# Shri Ram and others v. Deputy Director of Consolidation, Allahabad and others

- **Citation:** (2011) 1 ILRA 309
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-03-10
- **Case number:** Civil Misc. Writ Petition No. 8512 of 2008
- **Bench:** Ashok Bhushan, A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-ram-and-others-v-deputy-director-of-consolidation-allahabad-and-others-41884
- **Pages:** 18

## Headnote

Sri R.S. Chaudhary
Sri R.P. Kanaujia
Sri V.B. Srivastava
Sri V.K. Singh (A.A.G.)
Sri V.K. Chandel
S.C.

U.P. Consolidation of Holdings Act, 1953Section-49-A-Principle of Estoppels and
acquiescence-whether
permissible
during consolidation operation ? Held-
'yes' but a person can not be debar from
filling objection on assumption of bar of
Section
49-A-contrary
to
ambit
of
Section 8,9 and 9-A of special enactment
Law laid down in Jagdeo Case as relied
by learned Single Judge-held-no good
law.

Held: Para 36, 46 and 52

The Act, 1953 is a special Act. The
scheme as delineated by Section 5 and 9
clearly
contemplates
all
disputes
pertaining to rights and interest in the
land
were
to
be
adjudicated
by
consolidation authorities and pending
dispute before other courts stands
abated to the consolidation courts. The
Act, 1953 thus provides a forum and
opportunity for adjudication of claim
relating to land. The scheme of the Act,
1953,
does
not
indicate
that
it
contemplate any express or implied bar
with regard to filing of an objection of
any kind. When the provision of the Act,
1953
specifically
provides
filing
of
objections by any interested person
reading any implied bar on the principle
of estoppel and acquiescence to an
objection to be filed by a person whose
name
is
not
recorded
cannot
be
accepted.

The bar under Section 49, does not
come
into
play
in
context
of
consolidation proceedings itself. Section
49, cannot be read as containing any
bar with regard to raising an objection
under Section 9 or Section 9A of the Act,

## Text

_Characters 0–39,747 of 56,834. This is a partial read: ask again with offset=39747 for what follows._

1 All] Shri Ram and others V. D.D.C.,Allahabad and others
309

12. In view of the above, the
findings recorded by both the courts
below are perverse and suffers from
serious legal infirmities. Accordingly, the
impugned judgment dated 31.7.1984 and
31.5.1982 are hereby set-aside.

13. Both the writ petitions stands
allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.03.2011

BEFORE
THE HON'BLE ASHOK BHUSHAN,J
THE HON'BLE A.P. SAHI,J

Civil Misc. Writ Petition No. 8512 of 2008

Shri Ram and others
 ...Petitioners
Versus
Deputy
Director
of
Consolidation,
Allahabad and others. ..Respondents

Counsel for the Petitioner:
Sri G.K. Maurya
Sri Ramesh Rai

Counsel for the Respondents:
Sri R.S. Chaudhary
Sri R.P. Kanaujia
Sri V.B. Srivastava
Sri V.K. Singh (A.A.G.)
Sri V.K. Chandel
S.C.

U.P. Consolidation of Holdings Act, 1953Section-49-A-Principle of Estoppels and
acquiescence-whether
permissible
during consolidation operation ? Held-
'yes' but a person can not be debar from
filling objection on assumption of bar of
Section
49-A-contrary
to
ambit
of
Section 8,9 and 9-A of special enactment
Law laid down in Jagdeo Case as relied
by learned Single Judge-held-no good
law.

Held: Para 36, 46 and 52

The Act, 1953 is a special Act. The
scheme as delineated by Section 5 and 9
clearly
contemplates
all
disputes
pertaining to rights and interest in the
land
were
to
be
adjudicated
by
consolidation authorities and pending
dispute before other courts stands
abated to the consolidation courts. The
Act, 1953 thus provides a forum and
opportunity for adjudication of claim
relating to land. The scheme of the Act,
1953,
does
not
indicate
that
it
contemplate any express or implied bar
with regard to filing of an objection of
any kind. When the provision of the Act,
1953
specifically
provides
filing
of
objections by any interested person
reading any implied bar on the principle
of estoppel and acquiescence to an
objection to be filed by a person whose
name
is
not
recorded
cannot
be
accepted.

The bar under Section 49, does not
come
into
play
in
context
of
consolidation proceedings itself. Section
49, cannot be read as containing any
bar with regard to raising an objection
under Section 9 or Section 9A of the Act,
1953. For consolidation proceedings
which are under way no facet of Section
49 of the Act is attracted.

