Neutral Citation No. - 2025:AHC:63290

A.F.R.

Reserved on 06.12.2024

Delivered on 24.04.2025

Court No. - 37

Case :- WRIT - B No. - 13075 of 2012

Petitioner :- Rajkumar Dubey

Respondent :- Board Of Revenue And Others

Counsel for Petitioner :- Anurag Singh,Ashutosh Srivastava,Govind

Krishna,Satyendra Nath Srivastava,Shreyas Srivastava

Counsel for Respondent :- D.D. Chauhan,Madhur Prakash,Satya

Prakash

Hon'ble Dinesh Pathak,J.

1. Heard learned counsel for the petitioner, learned counsel for the

contesting private respondents as well as learned Standing Counsel for

the State-respondents.

2. The petitioner is aggrieved with the orders passed by the revenue

courts under the U.P. Zamindari Abolition and Land Reforms Act,

1950 (in brevity 'Act, 1950') whereby suit filed on his behalf for

declaration of his rights and title under Section 229-B of Act, 1950

has concurrently been discarded by all the three revenue courts on the

point of maintainability of suit being barred under Section 49 of U.P.

Consolidation of Holdings Act, 1953 (in brevity 'U.P.C.H. Act'), while

deciding the issue no.7 framed by the learned trial court.

3. As per plaint case, the plaintiff-petitioner is claiming his right, title

and interest over the property in question on the basis of mortgage

deed dated 27.2.1901, registered on 04.3.1901, said to have been

executed by Khuman Singh s/o Preetam Singh (predecessor-in-interest

of the defendants-respondants) in favour of Radha Kishan s/o Bhola Nath

(predecessor-in-interest of the plaintiff-petitioner). Through the aforesaid

mortgage deed, the land in question was mortgaged for thirty years

against the loan amounting to Rs.290/-. Mortgage money was paid from

the Hindu Undivided Family Fund. Subsequently, predecessors-in-interest

of the petitioner had filed a suit for possession against Khuman Singh

(father of defendant no.1) being Civil Suit No.418 of 1911 (Pitambar Lal

& Others vs. Khuman Singh & Others). Aforesaid suit was decreed on

24.2.1912 and based on the said decree, possession was delivered on

29.3.1912. Since 1348 fasli, name of Smt. Ram Dulari (grand-mother of

the plaintiff-petitioner) was recorded and thereafter name of the plaintiff-

petitioner is recorded in Khatauni being mortgagee. The plaintiff-

petitioner was initially Seerdar of the property in question. Subsequently,

by operation of law, became Bhumidhar with transferable rights. On the

advent of consolidation operation, he has executed a power of attorney in

favour of Nanhu Singh (brother of defendant no.2 namely Rajendra) to

look after the property and get the name of the plaintiff-petitioner in the

consolidation record, however, he did nothing and got the name of the

plaintiff-petitioner expunged from the record. By playing fraud on the

plaintiff-petitioner, he got his name and defendants' name recorded in the

consolidation record. Thus, name of defendants are fraudulently and

illegally recorded in the revenue record which came to the knowledge of

the plaintiff-petitioner for the first time on 27.1.1987 and, consequently,

he filed suit for declaration.

4. On the contrary, defendants have filed written statement denying the

pleadings made in the plaint with the contention that mortgage deed dated

27.2.1901, registered on 4.3.1901, was redeemed by judgment dated

29.2.1936 and decree dated 3.3.1946 passed by the Assistant Collector (Ist

Class) in a Suit No.4/5. Nanhu Singh was never appointed as power of

attorney by the plaintiff-petitioner to look after the property in question.

The plaintiff-petitioner does not belong to the family of the original

2 of 26

mortgagee and he is never recorded in the revenue record, therefore, suit

on his behalf is not maintainable being barred under Section 49 of the

U.P.C.H. Act.

5. Learned trial court, after exchange of pleadings, has framed as many as

ten issues to decide the suit. Out of them, issue no.7 was framed regarding

bar of suit under Section 49 of U.P.C.H. Act which is quoted herein

below:-

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

6. The Assistant Collector (Ist Class)/Sub Divisional Officer, Bilhaur,

Kanpur Nagar, vide judgment dated 7.11.2007, has decided the aforesaid

issue in affirmative in favour of the defendants and held that the suit is

barred under Section 49 of the U.P.C.H. Act. Having been aggrieved with

the judgment dated 7.11.2007, the plaintiff has filed first appeal being

Appeal No.46 of 2008 under Section 331(3) of Act, 1950. Learned

Additional Commissioner, Kanpur Division, Kanpur, vide order dated

3.11.2008, has dismissed the appeal affirming the order passed by the trial

court. Being dissatisfied with the order passed by the first appellate court,

the plaintiff-petitioner has filed Second Appeal No.14 of 2008/09 before

the Board of Revenue, U.P. at Allahabad which has been dismissed as

well by the judgment dated 20.1.2011, which is under challenge before

this Court.

7. Learned counsel for the plaintiff-petitioner, while assailing the

concurrent finding of fact returned by all the three revenue courts in a

proceeding arisen out of suit under Section 229-B of Act, 1950, has

advanced fourfold following submission:-

7.1- The bar under Section 49 of U.P.C.H. Act is applicable only for the

certain period i.e. from the date of promulgation of notification under

Section 4 of U.P.C.H. Act up to the de-notification under Section 52 of the

U.P.C.H. Act. As per his submission, Section 4 of the U.P.C.H. Act was

promulgated on 16.9.1965 and the village was de-notified under Section

3 of 26

52 of U.P.C.H. Act by notification promulgated on 14.5.1977, however,

suit was filed on 23.5.1988, therefore, provisions as enunciated under

Section 49 of U.P.C.H. Act are not attracted in the instant matter. In

support of his submission, learned counsel for the plaintiff-petitioner

placed reliance on the case of Prashant Singh & Others vs. Meena &

Others reported in 2024 (9) ADJ 187.

