Ram Gopal v. Badri Prasad — 1970 DIGILAW 25 (ALL)

JUDGMENT R.S. Pathak, J. - This Special Appeal is directed against the judgment and order of the learned single Judge of this Court allowing a petition Under Article 226 of the Constitution filed by the Respondents, Badri Prasad and Jageshwar. 2. The land in dispute was recorded in the revenue records in the name of the Gram Samaj. On the commencement of proceedings under the UP Consolidation of Holdings Act an objection was filed by the Appellant contending that he was sirdar of the land. Another objection was filed by the Respondents Badri Prasad and Jageshwar claiming that they were sirdars and not the Appellant. The Consolidation Officer upheld the objection of Badri Prasad and Jageshwar and rejected that of the Appellant. An appeal filed by the Appellant was dismissed by the Settlement Officer, Consolidation. On the appeal filed by Badri Prasad and Jageshwar he held that the land continued to be vested in the Land Management Committee and Badri Prasad was a trespasser of the land in dispute. The claim of Badri Prasad that he was sirdar was rejected. Thereafter, both the Appellant and the Respondent Jageshwar filed second appeals before the Assistant Director of Consolidation. The Assistant Director, Consolidation dismissed the appeals by his order dated 12-2-1962. Then the Appellant filed a revision application before the Director of Consolidation. The revision application was allowed by an order dated 21-2-1963 by the Joint Director, Consolidation. The Joint Director, Consolidation, held that the Appellant was sirdar of the disputed plots and the Gram Samaj had no title therein. During the course of revision application an application was made by Badri Prasad and Jageshwar praying that they be declared sirdars. That application was rejected on the ground that they had not filed a revision application and had also not been able to point out any jurisdictional error in the order of the Assistant Director. The decision is included in the order of 21-2-1963 made by the Joint Director on the revision application filed by the Appellant. Against the order of the joint Director the Respondents Badri Prasad and Jageshwar filed a petition Under Article 226 of the Constitution. That petition has been allowed and this special appeal has now been preferred against that judgment and order. 3. Against the order of the joint Director the Respondents Badri Prasad and Jageshwar filed a petition Under Article 226 of the Constitution. That petition has been allowed and this special appeal has now been preferred against that judgment and order. 3. The learned single Judge has held that while the Appellant is entitled to be recorded as sirdar the Respondents Badri Prasad and Jageshwar should be recorded as trespassers in case they are found in possession and the question whether they are in possession should now be decided on remand by the Assistant Director, Consolidation. Accordingly, he set aside the orders of the Joint Director, Consolidation and of the Assistant Director, Consolidation and directed the second appeal to be decided in accordance with law. 4. Learned Counsel for the Appellant contends that the learned single Judge is in error in so far as he has required an investigation of the question of possession again and it is said, there was no need to remand the case for an investigation into that question. We have heard learned Counsel for the parties and we are of opinion that learned Counsel is right in his submission. It is, necessary, we think, to consider the proceedings with reference to the stage when the second appeals were decided by the Assistant Director, Consolidation. It is at that stage that the final findings of fact are contemplated under the UP Consolidation of Holdings Act and for the purpose of ascertaining what was the position taken finally in respect of questions of fact we must necessarily advert to the order of the Assistant Director. There is also the consideration that no revision application was filed by Badri Prasad and Jageshwar against the order of the Assistant Director and consequently the findings rendered by that authority against Badri Prasad and Jageshwar became final. It is true that an application was made by those Respondents before the Joint Director but that application was made in a pending revision application filed by the Appellant and not as an independent proceeding. The application was rejected by the Joint Director on grounds with which we find ourselves in agreement. 5. From the order of the Assistant Director, Consolidation we find that a suit was filed in September 1958 by the Appellant for an injunction against the Gram Samaj restraining it from interfering with the Appellant's possession in the plots in dispute. The application was rejected by the Joint Director on grounds with which we find ourselves in agreement. 