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PETITIONER: KALI PRASAD & ORS.

       Vs.

RESPONDENT: DEPUTY DIRECTOR OF CONSOLIDATION & ORS.

DATE OF JUDGMENT:       26/07/2000

BENCH: Y.K.Sabharwal, S.S.M.Quadri

JUDGMENT:

     This appeal, by special leave, is directed against the order  of the High Court of Judicature at Allahabad in Civil Miscellaneous  (Writ) No.3820 of 1969 on December 23,  1981. The  controversy  in  this appeal relates to the  nature  of right  which  Kali  Prasad and others (the  appellants)  are holding  the  plots  in question  under  the  U.P.Zamindari, Abolition  &  Land  Reforms  Act,   1950  (for  short   the U.P.Zamindari  Act).  The appeal relates to one of the  two sets  of  plots  in village Pakar, Tappa  Pachauri,  Pargana Hasanpur  Maghar,  Tehsil  Sadar, P.O.   Madanpur,  District Gorakhpur  --  one set consisted of 12 plots and  the  other consisted  of  13 plots.  In both these sets of  plots,  the appellants  were recorded as occupants along with some other persons  in different combinations.  Here, we are  concerned with  the  set of 13 plots, namely, plot Nos.131, 132,  388, 465,  471, 758, 760, 855, 893, 894, 895, 896 and 897.   Both those  sets  of plots were combined and joint  entries  were made  in  revenue  records.  Appeals were filed  before  the Settlement  Officer  (Consolidation) for correction  of  the entries.   Appeal  Nos.784 and 785 relate to  correction  of entries  in  the said plots.  Smt.Partapi was  Khatedar  and respondents  3 and 4 were asamis of these plots.  After  the death of Smt.Partapi on October 31, 1952, Ram Dulare (father of  respondents 3 and 4) filed two civil suits in the  court of District Munsiff claiming declaration of bhumidari rights and  ejectment  of the appellants and others.   Though,  the learned  Munisff decreed the suit in respect of 13 plots  in question  also yet on appeal by the appellants, the  learned District  Judge  set  aside the judgment and decree  of  the Trial  Court  on  the  ground that the civil  court  had  no jurisdiction  and ordered that the plaint be returned.   Now reverting  to  the  appeals before  the  Settlement  Officer (Consolidation),  he found, inter alia, that Smt.Partapi was the  last  Khatedar  and  the  appellants  were  in  adverse possession  of the said plots.  Despite institution of civil suits  in 1954 by Ram Dulare, they could not be ejected from the  plots  and,  therefore, they were entitled  to  Sirdari rights.   Accordingly,  he apportioned the plots,  allotting shares  to  each one of them by his order dated  August  22, 1968.   That  order  gave rise to filing  of  five  revision petitions,  by respondents 3 and 4 herein, before the Deputy Director  (Consolidation),  Gorakhpur.  The Deputy  Director (Consolidation)  having  considered  the   judgment  of  the District  Judge noted that the claim of respondents 3 and  4 on the ground of being sisters sons of the last male tenure

