RAM SEWAK Vs. MAU DEVI

JUDGEMENT

(1.) :-

(2.) THE plaintiff brought a suit for cancellation of the sale deed dated 23-11-1968 in favour of Smt. Mau Devi. THE plea raised by the plaintiff did not find favour with the trial court and the first appellate court and the suit was dismissed and the decree of dismissal was upheld by the first appellate court. This second appeal has been preferred challenging the orders of the courts below.

(3.) THE case of Banshidhar v. Smt. Dhirajdheri, AIR 1971 Allahabad 526 FB is a direct authority on the point. THE earlier view was reviewed and reconsidered, quoting them, and the position was summed up mainly in paragraph 13 quoting relevant section etc. earlier. In paragraph 13 it was laid down that the provisions (that is provisions concerning Baumidhari Sanad) disclose a well defined scheme that a Sirdar making an application and the deposit becomes entitled to a declaration that he has acquired the rights mentioned in Section 137. THE Assistant Collector then adjudicates upon the matter acting judicially, and if he is satisfied he passes an order 'granting' a certificate 'to that effect'. It is also significant to observe in this ruling also merely the expression 'to that effect' was interpreted to cover in the context 'declaration mentioned in Section 134' and that declaration is that the applicant has acquired the rights of bhumidhari mentioned in Section 137 and consequently certificate granted is that the applicant has acquired the rights of a Bhumidhar, implying that the Assistant Collector was satisfied. THE view that I have taken is fully fortified by the principles laid down in the case of Banshidhar (Supra) and is consistent and also in accordance with that view. Learned counsel for the appellant relied upon paragraph 19 of the aforesaid pronouncement and advanced the arguments contained in that paragraph adopting it. But it would be found that while the Full Bench held that the words used in the order are open to interpretation and can be looked into for interpretation. It further held grant of certificate means the direction for the certificate, meaning thereby that delivery of certificate is a ministerial act. If the present order passed by the Assistant Collector is read in context and with reference to the application that was made there cannot be an iota of hesitation holding that actually in substance the order amounts to grant of certificate with a directive that such bhumidhari Sanad be issued and necessary correction be made in relevant papers. I, therefore, hold that the plaintiff appellant had become bhumidhar of the holdings involved on the date the sale deed was executed and the sale deed therefore is in no way vitiated for any consideration that the vendor was only a Sirdar which is not a transferable right, and was not Bhumidhar on the date of transfer.