Akhtar Khan v. Board of Revenue — 1972 DIGILAW 12 (ALL)

ORDER K.N. Singh, J. - This petition Under Article 226 of the Constitution is directed against the judgment and order of the Board of Revenue dated 16-6-1969, whereby the Petitioner's suit u/s 229-B of the UP ZA and LR Act, 1951 was dismissed. 2. The land in dispute was sir of one Aley Hasan. He migrated to Pakistan. Thereafter the land was declared evacuee property which vested in the Custodian under the provisions of the Administration of Evacuee Property Act, 1950. Asghar Khan Petitioner's father was tenant of the sir land who was in possession at the time when the land was declared evacuee property. Asghar Khan died and was succeeded by his son Akhtar Khan the Petitioner and his name was entered in the revenue papers as tenant of the evacuee Aley Hasan. Since the property had vested in the Custodian the Petitioner deposited fifteen times of the rent and obtained a Bhumidhari Sanad from the Custodian on 8-12-1959 in respect of the land in dispute. The Petitioner filed a suit on 21-1-1964 before the Judicial Officer of distt. Jaunpur u/s 229-B/209 of the UP ZA and LR Act, 1951 for the ejectment of Respondent No. 2, Jhoori and for a declaration that the Petitioner was bhumidhar of the land as he had been granted bhumidhari sanad by the Custodian. The Petitioner's allegation in the suit was that Jhoori Respondent No. 2 was admitted as sajhi by the Petitioner during his period of minority, to help him in cultivation, but Jhoori got his name surreptitiously recorded as qabiz over the disputed plot as a result of which the necessity for filing the suit arose. Jhoori Respondent No. 2 was Defendant in the suit. Jhoori Respondent contested the Petitioner's claim. He denied the Plaintiff's claim and claimed himself to be the sirdar in possession on the basis of being recorded occupant in 1356 F. and also by virtue of being in possession for a period of more than the prescribed number of years for filing suit for his ejectment. The trial court as well as the Addl. Commr. He denied the Plaintiff's claim and claimed himself to be the sirdar in possession on the basis of being recorded occupant in 1356 F. and also by virtue of being in possession for a period of more than the prescribed number of years for filing suit for his ejectment. The trial court as well as the Addl. Commr. in first appeal decreed the Petitioner's suit on the finding that the Petitioner had obtained bhumidhari sanad from the Custodian and that the suit was filed within limitation and that Jhoori Defendant was not recorded occupant, nor he was in cultivatory possession in 1359 F. Jhoori Respondent No. 2 filed a second appeal before the Board of Revenue and the only point canvassed before the Board of Revenue, was that the Petitioner's suit was not maintainable in view of the provisions contained in Schedule V of the UP ZA and LR Act, 1951. The Board of Revenue accepted the contention and set aside the decrees passed by the Trial Court and the first appellate court and directed the parties to seek their remedies before the court of competent jurisdiction. Learned counsel for the Petitioner has urged that the Board of Revenue committed an error apparent on the face of the record in setting aside the decree passed by the trial court and the lower appellate court and in dismissing the Petitioner's suit on a misinterpretation of the provisions of para. 6 of Schedule V to the ZA and LR Act. Learned Counsel has further urged that in any view of the matter the Petitioner's suit could not be dismissed and even if the provisions of para. 6 of the said Schedule V were applicable the proceedings in the appeal before the Board of Revenue should have been stayed and the party concerned claiming sirdari rights should have been directed to get his rights declared by the Custodian. It was further urged that on the findings of fact recorded by the trial court and the lower appellate court the property had ceased to be evacuee property and as such, the provisions of para. 6 of Schedule V were not attracted at all in the case. Learned Counsel for Respondent Jhoori has, however, urged that since an issue had been framed as to whether Respondent No. 2 was a sirdar of the land in suit the provisions of para. 6 of Schedule V were not attracted at all in the case. Learned Counsel for Respondent Jhoori has, however, urged that since an issue had been framed as to whether Respondent No. 2 was a sirdar of the land in suit the provisions of para. 6 were fully attracted and the Board of Revenue has rightly dismissed the Petitioner's suit and directed the parties to get their rights declared by the Custodian who had jurisdiction to decide the controversy. 