M. Wahajuddin, J. - (1.) :-
(2.) THE plaintiff brought a suit for cancellation of the sale deed dated 23-11-1968 in favour of Smt. Mau Devi. THE plea raised by the plaintiff did not find favour with the trial court and the first appellate court and the suit was dismissed and the decree of dismissal was upheld by the first appellate court. This second appeal has been preferred challenging the orders of the courts below. The only legal point which arises for consideration and on which I have been addressed is whether the order dated 23-11-1968, paper no. 30 of the record vested the plaintiff with Bhumidhari right or not. In this connection my attention has been drawn to Section 134 and 137 of the Zamindari Abolition and Land Reforms Act and Rule 116-B and 118 of the Zamindari Abolition and Land Reforms Rules. What is being urged is that actually the authority concerned has to make a declaration recording his satisfaction while the order passed by the authority is not a declaration within the meaning of Section 137 and Rules 116-B and 118. Section 137 lays down that if the application for grant of Bhumidhari Sanad has been duly moved and the Assistant Collector is satisfied that the application for grant of Bhumidhari Sanad has been duly made and applicant is entitled to the declaration mentioned in Section 134, he shall grant a certificate to that effect. It further provides that the Sirdars will become or deemed to become Bhumidhar from the date the deposit was made. Rule 116-B provides the Form in which the application for acquisition of Bhumidhari rights will be made and further provides that it shall be accompanied by extracts of latest Khatauni. Rule 118 provides that the Assistant Collector shall scrutinise the application and examine on oath the appellant or any other person whose evidence is considered necessary and memorandum of the statement will be made and shall be signed by the authority. Sub-section (3) deals concerning the quantum of the amount deposited and also provides that if short the Assistant Collector will order the deposit of balance on the date fixed by him, then sub clause (4) provides that where the Assistant Collector is satisfied that the applicant is entitled to a declaration he shall grant a declaration to that effect. Sub-clause (S) provides for certain formalities and filling of columns in Z. A. Form 50. Sub-clause (n) (iii) of sub-clause (5) provides for enteries in Z. A. Form 86 upto column 22 and further provides that entries in column no. 23 and signature in column 24 will be made at the time of issuing the declaration. Rest of the columns shall be filled as and when occasion arises. The nutshell of the arguments advanced on behalf of the plaintiff appellant is that as these formalities do not appear to have been complied with and further as order passed by the Assistant Collector cannot be deemed to be an order granting Bhumidhari as such so some thing more was required to be done and the respondent defendant no. 1 would not become Bhumidhar in the eyes of law simply in pursuance of the order dated 23-11-1968 contained on paper no. 30. The application that was preferred for granting Bhumidhari rights is paper no. 29-A. The order passed by the Assistant Collector will be read with reference to context as per allegation and prayer made in the application and not completely divested from it. It so many times occurs that an application seeking certain prayer is made and just a brief order is passed that 'ground sufficient, allowed' and such brevity would not in any way vitiate such order which will be read in context and with reference to the application. In the application it was stated that the appellant was Sirdar of the plot that he has deposited the requisite multiple and he may be granted Bhumdhari Sanad. The amount deposited was mentioned, the name of tenant was mentioned, Khata number was mentioned so requisite particulars were there as per Ext. A 4 paper no. 29 A. The order is as follows :- " Bhumidhari pariram patra jari kerke niyamanUsar amaldaramad kiya jave. " This order which is final order for issuing Bhumidhari Sanad implies granting of Bhumidhari rights as well as that the Assistant Collector was satisfied concerning the prayer. The order may not be detailed, it may be very brief but mere brevity of order would not nullify the order rendering it invalid. Form is immaterial. It is substance which is material and it can safely be held that the order in question implies a declaration as contemplated under Section 134 of the ZA and LR Act as well as implies all satisfactions and compliance as required under Rule 116 B and 118. Besides a mere irregularity would not render a final order nullity when the order is within jurisdiction of the Assistant Collector who was fully competent to grant Bhumidhari Sanad. I may also add that any future order or act by Assistant Collector himself was not contemplated. The order is complete, and final qua the Assistant Collector and the directions are of the nature which are to be performed as ministerial work by the office. As an analogy and illustration, I may say, on so many occasions the Court simply say 'let injunction order be issued as prayed', qua court that order is complete and the injunction order is prepared and issued by the office in accordance with the order, giving the prayer and incorporating the order.
(3.) THE case of Banshidhar v. Smt. Dhirajdheri, AIR 1971 Allahabad 526 FB is a direct authority on the point. THE earlier view was reviewed and reconsidered, quoting them, and the position was summed up mainly in paragraph 13 quoting relevant section etc. earlier. In paragraph 13 it was laid down that the provisions (that is provisions concerning Baumidhari Sanad) disclose a well defined scheme that a Sirdar making an application and the deposit becomes entitled to a declaration that he has acquired the rights mentioned in Section 137. THE Assistant Collector then adjudicates upon the matter acting judicially, and if he is satisfied he passes an order 'granting' a certificate 'to that effect'. It is also significant to observe in this ruling also merely the expression 'to that effect' was interpreted to cover in the context 'declaration mentioned in Section 134' and that declaration is that the applicant has acquired the rights of bhumidhari mentioned in Section 137 and consequently certificate granted is that the applicant has acquired the rights of a Bhumidhar, implying that the Assistant Collector was satisfied. THE view that I have taken is fully fortified by the principles laid down in the case of Banshidhar (Supra) and is consistent and also in accordance with that view. Learned counsel for the appellant relied upon paragraph 19 of the aforesaid pronouncement and advanced the arguments contained in that paragraph adopting it. But it would be found that while the Full Bench held that the words used in the order are open to interpretation and can be looked into for interpretation. It further held grant of certificate means the direction for the certificate, meaning thereby that delivery of certificate is a ministerial act. If the present order passed by the Assistant Collector is read in context and with reference to the application that was made there cannot be an iota of hesitation holding that actually in substance the order amounts to grant of certificate with a directive that such bhumidhari Sanad be issued and necessary correction be made in relevant papers. I, therefore, hold that the plaintiff appellant had become bhumidhar of the holdings involved on the date the sale deed was executed and the sale deed therefore is in no way vitiated for any consideration that the vendor was only a Sirdar which is not a transferable right, and was not Bhumidhar on the date of transfer. In the result I do not find any force in this second appeal. It is accordingly dismissed. In the circumstances of the case cost is made easy. Appeal dismissed.;