Satish Chandra, J.:— On the death of Girdhari Lal, the plots in dispute were mutated in the name of his son Phundan. When consolidation proceedings commenced, Phundan was the recorded tenure-holder. No objection as to his title having been filed, he was in due course allotted plot No. 25. It appears that soon after the consolidation scheme was finalised under Sec. 23 of the U.P Consolidation of Holdings Act. Thereafter Phundan died on 20th September 1958.
2. Sunder the respondent before us, made an application for mutation of his name in place of Phundan. He claimed to be the brother of Phundan. His claim was disputed by Smt. Bhuri, the appellant before us. She put forward a preferential claim on the ground that she was the sister, of Phundan. The Consolidation Officer held that Sunder was a real brother of Phundan and as such he was a preferential heir to him. Smt. Bhuri filed an appeal which was dismissed by the Settlement Officer (Consolidation) on the 17th January, 1959.
3. Thereafter Smt. Bhuri filed a suit in the revenue court under Sec. 209 of the U.P Zamindari Abolition ??? of Sunder. The principal paint arosethat arose for consideration in that suit was whether Smt. Bhuri was the heir of Phundan. The trial court decreed the suit on the finding that Smt. Bhuri was the preferential heir because Sunder was not the brother of Phundan. Sunder filed an appeal. The Additional Commissioner held that the suit was barred by Sec. 49 of the U.P Consolidation of Holdings Act. This finding was upheld by the Board of Revenue, with the result that the suit was dismissed as incompetent. Aggrieved, Smt. Bhuri carried the dispute to this Court under Art. 226 of the Constitution. A learned Single Judge held that the suit was not maintainable and dismissed the writ petition. Hence the present appeal by Smt. Bhuri.
4. It is clear that when Phundan died on 20th September, 1958, proceedings for the allotment of Chaks had been completed and finalised. The question is whether the Consolidation of Holdings Act as it stood after its amendment by U.P Act No. XXXVIII of 1958, which came into force on the 27th November, 1958, would apply to the application for mutation made by Sunder. Sec. 49, which was a transitory provision under the Amending Act, provides:—
“Where consolidation operations are pending in any unit at the commencement of this Act—
(i) if the operations are at the state of examination of the land records under Sec. 7 of the Principal Act, then the Assistant Consolidation Officer shall complete the preparation of the statement mentioned in that section as if this Act had not come into force and such revision and preparation of statement shall thereupon be deemed to be the revision and preparation of statement mentioned in Secs. 7 and 8 of the amended Act and thereafter all further proceedings shall be conducted and concluded in accorded Act, beginning with the proceedings under Sec. 9 thereof;
(ii) if the operations are at the stage of proceedings under Sec. 8 of the Principal Act, or at any later stage, then all” further proceedings shall be continued and concluded in accordance with the principal Act as if this Act had not come into force.
EXPLANATION. In this section “amended Act” means the principal Act as amended by this Act.”
5. It will be seen that both the clauses of Sec. 49 speak of ‘all further proceedings’. If the proceedings under the Act are at the stage of Sec. 8 or thereafter, then under clause (ii) they are to be continued and concluded in accordance with the provisions of the unamended Act.
6. In the present case the proceedings upto the stage of Sec. 23 had been completed when Phundan died. Therefore, clause (ii) of Sec. 49 would govern them, with the result that the application for mutation made at that stage could be decided in accordance with the unamended Act, i.e in accordance with the provisions of the Act as it stood prior to its amendment by the Amending Act No. XXXVIII of 1958.
