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Abdul Wahid Khan Habibullah Khan and ors. Vs. Deputy Director of Consolidation, Jaunpur and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 532 of 1961
Judge
Reported inAIR1968All402
ActsTenancy Law; Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951 - Sections 209 and 210; Uttar Pradesh Consolidation of Holdings Act, 1954 - Sections 49; Code of Civil Procedure (CPC) , 190 - Sections 9
AppellantAbdul Wahid Khan Habibullah Khan and ors.
RespondentDeputy Director of Consolidation, Jaunpur and ors.
Appellant AdvocateBashir Ahmad, Adv.
Respondent AdvocateLalji Sinha, Adv.
DispositionPetition dismissed
Excerpt:
property - ejectment- sections 209 and 210 of u.p. zamindari abolition and land reforms act, 1951 - suit under section 209 for ejectment is not filed - consequences mentioned in section 210 follow - section does not take notice of the grounds why the suit was not filed. - - 210. failure to file suit under section 209 or to execute decree obtained thereunder. we would also like to point out that in matters like these the legislature in enacting u. 10. it is well settled that the exclusion of the jurisdiction of the civil and revenue courts cannot be assumed. we are also satisfied that the learned deputy director of consolidation was right in not interfering with the order of the settlement officer (consolidation). 24. the result is that we dismiss the writ petition with costs......in it. lautu filed an appeal against the order of the consolidation officer before the settlement officer consolidation, jaunpur. the settlement officer, consolidation, by means of the order dated 4-6-1960 allowed the appeal and held that lautu had become a sirdar by virtue of the provisions of section 210 of the u. p. zamindari abolition and land reforms act (hereinafter referred to as the u. p. z. a. & l. r. act). in deciding as stated above, the settlement officer, consolidation placed reliance on the order dated 8-10-1957 passed by the assistant consolidation officer under section 8(3) of the act to the effect that lautu was in possession of the plot in dispute for two years next preceding the proceedings under section 8(3) of the act. the petitioners then filed a revision.....
Judgment:

Jagdish Sahai, J.

1. This writ petition has come to us for decision on I reference made by N. U. Beg, C. J. and S. N. Dwivedi, J. By means of the writ petition it is prayed that the orders passed by the Settlement Officer, Consolidation dated 4-6-1960 and the one passed by the Deputy Director, Consolidation dated 2-11-1960 be quashed. There is also a prayer for the issue of any other writ, order or direction as this Court may, in the circumstances of the case, deem it fit and proper to issue.

2. The dispute between the parties relates to plot No. 1261/14 area 50 decimal, situate in village Shahpur, pergana Ungli, District Jaunpur. This village came under consolidation operations some time in the year 1956. Lautu, the respondent No. 4 to this petition made an application under Section 8(3) of the U. P. Consolidation of Holdings Act (hereinafter referred to as the Act). The Assistant Consolidation Officer passed an order on 8-10-1957 holding that Lautu was in possession over the plot in dispute for two years next preceding the date of the application.

3. During the proceedings under Section 12 of the Act, Lautu filed an objection on 19-2-1960 before the Consolidation Officer, Lapri to the effect that he was the sirdar of the aforesaid plot, and the entry of the names of the petitioners, i. e., Abdul Wahid Khan, Maqbool Ahmad and Asrar Ahmad in the statement prepared under Section 11(2) of the Act was wrong.

4. The Consolidation Officer dismissed the objection of Lautu, the respondent No. 4, holding that the petitioners were the sirdars of the land in dispute and that Lautu had no interest in it. Lautu filed an appeal against the order of the Consolidation Officer before the Settlement Officer Consolidation, Jaunpur. The Settlement Officer, Consolidation, by means of the order dated 4-6-1960 allowed the appeal and held that Lautu had become a sirdar by virtue of the provisions of Section 210 of the U. P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the U. P. Z. A. & L. R. Act). In deciding as stated above, the Settlement Officer, Consolidation placed reliance on the order dated 8-10-1957 passed by the Assistant Consolidation Officer under Section 8(3) of the Act to the effect that Lautu was in possession of the plot in dispute for two years next preceding the proceedings under Section 8(3) of the Act. The petitioners then filed a revision application before the Deputy Director Consolidation. The Deputy Director, by means of his judgment dated 2-11-1960, dismissed the revision application. This led to the filing of the instant writ petition by Abdul Wahid and others.

