JUDGMENT S.N. Srivastava, J.
1. Subject matter of impugnment in the instant petition is the judgment and order dated 15.7.1974, passed by Deputy Director, Consolidation, Ballia whereby revision was allowed and order of Settlement Officer of Consolidation dated 20.3.1970 was set aside.
2. The dispute in the instant petition centres round plot Nos. 497 and 876. It would appear from a perusal of record that Opp. Party No. 4 namely Mathura (since deceased) was recorded as sirdar in the baste year. Upon commencement of consolidation proceeding, petitioner preferred objection under Section 9 of the U.P.C.H. Act for the relief of declaring her as bumidhar of both the plots. The claim of the petitioner, it would further transpire from the record, was founded on the ground that plot No. 497/2/2 was grove land which had descended on her from the time of her ancestor Manager Rai and further that she was a disabled person within the definition of Section 21 of the U.P. Z.A. & L.R. Act and also that even if, Opp. Party No. 4 was assumed to be in possession, he could at best be accorded only asami rights and not the sirdari rights over the land in question. The objection aforestated came to be rejected and therefore, appeal was preferred before the Settlement Officer, Consolidation. In appeal, the petitioner was held to be having sirdari rights while opp. party No, 4 was held asami over plot No. 497/2/2 admeasuring .79 acres. Aggrieved by the order, opp. party No. 4 preferred revision before the Deputy Director, Consolidation who allowed the revision filed on behalf of Mathura deceased and reversed the order of the Settlement Officer of Consolidation, Insofar as revision filed by Smt. Ram Rani is concerned, it was dismissed.
3. Learned counsel for the petitioner canvassed that indisputably plot No. 497/2/2 was entered as a grove on the date of vesting further submitting that a sub-tenant/occupant of grove cannot acquire adhivasi and/or sirdari rights over a grove and at the most, he could acquire asami rights over the grove as envisaged in Section 21 (2) of the U.P. Z.A. & L.R. Act. In connection with the proposition, the learned counsel adverted to Section 21 of the U.P.Z.A. & L.R. Act. In the last, the learned counsel sought quashing of the impugned order passed by Deputy Director Consolidation being one against the evidence on record. Per contra, learned counsel for the Opp, Party No. 4 contended that Opp. party No. 4 was in possession over the land in dispute since the time of his father and as such he will be deemed to have acquired sirdari rights. He further contended that since petitioner was not physically handicapped or disabled on the date of vesting nor is there any vestige of evidence having been adduced consistent with the requirements of Section 157 of the U.P.Z.A. & L.R. Act. the rights over the land as claimed by opp. party No. 4 would accrue in his favour. Lastly, the learned counsel tried to prop up the impugned order stating that the said order commends itself for being affirmed.
4. I have heard the learned counsel for the parties at length and have also perused the record.
5. Before coming to grips with the contentions, I would, at first, advert to the relevant Section, i.e., Section 21 of the U.P.Z.A. & L.R. Act in its essentials. Section 21 of the Act by reason of having bearing on the controversy involved in this petition, is excerpted below :
"Section 21 (2) Occupant of grove land.-- Every person, who, on the date immediately preceding the date of vesting was a person recorded, in the manner stated in Clause (b) of Section 20, as occupant of any grove land, shall be called as asami of the land and shall, subject to the provisions of this Act, be entitled to take or retain possession thereof as an asami from year to year."
Reverting to the facts of the case, it admits of no doubt the land in question was grove land on the date of vesting and Opp. Party No. 4 was displayed in the revenue record to be occupant of the grove land and considering the provisions embodied in Section 21 (2), the Opp. Party No. 4 could acquire only asami rights. From a perusal of impugned decision, it appears to me that the Deputy Director focused its attention on the aspect of disability and proceeded to pass the impugned order without adverting to the provisions on the point that the land in question was a grove land, i.e., Section 21 (2) of the U.P.Z.A. & L.R. Act. In my considered view, the controversy in relation to plot No. 497 could well be decided regard being had to the provisions of Section 21 (2) of the U.P.Z.A. & L.R. Act. In view of clear provisions aforestated, I would forbear from swelling this judgment by quoting and delving into precise details contained in the finding recorded by the Deputy Director of Consolidation. All that could be gleaned from the aforestated decision is that the Deputy Director of Consolidation wandered off elsewhere while skipping the aspect relevant to the adjudication of the issue involved in relation to plot No. 497. In the facts and circumstances, I converge to the view that the Opp. Party No. 4 could at best acquire asami rights only in view of provisions of Section 157 read with Section 21 (2) of the Act while bhumidhari rights would devolve upon the petitioner over the plot in question attended with the right to eject the opp. party No. 4 at any time in accordance with law.
6. In the above conspectus, I am of the view that the land comprising in Gata No. 497 was a grove land and the order impugned herein thereby declaring Opp. Party No. 2 as bhumidhar cannot be sustained. In so far as land comprising in Gata No. 876 is concerned, the revision filed by the petitioner was rightly dismissed and to that extent, impugned order does not suffer from any infirmity.
7. In the result, the petition succeeds and is partly allowed and judgment and order dated 15.7.1975 passed by Deputy Director Consolidation in so far as it relates to land comprising in Gata No. 497 is concerned is quashed and that of the order passed by Settlement Officer Consolidation dated 20.3.1970 is affirmed. The judgment and order of Deputy Director Consolidation in so far as it pertains to plot comprising in Gata No. 876, shall remain operative and will be acted upon accordingly. In the facts and circumstances of the case, there will be no order as to costs.