SUGAN CHANDversusTHE DY. DIRECTOR OF CONSOLIDATION, DEHRADUN/SAHARANPUR, U. P. AND ORS.

A                               SUGANCHAND
                                        v.
          THE DY. DIRECTOR OF CONSOLIDATION, DEHRADUN/
                     SAHARANPUR, U.P. AND ORS.

                              DECEMBER 2, 1994
B
              [K. RAMASWAMY ANON. VENKATACHALA, JJ.]

         U.P. Consolidation of Holdings Act, 1953: Section 5-Notification of
    consolidation-Effect on findings recorded in earlier suit-Held: the
    findings recorded in earlier suit are not wiped out-Consolidation
c   authorities should rely upon the findings recorded by Civil Court unless
    contrary evidence is produced

        In a suit filed under Section 229-B of the U.P. Zamindari Abolition
    Act, 1951 the Trial Court and the first Appelate Court recorded a
    finding as to possession in favour of the appellant. During the pendency
D   of second appeal a notification regarding consolidation was published
    under the U.P. Consolidation of Holdings Act, 1953 as a result of which
    the second appeal stood abated. However, in its proceedings the
    Consolidation Officer found the findings of the appellant's possession
    against him but on appeal the appellate authority held against the
    respondent and in favour of the appellant. In the revision filed· by the
E
    respondent, the Commissioner without adverting to the findings
    recorded by the Civil Court held that the appellant has not proved his
    possession • The order of the Commissioner was affirmed by the High
    Court against which an appeal was filed in this Court.

F       Allowing the appeal, this Court

        HELD: In view of the law laid down by this Court in Ram Prasad
    (dead) by Lrs. and Ors. v. Assistant Director of Consolidation and Ors., 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
G   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. [293 C)

       Ram Prasad (dead) by Lrs and Ors. v. Assistant Director of
H   Consolidation and Ors., [1994] Suppl. 2 S.C.C. 228, relied on.

                                      290
              SUGAN CHAND v. DY.DIR. OF CONSOLIDATION                    291

    CIVIL APPELLATE JURISDICION: Civil Appeal No 9643of1994.                    A
   From the Judgement and Order dated 16-3-1994 of the Allahabad High
CoUrt in C. Misc. W. P. No. 2372of1994.

    D. K. Garg for th~ Appellant
                                                                                B
    V. N. Ganpule, R. C. Gubrele, Ms. Punam Kumari and Ashok Kr.
Singh for the Respondents.

    The following order of the Court was delivered:

    Substitution allowed.
                                                                                c
    Leave granted.

    Heard the learned counsel for the parties. The inter se claim is for Plot
Nos. 23, 67 and 78 in village Halwana Ahathal, In the suit filed by the
appellant in the Court of S.D.O., Saharanpur, suit No. 1/ 1971-72 under
Section 229-B ofU. P. Zamindari Abolition Act (Act 1 of 1951), the trial        D
Court recorded the finding in favour of the appellant thus :

             "Issues Nos. 1, 2, 3 and. 4 are interconnected and may be
             taken up simultaneously. Issue No.5 relates to Smt. Nicho.
             Her heirship is not very relevant to these proceedings as          E
           _ ~laim of defendant Shugan Chand is that he has acquired
             rights on the land in suit by operation oflaw, even if his
             possession was adverse. I find that plot nos.67 and 78 of the
             land in suit are entered-as Sirdari of defendant Shugan Chand
             alone since before the abolition of Zamindari, names of
             plaintiffs or their ancestors do not find place on these plots.    F
             The possession of plaintiffs is also not entered anywhere on
             these numbers. Defendant Shugan Chand therefore rightly
             entered as sole sirdar over these plots and the plaintiffs have
             no concern over it."

    In Appeal No. 274/1972, the Additional Commissioner held thus:              G
              "I am therefore of opinion that Shugan has been rightly held
              to be sole sirdars of thes~ plots, by the learned lower court.
              As regards the remaining plots namely Plot No.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          H
    292                  SUPREME COURT REPORTS               [1994] SUPP.·.6 S.C.R

A                 Khatauni of 1362 F by order of the S.D.O. dated 20.11.54 the
                  name of Shugan Chand together with Jabal Singh and
                  Harendra has been ordered to recorded as contenure and
                  holder, samidar entries exists in subsequent khasras and
                  khataunies. The main contention of the learned counsel of the
                  appellant is that these entries are wrong as Shugan was not
B                 the heir of Smt. Nichho, as his father Atar Singh had
                  predeceased Smt. Nichho and therefore, Shugan could not be
                  the contenure holder in the land in dispute. It is not seriously
                  disputed that Shugan could not inherit from Smt. Nichho as
                  his father Atar Singh had predeceased Smt. Nichho. By order
                  of S.D.O. dated 20-11-54 his name along with Jabal Singh
c                 was recorded as contenure holder. It appears that no
                  objection was filed by Jabal Singh at that time and therefore
                  Shugan continued to be in the possession of the land in suit
                  as the cotenure holder. The defdt. has filed C.H.F. 9-Kh for
                  this will (Paper No 34A) wherein he has been recorded as
                  cotenure holder over the other land of Smt. Nichho.
D
                  It is, therefore, evident that Shugan has continued in
                  possession over the land in suit in his own rights in the
                  knowledge of the pltff/appellant. The present suit appears to
                  have been filed. by the pltffs. When they come to know that
                  according to law Shugan could not be heir of Smt. Nichho as
E                 held in 1970 RD at page 2 Ram Nath vs. Smt. Raj Kumar."

         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 proceeding initiated
    before the Ct>nsolidation Authority, initially the Consolidation Officer
F
    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 the appellant. In the 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 possession. Consequently allowed
G   the revision in the impugned order dt. January 7, 1994 which was affirmed
    in the writ petition filed by the appellant in W.P. No. 2372/1994 dated
    March 16, 1994. Thus this ap~eal by special leave.

         The controversy as to the effect of the issue of notification under
    section 5 and s.s 3 thereof and the findings recorded in the earlier suit was
H   considered by this Court in Ram Prasad (dead) by Lrs. and Ors vs.
              SUGAN CHAND v. QY. DIR. OF CONSOLIDATION                    293

Assistant Director of ConsolidatiQn and Ors., [1994] Suppl 2 SCC 228. In A
paragraph 8 it was held that though the suit stood abated, yet the evidence
recorded in the suit or appeal and the finding 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.                     B
     In view of the law laid down by this Court and in the absenc~ of any
consideration of the effect of the fmdings recorded by the civil courts, the
order of the Commissioner is exfacie illegal. It is accordingly set aside. The
Commissioner is directed to go into the evidence vis-a vis the evidence and
the fmdings recorded in the civil suit and the appeals and to record his own     C
fmdings and decide the matter according to law.

    The appeal is accordingly allowed. No Costs ..

T.N.A.                                                       Appeal allowed.