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1964 DIGILAW 277 (ALL)

Bhara Mal v. Ram Chander

1964-09-01

D.S.MATHUR

body1964
JUDGMENT D.S. Mathur, J. - This is a revision under Section 115, C.P.C. by Bhara Mal and his brother Baljit, against the order dated 21.3.1962 of the Addl. District Judge of Saharanpur allowing the appeal of Ram Chander with costs and thereby setting aside the order dated 19.9.1959 of the Additional Civil Judge. It was further ordered that the award of the Arbitrator shall be made the rule of the court i.e. the reference made by the consolidation authorities shall be decided in accordance with the award of the Arbitrator. 2. During the consolidation operations Ram Chander claimed to be bhumidhar of the plots in dispute while Bhara Mal and Baljit adhivasis and later sirdars on the basis of their being recorded as occupants in the village papers of 1356F. As a question of title was involved, the consolidation authorities made a made a reference to the Civil Judge under Section 12(4) of the U.P. Consolidation of Holdings Act for determination of the question in accordance with the law. The Civil Judge referred the matter to the Arbitrator who made an award holding that Bhara Mal and Baljit had lost their rights having not taken any steps to recover possession and that Ram Chander was the bhumidhar of the plots in dispute. 3. Bhara Mal and Baljit filed an objection to the award which was allowed and the award was set aside. At the same time the matter was referred to the Arbitrator for making a fresh award. The Arbitrator again recorded the same finding and made an award holding that Ram Chander was the bhumidhar of the land, Bhara Mal and Baljit naturally challenged this award also; and the Civil Judge on his part adhered to his previous finding, namely, that Bhara Mal and Baljit were the sirdars of the land in dispute and Ram Chander was not its Bhumidhar. He was also of the opinion that the Arbitrator was guilty of legal misconduct having misapplied the law; and he, consequently, again set aside the award and remitted it for making a fresh award. 4. He was also of the opinion that the Arbitrator was guilty of legal misconduct having misapplied the law; and he, consequently, again set aside the award and remitted it for making a fresh award. 4. This time Ram Chander went up in appeal against the order of the Civil Judge and the District Judge has allowed the appeal on the ground that the claim of Bhara Mal and Baljit had become time-barred and, in any case, the interpretation of law by the Arbitrator was nor erroneous such that it could amount to legal misconduct. 5. The Civil Judge has recorded the finding that by virtue of the declaration made under Section 240-A of the U.P. Zamindari Abolition and Land Reforms Act (to be referred hereinafter as the Act) Bhara Mal and Baljit became sirdars on October 30, 1954, and as they could assert their rights as sirdar from this date, they had the right to take steps for the recovery of possession, i.e. ejectment of a person unlawfully retaining possession of the land, within three years of the 1st of July following this date. It was thus held that Bhara Mal and Baljit could sue under Section 209 of the Act for ejectment of Ram Chander upto 1.7.1958 and as the objection under Section 12 of the U.P. Consolidation of Holdings Act was made within this period they could during the consolidation proceedings recover possession as sirdars and in such circumstances, Ram Chander could not be declared, nor could be deemed to be, bhumidhar. The District Judge hearing the appeal has, on the other hand, expressed the opinion that the three year's period of limitation commenced from the date of vesting (1.7.1952), or from the date of vesting; and the claim made after 1.7.1955 would be barred by limitation. 6. Considering that all the suits or proceedings in which the question of title or a question whether a person is a sirdar, adhivasi, or asami, in respect of any plot mentioned in the statement prepared under Section 11(1)(c) of the U.P. Consolidation of Holding Act, has been raised, stand stayed on the publication of the statement under Section 11, an aggrieved party can institute suits or proceedings before a regular court till the publication of such a statement, and not thereafter. In other words, a party can seek remedy before the consolidation authorities by making an objection under Section 12 if his claim had not become time-barred on the date the statement under Section 11 was published. In the instant case, the statement under Section 11 was published in August or September 1956; and the point for