Sinha, J. - (1.) A learned single Judge while dealing with Writ Petitions Nos. 1210 of 1972 and 1211 of 1972, arising out of consolidation matter, has referred the following questions to be answered by a Division Bench : 1. Whether in a suit under Section 229-C of the U. P. Zamindari Abolition and Land Reforms Act instituted before the coming into force of U. P. Act No. 18 of 1956 a declaration that the defendant was a sirdar could be granted?
(2.) IF such a declaration could not be granted, but in order to record a finding that the defendant was not an asami an incidental finding was recorded that he was actually a sirdar, will such a finding operate as res judicata in a subsequent case where the status of the said defendant as sirdar is denied before a court or an authority competent to decide an issue about sirdari rights?" The circumstances under which the two questions arose have been mentioned at length in the referring order. That apart, it is not necessary for us to refer to those facts again also for the reason that the questions referred are purely questions of law. We, therefore, proceed to answer the questions straightway. 2. The answer to question No. 1 rests on the interpretation of Sec. 229-C which is a corollary to Section 229-B. The two sections as they stood before the 1956 amendment read as follows : "229-B. Suit by an asami for declaration of rights.- (1) Any person claiming to be an asami either exclusively or jointly with any other such person may sue the landholder for a declaration that he is an asami or for a declaration of his share as joint asami in the holding as the case may be. (2) In any suit under this section any person claiming to hold as an asami through the landholder shall be joined as a party." "229-C. Suit for declaration of rights of a person claiming to be an asami.- A Gaon Sabha or bhumidhar or sirdar of any land may sue any person claiming to be an asami of such land for a declaration of the rights of such person." From the above it would appear that Section 229-B confers a right on a person, claiming to be an asami of a holding, to sue the landholder for obtaining a declaration that he is actually the asami of the land in dispute. The words 'for a declaration that he is an asami' occurring in the section leave no room for doubt that the only declaration that can be granted under that section is whether the plaintiff is an asami or not. IF the Court comes to the conclusion that the plaintiff is not an asami, the matter ends and the suit has to be dismissed because of the aforesaid expression occurring in Section 229-B Section 229- C is converse of Section 229-B, for, while Sec. 229-B confers a right to sue on the person claiming to be an asami, Section 229-C confers a right on the Gaon Sabha or a Bhumidhar or a sirdar to sue a person, who claims to be an asami of any land. Section 229-C, therefore, takes its colour from Section 229-B and its scope should be determined in the background of that section. It should, therefore, follow that if any person claims himself to be an asami, the Gaon Sabha or the bhumidhar or the sirdar of that land can sue that person for a declaration whether that person is or is not an asami of that land. This interpretation is also consistent with the language used in Section 229-C. The expression 'declaration of the rights of such person' occurring at the end of Section 229-C, is clearly referable to the expression 'any person claiming to be an asami' occurring in the middle of the section. The two expressions read together clearly point to the conclusion that, while seized of a suit under Sec. 229-C, the only declaration that can be granted by a court is whether the person claiming to be an asami of the land in dispute is or is not the asami thereof. The moment the court comes to the conclusion that the defendant is not an asami of the land in dispute, that is the end of the matter and no further investigation is called for to decide the suit. Learned counsel for the respondents urged that it is quite likely that, in a suit filed by a Gaon Sabha or a Bhumidhar or a sirdar against any person under Section 229-C of the Zamindari Abolition and Land Reforms Act; the plaintiff alleged that the defendant claimed himself to be an asami, while the defendant resisted the suit on the ground that he did not claim himself to be an asami and that he was in fact a sirdar of the land in dispute. Learned counsel urged that in such a situation it should be open to the revenue court, while deciding the case, to record a finding that defendant is not an asami but a sirdar. The argument fails to impress us. In view of the language used in Section 229-C, the only issue that can legitimately be framed in a suit filed thereunder would be whether the defendant is an asami of the land in dispute and it is to that issue that the revenue court has to confine itself. In case the court comes to the conclusion that the defendant is an asami, it may further determine as to which of the various classes of asami specified in Sections 133, 187, 197 and 210 of the Zamindari Abolition and Land Reforms Act does he