AKHTAR KHAN Vs. BOARD OF REVENUE AND ORS.

JUDGEMENT

(1.) THIS petition Under Article 226 of the Constitution is directed against the judgment and order of the Board of Revenue dated 16 -6 -1969, whereby the Petitioner's suit Under Section 229 -B of the UP ZA and LR Act, 1951 was dismissed.

(2.) THE land in dispute was sir of one Aley Hasan. He migrated to Pakistan. Thereafter the land was declared evacuee property which vested in the Custodian under the provisions of the Administration of Evacuee Property Act, 1950. Asghar Khan Petitioner's father was tenant of the sir land who was in possession at the time when the land was declared evacuee property. Asghar Khan died and was succeeded by his son Akhtar Khan the Petitioner and his name was entered in the revenue papers as tenant of the evacuee Aley Hasan. Since the property had vested in the Custodian the Petitioner deposited fifteen times of the rent and obtained a Bhumidhari Sanad from the Custodian on 8 -12 -1959 in respect of the land in dispute. The Petitioner filed a suit on 21 -1 -1964 before the Judicial Officer of distt. Jaunpur Under Section 229 -B/209 of the UP ZA and LR Act, 1951 for the ejectment of Respondent No. 2, Jhoori and for a declaration that the Petitioner was bhumidhar of the land as he had been granted bhumidhari sanad by the Custodian. The Petitioner's allegation in the suit was that Jhoori Respondent No. 2 was admitted as sajhi by the Petitioner during his period of minority, to help him in cultivation, but Jhoori got his name surreptitiously recorded as qabiz over the disputed plot as a result of which the necessity for filing the suit arose. Jhoori Respondent No. 2 was Defendant in the suit. Jhoori Respondent contested the Petitioner's claim. He denied the Plaintiff's claim and claimed himself to be the sirdar in possession on the basis of being recorded occupant in 1356 F. and also by virtue of being in possession for a period of more than the prescribed number of years for filing suit for his ejectment. The trial court as well as the Addl. Commr. in first appeal decreed the Petitioner's suit on the finding that the Petitioner had obtained bhumidhari sanad from the Custodian and that the suit was filed within limitation and that Jhoori Defendant was not recorded occupant, nor he was in cultivatory possession in 1359 F. Jhoori Respondent No. 2 filed a second appeal before the Board of Revenue and the only point canvassed before the Board of Revenue, was that the Petitioner's suit was not maintainable in view of the provisions contained in Schedule V of the UP ZA and LR Act, 1951. The Board of Revenue accepted the contention and set aside the decrees passed by the Trial Court and the first appellate court and directed the parties to seek their remedies before the court of competent jurisdiction. Learned counsel for the Petitioner has urged that the Board of Revenue committed an error apparent on the face of the record in setting aside the decree passed by the trial court and the lower appellate court and in dismissing the Petitioner's suit on a misinterpretation of the provisions of para. 6 of Schedule V to the ZA and LR Act. Learned Counsel has further urged that in any view of the matter the Petitioner's suit could not be dismissed and even if the provisions of para. 6 of the said Schedule V were applicable the proceedings in the appeal before the Board of Revenue should have been stayed and the party concerned claiming sirdari rights should have been directed to get his rights declared by the Custodian. It was further urged that on the findings of fact recorded by the trial court and the lower appellate court the property had ceased to be evacuee property and as such, the provisions of para. 6 of Schedule V were not attracted at all in the case. Learned Counsel for Respondent Jhoori has, however, urged that since an issue had been framed as to whether Respondent No. 2 was a sirdar of the land in suit the provisions of para. 6 were fully attracted and the Board of Revenue has rightly dismissed the Petitioner's suit and directed the parties to get their rights declared by the Custodian who had jurisdiction to decide the controversy.

(3.) THE Board of Revenue interpreted para. 6 of Schedule V in dismissing the Petitioner's suit. It would be pertinent to set out the provisions contained in para 6 which are as under: