KALI PRASAD AND ORS.versusDEPUTY DIRECTOR OF CONSOLIDATION AND ORS.

A                      KALI PRASAD AND ORS.
                                 v.
                                                                                      ~I
             DEPUTY DIRECTOR OF CONSOLIDATION AND ORS.

                                   JULY 26, 2000

B    [SYED SHAH MOHAMMED QUADRI AND Y.K. SABHARWAL, JJ.]


          U.P. Zamindari Abolition and Land Reforms Act, 1950/UP. Zamindari
   Abotition and Land Reforms (Amendment) Act, 1958: Sections 209, 210 and
C Section 33/r/w Schedule II/Section 1(2)-Respondents 3 and 4 found to be
   asamis and the appellants to be in adverse possession of the plots in question--
   On the death of last khatedar in respect of the plots, suit for declaration and
   eiectment filed by the father of Respondents 3 and 4-Suit decreed by the
   trial court-On appeal, plaint returned by the District Judge on the ground
   of bar of civil courts jurisdiction-Settlement Officer apportioned the plots
D allotting shares to each of the appellants-Held them to be entitled to sirdari
   rights-Revisions preferred before the Deputy Director of Consolidation
   allowed holding the appellants to be asamis who cold still be ejected by
  filing a suit-Challenge to the said order dismissed by the High Coi.rt in the
   writ petition-On appeal, Held : Section 1(2) of the Amendment Act had
E application since the inception of the principal Act i.e. 1952-Therefore
  Respondents 3 and 4 acquired right to succession of the last male tenure
  holder-Section 331 read with Schedule II bars jurisdiction of civil courts
   only in respect of reliefs mentioned in Schedule II-Not every suit of
  declaration is barred under Section 331 of the Act-Categories of declaration
   which cannot be granted by the civil court mentioned against S. No. 34-
F Suit filed by father of Respondents 3 and 4 does not fall under arry of the
  aforementioned sections.

           A set of 13 plots of land alongwith another set of 12 plots was combined
    and joint entries were made in the revenue records. Appeals were filed before
    the Settlement Officer (Consolidation) for correction of entries who found
G   one P to be Khatedar and Respondents 3 and 4 to be asamis of the said set of
    plots consisting of 13 plots. Appellants were also found to be in adverse
    possession of the said plots. After the death of P, father of Respondents 3 and
    4 filed two civil suits before the District Munsif claiming declaration of
    bhumidari rights and ejectment of the appellants and others. "The Munsif
H   decreed the suit However, on appeal, the District Judge set aside the judgment
                                         702
       KALI PRASAD v. DEPUTY DIRECTOR OF CONSOLIDATION                       703
& decree of the trial court and ordered for return of the plaint on the ground      A
of civil court's jurisdiction being barred. Despite the civil suit the appellants
could not be ejected from the plots and they became entitled to Sirdari rights
and accordingly the Settlement Officer (Consolidation) apportioned the plots
allotting shares to each one of them. Against the said order of the Settlement
Office, Respondents 3 and 4 filed revision petitions before the Deputy Director     B
(Consolidation) i.e. Respondent No. 1. He allowed the revisions holding that
Sections 16, 19 and 209 of the Act did not apply to the instant case and
therefore, the appellants herein continued to be asamis under Section 3 of
the U.P. Land Reforms (Supplementary) Act, 1952. Respondent No. 1 was also
of the view that no period of limitation being prescribed for such cases, a suit
still could be filed for their ejectment. The appellants herein challenged the      C
said order in a writ petition before the High Court which was dismmed. Hence
this appeal.

      The appellant contended that according to Section 191 of the Act, the
rights of the appellants as asamis came to an end on the death of Pin 1952
and thereafter they were holding the plots adverse to the interests of              D
Respondents 3 and 4 and as no suit for ejectment was filed against them under
Section 209 of the Act, they perfected their rights by adverse possession.

