SHABBAR ALI KHAN Vs. MARDAN ALI KHAN

JUDGEMENT

(1.) THIS is the defen dant's second appeal arising out of a suit for partition. The plaintiff claimed half share in the suit plots on the basis that he was a co-tenure-holder. The defence was that the defendants were the sole Bhumidhars and that the plaintiff had no interest in the plots in question. The triil court decreed the suit holding that the plaintiff's claim to be the co-bhumidhar of the plots in question was correct. The defendants filed an appeal and the same was dismissed on the ground that the de fence was barred by Section 49 of the Consolidation of Holdings Act inasmuch as the rights of the parties stood finally determined in the consolidation proceed ings. It may be stated here that in the consolidation proceedings Form No. 25 was issued disclosing the share of the plaintiff to be half and the remaining half share to the defendants. No objec tion was filed before the consolidation authorities and, therefore, the lower ap pellate court took the view that it was not open to the defendants to set up a claim to be the sole Bhumidhar of the land in suit. The lower appellate court did not go into the merits of the case.

(2.) IN the second appeal Shri K. C. Saxena, the learned counsel for the ap pellants, has sought to argue that the suit was aot maintainable in the civil court and only the revenue court had the exclusive jurisdiction to try the same. The suit is, therefore, said to be not main tainable under Section 331 of U. P. Act No. I of 1951. In 1969 sub-section (1-A) was added to Section 331 and the said sub-sectioa lays down as under:-