JUDGMENT

Kaushal Kishore, M. - This second appeal has been filed by Mangal Singh against the judgment and decree dated August 27, 1980 by the learned Commissioner, Garhwal Division, Pauri, confirming the judgment of the learned trial court dated October 26, 1979, cancelling the Sanad Bhumidhari in favour of the appellant Mangal Singh.

2. I have heard the learned counsel for the parties and have also perused the record.

3. The first argument of the learned counsel for the appellant is that the judgment of the learned Commissioner is an omnibus judgement and is not a judgment in the eye of law. I agree that it is so. It does not disclose the oral and documentary evidence nor discusses it. It is not a speaking judgment. For this reason, it is necessary to fall back upon the judgment of the learned trial court.

4. It was a case of cancellation of the Sanad Bhumidhari issued in favour of Mangal Singh under Section 134 of the U.P. Zamindari Abolition and Land Reforms Act on September 16, 1972. The learned Tehsildar cancelled the Sanad on September 7, 1974 in subsequent proceedings under Section 137-A of the U.P. Zamindari Abolition and Land Reforms Act, the first appeal by Mangal Singh was dismissed, in the second appeal, the Board remanded the case to the trial court for hearing all the three appellants, the learned trial court again after hearing cancelled the Sanad by its judgment dated October 6, 1979 and the first appeal as discussed above, was dismissed on August 27, 1980. The learned counsel for the appellant has argued that all the three appellants Mangal Singh, Gopal Singh and Govind Singh, were recorded Sirdars since after the date of vesting July 1, 1965 and obtained the Sanad Bhumidhari in accordance with law. Smt. Urmila Devi Jain had stated that these three were only sub-tenants and being disabled person, they could not become Sirdars. The learned counsel argued that the father of the appellants Bachchi Singh was recorded Sirdar in column 4 in the settlement of 1932 and 1964. Prem Lal Jain, the husband of Smt. Urmila Devi Jain, was Hissedar. He further argued that Smt. Urmila Devi Jain was not living in the village and under Section 87 of the U.P. Tenancy Act, 1939, she must be deemed to have abandoned the holding. He argued that in case of grant of Sanad Bhumidhari to the recorded tenants, no case for Section 137-A arises. He further argued that the proceedings under Section 137-A are summary and are meant to decide title. In support, he cited a ruling reported in 1977 R.D. 315, wherein it is laid that in proceedings under Section 137, the Assistant Collector has merely to satisfy himself that the applicant is a recorded Sirdar or co-sirdar and has voluntarily without any use of fraud or coercion moved the application for grant of Bhumidhari Sanad and deposited the requisite amount in the treasury. If these three conditions are fulfilled, the Assistant Collector has no option but to grant the Bhumidhari Sanad.

5. The learned counsel for the respondent has argued that the husband of Smt. Urmila Devi Jain had died in 1946 and she being a disabled person, the appellants could not acquire any Sirdari rights. In support, he cited a ruling reported in 1968 R.D. 300. He argued that the appellants had applied during the settlement of 1964 for being recorded as Sirtan but they were entered only Kabiz and by the order of A.R.O. dated November 10, 1964, they were not found in possession. The learned counsel further argued that under Section 134 of the Act, a Sirdar can obtain Sanad Bhumidhari and a Sirdar is defined under Section 131 which further refers to Section 19 and since the appellants were not Sirdars under any category of Section 19, they were not entitled to become Bhumidhars under Section 134. He cited a ruling reported in 1965 R.D. 279 in support of his contention that a person who had not become Sirdar under Section 19, could not purchase the Bhumidhari rights. Such persons could be only those referred to under Secti