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CASE NO.: Appeal (civil)  6302 of 2001

PETITIONER: Audhar & Ors.                                    

RESPONDENT: Chandrapati  & Ors                               

DATE OF JUDGMENT: 20//03

BENCH: Shivaraj V. Patil & D.M. Dharmadhikari

JUDGMENT: J U D G M E N T With Civil Appeal No. 6303 of 2001

Dharmadhikari J.         A common judgment is being passed in these two appeals as  the subject matter of dispute in both of them is the same. Civil  Appeal No. 6302 of 2001 has been preferred against the judgment  dated 24.8.1998 passed by the learned single Judge of  the Allahabad  High Court in Civil Misc. Writ Petition No. 678 of 1979. Rejection by  order dated dated 09.12.1998 of Review Petition No. 54933/98 filed  by the appellants against the said judgement has given rise to  connected Civil Appeal No. 6303 of 2001.          The facts of this case are many and somewhat complicated but  the question of law involved is a short one.  

       It is not disputed by the appellants, as is apparent from the  contents of their petition for special leave, that the lands in Khata  Nos. 91, 92, 95 and 96 are tenancy lands of category ’Bhumidari’   and other lands in dispute in Khata Nos. 256, 283, 356 and 357 are  tenancy lands of another category ’Sirdari’. The lands are in village  Patilo Gausput, District Azam Garh in the State of Uttar Pradesh.  

       The writ petition before the High Court arose out of order dated   09.11.1976 of the Assistant Director, Consolidation, Azam Garh which  was passed in exercise of his revisional powers  under Section 48 of  the U.P. Consolidation of Holdings Act of 1953 [for short ’the  Consolidation Act of 1953].  

       Bereft of unnecessary details, the relevant facts are as under:-

       The main ancestor of the parties named Duggan was survived  by four sons viz., Prag, Tulsi, Narain and Ram Saran. Narain died  issueless. The elder son â\200\223 Prag left behind a  son  named Abhilash.  Abhilash died in the year 1922 leaving behind widow Akashi. She died  in 1951.  The lands in dispute constituting her alleged 1/4th share  were gifted by her during her lifetime on 02.5.1945 in favour of her  two daughters namely Mitia and Basanti. Contesting respondents â\200\223  Chandrapati and Mannar are sons respectively of Mitia and Basanti  and they now claim 1/4th interest in all the properties  left behind by  Parag and his son - Abhilash.  

       The appellants represent the branches of two other sons of  Duggan viz., Tulsi and Ram Saran.  

       For better appreciation of the relationship between the parties,  the following pedigree as contained in the impugned judgment of the  High Court may be reproduced :-

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Duggan(d)

              Prag(died)                        Tulsi(died)            Narain          Ram  Saran (died)                                             (1924)      (died in 1924)              (1924)

            Abhilash                                                      Manbodh (died)               (died in 1922)                            Bhajju      Guddar        Balbhadar               Bhola(died)                           (died)              (died)    (died)                     (Appellan t No.5)              Mst. Akashi                  (died 18.10.1951)

                                                         Audhar      Sehdar     Kanahi     Sonai                                         ( all  appellants)         

   Smt.  Mitia                    Smt. Basanti                            Lalsa                    Kalsa      (Married)              (Married & died in 1968)                       (appellants 5/1 &  5/2)                     

  Chandrapati              Mannar       (respondent no.1)       (respondent no.2)

       In the proceedings for consolidation under the Consolidation Act  of 1953, the present appellants, who represent the branches of two  sons of main ancestor â\200\223 Duggan viz.,  Tulsi and Ram Saran, objected  to the entry in the Khatas of the names of contesting respondents  Chandrapati and Mannar. It was contended that widow â\200\223 Akashi got  only a limited estate in 1/4th share of her husband Abhilash who died  in the year 1922. According to the appellants, the Khatas included  Khudkasht and Sir lands. The mode of succession to Sir and  Khudkasht lands was in accordance with the personal law meaning  uncodified Hindu Law  as was applicable on the date of death of  Abhilash in the year 1922. It is contended that Akashi had inherited  her husband’s 1/4th share as a  limited owner for the period of her  life.  The gift deed executed by her on 2.5.1945 in favour of her two  daughters could create title in favour of  her daughters only till her  lifetime. On her death in the year 1951, the daughters could claim no  title in the lands gifted in their favour and the contesting respondents  as their heirs derived no title. .  

