division & Ors.
963
recorded in the name of the father, the sons
who claim joint ownership in the lands
could and ought to have approached the
authorities under the Act of 1953 for
getting them jointly recorded in revenue
papers. Such proceedings for recording
them as joint owners having not been
initiated under the 1953 Act, the High
Court was right in invoking such a plea in
the suit in accordance withSection 49of
the Act. The argument that revenue entry in
the name of father should have been treated
as in representative capacity for sons is
misleading whether the father was Karta
and Manager of family and as such could
be recorded in representative capacity for
all co-owners in the family was also a
question of title which fell within exclusive
jurisdiction of authorities under the Act.

26. The object primarily appears
to be allotting a compact area to the tenure
holders in place of their scattered plots and
this much is also reflected that with the
passage of time, the area of operation of
the aforementioned Act in question has
been enhanced by providing that all such
issues
that
can
be
answered
after
notification has been issued underSection
4(2)in reference of adjudication of rights
arising out of consolidation proceedings
be
dealt
with
at
one
forum
and
declaration and adjudication of rights of
tenure holders in respect of land lying in
the
area
covered
by
notification
underSection 4(2)of the Act and for
adjudication of any other right arising
out of consolidation proceedings.

27. A Division Bench of our
Court, in the case ofAmar Singh vs. State
of U.P.2008 (104) RD 421, while
consider the issue as to whether suit filed
was barred underSection 49of the Act,
held as follows:-

"The bar contained inSection
49contemplates bar of entertainment of
suit by a civil or revenue court in respect of
following:

(a)
the
declaration
and
adjudication of rights of tenure holders,

(b) adjudication of any other
rights
arising
out
of
consolidation
proceedings, and

(c) adjudication of any right in
regard to which a proceeding could or
ought to have been taken underU.P.
Consolidation of Holdings Act, 1953.

In view of the above, it is clear
that any adjudication done with regard to
land lying in the area in which a
notification underSection 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
underU.P. Consolidation of Holdings
Act, 1953. The provision contains the
principles of res-judicata as well as
principles of constructive res-judicata.

This Court in the case of Smt.
Sudama v. Hansraj reported in 1981 R.D.
116 has again reiterated the same view.
The case of the appellant before the High
Court was that defendant abused their
position in getting their name recorded as
sole tenure holder by practising fraud on
the plaintiff by misrepresentation before the
consolidation authorities. The court took
the view that suit under Section 229-B for
declaration of the title was not barred.
Following was observed by the Court:
964 INDIAN LAW REPORTS ALLAHABAD SERIES

"The revenue court while dealing
with the suit for declaration can, on coming
to the finding that the entries made by the
consolidation authorities were procured by
fraud and were wrong, declare the
plaintiff's right as tenure holder and direct
that the entries be corrected accordingly."

Coming to the facts of the present
case, the plaintiff's case was that the plot in
dispute was purchased through registered
sale deed dated 17.3.1969 both by the
plaintiff and defendant (writ petitioner),
who was co-sharer. The case of the plaintiff
further was that it was the defendant
petitioner who was looking after the cases
in the court and the plaintiff was living in
forest being Gaderiya looking after his
goats, was duped by the defendant in
removing his name from the revenue
record. The plaintiff has also claimed that
after the sale deeds, both the parties came
in possession. A co-sharer who claim to be
in possession of the property and his name
being
not
recorded
in
consolidation
proceeding is not debarred from bringing a
suit under Section 229-B for correcting the
entries and recording his name also if
allegation is that his name was removed by
practising fraud on him. The judgment of
the Apex Court in the case ofKarbalai
Begum and Smt. Sudama(supra) fully
supports the view taken by the courts below
that suit is not barred underSection
49of the U.P. Consolidation of Holdings
Act, 1953.

There is one more aspect of the
matter, which cannot be lost sight of. The
plaintiff had come with the case that both
plaintiff and defendant purchased the
property from a third person by a common
sale deed. The defendant vaguely denied
the purchase of the property through sale
deed but has not come up with any case in
the written statement as to what was the
source of his title. The decision of the trial
court that since no case was filed in the
consolidation court, the bar will not apply
was not sufficient to overrule the objection
but the revisional court has considered the
matter in detail and has recorded positive
finding that the name of the plaintiff was
deleted
by
practising
fraud
on
the
defendant hence, the bar ofSection
49will not apply. The suit is still pending
adjudication before the court below where
final decision has to be taken after looking
into the evidence and materials which have
come on the record. At the very out set,
without even permitting the plaintiff to lead
evidence and to prove his case, throwing
out the suit on the ground that the suit is
barred bySection 49, is neither just nor
legal. In view of the foregoing discussions,
I do not find it a fit case for interference in
writ jurisdiction envisaged underArticle
226of the Constitution of India."

