Research › Browse › Judgment

Allahabad High Court · body

1986 DIGILAW 443 (ALL)

Shish Ram v. Board of Revenue, U. P. Allahabad

1986-07-18

B.L.YADAV

body1986
Jufgment B.L. Yadav, J. 1. THE present petition under Article 226 of the Constitution of India is directed against the orders passed by Respondent Nos. 1 and 2 in a suit under section 229-B of the U. P. Zamindari Abolition and Land Reforms Act filed by the petitioners for a declaration that they were sirdars and the Gaon Sabha and the State Government, respondent nos. 4 and 5, have no right and title in the land in dispute. THE petitioners in their suit claimed rights mainly under section 210 of the UP ZA and LR Act alleging that they had acquired rights by remaining in possession, otherwise than in accordance with law for more than the prescribed period against the Gaon Sabha and the State of U. P. No suit for their ejectment was filed when actual delivery of possession was made in their favour under section 28 of the U. P. Consolidation of Holdings Act (for short the Act) If the limitation is counted from the date the delivery of possession took place, the claim of the respondent nos. 4 and 5 became time-barred. 2. THE State Government and the Gaon Sabha contested the suit of the petitioners alleging that their claim was not time barred and that the right to file a suit would accrue in favour of the contesting respondents only after de-notification dated 23-1-1960 under section 52 of the Act. During consolidation operations no suit could be filed for the ejectment of the petitioners under section 209 of the UP ZA and LR Act and even if it could have been filed it would have abated under section 5 (2) (a) of the Act and the present suit was filed on 7-9-1972. THE period of limitation provided in Schedule III, for a suit under section 209, to be filed by the State Government and the Gaon Sabha, was extended from 12 years to 30 years on 14-10-1971. THE extended period of limitation has not expired. THE suit of the petitioners was liable to be dismissed. The trial court by order dated 20-6-1974 (Annexure 1') decreed the suit but the appeal of the State Government and the Gaon Sabha was allowed by the impugned order dated 30-6-1975 (Annexure 2') against the petitioners. This order was maintained in Second Appeal before the Board of Revenue by the order dated 30-9-1977 (Annexure 3). The trial court by order dated 20-6-1974 (Annexure 1') decreed the suit but the appeal of the State Government and the Gaon Sabha was allowed by the impugned order dated 30-6-1975 (Annexure 2') against the petitioners. This order was maintained in Second Appeal before the Board of Revenue by the order dated 30-9-1977 (Annexure 3). These two orders (Annexure 2' and 3') are sought to be quashed by issuing a writ of Certiorari. 3. SRI Markandey Katju, the learned counsel for the petitioners, urged that the petitioners matured rights under section 210 of the UP ZA and LR Act by remaining in adverse possession for more than the prescribed period of 12 years applicable in the case of the Gaon Sabha and the State Government. The de-notification under section 52 of the Act was made on 23-1-1960 whereas C. H. Form No. 25 was prepared in favour of the petitioners. In the proceedings under section 28 of the Act the possession was delivered on 20-9-1959. The petitioners filed the suit on 7-9-1972. No suit was filed for the ejectment of the petitioners by the State Government and the Gaon Sabha within a period of 12 years as provided by Appendix III (See Rule 338 of the Rules) Serial 30 prescribing period of limitation for a suit under section 209 of the UP ZA and LR Act, consequently the petitioners acquired rights under section 210 of the UP ZA and LR Act. He strongly relied on the case of Bideshi v. Board of Revenue, U. P., 1981 AWC 356. 4. THE learned counsel for the Gaon Sabha, on the other hand, urged that the limitation has to be counted from the date of the de-notification under section 52 of the Act, i. e. 23-1-1960. In a suit for ejectment it has to be counted from the next agricultural year following the date of occupation i. e. 1-7-1960. THE limitation was extended from 12 years to 30 years on 14-10-1971, by making an amendment in Serial No. 30 of Appendix III, in view of notification no. 450/I-A-3-1 (21-71, hence before the limitation of 12 years could expire it was extended to 30 years thus the petitioners cannot mature rights under section 210 of the UP ZA and LR Act as the limitation of 30 years (thirty years) has not expired. 450/I-A-3-1 (21-71, hence before the limitation of 12 years could expire it was extended to 30 years thus the petitioners cannot mature rights under section 210 of the UP ZA and LR Act as the limitation of 30 years (thirty years) has not expired. THE limitation for filing suit under section 209 was still available to the State Government and the Gaon Sabha. He further urged that the orders of the Additional Commissioner and the Board of Revenue are correct. He strongly relied upon Ram Adhar Singh v. Ram Roop Singh, AIR 1968 SC 714 , Badri v. Deputy Director of Consolidation, 1970 AWR 456 and Betal Singh v. Board of Revenue, U. P., 1985 AWC 170. He further submitted that in the case of Betal Singh v. Board of Revenue, 1985 AWC 170 the aforesaid cases of the Supreme Court and Five Judges Full Bench of this Court were considered, in view of that limitation would start running after de-notification and not prior to that. Having heard the learned counsel for the parties I am of the view that the submissions raised by the learned counsel for the petitioners are without substance. The first point for determination is as to whether a limitation for a suit under section 209 of the UP ZA and LR Act would commence from 20-9-1959 when the possession is alleged to have been delivered to the petitioners during the consolidation operations, in the proceedings under section 28 of the Act, or the limitation would start running from the date of the de-notification under section 52 of the Act i. e. 23-1-1961. The second point is as to whether the limitation of 12 years would apply as urged on behalf of the petitioners or that of 30 years would apply against the claim of the Gaon Sabha inasmuch as before 12 years period could be completed it was extended to 30 years. 