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Allahabad High Court · body

1989 DIGILAW 120 (ALL)

Gaon Sabha v. Prem Kunwar

1989-01-25

P.SINGH

body1989
JUDGMENT P. Singh, Member. - This reference has been made by the learned Commissioner, Bareilly Division, vide his order dated 9-11-77 for setting aside the trial court's order dated 6-7-77 whereby it dropped the proceedings under Section 194 of the U.P. Act I of 1951 on the ground that the proceedings were mot maintainable. 2. It appears that Badri Prasad, the original tenure-holder of the land in dispute died and in an earlier suit under Section 229-B of Act I of 1951 it was decided vide judgment dated 26-2-70 that neither the plaintiff in that suit, Smt. Rampa Devi, nor the defendant, Smt. Prema Kunwar were the legal heirs of the deceased and as such the property shall vest in Gaon Sabha. Thereafter the present proceedings were initiated on the application of Pradhan Gaon Sabha. The Sub-Divisional Officer held that the court had no jurisdiction to proceed under Section 194 and the proceedings were thus not maintainable. 3. I have heard the learned DGC (R) appearing for Gaon Sabha and perused the record. None appears on behalf of the opposite party. 4. Section 194 of U.P. Act I of 1951 reads as under : - "194. The Land Management Committee shall be entitled to take possession of land comprised in a holding or part thereof if - (a) the land was held by a bhumidhar, and his interest in such land is extinguished under clause (a) or clause (aa) of Section 189 or clause (a), clause (b), clause (c), clause (cc) or clause (e) Section 190." Section 189 (a) provides that the interest of a bhumidhar with transferable rights in his holding or any part thereof shall be extinguished when he dies intestate leaving no heir entitled to inherit in accordance with the provisions of this Act. 5. From these provisions it is evident that the Land Management Committee is entitled to take possession of land in which the interest of the tenure holder who died issueless has extinguished. The procedure for proceeding under the Section has been provided in Rule 172, U.P.Z.A. & L.R. Rules. This rule has been framed under Section 230 (2) (i) of the Act, and reads as follows : - "Rule 172. The procedure for proceeding under the Section has been provided in Rule 172, U.P.Z.A. & L.R. Rules. This rule has been framed under Section 230 (2) (i) of the Act, and reads as follows : - "Rule 172. (l)An application under Section 194 for declaration of the extinction of tenure-holder's rights shall be filed in the Court of the Assistant Collector Incharge of the Sub-Division by the Land Management Committee in whose local jurisdiction the extinction has occurred. Where on the application of the Land Management Committee or on facts coming to his notice otherwise, the Assistant Collector is satisfied that there is a prima facie case for declaration of the extinction of the tenure holder's rights under Section 194, he shall issue a proclamation in Z.A. Form 57, and where the tenure-holder is alive, a copy of the proclamation shall be served on him to show cause why the declaration in question should not be granted. (2) The Assistant Collector shall, on the date fixed in the proclamation and after personal service, if required, has been effected, proceed to make such inquiry as he deems necessary. (3) If after inquiry, he comes to the conclusion that a declaration in favour of Land Management Committee should be made, he shall make a declaration to that effect and specify the numbers of the plots with their respective areas of which the Committee is entitled to take possession. The possession shall then be delivered to the Committee on behalf of the Gaon Sabha in accordance with the procedure laid down in Rule 154." 6. From the provisions contained under Rule 172, U.P.Z.A. & L.R. Rules, it is evident that the Land Management Committee will have to file an application under Section 191 for a declaration of extinction of tenure holder's rights in the Court of the Assistant Collector-in-charge of the Sub-Division and when the Assistant Collector finds a prima facie case for an enquiry, he will have to make a proclamation as provided under the said rule. After that, an enquiry would be conducted as provided in sub-rule (2) of Rule 172, and thereafter the Assistant Collector will make such a declaration in favour of the Land Management Committee entitling it to take possession, and thereafter possession shall be delivered to the Land Management Committee in accordance with the provisions of Rule 154. 