       On behalf of the contesting respondents, who represent the  branch of Abhilash, the objection in consolidation proceedings raised  by the present appellants was repelled by contending that both under  the   Agra  Tenancy  Act, 1926  which  was  applicable  when   Abhilash died in the year 1922 and United Provinces Tenancy Act of  1939, there was a separate mode of succession prescribed for  tenancy lands of the category of ’Bhumidari’ and ’Sridari’.  Later  under Uttar Pradesh Zamindari Abolition & Land reforms Act, 1950  which governed mode of succession to tenancy lands, widow is a  preferential heir to male collaterals in another branch of deceased  Abhilash. It is submitted by contesting respondents that Khatas in  dispute did not contain Khudkasht and Sir lands  hence succession to  them was not governed by Personal Law i.e.  Hindu Law.  

       The revisional authority in consolidation proceedings and the

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High Court in writ petition accepted the contention advanced by the  contesting respondents. It has been held that the lands being  tenancy lands of the category of  ’Bhumidari’ and ’Sridari’  governed  by the special mode of succession prescribed in the tenancy law, the  contesting respondents representing branch of Abhilash and widow  Akashi have derived a valid title by inheritance to lands and they are  entitled to seek mutation of their names in the Khatas which they  have received under a decree passed in partition suit filed by them.  

       The learned counsel appearing for the appellants has made  strenuous effort to assail the correctness of the order of the revisional  authority passed under the Consolidation Act of 1953 which has been  affirmed by the High Court. From the arguments advanced what we  have been able to gather is that according to the appellants, some  lands in Khatas in dispute are ’Sir’ and ’Khudkasht’ lands and the  succession in respect thereof was governed by Hindu Law and not by  special mode of succession provided in the tenancy laws. It is also  pointed out that there was a civil litigation between the parties on the  validity of the  gift deed in which the civil court had delivered  judgment declaring the gift deed executed by widow Akashi in favour  of her daughters as invalid. The learned counsel for the appellants  thus submits that  ignoring the above facts and the legal position, the  revisional authority under the Consolidation Act of 1953 committed  error in rejecting the objection of the appellants to the claim of entry  of the names of the contesting respondents in the Khatas.  

       We have heard in reply the learned counsel appearing for the  contesting respondents. It is pointed out that throughout in the  proceedings before the authorities under the Consolidation Act of  1953 and in the High Court, it was never disputed that the lands in  the Khatas in dispute before us were tenancy land and were neither  Sir nor Khudkasht lands.                  All tenancy lands in possession of intermediaries including of  the categories ’Bhumidari’ and ’Sir’ are saved from vesting in the  State under Sections 18 & 19 of the UP Zamindari Abolition and  Land  Reforms Act, 1950. Under special mode of succession provided in  tenancy law, Akashi had inherited the land not as limited owner but  as absolute owner. She was the preferential heir in the absence of  any male descendant of her husband-Abhilash.  She being an  absolute owner of the land inherited by her as sole heir of her  husband  could make a valid gift in favour of her daughters. Even in  the absence of Gift-deed after death of widow Akashi on 18.10.1951,  in accordance with the special mode of succession provided in Section  172 read with Section 171 of the UP Zamindari Abolition and Land  Reforms Act, 1950, her daughters (married or unmarried) were  preferential heirs to  male collaterals in branches of her husband’s   brothers.  

       The legal position thus not in dispute is that if the lands were  tenancy lands, both under the Agra Tenancy Act, 1926 and U.P.  Tenancy Act, 1939, the widow of a holder had a right to inherit as an  absolute owner from her husband. The argument, therefore,  advanced on the basis that the lands were Sir and Khudkasht is  misleading and not based on facts pleaded and found. Such argument  was rightly not considered by the High Court and rejected by the  revisional Authority under the Consolidation Act of 1953. We also  reject the same as being without any basis.  

       So far as the argument based on the civil litigation between the  parties is concerned, the respondents in their counter affidavit have  given full history of the civil litigation. It shows that the judgment of  the trial court in the civil suit did not attain finality on the question of  validity of the gift deed. Civil Suit No. 900 of 1951  was filed by the  predecessor-in-title of the appellants against the two daughters of

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widow Akashi in which validity of the gift deed was challenged. The  learned munsif dismissed the suit. An appeal was preferred which  was allowed and the suit was decreed. The two daughters of widow  Akashi then filed Second Appeal No. 1312 of 1956 in the High Court.  By judgement dated 22.9.1970, the High Court remanded the matter  to the Appellate Court for a fresh decision after determining the  nature of the lands as to whether they are Sir or Khudkasht or they  are tenancy lands of the category of  Bhumidari or Sirdari. The High  Court also clarified the legal position that if the lands are Sir or  Khudkasht, the succession would be governed by personal law i.e.  Hindu Law applicable to the parties and if the lands are tenancy  lands, the succession would be governed by special mode of  succession in tenancy law.  

