Ram Kishan vs Gaon Sabha

S. R. Yadav, Member.

This second appeal has been preferred against the judgment and decree dated 12695 passed by the learned Additional Commissioner, Gorakhpur Division, Gorakhpur, arising out of a suit under Section 229B of U.P.Z. A. & L.R. Act, heard and Decided by the SDO, Ghosi, District Man, vide the order dated 13891.

I have heard the learned Counsel for the parties at length and have also gone through relevant papers on file.

The learned Counsel for the appellant mainly submitted that the disputed land was recorded as banjar and the same is in possession of the appellant prior and after the Zamindari Abolition who had planted trees over the same prior to abolition of zamindari as such, being groveholder he had right to claim title, that the question of bar of the case under Section 49 of U.P.C.H. Act, was a mixed question of law and facts, that Ram Awtar and Chatthu applied for impleadment as party but without disposing of their applications, the suit has been Decided and that the appeal be allowed and the matter be remanded to the learned trial Court for evidence and decision. In support of his case he has cited a case law reported in 1985 RD 153. In reply, the learned DGC(R) eontended that the orders passed by the learned Courts below are just and proper as such t he same be confirmed.

Alter hearing the learned Counsel for the parties and perusing the records, I find the matter relates to plot Nos. 582 area 500 kari and 589 area 400 kari state in village Sarai Sadi, Pergana Havcli, Tahsil Ghosi, Distl. Mau, in respect of which a declaratory suit under Section 229B of UPZA & LR Ad, was instituted with the pleadings that the appellant was in possession over the disputed land prior to zamindari aboltion and trees have been planted over the same; hence he had perfected his title over the disputed land as groveholder. On issuance of the notices the suit was contested and the contentions of the plaintiffappellant were denied by way of written ''statement. On the pleadings of the parties to the issues were framed by the learned trial court for determination of dispute: one of the issue being whether the suit is barred under Section 49of U.P.C.H. Act or not, the trial Court heard the parties on the above preliminary issue and passed the order dated 13891 holding that the suit is barred by Section 49 of U.P.C.H. Act. Aggrieved by the order dated 13891, the first appeal was preferred before the learned Commissioner, Gorakhpur Division, Gorakhpur. The learned Additional Commissioner vide the order dated 12695 dismissed the appeal. Aggrieved by this order, the instant second appeal has been filed which is being heard by this Court.

Now the question of decision is whether the consolidation Courts have right and jurisdiction to adjudicate the question of title over the banjar land or not. The next question for determination relates to the applications moved by Ram Autar and Chailhu for impleadment as parties in the matter. So far as the first question is concerned, in this connection the learned Counsel for the appellant attracted my attention towards a case law reported in 1985 RD 153 in which the Hon''ble High Court held that the consolidation Courts/authorities have no right in respect of banjar land; the relevant paras are being reproduced below:

''As regards the contention put forward by the learned'' Counsel for, the appellant about finality of consolidation proceedings ii is obvious that admittedly the land in dispute was banjar. The Consolidation Authorities had no jurisdiction to adjudicate upon the rights of the parties in respect of the banjar land. It was said that the Banjar land does not form part of holding and. therefore, the consolidation authorities had no jurisdiction to decide the rights about such land.

Moreover, the plaintiff''s claimed easementary rights with respect to this land. Section 4 of the easements Act defines an casement as a right which the owner or occupier of certain land possesses as such, for the beneficial enjoyments of that and, to do and continue to prevent something being done, in or upon, or in respect of certain other land no) his own.

Thus, it is obvious that the adjudication about the easementary rights was not within the competence of consolidation authorities and so Section 49 of the aforesaid Act do not operate as a bar to this suit.

By the above citation the Hon''ble High Court has Laid down a clearcut law in respect of banjar land and it adjudication by the Courts. The facts and the circumstances of the instant matter is also same; hence the case law referred to above is fully applicable in the instant case. It is also noteworthy that the question of bar of Section 49 of U.P.C.H. Act, is a mixed question of law and facts ; for facts evidence is must, nothing can be inquired upon without taking and collecting evidence in respect thereof. Apparently in the instant matter no evidence has been taken. It is also surprising to note that both the Courts below have given an erroneous finding with respect to the impleadment applications moved by Ram Autar and Chatthu which still stand un disposed of.

In the above circumstances, I am of the opinion that the orders passed by both the Courts below suffer from irregularity and illegality ; the points involved in the matter have not been enquired, analysed and assessed properly as such the orders passed by the learned Courts below cannot be sustained and there is ample force in the submissions made by the learned Counsel for the appellant while 1 find no force in the contentions, raised by the learned DGC(R).

In the result, the second appeal succeeds and is here by allowed. The orders dated 13891 and 12695 passed by the learned Courts below are hereby set aside and the whole mailer is remanded to the learned trial Court for decision afresh on merits in accordance with law after giving opportunity of hearing both the parties.