7. After that, an enquiry would be conducted as provided in sub-rule (2) of Rule 172, and thereafter the Assistant Collector will make such a declaration in favour of the Land Management Committee entitling it to take possession, and thereafter possession shall be delivered to the Land Management Committee in accordance with the provisions of Rule 154. 7. The learned trial court relying on a decision of this Court reported in 1977 R.D. page 76, came to the conclusion that no suit could be filed before him. I find that this decision relied upon by the learned trial court was not applicable to proceedings under Section 194. The proceedings under Section 194 are to be taken in accordance with the provisions of Rule 172, U.P Z.A. & L.R. Rules which has been framed by the State Government under Section 230 (2) (i) of U.P. Act I of 1951. As is clear from the above provisions, it is the Sub-Divisional Officer who has to proceed with the matter on the application of the Land Management Committee filed before him under Section 194. In view of this, the view taken by the learned Sub-Divisional Officer that proceedings were not maintainable before him was erroneous in law. Thus, the view expressed by the learned Commissioner in so far as the maintainability of the proceedings before the Sub-Divisional Officer is concerned is in accordance with the provisions of law and there appears no infirmity in this view. The objection raised on behalf of the opposite parties against the view expressed by the learned Additional Commissioner is not acceptable. 8. So far as the direction of the learned Commissioner regarding the delivery of possession of the land to the revisionist is concerned, I am of the opinion that this was not proper on the part of the learned Commissioner to have given such a direction to the Sub-Divisional Officer as it was against the provision of law, as delivery of possession will take place after an enquiry has been conducted by the Sub-Divisional Officer and the Sub-Divisional Officer has made a declaration in favour of the Land Management Committee. There is a specific provision with regard to delivery of possession after the declaration has been made by the Sub-Divisional Officer in favour of the Land Management Committee, which is contained in Rule 154 of the U.P.Z.A. & L.R. Rules, as is evident from sub-rule (3) of Rule 172. In view of this, the delivery of possession shall take place in accordance with the provisions contained in Rule 154 which reads as under : - "154. Delivery of possession in execution of a decree or order for ejectment shall, except in cases covered by Rule 154-A, be made by the Kurk Amin who, on his arrival in the village shall send notice to the person to be ejected and in case there is any other person holding from him to such other person also. The ejectment shall be made on the spot, and for each field separately in the manner provided in Rule 35 of Order XXI of the First Sch. of the Code of Civil Procedure, 1908 (V of 1908) in the presence of the person to be ejected if he is in the village and of two villagers whose names should be mentioned in the Amin's report. If the person to be ejected is not present in the village or refuses to attend, the Kurk Amin shall record the fact in his report. If at the time of the delivery of possession there exists on the holding any ungathered crop or any tree of which the value has not been determined by the Court, the Amin shall state in his report the kind of crop and his estimate of its probable value and the kind, number and estimated age and value of the trees. The report shall be signed by the decree-holder or his agent to whom delivery is made, and by the person to be ejected, if present, and the parties shall be directed to apply, if they wish to do so, to the Court executing the decree for the settlement of the value of such crops and trees. If the Lekhpal is present in the village, the Kurk Amin shall ask him to attend, and shall see that the Lekhpal makes a record of the ejectment in his diary. In case any party refuses to sign the report, the Amin shall record the fact." 9. If the Lekhpal is present in the village, the Kurk Amin shall ask him to attend, and shall see that the Lekhpal makes a record of the ejectment in his diary. In case any party refuses to sign the report, the Amin shall record the fact." 9. In view of the above discussion, the recommendation made by the learned Commissioner is partly accepted that the Sub-Divisional Officer has the jurisdiction to proceed with the matter in accordance with the provisions contained under Rule 172, U.P.Z.A. & L.R. Rules, and so far as delivery of possession is concerned, that will take place in accordance with the provisions of Rule 154. Accordingly, the order of the trial court it set aside and it is directed to proceed with the matter in the light of the observations made above.