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Harinath Vs. Ram Pratap Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 3555 of 1958
Judge
Reported inAIR1969All170
ActsTenancy Law; Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951 - Sections 20; Uttar Pradesh Tenancy Act, 1939 - Sections 180 and 232
AppellantHarinath
RespondentRam Pratap Singh and anr.
Advocates:Behariji Das, Adv.
DispositionAppeal allowed
Excerpt:
(i) property - compromise - section 20 (b) of u.p. zamindari abolition and land reforms act, 1951 and section 180 of u.p. tenancy act, 1739 - adhivasi recorded occupant of certain land under section 20 (b) - entitled to regain possession under section 232 if dispossessed notwithstanding that dispossession was in execution of the compromise decree passed under section 180 of u.p. tenancy act. (ii) entry in khasra and khatauni - section 20 (b) (i) of u.p. zamindari abolition and land reforms act, 1951 - different entry of occupancy showing in khasra and khatauni of 1356f - held, entry in khatauni complies with the provision of section 20 (b) (i). - - tenancy act had come into existence, the decree clearly was for ejectment and it was in execution of that decree that ram pratap singh.....jagdish sahai, j.1. this second appeal, which is directed against the decree passed by sri b. k. sharma, addl. civil judge, mirzapur, dated 3-7-1958, has come to us on a reference made to a full bench by a division bench of this court.2. suit no. 1 of 1954, which has given rise to this second appeal, was filed by the appellant, harinath, under section 232 of the u. p. zamindari abolition and land reforms act (hereinafter referred to as the u. p. z. a. & l. r. act) against the respondents, ram pratap singh and gauri shanker, in the court of the assistant collector i class mirzapur, for recovery of possession of plots nos. 332/2, 455, 466 and 430 situate in village chand lewa kalwan tappa, district mirzapur.3. before the suit giving rise to this appeal was filed, the defendant. ram pratap.....
Judgment:

Jagdish Sahai, J.

1. This second appeal, which is directed against the decree passed by Sri B. K. Sharma, Addl. Civil Judge, Mirzapur, dated 3-7-1958, has come to us on a reference made to a Full Bench by a Division Bench of this Court.

2. Suit No. 1 of 1954, which has given rise to this second appeal, was filed by the appellant, Harinath, under Section 232 of the U. P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the U. P. Z. A. & L. R. Act) against the respondents, Ram Pratap Singh and Gauri Shanker, in the Court of the Assistant Collector I Class Mirzapur, for recovery of possession of plots nos. 332/2, 455, 466 and 430 situate in village Chand Lewa Kalwan Tappa, district Mirzapur.

3. Before the suit giving rise to this appeal was filed, the defendant. Ram Pratap Singh has filed a suit under Section 180 of the U. P. Tenancy Act against the plaintiff-appellant, Harinath for his ejectment from the aforesaid four plots as also plot no. 453/2 and for some damages. In that suit a compromise was arrived at between the parties on 8-12-1948, to the effect that the suit shall stand dismissed for plot no. 453/2 and Harinath would give up possession of the other four plots. The suit was decreed in terms of the compromise the same day, i. e. 8-12-1948 and in execution of the decree Ram Pratap Singh obtained possession of the other four plots on 26-5-1949.

4. In the suit under Section 232 of the U. P. Z. A. & L. R. Act, referred to above, Harinath claimed possession, as already stated earlier, on the ground that he had acquired Adhivasi rights and was entitled to reinstatement of possession in view of the provisions of Explanation I of Section 20 of the U. P. 2. A. & L. R. Act, He claimed possession of those plots which he was to give up under the compromise entered into the suit under Section 180 of the U. P. Tenancy Act, and of which he was dispossessed on 26-5-1949 in execution of the decree passed in the suit under Section 180 of the U. P. Tenancy Act. .

5. The trial court decreed the suit with costs on 14-8-1957. Ram Pratap Singh appealed against the decree passed by the lower Court. This appeal was numbered as revenue appeal No. 32 of 1957 and was allowed by Sri B. K. Sharma on 31-7-1958.

6. The submissions that were made before the trial court or the first appellate court or before us centred round Explanation I to Section 20 of the U. P. Z. A. & L. R. Act. Section 20, so far as relevant for our purposes, reads:--

'Every person who -...

