Avtar Singh v. Prescribed Authority — 1981 DIGILAW 635 (ALL)

ORDER M.P. Mehrotra, J. - This petition arises out of the proceedings under the U. P. Imposition of Ceiling on Land Holdings Act. 2. The facts, in brief are these. 3. The respondent 4 was treated as tenure-holder and the notice under S. 10(2) was issued to him in respect of some land which was shown as included in the holding of the said tenure-holder (respondent 4 Bale Singh Buksha). The petitioners put forward a claim that they were the tenure-holders as they had perfected their title to the land in their occupation under the Statute by prescription and, therefore, such land was not liable to be included in the holding of respondent 4 Bale Singh. This objection has not been accepted by the Prescribed Authority and by the appellate court and, therefore, the petitioners have come up in the instant writ petition and in support thereof, I have heard Sri Rajesh Tandon and in opposition, the learned Standing Counsel has made his submissions. 4. A finding of fact has been recorded that the petitioners came in possession in 1376 F and their claim, that they had been in possession for a much longer period since prior to 1376 F, has not been accepted by the authorities below. In such a finding of fact, based on appraisal of evidence, no interference is called for in this writ petition. However, the learned counsel for the petitioners contended that even on the said finding, in law, the petitioners had perfected their title before 8-6-1973 and in this connection, it was contended that admittedly the U. P. Zamindari Abolition and Land Reforms Act, 1950, came into force in this area on 1st July, 1969, i.e. with effect from 1377 F. Therefore, the petitioners had been in possession for a period of one year when the said U. P. Act No. 1 of 1951 came into force. The learned counsel contended that in such a situation. Cl. (1) of serial No. 30 of Appendix III to the U.P. Zamindari Abolition and Land Reforms Rules. 1952, was applicable. This clause on the relevant date laid down a period of three years for, filing of the suit and the period had to be, computed from the date of vestingl. Therefore, computing from the date of vesting, in this area i.e. from 1st July, 1969. the period of three years expired on 1st July, 1972. 1952, was applicable. This clause on the relevant date laid down a period of three years for, filing of the suit and the period had to be, computed from the date of vestingl. Therefore, computing from the date of vesting, in this area i.e. from 1st July, 1969. the period of three years expired on 1st July, 1972. Therefore, according to the learned counsel for the petitioners, the petitioners' rights stood matured on 1st July, 1972 in terms of S. 210, U. P. Act No. 1 of 1951. The learned counsel for the petitioners has placed reliance on a Division Bench pronouncement reported in Hanuman Rai v. Deputy Director of Consolidation, (1973 All L J 612). The Division Bench laid down as follows:- (at p.613). "For the appellant it was urged that under S. 209 a suit could be filed by a bhumidhar, sirdar or asami where a person takes or retains possession of land forming a part of the holding of bhumidhar, sirdar or asami. A holding could not in law be of a bhumidhar, sirdar or asami before the date of vesting. So a suit under S. 209 was not maintainable in relation to persons who were in possession of such land from before the date of vesting. We are unable to agree. Section 209 applies to a person taking as well as to a person retaining possession of land. A person who has taken possession before the date of vesting and continues in possession is a person who is retaining possession of land after the date of vesting. With effect from the date of vesting the land forms part of the holding of the bhumidhar, sirdar and asami and hence the suit for ejectment of such a person can be filed on the basis that he was retaining possession of land forming part of such holding. Entry No. 30 of Appendix III specifically provides a period of limitation of two years from the date of vesting for a suit for the ejectment of a person in possession of the land on the date of vesting. It cannot hence be said that a suit for the ejectment of the respondents was not under S. 209." 5. From he side of the State it was contended that in the instant case, Cl. (I) was not applicable but it was Cl. It cannot hence be said that a suit for the ejectment of the respondents was not under S. 209." 5. From he side of the State it was contended that in the instant case, Cl. (I) was not applicable but it was Cl. (III) which was applicable and that, therefore, the petitioners had not perfected their title till 8-6-1973. In my view, this contention is not correct. Clause (III) will be applicable only to those cases of trespass which occurred after the date of vesting and in those cases, where the tresspass occurred before the date of vesting, Clause (I), which specifically deals with such a situation, will be applicable. Admittedly, when the petitioners trespassed on the land in dispute, the same did not form part of the tenure-holder's holding as a Bhumidhar. The trespass occurred when the U.P. Act No. 1 of 1951 was not in force but U. P. Tenancy Act was in force. There were no Bhumidhars when the latter Act was in force. The Bhumidhars and Sirdars came into existence only after the promulgation of U. P. Act No. 1 of 1951. Therefore, it cannot be contended that when the petitioners in 1968 trespassed on the holding of respondent 4, the latter could be treated to be Bhumidhar or Sirdar. In this view of the matter, Cl. (III), in my view, will not be applicable and Cl. (1) will apply. The authorities below were wrong in thinking that cl. (III) of serial No. 30 of Appendix III to the U.P. Zamindari Abolition & Land Reforms Rules was applicable in the case of the petitioners. In my view, the petitioners had perfected their title to the land in dispute by prescription and, therefore, respondent 4 was not tenure-holder of such land which was wrongly included in his holding. 6. (III) of serial No. 30 of Appendix III to the U.P. Zamindari Abolition & Land Reforms Rules was applicable in the case of the petitioners. In my view, the petitioners had perfected their title to the land in dispute by prescription and, therefore, respondent 4 was not tenure-holder of such land which was wrongly included in his holding. 6. Accordingly, this petition is allowed and the order of the Prescribed Authority dated 30th June, 1979, and the judgment of the appellate court dated 15th November, 1979 (Annexure 7) are hereby quashed and it is directed that the plot No. 312 measuring 3 Bighas situated in village Santoshpur, Tahsil Bazpur, District Nainital and plot No. 8 measuring 27 Bighas situated in Village Sentoshpur, Tahsil Bazpur, District Nainital be treated as the holding of the petitioners and the same should not be included in the holding of respondent 4 and should not be declared as the surplus land of the said tenure- holder. In the circumstances, there will be no order as to costs.