RAM KISHORE Vs. VIJAY BAHADUR

JUDGEMENT

(1.) RAM Kishore and others have filed this second appeal under Section 331 (4) of the U.P. Z.A. and L.R. Act against the judgment and decree dated 28-2-96 passed by Additional Commissioner, Kanpur Division, in a case under Section 229-B of the U.P. Z.A. and L.R. Act.

(2.) BRIEFLY stated, the facts of the case are that plaintiff-appellants have filed a suit under Section 229-B of the U.P.Z.A. and L.R. Act before the trial Court. Prayagdutt was the tenant-in-chief of the land in dispute. He died in 1976. When he died the plaintiff-appellants were minors and they were looking after their ailing father. Defendant-respondent No. 3 in cannievance with Assistant Consolidation Officer got the names of the opposite-parties No. 1 to 3 entered in place of Prayagdutt. The plaintiff-appellants had no knowledge because they were minors. The learned trial Court illegally dismissed the suit of the plaintiff-appellants against which first appeal was preferred before the learned Commissioner Kanpur which too was dismissed by the learned Additional Commissioner. Hence this second appeal.

(3.) THE learned Counsel for the plaintiff-appellants argued that on 11-5-73 Prayagdutt much before his death executed a will in favour of plaintiff-appellants. During consolidation Babu Ram, father of the plaintiff-appellants was suffering from some ailment and they were busy in his treatment and could not get their names mutated in place of Prayagdutt on the basis of the Will. Opposite-party No. 3 uncle of the plaintiff-appellants in cannievance with the Assistant Consolidation Officer got the names of opposite-parties No. 1 to 3 mutated in place of Prayagdutt. The learned trial Court dismissed the suit on the grounds that the plaintiff-appellants case is barred by Section 34(5) of U.P. Land Revenue Act and Section 49 of the U.P.C.H. Act. During consolidation plaintiff-appellants were minors and they had no knowledge about the action taken by their uncle i.e. opposite-party No. 3 who got entries made in cannievance with Assistant Consolidation Officer. This point was raised before learned trial Court but the learned trial Court did not agree and dismissed the suit as barred by Section 34(5) of U.P. Land Revenue Act. The learned trial Court has also held that the plaintiff-appellant's suit is also barred by Section 49 of the U.P.C.H. Act because no steps were taken by plaintiff-appellants against the order of the Assistant Consolidation Officer. Hence that order became final. The contention of the learned Counsel for the appellants is that the order was collusive and is farzi one hence this order should not be relied upon.