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Vindhyachal Tewari Vs. Board of Revenue and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 829 of 1955
Judge
Reported inAIR1956All663
ActsCode of Civil Procedure (CPC) , 1908 - Sections 144; Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951; Uttar Pradesh Zamindari Abolition and Land Reforms Rules - Rule 5; Uttar Pradesh Tenancy Act, 1939 - Sections 243; Tenancy Law
AppellantVindhyachal Tewari
RespondentBoard of Revenue and ors.
Appellant AdvocateP. Chaturvedi, ;H.C. Sharma and ;L. Rathore, Advs.
Respondent AdvocateStanding Counsel, ;O.N. Mehrotra and ;B.L. Dikshit, Advs.
Excerpt:
civil - applicability and scope - section 144 of code of civil procedure, 1908 and rule 5 of u. p. zamindari abolition and land reforms act, 1951 - reversal of decree by means of abatement of proceedings - contention that section 144 not applicable - held, section 144 applicable to all cases where decree or order is varied or reversed for whatever reason. - .....held that section 144, civil p. c. applied to the case and that if the tenants had acquired adhivasi rights under section 20, zamindari abolition and land reforms act, they were entitled to recover possession irrespective of the fact whether they were or were not in possession on the date on which possession was delivered to the petitioner in execution of the decree passed by the trial court.then it went on to hold that, since there was evidence on the record to show that two of the tenants, namely, narbada rai and faujdar singh, were recorded as occupants in the khasra of 1356 fasli, they had acquired rights and were entitled to recover possession on that basis, apart irom the question whether they were in possession or not. as regards the heirs of saran, it was held that there.....
Judgment:

Agarwala, J.

1. These are three connected applications under Article 226 of the Constitution. The prayer in each case is that the order of the Board of Revenue dated 30-8-1955 and the order of the Additional Commissioner dated 4-7-1953 be quashed. The facts briefly stated are as follows :

2. Two persons Mahudeo Prasad and Jagat Nandn were zemindars of about four annas share in a village and had certain sir and khudkasht lands. In 1921 they executed a usufructuary mortgage in favour of one Ham Lal for a sum of Rs. 4999/-. On 1-8-1931 they executed a second usufructuary mortgage in favour of four persons, Subedar Singh, Rajdeo Singh, Jamuna Singh and Alakhdeo Singh for a sum of Rs. 7000/-, Heaving sufficient amount in the hands of the mortgagees to redeem the earlier usufructuary mortgage and to enter into possession of the mortgage property.

The second mortgagee redeemed the earlier mortgage and entered into possession. The rights of the mortgagors Mahadeo Prasad, and Jagat Narain came to vest in the present petitioner Vindhyachal Tewari and his brother Bhiku Ram Tewari. In the year 1944 the petitioner and his brother filed an application under Section 12, Agriculturists Relief Act for the redemption of the usufructuary mortgage. The application was allowed, redemption was ordered on payment of a certain amount, which was ultimately paid and on 12-4-1945 the petitioner and his brother obtained possession of the mortgaged property.

3. During the subsistence of the mortgage, however the mortgagees had created three tenancies, one in favour of Narhada Rai, another in favour of Fauj-dar Singh and a third in favour of Saran. The first two were alleged to be relations of the mortgagees and the third their ploughman.

4. On 23-6-1945 the petitioner, as Karta of the family consisting of himself and his brother, filed three suits under Section 180, U. P. Tenancy Act for the ejectment of the mortgagees and the aforesaid tenants in the court of the Revenue Officer, Salem-pur. on 11-8-1949 the suit was decreed. The court held that the mortgagees were in actual possession and the names of the aforesaid tenants were fictitiously recorded in the revenue papers, and that they were, not real tenants and no tenancy had been created in their favour.

5. On 16-8-1949 the petitioner obtained possession over the property in dispute in execution of the decree. Against the decree, the aforesaid tenants went up in appeal to the Commissioner.

