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1992 DIGILAW 832 (ALL)

Chandra Shekhar Tripathi v. Kripa Ram

1992-06-02

J.N.DWIVEDI

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JUDGMENT J.N. Dwivedi, Member - This revision has been filed against the order dated 24.1.90 passed by Additional Commissioner Faizabad Division in Appeal No. 373, filed against the order of Tahsildar, Akbarpur, dated 28.12.62. 2. I have heard the learned counsel for the parties, and have gone through the file. 3. The facts of this case are that Smt. Jagwanta applied on 16.5.62 under Section 134 of U.P.Z.A. & L.R. Act for the grant of a Bhumidhari sanad in respect of her 'sir' property. She was asked to deposit ten times the land revenue on the same day, and it was done forthwith. A sanad was immediately granted, but it was delivered to her on 18.5.62. On 22.5.62, father of the present opposite parties, Kripa Ram and others, filed an objection against the grant of the sanad on the grounds that in a suit between the parties, Smt. Jagwanta had compromised to the effect that she had only life interest in the property. Proceedings for cancellation of sanad under Section 137-A of the Act were started, and the Tahsildar passed an order on 28.12.62 cancelling the sanad granted, in favour of Smt. Jagwanta. Smt. Jagwanta had transferred the "property in favour of Chandra Shekhar and Lakshman Prasad, who filed an appeal before the Additional Commissioner. The Additional Commissioner on 24.1.90 has held that in view of the amendment by U.P. Act VIII of 1977, the proceedings under Section 137-A of the Act abated. The present revision has been filed against that order. 4. I find that old Sections 134 and 135 of the U.P. Z.A. & L.R. Act were in respect of grant of sanad by depositing in respect of grant of sanad by depositing ten times land revenue by a sirdar in order to become a bhumidhar. The present revision has been filed against that order. 4. I find that old Sections 134 and 135 of the U.P. Z.A. & L.R. Act were in respect of grant of sanad by depositing in respect of grant of sanad by depositing ten times land revenue by a sirdar in order to become a bhumidhar. Section 137 of the Act laid down that a declaration granted under Section 135 may, on the application of any person interested, be cancelled or modified by the Assistant Collector on the grounds that the declaration was obtained fraudulently by making of a false suggestion or by concealment of something material to the case; secondly, that the declaration was obtained by means of untrue allegation of a fact essential in point of law to justify the grant thereof, though such allegation was made in ignorance or inadvertently, and thirdly, that a decree or order passed by a competent court in a suit or other proceedings with respect to the holding for which declaration was made, shows that the applicant was not entitled thereto. Thus, the present case is covered by Section 137-(c), because it was the case of Ram Kishun that in a civil suit between the parties, Smt. Jagwanta had agreed for a life interest in the property, and so, she was not entitled to become a bhumidhar by depositing 10 times rent. Section 137-A, which was added by Section 30 of U.P. Act XVI of 1950 with retrospective effect, lays down that a certificate granted under Section 137 may, on the application of the State Government or any person interested, be cancelled or modified on these grounds. 5. Before me, it has been argued that the learned Additional Commissioner was wrong in law in holding that the proceedings for cancellation of sanad should abate. It has been argued that by Amending Act VIII of 1977, effective from 28.1.77, Sections 134, 135 and 136 have been deleted. But Sections 137 and 137-A of the Act have not been deleted, because the intention of the legislature was that even after the amendment, proceedings for cancellation of sanad could be started, and that must be decided on merits. But Sections 137 and 137-A of the Act have not been deleted, because the intention of the legislature was that even after the amendment, proceedings for cancellation of sanad could be started, and that must be decided on merits. In this connection, reliance has been placed on a ruling of the Board of Revenue reported in 1977 A.W.C. (R) 146, in which it has been held that Section 73 of the Amending Act VIII of 1977 does not cover Section 137-A of the U.P. Z.A. & L.R. Act. Proceedings relating to cancellation of a bhumidhari sanad cannot be considered consequential to the grant of sanad. Proceedings for the cancellation or modification of the certificate of declaration issued under Section 135 of the U.P. Z.A.& L.R. Act may take place or not. It depends on whether the conditions laid down in Section 137-A are fulfilled. Simply because proceedings under Section 137-A can take place only if a certificate of declaration is in existence, that is, after the certificate has been issued, does not make them "proceedings arising from Section 134 and Section 135. It has been held that the consequentiality of proceedings under Section 137-A is not rooted in Sections 134 and 135, but is only an inevitable juxta position in tine insofar as the proceeding under Section 137-A can take place only if a certificate is in existence. That does not make the cancellation proceedings as arming from Sections 134 and 135. It has been further held that Section 73 of the Amending Act VIII of 1977 makes no mention of Section 137-A. It only makes mention of Section 134 and 135. The words "and proceedings arising therefrom, pending on such date" do not have any connection with proceedings under Section 137-A, they relate only to proceedings arising within the scope of Section 134 and Section 135. Similar view was held by Sri G.S. Sial, Member, Board of Revenue, reported in 1977 A.W.C. (Rev) 86. On the basis of these rulings, the learned counsel for the revisionists has argued that the present proceedings could not abate. A perusal of the judgment of the learned Additional Commissioner shows that he has interpreted Section 73 of the Amending Act 'o the effect that all proceedings in respect of grant of a sanad will abate, which includes that an objection filed against it will also abate. A perusal of the judgment of the learned Additional Commissioner shows that he has interpreted Section 73 of the Amending Act 'o the effect that all proceedings in respect of grant of a sanad will abate, which includes that an objection filed against it will also abate. This view has already been repudiated in the above two rulings of this Court. I totally agree with the views expressed in these two rulings, which are correctly justified, otherwise the purpose of the legislature would be frustrated. Had this been the intention of the legislature, then no remedy lay against a sanad wrongly granted to a person immediately before the amendment. In these circumstances, I hold that the present proceedings under Section 137-A will not abate. The order of the Additional Commissioner is perfectly illegal and is accordingly set aside. 6. The next question is, whether the matter should be remanded to the learned Additional Commissioner for disposal of the present case on merits, or, whether in the present revision the matter should be decided on merits. Although the scope in a revision is limited, but I do not think there is any bar if the matter is decided on merits as well. Hence, I propose to decide the case on merits. 7. A perusal of the judgment of the learned Tahsildar shows that a Civil Suit No. 941 of 1955 was filed, in which by compromise it was held that Smt. Jagwanta had simply life interest, and on this ground the sanad issued in favour of Smt. Jagwanta was cancelled, because, admittedly, she was not entitled for full rights. However, the judgment of the learned Additional Commissioner itself shows that subsequently Smt. Jagwanta filed Suit No. 160 of 1963 for cancellation of the compromise decree in Suit No. 941 of 1955, and the matter went upto the Hon'ble High Court, and, finally, the decree was set aside, meaning thereby that the compromise decree in favour of Ram Kishun against Smt. Jagwanta was set aside. Since she was recorded as sirdar, she was fully competent to deposit ten times land revenue, and become bhumidhar by virtue of Sections 134 to 137 of the Act. In these circumstances, it is clear that the objection of Ram Kishun was baseless, and he could have no objection against the grant of a sanad to Smt. Jagwanta, who was recorded. 8. In these circumstances, it is clear that the objection of Ram Kishun was baseless, and he could have no objection against the grant of a sanad to Smt. Jagwanta, who was recorded. 8. I, therefore, allow this revision, and set aside the orders of the courts below, and hold that a sanad was rightly granted to Smt. Jagwanta, on the basis of which she could transfer the property in favour of the present revisionists.