Suresh Chand v. State — 1983 DIGILAW 647 (ALL)

JUDGMENT Kaushal Kishore, Member. - This is a plaintiff's second appeal against the judgment and decree dated April 22, 1983 by the learned Additional Commissioner, Kumaon Division, Nainital, reversing the judgment and decree dated February 28, 1979 by the learned trial court in a case under Section 229-B of U.P.Z. and L.R. Act. 2. I have heard the learned counsel for the parties and also perused the records. 3. The plaintiff's case was that he was that he was continuing in possession of the plot number 9/2 and 85/1 total area 33.06 Bighas since 1379F while in the village papers Sewal Singh was recorded as tenure-holder and after his death, the defendant numbers 1 to 5 sons of Sewal Singh were recorded tenure-holders and since he was not ejected from the land, right of the tenure-holders had expired and from 1377F with the coming into force, of the U.P.Z.A. and L.R. Act, the plaintiff became Sridar of the land in in suit but was wrongly recorded in class 9. The case was contested by the State and it was claimed that the plaintiff has matured no rights nor could he require any rights against the defendants 1 to 5 who were recorded tenure-holders. At the later stage, the defendants 1 to 5 also contested the case and the learned trial court after hearing decreed the suit, holding the plaintiff to be in possession since 1373F and that thereby the plaintiff acquired Adhivasi rights and thereafter Sirdari, and Bhumidhari rights of the land in suit. The learned trial court also found that Sewal Singh was not a disabled person. The first appeal this decree was filed by the State on the ground that the entries in the land records were not in accordance with rules and the plaintiff did not require any rights because he was not in adverse possession beyond limitation. The defendants 1 to 5 also filed cross-objection which was admitted by the learned Additional Commissioner. In this cross-objection, it was mainly stated that the plaintiff has not been in adverse possession and that the plaintiff had not been in adverse possession and that these five respondents belonged to BUXA scheduled tribe. The defendants 1 to 5 also filed cross-objection which was admitted by the learned Additional Commissioner. In this cross-objection, it was mainly stated that the plaintiff has not been in adverse possession and that the plaintiff had not been in adverse possession and that these five respondents belonged to BUXA scheduled tribe. The learned Additional Commissioner after discussing in detail the entire of possession in favour of the plaintiff, gave a finding the the entries of possession were not accordance with the provisions of the Land Records Manual and, therefore, these could not be considered of any value. The learned firs appellate courts further found that no rights were acquired by the plaintiff in the basis of continued adverse possession as such possession was not also proved by oral evidence, and that even though the Kumaon Tenancy Rules were applicable before vesting on July 1, 1969, there was no question of Adhivasi rights obey the plaintiff no any acquisition of Sirdari Bhumidhair right thereafter and allowed the appel of the state and dismissed the suit of the plaintiff. 4. The learned counsel for the appellant has argued that the State of U.P. had no right first appeal as no decree was passed against the State and State could not have any interest through private parties defendants 1 to 5, that neither Section 331 (3) of the U.P.Z.A.and L.R. Act nor Section 96 C.P.C. says anything about rights of appeal and the Hon'ble High Court in the ruling reported in 1975 A.W.C. 632 have interpreted that a fundamental requirement for filing the appeal is that the person filing appeal must be aggrieved. He argued that since the State was in no way aggrieved, the State had no right to appeal and since the appeal was not maintainable, the cross-objection under Order XLI Rule 22. C.P.C. became subsequently inadmissible. In support, he cited a ruling recorded in AIR 1977 Himachal Pradesh 82. On the scope of cross-objection, the learned counsel argued that under Order XLI Rule 22(1) C.P.C., the provisions that any respondent may not only support the decree but may also state that the finding against him in the courts below in respect of any issue ought to have been in his favour, and may also take any cross-objection...... On the scope of cross-objection, the learned counsel argued that under Order XLI Rule 22(1) C.P.C., the provisions that any respondent may not only support the decree but may also state that the finding against him in the courts below in respect of any issue ought to have been in his favour, and may also take any cross-objection...... and so unless the respondent has some part in the decree in his favour, there was no scope for his support for the same and, therefore, no cross-objections could arise. In support, of this contention, rulings reported in AIR 1964 S.C. 1425 and AIR 1978 M.P. 20 were cited. He further argued that since the appeal itself was not maintainable, the cross-objection could not be considered as an ordinary appeal and there was no application for consolidation of delay under Section 6 of the Limitation Act through the cross-objection as as appeal itself was time-barred and that even there was no prayer for transposition as appeals by the respondents numbers 2 to 6. The learned counsel further argued that the entries showing possession from 1373F. were wrongly discarded as PA-10 was not because the provision did not apply to the period and the area in question and so the approach of the learned first appellate court being in consistent with the provisions of law, its findings could not be upheld, that the entry in 1374F, as occupant bestowed on the plaintiff the right of Adhivasi under amended Section 230-A which provided under sub-clause(b) that a person who was recorded as occupant of any land in the khasra of khatauni of 1374F. shall, unless he was become an Asami, to be called Adhivasi of the land and shall subject to the provision of the Act be entitled to take and retain possession thereof, the that under the emended Section 133, the plaintiff became Sirdar by virtue of being covered by sub-clause (c), that before vesting in the area in question,. Kumaon Tenancy Rules were applicable and under these rules, the plaintiff's right were perfected, that was no case of dispossession of the plaintiff in 1375F. as admitted by the D.W.