ZAFAR KHAN Vs. BOARD OF REVENUE U P

JUDGEMENT

(1.) Appellants claiming to be the Khudkasht holders of the Zamindars of the plots of land involved in dispute filed a suit for possession under Sec. 180 of the U. P. Tenancy Act, 1939 ('Tenancy Act' for short) against respondents Nos. 4 and 5 (respondents for short) who were and are in actual and physical possession and cultivating the land. This suit ended in a decree in favour of the appellants on September 30, 1948 and in execution of the decree, the appellants assert that they obtained actual and physical possession from the respondents on December 2, 1948. On the advent of the U. P. Zamindari Abolition and Land Reforms Act, 1950 ('1950 Act' for short) the appellants claimed to have acquired the status of Bhumidars in respect of the plots of land in dispute. The resondents moved an application under Section 232 of the 1950 Act against the appellants alleging that as they were in actual and physical possession during the year 1356 Fasli and were subsequently dispossessed, in view of the provision contained in Sec. 20 of the 1950 Act, they have acquired the status of adhivasis and, therefore, they are entitled to regain possession. This application was made to the Assistant Collector within the prescribed period of limitation. The Assistant Collector rejected the application holding that as the respondents were not in possession through the entire year of 1356 Fasli but only for a part of the year, they have not acquired the status of adhivasis and were not entitled to regain possession. The respondents carried the matter in appeal to the Additional Commissioner who held that the respondents had acquired the status of adhivasis and were entitled to regain possession and accordingly allowed the appeal by his order dated June 15, 1956 and in compliance with this order, the respondents regained actual and physical possession of the land and since then till today they are in possession of the same.

(2.) According to the appellants the village / villages in which the plots of land involved in the dispute are situated were put into consolidation under the U. P. Consolidation of Holdings Act, 1953 ('1953 Act' for short) and, therefore, the Additional Commissioner had no jurisdiction to decide the appeal of the respondents on merits but should have stayed the same. In the meantime according to the appellants a statement under Ss. 8 and 8-A of the 1953 Act was published in which according, to them they were shown as Bhumidars of the plots in question and the respondents had failed to object to the entries. However, it appears that since the appeal preferred by the respondents was allowed by the Additional Commissioner, pursuant to his judgment the entries in the statement were corrected in favour of the respondents and they regained actual and physical possession of the land. The appellants carried the matter in appeal to the Board of Revenue, which was allowed holding that once the village / villages in which the plots involved in the dispute are situated have been put into consolidation and a notification under Sec. 4 of the 1953 Act is issued, the Additional Commissioner should have stayed the appeal as the law then stood, and not heard it on merits and allowed the same. The appeal was accordingly remitted to the Additional Commissioner to retain it on his file and stayed further hearing of the appeal.

(3.) The appellants on the reversal of the decision of the Additional Commissioner moved an application under Sec. 144 of the Code of Civil Procedure, before the Sub Divisional Officer on September 11, 1958 praying for restitution of possession. Thus started the second round of litigation. The Sub Divisional Officer by his Order dated April 14, 1959 rejected the application of the appellants holding that as the rival claims have been decided under the 1953 Act, he has no jurisdiction to re-open the proceeding concluded before the authorities under the 1953 Act and the decision therein recorded has become final. He was further of the opinion that if any redressal consequent upon the reversal of the decision of the Additional Commissioner was to be obtained, the appellants should have moved the authorities under the 1953 Act which they having failed to do, no relief by way of restitution can be granted by the Sub Divisional Officer. The appellants carried the matter in appeal to the Additional Commissioner who by his order dated July 7, 1959 upheld the decision of the Sub Divisional Officer and dismissed the appeal. The appellants after an unsuccessful appeal to the board of Revenue approached the Allahabad High Court in Writ Petition No. 622 of 1960. This writ petition was dismissed by a learned single Judge of the High Court holding that as the authorities under the Consolidation Act - 1953 Act have allotted the plots in question to the respondents on the strength of the order of the Additional Commissioner, on the reversal of that order. the appellants should have approached the authorities under the 1953 Act for recording them as the holders of the plots and for correction of the statement by filing appropriate proceeding. It was held that as the appellants failed to seek relief before the authorities having jurisdiction in the matter, they cannot succeed in a proceeding under Sec. 144 of the Code of Civil Procedure because if such a relief is granted, it would tantamount to interfering with the decisions recorded by the authorities, under the 1953 Act which have become final. It was observed that after the final decision of the consolidation authorities it is always open to the petitioners to move the first appellate Court to decide the appeal in terms of the decision of the consolidation authorities or it was open to them to have moved the appropriate consolidation authorities at appropriate time. That having not been done, they were not entitled to relief at the hands of the Court. The writ petition was accordingly rejected on January 27, 1960.