(b) was recorded as occupant,

(i) of any land other than grove land or land to which Section 16 applies or land referred to in the proviso to subsection (3) of Section 27 of the U. P. Tenancy (Amendment) Act, 1947 in the khasra or khatauni of 1356F. prepared under Sections 28 and 33 respectively of the U. P. Land Revenue Act, 1901, or who was on the date immediately preceding the date of vesting entitled to regain possession thereof under Clause(c) of Sub-section (1) of Section 27 of the United Provinces Tenancy (Amendment) Act, 1947, or

(ii) of any land to which Section 16 applies, in the Khasra or Khatauni of 1356 Fasli prepared under Sections 28 and 33 respectively of the United Provinces Land Revenue Act, 1901, but who was not in possession in the year 1359F., shall unless he has become a bhumidhar of the land under Sub-section (2) of Section 18 or an asami under Clause(h) of Section 21, be called adhivasi of the land and shall, subject to the provisions of this Act, be entitled to take or retain possession thereof.

Explanation I: -- Where a person referred to in Clause(b) was evicted from the land after June 30, 1948, he shall notwithstanding anything in any order or decree, be deemed to be a person entitled to regain possession of the land..'

7. In part I of the Khatauni of the year 1356 F. all the five plots mentioned above have been entered in the name of Ram Pratap Singh as mortgagor and Ram Chandra as mortgagee. There is a note appended to the entry that 'suit no. 12 dated 7-4-1948 to expunge name of Ram Chandra, mortgagee'. In part II of the Khatauni the name of Harinath has been shown under Zaman 20. In the Khasra for 1356 F. Harinath has been shown as sub-tenant. In the remarks column he is recorded Kabiz (qa) in respect of plot no. 430 alone. The case of Harinath is that he must be treated to have been evicted within the meaning of Explanation I to Section 20 of the U. P. Z. A. & L. R. Act.

8. The submission on behalf of Ram Pratap Singh, however, is that the eviction involves forcible or compulsive dispossession and inasmuch as in the compromise entered into by the parties in the Section 180 of the U. P. Tenancy Act suit, Harinath had agreed to give up possession of the four plots, he cannot be treated to have been evicted within the meaning of that word occurring in Explanation I to Section 20 of the U. P. Z. A. & L. R. Act. Mr. G. P. Singh, who has appeared for Ram Pratap Singh has placed reliance upon several cases in support of the contention that a compromise decree is nothing, but an agreement between the parties to which is superadded the command of the court and for that reason even though the suit under Section 180 of the U. P. Tenancy Act was decreed in terms of the compromise and in execution of that decree Ram Pratap Singh obtained possession of the plots in dispute (four plots) on 26-5-1949, it must be held that Harinath was not evicted from those plots but had willingly surrendered them to Ram Pratap Singh.

It is true that a compromise decree is an agreement between the parties to which the command of the court is super-added, but that does not mean that the decree passed under Section 180 of the U. P. Tenancy Act for the ejectment of Harinath was not a decree or was not one for ejectment or eviction. Though on the basis of the compromise, a decree under Section 180 of the U. P. Tenancy Act had come into existence, the decree clearly was for ejectment and it was in execution of that decree that Ram Pratap Singh obtained possession of the four disputed plots. It is, therefore, difficult to see how it can be said that Harinath was not evicted from the plots in dispute in execution of a decree for his ejectment. The decree passed by the court under Section 180 of the U. P. Tenancy Act cannot be ignored and the circumstance that it was a decree passed on a compromise does not make it any the less a decree for ejectment of Hari-nath from the four disputed plots. 'Decree' has been defined in Sec. 2(2), C. P. C., as follows:--

' 'Decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final . . . .'

Can it be contended that the decree passed in Section 180 of the U. P. Tenancy Act suit was not 'the formal expression of an adjudication' or can it even be urged that it did not 'conclusively determine the rights of the parties with regard to all .....matters in controversy hi the suit .....?'

9. For the enforcement of an agreement simpliciter, the only remedy for a party is to file a suit for specific performance of the contract, but can such a suit lie in respect of a decree which is passed on the basis of a compromise between the parties. Clearly for the enforcement of the terms of the compromise contained in a decree, the remedy is not to bring a suit for specific performance of the contract, but to execute the decree. The compromise stands merged in the decree and cannot have a separate existence or identity from the decree itself. Consequently once a decree for ejectment is passed, though in terms of a compromise and not after contest, it is nonetheless a decree and does not remain a mere compromise. The law does not recognise any distinction between a consent or compromise decree and one passed after contest as regards effectiveness or the force behind it.