3. U/Ch. 2-A of the ZA and LR Act, 1951 separate provision has been made by the Legislature for conferment of sirdari and bhumidhari rights on tenure holders in respect of evacuee property. General provisions contained in the Act for acquisition of adhivasi, sirdari and bhumidhari rights have been modified and separate detailed provisions have been made which exclusively govern the determination of these rights in respect of land declared evacuee property. Section 26-B lays down that the provisions of the ZA and LR Act in their application to evacuee property shall have effect subject to the modification set out in Schedule V to the Act. Provisions contained in Schedule V amend the Act in its application to evacuee property. Paras 4, 4-A and 4-B amend the provisions contained in Sections 16, 19 and 20 for acquisition of adhivasi, sirdari and bhumidhari rights. The procedure for acquisition of bhumidhari and sirdari rights is quite different than that contained in other chapters of the Act. Under para 4 any person who had become adhivasi Under Clause (b) of Section 20 of any land which was evacuee property could acquire bhumidhari rights, provided he paid to the Custodian twenty times of the rent computed at the hereditary rates. Similar provision has been made in para. 4-A in respect of a person claiming adhivasi rights Under Clause (a) of Section 20 of the Act. But in this case the person claiming adhivasi rights being tenant of sir land is required to pay fifteen times of rent to the Custodian instead of twenty times. On such deposit, the Custodian is empowered to issue bhumidhari sanad whereupon the tenant acquires the status of a bhumidhari under the Act. But in this case the person claiming adhivasi rights being tenant of sir land is required to pay fifteen times of rent to the Custodian instead of twenty times. On such deposit, the Custodian is empowered to issue bhumidhari sanad whereupon the tenant acquires the status of a bhumidhari under the Act. The trial court as well as the Commissioner recorded finding that the Petitioner was a tenant of sir holder who was an evacuee and the Petitioner deposited fifteen times of the rent with the Custodian whereupon a bhumidhari sanad had been issued to him in respect of the land in question by the Custodian on 8-12-1959. On the issue of such a bhumidhari sanad the Petitioner acquired the status of a bhumidhar under the Act and he was entitled to maintain the suit for ejectment of a trespasser. 4. The Board of Revenue interpreted para. 6 of Schedule V in dismissing the Petitioner's suit. It would be pertinent to set out the provisions contained in para 6 which are as under: 6. (1) If in respect of any evacuee land a question arises as to whether any person in occupation thereof is or is not a sirdar Under Sections 16 and 19 or is not an adhivasi u/s 20, such question shall be decided by the Custodian of evacuee property and not by any other court or authority and the decision of the Custodian shall be conclusive subject to the provisions of appeals, review and revision contained in the Administration of Evacuee Property Act, 1950. (2) Where in any suit or proceeding relating to land instituted after the commencement of the UP Land Reforms (Amendment) Act, 1956 in a Civil or Revenue Court or if instituted before the said commencement, a decree or order has not already been passed, the question arises or is raised whether any party to the suit or proceeding is or on any material date was sirdar, adhivasi or asami of land and such question has not been previously determined by a Court of competent jurisdiction or the Custodian the Court shall stay the proceedings and direct the party claiming to be a sirdar, adhivasi or asami to get the said right determined by the Custodian. (3) The decision of the Custodian shall be conclusive subject to the provision of appeals, reviews and revisions contained in the Administration of Evacuee Property Act, 1950. (3) The decision of the Custodian shall be conclusive subject to the provision of appeals, reviews and revisions contained in the Administration of Evacuee Property Act, 1950. The provision of Sub-sections (2) and (4) of Section 332-B shall thereafter apply as if for the word "Collector" the word "Custodian" had been substituted therein. 5. The above-provision was made by the Legislature in keeping with the general policy that any dispute with regard to an evacuee property should be decided by the Custodian and by no other court. Similar provisions have been made in the Administration of Evacuee Property Act, 1950. By Section 46 of that Act jurisdiction of Civil Courts and Revenue Courts are barred against the decision of the Custodian in respect of the Evacuee Property. The Administration of Evacuee Property Act, under which the evacuee properties are declared and administered, disposed of and transferred by the Custodian is a Special Act. Its provisions have overriding effect and the Custodian under that Act is the final authority to decide the right claimed by any person in relation to or evacuee property. The State Legislature of U.P. thought it fit to preserve that power of the Custodian, as such, para. of Schedule V was enacted. According to para. 6 if any person in occupation o evacuee land raised a question of been sirdar or adhivasi, the Revenue Court has no jurisdiction to decide tha question instead, the Custodian i the authority to give an authoritative decision which is conclusive subject to the provisions of appeal, review and revision contained in the Administration of Evacuee Property Act 1950. Under Clause (2) of para 6, if during the pendency of a suit if any person claim to be sirdar, adhivasi or asami of an