consideration shall be whether Bhara Mal and Baljit could sue for ejectment of Ram Chander on or after this date. 7. By virtue of clause (b) of Section 20 of the Act a person who was recorded as occupant in the khasra or khatauni of 1356F. became an adhivasi of the land and subject to the provisions of the Act became entitled to take or retain possession thereof. The applicants Bhara Mal and Baljit, were recorded as occupants in the papers of 1356F and, consequently, they became adhivasis entitled to take or retain possession of the plots, of course, subject to the provisions of the Act. 8. Where the adhivasi is in possession of the land, he can retain possession thereof and shall not be liable to ejectment unless permissible under some other provision of the Act. But if he were out of possession, he can take steps for recovering possession of course, in accordance with the provisions of the Act. The corresponding provision for recovering possession is contained in Section 232(1) of the Act; an application for recovery of possession of the land of which the applicant is an adhivasi has to be made within 30 months from the date of vesting, i.e. by January 1, 1955. Admittedly, the applicants had not made any application under Section 232 (1) and when no such application was made within the prescribed period, the applicants could not recover possession as adhivasis. 9. However, by virtue of the declaration made under Section 240-A of the Act, the applicants became sirdars on 31.10.1954; and it is contended that by virtue of their acquiring a new right as sirdars a fresh cause of action accrued to them and they could sue for ejectment of a person not entitled to remain in possession within a period of three years commencing from the 1st of July following the appointed date (31.10.1954) and in any case, within three years by this date (31.10.1954). The suggestion thus made is that a suit under Section 209 of the Act for dispossession of Ram Chander was maintainable if instituted by 31.10.1957, and as the statement under Section 11 was published in August or September 1956 the applicants, Bhara Mal and Baljit, could be declared sirdars and Ram Chander not to be bhumidhar. 10. Reliance was also placed upon Section 232-A of the Act where under an adhivasi can, like an asami, sue under Section 209 for ejectment of a person taking or retaining possession of land otherwise than in accordance with the provisions of the law. 11. For purposes of this revision it is not necessary to express any opinion on whether an adhivasi who failed to apply under Section 232(1) of the Act, within thirty months from the date of vesting, can sue for recovery of possession under Section 209 read with Section 232-A of the Act; but even if it be assumed that he can avail of the alternative remedy under Section 209 read with Section 232-A of the Act, the period of limitation shall be the same irrespective of whether he was asserting his rights as sirdar or adhivasi. It shall be found that Section 209 governs land forming part of the holding of a bhumidhar, sirdar or asami, and by virtue of Section 232-A of an adhivasi also; and the period of limitation prescribed in Appendix III of the U.P. Zamindari "Abolition and Land Reforms Rules apply to all such holdings. We can, therefore, consider the question of limitation unaffected by the factor that the applicants are attempting to regain possession of the land as sirdars, may be as adhivasis also, though they took no step as adhivasis under Section 232(1) of the Act. 12. The period of limitation for a suit under Section 209 of the Act has been laid down in Serial No. 30 of Appendix III of the U.P. Zamindari Abolition and Land Reforms Rules. The material part of this item as contained in the Rules as in force in August or September 1956 is as below:- Description of suit, application and other proceeding Period of limitation Time from which period begins to run. The material part of this item as contained in the Rules as in force in August or September 1956 is as below:- Description of suit, application and other proceeding Period of limitation Time from which period begins to run. 3 4 5 Suit for ejectment of a person taking or retaining possession of the land unlawfully and for damage: (i) If the person was in possession of the land on the date of vesting and the period of limitation for his ejectment specified in the U.P. Tenancy Act, 1939, had not expired Three years From the date of vesting. (ii) In case of occupant referred to in Section 144 Three years From the date of declaration under section 144. (iii) In any other case Three years From the 1st of July following the date of occupation. 