Raj Kishun v. Gaon Sabha — 1976 DIGILAW 726 (ALL)

JUDGMENT S. Mubarak Hasan, M. - These are the two connected second appeals against the judgment and decree dated March 18, 1968 and March 19, 1968 passed by Addl. Commissioner, Gorakhpur in appeals against the judgment decree dated July 4, 1967 passed by Assistant Collector, 1st Class, Deoria in suits under sections 206 of the U.P.Z.A. and L.R. Act. 2. Plaintiffs filed suits under section 209 of the U.P.Z.A. and L.R. Act claiming to the co-Bhumihdars of plot Nos. 2603 and 260/- with Chaukhat and others and Sirdhar of plot Nos. 260/2 and 264/2 and co-Sirdars of plot No. 267. They Claimed to have been in possession of the disputed land up to June 12, 1961. They alleged that Goan Sabha filed suit under Section 212-A and they were ordered to be ejected from the disputed land on September 3, 1960 by the order of S.D.O. without payment of compensation. They also alleged that Goan Sabha obtained Dakhal on June 12, 1961. They further alleged that their ejectment in the suit under Section 212-A was otherwise than in accordance with the provisions of law. They also alleged that thereafter they filed a suit under section 229-B in the court of Judl. Officer who on October 20, 1962 ordered the plaint to be returned for presentation to the proper court. They further alleged that thereafter they filed a suit in the court of Munsif on January 18, 1964 against Gaon Sabha for declaration of their rights and possession but that suit was dismissed. They prayed for ejectment of the defendant from the disputed land and alleged that their (plaintiffs) ejectment in the suit under Section 212-A was otherwise than in accordance with the provisions of law. Gaon Sabha contested the suits alleging that the rights of the plaintiffs had extinguished in the disputed land and that the present suits for ejectment of the defendant were not maintainable. It was pleaded that the rights of the plaintiffs having been finally determined by the Civil Suit, the present suits were barred by the principle of res judicata. It was further pleaded that the present suits were barred under Order II, Rule 2, Civil Procedure Code also. 3. On July 4, 1967, the trial court dismissed the suits holding that they were barred by res judicata and also under also under Order II, Rule 2, Civil Procedure Code. 4. It was further pleaded that the present suits were barred under Order II, Rule 2, Civil Procedure Code also. 3. On July 4, 1967, the trial court dismissed the suits holding that they were barred by res judicata and also under also under Order II, Rule 2, Civil Procedure Code. 4. On March 18, 1968 and March 19, 1968 the lower appellate court affirmed the judgments and decrees passed by the trial court and dismissed the appeals holding that the suits were barred by res judicata and under Order II, Rule 2, Civil Procedure Code. 5. The learned counsel for the appellants argued that the order for ejectment of the present plaintiffs could not be passed under section 212-A (6) of the U.P.Z.A. and L.R. Act without directing the payment of compensation as provided under the rules. He further argued that admittedly no compensation was paid to the plaintiffs and hence the order dated September 3, 1960 for their ejectment was invalid. He placed reliance on the case Raj Ram Singh v. State of U.P. 1965 R.D. (H.C.) 124 in which it was held that:- "The order for ejectment under Section 212-A(6) could not be passed without directing the payment of compensation as provided by the rules. Section 189(c) is wholly inapplicable to such a case. Non-filling of the suit under section 212-A(7) debars the plaintiff from agitating against the decision arrived at in that case. There is no question of the deprivation of the plaintiffs from possession by virtue of this order. If the order had correctly been passed and the defendants had been evicted legally after the compensation having been paid to them the order would have been final after a lapse of six months from the date of the passing of that order. Where the plaintiffs were ejected by virtue of an illegal order and their right to recover possession accrued on the date of their illegal dispossession, they were clearly entitled to bring the suit within three years of this illegal dispossession. It is only after the lapse of three years that their right and title could be said to have been extinguished by virtue of Section 189(c) of the U.P.Z.A. and L.R. Act". It is only after the lapse of three years that their right and title could be said to have been extinguished by virtue of Section 189(c) of the U.P.Z.A. and L.R. Act". He also placed reliance on the case Gram Sabha, Besahni v. Ram Raj Singh and others 1968 R.D. (S.C.) F.B. 281 in which it was held that:- "The language of Section 212-A(6) makes it clear that the order under that provision must be an order for ejectment of the person in possession of the land on payment of such compensation as may be prescribed. This means that an order under that provision must first direct payment of compensation to the person in possession and the direction for ejectment of the person in possession must be made effective only thereafter, i.e., after the compensation has been paid. The order to be made under this provision of law must, therefore, contain as a condition precedent to ejectment the payment of compensation. If no payment of compensation is ordered the order made would not be an order under his provision of law. Held: In the instant case no compensation was ordered to be paid in the order purporting to have been passed under Section 212-A(6) of the Act, so that the order cannot be treated as an order under this provision, the dispossession of the plaintiffs respondents in pursuance of that order was clearly illegal and the plaintiffs-respondents had the right to institute the suit for obtaining possession