P.C. Pant, J.@mdashThis writ petition has been moved under Article 227 of the Constitution of India for quashing the impugned order dated 02-04-2004 (copy annexure-2 to the petition) passed by Sub-Divisional Officer, Rudrapur district Udham Singh Nagar and order dated 14-07-2004 (copy annexure-1 to the petition) passed by the Commissioner, Kumaon Divison, Nainital.
2. Brief facts of the case, as alleged in the petition are that the Petitioner and Respondent No. 4 are joint Bhumidhars with transferable rights over the agricultural land measuring 0.645 hectares and 0.063 hectares situated in Khasra No. 32/1 to 32/4 and 32/2 as detailed in Khata Khatauni No. 745 and 424 respectively. The land is situated in Tehsil Kichha, district Udham Singh Nagar. However the plots are shown as "Abadi" in column No. 24 of C.H. form No. 2Aand included in form C. 18 by the consolidation authorities. The said plots are declared to be out of Chak proceedings under the U.P. Consolidation of Holdings Act, 1953 though no declaration u/s 143 of the U.P. Zamindari Abolition and Land Reforms Act, 1 of 1951 (for the short "U.P.Z.A. & L.R. Act") has been made. The aforesaid plots fall within the definition of "Land" u/s 3(14) of U.P.Z.A. & L.R. Act. In the month of November 2003 the Petitioner and Respondent No. 4 desired to get partition of the joint holding and approached the revenue authorities for the same. Since the consolidation authorities informed the Petitioner that the plots are excluded from the consolidation proceedings the parties went before the Respondent No. 2 (Sub-Divisional Officer) for getting partitioned the plots u/s 176 of U.P.Z.A. & L.R. Act. In the said proceedings the statement of the Respondent No. 4 was recorded as P.W.I and that of the Petitioner as P.W.2. However, the suit was dismissed by the Respondent No. 2 for want of jurisdiction. Aggrieved by the said order (copy annexure-2 to the petition) a revision was preferred before the Respondent No. 1 (Commissioner, Kumaon Division, Nainital) who remanded the case to the Consolidation Officer for disposal. The Petitioner has challenged the orders of the Sub-Divisional Officer, Rudrapur and Commissioner, Kumaon Division as illegal on the ground that the plots were Abadi and no Chaks were to be carved out from therein.
3. The Respondent No. 4 has filed a short counter affidavit in which it has been alleged that the land in question is within the purview of the consolidation authority and the suit before the revenue authorities was barred by Section 49 of U.P. Consolidation of Holdings Acts. The Respondent No. 4 never intended to file joint petition for partition before the Sub-Divisional Officer, later on, she wanted to file it before the Consolidation Officer. Lastly, it has been mentioned that the petition is not maintainable as U.P.Z.A. & L.R. Act provides complete scheme including that of appeal against the orders passed u/s 176 of the said Act.
4. I have heard the learned Counsel for the parties and perused the affidavits and copies annexed thereto.
5. The short question for consideration before this Court is two fold (i), whether the Respondent has any power to entertain the suit for partition u/s 176 of U.P.Z.A. & L.R. Act after the consolidations proceedings have started in the village where the land is situated and (ii) whether the land, which is not yet declared "Abadi" but has been mentioned so in column No. 24 of form C.H. 2A and out of which no Chaks are to be carved out still covered under the consolidation proceedings for the purpose of partition sought by the Petitioner.
6. It is not disputed that the Petitioner and Respondent No. 4 are the joint Bhumidhars over the land in dispute. It is also admitted that consolidation proceedings are on in the village. The question is whether land is "Abadi" and not covered under the consolidation proceedings, if so, its effect. To examine the issue, it is necessary to see the definition of the land contained in Section 3(5) of U.P. Consolidation of Holdings Act, which reads as under:
''Land'' means land held or occupied for purposes connected with agriculture, horticulture and animal husbandry (including pisciculture and poultry farming) and includes-
(i) the site, being part of a holding, of a house or other similar structure; and
(ii) trees, wells and other improvements existing on the plots forming the holding.
7. The word holding has also been defined in Section 3(4-C) which says that "holding" means a parcel or parcels of land held under one tenure by a tenure-holder singly or jointly with other tenure-holders. If the above two definitions of ''land'' and ''holding'' are read together there remains no doubt that the land which has not been declared "Abadi" is included within the definition of land lying in an area for which notification under U.P. Consolidation of Holdings Act has been issued. As such the suits relating thereto are not only barred in the Civil Court but also before the Revenue Courts. Section 49 of the said Act is being reproduced below:
Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of rights of tenure-holders in respect of land lying in an area, for which a (notification) has been issued [under Sub-section (2) of Section 4] or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under this Act, shall be done in accordance with the provisions of this Act and no civil or revenue court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceedings could or ought to have been taken under this Act.
Provided that nothing in this section shall preclude the Assistant Collector from initiating proceedings u/s 122-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 in respect of any land possession over which has been delivered or deemed to be delivered to a Gaon Sabha under or in accordance with the provisions of this Act.
8. The learned Counsel for the Petitioner drew my attention to the principles of law laid down in
9. Prior to the insertion of Section 9A, 9B, 9C in the U.P. Consolidation of Holdings Act, 1953 the position was different as against the period after the insertion of the said new sections. Section 9A empowers the Assistant Consolidation Officer to dispose of the cases relating to claims of land and partition of joint holdings. Similarly, the same consolidation authority has been given power to partition the joint holdings notwithstanding anything contained in Section 178 of U.P.Z. A. & L.R. Act. That being so, the jurisdiction of the revenue court stands barred in the matter of entertaining the suit for partition of joint holdings. Suba Singh''s case (Supra) does not apply to the present proceedings as it does not pertain to the partition suit. In Triloki Nath''s case and Kamla Shanker''s case (Supra) relate to a suit which was prior to the amended Section 9A, 9B & 9C. Similarly Subhawati''s case (Supra) pertains to directions for removal of the illegal constructions from the land.
10. The learned Counsel for the Petitioner also drew my attention to the principles of law laid down in Chetan Singh and Ors. v. Hira Singh 1969 R.D. 416; Bajran Bali v. I Addi. District Judge and Ors. 1982 R.D. 165. I have gone through the said case laws. Chetan Singh''s case (supra) relates to a suit for specific performance of contract for which certainly consolidation authorities had no jurisdiction. In the case of Bajran Bali (supra) the suit was u/s 6 of the Specific Relief Act to which the consolidation authorities had no jurisdiction.
11. The other two referred cases, namely, Alaudin alias Makki v. Hamid Khan 1971 R.D. 160 and Shiv Prasad v. Thakur Prasad 1986 R.D. 253, also do not help the Petitioner in this case for the reason that in said cases there was no issue relating to the powers of consolidation authorities vis-a-vis the revenue courts.
12. In view of the above discussion the land in question which is admittedly not declared ''Abadi'' so far and finds place in CH 2A cannot be said to be beyond the jurisdiction of consolidation courts and the Petitioner can very well seek her partition of joint holding u/s 9A/9C of the Consolidation of Holdings Act before the said authorities. Accordingly, the petition is liable to be dismissed and the impugned orders need no interference.
13. The petition under Article 227 of the Constitution of India is accordingly dismissed. No order as to costs. The interim stay order, if any, stands vacated.
