SHEO PAL Vs. HARI NANDAN

JUDGEMENT

(1.) THIS a plaintiff's second appeal in a suit for a declaration that the property in suit is not liable to attachment and sale in execution of the decree in suit No. 147 of 1958 of the Court of Munsiff, Fatehpur. Sheo Pal, plaintiff-appellant, and Duria the second defendant to the suit who is the 5th respondent in the appeal, are brothers, being the son of Gokul. The plaintiff's case as set out in the plaint was that the property in suit belonged to Gokul. He was the exclusive owner of the same. On his death it was inherited in two equal shares by the plaintiff and the 2nd defendant. The property is of two kinds. Schedule A to the plaint specified 4 plots having an area of 8 Bighas 2 Biswas of grove land, and Schedule B specifies three trees in plot No. 499, 5 trees in plot No. 465, 3 trees in plot No. 626, and tree in plot No. 628. All these plots are other than the 4 plots specified in schedule A. The 2nd defendant is alleged to have executed a sale-deed in favour of the plaintiff on 5th January, 1950 in respect of his 1/2 share, the said plots of land and the said trees, The plaintiff claims to have become the exclusive owner of the 4 plots of the land and the said trees on the execution of the said sale-deed. However, the plaintiff did not apply for mutation of his name as the exclusive tenure holder of the said land or as the exclusive owner of the said trees. He did not do so inspite of Consolidation of Holdings in the village in which the land and trees are situate. The first defendant, who is now represented by his legal representatives, who are respondents No. 1 to 4 in the appeal, has filed the said suit No. 147 of 1958 in the Court of Munsiff, Fatehpur. He obtained an order of attachment before judgment against defendant No. 2, and got the property in suit attached. The plaintiff claims that he had no knowledge of the attachment and filed an objection before the Court executing the decree in suit No. 147 of 1958. That was dismissed on 5th January, 1965. The plaintiff further pleaded that he had no knowledge of Consolidation proceedings in the village, and at any rate, since the defendant No. 2 is his own brother and has throughout been admitting his title to the property in suit, he did not consider it necessary to have his name mutated as the exclusive tenure-holder and owner of the property in suit. THIS did not, however, affect the plaintiff's right and title to the property in suit. The plaintiffs is the exclusive owner of the same and it is not liable to attachment and sale in execution of the decree in suit No. 147 of 1958 against the 2nd defendant. The suit was contested by the first defendant who was the decree holder in suit No. 147 of 1958. He pleaded that the plaintiff did not file any objection in Consolidation proceedings and the land in suit continued to be recorded in the name of the second defendant. The suit is barred by Section 49 of the U. P. Consolidation of Holdings Act. The plaintiff- is not the exclusive owner of the land or the trees. They belong to the plaintiff and the second defendant jointly and they have each a 1/2 share in them. Limitation was also pleaded as a bar to the suit. The trial Court found, on issues Nos. 1 and 3 that the plaintiff is not the exclusive owner of the property in suit and that the suit in respect of the land of the grove was barred by Section 49 of the U. P. Consolidation of Holdings Act. On the second issue, the suit was held to be within time, but it was dismissed in view of the findings on issues Nos. 1 and 3. Mr. R. N. Upadhayay, learned counsel for the plaintiff-appellant invited my attention to the case of Amjedi v. Deputy Director of Consolidation 1963 R. D. 621 and urged that Section 49 of the U. P. Consolidation of Holdings Act as it stood before the 1958 amendments, barred the suit, only in respect of a matter arising out of Consolidation proceedings. The mutation of names was not a matter which arose out of Consolidation proceedings or in respect of a matter for which an application could be made under the U. P. Consolidation of Holdings Act, but arose from the Land Revenue Act, and, therefore, Section 49 could not bar a suit for determination of any right to land which had been to the subject- matter of mutation proceedings before the Consolidation Authorities. In the present case the property in suit including the land was attached on February 10, 1958. It does therefore, appear that the non- application for mutation of his name as the exclusive tenure-holder of the land by the plaintiff-appellant before the Consolidation authorities, cannot be said to be a bar to the determination of the plaintiff's right to the land in a properly constituted suit whether before the Civil Court or the Revenue Court. THIS view can be supported on another ground. Before the 1958 amendments of the U. P. Consolidation of Holdings Act, the proceedings before the Consolidation Authority were divided into 3 parts: (1) Correction of the records: (2) adjudication of the rights of the tenure-holders in land; (3) Consolidation of Holding. The proceedings for mutation of names fall in the first category. There was no adjudication of the rights of a tenure-holder in these proceedings. A dispute of title, that is about the rights of a tenure-holder to land, was referable to arbitration and when any such dispute was involved in any suit or proceedings pending in a Court, that suit or proceedings was required to be stayed by that Court under sub-section (5) of Section 12 of the U. P. Consolidation of Holdings Act, as it stood before the amendments made in 1958. The Act, as it then stood, did not oust the jurisdiction of the Courts to determine the title of a tenure-holder. THIS does not, however, mean that the present appeal must succeed. The sale-deed dated 5th January, 1950 on which the plaintiff based his claim has been held to be sham and fictitious. The need for doing so arose because, in addition to his 1/2 share in the land, the 2nd defendant also purported to transfer his 1/2 share in the trees to the plaint ill" by the same sale-deed. The sale-deed having been found to be sham and fictitious, nothing could be said to have been transferred thereby. I have looked into the judgments of the two Courts below. The finding of the lower appellate Court that the sale-deed was sham and fictitious is based on an appraisal of the evidence on the record. The finding appears to be correct. Learned counsel for the appellant could not establish that it suffers from any error, much less any error of law. The appeal fails and is dismissed with costs.