SUPREME COURT OF INDIA

Before:- S. Saghir Ahmad and R.P. Sethi, JJ.

Civil Appeal No. 1731 of 1982. D/d. 21.4.1999.

Sarnam Singh and another - Appellants

Versus

Dy. Director of Consolidation and others - Respondents

Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, Section 19 - U.P. Tenancy Act, 1939, Section 27 - Writ - Error of fact - Tenancy - Sirdari rights - Appellant held to be sirdars by Consolidation Officer after found them in possession - Deputy Director of Consolidation reversed the same - Specific pleadings in writ petition that appellant had made an application for their reinstatement Under Section 27 of 1939 Act supported by copy of application - High Court committed an error of fact in recording finding that no application made - Judgment set aside and matter remanded.

[Para 7]

JUDGMENT

Sarnam Singh and Brahamanand who are the appellants before us were let out certain land by the Zamindar who subsequently evicted them from that land in 1943 in proceedings under Section 171 of the U.P. Tenancy Act. Later, when the U. P. Tenancy Act was amended by the U. P. Act X of 1947 and Section 27 was inserted in that Act, the appellants made an application for reinstatement over that land.

2. While the proceedings under Section 27 were pending, U.P. Zamindari Abolition and Land Reforms Act, 1950 was enforced with effect from 1-7-1952. In the meantime, proceedings under the U. P. Consolidation of Holdings Act started in pursuance of a notification issued under Section 4 of the Act. The proceedings under Section 27 of the U.P. Tenancy Act were, on the date of Notification, pending and had not been disposed of. In those proceedings under the U.P. Consolidation of Holdings Act, respondents 2 to 7 filed objections under Section 9A (2) of the Act claiming Sirdari rights over the plots in question. The Consolidation Officer by his order dated 30-8-1970 dismissed the objections with the findings that the appellants were in possession over the land in question in 1356 and 1359 Fasli and, therefore, they had become Sirdars of that land under Section 19 of the U. P. Zamindari Abolition and Land Reforms Act. This order was upheld by the Settlement Officer, Consolidations, but set aside in revision by the Deputy Director of Consolidation. The appellants, thereafter, filed a writ petition in the High Court which has been dismissed by the impugned judgment with the finding that the benefit of Section 27 of U.P. Tenancy Act will not be available to the writ petitioners as they had not made any application under that Section for their reinstatement over that land.

3. Learned counsel for the appellants has contended that the High Court has committed an error of fact in recording the findings. He has drawn our attention to the copy of the writ petition filed in the High Court. Paragraphs 1 to 8 of the writ petition, which are relevant, are reproduced below :

"That the respondent Nos. 2 to 4 filed an objection under Section 9 of the U.P. Consolidation of Holdings Act, in respect of Khata Nos. 261, (Plot Nos. 251/1, 261/3, 254/1, 223) Khata No. 273 (Plot Nos. 80-81, 217, 219, 220) Khata No. 135 (Plot Nos. 221/060, 224/0.72, 225/0.63) situate in village Chilsari Shamshabad East, District Farrukhabad with the allegations that they were ejected under Section 171 of the U. P. Tenancy Act by the then Zamindar and their ejectment was based on fraud and undue influence exercised by the Kukhtar-e-am (sic) of the Zamindar.

2. That they further alleged that they applied for the reinstatement u/Section 27 of the Act X of 1947 and during the pendency of the writ petition the notification u/Section 4 of the C.H. Act was made in the village.

3. That the petitioners contested the objection of the respondent Nos. 2 to 4 on the ground that they as well as the respondent Nos. 2 to 4 and 8 were ejected u/Section 171 of the U. P. Tenancy Act. They further alleged that all the above petitioners and the aforesaid respondents, i.e. respondent Nos. 2 to 4 and 8 applied for reinstatement u/Section 27 of the Act X of 1947. The action for restoration of possession had not concluded when the Consolidation proceedings came in and the dispute had been stayed.

4. That the other respondents contested the objection of the respondent Nos. 2 to 4 on the ground that after the ejectment u/Section 171 of the U. P. Tenancy Act the Zamindar let out the disputed land to them and they are in possession over the same. They further contested the objection on the ground that the Consolidation Courts had no jurisdiction to decide the application for reinstatement u/Section 27 of Act X of 1947.

