Ram Lakhan v. Ram Samujh — 1981 DIGILAW 1164 (ALL)

JUDGMENT B.C. Jauhari, J. - Second Appeal No. 2047 of 1974 is directed against the judgment and decree of the III Addl. District Judge, Basti, dated 7.11.1970. The plaintiff-appellant filed a suit for cancellation of a sale deed dated 24.12.1966 said to have been executed by Smt. Jeochha and Ram Baran in respect of two sets of properties Bhumidhari and sirdari. The learned Munsif Khalilabad by his judgment dated 7.11.1970 decreed the suit partly and cancelled the sale deed in respect of ?rd share of Ram Baran in list B. The rest of the sale deed was held to be valid and the suit in that behalf was dismissed. Ram Lakhan, plaintiff, filed an appeal being Civil Appeal No. 258 of 1970 and Ram Samujh, defendant, filed Civil Appeal No. 3 of 1971. These appeals were directed against the judgment of the Munsif in so far as went against them. The III Additional District Judge, Basti, allowed the appeal of Ram Samujh and dismissed the appeal of Ram Samujh and dismissed the appeal of Ram Lakhan with the result that the entire suit for cancellation of the sale deed was dismissed. Ram Lakhan has filed this appeal (S.A. No. 2047 of 1974) as also another appeal, Second Appeal No. 2048 of 1974. There was no necessity for him to file this latter appeal as the controversy could be fully covered by filing only one appeal. 2. The short point that arises for determination in these appeals is as to when does a sirdar acquire transferable rights on his deposit of the amount equal to 20 times the land revenue. Learned counsel for the appellant urged that the date on which orders are passed by the Assistant Collector granting Sanad is the crucial date when the Sirdar acquires transferable rights. It was urged that in the instant case Ram Baran, since deceased, who had ?rd share was a sirdar and he made the deposit of the requisite land revenue and an application for acquiring Bhumidhari rights on 24.12.1966 and on the same day he executed a sale deed in favour of the respondent. It was said that Ram Baran died a day after the sale deed and the Sanad was granted on 28.9.1968. It was said that Ram Baran died a day after the sale deed and the Sanad was granted on 28.9.1968. It was further said that on the date when the Sanad was granted Ram Baran was dead and Sanad could not be issued in the name of dead person. Learned counsel for the respondents on the other hand urged that mere deposit of the requisite land revenue and making of an application for acquisition of Bhumidhari rights was enough to clothe with the applicant the right to make a transfer and the transfer by way of a sale deed made the same day was valid as held by the first appellate court. 3. I have heard learned counsel for the parties at great length and come to the conclusion that mere deposit of the requisite land revenue and making of an application under section 134 of the U.P.Z.A. & L.R. Act is not enough to vest Bhumidhari rights on the date the deposit was made and the transferable rights are acquired on the date when the application is considered by the Assistant Collector and the Sanad is granted. This requires consideration of the various provisions for the grant of a Sanad. 4. Section 134 of the U.P.Z.A. & L.R. Act deals with acquisition of Bhumidhari rights by sirdars and lays down that if the sirdar deposits an amount equal to 20 times of the land revenue he shall be entitled with effect from the date on which the amount has been so deposited to a declaration that he has acquired the rights of a Bhumidhari. Section 135 of the said Act lays down that the application for acquisition of Bhumidhari rights shall be accompanied by a requisite Treasury Chhallan. Section 137 deals with the grant of certificates and lays down that if 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 and upon the grant of certificate the applicant becomes a Bhumidhar and shall be deemed to be so from the date of deposit under section 134. The aforesaid provisions make it abundantly clear that what is sacrosanct is not the mere deposit itself under section 134 but a declaration to that effect by the Assistant Collector. The aforesaid provisions make it abundantly clear that what is sacrosanct is not the mere deposit itself under section 134 but a declaration to that effect by the Assistant Collector. When such an application has been made with the necessary deposit the sirdar is entitled to a declaration. The order of the Assistant Collector making the declaration is tantamount to the grant of a certificate. It may be that the actual issuance of the certificate may take lime but that would not change the complexion of things. The applicant who makes a deposit would become a Bhumidhar from the date of declaration and not from the mere deposit of the requisite amount. 5. In the instant case the date of deposit was 24.12.1966 and the sale deed was executed the same day. Unfortunately for the depositor, namely, Ram Baran, deceased, the declaration was not made the same day and the order of the Tahsildar was passed on 29.1.1967 vide Ex. A-7 which is to the following effect: "Issue Sanad. Sd./ Hirdai Ram Tripathi. 29.1.1967. Naib Tahsildar." 6. On this date the depositor became entitled to a Bhumidhari Sanad and acquired Bhumidhari rights. Although the deposit was made on 24.12.1966, the declaration by the Assistant Collector was made on 29.1.1967 and Sanad was issued actually on 28.9.1968. The date of issuance of the Sanad is of no consequence but the order of the Assistant Collector is certainly relevant because under section 134 as I have held above after the application and the deposit has been made the necessary declaration has to be made by the Assistant Collector under section 137 and the consequences flow from that date. Before the order is passed the mere deposit would not confer any transferable rights. 7. The view that I have taken finds support from a Full Bench decision of our court in Banshidhar v. Smt. Dhirajadhari and others, 1971 A.L.J. 937 which lays down that a sirdar who has made an application under section 134 and made the necessary deposit acquires the status of a Bhumidhar when the Assistant Collector makes the order of the grant of a Sanad and the event of the actual issuance of the certificate is immaterial. In the case reported in the ruling the deposit and the declaration were made on the same day although the Sanad was issued later on. In the case reported in the ruling the deposit and the declaration were made on the same day although the Sanad was issued later on. In this ruling the relevant provisions of the Act were fully considered. 