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Vishwa Nath Prasad Vs. Dy. Director of Consolidation and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 8146 of 1971
Judge
Reported inAIR1980All7
ActsUttar Pradesh Consolidation of Holdings Act, 1954 - Sections 9; Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951 - Sections 7; Uttar Pradesh Tenancy Act, 1939 - Sections 147, 162, 243 and 251; Code of Civil Procedure (CPC) , 1908 - Sections 51
AppellantVishwa Nath Prasad
RespondentDy. Director of Consolidation and ors.
Appellant AdvocateV.K.S. Chaudhary, Adv.
Respondent AdvocateJagdish Misra, ;Radhey Shyam, Advs. and ;Standing Counsel
DispositionPetition allowed
Excerpt:
.....recovered it before the enactment of u. tenancy act, which in any way inhibits the right of the land-holder to get his decree for arrears of rent satisfied by attachment and sale of any property in which the judgment-debtor has, at the time of execution of decree, a saleable interest, (unless it can be said that the execution of a decree by a sale of judgment-debtor's interest in the holding amounts to his ejectment therefrom, within the meaning of section 7 (b) of u......been sold. it does not in any way affect the executability of a decree for recovery of arrears of rent by sale of any property in which the judgment-debtor has a saleable interest at the time of execution of such decree, whether it be in his holdings or in any other property. as we see there is nothing in the u. p. tenancy act which lays down that a decree for arrears of rent can be executed only by sale of the holding of the nature specified therein and not by any other method under the code of civil procedure.21. in the result, we are of the opinion that the sale of bhumidhari rights of the judgment-debtor in the holding in question which were purchased by the petitioner was quite valid and that it had the effect of transferring the title of the judgment-debtor to the petitioner and.....
Judgment:

H.N. Seth, J.

1. A learned single Judge of this Court before whom this petition by Viswa Nath Pd. under Article 226 of the Constitution came up for hearing, felt that the decision of a Division Bench of this Court, in the case of Malik Nizamuddin v. Sheo Prakash (1960 All LJ 889) which according to him covered the controversy raised in this petition, requires reconsideration. He accordingly directed that the papers of this case be laid before Hon'ble the Chief Justice for constituting a larger Bench. This is how the matter has come up before us.

2. The dispute in this petition relates to plot No. 122 of Khata No. 58 of village Puraina, Tappa Shat, Pargana Bansi East which came under the consolidation operation in the year 1970.

3. In the basic year, the plot in dispute was recorded as sole sirdari of petitioner, Vishwa Nath Pd. On 17-7-1970, Smt. Baboona, filed an objection under Sec. 9 of the U. P. Consolidation of Holdings Act, alleging that the plot in question was tenancy grove of Har Pd. and Ganesh Pd. The erstwhile Zamindar filed a suit for recovery of arrears of rent against Har Pd. and Ganesh Pd. on 6-12-1954, and obtained an ex parte decree against them on 21-1-1955. Thereafter, the Zamindar took steps to execute the decree under Section 251 of the U. P. Tenancy Act, and got the grove in dispute sold. Vishwa Nath Pd., real maternal nephew of Ganesh Pd., purchased the grove and got his name mutated in the villege papers.

The objector, claimed that the proceedings taken for execution of the decree by sale of the property in dispute were absolutely without jurisdiction and, did not affect the right and title which the judgment-debtor had in the property. Ganesh Pd. died heirless and she as the daughter of Har Pd. succeeded to his interest. The third brother of the judgment-debtor i.e. Mahadeo, did not claim any interest in the property. Thus, after the death of her father, she became the sole bhumidhar of the plot and was entitled to have the entry standing in the name of Vishwa Nath Pd. corrected accordingly.

4. She also alleged that as Vishwa Nath Pd. was interfering with her possession and wanted to damage the trees standing on the plot in dispute, she filed suit No. 45 of 1959 in the court of Munsif Bansi, claiming a declaration about her title. That suit was decreed on 24-11-1959, but in appeal, the decree passed by the Munsif was set aside and a second appeal against the appellate court's decree was admitted, but, as provided in the U. P. Consolidation of Holdings Act the suit as well as the second appeal have abated.

