This second appeal challenged a judgment dismissing a suit for permanent injunction due to statutory bars under land consolidation laws. The single judge held the plaintiff failed to discharge the burden of proving alienation of land pending map correction, dismissing the appeal.
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Court No. - 53
Case :- SECOND APPEAL No. - 175 of 2020
Appellant :- Nathuni (Deceased) And 4 Others Respondent :- State Of U.P. And 13 Others Counsel for Appellant :- Raghvendra Shankar Srivastava Counsel for Respondent :- Awadhesh Kumar Malviya,Kaushal Kishore Mani
Hon'ble Vivek Agarwal,J.
Heard Sri Raghvendra Shankar Srivastava, learned counsel for the appellant and Sri A.K. Malviya, learned counsel for respondent nos. 4, 5 and 6.
This second appeal has been filed by the plaintiff being aggrieved of judgment and order dated 18.12.2019 and decree dated 07.01.2020 passed in Civil Appeal No. 165 of 1991, Ramjanam (deceased) and others vs. Nathuni (deceased) and others, passed by Special Judge (E.C. Act)/ 4th Additional District Judge, Ghazipur by which the learned First Appellate Court has set aside the judgment and decree dated 23.05.1991 passed by Munsif, Ghazipur arising out of Original Suit No. 952 of 1990.
Learned counsel for the appellant submits that he is owner of survey no. 133 measuring 2 bigha, 16 biswa, 14 dhoor of land. As per the plaint averments, contention of the appellant-plaintiff is that area marked as A, B, C and D is part of survey no. 133 and out of this area, defendants are trying to cover area marked as A, B, F and E belonging to the plaintiff as a result of which, Trial Court had passed an order of permanent injunction in favour of the plaintiff. Adjacent to A, B, F and E exist 'naala/nalkoop' and thereafter in north is the 'chak road'.
Appellant's contention is that learned First Appellate Court in regular appeal has set aside the judgment of the Trial Court holding that the suit was not entertainable as it is barred by the provisions contained in Section 49 of U.P. Consolidation of Holdings Act, 1953 and it has also been held to be barred by the provisions contained in Section 331 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as 'U.P.Z.A. and L.R. Act').
Certain facts are admitted as have been noted by learned First Appellate Court that 'chakbandi' took place in the year 1963 and thereafter, consolidation map has been published and the consolidation officers have fixed the 'naali' at its own place and
thereafter, found chak of the defendants in the north of the 'naali'. During the consolidation, it was found that the 'chak road' is on the south of naali. The 'chak road' has been shown on east-west of Ghazipur-Chochakpur Road and in south of it is the 'chak' of the plaintiff. When this arrangement is seen, then apparently, during the pendency of the correction of the consolidation map, no rights have been accrued in favour of the plaintiff because this map is settled since 1963. However, learned counsel for the appellant submits that land in dispute marked as A, B, F and E is the land belonging to the plaintiff which is being encroached upon by the defendants. However, in terms of the consolidation proceedings which took place in 1963, it is apparent that Trial Court erred in showing the indulgence merely on the ground that some correction proceedings are pending before the revenue authority without taking note of the fact that settled position could not have been altered during the pendency of the correction proceedings and onus was on the plaintiff to have prove through demarcation that the area A, B, F and E is part of survey no. 133 and is not part of 'naali' and 'chak road' which are contained respectively in survey nos. 110 and 111.
Learned First Appellate Court has held that the consolidation block numbers move from north-east in the ascending order and therefore, when one moves from north-east, it will be the land of the defendants contained in survey no. 106 followed by naali contained in survey no. 110 followed by chakroad contained in survey no. 111 followed by the land of the plaintiff contained in survey no. 133 and this being the settled position could not have been altered by the plaintiff by showing it in the reverse order as is evident from the 'naksha nazri' enclosed along with the plaint. Therefore, the work which is being carried out is on the chak road and not on the land of the plaintiff. Even otherwise during the pendency of the correction of the map, suit as was filed by the plaintiff was not maintainable.
Appellant has placed reliance on the judgment of coordinate Bench of this Court in case of Gopal and others vs. Jagannath @ Jagnu as reported in 1985 RD 147 wherein it has been held that entries and map prepared during consolidation operation will not be treated to be final after introduction of Section 27(2) in the year 1965. It is held that legislature has left it open to the Court concerned seized of the matter not to be bound by such entry and it has been laid down that the entry is rebuttable. However, the fact is that the entry is rebuttable is the burden which is to be discharged by the plaintiff claiming equitable relief. This burden could not be discharged by the plaintiff as is apparent from the pleadings and the order impugned passed by the First Appellate Court. Therefore, the findings recorded by
the learned First Appellate Court holding the suit to be barred by the provisions contained in Section 49 of the U.P. Consolidation of Holdings Act, 1953 cannot be faulted with and unless and until such alteration in the entries and the map is granted, no cause of action has in fact accrued in favour of plaintiff. Therefore, there is no infirmity in the impugned judgment and decree passed by learned First Appellate Court calling for any interference.
Therefore, appeal fails and is accordingly dismissed.
Order Date :- 27.2.2020 Vikram/-
2 issues framed by the court
Whether the suit is barred by Section 49 of the U.P. Consolidation of Holdings Act, 1953 and Section 331 of the U.P. Z.A. and L.R. Act on account of pending consolidation map correction.
Whether the burden to rebut entries and maps prepared during consolidation operations was discharged by the plaintiff.
Colour shows how this judgement treated each authority
Gopal and others vs. Jagannath @ JagnuReferred¶12
1985 RD 147
2 provisions across 2 enactments
Nathuni (Deceased) And 4 Others
State Of U.P. And 13 Others
Vivek Agarwal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
