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1980 DIGILAW 545 (ALL)

Mewa Lal v. Dal Singar

1980-05-05

DEOKI NANDAN

body1980
JUDGMENT : DEOKI NANDAN, J. 1. This is a Plaintiff's second appeal in a suit for demolition of a tin-shed shown by letters LMNT on the plaint map, a Nad and certain Khuntas as also a hut and another tin-shed and three Gumtis, and for possession over the land. 2. The trial court decreed the suit but the lower appellate court has dismissed it. Hence this second appeal. 3. The Plaintiff claims to have purchased the land, in suit for one Hira Pandey, who was indisputably the bhumidhar thereof. The purchase was made in the year 1957 by a sale-deed dated 21st August, 1957. The suit was filed on 28th March, 1966. The first finding arrived at by the lower appellate court is that on the statement of the Plaintiff Mewa Lal himself who appeared as PW 3, the cause of action as pleaded in the plaint was false and the Defendant entered into possession over the land in dispute in the year 1958 itself. The next finding arrived at by the lower appellate court is that the land in suit was not 'land' within the meaning of the U.P. Zamindari Abolition and Land Reforms Act and that it has been so far a very long time before the abolition of Zamindari and that, therefore, Hira Pandey was not the bhumidhar thereof and accordingly the Plaintiff also could not be the bhumidhar of the land in suit. The last finding arrived at by the lower appellate court is that the land in suit was in the possession of the Defendants for the last 16-17 years and has been part of their Sehan. This last finding was based on the statement of another witness of the Plaintiff, namely, Soman (PW 2). Mr. S.R. Misra, learned Counsel for the Appellant has attacked the finding of the lower appellate court that the land in suit was not 'land' within the meaning of the U.P. Zamindari Abolition and Land Reforms Act and that, therefore, the Plaintiff could not be the bhumidhar thereof, on the ground that the finding was without jurisdiction. Mr. S.R. Misra, learned Counsel for the Appellant has attacked the finding of the lower appellate court that the land in suit was not 'land' within the meaning of the U.P. Zamindari Abolition and Land Reforms Act and that, therefore, the Plaintiff could not be the bhumidhar thereof, on the ground that the finding was without jurisdiction. Section 331-A of the U.P. Zamindari Abolition and Land Reforms Act provides that if in any suit relating to land held by a bhumidhar instituted in any court, the question arises or is raised whether the land in question is not used for purposes connected with agriculture etc., and a declaration has not been made in respect thereof u/s 143 or 144, the court shall frame an issue on the question and send the record to the Assistant Collector Incharge of the Sub-Division for the decision of that issue only and that the Assistant Collector concerned shall proceed to decide the issue in the manner laid down for making a declaration u/s 143 or 144, as the case may be, and return the record back with the finding thereon to the court which referred the issue. 4. There is substance in this contention raised by the learned Counsel inasmuch as 'land' within the meaning of the U.P. Zamindari Abolition and Land Reforms Act does not mean only that land which is actually used for agricultural purposes.' It means "land held or occupied for purposes connected with agriculture etc." The land may have originally been held or occupied for agricultural purposes but the tenant or the tenure-holder may later on cease to use such land for agricultural purposes. A bhumidhar is expressly authorised by the U.P. Zamindari Abolition and Land Reforms Act to use the land held by him for any purpose whatsoever, but in case he uses it for a purpose other than agricultural, a declaration may be made u/s 143 of the U.P. Zamindari Abolition and Land Reforms Act that the land has ceased to be used for agricultural purposes and that, therefore, the provisions of the U.P. Zamindari Abolition and Land Reforms Act have ceased to apply to it. Such a declaration is for the benefit of the bhumidhar concerned and if he obtains such a declaration, the restrictions prescribed by the U.P. Zamindari Abolition and Land Reforms Act on lease or letting of the land disappear and the succession to the land is governed not by the provisions of the U.P. Zamindari Abolition and Land Reforms Act but by the Personal Law of Inheritance applicable to the bhumidhar concerned. But so long as a declaration of this kind is not made the land, and the Bhumidhar thereof, continue to be governed by the provisions of the U.P. Zamindari Abolition and Land Reforms Act, because it was originally taken and held or occupied for agricultural purposes. Section 331-A of the U.P. Zamindari Abolition and Land Reforms Act was intended to over-come this difficulty and in case the question whether the land in dispute in a suit has ceased to be land within the meaning of the U.P. Zamindari Abolition and Land Reforms Act is raised in a suit, a reference is required to be made to the Assistant Collector Incharge of the Sub-Division, who is the Authority competent under the provisions of that Act to grant a declaration u/s 143. Once the Assistant Collector returns the finding that the land has ceased to be land, that finding takes the place of a declaration u/s 143. In the present case no such reference was made. The land in suit was indisputably recorded as the bhumidnari of Hira Pandey. It must have, therefore, been, land at the point of time when Hira Pandey's tenancy began and, therefore, the finding of the lower appellate court that it was not land is without jurisdiction because only the Assistant Collector Incharge of the Sub-Division was competent to record a finding whether the land had ceased to be land within the meaning of the U.P. Zamindari Abolition and Land Reforms Act on a reference being made to him u/s 331-A of that Act. As already noticed above, the lower appellate court also found that the cause of action pleaded by the Plaintiff was fictitious and that the land in suit had been in possession of the Defendants for the last 16-17 years at the Sehan of their house. As already noticed above, the lower appellate court also found that the cause of action pleaded by the Plaintiff was fictitious and that the land in suit had been in possession of the Defendants for the last 16-17 years at the Sehan of their house. That is a finding of fact and having examined the evidence and the material on which it is based, I am unable to say that it suffers from any error of law. It is based on an appraisal of the evidence on the record. That being so, this appeal must fail. 5. The appeal is accordingly dismissed with costs.