Shri Darban Singh vs State of Uttarakhand & Others

SHARAD SHARMA, J. (ORAL)

The petitioner herein is the sole defendant in the proceedings under Section 209 of the U.P. Zamindari Abolition and Land Reforms Act, which has

been initiated by respondent no. 5 seeking eviction and consequential possession of the property described as Khatoni Khata No. 219 Plot No. 495,

496, 498, 499, 500, 501, 502, 503, 504, 505, 506, 507, 508, 509, 513, 525, 526, 599, 600, 601, 602 & 603 having total area of 13 Nali 11 Mutthi of land

situated in Village Magiri Patti Malla Katyur, District Bageshwar (herein after to be called as property in dispute). The Suit was filed by respondent

no. 5 invoking Section 209 of U.P. Zamindari Abolition and Land Reforms Act. It was contended by respondent no. 5 that the property in dispute was

given in possession of petitioner at the time when the plaintiff was proposing to sell certain land in lieu of consideration. It was thereafter that the

possession continued to be with respondent Dharam Singh, after possession was given to him in October, 1977. But the petitioner did not satisfy the

terms of agreement to sale and had not remitted the amount settled. The plaintiff has withdrawn the consent given to petitioner to continue in

possession.

The case of the plaintiff/respondent was that as a matter of fact the petitioner had no legal title vested with him to continue in possession but, at the

relevant time since there was a shortage of finances and the plaintiff/ respondent wanted certain financial assistance the land was given in the

possession of Dharam Singh S/o Harak Singh. It is the case of the plaintiff/respondent that despite of notices having been served upon the defendant/

petitioner when the possession was not handed over the necessity arose to invoke Section 209 of U.P. Zamindari Abolition and Land Reforms Act for

getting the possession handed over to him. Section 209 of the Act is quoted hereunder:

“Ejectment of persons occupying land without title [Section 209, U.P.Z.A. & L.R. Act]. - (1) A person taking or retaining possession of land,

otherwise than in accordance with the provisions of the law for the time being in force, and

(a) where the land forms part of the holding of abhumidhar or asami without the consent of such bhumidhar or asami, and

(b) where the land does not from part of the holding of a bhumidhar orasami without consent of Gram Sabha, shall be liable to ejectment on the suit in

cases referred to in clause (a) above of the bhumidhar or asami concerned, and in cases referred to in clause (b) above, of the Gram Sabha and shall

also be liable to pay damages.â€​

In response thereto a written statement was filed by the petitioner before the Court of Pargana Adhikari Assistant Collector I Class. On receipt of

notice the present petitioner, who was defendant in the Suit, filed his written statement. However, in the said Suit the performa party State of Uttar

Pradesh i.e. respondent no. 1 herein (as it then was) did not contest the proceedings nor filed their written statements.

According to the petitioner/defendant, he claimed his right to continue in possession on the premise that he came in possession of the property in

question in 1946, when he became the Sirtan of one Mr. Shyam singh S/o Mr. Man Singh and, accordingly, he came in possession and his possession

continued thereafter. In the written statement the case of the petitioner was further that since the name of the father of the plaintiff i.e. father of the

present respondent no. 5 and the petitioner was same i.e. Dharam Singh, the plaintiff got his name recorded in the Bandobasti. Such type of entry in

the revenue records will not grant any title to the plaintiff and hence prayed for that the Suit may be dismissed. The petitioner has claimed that by

operation of law of adverse possession he has became the Bhumidhar of land, being in possession for considerable time. Another stand taken by the

petitioner before respondent no. 4 (though not argued before this Court) was that Suit was barred by limitation, and Suit suffered from vices of non

joinder of parties.

The petitioner contended before the Court below that over the property in question the possession of plaintiff/respondent was never there and ever

since 1946 he continued to be in possession as Sirtan of one Shyam Singh. The argument was raised also the effect that the Suit is not maintainable,

also because of the fact that land being a Non-Z.A. land the Assistant collector I Class would not have any jurisdiction over the matter.