5. Sections 209 and 210 of the U. P. Z. A. & L. R. Act are important for our purposes. Those provisions read:--

'209. Ejectment of persons occupying land without title. (1) A person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force, and--

(a) where the land forms part of the holding of a bhumidhar, sirdar or asami without the consent of such bhumidhar, sirdar or asami:

(b) where the land does not form part of the holding of a bhumidhar, sirdar or asami without the consent of the Gaon Sabha, shall be liable to ejectment on the suit, in cases referred to in clause (a) above, of the bhumidhar, sirdar or asami, concerned, and in cases referred to in clause (b) above, of the Gaon Sabha and shall also be liable to pay damages.

(2) To every suit relating to a land referred to in clause (a) of Sub-section (1) the State Government shall be impleaded as a necessary party.

210. Failure to file suit under Section 209 or to execute decree obtained thereunder. If a suit is not brought under Section 209 or a decree obtained in any such suit is not executed within the period of limitation provided for the filing of the suit or the execution of the decree, the person taking or retaining possession shall --

(i) where the land forms part of the holding of a bhumidhar or sirdar, become a sirdar thereof and the rights, title and interest of an asami, if any on such land shall be extinguished;

(ii) where the land forms part of the holding of an asami on behalf of the Gaon Sabha. becomes an asami thereof holding from year to year;

(iii) in any case to which the provisions of clause (b) of Section 209 apply become a sirdar or asami holding from year to year as if he had been admitted to the possession of the land by the Gaon Sabha.'

6. Sections 209 and 210 of the U. P. Z. A. & L. R. Act read together would be found to be analogous to Section 180(1) and 180(2) of the U. P. Tenancy Act, 1939. Admittedly, a suit under Section 210 of the U. P. Z. A. & L. R. Act was not filed by the petitioners Abdul Wahid and others. The contention on their behalf is that inasmuch as Section 49 of the Act barred suits in respect of the land falling in a village or in a unit under consolidation operations, no suit was filed by the petitioners and the provisions of Section 210 of the U. P. Z. A. & L. R. Act cannot be pressed into service against them. The words used in Section 210 are: 'If a suit is not brought under Section 209 or a decree obtained in any such suit is not executed within the period of limitation ..... ' There is nothing in this provision suggesting that if a suit could not be brought or if a decree could not be executed because of operation of law the consequences provided in the section would not ensue.

7. Mr. Bashir Ahmad, who has appeared for the petitioners before us contends that the use of the words 'If a suit is not brought or a decree ..... is not executed' presuppose that under the law a suit could be filed but was not filed or a decree could be executed, but was not executed. The argument of the learned counsel is that inasmuch as Section 49 of the Act barred the filing of a suit, there was no question of bringing one under Section 209 of the U. P. Z. A. & L. R. Act with the result that Section 210 would not apply, and no benefit would accrue to the respondents on the ground that no such suit was filed. In our view, Section 210 of the U. P. Z. A. & L. R. Act deals with a factual state, that is, if a suit is not filed for whatever reasons, the consequences mentioned in that section would follow. If what Mr. Bashir Ahmad contends is correct, then the words used by the Legislature would have been: 'If a suit, though capable of being brought is not brought under Section 209'. The Legislature has, however, not used any such words. The language used by it suggests that what the provision contemplates is the fact that a suit under Section 209 of the U. P Z. A. & L. R. Act is not filed and does not take notice of the grounds, why the suit was not filed. The elementary rule of interpretation is that 'when the text is explicit the test is conclusive' and that the basis of interpretation should be the words used by the Legislature which should be construed in their natural meaning. It is true that the Courts can sometimes add words to a provision in order to give it meaning. But this is an exception to the general rule that grammatical and normal meanings should be given to a word or set of words, and that the Courts can provide words only if the meaning of the provision as it stands is not clear. In the present case, the meaning of the words used in Section 210 is clear and do not admit of any doubt. Therefore, addition of any words in the existing language of the provision cannot be justified. We would also like to point out that in matters like these the Legislature in enacting U. P. Z. A. & L. R. Act has sometimes gone by actual condition of things irrespective of the legal rights of the parties. For example, if a person is recorded as an occupant in 1356 F. he acquires a legal status and becomes a sirdar. It is immaterial that he may have entered on that land as a trespasser or the entry may not be correct.

8. We now proceed to consider the scope of Section 49 of the Act with a view to find out if that provision bars a suit under Section 209 of the U. P. Z. A. & L. R. Act.

