Srivastava, J. - (1.) THIS is a petition u/Art. 226 of the Constitution and the prayer is that an order of the Board of Revenue dated 12 -4 -61 be quashed by a Writ of certiorari.
(2.) THE Petitioner claimed to be the tenant of the land in dispute and filed a suit Under Section 59 of the UP. T Act for a declaration that he was the tenant and the predecessor of the present Respondents Nos. 6 to 9 had no right or interest in the land. The suit was decreed but somehow the decree was not put into effect and no Amaldaramad was made on its basis. The result was that after the coming into force of the UP ZA and LR Act the Petitioner had to file another sun Under Section 229 of the Act claiming a declaration that he was the Sirdar of the land and the Defendants had no rights therein. This suit was again contested mainly on the ground that the Defendants had been in possession all along, that they were recorded as occupants in 1356F and that they were in cultivatory possession in 1359F. The Defendants on these grounds claimed Adhivasi rights and contended that they had subsequently become Sirdars of the land. They denied the Plaintiff's title. During the pendency of the suit proceedings u/Ch. IXA of the UP ZA and LR Act started because a notification issued Under Section 240A of the Act. After the publication of the preliminary statement in which the Petitioner was shown as the Sirdar and the Respondents Nos. 6 to 9 as Adhivasis the Petitioner did not file any objection in time. The objection he filed being beyond time was rejected by the Compensation Officer himself and his order became final. On this basis when the declaration suit filed by the Petitioner was being considered in second appeal by the Board of Revenue it was contended that the rights of the Petitioner had got extinguished and that he could not, therefore, claim a declaration that he was a Sirdar. This plea found favour with the Board of Revenue and it allowed the appeal and dismissed the Petitioner's suit. That order of the Board of Revenue is being questioned by the present writ petition. Two grounds have been urged in support of the petition by the Petitioner's Learned Counsel. The first is that though the objection filed against the preliminary statement by the Petitioner had been filed beyond time it was not open to the Compensation Officer to reject it on the ground. He was bound Under Section 240H of the UP ZA and LR Act to frame an issue on the point of limitation and to refer the whole objection for decision to the Court. The other ground is that even if the Defendants were entered as occupants in 1356F., as both the trial Court and the first appellate Court had found, they had not been in possession. As they had lost possession and had never recovered the same they could not claim that they contained to be Adhivasis of the land and if they were not the Adhivasis the provisions of Ch. IXA did not apply.
(3.) S . 240H of the UP ZA and LR Act reads as follows: 240H. Disposal of objections -(1) Except as provided in sub S. (2), the Compensation Officer shall after hearing the parties, if necessary, on the objections filed Under Section 240G, dispose of the objections in the manner prescribed. (2) Where the objection filed under sub S. (1): (a) is that the land is not land referred to in sub S. (1) of Section 240A, the Compensation Officer shall frame an issue to that effect and refer it for disposal to the Court which would have jurisdiction to decide a suit Under Section 229D read with Section 234A in respect of the land and thereupon all the provisions relating to the hearing and disposal of such suits shall apply to the reference as if it were suit; (b) involves a question of title and such question has not already been determined by a competent Court, the Compensation Officer shall except in cases in which Section 240HH applies refer the question for determination to the District Judge. Explanation -Whether a person is or is not an Adhivasi shall not be deemed to raise a question of title within the meaning of this clause. (3) The District Judge shall determine the question referred to him u/Cl. (b) of sub S. (2) in the manner prescribed and his decision thereupon shall be final. The first sub S. shows that it is the Compensation Officer who is to dispose of the objection filed Under Section 240G. The second Sub -section, however, engrafts an exception and provides that in certain specified circumstances for the decision of specified questions the case will have to be referred to the Court. According to the first clause of the second Sub -section if the question raised is that the land in dispute is not land referred to in sub S. (1) of Section 240 -A an issue will have to be referred to the Court, The second clause of the Sub -section provides that if the question raised is a question of title and the question has not been decided earlier the reference will have to be made to the District Judge.;