On scrutiny of the pleadings raised in the Writ Petition as well as based on the findings recorded by the Pargana Adhikari/ Assistant Collector in its

judgment on 05.10.1984, it seems that the learned Trial Court has framed as many as seven issues for deciding the controversy. But the judgment

impugned do not disclosed the nature of issues framed. Learned counsel for the petitioner had not brought any material in record, to elaborate the

nature of issues framed and its impact over the proceedings. Since, there is nothing on record brought by the petitioner to show as to what was the

nature of issues framed by the Court below, which has been decided by the Pargana Adhikari/ Assistant Collector by consolidating the issues together,

this Court is constraint to proceed on the basis of crippled assistance by counsel of the parties.

The learned Assistant Collector vide its judgment dated 5.10.1984 consolidated issue nos. issue nos. 1 to 4 and held that since these four issues are

interconnected with one another hence they are being decided together. While dealing with the respective cases and, in particular, the claim raised by

the plaintiff to the effect that the land was handed over to the defendant under an agreement for sale only in October, 1977 and the plea raised by the

defendant/petitioner in the written statement was to the effect that the possession was given in 1946 when he became Sirtan of Shyam Singh.

The plaintiff/respondent no. 5 in support of his contention in the proceedings had produced himself in the witness box as PW1. Plaintiff respondent

in support of his case has produced Khatauni dated 26.10.1978, which recorded the name of Dharam Singh S/o Harak Singh as Sankramanya

Bhumidhar, wherein he submitted that in October, 1977 the marriage of his son was to be solemnized and there was a shortage of finances. It was

due to this reason that he took `600/- from the defendant/petitioner and handed over him the possession of the property in question. Plaintiff pleaded

that the defendant petitioner had agreed to purchase the land @ `1,000/- per nali, but defendant never honoured the terms of agreement and never

remitted the balance settled considering hence his possession was only permissive possession. It was case of the plaintiff that since then the defendant

came in possession of the property and continued to occupy the same. In support of his contention the plaintiff also adduces the oral testimony of PW2

and PW3 apart from he appearing as PW1. During the course of arguments before the Pargana Adhikari/Assistant Collector the defendant/petitioner

carved out the new case and contended that both plaintiff and defendant had been the Sirtan of Shyam Singh S/o Man Singh. On account of the fact

that plaintiff and defendant both had the common name, the plaintiff by playing fraud got the name recorded during the bandobasti. The defendant

claimed his right by virtue of an adverse possession also since being in possession since 1946. On scrutiny of the cross-examination it has also

revealed and established by evidence that the defendant has admitted that the bandobasti was held in 1969 and he never made any efforts either to

expunged entries made in favour of respondent no. 5 from the revenue records. During the course of the proceedings Shyam Singh, of whom

defendant contends to be the Sirtan was produced as one of the witnesses by the defendant called as DW2. Statement of DW2 is quoted hereinbelow:

“Jh “;ke flag mez 47 o’kZ iq= Jh ekuflag fuoklh xzke esxM+h LVsV e0 dR;wj “kiFk iwoZd c;ku fd;k gS fd eSa esxM+h LVsV esa jgrk

gwa rFkk ogha [ksrh djrk gwaA eSaus /kje flag izfroknh dks dksbZ tehu fljrkuh esa D;k [kkus dks ugha nh FkhA eSaus ;g tks tokc fn;k gS og /kjeflag

cs0 oj.kflag ds ckcr le>dj dgk FkkA eSaus fljrkuh esa dek [kkus dks /kjeflag cs0 gjdflag dks tehu ugha nh cfYd mlds ikl fljrkuh esa tehu esjs firk ds le;

ls FkhA tks tehu esjs firkth ds le; ls /kjeflag cs0 gjdflag ds ikl fljrkuh esa Fkh og tehu esjs tekus ls Hkh esjs firk dh e`R;q ds ckn Hkh mlh ds ikl fljrkuh

esa jgh eSaus og tehu mlls okil ugha yhA ;g Hkwfe ujflagxkM+ rksd esa gSA bl ujflagxkM+ rkdh fljrkuh Hkwfe esa tcls esjs firkth us Hkwfe nh Fkh

rc ls vkt fnu rd og Hkwfe /kjeflag cs0 gjdflag ds gh dCts esa jgh gSA eSa xkao dk iz/kku gwaA ujflagxkM+ okyh bl tehu dks eSa vPNh rjg igpkurk

