Ganga Devi v. Jiwa Ram — 1973 DIGILAW 249 (ALL)

JUDGMENT Hari Swarup, J. - This appeal is directed against the judgment of a learned Single Judge allowing the writ petition filed by Jiwa Ram respondent No. 1 and quashing the orders of the Revenue Courts. 2. One Data Ram was a Cotenure holder of plot No. 41. In 1954 he sold his share in the plot to Smt. Ganga Devi. On December 24, 1958, Smt. Ganga Devi executed a lease of her share in the joint holding in favour of Madho Singh. Madho Singh then made an application under Sub-sec. (2) of Section 157 of the U. P. Zamindari Abolition and Land Reforms Act for the separation of the share of his lessor Smt. Ganga Devi. The application was mainly contested by Kalyan Das and after his death by his son Jiwa Ram respondent No. 1. The application was allowed by the trial court, an appeal against the order of the trial court was dismissed by the Additional Commissioner and a second appeal was dismissed by the Board of Revenue. Jiwa Ram then filed a writ petition in this Court. The learned Single Judge held that Madho Singh the lessee was not entitled to make the application under Sub-sec. (2) of Section 157 and quashed the order of the Revenue Court. Against the judgment of the learned single Judge Madho Singh and Smt. Ganga Devi have preferred this appeal. 3. The main point argued before us was whether the lessee had a right to file the application for partition under Sec. 157(2). (2) of Section 157 and quashed the order of the Revenue Court. Against the judgment of the learned single Judge Madho Singh and Smt. Ganga Devi have preferred this appeal. 3. The main point argued before us was whether the lessee had a right to file the application for partition under Sec. 157(2). Sec. 157 runs as under: - "157(1) A bhumidhar or a sirdar or an asami holding the land in lieu of maintenance allowance under Section 11 who is - (a) unmarried woman, or if married, divorced or separated from her husband or whose husband suffers from any of the disqualifications mentioned in clause (c) or (d) or a widow; (b) a minor whose father suffers from any of the disqualifications mentioned in clause (c) or (d) or has died ; (c) a lunatic or an idiot; (d) a person incapable of cultivating by reason of blindness or other physical infirmity; (e) prosecuting studies in a recognised institution and does not exceed 25 years in age and whose father suffers from any of the disqualifications mentioned in clause (c) or (a) or has died; (f) in the Military, Naval, or Air service of the India Dominion; or (g) under detention or imprisonment; may let the whole or any part of his holding:- Provided that in the case of a holding held jointly by more persons than one, but one or more of then, but not all are subject to the disabilities mentioned in clauses (a) to (g) the person or persons may let out his or their share in the holding. (2) Where any share of a holding has been let out under the proviso to Sub-sec, (1), the court may on the application of the asami or any tenure-holder determine the share of the lessor in the holding and partition the same." 4. The co-tenants in plot No. 41 were Bhumidhars. Admittedly Smt. Ganga Devi was a disabled person and the other co-tenure-holders were not disabled. Smt. Ganga Devi let out her entire share to Madho Singh. The case was clearly covered by the proviso to Sub-sec. (1) of Sec. 157. Again, admittedly Madho Singh, being the lessee of a disabled Bhumidhar became an Asami under Sec. 133(b) of the Act 5. Sub-sec. Smt. Ganga Devi let out her entire share to Madho Singh. The case was clearly covered by the proviso to Sub-sec. (1) of Sec. 157. Again, admittedly Madho Singh, being the lessee of a disabled Bhumidhar became an Asami under Sec. 133(b) of the Act 5. Sub-sec. (2) of Section 157 confers the right to make the application upon "the Asami or any tenure holder." The question which arises for consideration is whether the word "the Asami" refers to the lessee who has become an Asami under Sec. 133(b) or to the Asami under Section 11 referred to in the opening part of Sub-sec. (1). Sec. 129 provides that there shall be three classes of tenure holders, that is to say, Bhumidhars, Sirdars and Asamis. All the three types of persons mentioned in the opening part of Sub sec. (1) will be tenure holders. 6. Sub-sec. (2) applies to cases covered by the proviso to Sub-sec. (1). It confers the right to get the share of the lessor separated. In cases covered by this provision, there will be three types of persons, namely, the disabled tenure-holder or tenure-holders, the tenure-holder or tenure-holders who are not disabled and the lessee. The object of the provision is to enable the separate enjoyment of the share of the lessor by the lessee and of the remaining share by the tenureholders who have not leased out their share. Since the proviso to Sub-sec. (1) enables a disabled tenureholder to lease out his share, the leasing out introduces an outsider in the joint holding. Difficulties would arise in joint cultivation by the outsider and the other tenureholders who have not leased out their share. Sub-sec. (2) was enacted to meet this difficulty. If the share of the lessor is separated, then the lessee can exclusively enjoy that share and the other tenureholders can enjoy the remaining share. It is in the light of this object that the provisions of Sub-sec. (2) have to be examined to find out as to on which of the person enumerated above the right to have the share separated has been conferred. 7. There appears no reason why the words "any tenureholder" in Sub-sec. It is in the light of this object that the provisions of Sub-sec. (2) have to be examined to find out as to on which of the person enumerated above the right to have the share separated has been conferred. 