9. The Act does not deal with the rights of tenure-holders. Those rights are regulated exclusively by the U. P Z. A. & L. R. Act. As the Preamble of the Act will show it was passed 'To provide for the consolidation of agricultural holdings in Uttar Pradesh for the development of agriculture.' It contains five Chapters. Chapter I is headed 'Preliminary' and contains Sections 1 to 3 of the Act. Chapter II is headed as 'Revision and correction of maps and records' and contains Sections 4 to 12-D. Chapter III is headed as 'Preparation of consolidation scheme' and contains Sections 13 to 23. Chapter IV of the Act is headed as 'Enforcement of the Scheme' and contains Sections 24 to 36-A Chapter V is headed as 'Miscellaneous' and contains Sections 37 to 54 There are no provisions in the Act which deal with the rights of a tenure-holder. The land is to be consolidated on the basis of the rights conferred by and recognized by the U. P. Z A. & L. R. Act. It is true that under the Act powers have been given to the authorities to determine questions relating to rights of parties, but only in order to implement the scheme of the Act and in the process of consolidating agricultural holdings. The consolidation authorities are not courts but are Tribunals of limited jurisdiction.

10. It is well settled that the exclusion of the jurisdiction of the Civil and Revenue courts cannot be assumed. It must be expressly provided for or such an exclusion is the necessary inference from the statute.

11. In the background of what we have said above, we must now proceed to examine the language of Section 49 of the Act as it stood at the relevant time.

The provision was in the following words:--

''No person shall institute any suit or other proceeding in any Civil or Revenue Court with respect to any matter arising out of consolidation proceedings or with respect to any other matter in regard to which a suit or application could be filed under the provisions of this Act.'

It is clear from the language used in the provision that the bar is created only under the following two circumstances:--

(a) When the matter arises out of consolidation proceedings and

(b) when the matter is such in regard to which a suit or application could be filed under the provisions of the Act.

12. In the instant case, we are not concerned with the first because the effect of filing a suit under Section 209 of the U. P. Z. A. & L. R. Act would not have been to agitate in respect of any matter which arises out of consolidation proceedings.

13. The only question, therefore, that requires consideration is whether there is a provision analogous to Section 209 of the U. P. Z. A. & L. R. Act in the Act and whether under the Act a relief similar to the one contemplated by a suit under Section 209 can be granted.

14. Mr. Bashir Ahmad contends that the scheme of the Act, as revealed by its various provisions is that the consolidation authorities shall first make spot inspections and find out the names of persons in possession of the plots falling in a consolidation unit. They shall then prepare a record of such possession and invite objections to the same. If such objections are filed, the same shall be disposed of by the consolidation authorities and thus the village records would be corrected. If necessary for the purposes of consolidation and if so required by the parties, holdings shall be partitioned. Thereafter a statement shall be prepared and published showing which tenure-holder is entitled to which plot. The tenure-holders would have an opportunity of filing objections which shall be disposed of by the consolidation authorities. The Consolidation authorities shall then prepare new chaks and allot the same to the various chak-holders, after which possession of the new chaks shall be delivered to them under Section 28 of the Act. Mr. Bashir Ahmad contends that the entire procedure contemplated by the various provisions of the Act and culminating in the delivery of possession under Section 28 results in obtaining for a person entitled to file a suit under Section 209 of the U. P. Z. A. & L. R. Act the relief which he would have got under that provision i. e. he would get possession over the land to which he is rightfully entitled.

15. In our opinion, the submission is not correct. Section 209 of the U. P. Z. A. & L. R. Act provides a remedy for a person to eject a trespasser. Such a proceeding is not contemplated by the Act.

16. We have already pointed out that the consolidation authorities are not regular courts and are only Tribunals of limited jurisdiction. No doubt, they do decide questions relating to rights of parties but only during consolidation operations and for that purpose alone. They do not deal with the ejectment suits, nor have they the jurisdiction to pass a decree for ejectment. Consequently, we are of the opinion that Section 49 of the Act did not bar a suit under Section 209 of the U. P. Z. A. & L. R. Act. Mr. Bashir Ahmad has placed reliance upon Om Prakash v. Janki, 1965 All LJ 627 where D. S. Mathur, J., while dealing with the scope of Section 49 of the Act observed as follows :

'The wording of Section 49 of the Act makes it clear that the words 'for which a declaration has been issued under Section 4' qualify the area and hence the land contemplated by Section 49. Once the declaration under Section 4 has been issued, the area for which the declaration has been made becomes the area to which the bar of Section 49 shall apply. In case the intention of the legislature was to place a bar to the jurisdiction of the civil and revenue courts for the period ending with the close of the consolidation operations, Section 49 would have been worded differently. It shall be found that Section 49 has been worded generally to govern all the suits whether instituted before the close of the consolidation operations or thereafter. Further, as already mentioned above, reference to the declaration under Section 4 was made not for laying down the period for which the bar placed by section shall remain in force but to define the land to which the bar shall be applicable.