gwaA cUnkscLr ls igys bl Hkwfe esa eSa rFkk esjs firkth fgLlsnkj jgs FksA cUnkscLr ds le; eSa ?kj ij ugha Fkk cUnkscLr dh [kkukiwfrZ esjs lkeus

ugha gqbZA oknh dk ;g dguk xyr gS fd Þlu~ 77 ls igys bl fookfnr Hkwfe esa oknh dk dCtk Fkk vkSj vDVwcj uoEcj 77 esa gh mlus dCtk izfroknh

dks fn;k FkkßA eSa bl ckjs esa ugha tkurk gwa fd dHkh bu fookfnr [ksrksa esa /kjeflag iq= oj.kflag dk dCtk jgk ;k ughaA tcls eSa QkSt ls lu~ 1956

esa isaâ€ku ij ?kj vk;kA rc ls vkt fnu rd eSaus dHkh Hkh fookfnr [ksrksa esa /kjeflag iq= oj.kflag dk dCtk ugha ns[kkA bu fookfnr [ksrksa esa eSaus

izfroknh dk dCtk ns[kkA

esjs firkth lu~ 46&47 esa ejsA esjs firkth us lu~ 41 esa IykV [kjhnk Fkk rHkh ls /kjeflag cs0 gjdflag gekjs fljrku jgsA eq>ls bl /kjeflag cs0 gjdflag dk bl

fookfnr Hkwfe ds ckjs esa dHkh dksbZ ysus&nsu ugha jgkA eSaus fookfnr Hkwfe fljrkuh esa izfroknh dks ugha nh cfYd igys ls gh mlds ikl ;g Hkwfe

FkhA izfroknh /kjeflag dk ;g dguk fd lu~ 1946 esa mls esjs }kjk fookfnr Hkwfe nh xbZ Fkh xyr gS tcfd ;g Hkwfe igys ls gh mlds ikl FkhA esjs lkeus ;g

Hkwfe bUgsa nsus dk loky gh ugha BgjkA D;ksafd eSa ?kj ij ugha FkkA esjs ?kj vkus ij eSaus /kjeflag cs0 oj.kflag ls tehu ds ckjs esa ,d fy[kr dh

FkhA bl fy[kr ds eqrkfcd eSaus /kjeflag cs0 oj.kflag oknh dks tehu nh FkhA ;g fy[kr cUnkscLr ls igys gks pqdh Fkh fdUrq eq>s ;g ;kn ugha fd fdl

o’kZ ;g fy[kr gqbZ FkhA og fy[kr eSaus vius gkFk ls fy[kh FkhA og fy[kr esjs lkeus gS tks esjs }kjk fy[kh xbZ gS rFkk blesa esjs gh gLrk{kj

vaxwBk fuâ€kkuh gS ;g fy[kr lgh gqbZ FkhA cUnkscLr ds le; bu yksxksa us tehu dCtk fd;s Fkk ntZ djok;k gksxk eSa ?kj ij ugha Fkk rc eSa ukSdjh ij

ckgj cukjl esa izkbZosV QeZ I ukSdjh ij FkkA ml le; Hkwfe oDr cUnkscLr ds izfroknh /kjeflag ds firk gjdflag ftUnk Fks rFkk izfroknh ds lkFk gh jgrs

Fks& budk joint ifjokj FkkA fookfnr Hkwfe [kjhn ls gh dkLrdkjksa dsdCts is jgh vkSj esjh ns[kh gqbZ ugha gSA eSa ugh crk ldrk fd fdu [ksrksa is

fdldk dCtk gSA /kjeflag cs0 gjdflag eq>s dksbZ jde ugh nsrk gS vc dke Hkh ugha djrk gS] cUnkscLr ls igys djrk FkkA eSaus izfroknh /kjeflag izfroknh

dks ugha crk;k Fkk fd fookfnr Hkwfe mlds uke ntZ dh xbZ gksxhA eq>ls izfroknh /kjeflag us xokgh nsus gsrq fiNyh rkjh[k dks dgk FkkA eSaus

xokgh dk dksbZ [kpZ ugha fy;k gSA eSa viuh ikdsVeuh ls vk jgk gwa D;ksafd gekjh tehu fNu x;h gS tehu fNuus ls eSa [kqâ€k gwa D;ksafd ljdkj us

gh Nhu yh gSaA blls igys eSaus dksbZ xokgh ugha gS eSaus cpsflag dh xokgh vYeksM+k esa iz/kku dh gSfl;r ls nh FkhA vkt Hkh eSa iz/kku dh gh

gSfl;r ls vk;k gwaA xzke iapk;r esa eSaus dksbZ xokgh ugha nhA eSa izfroknh ls xokgh dk dksb Z[kpkZÂ ugha ywaxkA ;g dguk xyr gS fd izfroknh

