Udai Singh vs Gaon Sabha and Others

Shishir Kumar, J.—This is the Plaintiffs second appeal filed against the Defendants for cancellation of the order passed u/s 122B of U.P. Zamindari Abolition and Land Reforms Act (in short the Act) as well as a declaration to that effect be made that the judgment passed is not binding upon them as well as Defendants be restrained from interfering and dispossessing the Plaintiff from Plots No. 286 and 267 as well as the cost of the same should be paid. It has been stated in the plaint that Plaintiff as well as the Defendants-second set are the owner in possession of the plot in dispute and a house has already been constructed which has been shown in the plaint-map as ADEF, EFGH and GHIJ. Towards the south of the house, Plot No. 265 belonging to Parsadi, Devi Sahai and Lukka was there. Plaintiff and Bhagmal have purchased 1/3rd share and this plot has been shown as CPMN. House of Babu Giri has been shown as JHIJ which has been purchased by one Smt. Jaggo and rest of the land of Plot No. 265 has been purchased by him and this property was handed over to Babu Giri. It was further stated that Parsadi was using land towards east and subsequently it has been transferred to the Plaintiff and Defendants-second set and they have constructed a house in the year 1967 and a tube-well and Chakki has been installed.

In 1981 some objection was made by Gram Sabha regarding this property. Then an application was made by the Plaintiff and the Defendants-second set and then on the basis of resolution dated 25.10.1981 about 150 sq. yard land was allotted on Patta in favour of the Plaintiff and Defendants-second set. Nobody has raised any objection in making the construction. A report by the Lekhpal was made on 12.9.1998 stating therein that the possession of the Plaintiff is illegal and a proceeding u/s 122 B of the Act was initiated. The Plaintiff was under the impression that the property shown as PTSR is the property in Plot No. 266 and this is the property allotted on Patta to the Plaintiff. An order was passed by the Tehsildar concerned on 26.3.1990 for ejectment. A revision was filed which has also been dismissed on 22.2.1990 as well as writ petition filed by the Plaintiff-Appellant has also been dismissed. Subsequently after verification Plaintiff came to know that Plot No. 266 is the north of Plot No. 265 and the parental house has also been included. Though the Plaintiff is in possession of the said property before abolition of Zamindari, therefore, it devolved in favour of the ancestors of the Plaintiff-Appellant. Regarding Plot No. 267, a Patta has been granted in his favour which has been accepted by the Gram Sabha, therefore, any order u/s 122 B of the Act is not applicable and that may be treated to be null and void. On the spot there is a construction and unless and until it is divided, possession of the property cannot be taken.

Defendants No. 1 and 2 have filed their written statements as well as the map stating therein that the allegations made in the plaint are incorrect and it is wrong to say that the house in question was purchased by Udai Singh and Bhagmal. As regards the contention regarding possession, it has incorrectly been mentioned. Though there was a request regarding grant of Patta by the Gram Sabha but it is incorrect to state that on the basis of resolution dated 25.10.1981 any Patta was granted in favour of Plaintiff-Appellant relating to 150 sq. meters and any construction to that effect has been made. The contention of the Plaintiff-Appellant to that effect is also incorrect that his ancestral house has been included in Gata No. 266 or it is included in the property of Babu Giri. The Appellant has got no concern with the Gata Nos. 266 and 267. The suit itself is barred by Sections 27/49 of the U.P. Consolidation of Holdings Act. The State is a necessary party, but the State has not been impleaded as a party, therefore, the suit is liable to be dismissed. The Plaintiff-Appellant is in illegal possession without any authority of law. During consolidation in the year 1960 in the basic year Khatauni of 1366F, Khata No. 24 measuring about 1Bigha 7 Biswas and Khata No. 456 measuring about 6 Biswas 5 Biswansis were recorded in the name of Natthan son of Atar Singh and during consolidation in CH Form No. 21, Gata Nos. 452 and 453 have been left for Abadi purposes. The Plaintiff-Appellant forcibly, on the Gaon Sabha property, without any authority had taken possession, then a proceeding u/s 122 B of the Act was initiated and has been finalised up to the High Court again him.

The trial Court after considering the claim of the parties framed various issues and one of the main issues was whether the Plaintiff and Defendants-second set were the owners in possession of Plots No. 266 and 267. Whether any Patta was granted in their favour and various other issues relating to legal possession and whether suit was barred by Section 49 of the Consolidation of Holdings act as well as Section 41 of the Specific Relief Act was also framed.

Plaintiff on his own behalf in support of his case filed documentary evidence i.e. 9-C to 10-C which is map as well as the copy of the order passed by the High Court and 63-C to 64-C which is the copy of the order of the Tehsildar. On behalf of the Defendants, Papers No. 22-C as well as 23-C which is Jot Chakbandi Akar Patra 45 and 24-C as well as other various documents were filed. On the basis of the pleadings of the parties, the trial Court has recorded a finding that it has not been proved by the Plaintiff that the disputed property is a part of Gata No. 265 because as regards the contention of the Appellant regarding 1/3rd part of Khata No. 265 in his favour by sale-deed, it is not clear that that is a part of the said plot. In case it was a part of the property, the same should have been verified by the Survey commission. As regards the grant of Patta in favour of the Plaintiff-Appellant regarding the resolution dated 25.10.1981 for about 150 sq. meters, it has not been proved by the Appellant that any Patta was granted in his favour. From the statement and pleadings it is clear that the Plaintiff has illegally occupied the land in spite of the order of ejectment. The Appellant has not filed any document to show that he is the owner of the Gata Nos. 266 and 267 though the Defendants have submitted various documents which go to prove that his name is recorded in the revenue record. 27-C and Akar Patra 21 which has been filed on behalf of the Defendants, Plot No. 452 and 453 has been left for Abadi. The Khatauni of 1366F goes to show that in the said property the name of Natthan and Shibban has been recorded. It is a public document and in contradiction the Plaintiff-Appellant has not filed any document to show that he is having some share in plot Nos. 266 and 267. While considering the issue No. 4, a finding has been recorded that in view of Section 27 of the Consolidation of Holdings Act, the entry made in the annual register and map as well as Khasra will be treated to be correct unless and until proved otherwise. While considering the issue, the trial Court has recorded a finding that in view of Section 49 of the Act, the rights of the parties after notification u/s 4 has to be decided in view of the provisions of the aforesaid Act. As during the consolidation, Appellant has not raised any objection which Appellant should have done, therefore, after the notification u/s 49, any such objection cannot be entertained and cannot be said to be maintainable.

