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1976 DIGILAW 894 (ALL)

Ram Pratap v. Loknath

1976-12-30

H.N.AGARWAL

body1976
JUDGMENT H.N. Agarwal, Member. - This is a second appeal against the judgment and decree of Sri S.M. Hasan, Addl. Commissioner, Faizabad Division, Faizabad dated May 26, 1971 in Appeal No. 402 of 1970 upholding the judgment and order of the Judicial Officer (Revenue), Gonda dated December 31, 1969 in Case No. 148 under Section 209 of the 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 appellant, Ram Pratap had filed a suit for the ejectment of the respondent No. 1, Loknath as a trespasser from plot No. 203 in village Baksaila. The trial court dismissed the suit and the lower appellant court has upheld the trial court's order. Ram Pratap has now come up in second appeal. 4. The grounds taken in the appeal are that on the findings arrived by the courts below that the defendant was an Asami, the courts below ought to have granted decree for possession under Section 202 of the U.P.Z.A. and L.R. Act, as even if the plaint mentioned Section 209 only the would not preclude the Court from passing a decree under Section 202, and that the states of the defendant-respondent Loknath was only that of a licence and by filling of the suit of the licence stood revoked. 5. A perusal of the record shows that both the courts below have come to the finding that the defendant-respondent Loknath is Asami of the land in suit and the plaintiff-appellant Ram Pratap is the Bhumidhar of the land. The trial court has further observed that an Asami can be ejected only in certain conditions provided in Section 202 and as none of these conditions have been fulfilled in the case, the defendant-respondent was not liable to ejectment. Section 202 indeed mentions eight grounds for the ejectment of an Asami. The trial court has further observed that an Asami can be ejected only in certain conditions provided in Section 202 and as none of these conditions have been fulfilled in the case, the defendant-respondent was not liable to ejectment. Section 202 indeed mentions eight grounds for the ejectment of an Asami. These are as follows: "Section 202 an Asami shall be liable to ejectment from his holding on the suit of the Gaon Sabha or the landholder, as the case may be, on the ground or grounds: (a) Mentioned in Sections 167, 191 or 206; (b) That he- (i) Belongs to any of the classes mentioned in clauses (a), (b), (c), (e), (g) or (i) of Section 21, or sub-section (2) of the said section, or in clause (c) or (d) of Section 133, or (ii) Has acquired the rights of an Asami under the Uttar Pradesh Land Reforms (Supplementary) Act, 1952; and that he holds the land from year to year or for a period which has expired or will expire before the end of the current agricultural year, (c) That he belongs to the class mentioned in clause (d) of sub-section (1) of Section 21 and the mortgage has been satisfied or the amount owing under the mortgage has, whether or not it has become payable thereunder, been deposited in court. (d) That he is an Asami under Section 11 and the right to maintenance allowance does not any longer subsist; (e) That he belongs to the class mentioned in clause (f) of sub-section (1) of Section 21 and that the cultivation of agricultural crops has become impossible; (f) That he belongs to the class mentioned in clause (h) of sub-section (1) of Section 21 or clause (b) of Section 133 and that- (i) The landholder wishes to bring the land under his personal cultivation and in cases where the lease is for a fixed term such term has expired, or (ii) The disability has determined. (g) That he is an Asami under Section 13 and the period mentioned in clause (a) of sub-section (2) of the said section has expired. (h) That there is an unsatisfied decree of arrears of rent outstanding against him and such decree can be executed by ejectment." 6. Section 167 refers to consequences of void transfers. (g) That he is an Asami under Section 13 and the period mentioned in clause (a) of sub-section (2) of the said section has expired. (h) That there is an unsatisfied decree of arrears of rent outstanding against him and such decree can be executed by ejectment." 6. Section 167 refers to consequences of void transfers. Section 191 refers to the extinction of the interest of an Asami on the extinction of the right, title or interest of the Bhumidhar or the Sirdar under whom the Asami is holding his interest. Section 206 refers to ejectment for use of land in contravention of the provisions of the Act. 7. The appellant has failed to show that any of the above grounds exists in this case. Therefore, even if it is accepted that mere mention of the wrong section would not disentitle the plaintiff to the real relief, there is nothing to show that the present case fell within the purview of section 202. 8. As regards the question whether the status of Loknath was only that of a licensee and by filing of the suit the license is to be revoked and, therefore, a decree under Section 202 ought to have been passed, the position is that the plaintiff-appellant himself had in para 3 of his plaint admitted that the defendant-respondent acquired Asami rights in the land in suit for one year. It is a well known principle that an Asami holds the land only from year to year, but it does not mean that he holds the land in contravention of the law. Section 209 specifically provides for the ejectment of persons 'taking or retaining possession of the land otherwise that in accordance with the provisions of law.' There is on provision for automatic extinction of the rights of an Asami. On the other hand, the Asami will continue to hold a land on year to year basis unless the landholder terminates the Asami rights by notice or unless the Asami himself surrenders