      Dismissing the appeal, the Court

       HELD: 1. Section 209 of the U.P. Zamindari Abolition and Land E
Reforms Act, 1950 contemplates filing of suit for ejectment of a person
occupying land without title. In the civil litigation which started after the death
of P, the District Judge directed that the plaint be returned on the ground
that the appellants were asamis and their ejectment could not be sought in a
civil court. Evidently Section 209 does not postulate eviction of asamis. hence,
they cannot be permitted to approbate and reprobate by claiming that they F
are not asamis either under Section 3 of the U.P. Land Reforms
(Supplementary) Act, 1952 or by virtue of the entries made in the records
and even so they ceased to be asamis on the death of P under Section 191 of
the Act. If Section 209 is not applicable, the consequential provisions
contained in Section 210 will not be attracted. (706-F-H; 707-A)                    G
      2. Sub-section (2) of Section 1 of the U.P. Zamindari Abolition and Land
Reforms (Amendment) Act, 1958 makes it abundantly clear that all the
provisions of the Amendment Act were brought into force from July 1, 1952;
only Sections 37, 38 and 60 were brought into force at once (in 1958). The
effect of Section 1 (2) of the Amendment Act is that the provisions would           H
    704                    SUPREME COURT REPORTS (2000) SUPP. I S.C.R.

A become part of 1952 Act from its inception. It follows that Respondents 3 and
    4 ocquired right to succession of the last male tenure holder. f707-D-Ef

         3. The submission that inasmuch as the civil suit was barred in view of
   the provisions of Section 331 read with Schedule II of the Act, any finding
   recorded by the civil court could not be taken note of in the proceedings under
B the Consolidation Act is mis-conceived. Section 331 read with Schedule II
   bars jurisdiction of civil court only in respect of such reliefs which are
   mentioned in Schedule II and for their adjudication another authority has been
   prescribed thereunder. The suits were filed by father of Respondents 3 and 4
  for the reliefs of declaration of bhumidari right and for ejectment of the
C persons in possession including the appellants. The relief of ejectment of
  asamis which bars the jurisdiction of the civil court is mentioned at S. Nos.
   19, 20 and 21 of Schedule II. Further, it is not every suit of declaration that
  is barred under Section 331; the categories of declaration which cannot be
  granted by a civil court are those mentioned against S. No. 34 and they are of
  the types specified in Sections 229, 229-8 and 229-C. The suit filed by the
D father of Respondents 3 and 4 does not fall under any of the aforementioned
  sections. The only ground on which the suit was held to be barred was that
  the appellants were asamis and their ejectment could not be granted by the
  civil court. A finding recorded by the civil court on the question of
  jurisdictional fact is binding on the parties to the suit. f707-F-H; 708-Af
E
          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2780 of 1984.

          From the Judgment and Order dated 23.12.81 of the Allahabad High
    Court in C.M. W. No. 3820 of 1969.

F        Pramod Swarup, Parveen Swarup, Ms. Seema Sandd and Ms. Pareena
    Swarup for the Appellants.

          Anil Kumar Jha for the Respondents.

          The following Judgment of the Court was delivered :
G
         This appeal, by special leave, is directed against the order of the High
    Court of Judicature at Allahabad in Civil Miscellaneous (Writ) No. 3820 of
    1969 on December 23, 1981.

         The controversy in this appeal relates to the nature of right which Kali
H   Prasad and others (the appellants) are holding the plots in question under the
           KALI PRASAD v. DEPUTY DIRECTOR OF CONSOLIDATION                      705
    U.P. Zamindari, Abolition & Land Reforms Act, 1950 (for short 'the U.P.            A
    Zamindari Act').

          The appeal relates to one of the two sets of plots in village Pakar, Tappa
    Pachauri, Pargana Hasanpur Maghar, Tehsil Sadar, P.O. Madanpur, District
    Gorakhpur-one set consisted of 12 plots and the other consisted of 13 plots.
    In both these sets of plots, the appellants were recorded as occupants along       B
    with some other persons in different combinations.

