Sumedhi vs Deoraj Prasad

K.L. Pandey, J.—This is a Defendant''s applied ion under Order 47, Rule 1, CPC Code, for a review of the judgment and decree rendered in Second Appeal No. 290 of 1960, dated 20 July 1962 by the learned Single Judge who has since retired.

The Court of first instance dismissed the suit filed by the Plaintiffs for possession Of a part of plot No. 71(sic) of village Naradar inter alia(sic) on the ground that the allotment of the plot made in favour of, and the Patta granted therefor to, the Plaintiff 2 by the Additional Tahsildar of Gopad Banas was invalid for the reason that, under the provisions of the Vindhya Pradesh Abolition of Jagirs and Land Reforms Act, 1951, the Additional Tahsildar had no power either to make the allotment or grant any Patta for the plot allotted by him. The lower appeal Court accepted the findings that the allotment was made by the Additional Tahsildar and that he granted the Patta Ex. P-1 Even so, it allowed the appeal on the ground that, in its view, the Additional Tahsildar had all the powers of the Tahsildar. It is not now disputed, and the learned Single Judge also held that the Additional Tahsildar had no legal authority to exercise the powers of the Tahsildar. This is what hesitated:

I find that there is no reference to ''Additional Tahsildar'' either in the Vindhya Pradesh Land Revenue and Tenancy Act, 1953 (hereinafter called the Tenancy Act) or in the Jagir Abolition Act. u/s 23 of the Tenancy Act, the State Government has power to appoint only one Tahsildar for each tahsi(sic). The appointment of an Additional Tahsildar was not therefore in accordance with the provisions of that Act. u/s 21 of the Jagir Abolition Act. power is specifically grained to the Tahsildar to pass an order making an allotment. The power could not, therefore, be exercised by the Additional Tahsildar who cannot be considered to be a Tahsildar appointed under the Tenancy Act. Consequently, he had no legal authority to exercise any powers of a Tahsildar. The order passed by him u/s 21(2) of the Jagir Abolition Act was, therefore, irregular.

Even so, he dismissed the appeal on the ground that the Patta Ex. P-1 was granted by the Tahsildar himself. In taking that view, he observed as follows:

However, I find that the Patta Ex. P-1 was actually granted by the Tahsildar himself. It therefore appears that the order of the Additional Tahsildar, which was invalid was adopted by the Tahsildar, and acting upon it he granted the Patta.

The Defendant has applied for a review on the ground that the learned Single Judge proceeded upon an erroneous assumption that the Patta Ex. P-1 was signed by the Tahsildar especially when no evidence was led to prove that fact and the Plaintiffs did not even challenge in their first appeal the finding that the Patta was issued by the Additional Tahsildar.

Having heard the counsel, we have formed the opinion that this application must be allowed and the judgment and decree rendered by the Court of first instance restored. In our opinion, the concurrent finding of fact recorded by the two lower Courts that the Patta Ex. P-1 was issued by the Additional Tahsildar had to be accepted, more particularly when it was not even questioned in the first appeal.

In our opinion, there is another reason for reaching the same conclusion. Section 21 of the Vindhya Pradesh Abolition of Jagirs and Land Reforms Act, 1952, reads:

(1) On receipt of an application u/s 20, the Tahsildar shall issue notice to the applicant and other interested persons, if any. and after giving the parties an opportunity of being heard, shall make an enquiry in the prescribed manner.

(2) After making the enquiry referred to in Sub-section (1) the Tahsildar may, having due regard to the provisions hereinafter contained in this Chapter, pass an order making an allotment to the Jagirdar of such land for personal cultivation as may be specified in the order.

(3) Where any land is allotted to a Jagirdar for personal cultivation under Sub-section (2), the Tahsildar shall issue a Patta to the Jagirdar in such form as may be prescribed in respect of the land so allotted.

In view of these provisions, the mere issuance of a patta by the Tahsildar is not enough He has to make an enquiry and then to pass an order of allotment before he could issue a patta. In the instant case, the allotment order was, as Ex. P-1 itself shows, made by the Additional Tahsildar. There is nothing whatever on record to show that the Tahsildar treated that order as a report or passed any order of allotment. Since the learned Single Judge''s assumption to that effect is not based on any material, it is an error apparent on the face of the record justifying a review.

The result is that the application succeeds and is allowed. The decree passed by the learned single Judge and the one passed in first appeal are set aside and the suit is instead dismissed. The Plaintiffs shall bear their own costs and pay those incurred by the Defendant throughout. Hearing fee according to schedule.