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1977 DIGILAW 79 (ALL)

Roop Ram v. Raja Ram

1977-02-07

M.P.PANDEY

body1977
JUDGMENT M.P. Pandey, Member. - This is a second appeal from the order dated March 18, 1971 passed by Sri G.S. Seth, Additional Commissioner, Allahabad in appeal No. 326 of 1968, Kanpur. 2. I have heard learned counsels of both the parties. 3. The facts of the case in brief are that one Ayodhya Prasad executed a sale deed of the land in dispute on January 12, 1965 in favour of Raja Ram. He had prior to this executed an agreement on September 21, 1959 to sell ?rd share belonging to him in a Khata to Rup Ram and Sudarshan Singh. There were consolidation operations in between and Ayodhya Prasad got a new Chak No. 32 in place of his share in the old plots. When the new Chak was formed in the name of Ayodhya Prasad he obtained a Bhumidhari certificate and sold the Chak to Raja Ram as has been mentioned above on January 12, 1965. Raja Ram has filed the present suit for a declaration that he is Bhumidhar of the land in dispute on the basis of a sale deed with which Rup Ram and Sudarshan Singh have nothing to do. Rup Ram and Sudarshan Singh are defendants and Rup Ram is the own brother of Raja Ram plaintiff. They say that as soon as the agreement to sell was executed on September 21, 1959 they occupied the plots in the share of Ayodhya Prasad and after the consolidation they transferred their possession to the new Chak given to Ayodhya Pd. and in this way they are in possession form September 21, 1959 when the agreement to sell was executed. 4. There was a proceeding under Section 145 Cr.P.C. between the parties and in that proceeding it was held that Rup Ram and Sudarshan Singh defendants were in possession. Plaintiff says that because of this finding he has been compelled to file the present suit for a declaration of his rights and for ejectment of the defendants. 5. The trial court has held that the possession of the defendants on the new Chak will be deemed to have started from the date when the denotification was made under the Consolidation Act. The denatification took place in 1965, i.e., in 1372F. The present suit was filed in 1374F and, therefore, according to the trial court the suit is within time and the defendants are nothing but trespassers. The denatification took place in 1965, i.e., in 1372F. The present suit was filed in 1374F and, therefore, according to the trial court the suit is within time and the defendants are nothing but trespassers. The trial court has discarded the theory of specific performance because of the change in the old numbers on account of consolidation operations. 6. An appeal against the above order was filed and the Addl. Commissioner has also come to the same conclusion. He has dismissed the appeal and, therefore, this second appeal. 7. It has been urged on behalf of defendant-appellants that they should be deemed to have been in possession of the land in dispute from September 21, 1959, i.e., 1367F because they were in possession of the old plots and that possession should be considered to be continuous in respect of the new plot given to Ayodhya Pd. in Chak No. 32 after consolidation operations. In this connection Section 30 of the Consolidation of Holdings Act has also been cited and it has been argued that the tenure-holder entering into possession over the new Chak will have the same rights, title, interest and liabilities as he had in the original holdings. It has been argued that since the defendant-appellants were in possession of the land belonging to Ayodhya Pd. so when that land was given to somebody else and in its place another land was given to him in the new Chak, the possession of the defendants would be deemed to have been transferred to the new Chak. I am unable to agree with the argument. After the formation of Chaks, tenure-holders are deemed to have taken possession of their respective Chaks. They continued to enjoy the same rights, title, interest and liabilities which they had in the former land. Here the meaning of the word 'liability' is with regard to charge and not with regard to adverse possession. Adverse possession is taken of as soon as the denotification takes place and tenure-holders start taking possession of the new Chaks. The principle is that possession of any party must be deemed to have washed off as soon as the denotification takes place. In a case like this, the adverse possession will have to be counted from the date of denotification of consolidation. This denotification took place in 1965. The principle is that possession of any party must be deemed to have washed off as soon as the denotification takes place. In a case like this, the adverse possession will have to be counted from the date of denotification of consolidation. This denotification took place in 1965. i.e., in 1372F and as the suit was filed in 1374F, the suit is within time. 8. As the plaintiff has become Bhumidhar on the basis of the sale deed and as the defendant-appellants have not been able to enforce the agreement to sell, and as their possession after the denotification is that of trespassers, they have been rightly ejected from the land in dispute. 9. In view of the above, the appeal is dismissed.