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Allahabad High Court · body

1965 DIGILAW 80 (ALL)

Ram Raj Singh v. State of UP

1965-02-18

S.N.SINGH

body1965
ORDER S.N. Singh, J. - The Plaintiff Appellant filed a suit u/s 209 of the UPZA and LR Act in respect of plots Nos. 721/2 measuring 1.25 acres, 725/2 measuring 63 acres situate in village Besahni Kurmor, Pargana Dhuriyapar and plots Nos. 723/3 measuring 40, 881/2 measuring 49 and 330/3 measuring 10 acres in the same village. 2. The case of the Plaintiff in brief was that he was admitted to tenancy in Baisakh 1351-F and he became hereditary tenant of the plots in suit. It was said that except for plot No. 330/3 the Plaintiff deposited ten times of the rent and obtained Bhumidhari Sanad in respect of the rest of the plots and occupied the land in that capacity. It was further said that proceedings u/s 212-A of the UPZA and LR Act were taken against the Plaintiff in respect of the plots in suit. According to the Plaintiff the proceedings were due to illwill and that the order passed u/s 212-A was against the provision of law. The order passed u/s 212-A was challenged on various grounds. One was on the ground of jurisdiction, the other was that the court passed an order of ejectment without payment of compensation and the third was that the same was ultravires. The other allegations of the plaint are not relevant for the purposes of this case. The prayer made was for recovery of possession on ejectment of the Defendants. 3. The suit was contested by the Gaon Sabha on the ground that the suit u/s 209 of the UP ZA and LR Act was not maintainable. The title of the Plaintiffs to the plot in suit was denied and it was said that Bhumidhari declaration was obtained by fraud. It was further said that a valid order had been passed u/s 212-Aand no suit having been instituted within the period of six months the Plaintiff had no right of suit now. Plea based on Section 35-A of the CPC was also raised. 4. It was further said that a valid order had been passed u/s 212-Aand no suit having been instituted within the period of six months the Plaintiff had no right of suit now. Plea based on Section 35-A of the CPC was also raised. 4. The trial court framed several issues and remitted the issue about the Bhumidhari right of the Plaintiffs to the civil court and the civil court returned the finding that although the Plaintiffs were Bhumidhars of the plots of which they alleged to be the Bhumidhars, but since they had not instituted a suit as provided by Section 212 A(7) their rights as a Bhumidhar got extinguished by virtue of Section 189 of the UPZA and LR Act. The learned Assistant Collector accepting the findings of the civil court held that Plaintiff's title not having been accepted the Plaintiffs could not succeed and dismissed the suit. On appeal the learned Civil Judge upheld the decision of the trial court and dismissed the appeal. While discussing point No. 2 before him which was as follows: Are the Plaintiff Appellants Bhumidhars of the rest of the plots in dispute ?" he also confirmed the finding of the learned Munsif that the right of the Plaintiffs had been extinguished, by virtue of Section 189 (b) (c) of the ZA and LR Act. 5. In second appeal before me it has been urged that the decision of the courts below are erroneous in law and they have not correctly interpreted Section 209 and 212-A of the UPZA and LR Act. In the circumstances of the case the suit of the Plaintiffs was decreeable and the same has wrongly been dismissed. I have heard learned Counsel for the parties and I am of opinion that this appeal has force and must succeed. 6. In this case it is apparent from the record that the Gaon Samaj treated the Plaintiffs as persons having title to the property either they were holding the land as Sirdars or Bhumidhars, because they proceeded against the Plaintiffs u/s 212-A and under this section their ejectment could only have been ordered if they were admitted to the land in suit after 8-8-1146. Therefore, without discussing the matter in detail it has to be taken as accepted that the Plaintiffs were either the Bhumidhars or the Sirdars on the date when proceedings u/s 212-A were started against them. Therefore, without discussing the matter in detail it has to be taken as accepted that the Plaintiffs were either the Bhumidhars or the Sirdars on the date when proceedings u/s 212-A were started against them. Now having started proceedings u/s 212-A the Sub-Divisional Officer came to the conclusion that the Plaintiffs had been admitted to the land in suit after 8-8-1946 and that the land in suit was of the nature as given in Section 212 of the UPZA and LR Act. As such they were liable to ejectment and passed the order of ejectment u/s 212-A (6). A bare look of the order would show that the order passed u/s 212-A (6) UPZA and LR Act was not in accordance with the provision as given in Section 212-A (6) of the UPZA and LR Act. The order for ejectment u/s 212-A (6) could not be passed without directing the payment of compensation as provided by the rules. In this case an unconditional order of ejectment was passed as such the order cannot be justified. It is not disputed that by virtue of this order which was against the mandatory provision of law the Defendants took possession from the Plaintiffs. The point for determination is as to whether taking of such possessions in accordance with law or is against the provisions of law ? In my opinion, unless there is payment of compensation, possession over the land of a Sirdar or a Bhumidhar could not be taken and if it was taken it was clearly against the provisions of law. Since the taking of possession was against the provisions of law the Plaintiffs who admittedly were tenure-holders have been deprived of their possession on account of an illegal order. Nobody could be deprived of his property without the payment of compensation for the same. In this view of the matter also the ejectment of the Plaintiffs was illegal. If such is the case cannot the Plaintiffs file a suit u/s 209 of the UPZA and LR Act for recovery of possession ? I think he is clearly entitled to do the same. The courts below were of the opinion that an order u/s 212-A, ZA and LR Act having been passed and the Plaintiffs not having filed a suit as provided in Section 212-A (7) within the period of six months their rights to the property was extinguished. I think he is clearly entitled to do the same. The courts below were of the opinion that an order u/s 212-A, ZA and LR Act having been passed and the Plaintiffs not having filed a suit as provided in Section 212-A (7) within the period of six months their rights to the property was extinguished. I do not think they have correctly interpreted Section 189 UPZA and LR Act. Section 189 (c) upon which reliance has been placed reads as follows: 189. The interest of a bhumidhar in his holding or any part thereof shall be extinguished: (c) when he has been deprived of possession and his right to recover possession is barred by limitation. 8. In my view Section 189(c) is wholly inapplicable to the facts of the present case. Non-filing of the suit u/s 212-A (7) debars the Plaintiff from agitating against the decision arrived at in that case. There is no question of the deprivation of the Plaintiffs from possession by virtue of this order. If the order had correctly been passed and the Defendants had been evicted legally after the compensation having been paid to them the order would have been final after a lapse of six months from the date of the passing of that order. But in this case the Plaintiffs were ejected by virtue of an illegal order and their right to recover possession accrued on the date of their illegal dispossession, they were clearly entitled to bring the suit within three years of this illegal dispossession. It is only after the lapse of three years that their right and title could be said to have been extinguished by virtue of Section 189 (c) of the UPZA and LR Act. 9. On behalf of the State it was argued that the order passed by theSectionD.O. being an order passed within his jurisdiction merely because he had tailed to pass an order for the payment of compensation it could not be said that the order itself was an illegal order. Compensation can be realised by the Plaintiffs in proper proceedings. In my view this submission is not correct. Compensation can be realised by the Plaintiffs in proper proceedings. In my view this submission is not correct. Plaintiffs who had a valid title could only be deprived of their possession by virtue of a legal order and an order contemplated by law and unless the mandatory provision of Section 212-A (6) was complied with he could not be evicted, as such the dispossession of the Plaintiffs was otherwise than in accordance with law and he was entitled to a decree in his favour for possession. 10. In view of the above, I set aside the decrees of the courts below and decree the Plaintiff's suit as prayed for in relief (a) of the plaint with costs throughout.