land the court before which such proceedings are pending is required to sta the proceedings and direct the party t get his rights determined by the Custodian; and the decision of the Custodia has been made conclusive subject to the provisions of appeal, review and revisions contained in the Administration to Evacuee Property Act, 1950. The pre visions contained in para 6 make it clause that if a party to a suit or proceeding claims the right of a sirdar, adhivasi or asami, in that case the proceedings are to be stayed and that party is required to get his rights determined by the Custodian. The pre visions contained in para 6 make it clause that if a party to a suit or proceeding claims the right of a sirdar, adhivasi or asami, in that case the proceedings are to be stayed and that party is required to get his rights determined by the Custodian. The Board of Revenue has held that since Jhoori Respondent No. 2, who was Defendant in the suit was claiming sirdari rights in the land in suit, the Revenue Courts had no jurisdiction to decide the suit and therefore, the directed the parties to get their rights determined from the competent authority. The question which immediately irises is whether the land in suit was evacuee property. If the land ceased to be evacuee property the provisions confined in para. 6 could not apply. The Board of Revenue failed to address itself to this question. 6. While considering the question, it is pertinent to note that the plea with regard to the lack of jurisdiction of Revenue Courts was not raised by the Defendant either before the trial court or before the lower appellate court it was for the first time raised before the Board of Revenue in second appeal. The Petitioner challenged the right of the Defendant Respondent to raise that question at that late stage. Learned Counsel or the Petitioner has assailed the legality of the order of Board of Revenue in following the Defendant Respondent to raise the question of jurisdiction which vas a mixed question of law and fact it the second appeal stage, but I do not consider it necessary to express any opinion on that question as, the Petitioner s entitled to succeed on the other questions raised in the petition. 7. No doubt Jhoori Respondent No. 2 had raised a claim that he was sirdar by virtue of being in cultivatory possession in 1359F. over the land in dispute and by virtue of being recorded occupant n 1356F., but the findings of fact recorded by the trial court and the lower appellate court made it clear that Jhoori vas not recorded occupant in 1356F. Over the land in dispute; nor he was In cultivatory possession in 1359F. Both he courts further recorded a finding hat Jhoori had not perfected his title by virtue of being in possession for more than the period prescribed for his ejectment under the Act. Over the land in dispute; nor he was In cultivatory possession in 1359F. Both he courts further recorded a finding hat Jhoori had not perfected his title by virtue of being in possession for more than the period prescribed for his ejectment under the Act. The suit according to the concurrent findings of both he courts had been filed within the period of limitation prescribed under the Act. These findings were findings of fact which were not interfered with by the Board of Revenue as it could not be set aside in second appeal. The Board of Revenue allowed the second appeal only on the ground of jurisdiction. 8. The findings of fact recorded by both the courts became final which have to be taken into account in considering the question of jurisdiction of the Revenue Courts. Under the provisions contained in para. 6 of Schedule V if the land continued to be evacuee land, the Revenue Courts had no jurisdiction to decide the sirdari rights claimed by the Respondent Jhoori. But if the land ceased to be evacuee land provisions contained in para. 6 could not be attracted. Evacuee land has not been defined either under the provisions of the UP ZA and LR Act or in the Administration of Evacuee Property Act. "Evacuee property" has been defined by Clause (f) of Section 2 of the Administration of Evacuee Property Act, 1950. 'Evacuee Property' means any property belonging to an evacuee as defined in Clause (d) of Section 2 of the said Act. After the issue of a notification u/s 7 of the Administration of Evacuee Property Act, 1950 the property vests in the Custodian and u/s 10 of the said Act the Custodian is vested with powers to manage the property or to transfer the same in any manner whatsoever. The Custodian is entrusted with the duty of management and administration of only evacuee property and any property which is transferred by the Custodian to any other person ceases to be evacuee property and the Custodian loses his right to manage or administer that property under the provisions of the Administration of Evacuee Property Act, 1950. Property is a wide term which includes both moveable and immovable property. The land of an evacuee is declared evacuee property under the Administration of Evacuee Property Act, on such declaration it becomes evacuee land. The explanation to para. Property is a wide term which includes both moveable and immovable property. The land