WAQF ALU ALLAH KAYAM KARDA AHMAD ULLAH KHAN SAHEB, WAQF BARATU, THROUGH RIAZUDDIN TAILOR Vs. BALAK SINGH

JUDGEMENT

(1.) This is an appeal by Waqf Alu Allah Kayam Karda Ahmad Ullah Khan Saheb against the order of the First Civil Judge of Meerut allowing the appeal of Balak Singh respondent, and thereby setting aside the order dated 8.8.1958 of the Assistant Collector First Class along with all the proceedings u/S. 168 of the UP Tenancy Act and remanding the case to the executing court with the direction to re -admit it at its original number and to take further proceedings in accordance with law. The learned advocate for the respondent has raised an objection to the maintainability of the FAFO on the ground that as a result of the demarcation of land u/S. 5 of the UPUA ZA & LR Act, 1956 he (respondent) has become a sirdar and on deposit of ten times the rent bhumidhar of the plots in dispute and that by virtue of the provisions of this Act he was not liable to ejectment except in accordance with the provisions of this Act and, consequently, he was not liable to ejectment u/S. 168 of the UP Tenancy Act. It is on the other hand, contended by the learned advocate for the appellant that the respondent had been dispossessed from the land long before the demarcation of the land and it was by virtue of an illegal order without jurisdiction of the lower appellate court that he managed to secure possession and, consequently, he could neither acquire the status of a sirdar, nor of a bhumidhar, and the present proceeding u/S. 168 of the UP Tenancy Act could continue. It will, therefore, be proper to first of all consider whether the order dated 8.8.1958 of the Assistant Collector First Class was appealable and, if not can the restitution of possession confer any right on the respondent?

(2.) An application u/S. 168 of the UP Tenancy Act for an order of ejectment is made to the court which passed the decree, though such an application can be made only when the decree for arrears of rent against an expropriatory, an occupancy or hereditary tenant has not been completely satisfied within one year from the date of such decree by any mode of execution other than sale of the holdings. The application u/S. 168 can thus be made after steps for the execution of the decree for arrears of rent have been taken and the decree is not completely satisfied within one year from the date of such decree. But the application u/S. 168 is made to the court which passed the decree and not to the court before whom the execution proceeding was or is pending, or the court competent to entertain the execution proceeding. It is a proceeding taken before the executing court which can be treated as an execution proceeding. But, if action has to be taken by the court which passed the decree, it is for all purposes an action taken prior to the execution of the decree. On account of words "the court which passed the decree" used in S. 168(1) of the UP Tenancy Act, no other inference can be drawn except that the application u/S. 168 of the UP Tenancy Act is not in execution of the decree for arrears of rent already passed, but is a step for the amendment of the decree for arrears of rent to enable the ejectment of the judgment debtor. The application u/S. 168 is thus in the main suit and not in execution.

(3.) To get: over this difficulty, the learned counsel for the respondent invited my attention to the marginal note of S. 168 of the UP Tenancy Act, R. 76 of the rules framed under the UP Tenancy Act and also Form K incorporated in the rules. Reliance was also placed upon certain observations made in Raja Suryapal Singh v/s. Wahid Ali (1) ( : 1945 AWR (HC) 2). The marginal note of S. 168 is "ejectment of certain tenants in execution of a decree for arrears." R. 76 makes a provision for the issue of a notice as contemplated by S. 168 and in Form K it is mentioned as if the notice is issued by the executing court.