;k mlds ifjokj okys esjk dksbZ dke djrs gSaA blfy, eSa mudh vksj ls xokgh ns jgk gksÅA tcls tehu buds uke ij pugha crk ldrk gwa fd izfroknh us esjs ;gka dc ls dke ugha fd;k gSA eSa xzke iz/kku gksus ds ukrs vkt xokgh is vkus fo’k;d gtsZ&[kpsZ dks lgu dj

ywaxkA ;g dguk xyr gS fd eSa iSls ysdj >wBh xokgh ns jgk gksÃ…A lqudj rLnhd fd;k rk0 29@7@81-â€​

Court of Pargana Adhikari/Assistant Collector I Class scrutinized the statement of petitioner, where he admitted that bandobasti was held in 1969 in

which predecessor of respondent no.5 was recorded in the revenue records and he has taken recourse to no remedy available to him under law to get

expunged those entries.

Trial Court also recorded a finding based on statement of DW2 Shyam Singh that he had never given any land to Dharam Singh S/o Mr. Harak Singh.

Court held on conjoint reading of oral testimony of DW2 and his witness DW2 there happens to be contradiction. Court further held that the petitioner

failed to adduce any evidence to show his possession prior to October, 1977 and thus disbelieved the theory that petitioner was in possession as Sirtan

of Shyam Singh since 1946. While considering the authorities relied by the parties Court held that a possession is given by consent of plaintiff, the

consent can be withdrawn and the plaintiff would be entitled for possession under Section 209.

Learned counsel for the petitioner has placed reliance on the statement of DW2, wherein he tried to place reliance on the statement given by

DW2 to the effect that he had never given any land to Dharam Singh S/o Harak Singh. Determining the statement of DW2 the Assistant Collector

came to a conclusion that according to the statement of the defendant witness himself and looking to the statement of DW1 there happens to be a

massive contradiction, even so much so, the defendant failed to prove that they had been in possession since 1977 and what to say about 1946. Finally,

the Court concluded that the plaintiff has handed over the possession of the property in 1977 on the basis of an agreement and on account of the fact

that the defendant had not fulfilled the conditions of the agreement hence on furnishing of the notice the plaintiff was entitled to retain back the

possession. For the purposes of determining a right under Section 209 of the Zamindari Abolition Act for getting over the possession, it is a settled law

that whenever defendant possession is as a consequence of the consent of the plaintiff, the same can be withdrawn at any stage and while handing

over the possession to him in terms of the said agreement the plaintiff would be entitled to get back the possession. Issue nos. 2, 3 & 4 were decided

in a negative. Statement of DW2 shows that he had never given land to petitioner rather he submits he was in possession much before DW2 denied to

have given land as Sirtan in 1946, thus the very basis of claim is not sustainable. Further DW2 stated that he was not sure as to ever their had been

possession of father of respondent no. 5.

Consequently, the Court of Assistant Collector I Class decreed the Suit by the judgment dated 05.10.1984.

Being aggrieved against the judgment dated 05.10.1984 the petitioner preferred a Zamindari Appeal No. 44 of 1984 & 85. The main ground which

was agitated by the petitioner before the Appellate Court was to the effect that the Court of Pargana Adhikari/Assistant Collector has traveled

beyond the scope of Section 209 while decreeing the Suit for possession. The contention of the petitioner in the Appeal was that when the plaintiff

admits the fact that the possession was handed over with consent in October, 1977, in that eventuality, it is the case of the petitioner that the provisions

of Section 209 would not be attracted and thus the Trial Court has traveled beyond its jurisdiction.

Before the Appellate Court the petitioner raised three fold arguments:

(i)Â He has acquired Bhumidhari rights by adverse possession.

