RAKESH & ORS. versus BOARD OF REVENUE U.P. & ORS. ETC. on 8 March 2019

RAKESH & ORS.

v.

BOARD OF REVENUE U.P. & ORS. ETC.

(Civil Appeal No. 5040 of 2008)

MARCH 08, 2019

[ASHOK BHUSHAN AND K.M. JOSEPH, JJ.]

Uttar Pradesh Zamindari Abolition and Land Reforms Act,1950 – ss.130, 131 and 134 – Application filed by Sirdar (tenant)for grant of Bhumidar Rights in respect of three plots along withdeposit of 20 times of land revenue – Sale deed executed by theSirdar next day in respect of these plots – Application for grant ofBhumidar rights rejected in respect of two plots – Revisionapplication filed by Sirdar challenging the same – Bhumidar Sanadgranted to Sirdar in respect of one plot only but after his death – ByOrdinance of 1977, Bhumidar with transferable rights were grantedto every Sirdar referred to in ss.130 and 131 of the 1950 Act –Ordinance was substituted by 1977 Act – Suits filed by the purchaserof the three plots on the basis of sale deed executed by the Sirdar –Trial court dismissed the suits – Appellate Authority allowed theappeal only with regard to the plot to which Sanad was grantedwhich order was upheld by Board of Revenue – Both the partiesfiled writ petitions – High Court allowed the writ petition ofpurchaser, decreed the suit in respect of other two plots also – Onappeal, held: Under s.134 r/w s.137, a Sirdar after depositing 20times of land revenue and making an application could obtainBhumidhari Sanad – ss.130 and 131 of the 1950 Act were substitutedby U.P. Ordinance No.1 of 1977 which was subsequently enactedas an Act namely, the U.P. Land Laws (Amendment) Act, 1977 –s.134 was omitted by the U.P. Land Laws (Amendment) Act, 1977 –The effect of the provision was that by statute, Bhumidhari rightwas conferred on Sirdar, w.e.f., 28.01.1977, the date of issue ofU.P. Ordinance No.1 of 1977 – s.73 of U.P. Land Laws (Amendment)Act, 1977 dealt with transitory provisions – s.73(1) provided thatall proceedings for acquisition of bhumidhari rights under ss.134and 135 of the 1950 Act as they stood immediately before 28.01.1977and all proceedings arising therefrom, pending on such date before

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Aany court or authority shall abate – Thus revision which was pendingagainst the rejection of grant of Bhumidhari Sanad, stood abatedby virtue of Ordinance No.1 of 1977 – s.73(2) provided that whereany proceeding has abated under sub-section (1) the amountdeposited for the acquisition of such rights shall be refunded to theperson depositing the same or to his legal representatives as theBcase may be – Thus, the claim of Sirdar to get Bhumidari rights onthe basis of his application with regard to two plot against whichrevision was filed stood terminated by virtue of provisions of s.73 –Hence, on the basis of the pendency of revision, no benefit couldbe taken by Sirdar – The benefit of a statutory provision shall beCapplicable to those Sirdars, who were Sirdars on the date whenOrdinance was enforced, which subsequently became an Act – Inthe instant case, on 28.01.1977, Sirdar was already dead and hislegal heirs were mutated in his place, thus, benefit of OrdinanceNo.1 of 1977 and the U.P. Act No. 8 of 1977 cannot be availed bySirdar, so as to validate his sale deed with regard to two Plots –DHigh Court committed error in allowing the writ petition filed by thecontesting respondent and decreeing the suit – U.P. ZamindariAbolition and Land Reforms (Amendment) Ordinance, 1977 – U.P.Land Laws (Amendment) Act, 1977 – s.73 – Land Laws.

Partly allowing the appeal, the CourtE

Conclusion

Partly allowing the appeal, the CourtE

HELD: 1.1Under Section 134 read with Section 137, aSirdar after depositing 20 times of land revenue and making anapplication could obtain Bhumidhari Sanad. Sections 130 and131 of U.P. Zamindari Abolition and Land Reforms Act, 1950 weresubstituted by U.P. Ordinance No.1 of 1977 - U.P. ZamindariFAbolition and Land Reforms (Amendment) Ordinance, 1977,which was subsequently enacted as an Act namely, the UttarPradesh Land Laws (Amendment) Act, 1977. Section 134 wasomitted by the Uttar Pradesh Land Laws (Amendment) Act, 1977.The effect of the provision was that by statute, Bhumidhari rightGwas conferred on Sirdar, w.e.f., 28.01.1977, the date of issue ofU.P. Ordinance No.1 of 1977, which was subsequently enactedas an Act, namely, U.P. Land Laws (Amendment) Act, 1977, whichwas deemed to have come into effect on 28.01.1977, the date ofissuance of Ordinance. The most important provision, which H

needs to be noticed in the Uttar Pradesh Land Laws (Amendment)Act, 1977 is Section 73, which dealt with transitory provisions.[Paras 14, 15, 16] [690-E-G; 691-G-H; 692-A]

