Khuddar vs Gopi Chand and Others

Hon''ble Sibghat Ullah Khan, J.—Heard learned counsel for the appellant at the admission stage.

This is plaintiff''s Second Appeal arising out of Original Suit No. 1051 of 1980 which was dismissed on 7.11.1988 by VIIIth Additional Munsif, Deoria. Against the said decree plaintiff-appellant filed Civil Appeal No.278 of 1988 which was dismissed by IInd Additional District Judge, Deoria on 24.5.1999 hence this Second Appeal.

Plaintiff claimed that he and proforma-defendants 4 and 5 were owner of a house shown by letters A B C D in the plaint map and sahen B C E F towards south of their house since before Zamindari abolition and were using the Sahen by erecting a palani (make shift thatched hut) and had planted some trees and the sahen land was settled with them under Section-9 of U.P.Z.A.&L.R. Act. Number of the plot was stated to be 497 area 0.15 acre (about 730 sq. yard). Plaintiff also claimed benefit of Section 122-B (4-F) of U.P.Z.A.&L.R. Act according to which if a member of scheduled caste was in possession of gaon sabha land since before 30th June, 1975 (which date was subsequently changed several times) then the land stood settled with him. That plaintiff and proforma defendants were washer men (scheduled caste). It was further pleaded that during consolidation name of the defendants first set was wrongly entered in the revenue record in case no.1347 decided on 22.1.1979 by Consolidation Officer. Reliefs of cancellation of the said order and permanent injunctions were sought in the suit.

Contesting defendants pleaded that towards South of the road there was no house of the plaintiff, that house of contesting defendants was situate towards South of the road and C D E F was in their possession and ownership, that the house of the plaintiff was quite far away from the land in dispute. It was further pleaded that plot no.497 was allotted to the contesting defendants by the Consolidation Officer and it was their chak. Plaintiff who appeared as P.W.-1 categorically stated in his statement that towards South of his house there is a road and he did not tell this fact to his counsel while plaint was drafted.

The courts below therefore rightly held that in the plaint a wrong fact had been stated that land in dispute shown by letters C D E F was adjacent to the house of the plaintiff. It was also rightly held that as a road intervened between plaintiff''s house and the land in dispute hence there was no question of settlement of land with the plaintiff. Plaintiff in his oral statement also admitted that the door of his house was towards East. Courts below further held that even though in the plaint it was stated that plaintiff was in possession of the land in dispute since Zamindari Abolition however, in his oral statement he categorically stated that his possession was for 15 years. Plaintiff further stated that Gram Pradhan had given the land to him. However, no such document was filed which could witness grant of land by Gram Sabha to the plaintiff.

The main emphasis was laid by the plaintiff over Khasra of 1388 fasli. The said khasra is extremely doubtful. 1388 fasli corresponds to 1980-81 A.D. When land in dispute had been allotted in chakbandi to contesting respondents in 1979 A.D., there was no occasion for entry of name of plaintiff in the khasra thereafter. Trial court also held that in usual course in the remarks column no one''s name is mentioned hence it was not clear how the name of plaintiff in khasra of 1388 fasli was mentioned in the remarks column. Accordingly, it was held that copy of khasra of 1388 fasli filed by the plaintiff was not reliable.

Contesting defendants filed Sale deed dated 7.7.1959 through which they had purchased the property in dispute by Dewki. P.W.-2 - Bechu Prasad admitted that prior to consolidation part of land in dispute belonged to some private cultivator. The courts below therefore held that according to the own admission of plaintiff''s witness it was not Gaon Sabha land hence there was no question of accrual of any right u/s 122-B (4F) of U.P.Z.A.&L.R. Act. Courts below also held that the land in dispute was in actual possession of the plaintiff.

I do not find least error in the findings of the courts below. As a road intervened in between the house of the plaintiff and the land in dispute hence there was no question of its settlement with him. Plaintiff himself admitted that he was in possession for over 15 years hence there was no question of existence of his house at the time of Zamindari Abolition i.e. 1952. Both the courts below have found that contesting defendants were in possession of the land in dispute. Just one entry in 1388 fasli khasra was in favour of plaintiff which was not found to be reliable by the courts below. No reason was given by plaintiff for dis-continuance of the said entry. Moreover in remarks column of khasra abadi may be mentioned but it cannot be shown to be of any one''s else except of the bhoomidhar. If some one other than bhommidhar is in possession then for recording his name a procedure is prescribed like issuing notice to the bhoomidhar making first entry by the red pen etc. No such thing was shown to have been done. Plaintiff''s witness admitted that prior to consolidation major part of land in dispute belonged to some private tenure holder which was allotted to the contesting defendant. Consolidation officer allotted the land in dispute to the plaintiff. As held by the Supreme Court in Sita Ram Vs. C. Bhondey and Others, orders passed by Consolidation courts cannot be challenged before the Civil court.

Accordingly, there is no error in the impugned judgments. No substantial question of law has wrongly been decided. Second Appeal is dismissed under Order 41 Rule 11 C.P.C.