Gauri Shanker Lal v. Board of Revenue — 1985 DIGILAW 444 (ALL)

ORDER B.L. Yadav, J. - The present petition under Article 226 of the Constitution is directed against the judgment and order dated 16-10-77 passed by the Board of Revenue, U.P. at Allahabad and the order dated 12-1-70 passed by the Assistant Collector on an application, for the enforcement of Amaldaramad proceeding consequent upon the order dated 9-6-55 passed in a suit under S. 63 of the U.P. Tenancy Act, 1939 (for short Act). 2. Briefly stated the essential facts are that a suit under S. 63 of the Act was filed by one Pitamber, father of the present petitioner on 3-5-50 for a declaration that he was Khudkasht holder of the land in dispute and in the alternative he prayed for possession in case he was found out of possession. On 7-6-55 the suit was decreed ex parte against the defendants including respondent 3. Respondent No. 3 filed a revision against the order dated 7-6-55, which was dismissed on 30-4-57. After 11 years when the Zamindari was abolished in the village on 1-7-66 and fresh rights were conferred on the tenants and Sir and Khudkasht holders, the petitioner filed an application on 6-7-68 purporting to be under Para 39 of the U.P. Revenue Court Manual for Amaldaramad of the order dated 7-6-55. The said application was hotly contested by the defendant-respondent. This application for Amaldaramad was for seeking the effect of the order dated 7-6-55. The trial Court rejected the application by order dated 12-1-70 holding that fresh rights have accrued after the abolition of Zamindari and the enforcement of U.P. Urban Area Zamindari Abolition & Land Reforms Act in the area. Hence the old rights in the form of Sir and Khudkasht holders cannot be revived. The petitioner preferred a revision which was recommended by the Additional Commissioner by order dated 10-6-70 that the revision may be allowed. The Board of Revenue, however, after hearing the parties, by the impugned order dated 16th Oct.. 1977, dismissed the revision. It is against the order of the Board of Revenue that the instant petition has been filed. 3. The learned counsel for the petitioner urged that under S. 63 of the Act a declaratory decree is passed and it was the duty of revenue authorities to correct the entries and allow the application for Amaldaramad and no relief for possession was claimed, hence the application should have been allowed. 3. The learned counsel for the petitioner urged that under S. 63 of the Act a declaratory decree is passed and it was the duty of revenue authorities to correct the entries and allow the application for Amaldaramad and no relief for possession was claimed, hence the application should have been allowed. The learned counsel for the petitioner placed reliance on a case reported in Ambika Prasad v. Kamla Prasad, AIR 1971 All 549 (FB). He further placed reliance on Subhana v. Dy. Director of Consolidation, 1973 All LJ 375 : ( AIR 1973 All 427 1 (DB). 4. Learned counsel for the respondent, on the other hand, urged that respondent 3 was in possession over the land in dispute and in summary proceedings long standing entries cannot be corrected, particularly when the U.P. Tenancy Act was deleted and the Urban Area Zamindari Abolition & Land Reforms Act came into force as stated above, fresh rights accrued in his favour and the rights of all the intermediaries or Sir and Khudkasht holders vested in the State and the latter created fresh rights on the Sir and Khudkasht Holders and respondent No. 3 was recorded as Bhumidar and this was the right which was created and conferred by the State. This new right cannot be said to be in continuation of the old rights of Khudkasht holders as alleged and claimed by the petitioner. In case the petition was feeling aggrieved by continuance of the entries in the name of respondent 3, he could get his fresh rights, if any, declared even under the new Act (Urban Area Zamindari Abolition and Land Reforms Act) by filing a suit for declaration. The present application was not maintainable. He further urged that respondent 3 has been in possession on the spot and the petitioner was out of possession for more than the prescribed period and the petitioner did not file any suit for ejectment of respondent 3 within a period of two years' or three years' limitation available after the deletion of the U.P. Tenancy Act, 1939. The claim of the petitioner accordingly became time barred. He placed reliance on Rana Sheo Ambar Singh v. Allahabad Bank Ltd., AIR 1961 SC 1790 and also on Mohammad Yasin v. Amar Nath 1974 Rev Dec 239 : (1974 All LJ 614). 