1.2 Section 73(1) provides that all proceedings foracquisition of bhumidhari rights under sections 134 and 135 ofthe Uttar Pradesh Zamindari Abolition and Land Reforms Act,1950, as they stood immediately before 28.01.1977 and allproceedings arising therefrom, pending on such date before anycourt or authority shall abate. The revision against the order dated23.05.1975 was pending against the rejection of grant ofBhumidhari Sanad, which stood abated by virtue of OrdinanceNo.1 of 1977. Section 73(2) provides that where any proceedinghas abated under sub-section (1) the amount deposited for theacquisition of such rights shall be refunded to the persondepositing the same or to his legal representatives as the casemay be. Thus, sub-section (2) of Section 73 of U.P. Act No.8 of1977 contemplated that all proceedings pertaining to grant ofBhumidhari Sanad shall be abated and amount deposited shall berefunded to the person applying or the legal representative. Theconsequence of the said provision is that the revision, which wasfiled by Sirdar stood abated and the amount so deposited was tobe refunded to his legal representative. The claim of sirdar toget Bhumidari rights on the basis of his application dated25.11.1974 with regard to Plot Nos. 243 and 503, thus, stoodterminated by virtue of provisions of Section 73. In view ofprovisions of Section 73, the claim of Sirdar to get Bhumidharirights on the basis of his application dated 25.11.1974 stoodnegated. Hence, on the basis of the pendency of revision, nobenefit can be taken by Sirdar and High Court erred in law inholding that by Ordinance No.1 of 1977, Sirdar had also gotbenefited retrospectively. [Paras 17-19] [692-D-H; 693-A-B]

2. By statutory provision, i.e. Section 73, all pendingapplications and proceedings were abated and grant of Bhumidharirights was contemplated under Sections 130 and 131, which wassought to be inserted by U.P. Ordinance No.1 of 1977. The benefitof a statutory provision shall be applicable to those Sirdars, whowere Sirdars on the date when Ordinance was enforced, which A

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Asubsequently became an Act. On 28.01.1977, Sirdar was alreadydead and his legal heirs were mutated in his place, thus, benefitof Ordinance No.1 of 1977 and the U.P. Act No. 8 of 1977 cannotbe availed by Sirdar, so as to validate his sale deed dated26.11.1974 with regard to Plot Nos. 243 and 503. High Court,thus, committed error in allowing the writ petition filed by theBcontesting respondent and decreeing the Suit No. 30 of 1978.[Para 20] [693-B-D]

Deo Nandan and Another v. Ram Saran and Others(2000) 3 SCC 440 : [2000] 2 SCR 209 – relied on.

Ram Sabodh and Another v. Deputy Director ofConsolidation,U.P., Faizabad and Others 1982 All. L.J.1252 – held inapplicable C

Ram Pyare v. Ram Narain and Others(1985) 2 SCC162 : [1985] 2 SCR 918 – referred to D

Case Law Reference

1982 All. L.J. 1252[1985] 2 SCR 918[2000] 2 SCR 209

held inapplicablePara 3

referred toPara 9relied onPara 10

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5040of 2008.

From the Judgment and Order dated 03.03.2006 of the HighCourt of Judicature at Allahabad in Civil Misc. Writ Petition No. 3020 of1984.

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Pramod Swarup, Sr. Adv., Ms. Pareena Swarup, Ms. SushmaVerma, Atul Kumar Pandey, Ravinder Kumar, Prashant Chaudhary,GAdvs. for the Appellants.

Abhishek Chaudhary, Tanmaya Agarwal, Rohit Kaliyar, Advs.for the Respondents.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J. This appeal has been filed against thejudgment of Allahabad High Court dated 03.03.2006 deciding the twowrit petitions being Writ Petition No. 16105 of 1983 filed by predecessors-in-interest of the appellant and Writ Petition No. 3020 of 1984 filed byrespondent No.4.