We are unable to subscribe to the above
view. No public policy can be found out
which does not permit a person to seek
reversal
of
the
state
of
affairs
continuing for scores of years, if he has
a right to do so. The view of the learned
Single Judge "that a certain but some
what erroneous state of affairs is better
than almost correct but uncertain state
of affairs" can also not be approved. A
person who has a right to a property
which right he has neither abandoned
nor relinquished can be claimed even
after a lapse of considerable period,
provided the claim is not barred by any
law of limitation.
310 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
(Delivered By Hon'ble Ashok Bhushan, J)

1. This Bench has been constituted
by order of Hon'ble The Chief Justice
dated 03/8/2009 to answer the following
five questions as framed by referring
order dated 21/7/2009, by the learned
Single Judge hearing the writ petition:

(I) Whether the law laid down by the
learned single Judge in the case of Jagdeo
and others Vs. Deputy Director of
Consolidation, Allahabad, and others,
2006 (101) RD 216, is in conflict with the
other decisions of this Court referred to
herein above and as noticed by the
learned single Judge himself in paragraph
no.32 of the said judgment?

(II) Whether the learned single Judge
merely because of having arrived at a
different
conclusion
as
against
the
decisions cited to the contrary, on a
consideration of additional aspects, could
have rendered the decision himself,
instead of referring the matter to a larger
Bench in view of the law laid down in the
case of Rana Pratap Singh and others Vs.
State of U.P. and others, 1995 ACJ 200?

(III) Whether the learned single
Judge in Jagdeo's case was justified in
invoking the principles of the doctrine of
estoppel and acquiescence for creating an
implied bar merely because a co-tenant
had failed to assert his rights under The
U.P.
Zamindari
Abolition
&
Land
Reforms Act and was, therefore, barred
from raising an objection under the Uttar
Pradesh Consolidation of Holdings Act,
1953 and the rules framed thereunder?

(IV) Whether the provisions of the
U.P. Consolidation of Holdings Act have
an over riding effect over all other Acts
for 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?

(V) Whether long standing entries
which are questioned in an objection filed
under the Uttar Pradesh Consolidation of
Holdings Act hold only a presumptory
value or they can be taken to be an
absolute proof in law on the principle of
estoppel, acquiescence and waiver and
thereby attract an automatic bar of Section
49 of the U.P.C.H. Act."

2. The facts giving rise to the writ
petition necessary to be noted for
answering the questions referred are; The
Village
Dinwapur,
Mazare-Danda
Amauli, Pargana-Tappajar, Tehsil-Bindki,
District-Fatehpur was notified by the
State
Government
for
consolidation
operation
under
the
Uttar
Padesh
Consolidation of Holdings Act, 1953
(hereinafter referred to as the Act,1953).
The respondent no.3, and one Banshi filed
an objection under Section 9(A) (2) of
Act, 1953 with regard to Khata No. 264
and 266 claiming that the land of the
aforesaid
Khatas
is
an
ancestral
acquisition acquired by common ancestor
Bhura in which they are co-tenants to the
extent of half share. The Consolidation
Officer rejected the objection of the
respondent no.3, against which an appeal
No. 4646 of 1998, was filed before the
Settlement Officer Consolidation, by the
respondent no.3. The appeal of the
respondent no.3 was dismissed vide
judgment and order dated 26/8/2002. Both
the
Consolidation
Officer
and
the
Settlement Officer Consolidation took the
view that the claim of the respondent no.3
1 All] Shri Ram and others V. D.D.C.,Allahabad and others
311
is barred by Section 49 of the Act, 1953,
since the claim of co-tenancy was not
raised during the earlier consolidation
proceedings. The respondent no.3, filed a
revision before the Deputy Director of
Consolidation against the judgment and
order dated 26/8/2002. The Deputy
Director of Consolidation, vide judgment
and order dated 16/2/2006, allowed the
revision and declared the respondent no.3,
co-tenant to the extent of half of the share.
This writ petition has been filed by the
petitioners challenging the order of the
Deputy Director of Consolidation dated
16/2/2006.

3.

Learned
counsel
for
the
petitioners in support of the contentions
raised had relied on the judgment of the
learned Single Judge reported in Jagdeo
&
Anr
Vs.
Deputy
Director
of
Consolidation, Allahabad & Ors, 2006
(101) RD 216, to urge that the claim of
the respondent no.3, was barred by
Section 49 of the Act, 1953.

4. The learned Single Judge while
hearing the writ petition expressed his
disagreement with the view expressed in
Jagdeo's case (supra) and has referred the
above five questions for decision by this
larger Bench.

