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Surendra Singh and anr. Vs. the Deputy Director of Consolidation and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 207 of 1971
Judge
Reported inAIR1976All510
ActsUttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 - Sections 209 and 210; Limitation Act, 1963 - Sections 7; Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1970
AppellantSurendra Singh and anr.
RespondentThe Deputy Director of Consolidation and ors.
Appellant AdvocateS.K. Tewari, Adv.
Respondent AdvocateN.B. Nigam, Standing Counsel
Excerpt:
property - sirdari rights - sections 209 and 210 of u.p. zamindari abolition and land reforms act, 1950 and section 7 limitation act, 1963 - provides for a suit for ejectment of a trespasser - suit can be filed by a bhumidhar, sirdar or assami - when two persons are entitled to plot in dispute - both of them bhumudhar- when suit is not brought under section 209, the person retaining possession shall become sirdar - trespasser is one who not only retained possession of land otherwise than in accordance with the provisions of law but also without the consent of the bhumidhar - proof of consent will not come to the benefit of the trespasser in acquiring sirdari rights. - - 16. in view of the divided success, the parties shall bear their own costs......of an immovable property. section 7 of the said act hence on its own terms will be applicable to a suit for possession of an immovable property. in the case of deshraj v. deputy director of consolidation, (1970 all wr (hc) 16), a division bench of this court has held that on a reading of section 341 of u. p. z. a. and l. r. act with section 29(2) of the limitation act it is clear that section 6 of the limitation act would apply to the suits under section 209 of the u. p. z. a. and l. r. act. on the same reasoning the provisions of section 7 of the limitation act will also be applicable to proceedings under the u. p. zamindari abolition and land reforms act.9. on the question whether one co-sharer alone can give discharge without the consent of the other, the decision of the privy council.....
Judgment:

Satish Chandra, J.

1. The plots in dispute were Khudkast holding of Maniya Singh. He died on 16-6-1948 leaving two sons, Surendra Singh and Virendra Singh. Surendra Singh filed a suit for ejectment of the respondents Nos. 4 and 5 from the plots in dispute in the year 1965. It appears that in the same year consolidation proceedings commenced in the village, with the result that the suit stood abated.

2. In consolidation proceedings respondents Nos. 4 and 5 filed an objection claiming themselves to be sirdars of the plots in dispute by virtue of their uninterrupted long possession. Both the petitioners, namely, Surendra Singh and Virendra Singh contested the objection.

3. The Deputy Director of Consolidation held that at the time of death of Maniya Singh his sons were minors. Surendra Singh became major some time in the year 1955, while Virendra Singh became major in the year 1964. Since Surendra Singh could have filed the suit for ejectment of the respondents within three years of his attaining majority, the suit filed by him in the year 1965 was barred by limitation. The respondents were in continuous possession of the plots in dispute for a long time; they became sirdars thereof. He directed that their names be recorded as such on the plots in dispute.

4. The original tenure-holders have filed this writ petition under Article 226 of the Constitution. At the hearing of the writ petition, it was argued that one co-sharer cannot give a valid discharge without the concurrence of the other co-sharer, under Section 7 of the Limitation Act, hence the suit wag not barred by time. The learned single Judge felt that the question of law raised in the writ petition was of general importance. He, accordingly, referred thecase to a Division Bench. That is how the matter has come before us.

5. Section 209 of the U. P. Z. A. and L. R. Act provides for a suit for ejectment of a trespasser. Under it, a suit can be filed by a Bhumidhar, Sirdar or Asami concerned. Section 13 of the U. P. General Clauses Act provides that unless there is anything repugnant in the subject or context, the words in the singular shall include the plural, and vice versa. The word 'Bhumidhar' occurring in Section 209 of the U. P. Z. A. & L. K. Act will also mean Bhumidhars where there are more than one person entitled to the plots in dispute as Bhumidhar. In the present case the two brothers were Bhumidhars. Section 209 will cover both of them. In other words, both of them were entitled to file the suit under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act.

6. Section 210 of the said Act provides that if the suit is not brought under Section 209, the person retaining possession shall become Sirdar where the land forms part of the holding of a Bhumidhar. Section 209, inter alia, lays down the condition that a person should not only have taken or retained possession of land otherwise than in accordance with the provisions of law for the time being in force, but also without the consent of the Bhumidhar concerned. So, if there are more than one Bhumidhar entitled to a holding, the trespasser must be in possession without the consent of all of them. Proof of lack of consent of one of them, or proof of consent of one of them, will not enure to the benefit of the trespasser in acquiring sirdari rights under Section 210 of the U. P. Z. A. and L. R. Act, even in case where the suit is not brought under Section 209 of the said Act.