2. Brief facts of the case necessary for deciding this appeal are:- 2.1 One Pursottam was the Sirdar (a category of tenancy) ofagricultural plots Nos. 243, 503 and 1/3[rd] share in Plot No.521 situated in Village Pilkhana, District Shahjahanpur. On25.11.1974, Pursottam deposited 20 times of the land revenueand made an application for grant of Bhumidhar rights inaccordance with U.P. Zamindari Abolition and Land ReformsAct, 1950. On 26.11.1974, Pursottam executed a sale deedof the aforesaid three plots in favour of Ajudhi @ Ayodhya.On 23.05.1975, application of Pursottam for grant ofBhumidhari Sanad for plot Nos. 243 and 503 was rejected. Arevision application was filed by Pursottam challenging theorder dated 23.05.1975. With regard to Plot No. 521,Bhumidhari Sanad was granted in the name of Pursottam byorder of Assistant collector on 05.01.1976, before which on04.12.1975, Pursottam has died.

2.2 By Uttar Pradesh Zamindari Abolition and Land Reforms(Amendment) Ordinance, 1977 (U.P. Ordinance No.1 of 1977),promulgated on 28.01.1977, Bhumidhar with transferable rightswere granted to every Sirdar referred to in Sections 130 and131 of U.P. Zamindari Abolition and Land Reforms Act. Theordinance No.1 of 1977 was substituted by U.P.Act No.8 of1977 enforced with effect from 28.01.1977.

2.3 Ajudhi @ Ayodhya filed two suits – Suit No. 30 of 1978 prayingfor declaration of Bhumidhari Rights in Plot Nos. 243 and 503and Suit No. 31 of 1978 claiming declaration of BhumidhariRights in Plot No. 521 on the basis of sale deed dated 26.11.1974executed by Pursottam.

2.4 The trial court dismissed both the suits by judgment dated23.03.1979. Two appeals were filed by respondents against A

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the judgment of trial court. Additional Commissioner allowedAppeal No. 436/6 of 1979 decreeing the suit No. 31 of 1978with regard to Plot No. 521, with regard to which Sanad wasgranted,but the Additional Commissioner dismissed the appealNo. 435/5 of 1979 arising out of Suit No. 30 of 1978. Bothappellant and respondent filed second appeal before the Boardof Revenue against the judgment of the AdditionalCommissioner. Board of Revenue vide its judgment dated18.11.1983 dismissed both the second appeals.

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2.5 Parties filed writ petitions against the order of Board of Revenue.Ram Bilas died during the pendency of the writ petition, whoseCheirs were brought on record. Writ Petition No. 16105 of 1983was filed by predecessor-in-interest of the appellant whereasWrit Petition No. 3020 of 1984 was filed by respondents. HighCourt vide its impugned judgment dated 03.03.2006 allowedthe Writ Petition filed by respondent and dismissed the writDpetition filed by the appellant. By judgment of the High Court,Suit No.30 of 1978 also stood decreed. Appellant, aggrievedby the said judgment has come up in this appeal.

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3. Shri Pramod Swarup, senior Advocate, learned counsel for theappellant submits that both the suits filed by respondent deserves to beEdismissed in view of the fact that Pursottam had no right to executedsale deed of Sirdari rights on 26.11.1974. Although, he had submitted anapplication for Bhumidhari Sanad but he having died on 05.12.1976 beforegrant of Sanad, Bhumidhari rights shall accrue to his legal heirs and theplaintiffs have no right to be declared as Bhumidhari. He further submitsthat in any view of the matter, with regard to Plot Nos. 243 and 503,Fapplication for Bhumidhari Sanad was rejected on 23.05.1975, hencewith regard to aforesaid two plots, Suit No. 30 of 1978 deserves to bedismissed. Learned counsel for the appellant placed reliance on judgmentof Allahabad High Court in Ram Sabodh and Another Vs. DeputyDirector of Consolidation, U.P., Faizabad and Others, 1982 All.GL.J. 1252.