5. The application filed by Smt. Baboona was contested by Vishwa Nath Pd. who asserted that the decree as also the sale of property in execution thereof were quite valid. The plot exclusively belonged to him and the objection filed by Smt. Baboona deserves to be rejected.

6. The Consolidation Officer found that in the basic year, the plot in dispute stood recorded as tenancy grove of three brothers, Har Pd., Mahadeo Pd. and Ganesh Pd., and that all three of them were the grove holders thereof and that nothing had been brought out to show that Mahadeo Pd. had relinquished his interest in the plot. According to the pedigree, Mahadeo Pd. and Har Pd. had 1/4th share each in the plot and that Smt. Boboona could, in no case claim more than 1/4th share therein. He observed, that even though it was, under Section 7 of the U. P. Zamindari Abolition & Land Reforms Act, open to the Zamindar to obtain a decree for arrears of rent, but then the decree obtained by him could not be executed under Section 251 of the U. P. Tenancy Act, by sale of the plot which was a grove. Consequently, the auction sale did not affect the rights either of the judgment-debtor or that of Smt. Baboona. In the result, he directed that the entry in village papers be corrected and Smt. Baboona and Vishwa Nath Pd. be shown as bhumidar of the plot with 1/4th and 3/4th shares respectively.

7. Being aggrieved, both Smt. Baboona and Sri Vishwa Nath Pd. filed appeals under Section 11 (1) of U. P. Consolidation of Holdings Act before the Settlement Officer (Consolidation). The Settlement Officer held that as under Section 7 of the U. P.Z.A. & L.R. Act no decree for arrears of rent could be executed by ejectment of the judgment-debtor from his holdings, the Tahsildar had no jurisdiction to sell the property in dispute and to eject Har Pd. and others therefrom, in execution of the decree under Section 251 of the U. P. Tenancy Act. He therefore, concluded that the title of Har Pd. and others was not affected by the auction sale and as no one had come forward to claim the interest of Ganesh Pd. and Mahadeo Pd. Smt. Baboona had, after the death of Har Pd., succeeded to the entire interst in the grove and had become bhumidhar thereof. In the result, he allowed the appeal filed by Smt. Baboona and dismissed that filed by Vishwa Nath Pd. and directed that the name of Smt. Baboona be recorded as bhumidhar over the entire plot.

8. Vishwa Nath Pd. filed two revision applications before the Dy. Director of Consolidation, who upheld the decision of the Settlement Officer and dismissed both the revision applications. Vishwa Nath Pd. has now approached this Court for relief under Article 226 of the Constitution.

9. Before we proceed to deal with the argument of learned counsel for the parties, we would like to point out that although in the writ petition, as also in various orders made by the authorities under the U. P. Consolidation of Holdings Act, it has been mentioned that to begin with the plot in dispute was tenancy grove of Har Pd. and others, the petitioner has, by means of a supplementary affidavit filed on 5-11-1971, clarified that in column 25 of Khatauni of the relevant year Har Pd., Mahadeo Pd. and Ganesh Pd. were recorded as grove holders and that the plot had not been shown therein as tenants grove. This averment in the supplementary affidavit has not been controverted by the opposite parties. We would accordingly proceed on the basis that prior to 1359 F. Har Pd. and others were the grove holders of the plot in dispute.

10. Whereas the case of the petitioner is that as a result of the sale held in execution of the decree for arrears of rent obtained by the erstwhile Zamindar, he became bhumidhar of the plot in dispute. Smt. Baboona opposite party, claims that the decree obtained by the erstwhile Zamindar as also the execution proceedings following it were without jurisdiction and the rights held by her father which ultimately devolved upon her were not affected thereby. It is not disputed that if it is held that the decree obtained by the erstwhile Zamindar and the proceedings taken in execution thereof are valid. Vishwa Nath Pd. would be entitled to e recorded as bhumidhar of the plot in dispute and the objection filed by Smt. Baboona will have to be rejected. We will, therefore, proceed to consider the objection of learned counsel for Smt. Baboona with regard to the validity of the decree and the proceedings for its execution.

