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1979 DIGILAW 1341 (ALL)

Jakia v. Gaon Sabha

1979-12-13

M.SAIDULLAH

body1979
JUDGMENT M. Saidullah, Member. - This is a plaintiff's second appeal against the judgment and decree of the Additional Commissioner, Varanasi dated 21-8-1979 whereby he dismissed the appeal and upheld the judgment and decree passed by S.D.O. Chandauli, on 29-11-1978 in a suit under Section 229-B of the U.P. Z.A. and L.R. Act. 2. I have heard the learned counsel for the appellant at considerable length and have gone through the available records. After hearing the learned counsel for the appellant, an application was moved that the record of the trial court may be summoned at the expense of the appellant for verifying the proof of possession of the appellant over the land in suit. I find from a perusal of the judgment passed by the trial court as well as by the lower appellate court that the possession of the appellant over the land in suit was subsequent to his filing the suit under Section 229-B of the U.P.Z.A and L.R. Act. Therefore, I do not see any necessity of calling for the recorded of this case. 3. Briefly stated, the facts of the case are that the appellant Mohd. Jakia sought declaration of sirdari rights over the land in suit on the ground that he had been in continuous possession over the said land even since before the abolition of Zamindari. The suit was contested by the Gaon Sabha on the ground that plot no. 187 was Pokhari on the spot and that it remains under water and was used for public utility purpose. It was also contended that it was Pokhari even at the time of enactment of Act I of 1951. While the other plot no. 119 was Banjar and had been as such ever since even before the abolition of Zamindari and that the plots had vested in the Gaon Sabha and were ear-marked for public utility purposes for plaintiff had never been in possession over the said land and had no right and could not secure any rights over the land of public utility. The Pradhan of the Gaon Sabha had obviously admitted the claim of the plaintiff but permission was refused to him for filing the admission of the Pradhan. The Pradhan of the Gaon Sabha had obviously admitted the claim of the plaintiff but permission was refused to him for filing the admission of the Pradhan. The State of Utter Pradesh also contested the suit on the ground that the land was Pokhari and Banjar on the spot and had vested in the Gaon Sabha and no rights could accrue to the plaintiff. The trial court entered into the evidence of the parties after framing as many as 5 issues as dismissed the suit of the plaintiff. In dismissing the suit reliance was placed on the extracts of settlement entries of Khatauni and Khasra were duly proved in evidence by the village Lekhpal and it was held that the land was actually a Pokhari and Banjar as shown in the village records. The name of the plaintiff was never recorded in the village papers and appear only after he had secured a fraudulent decree from the court of the S.D.O. on 26-8-1967. From 1290F into the abolition to 1371F the name of the plaintiff never occurred in the village records. It was recorded for the first time in 1372F on the strength of the fraudulent decree obtained by him referred to above. Therefore, on the face of such long standing entries oral evidence of the plaintiff is neither cogent nor adequate to rebut the presumption of correctness. Sanctity is attached to entries in village record of such as long duration specially when there have been settlement and changes in the revenue law of the State and fresh rights have been created through legislation. These entries, therefore, have to be accepted and their sanctity cannot be taken away by the oral evidence of the plaintiff. One of the witnesses of the plaintiff had accepted in his cross-examination that the entries recorded by the Lekhpal was usually correct and that the land used to remain under the water while the other witnesses admitted that the land used to remain under knee deep water. Learned counsel for the appellant has argued that since it is not shown that Singhara was grown in the said Pokhari it will not vest in the said Pokhari it will not vest in the Gaon Sabha and it will not be Gaon Sabha property. This argument has also no force. Learned counsel for the appellant has argued that since it is not shown that Singhara was grown in the said Pokhari it will not vest in the said Pokhari it will not vest in the Gaon Sabha and it will not be Gaon Sabha property. This argument has also no force. Section 117 of the U.P.Z.A and L.R. Act (sub-clause (1) and (6)) clearly mentions that Banjar, tanks and ponds etc. shall vest in the Gaon Sabha and there is no mention that only such tank or pond as is used for the purposes of growing Singhara will vest in the Gaon Sabha and other tanks and ponds will not vest in the Gaon Sabha. Thus it will mean that no tank or pond which is used for purpose of irrigation or for any other purpose except for growing singhara will be the Gaon Sabha property and it could be taken over by any other person. The law is clear on this point that the site of tanks and ponds will vest in the Gaon Sabha and the fact that the land is covered by knee-deep water shows that the land is in the nature of a Pokhari or tank or pond. There is no exception to the vesting of land covered by water which is used for growing singhara and there is no exclusion of the Gaon Sabha from vesting of tank or pond in it. It can also not be believed that this land is not connected with agriculture or that its nature has changed to the extent that neither irrigation nor purposes connected with agricultural can be utilised from this land. The mere existence of certain trees over the land in suit does not change the position at all, because self grown trees are found on Banjar land in every village and the plaintiff cannot lay claim to them because trees stand on the land in suit and therefore the land belongs to him. There is not evidence that the plaintiff had ever been in possession over the land except after the fraudulent decree referred to above. The proceedings under Section 145 Cr. P.C. were taken subsequent to the institution of the suit by the plaintiff. There is not evidence that the plaintiff had ever been in possession over the land except after the fraudulent decree referred to above. The proceedings under Section 145 Cr. P.C. were taken subsequent to the institution of the suit by the plaintiff. He had instituted the suit on 26-3-1974 and ex parte decree was passed on 20-8-1964 and thereafter during the pendency of the setting aside of ex-parte decree the plaintiff had started proceedings under Section 145 Cr.P.C. and, therefore, the question of possession does not help the plaintiff in any manner. The learned Additional Commissioner has relied on the ruling cited in 1978 R.D. 273 and the facts of the present case seem to be covered by the said Ruling. I also agree with the finding of the trial court that there was not need for any spot inspection because there was overwhelming evidence in respect of the fact that that land had vested in the Gaon Sabha and that the plaintiff had never remained in possession except on the strength of the fraudulent decree referred to above. 4. I am, therefore, satisfied that this is not a fit case for admission and dismiss the same.