Jubba v. Ram Dular — 1980 DIGILAW 776 (ALL)

JUDGMENT I.B. Singh, Member. - This is plaintiff's second appeal which has been turned into F.A. F.O. in the application of the learned counsel for the appellant and this revision filed by the defendant, have been filed against judgment and decree passed by learned Additional Commissioner, Allahabad Division, dated March 23, 1977 allowing Appeal No. 96 (Allahabad) and remanding the case to the trial court for framing an issue on the point whether notice for determination of Assami rights of the defendant was given by the plaintiff or not, setting aside the judgment and decree dated February 9, 1976 passed by Sub-Divisional Officer, Handia, district Allahabad, decreeing plaintiff's suit for ejectment of the defendant from the disputed land. 2. The plaintiff had filed suit under Section 229-B of Act I of 1951 claiming to be Sirdar of the disputed land alleging that her husband, Ram Adhin, was a disabled person and had given one plot on Sajhi to the defendant and the other to another person and had taken the other plot from the possession of the other person and had given it also on Sajhi to the defendant; that the defendant had stopped giving her share of the produce to her, hence the suit for his ejectment; that she had been mutated in place of her husband Ram Adhin, but instead of showing her as widow of Ram Adhin she had been wrongly shown as widow of Ram Adhin's father. 3. The suit was contested by the defendant denying the allegations of the plaint and claiming himself to be Sirdar in possession being in adverse possession since a long time. Other pleas were as raised. 4. The suit of the plaintiff wad decreed by trial court holding that the defendant was Asami and was liable to ejectment. 5. The lower appellate court allowed the appeal on the ground that although the plaintiff had alleged in the plaint to have given notice for determination of the Asami rights of the defendant and in para 8 of the written statement the allegations of the plaintiff were denied regarding having given notice and as no issue was framed on the point, it was held that the parties were prejudiced and they could not lead evidence. Hence, the appeal was allowed and the case was remanded for framing the issue allowing parties to adduce evidence on it and then to decide the case afresh. 6. I have heard the learned counsel for both the parties for the F.A. F.O. and the revision together. This judgment shall govern both of them. Its copy shall be placed on the revision file. 7. It was argued on behalf of the appellant that no notice for determination of the Asami rights of the defendant was necessary as a condition precedent to the filing of the suit and the lower appellate court committed mistake in holding so. Reliance has been placed on Smt. Vidyawati Rathore v. Board of Revenue and others 1971 A.W.R. 894. It was further argued that the plea of having given notice before filing the suit of the plaintiff was only denied in para 8 of the written statement but no additional plea about it was taken. Therefore, Provisions of Order VIII, Rule 3, C.P.C. were not complied and no issue was needed to be framed. Reliance has been placed on S.A. Sattar v. Union of India A.I.R. 1970 S.C. 479. Reliance was also placed on Shashi Kumar v. Subodh Kumar A.I.R. 1964 S.C. 530. 8. It was argued in reply on behalf of the revisionist and the respondent; that notice for determination of Asami rights was a condition precedent to the filing of a suit under Section 202 of Act I of 1951 and the burden of proof to have given the notice was on the plaintiff-appellant as the plea raised in the plaint regarding it was denied in the written statement. The plaintiff having failed to prove it, the suit should not have been remanded for framing issue and allowing the plaintiff to fill up the lacuna. The lower appellate court ought to have decided the appeal on merits and ought to have rejected the plaint as not maintainable being against provisions of law. Reliance has been placed on Zahid Ali Khan v. Saktey, 1968 R.D. 367, Har Prasad v. Gaon Sabha 1975 R.D. 193 and Ram Pratap v. Loknath 1977 R.D. 189. 9. In Zahid Ali Khan v. Saktey (supra) it was held: "A tenure which is held from year to year must fist be determined by the land-holder in order to be furnished with a cause of action for a suit for ejectment. 9. In Zahid Ali Khan v. Saktey (supra) it was held: "A tenure which is held from year to year must fist be determined by the land-holder in order to be furnished with a cause of action for a suit for ejectment. By mere inaction, i.e., by not entering into a fresh agreement of tenancy on the expiry of any particular year, it cannot be said that the land-holder gets cause of action as soon as the year expires." Relying on the above ruling, it was held in Har Prasad v. Gaon Sabha (supra) that "it was mandatory for the Gaon Sabha to determine the lease before seeking the ejectment of appellants under Section 202 of the U.P. Zamindari Abolition and Land Reforms Act. In the absence of determination of lease, proceedings under Section 202 for their ejectment cannot be taken." 10. But in Smt. Vidyawati Rathore v. Board of Revenue (supra), it was held: "Though under the Transfer of Property Act a notice under Section 106 is necessary to terminate the tenancy before a suit for eviction of a tenant can be filed, there is no corresponding provision in the Z.A. and L.R. Act. Section 117 of the Transfer of Property Act provides that none of the provisions of Chapter V. which includes Section 106, shall apply to leases for agricultural purposes except insofar as the State Government may declare. No such declaration appears to have been made. It is, therefore, clear that Section 106 of its principle cannot be applied to a suit under Section 202 of the Zamindari Abolition and L.R. Act. Held that it is not necessary for the land-holder to give any notice to the Asami determining the Asami rights before a suit under Section 202 can be filed." 