(ii)Â Suit since based on non performance of an agreement was cognizable by Civil Court.

(iii) Suit was based on fraudulent entries of 1969 obtained by plaintiff during bandobasti.

(iv) Notice was not given to State, which is mandatory.

(v)Â Suit was insufficiently valved was not as per revenue notification of land.

(vi) That it has not been the case of plaintiff that he intends to return money and back possession

In reply to the above grounds the respondent no. 5 submitted before the Court that no such plea was ever raised before the Trial Court. They are

being raised for the first time in Appeal. Admittedly, according to the narration given, the petitioner admits notice was issued. With regards the

question raised that the respondents no. 5 has never asked to return the money from petitioner, the case of respondent was that `600/- was a taken as

token money which never constituted as to be part of sale consideration, further because before the Trial Court fact of agreement for sale and rates

for sale stood proved. It was further submitted by respondent no. 5 that the petitioner failed to prove his case being Sirtan of Shyam Singh since 1946.

The Appellate Court while considering the rival contention held that the necessity for the plaintiff to bring the Suit for possession arose because of

the agreement for sale executed between the plaintiff and the defendant, which was not being honoured by the petitioner and he did not take steps to

get the sale deed executed and was enjoying permissive possession. Even before the Appellate Court, the petitioner/appellant has reiterated the stand

that the land was a Sirtani land of Shyam Singh and the appellant was the Sirtan and after the bandobasti he became a Bhumidhar and denied the fact

of the theory of agreement for sale which is contended by the plaintiff to have been executed.

Before the Appellate Court it was the case of the petitioner that the land in question had never been in possession of the plaintiff rather during the

bandobasti Dharam Singh S/o Harak Singh by playing fraud got his name recorded and taking advantage of this wrongful entry had instituted the Suit.

His case was further that the Suit happens to be absolutely of a civil nature because in an event if there is a non performance of the agreement there

has to be a Suit for specific performance, which will lie before the Civil Court and not the revenue Court. While scrutinizing the statement of the

plaintiff Dharam Singh S/o Harak Singh the Appellate Court held that on the scrutiny of the statement and the need as expressed by Dharam Singh

S/o Harak Singh that he ever intended to return back the money of Rs. 600/- and wanted to retain back the possession.

The Appellate Court after considering the case with entirety and evidences adduced by the parties has recorded a finding that Shyam Singh who

appeared as DW2 in his cross-examination has contended that he had never given the land to the defendant and thus the plea raised that the

possession was handed over way back in 1946 to the defendant is not correct. Learned Appellate Court held that the stand taken by the defendant

that the entries made in the revenue courts during the bandobasti was by playing fraud then too the Court has held that even if it is presumed that the

entries during the bandobasti was got made by playing fraud then too those entries would be treated to be correct entries because since being an old

standing unchallenged revenue entries for last 26 years, which was never opposed by the defendant/petitioner nor any steps was taken by him to get it

expunged. The Appellate Court in the concluding part of the judgment recorded the following finding:

“vr% 26 o’kZ ds Ikâ€​pkr~ ;g bUnzkt dks xyr ugha dg tk ldrkA

mHk; i{kksa ds mijksDr rdksZa dks lquus o i=koyh ds v/;;u ls eSa bl fu’d’kZ ij igqapk gwa fd :0 600@& nsdj izkIr dh xbZ Hkwfe dks

vihykUV cU/kd dh Hkwfe ugha dg ldrk vkSj u gh mls foØ; ekuk tk ldrk gSA 13 ukyh Hkwfe ds 600@& :Ik;s ewY; esa Hkwfe dk foØ; fd;k tkuk

fdlh Hkh lwjr esa U;k;ksfpr ugha ekuk tk ldrk gSA

bl izdkj bl dCts dks lgefr ds vk/kkj ij dCtk dh Js.kh esa ugha ekuk tk;sxk vkSj v/khuLFk U;k;ky; }jk izfri{kh@oknh dk nkok fMØh dj dksbZ =qfV ugha

dh xbZ gS vkSj vihy fujLr gksus ;ksX; gSAâ€​

The Appellate Court consequently dismissed the Appeal by the judgment dated 11.11.1992. Being aggrieved against the same judgment the

petitioner preferred the Second Appeal before the Board of Revenue being SA No. 21 of 1992-93. The same has also been dismissed by the judgment

dated 30.12.2005. The Board of Revenue while considering the statement of the plaintiff/respondent no. 5 has recorded a finding that in the revenue

records the plaintiff opposite party Mangal Singh continues to be recorded and at no point of time the appellant was ever recorded in the revenue

records nor his possession was recorded nor had taken any steps at any point of time to get himself recorded, and challenging the bandobasti entries of

1969, which then had became the old standing entries of over 30 years.

