Rajaram v. Board of Revenue, U. P. Allahabad — 1984 DIGILAW 234 (ALL)

JUDGMENT K.P. Singh, J. - Brief facts giving rise to the present writ petition are that opposite-parties 3 to 7 had filed a suit in the year 1944 against the petitioners under Sections 175/179 of the U.P. Tenancy Act in respect of Plot no. 103, measuring 4 bighas 12 biswas, situate in village Madanpur, Pargana Bara, Allahabad, on the ground that the petitioners were non-occupancy tenants and had no right to remain in possession thereof. It appears that the trial court decreed the suit and in-pursuance of that decree, the respondents obtained possession on 13th June, 1945. On 27-10-1945 the petitioners' appeal against the judgment-of the trial court was dismissed. On 26-11-1954 the second appeal filed by the petitioners was allowed and that the petitioners were held Adhivasi-cum-Sirdar of the disputed land. On 26-5-1955 the petitioners moved an application under Section 144 of the Code of Civil Procedure. On 2-8-1955 the application under Section 144 of the Code of Civil Procedure was allowed. On 4-8-1955 respondents had filed an objection and had obtained an ex-parte order staying delivery of possession. On 7-1-1955 in ignorance of the stay order at the instance of plaintiff-opposite-parties 3 to 7 the petitioners had obtained possession. On 1-9-1955 the Judicial Officer directed re-delivery of possession to the plaintiff opposite-parties and dismissed the application under Section 144 of the Code of Civil Procedure in default of the petitioners. On 9-12-1955 allegedly respondents got possession. On 4-1-1956 the petitioners filed another application before the Judicial Officer purporting to be under Sections 47/151 of the Code of Civil Procedure with the prayer that their possession be maintained setting aside the Dhakhalnama dated 9-12-1955. On 26-6-1956 the petitioners' application dated 4-1-1956 was dismissed on the ground that the petitioners should have preferred an appeal against the order dated 1-9-1955. On the same day, that is 26-5-1956, the petitioners filed a fresh application under Section 144 of the Code of Civil Procedure. On 27-8-1956 Judicial officer allowed the petitioners' application. On 4-12-1956 the order dated 27-8-1956 was set aside and it was held that the petitioners' application dated 26-6-1956 was not maintainable. On 30-6-1958 the petitioners' revision-petition was dismissed by the Board. On 8-3-1956 a writ petition no. On 27-8-1956 Judicial officer allowed the petitioners' application. On 4-12-1956 the order dated 27-8-1956 was set aside and it was held that the petitioners' application dated 26-6-1956 was not maintainable. On 30-6-1958 the petitioners' revision-petition was dismissed by the Board. On 8-3-1956 a writ petition no. 3547 of 1958 against the order of the Board of Revenue dated 30-8-1958 was allowed and the case was sent back to the Additional Commissioner for dealing with the claims of the parties in the light of the observations made in that judgment. On 22-2-1966 the Additional Commissioner sent the case back to the Judicial Officer for recording a finding on the question of limitation. On 12-4-1976 the petitioners' application under Section 144 of the Code of Civil Procedure dated 26-6-1956 was allowed. On 26-8-1968 the appeal of opposite-parties 3 to 7 was allowed and the petitioners' application cation dated 26-6-1956 was held as barred by time. The revision-petition against the judgment of the appellate court dated 26-1-1968 at the instance of the petitioners remained unsuccessful. Now the petitioners have approached this Court under Article 226 of the constitution. 2. The learned counsel for the petitioners emphasised that in equity, the petitioners are entitled to get possession over the disputed land, but the appellate court and the revisional court have patently erred in not granting relief to the Petitioners. The second contention raised on behalf of the petitioners before me is that the application dated 26-6-1956 filed by the petitioners would be in the nature of revisionist the application dated 26-5-55 and the application could not be treated as time barred in the circumstances of the present case. The third contention raised on behalf of the petitioners is that the restitution application dated 26-6-1956 is within three years from the date of the final decree dated 26-11-1954, hence the higher revenue courts have patently erred in holding the petitioners' application as barred by time. The fourth contention raised on behalf of the petitioners is that the provisions of U.P. Tenancy Act were repealed; hence the higher revenue courts have patently erred in applying the provisions of limitation provided under U.P. Tenancy Act. Lastly, it has been suggested that the fresh application dated 26-6-1956 should be treated as step in aid of the execution and the findings of the higher revenue courts on limitation are erroneous and deserve to be quashed. 3. Lastly, it has been suggested that the fresh application dated 26-6-1956 should be treated as step in aid of the execution and the findings of the higher revenue courts on limitation are erroneous and deserve to be quashed. 3. The learned counsel for the contesting opposite-parties has submitted in reply that the higher revenue courts have taken correct view on the question of limitation and their judgments do not suffer from any patent error of law and need not be quashed. The second submission made on behalf of the contesting opposite-parties is to the effect that the application in the nature of step in aid of execution must be filed within one year from the date of the final decree and in the present case the application, giving rise to the present writ petition was moved beyond one year from the date of the final decree; hence it was rightly rejected by the higher revenue courts. The main submission of the learned counsel for contesting opposite-parties is that the restitution application would be an execution application; hence the law of limitation for execution, provided under the Tenancy Laws, would be attracted and in that view of the matter the petitioners' application dated 26-6-1956 was rightly rejected. 