11. In Aziz Alam v. Dy. Director Consolidation 1972 A.W.R. 207 (F.B., H.C.) it was again held: "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." 12. In Aziz Alam v. Dy. Director Consolidation 1972 A.W.R. 207 (F.B., H.C.) it was again held: "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." 12. In Prem Singh v. Hukam Singh 1974 R.D. 69 (F.B., H.C.) the decision of Smt. Vidyawati Rathore v. Board of Revenue (supra) was not approved in which a later Division Bench Case 'Ghasi v. Waqf Alal-Aulad' 1969 A.W.R. 602 was not considered in which also it was held that 'so long as there is no determination of lease, the lessee can remain in possession and hence no cause of action can be deemed to have arisen for ejectment". It was held as follows in Prem Singh v. Hukam Singh:- "It is true that the 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 land-holder, as the case may be, intimating his intention to do so and by giving up possession thereof. Section 82 of the U.P. Tenancy Act, 1939, made a similar provision for surrender by tenants. From this a corresponding duty in the land-holder 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 I.L.R. 7, Cal. 710 Section 20 of the Bengal Act 9 of 1869 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 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 if that were so, the Ryot could throw up the land without 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 Ryot's right to relinquish. But if that were so, the Ryot could throw up the land without 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 Ryot's 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 party of the landlord and tenant jointly, or of either." This controversy was set at rest by a Full Bench of this Court in Aziz Alam v. Dy. D.C. 1972 A.W.R. 207. "S.N. Dwivedi, J., referring to entry 25(ii) of appendix III, held that where the sub-tenant holds 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 day on which the lease ceases to have effect. If no suit is instituted within limitation, the Asami would become a Sirdar. Thus a suit for the ejectment will not become barred by time on July 1, 1954, unless the land-holder has determined the tenancy more than one year prior to that date." 13. Thus, the ruling reported in 1971 A.W.R. 994 does not lay down good law which has been disapproved in 1974 R.D. (F.B. H.C.) 69, and the correct position is that a notice for determination of Asami rights is condition precedent to the filing of a suit for ejectment of an Asami under Section 202 of Act I of 1951. Even an Asami covered by Section 202(f) read with Section 21(h) of Act I of 1951 is a sub-tenant from year to year. Even an Asami covered by Section 202(f) read with Section 21(h) of Act I of 1951 is a sub-tenant from year to year. Even in the case of subletting after April 9, 1946, according to Rules 184 and 185 of the U.P. Z.A. and L.R. Rules, the Asami is required to give notice of surrender before April 1 and if he fails to do so, he shall be liable to pay land revenue or the rent, as the case may be, for the holding for the agricultural year next following the date of surrender and the land-holder or the land Management Committee is also required to be notice for determination of the Asami rights or of the sub-tenancy as a corresponding duty in the landholder or the L.M.C., as the case may be in view of the said provisions of surrender by Asami by giving notice. Therefore, I hold that a notice for determining the Asami rights is a condition precedent to the filing of a suit for his ejectment by a landholder under Section 202 of the Act I of 1951, and the argument contrary to it on behalf of the appellant has got no force. 14. The lower appellate court has not adhered to the provisions of Order XLI, Rules 25 and 26 of the Code of Civil Procedure and has wrongly set aside the judgment and decree of the lower court setting aside its findings of other issues. The proper course for the lower appellate court would have been to frame the issues required and ought not to have referred it to the trial court for taking additional evidence on that issue and to return its finding thereon with the reason therefore within time to be fixed by the lower appellate court and when that finding would have been received, a time ought to have been fixed for filing objections if any, by any party and after expiration of that period it should have proceeded to determine the appeal on merits. In not adhering to these provisions, the lower appellate court committed mistake and passed order of remand and set aside the judgment and decree of the lower court which is not justified and is liable to be set aside. Consequently, the F.A.F.O. and the revision, both are liable to be allowed. 15. In not adhering to these provisions, the lower appellate court committed mistake and passed order of remand and set aside the judgment and decree of the lower court which is not justified and is liable to be set aside. Consequently, the F.A.F.O. and the revision, both are liable to be allowed. 15. In view of the above, this appeal and the revision both are allowed, the judgment and decree passed by the lower appellate court are set aside, and the first appeal is remanded tot the lower appellate court for proceeding according to Order XLI, Rules 25 and 26 of the Code of Civil Procedure and to decide the appeal on merits after receiving decision on the issue framed according to law.