10. It is well settled that a judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the Court exercises its mind on a contested case. See Sailendra Narayan Bhanja Deo v. State of Orissa : [1956]1SCR72 .

11. Clearly and admittedly a suit under Section 180 of the U. P. Tenancy Act is a suit for ejectment. Equally clearly and admittedly a decree in such a suit is a decree for ejectment. The only difference between a consent decree or a decree on a compromise on the one hand and a decree after contest on the other is that in the former case the suit is decided and a decree passed on the basis of a compromise or consent, in the latter case it is passed after the court has on the basis of the evidence recorded its findings. In both the cases there is an adjudication by the court conclusively determining the rights of the parties in respect of the matter in dispute. The decree in first case is as effective as the decree in the second case.

12. Clearly and admittedly Ram Pra-tap Singh obtained possession of the four plots on 26-5-1949 by executing the decree that was passed under Section 180 of the U. P. Tenancy Act case. Harinath did not surrender the plots immediately after the compromise on 8-12-1948.

13. Mr. G. P. Singh has cited In the matter of a Plaint between Emery and Barnett, (1858) 140 ER 1149, Upton v. Townend, (1855) 104 R. R. 562, and Newby v. Sharpe, (1878) 8 Ch. D. 39 for the proposition that eviction involves compulsive dispossession. He has also relied upon Section 1213 at page 552 of Hals-bury's Laws of England, third Edition Volume 23, which reads:--

'1213. Eviction under title paramount: Similarly, in order to constitute an eviction by a person claiming under title paramount, it is not necessary that the tenant should be put out of possession, or that ejectment should be brought. A threat of eviction is sufficient, and if the tenant, in consequence of such threat, attorns to the claimant, he can set this up as an eviction by way of defence to an action for rent, subject to his proving the evictor's title. There is no eviction, however, if the tenant gives up possession voluntarily.'

14. True, the word 'eviction' is generally used in the sense of compulsive dispossession, but can it be denied that the element of compulsion did exist when the decree for ejectment was executed and Harinath was dispossessed from the plots covered by the decree? Was Harinath free to ignore the decree? Could he have avoided it?

15. The compromise decree passed under Section 180 of the U. P. Tenancy Act case was an adjudication. It had, like all other decrees behind it, the authority of the judicial power of the State. It was a command of the court, sealed and signed. Consequently, the element of compulsion was clearly involved in the execution of the decree and in the dispossession of Harinath from the four plots. In execution of that decree the compulsive aspect may be latent and not visible yet its existence cannot be doubted or denied.

16. Mr. Singh has relied upon an un-reported decision of Mootham, C. J. and Mukerji, J. dated 22-7-1958 in Civil Miscellaneous Writ No. 2023 of 1958 (All) and a single Judge decision of Dhavan, J. in Saqur Sai v. Ram Charittar Singh, 1963 R. D. 151 (All). The first case is of voluntary surrender. In that case no decree for ejectment was passed and possession had not been obtained in execution of that decree. In the second case, Dhavan, J. relied upon the following passage occurring in the first case:--

'a tenant who voluntarily surrenders all his interest in a plot of land cannot subseq uently claim rights therein to which he might have been entitled had there been no surrender.'

In this case the findings of facts recorded by both the Courts were that the plaintiff had voluntarily surrendered the land. His (plaintiff's) case that he was ejected was rejected by both the courts below. These cases, therefore, clearly being of voluntarily surrender are distinguishable from the case before us.

17. In Ramanatha Iyer's Law Lexicon of British India, the following meaning is given to the word 'eviction' :--

'In its original and technical meaning it is an expulsion by the assertion of a paramount title, and by process of law; a recovery of land etc., by form of law; a lawful dispossession by judgment of law; an ouster. Act of the landlord with the intention and having the effect of depriving the tenant of the enjoyment of the demised premises; the term is now popularly applied to every class of expulsion.'

In Wharton's Law Lexicon the meaning given to the word 'eviction' is 'dispossession; also a recovery of land etc., by form of law.' In Stroud's Judicial Dictionary, the meaning given to the word is to the effect that 'eviction' is not confined to mere expulsion as it was formerly understood but 'something of a more permanent character done by the landlord with the intention of depriving the tenant of the enjoyment of the whole or part of the demised premises.' In Murray's Dictionary, the meaning given to the word is to recover property from anyone by judicial process.