          Here, we are concerned with the set of 13 plots, namely, plot Nos.131,
    132, 388, 465, 471, 758, 760, 855, 893, 894, 895, 896 and 897. Both those sets
    of plots were co.mbined and joint entries were made in revenue records.
    Appeals were filed before the Settlement Officer (Consolidation) for correction    C
    of the entries. Appeal Nos. 784 and 785 relate to correction of entries in the
    said plots. Smt. Partapi was Khatedar and respondents 3 and 4 were asamis
    of these plots.

           After the death of Smt. Partapi on October 31, 1952, Ram Dulare (father     D
    of respondents 3 and 4) filed two civil suits in the court of District MunsitT
    claiming declaration of bhumidari rights and ejectment of the appellants and
    others. Though, the learned MunsitT decreed the suit in respect of 13 plots
    in question also yet on appeal by the appellants, the learned District Judge
    set aside the judgment and decree of the Trial Court on the ground that the
    civil court had no jurisdiction and ordered that the plaint be returned.           E
           Now reverting to the appeals before the Settlement Officer
    (Consolidation), he found, inter a/ia, that Smt. Partapi was the last Khatedar
    and the appellants were in adverse possession of the said plots. Despite
    institution of civil suits in 1954 by Ram Dulare, they could not be ejected from
    the plots and, therefore, they were entitled to Sirdari rights. Accordingly, he    F
    apportioned the plots, allotting shares to each one of them by his order dated
    August 22, 1963.

          That order gave rise to filing of five revision petitions, by respondents
    3 and 4 herein, before the Deputy Director (Consolidation), Gorakhpur. The
    Deputy Director (Consolidation) having considered the judgment of the District     G
    Judge noted that the claim of respondents 3 and 4 on the ground of being
    sister's sons of the last male tenure holder (Bal Karan) of the disputed land
    in respect of which Smt. Partapi was recorded as Khatedar, was not denied.
    What was argued before him was that respondents 3 and 4 being sister's sons
~   of Qal Karan were not entitled to the land after the death of Smt. Partapi. It     H
     706                    SUPREME COURT REPORTS [2000] SUPP. I S.C.R.

 A was, however, admitted that the appellants herein were in possession of the
   land 1359 F but it was argued that they were simply asamis and they had not
   acquired any Sirdari rights. The contention of the appellants herein before the
   Deputy Director (Consolidation) was that even if they were held to be asamis,
  as they were not ejected within the period of limitation by filing a suit under
B Section 209 of the U.P. Zamindari Act, they acquired Sirdari rights. The
  alternative submission was that they had perfected their right by adverse
  possession. The Deputy Director (Consolidation) took the view that Sections
   16, 19 and 209 of the U.P. Zamindari Act do not apply to the case and that
  the appellants continued to be asamis under Section 3 of the U.P. Land
  Reforms (Supplementary) Act XXXI of 1952, as such they cannot claim to be
C Sirdaris on the ground that the said respondents did not file any suit for their
  ejectment. In his opinion, as no period of limitation is prescribed for such
  cases, a suit can still be filed for their ejectment. The Deputy Director
  (Consolidation) thus allowed the appeals of the said respondents on September
  3, 1969. Assailing that order, the appellants filed writ petition before the High.
  Court of Allahabad which was dismissed on December 23, 1981. It is the
D validity of that order of the High Court that is subject-matter of this civil
  appeal.

