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1976 DIGILAW 642 (ALL)

Bala Prasad v. Thakurdas

1976-09-29

H.N.AGARWAL

body1976
JUDGMENT H.N. Agrawal, Member. - This is a second appeal against the judgment and decree dated December 30, 1970 passed by the Additional Commissioner, Jhansi Division, Jhansi, confirming the judgment and decree dated September 6, 1967 passed by the Assistant Collector, First Class, Hamirpur in Suit No. 46 of 1966-67 under Section 209 of U.P.Z.A. and L.R. Act. 2. One Nathoo had filed a suit for the ejectment of the defendant-respondent Thakur Das from plots Nos. 189 and 443 situated in village Rahelia as a trespasser. The trial court by its order dated September 6, 1967 dismissed the suit. The Additional Commissioner by his order dated December 30, 1970 has upheld the order of the trial court. Nathoo having died, his son Bala Prasad has come up in second appeal before this Court. 3. I have heard the learned counsels for the parties and have gone through the record. 4. The first contention of the learned counsel for the appellant is that the defendant-respondent did not complete the prescribed period of limitation for prescribing rights under Section 210, U.P.Z.A. and L.R. Act, and that on the own showing of the defendant-respondent his possession was permissive and he was liable to be ejected. To follow the arguments of the learned counsel, we have to go into the history of the case. The plaintiff had stated that he was the Sirdar of the land and had been continuously in possession and that the defendant-respondent forcibly occupied the land in 1370 Fasli without his consent. The case of the defendant-respondent as contained in his written statement, on the other hand, is that his possession was not adverse but permissive that the plaintiff on November 21, 1955 took Rs. 100/- from him and delivered possession of the land to him and also executed an agreement deed in his favour On the same day the plaintiff took Rs. 200/- from the defendant-respondent and executed a registered sale deed for the well situated in the land. In support of his contentions the defendant-respondent has filed the original copy of the agreement deed and the registered sale deed executed by Nathoo on November 12, 1955. None of these documents have been denied by the plaintiff. 200/- from the defendant-respondent and executed a registered sale deed for the well situated in the land. In support of his contentions the defendant-respondent has filed the original copy of the agreement deed and the registered sale deed executed by Nathoo on November 12, 1955. None of these documents have been denied by the plaintiff. Apart from the above facts, the defendant-respondent filed receipts for payment of land revenue from 1367 Fasli onwards and examined three witnesses including Ayodhya Prasad, the Up-Pradhan of the Gaon Sabha and Badri Prasad Tewari, a member of the Municipal Board. Mahoba and member of the District Crime Prevention Society. The plaintiff could only produce the oral evidence of himself and of another witness Bhajan Lal. Thus, on the basis of the evidence on the record, the courts below have rightly recorded the finding that the defendant-respondent was in possession of the land since the year 1955 i.e. 1363 Fasli and not from 1370 Fasli as alleged by the plaintiff. As regards the question whether the possession was permissive or adverse, the defendant-respondent's case is that his possession was permissive, whereas the plaintiff has claimed that this possession was adverse. The courts below have not recorded any direct finding on this question. They have, however, rightly believed on the basis of the evidence that the plaintiff had delivered possession of the land to the defendant-respondent through the agreement deed executed by him on November 21, 1955. 5. We may here pause a little and consider the legal implications of the agreement deed dated November 21, 1955 executed by the plaintiff and the transfer of possession done by him in favour of the defendant-respondent. Admittedly the plaintiff was a Sirdar, and not a Bhumindhar of the land in suit. Section 153 of the U.P.Z.A. and L.R. Act provides that the interest of a Sirdar or Asami is not transferable. Section 167 of the said Act provides as follows:- "167. Consequences of void transfers. (1) Where a Sirdar or Asami has made any transfer in contravention of the provisions of this Act, the transferee and every person who may have thus obtained possession of the whole or part of the holding shall be liable to ejectment on the suit of the Gaon Sabha or the landholder as the case may be. (1) Where a Sirdar or Asami has made any transfer in contravention of the provisions of this Act, the transferee and every person who may have thus obtained possession of the whole or part of the holding shall be liable to ejectment on the suit of the Gaon Sabha or the landholder as the case may be. (2) A decree for ejectment under sub-section (1) may direct the ejectment of the Sirdar or Asami from the whole or part of the holding as Court may, having regard to the circumstances of the case, direct." 6. Thus, in consequence of the said transfer made by the plaintiff in contravention of the Act, the transferee became liable to ejectment on the suit of the Gaon Sabha, but not on the suit of the plaintiff. Section 190 of the Act further provides as follows: Section 190. Extinction of the interest of a Sirdar - (1) Subject to the provisions of Section 172, the interest of a Sirdar in a holding or any part thereof shall be extinguished:- (cc) When the holding or part thereof has been transferred, let out or used in contravention of the provisions of this Act; Thus, as a consequence of a void transfer the interest of the plaintiff as the original Sirdar is liable to be extinguished under Section 190. 7. The learned counsel for the appellant has further referred to the decision in Permanand v. Board of Revenue, 1966 R.D. 177 in which Mr. K.B. Asthana, J. (now C.J.) has held as follows: " I am, therefore, of the opinion that merely the act of letting out in contravention of the Act would not bring about by its own force the extinction of the Sirdari right unless recourse were taken to the provisions of Section 167 of the Act and a decree for ejectment were passed against a transferee or any person found in possession on the suit of the Gaon Samaj and it would be then open to the Court, as the circumstances permit, to pass a decree for ejectment against a defaulting Sirdar and when he has been ejected then his right and title would be extinguished. May be the intention behind introducing clause (cc) in Section 190 was to clarify the position, that is to say, it was that it may not be open to argument that as Section 190 did not contemplate the extinguishment of the Sirdari right on a transfer by a Sirdar in contravention of the Act, therefore, he cannot be rejected, thereby giving rise to grave doubts as regards the scope and effect of Sections 167 and 168. The above discussion, to my mind, amply demonstrates that the law still in Chapter VIII of the Act, though clause (cc) in Section 190 has been introduced, is that the Sirdari rights would not extinguish in the case of a Sirdar having made a transfer of or let out the Sirdari holdings in contravention of the Act unless the Gaon Samaj brings a suit under Section 167 of the Act and obtains a decree for ejectment." 