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Salik Ram Adya Prasad Vs. Ram Lakhan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 2593 of 1970
Judge
Reported inAIR1973All107
ActsLimitation Act, 1908 - Sections 14 and 14(1); Uttar Pradesh Tenancy Act - Sections 160 and 180; Uttar Pradesh Zamindari Abolition and Land Reforms Act - Sections 202; Code of Civil Procedure (CPC) , 1908 - Sections 20
AppellantSalik Ram Adya Prasad
RespondentRam Lakhan and ors.
Appellant AdvocateV.D. Ojha, Adv.
Respondent AdvocateStanding Counsel
DispositionPetition allowed
Excerpt:
.....clearly erroneous. 8. in this view of the matter, even if kalidin prosecuted the earlier proceedings in good faith, the plaintiff cannot derive any advantage from the provisions of section 14 (1) of the limitation act, 1908. i also feel that the view taken by the board of revenue that the suit, under sections 180/183 of the tenancy act, filed by kalidin, failed because of defect of jurisdiction or for some other cause of like nature, is also not correct. the board clearly erred in applying the provisions of section 14 of the limitation act to the facts of this case......ram lakhan and jagdish prasad filed a suit under section 202 of the u. p. zamindari abolition and land reforms act for the ejectment of petitionersalik ram from plot no. 1386 village mahokhari, on 21st september, 1961. according to the plaint, one bindeshwari was hereditary tenant of a number of plots including the plot in dispute. on his death, his widow smt. lakhpatti inherited these plots. she got the plot in dispute settled with the petitioner salikram. kalidin, father of the two plaintiffs, claiming to be the reversioner of bindeshwari, filed a suit under section 183 of the u. p. tenancy act which was decreed by the trial court, but in appeal it was held that the name of smt. lakhpatti should continue to be recorded as tenant during her lifetime. thereafter, smt. lakhpatti made an.....
Judgment:
ORDER

H.N. Seth, J.

1. By this petition under Article 226 of the Constitution, petitioner Salik Ram seeks to get the decree for his ejectment dated 30th November, 1964 passed by the Assistant Collector 1st Class, Pratapgarh and confirmed by the appellate order dated 24th September, 1965 and second appellate order dated 25th of April, 1970 quashed.

2. Respondents Ram Lakhan and Jagdish Prasad filed a suit under Section 202 of the U. P. Zamindari Abolition and Land Reforms Act for the ejectment of petitionerSalik Ram from plot No. 1386 village Mahokhari, on 21st September, 1961. According to the plaint, one Bindeshwari was hereditary tenant of a number of plots including the plot in dispute. On his death, his widow Smt. Lakhpatti inherited these plots. She got the plot in dispute settled with the petitioner Salikram. Kalidin, father of the two plaintiffs, claiming to be the reversioner of Bindeshwari, filed a suit under Section 183 of the U. P. Tenancy Act which was decreed by the trial Court, but in appeal it was held that the name of Smt. Lakhpatti should continue to be recorded as tenant during her lifetime. Thereafter, Smt. Lakhpatti made an attempt to get Salik Ram declared Bhumidhar of the plot in dispute by getting ten times of the rent deposited. She also managed to put Salik Ram in possession over the plot. Kalidin then filed another suit, under Sections 180/183 of the U. P. Tenancy Act, for the ejectment of Salik Ram. The matter went up to the Board of Revenue which held that as Salik Ram was in cultivatory possession over the plot in 1359 Fash', became an Asami and therefore the plaintiff could not eject him in a suit under Sections 180/183 of the U. P. Tenancy Act. Smt. Lakhpatti died in January, 1954 and was succeeded by Kalidin. On Kalidin's death, rights in the plots devolved upon the two plaintiffs. They asked Salik Ram to Vacate the plot by the end of June, 1961, but Salik Ram refused to comply with their request The plaintiffs therefore filed the suit under Section 202 of the U. P. Zamindari Abolition and Land Reforms Act for the ejectment of Salik Ram.

3. Salik Ram contested the suit inter alia on the ground that Smt Lakhpatti had surrendered the plot in dispute to the Zamindar who executed a Patta in his favour on 8th of September, 1945. He has been in possession over the plot ever since then in his own rights. Further, he acquired Bhumidhari Sanad on 20th March, 1950 and claimed that he was Bhumidhar of the plot in dispute. In any case, the suit for his ejectment as Asami was barred by time.

