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1979 DIGILAW 365 (ALL)

Asha Ram v. Bhagwandeen

1979-03-24

H.N.AGARWAL

body1979
JUDGMENT H.N. Agarwal, Member. - This is a second appeal against the judgment and decree of the Additional Commissioner, Allahabad Division, dated April 3, 1972 reversing the judgment and decree of the Assistant Collector, IInd Class, Tehsil Kasganj, arising out of a case under Section 137, UPZA and LR Act. 2. I have heard the learned counsel for the parties and have gone through the record. 3. Asha Ram and Nathu Ram, brothers, were recorded co-Sirdars of a joint holding. Asha Ram alone made the deposit in respect of this holding and obtained a Bhumidhari Sanad for the name on October 29, 1966. Thereafter he sold his share in the holding in favour of Bhgwandin and Badshah. Thereafter Asha Ram gave an application for the cancellation of the Sanad on the ground that he had given the earlier application for the grant of the Sanad under the influence of the intoxication. Nathu Ram also gave an application for the cancellation of the Sanad on the ground that though he was a recorded co-Sirdar, he had not moved any application for the grant of the Sanad. The Assistant Collector by his order dated October 14, 1969 cancelled the Sanad and ordered the forfeiture of the deposit. Bhagwandin and Badshah filed an appeal before the Additional Commissioner, who amended the trial court's order to the extent that the sanad for the share of Nathu Ram will be cancelled but the Sanad of the share of Asha Ram will remain intact. Now Asha Ram has filed a second appeal against this order. 4. The grounds taken in the second appeal are firstly; that one co-tenant was not competent to get Bhumidhari Sanad without notice to the other co-tenant; secondly that grant of Bhumidhari Sanad without consent of his co-tenant is illegal; thirdly that the Additional Commissioner has erred in holding that the Bhumidhari Sanad should not be cancelled so far as the share of the appellant is concerned; fourthly that the factum of fraud has been pleaded but the same has not been considered; and lastly that the ruling referred to has not been considered. 5. These grounds have no force. It is true that the original order of the grant of Sanad was passed without notice to both the co-tenants but the amended order has been passed after notice to both the co-tenants and after considering their objections. 5. These grounds have no force. It is true that the original order of the grant of Sanad was passed without notice to both the co-tenants but the amended order has been passed after notice to both the co-tenants and after considering their objections. A co-Sirdar is certainly entitled to the grant of Sanad to the extent of his share. As regards fraud, this is a good ground for cancellation of the Sanad under Section 137-A but in the present case, fraud has been practised by the appellant, Asha Ram himself, in respect of the application for the grant of the Sanad for Nathu Ram's share. As far as the grant of the Bhumidhari Sanad for the share of Asha Ram himself is concerned, there is no fraud and no ground for cancelling the Sanad for his share. 6. As regards the ruling, the decision of the learned Full Bench of the Allahabad High Court in Bansidhar v. Smt. Dhirajadhari 1971 RD 371 , is clear and unequivocal that a recorded tenure-holder after having made the requisite deposit and made an application for the grant of the Sanad, is not entitled to withdraw the application or seek the refund of the deposit. If the withdrawal of the application or the refund of the deposit is to be allowed, this will open the flood gates of fraud as a person after getting Bhumidhari Sanad would execute a sale deed and having obtained the sale consideration would defraud vendee by getting the Sanad cancelled and thereby rendering sale deed null and void. 7. The order of the learned Additional Commissioner is sound in law. I find no substance in the second appeal and hereby dismiss it.