5. Before we proceed to answer the
above five questions, it is necessary to
note the relevant observations in Jagdeo's
case (supra). In Jagdeo's case (supra) the
claim of co-tenancy was raised by filing
an objection under the Act, 1953 by the
descendants of one Sheoratan, the name
of the descendants of only Sheobhik,
brother of Sheoratan, were recorded in
Khata No. 92. The claim of co-tenancy
was raised on the ground that the tenancy
was a joint tenancy of both Sheobhik and
Sheoratan. The Consolidation Officer had
accepted the objection and directed for
recording the name of the objectors as cotenants against which an appeal was filed
and allowed in part. A revision was also
filed which was dismissed. The Assistant
Settlement Officer Consolidation held that
right from 1320 Fasli the name of
Sheobhik was recorded in revenue records
and the name of Sheoratan was never
recorded in the revenue records, hence the
claim of the descendants of Sheoratan was
barred on the principle of estoppel. For 50
years, neither the petitioner nor their
ancestors took any steps for getting their
names recorded in the revenue records.
Even at the time of Zamindari Abolition
they did not raise any objections. The
learned Single Judge while deciding
Jagdeo's case (supra) in the above context
made the following observations in para 7
relying on his earlier decision:-

"The purpose of consolidation is
taken to be resurrection of dead (buried)
dispute or revival of dormant ones. In fact
this is not the spirit of Consolidation Act.
Under Section 9(2) of the U.P.C.H. Act
only disputes of recent past may be raised.
Consolidation Act provides a new Forum
for adjudication of disputes, but not a new
opportunity for the same.

However, independently of all these
principles, such exercise is to be nipped in
the bud on the doctrine of public policy. It
is against public policy to permit a person
to seek reversal of state of affairs
continuing for scores of years. A certain
but some what erroneous state of affairs is
better than almost correct but uncertain
state of affairs. To maintain state of
affairs continuing since very long which
may have some elements of inaccuracy is
better than to thoroughly analyse the
312 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
inaccuracy after expiry of long time since
inception of the said affairs and reverse
the same after thorough discussion of
attending circumstances at the time of
start of said state of affairs."

6. In the aforesaid case, while
considering the scope and ambit of
Section 49 of the Act, 1953 following
observations were made in paragraphs 14
and 15 which are quoted below:

"14. As far as the first part of the bar
created by section 49 of U.P.C.H. Act is
concerned, it is more or less the doctrine
of res-judicata as incorporated in section
11 of CPC. As far as the second bar
(could or ought bar) is concerned, it is
also not an altogether new doctrine for the
first time introduced by U.P. Legislature.
It is merely an express provision based
upon several other doctrines particularly
the doctrine
of estoppel. What is
expressed in the second type of bar
provided under section 49 of U.P.C.H.
Act is already implied in the principles of
estoppel etc. the underlying principle of
doctrine of estoppel is that if a person has
got an opportunity to assert his right but
he fails to do so then he is precluded in
future from asserting the right.

15. If revenue entries are continuing
since long and much before Zamindari
Abolition then independently of section
49 of U.P.C.H., unrecorded tenure holder
is estopped from asserting his right on the
basis that the revenue entries are benami
in nature and at the time of acquisition of
the tenancy or Zamindari his ancestor was
joint with the original tenant/Zamindar."

7. Another notable observation
which was made by the learned Single
Judge was that a person who remained
silent at the time of Zamindari Abolition
and did not seek correction of revenue
entries is subsequently estopped from
seeking declaration of his rights in
consolidation proceedings. Following was
laid down in paragraph 18.

"18. In view of this a person who
remained silent at the time of Zamindari
Abolition and did not seek correction of
revenue entries on the basis of joint
tenancy
or
did not initiate legal
proceedings
immediately
after
Zamindari Abolition for declaration of
his right and correction of revenue
entries is subsequently estopped from
seeking declaration of his right in
consolidation
proceedings.
In
fact
Zamindari Abolition was much more
important phenomenon in respect of
agricultural lands than survey conducted
before
Zamindari
Abolition
or
consolidation
proceedings
after
Zamindari Abolition."

8. Considering the doctrine of
estoppel the following proposition was
laid down in paragraph 20 which is
quoted below:

"20. The doctrine of estoppel
basically deals with relinquishment or
extinction of rights. Acquisition of right
through estoppel is an extension of or
corollary to the classical doctrine of
estoppel.
Accordingly,
if
through
estoppel co-tenancy can be acquired
then all the more reason to hold that
through estoppel co-tenancy can be
relinquished. If the name of objector or
his predcessor or ancestor was never
recorded in the revenue records and that
position continued for several decades
then even if he or his ancestor had any
right of co-tenancy, the same came to an
1 All] Shri Ram and others V. D.D.C.,Allahabad and others
313
end on the basis of doctrine of
estoppel."