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holder  (Bal Karan) of the disputed land in respect of which Smt.Partapi  was recorded as Khatedar, was not denied.  What was  argued  before him was that respondents 3 and  4  being sisters  sons  of Bal Karan were not entitled to  the  land after  the death of Smt.Partapi.  It was, however,  admitted that  the  appellants herein were in possession of the  land 1359  F  but it was argued that they were simply asamis  and they had not acquired any Sirdari rights.  The contention of the   appellants   herein  before    the   Deputy   Director (Consolidation)  was  that  even  if they were  held  to  be asamis,  as  they  were  not ejected within  the  period  of limitation  by  filing  a  suit under  Section  209  of  the U.P.Zamindari  Act,  they  acquired   Sirdari  rights.   The alternative  submission  was that they had  perfected  their right   by   adverse  possession.    The   Deputy   Director (Consolidation)  took the view that Sections 16, 19 and  209 of  the U.P.Zamindari Act do not apply to the case and  that the appellants continued to be asamis under Section 3 of the U.P.Land  Reforms (Supplementary) Act XXXI of 1952, as  such they cannot claim to be Sirdaris on the ground that the said respondents  did not file any suit for their ejectment.   In his  opinion,  as no period of limitation is prescribed  for such  cases, a suit can still be filed for their  ejectment. The Deputy Director (Consolidation) thus allowed the appeals of  the  said respondents on September 3,  1969.   Assailing that  order,  the appellants filed writ petition before  the High  Court of Allahabad which was dismissed on December 23, 1981.   It  is the validity of that order of the High  Court that  is  subject-matter  of this civil  appeal.   Mr.Pramod Swarup,  learned  counsel  appearing   for  the  appellants, invited  our  attention to Section 191 of the  U.P.Zamindari Act  and  contended  that the rights of  the  appellants  as asamis came to an end on the death of Smt.Partapi on October 31,  1952 and thereafter they were holding the plots adverse to  the  interest of respondents 3 and 4 and as no suit  for ejectment  was  filed against them under Section 209 of  the said Act, they perfected their rights by adverse possession. We  are  afraid, we cannot give effect to the submission  of the  learned counsel for reasons more than one.  First, such was  not  the plea before the consolidation authorities  and the  High Court.  Secondly, Section 209 contemplates  filing of  a suit for ejectment of a person occupying land  without title.   In  the  civil litigation which started  after  the death of Smt.Partapi, the plaint was directed to be returned by  the learned District Judge, in the appeals filed by  the appellants  herein,  on the ground that the appellants  were asamis  and  their ejectment could not be sought in a  civil court.  Evidently Section 209 does not postulate eviction of asamis.   Now,  they  cannot be permitted to  approbate  and reprobate  by claiming that they are not asamis either under Section  3  of the U.P.  Land Reforms  (Supplementary)  Act, 1952  or  by virtue of the entries made in the  records  and even so they ceased to be asamis on the death of Smt.Partapi under  Section 191 of the U.P.Zamindari Act.  If Section 209 is  not  applicable,  as  held   by  us,  the  consequential provisions  contained in Section 210 will not be  attracted. Another contention of Mr.Swarup is that sisters sons of Bal Karan  became heirs only on the passing of the U.P.Zamindari Abolition & Land Reforms (Amendment) Act, 1958 and it cannot be given retrospective effect.  The Amendment Act was passed in 1958.  The question whether that Act was retrospective in nature, was considered by a Division Bench of Allahabad High Court  in Second Appeal No.2940 of 1964 and by its  judgment dated April 18, 1973, it was rightly held that having regard to  the provisions of Section 1(2) of the Amendment Act that

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Act was retrospective.  The said provisions reads as under : (1)  This  Act  may be called the Uttar  Pradesh  Zamindari Abolition and Land Reforms (Amendment) Act, 1958.

     (2)  It  shall be deemed to have come into force  from the  first  day of July 1952, except Sections 37, 38 and  60 which shall come into force at once.

     A  perusal  of sub-section (2) of Section 1  makes  it abundantly  clear  that all the provisions of the  Amendment Act  were  brought  into  force from  July  1,  1952;   only Sections  37, 38 and 60 were brought into force at once  (in 1958).   It is nobodys case that any of those sections  are attracted  here.   The  effect of Section 1(2) is  that  the provisions would become part of 1952 Act from its inception. It  follows  that  respondents  3 and 4  acquired  right  to succession of Bal Karan.  It is next contended that inasmuch as  the  civil suit was barred in view of the provisions  of Section 331, read with Schedule II of the U.P.Zamindari Act, any  finding recorded by the civil court could not be  taken note  of in the proceedings under the Consolidation Act.  In our  view,  this submission is mis-conceived.   Section  331 read  with Schedule II bars jurisdiction of the civil  court only  in  respect  of such reliefs which  are  mentioned  in Schedule II and for their adjudication another authority has been  prescribed  thereunder.  The suits were filed  by  Ram Dulare  (father  of respondents 3 and 4) for the reliefs  of declaration  of  bhumidari rights and for ejectment  of  the persons  in possession including the appellants.  The relief of  ejectment  of asamis which bars the jurisdiction of  the civil court, is mentioned at S.Nos.19, 20 and 21 of Schedule II.   Further,  it is not every suit of declaration that  is barred  under  Section 331;  the categories  of  declaration which cannot be granted by a civil court are those mentioned against  S.No.34  and  they are of the  types  specified  in Sections  229,  229-B  and  229-C.  We  have  perused  those provisions.  The suit filed by Bal Karan does not fall under any  of  the  aforementioned sections.  The only  ground  on which the suit was held to be barred was that the appellants were  asamis and their ejectment could not be granted by the civil  court.  A finding recorded by the civil court on  the question of jurisdictional fact is binding on the parties to the  suit.  In view of the above discussion, we do not  find any  illegality in the judgment of the High Court confirming the  judgment  of the Deputy Director (Consolidation).   The appeal  fails  and  it  is accordingly  dismissed.   In  the circumstances  of  the case, we make no order as  to  costs.