7.2- He has tried to point out the forgery committed against the plaintiff-

petitioner and came with the plea that fraud vitiates everything even

solemn proceedings. He has laid emphasis on the pleadings of the plaint

that the plaintiff-petitioner has executed a power of attorney in favour of

Nanhu Singh (brother of the defendants-respondents) to get his name

recorded in the land revenue record during consolidation proceeding,

however, by playing fraud Nanhu Singh got his and his brother's name

recorded over the property in question and managed to expunged the

name of plaintiff-petitioner. Plea of fraud has not appropriately been

considered by all the three revenue courts and illegally held the suit barred

under Section 49 of the U.P.C.H. Act. In support of his submission,

learned counsel for the petitioner has placed reliance upon the case of

Ram Briksha & Another vs. Deputy Director of Consolidation & 3 Others

reported in 2017 (6) ADJ 356 (DB); Sagir Ahmad & Others vs. Deputy

Director of Consolidation & Others reported in 2019 (6) ADJ 336 and

Amar Singh vs. State of U.P. & Others reported in 2008 (2) ADJ 688.

7.3- It is next submitted that name of Smt. Ram Dulari (predecessor-in-

interest of the plaintiff-petitioner) was recorded in 1348 fasli and 1366

fasli to 1369 fasli being a mortgagee. Predecessors-in-interest of the

plaintiff-petitioner and, thereafter, he himself is in continuous possession

over the property in question.

7.4- He has also laid emphasis on the condition no.6 of the mortgage

deed, whereby mortgage would be foreclosed after thirty years, and the

judgment passed in Suit No.418 of 1911 whereby possession has been

delivered in favour of the mortgagee (predecessor-in-interest of the

4 of 26

plaintiff-petitioner). After the judgment passed in Original Suit No.418 of

2011 and foreclosure of the mortgage deed as per condition no.6 of the

mortgage deed, defendants have no right, title and possession over the

property in question. Thus, the present writ petition be allowed and the

orders impugned passed by the revenue courts be quashed, being illegal

and unwarranted under the law.

8. Per contract, learned counsel for contesting respondents has

vehemently opposed the submissions advanced by learned counsel for the

petitioner and contended that:-

8.1- The suit for redemption and possession of collateral property filed on

behalf of the mortgagor against the mortgagee under Section 99 of Agra

Tenancy Act (Act No. 3 of 2026) had been decreed on 29.2.1936 and got

executed on 3.3.1946. Thus, the mortgagee (predecessors-in-interest of

petitioner) has no right, title and possession over the property in question.

8.2- He vehemently opposed the execution of any power of attorney

(unregistered) in favour of Nanhu Singh, as averred in paragraph number

13 of the plaint, and contended that copy of such power of attorney had

never been filed before any of the three revenue courts. However, for the

first time, the alleged document has been filed before this court which is a

forged document.

8.3- Learned counsel for the respondents has emphasized that the name of

the petitioner was never recorded in the Record of Rights, i.e., Khatoni

1356 fasli, 1348 fasli, and 1359 fasli. Even his name was not recorded in

the Basic Consolidation Record, to wit, at the advent of the consolidation

operation by way of notification under Section 4(2) of the U.P.C.H. Act.

8.4- It is next contended that no foul play or fraud has been committed

against the plaintiff-petitioner, who was reluctant towards his right during

the consolidation operation. Mere assertion of fact with regard to fraud is

not sufficient to avert the bar under section 49 of the U.P.C.H. Act. In

5 of 26

paragraph 13 of the plaint, the plaintiff has taken a contradictory plea that

he himself was taking care of the property in question at the relevant time.

8.5- It is next contended that orders under challenge, holding the suit

barred under Section 49 of the U.P.C.H. Act, do not warrant any

interference in the writ jurisdiction, thus, the same may be dismissed

being misconceived and devoid of merits. In support of his contention,

learned counsel for the contesting respondents has relied upon the case of

Kushar Vs. Ahmed Khan, 1962 R.D. 172 decided by division bench of

this court, Madan Mohan Mishra v. Chandrika Pandey (dead) by L.Rs.,

2009 (107) R.D. 2 SC and the case of Ram Briksha and another (supra)

and the case of Sagir Ahmed and others (supra).

9. Having considered the rival submissions advanced by learned counsel

for the parties and upon perusal of the record, it is manifest that the

question for consideration in the instant matter lies in a narrow compass

as to whether the suit for declaration filed on behalf of the plaintiff under

Section 229 B of the Act, 1950 is barred and not maintainable under

Section 49 of the U.P.C.H. Act. Thus, nature and scope of Section 49

UPCH Act is required to be discussed, which is quoted herein below:

"49. Bar to civil Courts jurisdiction. Notwithstanding

anything contained in any other law for the time being in

force, the declaration and adjudication of right of tenure-

holder in respect of land lying in an area, for which a

(notification) has been issued under 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

be ought to have been taken under this Act:]

[Provided that nothing in this section shall preclude the

Assistant Collector from initiating proceedings under

Section 122-B of the Uttar Pradesh Zamindari Abolition

and Land Reforms Act, 1950 in respect of any land,

6 of 26

possession over which has been delivered or deemed to be

delivered to a Gaon Sabha under or in accordance with

the provisions of this Act.”

10. Needless to say that object of the U.P.C.H. Act is to provide for

consolidation of agricultural holding for the development of agriculture. It

is a complete code which contains provisions for redressal of grievance of

tenure holders relating to their right, title and interest over the holding as

well as grievances in relation to the chak allotment, its valuation and area,

etc. While enforcing the object of U.P.C.H. Act to consolidate the holding

and avoid fragmentation or scattered holding, consolidation authorities are

also authorised to examine the revenue entries made in favour of the

tenure holders. For this purpose, Section 8A provides preparation of

statement of principles, stating forthwith the principle to be followed in

carrying out consolidation operation in the unit. In Section 9, provision is

made for issuing notice to the statement of principle prepared under

Sections 8 and 8 A of the U.P.C.H. Act to tenure holders concerned and to

persons interested calling upon them to file objection before him, if any,

disputing the correctness or nature of entry in the extract and pointing out

of any omission therefrom. Section 10 provides that annual register shall

be revised on the basis of the order passed by the Consolidation Officer.

