Tilakdhari Singh v. Durga Prasad Singh — 1967 DIGILAW 134 (ALL)

ORDER B.D. Gupta, J. - This is a Defendant's second appeal arising out of a suit for a declaration that the Plaintiffs were the owners in possession of a pond and a number of trees standing therein or on the boundary line thereof. The Defendants to the suit were the Gaon Samaj of the village concerned, the State of Uttar Pradesh and the Defendant-Appellant Tilakdhari Singh. Plaintiffs Set forward the case that the pond in suit had been dug by their ancestors and the trees had also been planted by their ancestors and that both the pond as well as the trees had been in Plaintiffs' possession and before them, their ancestors, since a very long time with the result that the Plaintiffs were the owners of the pond and the trees, but that, on account of certain incorrect entries in the revenue records, they were driven to the necessity of filing the suit. 2. The State of Uttar Pradesh did not appear to contest the claim. As far the Gaon Samaj is concerned, two written statements were filed. The first was under the signature of one Ambika Prasad who described himself as President. By this written statement Plaintiffs' claim of ownership in the pond was denied, but Plaintiffs' case and claim as regards the trees were admitted. Subsequently, another written statement was filed under the signature of one Mathura Prasad whereunder the entire claim set forward by the Plaintiffs was denied. The Appellant Tilakdhari Singh filed a separate written statement in which he took up pleas similar to those taken on behalf of the Gaon Samaj in the latter written statement filed under the signature of Mathura Prasad. 3. The trial court recorded the finding that the pond was the property of the Maharaja of Banaras and after the abolition of Zamindari, the tank had vested in the State of Uttar Pradesh and the Gaon Samaj concerned was in possession thereof. As regards the trees also, the learned Munsif recorded the finding that the Plaintiffs were not the owners of the trees either. The suit was, therefore, dismissed by the learned Munsif. 4. On appeal by the Plaintiffs the appellate Judge agreed with the finding recorded by the trial court in respect of the pond and confirmed the decree of the trial court to that extent. The suit was, therefore, dismissed by the learned Munsif. 4. On appeal by the Plaintiffs the appellate Judge agreed with the finding recorded by the trial court in respect of the pond and confirmed the decree of the trial court to that extent. As regards the trees, the learned Judge came to the conclusion that they were scattered trees planted by Plaintiffs' ancestors and were very old and further, that plain tiffs' ancestors and thereafter, the Plaintiffs themselves had been in possession of the trees and were still in possession thereof. After recording his finding the learned Judge referred to Rule 26-A framed by the Government under the provisions contained in the UP Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act) and held that ownership in the trees still continued to vest in the Plaintiffs with the result that Plaintiffs were granted a decree declaring that the Plaintiffs were the owners of the trees in dispute. Neither the State of Uttar Pradesh nor the Gaon Samaj concerned filed any appeal, but the Appellant Tilakdhari Singh filed this second appeal. The Plaintiffs also filed a cross-objection in respect of the dismissal of their claim regarding the pond which is also before me. I have heard learned Counsel for the parties in support of this appeal and the cross-objection. 5. Learned Counsel for the Appellant urged that a Division Bench of this Court, in the case of Aman Singh and Ors. v. Shivadhari and Ors. 1966 AWR 637 has held that Rule 26-A of the Rules framed under the Act was ultra vires the powers of the Government and that, therefore, the decree of the court below was liable to be set aside and that of the trial court restored. It appears to me that the question which really arose for consideration by the learned Judges who decided the above case was as to whether Clause (2) of Rule 26-A was ultra vires or otherwise. At the same time it cannot be denied that the opinion recorded by the learned Judges is not confined to the second part of Rule 26-A but appears to cover the entire Rule 26-A with the result that I would proceed to consider the appeal before me on the footing that the entire Rule 26-A stands declared ultra vires by the decision of a Division Bench which is binding upon me. Learned counsel for the Plaintiff-Respondents has supported the decree under appeal on the contention that, quite irrespective of the provisions contained in Rule 26-A, ownership in the trees, which have been found to have been planted by Plaintiffs' ancestors and to have been all along in possession of the Plaintiffs, must be deemed to continue with the Plaintiffs notwithstanding the provisions contained in the Act. Learned counsel urged that there was no provision in the Act under which it could be claimed that Plaintiffs' rights in those trees had vested in the State of Uttar Pradesh or any body else. This contention seems to be correct. 6. For the purpose of finding out what has vested in the State of Uttar Pradesh, reference may be made to Section 6 of the Act. So far as rights in trees are concerned, provision is to be found in Sub-clause (i) of Clause (a) of Section 6 of the Act, the relevant portion whereof runs as follows: (a) All rights, title and interest of all the intermediaries-- (i) in every estate in such area including land (cultivable or barren), grove-land, forests whether within or outside village boundaries, trees (other than trees in village Abadi, holding or grove), fisheries, tanks, ponds and water channels...shall cease and be vested in the State of Uttar Pradesh free from all encumbrances; The above provision only lays down that the rights, title and interest of the intermediaries in trees other than trees in village Abadi, holding or grove shall cease and be vested in the State of Uttar Pradesh. In the present case we are not concerned with any rights claimed by an intermediary. The aforesaid provision does not, therefore, cover the present case and it cannot be said that, by virtue of the aforesaid provision, the trees in dispute must be deemed to have vested in the State of Uttar Pradesh. No other provision has been pointed out and except for the argument with which I shall deal in the next paragraph, learned Counsel for the Appellant concedes that he is unable to point to any other provision in the Act under which it could be said that rights in trees such as those which are in dispute in the present case have vested in the State of Uttar Pradesh. 