Munshi Lal v. Nagar Mahapalika — 1979 DIGILAW 126 (ALL)

JUDGMENT H.N. Agarwal, Member. - This is a second appeal against the judgment and decree dated January 17, 1972 of the Additional Commissioner, Allahabad Division, dismissing the appel No. 81 of 1970-71 and confirming the order dater December 2, 1970 of the Assistant Collector 1st Class, Kanpur decreeing the suit No. 151 of 1969-70. 2. I have heard the learned counsels for the parties and have also gone through the record. 3. The Nagar Mahapalika, Kanpur had filed a suit seeking a declaration that plots No. 530/3, 531/3 and 539 situated in village Chakeri where the property of the Nagar Mahapalika and praying for the ejectment of the defendant-appellant Munshi Lal as a trespasser. Munshi lal contested the suit alleging that the land in question had been allotted to him by the Gram Sabha, Chakeri and he was Sirdar of the land on the basis of this patta. The court below have decreed the suit. Munshi Lal has now come up in second appeal. 4. Five grounds have been taken in this second appeal; Firstly, that the conclusion in para 9 of the Additional Commissioner's judgment is perverse; secondly, that a suit under Section 209 does not lie at the instance of the Nagar Mahapalika; thirdly, that the suit is time barred; fourthly, that the State Government has been accepting rent of the land since 1364 F and all the receipts fro the period since then are on the record of the case, and lastly that the suit is barred by the law of estoppel and acquiescence. 5. The second ground that a suit under Section 209 does not lie at the instance of the Nagar Mahapalika may be rejected outright as it has no force. A suit under Section 209 can be filed by the tenure holder where the land forms part of the holding or by the Gaon Samaj where the land does not form part of any holding. After the inclusion of the village Chakeri in the Nagar Mahapalika Limits, the functions of the Gaon samaj have vested in the Nagar Mahapalika, Kanpur. Other grounds, however, have force. The record shows that the appellant has claimed that a lease of the plots in question was granted to him by the Gram Samaj, Chakeri in the year 1953. After the inclusion of the village Chakeri in the Nagar Mahapalika Limits, the functions of the Gaon samaj have vested in the Nagar Mahapalika, Kanpur. Other grounds, however, have force. The record shows that the appellant has claimed that a lease of the plots in question was granted to him by the Gram Samaj, Chakeri in the year 1953. In fact, the trial court has framed issue No. 3 to the effect, whether the land was allotted to the defendant by the Land Management Committee in 1953 and the defendant by the sirdar of the land in suit. Unfortunately the courts below have decided this issue even without looking into the relevant records of the Land Management Committee. The Lekhpal who is the Secretary of the Land Management Committee, has stated that the record was with the CID on the other hand the representative of the CID..............who was summoned only produced the Khasra and the Khatauni of the village but did not produce the Gram Samaj records on the plea that they were not deposited in the CID Office. This is hardly satisfactory. It has been stated in the plaint that there has been an investigation into the alleged Farzi proceedings of the Land Management Committee by the crime bench of the CID. The learned counsel for the Nagar Mahapalika has also Stated in the court that the record of the Land Management Committee have been taken by the CID in connection with the investigation which has been going on for a number of years. The investigation might be over by now and the records might have been released. Even if the investigation is still in progress, it is essential in the interest of justice that for a correct adjudication of rights of the Nagar Mahapalika and the appellant in the land in dispute the records of the Land Management Committee should be made available to the trial court. If necessary, the trial court should write to the authorities of the CID to make the relevant record available. It is clear that the Nagar Mahapalika does not control the CID and therefore, cannot produce those records. The Plaintiff appellant also is unable to do so. It is thus clear that only the court is in a position to procure the records. 6. It is clear that the Nagar Mahapalika does not control the CID and therefore, cannot produce those records. The Plaintiff appellant also is unable to do so. It is thus clear that only the court is in a position to procure the records. 6. The ground that the defendant appellant has become Sirdar by estoppel and acquiescence as the State Government has been realising rent of the Land from 1364 F., can be considered only after a definite finding on the existence of a lease by the Land Management Committee, Chakeri in favour of the appellant and the legality or illegality of such a lease is available. Supposing after the relevant evidence has been considered the finding is that the appellant has become a Sirdar by virtue of a valid lease granted by the Land Management Committee in his favour, the position would be quite different. On the other hand, if the finding is that there is no such lease or that the Lease is illegal then we will be faced with an entirely different situation. I, therefore, do not propose to consider at this stage the ground whether Sirdari rights can accrue by estoppel and acquiescence without first having a proper finding on the Lease itself. 7. As a result of the above discussion, I hereby set aside the impugned order of the court below and remand the case to the trial court for a decision afresh in the matter. The trial court is directed to summon the original records of the Gram Sabha Land Management Committee, Chakeri and thereafter record a definite finding on the Lease, claimed by the appellant.