Lallan and others vs D.D.C. and others

Prakash Krishna, J.—The present writ petition arises out of proceedings under the U.P Consolidation of Holdings Act.

Plot No. 10 area 26 acres of Khata No. 22-Ka situate in Village Pandeypur, Pargana Athagawan District Varanasi is the subject matter of the present writ petition which was recorded in the basic year in the name of petitioner No. 1, as Sirdar.

Two sets of objection u/s 9(2) of the aforesaid Act were filed but the present writ petition is mainly concerned with the objection filed by the Gaon Sabha. The Gaon Sabha filed objection for expunging the name of the petitioners and recording the disputed plot in its name on the allegations that the land in dispute is Pokhari used for public purposes. Consequently, it is Gaon Sabha property with which the petitioners have no concerned.

The Assistant Consolidation Officer made a spot inspection who reported that the plot in dispute is low lying land of about 2-1/2 ft. and Singhara crop was sown therein.

The case of the petitioner No. 1 was that the said plot along with other plots originally belonged to Sayyed Tahir Hussain and Sayyed Mohammad Hussain S/o Sayyed Fazal Hussain who executed a registered lease deed in favour of the petitioner No. 1 registered on 3.6.1950. Since then, the petitioner No. 1 along with his brothers i.e., petitioners No. 2 & 3 are in occupation of the same and have acquired Sirdari right therein.

The Consolidation Officer before whom the objection was up for consideration, examined the matter in the light of the evidence which was led by the parties and reached to the conclusion that on the spot it has been found that Plot No. 10 is in the nature of Pokhari and used for public purposes. The patta of the year 1950 is not valid as it was after the cut off date i.e., 8.8.1946. It consequently ordered that the name of petitioner No. 1 be deleted and the plot in dispute be recorded as Pokhari in the revenue record vide order dated 3.1.1974. The matter was carried in appeal No. 2651 before the Settlement Officer of Consolidation who allowed it by the order dated May 11, 1975 on the finding that the possession of the petitioner No. 1 over the disputed plot is established, it was recorded in the name of Tahir Hussain in Khasra in 1356 Fasli and 1359 Fasli and thereafter in favour of the petitioner No. 1, before the commencement of U.P.Z.A. & L.R. Act, the patta is valid.

No appeal or revision was preferred by the Gaon Sabha and the judgment of the Settlement Officer of Consolidation was thus accepted by it.

One Sita Ram Yadav, respondent No. 5 herein carried the matter in revision No. 4001/3231 before the Deputy Director of Consolidation Officer who has allowed it by the impugned order dated 21.4.1976.

Heard Shri V.K.Rai holding brief of Shri Shankata Rai, Advocate for the petitioner and the learned standing Counsel for the respondent Nos. 1, 2 & 3. None appeared on behalf of respondent Nos. 4 & 5.

The learned Counsel for the petitioner submits that the land in dispute was not found either before or after the commencement of U.P.Z.A. & L.R. Act as Pokhari. In the Khatauni 1356 Fasli and 1359 Fasli, land in dispute has not been shown as pond in the revenue record. This being so, the petitioner No. 1 having obtained a registered lease from the earstwhile tenant has become Sirdar and thereafter Bhumidar. It was further submitted that the nature and right of the tenure holders will be decided with reference to the date of vesting of the land in the State of U.P i.e., 1.7.1952, the day of the enforcement of U.P.Z.A. & L.R. Act.

It was also argued that Gaon Sabha did not file any revision against the order of the Settlement of Consolidation and revision at the instance of Sita Ram Yadav was not maintainable.

The learned standing Counsel supports the impugned order.

Considered the respective submissions of the learned Counsel for the parties.

The lease deed dated May 26th, 1950 executed by Sayyed Tahir Hussain and Sayyed Mohammad Hussain in favour of the petitioner No. 1 with respect to plot in dispute along with other plots is on the record. Its genuineness has not been questioned by any party at any stage.

Section 8 read with section 212 of U.P.Z.A. & L.R. Act prohibits execution of lease deed by an intermediary on or after 8.8.1946 in respect of a public utility land. Section 212 provides for ejectment of a person from public utility land. A public utility land is customary common pasture land, cremation or burial ground, tank, pond, pathway or khalian, section 212 provides a person who had been admitted to such land after 8.8.1946 shall be liable, notwithstanding anything contained in section 199, on the suit of the Gaon Sabha for ejectment from the land.

The question now boils down to this as to what was the nature of the land on the date of the commencement of U.P.Z.A. & L.R. Act.

The petitioner submits that the land in dispute was not recorded as a land falling in any of the above categories of public utility land mentioned herein above in the revenue record of 1356 F or 1359 F.

