Abdul Latif v. Abdul Hakim Khan — 1965 DIGILAW 70 (ALL)

ORDER S.N. Singh, J. - Munshi, Ausaf Ali and Shrimati Munshan were sirdars of plot No. 567 of village Pachpeda Pergana Tahsil and district Meerut. It appears that on 19th Feb., 1951 these sirdars deposited ten times of revenue for obtaining Bhumidhri Sanad in respect of the plot in suit. After having deposited the aforesaid amount two of them i.e. Munshi and Ausuf Ali executed two sale deeds in respect of their 2/3rd share in favour of Abdul Latif and one another on the same date. It appears that Sanad was issued in favour of the sirdars on Feb. 20, 1951. Thereafter we find that the remaining l/3rd share of Smt Munshan was also sold to Abdul Latif and Shafiullah Plaintiffs with the result that by 22nd of June 1957 they became full fledged Bhumidhars of the plot in suit. It appears that they were dispossessed by the Defendant Abdul Hakim Khan as such the present suit under Sections 209 of the UPZA and LR Act was filed. 2. Their case in brief was that they were bhumidhars of the plot in suit and the Defendant Abdul Hakim Khan had dispossessed them wrongly in August 1955, They alleged that the land in suit Was fertile one. On account of their dispossession they had incurred loss. They prays for the ejectment of the Defendant and lor recovery of damages at the rate of Rs. 30/- per year. 3. The defence to the case was that the Defendant was in possession for more than six years. He further said that he was in cultivatory possession in 1359 Fasli and acquired Adhivasi rights. The claim of damages was denied and, it was said to be excessive. 4. The trial court framed four issues in respect of bhumidhari rights of the Plaintiffs, sirdari rights of the Defendant, as to what amount of damages was recoverable from the Defendant and as to whether the suit was within time. 5. The trial court remitted the issue about bhumidhari rights to the civil court and the civil court held that the Plaintiffs were bhumidhars of the plot in suit and returned the finding to the revenue court. 5. The trial court remitted the issue about bhumidhari rights to the civil court and the civil court held that the Plaintiffs were bhumidhars of the plot in suit and returned the finding to the revenue court. On the receipt of the finding of the civil court the Assistant Collector accepting the finding of the civil court held that the Plaintiffs were bhumidhars, and the Defendant was a trespasser, and finding that the suit was in time, decreed the suit. 6. On appeal the learned Civil Judge reversed the judgment of the trial court and held that the Plaintiffs did not acquire any right by virtue of the two sale deeds in their favour executed in Feb 19, 1954 because on that date the vendors were only sirdars. He, however, ignored the sale deed executed by Shrimati Munshan in favour of the Plaintiffs before the date of suit and directed the dismissal of the suit. Aggrieved by the above decision the plain tiffs have come up in appeal to this Court. 7. In appeal before me it has been urged on behalf of the Appellants that the view of the civil judge that the Plaintiffs were not bhumidhars on the date of the suit is erroneous in law. I have heard learned Counsel for the parties on this point and am of opinion that this appeal should succeed. I have already given in detail as to how the various transfers were made in favour of the Plaintiffs. The deposit having been made on 19th Feb., 1954, two sale deeds were executed the same day and bhumidhari sanad was granted to the vendors on 2oth Feb., 1954. So far as the last sale deed is concerned it was executed on 22nd June 1957, the date on which the present suit was instituted. There could not be any dispute so far as the 3rd sale deed is concerned because this third sale deed had been executed alter the deposit as well as after the grant of the bhumidhari sanad. 8. We have only to consider about the validity of the two sale deeds executed on 19th Feb., 1954. The sale deeds executed on the aforesaid date in my opinion were validly executed. On the grant of the bhumidhari sanad the vendors would be deemed to be bhumidhars from the date of the deposit of ten times of the land "revenue. We have only to consider about the validity of the two sale deeds executed on 19th Feb., 1954. The sale deeds executed on the aforesaid date in my opinion were validly executed. On the grant of the bhumidhari sanad the vendors would be deemed to be bhumidhars from the date of the deposit of ten times of the land "revenue. Section 134 of the UPZA and LR Act which permits deposit of ten times in order to obtain bhumidhari sanad is as follows: (1) If a sirdar belonging to the class mentioned in Clause (a) of Section 131 pays or offers to pay to the credit of the State Government an amount equal to ten times the land revenue payable or deemed to be payable on the date of application for the land of which he is the sirdar, he shall, upon an application duly made in that behalf to an Assistant Collector, be entitled, with effect from the date on which the amount has been deposited, to a declaration that he has acquired the rights mentioned in Section 137 in respect of such land: Provided that the right to pay or offer to pay the amount aforementioned shall cease on the expiry of three months from the date to be notified by the State Government." The sanand is granted u/s 137 of the UPZA and LR Act. The aforesaid Section 137 in its unamended form relevently reads as follow: (1) It the application has been duly made and the Assistant Collector is satisfied that the applicatnt is entitled to the declaration mentioned in Section 134, he shall grant a certificate to that effect. (2) Upon the grant of the certificate under Sub-section(l) the sirdar shall, from the date thereof (a) become and be deemed to be a bhumidhar of the holding or the share in respect of which certificate has been granted, and On reading Section 134 and 137 of the UPZA and LR Act, it is clear that on the grant of the sanad u/s 137 the persons depositing