11. Learned counsel for Smt. Baboona contended that the decree obtained by the erstwhile Zamindar was invalid as according to him, after coming into force of the U.P.Z.A. & L.R. Act all rights of the Zamindar in his estate ceased and had vested in the State. It was, therefore, not open to him to institute a suit for recovery of arrears of rent even for the period prior to the date of vesting (in the instant case it is not disputed that the decree in execution of which the plot in dispute has been sold was for arrears of rent that had accrued prior to the date of vesting). Relevant portion of Section 7 of the U.P.Z.A. & L.R. Act runs thus:--

'Nothing contained in this Chapter shall in any way affect the right of any person-

(a) and (aa) .....

(b) to recover any arrears of rent.....

which accrued before the date of vesting and the same shall, notwithstanding anything contained in this Act, be recoverable as heretofore by the person entitled thereto;

Provided that no decree for an arrears of rent or order of ejectment in default of arrears of rent shall be executed by ejectment of the judgment-debtor from the holding.'

This statutory provision clearly preserves the right of a person who was entitled to recover arrears of rent accruing before the date of vesting, to recover the same in the manner he could have recovered it before the enactment of U. P. Z. A. & L. R. Act. The procedure for recovery of arrears accruing before the date of vesting has been laid down in the U, P. Tenancy Act and the same procedure would continue to be available even after coming into force of the U. P. Z. A. & L. R. Act.

12. In this connection learned counsel for Smt. Baboona Devi invited our attention to the following observations in para 10, made by a learned Single Judge, in the case of Kedar Nath v. Sheo Murat Pandey (1971 All LJ 34):--

'... Moreover, the rights safeguarded by Section 7 are also proprietary rights and in case those rights themselves have disappeared, the right to recover rent and other dues etc. also comes to an end. Therefore, the effect of vesting of the property under Section 4 of the U. P. Act No. 1 of 1951 was that the property of the applicants in respect of the sir and khudkasht land ceased to exist and mesne profits in respect of the same could not be claimed. Thus, no liability could be fastened upon the appellants in respect of mesne profits.'

He urged that in the instant case also as the right and interest of the land holder ceased after coming into force of U. P. Z. A. & L. R. Act, it was not open to the decree-holder to obtain a decree for arrear of rent for a period prior to the date of vasting. Such a decree, therefore, was without jurisdiction and no title could be affected by anything done in execution thereof. In Kedar Nath's case, the question that was being considered by the single Judge was as to whether the right to recover mesne profit survived even after the title of the person in the property in respect whereof profits were being claimed had been extinguished. The learned single Judge held that mesne profits claimed in that case were not the same thing as arrears of rent or other dues mentioned in Section 7 (b) of the U.P.Z.A. & L.R. Act and as such the right to recover the same had not been preserved after coming into force of the U.P.Z.A. & L.R. Act. He, however, went further and observed that the rights safeguarded by Section 7 were proprietary rights and in case those rights have themselves disappeared the right to recover rent and other dues etc. also comes to an end.

We feel that in view of the express provision contained in Section 7 (b) of U.P.Z.A. & L. R. Act nothing contained in Chapter II of the Act shall in any way affect the right of any person to recover the arrears of rent and other dues which accrued before the date of vesting. The aforementioned observation appears to have been made too widely and cannot be interpreted as laying down correct law. We are, therefore, not inclined to accept the submission made by the learned counsel for Smt. Baboona Devi, that the decree in the instant case was without jurisdiction.

13. Section 148 of the U. P. Tenancy Act lays down that except as otherwise provided by the Act, arrears of rent shall be recoverable by suit, or by notice through the Tahsildar in accordance with the provisions of the Act. According to this section, the land-holder could, for recovering arrears of rent, adopt either of the following two courses:--

(i) He could file a suit for recovery of arrears of rent, or,

(ii) He could apply to the Tahsildar to recover the arrears of rent by issiung notices to the party in arrears, in the manner provided in the Act.