9. In paragraph 24 of the judgment
the learned Single Judge held that the
doctrine
of
waiver
and
estoppel
precludes an unrecorded person from
asserting before Consolidation Courts
that long standing revenue entries be
reversed. Following was laid down in
paragraph 24.

"24.Accordingly, the doctrine of
waiver and estoppel which is also the
basis of second type of bar under
section 49 U.P.C.H. Act precludes an
unrecorded person from asserting before
Consolidation Courts that long standing
revenue entries which are continuing
since much before Zamindari Abolition
shall be reversed and he must be
declared to be Joint Bhumidhar/Sirdar
on the ground that the original tenant
and ancestor of claimant were joint and
the acquisition was by both of them
even though the name of his ancestor
was not recorded in the revenue
records."

10. In paragraph 29, it was held that
apart from the principle of estoppel, bar of
such types of claim, after the enforcement
of U.P.Z.A. and L.R. Act shall come into
play.

11. In view of the aforesaid
background, we now proceed to consider
the questions referred to above.

12. We have heard Shri Ramesh Rai,
learned counsel for the petitioners, Shri
V.K. Singh, learned Additional Advocate
General assisted by Shri V.K. Chandel for
State respondents and Shri V.B. Srivastava
appearing for the respondent no.3.
Questions 1 and 2

13. The learned Single Judge while
deciding Jagdeo's case (supra) himself
noted in paragraph 32, that some
authorities have taken a view contrary to
the view which has been taken by the
learned Single Judge and no authority has
considered the various aspects dealt with
by the learned Single Judge. Thus,
according to the learned Single Judge
himself the view which has been taken in
the aforesaid case was contrary to some
authorities which presupposes that there
were judgments taking a contrary view.

14. The Constitution Bench of the
Apex Court in Central Board of
Dawoodi Bohra Community & Anr. Vs.
State of Maharashtra & Anr, 2005 (2)
SCC 673, laid down that a bench of a
lesser quorum cannot disagree or dissent
from the view of the law taken by a
Bench of larger quorum. A co-ordinate
Bench cannot hold a view contrary to a
view already taken, and the course open is
to make a reference. Following was laid
down in paragraph 12.

"12. Having carefully considered the
submissions made by the learned senior
counsel for the parties and having
examined the law laid down by the
Constitution Benches in the abovesaid
decisions, we would like to sum up the
legal position in the following terms :-

(1) The law laid down by this Court
in a decision delivered by a Bench of
larger
strength
is
binding
on
any
subsequent Bench of lesser or co-equal
strength.

(2) A Bench of lesser quorum cannot
doubt the correctness of the view of the
314 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
law taken by a Bench of larger quorum. In
case of doubt all that the Bench of lesser
quorum can do is to invite the attention of
the Chief Justice and request for the
matter being placed for hearing before a
Bench of larger quorum than the Bench
whose
decision
has
come
up
for
consideration. It will be open only for a
Bench of co- equal strength to express an
opinion doubting the correctness of the
view taken by the earlier Bench of co-
equal strength, whereupon the matter may
be placed for hearing before a Bench
consisting of a quorum larger than the one
which pronounced the decision laying
down the law the correctness of which is
doubted.

(3) The above rules are subject to
two exceptions : (i) The abovesaid rules
do not bind the discretion of the Chief
Justice in whom vests the power of
framing the roster and who can direct any
particular matter to be placed for hearing
before any particular Bench of any
strength; and (ii) In spite of the rules laid
down hereinabove, if the matter has
already come up for hearing before a
Bench of larger quorum and that Bench
itself feels that the view of the law taken
by a Bench of lesser quorum, which view
is
in
doubt,
needs
correction
or
reconsideration then by way of exception
(and not as a rule) and for reasons it may
proceed to hear the case and examine the
correctness of the previous decision in
question dispensing with the need of a
specific reference or the order of Chief
Justice constituting the Bench and such
listing. Such was the situation in Raghubir
Singh & Ors. and Hansoli Devi &
Ors.(supra)."

15. A Full Bench of this Court in
Rana Pratap Singh Vs. State of U.P. &
Ors, 1995 All CJ, 200, has laid down
following in paragraphs 16 and 17 which
is quoted below:

"16. On this aspect another relevant
judicial pronouncement comes in Ambika
Prasad v. State of U.P., AIR 1980 SC
1762. there, in the context of the U.P.
Imposition of Ceilings of Land Holdings
Act, 1961, while dealing with the question
as to when reconsideration of a judicial
precedent is permissible, Krishna Iyer, J.
So aptly put it "Every new discovery of
argumentative novelty cannot under or
compel reconsideration of a binding
precedent."