-1 himself. 5. Kumaon Tenancy Rules were applicable and under these rules, the plaintiff's right were perfected, that was no case of dispossession of the plaintiff in 1375F. as admitted by the D.W.-1 himself. 5. The learned counsel for the State has argued that in the non-Z.A. area also P.A.-10 to be issued according to para 84-A of the Land Records Manual and so the conclusion of the first appellate court that the entries for want of compliance of this requirement could not be relied upon was correct. He further argued that when the plaintiff and some defendants colluded, the State had a right to appeal for in such circumstances, the land goes back to the State. The learned counsel for the respondents 2 to 6 argued that they did not file the appeal before the first appellate court on account or wrong legal opinion and ignorance and in the belief that the State would watch their interest, that the entries were not admissible as not in accordance with rules, that under the amended Section 210 and 211 of the U.P.Z.A. and L.R. Act, the interest of the schedules tribes is safe-guarded and that the cross-objection remains valid and is maintainable. The learned counsels for the appellant ash further argued that the provision regarding F.A.-10 was deleted with effect from 1373F. or from July 1, 1965, the para being deleted. 6. It appears that the learned Additional Commissioner has wrongly insisted on the compliance of para 89-A of the Land Records Manual regarding issue of P.A. 10 slips because the relevant para in the Z.A. area for issue of PA-10 slips was A-80, applicable till it was amended by the notification number 4674/I-H-1372-H-60 dated July 3, 19565 and also the provision in para A-102-C for Kabiz entries by the Lekhpal was deleted and the provision was made for reporting of Lekhpal to the Supervisor Kanungo in form PA-24 on which the entry of Kabiz would be made by the Supervisor Kanungo. In non-Z.A. area, as in the instant case, since the Zamindari was abolished with effect from July 1, 1969 (1373F), the provision under para 89-A applied as also argued by the learned DGC(R) but the sips issued are not PA-10 but P-10 which were noted by the Lekhpal as P.T. in the remarks column of the khasra. In non-Z.A. area, as in the instant case, since the Zamindari was abolished with effect from July 1, 1969 (1373F), the provision under para 89-A applied as also argued by the learned DGC(R) but the sips issued are not PA-10 but P-10 which were noted by the Lekhpal as P.T. in the remarks column of the khasra. Therefore, the entries in the Khasra 1373F in red ink and in a note below PT-3 and PT-9, one of the PT entries also initialled by the Lekhpal, clearly indicated that in the list in form PT-10 two plots in question were entered at serial numbers 3 and 9. The learned Additional Commissioner due to ignorance abut PT entries would not appreciate their significance and wrongly discarded the possession entries. The entry repeated in blue ink in 1374F. was, therefore, in perfect order and established possession of the plaintiff at least in 1373F. and 1374F. Further, in view of the provisions contained in the amended Section 230-A and Section 131, the occupant became Adhivasi and then Sirdar in due course in accordance with law. The learned counsel for the respondents has not been able to show anything contrary to the above provisions. Therefore, the first appellate court had no basis to reverse the decree passed by the learned trial court on merits. 7. The first appeal had been field only by the State and by none of the contesting defendants who have only filed cross-objection. The question is whether the State could be deemed an aggrieved party, whether the first appeal was maintainable and whether even this second appeal is maintainable. As a matte of fact, the State only pleaded that the defendants 1 to 5 had tenancy right and it was never pleaded the there was any collusion between the plaintiff and the defendants 1 to 5. This new argument of collusion taken in the second appeal cannot be entertained being too belated and against original stand of the State. The State had only prayed for dismissal of the suit which was on its stand in the first appeal as well as in the suit. It it is a farfetched idea that the State has certain policies and if by a certain decision the general policies receive a set back. the State has a right to feel aggrieved. The State had only prayed for dismissal of the suit which was on its stand in the first appeal as well as in the suit. It it is a farfetched idea that the State has certain policies and if by a certain decision the general policies receive a set back. the State has a right to feel aggrieved. There must be immediate, explicit and definite lose of interest of the State if it is being included in definite of an aggrieve party. Since the State has pleaded tenancy for the defendant numbers 1 to 5, the grievance could be only to those defendants numbers 1 to 5, and not to State by a decree in favour of the plaintiff. The State, therefore, could not be an aggrieved person. In the ruling reported in 1975 A.W.C. 622, it was held by the Hon'ble High Court (D.B.) that an aggrieved party is one who is injuriously affected by the judgment or whose rights are directly affected by any portion of the same. In the ruling reported in AIR 1977 H.C. 82, if was held that in case an appeal is incompetent the cross-objection must be rejected as not maintainable. 