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Judgment
Substitution allowed.
Leave granted.
Heard the learned Counsel for the parties. The inter se claim is for Plot Nos. 23, 67 and 78 in Village Halwana Ahatmal. In the suit filed by the appellant in the Court of S.D.O., Saharanpur, Suit No. 1/1971-72 u/s 229-B of U.P. Zamindari Abolition Act (Act 1 of 1951), the trial 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 claim of defendant Shugan Chand is that he has acquired rights on the land in suit by operation of law, even if his possession was adverse. 1 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. 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:
I am therefore of opinion that Shuggam has been rightly held to be sole sirdars of these 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 Khatuni of 1362 F by order of the S.D.O. dated 20.11.54 the name of Shuggam Chand together with Jabal Singh and Harendra has been ordered to recorded as cotenure and holder, similar entries exists in subsequent khasras and khataunies. The main contention of the learned Counsel of the appellant is that these entries are wrong as Sugan was no the heir of Smt. Nichho, as his father Atar Singh had predeceased Smt. Nichho and therefore, Shuggam could not be the continuer holder in the land in dispute. It is not seriously disputed that Shuggam 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 was recorded as cotenure holder. It appears that no objection was filed by Jabal Singh at that time and therefore Sugan continued to be in possession of the land in suit as the contenure 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.
It is, therefore, evident that Sugan 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 Sugan could not be heir of Smt. Nichho as held in 1970 RD at page 2 Ram Nath v. Smt. Raj Kumar.
While Second appeal filed by the respondent was pending, notification u/s 5 of the U.P. Consolidation Act was published. As a consequence the second appeal stood abated. In the proceedings initiated before the Consolidation Authority, initially the Consolidation Officer 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 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 appeal by special leave.
The controversy as to the effect of the issue of notification u/s 5 and s.s3 thereof and the findings recorded in the earlier suit was considered by this Court in Ram Prasad (dead) by Lrs. and Ors. v. Assistant Director of Consolidation and Ors. 1994 (2) SCC 228. In paragraph 8 it was held that though the suit stood abated, yet the evidence recorded in the suit or appeal and the findings 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.
In view of the law laid down by this Court 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 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.
The appeal is accordingly allowed. No costs.