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1967 DIGILAW 98 (ALL)

Kali Charan v. Joint Director of Consolidation

1967-03-20

S.N.SINGH

body1967
ORDER S.N. Singh, J. - The above writ petition and the second appeal were heard together and are in respect of the same property as such I propose to dispose of them together. 2. The facts giving rise to these proceedings are as follows : Two leases in respect of the same property in the year 1951 were executed one in favour of Pa-halwan Singh and Moti Lal, opposite parties Nos. 4 and 5, by Chaudhari Raghunath Singh the Lumbardar of the village and another in respect of the same property in favour of Kali Charan and Gajraj Singh Petitioners by some cosharers of the village, In view of these conflicting leases there was a dispute between the parties about the title of the plots in dispute. In that very year, i.e. 1951, Pahalwan Singh and Moti Lal opposite parties Nos. 4 and 5 filed a suit u/s 59/180 of the UP Tenancy Act against the Petitioners Kali Charan and Gajraj Singh for their ejectment. This suit was pending in the revenue court at the time when Act XXXI of 1952 was passed. In the year 1953 the revenue court took the view that after the passing of the UP ZA and LR Act such a suit could not be entertained by the revenue court as such returned the plaint for presentation to the proper court. Thereafter a suit was instituted in civil court for declaration of the sirdari right and ejectment of the Petitioners Kali Charan and Gajraj Singh by Pahalwan Singh and Moti Lal, opposite parties Nos. 4 and 5. This suit was dismissed by the trial court on the finding; that Defendants had become adhiyasis and later on sirdars by virtue of Act XX of 1954. 3. An appeal was preferred against the decision of the trial court and the Civil Judge set aside that order and came to the conclusion that Plaintiffs Pahalwan Singh and Moti Lal were the sirdars of the plots in dispute and the Defendants Petitioners Kali Charan and Gajraj Singh were trespassers as such decreed the suit. 3. An appeal was preferred against the decision of the trial court and the Civil Judge set aside that order and came to the conclusion that Plaintiffs Pahalwan Singh and Moti Lal were the sirdars of the plots in dispute and the Defendants Petitioners Kali Charan and Gajraj Singh were trespassers as such decreed the suit. The Civil Judge set aside the finding of the Munsif about the adhivasi right of the Defendants Petitioners on the ground that the Defendants Petitioners could not claim adhivasi right on account of the cultivatory possession in 1359 in view of Section 6 of Act XXXI of 1952 for at the time of the passing of Act XXXI of 1952 a suit u/s 59/180 of the UP Tenancy Act was pending before the revenue court. 4. Aggrieved with this decision of the first appellate court a second appeal was preferred by the Defendants Petitioners in this Court. During the pendency of the second appeal consolidation proceedings started in the village in suit and since in the basic year the names of both the parties were recorded in revenue papers against the plots in dispute both of them claimed tenureholder-ship right to the exclusion of the other. 5. The Consolidation Officer and the Settlement Officer Consolidation accepted the Petitioner's claim on the basis of their cultivatory possession of 1359F. and directed their names to be recorded as tenure holders in the revenue papers. In second appeal the Deputy Director of Consolidation reversed the decisions of the two authorities the Consolidation Officer and the Settlement Officer Consolidation and held that the Petitioners could not acquire adhivasi right by virtue of their cultivatory possession in 1359F relying on Section 6 of Act XXXI of 1952. He held that since there was a suit pending u/s 59/180 of the UP Tenancy Act in the revenue court at the date of the passing of Act XXXI of 1952 the Petitioners were not entitled to the benefit of Section 3 of that Act. This decision of the Deputy Director of Consolidation was affirmed by the Joint Director of Consolidation in revision. 6. The Petitioners have filed the present writ petition against the decisions of the Joint Director of Consolidation and the Deputy Direct ot of Consolidation. It has been submitted on their behalf that opposite parties Nos. This decision of the Deputy Director of Consolidation was affirmed by the Joint Director of Consolidation in revision. 6. The Petitioners have filed the present writ petition against the decisions of the Joint Director of Consolidation and the Deputy Direct ot of Consolidation. It has been submitted on their behalf that opposite parties Nos. 4 and 5 could not take advantage of the pendency of the suit u/s 59/180 of the UP Tenancy Act which had been filed in the revenue court because that suit was not a validly instituted suit. It was submitted that the revenue court returned the plaint for presentation to the proper court and another suit was instituted by the opposite, parties Nos. 4 and 5 in the civil court as such the Petitioners were entitled to the benefit of Section 3 of Act XXXI of 1952. The decisions of opposite parties Nos. 1 and 2 have been challenged only on this ground and no other. 7. I have considered the submissions of the learned Counsel but in my opinion the Deputy Director of Consolidation as well as the Joint Director of Consolidation are right when they have held that because of the pendency of the suit u/s 59/180 of the UP Tenancy Act the Petitioners were not entitled to the benefit of Section 3 of Act XXXI of 1952. It will be remembered that the opposite parties Nos. 4 and 5 had instituted a suit on 3-10-1951 u/s 59/180 of the UP Tenancy Act for the ejectment of the Petitioners. At that time the only proper court for the institution of such a suit was the revenue court and the suit that was pending was a validly instituted suit. True it is that the revenue court directed the return of the plaint after the passing of the UP ZA and LR Act. This order of return could not make a validly instituted suit to be an incompetent one. I am clearly of opinion that the suit which had rightly been instituted in the revenue court was improperly directed to be returned for presentation to the civil court. This order of return could not make a validly instituted suit to be an incompetent one. I am clearly of opinion that the suit which had rightly been instituted in the revenue court was improperly directed to be returned for presentation to the civil court. Since there was a validly instituted suit u/s 59/180 of the UP Tenancy Act pending at the time when Act XXXI of 1952 was passed the Petitioners were not entitled to the benefit of Section 3 of Act XXXI of 1952 in view of Section 6 of that Act. 8. The view of law taken by the opposite parties Nos. 1 and 2 does not suffer from any mistake much less any mistake apparent on the face of the record. In this view of the matter the writ petition should fail. 9. Now with the dismissal of the writ petition the question arises as to what should be the order in second appeal. It has been contended on behalf of the Petitioners that the proper order to be passed would be the order of abatement of the suit. On the contrary the Plaintiffs opposite parties have contended that the relief of possession which has been granted by the civil court should be maintained. 10. I have considered the respective submissions of the learned Counsel and have compared the old Section 5(b) which has been substituted by Section 5(2)(a) of the amending Act, Act XXI of 1966 and find that an order of abatement cannot be passed in a case where the Plaintiff had sought the relief of possession. There is no provision in the U.P. Consolidation of Holdings Act by virtue of which a decree for possession can be granted to any person. A comparison of the old and new section would show that previously proceedings for recovery of possession were also directed to be stayed. But in the amended section we find that there is no provision for the abatement of a suit for possession as such since the Plaintiffs have finally succeeded before the Consolidation authorities and their title has been accepted the proper order should be dismissal of the appeal and not the abatement of suit. 11. But in the amended section we find that there is no provision for the abatement of a suit for possession as such since the Plaintiffs have finally succeeded before the Consolidation authorities and their title has been accepted the proper order should be dismissal of the appeal and not the abatement of suit. 11. In the result the writ petition fails and is hereby dismissed with costs and for the reasons given above the second appeal No. 1278 of 1960 is also dismissed but without any order as to costs.