7. It is suggested that where there are more than one co-sharers in the Bhu-midhari holding, their joint consent is necessary.

Section 7 of the Limitation Act provides:--

7. 'Whether one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability, and a discharge can be given without the concurrence of such person, time will run against them all; but, where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased.

Explanation I -- This section applies to a discharge from every kind of liability, including a liability in respect of any immovable property.

Explanation II -- For the purposes oi this section, the manager of a Hindu undivided family governed by the Mitak-shara law shall be deemed to be capable of giving a discharge without the concurrence of the other members of the family only if he is in management of the joint family property.'

8. The crux of the matter, which requires consideration, is whether a co-sharer can give valid discharge without concurrence of the other co-sharers. In the case of Sarda Prasad v. Lala Jamuna Prasad : [1961]3SCR875 the Supreme Court has held that the word 'discharge' occurring in Section 7 of the Limitation Act means to free from liability and that the provisions of this Section apply to a case of delivery of possession of an immovable property. Section 7 of the said Act hence on its own terms will be applicable to a suit for possession of an immovable property. In the case of Deshraj v. Deputy Director of Consolidation, (1970 All WR (HC) 16), a Division Bench of this Court has held that on a reading of Section 341 of U. p. Z. A. and L. R. Act with Section 29(2) of the Limitation Act it is clear that Section 6 of the Limitation Act would apply to the suits under Section 209 of the U. P. Z. A. and L. R. Act. On the same reasoning the provisions of Section 7 of the Limitation Act will also be applicable to proceedings under the U. P. Zamindari Abolition and Land Reforms Act.

9. On the question whether one co-sharer alone can give discharge without the consent of the other, the decision of the Privy Council in the case of Jawa-har Singh v. Udai Prakash, (AIR 1926 PC 16) is directly on point. It was held therein that a suit brought by some sons within three years of their majority to set aside alienation by father is not barred though one of the sons had long before three years reached majority. This principle was laid down in relation to Section 7 of the Limitation Act. The same principle, in our opinion, would be applicable to a situation where one of the sons does not bring the suit for possession against a trespasser within three years of his attaining majority, while the other son continues to be a minor. In terms of Section 7, the son who had attained majority first cannot give a valid dischargewithout the concurrence of the other. In that event the period of limitation would not run against them. The time will start running when the other brother, also ceases to be under the disability, namely, when he becomes major.

10. In the present case the finding is that Surendra Singh became major more than 3 years before the institution of the suit for possession in the year 1965, while Virendra Singh attained majority within three years of the filing of the suit.

11. In view of the legal position discussed above, the suit was not barred by limitation.

12. During the course of arguments, our attention was invited to Section 246 of the U. P. Tenancy Act, 1939, which provides that except as otherwise provided in Sub-section (3) or in Section 246 where there are two or more co-sharers in any right, title or interest, all things required or permitted to be done by the possessor of the same shall be done by them conjointly, unless they have appointed an agent to act on behalf of all of them. Sub-section (3) relates to institution of suits, and provides that when one or two or more co-sharers is not entitled to sue alone and remaining co-sharers refuse to join as plaintiff in a suit, such co-sharer may sue separately for his share, joining the remaining co-sharers as defendants. The effect of this provision was that one co-sharer could not institute a suit by himself if the other co-sharer did not join him as plaintiff. He was liable to be impleaded as a defendant. It is true that there is no express provision corresponding to Section 246 of the U. P. Tenancy Act but that would not make any material difference because the consistent view of the Courts has been that even under the U. P. Z. A. and L. R. Act an individual can file a suit but he should implead other co-sharers as defendants to the suit, (See Komal v. Uma Shanker, 1966 RD 313).

13. The requirement that all the co-sharers must be present before the Court also leads to the implication that one of them is not entitled to give a valid discharge without concurrence of the other co-sharers. As for the applicability of Section 7 of the Limitation Act, non-enactment in U. P. Z. A. and L. R. Act of a similar provision to Section 246 of the U. P. Tenancy Act is immaterial.

14. In the present case the Settlement Officer (Consolidation) had held that though the respondents had not become sirdars yet they became Asami by virtue of a compromise between the parties. The plea based on this compromise has not been considered by the Deputy Director of Consolidation, hence it is necessary to send the case back.

15. The result is that this petition succeeds and is allowed. The order of the Deputy Director of Consolidation is quashed. The matter is sent back to him for deciding it afresh in the light of the observations made above and in accordance with law.

16. In view of the divided success, the parties shall bear their own costs.


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