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2015 DIGILAW 3612 (ALL)

SATTAN TEWARI v. DEPUTY DIRECTOR OF CONSOLIDATION

2015-11-20

ANJANI KUMAR MISHRA

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JUDGMENT Hon’ble Anjani Kumar Mishra, J.—Heard Sri Sateyendra Pandey for the petitioners and Sri Arun Kumar for the contesting respondents. 2. The writ petition arises out of a objections under Section 9A(2) of the UP Consolidation of Holdings act (the CH Act), and seeks quashing of the order of the Dy. Director of Consolidation (the DDC), as also the order passed by the Consolidation Officer (the CO) insofar as it was against the petitioners. 3. The dispute in the writ petition pertains to plot Nos. 711 (area 0.11), 704 (area 0.06) and 705 (area 0.10). In the basic year record plot Nos. 104 and 711 were recorded in the name of Phoolmati and Brijpati, while plot No. 1075 was in the name of Shaifiqur Rehman. 4. The petitioners filed an objection, claiming title to the aforesaid plots on the basis of a family settlement dated 4.6.1930. The second objection was filed by the respondents, claiming that the name of the petitioners recorded in CH Form-5 be expunged. 5. The CO, by his order dated 1.11.1980, allowed the objection of the respondents and dismissed that of the petitioners. The petitioners thereafter filed an appeal. The Settlement Officer, Consolidation (the SOC) by his order dated 4.12.1981 allowed the appeal in part. The claim of the petitioners as regards plot Nos. 711 and 1074 was accepted, while the claim as regards plot No. 1075 was rejected. 6. Aggrieved, both the parties filed revisions. The DDC, by his order dated 4.8.1989, dismissed therevision of the petitioners, but allowed the revision filed by the respondents. As a consequence, the objection of the petitioners stands dismissed in toto. 7. It transpires from the perusal of the record, and also from the submissions made by the learned counsel for the parties, that the claim of the petitioners was based on two points; the first was the family settlement of 4.6.1930. The second is that Dwarika, respondent No. 6, filed a suit for injunction before Civil Court. In this suit, issues were framed as to whether the petitioners were sirdars or advasis of the land in question. The Civil Court referred the same to the Collector for a decision. The second is that Dwarika, respondent No. 6, filed a suit for injunction before Civil Court. In this suit, issues were framed as to whether the petitioners were sirdars or advasis of the land in question. The Civil Court referred the same to the Collector for a decision. The Collector, in exercise of powers conferred by Section 332 of the UP ZA and LR Act (the ZA Act), held the petitioners to be sirdars, and the finding returned in this regard was remitted back to the Civil Court. However, the civil suit, thereafter, was dismissed for default on 13.7.1959 in absence of both the parties. 8. Both the CO and the DDC have held that since the civil suit was dismissed for default, the finding returned by the Collector in the reference made to him was binding. The SOC, on the other hand, held that despite the dismissal of the suit in default, the finding returned by the Collector were binding as the same had not been challenged by the respondents. This is the basis of the order of the SOC in favour of the petitioners as regards plot Nos. 1704 and 711. 9. Insofar as the claim of the petitioners based on the family settlement is concerned, all the Courts below have discarded the family settlement. They have held that this family settlement was not signed by all the parties. Even though it was alleged to have been arrived at in 1930, the same was never incorporated in the revenue records. The findings of the Courts below, in my considered opinion, call for no interference as they are perfectly justified, having been recorded for cogent reasons. 10. It further transpires that a plea of adverse possession was also raised by the petitioners, and has been considered by the Courts below, and discarded as in his statement, the petitioner himself stated that his possession was not hostile, but permissive. 11. In view of the above, the only point that survives for consideration is as to the effect of the findings returned by the Collector in the reference made to him under Section 332 of the ZA Act. 12. In this connection, the submission of the learned counsel for the petitioners is that this finding of the Collector had attained finality, not having been challenged and, therefore, the same was binding and had been rightly so held by the SOC. 12. In this connection, the submission of the learned counsel for the petitioners is that this finding of the Collector had attained finality, not having been challenged and, therefore, the same was binding and had been rightly so held by the SOC. The DDC has erred in taking a view to the contrary. 13. In rebuttal, the contention of the learned counsel for the respondents is that according to Section 332A of the ZA Act, the question whether a person is a sirdar or an adivasi is not a question of title. 14. He has further submitted that this Original Suit No. 4252 of 1956, filed by Dwarika, was dismissed in default, and the finding of the revenue Court was not part of the decree by the Civil Court; therefore, no appeal could have been filed by the respondents. He, therefore, contends that the finding of the revenue Court on reference has no independent existence and, therefore, is not binding nor would it operate as res judicata against the respondents. 15. As far as the submissions of the learned counsel for the respondents that in view of Section 332A of the ZA Act, the question whether a person is a sirdar or an adivasi, is not a question of the title, the same is, in my considered opinion, entirely misconceived for the purpose of the instant writ petition. 