Babu Ram v. Ram Das .

Y.N Verma, J.M:— This is a second appeal against the judgment of the Additional Commissioner, Jhansi Division, dated March 14, 1967. arising out of a case under Section 12 of the Agricultural Tenants (Acquisition of Privileges) Act of 1949.

2. The facts of the case are that on July 20, 1951 Bhumidhari Sanad was granted to Bal Khandi, Baboo Ram and Ram Sewak of the land in dispute. On September 20, 1965 Ram Dass and Lalta Prasad applied for concellation of the Sanad on the ground that Bal-khandi was the sole hereditary tenant of the land, that he died in 1962 and-his sons, Narain Prasad Thakur Dass and Dev Prasad had died during his life time, that the tenancy devolved upon the applicants and Ram Sewak who became its Sirdar tenant and entered in possession over the land, that recently they came to knom that Babu Ram has transfered ½ share in the tenancy to opposite parties Nos. 3 to 9, that on enquiry tney came to know that taking undue advantage of the minority of the applicants Balkhandi was made to deposit 10 times rental and he was made to move an application that in his place the names of Ram Sewak and Baboo Ram be entered over the land and Sanad be issued in their names, that Balkhandi continued in possession till his death, that there is no such law that a tenancy may get Sanad in the names of other tenants, that of course Sanad may be obtained in the names of unrecorded oo-tenants as well, but Baboo Ram and Ram Sewak could not be unrecorded tenants, that all the proceedings were based on fraud and were void and ineffective.

3. They, therefore, prayed for cancellation of Bhumidhari, Sanad. Baboo Ram oppposed the application saying that Balkhandi was father of his mother, that he alone was not tenant of the land, that even in the days prior to abolition of Zamindari the objector was in possession along with Balkhandi, that the Sanad issued in their names was issued validly and after due formalities and that there was no mis-representation. It was also alleged that the application is barred by time. Opposite party 3 to 9 also opposed the application raying that the Sanad is valid, that they are purchasers after payment of valuable consideration and that the applicants are estopped from denying rights of Baboo Ram.

4. The Tahsildar held that the none of Sections 3, 3-A, 3 B or 3-C were application to the present case and that Balkhandi could not apply for a grant of Sanad in favour of Baboo Ram who was neither a recorded tenant and who bad not applied himself claiming as a tenant and that the Sanad was obtained fraudulently. The Addl. Commissioner agreed with this finding and dismissed the appeal of the defendant. Baboo Ram. Hence the present second appeal before the Board.

5. I have heard the learned counsels for the parties. The learned counsel for the appellant submitted that as there was no provision for filing the second appeal, the same may be treated as a revision which was allowed.

6. The learned counsel for the revisionist contended that the Agricultural Tenants (Acquisition of Privileges) Act stands repealed on the enforcement of the U.P.Z.A and L.R Act and, therefore, no appeal can lie against the sanad granted and it could not be cancelled now. He drew attention to Section 340 of the U.P.Z.A and L.K Act and contended that under sub-clause (2) of this section declaration granted will be valid and no appeal is provided. He further contended that Chapter VIII provides for the grant of Bhumidhari Sanad and according to Section 339 of the U.P.Z.A and L.R Act all enactments which are inconsistent with the U.P.Z.A and L.R Act or in respect of which a provision has been made in the U.P Zamindari Abolition and Land Reforms Act will stand repealed. He further contended that Section 137-A deals with cancellation of Sanad and the limitation period is 6 years. In this case the the Sanad was issued in 1949 and the application for cancellation was given in 1966.

7. The learned counsel for the opposite party contended that according to Schedule III under Section 339 of the U.P Zamindari Abolition and Land Reforms Act the Agricultural Tenants (Acquisition of Privileges) Act is not one of the Acts which has been repealed. He further contended that Section 340 of the U.P.Z.A and L.R Aot contains certain amendments of the Agricultural Tenants (Acquisition of Privileges) Act which shows that the Act is still in force. He further contended that section 339(b) will not apply as the U.P.Z.A and L.R Act does not contain a provision for any tenant to take a Sanad which provision exists under the old Act.

8. As the Agricultural Tenants (Acquisition of Privileges) Act will continue no limitation is applicable. He further contended that proceedings under the Agricultural Tenats (Acquisition of Privileges) Act are summary proceedings as held in R.D 1966 page 416, that a declaration under Section 6 of the Agricultural Tenants (Acquisition of Privi-ledges) Act is not final and conclusive determination of the rights of the parties but are summary proceedings. He further cited R.D 1951 page 276 and R.D 1969 page 93 in support of his contention.

9. I have considered the contentions of the learned counsel for the parties and persued the record of the case. I agree with the learned counsel for the opposite party that the Agricultural Tenants (Acquisition of Privileges) Act is a continuing Act and the suit was within limitation. The courts below have recorded a finding of fact that the application of Balkhandi was not competent within the meaning of Section 3. 3-A, 3-B and 3C, therefore, the Sanad granted under Section 6 was illegal and without jurisdiction. I also agree with their findings that the Sanad was fraudulently obtained in favour of Baboo Ram who was not a co-tenant.

10. For these reasons I find no force in the revision which stand dismissed with costs and counsel's fee of Rs. 30/-.

11. Revision dismissed.

C.C.O No. 2953 for R.D