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Bir Singh and ors. Vs. Kesho Ram - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 432 of 1970
Judge
Reported inAIR1971All419
ActsTenancy Laws; Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951 - Sections 203; Uttar Pradesh Zamindari Abolition and Land Reforms Rules, 1952 - Rule 154; Code of Civil Procedure (CPC) , 1908 - Order 21, Rule 36
AppellantBir Singh and ors.
RespondentKesho Ram
Appellant AdvocateA. Banerji and ;N.S. Singhal, Advs.
Respondent AdvocateK.C. Saxena, Adv.
DispositionAppeal dismissed
Excerpt:
.....court is satisfied that any ungathered crops or trees which are the property of the judgment-debtor exist on the land to be delivered, the court executing the decree or order shall, notwithstanding anything in the code of civil procedure, 1908, proceed in the following manner: giving of such a right did not mean that possession over the land had not been effectively given to the decree-holder. was followed, the mere fact that the qurq amin failed to give notice to the tenant and to deliver possession in his presence would not vitiate the delivery of possession. since the plaintiff was in possession over the plots in dispute on the date of thesuit and the attitude taken up by the defendants was that the plots were in their possession and they were entitled to cultivate it, the..........shall deliver the possession of the land with the crops and the trees to the gaon sabha or the land-holder, as the case may be, and all rights of the judgment-debtor in or upon such crops or trees shall pass to the decree-holder. (b) if (* * *) the amount due from the judgment-debtor is less than the value of such crops or trees, and-- (i) the gaon sabha or the land-holder pays the difference between such amount and the value to the judgment-debtor, the court shall deliver the possession of the holding to the (gaon sabha) or land-holder concerned and all rights of the judgment-debtor in such crops or trees shall pass to the decree-holder. (ii) the (gaon sabha) or the land-holder does not pay such difference, the judgment-debtor shall have a right of tending, gathering or removing.....
Judgment:

H.N. Seth, J.

1. This is a defendant's second appeal against the judgment and decree of the District Judge, Muzaffarnagar dated 6th of February, 1970.

2. The plaintiff respondent had filed a suit, No. 3 of 1966, under Section 202 of the U. P. Z. A. and L. R. Act, for the ejectment of the defendants appellants from the plots in dispute. The suit was decreed on 20-5-1967. An application for execution of that decree was made and it is said that plaintiff obtained the 'dakhal' over the plots in dispute on 24-5-1967. On 17th of October, 1967, plaintiff filed the present suit claiming a decree for permanent injunction, restraining the defendants from interfering with his possession over or cultivation of the land in suit.

3. The suit was contested by the defendants. They admitted that the plaintiffs suit, for ejectment of the defendants under Section 202 of the U. P. Z. A. and L. R. Act, had been decreed. According to them the plaintiff did not obtain possession over the plots in dispute which continued to be with the defendants. The delivery of possession, claimed to have been effected on 24-5-67, was not in accordance with law and as such it was no delivery. The trial court came to the conclusion that possession over the plots in dispute had been delivered tothe plaintiff on 24-5-1967. On that date certain crop which had been shown by the defendants was standing on those plots. The defendants were entitled to cut-and-harvest that crop. In the result it decreed the suit for injunction restraining the defendant from interfering with the plaintiffs possession. It however, made it clear that notwithstanding the injunction issued by the court the defendants were entitled to harvest the crop which they had sown and which was in existence on 24-5-1967, the date of the delivery of the possession mentioned in the 'dakhal-nama'.

4. The defendants went up in appeal. The lower appellate court affirmed the decree passed by the trial court and dismissed the appeal. The defendants have now come up in second appeal before this Court.

5. Main point urged on behalf of the appellants was that inasmuch as the crop belonging to the defendants was found to be in existence even on the date on which the decree passed by the trial court, it followed that all through the defendants had been in possession over the plots and the finding recorded by the courts below that possession had been delivered to the plaintiff in execution of the decree in the suit under Section 202 of U. P. Z. A. and L. R. Act on 24-5-1967 is clearly erroneous. It is true that the courts below have found that on the date of the suit, certain crop sown by the defendants was standing which had been sown by him prior to 24-5-1967. This crop had been tended by the defendants and the defendants were entitled to harvest the same. The right of defendants to harvest the crop flowed from Section 203 of the U. P. 2. A. and L. R. Act, which reads as follows:--

'Section 203. Rights to crops and trees when ejectment takes effect. -- (1) Where in execution of any decree (other than a decree under Section 209) or order for delivery of possession, the court is satisfied that any ungathered crops or trees which are the property of the judgment-debtor exist on the land to be delivered, the court executing the decree or order shall, notwithstanding anything in the Code of Civil Procedure, 1908, proceed in the following manner:--

(a) If ( ) the amount due from the judgment-debtor is equal to or greater than the value of such crops or trees, the court shall deliver the possession of the land with the crops and the trees to the Gaon Sabha or the land-holder, as the case may be, and all rights of the judgment-debtor in or upon such crops or trees shall pass to the decree-holder.

(b) If (* * *) the amount due from the judgment-debtor is less than the value of such crops or trees, and--

(i) the Gaon Sabha or the land-holder pays the difference between such amount and the value to the judgment-debtor, the court shall deliver the possession of the holding to the (Gaon Sabha) or land-holder concerned and all rights of the judgment-debtor in such crops or trees shall pass to the decree-holder.

