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CASE NO.: Appeal (civil)  6360 of 1999

PETITIONER: Narender Singh & Ors.  

RESPONDENT: Jai Bhagwan & Ors.

DATE OF JUDGMENT: 09/12/2004

BENCH: D.M. Dharmadhikari & H.K. Sema  

JUDGMENT: J U D G M E N T

Dharmadhikari J.

       Aggrieved by the grant of decree of specific relief of execution of  Contract of Sale of the agricultural lands in suit by the first appellate  court which has been confirmed by the High Court of Allahabad in  Second Appeal, the legal representatives of the deceased defendant  have preferred this appeal.

       The suit for Specific Relief of agreement of sale was resisted by  the original defendant mainly on the ground that he alone was not  competent to enter into agreement of sale of the entire land in which  his sons (now on record as legal representatives) had shares.   

       The trial court rejected the claim of Specific Performance of the  Sale Agreement and granted only a decree for refund of the price paid  as advance.

       The First Appellate Court reversed the judgment of the trial court  and granted decree for Specific Performance. The High Court has  confirmed the said decree. The defendant’s plea of joint ownership of  the plaintiff and his sons was held to be barred in civil court by the  provisions of Section 49 of the UP Consolidation of Holdings Act 1953  (hereafter referred to as the "Act of 1953’ for short). Such plea, the  High Court held, could and ought to have raised before revenue  authorities under the said Act which has exclusive jurisdiction in the  matter.  

       The learned Senior Counsel appearing for Legal Representatives  of defendant has argued that entry of the lands in revenue record  exclusively in the name of the deceased defendant could not preclude  the present appellants (who are sons and legal representatives of the  defendant) from taking a plea that the lands were jointly owned by the  members of the joint family.  It is contended that revenue entry in the  name of father was in representative capacity for entire body of joint  family and bar of Section 49 of the Act of 1953 was not attracted. The  Civil Court was fully competent to examine the question of title of the  co-owners in the suit land.  Strong reliance is placed on  Kailash Rai  vs. Jai Ram [1973 (1) SCC 527]; Gorakh Nath Dube vs Har  Narain Singh [1973 (2) SCC 535];  Suba Singh vs  Mahendra  Singh [1974 (1) SCC 418] and; Dularia Devi vs. Janardan Singh  [1990 Supp.SCC  216].

       Assailing the reasoning of the First Appellate Court and the High  Court, it is argued that the plea of co-ownership in respect of the land  in suit could not have been raised in proceedings under the Act of 1953  as there was no cause of action or occasion for the same. In the  Consolidation proceedings an inter-se dispute between the father and

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the sons never arose. It was not a subject matter which fell within the  exclusive jurisdiction of the consolidation authorities under the Act of  1953.

       Learned counsel appearing for the respondent-plaintiff supported  the judgment of the First Appellate Court and the High Court. It is  submitted that the legal question raised on behalf of the appellant has  been rightly answered against them on the decision of this Court in Sita  Ram vs. Chhota Bhondey  [1991 Suppl.(1) SCC 556].   

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

       Section 49 of the Act of 1953 reads thus :-  "49. Bar to Civil Court jurisdiction. \026 Notwithstanding  anything contained in any other law for the time being in force,  the declaration and adjudication of rights of tenure-holders in  respect of land by the lying in an area, for which a notification  has been issued [under sub-section (2) or 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 that 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, possession over which has been delivered  or deemed to be delivered to a Gaon Sabha under or in  accordance with the provisions of this Act.                                                               [Emphasis supplied]                  The learned counsel for the respondents is right in his reply that  the lands being exclusively recorded in the name of the father, the sons  who claim joint ownership in the lands could and ought to have  approached the authorities under the Act for getting them jointly  recorded in the Revenue Papers. Such proceedings for recording them  as joint owners having not been initiated under the Act of 1953, the  High Court was right in invoking bar against such plea in the suit in  accordance with Section 49 of the Act.  We find that the contention  advanced and accepted by the High Court gets full support from the  following observations of this Court in the case of Sri Ram (supra) :-

"In the instant case respondent 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

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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."

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

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

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

       Consequently, we find no merit in this appeal which is dismissed  with costs.