28. Section 49of 1953 Act under
the
scheme
of
things
provided
for
contemplates bar of entertainment of suit
by a Civil Court/Revenue Court in respect
of
right
of
tenure
holder,
however
exception has been carved out based on
judicial pronouncement that when the name
of a co-tenure holder could not be recorded
by
practising
fraud,
the
entries
in
consolidation
proceeding
can
be
challenged and bar ofSection 49would
not at all come into place since fraud
vitiates even the most solemn proceeding.

29. Once we have proceeded to
examine the parameters of the provisions
ofSection 49of the U.P. Consolidation
of Holdings Act, 1953, the larger issue i.e.
engaging our attention is as to whether an
incumbent, who otherwise has interest in
property, looses his right in the property in
11 All. Ram Khelawan Vs. Commissioner Faizabad Division & Ors.
965
question and stands ousted from the
property merely because he has not at all
participated in the proceedings in question.

In respect of right in land, the
provisions ofU.P. Zamindari Abolition
and Land Reforms Act, 1950are self
sufficient and the provisions ofU.P.
Consolidation of Holdings Act, 1953as
already quoted above had only limited role
to play in respect to consolidation of
agriculture holdings to facilitate better
quality of agriculture activities, whereas
U.P. Act No.1 of 1951 deals with all
aspects including the acquisition of interest
of intermediaries and its consequences,
vesting of land for Gaon Sabha and its
superintendence, management of control of
land
etc
by
the
Land
Management
Committee and its tenural rights, classes of
tenure, transfers, dissolution, division/
extension
of
rights,
rent,
ejectment,
conferment
of
rights
etc.U.P.
Consolidation of Holdings Actat no point
of time has ever proceeded to deal with
expansion of rights or with conferment of
rights rather under the scheme of things
provided underU.P. Consolidation of
Holdings Act, the existing rights over the
land under consolidation operation are
only to be recognized under the provisions
ofU.P.
Consolidation
of
Holdings
Actand nothing beyond the same.The
U.P. Consolidation of Holdings Actdoes
not deal with grant of authority to grant
substantive rights to a tenure holder rather
it is only empowered to recognize the
existing rights of tenure holder and in the
said direction a full-fledged mechanism has
been provided for.

30.
Landed
property
be
it
individually, jointly, or based on co-sharer
confers rights over the property in question
and the said rights in question can be
defeated or be taken away only in
accordance with law.

31. Apex Court in the case ofN.
Padmamma
vs.
S.
Ramakrishna
ReddyAIR 2008 SC 2834 held that a right
of property is a human right and also a
constitutional right and the same cannot be
taken away except in accordance with
law.Article 300-Aof the Constitution
protects such a right and as far asU.P.
Consolidation of Holdings Act, 1953is
concerned,
the
purpose
of
the
aforementioned Act is not at all to divest an
incumbent of such right keeping in view the
provisions
ofArticle
300-Aof
the
Constitution of India as its paramount
object is to see that agricultural activity is
to be carried out in one area and in case at
the point of time of constituting one
compact are, in respect of one compact
area in case anyone has to raise any issue,
he can come forward.

