Hunman Prasad vs The State of U.P.

Ram Surat Ram (Maurya), J.—Heard Sri S.K. Mehrotra, for the petitioners and Standing Counsel for respondents-1 to 3 and Sri S.C. Kashish for respondent-4. The counsel for the respondents are granted one month time for filing Counter Affidavit, the petitioners will have three weeks times thereafter for filing Rejoinder Affidavit. List thereafter.

The writ petition has been filed against the orders Deputy Collector (respondent-3) dated 23.01.2013, rejecting the application for interim injunction, filed by the petitioners in the suit u/s 229B of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act) and Additional Commissioner dated 26.04.2014, dismissing the revision of the petitioners against the aforesaid order.

Dispute between the parties relates to plots 2314 (area 0.15 acre), 2320 (area 0.30 acre), 2322 (area 0.13 acre), 2324/1 (area 0.15 acre), 2324/2 (area 0.14 acre), 2325/1 (area 0.13 acre), 2325/2 (area 0.12 acre), 2326 (area 0.22 acre), 2327/1 (area 0.08 acre) and 2327/2 (area 0.09 acre) situated at town Nawabganj, pargana Nawabganj, district Gonda. Asharfi Lal and others (the petitioners) filed a suit (registered as Suit No. 250/201/388) u/s 229B of the Act, for declaring them as bhumidhars of the land in dispute, against respondents-1 and 4, on 24.07.2001. It has been stated by the petitioners that their father were in possession over the land in dispute since before date of vesting as hereditary tenant and after date of vesting they had become sirdar and at present bhumidhar. In any case, being in possession in 1356 F and 1359 F, they acquired adhiwasi right under U.P. Supplementary Land Reforms Act, 1954 and as sirdar and at present bhumidhar, after date of vesting. Nagar Panchayat Parishad Nawabganj earlier filed a suit for ejectment of the petitioners from the land in dispute which was dismissed on the ground of maintainability and thereafter the defendant did not take any action against the petitioners and the petitioners remained in possession over the land in dispute. Nagar Panchayat Parishad Nawabganj (respondent-4), filed written statement and contested the suit on the ground that respondent-4 was bhumidhar and in possession of the land in dispute. Neither father of the petitioners nor the petitioners were in possession over the land in dispute either before date of vesting or after date of vesting, at any time. They did not acquire any right over the land in dispute. The suit was barred by res-judicata and the suit filed by respondent-4 for declaration and ejectment of the petitioners was pending before appellate court. The name of respondent-4 was rightly recorded over the land in dispute.

The petitioners filed an application dated 07.01.2013 u/s 229D of the Act, for interim injunction, directing the parties to maintain status quo with regard to their possession over the land in dispute. It has been stated by the petitioners that they were in possession over the land in dispute. The contesting defendant was trying to raise constructions over the land in dispute and started to collect building materials. Earlier, the petitioners filed Writ Petition No. 4039 (MB) of 2001, in the High Court, in which interim order dated 16.08.2001 was granted to the petitioners but the writ petition was dismissed in default and the petitioners have filed an application for recall of the order of dismissal of the writ petition in default. The petitioners were in cultivatory possession over the land in dispute since before the date of vesting and the suit filed by the defendant for ejectment of the petitioners was dismissed on 10.10.1995. The petitioners have good prima facie case in their favour. Balance of convenience lies in their favour. In case interim order is not granted, they would suffer grave and irreparable loss. Respondent-4 filed an objection in the application for interim injunction and stated that the land in dispute was recorded in the name of respondent-4 in the revenue record and the petitioners had not filed any replication. The writ petition filed by the petitioners has already been dismissed on 23.11.2011 and recall application dated 27.07.2012 filed by them was still pending. The petitioner have not filed any extract of khasra to show their possession over the land in dispute. Entry of the names of the petitioners in column-9 of the khatauni is not continuing. The application for interim injunction was heard by Deputy Collector (respondent-3) who dated 23.01.2013, held that in khatauni 1415 F-1420 F, land in dispute was recorded in the name of defendant-4 as such no interim injunction could be granted in favour of the petitioners. On these findings the application for interim injunction was rejected. The petitioners filed a revision (registered as Revision No. 797) from the aforesaid order. Additional Commissioner, by order dated 26.04.2014, upheld findings of the Deputy Collector and held that the petitioner have lost their case in the High Court. On these findings, the revision was dismissed. Hence this writ petition has been filed.