18. In the present case the judicial process was set in motion by Ram Pratap Singh against Harinath by filing a suit under Section 180 of the U. P. Tenancy Act. It was continued when a decree was obtained for ejectment of Harinath though on the basis of a compromise. The judicial process ultimately culminated in the execution of the decree and dispossession of Harinath from the four plots. I am, therefore, unable to accept that Harinath was not evicted from the four plots.

19. I would also like to point out that there is good authority for the proposition that the word 'eviction' 'is not confined in its meaning to the act of expulsion, but may, in its more modern sense, extend so as to cover the whole process by which recovery of property is obtained at law; in that sense, an eviction may be said to commence when the landlord files his suit.' See Ram Labhaya v. Dhani Ram, AIR 1947 Lah 296.

20. Mr. Singh has placed reliance upon Lievesley v. Gilmore, (1866) 1 C. P. 570. That is a case of arbitration. Its facts are wholly different from the facts before us. The case is clearly distinguishable.

21. Reliance has also been placed upon Mohiuddin v. Mt Kashmiro Bibi : AIR1933All252 . That case is an authority for the proposition that it is open to a court executing a compromise decree to go behind it so as to interfere with a stipulation by way of penalty contained in the compromise. The question before us is a different one. This case is also clearly distinguishable.

22. It has been contended that Harinath surrendered possession of the four disputed plots of his own free will because he entered into the compromise willingly. I am of the opinion that even this argument is not correct, Harinath entered into the compromise only after the suit under Section 180 of the U. P. Tenancy Act had been filed against him. By the compromise he saved one plot to himself and agreed to leave the other four. It is thus clear that there was the pressure of the suit on him and the compromise was in the nature of an adjustment in the suit. Inasmuch as there was a pressure of the suit, it cannot be said that there was a spontaneous and willing surrender of the plots. But, to my mind, the question that Harinath entered into a compromise willingly is immaterial because the compromise was followed by a decree, which was put in execution and Harinath was dispossessed through the process of law under the compulsive force of the decree. I am satisfied that the case of Harinath clearly falls under Explanation I to Section 20 of the U. P. Z. A. & L. R. Act.

23. I find no merits in the submission of Mr. G. P. Singh that Harinath is not entitled to the benefit of Section 20(b) of the U. P. Z. A. & L. R. Act because his possession over the disputed plots was on behalf of Ram Pratap Singh. It is contended that inasmuch as the suit under Section 180 of the U. P. Tenancy Act was filed on 26-10-1948 and the compromise was arrived at between the parties on 8-12-1948 on which date the suit was decreed in terms of the compromise, possession of Harinath after 26-10-1948 or at any rate after 8-12-1948 must be held to be permissive and on behalf of Ram Pratap Singh.

I am unable to agree. Harinath did not enter into possession of the disputed plots on behalf of or with the permission of Ram Pratap Singh. Ram Pratap Singh himself treated Harinath to be a trespasser and filed a suit under Section 180 of the U. P. Tenancy Act. Harinath did not leave possession of the plots immediately after the institution of the suit or after the compromise decree. Actually he was dispossessed in execution of the decree under Section 180 of the U. P. Tenancy Act on 26-5-1949. The execution proceeded against Harinath on the footing that he was a judgment-debtor and was in occupation of the plots in dispute in derogation of the rights of the decree-holder. Ram Pratap Singh.

24. Mr. Singh next contended that inasmuch as the Khasra and Khatauni entries relating to the year 1356F. are at variance, neither of them can be relied upon and in any case the Khasra entries must prevail over the entries in the Khatauni. In part II of the Khatauni of 1356F. Harinath is shown under Zaman 20 in respect of the four plots, but in the Khasra of that year, he is shown as Kabiz only on plot no. 430, though he is shown as sub-tenant of all the disputed plots. In the first place Section 20(b)(i) provides that entry as occupant must exist either in the Khasra or in the Khatauni of 1356F. Since the entry exists in the Khatauni of that year, it complies with the provisions of Section 20(b)(i) of the U. P. Z. A. & L. R. Act. Secondly, in the Khasra also Harinath has been shown as sub-tenant of all the disputed plots.