The Second Appellate Court too concurrently held that the alleged agreement for sale of 1977 by virtue of which the possession was transferred

was sought to be executed and petitioner never purchased the land nor he had ever remitted the sale consideration to the plaintiff/respondent or made

any efforts to get the alleged agreement for sale executed by filing an independent Suit. The Appellate Court held that the possession of the

defendant/petitioner was only as a consequence of the agreement to sale but since no steps have been taken further in furtherance of the agreement

nor the balance money was paid nor it’s the case of the petitioner that he wanted to pay but was not accepted by respondent no. 5. The plaintiff

was entitled to get the possession restored by invoking Section 209 of the Zamindari Abolition Act. The Second Appellate Court held that all the three

Courts have concurrently held that the possession of the defendant over the land in question is adverse, which is apparent from the case as developed

by the defendant/petitioner himself.

All the Courts below have concurrently held that though the petitioner has claimed that he had been in possession of the property since 1946 but

the petitioner never made any efforts to get his rights declared of the alleged Bhumidhari right by adverse possession nor he has produced any

evidence to show that he had been in possession since 1946 after being placed in the said status by Mr. Shyam Singh, who was Sirtan.

The Second Appellate Court had further recorded a finding that in the village in question in question the bandobasti was held in 1969 and the Court

came to the conclusion that had the petitioner being in possession after 1946 and before 1977 then obviously at the time of bandobasti 1969 he should

have been found to be in possession and his name ought to have been recorded in the revenue records but no such evidence has been produced by the

petitioner nor any reason has been assigned as to why if the bandobast was held in 1969 he was not recorded in the revenue records. All the Courts

below have concurrently held that the entries in the revenue records shows that the plaintiff continue to be recorded. The Second Appellate Court

accepted the reasoning of all the Courts that since the possession was handed over as a consequence of the agreement allegedly made in 1977 and

the possession was handed over with the consent, the said consent can always be withdrawn and as soon as the consent of possession is withdrawn,

the petitioner looses his rights and hence the proceedings under Section 209 was rightly decreed by the Courts below.

What is relevant at this stage is the cross examination of Shyam Singh from whom petitioner claims to have Sirtani right on whom the reliance has

been placed by the petitioner that it was he who has placed him in possession in 1946. Shyam Singh appeared in the witness box as DW2 and has

recorded a statement in his cross examination to the following effect, wherein he has given a specific statement that it was Dharam Singh S/o Harak

Singh who is the grand father of respondent no. 5, who had been the Sirtan of the father of Shyam Singh:

“esjs firkth lu~ 46&47 esa ejsA esjs firkth us lu~ 41 esa IykV [kjhnk Fkk rHkh ls /kjeflag csa0 gjdflag gekjs fljrku jgsA eq>ls bl /kjeflag cs0 gjdflag

dk bl fookfnr Hkwfe ds ckjs dHkh dksbZ ysu&nsu ugha jgkA eSaus fookfnr Hkwfe fljrkuh esa izfroknh dks ugha nh cfYd igys ls gh mlds ikl ;g

Hkwfe FkhA izfroknh /kjeflag dk ;g dguk fd lu~ 1946 esa mls esjs }kjk fookfnr Hkwfe nh xbZ Fkh xyr gS tcfd ;g Hkwfe igys ls gh mlds ikl FkhA esjs

lkeus ;g Hkwfe bUgsa nsus dk loky gh ugha BgjkAâ€​

Hence, this Court of considered view that since all the Courts below have recorded a concurrent finding of facts, this Court finds that there is no

perversity in the judgments of all the three Courts below. Hence there is no scope of judicial review and scrutiny of the judgments of the Court below.

As such, the Writ Petition fails and is, accordingly, dismissed.

However, there would be no order as to cost.