The bar imposed by sec. 49 of the Act shall thus apply to suits with respect to rights in such land (as observed in the Full Bench case of Dalai v. Baroo to suits involving the question of title) irrespective of whether the suit was instituted before or after the close of consolidation operations, that is, the issue of the notification under Section 52 of the Act' (1963) All LJ 265= (AIR 1967 All 59) (FB).

With great respect to the learned Single Judge, (D. S. Mathur, J.) we find that the wide sweep which he has given to Section 49 of the Act is not provided by the language of that provision. We have already emphasised in an earlier part of this judgment that Section 49 creates a bar only where a challenge is made to a proceeding taken under the Act or where the matter is such that in respect of it 'a suit or application could be filed under the provisions of this Act'. In our opinion, the expression 'suit or application' in Section 49 of the Act assuming that the word 'suit' also includes an application does not comprehend a suit under Section 209 of the U. P. Z. A. & L. R, Act.

17. Reliance was also placed upon 1963 All LJ 265 = (AIR 1967 All 59) (FB). This is a distinguishable case and is confined to the proposition that Section 49 of the Act bars jurisdiction of the Civil Courts to take cognizance of a suit involving the question of title to grove land as that would be a matter in regard to which an application could be filed under the provisions of the Act.

18. Mr. Bashir Ahmad also placed reliance upon Ram Lal v. Assistant Collector Sadabad, 1966 All LJ 266. That is a decision by a Division Bench of this Court of which one of us (Jagdish Sahai J.) was a member. All that is laid down in the decision is that the bar created by Section 49 of the Act is an absolute one and no matter could be adjudicated upon by any other authority or court which could be decided in proceedings under the Act. We are of the same view. But the question for consideration in every case, where the bar of Section 49 of the Act is pleaded, is whether in fact the suit or proceeding is such which could be taken before the consolidation authorities. If the matter is such that in respect of it an application could be made under the provisions of the Act, the bar of Section 49 of the Act would no doubt operate, but if the suit or application is one which is beyond the scope of the Act, Section 49 of the Act would not bar the suit or the application. The bar would operate only if the matter could be decided in consolidation proceedings or arises out of those proceedings, and not otherwise.

19. In each case it is a question of fact to be investigated by the court concerned whether the proceedings taken elsewhere are such which could under the law be instituted under the Act and if the proceeding is such, we have no doubt that the bar of Section 49 of the Act would operate but if the proceeding is not such, there would no question of the bar of Section 49 of the Act operating.

20. We have already said in an earlier part of this judgment that under the Act a trespasser cannot be ejected and that delivery of possession to a tenure-holder of the chak allotted to him after the correction of paper proceedings and after investigating his title is not the same proceeding as a suit to eject a trespasser contemplated by Section 209 of the U. P. Z. A. & L. R. Act, nor is such a proceeding similar to or a substitute for a suit under Section 209 of the U. P. Z. A. & L. R: Act. Therefore, we can see no operation of the bar of Section 49.

21. In Ahsan All v. Deputy Director of Consolidation Azamgarh, 1965 All LJ 1161, a single Judge of this Court (G. C. Mathur, J.), took a view similar to the one we are taking. In Smt. Amjadi v. Dy. Director of Consolidation, 1963 R. D. 62, Desai, C. J. and R. S. Pathak, J. took the view that a proceeding for mutation was a proceeding under the Land Revenue Act even though conducted by a consolidation officer appointed under the Act and Section 49 of the Act did not apply to bar a suit with respect to any matter arising out of it. This decision would show that the scope of Section 49 of the Act is limited and not as wide as was found by D. S. Mathur, J. in 1965 All LJ 627 (supra). In Mahabir Gadaria v. Deputy Director of Consolidation, 1965 R. D. 192 K. B. Asthana, J. has taken the view similar to 1966 All LJ 266 (supra).

22. For the reasons mentioned above, we are of the opinion that a suit under Section 209 of the U. P. Z. A. & L. R. Act by the petitioners against Lautu was not barred by Section 49 of the Act.

23. We, therefore, hold that the view taken by the Settlement Officer (Consolidation) that Lautu had become the sirdar of the plot in dispute is correct. We are also satisfied that the learned Deputy Director of Consolidation was right in not interfering with the order of the Settlement Officer (Consolidation).

24. The result is that we dismiss the writ petition with costs.


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