Shamsher Singh (D.) by L.Rs. vs State of Uttrakhand

Prafulla C. Pant, J.—This second appeal, preferred u/s 100 of the Code of Civil Procedure, 1908 (hereinafter referred as ''C.P.C.''), is directed against the judgment and decree dated 27.8.1979, passed in Civil Appeal No. 72 of 1979, by lower appellate court (Civil Judge, Nainital), whereby the judgment and decree dated 14.5.1979, passed in Original Suit No. 45 of 1976, by Munsif, Kashipur, dismissing the suit, is affirmed. (Earlier Tehsil Kashipur was part of district Nainital).

Heard learned Counsel for the parties and perused the papers on record.

Factual matrix of the case is that Suit No. 45 of 1976 was filed by Plaintiff (Appellant) in the court of Munsif, Kashipur, with the pleading that he was cultivating land in suit (plot Nos. 95A, 96, 97B, 98, 99, 100, 101A, 102A, 103, 104, 105, 106A, 93/111 and 91/2 situated in Village Bichapuri, Bazpur) in his own rights for 18 years and he had become Bhumidhar of the plots. It is further pleaded by the Plaintiff that Suit No. 77 of the year 1969-70 which was earlier filed by him in the court of the Assistant Collector, Kashipur, u/s 229B of the U. P. Zamindari Abolition and Land Reforms Act, 1950, was decreed in his favour vide order dated 9.3.1970. As such, the Plaintiff was declared Bhumidhar in respect of the plots in suit. It is further pleaded by the Plaintiff that after depositing 20 times of land revenue he became Bhumidhar of the plots in question and was issued a Bhumidhari certificate on 21.10.1970. However, plaint case is that in the garb of proceedings under the U. P. Imposition of Ceiling on Land Holdings Act, 1960, against one Gyan Singh, in August 1975, officials of the Defendant State have shown possession taken of land in question which was shown as ''surplus land'' of Gyan Singh. With these pleadings, the Plaintiff filed suit for injunction, after serving a notice u/s 80 of the C.P.C., on the Defendant.

The Defendant (State) contested the suit and filed its written statement in which it is pleaded that Shamsher Singh (Plaintiff) is not the tenure holder of the plots in suit. It is also pleaded by the Defendant that the Plaintiff fraudulently got declared himself Sirdar and it has no affect on the proceedings under the U. P. Imposition of Ceiling on Land Holdings Act, 1960. It is further alleged by the Defendant State that possession of plots in suit was taken by it on 22.5.1975. Challenging the validity of notice u/s 80 of C.P.C., the Defendant further challenged the jurisdiction of the civil court to try this suit.

On the basis of the pleadings of the parties, the trial court framed following issues :

Whether the Plaintiff is the tenant (tenure holder) in possession of the plots in suit, and was he in possession thereof for last 18 years?

Whether the plots in suit have already been vested in the State as a surplus land of one Gyan Singh, a third person to this suit?

Whether the suit is bad for want of a valid notice u/s 80 of C.P.C.?

To what relief if any, the Plaintiff is entitled?

After recording the evidence and hearing the parties, the trial court found notice u/s 80 of CPC to be valid, but dismissed the suit on the ground that the land in question had already vested in the State. Aggrieved by said judgment and decree dated 14.5.1979, passed by Munsif, Kashipur, in Original Suit No. 45 of 1976, Civil Appeal No. 72 of 1979, was preferred before the lower appellate court. The lower appellate court, after hearing the parties, found that Plaintiff had the Bhumidhari rights over the land in question, but since, possession has been taken by the State, as such, the relief of injunction cannot be granted, and dismissal of the suit by the trial court, was upheld. Hence this second appeal was filed by the Plaintiff/Appellant before the Allahabad High Court on 20.9.1979. (This appeal has been received by transfer to this Court, u/s 35 of the U. P. Re-organization Act, 2000, for its disposal). The Allahabad High Court admitted this appeal on 25.9.1979, on following substantial question of law :

Whether the civil court has jurisdiction to try the suit with regard to land declared surplus land of a third party without any notice to the Plaintiff who was recorded tenure holder on 24.1.1971?