Section 19 onwards, Sections 20 and 21 are relating to the Provisional

Consolidation Scheme (Chak allotment proceedings). Thus, there is a

provision under the U.P.C.H. Act to examine the right, title and interest of

the tenure holders, while examining the correctness of entries. However,

intending to discourage the multiplicity of proceedings, legislation has

forbidden the jurisdiction of Civil and Revenue Court, under Section 49

of the U.P.C.H. Act from entertaining any of the following matters :-

(i) Declaration and adjudication of right of tenure holders

qua land covered by notification under Section 4(2) of the

U.P.C.H. Act,

or

7 of 26

(ii) Adjudication or any other right arising out of

consolidation proceedings,

and

(iii) in regard to these matters (as mentioned above),

proceedings could or ought to have been taken under the

U.P.C.H. Act,

(iv) shall be done in accordance with the provisions of the

U.P.C.H. Act.

11.Non-obstante clause used at the commencement of the Section 49

of U.P.C.H. Act coupled with the latter part of the Section, to wit,

"proceedings could or ought to have been taken under this Act", imposes

an absolute bar on civil or revenue courts from entertaining any

proceedings in respect of the declaration and adjudication of right of a

tenure holder or adjudication of any other rights arising out of

consolidation operations, for which person concerned ought to have or

could have taken proceedings at the time when the village was brought

under the consolidation operations by promulgation of notification under

Section 4(2) of the U.P.C.H. Act. Meaning thereby, final record of rights

prepared under the provisions of the U.P.C.H. Act attaches finality

concerning the declaration and adjudication of right of tenure holders,

therefore, after denotification under Section 52 of the U.P.C.H. Act, civil

or revenue courts have got no jurisdiction to reopen such adjudication or

declaration of rights. Hon'ble Supreme Court, in the case of Sita Ram vs.

Chhota Bhondey and others, AIR 1991 Supreme Court 249, while

discussing the scope of Section 49 of U.P.C.H. Act has held that it is wide

and comprehensive. Facts giving rise to the aforesaid cited case are that

Chhota and Nanha are real brothers. In basic consolidation record, name

of Nanha was recorded in the representative capacity on behalf of himself

and his brothers. Son of Chhota has filed objection claiming his co-

tenancy right over the property in question. Consolidation Officer has

granted co-tenancy right, however, the appeal having been filed, order of

Consolidation Officer was reversed. Having been aggrieved, revision was

8 of 26

preferred and the Deputy Director of Consolidation has upheld the order

passed by the Consolidation Officer. In writ petition, order of the

Consolidation Officer had been affirmed. At subsequent stage, civil suit

had been filed for the declaration that order of Deputy Director of

Consolidation was without jurisdiction. Contesting the suit, other side has

raised preliminary objection that the suit is barred under Section 49 of the

U.P.C.H. Act. Learned trial court has allowed the preliminary objection

which has been upheld up to the stage of second appeal before Hon'ble

High Court. Learned counsel for the appellant before Hon'ble Supreme

Court came with the plea that the bar under Section 49 of the U.P.C.H.

Act is not applicable to the suit on two grounds; that consolidation

authorities could not decide question as to title to the land, and question

relating to the parentage of the respondent, which the civil court alone

could decide.

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

that:

“From a perusal of Section 49 it is evident that

declaration and adjudication of rights of tenure-holders

in respect of land lying in an area for which a notification

has been issued under Section 4(2) and adjudication of

any other right arising out of consolidation proceedings

and in regard to which a proceeding could or ought to

have been taken under the Act, had to be done in

accordance with the provisions of the Act only and the

jurisdiction of the civil or revenue courts to entertain any

suit or proceeding with respect to rights in such land or

with respect to any other matter for which a proceeding

could or ought to have been taken under the Act, has been

taken away. The language used in Section 49 is wide and

comprehensive. Declaration and adjudication of rights of

tenure-holders in respect of land lying in the area covered

by the notification under Section 4(2) of the Act and

adjudication of any other right arising out of

consolidation proceedings and in regard to which a

proceeding could or ought to have been taken under the

Act, would cover adjudication of questions as to title in

respect of the said lands. This view also finds support

9 of 26

from the other provisions of the Act and the amendments

that have been introduced therein.”

13. Section 49 of the U.P.C.H. Act, which bars the jurisdiction of the

civil court and the revenue court, gives affect to the provisions enunciated

under Section 5(2) of the U.P.C.H. Act, thus, to better understand the

provisions of Section 49 of the U.P.C.H. Act, the provisions enunciated

under Section 5(2) of the U.P.C.H. Act are also referable which denotes

the effect of notification under Section 4(2) of U.P.C.H. Act that, at the

advent of consolidation operation by way of notification under Section 4

(2) of the U.P.C.H. Act in the official gazette, until the publication of

denotification under Section 52 of the U.P.C.H. Act or cancellation of

such notification under Section 6 of the U.P.C.H. Act, as the case may be,

every proceeding for correction of record and every suit and proceeding in

respect of declaration of right or interest in any land lying in the area of

notification, or of declaration or adjudication of any other right in regard

to which proceedings can or ought to be taken under this Act, pending

before any court or authority, whether of the first instance or of appeal,

reference or revision, shall on an order been passed on behalf of the court

or authority before whom such suit or proceeding is pending, stand

abated. Thus, the bar under Section 5(2) of the U.P.C.H. Act and the bar

under Section 49 of the U.P.C.H. Act are operating in different

dimensions, however, Section 49 is adjuvant to preserve the legal sanctity

of declaration and adjudication of any right during the consolidation

operation. Section 5 of the U.P.C.H. Act operates when the unit/area is

notified for consolidation operation under Section 4 (2) of the U.P.C.H.