4. Shri Abhishek Chaudhary, learned counsel for the respondentrefuting the submissions of the learned counsel for the appellant contendsthat both the suits filed by the respondent deserves to be decreed, sincePursottam (deceased) having deposited the 20 times of the land revenueHand made an application on 25.11.1974 for grant of Bhumidhari rights,bhumidhari rights shall be treated to have been granted, w.e.f., thedate of making of application, i.e., 25.11.1974, in view of the provision ofSection 137 of the U.P. Zamindari Abolition and Land Reforms Act,1950. With regard to Plot Nos. 243 and 503, with regard to whichapplication for grant of Sanad was rejected on 23.05.1975 a revisionwas filed by Pursottam, which was pending at the time when U.P.Ordinance No. 1 of 1977 was enforced granting Bhumidhari rights toSirdars, by which the revision stood abated.

5. We have heard the learned counsel for the parties and haveperused the records.

6. The High Court in its impugned judgment has taken the viewthat insofar as Suit No. 31 of 1978 filed by respondent was concerned,Bhumidhari Sanad was granted in favour of Pursottam (deceased),although, after his death but the said Sanad will have retrospective effectmaking Pursottam Bhumidhar w.e.f. 25.11.1974, hence no error wascommitted by decreeing Suit No.31 of 1978. Coming to Suit No. 30 of1978, filed by the respondent, High Court took the view that in view ofthe fact that Pursottam had challenged the rejection of the application,which was subjudice when the proceedings were abated on account ofOrdinance No.1 of 1977,the legal heirs of Pursottam cannot contendcontrary to the interest of Pursottam. The High Court also relied onSection 43 of the Transfer of Property Act in upholding the claim of therespondent.

7. Before we consider the submissions of the learned counsel forthe parties, it is necessary to refer to provisions of U.P. Zamindari Abolitionand Land Reforms Act, 1950. Section 134 of the Act provides foracquisition of Bhumidhari rights by a Sirdar. Section 134(1) (existing atthe relevant time) is as follows:- “134. Acquisition of bhumidhari rights by a sirdar.— (1) If asirdar, not being a sirdar, referred to in clause (b) of Section 131deposits to the credit of the State Government an amount equal totwenty times the land revenue payable or deemed to be payableon the date of application for the land of which he is the sirdar, heshall, upon an application duly made in that behalf to an AssistantCollector, be entitled, with effect from the date on which the amounthas been so deposited, to a declaration that he has acquired therights mentioned in Section 137 in respect of such land:

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AExplanation I. – For the purposes of this sub-section, the expression‘land’ includes share in land.

Explanation II. – For the purpose of this section the land revenuepayable shall—

(a) in respect of land referred to in the proviso to clause (a) ofBsub-section (1) of Section 246, be an amount arrived at afterall the increases have been given effect to; and

(b) in respect of land to which the proviso to Section 247 applies,be an amount determined at hereditary rates under thatsection.”

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8. Section 137 provides for Grant of certificate. Section 137 as itexisted at the relevant time is quoted as below:- “137. Grant of certificate.— (1) If the application has beenduly made and the Assistant Collector is satisfied that the applicantis entitled to the declaration mentioned in Section 134 he shallDgrant a certificate to that effect.

(2) Upon the grant of the certificate under sub-section (1) thesirdar shall from the date on which the amount referred to in sub-section (1) of Section 134 has been deposited:

(a) become and the be deemed to be a bhumidhar of the holingor the share in respect of which the certificate has beengranted, and E

(b) Be liable for payment of such reduced amount on accountof land revenue for the holding or his share therein, as the caseFmay be as shall one-half of the amount of Land revenue payableor deemed to be payable by him therefor on the date ofapplication.

Provided further that in the cases referred to in Explanation II ofsection 134 sirdar shall, during the period a reduced amount isGpayable in accordance with Section 246 or 247, be liable forpayment of one-half of the amount payable from time to time.

Explanation.—For purpose of clause (b) the land revenue payableby a sirdar on the date aforesaid shall, where it exceeds an amountdouble that computed at the hereditary rates applicable, be deemedto be equal to such amount.

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(2-A) Where the amount referred to in sub-section (1) of Section134 is deposited on a date other than the first day of the agriculturalyear, the land revenue payable by the bhumidhar under clause (b)of sub-section (2) for the remainder of the agricultural year inwhich the amount is deposited shall be determined in such manneras may be prescribed.”