5. That the Consolidation Officer dismissed the objection of the respondent Nos. 2 to 4 and maintained the basic year entries in the names of the petitioners, and respondents Nos. 5 to 8 on the ground that the Consolidation Courts have no jurisdiction to decide the application u/Section 27 of the Act X of 1947. He has relied upon the single Judge ruling of this Hon'ble Court. The true copy of the order of the Consolidation Officer dated 30-9-70/7-10-70 is filed herewith and marked as Annexure "A" to this writ petition.

6. That the respondent Nos. 2 to 4 filed an appeal against the order of the Consolidation Officer, which was dismissed by the Settlement Officer (Consolidation) on the ground that the Consolidation Courts have no jurisdiction to decide the application under Section 27 of the Act X of 1947. He has adopted the same reasoning as adopted by the Consolidation Officer. The true copy of the order of the Settlement Officer (Consolidation) dated 18-5- 1971 is filed herewith and marked as Annexure "B" to this writ petition.

7. That the respondent Nos. 2 to 4 filed a revision against the order of the Settlement Officer (Consolidation) to the Distt. Deputy Director of Consolidation and the Deputy Director of Consolidation allowed the revision on the ground that the single Judge ruling of this Hon'ble Court had been overruled by the Division Bench ruling as such the Consolidation Courts have jurisdiction to decide the application u/Section 27 of the Act X of 1947. He has further held that the petitioners being recorded in the basic year are entitled to retain possession up to three years from the date of reinstatement and during that period they shall be recorded as Asamis over the disputed land recorded in their names in the basic year. The certified copy of the order of the Deputy Director of Consolidation Officer (sic) dated 17-9-1971 is filed herewith and marked as Annexure "C" to this writ petition.

8. That the order of the respondent No. 1 is illegal and without jurisdiction. He has wrongly said in his judgment that the petitioners did not apply for the reinstatement u/Section 27 of the Act X of 1947. He has further illegally held that the names of the petitioners being recorded in the basic years shall be recorded as Asamis of the disputed land. The respondent Nos. 2 to 4 and 8 and the petitioners were ejected u/Section 171 of the U. P. Tenancy Act and they had jointly moved an application u/Section 27 of Act X of 1947 for reinstatement.

4. Grounds Nos. 2 and 4 raised in that writ petition are also reproduced below :

"2. Because the petitioners applied for the reinstatement along with respondent Nos. 2 to 4 and 8 as such are entitled to the benefit of the Division Bench ruling relied upon by the respondent No. 1 in his judgment.

4. Because the respondent No. 1 has misread the evidence by saying that the petitioners did not apply for the reinstatement u/Section 27 of Act X of 1947."

5. Learned counsel for the appellants has also drawn our attention to the copy of the application filed under Section 27 of the U.P. Tenancy Act which was made on behalf of the following persons :

Shri Gulzari Lal, Shri Babu, Shri Sarnam Singh Shri Brahmanand.

6. The High Court while disposing of the writ petition has, inter alia, observed as under :

"I am inclined to accept the findings recorded by the Deputy Director of Consolidation to the effect that the opposite parties Nos. 2 to 4 alone applied for reinstatement over the land of the disputed holdings. The finding recorded by the Deputy Director of Consolidation on this question of fact cannot be challenged in the writ petition under Article 226 of the Constitution of India, which has not been shown to be wrong or perverse especially when the petitioners have not averred in the writ petition that they had also applied for reinstatement along with the opposite parties Nos. 2 to 4. The petitioners have also not brought any material on record to that effect and as such they cannot successfully urge that the finding recorded by the Deputy Director of Consolidation on the said point is wrong."

7. In view of the specific pleadings in the writ petition that the appellants had made an application for their reinstatement under Section 27 of the U. P. Tenancy Act which are supported by a copy of the application filed under that Section, it is clear that the High Court has committed an error of fact in recording the finding that the appellants had not made any application for reinstatement under Section 27 of the Act. On account of this factual error, the judgment passed by the High Court cannot be sustained. The appeal is accordingly allowed. The judgment passed by the High Court is set aside and the case is remanded to the High Court for a fresh disposal according to law in the light of the observations made above. No costs.

Order accordingly.