JUDGMENT
S.U. Khan, J.
1. Heard learned Counsel for the parties.
2. This is defendants’ writ petition arising out of a suit filed by original respondents 4 to 8 Kripa Narayan and others and one Sri Prakash Rai against Ganga Mali and State of U.P. through Collector Jaunpur. Ganga Mali died during proceedings before the courts below and was survived and substituted by the original petitioners. The suit was filed under Section 202 of U.P. Zamindari Abolition and Land Reforms Act, 1950 read with Section 64 of U.P. Urban Area Zamindari Abolition and Land Reforms Act, 1957. In the plaint, copy of which is Annexure ‘1’ to the writ petition, it was stated that prior to Zamindari abolition plaintiffs were fixed rate tenants of the property in dispute and after Zamindari abolition they became Bhumidhars. It was further pleaded that the plaintiffs had planted a guava grove in the land in dispute and defendants were sub-tenants of grove land on behalf of the plaintiffs. Suit was filed on 3.1.1966. Plaintiffs granted sub lease/Patta to the defendants through registered deed dated 21.4.1931 registered on 1.5.1931, copy of which is Annexure ‘2’ 10 the writ petition. In the said deed it was mentioned that property in dispute was Khudkasht of plaintiffs and it was being given to the defendants as an occupancy tenant for life (Kashtkar Dakhilkar Hin Hiyati). It was also mentioned that apart from carrying on agricultural activity, lessees would not be entitled to do any thing else over the land in dispute.
3. Defendants pleaded that the Zamindari of the area in question, which was situate within the municipal limits of Jaunpur, stood abolished on 1.7.1965 and thereafter defendants became sirdar. Defendants derjiied that on the eve of Zamindari Abolition plaintiffs became Brumidhars.
4. Trial Court/Assistant Collector First Class Jaunpur, before whom the suit was registered as Revenue Suit No. 3, decided the same on 11.1.1967. In the judgment it was mentioned that as per Khatauni extract of 1365 Fasli plaintiffs were recorded as fixed rate tenants and that in the Khasra extract of 1372-73 Fasli, property in dispute is recorded as grove and plaintiffs are recorded in the tenant’s column. The trial court held that on the date of vesting character of the land was grove, hence plaintiffs became Bhumidhar and defendant No. 1 as sirdar and hence defendant was not liable to ejectment. The contention of the plaintiffs that the defendant No. 1 became Asami was rejected. The trial court further held that it was un-necessary to decide as to whether grove was planted by the plaintiffs or the defendant No. 1. The suit was ultimately dismissed. Against the said judgment and decree appeal No. 827 of 1967 was filed by the plaintiffs. Additional Commissioner II, Varanasi allowed the appeal on 7.11.1968 and decreed the suit. The judgment of the appellate court is very sketchy. The appellate court held that the land in dispute was grove, hence Section 18 of Act No. IX of 1957 (U.P. Urban Area Zamindari Abolitionand Land Reforms Act) had no application and the position was covered by Section 19(b) of the Act and hence defendant No. 1 became Asami and liable to eviction. Against the said judgment and order defendants-petitioners filed second appeal before the Board of Revenue being Second Appeal No. 137 of 1968-69. Board of Revenue dismissed the second appeal on 4.9.1975, hence this writ petition.
5. Before the Board of Revenue some documents were filed as additional evidence. In this writ petition it has vehemently been argued by the learned Counsel for the petitioner that the additional evidence, which had been taken on record by the Board of Revenue, was not considered by it while deciding the second appeal.
6. Learned Counsel for both the parties have categorically stated that if plaintiffs are held to be fixed rate tenants then the suit is to be decreed, However, if the plaintiffs are held to be Zamindars then the suit is to be dismissed. This statement of law is perfectly in accordance with the Full bench authority of this Court reported in Paras Nath v. Board of Revenue 1986 A.L.J. 21. In the said Full Bench authority also the matter related to Urban Area Zamindari Abolition Act.
7. Learned Counsel for the petitioner has argued that firstly due to the use of the word ‘khudkasht in the lese deed sub lease deed of 1931 it was clear that the plaintiffs were Zamindars and not fixed rate tenants. In this regard the further argument is that the additional evidence in the form of documents filed by the petitioner before the Board of Revenue clearly proved that plaintiffs were Zamindars and had also received compensation in lieu of abolition of Zamindari.
8. In respect of the use of the word ‘khudkasht in the deed of 1931 the Board of Revenue held that the nature of right of the plaintiffs at the time of execution of the deed was not decisive and what was decisive was nature of right at the time of Zamindari abolition and in the revenue records at the time of Zamindari abolition and just before that plaintiffs were recorded as fixed rate tenants. In my opinion, mere use of the word ‘khudkasht cannot be decisive of the fact that the plaintiffs were Zamindars in 1931. ‘Khudkasht simply means self-cultivation. In the judgment of the trial court it is mentioned that in the Khatauni extract of 1365 Fasli plaintiffs were recorded as fixed rate tenants. The period corresponds to 1st July 1957 to 30th June 1958 i.e. 7-8 years before Zamindari abolition in the area in question. Even in the Khasras of 1372-73 Fasli when Zamindari was abolished i.e. 1.7.1965 first date of 1373 Fasli plaintiffs were recorded in the column tenants and not as Zamindars. Accordingly I hold that mere use of the word ‘khudkasht in the lease/Sub lease of 1931 does not mean that plaintiffs were zamindars. In any case, in the revenue records since before 7-8 years of Zamindari abolition till Zamindari abolition plaintiffs were recorded as fixed rate tenants/tenants. The Board of Revenue rightly held that the relevant date for determining the right of the plaintiffs was the date on which the Zamindari was abolished.
9. So far as the copies and order filed as additional evidence before the Board of Revenue dated 15.10.1968 and 19.7.1998 (copies of which are annexures ‘7’ and ‘8’ to the writ petition), are concerned, they are not of much help to the petitioners. Annexure ‘7’ is copy of objection filed by one of the plaintiffs-respondents Radhey Shyam under Section 35 of U.P. Z.A. Act, 1957 before Compensation Officer, Jaunpur. In the said objection it was clearly mentioned that in respect of property in dispute name of Ganga Mali i.e. the defendant was entered but he was not sirdar and a suit for eviction against Ganga Mali was pending. These objections were filed on 15.10.1968. (Annexure ‘VII” to the writ petition). Annexure ‘VIII’ is copy of order passed by Compensation Officer dated 19.7.1969, dismissing the objections in default of objector Radhey Shyam. In the objections it was categorically mentioned that a suit was already pending. Objections were not decided on merits. They were only dismissed in default. Accordingly preparation of compensation roll/chart, filing of objection and dismissal of the same could not have any effect on the suit, as the suit was already pending. On the contrary, the ultimate decision of the suit would be binding upon the Compensation Officer.
The fact that plaintiffs were Zamindars, as alleged by defendant No. 1 could be proved by Khewat, a primary evidence in that regard. Extract of Khewat was not filed. This fact could not therefore be sought to be proved by secondary evidence like Patta and compensation roll.
10. Accordingly I do not find any error in the judgment and decree passed by First Appellate Court and Board of Revenue, even though Board of Revenue wrongly ignored the additional evidence, which had been taken on record by it. However, even after considering the additional evidence I agree with the ultimate findings recorded by the Board of Revenue. Additional evidence even if considered would not have any effect on the judgment of the Aboard of Revenue.
11. Accordingly there is no merit in the writ petition. Hence it is dismissed.