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PETITIONER: GRAM SABHA, BESAHANI

       Vs.

RESPONDENT: RAM RAJ SINGH & ORS.

DATE OF JUDGMENT: 31/01/1968

BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA SHAH, J.C. RAMASWAMI, V.

CITATION:  1968 AIR 1073            1968 SCR  (2) 856

ACT:     U.P.  Zamindari Abolition and Land Reforms Act, 1950  (1 of  1951),  s. 212 A (6)  and  (7)---Sub-Divisional  Officer ordering  ejectment  under  s. 212 A  (6)  without  awarding compensation--Such  order  is invalid and does  not  attract provisions  of  s.  212 A (7) and Entry at Sl.  No.  32B  of Appendix III read with Rule 338 of U.P. Zamindari  Abolition and  Land Reforms Rules, 1952--Suit challenging  such  order can be filed under s. 209 of the Act within six years of the date of dispossession.

HEADNOTE:     The  respondents filed a suit under s. 209 of  the  U.P. Zamindari Abolition and Land Reforms Act 1950, in respect of five plots of land claiming to have Sirdari rights in one of them  and Bhumidari rights in the other four.  By this  suit they  challenged  the order of  the  Sub-Divisional  Officer purporting to be under s. 212A (6) of the Act  dispossessing the,  plaintiffs  from  he  aforesaid  plots  and   granting possession thereof to the appellant Gram Sabha.  The Revenue Court framed several issues, the second of which was whether the  respondents had ever acquired Bhumidhari fights in  the four  plots  in  which they claimed them.   This  issue  was referred to the Civil Court which held that, as no suit  was filed under s. 212A (7) of the Act, within six months of the dispossession  as  required by the Entry at S1. No.  32B  of Appendix  III read with Rule 338 of the U.P.  Zamindari  and Land  Reforms  Rules  1952,  the   respondents   rights   as Bhumidars,  if any, stood extinguished.  On receipt of  this decision   on  issue No. 2 the Revenue  Court  proceeded  to determine   the  claim  of the  respondents  in  respect  of Sirdari  rights in one plot and it found that  these  rights were   never   acquired.    It   therefore   dismissed   the respondents’  suit  without  recording any  finding  on  the remaining   issues.  The  first appeal  having  failed,  the respondents filed a second appeal.  Therein  the High  Court held  that  the  order  of  the  Sub-Divisional   Magistrate purporting  to be made under s. 212A (6) of the Act was  not valid because, it did not direct payment of compensation  as laid down in that section. so that the rights as Sirdars and Bhumidars  were not lost by the respondents.  The  appellant

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came to this Court by special leave.     HELD:  (i)  The language of s. 212A (6) makes  it  clear that  the order under that pro,vision must be an  order  for ejectment   of  the person  in possession of  the  land  o.n payment  of such compensation as may be prescribed.  In  the present case no compensation having been ordered to be  paid there was no valid order under s. 212A (6). Accordingly  the provisions  of s. 212A (7) which come into play only when  a valid  order  has been passed under s. 212A  (6),  were  not attracted to the case at all. In such a case a suit  c/early lay against the appellants under s. 209 of the Act and  such a  suit could be instituted within six years from  the  date that  unlawful  possession was taken by the  appellant.  The present  suit was admittedly brought within that period  and was therefore not time-barred.  [859 E860 E]     (ii)  The suit in respect of the: plot in which  Sirdari rights were claimed by the respondents was dismissed by  the trial  court on the ground that such rights had  never  been acquired.  This was a finding of fact and the invalidity  of the order under s. 212A did not affect it. [860 F]               857 (iii)     In  respect of the four plots in which  Bhumidhari rights  were  claimed by the respondents, the case  must  be remanded  to  the   trial court  for  determination  of  the undecided issues relating to them. [859 B-C]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 719 of 1966. Appeal  by special leave from the judgment and  order  dated February  18,  1965 of the Allahabad High  Court  in  Second Appeal No. 4482 of 1961. S.   P.  Sinha, E. C. Agrawala and P. C. Agrawala,  for  the appellant. B. C. Misra and H. K. Puri, for respondents Nos.  I and 2. The Judgment of the Court was delivered by Bhargava, J. The plaintiffs/respondents filed a suit No.  25 of  1957  under section 209 of the Uttar  Pradesh  Zamindari Abolition  and  Land  Reforms Act, 1950  (No.   1  of  1951) (hereinafter referred to as ’the act"), claiming  possession of  five plots Nos. 729/2, 725/2, 723/2 881/2 and  330/3  on the  ground  that they were Sirdars of plot  No.  330/3  and Bhudars  of  the remaining plots.  The main  allegation  was that the Chairman of the Gram Samaj of the village, in which the plots were situated, had, for certain reasons, filed  an application before the Sub-Divisional Officer under  section 212A    of    the    Act    or    dispossession    of    the plaintiffs/respondents  on the ground that these lands  were of  public utility and they vested in the Gram  Samaj.   The Sub-Divisional  Officer, purporting to act under S. 212A  of the   Act,  passed  an  order  for  dispossession   of   the plaintiffs/ respondents and granted possession of the  lands to   the  appellant,  Gram  Sabha,  Besahani.   That   order purporting to be under s. 212A of the Act was challenged  as invalid and, on that basis, possession was claimed from  the appellant  under  s.  209  of the  Act,  alleging  that  the possession  of  the appellant was without any  legal  right. The suit was defended on behalf of the appellant on  various grounds  as a result of which the following ten issues  were framed by the trial Court "Issue No. 1 : Whether the plaintiffs have right to file the present suit ? 2  : Whether plaintiffs are Bhumidars of the plots  in  suit except plot No. 330/3 ?  If so, its effect ?

