K.N. Singh, J. - (1.) THIS petition Under Article 226 of the Constitution is directed against the judgment and order of the Board of Revenue dated 16 -6 -1969, whereby the Petitioner's suit Under Section 229 -B of the UP ZA and LR Act, 1951 was dismissed.
(2.) THE land in dispute was sir of one Aley Hasan. He migrated to Pakistan. Thereafter the land was declared evacuee property which vested in the Custodian under the provisions of the Administration of Evacuee Property Act, 1950. Asghar Khan Petitioner's father was tenant of the sir land who was in possession at the time when the land was declared evacuee property. Asghar Khan died and was succeeded by his son Akhtar Khan the Petitioner and his name was entered in the revenue papers as tenant of the evacuee Aley Hasan. Since the property had vested in the Custodian the Petitioner deposited fifteen times of the rent and obtained a Bhumidhari Sanad from the Custodian on 8 -12 -1959 in respect of the land in dispute. The Petitioner filed a suit on 21 -1 -1964 before the Judicial Officer of distt. Jaunpur Under Section 229 -B/209 of the UP ZA and LR Act, 1951 for the ejectment of Respondent No. 2, Jhoori and for a declaration that the Petitioner was bhumidhar of the land as he had been granted bhumidhari sanad by the Custodian. The Petitioner's allegation in the suit was that Jhoori Respondent No. 2 was admitted as sajhi by the Petitioner during his period of minority, to help him in cultivation, but Jhoori got his name surreptitiously recorded as qabiz over the disputed plot as a result of which the necessity for filing the suit arose. Jhoori Respondent No. 2 was Defendant in the suit. Jhoori Respondent contested the Petitioner's claim. He denied the Plaintiff's claim and claimed himself to be the sirdar in possession on the basis of being recorded occupant in 1356 F. and also by virtue of being in possession for a period of more than the prescribed number of years for filing suit for his ejectment. The trial court as well as the Addl. Commr. in first appeal decreed the Petitioner's suit on the finding that the Petitioner had obtained bhumidhari sanad from the Custodian and that the suit was filed within limitation and that Jhoori Defendant was not recorded occupant, nor he was in cultivatory possession in 1359 F. Jhoori Respondent No. 2 filed a second appeal before the Board of Revenue and the only point canvassed before the Board of Revenue, was that the Petitioner's suit was not maintainable in view of the provisions contained in Schedule V of the UP ZA and LR Act, 1951. The Board of Revenue accepted the contention and set aside the decrees passed by the Trial Court and the first appellate court and directed the parties to seek their remedies before the court of competent jurisdiction. Learned counsel for the Petitioner has urged that the Board of Revenue committed an error apparent on the face of the record in setting aside the decree passed by the trial court and the lower appellate court and in dismissing the Petitioner's suit on a misinterpretation of the provisions of para. 6 of Schedule V to the ZA and LR Act. Learned Counsel has further urged that in any view of the matter the Petitioner's suit could not be dismissed and even if the provisions of para. 6 of the said Schedule V were applicable the proceedings in the appeal before the Board of Revenue should have been stayed and the party concerned claiming sirdari rights should have been directed to get his rights declared by the Custodian. It was further urged that on the findings of fact recorded by the trial court and the lower appellate court the property had ceased to be evacuee property and as such, the provisions of para. 6 of Schedule V were not attracted at all in the case. Learned Counsel for Respondent Jhoori has, however, urged that since an issue had been framed as to whether Respondent No. 2 was a sirdar of the land in suit the provisions of para. 6 were fully attracted and the Board of Revenue has rightly dismissed the Petitioner's suit and directed the parties to get their rights declared by the Custodian who had jurisdiction to decide the controversy. U/Ch. 2 -A of the ZA and LR Act, 1951 separate provision has been made by the Legislature for conferment of sirdari and bhumidhari rights on tenure holders in respect of evacuee property. General provisions contained in the Act for acquisition of adhivasi, sirdari and bhumidhari rights have been modified and separate detailed provisions have been made which exclusively govern the determination of these rights in respect of land declared evacuee property. Section 26 -B lays down that the provisions of the ZA and LR Act in their application to evacuee property shall have effect subject to the modification set out in Schedule V to the Act. Provisions contained in Schedule V amend the Act in its application to evacuee property. Paras 4, 4 -A and 4 -B amend the provisions contained in Sections 16, 19 and 20 for acquisition of adhivasi, sirdari and bhumidhari rights. The procedure for acquisition of bhumidhari and sirdari rights is quite different than that contained in other chapters of the Act. Under para 4 any person who had become adhivasi Under Clause (b) of Section 20 of any land which was evacuee property could acquire bhumidhari rights, provided he paid to the Custodian twenty times of the rent computed at the hereditary rates. Similar provision has been made in para. 4 -A in respect of a person claiming adhivasi rights Under Clause (a) of Section 20 of the Act. But in this case the person claiming adhivasi rights being tenant of sir land is required to pay fifteen times of rent to the Custodian instead of twenty times. On such deposit, the Custodian is empowered to issue bhumidhari sanad whereupon the tenant acquires the status of a bhumidhari under the Act. The trial court as well as the Commissioner recorded finding that the Petitioner was a tenant of sir holder who was an evacuee and the Petitioner deposited fifteen times of the rent with the Custodian whereupon a bhumidhari sanad had been issued to him in respect of the land in question by the Custodian on 8 -12 -1959. On the issue of such a bhumidhari sanad the Petitioner acquired the status of a bhumidhar under the Act and he was entitled to maintain the suit for ejectment of a trespasser.
(3.) THE Board of Revenue interpreted para. 6 of Schedule V in dismissing the Petitioner's suit. It would be pertinent to set out the provisions contained in para 6 which are as under: 6. (1) If in respect of any evacuee land a question arises as to whether any person in occupation thereof is or is not a sirdar Under Sections 16 and 19 or is not an adhivasi Under Section 20, such question shall be decided by the Custodian of evacuee property and not by any other court or authority and the decision of the Custodian shall be conclusive subject to the provisions of appeals, review and revision contained in the Administration of Evacuee Property Act, 1950. (2) Where in any suit or proceeding relating to land instituted after the commencement of the UP Land Reforms (Amendment) Act, 1956 in a Civil or Revenue Court or if instituted before the said commencement, a decree or order has not already been passed, the question arises or is raised whether any party to the suit or proceeding is or on any material date was sirdar, adhivasi or asami of land and such question has not been previously determined by a Court of competent jurisdiction or the Custodian the Court shall stay the proceedings and direct the party claiming to be a sirdar, adhivasi or asami to get the said right determined by the Custodian. (3) The decision of the Custodian shall be conclusive subject to the provision of appeals, reviews and revisions contained in the Administration of Evacuee Property Act, 1950. The provision of Sub -sections (2) and (4) of Section 332 -B shall thereafter apply as if for the word "Collector" the word "Custodian" had been substituted therein.;