4. On the question of limitation, it was urged before the trial Court that Smt. Lakhpatti died on 5th of January, 1954 and therefore a suit for ejectment of the petitioner, as an Asami, could be filed only up-to 30th June, 1957. The suit having been filed on 21st September, 1961, was hopelessly barred by time and that the defendant acquired Sirdari rights under Section 204 of the U. P. Zamindari Abolition and Land Reforms Act. This plea was rejected by the trial Court on the ground that plaintiff's father had already filed a suit under Sections 180/183 of the U. P. Tenancy Act for the ejectment of the petitioner. This suit was pending in January, 1954 when Smt. Lakhpatti died. It was ultimately dismissed by the Board of Revenue and an application for review of Board's Judgment was rejected on 20th February, 1961. It held that the plaintiff was entitled to extension of timeunder Section 14 of the Limitation Act, and the suit was not barred by time. On merits it held that the defendant did not acquire any right on the basis of the patta dated 8th of September, 1945 but his position was merely that of an Asami under Section 21 (1) (h) of the U. P. Zamindari Abolition and Land Reforms Act, In the result the suit for petitioner's ejectment was decreed. Decree passed by the trial Court was affirmed both by the Additional Commissioner and the Board of Revenue. An application for review of Board's order also failed. Salik Ram has filed the present petition praying that the decree for his ejectment passed by the Assistant Commissioner and confirmed by the Additional Commissioner and the Board of Revenue be quashed.

5. Main ground urged in this petition is that the view taken by the three revenue courts that the plaintiffs were entitled to the benefit of the provisions of Section 14 of the Limitation Act is, on the face of it, erroneous. Since no suit for ejectment of the petitioner, who was an Asami, was filed under Section 202 of the U. P. Zamindari Abolition and Land Reforms Act within a period of three years of Lakhpatti's death, he acquired Sirdari rights under Section 204 of the Act and was not liable to be ejected in a suit under Section 202 of the U. P. Zamindari Abolition and Land Reforms Act.

6. Relevant portion of Section 14 (1) of the Indian Limitation Act, 1908 runs thus:--

'In computing the period of limitation prescribed for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or in a court of appeal, against the defendant, shall be excluded where the proceeding is founded upon the cause of action and is prosecuted in good faith in a court which from defect of jurisdiction or other cause of a like nature is unable to entertain it.'

In order to claim benefit under this section the plaintiff had to show-

(1) that in respect of the same cause of action the plaintiff had initiated some other proceeding in another court.

(2) These proceedings were prosecuted by him in good faith, and

(3) No relief in these proceedings could be granted as there was defect of jurisdiction in that court or for some other cause of like nature.

According to the Board of Revenue, Smt. Lakhpatti who was in possession over the plot in dispute as widow of Bindeshwari, had been making persistent efforts to get the title of Bindeshwari's reversioner Kalidin dislodged. As soon as Lakhpatti got a patta executed in favour of SaJik Ram, Kalidin instituted a suit under Section 183 of the U. P. Tenancy Act which was dismissed on the finding that Lakhpatti continued to be a hereditary tenant of the plot. Again when Lakhpatti connived in Salik Ram's obtaining Bhumidhari Sanad, Kalidin filed yet another suit under Sections 180/183 of the U. P. Tenancy Act. Both these suits were filed during the lifetime of Lakhpatti and before the U. P. Zamindari Abolition and Land Reforms Act came into force. U. P. Tenancy Act stood repealed by the U. P. Zamindari Abolition and Land Reforms Act Consequently the cause of action under the previous Act could still subsist in the nature of a fresh suit under the U. P. Zamindari Abolition and Land Reforms Act, unless the matter had been finally decided between the parties earlier. Cause of action means every fact which if traversed would be necessary to be proved by the plaintiff in order to support his claim to ejectment. In the instant case plaintiff had to prove every thing including the relationship to Smt. Lakhpatti, their father's right as a reversioner to Smt Lakhpatti and the litigation which their father had entered into to prevent Smt. Lakhpatti from settling the land with Salik Ram. These facts indicated continuity of purpose and therefore it could not be said that the cause of action in respect of the present case was different from the cause of action for the suit under Sections 180/183 filed by Kalidin. The Board further affirmed the finding of the two courts below that the litigation initiated by Kalidin was bona fide and as such the plaintiff was entitled to the benefit of Section 14 of the Limitation Act.