ten times would be deemed to be Bhumidhars from the date of deposit. We find such provisions in other enactments also such as Section 65 of the CPC which reads as follows: Where immovable property is sold in execution of decree and such sale become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute. There is similar provision under the Registration Act which provides therein that on the registration of a sale deed the title would pass to the vendee from the date of the execution thereof Section 134 clearly says that sirdar shall be entitled, with effect from the date on which the amount has been deposited, to a declaration that he has acquired the rights mentioned in Section 137 in respect of such land It is clear that legislature intended that on the grant of declaration u/s 137 the persons depositing the amount would be deemed to be Bhumidhars from the date of deposit. This view of mine further finds support from Section 137 Sub-clause (2) (a) unamended which says. become and be deemed to be a bhumidhar of the holding or the share in respect of which the certificate has been granted. The word "deemed to be a bhumidhar" clearly suggests that even though the persons depositing the ten times had not then become a bhumidhar but on the grant of the sanad he will be deemed to be a bhumidhar from that date. The learned Counsel for the Respondent, in this case has submitted that the only reasonable interpretation of Section 137 Sub-clause (1) would be that it is from the date of declaration that the persons will be entitled to be called bhumidhars and if any other interpretation is put on this section it would be doing violence to the language of the section. I regret I am unable to accept this submission of the learned Counsel. To my mind if the two sections are read together the only conclusion that can be arrived at is what I have given above. In support of his submission the learned conusel for the Respondent reiled on the case of Tikam Singh v. Chattar Pal Singh and Anr. (1) (1963 AWR 395). To my mind if the two sections are read together the only conclusion that can be arrived at is what I have given above. In support of his submission the learned conusel for the Respondent reiled on the case of Tikam Singh v. Chattar Pal Singh and Anr. (1) (1963 AWR 395). The facts of that case were that on June 26, 1958, Tota paid an amount equal to ten times the rent payable by him and executed a gift deed on the same day. The gift deed was registered on June 27, 1968. He died on June 29, 1956. A certificate was issued posthumously on September 10, 1958 by the Assistant Collector to the effect that Tota was entitled to a declaration that he had acquired bhumidhari rights in the land. On these facts Dwivedi, J., held that bhumidhari Sanad granted on September 10, 1958 could not vest Tota with the bhumidhari rights. It is apparent that if Tota had died before the grant of the sanad how could his right date back from the date of deposit. It is in the light of this act that it was held that transferee could not take ad vantage of the fact that a declaration of bhumidhari rights had been made on September 10, 1958. On the facts of that case the decision given is correct and that decision should be limited to the facts of that case. After that decision there is another decision of this Court reported in Jagat Narain and Anr. v. Laljee and Ors. (2 ( 1964 AWR 646 ) where in Gangeshwar Prasad, J., took the view that a person who prefessed to transfer the interest of a Bhumidhar in a land in which he had only the non transferable interest of sirdar but he subsequently acquired in the land the interest of a bhumidhar the benefit of the subsequent acquisition would go to the transferee, u/s 43 of the Transfer of Property Act, and the subsequently acquired interest of a bhumidhar will be deemed as having passed to the transferee under the transfer in his favour. I respectfully agree with the view expressed in this reported case. I respectfully agree with the view expressed in this reported case. The learned Counsel for the Respondent further tried to support his interpretation by arguing that the words "deemed to be a bhumidhar'' were meant only to connote Benami transactions and further suggested that these words were used only as an abundent caution. 9. I do not think that any of these submissions have any force. Section 134 and 137 received different interpretations by courts, and when the legislature found that there was a controversy about the real intention it expressed by the two Section 134 and 137 of the UPZA and LR Act read together, it stopped in and in order to remove that controversy it amended Section 137 itself by amending Sub-clause (2) (a) to Section 137 which now reads: Upon the grant of the certificate, under Sub-section (1) the sirdar shall, from the date on which the amount referred u/s 134 has been deposited become and be deemed to be a bhumidhar of the holding or the share in respect of which the certificate has been granted. In view of the interpretation put by me on the two Section 134 and 137 (unamended) of the UPZA and LR Act, it is clear that the Plaintiffs had become bhumidhar on the date of suit and the suit was clearly decreeable. The learned civil judge erred in dismissing the suit. I have already referred to the third sale deed which was executed by the third co sharer Smt. Munshan. It appears that the learned civil judge lost sight of this sale deed and observed in his judgment that in any case 1/3rd share of Smt. Munshan still remained intact and qua that share the possession of the Defendant could pot be said to be without consent. Since I have already held that on the date of suit the Plaintiffs has become full fledged bhumidhars of the entire plot, they were entitled to the relief claimed. 10. In view of the above this appeal succeeds. The judgment and decree of the lower appellate court is set aside and that of trial court is restored. The Appellants will get their costs of the two courts below but costs of this Court will be easy.