25. It is also contended that inasmuch as the suit under Section 180 of the U. P. Tenancy Act was decreed on 8-12-1948, the entries in favour of Harinath must be deemed to have been corrected with the result that Explanations II and III to Section 20 of the U. P. Z. A. & L. R. Act would apply. Explanation III provides that 'an entry shall be deemed to have been corrected before the date of vesting if an order or decree of a competent court requiring any correction in records had been made before the said date and had become final even though the correction may not have been incorporated in the records'. In the first place there is no order or decree of a competent court requiring any correction in the records. The compromise decree does not say that correction of papers shall be made. Secondly, Explanation I would exclude the operation of Explanations II and III in this case. Explanation I clearly provides that notwithstanding anything in any order or decree a person evicted from the land after 30th June 1948, the person entered as occupant, shall be entitled to regain possession. Harinath was evicted on 26-5-1949 which is clearly after the 30th of June, 1948. He is, therefore, entitled to obtain reinstatement over the land in dispute.

26. Learned counsel for Harinath placed reliance upon Dwarika Prasad v. Board of Revenue. 1957 All LJ 503. For the reasons given in this judgment, I agree with the view taken in this case.

27. In Amba Prasad v. Mohaboob Ali Shah : [1964]7SCR800 it was held that Section 20 eliminates inquiring into disputed possession by accepting the record in the Khasra or Khatauni of 1356F. and that if a person was evicted after June 30, 1948, he is entitled to regain possession in spite of any order or decree to the contrary. I find considerable support for my view from this decision.

28. The learned Additional Civil Judge did not give any importance to the circumstance that Harinath was dispossessed from the plots in dispute in execution of the decree passed under Section 180 of the U. P. Tenancy Act He has dismissed the circumstance in the following words:--

'The mere fact that the present defendant took formal delivery of possession through court, will not amount to forcible dispossession of the present plaintiff. When a compromise decree was passed, it was but incumbent on the defendants to take formal delivery of possession through the court.'

The learned Additional Civil Judge failed to appreciate that if it was a case of surrender simpliciter, Harinath would have given up possession of the plots in dispute on 8-12-1948, i. e., the day on which the compromise was entered into and the compromise decree passed or soon thereafter. He did not do so, but was evicted in execution of the decree. The learned Additional Civil Judge also failed to see that the decree and its execution had a compulsive aspect.

29. For the reasons mentioned above I am of the opinion that Harinath is entitled to reinstatement over the plots in dispute.

30. On the question whether Ram Pratap Singh was a disabled person within the meaning of that term as occurring in Section 157 of the U. P. Z. A. & L. R. Act, the learned Additional Civil Judge has recorded a finding that he is not a disabled person. That is a finding of fact. It has not been challenged before us.

31. I, therefore, allow the appeal, set aside the decree of the learned Additional Civil Judge dated 31-7-1958 and restore that of the Assistant Collector I Class dated 14-8-1957. The respondent. Ram Pratap Singh, shall pay the appellant, Harinath, the costs of this appeal.

R.S. Pathak, J.

32. I agree.

S.N. Singh, J.

33. I have read the judgment of brother Jagdish Sahai and I agree that this appeal should be allowed.

34. It is not necessary to state the facts of the case which have already been given in the judgment of brother Sahai.

35. This case was listed before me and finding an apparent conflict between two Division Bench cases of this Court in the case of 1957 All LJ 593 and Civil Misc. Writ No. 2023 of 1958 (All) Jian v. Board of Revenue, I referred the case to a larger Bench. When this case was listed before a Division Bench, the Division Bench considered it proper to refer the case to a Full Bench. This is how the case came before us.

36. The precise argument based on explanation I to Section 20 of the U. P. Zamindari Abolition and Land Reforms Act which has been advanced before U9 by the learned counsel for the respondent Sri G. P. Singh had been canvassed before the Division Bench case in 1957 All LJ 593 and was rightly repelled. I agree with brother Sahai when with reference to the above case he has observed as follows:--

'For the reasons given in this judgment I agree with the view taken in this case.'

