Malkhan Singh vs Harpyari

@DELETEUPPERDATA

Dinesh Gupta, J.—Heard learned Counsel for the parties on Civil Misc. Abatement Application No. 155798 of 2014. Learned Counsel for the applicant submitted that the disputed land is an agricultural land situated in area, which is under consolidation operation. The parties of the aforesaid second appeal are participating in the proceedings before consolidation Court by filing their objections. The consolidation officer vide order dated 23.8.2011 has decided the case of the parties. Copy of order passed by consolidation officer is annexed to this affidavit. Against the said order, the appeal is pending before the settlement officer of consolidation. Hence, it is in the interest of justice that the Court be pleased to abate the proceedings of aforesaid second appeal under section 5 of the U.P. Consolidation of Holdings Act, 1953.

Learned Counsel for the respondents submitted that admittedly the area in which the disputed land situated, which is under the consolidation proceeding and in case, the Court come to the conclusion that the consolidation proceedings are pending and the proceedings are likely to be abated and the whole proceedings including the suit or first appeal deserves to be abated.

In support of his contentions, the learned Counsel for the respondents has relied upon certain case laws, which are as under:

Sheo Achal Mishra v. Ram Bali Mishra 1971 R.D. 339.

Kamta Singh and others v. Ganesh Prasad Dube 1961 R.D. 261.

Jagarnath Shukla v. Sita Ram and others 1969 R.D. 429.

Darbari Lal and others Vs. Chokhey Lal and others, .

Admittedly, the disputed land situated in the area, which is under consolidation operation. After the issuance of notification under section 4 of the U.P. Consolidation of Holdings Act, 1953, section 5 of the said Act provides the effect of said notification.

Section 5(2) of the said Act, reads as under.

"Effect of declaration--Upon the publication of the notification under section 4 in the Official Gazette the consequences, as hereinafter set forth, shall, subject to the provisions of this Act from the date specified thereunder till the publication of notification under section 52 or sub-section (1) of section 6, as the case may be, ensure in the area to which the declaration relates namely:

(a)...........

(b)(i) all proceedings for correction of the records and all suits for declaration of rights and interests over land, or for possession of land, or for partition, pending before any authority or Court, whether of first instances, appeal, or reference or revision, shall stand stayed, but without prejudice to the right of the person affected to agitate the right or interests in dispute in the said proceedings or suits before the consolidation authorities under and in accordance with the provisions of this Act and the rules made thereunder.

(ii) the findings of consolidation authorities in proceedings under this Act in respect of such right or interest in the land, shall be acceptable to the authority or Court before whom the proceedings or suit was pending which may, on communication thereof by the parties concerned, proceed with the proceedings or suit, as the case may be.

(c)..........."

Section 5 was amended by U.P. Act XXI of 1966 and the relevant portions of the Amending Act reads as follows:--

"Amendment of section 5 of the U.P. Act No. V of 1964. The existing section 5 of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter called the Principal Act) shall be re-numbered as sub-section (1) thereof, and.

(i) Clause (b) of sub-section (1) as so renumbered, shall be omitted; and

(ii) after sub-section (1) as so numbered the following new sub-section shall be added, viz.

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

(a) every proceeding for the correction of records and every suit and 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, 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 proceedings is pending, stands 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 or 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."

So far as the contention of the learned Counsel for the respondents is concerned that not only the second appeal as well as whole proceedings of the suit and first appeal will also abate, has some force.

In Darbari Lal''s case (supra), the High Court has clearly held as under:

"Further if the narrow construction as put forward by the learned Counsel for the plaintiff-respondent is given effect to as to the scope and interpretation of Clause (a) of sub-section (2) of section 5 of the Act, then there would arise an anomaly in the working of the Act which was never intended by the legislature. It is clear that the whole objection behind enacting Clause (a) is that once the land in dispute is put under consolidation operation all the disputes relating to it shall be decided by the consolidation authorities. In other words, it would be the consolidation authority who will enquire into the dispute in accordance with the provisions of the Act and determine the rights of the parties. This object would be frustrated if I declare the second appeal abated and do not declare the suit abated as it would be then open to one of the parties to put forward the decree of the Lower Appellate Court or of the Trial Court which was passed prior to the issue of the notification under section 4 of the Act and raise a plea before the consolidation authorities that the question of title was barred by principles of res judicata. It would mean that the jurisdiction of the consolidation authorities would be taken away to decide the dispute and the very purpose of introducing Clause (b) in sub-section (2) of section 5 of the Act would be defeated."

In view of the above decisions of the High Court on this point, not only the second appeal as well as the whole proceedings of the suit and first appeal also abates and the consolidation authorities will have the full power to incline the dispute in accordance with provisions of the said Act and also authorities are free to determine the rights of the parties. In view of the above, the abatement application is allowed and the second appeal as well as whole proceeding out of which the second appeal arises, also abated.