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1961 DIGILAW 392 (ALL)

Mohd. Hasan Khan v. Sushil Kumar

1961-12-13

MITHAN LAL

body1961
JUDGMENT Mithan Lal, J. - All these four appeals have been filed on behalf of the defendants against the orders of remand passed by Sri T. C. Hariomal, Second Additional Civil Judge, Sultanpur, in the first three connected first appeals from order and by Sri R.C. Verma, First Additional Civil Judge, Sultanpur, in the connected first appeal from order No. 48 of 1959. 2. The plaintiffs-respondent Nos. 1 to 3 brought five suits under Section 202 of the U.P. Zamindari Abolition and Land Reforms Act on the allegations that they along with Saltanat Husain Khan, respondent, were the co-bhumidhars of the plots in dispute and that the defendants, who are now appellants in this Court, were Asamis and were liable to be ejected from the land in suit. It was stated that these plots belonged jointly to Saltanat Husain Khan and Mohd. Musa Khan. Mohd. Musa Khan was said to be managing the property. He let out the land to the defendants-appellants. Later on, he sold his share to the plaintiffs predecessor-in-interest who acquired bhumidhari rights in the land, jointly with Saltanat Husain Khan. 3. Amongst other pleas one of the pleas taken by the defendants was that the suit having been instituted by only one of the two land-holders was not maintainable. This plea found favour with the Assistant Collector, first class, in these four suits. He accordingly dismissed the suits. On appeal the two Additional Civil Judges have remanded the cases holding that the word `land-holder' in Section 202 of the U.P. Zamindari Abolition and Land Reforms Act did not mean the whole body of land-holders and the plaintiffs had a right of suit. It may also be stated that there was a fifth suit in which another Assistant Collector overruled the defendants' plea and decreed the suit. The appeal filed by the defendants against that order was also dismissed and I am told by the learned counsel that a second appeal against the order is pending in this Court. 4. It has been contended in these cases by the learned counsel, that the lower appellate court went wrong in holding that the word `land-holder' in Section 202 was used in the sense that any of the land-holders could bring the suit. 4. It has been contended in these cases by the learned counsel, that the lower appellate court went wrong in holding that the word `land-holder' in Section 202 was used in the sense that any of the land-holders could bring the suit. His contention is that the expression `land-holder' having been given the same meaning as given in the U.P. Tenancy Act, it would include the whole body of land-holders. For this purpose he has relied upon two Full Bench authorities of Sultan Ahmad Khan v. Jalal Uddin, 1940 ALJ 433 and Raghubar Dayal v. Panna Lal, 1946 ALJ 399. 5. The contention of the learned counsel for the respondents on the other hand is, that the aforesaid two authorities have no application to the present case, because in both these cases a co-sharer was in possession and the suit had been instituted not by the whole body of co-sharers, but only by one of them. According to him the considerations which arise under Section 202 of the U.P. Zamindari Abolition and Land Reforms Act. For this purpose he has relied upon two cases of Board of Revenue which are Chhajju etc. v. Summan etc, 1956 ALJ 24. and Ram Das etc. v. Badri Prasad etc, 1957 ALJ 86. 6. I have heard learned counsel for the parties and I do not at all agree with the arguments of the learned counsel for the appellants that the word `land-holder' in Section 202 should be taken to mean the whole body of co-sharers. This very section came up for interpretation before the Board of Revenue in the in the two cases cited above by the learned counsel for the respondents and it was held that:- "In the absence of any provision such as was contained in Section 246 of the U.P. Tenancy Act the general provisions of the Civil Procedure Code would apply, and one or more of Several persons having the same interest in a suit may institute it." What is necessary is that the other person interested should only be given a notice. Therefore, a suit under Section 202 was maintainable even if brought by some of the land-holders only. This view taken by the Board of Revenue appears to be consistent with the provisions of the U.P. Zamindari Abolition and Land Reforms Act. Sec. 202 which relates to the ejectment of an Asami is a new provision. Therefore, a suit under Section 202 was maintainable even if brought by some of the land-holders only. This view taken by the Board of Revenue appears to be consistent with the provisions of the U.P. Zamindari Abolition and Land Reforms Act. Sec. 202 which relates to the ejectment of an Asami is a new provision. It only lays down that an Asami shall be liable to ejectment from his holding on a suit by the land-holder on any of the grounds given therein. It is no doubt true that the word 'land-holder' has been given the same meaning, as defined in the U.P. Tenancy Act, that is a person to whom rent is or but for a contract, express or implied, would be payable. But since this section gives the ground for ejectment of an Asami, which is a creation of the U.P. Zamindari Abolition and Land Reforms Act, and since a provision of Section 68 of the Old Tenancy Act (which read with Section 180 of that Act governed the relation between the co-sharers), is not to be found in the U.P. Zamindari Abolition and Land Reforms Act, an Asami could be ejected by any of the land-holders if the other land-holders are made parties to the suit. In this case the plaintiffs and Saltanat Husain acquired bhumidhari rights jointly. The latter has also been impleaded as a defendant in the case and so it cannot be said in view of the provisions of Section 202 of the U.P. Zamindari Abolition and Land Reforms Act, that the suit could only be filed if Saltnat Husain had joined as a plaintiff. A case can very well be envisaged where one or more of the joint bhumidars may side with the Asami and if such a contingency would arise, an Asami would never be liable to be ejected on the suit of one of the Co-bhumidhars. Such could not have been the intention of the legislature when Asami rights were created under this statue and Asamis were also made liable to ejectment. It could not be inferred that the Legislature intended that the word `land-holder' would mean the whole body of land-holders. The two Civil Judges who took the view that the suit was maintainable and remanded the cases have not gone wrong in interpreting the law. All the four appeals, therefore, must fail. 7. It could not be inferred that the Legislature intended that the word `land-holder' would mean the whole body of land-holders. The two Civil Judges who took the view that the suit was maintainable and remanded the cases have not gone wrong in interpreting the law. All the four appeals, therefore, must fail. 7. All the four appeals are dismissed with costs.