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1961 DIGILAW 26 (ALL)

Babu v. Board of Revenue U. P.

1961-02-14

GURTU, SRIVASTAVA

body1961
JUDGMENT Srivastava, J. - This is a petition under Article 226 of the Constitution praying for a writ of certiorari quashing the order of the Board of Revenue dated the 19th of August 1959. 2. The circumstances in which the petition has been filed may be shortly stated. The Petitioner was the tenant of the land in dispute. A suit u/s 180 of the UP Tenancy Act, was filed against him by the zamindars and he was ejected from the land. On the coming into force of the UP Tenancy Amendment Act, (X of 1947), the Petitioner applied u/s 27 of the Amendment Act for his reinstatement to the land. By that time, however, the zamindars who had ejected him let out the land to the opposite parties Nos. 4 to 11. The Petitioner impleaded those opposite parties also in his application u/s 27 of the Amendment Act. The application ended in a compromise according to which the opposite parties Nos. 4 to 11 were declared sub tenants for three years and the Petitioner was to get possession over the land after the expiry of that period. The compromise further provided that the Petitioner would pay rent to the zamindars at a specified rate, and the opposite parties Nos. 4 to 11 would pay rent to him at another rate that was fixed by the compromise. The application was decided on the basis of the compromise on the 20th of August, 1947. After the expiry of the period of three years the Petitioner applied to be put in possession over the land, but the application was resisted by the opposite parties 4 to 11 on the ground that they had acquired Bhumidhari rights in the land They said that they actually had acquired a Bhumidhari Sanad in their favour. The application for possession filed by the Petitioner was rejected on the ground that till the Bhumidhari Sanad obtained by the opposite parties Nos. 4 to 11 was cancelled, he could not be put in possession. The Petitioner then applied to the competent court for the cancellation of the Bhumidhari Sanad in favour of the opposite parties 4 to 11. That Sanad was actually cancelled on the Ist of March, 1955, and an appeal against the order of cancellation was rejected on the 3rd of Jan., 1957. The Petitioner then applied to the competent court for the cancellation of the Bhumidhari Sanad in favour of the opposite parties 4 to 11. That Sanad was actually cancelled on the Ist of March, 1955, and an appeal against the order of cancellation was rejected on the 3rd of Jan., 1957. After the cancellation of the Sanand by the trial court, the Petitioner again applied for delivery of possession, but the application was dismissed for default on the 10th of May 1955. Thereafter the Petitioner filed a suit for the ejectment of the opposite parties Nos. 4 to 11 u/s 2(sic)2 of the UP ZA and LR Act. That suit was, however, dismissed for default of prosecution on 10-11-1955. The Petitioner then filed another application bearing No. 1 of 1957 in the court of the Tahsildar and Assistant Collector, Ist Class, praying for delivery of possession over the land in dispute. The application was opposed by the opposite parties Nos. 4 to 11, and it was rejected by the Tahsildar on 31-8-1957. The Petitioner appealed to the Dy. Commr. of Partapgarh, but his appeal also failed on 26-3-1958. He then preferred a revision against the order of the Deputy Commissioner before the Commissioner, and the latter recommended to the Board of Revenue that it be rejected. The Board by the order which is now sought to be impugned dismissed the application in revision on the short ground that the application for delivery of possession which the Petitioner had filed amounted to an application for the execution of a decree and was barred by one year's rule of limitation laid down in Item No. 7 of Group F of IVth Schedule of the UP Tenancy Act. 3. It is urged in support of the petition that the view taken by the Board of Revenue on the question of limitation was an erroneous one and that the application filed by the Petitioner could not have been rejected as time barred. The argument is that the order by the enforcement of which the Petitioner was claiming possession over the land did not amount to a decree and the application he had made was not an application for the execution of any decree. The one year's rule of limitation applied by the Board of Revenue was therefore not applicable. 4. The contention of the Petitioner appears to be well-founded. The one year's rule of limitation applied by the Board of Revenue was therefore not applicable. 