9. We may first take up the case of the Suit No.31 of 1978 filedby the respondent with regard to which declaration was sought for PlotNo. 521. With regard to Plot No.521 Bhumidhari Sanad was issued on05.01.1976 in the name of Pursottam. Additional Commissioner, Boardof Revenue and the High Court taken the view that Bhumidhari certificateshall relate back to the date of application by Pursottam and sale deedexecuted by him for Plot No.521 was valid. This Court had occasion toconsider Sections 134 and 137 of U.P. Zamindari Abolition and LandReforms Act, 1950 as well as Section 43 of the Transfer of PropertyAct in Ram Pyare Vs. Ram Narain and Others, (1985) 2 SCC 162.In the above case, the Sirdar tenant deposited land revenue and madean application for grant of Bhumidhari Sanad on 28.10.1961 and on thesame day, he sold the land to appellant. Certificate was issued on30.10.1961. The suit was filed by the sons of Sirdarpraying for cancellationof sale deed. High Court decreed the suit against which the appeal wasfiled. This Court held that Section 43 of the Transfer of Property Actwas applicable and the tenure holder acquired the Bhumidhari rights andthe suit filed by the sons of Matbar Mal was liable to be dismissed.After referring to provisions of Section 134 and 137 of the U.P. ZamindariAbolition and Land Reforms Act, 1950, this Court laid down following inParagraph No.4:-

“4. The decision in Dhani Ram v. Jokhu was approved by anotherDivision Bench of the same court consisting of S.D. Khare andR.B. Misra, JJ., in Ram Swarup v. Deputy Director, Consolidation,ILR (1971) 1 All. 698. In the latter case the learned Judgesexpressed the further opinion that in a situation like the one beforethem, there was no reason why recourse should not be had toSection 43 of the Transfer of Property Act to feed the title as itwere, if the necessary conditions were fulfilled. We agree withthe reasoning of the learned Judges in Ram Swarup v. DeputyDirector, Consolidation. In that case, the matter was remanded tothe Deputy Director of Consolidation to consider the question of A

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the applicability of Section 43 of the Transfer of Property Act andproceed to dispose of the matter in accordance with law. In thepresent case, the facts speak for themselves and we do not thinkthat it is necessary to remand the case to the lower courts for adecision on the question of the applicability of Section 43 of theTransfer of Property Act. The amount of deposit under Section134 of the U.P. Zamindari Abolition Act was made on October28, 1961 and it was on the same day that the sale deed wasexecuted by Matbar Mal. It is clear that Matbar Mal erroneouslyrepresented to the vendee that he was authorised to transfer theproperty and professed to transfer such property for consideration.The very execution of the sale deed on the same day as the depositof the requisite amount under Section 134 is significant enough toestablish that the sale deed was the result of an erroneousrepresentation by Matbar Mal. It is also clear that the presentplaintiffs who are the sons of the vendor, Matbar Mal cannotpossibly claim to be transferees in good faith which indeed theydo not claim to be. Section 43 clearly applies to the situation. Thelearned counsel for the respondents however attempted to disclaimthe applicability of Section 43 of the Transfer of Property Act byreferring to Jumma Masjid v. Kodimaniandra Deviah, AIR 1962SC 847. He invited our attention to the following observations ofthe learned Judges:

“Now the compelling reason urged by the appellant for readinga further exception in Section 43 is that if it is construed asapplicable to transfers by persons who have only spessuccessionis at the date of transfer, it would have the effect ofnullifying Section 6(a). But Section 6(a) and Section 43 relateto two different subjects, and there is no necessary conflictbetween them; Section 6(a) deals with certain kinds of interestsin property mentioned therein, and prohibits a transfer simpliciterof those interests. Section 43 deals with representations as totitle made by a transferor who had no title at the time of transfer,and provides that the transfer shall fasten itself on the titlewhich the transferor subsequently acquires. Section 6(a) enactsa rule of substantive law, while Section 43 enacts a rule ofestoppel which is one of evidence. The two provisions operate on different fields, and under different conditions, and we seeno ground for reading a conflict between them or for cuttingdown the ambit of the one by reference to the other. In ouropinion, both of them can be given full effect on their ownterms, in their respective spheres. To hold that transfers bypersons who have only a spes successionis at the date of transferare not within the protection afforded by Section 43 woulddestroy its utility to a large extent.”