7. Prior to this amendment, Sec. 5 provided:—
“Effect of declaration. When the declaration under Sec. 4 has been published in the Gazette, the consequences as hereinafter set forth shall from the date specified thereunder till the publication of the notification under Sec. 52 in official Gazette to the effect that the consolidation operations have been closed, ensue in the area to which the declaration relates, namely—
(a) the district or the local area, as the case may be, shall be deemed to be under consolidation operations from the specified date and the duty of preparing and maintaining Khasra and the annual register under Chapter 1901, shall stand transferred to the settlement (Consolidation); and
(b) all proceedings for the correction of any such records pending before any court or authority shall be stayed without prejudice to the right of the persons affected to agitate the question before the Assistant Consolidation Officer under Sub-sec. (3) of Sec. 8, or in proceedings commenced under and in accordance with Sec. 10.” Section 27 as it stood at that time provided:—
‘New revenue records. (1) As soon as may be, after the consolidation scheme has come into force, the Director of Consolidation shall cause to be prepared a new village map, Khasra and records of rights in respect of each village included in the consolidation operations and the provisions of the U.P Land Revenue Act, 1901, shall subject to such modifications and alterations as may be prescribed, be allowed in the preparation of the said map and records.
(2) All entries in the record of rights and in the map prepared under Sub-sec. (i) shall be final and conclusive.
(3) The record prapared under Sub-sec. (1) shall be maintained by the Collector instead of the records maintained previously under Sec. 33 of the U.P Land Revenue Act, 1901.”
8. Sec. 49 is also material. It was in the following terms at that time:—
“Bar to civil court jurisdiction. No person shall institute any suit or other proceeding in any civil court or revenue court with respect to any matter arising out of consolidation proceedings or with respect to any other matter in regard to which a suit or application could be filed under the provisions of this Act.”
9. Under Sec. 5(a) the Settle-maintain Khasra and the annual registers under Chapter III of the U.P Land Revenue Act. After the new revenue records have been prepared under Sec. 27(1), the duty to maintain them further was cast on the Collector under Sec. 27(3). None of these provisions authorised institution of an application for mutation except as provided by Chapter III of the U.P Land Revenue Act. The application for mutation had to be made under the U.P Land Revenue Act. Sec. 5(a) only authorised the Settlement Officer (Consolidation) to decide such applications. Such applications cannot be treated as applications under Sec. 5(a) within the meaning of Sec. 49 of the Act. The application for mutation could not be said to be a matter in regard to which an application could be filed under the provisions of the Act.
10. Clause (b) of Sec. 5, in our opinion, will not be applicable to a mutation application, if it is filed at a stage when proceedings under Sec. 8(3) or Sec. 10 are completed or concluded. Here, the application for mutation was filed after the consolidation scheme had been finalised under Sec. 23, i.e long after the conclusion of the proceedings under Sec. 8 or 10. Thereafter the mutation application filed by Sunder was not an application contemplated by clause (b) of Sec. 5.
11. In view of Sec. 27(3), an application for mutation could be filed before the Collector under Sec. 33 of the U.P Land Revenue Act, provided the consolidation authorities had prepared a new village map, Khasra and record of rights under Sec. 27(1). Otherwise a mutation application lay before the Settlement Officer (Consolidation) under Sec. 5(a), but such an application being under Chapter III of the U.P Land Revenue Act had to be decided in accordance with the provisions of that Act. To such an application Sec. 49 was not applicable. An ??? Land Revenue Act is decided by a summary proceeding. It is well settled that orders passed in mutation applications do not have any relevance in a regular title suit. As such they do not operate as res judicata. The Additional Commissioner and the Board of Revenue were in error in holding that the suit filed by Smt. Bhuri was not maintainable.
12. The application for mutation did not question the title of Phundan. The application resulted in a controversy as to who was his heir. Such a controversy having arisen long after the title of the original tenure-holders had already been settled, was outside the purview of either Sec. 10 or Sec. 12 as it stood at that time.
13. In the result, the appeal succeeds and is allowed. The judgment of the learned single Judge is set aside and the writ petition is allowed. The orders of the Additional Commissioner and the Board of Revenua are quashed. The case is sent back to the Additional Commissioner for decision of the appeal on merits and in accordance with law, the appellant would be entitled to her costs.
Appeal allowed.