32. Apex Court, in the case
ofRajiv Sarin vs. State of U.K.2011 (8)
SCC 708 while considering the provisions
of U.P.Z.A.L.R. Act alongwith K.U.Z.A.L.R.
Act (Kumaun and Uttarakhand Zamindari
Abolition and Land Reforms Act 1960) took
the view where appellants' father had
acquired in the year 1945 propriety right in
an estate which comprised of large tracts of
forest spanning in and around and where
by Gazette notification dated 21.12.1977
under Section 4-A of K.U.Z.A.L.R. Act as
amended by U.P. Act No.15 of 1978, the
rights, title and interest of hissedar in
respect of forest land situated in the
specified areas ceased w.e.f. 01.01.1978
and the same were vested in the State
Government, qua the said forest land stand
taken by the State that the right, title or
interest of a hissedar could be acquired
without payment of compensation cannot
966 INDIAN LAW REPORTS ALLAHABAD SERIES
be accepted as every hissedar whose rights,
title
or
interest
are
acquired
underSection 4, shall be entitled to
receive and paid compensation. Said right
has been recognised on the unveils
ofArticle 300-Aof the Constitution, that
ensures that persons should not be
deprived of property save by authority of
law. The scrutiny of subject matter
ofU.P.C.H. Actclearly reflects that at
no point of time endeavour under the said
Act has been to deprive a person of his
property
rather
said
legislation
was
directly linked with agrarian reforms, an
enactment under Schedule VII List II Entry
18 of "land".

33. Concious of this situation,
mention has been made that right in the
property in question is not at all lost under
the provisions ofU.P. Consolidation of
Holdings Act, 1953, rather the forum to
regain the property in question is lost being
barred by operation of law.

Once a right in property cannot
be taken away except in accordance with
law asArticle 300-Aof the Constitution
protects such right, in such a situation and
in this background, the larger issue is that,
would in such a situation accepting for the
purposes of case that the rights are there
even then there is loss of forum ?

At
this
juncture,
the
two
Judgements of the Apex Court are being
looked into.

34. Apex Court in the case
ofAmar Nath vs. Kewla Devi and
another2014 AIR SCW 3110 has clearly
ruled in reference of bar being placed
underSection 49of U.P. Consolidation
of Holdings Act, 1953 that where plaintiff
claimed himself to be belonging to a
common ancestor as defendant and then
order was passed against him by playing
fraud and his right to be accorded as cobhoomidhar in revenue records cannot
stand extinguished merely because he
withdrew objection, the Apex Court took
the view that orders of consolidation officer
suffers of legal malice as there is accepted
withdrawal of plaintiff's objection without
examining
evidence
produced
as
to
ownership of land and bar underSection
49has been held to be not attracted.
Relevant extract of the said judgement
reads as follows:-

"We do not think it necessary to
remit the matter back to the High Court for
fresh consideration. We feel it is sufficient
to set aside the impugned judgment and
uphold the well-reasoned judgment of the
first appellate court where it was held that
the very fact that the trial court held that it
was proved that Amar Nath was s/o Vaij
Nath based on the evidence on record, then
automatically the court should have given
half the portion of the disputed land to the
appellant along with defendant no.1, Kewla
Devi. Instead, the trial court as well as the
Consolidation
Officer
have
passed
judgments that are bad in law as they have
failed to see that the right of the appellant
cannot simply be extinguished because of
the defendants' plea that he has entered
into a compromise. The defendants have
taken undue advantage of the appellant's
illiteracy and the Consolidation Officer has
abdicated
his
role by allowing
the
objection of the appellant to be withdrawn
and by not examining whether or not the
appellant was indeed the S/o Vaij Nath who
was the S/o Gaya. The order of the
Consolidation Officer is thus bad in law
and it has resulted in a grave miscarriage
of justice. We think it fit to restore the
judgment and decree passed by the first
11 All. Ram Khelawan Vs. Commissioner Faizabad Division & Ors.
967
appellate court wherein the court declared
that the appellant, Amar Nath is S/o Vaij
Nath who was son of Gaya thereby holding
that the order passed by the Consolidation
Officer is void and illegal and the trial
court was wrong in not quashing the order
of the Consolidation Officer and that
nowhere in the revenue record was his
name recorded and fraud was committed
against him as defendant no.1, Kewla Devi
has got her name recorded in each and
every revenue record. The judgment of the
first appellate court is legal and valid as it
is fair and keeping with the principles of
justice. The trial court in its answer to issue
nos. 1 and 10 has rightly held that Amar
Nath is S/o Vaij Nath who was undisputedly
the son of Gaya and if that fact was proved,
then we see no reason why it was not
directed for the appellant's name to be
recorded in the revenue records. The right
of the appellant over the suit schedule
property cannot be extinguished simply
because objection was withdrawn, over
which there is a cloud of doubt anyway and
also, the appellant has pleaded that he had
no
idea
about
the
order
of
the
Consolidation Officer in the first place. We
find it highly likely that fraud was
committed on him by the defendants as well
as the Consolidation Officer by not
recording his name in the revenue records
as the defendants have taken undue
advantage of his illiteracy so that the whole
property goes to the defendants.