(ii) The (Gaon Sabha) or the land-holder does not pay such difference, the judgment-debtor shall have a right of tending, gathering or removing such crops or trees or fruits of such trees until such crops or trees have been gathered and removed or die or are cut down, as the case may be, paying such compensation for the use and occupation of land as the court may fix.

(2) The court executing the decree or the order of ejectment may, on the application of any party, determine the value of the crops or trees and the compensation payable by the judgment-debtor under the provisions of clause (b) of Sub-section (1).' Section 203 of the Act provided for delivery of possession over a land in execution of a decree where some ungathered crop sown by the judgment-debtor stands. Under this section if no amount is found to be payable by the judgment-debtor to the decree-holder the possession over the land and crop can be delivered to the decree-holder. In such a case either the decree-holder will have to pay compensation for the crop which stands on that land or the judgment-debtor will have a right to tend such crop till it is ripe and then to harvest it. It is in pursuance of the provisions of this section that a right was given by the courts below to the defendants to gather and harvest the crop which had been sown by him prior to the date of the delivery of possession in execution of the decree. Giving of such a right did not mean that possession over the land had not been effectively given to the decree-holder.

6. The learned counsel for the appellants then argued that the possession over the plots in dispute had not been delivered in accordance with the procedure prescribed in Rule 154 of the Rules framed under U. P. Z. A. and L. R. Act. He contended that under Rule 154, before delivery of possession could be effected, it was obligatory on the Commissioner to have given individual notice to the judgment-debtor. What was done in the present case was that the Commissioner went to the village and made a general proclamation by beat of drums that he wanted to deliver possession of the plots in dispute to the decree-holder. This, according to the appellants, was not sufficient compliance with the procedure prescribed by Rule 154. Learned counsel for the respondent, however, argued that procedure adopted by the Commissioner in giving the notice was sufficient compliance with the provisions of Rule 154, specially when there was material on the record to indicate that the judgment-debtor knew that the Commissioner was going to deliver possession over the plots in dispute. He contended that the possession in fact had been delivered to the decree-holder, in accordancewith the procedure prescribed by Order 21, Rule 35 of the Code of Civil Procedure,and even if thero was some irregularity innot giving the notice to the judgment-debtor as contended on behalf of the appellants, that would not vitiate the delivery of possession over the plots.

In the case of Chandra Bhan v. The State, reported in : AIR1954All39 , a question about possession over a piece of land arose in connection with a criminal case. There one of the parties claimed to be in possession over certain agricultural plots. The other party contended that possession had not been delivered to the other party in accordance with Rule 104 of the U. P. Tenancy Act, inasmuch as notice had not been given to the judgment-debtor before delivering possession as required by that Rule. It may be mentioned that the provisions of Rule 104 of the U. P. Tenancy Act are in pari materia with the provision of Rule 154 of the Rules framed under the U. P. Zamindari Abolition and Land Reforms Act. This Court while dealing with that question made the following observation:--

'On behalf of the appellants it was argued that there was nothing on the record to show that the Amin had given any notice to the judgment-debtors before the delivery of possession or that they had knowledge of it. It was contended that according to Rule 104 framed by the Board of Revenue, under the U. P. Tenancy Act, for the guidance of the Amin, it is necessary that such notices should have been sent. The Amin was not questioned on this point and it is therefore not known whether such notices were sent or not. But even if such notices were not sent that would not invalidate the delivery of possession made by the Amin. The rules framed tinder Rule 104 are merely for the guidance of the Amin and are not mandatory provisions the omission of which would invalidate the delivery of possession effected by the Amin in accordance with the provisions of the Code of Civil Procedure. ........'

7. To the same effect is an earlier decision of a Division Bench of this Court in another Criminal Case, Rex v. Horam, reported in : AIR1949All564 . In this case it was observed that where the procedure prescribed in Order 21, Rule 36, C. P. C. was followed, the mere fact that the qurq Amin failed to give notice to the tenant and to deliver possession in his presence would not vitiate the delivery of possession. Following the view taken in the two Division Bench cases aforesaid, I also hold that merely because specific notice was not given to the judgment-debtor before delivering possession in accordance with Order 21, Rule 36, C. P. C., the delivery of possession was not vitiated and legally the decree-holder came into possession over the plot even though the defendant may have retained certain rights to tend and harvest the crop which had already been sown byhim. Since the plaintiff was in possession over the plots in dispute on the date of thesuit and the attitude taken up by the defendants was that the plots were in their possession and they were entitled to cultivate it, the plaintiff was clearly entitled to the injunction prayed for by him. The decree passed by the two courts below does not suffer from any error of law, and the present second appeal deserves to be dismissed.

8. I may, however, make it clear that during the pendency of the second appeal the appellants obtained an order dated 20-4-1970 authorising them to cut away the crop standing on the plots in dispute on depositing certain amount of money. I understand that the appellants have deposited that amount in court below and have harvested the crop. Under that order, the money so deposited is to be paid to the person who may be found to be entitled to it. It will be open to the parties to move the Court, in which the money has been deposited for its withdrawal. It will be for that Court to pass appropriate order for payment of money to the person who under the law may be entitled to receive it.

9. In the result I dismiss the second appeal with costs.


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