R.L. Gulati, J.
1. This is a petition under Article 226 of the Constitution.
2. The dispute relates to an agricultural land measuring about 7 bighas comprised in various plots as given in Para 1 of the writ petition. The petitioners allege that they have purchased from one Shiv Pujan his 1/4th share in the land in dispute. Shiv Pujan and his uncle Purshotam together owned one-half share of which one-fourth share belonged to Shiv Pujan and the other one-fourth to Purshotam. The land was recorded in the name of Purshotam only. Purshotam deposited ten times of the land revenue and acquired Bhumidhari Sanad. He sold the entire share to Sarju Dubey on August 6, 1966. Thereafter Shiv Pujan sold his one-fourth share to the petitioners.
The petitioners filed a suit under Sec-lien 229-B of the U. P. Zamindari Abolition and Land Reforms Act for a declaration that they had acquired one-fourth share in the land in dispute. The suit was decreed by the trial court as well as by the first appellate court. However, the Board of Revenue on the second appeal filed by Sarju Dube has reversed the decree and has dismissed the petitioners' suit by an order dated 16-10-1970. This order has been challenged in this petition.
3. The Board has held that Shiv Pujan never became a Bhumidhar and, as such, he had no right to sell his one-fourth share in favour of the petitioners. After a careful examination of the relevant provisions of the law and on a consideration of the facts and the circumstances of the case, I am satisfied that the view taken by the Board is correct.
4. Admittedly Shiv Pujan was an unrecorded co-tenant with his uncle Purshotam. 'He was a hereditary tenant. A hereditary tenant is entitled to acquire the privileges of a bhumidhar under Section 3 of the Agricultural Tenants (Acquisition of Privileges) Act, (Act No. X of 1949). He has to pay ten times of the land revenue and make an application to the Assistant Collector for a declaration of Bhumidhari. This provision of course, applies to a recorded tenant. The procedure for acquisition by an unrecorded tenant of bhumidhari privileges is contained in Sections 3-B and 3-C of the aforesaid Act. According to the former provision, an unrecorded co-tenant may apply for bhumidhari rights under Section 3 in respect of the whole holding or his share and if the recorded tenant gives his consent, the Assistant Collector allows such application.
Under Section 3-C, a provision has been made for a joint declaration of bhumidhari rights in favour of the recorded and un-recorded tenants. Thus it is clear that an un-recorded tenant can acquire bhumidhari rights either by himself or jointly with his co-tenant, provided he takes steps as contemplated by Section 3-B or Section 3-C of Act No. X of 1949. There is no other manner in which an unrecorded tenant can acquire bhumidhari rights.
5. Sub-section (2) of Section 3 permits the payment of premium as required by Section 3 by any one of the tenants on be half of other tenants in the case of a holding held jointly by two or more tenants. But that does not mean that if a tenant makes payment in respect of the entire holding, his co-tenant automatically becomes bhumidhar. In my opinion an unrecorded co-tenant becomes a bhumidhar only if he takes steps under Section 3-B or Section 3-C of Act X of 1949 and acquires a bhumidhari Sanad either in his own name or in the names jointly of himself and the other co-tenants. The mere payment of ten times of the land revenue does not ipso facto confer upon him the status of a bhumidhar. This view finds support from Sections 7-A and 7-B of the aforesaid Act.
Under the former section no person by virtue of any declaration made under Section 6 is entitled to any larger share in the holding than to which he is otherwise entitled so that even if a co-tenant pays or obtains a declaration in respect of the entire holding, he does not become a bhumidhar in respect of the share belonging to his co-tenant. Under the latter section (7-B) any person who has paid any amount in excess of what he is required to pay under Section 3 is entitled to its refund. Applying these provisions to the facts of the present case, it is clear that Purshotam did not become the bhumidhar of the entire share of one-half even if he had paid for and obtained a declaration in respect of it. The interest of Shiv Pujan remained intact, but he did not become the bhumidhar because he never obtained a Bhumidhari Sanad. Purshotam at best can claim a refund of the excess amount paid by him, pertaining to the share of Shiv Pujan.
6. The next question arises as to what is the position of Shiv Pujan. In my opinion, Shiv Pujan remained a sirdar and would remain so until he acquires the bhumidhari Sanad. This position is not inconsistent with any other legal provision. In fact, Section 138 of the U. P. Zamindari Abolition and Land Reforms Act suggests that such a position is contemplated under the law. Sub-section (1) of Section 138 reads:
'Where any person has become a bhumidhar, whether under Section 18 or Section 134 in respect of share of a holding held by him jointly with other or others who are sirdars, the Bhumidhar may sue for partition of his share in the holding and upon partition he shall be deemed to be bhumidhar of the land allotted to his share.' Thus Purshotam became a bhumidhar of his share and he could have his share partitioned from the land belonging to his nephew, who remained a sirdar. The net result, therefore, is that Shiv Pujan was only a sirdar of his share in the land in dispute and could not transfer the same by sale in view of the prohibition contained in Section 153 of the U. P. Zamindari Abolition and Land Reforms Act, according to which sirdari interest is not transferable. That being the position, the sale-deed executed by Shiv Pujnn in favour of the petitioners was void and could not be given effect to.
7. The learned counsel for the petitioners submits that even if the view taken by the first appellate court is not strictly right, the order of the Board of Revenue should be set aside because it will lead to injustice. According to him, the petitioners are bona fide purchasers of the land and should not be deprived of the property for which they have paid full price. I see no force in this contention. In the first place, justice has to be done according to law, as has been held by this Court in the case of Jaswant Singh v. State of U. P., 1971 All LJ 748. If the law does not permit the alienation of sirdari interest, the same cannot be permitted on the ground that someone has paid full value for acquiring such a right under a mistake.
Secondly, I am not satisfied that the petitioners were the bona fide purchasers, They purported to purchase the interest of a person who possessed no bhumidhari Sanad, nor was his name recorded in the record of rights. Obviously, they purchased litigation on the off chance that they might succeed on' some technical ground. Sarju Dube, on the other hand, can be said to be a bona fide purchaser inasmuch as he purchased from a person who held bhumidhari Sanad. If the order of the Board of Revenue is set aside, injustice is likely to cause to Sarju Dube. In these circumstances, I see absolutely no merit in the contentions of the learned counsel for the petitioners.
8. For the reasons stated above, this petition fails and is dismissed, but in the circumstances of the case, I make no order as to costs.