the land. Unless the rights of the Asami have been terminated by a proper notice, a suit under Section 209 for the ejectment of the Asami does not lie. 9. Unless the rights of the Asami have been terminated by a proper notice, a suit under Section 209 for the ejectment of the Asami does not lie. 9. The learned counsel for the appellant has referred to Afzal Ullah v. State of U.P., AIR 1964 S.C. 264 , in which a learned Bench has observed as follows in relation to certain bye-laws framed by a Municipal Board under the U.P. Municipalities Act: "It is true that the preamble to the bye-laws refers to clauses (A)(a), (b) and (c) and J (d) of Section 298 and these clauses undoubtedly are inapplicable; but once it is shown that the impugned bye-laws are within the competence of respondent No. 2, the fact that the preamble to the bye-laws mentions clauses which are not relevant, would not affect that validity of the bye-laws. The validity of the bye-laws must be tested by reference to the question as to whether the Board had the power to make those bye-laws. If the power is otherwise established, the fact that the source of the power has been incorrectly or in accurately indicated in the preamble to the bye-laws, would not make the bye-laws invalid (vide P. Balakotaiah v. Union of India, AIR 1958 S.C. 232 )." As seen above, this ruling will not help the appellant inasmuch as even after presuming that mentioning of Section 209 in the plaint would not have precluded the Court from passing a decree under Section 202, we have found that the grounds mentioned in Section 202 do not exist and as such the case does not fall within the purview of Section 202 at all. 10. The learned counsel for the appellant has also referred to P. Balakotaiah v. Union of India, AIR 1958 S.C. 232 . This was a writ petition by a member of the Railway Service and the Hon'ble Supreme Court had held that when an authority passes an order which is within the competence, it cannot fail merely because it purports to be made under a wrong provision if it can be shown to be within its power under any other rules and that the validity of an order should be judged on a consideration of its sub-stance and not its form. This ruling also does not help the appellant, as ti in no way fits in the fact of the present case. 11. This ruling also does not help the appellant, as ti in no way fits in the fact of the present case. 11. Yet another decision referred to by the learned counsel for the appellant is Budha v. Madan Lal, 1976 R.D. 336, in which a learned Member Sri G.S. Sial, had held that a prior notice in writing determining the lease is not a precondition for bringing a suit under Section 202 of the U.P.Z.A. and L.R. Act and that a suit brought under Section 209 can also be converted into a suit under Section 202. This judgment also does not help the appellant in the present case at all. The present case is not under Section 202 nor it is possible to convert it into a suit under Section 202 as the grounds prescribed in Section 202 are not fulfilled in the present case. As regards the question whether the rights of an Asami stand automatically terminated on the institution of a suit for ejectment, a learned Full Bench of the Allahabad High Court has held as follows in Prem Singh v. Hukam Singh, 1974 R.D. 69:- "It is true that Z.A. Act does not specifically prescribe a notice prior to the institution of a suit for ejectment of an Asami. Section 184 of the Z.A. Act, however, provides that an Asami may surrender the whole of his holding by giving a notice in writing to the Land Management. Committee or the landholder, as the case may be, intimating his intention to do so and by giving up possession there of Section 82 of the U.P. Tenancy Act, 1939 made a similar provision for surrender by tenants. From the a corresponding duty in the landholder not to evict without notice can be inferred on the line of reasoning that appealed to a Bench of the Calcutta High Court in Chaturi Singh v. Makund Lall, ILR 7 Cal. 710. Section 20 of the Bengal Act 8 of 1969 provided that Ryots cannot relinquish without a notice to the landlord. 710. Section 20 of the Bengal Act 8 of 1969 provided that Ryots cannot relinquish without a notice to the landlord. The Bench held; "In our opinion it follows from this, that a landlord cannot evict such a tenant without a notice; because, in been in possession over the land in dispute since long, acquired Sirdari rights under Section 210 of the U.P. order to justify an eviction without a notice, it must be held that the tenancy, unless renewed, comes to an end at the end of the year. But is that were so the Ryot could throw up the land without a notice. The relation of landlord and tenant cannot be said to have ceased so far as the landlord's right to evict is concerned, but not with reference to the Ryots right to relinquish. But it seems to us, that the relationship does not come to an end at the expiration of each year without some act on the part of the landlord and tenant, jointly, or of either." "This controversy was set at rest by a Full Bench of this Court is Aziz Alam v. Dy. D.C. 1972 AWR 207 , S.N. Dwivedi, J. referring to entry 25(ii) of Appendix III, held that where the sub-tenant holds land from year to year the cause of action will arise only when the landholder has determined the lease." 12. In view of this Full Bench ruling, with which I fully concur, it is established that the rights of the defendant-respondent as an Asami could not be extinguished without a notice to this effect by the landholder, and since no such notice was given the suit under Section 209 could not succeed. The courts below have taken the correct view of law in dismissing the suit under Section 209. There is no force in this second appeal, and it is hereby dismissed with costs.