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1959 DIGILAW 269 (ALL)

Jagdish Prasad v. Board of Revenue

1959-09-17

R.N.GURTU, S.N.DWIVEDI

body1959
JUDGMENT S.N. Dwivedi, J. - Jagdish Prasad, the petitioner in this writ petition, instituted a suit in the Civil Court for the ejectment of Suraj Prasad, respondent no. 3, from an agricultural holding. The suit ultimately came to this Court in second appeal no. 621 of 1947 and this Court passed a decree in that appeal for the ejectment of the respondent no. 3 from the disputed holding. The decree was put into execution and possession was obtained by the petitioner sometime in April, 1953. Thereafter the respondent no. 3 made an application to the Assistant Collector, I class, under Sec. 232 of the U.P. Zamindari Abolition and Land Reforms Act for regaining possession over the disputed holding on the ground that his name was recorded as an occupant in the Khasra of 1356 Fasli and that he was, therefore, an adhivasi of the disputed holding. The Assistant Collector allowed the application and ordered his reinstatement to the holding. 2. The petitioner then went in appeal to the Additional Commissioner, who set aside the order of the Assistant Collector and dismissed the application for the reinstatement of the respondent no. 3. 3. The respondent no. 3 then went to the Board of Revenue in second appeal. The Board of Revenue after hearing the parties allowed the appeal of the respondent no. 3 and ordered that he should be restored to possession over the disputed holding. 4. Aggrieved by the order of the Board of Revenue, the petitioner has filed the present writ petition under Article 226 of the Constitution. 5. It is not disputed before us that the respondent no. 3 was in possession of the disputed holding in 1356 Fasli and that his name was entered as an occupant in the khasra of that year. But it is argued that pursuant to the decree of this Court dated 20th September, 1950, which directed the ejectment of the respondent no. 3 from the disputed holding, it will be deemed that the entry in the Khasra of 1356 Fasli of the name of the respondent no. 3 as an occupant was corrected before the date of vesting and that the respondent no. 3 cannot, therefore, avail of the benefit of Sec. 20 of the U.P. Zamindari Abolition and Land Reforms Act. 3 from the disputed holding, it will be deemed that the entry in the Khasra of 1356 Fasli of the name of the respondent no. 3 as an occupant was corrected before the date of vesting and that the respondent no. 3 cannot, therefore, avail of the benefit of Sec. 20 of the U.P. Zamindari Abolition and Land Reforms Act. In order to test the accuracy of this argument it will be necessary to set out Explanations H and III to Sec. 20 of the aforesaid Act. They read thus : "II Where any entry in the records referred to in clause (b) has been corrected before the date of vesting under or in accordance with the provisions of the U.P. Land Revenue Act, 1901, the entry so corrected shall for the purposes of the said clause, prevail." "III For the purposes of Explanation II an entry shall be deemed to have been corrected before the date of vesting if an order or decree of a competent Court requiring any correction in records had been made before the said date and had become final even though the correction may not have been incorporated in the records." 6. Explanation II is evidently not attract-ed here, because it requires that the entry of the occupant's name in the Khacra or Khatauni of 1356 Fasli should have been rectified before the date of vesting. Explanation HI enacts a legal fiction and thereby seeks to enlarge the reach of Explanation II, while the latter refers to the actual correction of the material entry, the former, by its deeming provision, treats the uncorrected material entry as corrected provided an order or decree of a competent Court requiring such correction, has been made before the date of vesting. The words "corrected" and "correction" occurring in Explanation III seem to suggest that the order or decree must have held that the material entry did not represent the true state of facts and was wrongly made. Those words, in our opinion, exclude the application of Explanation III to a case where the order or decree has expressly held that the material entry was rightly made on the strength of actual possession, as required by the relevant rules in the Lands Record Manual Part I. 7. In the instant case, the decree of this Court directing the eviction of the respondent no. In the instant case, the decree of this Court directing the eviction of the respondent no. 3 from the disputed holding was passed in Second Appeal No. 621 of 1947. It may fairly be inferred from the number of the appeal that the petitioner's suit for the ejectment of the respondent no. 3 was filed a couple of years before the making of the entry of 1356F. The correctness or otherwise of that entry was thus not in issue in the appeal, and it cannot be said that the decree of this Court required the correction of the entry in the Khasra of 1356F. Further, the suit was filed on the allegation that the respondent no. 3 had taken wrongful possession of the disputed holding, and this Court held that the respondent no. 3 was in possession as a rank trespasser. Far from declaring that the entry of the name of the respondent no. 3 as an occupant in the Khasra of 1356 Fasli was wrong, the decree. of this Court, in effect, affirmed that the entry reflected the actual possession of the respondent no. 3 and was correctly made. It may be that when the respondent no. 3 was dispossessed in execution of the decree in the year 1953, his name was perhaps expunged from the village records of 1360 F. But the expunction of the entry of a man's name in a sub-sequent year is not synonymous with the correction of the entry of his name in the khasra or khatauni of 1356 Fasli. 8. It was also argued, though somewhat faintly, that respondent no. 3, having been ejected in execution of the decree of this Court in April, 1953, after the Commencement of the U.P. Zaminclari Abolition and Land Reforms Act, could not apply under Sec. 232 of the said Act. According to learned counsel, this provision would apply to a case of pre-vesting and not post-vesting ejectment. We are unable to discern any such temporal limitation in the words of Sec. 232. In fact, Explanation I of Sec. 20 clearly provides that where a person referred to in clause (b) was evicted from the land after June 30, 1948, he shall notwithstanding anything in any order or decree, he deemed to be a person entitled to regain possession of the land. In fact, Explanation I of Sec. 20 clearly provides that where a person referred to in clause (b) was evicted from the land after June 30, 1948, he shall notwithstanding anything in any order or decree, he deemed to be a person entitled to regain possession of the land. The words "after June 30, 1948" clearly indicate that any person who has been evicted at any time after that date, will be entitled to regain possession as adhivasi under Sec. 232. Those words are completely destructive of the argument. 9. No other points were pressed before us by learned counsel for the petitioner. 10. In our opinion, there is no merit in this writ petition and it is, accordingly, dismissed.