5. I have heard the contentions raised by the parties. The claim of the petitioner accordingly became time barred. He placed reliance on Rana Sheo Ambar Singh v. Allahabad Bank Ltd., AIR 1961 SC 1790 and also on Mohammad Yasin v. Amar Nath 1974 Rev Dec 239 : (1974 All LJ 614). 5. I have heard the contentions raised by the parties. As regards the contention of the counsel for the petitioner that as the petitioner was holding a declaratory decree under S. 63 of the U.P. Tenancy Act and he was declared as Khudkasht holder, the said decree must have been given effect to by the revenue authorities in the revenue papers. I, consider that as there was no direction in the decree that the correction of revenue records should be carried out by the revenue authorities, there was no duty cast on the authority to carry out the corrections suo motu. I am of the opinion that unless the direction was contained in the decree, it cannot be assumed that the revenue authorities should have carried out the correction as a result of the decree. The petitioner should have taken positive action to carry out the effect of the decree in his favour before it became too late. He should not have waited for about eleven years, particularly till the U.P. Tenancy Act, 1939, under which enactment he claimed rights of Khudkasht holder, was repealed and Urban Area Zamindari Abolition & Land Reforms Act was enforced, and till the old rights that he claimed ceased to remain in existence and in their place entirely new rights were created under the provisions of the new Act. 6. In Subhana v. Dy. Director of Consolidation, AIR 1973 All 427 (supra) relied upon by the counsel for the petitioner, it was laid down that a declaratory decree does not require an application for execution by the decree holder and the Court has to carry out the correction in revenue papers in accordance with the decree. In this case nothing was said as to what would happen in case defendants continued to be in possession and nothing has been said as to what would be the effect of deletion of the U.P. Tenancy Act and creation of new rights by the State of U.P. after the enforcement of Urban Area Zamindari Abolition & Land Reforms Act. In this case nothing was said as to what would happen in case defendants continued to be in possession and nothing has been said as to what would be the effect of deletion of the U.P. Tenancy Act and creation of new rights by the State of U.P. after the enforcement of Urban Area Zamindari Abolition & Land Reforms Act. I think that the case Subhana (supra) would be of no assistance to decide the controversy involved in the present case. 7. Ambika Prasad v. Kamla Prasad, AIR 1971 All 549 (FB) (supra) was a case in respect of acquisition of Adivasi and Sirdari rights under S. 20 of the U.P. Z. A. & L. R. Act and Explanation 3 to S. 20 was interpreted and it was held the Explanation 3 to S. 20 of the U.P. Z. A. and L. R. Act applies not only to cases where the decree states that revenue records be corrected accordingly, but also to cases where the nature of decree is such that correction of record becomes a necessary consequence, in order to obey the command of the Court contained in the decree. But in the instant case the controversy was that the decree did not require correction on the spot as held by the trial Court in order dated 12-1-70 (Annexure 1 to the petition) that "the suit was decreed ex parte without any finding about possession and the plaintiff did not apply to gain possession till now." The paper entries show that the defendant is all along in possession over the plots since a very long time. Entries in the name of defendant (respondent No. 3) cannot be held to be false as there has been no finding recorded about the possession of the plaintiff. The plaintiff did not obtain possession over the plots till the filing of present application and when the Zamindari was abolished in the village on 1-7- 61, fresh rights were created under S. 20 of the U.P. Z. A. & L. R. Act to the defendant on account of possession for more than the prescribed period. In view of these findings recorded by the trial Court the case relied upon by the petitioner is clearly distinguishable as in that case there was no controversy that the defendant continued in possession. 8. In view of these findings recorded by the trial Court the case relied upon by the petitioner is clearly distinguishable as in that case there was no controversy that the defendant continued in possession. 