17. Further, It is wise to remember
that fatal flaws silenced by earlier rulings
cannot serve after death because a
decision does not lose its authority
'merely because it was badly argued,
inadequately considered and fallaciously
reasoned' (Salmond Jurisprudence, page
215,11th Edition)."

16.

In
view
of
the
above
pronouncements, it is clear that having
noticed the conflicting views, the learned
Single Judge ought to have made a
reference having found himself not to be
in agreement with some earlier judgment
of this Court. The observations of the
learned Single Judge in paragraph 32 of
Jagdeo's case (supra) that the earlier cases
have not considered the various aspects
dealt with by the learned Single Judge
therein, makes no difference, since the
learned Single Judge has not held that the
earlier
decisions
were
not
binding
precedent being per incurium.

17. The Apex Court in Ambika
Prasad Vs. State of U.P. & Ors, AIR
1980 SC 1762, has laid down that every
1 All] Shri Ram and others V. D.D.C.,Allahabad and others
315
new discovery or argumentative novelty
cannot undo or compel reconsideration of
a binding precedent.

18. In view of the foregoing
discussions, it is held that the law laid
down by the learned Single Judge in
Jagdeo's case (supra) was in conflict with
other earlier judgments as noticed by the
learned Single Judge in paragraph 32, and
merely because the learned Single Judge
had arrived at a different conclusion was
not sufficient for taking a divergent view.
In such circumstances the learned Single
Judge ought to have made a reference to
be considered by a larger Bench as laid
down by the Full Bench in Rana Pratap
Singh's case (supra).

Question Nos.3,4 and 5

19. The above questions being inter
related are being take up together.

20. The principle of estoppel and
acquiescence which has been relied on by
the learned Single Judge in Jagdeo's case
(supra) for construing an implied bar in
raising an objection of a co-tenancy right
needs to be considered first.

Estoppel is defined in Section 115 of
the Evidence Act, 1872 which is as
follows:

"115.Estoppel.-When
one
person
has, by his declaration, act or omission,
intentionally caused or permitted another
person to believe a thing to be true and to
act upon such belief, neither he nor his
representative shall be allowed, in any
suit or proceeding between himself and
such person or his representative, to deny
the truth of that thing."

21. A party to a proceeding is said to
be estopped where he is not allowed to
say that a certain statement of fact is
untrue, whether in reality it is true or not.
Estoppel can also be defined as a
disability whereby a party is precluded
from alleging or proving in legal
proceedings that a fact is otherwise than it
has been made to appear by the matter
giving rise to that disability. Estoppel is
often described as a rule of evidence, but
the whole concept is more correctly
viewed as a substantive rule of law.

22. Mercantile Bank of India Vs.
Central Bank of India Ltd, AIR 1938
Privy Council 52, had occasion to
consider the principle of estoppel by
conduct,
neglect
or
representations.
Following was laid down by the Privy
Council at page 55:-

"The estoppel is relied on as giving
to the appellants the substantive right of
claiming a valid pledge of the goods,
taking priority over the pledge to the
respondents, since though estoppel has
been described as a mere rule of evidence,
it may have the effect of creating
substantive rights as against the person
estopped. Of the many forms which
estoppel may take, it is here only
necessary to refer to that type of estoppel
which enables a party as against another
party to claim a right of property which in
fact he does not possess. Such estoppel is
described as estoppel by negligence or by
conduct or by representation or by a
holding out of ostensible authority."

Before the doctrine of estoppel can
be invoked there must be:

1)Representation by a person to
another,
316 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

2)The other should have acted upon
the said representation,

3) Such action should have been
detrimental to the interest of the person to
whom the representation is made.

23. The above three conditions must
co-exist for successfully pressing the plea
of estoppel. The onus of establishing facts
giving rise to estoppel is upon the person
who pleads it.

24. The Apex Court in B.L.
Sreedhar & Ors. Vs. K.M. Munireddy,
(Dead) & Ors, AIR 2003, SC 578, had
elaborately considered the doctrine of
estoppel. The apex Court in the said
judgment has laid down that though
estoppel is described as a mere rule of
evidence, it may have the effect of
creating substantive rights as against the
person estopped.

Following
was
laid
down
in
paragraphs 22,25,26 and 27.

"22. "The essential factors giving rise
to an estoppel are, I think-

"(a) A representation or conduct
amounting to a representation intended to
induce a course of conduct on the part of
the person to whom the representation
was made.

"(b) An act or omission resulting
from the representation, whether actual or
by conduct, by the person to whom the
representation was made.

