SHYAM KUNWAR (DECEASED) Vs. KISHORI DEVI

JUDGEMENT

(1.) THIS is a second appeal under Section 331 of the UPZA and LR Act (hereinafter referred to as the Act), preferred against the judgment and decree, dated 12-12-1990, passed by the learned Additional Commissioner, Jhansi Division, Jhansi, in Appeal No. 9/14 of 1988-89 Jalaun, dismissing the same and confirming the judgment and decree, dated 27-12-1988, passed by the learned trial Court in a suit under Section 229-B/202 of the Act.

(2.) BRIEFLY stated, the facts, giving rise to the instant second appeal are that the plaintiff, Smt. Shyam Kunwar instituted a suit under Section 229-B/202 of the Act for declaration of her rights as bhumidhar of the land, in dispute, against the defendant, Smt. Kishori Devi etc. On the basis of a sale-deed, dated 12-6-1974, ececuted by the Defendant No. 2, Lakshmi Prasad in repect of an area of six acres out of the land, in dispute. It has also been prayed that in case the possession of the plaintiff is not found to be proved, the Defendant Nos. 2 to 10 may be ejected from the land, in dispute and the same may also be delivered to her. On notice, the Defendant No. 2 Lakshmi Prasad contested the suit, denying the allegations and inter-alia, pleading that he had taken a loan of Rs. 7,500/- from the plaintiff and had executed a farzi sale-deed, in question, in her favour for her satisfaction and therefore, no rights or title could accrue to her on this basis, that since that suit as barred under Section 49 of the UPCH Act, the same has been filed out of sheer dis-honesty in order to usurp the land, in dispute. The learned trial Court, after completing the requisite trial, dismissed the suit of the plaintiff, vide its judgment and decree, dated 27-12-1988 against which she went up in appeal before the learned Additional Commissioner, who has also dismissed the same vide his judgment and decree dated 12-12-1990 and therefore, it is against these judgments and decrees that the instant second appeal has been filed by her before the Board. This second appeal stood allowed and the case was remanded to the learned trial Court for decision, afresh by the Board on 9-2-1994. On remand, the learned trial Court decreed the suit of the plaintiff, vide its judgment and decree, dated 10-7-1995 against which a first appeal was preferred before the learned Additional Commissioner, the proceedings of which were stayed, vide his order, dated 24-10-1996. The order of Board, dated 9-2-1994 was set aside, later on 6-12-1995 and the Second Appeal No. 90 of 1990-91 Jalaun was restored to its original number and thereafter, the judgment and decree, dated 10-7-1995, passed by the learned trial Court by which the suit of the plaintiff was decreed, becomes null and void and the first appeal, arising out of the same has also become infructuous, and therefore, the same are being disposed of accordingly.

(3.) I have closely and carefully considered the arguments, advanced before me by the learned Counsel for the parties and have also scanned the record, on file. The crux of the matter, in question, is whether or not the suit of the plaintiff is barred by Section 49 of the UPCH Act in view of the fact that the decision of the consolidation authorities are in respect of mutation case under Section 12 of the UPCH Act. Both the learned Courts, below, have held the suit barred under Section 49 of the UPCH Act. As a matter fact, Lakshmi Prasad executed a sale deed and also a gift deed on 12-6-1974 in favour of two persons the plaintiff as well his wife. It is noticeable that only an area of six acres has been transferred in favour of Mst. Shyam Kunwar. The consolidation authorities have held the sale deed void ab-initio in view of the fact that permission of the SOC concerned under Section 5(1)(c) of the UPCH Act was not taken before the execution of such sale deed, as only an area of 6 acres out of the total holding has been transferred in favour of the plaintiff, which clearly amounts to fragmentation of the holding. It is true that the decision in the mutation case is not binding upon a regular suit but here, in the instant case, the very basis of such decision i.e. the sale-deed in question, has been held void, ab initio, by the consolidation Courts. Since the veracity and legality of the sale deed, in question, has been adjudicated upon by the consolidation authorities, Section 49 of the UPCH Act, to my mind also, shall certainly come into play which puts a bar upon civil and revenue Courts in respect of the disputes with regard to which proceedings could or ought to have been taken under that Act and therefore, in my considered opinion, the learned Courts, below, were perfectly justified in rendering the impugned judgments and decrees and in holding the suit of the plaintiff barred under Section 49 of the UPCH Act. Both the learned Courts, below, have dealt with the matter, in question, through and through in correct perspective of law with which I also concur and therefore, no interference with the views, expressed by the learned Courts, below, is called for, as no illegality or material irregularity has been committed by them. The contentions of the learned Counsel for the appellant, who has miserably failed to substantiate his claim, are rather untenable for the same reason and, likewise, the case laws, cited by him are also of no help to him for the simple reason that the facts and circumstances of the instant case are rather quite different those of the reported case and therefore, this second appeal, having no force, very richly deserves dismissal outright, as nothing remains to be decided.