Rajendra Sahai v. Dildar — 1979 DIGILAW 595 (ALL)

JUDGMENT P.N. Goel, J. - This is a plaintiffs appeal against the judgment and decree dated 26-9-1968 passed by the Civil Judge Etah in Revenue Appeal No. 1 of 1967. 2. The appellant is son of Smt. Raj-wati Devi. Respondents 9 to 11 are the heirs of Lachhman Prasad (sic) Respondents 9 to 11 are the heirs of Dharmendra Nath. The suit giving rise to this appeal was filed by Lachhman Prasad and Smt. Rajwati Kuer against Dharmendra Nath and Dildar respondent No. 1. The dispute relates to plot No. 2366 measuring 2. Bighas 3 Biswas. There is grove in this plot. The grove in this plot was actually purchased by Smt. Rajwati Kuer through Lachhman Prasad. Therefore, in the revenue records the names of Lachhman Prasad and Smt. Rajwati Kuer both were recorded. Correctly speaking Lachhman Prasad was just an ostensible purchaser. This fact is evident from the judgment of the Consolidation Officer dated 21-10-1962 in case No. 2736 under Section 10 of the Consolidation of Holdings Act. 3. It is undisputed that Smt. Rajwati Kuer was the grove holder and on coming into force of the U. P. Zamindari Abolition and Land Reforms Act, hereinafter called the Act she became bhumidhar. It is further undisputed that Dildar respondent and Dharmendra Nath became Asamis of the plot after the coming into force of the Act. In Khasra 1358 Fasli corresponding to July 1950 - June 1951 Dharmendra Nath and Dildar were recorded as subtenant at the total rental of Rs. 53/-. The period of tenancy is mentioned as one year. In June 1951 Lachhman Prasad and Smt. Rajwati Kuer filed suits against Dildar and Dharmendra Nath under Section 180, U. P. Tenancy Act, 1939. that they had taken forcible possession of the plot towards the end of July 1950. The suits were contested mainly on the ground that they were tenants on their behalf at a rental of Rs. 53/- per annum. By order dated 30th July 1954 the plaints were ordered to be returned for presentation to the proper court. On 4-7-1956 the present suit was filed with the allegations that towards the end of July, 1950 Dharmendra Nath and Dildar had taken illegal possession of the plot without the consent of Smt. Rajwati Kuer and Lachhman Prasad. In this plaint they clearly admitted that Dharmendra Nath and Dildar had become Asamis. On 4-7-1956 the present suit was filed with the allegations that towards the end of July, 1950 Dharmendra Nath and Dildar had taken illegal possession of the plot without the consent of Smt. Rajwati Kuer and Lachhman Prasad. In this plaint they clearly admitted that Dharmendra Nath and Dildar had become Asamis. Then they alleged that the cause of action arose in July 1952. The suit was contested inter alia on the ground that it was barred by time. The revenue court held that the suit was not barred by time. But this finding has been reversed by the Civil Judge, who has clearly held that the suit was barred by time. Consequently the suit has been dismissed. 4. The learned Civil Judge has expressed the opinion that in view of the provisions of the Act and the Rules framed thereunder the period of limitation was one year from the date of vesting i.e. 1-7-1952. In support of his opinion reliance was placed on the decision of this Court in the case of Unchan Singh v. Board of Revenue, 1962 All LJ 229. 5. The learned counsel for the appellant contended that the learned Civil Judge was in error in holding that the suit was barred by time. He placed reliance on the provisions of Section 21 (2) of the Act and three cases cited below: Sub-section (2) of Section 21 lays down that every person, who on the date immediately preceding to the date of vesting was a person recorded in the manner stated in clause (b) of Section 20 as occupant of any grove land shall be called Asami of the land and shall be entitled to take or retain possession thereof as an Asami from year to year. It may immediately be mentioned that this provision is not helpful to the appellant for the two reasons indicated hereinafter. (1) There is no allegation in the plaint that Dildar and Dharmendra Nath were recorded as occupants of the grove land. It was also not stated in the plaint that they were Asami from year to year. (2) During the pendency of the suit the village in question came under the Consolidation operations and as such the proceedings of the suit were stayed-Rights of the parties were determined by the Consolidation Officer. It was also not stated in the plaint that they were Asami from year to year. (2) During the pendency of the suit the village in question came under the Consolidation operations and as such the proceedings of the suit were stayed-Rights of the parties were determined by the Consolidation Officer. By order dated 21-10-1962 the Consolidation Officer did not place reliance on the oral evidence of the parties and placed reliance on the Khasra entry of the year 1358F. which has been indicated above. The Consolidation Officer, therefore, held that Dharmendra Nath and Dildar were sub-tenants and consequently they became Asamis under Section 21 (1) (b)-The revenue court which decided suit clearly stated that Dildar and Dharmendra Nath were Asamis under Section 21 (1) (b). This section is quite independent of the provisions of subsection (2) of Section 21. 