8. Paras 8, 9 and 10 of the report refer to this part of the controversy and may be reproduced here : "8. These provisions disclose a well defined scheme that a sirdar on making an application and the deposit, becomes entitled to a declaration that he has acquired the rights mentioned in Section 17. The Assistant Collector then adjudicates upon the matter, He acts judicially. If the Assistant Collector is satisfied, he passes an order "granting" a certificate "to that effect." "To that effect" in the context refers to the "declaration mentioned in Section 134." That declaration is that the applicant has acquired the rights mentioned in Section 137, that is, of a Bhumidhar. So, the certificate granted is that the Assistant Collector is satisfied that the applicant "has" acquired the rights of a Bhumidhar. 9. Thus the Assistant Collector by his order makes a judicial grant of the certificate of Bhumidhari. The recording of the satisfaction has the inevitable and inseparable consequence of accrual of bhumidhari rights (though with effect from a still prior date, namely the date of deposit). The Legislative intent seems to be that there should be no time gap between the two events, of the making of the order and the accrual of rights. This is apparent from the use of the present tense verb "has" in the phrase "he has acquired Also, the word "will" and the phrase "He will acquire" would have been appropriate, if the rights were intended to accrue on the later event of ministerial grant of the certificate, by actually issuing it. 10. This construction has the merit of making the accrual or rights a predictable certainty. The acquisition of status takes place when the order is passed. A sirdar pays ten times the rent to obtain the advantages of Bhumidhari, the foremost of which is the right of transfer. This construction makes the intention of a sirdar to become able to transfer, a reality, as soon as the judicial determination is made by the Assistant Collector. The acquisition of status takes place when the order is passed. A sirdar pays ten times the rent to obtain the advantages of Bhumidhari, the foremost of which is the right of transfer. This construction makes the intention of a sirdar to become able to transfer, a reality, as soon as the judicial determination is made by the Assistant Collector. The other interpretation that the status changes with the delivery, namely the ministerial grant of the certificate, would make the Sirdar live on at the mercy of the Assistant Collector who prepares and delivers the certificate. Under the rules the certificate to be granted is on the printed Form 52. Suppose the form is not available. The office will await it and prepare the certificate on its receipt. This may take months or years. The poor sirdar suffers for no fault of his own. In the present case the certificate was not prepared and delivered to Udai Shankar for 21/2 years after the order on 24.6 64 till his death on 25.10.67. An interpretation which causes absurdities and anomolies is not to be preferred." 9. The law Laid down above in the Full Bench case applies to the facts of the present case. In the instant case on the dale of deposit Ram Baran was alive but on the subsequent date, namely, 29.1.1967 when the declaration was made he was dead Consequently, on 24.12.1966 when the sale deed was executed by Ram Baran he was merely a sirdar and could not, therefore, make the transfer of sirdari land. He could do so when lie order was made on 29.1.1967 but by this time he had died, While the Sanad would date back to the date of deposit, the fact remains that on the date the order was passed lam Baran had died and on the date when he made the transfer he had no transferable rights. Consequently, the learned Munsif was perfectly correct in cancelling the sale deed to the extent of ?rd share of Ram Baran in the properties of list B. 10. Learned counsel for the respondent urged before me that the date of deposit is the crucial date because under seel in 137 the rights are acquired with effect from the date of deposit. Learned counsel for the respondent urged before me that the date of deposit is the crucial date because under seel in 137 the rights are acquired with effect from the date of deposit. It was submitted that mere deposit confers Bhumidhari rights but they are eclipsed and revived as son as the declaration is made and the declaration dates bade to the date of deposit. I have considered the argument raised but find myself unable to accept it. In the Full Bench case referred to above it has been expressly Laid down that the judicial grant of a certificate has the consequent of accrual of Bhumidhari rights. The acquisition of status takes place when the order is passed. Consequently the argument raised by the Learned Counsel for the respondent has no merit. 11. The controversy in this case regarding the death of Ram Baran is only relevant in so far as the rights of Bhumidhari are concerned. The learned counsel for the respondent has cited Ram Harakh v. Dy. Director of Consolidation, 1980 Alld. L.J.N. O.C. 22 where the allotted and certificate was graded in his name, the certificate was deemed to be effective from the date of deposit. In the present case the controversy is not about the effect of death of Ram Baran and the grant 01 certificate in his name subsequently. The controversy is as to whether on the date of deposit he had acquired transferable rights. If the declaration had been made the same day Ram Baran had made the deposit and given the application then things would have been entirely different. However, as I have observed above, unluckily or the respondent, he died before the declaration was made by the Naib-Tahsildar and consequently could not and did not acquire transferable rights on the date he executed the sale deed. 12. Giving the matter my very anxious consideration I feel that Second Appeal No. 2047 of 1974 must be allowed. Accordingly, I allow second Appeal No. 2047 of 1974. The judgment and decree of the 111 Additional District Judge, Basti, dated 7.11.1970 are set aside and the suit is decreed in terms of the decree passed by the trial court in respect of ?rd share of Ram Baran in the plots of list B. In view of the peculiar circumstances of the case I order the parties to bear their own costs throughout.