Answer to substantial question of law:

It is not disputed between the parties that proceedings under the U. P. Imposition of Ceiling on Land Holdings Act, 1960, were initiated against one Gyan Singh, as is clear from C.L.H. Form No. 6 dated 20.6.1970, which is copy of notification published in the Gazette (paper No. 62C in the record of the trial court). This document shows that in pursuance of provisions of Sub-section (1) of Section 14 of the U. P. Imposition of Ceiling on Land Holdings Act, 1960, plot Nos. 311, 312, 313, 315, 316, 317, 319, 322, 323, 324, 325, 326, 327, 328, 329, 330 and 331M of one Gyan Singh of village Bichapuri, Bazpur, were declared surplus. Paper No. 63C is copy of order passed by prescribed authority on 26.3.1962, passed in C.L.H. case No. 2 (Bazpur) for 1961-62, in which 17.32 acres of land of Gyan Singh was declared to be surplus. Paper No. 73C is certified copy of the report dated 21.8.1974 of Nayab Tehsildar (Peshkar) of Bazpur which shows that new Nos. of plot Nos. 311, 312, 313, 315, 316, 317, 319, 322, 323, 324, 325, 326, 327, 328, 329, 330 and 331 are now 95A, 96, 97, 98, 99, 100, 101A, 102A, 103, 104, 105, 106-A, 93/111 and 91/2. Paper No. 75C is the original ''dakhalnama'' (possession deed) that shows that the possession of plot Nos. 95A, 96, 97B, 98, 99, 100, 101A, 102A, 103, 104, 105, 106A, 93/111 and 91/2 was taken by the Defendant on 22.5.1975 from Gyan Singh, in presence of witness Akmal Khan.

On behalf of the Plaintiff/ Appellant attention of this Court is drawn to various documents including Ext 8, extract of Khasra of 1382 Fasli (calendar year 1975) which shows possession of Plaintiff Shamsher Singh over the land in question. Ext. 10, extract of Khatauni of the year 1378 Fasli to 1380 Fasli (calendar years 1971 to 1973), bears name of Plaintiff Shamsher Singh as Sirdar of said plots. Ext. 12 is certified copy of judgment dated 9.3.1970, passed by the Assistant Collector, Kashipur, wherein Plaintiff was declared Sirdar over the land in dispute. Paper No. 24C is ''bhumidhari'' dated 26.10.1970, which was issued in favour of the Plaintiff Shamsher Singh, regarding the plots in suit. On the basis of these documents on behalf of the Plaintiff/Appellant, it is argued that the proceedings against Gyan Singh are not binding on the Plaintiff/ Appellant Shamsher Singh as Plaintiff Shamsher Singh in his own rights is cultivating the land in suit. The lower appellate court has found this fact to be true that from these documents it appears that Plaintiff was declared Sirdar, and was issued Bhumidhari certificate, before the land in question was declared surplus of Gyan Singh. However, the lower appellate court dismissed the suit on the ground that Plaintiff could not show his possession over the land in suit, as such, was not entitled to injunction. Paragraph 13 of the plaint in the original record shows that the Plaintiff himself has admitted that he came to know on 10.12.1976, that land in question shown to be that of Gyan Singh, has been declared surplus and its possession has been taken on 22.5.1975. Paper No. 71A, copy of Khasra of the year 1373 Fasli (calendar year 1966), which is a public document shows that Shamsher Singh was cultivating the land of Gyan Singh over the plots mentioned in the foot of the plaint. Since, the possession of the plots has admittedly been taken by the Defendant, as such, relief of simplicitor injunction could not have been granted, against the Defendant, without seeking relief of possession. In the circumstances, the lower appellate court has rightly dismissed the appeal, maintaining the dismissal of the suit by the trial court.

It is settled principle of law that a recorded tenure holder, if gets dispossessed from his land in the proceedings under the U. P. Imposition of Ceiling on Land Holdings Act, 1960, against another person, he has a right to seek his remedy under Sub-section (2) of Section 11 of the Act, by filing an application before the prescribed authority, as such, such person cannot maintain a suit which impliedly stands barred in view of Sub-sections (2) and (3) of Section 11 of the Act. The substantial question of law stands answered, accordingly.

For the reasons as discussed above, this appeal is liable to be dismissed. The same is dismissed. No order as to costs.