8. In Rana Sheo Ambar Singh v. Allahabad Bank Ltd., AIR 1961 SC 1790 (supra) relied upon by the counsel for respondent 3, it has been held by interpreting Ss. 9 and 18 of the U.P. Z. A. & L. R. Act, that in view of S. 8 of the U.P. Z. A. & L. R. Act the proprietary rights in Sir and Khudkasht land and grove land would be extinguished and Bhumidari rights created by S. 18 would establish a new right altogether and this new right cannot, therefore, be considered to be included in the old proprietary rights existing before the Act nor the Bhumidhari rights could be taken to be continuance or revival of the Sir and Khudkasht rights. In the instant case after the Zamindari was abolished on 1-7-61 and the U.P. Tenancy Act was deleted and the Urban Area Zamindari Abolition and Land Reforms Act came into force (Page 10 Annexure 1), fresh rights were created in favour of respondent 3. Hence it cannot be held that after the date of vesting the petitioner as Khudkasht holder has any subsisting right. In Hari Nath v. Ram Pratap Singh, AIR 1969 All 170 (FB), it was held in para 25 page 175, that even the entries in favour of the occupant cannot be deemed to have been corrected unless a mention was made in the decree or order for correction of records. 9. In the instant case the suit was decreed ex parte on 7-6-55. There was no finding about the possession of the petitioner nor there was any finding that the defendant respondent 3 was not in possession over the land in dispute. For eleven years the petitioner did not file any application for correction of records or for obtaining possession on the spot. It has been held by the trial Court that the defendant continued to be in possession on the spot all along and that the suit of the petitioner was time barred. For eleven years the petitioner did not file any application for correction of records or for obtaining possession on the spot. It has been held by the trial Court that the defendant continued to be in possession on the spot all along and that the suit of the petitioner was time barred. In Mohammad Yasin v. Amarnath, 1974 All LJ 614 (supra), it has been held that Appendix 3 Serial No. 30 of the Rules under the Zamindari Abolition & Land Reforms Rules prescribed (for a suit) a period of three years commencing from the date of vesting and the period of limitation for ejectment as prescribed under the U.P. Tenancy Act, 1939, had not expired case under the U.P. Tenancy Act only two years period of limitation was prescribed for filing a suit for ejectment under S. 180 of the Act. (sic) In the instant case the decree was obtained by the petitioner on 7-6- 55. The U.P. Tenancy Act was deleted and the Urban Area Zamindari Abolition & Land Reforms Act was enforced on 1-7-61. Much prior to that the limitation for filing a suit by the petitioner for ejectment has expired and even after that also the petitioner did not file any suit for ejectment of respondent 3 within a period of three years. Hence the rights of the petitioner, if any, in the land in dispute came to an end, although it is made clear that after the date of vesting, fresh rights were created by the State of U.P. in favour of different tenure holders and Sir and Khudkasht holders. The rights of the tenure holders and Sir and Khudkasht holders had already vested in the State in pursuance of the provisions of S. 6 of the U.P. Z. A. and L. R. Act. The old Sir and Khudkasht holders' right could not be deemed to have continued even after the date of vesting nor bhumidhari rights or sirdari rights could be deemed to be in continuation of the respondent's Khudkasht holders right or occupancy or hereditary tenancy rights respectively. 10. I am accordingly of the view that the petitioner has lost his right as he did not file a suit for ejectment of respondent 3 within time before the date of vesting or after the date of vesting. 10. I am accordingly of the view that the petitioner has lost his right as he did not file a suit for ejectment of respondent 3 within time before the date of vesting or after the date of vesting. When fresh rights have been created in favour of respondent 3 by the State of U.P., the petitioner cannot enforce his decree against those new rights as held by their Lordships of the Supreme Court in Rana Sheo Ambar Singh v. Allahabad Bank Ltd., AIR 1961 SC 1790 (supra). 11. There is one more aspect of the matter on the basis of which the petitioner cannot get any relief. In the application filed by him for Amaldaramad purpose, in fact after the date of vesting there was no Sir and Khudkasht holder's right. The petitioner was seeking correction of entries in his favour as Sir and Khudkasht holder. It is totally inconceivable that when there was no Sir or Khudkasht holder's rights how can the petitioner be entered in revenue papers as Khudkasht holder. On this ground also the petitioner cannot get any relief. 12. In view of the discussions made above, I am of the view that the petition lacks merit and is dismissed accordingly. There shall, however, be no order as to costs.