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1966 DIGILAW 510 (ALL)

Lal Bihari Ram Kandu v. Board of Revenue

1966-11-30

S.N.DWIVEDI

body1966
ORDER S.N. Dwivedi, J. - The dispute relates to an agricultural holding. The Petitioners instituted a suit u/s 229C of the Zamindari Abolition and Land Reforms Act for a declaration that the Respondents 4 and 5 were their Asamis. The Respondents claimed that they were the Adhivasis of the Holding. They also alleged that the Petitioners had put them in possession over the holding in lieu of interest on the loan of Rs. 1,101/2/-advariced by the Respondents to the Petitioners. The trial court held that the Respondents were the Adhivasis of the holding. Accordingly the trial court dismissed the suit. 2. There was an appeal to the Commissioner. The appeal was heard by the Additional Commissioner. The Additional Commissioner affirmed the decree of the trial court and dismissed the appeal. 3. The Petitioners then filed a second appeal before the Board of Revenue. The Board of Revenue went into a new question at the stage of the second appeal. That question was whether the Petitioners had a subsisting Sirdari interest in the holding. The Board of Revenue held that as they had transferred the holding to the Respondents in lieu of interest oh the loan advanced by the latter, their Sirdari interest in the folding has been extinguished by virtue of the provisions of Section 190(1)(cc) of the Act. In view of this finding the Board of Revenue held that the suit was hence not maintainable. 4. Inspite of the opinion that the suit was not maintainable, the Board of Revenue went on to hold that the Respondents were not the Adhivasis but merely trespassers and that they were liable to ejectment at the suit of the Gram Samaj u/s 194(b) read with Section 190(1)(cc). Surprisingly, thereafter the Board of Revenue directed that the decree of the trial court should be so modified as to read that the Respondents were not the Adhivasis but trespassers. 5. Reeling aggrieved with the judgment of the Board of Revenue, the Petitioners have preferred the present writ petition. 6. Counsel for the Petitioners has questioned the view of the Board of Revenue that their suit was not maintainable as they had lost their rights by virtue of the provisions of Section 190(1)(cc). Section 193(1) of the Act provides that the interest of a Sirdar shall not be transferable. 6. Counsel for the Petitioners has questioned the view of the Board of Revenue that their suit was not maintainable as they had lost their rights by virtue of the provisions of Section 190(1)(cc). Section 193(1) of the Act provides that the interest of a Sirdar shall not be transferable. Section 166 provides that any transfer made by or on behalf of a Sirdar in contravention of the provisions of the Act shall be void. Section 167(1) provides that where a Sirdar has made a transfer in contravention of the provisions of the Act, the transferee shall be liable to ejectment on the suit of the Gaon Sabha, Sub-section (2) thereof further provides that a decree for ejectment under Sub-section (1) may direct the ejectment of the Sirdar from the holding as the court may, having regard to the circumstances of the case, direct. Section 168 provides that on his ejectment in a suit u/s 167 all the rights and interest of the Sirdar in the holding shall be extinguished. 7. The exact date of delivery of possession by the Petitioners to the Respondents in lieu of interest on the loan is not known. It is not necessary to find out the exact date of delivery of possession. There is no dispute that the delivery of possession must have taken place several years before 1958. When the delivery of possession took place, Section 190(1) did not contain the Clause (oc). It was added to the Section by the UP Act No. XXXVII of 1958 Clause (cc) of Section 190(1) provides that the interest of a sirdar in a holding shall be extinguished when the holding has been transferred, let out or used in contravention of the provisions of this Act. 8. The Board of Revenue has held that in view of Clause (cc) of Section 190(1) the interest of the Petitioners extinguished as soon as they delivered possession of the holding to the Respondents in lieu of interest on the loan advanced by them. The opinion of the Board of Revenue runs counter to the decision of a learned single Judge in Permanand v. Board of Revenue 1966 AWR (HC) 32. In this case the learned Judge has held that Clause (cc) of Section 190(1) is not retrospective and that it will not affect transfers already made before the commencement of the clause. The opinion of the Board of Revenue runs counter to the decision of a learned single Judge in Permanand v. Board of Revenue 1966 AWR (HC) 32. In this case the learned Judge has held that Clause (cc) of Section 190(1) is not retrospective and that it will not affect transfers already made before the commencement of the clause. He has further held that the right of a Sirdar who has transferred his holding in contravention of the provisions of the Act before the commencement of Clause (cc) of Section 190(1) shall not be extinguished until he has been ejected by the Gaon Samaj u/s 167(2). 9. I am bound by the decision of the learned fudge. I would accordingly hold that the view of the Board of Revenue is manifestly wrong. 10. Counsel for the Respondents has submitted that I should not quash the judgment of the Board of Revenue even though I have held that the view of the Board of Revenue on the applicability of Section 190(1)(cc) is wrong. He says that the Petitioners sued For a declaration of the rights off the Respondents. It is said that the Board of Revenue has granted a declaration regarding the rights of the Respondents. The Board *of Revenue has, it is said, declared that the Respondents were the trespassers on the holding. I am unable to agree. In substance and in reality the Board of Revenue has dismissed the Petitioners suit in limine as not maintainable, because the Board of Revenue found that the Petitioners had no subsisting interest in the holding. Thereafter it was not proper for the Board of Revenue to have granted a declaration that the Respondents were the trespassers on the holding. As the suit u/s 229-C was not maintainable by the Petitioners, no declaration, either positive or negative, could have been granted by the Board of Revenue. In the eye of law the declaration granted by the Board of Revenue is otiose. 11. I allow the petition and quash the judgment of the Board of Revenue. I further issue a direction to the Board of Revenue to rehear the appeal on merits. 12 There shall be no order as to costs.