The procedure for making an application for recovering arrears of rent, to the Tahsildar and the consequences flowing therefrom are to be found in Sections 163 to 173 of the U. P. Tenancy Act. However, where the land holder decides to file a suit for this purpose he has to, as provided in Section 162 (i) of the U. P. Tenancy Act, institute it in the court of Tahsildar (as admittedly in the instant case the subject-matter did not exceed Rs. 200) and as provided in Section 243 of U. P. Tenancy Act, subject to any modification made therein by the Act, such suit and all proceedings in connection therewith are to be governed by the provisions contained in the Code of Civil Procedure. It, therefore, follows that the decree obtained in the suit for recovery of arrears of rent was quite valid and that it had to be executed in accordance with the provisions contained in the Code of Civil Procedure, excepting in so far as a particular manner has been inhibited by anything contained in the U. P. Tenancy Act,

14. Various modes in which a decree can be executed under the provisions of the Code of Civil Procedure have been enunciated in Section 51 of the Code, relevant portion of which runs as follows:--

'Subject to such conditions and limitations as may be prescribed, the Court may, on the application of decree-holder, order execution of decree-

(a) .....

(b) by attachment and sale or by sale without attachment of any property;

(c) by arrest and detention in prison, (d) ..... or

(e) .....'

15. Section 147 of U. P. Tenancy Act, however, provides that no decree for arrears of rent shall be executed by the arrest or detention of a tenant. It, therefore, follows that whereas a decree for arrears of rent obtained from the Court of Tahsildar can be executed by attachment and sale or by sale without attachment of any property which is legally capable of being sold, it cannot be executed by arrest and detention of the judgment-debtor in civil prison. Likewise Section 7 (b) of U.P.Z.A. & L.R. Act, while enabling an erstwhile land holder to recover any arrear of rent which had accrued before the date of vesting, prohibits execution of a decree for such arrears by ejectment of the judgment-debtor from the holding. No provision in the U. P. Tenancy Act, which in any way inhibits the right of the land-holder to get his decree for arrears of rent satisfied by attachment and sale of any property in which the judgment-debtor has, at the time of execution of decree, a saleable interest, (unless it can be said that the execution of a decree by a sale of judgment-debtor's interest in the holding amounts to his ejectment therefrom, within the meaning of Section 7 (b) of U.P.Z.A. & L.R. Act), has been brought to our notice.

In the instant case the judgment-debtors were, on the date of vesting, grove holders of the plot in dispute and immediately on coming into force of the U.P. Z.A. & L.R. Act, they became bhumidhars thereof. It is not disputed that the interest of a bhumidhar is alienable and can be sold in execution of a decree. The decree obtained by the erstwhile landholder could, therefore, be executed by sale of judgment-debtor's bhumidhari tenure unless it could be held that such sale would amount to ejectment of the judgment-debtor of his holding.

16. Learned counsel appearing for Smt. Baboona urged that sale of the Bhumidhari interest of the judgment-debtor, in execution of the decree for arrears of rent, would necessarily result in dispossession of the judgment-debtor from the holding and as such it would amount to ejectment therefrom. Such execution is accordingly prohibited by Section 7 (b) of U. P. Zamindari Abolition & Land Reforms Act.

17. We are unable to accept this submission. In our opinion, both under the U. P. Tenancy Act and the U.P.Z.A. & L.R, Act the question of ejectment from holding arises only in such cases where a person having an existing interest in a holding either files a suit or makes an application for possession of the property, either by determination of an inferior interest in the holding or by removal of an unauthorised person from its occupation. The effect of obtaining a decree or order for ejectment is not to pass on the interest, either of the person having the inferior interest in the holding or that of the person who had been in unauthorised occupation thereof, to the person making a prayer for such ejectment. Both under the U. P. Tenancy Act and the U.P.Z.A. & L.R. Act there are provi-sions which deal with the ejectment of a person from a holding and those provisions indicate that as a consequence of ejectment contemplated under these two Acts, even though the interest of the person ejected is determined, the same does not pass on to the person who gets the person ejected.