13. Clause (ii) is inapplicable to the facts of the instant case, and the limitation shall be governed by clause (i) or (iii) depending upon whether Bhara Mal and Baljit could, after their dispossession which was prior to the date of vesting (1.7.1952), sue under the provisions of the U.P. Tenancy Act, 1939, for the ejectment of Ram Chander. If a suit under the U.P. Tenancy Act was maintainable and the period of limitation for such a suit had not expired, the three years' Period of Limitation for a suit, if instituted, under Section 209 of the Act shall commence from the date of vesting (1.7.1952), in other words, such a suit could be instituted by 1.7.1955 and not thereafter. But if Bhara Mal and Baljit could not seek remedy under the provisions of the U.P. Tenancy Act, the three years' period of limitation shall, as laid down in clause (iii), commence from the 1st of July following the date of occupation. 14. The "date of occupation" has reference to the occupation of the land by the person in wrongful possession, i.e. the person taking possession unlawfully or coming into possession lawfully but later retaining possession unlawfully. 14. The "date of occupation" has reference to the occupation of the land by the person in wrongful possession, i.e. the person taking possession unlawfully or coming into possession lawfully but later retaining possession unlawfully. If the possession of Ram Chander was ab initio unlawful the date of occupation shall be the date of dispossession of Bhara Mal and Baljit, which was much prior to the date of vesting; but if Ram Chander's possession of the land was not ab initio unlawful and he lost all the rights in the land on the date of vesting and thereafter he could not lawfully retain possession of the land, the date of occupation, i.e. unlawful occupation, shall be the date of vesting and suit for ejectment under Section 209 of the Act shall be maintainable after 1.7.1956. 15. "Date of occupation" can have no reference to the person dispossessed for the simple reason that such a person does not and cannot occupy the land till the delivery of possession under orders of a competent court or authority; and consequently "occupation" is distinct from accrual of cause of action and the date of occupation cannot, by and stretch of imagination be the same as the date of accrual of cause of action. Fresh limitation cannot, therefore, commence from the accrual of cause of action. It shall always commence from the date provided in the Rules i.e. the date of unlawful occupation. 16. The law of limitation must be rigidly applied to the case, and the courts of law cannot deviate from the law on the ground of equity or supposed injustice unless it be found that there by the party shall be divested of his rights to seek remedy before a court or authority. In the instant case, Bhara Mal and Baljit could till 1.1.1955, apply under Section 232(1) of the Act for regaining possession of the land of which they were adhivasis and if their plea is accepted, they could also sue under Section 209 of the Act for ejectment of Ram Chander till 1.7.1956, in any case, upto1.7.1955. They thus had two months, counting from 31.10.1954, otherwise 30 months, to enforce their right, i.e. to recover possession of the land of which they became adhivasis and later sirdars, and by strict enforcement of the law of limitation they cannot be said to be divested of any right. 17. They thus had two months, counting from 31.10.1954, otherwise 30 months, to enforce their right, i.e. to recover possession of the land of which they became adhivasis and later sirdars, and by strict enforcement of the law of limitation they cannot be said to be divested of any right. 17. To sum up, from whatever aspect the matter is looked into Bhara Mal and Baljit could not claim possession of the plots in dispute, whether as adhivasis or sirdars. After 1.7.1936 and thereafter Ram Chander could remain in possession thereof as of right. The statement under Section 11 of the U.P. Consolidation of Holdings Act was published after 1.7.1956 and by then the claim of Bhara Mal and Baljit had become time-barred. In the circumstances, they lost their rights and ceased to be sirdars, and Ram Chander could remain in possession as bhumidhar. The Arbitrator, therefore, rightly held that Ram Chander was bhumidhar of the plots, and the lower appellate court was justified in setting aside the order of the Civil Judge and directing that the reference shall be decided in accordance with the award of the Arbitrator. 18. The revision has thus no force ans it is hereby dismissed with cost.