Act, to wit, during the consolidation operation, before it’s cessation under

Section 6 or completion by denotification under Section 52. However, in

furtherance of Section 5, the bar under Section 49 of the U.P.C.H. Act

operates after de-notification under Section 52 of the U.P.C.H. Act, when

the right, title and interest of the parties and other rights arising out of

10 of 26

consolidation operation has attained finality. While enforcing the bar

under Section 49 of the U.P.C.H. Act, legislation is intended to cut short

the multiple litigations and do not encourage the litigants to indulge in

unended litigation process to get their right, title and interest adjudicate

upon qua property in question. The phrase employed under Section 49 of

the U.P.C.H. Act in the last part of the Section i.e. "for which a proceeding

could or ought to have been taken under this Act" is quite meaningful and

significant to preclude the jurisdiction of Civil Courts and Revenue

Courts from entertaining any such litigation to adjudicate and declare the

right, title and interest of the parties with respect to land which has

already passed through consolidation operation and record of rights are

finalized with respect thereto after de-notification under section 52 of the

U.P.C.H. Act. Any tenure holder who ought to have vigilant and could

have raised his voice by way of filing an appropriate objections under the

U.P.C.H. Act during consolidation operation, if so reluctant and not filed

an appropriate objection, would be stopped from raising such objection at

subsequent stage before any civil or revenue court. In the matter of Sita

Ram (supra) Hon'ble Supreme Court has observed that :

“As a result of the said amendment which has been

introduced in Section 5 the right of the Courts to

adjudicate in respect of declaration of rights or interest in

any land lying in the area for which the notification has

been issued under Section 4(2) or for declaration or

adjudication of any other right in regard to which

proceedings can or ought to be taken under the Act has

been completely taken away and the adjudication of these

rights is to be done by the consolidation authorities under

and in accordance with the provisions of the Act and the

Rules made thereunder. Section 49 of the Act which bars

the jurisdiction of the civil and revenue Courts gives

effect to the aforesaid provisions contained in Section

5(2) of the Act. As a result of these amendments civil and

revenue Courts have no role in the matter of

determination of rights or interests in any land lying in

the area for which notice has been issued under Section

4(2) of the Act or for the declaration or adjudication of

11 of 26

any other right in regard to which proceedings can or

ought to be taken under the Act.

xx xx xx

In the instant case respondent No. 1 was claiming an

interest in the land lying in the area covered by

notification issued under section 4(2) on the basis that he

is the son of Chhota, brother of Nanha and that the lands

were recorded in the name of Nanha in a representative

capacity on behalf of himself and his other brothers. This

claim which fell within the ambit of Section 5(2) had to be

adjudicated by the consolidation authorities. Since it was

a matter falling within the scope of adjudicatory functions

assigned to the consolidation authorities under the Act

the jurisdiction of the Civil Court to entertain the suit in

respect of the said matter was expressly barred by Section

49 of the Act and the suit of the appellant was rightly

dismissed on that ground.”

(emphasis supplied)

14.However, through judicial proclamation, an exception on the

ground of fraud has been carved out under the legal presumption that

fraud vitiates everything, even solemn acts of judicial proceedings. The

learned counsel for the petitioner has emphasized on this point and

submitted that fraud has been played upon plaintiff/petitioner and his

name has been got expunged from the revenue record. The defendants got

their names recorded during consolidation operation, despite the fact that

plaintiff/petitioner has executed a power of attorney in favour of Nanhu

Singh to get the entry corrected during the consolidation operation. In all

the cited cases relied upon by the learned counsel for the petitioner, one

thing is common which has been taken into account by the Hon’ble High

Court and the Hon’ble Supreme Court that aggrieved persons have their

pre-existing co-tenancy over the holding in question and having

considered the pre-existing right, it has been summarised by Hon’ble

Courts concerned that by playing fraud upon the party his name was left

to be recorded during the consolidation operation, to wit, after notification

promulgated under Section 4(2) and before de-notification promulgated

under Section 52 of U.P.C.H. Act. Thus, in the eventuality of fraud, it

12 of 26

would not be justifiable to hold the suit filed on behalf of the aggrieved

person at subsequent stage barred under Section 49 of U.P.C.H. Act.

15.To elucidate this proposition, I would like to discuss all the cited

cases relied upon by the learned counsel for the petitioner. In the matter of

Ram Briksha and another (supra), decided by Division Bench of this

Court, the facts giving rise to the said writ petition are that Ram Briksha

(petitioner) was recorded in the basic consolidation record. In the

previous consolidation operation, no objection was filed by Ram Vilas,

however, in subsequent consolidation operation, he has filed an objection

under Section 9A-2 of U.P.C.H. Act claiming himself as the real brother

of the petitioner whose name got expunged by playing fraud. The

petitioner (Ram Briksha) has contested the case with the plea that while

the objection was not filed in the previous consolidation operation and

finality is attached with the final consolidation record, the objection filed

in the subsequent consolidation operation is barred under Section 49 of

U.P.C.H. Act. In this backdrop of the facts, co-ordinate bench of this court

has formulated three questions and referred the matter before Division

Bench for consideration, which are quoted herein below:-

"(i) Whether use of words "could or ought to have been taken"

in latter part of Section 49 of the Act, compulsorily forces the

co-sharers, who are living jointly, peacefully and have no

grievance against their father/brother/co-sharer, whose name is

recorded in representative capacity, or they were willing to live

jointly, due to situation of their family, i.e. (father and minor

son), (mother and minor son), (brother and minor brother) and

(some co-sharer was student and had gone abroad for study

and fully depends upon other co-sharers) etc., to file an

objection under Section 9 of the Act for separation of his

share?