of an evacuee is declared evacuee property under the Administration of Evacuee Property Act, on such declaration it becomes evacuee land. The explanation to para. 4-B of Schedule V to the UP ZA and LR Act lays down that 'evacuee land' means land which is evacuee property. Thus it is clear that evacuee land means only that land which is evacuee property and in respect of which the Custodian has got power of management and administration under the provisions of Administration of Evacuee Property Act, 1950. A land ceases to have the character of evacuee land on its transfer or sale to any other person by the Custodian. Under the provisions of the ZA and LR Act the Custodian would become competent authority to confer bhumidhari rights on a tenure holder, who deposited fifteen times or twenty times of the rent as the case may be. Once the Custodian grants bhumidhari sanad under the provisions of Schedule V to the UP ZA and LR Act, the Custodian ceased to have any right to administer or transfer that land, as that land ceased to be evacuee land. 9. The question whether the Petitioner had acquired sirdari or bhumidhari rights had arisen before the Custodian and he had considered the same and on the deposit of fifteen times of rent, the Custodian conferred bhumidhari rights on the Petitioner. The Petitioner could not have acquired bhumidhari rights unless the custodian was satisfied that the Petitioner was in possession as a tenant of the sir land of the evacuee. The conferment of bhumidhari rights by the custodian was itself a decision by the Custodian that the Petitioner was entitled to bhumidhari rights. If the Respondent had any right in the land in question, he should have raised objection before the Custodian at the appropriate stage. It is admitted that Respondent No. 2 did not file any objection before the Custodian, nor did he claim any sirdari rights before him. As already observed, on the findings recorded by the trial court and the lower appellate court, it is clear that Respondent No. 2 was not in possession of the land in dispute in 1356 F. or in 1359 F., Respondent No. 2 could not, therefore, claim adhivasi or sirdari rights before the Custodian. As already observed, on the findings recorded by the trial court and the lower appellate court, it is clear that Respondent No. 2 was not in possession of the land in dispute in 1356 F. or in 1359 F., Respondent No. 2 could not, therefore, claim adhivasi or sirdari rights before the Custodian. The question whether the Petitioner had acquired bhumidhari or sirdari rights in respect of an evacuee land, had already been decided by the Custodian and once that was done, there was no necessity under the law for the Petitioner to have approached the Custodian for deciding the question afresh. Respondent No. 2 was claiming sirdari rights in respect of a land which had ceased to be evacuee land and it was admittedly bhumidhari land of the Petitioner. Provisions contained in para. 6 of Schedule V to the Act were (not) attracted. The Board of Revenue committed an error apparent on the face of the record in holding that since Jhoori Respondent No. 2 was claiming sirdari rights in the land, the Revenue Courts had no jurisdiction to try the suit in question or to pass a decree of ejectment. Once the Petitioner became bhumidhar, he was entitled under to file a suit for the ejectment of a trespasser and the plea of trespasser that he had acquired sirdari rights could be decided by the Revenue Courts. The scheme of the Act and the provisions contained in Schedule V, make the legislative intent clear that the court should not interfere with the administration of evacuee property by the Custodian, during the period the property continues to be evacuee property. Once bhumidhari sanad is granted to a person, or the property is transferred to any person, the Custodian loses the jurisdiction to administer that property. In my opinion, by no stretch of imagination the Custodian can be said to be invested with the powers to decide the question of sirdari rights after the land had been disposed of by him, without cancelling the bhumidhari sanad granted by him. 10. The Custodian had granted a bhumidhari sanad to the Petitioner in respect of the land in dispute on 8-12-1959, thereupon, the Custodian ceased to have any right in respect of the land in dispute and the land ceased to be evacuee land. Under these circumstances, the provisions of para. 10. The Custodian had granted a bhumidhari sanad to the Petitioner in respect of the land in dispute on 8-12-1959, thereupon, the Custodian ceased to have any right in respect of the land in dispute and the land ceased to be evacuee land. Under these circumstances, the provisions of para. 6 of Schedule V were not applicable at all and the Petitioner's suit was maintainable, which could legally be disposed of by the Revenue Courts. The Board of Revenue committed an error apparent on the face of the record in dismissing the Petitioner's suit and setting aside the decree passed by the trial court and the lower appellate court. 11. The petition is accordingly allowed, the order of the Board of Revenue dated 16-6-1969 is quashed. The Petitioner is entitled to his costs.