"(c) Detriment to such person as a
consequence of the act or omission where
silence cannot amount to a representation,
but, where there is a duty to disclose,
deliberate silence may become significant
and amount to a representation. The
existence of a duty on the part of a
customer of a bank to disclose to the bank
his knowledge of such a forgery as the
one in question was rightly admitted."
(Per Lord Tomlin, Greenwood v. Martins
Bank (1933) A.C.51.) See also Thompson
v. Palmer, 49 C.L.R. 547; Grundt v. Great
Boulder, 59 C.I.R.675; Central Newbury
Car Auctions v. Unity Finance (1957)1
Q.B.371SD.MN

25.Though estoppel is described as a
mere rule of evidence, it may have the
effect of creating substantive rights as
against the person estopped. An estoppel,
which enables a party as against another
party to claim a right of property which in
fact he does not possess is described as
estoppel by negligence or by conduct or
by representation or by holding out
ostensible authority.

26.Estoppel, then, may itself be the
foundation of a right as against the person
estopped, and indeed, if it were not so, it
is difficult to see what protection the
principle of estoppel can afford to the
person by whom it may be invoked or
what disability it can create in the person
against whom it operates in cases
affecting rights. Where rights are involved
estoppel may with equal justification be
described both as a rule of evidence and
as a rule creating or defeating rights. It
would be useful to refer in this connection
to the case of Depuru Veeraraghava Reddi
v. Depuru Kamalamma, (AIR 1951
Madras 403) where Vishwanatha Sastri,
J., observed:

"An estoppel though a branch of the
law of evidence is also capable of being
viewed as a substantive rule of law in so
far as it helps to create or defeat rights
1 All] Shri Ram and others V. D.D.C.,Allahabad and others
317
which would not exist and be taken away
but for that doctrine."

27.Of course, an estoppel cannot
have the effect of conferring upon a
person a legal status expressly denied to
him by a statute. But where such is not the
case a right may be claimed as having
come into existence on the basis of
estoppel and it is capable of being
enforced or defended as against the
person precluded from denying it."

25. In the context of Agra Tenancy
Act, 1926, and U.P. Tenancy Act, 1939,
whether the principle of estoppel in cotenancy can be created, there are several
decisions of this Court.

26. The judgment in Dudh Nath
Kori & Anr. Vs Smt. Dhamrajja &
Anr, 1964 RD, 324, this Court had an
occasion to consider whether a person can
become co-tenant by estoppel.

Following was laid down in the
aforesaid judgment.

"The next question to be considered
is whether a person can become a cotenant by estoppel. It is sometime thought
that an estoppel is only a rule of
procedure
precluding
a
party
from
asserting or denying the existence of
certain state of facts and it cannot form
the basis of any substantive right. This
does not, however, represent the full
scope of the principle of estoppel, as has
been clearly laid down by their lordships
of the Privy Council in Mercantile Bank
of India Vs. Central Bank of India (1):-

"Though estoppel is described as a
mere rule of evidence, it may hve the
effect of creating substantive rights as
against the person estopped. In estoppel,
which enables a party as against another
party to claim a right of property which in
fact he does not possess is described as
estoppel by negligence or by conduct or
by representation or by holding out
ostensible authority."

27. Estoppel, then, may itself to be
the foundation of a right as against person
estopped, and indeed, if it were not so, it
is difficult to see what protection the
principle of estoppel can afford to the
person by whom it may be invoked or
what disability it can create in the person
against whom it operates in cases
affecting rights. It appears to me that
where rights are involved estoppel may
with equal justification be described both
as a rule of evidence and as a rule creating
or defeating rights. I may refer in this
connection to the case of Depuru
Kamalamma and another v. Depuru
Kamalamma and another (2) where
Vishwanatha Sastri, J. observed:-

"An estoppel though a branch of the
law of evidence is also capable of being
viewed as a substantive rule of law in so
far as it helps to create or defeat rights
which would not exist and be taken away
but for that doctrine."

Of course an estoppel cannot have
the effect of conferring upon a person a
legal status expressly denied to him by a
statute. But where such is not the case a
right may, be claimed as having come into
existence on the basis of estoppel and it is
capable of being enforced or defended as
against
the
person
precluded
from
denying it. I may here mention that in the
cases reported in 1949 R.D. 218 and 1942
A.W.R. (B.R.) 276 it was held by the
Board of Revenue that co-tenancy could
318 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
arise by estoppel. If, as I have held,
Section 23 of Act III of 1926 and Section
33 of Act XVII of 1939 did not
exhaustively lay down the modes in
which a person could have become a cotenant the acquisition of co-tenancy rights
by estoppel was not opposed to the
provisions of any statute. the requisite
conditions for the operation of the
doctrine of estoppel having been found to
be present in the instant case by the courts
below and it being not challenged that the
facts and circumstances of the case did
attract the doctrine of estoppel, it must be
held that as against the plaintiffs Dubar
acquired the rights of a co-tenant."

