Prithvi Pal v. Ishara Devi — 1976 DIGILAW 807 (ALL)

JUDGMENT H.N. Agarwal, M. - This is a revision against the order dated October 13, 1969 of the Additional Commissioner, Faizabad Division, allowing appeal No. 495 of 1968 and setting aside the order dated January 21, 1969 of the Assistant Collector, Patti, district Pratapgarh in case No. 26/1265 under Section 134, U.P.Z.A. and L.R. Act. 2. I have heard the learned counsels for the parties and have gone through the record. 3. The facts may be briefly stated here. On June 4, 1969 one Ramdeo son of Sheo Tahal moved an application for grant of Bhumidhari Sanad for Khata No. 16 comprising of 39 plots in village Tardaha. On the basis of the office report dated June 5, 1968 orders were passed by the Assistant Collector on June 10, 1968 of grant of the Sanad. Meanwhile on June 5, 1968, one Prithvi Pal had moved an application to the effect that he was co-sirdar in the land in question to the extent of one-half share and he should, therefore, be impleaded. This application was marked for R.K. on June 5, 1968 and was not considered while the order granting the Sanad was passed. On July 18, 1968 Prithvi Pal formally filed an objection against the grant of the Sanad. On September 10, 1968, one Ram Chandra also filed an application to the effect that he was also a co-tenure-holder in the land in question. On November 12, 1968 Srimati Ishara Devi filed an application to the effect that Ramdeo had died on November 10, 1968 and that in his life time he had executed a gift deed and transferred the land in dispute in her favour and, therefore, she should be impleaded. The learned Assistant Collector by his order dated January 21, 1969 after considering various objections held that no certificate in the name of the deceased person could be issued and rejected the application for the grant of the Sanad. The learned Additional Commissioner, has get aside the order of the Assistant Collector Holding that Bhumidhari Sanad having already been granted in favour of Ramdeo during his life time it could now not be cancelled Prithvi Pal has come up in revision against this order. 4. The learned Additional Commissioner, has get aside the order of the Assistant Collector Holding that Bhumidhari Sanad having already been granted in favour of Ramdeo during his life time it could now not be cancelled Prithvi Pal has come up in revision against this order. 4. The learned counsel for the revisionist has contented that neither Simati Ishara Devi has a right of appeal nor had the learned Additional Commissioner the right to hear the appeal from the impugned order. This contention has no force. Schedule I of the U.P.Z.A. and L.R. Act clearly provides that for an application for acquisition of Bhumidhari rights under section 134 the Assistant Collector is the Court of original jurisdiction and the Commissioner is the Court of First Appeal. Thus, a first appeal lies to the Commissioner in proceedings under section 134. This is irrespective of the fact whether the application is allowed or rejected. An appeal can be filed by an any party whether he is an applicant or an objector. Where the applicant has died, the appeal can be field by the heir or the legal representatives of the deceased. Srimati Ishara Devi claimed to be the legal representative of the deceased as a transferee. As the trial court had allowed her to be impleaded and to participate in the proceedings, she acquired the right of appeal, and the Additional Commissioner did not comet any error in entertaining the appeal. The learned counsel has also argued that with the death of the depositor the cause of action comes to an end. This is a peculiar argument which is difficult to comprehend. If with the death of the depositor the cause of action comes to an end, this would mean that even the present revisionist Prithvi Pal and no further right to agitate the matter after the death of Ramdeo. However, the cause of action does not come to an end merely with the death of a party. The law provides the heir or the legal representative of a deceased party to continue the proceedings subject to limitation. As the depositor in this case is reported to have died on November 11, 1968, Srimati Ishara Devi claiming to be his legal representative, was perfectly entitled to move the application on November 12, 1968. No fresh application under section 134 was called for. 5. As the depositor in this case is reported to have died on November 11, 1968, Srimati Ishara Devi claiming to be his legal representative, was perfectly entitled to move the application on November 12, 1968. No fresh application under section 134 was called for. 5. The next contention of the learned counsel for the revisionist is that in the circumstances of the case there was no option left to the Assistant Collector but to recall the order of issue of Bhumidhari Sanad as this order had been passed without taking notice of the objection which had been filed. This argument is fallacious and cannot be accepted. Section 134 of the U.P.Z.A. and L.R. Act reads as follows: "134. Acquisition of Bhumidhari rights by a Sirdar - (1) If a Sirdar belonging to the class mentioned in Clause. (a) of section 131 pays of offers to pay to the credit of State Government an amount equal to Twenty times the land revenue payable or deemed to be payable on the date of application for the land of which he is the Sirdar, he shall upon an application duly made in that behalf to an Assistant Collector, be entitled, with effect form the date on which the amount has been deposited, to a declaration the he had acquired the rights mentioned in section 137 in respect of such land: Provided that the rights to pay or offer to pay the amount aforementioned shall cease on the expiry of three months from the date to be notified by the State Government." "137. Grant of certificate. - (1) If the application has been duly made and the Assistant Collector is satisfied that the applicant is entitled to the declaration mentioned in section 134, he shall grant a certificate to that effect. (....................)." 