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3  :  Whether plaintiff’s are Sirdars of plot No.  330/3  in suit ? 4   :  Whether  plaintiffs  are  entitled  to  recovery   of possession over the plots in suit ? 5  : Whether the disputed plots are land of  public  utility and they vest in Gaon Samaj ? If so, its effect ? 8 5 8 6    :Whether the suit is barred by s. 23, C.P.C. ? 7:Whether the suit is barred by section II, C.P.C. ? 8  Whether the disputed plots are culturable land 7 If so,  its effect ? 9:_  Whether the Court has jurisdiction to the case ? 10   Whether the suit is within time Of these issues, issue No. 2 was triable exclusively by  the Civil Court and, consequently, the Revenue Court, which  was seized  of the suit, referred this issue to the Civil  Court for  a  finding.   This issue No. 2  arose  because  of  two pleadings  put forward on behalf of the appellant.  One  was that the plaintiffs/respondents had never acquired Bhumidari rights, and the other was that even if it be held that  they did   possess  any  Bhumidari  rights,  those  rights   were extinguished  when  the  respondents  were  dispossessed  in pursuance  of the order of the Sub-Divisional Officer  under s.   212A  of  the  Act and no suit within  six  months  was instituted by the respondents in accordance with s.  212A(7) of  the  Act.   The  Civil Court,  without  going  into  the question whether the respondents had ever acquired Bhumidari rights,  decided this issue only on the limited ground  that the   Bhumidari   rights  of  the   respondents   had   been extinguished  as a result of the order under s. 212A of  the Act.   On receipt of this finding from the Civil Court,  the Revenue  Court proceeded to record its own finding on  issue No.  3 in respect of plot No. 330/3 which was the only  plot in which the respondents had claimed rights as Sirdars.   On this  issue, the Revenue Court went into the first  question only raised on behalf of the appellant and held that it  was not  proved that the respondents had ever been  admitted  to tenancy  of  this plot of land, so that  they  never  became Sirdars  of  this  land.  On this view,  the  Revenue  Court considered it unnecessary to enter into the question whether the  Sirdari rights acquired, if any, had been  extinguished as a result of the order under s. 212A of the Act.  In  view of these findings no decision was recorded on issues Nos. 5- 10,  and the suit was dismissed.  That order was  upheld  by the  first  appellate Court. The respondents  then  filed  a second appeal in the AllahabadHigh  Court.   The   High Court held that the order purporting to be under s. 212A  of the Act was not valid, because it did not direct payment  of compensation  as required by s. 212A(6) of the Act, so  that the  rights as Sirdars and Bhumidars were not lost  ’by  the respondents.   On  this view, the High Court set  aside  the dismissal  of the suit by the lower Courts and  decreed  the suit  of the respondents.  The appellant has now come up  to this Court against this _judgment by special leave. Two points have been raised in this appeal on behalf of  the appellant before us.  The first point is that the High Court was 8 5 9 wrong  in holding that the order passed under S. 2  212A  of the Act by the Sub-Divisional Officer was not valid, and  on that basis decreeing the suit which was clearly time-barred, as  it was not instituted within six months of the order  of ejectment  passed  by the Sub-Divisional  Officer  under  S. 212A(6) of the Act.  This ground raised in the appeal has to be  rejected, as we are of the opinion that the  High  Court