6. During the pendency of the appeals, the Zamindari Abolition and Land Reforms Act cameinto force. Rule 5 of the Rules, framed under the Act, directed that certain suits and appeals which fell within the purview of Rule 4 were to be abated.

Consequently on 24-12-1952, the Commissioner abated the appeals and the suits. The aforesaid tenants Narbada Rai, Faujdar Singh and the heirs of Saran then applied under Section 144, Civil P. C. for being restored to possession over the holdings. These applications were made in the court of the Judicial Officer, Salempur, in whose court the original suit under Section 180 had been instituted. Two applications were made on 10-1-1953 and the third one was made on 13-2-1953.

7. The petitioner opposed these applications on the grounds that Section 144, Civil P. C. did not apply when a decree had been wiped out as a result of an abatement under Rule 5 of the Rules made under the Zarnindari Abolition and Lund Reforms Act, and further that the tenant-applicants were not in possession and that the petitioner had not obtained possession from them in execution proceedings but had obtained possession from the mortgagees.

A plea that Bhumidari rights had accrued to the petitioner under Section 18, Zarnindari Abolition and Land Reforms Act and that, therefore, he was not liable to be ejected in those proceedings was also raised.

8. On 9-1-1953 Judicial Officer dismissed the applications under Section 144, Civil P. C. His view was that, though Section 144, Civil P. C. applies to the case, the tenant-applicants wore not in possession and possession was not taken from them and that, there-fore, they were not entitled to regain possession.

9. The tenants then appealed to the Commissioner and the Commissioner allowed the appeals on 4-7-1953 on the finding that the view of the Judicial Officer that the tenant-applicants were not in possession was not based upon independent evidence adduced, before him but was based upon the finding recorded at the trial of the original suit, which having been abated, was no longer to be considered as binding between the parlies. He, therefore, remanded the case to the Judicial Officer for a fresh finding on the question of possession of the tenant-applicants after taking evidence of both sides.

10. Against this order the petitioner filed three revision applications before the Board of Revenue. The Board of Revenue held that Section 144, Civil P. C. applied to the case and that if the tenants had acquired Adhivasi rights under Section 20, Zamindari Abolition and Land Reforms Act, they were entitled to recover possession irrespective of the fact whether they were or were not in possession on the date on which possession was delivered to the petitioner in execution of the decree passed by the trial court.

Then it went on to hold that, since there was evidence on the record to show that two of the tenants, namely, Narbada Rai and Faujdar Singh, were recorded as occupants in the Khasra of 1356 Fasli, they had acquired rights and were entitled to recover possession on that basis, apart irom the question whether they were in possession or not. As regards the heirs of Saran, it was held that there was no sufficient evidence to hold that their names were recorded as occupants in the relevant year and consequently the order of the Commissioner was to stand in their ease.

Now he comes to this court with an application under Article 226 of the Constitution and praysthat the order of the Board be quashed and al the order of the Commissioner be likewise quashed on the grounds (1) that Section 144, Civil P. C. has no application whatsoever when a judgment is wiped out on the abatement of a suit and (2) that, even if Section 144, Civil P. C. applied to the case, the applicants could claim restitution only on the basis of their being deprived of possession in execution of the decree of the trial court and not on the basis of their having acquired Adhivasi rights.

A further point was urged that the petitioner had acquired Bhiunidhari rights as the plots in dispute were his Khudkast on the date immediately preceding the date on which the vesting order was made under the U. P. Zamindari Abolition and Land Reforms Act. At a later stage, however, it was stated on behalf of the petitioner that in these proceedings he did not wish to resist the applications under Section 144, Civil P.C. upon the ground of his having acquired Bhumidhari rights under the Zamindari Abolition and Land Reforms Act. We are, therefore, left with the first two contentions alone in this case.

11. As regards the contention that Section 144 Civil P.C. does not apply to a case in which the decree of the trial court has become null and void on account of the whole proceedings having abated by reason of subsequent legislation, we are of the opinion that the contention has no force. Section 144, Civil P.C. applies to all eases in which a decree or order is varied or reversed and when that is the case any party entitled to any bene-fit by way of restitution or otherwise is entitled to be piaced in the position which he would have occupied but for such decree or order which has been varied or reversed.