       Pursuant to the remand by the High Court and before the First  Appellate Court could take a decision in the case, a notification for  consolidation was issued under Section 4 of the Consolidation Act of  1953. The submission made on behalf of the contesting respondents  is that as the notification for initiating consolidation operations had  been issued under Section 4 of the Consolidation Act of 1953,  jurisdiction of civil court stood ousted due to bar contained in Section  49 of the Consolidation Act of 1953. Section 49 of the Consolidation  Act of 1953 reads thus :-  "49. Bar to civil jurisdiction. â\200\223 Notwithstanding anything contained  in any other law for the time being in force, the declaration and  adjudication of rights of tenure-holders in respect of land 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.  

       Provided that nothing in this section shall preclude the  Assistant Collector from initiating proceedings under Section 122-B  of the Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950  in respect of any land possession over which has been delivered or  deemed to be delivered to a Gaon Sabha under or in accordance with  the provisions of this Act.  [Emphasis added]

       It is reported that the first appellate court held the proceedings  as abated in view of the bar under the Consolidation Act of 1953. A  second appeal filed in the High Court against the judgement of the  appellate court is said to be still pending. This appeal arises out of  revisional order passed under the Consolidation Act of 1953. During  Consolidation proceedings, the second appeal in the High Court was  pending. Section 49 of the Consolidation Act of 1953 confers  exclusive jurisdiction on the authorities under the Act and the  jurisdiction of the civil court is barred.  The Authorities under  Consolidation Act of 1953 could justifiably conclude its proceedings  under that Act despite pendency of second appeal against order of  first appellate court declaring the proceedings in civil suit to have  abated.

       We find that the main issue on facts is concluded against the  appellants. The lands in the Khatas in question are found to be  tenancy lands of the class ’Bhumidari’ and ’Sridari.   They are not Sir  or Khudkasht lands. Under the special mode of succession provided  under the tenancy law widow Akashi inherited  absolute title to 1/4th  share of her husband and she could execute a valid gift deed in  favour of her daughters.

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       The present legal position as it stands during pendency of the  second appeal before the High Court is that the civil court’s decree  declaring the gift deed as invalid has not attained  finality because  during pendency of proceedings before the first appellate court after  remand by the High Court, proceedings under Consolidation Act of  1953 had commenced  and the jurisdiction of civil court stood ousted.  We, therefore, find no merit in any of the contentions advanced on  behalf of the appellants.  

       The connected Civil Appeal No. 6303 of 2001 has been filed  against the order dated 9th December, 1998 rejecting the Review  Petition filed against the judgement of the High Court dated  24.8.1998 in Civil Misc. Writ Petition No.678 of 1971.  In this  separate appeal filed against rejection of the Review Petition, one of  the grounds urged is that the appellants being in continuous  possession of the lands in dispute, have prescribed title by adverse  possession.  From the contents of order of the  Assistant Director of  Consolidation dated 9.11.1978, it is clear that the ground of adverse  possession stands neatived by the revisional authority.  It has been  held that  no foundation was laid either in the pleadings or evidence  as to when the adverse possession of the appellant commenced on  the land to the knowledge of the contesting respondents.  No plea  based on adverse possession was raised in the Writ Petition preferred  against the order of the revisional authority. This has been so  recorded in the order of the learned Single Judge dated 9.12.1988 by  which the Review Petition has been rejected.  The learned Single  Judge has also noted the fact that the contesting respondent had filed  Civil Suit No.29/51 for partition of the lands claiming title in them  through the gift deed and as heirs of widow - Akashi.  The Partition  Suit was decreed. It has been rightly held that if  under the stay  order passed against execution of  the decree the appellants  continued in possession, they cannot acquire title by adverse  possession.  In the Review Petition before the High Court attempt  was also made to urge that part of the lands in the Khatas in dispute  were Sir and Khudkasht lands.  The learned Single Judge  has also  negatived this ground of review and has pointed out that the Deputy  Director of Consolidation has recorded a specific finding that the suit  lands in disputed Khatas were all tenancy lands and the succession to  them was governed by special mode prescribed in Tenancy Law  applicable to the parties on the relevant date.  No error, therefore,  appears to have been committed by the learned Single Judge in  rejecting the Review Petition. The connected Civil Appeal No. 6303 of  2001 against rejection of the Review Petition also has no merit.   

        Consequently, both the appeals fail and are hereby dismissed  but in the circumstances without any order as to costs.