Sudarshan Vs. Tapesar and Others

Sudarshan vs Tapesar and Others

Type Court Judgment Court Allahabad Decided May 03, 2011

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Citation: sooperkanoon.com/917232
Court: Allahabad High Court
Judge: Sibghat Ullah Khan,J.
Decided On: May 03, 2011
Case Number: WRIT - C No. - 28924 of 1994
Subject: Civil

Case Summary

AI-generated summary - not the official court judgment text.

[P. SATHASIVAM ; DR. B.S. CHAUHAN. JJ.] U.P. Societies Registration Act Section 12D(b) - Societies enabled to alter, extend or abridge their purposes -- This appeal is directed against the judgment and final order dated 25.03.2011 passed by the Division Bench of the High Court of Judicature at Allahabad in Special ...

Key legal issue: Civil
Acts & sections: U.P. Consolidation of Holdings Act - Section 49 ;

Parties & Advocates

Appellant / Petitioner

Sudarshan

Advocate S.K.Varma; Siddharth Varma, Advs

Respondent

Tapesar and Others

Advocate R.N.Rai; B.L.Srivastava; Purushottam Upadhyay,S.C., Advs

Legal References

Acts: U.P. Consolidation of Holdings Act - Section 49 ;

Excerpt

.....the division bench confirmed the order dated 22.02.2011 passed by the learned single judge and the order dated 24.07.2010 passed by the assistant registrar, firms, societies & chits, allahabad, who cancelled the proceedings related to amendments registered on 30.05.2007. the affairs of the society shall be managed by all the members of the society that the bishop of lucknow, the honorary secretary and the honorary treasurer of the society, shall have the authority to execute all contracts and deeds on behalf of the society. (b) on 28.05.2007, rules, constitution and bye-laws of the society, in question, were amended, which were registered on 30.05.2007 and the above-said information was also communicated to the assistant registrar, firms, societies & chits, allahabad. (c) the above order of the assistant registrar was challenged by the appellant-society before the learned single judge of the high court of allahabad in civil misc. writ petition no. 46551 of 2010. the society in the governing body meeting held on 12.12.1985 accepted and adopted the diocesan education board resolution dated 10.01.1985. in the proceedings of the meeting dated 23.11.2006, it had not been mentioned as to whether the meeting was a governing body meeting or an annual general meeting. it is seen that four officers and five members of the society were present in the meeting. one ex-officio member and four members were absent. there were total 14 (fourteen) members of the society. three quarter member of 14 members would be 10.5 members. in the absence of quorum laid down by rule 38, neither the amendments could be passed in the special general meeting of the society nor could the amendments made be registered by the assistant registrar. .....the appellate court judgment and decree, second appeal no.39 of 1988-89 was filed. board of revenue, allahabad dismissed the second appeal on 30.05.1994, hence this writ petition. 4. section 49 of u.p.c.h. act is quoted below:5. 2"49. bar to civil jurisdiction.-- notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of right of tenure-holder in respect of land lying in an area, for which a [notification] has been issued [under sub-section (2) of section 4] or ad-judication 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 proceeding could or ought to have been taken under this act." (proviso not relevant)6. consolidation in respect of grove land cannot take place in the sense that a plot having grove cannot be given to any other person in rearrangement of chak. however, as far as question of title is concerned, consolidation courts have got full jurisdiction to decide the matter and bar of section 49 squarely applies. in this regard reference may be made to dalel v. baroo, 1963 rd 67 (h.c. f.b.), ram dulare v. ram charan, 1977 rd 108 (h.c.), shambhu v. d.d.c., 1975 awc 469, baijnath rai v. d.d.c., 1986 rd 306 (d.b.) and anwar ali v. munir ali, 1981 rd 300 3(h.c.).7. accordingly, writ petition is allowed. judgment and decrees passed by the lower appellate court and board of revenue are set aside. judgment and decree passed by the trial court is affirmed.

Full Judgment

1. Heard learned counsel for the parties.

2. The only question involved in this writ petition is as to whether bar of Section 49 of U.P. Consolidation of Holdings Act applies to grove land or not? Para-1 of the writ petition is quoted below:

That the opposite parties 1 and 2 filed a Suit under section 229-B of the U.P. Zamindari Abolition and L.R. Act on 30.10.70 on the ground that even though initially the plot in dispute belonged to Purnvasi, Shiv Nath and Vira yet when the Zamindar had given permission to the plaintiffs Tapeshwar and Munni Lal for the plantation of a grove then the plaintiffs alone became the grove holders and after the abolition of Zamindari the plaintiffs alone became Bhumidhars.

3. The number of the plot in dispute is 40, area 13 biswas 16 biswansis. S.D.O., Ghazipur dismissed the 1Suit No.359 on 15.03.1986 holding the same to be barred by Section 49 of U.P.C.H. Act as consolidation in the area in question had taken place and the plea raised in the suit by the plaintiff could be raised by him before consolidation courts but it was not done. Against the said order, Appeal No.33 of 1986 was filed. Additional Commissioner First, Varanasi Division, Varanasi allowed the appeal on 26.06.1989 (Annexure-III to the writ petition). The lower appellate court in Para-10 of its judgment held that plaintiffs appeared to be the only grove holders/ bhumidhars in use and occupation of the land in dispute. Ultimately lower appellate court set aside the judgment and decree passed by the trial court and remanded the matter to it. Against the appellate court judgment and decree, Second Appeal No.39 of 1988-89 was filed. Board of Revenue, Allahabad dismissed the second appeal on 30.05.1994, hence this writ petition.

4. Section 49 of U.P.C.H. Act is quoted below:

5. 2"49. Bar to Civil Jurisdiction.-- Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of right of tenure-holder in respect of land lying in an area, for which a [notification] has been issued [under sub-section (2) of Section 4] or ad-judication 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 proceeding could or ought to have been taken under this Act." (proviso not relevant)

6. Consolidation in respect of grove land cannot take place in the sense that a plot having grove cannot be given to any other person in rearrangement of chak. However, as far as question of title is concerned, consolidation courts have got full jurisdiction to decide the matter and bar of Section 49 squarely applies. In this regard reference may be made to Dalel v. Baroo, 1963 RD 67 (H.C. F.B.), Ram Dulare v. Ram Charan, 1977 RD 108 (H.C.), Shambhu v. D.D.C., 1975 AWC 469, Baijnath Rai v. D.D.C., 1986 RD 306 (D.B.) and Anwar Ali v. Munir Ali, 1981 RD 300 3(H.C.).

7. Accordingly, writ petition is allowed. Judgment and decrees passed by the lower appellate court and Board of Revenue are set aside. Judgment and decree passed by the trial court is affirmed.

Same Court & Year Allahabad · 2011 Same Parties Sudarshan vs Tapesar and Others Same Subject Civil Same Judge Sibghat Ullah Khan,J. Acts & Sections U.P. Consolidation of Holdings Act - Section 49 ;

Civil