After recording such finding the trial Court has dismissed the suit vide its judgment and order dated 16.7.2002. The appeal filed by the Appellant has also been dismissed after confirming the finding recorded by the trial Court holding therein that Appellant has failed to prove from the record that he on the basis of adverse possession has become the owner of the property. Admittedly, the property belongs to the Gram Sabha, therefore, any possession by the Appellant of the property of the Gram Sabha cannot be held to be adverse possession and order u/s 122B of the Act has already been passed, therefore, the Plaintiff-Appellant cannot claim adverse possession and cannot be said to be owner in possession of the property in dispute. After recording such finding the appellate Court has also dismissed the appeal. Hence, the present appeal has been filed.

Sri Rajeev Misra, learned Counsel for the Appellant has submitted that the judgment passed by the Court below suffers from error apparent on the face of record in view of the fact that if the Court below was of the opinion that the property is not identified, then in view of Supreme Court judgment reported in Shreepat Vs. Rajendra Prasad and Others, . it was the duty of the Court to identity the land by issuing some survey commission. The Court below has wrongly considered the oral and documentary evidence on record which establishes the Plaintiff''s case. Admittedly the land in dispute is recorded as Abadi as such by virtue of the aforesaid revenue entry, the land in dispute was not covered within the definition of land as defined under U.P. Zamindari Abolition and Land Reforms Act, therefore, the provision of U.P. Zamindari Abolition and land Reform Act could not be made applicable to the land in dispute. The dispute was regarding the identification of survey of Plot Nos. 264 and 267 whether the aforesaid land is appurtenant to Plot No. 265 and no effort was made by the Court to identify the said land. The aforesaid land shall be deemed to have been settled with the Appellant u/s 9 of the U.P. Zamindari Abolition and Land Reforms Act but the Courts below have not considered this issue in the light of the revenue entry. Once the land in dispute was recorded as Abadi, then provision of Section 122-B of the Act could not have been made applicable. In such circumstances, learned Counsel for the Appellant submits that the judgment passed by the Courts below are liable to be quashed.

After consideration of the arguments raised on behalf of the Appellant and after perusal of the record, it is clear that a proceeding u/s 122-B of the Act was initiated against the Plaintiff-Appellant for ejectment and that has become final up to the stage of the High Court against the Plaintiff-Appellant. The Plaintiff is not able to prove from the record that any Patta was ever granted in his favour by the Land Management Committee after following the proper procedure as provided in law. The Defendants have proved from the record that they are in possession of the property in dispute and before the consolidation they were in possession of the property in dispute. If after the ejectment in a proceeding u/s 122-B of the Act, the Plaintiff-Appellant has illegally occupied some land of Gram Sabha, that cannot give a right to him to claim the benefit and to claim that he is in legal possession of the property in dispute. The trial Court as well as appellate Court has recorded a finding that Plaintiff has not been able to prove from the record that the disputed property is the part of Plot No. 265. The revenue record clearly shows that Plaintiff has got no right to remain in possession of the property in dispute. The record submitted on behalf of the Defendant-Respondents clearly goes to show that they are in possession of the property in dispute having right on the basis of relevant record. The appellate Court has recorded a finding that admittedly this property belongs to Gram Sabha and therefore, the Appellant cannot claim any right on the basis of adverse possession because the proceeding u/s 122-B has already taken place, therefore, it cannot be said and held that if he was in possession of the Gram Sabha land, that was without interruption. On behalf of the Gram Sabha, Form 45 and other documents have been submitted and Plot Nos. 266 and 267 have been shown as non-agricultural land. In case it is presumed that it is an Abadi land, the Appellant has not been able to show that any Patta was granted in his favour and this land belongs to him. Though otherwise Defendants No. 1 on the basis of documents has been able to prove that Khata No. 266 and 267 no Patta of any part was granted in favour of the Appellant. As the Plaintiff has failed to prove from the evidence that he is in possession of the property in dispute, therefore, he is not entitled for any relief. Further as regards the contention of the Appellant regarding verification of the identity of the land by issuing a survey commission, in the facts and circumstances of the present case, it was not applicable being the fact that unless and until the Plaintiff is able to prove from the record that he is having any right in the property in dispute, in that case the Court was under the obligation to have the survey commission issued. The decision cited by the learned Counsel for the Appellant is not applicable to the facts of the present case.

In view of the facts and circumstances of the present case in my opinion, the findings recorded by the Courts below are findings of fact based on evidence on record. It is settled in law that findings of fact recorded by the Court below should not be interfered while exercising the jurisdiction u/s 100 Code of Civil Procedure. As no substantial questions of law are involved in the present appeal, it is hereby dismissed.

No order is passed as to costs.