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was perfectly correct in holding that the order of the  Sub- Divisional  Officer under, S. 212A of the Act was not  valid and,  consequently, the provisions of S. 212A(7) of the  Act were  never  attracted  to  the  present  dispute.   Section 212A(6) & (7) are as follows :-               "212A.  (6)  Where upon the said  hearing  the               Collector  is  satisfied that the  person  was               admitted as a tenure-holder or -rove-holder of               land  referred to in Section 212 or  being  an               intermediary ’brought such land under his  own               cultivation  or planted a grove thereon on  or               after the eighth day of August, 1946, he shall               pass an order for ejectment of the person from               the  land on payment of such  compensation  as               may be prescribed.               (7)   Where  an order for ejectment  has  been               passed  under this section, the party  against               whom the order has been passed may institute a               suit’ to establish the right claimed by it but               subject to the results of such suit the  order               passed  under sub-section (4) or (6) shall  be               conclusive." The  language  of S. 212A(6) makes it clear that  the  order under  that provision must be an order for ejectment of  the person  in  possession  of  the  land  on  payment  of  such compensation as may be prescribed.  This means that an order under   that   provision  must  first  direct   payment   of compensation  to the person in possession and the  direction for  ejectment  of  the person in possession  must  be  made effective only thereafter, i.e., after the compensation  has been paid.  The order to be made under this provision of law must,  therefore,  contain  as  a  condition  precedent   to ejectment  the  payment of compensation.  If no  payment  of compensation  is  ordered, the order made would  not  be  an order  under  this provision of law.  In the  present  case, admittedly  no  compensation was ordered to be paid  in  the order purporting to have been passed under s. 212A(6) of the Act, so that that order cannot be treated as an order  under this  provision  of  law.  The order not  being  under  this provision,  the dispossession of the  plaintiffs/respondents in  pursuance  of  that order was clearly  illegal  and  the plaintiffs/ respondents had the right to institute the  suit for obtaining possession under s. 209 of the Act. It is true that, in accordance with Entry at SI.  No. 32B of Appendix  III  read  with Rule 338  of  the  U.P.  Zamindari Abolition 860 and  Land  Reforms Rules, 1952 (hereinafter referred  to  as "the  Rules"),  a  suit  to establish  a  right  claimed  in accordance  with s. 212A(7) of the Act has to be  instituted within  six  months.  In pursuance of  that  right  claimed, possession  can  also  be  claimed; and,  if  the  suit  for establishing the right fails, the right to obtain possession would also become time-barred.  Consequently, under s. 1 8 9 (c) of the Act, the person concerned, who falls to institute the suit within this period of limitation in accordance with S.  212A(7) of the Act, would have his interest in the  land extinguished.   This provision, however, will only apply  to cases where a valid order has been made under s. 212A of the Act  and  the  person concerned  has  been  dispossessed  in pursuance  of such an order.  In the present case,  we  have held  that the order, in pursuance of which the  respondents were dispossessed, was not a valid order under S. 212A(6) of the  Act  and  cannot  be held to be  an  order  under  that provision of law, so that the respondents in this case  must

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be deemed to have been deprived of possession otherwise than in accordance with law.  In such a case, a suit clearly  lay against  the  appellant under s. 209 of the Act and  such  a suit could be instituted within six years from the date that unlawful possession was taken by the appellant in accordance with  Entry at SI.  No. 30 of Appendix III read with R.  338 of  the  Rules.   The present suit  was  admittedly  brought within  this  period of limitation and was,  therefore,  not time-barred.   The  High  Court  was,  therefore,  right  in holding  that the claim of the plaintiffs/respondents  could not be defeated on this ground. The second point urged on behalf of the appellant,  however, appears  to  us to have great force and  must  be  accepted. It  was urged that, so far as plot No. 330/3  is  concerned, there  was  a finding of fact recorded by the  trial  Court, which  was  upheld by the first appellate  Court,  that  the plaintiffs/respondents never acquired any tenancy or Sirdari rights  in this land, so that, irrespective of the  validity of   the   order   under  s.  212A(6)  of   the   Act,   the plaintiffs/respondents’ suit for possession of this plot had to  be  dismissed.  The High Court, in decreeing  the  suit, clearly  ignored this aspect.  The dismissal of the suit  by the  trial  Court which was upheld by  the  first  appellate Court in respect of this plot No. 330/3 was, therefore,  not liable  to be set aside even on the view taken by  the  High Court and to that extent it has to be upheld. With regard to the remaining four plots in which the respon- dents were claiming Bhumidari rights, the error committed by the High Court is that on the finding recorded by that Court there should have been an order of remand to determine other questions raised in the suit in respect of those plots.  One of  the questions raised, which formed part of issue  No.  2 and was never decided by the Civil Court to which that issue was referred, was that the 861 respondents  had never acquired Bhumidari rights at  all  in these plots.  That question should have been remitted for  a fresh decision when the High Court held that the Civil Court was wrong in holding that the Bhumidari rights, if possessed by  the  respondents in these plots, had  been  extinguished under  s.  189  of the Act in view of  the  failure  of  the respondents  to  institute  the suit within  the  period  of limitation applicable to a suit under s. 212A(7) of the Act. Further, in respect of these plots, other issues which  were not  decided  ’by the Revenue Court also  required  decision before  the  suit  in respect of them  could  be  completely disposed  of.  Consequently, it is now necessary  to  remand the  suit  to  the trial Court for a  fresh  trial  for  the purposes indicated above. As a result, the appeal is allowed and the decree passed  by the   High   Court   is  set  aside.   The   suit   of   the plaintiffs/respondents  will stand dismissed in  respect  of plot No. 33O/3, while it will go back to the trial Court for a  fresh decision in respect of the remaining four plots  in the light of our decision that, in case the respondents  had acquired Bhumidari rights, they were not extinguished by any order under section 212A of the Act.  Parties will be  given an   opportunity  to  give  evidence  on  the  question   of acquisition      of     Bhumidari     rights     by      the plaintiffs/respondents  an(, on other issues which have  not been  decided so far.  Costs of this appeal shall abide  the result of the suit. G.C.                               Appeal allowed. L3 Sup CI/68- 11 862

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