We are unable to see in what manner these observations canpossibly assist the respondents. In the same decision, it has beenobserved later, referring to the decision of the Madras High Courtin Official Assignee, Madras v. Sampath Naidu, AIR 1933 Mad.795:

“This reasoning is open to the criticism that it ignores the principleunderlying Section 43. That section embodies, as already stated,a rule of estoppel and enacts that a person who makes arepresentation shall not be heard to allege the contrary asagainst a person who acts on that representation. It is immaterialwhether the transferor acts bona fide or fraudulently in makingthe representation. It is only material to find out whether infact the transferee has been misled. It is to be noted that whenthe decision under consideration was given, the relevant wordsof Section 43 were, ‘where a person erroneously represents’,and now, as amended by Act 20 of 1929, they are ‘where aperson fraudulently or erroneously represents’, and thatemphasises that for the purpose of the section it matters notwhether the transferor acted fraudulently or innocently inmaking the representation, and that what is material is that hedid make a representation and the transferee has acted on it.Where the transferee knew as a fact that the transferor didnot possess the title which he represents he has, then he cannotbe said to have acted on it when taking a transfer. Section 43would then have no application and the transfer will fail underSection 6(a). But where the transferee does act on therepresentation, there is no reason why he should not have thebenefit of the equitable doctrine embodied in Section 43,however fraudulent the act of the transferor might have been.”

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A10. Another judgment, which is relevant for the present case isDeo Nandan and Another Vs. Ram Saran and Others, (2000) 3SCC 440. In the said case, one Bechan was the Sirdar of agriculturalland. He filed an application on 25.08.1964 for grant of BhumidhariSanad and on 25.08.1964, he executed a sale deed of the land to theplaintiff-appellant. Before any order could be passed granting theBBhumidhari Sanad in favour of Bechan, he died on 15.09.1964. Thewidow of Bechan on 05.01.1965 sold the land. Sanad was issued on09.02.1965 in favour of Bechan w.e.f. 25.08.1964, the date on whichthe application was made. Plaintiff-appellant filed a suit challenging thesale deed executed by wife of tenure holder. High Court held that onC25.08.1964, Bechan had not acquired any right, title or interest, hence hecannot transfer any right by executing a sale deed in favour of the plaintiff-appellant. This Court referred to provisions of Section 134 and 137 andheld that the declaration must necessarily take effect from the date whenthe amount is deposited. In paragraph No.7, following has been laiddown:-D

“7. Section 134, from its plain language, indicates and shows thaton the application being made and 10 times the land revenue beingpaid, the sirdar becomes entitled “with effect from the date onwhich the amount had been deposited” to a declaration that hehas acquired the rights mentioned in Section 137 of the Act. TheEsection clearly specifies the date with effect from which the rightswould stand acquired: the date is the one on which the amountcontemplated by Section 134 is deposited. This clearly obviatesthe uncertainty of the point of time when the title is transferred byfixing the date as being the one when the amount is deposited. ItFwould be immaterial as to when the declaration under Section137 is made because that declaration must necessarily take effectfrom the date when the amount is deposited.”

11. The submission that before grant of Sanad, the applicant haddied was also considered by this Court in paragraph No.9 and it wasGheld that the certificate will have a retrospective effect. The view ofthe High Court was disapproved and suit was held to be entitled to bedecreed. In paragraph Nos.9 and 10, following has been laid down:-

“9. It is no doubt true that in the Full Bench decision in Banshidharv. Dhirajadhari, AIR 1971 ALL. 526 (FB), in the Single Judge H

decision in Mobin Khan v. Chunnu Khan, 1981 All. LJ 402,and in the decision in Raghunandan Singh v. Vashwant Singh,1978 RD 183, a different view has been expressed by theAllahabad High Court. In the Full Bench decision, the view takenis that it is from the date when the order is passed under Section137 that the sirdar becomes a bhumidhar. In the latter two cases,it has been held that if after filing of the application and makingpayment of the land revenue the applicant dies, then certificate inhis name cannot be granted. In our opinion, the said decisions runcounter to the plain language and meaning of Sections 134 and137 as they stood at the relevant point of time. When a certificateis issued under Section 137, it in fact recognises the position as onthe date when the application was made and the paymentcontemplated under Section 134(1) was deposited. The certificate,in other words, will have a retrospective effect and would relateback to the date of the application. There was nothing to preventthe Revenue Authorities from allowing the application filed underSection 134(1) on the day when it was presented. The underlyingintention of the legislature, therefore, clearly is that as and whenthe said application is accepted and order is passed under Section137, it must relate back to the date when the application wasfiled. Such a situation is not unknown to law. Mr Prem PrasadJuneja, learned counsel for the appellants, as an analogy, has drawnour attention to Order 22 Rule 6 CPC which provides that if anyof the parties to a suit dies after the hearing has been completedand before the judgment is pronounced, the suit would not abate.The doctrine of relation back has been incorporated in Sections134 and 137 of the U.P. Zamindari Abolition and Land ReformsAct.