Attention of the Court was invited towards Khataunis'' of 1356 Fasli and 1359 Fasli. These Khatauni would show that there is no mention of any pond or tank therein. In 1356 Fasli, it has been recorded in Zamn 8 i.e., hereditary tenant in favour of Sayyed Tahir Hussain and Sayyed Mohammad Hussain. The same entry has been reiterated in 1359 Fasli.

As against the above, there appears to be no document to show that the plot in question was ever recorded as Pokhari before or at the time of the commencement of U.P.Z.A. & L.R. Act. The Consolidation Officer proceeded to hold against the petitioners as on the date of inspection it was found that the land of the plot is low lying land wherein Singhara was sown. Some oral evidence was produced to show that the land is submerged with water and it is being used by the cattle and also for irrigation purposes. Even if it so, the Consolidation Officer was not justified ordering expunging of the name of the petitioner No. 1 over the said plot, as it happens to be private property of the petitioners.

The Consolidation Officer has proceeded that leases in respect of Pokhari after 8.8.1946 is invalid but he has committed a mistake that the plot in dispute was not Pokhari on 8.8.1946 or on the date of the commencement of U.P.Z.A. & L.R. Act. There is no iota of evidence to show that the said plot was Pokhari on 8.8.1946 or on 1.7.1952 when the U.P.Z.A. & L.R. Act was enforced. In this regard, the relevant extract of 1356 Fasli and 1359 Fasli are relevant as also decisive. There is no mention of Pokhari in these revenue extracts. Copies of these extracts have been annexed along with the writ petition and there is no challenge to them in the counter affidavit filed by Shri Kailash Nath Tewari, the Secretary of the Land Management Committee of the Gaon Sabha.

The order of the Deputy Director of Consolidation also proceeds on the lines of the order of the Consolidation Officer. He has noticed the revenue extracts of the afore stated two years 1356 F and 1359 F and has not said anything otherwise. After noticing the afore stated two revenue extracts 1356 F and 1359 F as also of 1334 F he has jumped to the conclusion abruptly that no lease deed could be executed and the lease which has been granted to the petitioner No. 1 would not confer any right as plot in dispute as presently on the spot is a Phokari there, ignoring the fact that there is no material to show that on the date of vesting the plot in dispute was recorded as Pokhari in the revenue record.

Section 8 of the U.P.Z.A. & L.R. Act bars the execution of the leases in respect of public utility land and not otherwise. There being no cogent and valid material on the record to show that the land in dispute was a public utility land of the description as mentioned in section 212 on 8.8.1946 or on the date of vesting, the impugned orders of Consolidation Officer and that of the Deputy Director of Consolidation based upon no evidence, cannot be allowed to stand. In other words, there is no material to show that the lease deed in favour of petitioner No. 1 was in any manner hit by section 8 of the Act.

The Consolidation Officer and the Deputy Director of Consolidation were influenced very much by the fact that at the time of spot inspection, the land in dispute was found to be low lying land submerged with water wherein Singhara crop was sown.

The said fact is irrelevant to decide the controversy as to whether the name of the petitioner No. 1 was wrongly recorded in the revenue record or not. The petitioner No. 1 came into occupation and his name was recorded on the strength of the lease deed in his favour. The said lease deed is a valid document. Even if a tenure holder convert its plot into a pond and tank, no provision was shown by the learned standing Counsel that upon such conversion, the land covered with water or in the shape of pond or tank would vest in Gaon Sabha or it would become ipso facto public utility land. The authorities below thus mis directed themselves and thus reached to a wrong conclusion. The findings recorded by them therefore, are vitiated.

Coming to the second point that the Gaon Sabha has accepted the order of the Settlement Officer of Consolidation as it did not file any revision and as such the revision preferred by the respondent No. 5 before the Deputy Director of Consolidation who passed the impugned order was not maintainable, has got some substance.

The Gaon Sabha evidently accepted the order of the Settlement Officer of Consolidation and as such the order of Settlement Officer of Consolidation qua Gaon Sabha had attained finality and it could not be challenged by the respondent No. 5 by way of revision.

The other aspect of the case is that in the basic year, the plot in dispute was recorded in the name of petitioner No. 1 as Sirdar. The burden to prove that the said entry is incorrect lay upon the person including Gaon Sabha who disputes the entry. If such a person fails to prove his case, it goes without saying that the revenue entry recorded in the basic year would be treated as valid. Here is a case where the Gaon Sabha has failed to discharge its burden of proof.

In the result, the writ petition succeeds and is allowed. As none appeared on behalf of respondent Nos. 4 & 5, no order as to costs. The impugned order dated 21.4.1976 passed by the Deputy Director of Consolidation is quashed and the order of the Settlement Officer of Consolidation dated 12.5.1975 is restored back.