8. The learned counsel has further referred to the decision in Khacharmal v. Board of Revenue, 1969 R.D. 200 in which it has been held that "where the title in the plot was not transferred to the defendant and the transference of possession to him was intimately connected with transaction of loan where under, the transferee had taken certain sum of money from the defendant, the transferor could not have legitimately required the defendant to restore possession without having repaid the loan. He could not have sued for possession on the ground that the defendant was a bare licensee whose licence was revocable at will, because, he was under an obligation implicit in the transaction entered into by him with the defendant, that he would not get back possession till he repaid the loan." 9. The principle that a Sirdar who transfers his holding in contravention of the Act is to be ejected on the suit of the Gaon Samaj under Section 167 of the act and thereupon his rights shall stand extinguished, is a sound one. This, however, does not mean that meanwhile the Sirdar, who has made the illegal transfer, can sue a person in possession for ejectment. This, however, does not mean that meanwhile the Sirdar, who has made the illegal transfer, can sue a person in possession for ejectment. A careful reading of Section 167 and Section 190 makes it clear that only the Gaon Sabha and not the original Sirdar who has made the transfer in contravention of the Act, is competent to bring a suit for ejectment of the transferee or any person who may have obtained possession of the land. In the light of the above discussion, I would hold that the question whether the defendant-respondent has completed the prescribed rights under Section 210, U.P.Z.A. and L.R. Act, is wholly immaterial for the purposes of the present case. This question will arise only if and when the Gaon Sabha files a suit for ejectment of the defendant-respondent or if the defendant-respondent himself files a declaratory suit under Section 229-B of the Act. 10. The learned counsel for the appellant has also contended that Section 53-A of the Transfer of Property Act is inapplicable to the transfer of Sirdari land and that the benefit of Section 53-A could not be claimed against a Sirdar who had untransferable interest. It is or course correct that special provisions have been made in the U.P. Zamindari Abolition and Land Reforms Act regulating transfers of Sirdari land. The provisions of the Transfer of Property Act are, however, applicable to the transfer of Bhumidhari or Sirdari land unless they are in conflict with any special provisions in the U.P.Z.A. and L.R. Act in which case the latter will prevail. There is nothing in Section 53-A of the Transfer of Property Act which may come into conflict with any provisions of the U.P.Z.A. and L.R. Act. Section 53-A of the Transfer of Property Act merely provides that even though the transfer may not have been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him would be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract. To my mind, the trial court has correctly applied the provisions of this section in deciding the case, since this section does not come into conflict with the provisions of the U.P.Z.A. and L.R. Act. As we have seen above, the transfer of Sirdari land in itself was in contravention of the U.P.Z.A. and L.R. Act. However, the transfer cannot derive any advantage from the contravention of the law made by him. On the other hand, as seen above, the transferor, now stands to lose his Sirdari rights and the transferee is liable to be ejected on the suit of the Gaon Sabha. 11. The learned counsel for the respondent has referred to the decision of Sri L.D. Bhargava, a learned Member of this Court in Hanuman v. Ujagar, ALJ 1973 (Rev.) 29, which has discussed the effect of execution of a lease in contravention of the Act. This aspect of the matter has already been discussed at length above. He has also referred to Ramachandra Ayyar v. Ramalingan, AIR 1963 S.C. 302 , in which the Supreme Court has laid the principles governing interference in second appeal. Their Lordships of the Supreme Court have observed as follows: "We must, therefore, hold that Mr. Chatterjee is not right in contending that because the judgment of the lower appellate court was not as elaborate as that of the trial Judge or because some of the reasons given by the trial Judge had not been expressly reversed by the lower appellate court the High Court was entitled to interfere with the conclusions of the lower appellate Court. The question which arose for the decision of the Court of fact, was a simple question of fact was the release deed executed by respondent No. 2 in favour of the appellants justified by adequate consideration? Had respondent No. 2 independent advice at the time when he signed the said document? Did he act bona fide, or was he imposed upon? these were the points that arose between the parties on their pleadings. It would be noticed that these paints present pure question of fact and their decision depended in the present case on appreciating the oral evidence adduced in support of the rival contentions, documents produced by the parties, their conduct and surrounding circumstances. these were the points that arose between the parties on their pleadings. It would be noticed that these paints present pure question of fact and their decision depended in the present case on appreciating the oral evidence adduced in support of the rival contentions, documents produced by the parties, their conduct and surrounding circumstances. In other words, what the Courts of fact were called upon to consider and decide were questions of fact in the light of all relevant evidence. That being so, we do not think the High Court was justified in interfering with the finding of fact recorded by the lower appellate court is favour of the appellants." 12. After a perusal of the entire evidence on record, I am satisfied that the findings recorded by the courts below in this case do not call for interference in second appeal. The legal question involved, however, needed further discussion and have been elaborated above. In the light of the above discussion I come to the conclusion that the plaintiffs suit was rightly dismissed and the second appeal has no force. Whether the defendant-respondent had prescribed his rights and become a Sirdar is not to be decided here, but may be decided in a separate suit to be filed either by the Gaon Sabha or by the defendant-respondent himself. With the above observations, the second appeal is dismissed.