28.

There
are
several
other
judgments in which this Court held that
acquisition
of
co-tenancy
rights
is
permissible by estoppel namely; Bhagan
Ram & Ors. Vs. State of U.P. & Ors,
1967
RD
396;
Kalawati
Vs.
Consolidation Officer, Agra & Ors,
1968,RD, 45; Gaya Singh Vs. Deputy
Director of Consolidation of Etah &
Ors, 1976 (2) RD 142; Mewa Ram &
Ors Vs. Shankar & Ors,1970 ALJ 1019
and Babu Singh & Anr. Vs. Deputy
Director of Consolidation, 1976 (2)
ALR 203.

29. This Court in a Division Bench
judgment reported in Budhlal & Anr. Vs.
Deputy Director of Consolidation, 1982
RD 324, considered the issue of right
acquired by way of estoppel under the
Act, 1950. It was held that a person could
not become co-tenant by co-option,
acquiescence or estoppel under the Act,
1950 insofar as Sirdari rights are
concerned.

30. In view of the foregoing
discussion, it is thus clear that although
estoppel is a rule of evidence, it may have
the effect of creating substantive rights or
defeating
substantive
rights.
The
applicability of the principle of estoppel
may have difference where the rights
claimed are right related to the period
before abolition of zamindari and after
abolition of zamindari and further with
regard to the nature of tenure.

31. The question which is to be
considered is as to whether or not
estoppel and acquiescence can create an
implied bar in filing an objection by a
person claiming co-tenancy right under
the Act, 1953 and as to whether the
person who has failed to assert his rights
under the Act, 1950 is barred from filing
an objection.

32. The respective scheme of the
Act, 1950 and the Act, 1953 needs to be
noticed. The Act, 1950 was enacted to
provide for the abolition of the Zamindari
System which involves intermediaries
between the tiller of the soil and the State
in Uttar Pradesh and for the acquisition of
their rights, title and interest and to reform
the law relating to land tenure.

33. The Act, 1953, was enacted with
the object of ensuring compactness of
holdings and also to provide a forum for
settlement of disputes of all nature
including rules in relation of land,
mistakes in the revenue records and
shares of tenure holders etc.

34. Section 4 of the Act, 1953,
empowers the State Government to issue
declaration,
notification
notifying
a
district or part thereof for consolidation
operations. Section 5 provides for effect
of notification issued under Section 4(2)
1 All] Shri Ram and others V. D.D.C.,Allahabad and others
319
of the Act. Section 5(2) of the Act, 1953,
provides as follows:

[5.Effect of [notification under
Section 4(2)].-

[(2) Upon the said publication of the
notification under sub-section (2) of
Section
4,
the
following
further
consequences shall ensue in the area
which the notification relates, namely-

(a)
every
proceeding
for
the
correction of records and every suit and
proceeding in respect of declaration of
rights or interest in any land lying in the
area, or for 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 being passed in that behalf by
the Court or authority before whom such
suit or proceeding is pending, stand
abated:

Provided that no such order shall be
passed without giving to the parties notice
by post or in any other manner and after
giving them an opportunity of being
heard:

Provided further that on the issue of
a notification under sub-section (1) of
Section 6 in respect of the said area of
part thereof, every such order in relation
to the land lying in such area or part as the
case may be, shall stand vacated;

(b) such abatement shall be without
prejudice to the rights of the persons
affected to agitate the right or interest in
dispute in the said suits or proceedings
before
the
appropriate
consolidation
authorities under and in accordance with
the provisions of this Act and the rules
made thereunder.]"

35. Section 5(2) of the Act clearly
contemplates all proceedings for the
correction of records and every suit and
all proceedings in respect of declaration
of rights or interest in any land lying in
the area, or for declaration or adjudication
of any other right in regard to which
proceedings can or ought to be taken
under this Act, shall stand abated.
However, such abatement shall be without
prejudice to the rights of the person
affected to agitate the right or interest in
dispute in the said suits or proceedings
before
the
appropriate
consolidation
authorities.

Section 9(2) and 9A(1) contemplates
of filing an objection and disposal of
cases relating to claim. Section 9(2),
9A(1) and 9A(3) are quoted below:

"9. Issue of extracts from records
and statements and publication of
records mentioned in Sections 8 and 8A and the issue of notices for inviting
objections.-

(1)...............................

