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UDAI RAJ & OTHERS versus LALJI & OTHERS

High Court of Judicature at Allahabad

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Udai Raj & Others v. Lalji & Others - SECOND APPEAL No. 3541 of 1982 [2005] RD-AH 3232 (20 September 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 9.

Second Appeal No. 3541 of 1982.

Udai Raj and others                         ...                    Appellants

Versus

Lalji and another                              ...                    Respondents.

Hon. Sunil Ambwani, J.

Heard Sri Siddharth in support of application under section 5(2) of the U.P. Consolidation of Holdings Act, 1953 to abate this pending Second Appeal filed in the year 1982, as the village was notified under section 4 of the U.P. Consolidation of Holdings Act, ( In short the Act) on 16.2.1991.  

Sri R.S. Misra learned counsel for the respondents has opposed the application on the ground that the suit was filed for correction of consolidation map and for injunction.  According to him there was a clerical error in the  numbering of plots, after the parties had entered into a compromise in partition of the holding.  The land in dispute was inherited from ancesters and that after the compromise the kuras were made.  Instead of plot no. 371, plot no. 392 was shown in the chakbandi map and vice-versa.   It is contended that the plaintiffs-respondents were given kuras at the places where there predecessors were in possession.   In the previous consolidation proceedings no one had raised objections.  After de-notification, the proceedings of consolidation became final.  The plaintiff, however, filed a suit for correction of the consolidation map and for injunction which was decreed in his favour and was dismissed.  

Learned counsel for the objector states that under section 5(2)(a) of the Act, the suit with regard to declaration of rights or interest in any land has to abate.  However where the suit has been filed only

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for clerical correction in consolidation map, the proceedings shall not abate.  He, however, submits relying upon  the judgment in Triveni Vs. State of U.P. and others, 1968 ALJ 570 that the High Court does not loose jurisdiction to decide the matter even if the village is notified under the U.P. Consolidation of Holdings Act.  He has also relied upon the judgment of this Court in Radha Krishna and others Vs. Brij Kishore and others, 2005(1)AWC 660 in which it was held that every suit for permanent injunction shall not abate, as the findings of title or interest of the plaintiff in property is only incidental for grant of injunction.

The language of clause (a) of Sub Section (2) of Section 5 is very clear.  Where an appeal,  reference or revision which is a continuation of suit is pending, in respect of proceedings for correction of record and in respect of declaration of rights or interest in any land lying in the area, or for declaration or adjudication of any other rights in regard to which the proceeding can or ought to be taken under the Act,  shall abate.  The abatement shall, however,  take effect from the date of order of the Court and such abatement in clause (b) shall be without prejudice to the rights of  such  persons  to agitate the right or interests in dispute in the said proceedings or suits before the appropriate Consolidation Authorities.  

The present suit is for correction of record in respect of kuras in partition.  Even if  the matter does not relate to declaration of right or title, proceedings in suit or appeal, reference or revision initiated and pending before Consolidation was notified, shall abate.  

I find that the judgment in Triveni's case  explains the position of unamended section 5(b)(1) of the  Act which provided that the suit has to be stayed and not to be abated.  The position has changed after the amendment by U.P. Act No. 21 of 1976 and thus the judgment in Radha Krishan case is not the relevant authority.  Further in that case was only for the relief of the grant of injunction.

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Consequently I find that the present Second Appeal shall abate.  It is accordingly dismissed as abated. The consolidation authorities may take the benefit of the findings of the Civil Court to be of persuasive value.  I may add here that since the abatement  is without prejudice to the rights of the persons effected to agitate the rights or interest in dispute in the suit or proceedings before the consolidation authorities, the judgment of the Civil Court, though not final has a persuasive value, as the findings are recorded after leading and appreciation of evidence.  Since the abatement is to take effect from the date of the order of the Court, I hold that the appeal shall stand abated as on date on which this judgment is signed and any objection filed by the  parties shall not be rejected on the ground of limitation.

Dt. 20.9.2005.

BM/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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