(ii) Whether by operation of law, the parties can be thrown into

litigation against their will/need and by not raising claim to

land or partition and separation of the chak their right to

property can be taken away in spite of protection available

under Article 19 (1) (f) and now Article 300-A of the

Constitution?

13 of 26

(iii) Whether, in spite of well settled legal principle in respect

of joint property, right of a co-sharer will come to an end under

Section 49 of the Act, on the notification under Section 52, due

to not claiming partition of his share and separate chak in his

name, although, there had been no ouster from joint property?"

16. Replying all the three questions, Hon’ble Division Bench has held that

right of the parties in the holdings cannot be directed to be defeated

merely because they have not at all participated in the consolidation

proceedings and as to whether the bar under Section 49 of U.P.C.H. Act

would be attracted or not, would essentially be a question of fact that can

be answered on the basis of evidence adduced and to said bar in question,

exceptions have to be carved out wherein suit in question would not be

barred and Section 49 of U.P.C.H. Act would not come into play where

from the series of documents and circumstances it is reflected that

planned fraud has been made to delete the plaintiff's name from the

revenue record. From the record of the consolidations, it is clearly

reflected that neither the incumbent, who has proceeded to get his name

recorded, nor consolidation authorities have proceeded to discharge their

duties faithfully in consonance with the provisions of U.P.C.H. Act

wherein consolidation authorities are empowered to ascertain the share of

each owner if there be more owners than one and if such an exercise has

not been undertaken, then it would be a case of legal malice and it cannot

be ipso facto presumed that there has been ouster from the property in

question and in such situation any incumbent, who claims his right in the

property in question, has got every right to regain his property based on

title for the reason that right has been sought to be defeated based on fraud

and manipulation.

(emphasis supplied)

17. Answers given by Hon’ble Division Bench for all the three referred

questions are quoted hereinbelow:

14 of 26

Issue No. I:- Because of the words "could or ought to have

been taken" in latter part of Section 49 of the Act, same does

not compulsorily forces the 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 and who have not filed an objection

under Section 49 of the Act for separation of their share

inasmuch as under the provisions of U.P. Consolidation of

Holdings Act, 1953, it is the statutory obligation cast upon the

authorities and the incumbent, who has been holding the

property in question in the representative capacity to get the

records corrected and in case in designed manner the

obligation in question has not been discharged by

Consolidation Authorities as well as by the incumbent holding

the property in the representative capacity, then in such a

situation Section 49 of the Act would not at all be attracted and

such situation would be covered under the contingency of

planned fraud to drop the name of other co-sharers from the

revenue records.

Issue No. II:- The answer is that a party cannot be thrown in

litigation against their will/need and by not raising claim to

land of partition and separation of chak, their rights to property

cannot be taken away under the protection provided for under

Article 19(1)(f)/ Article 300-A of the Constitution of India.

Issue No. III:- The rights of the co-sharers will not at all come

to an end under Section 49 of the Act, on the notification under

Section 52 due to not claiming partition of his share and

separate chak in his name and till there is no ouster from the

joint property his right in the property will continue to exist.

18. Hon’ble Division Bench, as mentioned above, has acknowledged the

pre-existing co-tenancy right of Ram Vilas being a co-sharer along with

his brother, whose name was left to be recorded in the first consolidation

operation due to some inadvertent mistake or fraud. Thus, in this

backdrop, Hon’ble Division Bench came to the conclusion that his pre-

existing right cannot be curtailed on the ground of bar under Section 49 of

UPCH Act.

19. Almost similar facts were examined by Co-ordinate Bench of this

Court in the case of Sagir Ahmad and others (supra) wherein pedigree

15 of 26

was admitted to both the parties. Mr. Bechai Shah and Bhaggu Shah S/O

Wazid Shah were real brothers. In the first consolidation operation, the

name of Bechai Shah was exclusively recorded, however, name of

Bhaggu Shah was left to be recorded despite the fact that in Khatauni

pertaining to 1359 F. name of both the brothers were jointly recorded. On

the advent of second consolidation operation, Bhaggu Shah has filed

objection under Section 9A-2 of UPCH Act claiming co-tenancy rights

along with his brother, after his death along with his heirs, to the land in

question. The co-ordinate Bench of this Court, relying upon the verdict of

Division Bench of this Court in the matter of Ram Briksha (supra), came

to the conclusion that the bar of Section 49 of UPCH Act would not

operate where it is reflected from the record and circumstances that name

of the recorded tenure holder has been removed by playing fraud.

Accordingly, if it is found that name of recorded tenure holder or co-

sharer has been expunged from the revenue record by playing planned

fraud, it would be a case of legal malice and in such situation, the person

whose name has been expunged will have right to claim the property in

question based on title for reason that such a right has been established to

be defeated on manipulated.

20. Case of Amar Singh (supra), relied upon by learned counsel for the

petitioner, is sailing on the same boat so far as it relates to the facts of the

case wherein plot in dispute was purchased through registered sale deed

dated 17.03.1969 by plaintiff (Saru) and defendant (Amar Singh-

petitioner). The case of the plaintiff was that the defendant/petitioner used

to look after the cases in different courts and plaintiff used to live in a

forest being gadariya, looking after his goats. However, he has been

duped by defendant in removing his name from the revenue record.

Plaintiff has also claimed that after the registered sale deed dated

17.03.1969, both the parties came in possession over the subject matter of

the sale deed (suit property). Thus, in this backdrop of the facts, it has

been held that a co-sharer, who claimed to be in the possession over the

16 of 26

property in question and his name being not recorded in the consolidation

proceeding, is not debarred from bringing a suit under 229 B of Act, 1950

for correcting the land revenue entries and recording his name also if

allegation is that his name was removed by practising fraud on him. In

support of his observation learned coordinate Bench of this Court has

relied upon the case of Karbalai Begum vs. Mohd. Sayeed and another,

AIR 1981 SC 77.

