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1978 DIGILAW 200 (ALL)

Ram Adhar v. Yusuf Ansari

1978-02-15

G.S.SIAL

body1978
JUDGMENT G.S. Sial, M. - Under my order dated January 17, 1978 this memo of second appeal has been allowed to be converted into one for revision as such I proceed to decide this as a revision, I have heard the learned counsel for both the parties as such. 2. The learned counsel for the applicant has taken a preliminary objection that the opposite party has filed an application regarding a decision of certain documents for the first time in the second appellate stage and that these documents cannot be taken into evidence in revisional court for the first time as it was not covered by the provisions of Order XL, Rule 27, Civil Procedure Code. 3. In reply, the learned counsel for the opposite party submitted that he wanted to produce C.H. Form 45 wherein the land in suit has been shown as Sirdari of Mohd. Yusuf of Zamin 2. The learned counsel claimed that this piece of evidence is necessary for the proper and just decision of the case. An objection was filed on December 5, 1977 saying that the appellant cannot be allowed to make good the lacuna at the second appellate stage. The learned counsel submitted that there was no such plea in the lower court by the revisionist. There was no failure to submit it in the lower appellate court as the document was not in existence at that time. 4. I have heard the learned counsel on this point, and as of the opinion that since the document was not in existence when the appellate court sat in the judgment it cannot be claimed that an attempt is being made to all the lacunae is this case. The objection is, therefore, overruled, and the document is taken to form part of the record. 5. An application was made by the applicant-revisionists that they were Harijans and as such were entitled to a preferential treatment under section 198(i) of the U.P.Z.A. and L.R. Act. The allotment made by the Gaon Sabha in favour of the opposite party No. 1 is wholly illegal, against the provisions of law and there is a breach of Rules 173 and 174 of the Gaon Samaj Manual which provides for Munadi etc. which provisions have also not been complied with. The allotment made by the Gaon Sabha in favour of the opposite party No. 1 is wholly illegal, against the provisions of law and there is a breach of Rules 173 and 174 of the Gaon Samaj Manual which provides for Munadi etc. which provisions have also not been complied with. Sajjad Ali, uncle of the allottee opposite party was a member of the Land Management Committee and as no prior permission by the S.D.O. was taken, the proceedings of the allotment are vitiated. The learned counsel also submitted that the plot in dispute had been reserved for Abadi during consolidation proceedings and that the land in question was the Sahan of the applicants. The learned counsel referred to the statement of Rajbali, P.W. 3, a member of the Land Management Committee, and Bishram that the allotment was made behind their back and that there was not meeting to which they had been called. The learned counsel also submitted that the finding recorded by the lower courts is perverse and suffers from material irregularity. The learned counsel in support of his arguments relied upon 1975 R.D. 43 at 44 wherein it has been held that for execution of a Patta in favour of relation of the Gaon Pradhan the permission of the Collector is necessary and 1976 R.D. 305 wherein it has been held that any person applicant for allotment will be considered to be an aggrieved person, and also 1974 R.D. 334, which says that non-compliance of Rule 173 or 174 will vitiate the allotment proceedings. 6. The learned counsel for the opposite party, in reply, submitted that the judgment of the first appellate court clearly makes out that the land had been reserved either for Abadi or for collection of bones (Harawar). The learned counsel further submitted that Sajjad Ali, a member of the L.M.C. was living separately from the allottee and this assertion of the opposite party was accepted by the trial court, which has also held that the allottee, Yusuf, was a resident of the circle and was a landless person entitled to allotment of land. The learned counsel argued that these are findings of fact and cannot be disturbed at this revisional stage. 7. I have gone through the original application and the judgments of the courts below. I have also examined the records of the case. The learned counsel argued that these are findings of fact and cannot be disturbed at this revisional stage. 7. I have gone through the original application and the judgments of the courts below. I have also examined the records of the case. There is no mention in the application that the objector was also an applicant for the allotment of land and that he had a preferential claim. This point has been taken in the course of revision. Also, there is no mention in the application that the land in dispute was the Sahan of the objector. In C.H. Form 23 (Bhag 3) plot No. 14 has an area of 12 biswas 16 Dhurs, and of which only 2 Biswas of land have been reserved for collection of bones (Harawar). Out of the remaining area of 10 Biswas and 16 Dhurs, only 6 Biswas of land have been allotted to the opposite party. In his statement the village Lekhpal has stated that plot No. 14 has been carved out during consolidation proceedings out of few old and new numbers. The trial court has held that the land in question i.e., the portion allotted to Yusuf is neither Abadi nor Harawar and nor has it been left for public purpose. It was a Parti land, which has been allotted to the opposite party after Due Munadi, and that the allotment was in accordance with the rules. The members of the Land Management Committee were duty informed of the meeting in which the allotment of the land in question was resolved. The two members being in inimical terms were not attending the meeting of the L.M.C. but otherwise the meeting was conducted according to the rules. It also transpires from the record that the Tahsildar, Gyanpur, had reported the matter of allotment of land by the Chairman of the Land Management Committee to the S.D.O. which the S.D.O. permitted. 8. As regards the question of preferential treatment in favour of Harijans the allotment in question was made on July 25, 1967. The amendment in question giving preferential claim to Harijans came into force on September 28, 1970. This amendment cannot have retrospective effect. The allotment had been made in pursuance of the then existing provisions of law. 8. As regards the question of preferential treatment in favour of Harijans the allotment in question was made on July 25, 1967. The amendment in question giving preferential claim to Harijans came into force on September 28, 1970. This amendment cannot have retrospective effect. The allotment had been made in pursuance of the then existing provisions of law. If the argument of the learned counsel for the revisionist is allowed to stand, it would mean the cancellation of allotments made earlier, which cannot be the intention of the law. Moreover, this point was not taken up either in the trial court or before the Additional Commissioner probably with the knowledge that the allotment could not be challenged on this gourd. 9. I do find any illegality or irregularity in the order in question, as such no revisional interference is called for. In the result, the revision petition stands dismissed.