7. In my opinion the view taken by the Board of Revenue that the present suit had been filed in respect of the same cause of action, in respect of which Kalidin had filed a suit for ejectment under Sections 180/ 183, U. P. Tenancy Act is clearly erroneous. It is true that cause of action means every fact which, if traversed, it would be necessary for the plaintiff to prove, in order to support bis right to the judgment of the Court. However, it is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It is also clear that the expression cause of action, does not comprise every piece of evidence which is necessary to prove each fact but it merely means every fact which is necessary to be proved to entitle the plaintiff to a decree. In other words, the expression, cause of action, means bundle of essential facts which it is necessary for the plaintiff to prove before he can succeed in a suit. It refers entirely to the grounds set forth in the plaint as cause of action. i.e. the media upon which the plaintiff asks the court to arrive at a conclusion in his favour. Section 180 of the U. P. Tenancy Act makes provision for ejectment of a person, taking or retaining possession over a plot of land without the consent of the per-son entitled to admit him to occupy such plot, otherwise than in accordance with the provisions of law for the time being in force. Essential facts that plaintiffs had to allege in a suit under Section 180 were that they were entitled to admit persons to occupyland in dispute and that the defendants had taken or retained its possession without their consent, and otherwise than in accordance with the provisions of law. In a suit under Section 202 of the U. P. Zamindari Abolition and Land Reforms Act, the plaintiffs have to admit that the defendant is in possession over the plot as an Asami i.e. he is in possession in accordance with law. The plaintiffs who are landlords are no more interested in permitting him to occupy it any more. It will thus be seen that the essential facts which the plaintiffs had to prove, or the media upon which they asked the court to arrive at a conclusion in their favour in the suit under Section 180 of the U. P. Tenancy Act, are quite different from those which have to be established in a suit under Section 202 of the U. P. Zamindari Abolition and Land Reforms Act. It is immaterial that object underlying the two suits to eject the defendant from the plots in dispute. It is true that in order to succeed in a suit under Section 202 of the U. P. Zamindari Abolition and Land Reforms Act, the plaintiffs have to establish their title by proving that they are the reversioners of Bindeshwari and are entitled to the property after the death of Lakhpatti, but then it was not at all necessary for them to show that they or their ancestors all through resisted Lakhpatt's attempt to settle the land with Salik. Ram. The causes of action for the suits under Section 180, U. P. Tenancy Act and Section 202 of the U. P. Zamindari Abolition and Land Reforms Act are, therefore, quite different.

8. In this view of the matter, even if Kalidin prosecuted the earlier proceedings in good faith, the plaintiff cannot derive any advantage from the provisions of Section 14 (1) of the Limitation Act, 1908. I also feel that the view taken by the Board of Revenue that the suit, under Sections 180/183 of the Tenancy Act, filed by Kalidin, failed because of defect of jurisdiction or for some other cause of like nature, is also not correct. The Board clearly erred in applying the provisions of Section 14 of the Limitation Act to the facts of this case.

9. Concurrent finding of the Revenue Courts is that Salik Ram became an Asami under Section 21 (1) (h) of the U. P. Zamindari Abolition and Land Reforms Act as Smt. Lakhoatti, the landlord was a widow. Period of limitation prescribed for ejectment of such an asami is three years from the date when the widow dies. If no suit is filed within that period, the Asami acquires Sirdari rights under Section 204 of the Act and he ceases to be liable to ejectment under Section 202 of the Act. It is not disputed that Smt. Lakhpatti died on 5th of January, 1954. The present suit was filed in the year 1961. Salik Ram acquired sirdari rights in the year 1957, and, as such, he could not be ejected under Section 202 of the Act The three impugned judgments therefore suffer from an apparent error of law and are liable to be quashed.

10. The petition succeeds and is allowed. Judgment of the Assistant Collector dated 30th November, 1964 decreeing plaintiff's suit for ejectment is confirmed by the judgments of the Additional Commissioner and the Board of Revenue is quashed. In the circumstances, I direct the parties to bear their own costs of this writ petition.


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