5. AS regards the first point it is well settled that a suit for ejectment under section 209 of the UP ZA and LR Act cannot be filed during the period the consolidation operations were in progress and even if it is filed it would abate under section 5 (2) (a) of the Act. I had an occasion to decide a similar point in Betal Singh v. Board of Revenue (Supra). I had an occasion to decide a similar point in Betal Singh v. Board of Revenue (Supra). I had considered all the relevant case law including Five Judges Full Bench of this Court reported in Badal v. Deputy Director of Consolidation, (Supra) and also Supreme Court case of Ram Adhar Singh v. Ram Roop Singh (Supra). 6. IN Ram Adhar Singh's (Supra), the Supreme Court held that a suit for possession if filed during consolidation operations in respect of cultivable land would abate under section 5 of the Act. IN Badal's case (Supra) a Five Judges Full Bench of this Court over-ruling Abdul Wahid Khan v. Deputy Director of Consolidation, 1968 AWR 27 FB' held that a suit under section 209 is barred by Section 49 of the Act. It is relevant to mention the old maxim UBI JUS IBI REMEDIUM'. It is better to have the statement of law as enunciated in Halsbury's Laws of England, Fourth Edition, Vol 10, para 716 to the following effect :- "The general rule is that wherever there exists a right recognised by the law, there exists also a remedy for anv infringement of such right in the words of the old maxim 'UBI JUS IBI REMEDIUM' such an infringement of a legal right is known to the law as injuries." (See Asbhy v. White (1703) 2 Id. Raym 938 at 352 per Hon. C. J. "Indeed it is a vain thing to imagine a right without a remedy as both are reciprocal." (See Constantine v. Imperial Hotel Ltd. (1944) KB 693 = (1944) 2 All. E. R.), Ress v. Hughas, (1946) KB 517 = (1946) 2 ER 47, and Best v. Samuel Fox and Co. Ltd., (1952) AC 716 = (1952) 2 All. E. R. 394 H. L.). In view of the aforesaid observations it is clear that no suit can be filed by the contesting respondents against the petitioners as they obtained possession under section 28 of the Act during consolidation operations. Even if such suit is filed by the contesting respondents that would abate under section 5 (2) (a) of the Act. In other words the petitioners cannot mature sirdari rights, under section 210 of the UP ZA and LR Act against a person who has no remedy to file a suit against the trespasser during consolidation operations. This is how the maxim 'UBI JUB IBI REMEDIUM' comes in operation. In other words the petitioners cannot mature sirdari rights, under section 210 of the UP ZA and LR Act against a person who has no remedy to file a suit against the trespasser during consolidation operations. This is how the maxim 'UBI JUB IBI REMEDIUM' comes in operation. 7. IN the case of Bideshi v. Board of Revenue (Supra) decided by this Court, relied upon by the learned counsel for the petitioners, the Supreme Court case reported in Ram Adhar Singh v. Ram Roop Singh (Supra) and Five Judges Full Bench case of this Court reported in Badal v. Deputy Director of Consolidation (Supra) were not considered. About the value to be attached to a precedent it is better to refer C. K. Allen's Law in the Making (Sixth Edition) page 225, to the following effect :- "Remembering as we always must, that the authority of a decided case lies not in the mere words and phrases which compose it but in the principle which is to be extracted from it, every precedent is, in a sense, only evidence of the law, and not (like a statute), 'the law itself.' " 8. UNDER the circumstances with profound regards I am constrained to say that Bideshi v. Board of Revenue (Supra) relied upon by the petitioners, does not lay down correct law. It is accordingly evident that the suit for ejectment under section 209 of the UP ZA and LR Act can be filed only after the date of de-notification under section 52 of the Act i.e. 23-1-1960, and not before that. As regards the second point as to whether twelve years or thirty years limitation would apply. The de-notification was issued under section 52 of the Act on 23-6-1961. For a suit under section 209 of the UP ZA and LR Act limitation begins to run from 1st July, following the date of occupation and the suit was filed on 7-9-1972. But before that on 30-10-1971 the period of limitation was extended from 12 years to 30 years by making amendment in Serial No. 3 of Appendix 3 for a suit under section 209 of the UP ZA and LR Act against State Government and Gaon Sabha. It is accordingly clear that the period of limitation applicable on the date of suit would be 30 years and not 12 years. It is accordingly clear that the period of limitation applicable on the date of suit would be 30 years and not 12 years. In this view of the matter no right can be matured by the petitioners under section 210 by non-filing of the suit by the State Government and the Gaon Sabha as the period of thirty years did not expire. In this view of the matter all the submissions of the learned counsel for the petitioners are without any merits and the petitioners' writ petition deserves to be dismissed. 9. IN view of the discussions made hereinbefore the petition fails and it is accordingly dismissed, with costs. Petition dismissed.