under Section 209 of the Act against the Gram Sabha. Such a suit could be instituted within six years from the date that unlawful possession was taken by the appellant in accordance with Entry at Serial No. 30 of Appendix III read with Rule 338 of the Rules." He further argued that the order dated September 3, 1960 under section 212-A(6)being invalid the plaintiff were entitled to file suit for possession under section 209 of the U.P.Z.A. and L.R. Act within six year from the date of their dispossession. He further argued that the proceedings of section 212-A(7) of the Act apply only to cases where a valid order had been under section 212-A(6) and the person concerned had been dispossessed in pursuance of such order. He further argued that the proceedings of section 212-A(7) of the Act apply only to cases where a valid order had been under section 212-A(6) and the person concerned had been dispossessed in pursuance of such order. He contended that the order under section 212-A(6) being invalid, the provisions of section 212-A(7) were not attracted to the present dispute and there was, therefore, no question of filing suit under section 212-A(7). He further argued that, under the circumstances, the suit filed by the present plaintiffs in Munsif's court was not maintainable and the order passed by him was without jurisdiction. He further argued that in this view of the matter there was no question of the present suit being barred by res judicata and under Order II, Rule 2, Civil Procedure Code. 6. The learned counsel for the respondents argued that the suit filed by the plaintiffs in the court of Munsif was maintainable and the Munsif had jurisdiction to decide the same. He further argued that the Munsif dismissed the suit holding that the present plaintiffs were not Bhumidhars or Sirdars of the land in suit. He contended that the decision of the Munsif operates as res judicata and it is final between the parties. He further contended that the courts below rightly dismissed the suits. 7. I have considered the arguments of the learned counsels of the parties and have perused the record. Section 212-A(6) and (7) are as follows:- "Section 212-A(6). Whereupon the said hearing the Collector is satisfied that the person was admitted as a tenure-holder of land referred to in section 212 or being an intermediary brought such land under his own cultivation or planted a grove thereon or after the eighth day of August, 1946, he shall pass an order for ejectment of the person from the land on payment of such compensation as may be prescribed. (7) Where an order for ejectment has been passed under this section, the party against whom the order has been passed. may institute a suit to establish the right claimed by it but subject to the results of such suit the order passed under sub-section (4) or (6) shall be conclusive." 8. From the perusal of section 212-A(6) it appears that the order for ejectment of the person in possession of the land can be passed on payment of such compensation as may be prescribed. From the perusal of section 212-A(6) it appears that the order for ejectment of the person in possession of the land can be passed on payment of such compensation as may be prescribed. This means that payment of compensation is a condition precedent for ejectment of the person in possession. In the present case, however, no compensation had been paid to the plaintiffs as contemplated under section 212-A(6) of the Act. The order dated September 3, 1960 was, therefore, invalid and the rights of the plaintiffs did not extinguish in the land by that order. That being so, the provisions of section 212-A (7) of the Act were not attracted and there was no question of the plaintiff filing suit under Section 212-A(7) of the U.P.Z.A. and L.R. Act in Munsif's court. In the case Gram Sabha, Basahni v. Ram Raj Singh and others 1968 R.D. (S.C.) F.B. 281 referred to above his Lordship observed that the High Court was perfectly correct in holding that the order of the S.D.O. Under Section 212-A of the Act was not valid and, consequently the provisions of Section 212-A(7) of the Act were never attracted to the present dispute. 'Admittedly no compensation was ordered to be paid in the order purporting to have been passed under Section 212-A(b) of the Act, so that order cannot be treated as an order under this provision of law. The order not being under this provision, the dis-possession of the plaintiff-respondents in pursuance of that order was clearly illegal and the plaintiff-respondents had the right to institute the suit under Section 209 of the U.P.Z.A. and L.R. Act. I have already observed above that the order of S.D.O. dated September 3, 1960 being invalid, the provisions of section 212-A (7) of the Act were not attracted and, therefore, no suit could be filed under that provision in the court of Munsif. Thus the order passed by Munsif was without jurisdiction and is not binding on the parties. There is, therefore, no question of the present suits being barred by res judicata and under Order II, Rule 2, Civil Procedure Code. The suits are maintainable under section 209 of the Z.A. Act. Thus the order passed by Munsif was without jurisdiction and is not binding on the parties. There is, therefore, no question of the present suits being barred by res judicata and under Order II, Rule 2, Civil Procedure Code. The suits are maintainable under section 209 of the Z.A. Act. In view of the above discussion I set aside the orders dated July 4, 1967 passed by the trial court and the orders dated March 18, 1968 and March 19, 1968 passed by the lower appellate court and remand the cases to the trial court with the direction that it should decide them afresh in accordance with law in the light of the above observations. Costs will abide the result. This order will govern S.A. No. 735 of 1967-68/Deoria also.