Kamal Ahmad v. Deputy Director of Consolidation — 1972 DIGILAW 274 (ALL)

JUDGMENT Satish Chandra, J. - The question was whether the Respondents Nos. 3 and 4 became Adhivasis by virtue of their being recorded as occupants in the revenue papers of 1356 F. The Settlement Officer, Consolidation, answered the question in favour of the Respondents and upheld their claim. The finding was affirmed in revision. Aggrieved, the Appellants instituted a writ petition in this Court, which, however, failed. Hence, the present appeal. 2. Mr. Sachchidanand Sahai, learned Counsel for the Appellants, has raised the following submissions in support of the appeal: (i) The objection u/s 12 of the U.P. Consolidation of Holdings Act was barred by Order XXII Rule 9, Code of Civil Procedure. (ii) The finding given in the earlier suit that the entry of 1356 Fasli was fictitious operated as res judicata. (iii) The entry of 1356 Fasli must, in law, be deemed to have been corrected within meaning of Explanation 2 and 3 to Section 230-A of the UP ZA and LR Act. (iv) In view of the first explanation to Section 230-A, the Respondents had no right to restoration of possession and so, their objection was not maintainable. 3. In order to appreciate these submissions, the material and relevant facts may be mentioned. 4. The Appellants were the tenants of the plots in dispute and on 2nd June, 1950, instituted a suit for ejectment of the Respondents u/s 180 of the U.P. Tenancy Act. The suit was decreed on 29th November, 1952 and the decree was affirmed in Appeal. On June 20, 1953, the Appellants were restored to possession after ejectment of the Respondents. The appellate decree was affirmed by the Board of Revenue. 5. Thereafter the Respondents made an application u/s 232 of the ZA Act for restoration of possession on the ground that they had become Adhivasis. This application, was, however, declared to have abated on July 6, 1966. Subsequently, the Respondents instituted a second application u/s 232. This was allowed. The Appellants filed an appeal against that order. During the pendency of the appeal, proceedings under the Consolidation of Holdings Act commenced in the village with the result that the hearing of the appeal was stayed. 6. The Respondents filed an objection u/s 12, Consolidation of Holdings Act, claiming Adhivasi rights on the ground that they were recorded occupants in 1355 Fasli. 7. During the pendency of the appeal, proceedings under the Consolidation of Holdings Act commenced in the village with the result that the hearing of the appeal was stayed. 6. The Respondents filed an objection u/s 12, Consolidation of Holdings Act, claiming Adhivasi rights on the ground that they were recorded occupants in 1355 Fasli. 7. Order XXII Rule 9 CPC provides that where a suit abates or is dismissed under this order, no fresh suit shall be brought on the same cause of action. This provision bars a second suit on the same cause of action. Firstly, the claim of objection under the Consolidation of Holdings Act is not a suit within meaning of Order XXII Rule 9 Code of Civil Procedure. In the second place, Rule 9 does not, expressly or by an implication, destroy or extinguish the cause of action itself. It only bars the remedy of a suit on the same cause of action. We are not inclined to read Rule 9 as having the effect of extinguishing the cause of action. Section 28 of the Limitation Act, 1908, specifically provides for the extinguishment of the cause of action, when a suit for possession becomes barred by time. There is no similar provision in Rule 9. In our opinion, the abatement did not destroy the cause of action and it could be availed of, if the law provided some remedy than a suit to the Respondents to ventilate their rights. An objection u/s 12 was, not a suit. See Bombay Dyeing and Manufacturing Co. Ltd. Vs. The State of Bombay and Others, AIR 1958 SC 328 . We find no merits in this submission. 8. In the alternative, Mr. Sahai urged that the second suit u/s 232 filed on 31-8-1957 was not competent, because it was barred by Order XXII Rule 9 Code of Civil Procedure. Section 232 of the ZA Act prescribes a period of limitation of 30 months from the appointed date, which for the land in dispute was 1-4-1955. A suit for possession u/s 232 became barred by time on 1-10-1957. Thereafter, in view of Section 28, Limitation Act, the rights of the Respondents extinguished. The point has no substance. Mr. Sahai informed us that the Notification u/s 4 of the Consolidation of Holdings Act was published on November 18, 1955. A suit for possession u/s 232 became barred by time on 1-10-1957. Thereafter, in view of Section 28, Limitation Act, the rights of the Respondents extinguished. The point has no substance. Mr. Sahai informed us that the Notification u/s 4 of the Consolidation of Holdings Act was published on November 18, 1955. It is settled that after the publication of such a notification, no suit or application could be entertained by any civil or revenue court regarding the determination of rights which could be done under the Consolidation of Holdings Act, vide Section 49 thereof. The notification issued in November 1955 was well within thirty months of the appointed day namely, April 1, 1955. The Respondents rights did not extinguish. The objection u/s 12 was maintainable. 9. The second submission is equally without merit. There was no finding in the suit filed u/s 180 of the Tenancy Act that the entry of 1356 F. was fictitious. The Courts made an observation that the entry of 1356 F. had not been filed. There is nothing in those judgments to indicate that the 1356 F. entry was held fictitious. 10. It was then urged that the decree for ejectment u/s 180 should be deemed to require correction of the entry of Ex. 1356 F. within meaning of Explanation 3 to Section 230-A of the ZA Act. Under this explanation the entry should be deemed to have been corrected before the date of vesting, if an order or decree of a competent court requiring correction had been made before the said date and had become final. In the present case, the ejectment suit was filed on June 2, 1950, long after the expiry of the year of 1356 F. The suit was decreed for ejectment. Obviously, the Plaintiff's complaint was that the Respondents were in unauthorised occupation of the plots. There is nothing in the judgment or decree requiring the correction of the entry of 1356 F. The decree-only granted a relief of possession to the Appellants. The Appellants obtained possession on June 20, 1953 by the dispossession of the Respondents. A decree for ejectment passed in suit, filed after the expiry of 1356 F. is not a decree requiring correction of the ell try of 1356 F. within meaning of the third Explanation. 