7. There appears no reason why the words "any tenureholder" in Sub-sec. (2) should be given a restricted meaning as has been given by the learned Single Judge and confined to refer only to the tenureholders who were bhumidhars and sirdars and not to Asam is under Sec. 11. If the expression used in Sub-sec. (2) had been "any tenureholder or the asami", it would have meant the same thing as the expression actually used "the asami or any tenureholders" and the meaning would have been more easily ascertainable. "Any tenureholder "obviously refers to the tenureholders mentioned in the opening part of Section 157 (1). That being so, the words "the asami" in Sub-sec. (2) must refer to some one other than "any tenureholder" I and, therefore not to the Asami under Sec. 11. It can then refer only to the lessee who has become an asami under Sec. 133(b). It thus appears to us that Sub-sec. (2) confers a right to make an application for separation upon the tenureholders mentioned in the opening part of Sub-sec. (1) as well as upon the lessee who has become an Asami. This interpretation sub-serves the object of the provision and enables the lessee to get the share of his lessor separated and to separate by enjoy the same. It may be mentioned that the lessee will become an Asami only when the disabled tenure-holder, who leases out his share, is a Bhumidhar or a Sirdar. The lessee of the tenureholder, who is an Asami under Section 11, will not be an Asami and, therefore, no right to make an application for separation is conferred upon such a lessee. 8. Learned counsel for the respondents referred to Section 176 of the Act and contended that as under this section the right to get a partition of the holding was vested only in a Bhumidhar and Sirdar, the right to get a separation of that holding could not be deemed to have been given to their Asami by Sub-sec. (2) of Section 157, and consequently the word Asami in Subsec. (2) of Section 157, and consequently the word Asami in Subsec. (2) of Section 157 must refer to Asami under Section 11 of the Act referred to in the opening part of the section. It is also contended that as the procedure of partition given in Section 178 could not be applied to partition of the holding under Sec. 157(2), it must be held that the Asami under Sec. 133(b) had no right to claim partition. This argument is based on a misconception of the purposes of Sec. 157(2) and Secs. 176 and 178. Sub-sec. (3) of Section 178, on which special stress was laid by learned counsel, only says that the share of such a person who has let out and to whom Section 157 applies, will be separated before partition is made in terms of Sec. 178(1). Sub-sec. (3) of Section 178 obviously refers to cases under Secs. 157(1) and not 157(2). Secs. 176 and 178 apply to entirely different set of circumstances. They deal with a case where the suit is filed by a Bhumidhar or Sirdar for partition, i.e. for the separation of his own share, while Sec. 157(2) deals with the separation of the share of the lessor at the instance of the lessee Asam or any tenure holder, Sec. 157(2) contemplates only an application for separation of the lessor's share without necessitating a partition suit. The right conferred by Section 157 (2) is an independent right conferred by the legislature to meet the exigencies of a special set of circumstances. 9. We accordingly come to the conclusion that the lessee who has become an Asami under Sec. 133(b) entitled to make an application under Sub-sec. (2) of Sec. 157. 10. Learned counsel for the respondents then tried to attack the judgment of the Board of Revenue on pleas that are not entertain able at the stage of special appeal. He contended, firstly, that Data Ram had no rights in the property in dispute and hence he could not transfer the rights to the plaintiff's lessor. Learned counsel has not been able to show that this point was raised by him before the first appellate court. It was not considered by the Board and the point was not accordingly permitted to be raised by the learned single Judge. Learned counsel has not been able to show that this point was raised by him before the first appellate court. It was not considered by the Board and the point was not accordingly permitted to be raised by the learned single Judge. Learned counsel contended that the decision in suits 41 of 1942 and 41 of 1943 could not operate as res judicata for holding that Data Ram was a co-sharer in the land in dispute as the grove was not in dispute in those suits. We, however, find that, the first appellate court had held that the judgment operated as res judicata because the grove was also in dispute in that suit. This finding was not challenged before the Board of Revenue. We cannot, therefore, hold that there is any error committed by the revenue courts in holding that the defence was barred by res judicata. 11. Another point sought to be raised was that Sec. 133(b) did not apply to the case of a grove land, and hence the plaintiff could not become an Asami and hence could not file an application under Sec. 157(2). The determination of this question will depend upon the nature of the land the petition of which was claimed. The point does not appear, to have been raised at any stage. Hence we are unable to permit it to be raised at this stage for challenging the order of the Board of Revenue. 12. Learned counsel tried to contend that application under Section 157 (2) was not maintainable for partition of the grove. This point also was no raised before the revenue courts. Even in the writ petition no specific ground on this point was taken. We are, therefore, unable to quash the judgments of the revenue courts on this ground. 13. The next ground contended by learned Counsel was that the lease executed by Ganga Devi in favour oi the plaintiff was invalid as it was executed only by the lessor and not also by the lessee. This point was not raised before the revenue courts and cannot be permitted to be raised now. 14. The last point raised was that as the term of the lease had expired the plaintiff could not maintain the application. The Board of Revenue dealing with This point relied on Section 190 of the Act. This point was not raised before the revenue courts and cannot be permitted to be raised now. 14. The last point raised was that as the term of the lease had expired the plaintiff could not maintain the application. The Board of Revenue dealing with This point relied on Section 190 of the Act. That Section provides the contingencies on the happening of which the interest of Asami is extinguished; expiry of lease is not one of the contingencies mentioned in the section. On an interpretation of this Section the Board took the view that even if the period of the lease had expired the plaintiff continued to be the Asami and had a right to maintain the application. We do not find that the Board committed any manifest error of law in taking this view. 15. In the result, the appeal is allowed, judgment of the learned Single Judge is set aside and the writ petition filed by Jiwa Ram is dismissed. In the circumstances of the case, parties will bear their own costs.