In this regard we derive considerable support from the decision of this Court in the case of Nihal Singh v. Board of Revenue (1962 All LJ 782), wherein it has been held that in Section 199 of U.P.Z.A. & L.R. Act, which lays down that a 'bhumidhar' shall be liable to ejectment: the expression 'ejectment' means extinguishment of legal right and not mere physical dispossession. We are, therefore, of opinion that as execution of a decree by sale of a holding eventually results in transfer of title of the judgment-debtor to the auction purchaser, his dispossession from the holding, does not, as contemplated by Section 7 (b) of U.P.Z.A. & L.R. Act, amount to ejectment from the holding.

18. In the result, we find that there is nothing either in the U. P. Tenancy Act or the U.P.Z.A. & L.R. Act which renders the sale of the holding, in execution of a decree obtained by the erstwhile land holder, invalid or without jurisdiction.

19. A perusal of the orders passed by the various consolidation authorities shows that in their opinion the decree in question had not been executed in accordance with the provisions of the Code of Civil Procedure but the same had been executed under the provisions of Section 251 of U. P. Tenancy Act, relevant portion of which reads;

'The interest of a tenant holding on special terms in Oudh, of an ex-proprietary tenant, of an occupancy tenant, or of a hereditary tenant in his holding or in any part thereof may be sold in execution of a decree for arrears of the rent of such holding and unless such interest' is purchased by the land-holder thereof, the purchaser shall, subject to the provisions of Sub-section (3), have the same interest in such holding or such part and be subject to the same liabilities in respect of such holding or such part as the tenant.....'

20. According to learned counsel for Smt. Baboona, under this section either the interest of a tenant holding on special terms in Oudh or of an ex-proprietary tenant, or of an occupancy tenant, or of a hereditary tenant, in his holding alone could be sold in execution of a decree for arrears of rent. As the interest sold in the instant case was not one of the interests mentioned above, the sale was without jurisdiction. We are unable to accept this line of reasoning. In our opinion, the authorities under the U. P. Consolidation of Holdings Act have fallen into a manifest error in thinking that the decree in question was not being executed in the normal way under the Code of Civil Procedure and that the same was being executed under the provisions of Section 251 of U. P. Tenancy Act. Section 251 does not provide for an alternative method for execution of a decree for arrears of rent which in any case has to be executed in accordance with the provisions of the Code of Civil Procedure. All that this section lays down is that the interest of a tenant holding on special terms in Oudh or of any ex-proprietary tenant etc. which normally is not alienable, can also be sold in execution of the decree for arrears of rent and that unless it is purchased by the landlord, the persons purchasing the same shall have the same interest in such holding and would be subject to same liabilities as the tenant whose interest has been sold. It does not in any way affect the executability of a decree for recovery of arrears of rent by sale of any property in which the judgment-debtor has a saleable interest at the time of execution of such decree, whether it be in his holdings or in any other property. As we see there is nothing in the U. P. Tenancy Act which lays down that a decree for arrears of rent can be executed only by sale of the holding of the nature specified therein and not by any other method under the Code of Civil Procedure.

21. In the result, we are of the opinion that the sale of Bhumidhari rights of the judgment-debtor in the holding in question which were purchased by the petitioner was quite valid and that it had the effect of transferring the title of the judgment-debtor to the petitioner and the judgment-debtors were left with no such interest in the property which could devolve on Smt, Baboona Devi. The objections under Section 9 of the Consolidation of Holdings Act filed by Smt. Baboona, therefore deserved to be rejected.

