Madan Singh v. Lala Shiv Chand — 1983 DIGILAW 925 (ALL)

JUDGMENT B.D. Agrawal, J. - In this second appeal of the defendant No. 4 directed against the judgment and decree of the Additional District Judge, Dehradun dated Sept 25, 1975, the dispute lies within a narrow compass. One Pyarey Lal was the Zamindar in village Vyas Khat Haripur. On Jan. 15, 1964 he made transfer of the land referred to in list `Ka' at the foot of the plaint by a registered deed in favour of the plaintiff. The land comprised in list `Kha' was transferred likewise by sale by Pyarey Lal to the plaintiff on June 21, 1965. The allegations of the plaintiff are that the defendant No. 1 had been the tenant in a portion of the land covered in list `Ka'. This defendant admitted Madan Singh-defendant No. 4 on his behalf in a portion of this land in or about the year 1964. The defendant No. 4 raised construction on the land to which he was admitted in possession. The relief claimed by the plaintiff in the suit instituted on Dec. 23, 1967 is possession besides demolition of the impugned construction and mesne profits. In defence Madan Singh defendant No. 4 pleaded that plot No. 12/2 was recorded as Banjar in the revenue papers. The area of .03 acres in this plot was allotted to him under a resolution dated Mar, 19, 1963 by the Gaon Sabha Kalsi. Thereafter he raised a shop on the land at his expense and he has ever since been in possession. Pyarey Lal could not convey any right, title or interest to the plaintiff under the deeds of sale referred to in the plaint. 2. The trial court decreed the suit on Mar. 26, 1971 being of the view that Pyarey Lal had been Zamindar of this land. In view of the provisions of the Jaunsar-Bawar Zamindari Abolition and Land Reforms Act, 1956 governing this land, his interest was extinguished in this barren land. Valid title was thus conveyed by him to the plaintiff under the two registered deeds of sale. The Gaon Sabha was incompetent to allot the land to the defendant No. 4 nor was there any such allotment made in his favour. It was also found that the bar of limitation did not arise because the suit had been filed well within 12 years since the construction' was made. The Gaon Sabha was incompetent to allot the land to the defendant No. 4 nor was there any such allotment made in his favour. It was also found that the bar of limitation did not arise because the suit had been filed well within 12 years since the construction' was made. The judgment and decree of the trial court were affirmed in appeal by the lower appellate court on Sept. 25, 1975. 3. Aggrieved, the defendant No. 1 (4?) alone has preferred this second appeal. 4. Sri A. D. Prakhakar, learned counsel for the appellant, contended that in view of the provisions contained in the Jaunsar- Bawar Zamindari Abolition and Land Reforms Act, 1956 (hereinafter `U.P. Act 1956'), Pyare Lal was incompetent to confer right, title or interest upon the plaintiff by sale made on Jan 15, 1964 and June 21, 1965 and hence the plaintiff did not have the right to seek eviction against the defendant No. 4 appellant. It is argued also that the Gaon Sabha had the authority to allot the land in favour of the appellant. The contention, in my view, is not possessed of merit. 5. The U.P. Act 1956 came into force in this area admittedly on July 1, 1961. Section 2(o) of this Act difines the expression "Zamindar" as meaning in respect of any land, the proprietor of the land or of a share therein. The expression "intermediary" is defined in Cl. (e) of S. 2 as under :- "intermediary" as respects any land means the Zamindar of the land where the land is in the cultivation of a tenant but does not include zamindar of any land referred to in S. 34." 6. S. 3 lays down that the State Government may, at any time after the commencement of this Chapter II, declare, by notification in the Gazette that the area as may be specified is brought under settlement operations and thereupon the same shall be held to be under settlement and continue to be so until the issue of a second notification by the State Government declaring the settlement to be closed. Sections 15(1) and 16 in so far as relevant may be reproduced as under :- "15. Sections 15(1) and 16 in so far as relevant may be reproduced as under :- "15. Acquisition of rights, title and interests of intermediaries, (1) As soon as may be after the issue of' the second notification referred to in S. 3 in respect of an area, the State Government may, by notification published in the official Gazette, declare that as from a date to be specified therein, the rights, title and interest-of all the intermediaries in the land in such area to be specified shall as from the beginning of the date to be specified (hereinafter called the appointed date) cease and vest, except as hereinafter provided, in the State free from all encumbrances." "16. Consequence of acquisition of right, title and interest under S. 15. Where a notification under S. 15 has been published in the official Gazette, then, notwithstanding anything contained in any contract or document or in any other law for the time being in force and save as otherwise provided in this Act, the consequences as hereinafter set forth shall, from the beginning of the appointed date ensue with respect to the land to which the notification relates (hereinafter called the notified land), namely :- (a) all rights, title and interest of the intermediary- in the notified land shall cease and be vested in the State of Uttar Pradesh free from all encumbrances; (b) all notified land held on the date immediately preceding the appointed date by any person as tenant shall be deemed to be settled by the State Government with such person who shall, subject to the provisions of this Act, be entitled to take or retain possession as a sirdar thereof." 7. Section 29 of the Act is material also and it reads : "29. Superintendence, management and control of land. - Subject to the provisions of this Act, a Gaon Sabha may, by notification in the official Gazette, be charged, as from the specified date, for and on behalf of the State Government, with the general superintendence, management, preservation and control of such lands and things (including forests and uncultivated land not belonging to any zamindar) as may be prescribed." 