21. Hon’ble Supreme Court in the matter of Karbalai Begum (supra) had

an occasion to consider the scope of bar under Section 49 of U.P.C.H. Act.

In the peculiar facts and circumstance, Karbalai Begum (appellant before

Hon’ble Supreme Court) had been denied her co-tenancy right over the

property in question on the ground of bar under Section 49 of U.P.C.H.

Act. The facts giving rise to the aforesaid case was that Karbalai Begum

(widow) was co-tenant with the defendants no.1 and 2 who were cousins

of her husband. They were in joint possession of the plot in dispute being

co-bhumidhars. They had a joint khata upto 1959 fasli. During

consolidation proceeding, name of defendants were exclusively recorded

over the plot in question. At later stage, Karbalai Begum had filed a suit

for co-tenancy to the extent of her share. The defendants came with the

plea that the suit is barred under Section 49 of U.P.C.H. Act inasmuch as

right and title of the parties became final during consolidation operation.

The trial court has dismissed the suit, however, the District Judge, on

appeal being filed, has allowed the same with specific finding of fact that

clear fraud was committed during consolidation operation either by the

defendants or by somebody else as a result whereof rights of the plaintiff

was said to be extinguished. Hon’ble High Court, in second appeal, has

reversed the judgment passed by the District Judge for want of evidence

to prove the fraud committed by the consolidation authorities. Hon’ble

Supreme Court has affirmed the finding returned by the District Judge and

held that fraud was practised upon Karbalai Begum which resulted in

extinguishing her name during consolidation operation. In this backdrop

17 of 26

of facts, the Hon’ble Supreme Court has held that bar under Section 49 of

U.P.C.H. Act will not apply in the matter of fraud where co-tenancy has

been denied. It has further been observed that it is well settled that mere

non-participation in the rent and profit of the land of the co-sharer, does

not amount to an ouster so as to give title by adverse possession to the co-

sharer in possession. Indeed, even if this fact be admitted, the legal

position would be that defendant no.1 (Mohd. Bashir) and defendant no.2

(Mohd. Rashid), being co-sharers of plaintiff, would become constructive

trustees on behalf of the plaintiff and the right of plaintiff would be

deemed to be protected by the trustees.

(Emphasis added)

22. However, in the case of Narendra Singh and others vs. Jai

Bhagwan AIR 2005 SC 582, relied upon by the Hon’ble Division Bench

in the matter of Ram Briksha and another (supra), Hon’ble Supreme

Court has held that the High Court was right in invoking the plea of bar

under Section 49 of U.P.C.H. Act. In the cited case, Hon’ble Supreme

Court has observed that the argument that relevant entry in the name of

father should have been treated in the representative capacity for sons is

misleading. Whether the father was Karta or manager of family and as

such, could have recorded in the representative capacity for all corners in

the family was also a question of title which fell within the exclusive

jurisdiction of the authorities under the Act.

23. In view of the discussion made in preceding paragraph, this Court is

sceptical of the submission advanced by learned counsel for the petitioner

that bar under Section 49 applies only for certain period which starts from

the promulgation of notification under Section 4(2) of U.P.C.H. Act till

the notification promulgated under Section 52 of U.P.C.H. Act. In support

of this submission, learned counsel for the petitioner has placed reliance

upon the latest judgment of Hon’ble Supreme Court in the matter of

Prashant Singh and Others Vs. Meena and Others 2024(9) ADJ 187.

18 of 26

Paragraph no.9 relied upon by learned counsel for the petitioner is quoted

herein below:

“ 9. On a plain reading, we find that Section 49 of the 1953 Act

contemplates bar to the jurisdiction of the Civil or Revenue

Court for the grant of declaration or adjudication of rights of

tenure holders in respect of land lying in an area for which

consolidation proceedings have commenced. Section 49 of the

1953 Act is a provision of transitory suspension of jurisdiction

of Civil or Revenue Court only during the period when

consolidation proceedings are pending. Notably, such

suspension of jurisdiction of these Courts through the non

obstante provision is only with respect to the declaration and

adjudication of rights of tenure holders. In other words, unless

a person is a pre-existing tenure holder, Section 49 does not

come into operation.”

24. Facts giving rise to the cited case is similar to the facts of the case, as

discussed above, wherein co-tenancy right of aggrieved person has been

denied by the recorded tenure holders. In the cited case subject matter of

the suit is an ancestral property originally owned by one Angat who died

leaving behind his three sons namely Ramji Lal, Khushi Ram and Pyara.

Subsequently, Pyara died issueless and his share devolved equaly upon his

two brothers. Khushi Ram died as well leaving behind his son namely

Kalyan Singh. During consolidation operation, record had been

manipulated to delete the name of Kalyan Singh and he had been shown

missing. Having been aggrieved, Kalyan Singh has instituted a suit for

declaration to the extent of his half share over the property in question.