22. We now proceed to consider the case of Malik Nizamuddin v. Sheo Prakash (1960 All LJ 889), which according to the single Judge requires reconsideration and has necessitated reference of the case to a larger Bench. Facts of the case were that Sheo Prakash and others had in the year 1950 obtained a decree for arrears of rent amounting to more than Rs. 1,000 against Malik Nizamuddin and others. The decree-holder had, as permitted by Section 251 of the U. P. Tenancy Act and before coming into force of the U.P.Z.A. & L.R. Act, applied for execution of the decree by sale of ex-proprietary rights of the judgment-debtor. After coming into force of U.P.Z.A. & L.R. Act on 1-7-1952, objections were raised that the execution application could not proceed by sale of Sirdari rights which had been acquired by the judgment-debtors in the meantime. The objections were repelled by the executing court and the decision of the executing court was upheld in appeal. The judgment-debtor then came up in revision before this Court and the learned single Judge referred the following question for the opinion of the Division Bench:--

'Where a decree for recovery of arrears of rent in respect of a period prior to the date of vesting under the U. P. Zamindari Abolition and Land Reforms Act has been passed in favour of a decree-holder, can the decree-holder execute such decree for arrears of rent by sale of the Sirdari rights of the judgment-debtor after the coming into force of the U. P. Zamindari Abolition and Land Reforms Act.'

The Bench dealing with the reference, however, pointed out that even though the learned Judge, before whom the revision had come up for disposal, had referred the question in general words, it proposed to answer the question with reference to the particular facts of that case, namely, that the decree for arrears of rent was passed against an ex-proprietary tenant prior to the date of vesting under the U.P.Z.A. & L.R. Act and an application for its execution by sale of ex-proprietary right in the holding had also been made before the date of vesting. It shows that while dealing with the question referred to it, the Bench was not concerned with the question as to whether an application for execution of the decree for arrears of rent obtained by a land-holder can be executed by attaching and selling any salable interest which a judgment-debtor has in a holding at the time of execution of the decree. It had, in fact, confined itself to the question as to whether an application for execution of a decree for arrears of rent by sale of ex-proprietary rights as permitted by Section 251 can be pursued as against the sirdari rights which the judgment-debtor came to acquire by virtue of provision contained in the U.P.Z.A. & L.R. Act. Various observations made in the judgment have, therefore, to be construed in this light.

23. We do not find any observation in Malik Nizamuddin's case which goes to show that in the opinion of the learned Judges a decree for arrears of rent obtained by a land-holder could be executed only as against a person who was ex-proprietary tenant, hereditary tenant or occupancy tenant or that various other modes for satisfaction of the decree provided in the Code of Civil Procedure, excepting those which have expressly been barred by the provisions contained in the U. P. Tenancy Act and the U.P.Z.A. & L. R. Act, are not available to a decree-holder.

As mentioned above, in Malik Nizamuddin's case, the decree-holders were proceeding to execute the decree for arrears of rent by selling an interest which otherwise was not salable but which had been made salable under Section 251 of U. P. Tenancy Act and the question for consideration before the Bench was as to whether the execution application could be pursued against a new interest created by the U.P.Z.A. & L.R. Act in place of the interest that had not been made salable. We do not find anything in Malik Nizamuddin's case which runs counter to the view expressed by us above.

24. In view of the aforesaid discussion, we find that the auction sale whereby the interest of Har Prasad, Mahadeo Pd. and Ganesh Pd. in the plot in dispute was sold to Vishwa Nath was quite valid and the title therein stood transferred to Vishwa Nath, who became bhumidhar of the entire Khata. No part of the interest of Har Pd. and others accordingly devolved upon Smt. Baboona Devi and her objections under Section 9 of U. P. Consolidation of Holdings Act deserves to be rejected. Further, in this view of the matter, it is unnecessary for us to consider as to what would have been the share of Smt. Baboona in the property in dispute, had the auction sale in favour of Vishwa Nath Pd. been held to be invalid.

25. In the result, the petition succeeds and is allowed. The orders passed by the various consolidation authorities are quashed and are set aside, The objections filed by Smt. Baboona Devi under Section 9 of the Consolidation of Holdings Act claiming that her name be recorded in the Khata in dispute shall stand rejected. In the circumstances of the case, the parties are directed to bear their own costs of the petition.


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