6. Thus, it would be seen that all that the Assistant Collector has to see is whether the applicant is a Sirdar before passing the order of the Grant of the Sanad. Proceedings under section 134 are not proceedings of declaration or adjudication of rights and, therefore, the Assistant Collector is neither empowered nor required to decide the rights of persons not recorded as Sirdars in these proceedings. The extract of the Khatauni filed in the case shows that Ramdeo was recorded as the sole Sirdar of the land in question. Proceedings under section 134 are not proceedings of declaration or adjudication of rights and, therefore, the Assistant Collector is neither empowered nor required to decide the rights of persons not recorded as Sirdars in these proceedings. The extract of the Khatauni filed in the case shows that Ramdeo was recorded as the sole Sirdar of the land in question. Thus, the order of the Assistant Collector dated June 10,1968 regarding the grant of the Sanad was perfectly justified and legal and the objections filed by Pritivi Pal and Ram Chandra will not effect the legality of this order. The procedure for grant of Bhumidhari Sanad is given in Rules 116 to 125 of the U.P.Z.A. and L.R. Rules. Under Rules 116, an application for grant of Bhumidhari Sanad shall be accompanied by a certified extract of the latest Khatauni in respect of the holding, and (ii) treasury challan showing that the amount referred to in clause (iv) of sub-rule (a) has been deposited. The application has to give the required particulars, that is to say, the name, parentage and address of the applicant, Khasra number of plots, area of each plot and the land revenue payable for the holding, name of village, pargana and tahsil in which the plots are situate and the total amount deposited by the applicant in the treasury and the date of deposit. All the requirements of Rule 116 were met in the present case. Under Rule 118 the Assistant Collector has to scrutinize the application and may examine on oath the applicant or any other person whose evidence he considers necessary. If he is satisfied that the applicant is entitled to a declaration, he shall grant a declaration to that effect. Thus, nowhere is the Assistant Collector required to consider the objection of a person who is not recorded as a co-tenure-holder before ordering the grant of a Sanad to a person who is recorded as the Sirdar and who has complied with the requirements of Rule 116. The procedure for calling for objections and deciding the objections is provided in Rules 122 to 125 and applies only where the holding itself is jointly held by more than one Sirdar. Rule 122 specifies that this rule applied only in the case of holding held jointly by more than one Sirdar. The procedure for calling for objections and deciding the objections is provided in Rules 122 to 125 and applies only where the holding itself is jointly held by more than one Sirdar. Rule 122 specifies that this rule applied only in the case of holding held jointly by more than one Sirdar. Rule 123 provides that the Assistant Collector shall issue a notice to the co-sirdars calling upon them to appear and to file objections only in a case where an application has been received under Rule 122. 7. The above discussion would make it clear that the Assistant Collector examined no error in law in ordering the grant of the Sanad to Ramdeo who was recorded as sole Sirdar. The fact that an objection had been filed by Prithvi Pal, who was not recorded as a co-sirdar, is quite immaterial and does not render the order of the Grant of the Sanad invalid. 8. The learned counsel for the opposite party has contended that the learned Assistant Collector had no power to revise the order of his predecessor. In this connection, he has cited Ram Manorath v. Rikhi Ram 1953 R.D. 201, in which a learned Member has held that section 151, Civil Procedure Code cannot be employed when other specific legal remedies can be availed of. The same view has been taken in Sukhia v. Purni 1957 R.D. 200. On the analogy of these decisions it can be said that as the remedy of appeal was available against the order of the Assistant Collector dated June 10, 1968, his successor erred in the exercise of his jurisdiction in reviewing the order of his jurisdiction in reviewing the order of his processor. 9. I may observe that the learned Assistant Collector has also exceeded his jurisdiction in trying to adjudicate the title of the parties and in trying to establish that even through Prithvi Pal and Ram Chandra, objections were not recorded in any capacity over the land in question, they were co-tenure-holders on the basis of certain entries of the First and Second Settlement. It would appear that the Assistant Collector has assumed as if he was sitting in judgment and deciding a case under section 229-B, U.P.Z.A. and L.R. Act for declaration of rights. The learned Assistant Collector did not possess this jurisdiction in proceedings under section 134. It would appear that the Assistant Collector has assumed as if he was sitting in judgment and deciding a case under section 229-B, U.P.Z.A. and L.R. Act for declaration of rights. The learned Assistant Collector did not possess this jurisdiction in proceedings under section 134. The learned Assistant Collector has also erred in holding that as no certificate can be granted in the name of the deceased person, therefore, the order of his predecessor was not justified. The correct position is that Ramdeo died only on November 11, 1968 and was very much alive when he moved the application for the grant of the Sanad whebn he made the necessary deposited when the Assistant Collector passed the order about the grant of the Sanad. The learned Additional Commissioner has rightly observed that Bhumidhari Sanad had already been granted in favour of Ramdeo during his life time and it could not be cancelled by the subsequent order of the Assistant Collector dated January 21, 1969. The material date is not the date on which the ministerial work regarding the preparation of the Sanad is done, but the date on which the judicial order regarding the grant of the Sanad is made. Since, judicial order was made on June 10, 1968, i.e. when Ramdeo was alive, the order is quite valid. If by any reason the preparation of the Sanad is delayed the Sanad is still to be prepared in the name of the depositor but it may be delivered to the heir and legal representative of the depositor. 10. With the above observations, hereby dismiss the revision.