6. The three cases relied on by the learned counsel for the appellant may be mentioned: (1) Zahid Alikhan v. Saktey, 1968 All LJ 319. The decision of this case is no longer good law as this decision was set aside in Special Appeal vide Purai v. Deputy Director of Consolidation U. P., Lucknow, 1970 Rev Dec 249. (All). In the case of Purai three special appeals were decided. It may further be indicated that in the case of Purai, the decision in the case of Unchan Singh v. Board of Revenue was followed. (2) Ghasi v. Wakf Alalaulad, 1969 All LJ 923. This case is based on subsection (2) of Section 21. For the reasons already set out, as Section 21 (2) is not applicable, this case does not go to help the appellant. (3) Kumar v. Dy. Director of Consolidation, 1976 All LJ 635. In this case it was held that a person who has become an asami shall continue to hold that status until he is ejected in accordance with the provisions of the Act and that where the lease is for a fixed period and such term has expired, Section 202 entitles a landholder to sue for the ejectment of the asami and until this event happens the person will not lose his status of an asami. In this case there was a registered lease in favour of Ram Kumar. This case is also of no help to the appellant because in the present case there was no such lease. In this case there was a registered lease in favour of Ram Kumar. This case is also of no help to the appellant because in the present case there was no such lease. The clear allegation of the appellant was that Dildar and Dharmendra Nath had taken forcible possession towards the end of July 1950. 7. The learned counsel for the respondents has placed reliance on a recent case of this Court Aziz Alam v. Deputy Director of Consolidation, 1972 Rev Dec 266 (FB). In this case the Full Bench replied the following question: "Does a person, who has become an Asami under clause (b) of Section 21 (1) of the U. P. Zamindari Abolition and Land Reforms Act become a Sirdar under Section 204 of that Act, if no suit for ejectment under Section 22 is instituted within one year from the date of vesting." 8. The Full Bench referred to entry No. 25 of Appendix III to the U. P. Zamindari Abolition and Land Reforms Rules, which provided one years period of limitation for instituting a suit for ejectment of an Asami of the class mentioned in Section 21 (1) (b). The period of one year is to be reckoned from the date of vesting where the cause of action arose under Section 202 (b) before the date of vesting and in all other cases from the date on which the cause of action arose. 9. The Full Bench then observed: "Where the sub-tenant held grove land for a fixed term and the term had expired before the date of vesting time would run from the date of vesting under first part .... where the sub-tenant held grove land for a fixed term and the term has expired after the date of vesting, time would run from the date of vesting on which the term expired after the date of vesting in accordance with the first part............. But where the sub-tenant holds grove land from year to year the cause of action will arise only when the land holder has determined the lease. In such a case time would run from the date on which the lease ceases to have effect. If no suit is instituted within limitation the Asami would become a Sirdar." 10. At this stage reference may be made to Section 204 of the Act. In such a case time would run from the date on which the lease ceases to have effect. If no suit is instituted within limitation the Asami would become a Sirdar." 10. At this stage reference may be made to Section 204 of the Act. This section clearly lays down that if a suit for ejectment of an Asami to whom clause (b) of sub-section (1) of Section 21 applied, was not instituted within the period of limitation prescribed therefor, the Asami would on the expiry of the period become a Sirdar of the land held by him. 11. In the present case, entry in Khasra 1358 Fasli shows that Dildar and Dharmendra Nath were admitted to the grove land as sub-tenant for a period of one year. It means that their sub-tenancy expired at the end of June 1951. Therefater they became liable to be ejected. It means that the cause of action for the ejectment arose before the date of vesting i.e. 1-7-1952. In such an event the period of limitation was one year from the date of vesting. 12. There is another aspect of the matter. It is this that according to the very allegations of the plaint Dharmendra Nath and Dildar took wrongful possession in July 1950. It is thus clear that the cause of action arose prior to the coming into force of the Act. In para 7 of the plaint it was clearly stated that the cause of action arose in July 1952. It means that the cause of action arose immediately on coming into force of the Act. Therefore, the suit for ejectment should have been filed within one year of the date of vesting. 13. It may be indicated here that original Entry No. 25 of Appendix III was amended in the year 1954. The amended provision provided one year period of limitation from the date of accrual of the date of cause of action. Taking into account the allegations of the plaint, the suit even under the mentioned provisions should have been filed by July 1953. 14. As the period of limitation had expired well before the coming into force of the 1954 amendment and as 'the rights of Sirdar had accrued to Dildar and Dharmendra under Section 204 of the Act, the appellant could not take advantage of the provisions of the amendment. 14. As the period of limitation had expired well before the coming into force of the 1954 amendment and as 'the rights of Sirdar had accrued to Dildar and Dharmendra under Section 204 of the Act, the appellant could not take advantage of the provisions of the amendment. Therefore, reference to Act No. 20 of 1954 in Paragraph 7 of the plaint is of no help to the appellant. 15. The position that easily follows is that the present suit having been filed in July 1956 was barred by limitation and the learned Civil Judge took right view on this point. 16. The learned Civil Judge further found that the appeal was bad for two other reasons: (1) There was no order of appointment of guardian ad litem of the minor respondent, and (2) There was no specific order of transfer of the case from the court of Judicial Officer (Revenue)/Assistant Collector First Class to the court of Sub-Divisional Officer. The learned counsel for the appellant has assailed the finding of the learned Civil Judge on both these points. As the suit was filed beyond limitation, it is unnecessary to go into these questions. 17. The result of what has been discussed above is that there is no merit in this appeal which is dismissed with costs.