The counsel for the petitioners submitted that the petitioners had filed extract of khatauni 1360 F, in which the names of the fathers of the petitioners were recorded as sirdar with period of cultivation from three years. They have also filed khatauni 1397 F-1402 F and 1403 F-1408 F in which also names of the petitioners were recorded in column-9 of the khatauni. Nagar Palika Parishad, itself filed a suit for ejectment of the petitioner from the land in dispute, which was dismissed on 10.10.1995, since then no action has been taken against the petitioners. This Court in Writ Petition No. 4039 (MB) of 2001, by order dated 16.08.2001 granted interim injunction in favour of the petitioners. The writ petition was dismissed in default on 23.11.2011. The petitioners have filed an application for recall of the order on 27.07.2012 but due to pressure of the cases, the application could not be heard by this Court. Respondent-4 filed an extract of khasra 1311 F to show that its names was recorded as chief tenant but at that time Nagar Palika Nawabganj was not in existence. Even in this khasra also the name of the father of the petitioners was recorded in cultivation. Thus the petitioners have prima facie strong case in their favour. In view of the own admission of respondent-4 about the possession of the petitioners over the land in dispute at least from 1995 and in view of the fact that interim order granted by this Court dated 16.08.2001, which continued up to 23.11.2011, balance of convenience lies in favour of the petitioners and their possession was liable to be protected in order to save them from irreparable loss. Both the Court below have illegally not considered the evidence on record nor the fact of the case and rejected the application merely on the ground that in the khatauni 1415 F-1420 F, the name of Nagar Palika Nawabganj was recorded. Entry of column-9 in favour of the petitioners were deleted without any order of proper authority.

In reply to the aforesaid arguments, the counsel for the respondents submitted that respondent 4 had not admitted possession of the petitioners either in Suit No. 9/57/14/15/25/54/303/648 or in the written statement filed in this suit. It is only due to baseless entries in column-9 of the khatauni, suit was filed and an alternative relief for ejectment of the petitioners was made in it but later on this entry was not continued. Ex parte interim order dated 167.08.2001 was granted in Writ Petition No. 4039 (MB) of 2001 and no reliance can be placed on it. There was no evidence to prove either title or possession of the petitioners over the land in dispute on the date of the application for interim order. In such circumstances, prima facie case in favour of the petitioners was not found and application for interim injunction was rightly rejected.

I have considered the arguments of the counsel for the parties and examined the evidence on record. In the extract of khatauni 1360 F corresponding to 1952, the names of the fathers of the petitioners were recorded in possession with period of cultivation of three years. The zamindari of the land in dispute was abolished by Notification No. 290-1/1-A 168-60 dated 19.06.1961, issued u/s 8 of U.P. Urban Areas Zamindari Abolition Act, 1956. They were also recorded in khatauni 1397 F-1402 F and 1403 F-1408 F, in which also names of the petitioners were recorded in column-9 of the khatauni. There is absolutely no explanation as to how entry of the names of the petitioners were deleted in the khatauni 1415 F-1420 F. In the previous suit, respondent-4 raised the plea that after abolition of zamindari, the land in dispute was vested in State of U.P. and its management was handed over to respondent-4 by notification under the provisions of the Act but do document was filed in this respect. Now in this case, respondent-4 filed khasra of 1311 F and took the plea that it was land holder and recorded as such in the year 1311 F corresponding to the year 1904 although respondent-4 was not existing at that time. Even in this document also name of Shree Ram was recorded as occupant over the land in dispute. Filing of the suit by respondent-4 against the petitioners and its dismissal on 10.10.1995 are not denied rather allegation has been made that an appeal was filed against it, which is pending before appellate court. Thus the petitioners are not totally strangers to the land in dispute. They have bonafide dispute to be tried and prima facie case of the petitioners is proved.

So far as balance of convenience is concerned, the allegations of the petitioners that they are in cultivatory possession over the land in dispute. In case, the petitioners are ejected or the respondent raises any constructions over the land in dispute, grave and irreparable loss will occur to the petitioners as such balance of convenience lies in favour of the petitioners and their possession is liable to be protected during pendency of the suit.

In view of aforesaid discussion, the defendant-respondents are restrained from taking forcible possession over the land in dispute and raising any construction over it till next date of listing or till disposal of the suit, pending before Deputy Collector, which ever is earlier.