10. Answer to point no.2:

The question whether the original
suit of the appellant was barred under
Section 49 of the UP Consolidation of Land
Holdings Act and Section 331 of the UP
Zamindari Abolition and Land Reforms
Act, we answer in the negative. The suit
was not barred under the aforesaid
provisions as the UP Zamindari Abolition
and Land Reforms Act has no jurisdiction
to deal with the subject matter. On the issue
of Section 49 of the UP Consolidation of
Land Holdings Act, we hold that the
present case is not barred under this
section as it is a suit for possession of the
suit schedule property based on title, which
is not within the jurisdiction of the
authorities under the aforesaid Act.In the
case ofSuba Singh v. Mahendra Singh &
Ors., it was observed by this Court
thatSection 49does not bar jurisdiction
of civil courts in matters of title to the land
stating that -

"9. ...The result is that the plea of bar
of
the
civil
courts'
jurisdiction
to
investigate and adjudicate upon the title to
the land or the sonship of the plaintiff has
no substance...."

Therefore, since the present case
too involves a question of ''sonship' of the
plaintiff who is the appellant herein, there
is no bar to the jurisdiction of civil courts
underSection 49of the aforesaid Act, in
deciding the question of the appellant's
right to the land he has inherited from his
father.

11. Answer to point nos.3 & 4:

The order of the Consolidation
Officer dated14.2.1970 was obtained on the
basis of fraud by the defendants. We feel
that the Consolidation Officer has also
committed fraud on the appellant, by
accepting withdrawal of his objection and
not going into the issue of whether he is the
s/o Vaij Nath or not, and therefore whether
he is the rightful heir, with a right in halfshare of the disputed property. The
Consolidation Officer has not discharged
his duties properly and keeping with law
968 INDIAN LAW REPORTS ALLAHABAD SERIES
has not given details of the objection or
why the objection was not pressed by the
appellant in his order. He has permitted a
gross miscarriage of justice to continue by
recording of the name of defendant no.1 as
the only rightful heir to the land in dispute.
In the case of S. Partap Singh v. State of
Punjab, Ayyangar J. in his portion of the
judgment at para 6 has quoted Lord
Denning (in the case Lazarus Estates Ltd.
v. Beasley 1956 1 All ER 341 at p.345)
stating:

"No judgment of a Court, no
order of a Minister can be allowed to stand
if it has been obtained by fraud."

35. Apex Court in the case ofN.
Padmamma and others vs. S. Ramakrishna
Reddy and others2015 (1) SCC 417 has
taken the view that in property law right of
one party cannot be defeated. Relevant
extract of the said judgments is as follows:-

"It is fairly well settled principle
of law that the possession of a co-heir is in
law treated as possession of all the coheirs. If one co-heir has come in possession
of the properties, it is presumed to be on
the basis of a joint title. A co-heir in
possession cannot render its possession
adverse to other co-heirs not in possession,
merely by any secret hostile animus on his
own part, in derogation of the title of his
other co-heirs. Ouster of the other co-heirs
must be evidenced by hostile title coupled
by exclusive possession and enjoyment of
one of them to the knowledge of the other.
See Corea v. Appuhamy 1912 AC 230(PC).

Reference may also be made to
the decision of this Court inP. Lakshmi
Reddy v. L. Lakshmi ReddyAIR 1957 SC
314 where this Court has succinctly
summed up the legal position as under:

"But it is well-settled that in
order to establish adverse possession of
one co-heir as against another it is not
enough to show that one out of them is in
sole possession and enjoyment of the
profits of the properties. Ouster of the nonpossessing co-heir by the co-heir in
possession who claims his possession to be
adverse,
should
be
made
out.
The
possession of one co-heir is considered, in
law, as possession of all the co-heirs. When
one co-heir is found to be in possession of
the properties it is presumed to be on the
basis of joint title. The coheir in possession
cannot render his possession adverse to the
other co-heir, not in possession. merely by
any secret hostile animus on his own part
in derogation of the other co-heir's title. It
is a settled rule of law that as between coheirs there must be evidence of open
assertion of hostile title, coupled with
exclusive possession and enjoyment by one
of them to the knowledge of the other so as
to constitute ouster."

36.