4. The contention of the Petitioner appears to be well-founded. The provisions of the CPC being admittedly applicable, the order passed on the application u/s 27 of Act X of 1947 could amount to a decree only if it fulfilled the requirements of the definition of the word "decree" to be found in Section 2 of the Code. According to that definition, the order could be a decree only if it had been passed in a suit. The proceedings in which the order in question had been passed could not, however, be considered to be a suit. The proceedings had been initiated by an application contemplated by Section 27 of Act No. X of 1947 and not by a plaint. In a suit the proceedings are initiated usually by the presentation of a plaint. Moreover, Clause (6) of Section 27 of Act No. X of 1947 clearly provides that an appeal against an order under the section shall lie to the Collector whose appellate order shall be final. From this it follows that the order passed on the application u/s 27 was to be treated as an order and not a decree. No second appeal was permitted in the case. That to shows that the order passed on the application was an order and not a decree. 5. It was, however, contended on behalf of opposite parties Nos. 4 to 11 that the order in question should be deemed to be a decree because (1) the application made u/s 27 of Act No. X of 1947 should be deemed to have been made in the suit filed earlier u/s 180 of the UP Tenancy Act, (2) the application u/s 27 of Act No. X of 1947 must itself be treated as a plaint, and (3) the U.P. Tenancy Act contains provisions under which an order of reinstatement is to be treated as a decree. Learned Counsel has referred in this connection to Section 294 and 186 of the Tenancy Act. 6. All these three contentions appear to be untenable. The suit u/s 180 had been decreed long ago and the decree had ended the suit. The application u/s 27 of Act No. X of 1947 could not therefore be made in that suit. Learned Counsel has referred in this connection to Section 294 and 186 of the Tenancy Act. 6. All these three contentions appear to be untenable. The suit u/s 180 had been decreed long ago and the decree had ended the suit. The application u/s 27 of Act No. X of 1947 could not therefore be made in that suit. The relief of reinstatement was to be granted under Act No. X of 1947, notwithstanding the earlier decree. There was no question of reopening the suit. The decree remained as it was and in spite of it the Petitioner was entitled to be reinstated in his holding. 7. It is also not possible to accede to the contention that the application made u/s 27 of Act No. X of 1947 amounted to a plaint and that on that ground the proceedings started with it amounted to a suit. The provisions of the CPC relating to the plaint or its presentation do not appear to be applicable to the proceedings started u/s 27 of Act No. X of 1947. Nor is there anything to show that the application made under that section was to conform to the requirements of a plaint as laid down in the CPC. The application was to be a simple application and could not be treated as a plaint. 8. The reinstatement provided for in S. 294 which is u/s 186 to be treated as a decree appears to be a reinstatement of a special kind, and the reinstatement ordered u/s 27 of Act No. X of 1947 does not appear to be a reinstatement referred to in Section 186. It has also to be noted that u/s 186 read with Section 181, the order of reinstatement is to be treated as a decree only for a specified purpose. It is not a decree for all purposes. Simply because an order of reinstatement passed u/s 294 was treated as a decree for certain purposes, it does not necessarily follow that the reinstatement ordered u/s 27 of Act No. X of 1947 also amounted to a decree for the purposes either of execution or of limitation. 9. It is not a decree for all purposes. Simply because an order of reinstatement passed u/s 294 was treated as a decree for certain purposes, it does not necessarily follow that the reinstatement ordered u/s 27 of Act No. X of 1947 also amounted to a decree for the purposes either of execution or of limitation. 9. If therefore, as appears to be the case, the order passed in favour of the Petitioner u/s 27 of Act No. X of 1947 was not a decree, the period of limitation provided in item No. 7 of Group F of the IVth Schedule of the Tenancy Act could not apply and the Petitioner's application could not be rejected on the ground of one year's limitation. The view taken by the Board of Revenue that item applied and that the application was to be rejected as it had been filed more than a year after the date of the order was therefore clearly erroneous 10. Learned Counsel for the opposite parties Nos. 4 to 11 urged that the application filed by the Petitioner was not maintainable on several other grounds. It is, however, not necessary for us to consider these grounds. Those grounds can still be urged before the Board of Revenue when it reconsiders the application in revision which it has dismissed on an erroneous ground. 11. In the result the petition succeeds, the order of the Board of Revenue rejecting the Petitioner's application in revision is quashed by a writ of certiorari the Board is directed to reconsider the application on merits. The Petitioner will have his costs from the opposite parties who have contested this petition.