9(2) Any person to whom a notice
under sub-section (1) has been sent, or
any other person interested may, within
21 days of the receipt of notice, or of the
publication under sub-section (1), as the
case may be, file, before the Assistant
Consolidation
officer,
objections
in
respect thereof disputing the correctness
or nature of the entries in the records or in
the extracts furnished therefrom, or in the
Statement of Principles, or the need for
partition.
320 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

9-A(1). Disposal of Cases relating
to claims to land and partition of joint
holdings.(1) The Assistant Consolidation
Officer shall-

(i) where objections in respect of
claims to land or partition of joint
holdings are filed, after hearing the parties
concerned, and

(ii) where no objections are filed
after making such enquiry as he may
deem necessary, settle the disputes,
correct the mistakes and effect partition as
far as may be by conciliation between the
parties appearing before him and pass
orders on the basis of such conciliation:

[Provided that where the Assistant
Consolidation Officer, after making such
enquiry as he may deem necessary, is
satisfied that a case of succession is
undisputed, he shall dispose of the case on
the basis of such enquiry.]

(3) The Assistant Consolidation
Officer, while acting under sub-section
(1) and the Consolidation Officer, while
acting under sub-section (2), shall be
deemed to be a Court of competent
jurisdiction, anything to the contrary
contained in any other law for the time
being in force notwithstanding."

36. The Act, 1953 is a special Act.
The scheme as delineated by Section 5
and 9 clearly contemplates all disputes
pertaining to rights and interest in the land
were to be adjudicated by consolidation
authorities and pending dispute before
other
courts
stands
abated
to
the
consolidation courts. The Act, 1953 thus
provides a forum and opportunity for
adjudication of claim relating to land. The
scheme of the Act, 1953, does not
indicate that it contemplate any express or
implied bar with regard to filing of an
objection of any kind. When the provision
of the Act, 1953 specifically provides
filing of objections by any interested
person reading any implied bar on the
principle of estoppel and acquiescence to
an objection to be filed by a person whose
name is not recorded cannot be accepted.

37. The Apex Court in the case of
Sita Ram Vs. Chhota Bhondey, 1990
RD 439, by noticing Clause (b) of subsection 2 of Section 5, laid down that such
abatement shall be without prejudice to
the rights of the persons affected to
agitate the right of interest in dispute in
the said suit or proceedings before the
appropriate consolidation authorities.

38. This Court in Brij Bahadur Lal
Vs.
Deputy
Director
of
Consolidation,U.P. & Ors, 1968 RD
187, held that the Act, 1950 does not
prevail over the Act, 1953. In the said
case following was laid down.

" The Consolidation of Holdings Act
was
passed
in
1953,
whereas the
Zamindari Abolition was enacted in 1950.
The former would prevail over the latter.
Former would prevail over the latter.
Further, the Consolidation of Holdings
Act provides for adjudication of rights in
respect of the land covered by the
Notification under Section4, whereas the
Zamindari Abolition Act provides for
adjudication of rights in respect of the
agricultural
land
in
general.
The
Consolidation of Holdings Act is a special
Act, comparatively speaking. It is settled
that a general law, even though later, does
not abrogate that earlier special one by
mere implication. According to Maxwell
(Interpretation
of
Statutes,
Eleventh
1 All] Shri Ram and others V. D.D.C.,Allahabad and others
321
Edition, page 168), in such cases, the
general provision would not apply to the
particular cases dealt with by the special
statute. It stands repealed pro tanto."

39. The view taken by the learned
Single Judge in Jagdeo's case (supra)
that a person who has not raised any
objection after the enforcement of the
Act, 1950 for correction of his revenue
records is precluded from filing objection
on the principle of estoppel under the Act,
1953 is clearly unsustainable when the
Act, 1953 provides a forum for raising a
claim. Thus, for filing an objection by any
interested person under the Act, 1953, no
kind of express or implied bar can be read
against a person who had earlier not taken
proceedings for correction of revenue
records after enforcement of the Act,
1950.

40. In Jagdeo's case (supra) the
learned Single Judge has relied on Section
49 of the Act, 1953 for barring objection
by a person claiming co-tenancy right by
principle of waiver and estoppel and has
held that waiver and estoppel is the basis
of second type of bar under Section 49 of
the Act, 1953.

Section 49 of the Act, 1953 provides
as under:

"[49. Bar to civil 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 sub-section (2) of
Section 4] or adjudication of any other
right
arising
out
of
consolidation
proceedings and in regard to which a
proceeding could or ought to have been
taken under this Act, shall be done in
accordance with the provisions of this Act
and no Civil Or Revenue Court shall
entertain any suit or proceeding with
respect to rights in such land or with
respect to any other matters for which a
proceeding could or ought to have been
taken under this Act:]