7. 7. Learned Counsel for the Appellant referred to the provisions contained in Section 9 of the Act, the relevant portion whereof runs as follows: All wells, trees in Abadi and all buildings situate within the limits of an estate, belonging to or held by an intermediary, tenant or other person whether residing in the village or not, shall continue to belong to or be held by such intermediary, tenant or person, as the case may be.... There is no controversy that the trees in dispute are not situate in an Abadi area. Learned counsel for the Appellant, however, pointed out that the rights of intermediaries, tenants or other persons, in trees were preserved only in respect of such trees as were situate in an Abadi and urged that, that being so, it cannot be said that such rights as the Plaintiffs may have had in the trees in dispute continued to be preserved for their benefit u/s 9. I have no doubt that this contention of learned Counsel for the Appellant is correct and the Plaintiffs cannot claim, in respect of the trees in dispute that they continued to be owners of the trees in dispute by virtue of the provisions contained in Section 9 of the Act. It is nevertheless open to the Plaintiffs to contend that, quite irrespective of the provisions contained in Section 9 of the Act, such rights as the Plaintiffs may have had in the trees in dispute before the date of vesting must be deemed to continue with them except to the extent those it rights may have been taken away by the Act. Section 6 of the Act, as discussed earlier, does not purport to take away rights of the Plaintiffs in respect of the trees in dispute inasmuch as the Plaintiffs were not intermediaries on the date of vesting. The position which thus emerges is that, as regards the trees in dispute, such rights as the Plaintiffs had before (sic) of vesting, continued to remain (sic) the Plaintiffs. 8. Proceeding now to consider the question as to whether or not the Plaintiffs were owners of the trees in dispute on the date of vesting, reference may be made to certain provisions contained in the UP Tenancy Act. 9. 8. Proceeding now to consider the question as to whether or not the Plaintiffs were owners of the trees in dispute on the date of vesting, reference may be made to certain provisions contained in the UP Tenancy Act. 9. There is no controversy that Plaintiffs were tenants in the village concerned Section 68 of the UP Tenancy Act provided that before a tenant did anything by way of improvement or detriment in respect of any land which was not included in his holding, he was required to obtain the written consent of the landlord from the mortgagee or the under-proprietor, etc. Clause (2) of Section 80 of the UP Tenancy Act provided that if a tenant planted or purported to plant trees in such a way as to diminish the value of the land not included in his holding, the person whose consent was required under the provisions of Section 68 could apply to the Assistant Collector in charge of the Sub-Division for an order prohibiting the planting of trees of directing the tenant to remove the trees already planted thereon. The finding of the court below, which is binding upon me in second appeal, is that the trees in dispute were very old and had been planted by Plaintiff's ancestors and those ancestors and after them the Plaintiffs, had all along been in continuous possession over the trees till the date the suit was filed. A reference to the documents would disclose entry in respect of the trees as far back as 1291 Fasli, that is, almost 70 years before the suit giving rise to this appeal was instituted. It is obvious that Plaintiffs could not produce evidence to establish the circumstances in which trees in dispute came to be planted Plaintiffs ancestors. Suffice it to say here is complete absence of any evidence, or even suggestion, on Defendants' behalf that the land-holder ever objected to the planting of the trees, or took any proceedings against the Plaintiffs or their ancestors at any time in respect of those trees. Suffice it to say here is complete absence of any evidence, or even suggestion, on Defendants' behalf that the land-holder ever objected to the planting of the trees, or took any proceedings against the Plaintiffs or their ancestors at any time in respect of those trees. In these circumstances it must be held that the Plaintiffs were owners of the trees at, the time vesting took place under the UP Zamindari Abolition and Land Reforms Act and that being so, in view of the discussion recorded earlier in this judgment, it must be held that the Plaintiffs still continue to be the owners of the trees in dispute. For all these reasons this appeal must fail. 10. As regards the cross-objection filed by the Plaintiffs in respect of the dismissal of their claim in regard to the pond, the finding of the courts below is a finding of fact and it has not been shown how or in what manner, the aforesaid finding is vitiated by the error of law. The finding in respect of the pond is, therefore, binding upon me in second appeal. The cross-objection must also, therefore, fail. 11. The result is that this appeal as also the cross-objection, are both dismissed, but there shall be no order as to the costs either of the appeal or of the cross-objection.