8. The learned counsel for the respondent has cited ruling reported in 1971 A.C.J. 1, 1980 A.C.J. 345, AIR 1971 S.C. 374 and AIR 1974 S.C. 194 in support of this contention that the State is competent to file an appeal as in aggrieved person in the circumstances of the present case. In 1978 A.C.J. 1, it was held that the substance of the decree, pleadings and entire judgment or circumstances of the case and not only the precise language of the decree is to be considered to determine the question as to who is he aggrieved person. In 1980 A.C.J. 345, it was held by the Full Bench of the Hon'ble High Court that when the proceedings under the Land Acquisition Act started for the benefit of he co-operative society, by leave of the court an appeal will lie in the High Court at the instance of the co-operative society against he judgment and decree passed in the reference by the District Judge, even though the co-operative society may not be a party to the original proceedings. This was with reference to the fact that the compensation had to be paid by the co-operative society prejudcially affected by the decree. This was with reference to the fact that the compensation had to be paid by the co-operative society prejudcially affected by the decree. These rulings do not help the State in the present case. In AIR 1971 S.C. 374 , it was held as a well settled principle that a person even not being a party to the suit may prefer an appel with the leave of the appellate court if he would be prejudicially S.C. 984, the affect of a consent order amounting to collusive decision to defeat a public policy is detailed with. I find neither the State is prejudicially affected by the decree nor is there any consent order which would defeat a public policy. According to the fact of the case, the defendants 1 to 5 did contest the suit but lost it. Therefore, the decision could not be called a consent order or a collusive decision. The other two rulings, therefore, do no apply to the facts of this case. The learned counsel for the respondent has failed to show that the State was really and definitely aggrieved by the decree of the learned trail court. 9. The argument of the learned counsel for the respondents 2 to 6 that in the amended Section 210/211 the interest of the scheduled tribes (BUXA) is safeguarded is also misconceived because this amendment was effected from June 3, 1981 onwards and person maturing their right much earlier cannot be affected by this subsequent amendment. 10. The provisions under Order XLI Rule 22 sub-clause (4) C.P.C. were argued in detail for showing that even it the appeal could not be allowed. The cross-objection could still be considered and had to be decided. AIR 1938 Mad. 329 , AIR 1961 Punj 287 and AIR 1975 Punj. 318 were cited in this connection but a plain reading of rule 22(4) would show that these rulings cannot be made applicable for the simple reason that these related to cases in which the appeals were withdrawn or only one out of the two appeals was not maintainable while in the present case the sole appeal is not maintainable at all. In case at least one appeal out of several would be maintainable. it would give the cross-objector a right of decision even in the event of the appeals not decided for any event of the appeals not decided for any reason. In case at least one appeal out of several would be maintainable. it would give the cross-objector a right of decision even in the event of the appeals not decided for any event of the appeals not decided for any reason. But, here, the sole appeal is neither withdrawn nor dismissed in cross-objection must be held not maintainable. 11. I further find much substance in the argument of the learned counsel for the appellant that a cross-objection lies only when the cross-objector at least directly support the decree but contests some other part. The significance of this is that there must be some variance between the appellant and cross-objector also. They cannot have the same interest and still one of them neglect to file an appeal and take opportunity only as the cross-objector after other Appeals. In AIR 1978 M.P. 20 , it was held that a cross-objection with no relief sought against the appellant who had no interest in the cross-objection could not be directed against the other respondent in such case and the cross-objection would not be maintainable. It is seen that the two contradictory stands has been taken by the State in this appeal in arguments, the first is that the defendant 1 to 5 were tenant and the second is that the defendant 1 to 5 concluded with the plaintiff, both should loose their rights and the land should return to the State. It is, therefore, not possible to assess the correct position of the State whether it is interest in the respondents 2 to 6 in this second appeal or is opposed to them. In the circumstances, the original stand taken by the State in the suit must be taken as correct and the mere argument cannot lend the State a new plea of a different nature. As discussed above, the prescribed scope of a cross-objection cannot cover the subject to cross-objection in this appeal. Therefore, it must be held that the first appeal was incompetent, the cross-objection by respondents 2,3 and 6 was not maintainable and also was not filed within the scope permissible under Order XLI Rule 22 C.P.C. 12. As discussed above, the prescribed scope of a cross-objection cannot cover the subject to cross-objection in this appeal. Therefore, it must be held that the first appeal was incompetent, the cross-objection by respondents 2,3 and 6 was not maintainable and also was not filed within the scope permissible under Order XLI Rule 22 C.P.C. 12. In view of the above, the first appeal and cross-objection are found to have been wrongly allowed and, in the result, this second appeal must be allowed, the judgment and decree date April 22, 1983 by the learned first appellate court deserves to beset aside. Accordingly, this appeal is allowed with costs, the judgment and decree by the learned Additional Commissioner date April 22, 1983 is hereby set side and the judgment and decree dated February 23, 1976 by the learned trial court is hereby confirmed.