8. Learned counsel argues that .in view of S. 15 (1) the right, title and interests of all intermediaries in the land in the area concerned stand abolished and vested in the State. Learned counsel argues that .in view of S. 15 (1) the right, title and interests of all intermediaries in the land in the area concerned stand abolished and vested in the State. This is unacceptable for the reason that the acquisition mode is of the right, title and interest of all the `intermediaries' in the land. The expression `intermediary' confined significantly to such land as was held by the Zamindar and which was on the relevant date" in the cultivation of a tenant.". In case, as will presently appear, the land in dispute was not in the cultivation of a tenant at the relevant period, Pyarey Lal would not be said to have been the intermediary thereof within the meaning of S. 2(e) and, therefore, there is no acquisition made under S. 15 of his right, title or interest in such `Banjar' land of which he was not an intermediary within the meaning of this Act. The Legislature has, it would be noticed. taken adequate care to make a departure in this behalf from the provisions contained in the U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act I of 1951). In that Act the expression `intermediary' is defined in S. 3(12) as under :- "intermediary" with reference to any estate means a proprietor, under-proprietor, sub-proprietor, thekedar, permanent lessee in Avadh and permanent tenure holder of such estate or part thereof." 9. In accordance with S. 6(a)(i) of that Act 1950, provision is specifically made to the effect that the right, title and interest of all the intermediaries in every estate in the area concerned including the land (cultivable or barren) shall cease and be vested in the State. In clear contrast to this provision, S. 16(a) of the U.P. Act, 1956 confines the cessation to all rights, title and interest of the intermediaries in the notified land alone. In accordance with S. 3(12) of the UC PC Act, 1950 the intermediary with reference to any estate means a proprietor irrespective of whether the land is or is not in the cultivation of a tenant on the appointed date. In accordance with S. 3(12) of the UC PC Act, 1950 the intermediary with reference to any estate means a proprietor irrespective of whether the land is or is not in the cultivation of a tenant on the appointed date. On the contrary, in accordance with the provisions of U.P. Act, 1956 where the land is not in the cultivation of a tenant at the relevant period, the right, title or interest of the Zamindar over such land is left intact, a Zamindar in other words having right, title or interest in the land not in the cultivation of a tenant is not an intermediary within the meaning of U.P. Act 1956 and his right, title or interest has not ceased nor has the same vested for that reason in the State. 10. Indisputedly, Pyarey Lal from whom the plaintiff respondent No. 1 derives title was the Zamindar of this area. This is borne out from the relevant documents of undoubted authenticity and un-rebutted on the record. The extract of Khewat of 1358F. records Pyarey Lal as the Zamindar of this area. The area of plot No. 12 in question is shown as .22 acres and recorded as Banjar vide Ex. 35. The same is the position in the extract of Khewat of the year 1365F, (Ex. 36). In the Khasra of 1365F also Pyarey Lal is recorded as holding this `banjar' land covering the area of .22 acres (Ex. 37). The extract of Khatauni of 1358F and 1365F. as well bore this out (vide Ex. 38/39). It is neither alleged nor shown for the defendants including the defendant No. 4 appellant that this land in dispute was at any stage in, the cultivation of any tenant. Therefore, despite the U.P. Act. 1956 commencing in this area on July 1, 1961, the right, title and interest of Pyarey Lal as Zamindar in the Banjar land was retained and he could under the law transfer the same by sale as he did in favour of the plaintiff on Jan. 15, 1964 and June 21, 1965 by registered deeds of sale placed on the record and duly proved. 11. 15, 1964 and June 21, 1965 by registered deeds of sale placed on the record and duly proved. 11. In so far as S. 29 of the U.P. Act, 1956 also relied upon for the appellant is concerned, it can be of no avail to him for obvious reasons namely, that :- (i) S. 29 can be attracted in respect of such land only as has vested in the State under S. 15(1) of this Act, it is in relation to such land alone that the State Government may charge the Gaon Sabha with the management, superintendence, or control thereof, no question of the Gaon Sabha being conferred any control arises where the land does not vest in the State :; (ii) there is no notification placed on the record suggesting that the land in question was ever placed under the superintendence, management or control of the Gaon Sabha Kalsi; (iii) it is also not established that the land in question was at any time allotted by the Gaon Sabha in favour of the defendant No. 4-appellant. 12. In para 5 of the written statement filed by him the defendant No. 4-appellant took the plea as mentioned above that the area of .03 acres in plot No. 12/2 was allotted to him by the Gaon Sabha Kalsi in a resolution dated 19-3-1963. This averment is entirely without foundation. No such resolution of the Gaon Sabha is brought to the notice of the Court. All that is referred to is the copy of the certificate issued by the Pradhan of the Gaon Sabha dated 19-3-1963 vide Ex. 4. In this certificate the recital made by the Pradhan is that for nearly four years preceding this date Madan Singh defendant No. 4 had raised construction on this land which does not obstruct the public path way and further that this construction was raised by him with the consent of the Zamindar on Banjar land. It is clear enough that it does not refer to any allotment made by the Gaon Sabha in favour of the appellant at any stage. It is clear enough that it does not refer to any allotment made by the Gaon Sabha in favour of the appellant at any stage. On the contrary it affirms that the land was Banjar belonging to the Zamindar and recites that the construction was made by the defendant No. 4 with the consent of the Zamindar which in fact is contrary to his pleadings wherein he would like to maintain that he had obtained allotment from the Gaon Sabha itself. The certificate nowhere recites that the Gaon Sabha had allotted the land or any part thereof to the appellant. 13. For the reasons given above, this appeal is devoid of merit and is accordingly dismissed. Costs on parties.