11. The Appellants obtained possession on June 20, 1953 by the dispossession of the Respondents. A decree for ejectment passed in suit, filed after the expiry of 1356 F. is not a decree requiring correction of the ell try of 1356 F. within meaning of the third Explanation. 11. Learned Counsel for the Appellants placed reliance on a Full-Bench decision of this Court in Ambika Prasad v. Kamla Prasad 1971 AWR 861 . The case is distinguishable on facts. In that case, a compromise decree stating that possession had been transferred was passed prior to 1356 F. Such a decree was held within the purview of the third explanation. Here the proceedings for ejectment were instituted after 1356 F. had gone by. The Respondents admittedly remained in possession throughout 1356 F. 12. The next point urged was that the ZA Act was by a notification dated 31st March, 1955, applied to the land in dispute (which was a Government estate) with effect from April 1, 1955. The notification applied the Act with certain modifications. Section 230-A was added to the Act in substitution for Section 20. Under its Clause (b) the person who was recorded as an occupant in 1356 F. was entitled to take or retain possession as an adhivasi. The first explanation to Section 230-A states: Where a person referred to in Clause (b) was evicted from the land after June 30, 1948, he shall, notwithstanding anything in any order or decree, be deemed to be a person entitled to retain possession of the land. Learned Counsel urged that in view of this Explanation, the Respondents having been evicted from the land after June 30, 1948, were only entitled to retain possession. They were not entitled to sue for restoration of possession. Hence, there claim for possession was not maintainable. 13. In our opinion, the word 'retain' in the explanation makes nonsense of the explanation. The explanation provides for a case where the person who was recorded as an occupant in 1356 F. had been evicted from the land after June 30, 1948, under some order or decree. Such an evicted person could not be deemed entitled to retain possession of the land, because he is, in fact, not in possession. The principal section entitles such a person either to take or retain possession. Such an evicted person could not be deemed entitled to retain possession of the land, because he is, in fact, not in possession. The principal section entitles such a person either to take or retain possession. The phrase 'retain possession' obviously can apply only in a situation where the person was in fact in possession; but if he, for some reason, was not in possession, he was entitled to "take" it, that is to say, to sue for restoration of possession u/s 232. In the context of the main section, the first explanation would carry some sense only if the word 'retain' was read as 'take' or 'regain'. 14. Section 20 of the original ZA Act also had a similar explanation. There the word used was 'regain' and not 'retain'. The ZA Act was extended to the various areas in this State by several notifications. We have seen the various notifications. In each of them, the word at the relevant place in the first explanation is 'regain'. 15. It is obvious that the legislative intent in drafting the first explanation was to confer an entitlement upon the recorded occupant to regain possession of the land, notwithstanding anything in any order or decree, if he was evicted after June 30, 1948. The legislative history as well as the object of the first explanation leads to the inference that the intended word was 'regain' and not 'retain' in the first explanation. The mention of letter 't' in place of 'g' is obviously either the drafts-mans or the printer's clerical error. 16. The question then arises whether under such circumstances, the court has power to construe the language so as to fulfil its plain object. 17. Maxwel on the Interpretation of Statutes, 12 Edn. 231, says that sometimes, where the sense of the statute demands it or where there has been an obvious mistake in drafting, a court will be prepared to substitute another word or phrase for that which actually appears in the text of the Act. In Eton College v. Minister of Agriculture, Fisheries and Food (1964) Chancery 274, Wilber-force, J., held that the word 'or' occurring in the Ecclesiastical Leases Act, 1751 was a mistake for 'of and proceeded to apply the Act on that assumption. In Eton College v. Minister of Agriculture, Fisheries and Food (1964) Chancery 274, Wilber-force, J., held that the word 'or' occurring in the Ecclesiastical Leases Act, 1751 was a mistake for 'of and proceeded to apply the Act on that assumption. Similarly in Clapham v. National Assistance Board (1961) 2 Q.B. 77, Lorder Parker, C.J., construed Section 44(3) of the National Assistance Act, 1948, as if the word 'on' occurring in the phrase "in any proceedings on an application under the last foregoing sub-section" should be read as 'arising out of. 18. In Seaford Court Estates Ltd. v. Asher (1949) 2 All. E.R. 155 at p. 164 Denning L.J. said: When a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament....and then he must supplement the written word so as to give "force and life" to the intention of the legislature... A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened at out? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases. This passage was quoted with approval by the Supreme Court in M. Pentiah and Others Vs. Muddala Veeramallappa and Others, AIR 1961 SC 1107 . In that case, the Hyderabad District Municipalities Act, 1956 did not on its term apply to the first election that may be held after the coming into force of that Act. There was no other provision for holding the first election. This position led to the complete failure of the object of the Act. The Supreme Court read Section 20 of that Act as if a proviso that every general election excepting the first election shall be held, was added to the section. Such an addition was held to carry out the intention of the legislature and do the least violence to the language used. So read, the Act would provide power to hold the first general election. Such an addition was held to carry out the intention of the legislature and do the least violence to the language used. So read, the Act would provide power to hold the first general election. In the light of this principle, it appears to us that life and force can be given to the first explanation and the plain intention of the legislature could be fulfilled only if the word 'retain' is construed as 'regain'. The claim of the Respondents was maintainable. 19. The various points urged in support of the appeal having failed, the appeal fails and is dismissed with costs.