Vs. Dy. Director of Consolidation Dehradun/Saharanpur, U  INSC 632 (2 December 1994)
K. Ramaswamy, K. Venkatachala N. (J)
1995 SCC (2) 127 1995 SCALE (1)34
Heard the learned counsel for the parties. The inter se claim is for Plots Nos.
23, 67 and 78 in Village Halwana Ahatmal. In the suit filed by the appellant in
the Court of SDO, Saharanpur, Suit No. 1 of 1971-72 under Section 229-B of U.P.
Zamindari Abolition Act (Act 1 of 1951), the trial court recorded the finding
in favour of the appellant thus:
1, 2, 3 and 4 are interconnected and may be taken up simultaneously. Issue 5
relates to Smt Nichho. Her heirship is not very relevant to these proceedings
as claim of defendant Sugan Chand is that he has acquired rights on the land in
suit by operation of law, even if his + From the Judgment and Order dated
16-3-1994 of the Allahabad High Court in C. Misc. W.P. No. 2372 of 1994 128
possession was adverse. I find that Plots Nos. 67 and 78 of the land in suit
are entered as Sirdari of defendant Sugan Chand alone since before the
abolition of zamindari, names of plaintiffs or their ancestors do not find
place on these plots. The possession of plaintiffs is also not entered anywhere
on these numbers. Defendant Sugan Chand therefore was rightly entered as sole sirdar
over these plots and the plaintiffs have no concern over it."
Appeal No. 274 of 1972, the Additional Commissioner held thus:
am therefore of opinion that Sugan has been rightly held to be sole sirdar of
these plots, by the learned lower court. As regards the remaining plots namely
Plots Nos. 16/2, 70, 71, 15, 76 are concerned these plots are recorded in the
name of Jabal Singh, Harendra, Smt Nichho as bhumidhars. In the Khatauni of
1362-F by order of the SDO dated 20-11-1954 the name of Sugan Chand together
with Jabal Singh and Harendra has been ordered to be recorded as
co-tenure-holder, samildar entries exists in subsequent khasras and khataunies.
main contention of the learned counsel of the appellant is that these entries
are wrong as Sugan was not the heir of Smt Nichho, as his father Atar Singh had
predeceased Smt Nichho and therefore, Sugan could not be the cotenure-holder in
the land in dispute. It is not seriously disputed that Sugan could not inherit
from Smt Nichho as his father Atar Singh had predeceased Smt Nichho. By order
of SDO dated 20-11-1954 his name along with Jabal Singh was
recorded as co-tenure-holder. It appears that no objection was filed by Jabal
Singh at that time and therefore Sugan continued to be in possession of the
land in suit as the co-tenure-holder. The defendant has filed CHF 9-Kh for this
will (Paper No. 34-A) wherein he has been recorded as co- tenure-holder over
the other land of Smt Nichho.
therefore, evident that Sugan has continued in possession over the land in suit
in his own rights in the knowledge of the plaintiff/appellant. The present suit
appears to have been filed by the plaintiffs when they came to know that
according to law Sugan could not beheir of Smt Nichho as held in Ram Nath v. Smt
Raj Kumar1." 5.While second appeal filed by the respondent was pending,
notification under Section 5 of the U.P Consolidation Act was published. As a
consequence the second appeal stood abated. In the proceedings initiated before
the Consolidation Authority, initially the Consolidation Officer found the
findings of the appellant's possession against him, but on appeal, the
appellate authority reversed and held against the respondent and in favour of
revision filed by the respondent, the Commissioner without adverting to the
findings recorded by the civil court held that the appellant has not proved his
allowed the revision in the impugned order dated 7-1-1994 which was affirmed in the writ 1 1970 RD 2 129 petition
filed by the appellant in WP No. 2372 of 1994 dated 16-3-1994. Thus this appeal by special leave.
controversy as to the effect of the issue of notification under Section 5 and
Section S3 (sic) thereof and the findings recorded in the earlier suit was
considered by this Court in Ram Prasad v. Assistant Director of Consolidation2.
In paragraph 8 it was held that though the suit stood abated, yet the evidence
recorded in the suit or appeal and the findings recorded by civil courts do not
get wiped out; are entitled to be considered and that, therefore, it being the
relevant evidence the authorities under the Consolidation Act, unless contrary
evidence is produced, are entitled to rely upon the findings recorded by the
civil courts in support of its conclusions.
view of the law laid down by this Court and in the absence of any consideration
of the effect of the findings recorded by the civil courts, the order of the
Commissioner is ex facie illegal. It is accordingly set aside. The Commissioner
is directed to go into the evidence vis-a-vis the evidence and the findings
recorded in the civil suit and the appeals and to record his own findings and
decide the matter according to law.
appeal is accordingly allowed. No costs.