Thus it necessarily follows that in order to successfully maintain an application under Section 232 of the U. P. Zamindari Abolition and Land Reforms Act the applicant need only prove that he was a recorded occupant and that he was not in possession at the date of the filing of the application and further that the application was within tune. Explanation I to Section 20 of the Act does not lay down any additional condition which an adhivasi who is covered by Section 20 (b) should comply with, in order to get relief under Section 232 of the Act. The explanation does not control the Section. It simply explains it by saying that even if an adhivasi is evicted from the land after June 30, 1948 he shall notwithstanding the decree would be deemed to be entitled to regain possession of the land.

37. The explanation cannot be interpreted to mean that a person claiming relief under Section 232 of the Act has to prove further that there was forcible dispossession. The contention of the respondent that the applicant in order to get relief must prove eviction cannot be accepted to be correct.

38. Subsequent to the decision in 1957 All LJ 593 a similar question arose before another Division Bench in Civil Misc. Writ No. 2023 of 1958, D/- 22-7-1958 (All) in which it was held that 'a tenant who voluntarily surrenders all his interest in a plot of land cannot subsequently claim rights therein to which he might have been entitled had there been no surrender.'

39. This case did not notice the decision in Dwarika Prasad's case, 1957 All LJ 593 nor did it notice the relevant Sections on the point.

40. Again this very point was argued before a learned Single Judge and before the learned Single Judge the unreported decision in Civil Misc. Writ No. 2023 of 1958, D/- 22-7-1958 (All) referred to above was cited. The decision in 1957 All LJ 593 was not brought to his notice with the result that relying on the unreported decision in Civil Misc. Writ No. 2023 of 1958, D/- 22-7-1958 (All) he decided the case accordingly, vide 1963 B. D. 151 (All).

41. This point again was agitated before a learned Single Judge of this Court in Civil Misc. Writ No. 2502 of 1958 (All) and the learned Single Judge having noticed a conflict between the two Division Bench decisions referred to above, i. e., 1957 All LJ 593 and the unreported decision in Civil Misc. Writ No. 2023 of 1958, D/- 22-7-1958 (All) referred it to a larger Bench and the case came before a Division Bench consisting of Hon. V. G. Oak and Hon. Satish Chandra, JJ., who considered the point involved in the case and preferred to follow the decision reported in the case of 1957 All LJ 593 and dissented from the view taken in the case of Civil Misc. Writ No. 2023 of 1958, D/- 22-7-1958 (All). In this case a distinction was drawn between a surrender made before the passing of the U. P. Zamindari Abolition and Land Reforms Act and a surrender made after the passing of that Act. It was rightly pointed out that a right which had not come into existence before the passing of the U. P. Zamindari Abolition and Land Reforms Act could not be surrendered, and if a surrender was made after the passing of the U. P. Zamindari Abolition and Land Reforms Act that would affect the right of an adhivasi.

42. In that case 32 plots were in dispute which were divided in two groups: the first group consisted of 15 plots in respect of which the petitioners had executed a surrender in favour of the Zamindar and so far the remaining 17 plots were concerned they were ejected. The dispute before the Division Bench was in respect of the 15 plots that had been surrendered in favour of the Zamindar. The Division Bench held as follows:

'If an Adhivasi surrenders his rights after the date of vesting, that would be a good ground for not recognising the Adhivasi rights after such surrender. But bearing in mind that the Adhivasi rights did not accrue till 1-7-1952, the question of surrender of such rights before that date hardly arises. In the present case, it is common ground that the surrender in question took place before the date of vesting. In such a case it would be open for a party to establish Adhivasi rights in spite of the surrender prior to 1-7-1952. On this point, we are in agreement with the view taken by the first Bench in Dwarika Prasad's case, 1957 All LJ 593' vide Jhamman Lal v. Deputy Custodian General : AIR1965All253 .

43. Thus it will appear that in spite of surrender the Division Bench held that recorded occupant although he had executed a surrender could claim recovery of possession. I am in respectful agreement with the view expressed in this Division Bench case. For maintaining an application under Section 232 of the U. P. Zamindari Abolition and Land Reforms Act it is immaterial whether the plaintiff has lost his possession by forcible dispossession or by voluntarily giving up of possession before the date of vesting.

44. In view of what has been saidabove and for the reasons given in thejudgment of brother Sahai, I would allowthe appeal, set aside the decree of thelearned Civil Judge dated 31st July 1958and restore that of the Assistant Collector Ist Class dated 14th August 1957. Theappellant Harinath will be entitled tohis costs of this appeal.


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