5. From the order of the Assistant Director, Consolidation we find that a suit was filed in September 1958 by the Appellant for an injunction against the Gram Samaj restraining it from interfering with the Appellant's possession in the plots in dispute. The Gram Samaj did not contest the suit and consequently it was decreed ex parte, on 20-2-1959. On the basis of that decree, the Appellant, was held to be a sirdar. The learned single Judge has found that Badri Prasad and Jageshwar were not parties to the suit and inasmuch as, he says, the lease granted in favour of the Gram Samaj was made before the institution of the suit the ex parte decree obtained by the Appellant could not be treated as binding on Badri Prasad and Jageshwar. It seems, however, that the lease was granted some time after the suit was instituted. According to the findings rendered by the Assistant Director, Consolidation on the appeal of Badri Prasad and Jageshwar, although there was a resolution of the Gaon Panchayat on 31-5-1953 deciding to allot the land to Badri Prasad and Jageshwar this resolution was not acted upon and subsequently in the year 1958 Badri Prasad and Jageshwar obtained a lease from the Gram Samaj. The lease was granted on 17-10-1958. It was granted by the Gram Samaj after the institution of the suit filed by the Appellant and clearly, therefore, a decree in that suit would be binding not only upon the Gram Samaj but also upon Badri Prasad and Jageshwar inasmuch as they claimed through the Gram Samaj. We, therefore, hold that on the basis of the suit the Appellant must be treated to have acquired the status of a sirdar. 6. It is urged on behalf of the Respondents Badri Prasad and Jageshwar that the learned Munsif, before whom the suit was filed, had no jurisdiction to decide the issue of sirdari rights and that it was necessary for him pursuant to Section 332-B of the UP ZA and LR Act to refer that issue to a revenue court. It appears, however, that by the time the learned Munsif came to decide the suit, the statute was amended by the UP Land Reforms (Amendment) Act, 37 of 1958, which came into force on 7-11-1958. It appears, however, that by the time the learned Munsif came to decide the suit, the statute was amended by the UP Land Reforms (Amendment) Act, 37 of 1958, which came into force on 7-11-1958. The amending Act deleted Section 332-B and the consequent result is succinctly set out in the judgment of Singh, J. in the Full Bench decision of this Court in Kallu Khan v. Kamrulnisa 1962 AWR 839: The next amendment was made under the UP Land Reforms (Amendment) Act, XXXVII of 1958, which came into force on 7-11-1958. u/s 79 of this Act Sections 332, 332-A and 332-B of Act I of 1951, were deleted with the result that there is no provision since then for any issue being submitted by the revenue courts to the civil courts or by the civil courts to the revenue courts and both classes of courts have now to decide all questions, to whatever right they may relate, which might arise in suits or proceedings instituted before them and within their cognizance.... Whatever might have been the position before 7-11-1958, it is patently clear that a suit pending on that date before a civil court having jurisdiction in the matter fell to be decided in the light of the consequences brought about by the Amending Act of 1958 and that implied necessarily that a question relating to sirdari rights, which formerly should have been referred to a revenue court for decision could not be decided by the civil court. We are of opinion that the learned Munsif had jurisdiction to decide the issue of sirdari rights and to decree the suit on the date on which he did. 7. Learned Counsel for Badri Prasad and Jageshwar contends that the decision of the Assistant Director in the second appeal filed by them as to the effect of Section 123 B of the UP ZA and LR Act is not correct and that the lease granted in their favour on 7-10-1958 was a valid lease. The decision in that matter by the Assistant Director, Consolidation cannot be agitated now. It was open to the contesting Respondents to file a revision application against the order of the Assistant Director and it not having been done so the findings on the appeal filed by them have become final. 8. The decision in that matter by the Assistant Director, Consolidation cannot be agitated now. It was open to the contesting Respondents to file a revision application against the order of the Assistant Director and it not having been done so the findings on the appeal filed by them have become final. 8. Finally, there is the submission of learned Counsel for Badri Prasad and Jageshwar that the question whether they had acquired sirdari rights u/s 210 of the UP ZA and LR Act falls to be decided yet and therefore, the learned single Judge was right in referring the matter back to the consolidation authorities for investigating whether they were in possession. We think that learned Counsel is incorrect in his submission. The Assistant Director, while dismissing the appeal of the contesting Respondents, held: I agree with the learned Settlement Officer, Consolidation that these persons have failed to prove their continuous possession for any such period as may entitle them to declaration of sirdari rights. This finding became final in view of the absence of any revision application by the contesting Respondents against the order of the Assistant Director. We are unable to appreciate, with great respect to the learned single Judge, how any further investigation into the question of possession can be of benefit for the effective adjudication of the present dispute. Once the finding is final that the contesting Respondents had failed to prove that they had been in adverse possession for such sufficient period as to entitle them to sirdari rights, it is not necessary, we think, that this question of possession be investigated again. 9. Upon the aforesaid consideration, the special appeal is allowed. We set aside the judgment and order of the learned single Judge and dismiss the writ petition with costs throughout.