Rajkumar Dubey Vs Board Of Revenue And Others (Allahabad High Court)
The Allahabad High Court, in the case of Rajkumar Dubey Vs Board Of Revenue And Others, has reiterated the significant bar on the jurisdiction of civil and revenue courts imposed by Section 49 of the Uttar Pradesh Consolidation of Holdings Act, 1953 (UPCH Act) after the conclusion of consolidation proceedings. The court emphasized that this bar is largely absolute, with a narrow exception primarily carved out for cases of fraud affecting pre-existing co-tenancy rights. The petitioner’s challenge to revenue court orders was dismissed after the court found no credible evidence of fraud or a pre-existing co-tenancy right in his favour.
The core of the dispute revolved around the finality of records prepared during consolidation operations and the extent to which they can be challenged in subsequent proceedings before civil or revenue courts. Section 49 of the UPCH Act explicitly states that no civil or revenue court shall entertain any suit or proceeding with respect to the declaration and adjudication of rights of a tenure holder in land, or any other right arising out of consolidation proceedings, for which a proceeding could or ought to have been taken under the Act. This provision is designed to provide finality to the rights and interests in land settled during consolidation, preventing protracted litigation thereafter.
The court noted that the bar under Section 49 operates after the denotification of an area under Section 52 of the UPCH Act, signifying the completion of the consolidation process. This is distinct from the abatement of suits and proceedings under Section 5(2) of the Act, which occurs during the subsistence of consolidation operations initiated by a notification under Section 4(2). The purpose of Section 49 is to prevent individuals who had the opportunity to raise their claims during consolidation but failed to do so from reopening settled matters in other courts. The phrase “for which a proceeding could or ought to have been taken under this Act” in Section 49 is crucial, precluding litigation on matters that could have been addressed during consolidation.
However, judicial pronouncements have carved out an exception to this seemingly absolute bar on the ground of fraud. The rationale is that fraud vitiates even solemn proceedings. The petitioner in the present case attempted to invoke this exception, alleging that his name was fraudulently removed from the revenue records during consolidation despite him having executed a power of attorney for the correction of entries.
The court examined several judicial precedents to understand the contours of this fraud exception.
In Ram Briksha and another (supra), a Division Bench of the Allahabad High Court considered a case where a co-sharer, initially recorded in the basic consolidation record, had their name expunged in a subsequent operation. The court held that the bar under Section 49 would not apply if a planned fraud led to the deletion of a plaintiff’s name from the revenue record, especially when they held a pre-existing co-tenancy right and there was no ouster from the joint property. The court emphasized that consolidation authorities have a statutory obligation to ascertain the share of each owner, and a failure to do so, if appearing to be a designed move, could be considered legal malice, allowing an aggrieved party to claim their right based on title. The court answered three referred questions, affirming that co-sharers living jointly were not compelled to seek partition during consolidation, their property rights could not be extinguished merely by not claiming a separate chak, and their rights would continue until ouster, with Section 49 not applying in cases of planned fraud affecting pre-existing rights.
The precedent in Sagir Ahmad and others (supra), a coordinate bench decision, also supported the view that the Section 49 bar would not apply in cases of fraud where a recorded tenure holder’s name was fraudulently removed, particularly when a pre-existing co-tenancy right was admitted through pedigree. The court reiterated that individuals whose names were expunged due to fraud or legal malice retained the right to claim property based on title.
Another case, Amar Singh (supra), involved a co-sharer whose name was not recorded during consolidation despite joint purchase and possession. The court held that such a co-sharer was not barred by Section 49 from filing a suit for correction of land revenue entries and recording their name if fraud was alleged in the removal of their name. This decision relied on the Supreme Court’s ruling in Karbalai Begum vs. Mohd. Sayeed and another (supra).