A decree or order may be varied in appeal or in revision, or in some other proceedings. It may be varied or reversed in a separate suit. It may be varied or reversed by subsequent legislation. An abatement of a suit or proceedings had the effect of nullifying the entire suit or proceedings and all orders and decrees passed in those proceedings. The abatement, therefore, had the effect of reversing the decrees or orders so passed.

Section 144 Civil P.C., therefore, in terms applies to the reversal of a decree or order by means off an abatement of the proceedings in which the decree or order was passed. It may be pointed out that S. 144, Civil P.C. applies to suits under the U. P. Ten-ancy Act, vide Section 243, U. P. Tenancy Act read with Lists 1 and 2 of the Second Schedule.

12. This brings us to the next point in the case. Adhivasi rights were conferred upon occupants of land by Section 20 (b), Zamindari Abolition and Land Reforms Act. All those persons, who were recorded as occupants of land in tlie Khasra or Khatauni of 1356 F., subject to the restriction mentioned in the section, were to obtain Adhivasi rights. If they were not in possession on the date of vesting ; a provision was made in Section 232 of the Act for recovery of possession by such persons. Section 232 provides,--

'An Adhivasi to whom Clause (b) of Section 20 applies may within thirty months from the date of vesting apply to the Assistant Collector in charge of the sub-division for putting him in possession of the land of which he is the Adhivasi.'

It is clear from this Section (a) that an application has to be made within thirty months and (b) that the ap-plication has to be made to the Assistant Collector incharge of the Sub-division and not to any other Assistant Collector. The remedy of a person, who could obtain possession of land of which he has become an Adhivasi, is to apply to a particular officer within a particular period of time and in the manner prescribed in Section 232, Zamindari Abolition and Land Reforms Act. It may also be noted that the present application under Section 144, Civil P.C. was not made to an officer mentioned in Section 232 of the Act.

13. Where a person applies for restitution under Section 144, Civil P.C. he claims to be put in the same position as he was before he was dispossessed by reason of the decree or order, which had been subsequently varied or reversed. He must, therefore, base his claim for restitution upon the very same rights as exist on the date on which he was dispobbessed under such decree or order. If he is entitled to regain posses sion on the ground of having acquired fresh rights, such as Adhivasi rights, he must pursue the proper procedure, as laid down by law, for recovery ol possession on the basis of such rights.

14. In our opinion, the applications under Section 144, Civil P. C. made by the applicants could succeed only when they proved that they were in possession and were dispossessed by virtue of the decree or order which had been abated. A defendant to a suit or other proceeding can no doubt resist his eviction from the land on the ground that he had acquired Adhivasi rights, but tin's is not a case of resisting a claim for eviction. This is a case of a claim for restitution which, as we have already stated, must be based upon the state of affairs as they existed on the date when dispossession was effected under the decree or order which was subsequently varied or reversed.

The view taken by the Board of revenue that the tenants could claim restitution on the ground that they had become Adhivasis does not appeal to us to be sound.

15. We must not be understood- as saying anything against the claim of the tenants opposite parties that they have acquired Adhivasi rights. If they have any such rights they may enforce them according to law, and it such proceedings are taken, it will be open to the petitioner to claim Bhumi-dhari rights, if any have accrued to him.

16. The result, therefore, is that we quash the orders of the Board of Revenue passed in Revisions Nos. 194 and 195 of 1952-53 and restore the order of the Commissioner. Writ Petition No. 829 of 1955, which is against Revision No. 195 of 1952-53, and Writ Petition No. 830 of 1955 which is against Revision No. 194 of 1952-53 are allowed. Writ Petition No. 831 of 1955, which is against Revision No, 193 of 1952-53, is dismissed.

17. In the circumstances of the cases, the parties will bear their own costs in all these three applications.


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