10. We are, therefore, of the opinion that the lower appellate courthad rightly interpreted Sections 134 and 137 and the High Courtwas in error in overruling the said decision.”

12. In view of law as laid down above, the judgment of AllahabadHigh Court in Ram Sabodh(Supra) cannot help the appellant. Thejudgment of this Court in Deo Nandan and Another (supra) fully coversthe claim of the plaintiff-respondent with regard to Suit No. 31 of 1978relating to Plot No.521, with regard to which Sanad was granted after AB

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Adeath of Pursottam. We are of the view that Additional Commissioner,Board of Revenue and High Court committed no error in decreeing SuitNo.31 of 1978.

13. Now, we come to the claim of the plaintiff-respondent withregard to Plot Nos. 243 and 503 in Suit No.30 of 1978. The facts revealBthat with regard to aforesaid plots, although application was made on25.11.1974 by depositing the 20 times amount of the land revenue, butthe application was rejected on 23.05.1975 by the Assistant Collector. Arevision was filed by Pursottam challenging the said order, which waspending at the time when U.P. Ordinance No.1 of 1977 was issuedabating the proceedings. High Court has noted that the claim of PursottamCto grant of Bhumidhari Sanad was subjudice in revision,when theproceedings were abated. It was further observed that legal heirs, whowere brought on the record on the revision, due to death of Pursottam,were competent to represent the estate of deceased and cannot setupany claim adverse to the interest of the deceased. High Court observedDthat had Pursottam not died, he would have acquired the status ofBhumidhar under Ordinance No.1 of 1977 and since he had alreadyexecuted the sale deed after depositing 20 times land revenue, it wouldhave related back to the date when he made the application and depositedthe amount.

E14. We may first notice the provisions of U.P. Ordinance No.1 of1977, which has been referred to by the High Court and which arerelevant in the facts of the present case. We have noticed above thatunder Section 134 read with Section 137, a Sirdar after depositing 20times of land revenue and making an application could obtain BhumidhariSanad. Sections 130 and 131 of U.P. Zamindari Abolition and LandFReforms Act, 1950 were substituted by U.P. Ordinance No.1 of 1977 -U.P. Zamindari Abolition and Land Reforms (Amendment) Ordinance,1977, which was subsequently enacted as an Act namely, the UttarPradesh Land Laws (Amendment) Act, 1977, which areto the followingeffect:-G“Section 3: Substitution of sections 130 and 131—Forsections 130 and 131 of the principal Act, the following sectionsshall be substituted, namely:—

“130. Bhumidhar with transferable rights.—Every personbelonging to any of the following classes, not being a personH

referred to in section 131, shall be called a bhumidhar withtransferable rights, and shall have all the rights and be subjectto all the liabilities conferred or imposed upon such bhumidharsby or under this Act, namely—

(a) every person who was a bhumidhar immediately before thedate of commencement of the Uttar Pradesh Land Laws(Amendment) Act, 1977; (b) every person who, immediately before the said date, was asirdar referred to in clause (a) or clause (c) of section 131,as it stood immediately before the said date;

(c) every person who in any other manner acquires on or afterthe said date the rights of such a bhumidhar under or inaccordance with the provisions of this Act.

131. Bhumidhar with non-transferable rights.—Every personbelonging to any of the following classes shall be called abhumidhar with non-transferable rights, and shall have all therights and be subject to all the liabilities conferred or imposedupon such bhumidhars by or under this Act, namely—

(a) every person admitted as a sirdar of any land under section195 before the date of commencement of the Uttar PradeshLand Laws (Amendment) Act, 1977, or as a bhumidhar withnon-transferable rights under the said section on or afterthe said date; (b) every person who in any other manner acquires on or afterthe said date, the rights of such a bhumidhar under or inaccordance with the provisions of this Act;

(c) every person who is, or has been allotted any land under theprovisions of the Uttar Pradesh Bhoodan Yagna Act, 1952.”

15. Section 134 was omitted by the Uttar Pradesh Land Laws(Amendment) Act, 1977. The effect of the provision was that by statute,Bhumidhari right was conferred on Sirdar, w.e.f., 28.01.1977, the dateof issue of U.P. Ordinance No.1 of 1977, which was subsequently enactedas an Act, namely, U.P. Land Laws (Amendment) Act, 1977, whichwas deemed to have come into effect on 28.01.1977, the date of issuanceof Ordinance.