The Supreme Court in Karbalai Begum (supra) specifically addressed the scope of Section 49 concerning the denial of co-tenancy rights. In this case, a widow who was a co-tenant with her husband’s cousins had her name exclusively recorded in favour of the cousins during consolidation. The Supreme Court affirmed the District Judge’s finding of fraud and held that the bar under Section 49 would not apply where co-tenancy was denied due to fraud. The court also observed that mere non-participation in the rent and profits by a co-sharer does not amount to ouster, and co-sharers in possession become constructive trustees for others.
However, the court also referenced Narendra Singh and others vs. Jai Bhagwan (supra), where the Supreme Court upheld the applicability of the Section 49 bar. In that case, the argument that an entry in the father’s name should be treated in a representative capacity for the sons was deemed misleading, as the question of whether the father acted as Karta or manager and could be recorded in a representative capacity was a question of title falling under the exclusive jurisdiction of consolidation authorities.
The court also considered the recent Supreme Court judgment in Prashant Singh and Others Vs. Meena and Others (supra). This case involved the denial of a co-tenancy right in ancestral property where the name of one co-sharer was manipulated out of the record during consolidation by showing him as missing. The Supreme Court clarified that Section 49 does not empower consolidation officers to grant ownership of property that did not vest in a person before consolidation or to take away existing ownership rights inherited before consolidation. The court stated that the suspension of jurisdiction under Section 49 is only for the declaration and adjudication of rights of pre-existing tenure holders and that an aggrieved person must prove their pre-existing legal right to bypass the Section 49 bar.
Applying these principles to the case of Rajkumar Dubey, the Allahabad High Court found the petitioner’s situation distinguishable from the precedents where the fraud exception was applied. The petitioner claimed a pre-existing right based on a mortgage deed from 1901 and a subsequent court order from 1911. However, the court noted a later decree from 1946 in a redemption/possession suit, which directed the delivery of possession to the mortgagor (the predecessor-in-interest of the contesting respondents). This subsequent decree, which was not denied by the petitioner except for questioning its legality based on the earlier decree, indicated that the mortgagee’s possession, if any, came to an end in 1946, well before the advent of zamindari abolition and the UPCH Act.
The court observed that the petitioner’s name was not recorded in the revenue records in 1348, 1356, and 1359 fasalis (agricultural years), and while an extract showed the name of ‘Ram Dulari wife of Urmakhan Lal Dubey’ (allegedly the mortgagee’s predecessor) as mortgagee, the tenure holder’s column recorded the names of the defendants’ predecessors. The judgment from 1936 in Suit No. 4/5 also directed Ram Dulari to deliver possession to the defendants’ predecessor. The court concluded that there was no credible evidence to prove the petitioner or his predecessors were ever recorded as co-tenure holders. Mere entry as a mortgagee under the old tenancy acts did not confer tenurial rights, especially on land recorded as “Asamiyan Dakheekar” (cultivating tenants with a right of occupancy).
Regarding the allegation of fraud committed by Nanhu Singh, the person in whose favour the petitioner allegedly executed a power of attorney, the court found the assertion unsubstantiated. The power of attorney, a photostat copy of an unregistered document, was filed for the first time before the High Court and specifically denied by the respondents. The court reiterated that fraud cannot be inferred on mere allegation and must be proved by credible evidence. Since the petitioner failed to provide such evidence before the revenue courts, the allegation of fraud in manipulating records through the power of attorney was not accepted.
The court concluded that the petitioner failed to demonstrate a pre-existing co-tenancy right or prove that fraud was committed in a manner that would vitiate the consolidation proceedings and lift the bar of Section 49. The facts of the cited cases, which involved established pre-existing co-tenancy rights affected by fraud or legal malice during consolidation, were found to be distinguishable from the petitioner’s claim based on a historical mortgage and subsequent redemption decree.
Consequently, the Allahabad High Court found no illegality, perversity, ambiguity, or infirmity in the orders of the revenue courts which had concurrently held the petitioner’s suit barred under Section 49 of the UPCH Act. The writ petition was dismissed.
FULL TEXT OF THE JUDGMENT/ORDER OF ALLAHABAD HIGH COURT