Learned trial court has decreed the suit giving co-tenancy right to Kalyan

Singh. The first appellate court has affirmed the order passed by the trial

court. The Board of Revenue, on second appeal being filed, remitted the

matter before the trial court to decide afresh after framing an issue with

respect to applicability of Section 34 of Specific Relief Act. Writ Petition

filed by Kalyan Singh assailing the order passed by the Board of Revenue

was allowed. Plea was raised before the Hon’ble Supreme Court that suit

filed by Kalyan Singh was barred under Section 49 of U.P.C.H. Act. In

this backdrop of the facts, Hon’ble Supreme Court has held that the

19 of 26

provisions under the U.P.C.H. Act does not enable the Consolidation

Officer to grant ownership to Ramji Lal (uncle of Kalyan Singh) in

respect of a property, which, before consolidation proceeding, never

vested in him. Vice versa, the Consolidation Officer could not take away

the ownership right of Kalyan Singh which he had already inherited much

before commencement of the consolidation proceeding. There is no doubt

that the power to declare the ownership in an immovable property can be

exercised by a civil court, however, same can be interpreted in light of the

provisions under Section 5 of C.P.C. whereby local law has been given

priority. Thus, declaration of right and title of the parties pertains to

agriculture land can only be examined in the revenue courts, to wit, either

under the Act No.50 (now substituted by U.P. Revenue Code, 2016) or

U.P.C.H. Act. Hon’ble Supreme Court, in the cited case, having

considered the non obstante clause enunciated under Section 49 of

U.P.C.H. Act, has clarified in the later part of the paragraph no.9 that

suspension of jurisdiction of Civil Court and the Revenue Court through

non obstante provisions is only with respect to the declaration and

adjudication of rights of tenure holders. It has further been clarified that

unless a person is pre existing tenure holder, section 49 does not come

into operation, thus, aggrieved person has to prove his pre existing legal

right and title over the property in question in case he wants bypass the

bar under Section 49 of U.P.C.H. Act. In the given circumstances of the

present case, petitioner is claiming his alleged pre existing right through

mortgage deed dated 04.03.1901 and subsequent order passed in Original

Suit No. 418 of 1911. However, subsequent decree dated 03.03.1946

passed in suit for redemption/possession has not been denied by the

plaintiff except questioning its legality on the ground of previous decree

passed in Suit No. 418 of 1911. In my considered opinion, once the suit

for redemption/recovery of possession filed on behalf of the mortgagor

has been decreed and possession has been delivered to him, plea raised on

behalf of the petitioner (alleged descendent from mortgagee) qua

20 of 26

foreclosure of the mortgage and previous judgment in Suit No. 418 of

1911 has got no substance in the eye of law. It would be apposite to

mention that mortgagor has filed a suit under Section 99 of Agra Tenancy

Act 1926 (U.P. Act No. 3 of 1926) which is quoted herein below:

“ 99. Resolution of wrongful ejectment.—(1) Any tenant or

rent-free grantee ejected from or prevented from obtaining

possession of his holding or any part thereof, otherwise than in

accordance with the provisions of this Act, by -

(a) his landlord or any person claiming as land-holder to have

a right to eject him, or

(b) any net of oaring through such land-holder or person,

whether as as tenant or otherwise,

may sue the person person so ejecting him or keeping him out

of possession—

(i) for possession of the holding ;

(ii) for compensation for wrongful dispossession; and

(iii) for compensation for any improvement he may have

made :Provided that no decree for possession shall be passed

where the tenant, at the time of the passing of the decree, is

liable to ejectment in accordance with the provisions of this

Act within the current agricultural year.

(2) If the decree is for possession no compensation for an

improvement shall be awarded.

(3) When a decree is given for compensation for wrongful

dispossession but not for possession, the compensation

awarded shall be for the whole period during which the tenant

was entitled to remain in possession.

(4) A tenant who has sued for possession only shall not be

entitled to instituted a separate suit for compensation for

wrongful dispossession, or for an improvement, in respect of

the same cause of action.”

25. Section 99 of the Agra Tenancy Act 1926 (U.P. Act No. 3 of 1926), as

quoted above, denotes that suit for recovery of possession can be filed

against the wrongful ejectment. Aforesaid suit being O.S. No. 4/5, filed on

09.09.1935, was allowed on 29.02.1936 with a direction to deliver the

possession to the plaintiff over the property in question with the cost

21 of 26

amounting Rs. 133/-. Copies of the judgment dated 29.02.1936 and decree

dated 03.03.1946 are annexed as Annexure no. CA-1 and CA-2 to the

counter affidavit. Existence of the aforesaid judgment and decree has not

specifically been denied in paragraph no.5 of the rejoinder affidavit

except an averment that subsequent suit alleged in the para under reply

has no significance and material bearing on the controversy involved

between the parties on account of existence of previous decree dated

26.02.1912 passed in Suit No. 418 of 1911.

26. So far as the entry in the land revenue record is concerned, learned

trial court in its order dated 07.11.2007 has unequivocally observed that in

1356 fasali, 1348 fasali and 1359 fasali, name of the petitioner is not

recorded in the revenue record. Petitioner has filed the extract of khatauni

1348 fasali and khatauni 1366 -1369 fasali to demonstrate that name of

Ram Dulari wife of Urmakhan Lal Dubey is recorded as the mortgagee.

Perusal of aforesaid document as annexed in the writ petition evince that

in the column of tenure holder, name of predecessors-in-interest of

defendants/respondents is recorded and below their name, name of Ram

Dulari is recorded as mortgagee. It would be apposite to mention that in

the judgment dated 29.02.1936 passed in Suit No. 4/5, Ram Dulari was

directed to deliver the possession of property in question in favour of

Daulat Singh (predecessor-in-interest of contesting respondents). There is

no credible evidence on the record to prove that name of plaintiff or his

predecessors were ever recorded in the land revenue record being a co-

tenure holder of land in question. Under the old Acts viz. N.W.P. Tenancy

Act 1901, U.P. Act no. 3 of 1926 and U.P. Tenancy Act 1939, mere entry

of mortgagee, prima facie, would not confer any type of tenurial right in

favour of the plaintiff-petitioner over the property in question, that too,

qua land which was recorded as “Asamiyan Dakheekar” under class 6(1).

At this juncture, it would not be befitting to make any comment qua

entries in the khatauni as mentioned above which has not been discussed

by the courts below. Therefore, in the light of the subsequent judgment

22 of 26

passed by court competent under Section 99 of U.P. Act No. 3 of 1926,

plaintiff/petitioner cannot be considered to be a co-tenure holder or co-

sharer/bhoomidhar or bhoomidhar with transferable right in his exclusive

ownership. Thus, case of Prashant Singh (supra) decided by Hon’ble

Supreme Court is not applicable in the instant matter.