belong. In case, however, the court comes to the conclusion that the defendant is not an asami, that is the end of the matter and the suit has to be disposed of without any further investigation about the nature of the defendant's right. That is all the more so because, before the commencement of U. P. Act No. 18 of 1956 the revenue court did not have the jurisdiction to adjudicate upon the sirdari rights. Since the court did not have the jurisdiction to adjudicate about the sirdari rights, neither any of the perties could ask for a finding in that regard, nor could the court record any. Reliance was placed on behalf of the respondents before the learned single Judge on a decision of this Court in the case of Smt. Yubraj v. Kali Charan Pathak (1964 RD 394) (All). The case was again cited before us on behalf of the respondents. It is true that while deciding that case it was observed by Gangeshwar Prasad, J. that, in a suit under Section 229-C, the court can decide all the matters in controversy. He observed that if it was positively asserted on behalf of the plaintiff that the defendant was neither an asami nor had he any other rights in the land in suit and wanted a declaration to that effect, it was open to the defendant to establish any such right as he may claim to possess, and the court in that case has not only the power but also the duty to decide whether the defendant has any right and, if so, what the nature of that right is. According to the learned single Judge, it could, therefore, be held in a suit under Section 229-C whether the defendant was a sirdar, if not an asami. The observations contained in the aforesaid case, therefore, do lend support to the contention raised on behalf of the respondents before us. We, however, regret our inability to agree with the view expressed by the learned single Judge in that case. It does not appear from the report of the decision that the fact that the revenue court did not, during the year 1955, have any jurisdiction to adjudicate on the sirdari rights, was expressly taken into consideration. The fact that in a suit under S. 229-C it is not open to a revenue court to adjudicate on sirdari rights even after the amendment of 1956, finds support from a Division Bench decision of this Court in the case of Surendra Narain Dubey v. Dy. Director of Consolidation (1973 RC 328) (All). It may be recalled that after 1956, a declaration for sirdari rights could be obtained by filing a suit under Section 229-B of the Zamindari Abolition and Land Reforms Act. In the case of Surendra Narain Dubey (supra) the suit was, however, filed under Section 229-C, Zamindari Abolition and Land Reforms Act on the allegation that the revenue entries, on the basis of which the respondents claimed adhivasi rights, were fictitious and that the respondents did not have any interest in the land in suit. A compromise was then filed in the suit under Sec. 229-C in which it was accepted that the appellants were bhumidhars and the respondents had no interest in the disputed property. The suits were decreed on the basis of the compromise. The matter was reagitated in the consolidation proceedings and the consolidation authorities held that the suits under Section 229-C were not maintainable because, on the date when the suits were filed, the respondents had become sirdars. The matter ultimately came up in special appeal before this Court and this Court observed: "Keeping in view the provisions of Sections 229-B, and 229-C, it is clear that Section 229-C is not a substitute for a suit under Section 229-B. When the suits were filed in 1960 the defendants- respondents, on their own claim, had become sirdars. The appellants claimed themselves to be Bhumidhars. The dispute whether the defendants-respondents were sirdars could be adjudicated only in a suit under Section 229-B. Such a controversy was clearly outside the purview of Section 229-C. The decree obtained in the suit hence could not in law, operate as a declaration of rights of Sirdar claimed by the defendants-respondents. On this ground also the decree was a nullity." Now, if the revenue court, even after the amendment of 1956, when it had jurisdiction, though under a different provision, to make a declaration about sirdari rights, could not make a declaration to that effect in a suit under Section 229-C, Zamindari Abolition and Land Reforms Act, it is not understandable how before the amendment of 1956, when the revenue court did not at all have the jurisdiction to adjudicate on sirdari rights, it could at all give any finding in that regard in a suit under Section 229-C. With respect, therefore, we cannot agree with the view expressed in the case of Smt. Yubraj v. Kali Charan Pathak (supra).
(3.) OUR answer, therefore, to question No. 1 is in the negative. The words used in question No. 2, as framed by the learned single Judge, are 'subsequent case'. The word 'case' will include a suit as well as other proceedings. Question No. 2 may, therefore, be answered on both the assumptions, namely, when the 'subsequent case' is a suit and when the 'subsequent case' is a proceeding other than a suit.;