          Mr. Pramod Swarup, learned counsel appearing for the appellants, invited
   our attention to Section 191 of the U.P. Zamindari Act and contended that the
E rights of the appellants as asamis came to an end on the death of Smt. Partapi
   on October 31, 1952 and thereafter they were holding the plots adverse to the
   interest of respondents 3 and 4 and as no suit for ejectment was filed against
   them under Section 209 of the said Act, they perfected their rights by adverse
  possession. We are afraid, we cannot give effect to the submission of the
  learned counsel for reasons more than one. First, such was not the plea before
F the consolidation authorities and the High Court. Secondly, Section 209
  contemplates filing of a suit for ejectment of a person occupying land without
  title. In the civil litigation which started after the death of Smt. Partapi, the
  plaint was directed to be returned by the learned District Judge, in the appeals
  filed by the appellants herein, on the ground that the appellants were asamis
G and their ejectment could not be sought in a civil court. Evidently Section 209
  does not postulate eviction of asamis. Now, they cannot be permitted to
  approbate and reprobate by claiming that they are not asamis either under
  Section 3 of the U.P. Land Reforms (Supplementary) Act, 1952 or by virtue
  of the entries made in the records and even so they ceased to be asamis on
  the death of Smt. Partapi under Section 191 of the U.P. Zamindari Act. If
H Section 209 is not applicable, as held by us, the consequential provisions
            KALI PRASAD v. DEPUTY DIRECTOR OF CONSOLIDATION 707
,,
     contained in Section 210 will not be attracted.                                      A
          Another contention of Mr. Swarup is that sister's sons of Bal Karan
     became heirs only on the passing of the U.P. Zamindari Abolition & Land
     Reforms (Amendment) Act, 1958 and it cannot be given retrospective effect.

           The Amendment Act was passed in 1958. The question whether that                B
     Act was retrospective in nature, was considered by a Division Bench of
     Allahabad High Court in Second Appeal No. 2940 of 1964 and by its judgment
     dated April 18, 1973, it was rightly held that having regard to the provisions
     of Section 1(2) of the Amendment Act that Act was retrospective. The said
     provisions reads as under :
                                                                                          c
             "(I) This Act may be called the Uttar Pradesh Zamindari Abolition
                  and Land Reforms (Amendment) Act, 1958.

             (2) It shall be deemed to have come· into force from the first day of
                 July 1952, except Sections 37, 38 and 60 which shall come into
                 force at once."                                                          D
            A perusal of sub-section (2) of Section I makes it abundantly clear that
     all the provisions of the Amendment Act were brought into force from July
     I, 1952; only Sections 37, 38 and 60 were brought into force at once (in 1958).
     It is nobody's case that any of those sections are attracted here. The effect
     of Section 1(2) is that the provisions would become part of 1952 Act from its        E
     inception. It follows that respondents 3 and 4 acquired right to succession
     of Bal Karan.

            It is next contended that inasmuch as the civil suit was barred in view
     of the provisions of Section 331, read with Schedule II of the U.P. Zamindari
     Act, any finding recorded by the civil court could not be taken note of in the       F
     proceedings under the Consolidation Act. In our view, this submission is mis-
     conceived. Section 331 read with Schedule II bars jurisdiction of the civil
     court only in respect of such reliefs which are mentioned in Schedule II and
     for their adjudication another authority has been prescribed thereunder. The
     suits were filed by Ram Dulare (father of respondents 3 and 4) for the reliefs
     of declaration ofbhumidari rights and for ejectment of the persons in possession     G
     including the appellants. The relief of ejectment of asamis which bars the
     jurisdiction of the civil court, is mentioned at S. Nos. 19, 20 and 21 of Schedule
     II. Further, it is not every suit of declaration that is barred under Section 331;
     the categories of declaration which cannot be granted by a civil court are
 •   those mentioned against S.No. 34 and they are of the types specified in              H
    708                    SUPREME COURT REPORTS (2000) SUPP. I S.C.R.

A Sections 229, 229-B and 229-C. We have perused those provisions. The suit
    filed by Bal Karan does not fall under any of the aforementioned sections.
    The only ground on which the suit was held to be barred was that the
    appellants were asamis and their ejectment could not be granted by the civil
    court. A finding recorded by the civil court on the question of jurisdictional
    fact is binding on the parties to the suit.
B
          In view of the above discussion, we do not find any illegality in the
    judgment of the High Court confirming the judgment of the Deputy Director
    (Consolidation). The appeal fails and it is accordingly dismissed. In the
    circumstances of the case, we make no order as to costs.
c R.C.K.                                                       Appeal dismissed.