4. In rejoinder, the learned counsel for the petitioners has submitted that the petitioners are entitled to the benefits of Section 14 of the Indian Limitation Act and the higher revenue courts have failed to examine this aspect of the matter. 5. Heard the learned counsel for the parties at a great length. None of them has been able to cite a direct case in support of his contentions. I have gone through the impugned judgments attached with the writ petition. I find that the first appellate court in its order dated 26-8-1968 applied the limitation of one year provided under the provisions of the U.P. Tenancy Act for execution of a decree for possession over immovable property. The learned Member Board of Revenue appears to have exercised jurisdiction under Section 115 of the Code of Civil Procedure and he also applied the law of limitation provided under the provisions of U.P. Tenancy Act. 6. The learned Member Board of Revenue appears to have exercised jurisdiction under Section 115 of the Code of Civil Procedure and he also applied the law of limitation provided under the provisions of U.P. Tenancy Act. 6. Section 339 of the U.P. Zamindari Abolition and Land Reforms Act reads as below : "With effect from the date of vesting in respect of any area- (a) the enactments mentioned in List I of Schedule III shall be and are hereby repealed in their application to such area ; (b) so much of any other enactments as inconsistent with the provisions of Chapters VIII to X of this Act shall be deemed and is hereby repealed (in its application to such area) ; (c) The United Provinces Land Revenue Act, 1901 (U.P. Act III of 1901) shall (in its application to such area) be deemed to be and is hereby amended to the extent mentioned in column 3 of the List II of the Schedule aforesaid : Provided that where under this Act any interpretation has to be made, action taken or thing done in accordance with the provisions of the United Provinces Tenancy Act, 1939 (U.P. Act XVII of 1939), the same may be made, taken or done as it has not been repealed by this Act." 7. Section 115 of the Code of Civil Procedure does not confer any right upon the Board to exercise revisional powers against the order of the subordinate courts. A bare reading of the impugned order indicates that the learned Member has patently erred in exercising the revisional powers under Section 115 of the Code of Civil procedure. 8. In the circumstances of the present case, it is not very clear how the provisions of the U.P. Tenancy Act were attracted. The plaintiffs' suit was ultimately dismissed in the year 1954. The restitution proceeding has been started in the year 1955 and on that day the provisions of U.P Tenancy Act stood repealed with regard to the' area in question as is evident by Item 16 Schedule III List I of the U.P. Zamindari Abolition and Land Reforms Act. Since, I have a feeling that the learned Member has exercised powers under a wrong section ; hence his judgment apparently suffers from error of law and deserves to be quashed. 9. Since, I have a feeling that the learned Member has exercised powers under a wrong section ; hence his judgment apparently suffers from error of law and deserves to be quashed. 9. During the course of arguments, I wanted to look into the application dated 26-6-1956 but the same has not been attached with the writ petition ; hence I am unable to express any concluded opinion on the contentions raised on behalf of the parties. Before me, new contentions have been raised regarding which I do not find any discussion in the judgments attached with the petition. Equity appears in favour of the petitioners and the contentions raised on behalf of the parties before me have not, at all, been substantiated by any direct authority, I think it proper for the time being to quash the impugned judgment of the revisional authority and ask the parties to canvass their new points before the revisional authority in the light of the decided cases and the materials on record regarding the nature of the proceedings before the courts and they would specifically indicate under what provisions of law, the proceeding ensured and how the revision-petition under Section 115 of the Code of Civil Procedure, would be maintainable before the revisional court. 10. A mention has been made on behalf of the contesting opposite-parties that in view of the provision of Section 6 of the General Clauses Act, the provisions of the U.P. Tenancy Act would be attracted to the facts and circumstances of the present case and the appellate authority and the revisional authority were fully justified in holding the claim of the petitioners as barred by time. Since, I am sending the case back to the Board of Revenue with directions mentioned in the above paragraph. I think it proper to permit the contesting opposite-parties to canvass his point before the Board of Revenue. 11. In the result, the writ petition succeeds and is, hereby allowed and the impugned judgment of the learned Member, Board of Revenue, dated 27-2-1973 is, hereby, quashed. The Board of Revenue is directed to decide the revision-petition afresh and deal with the contentions raised by the parties before me, as mentioned above, in the light of materials on record and the cases cited by the parties in support of their contentions. There would be no order as to costs.