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A16. The most important provision, which needs to be noticed inthe Uttar Pradesh Land Laws (Amendment) Act, 1977 is Section 73,which dealt with transitory provisions, which is as follows:- “Section 73: Transitory provisions

(1) Notwithstanding anything contained in any other law for theBtime being in force all proceedings for acquisition of bhumidharirights under sections 134 and 135 of the Uttar Pradesh ZamindariAbolition and Land Reforms Act, 1950, as they stood immediatelybefore January 28, 1977 and all proceedings arising therefrom,pending on such date before any court or authority shall abate.

C(2) Where any proceeding has abated under sub-section (1) theamount deposited for the acquisition of such rights shall be refundedto the person depositing the same or to his legal representativesas the case may be.”

17. Section 73(1) provides thatall proceedings for acquisition ofDbhumidhari rights under sections 134 and 135 of the Uttar PradeshZamindari Abolition and Land Reforms Act, 1950, as they stoodimmediately before 28.01.1977 and all proceedings arising therefrom,pending on such date before any court or authority shall abate.

18. The revision against the order dated 23.05.1975 was pendingEagainst the rejection of grant of Bhumidhari Sanad, which stood abatedby virtue of Ordinance No.1 of 1977, as has been noted by the HighCourt in its judgment. The most important provision is Section 73(2),which provides that where any proceeding has abated under sub-section(1) the amount deposited for the acquisition of such rights shall beFrefunded to the person depositing the same or to his legal representativesas the case may be.

19. Thus, sub-section(2) of Section 73 of U.P.Act No.8 of 1977contemplated that all proceedings pertaining to grant of Bhumidhari Sanadshall be abated and amount deposited shall be refunded to the personapplying or the legal representative. The consequence of the saidGprovision is that the revision, which was filed by Pursottam stood abatedand the amount so deposited was to be refunded to his legalrepresentative. The claim of Pursottam to get Bhumidari rights on thebasis of his application dated 25.11.1974 with regard to Plot Nos. 243and 503, thus, stood terminated by virtue of provisions of Section 73 as H

extracted above. In view of provisions of Section 73 as extracted above,the claim of Pursottam to get Bhumidhari rights on the basis of hisapplication dated 25.11.1974 stood negated. Hence, on the basis of thependency of revision, no benefit can be taken by Pursottam and HighCourt erred in law in holding that by Ordinance No.1 of 1977, Pursottamhad also got benefited retrospectively.

20. By statutory provision, i.e. Section 73, all pending applicationsand proceedings were abated and grant of Bhumidhari rights wascontemplated under Sections 130 and 131, which was sought to beinserted by U.P. Ordinance No.1 of 1977. The benefit of a statutoryprovision shall be applicable to those Sirdars, who were Sirdars on thedate when Ordinance was enforced, which subsequently became anAct. On 28.01.1977, Pursottam was already dead and his legal heirswere mutated in his place, thus, benefit of Ordinance No.1 of 1977 andthe U.P. Act No. 8 of 1977 cannot be availed by Pursottam, so as tovalidate his sale deed dated 26.11.1974 with regard to Plot Nos. 243 and503. High Court, thus, committed error in allowing the writ petition filedby the contesting respondent and decreeing the Suit No. 30 of 1978.

21. The writ petition filed by respondent No.3 questioning thedecision of Courts below with regard to Suit No.30 of 1978 was notliable to be allowed by the High Court. All the Courts below includingthe Board of Revenue had taken correct view with regard to Suit No.30of 1978 filed by the respondent.

22. In result, the appeal is partly allowed. The judgment of theHigh Court insofar as it allows the Writ Petition No.3020 of 1984 filedby Ajudhi @ Ayodhya is set aside. The judgment of the High Courtinsofar as it dismissed the Writ Petition No. 16105 of 1983 is affirmed.In consequences, the judgment of the Courts below decreeing the SuitNo. 31 of 1978 of respondent Ajudhi @ Ayodhya is maintained, whereasjudgment of High Court decreeing the Suit No. 30 of 1978 is set aside.Suit No.30 of 1978 of Ajudhi @ Ayodhya stands dismissed. The appealis decided accordingly. Parties shall bear their own costs.

Devika Gujral

Appeal partly allowed.

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