27. Last submission advanced by learned counsel for the petitioner qua

fraud committed on plaintiff/petitioner by Nanhu Singh has got no

substance in the eye of law, as well. Mere assertion of fraud is not

sufficient to render the judicial proceeding concluded by the court

competent illegal unless it is proved by credible and unimpeachable

evidence. As per plaintiff’s case, he has executed a power of attorney in

favour of Nanhu Singh to get the land revenue entry corrected in his name

during the consolidation operation. Pleading in the plaint in this regard

has specifically been denied by defendants-respondents in written

statement. In support of the aforesaid pleading no documentary evidence

has been filed before any of the three revenue courts. However, for the

first time, petitioner has filed the photostat copy of alleged power of

attorney dated 22.08.1966 as Annexure no. 5 to the writ petition. Bare

perusal of aforesaid power of attorney evince that it is an unregistered

document bearing signature of the present petitioner and two witnesses.

Respondents have specifically denied this document in para 12 of counter

affidavit and contended that under the garb of fabricted Power of

Attorney, petitioner has played fraud.

28. In my considered opinion, document filed for the first time before this

Court is not admissible in evidence, that too, same is a photostat copy of

unregistered document. Coordinate bench of this Court in the matter of

Mangaroo (dead) Through LRs. And Others Vs. Deputy Director of

Consolidation, Deoria and Others, (2011) 113 RD 300 has made an

observation that fraud cannot be inferred on mere allegation. Relevant

paragraph no.9 of the aforesaid judgment is quoted herein below:

23 of 26

“9. The respondents further alleged that fraud had been

practised on them. In the opinion of the Court, fraud cannot be

inferred on mere allegations. It has to be established on facts

or on the basis of proven facts. The connotation of fraud has

been explained in the case of State of Andhra Pradesh v. T.

Suryachandra Rao, paragraphs 4 to 14. Fraud therefore has to

be proved. A mere allegation would not sufficient to establish

fraud. This aspect has also been dealt with by the Apex Court

in the case of Indian Bank v. Satyam Fibres (India) Pvt. Ltd.2,

The said decision relies on a Privy Council decision in the case

of Satish Chandra Chatterji v. Kumar Satish Kantha Roy, and

the relevant paragraph for the said proposition as extracted in

the Apex Court judgment is quoted below:

"Charges of fraud and collusion like those contained in the

plaint in this case must, no doubt, be proved by those who

make them - proved by established facts or inferences

legitimately drawn from those facts taken together as a whole.

Suspicions and surmises and conjecture are not permissible

substitutes for those facts or those inferences, but that by no

means requires that every puzzling artifice or contrivance

restored to by one accused of fraud must necessarily be

completely unravelled and cleared up and made plain before a

verdict can be properly found against him. If this were not so,

many a clever and dextrous knave would escape."

29. Hon’ble Supreme Court has elucidated the scope of fraud in the matter

of Harjas Rai Makhija (D) Through LRS. Vs. Pushparani Jain and

Another, decided on January 2, 2017 reported in 2017 (134) RD 811 and

held that fraud has a definite meaning in the law and it must be proved

and not merely alleged and inferred. Relevant paragraph no.21 of the

aforesaid judgment is quoted herein below:

“ 21. We agree that when there is an allegation of fraud by

non-disclosure of necessary and relevant facts or concealment

of material facts, it must be inquired into. It is only after

24 of 26

evidence is led coupled with intent to deceive that a conclusion

of fraud could be arrived at. A mere concealment or non-

disclosure without intent to deceive or a bald allegation of

fraud without proof and intent to deceive would not render a

decree obtained by a party as fraudulent. To conclude in a

blanket manner that in every case where relevant facts are not

disclosed, the decree obtained would be fraudulent, is

stretching the principle to a vanishing point.”

30. Having considered the aforesaid judgments in the given circumstances

of the present case and discussion as made by this Court in preceding

paragraphs, it is evident that no case of fraud could be made out in the

instant matter, inasmuch as plaintiff-petitioner is throughout claiming his

right and title over the property in question being mortgagee. However, in

pursuance of the judgment passed in Suit No. 4/5 under Section 99 of U.P.

Act No. 3 of 1926 possession of the property has been handed over to the

mortgagor (defendant-respondent). Thus, right of the mortgagee, if any,

comes to an end. Mortgagee (plaintiff-petitioner or his predecessor in his

interest) were never recorded in the land revenue record in their individual

capacity being a co-tenure holder with the defendants (mortgagor). Facts

and circumstances of all the cited cases relied upon by learned counsel for

the petitioner is distinguishable in the given circumstances of the present

case. Right and title of the plaintiff/petitioner in the property in question

cannot be said to be a pre existing co-tenancy right. Assuming arguendo

that he was in the possession over the property in question in pursuance of

the decree passed in the year 1912, his possession came to an end in year

1946 in compliance of judgement and decree passed in Suit No. 4/5, to

wit, before zamindari abolition and enforcement of the U.P.C.H. Act. On

the date of advent of consolidation operation, his name was not recorded

in the basic consolidation record, thus, plea of fraud as raised on behalf of

the plaintiff-petitioner cannot be substantiated in the facts and

circumstances of the present case. The alleged power of attorney relied

upon by the plaintiff is itself under cloud, as discussed above.

25 of 26

31. In this conspectus, as above, I do not find any justifiable and

convincing ground to warrant the indulgence of this court in exercise of

extraordinary jurisdiction under Article 226 of the Constitution of India.

There is nothing on record to demonstrate as to how the petitioner is

prejudiced, or is there any likelihood of causing miscarriage of justice to

him, owing to the order impugned passed by all the three revenue courts.

There is no illegality, perversity, ambiguity or infirmity in the order under

challenge.

32. Resultantly, instant writ petition, being devoid on merits and

misconceived, is dismissed with no order as to costs.

Order Date :-24.4.2025

vinay/vkg/VR/sumit

26 of 26