16. Section 332 of the Act as existing in the statute book at the relevant time provided that where, in any suit or proceedings, mentioned in column 3 of Schedule 2 of the Act, a question is raised relating to title of any land, which was the subject-matter of the suit or the proceedings, and such question was directly and substantially in issue, the same could be referred to the competent Civil Court after framing an issue in this regard. This was so provided because the question of title could be determined by the Civil Court alone. Section 332A, which was incorporated in the year 1954, merely provided that where in any suit or proceedings relating to a land under the ZA Act a question was raised as to whether a person was a sirdar or an adivasi or an asami, it would not be deemed to raise a question of title. 17. Section 332A, which was incorporated in the year 1954, merely provided that where in any suit or proceedings relating to a land under the ZA Act a question was raised as to whether a person was a sirdar or an adivasi or an asami, it would not be deemed to raise a question of title. 17. Upon reading Section 332 and 332A, conjointly it emerges that the question of sirdari or the adivasi rights could be determined by the revenue Court alone, and not by the Civil Court. Therefore, by incorporating Section 332A, the legislature merely enhanced the jurisdiction of the revenue Court and provided it jurisdiction to determine the question of sirdari or adivasi or asami rights of an individual in any land and clarified that such an issue did raise a question of title, meaning that it was not required to be referred to the Civil Court for determination and the revenue Court was competent to decide it, itself. 18. In the case at hand, a reference was made by the Civil Court to the revenue Court in view of the provisions contained in Section 332B, which was incorporated in the year 1954. Therefore, Section 332 or 332A are not attracted in the instant case. In fact, the import of Section 332 is directly against the respondents inasmuch as the question of sirdari rights of the petitioner, if any, could be determined by the revenue Court exercising powers conferred by Section 332B of the Act. 19. As already noticed above, Section 332B had been incorporated in the statute book by Ordinance II of 1954, w.e.f. 24.8.1954. This section was, however, deleted w.e.f. 7.11.1958 by Section 79 of the UP Land Reforms (Amendment) Act, 1958 (UP Act No. 37 of 1958). 20. A perusal of this amending Act reveals that it is not retrospective in operation. Further, Section 86 of the amending Act provides that the amendment made by this Act shall not effect the validity, effect or consequence of any thing already done or suffered, or any right, title, obligation or liability already acquired, accrued or incurred or any jurisdiction already exercised. Further, any proceeding instituted or commenced before any Court or authority prior to the commencement of the Act, shall not, withstanding any amendment herein made,lie to the Court or authority to which it would have been made, if instituted or commenced before the said commencement. 21. Further, any proceeding instituted or commenced before any Court or authority prior to the commencement of the Act, shall not, withstanding any amendment herein made,lie to the Court or authority to which it would have been made, if instituted or commenced before the said commencement. 21. In the context of the above, it would be relevant to note that the reference made to the revenue Court in the case at handwas decided on 15.8.1958, several months prior to the deletion of the provision itself w.e.f. 7.11.1958. Therefore, in view of Section 87 of the amending Act, a finding returned by the revenue Court upon reference was within its jurisdiction. Sub-section (6) of Section 332B reads as follows: “A finding of the Collector or subordinate revenue Court on the issue referred to it, shall for the purposes of appeal, be deemed to be part of the finding of the Civil Court.” 22. The civil suit was admittedly dismissed for default on 13.7.1959 in the absence of the parties. In view of sub-section (6), quoted above, the finding of the revenue Court on the issue referred to it would form part of the order of the Civil Court dismissing the suit in default. It is, therefore, clear that in view of sub-section (2) of Section 87 of the amending Act (No. 37 of 1958) an appeal would lie to the Civil Court. 23. The suit had been filed by Dwarika, the predecessor-in-interest of the respondents. Once his suit was dismissed for default, Dwarika, had the remedy of applying for restoration. He, however, failed to avail the remedy available to him under law against the order dated 13.7.1959, thereby allowing the finding of the revenue Court, which necessarily formed part of the said order dated 13.7.1959 in view of sub-section (6) of Section 332B, to remain unchallenged and, therefore, allowed it to attain finality. 24. In the circumstances, therefore, the SOC had rightly granted benefit of the finding of the revenue Court, which holds the petitioner to be sirdar of the land in question. 25. The DDC, on the contrary, has held that since the suit was dismissed, in the absence of the parties, and that the suit had not been decided by a judgement issuewise, and because no decree had been drawn, the finding in favour of the petitioner, returned by the Revenue Court upon reference was not binding. 25. The DDC, on the contrary, has held that since the suit was dismissed, in the absence of the parties, and that the suit had not been decided by a judgement issuewise, and because no decree had been drawn, the finding in favour of the petitioner, returned by the Revenue Court upon reference was not binding. He has further opined that Dwarika would have a right to appeal only if the decision had been taken on the basis of the finding of the revenue Court. 26. In my considered opinion, the DDC has failed to notice sub-section (6) of Section 332B, which vitiates the order. The SOC had taken a correct view in this regard. The order passed by the DDC therefore, cannot be sustained and deserves to be set aside. 27. In view of the above, I set aside the order dated 4.8.1989 passed by the DDC, afirm the order of the SOC dated 4.12.1981, and allow the writ petition accordingly. ———————