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Shahji And Others v. D.D.C. And Another - WRIT - B No. 12668 of 1984  RD-AH 10818 (3 July 2006)
Judgment Reserved on 26.4. 2006
Judgment Delivered on 3.07.2006
Civil Misc. Writ Petition No. 12668 of 1984
Shahji Versus Deputy Director of Consolidation, Agra and others.
Hon'ble S.U.Khan J
Gaon Sabha respondent No.2 the only contesting respondent did not file any counter affidavit in this writ petition. At the time of arguments also no one appeared on behalf of respondent No.2 and only the argument of learned counsel for the petitioners were heard.
Land involved in this writ petition is about 38 acres. Along with the writ petition only the copy of judgment of D.D.C dated 25.5.1984 has been annexed. No other judgment has been annexed along with the writ petition. Agricultural land in dispute is comprised in plot No. 1986/1. In the basic year the said plot was entered in the names of petitioner Shahji and others. Similar was the position at the time of Zamindari Abolition i.e. 1359 fasli. Names of petitioner and others were recorded in the Khatauni of 1359 fasli on the basis of a Patta granted by Lumberdar on 15.9.1950 (Lumberdar means a co-sharer appointed to represent other co-sharers by virtue of Section 4(3) of U.P.Z.A.L.R Act). In consolidation proceedings Gaon Sabha contested the case to the effect that Patta granted to the petitioner was hit by section 245 and 246 U.P Tenancy Act 1939 hence no benefit could accrue to the petitioner on the basis of revenue entries of 1359 fasli which in turn were based upon Patta of 15.9.1950. The matter earlier came to this court twice in the form of writ petitions and on both the occasions matter was remanded. After second remand D.D.C Agra Camp Mathura dismissed the revision of the petitioner (revision No. 34/45 Shahji Versus Gaon Sabha and others under section 48 (1) U.P C.H. Act) through judgment and order dated 25.5.1984. The said judgment is under challenge through this writ petition. In the earlier judgment of this court it appears that the D.D.C was directed to consider the effect of Rule 177-A of U.P.Z.A.L.R Act, which provides as under:
"All persons recorded in Khatauni 1359 fasli as occupiers of land other than land mentioned in section 212 when there is no one already recorded in column 5 of the Khasra who have not acquired the right of the Sirdar in accordance with section 16 read with section 19 of the Act shall be deemed to be the Sirdars unless the land belongs to any of the clause mentioned in section 132."
In the instant case all the ingredients of Rule 177-A are available. Petitioners were recorded as occupants in Khatauni of 1359 fasli.
The entire case of Gaon Sabha was based upon section 245 and 246 of U.P Tenancy Act 1939. Under section 245, it is provided that Lumberdar is entitled in the absence of any contract or usage to the contrary to collect rents and is also entitled to settle tenants. However under proviso to the said section, it is provided that Lumberdar shall not be entitled on behalf of other sharers without their written consent to grant theka. Under the Patta of 15.9.1950, land was settled with the petitioners by Lumberdar. It was not a case of theka. Under U.P Tenancy Act, 1939 thekadar is defined in section 3(24) as a farmer or other lessee of the rights in land of a proprietor in particular of the right to receive rent or profit. Theka means grant of right to receive rent or profit. It is distinct from tenancy. Accordingly bar of proviso to section 245 of U.P Tenancy Act is not applicable to the facts of the case. In any case even if it is held that Patta of 1950 was hit by section 245 still petitioners' right will not be defeated. Rule 177-A only refers to entry in Khatauni. It does not say that the entry must have been made correctly. In fact under the said rule, no enquiry regarding correctness of the entry is permissible. The only thing, which is relevant, is the entry in Khatauni of 1359 fasli unless some fraud is alleged. Under some what similar circumstances while interpreting section 20(b) of U.P.Z.A.L.R Act, it was held by the Supreme Court that mere entry as occupant in Khasra or Khatauni of 1356 fasli was sufficient to attract the said provision and it was not permissible for the court to look into the correctness of the entry vide Wali Mohammad Vs. Ram Surat AIR 1989 SC 2296. The exact sentence in para 4 of the said authority is quoted below:-
"It is of course prove that if the entry is fictitious or is found to have been made surruptiously then it can have no legal effect as it can be regarded as no entry in law but merely because an entry is made incorrectly that would not meet to the conclusion that it ceases to be an entry."
In this regard reference may also be made to Udai Vs. D.D.C AIR 1990 SC 471 and the authorities considered therein.
It is therefore clear that the judgment and order passed by D.D.C is erroneous in law and liable to be set-aside.
Writ petition is therefore allowed. Judgment and order dated 25.5.1984 passed by D.D.C in revision No. 34/45 is set-aside. It is directed that the entry in favour of the petitioners as continuing from 1359 fasli till basic year shall be revived/ retained and continued in future also. Claim of Gaon Sabha in respect of land in dispute is rejected.
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