Thakur Dauji Maharaji Birajman Mandir v. Basdeo — 1986 DIGILAW 241 (ALL)

JUDGMENT P. Singh, Member - This second appeal has been filed against the judgment and order dated 28-2-81 passed by the Additional Commissioner, Agra. 2. Briefly stated, the facts of the case are that a suit was instituted on behalf of Thakur Dauji Maharaj, alleging that the plaintiff was the Zamindar of the land in dispute, that the land was given to Tika Ram, Chiranji and Pooran, that they were cultivators without possession, that a suit was instituted in the year 1923 which was decreed on 8-8-23 except for plot no. 528 that thereafter a decree in respect of that plot was obtained from the court of Munsif, and possession was taken, that since then the plaintiff was in possession that in 1359F the land was the khud-kast of the plaintiff, and that through an application under Section 145 Cr. P. C. the defendants got possession over the land in suit. The suit was contested by the defendants and was dismissed on 19-9-66, that an appeal was preferred before the learned additional commissioner which was dismissed on 22-7-67 that against that a second appeal was preferred before this court, which was allowed and the matter was sent back to the trial court for a fresh decision. The suit was dismissed by the trial court. An appeal was preferred before the learned Additional Commissions who also dismissed the appeal on 28-2-81. The instant appeal is directed against that order of the learned Additional Commissioner. 3. I have heard the learned counsel for the parties and have perused the record. 4. The learned counsel for the appellant submits that the plaintiff became bhumidhar in view of Section 17-A(1) of Urban Areas Z.A. & L. R. Act, that defendants were only trespassers, that the learned lower appellate court has not considered the evidence produced on behalf of the appellant that the plaintiff-appellant was the ultimate title-holder of the land in dispute that the land was banjar in 1366 Fasli and was a grove land and the provisions of Land Records Manual were not applicable to that land. He also submits that the possession delivered under Section 145 Cr.P.C. will confer no rights on defendants relying on a decision reported in AIR 1959 SC 180 Asha Ram v. Ram Kali. He also submits that the possession delivered under Section 145 Cr.P.C. will confer no rights on defendants relying on a decision reported in AIR 1959 SC 180 Asha Ram v. Ram Kali. The learned counsel for the respondents submits that the land was not the khudkasht of the plaintiff and that the land was not being cultivated by the plaintiff. 5. The learned additional commissioner says that in the year 1367 Fasli the cultivation was recorded against the plots and he says that the entry relating to the cultivation by Thakur Dauji Maharaj, was made in 1368 Fasli but the authority under whose order the entry was made was not recorded. I find that the finding of the trial court that proceedings dated 6-8-30 and 10-8-44 were mere paper transactions, is not based on a proper appraisal of evidence. Once there is a Dakhalnama and execution of the decree, that cannot be said to be a mere paper transaction. Hence, I do not agree with the finding of the trial court that these were mere a paper transaction. The Dakhal took place. The other contention of the leaded counsel for the respondents is that at the time of enforcement of the Urban Area Z.A. & L.R. Act the plaintiff was not in possession. In the revenue records there is an entry regarding the possession of the plaintiff in the Fasli year 1367, and proceedings under Section 145 Cr.P.C. were taken and possession was given to the defendants. It is a fact that Urban Areas Z.A. & L.R. Act came into force after the proceedings under Section 145 Cr.P.C. were over and possession was with the defendants under the court orders. The defendants cannot take advantage of possession delivered to them by criminal court under Section 145 Cr.P.C. The proceedings under Section 145 Cr.P.C. are taken for prevention of breach of peace in respect of a piece of land and those proceedings only decided two months' possession prior to promulgation of a preliminary order under Section 145 Cr. P. C. At the most, the possession of the defendants could be said to be of two months only. Thereafter the possession under the court's order could not confer any right or advantage in favour of the defendants. 6. Section 17 of the U.P. Urban Areas Z.A. Act provides for the settlement of certain lands with intermediaries or cultivators as bhumidhars. Thereafter the possession under the court's order could not confer any right or advantage in favour of the defendants. 6. Section 17 of the U.P. Urban Areas Z.A. Act provides for the settlement of certain lands with intermediaries or cultivators as bhumidhars. Sub-section (1) Section 17 of the Act reads as under :- "17(1) Subject to the provisos of Sections 16 and 18 - (a) all lands in an agricultural area - (i) in possession of or held or deemed to be held by an intermediary as 'Sir', khudkasht or an intermediarys grove, (ii) held as a grove by, or in the personal cultivation of a permanent lessee in Avadh, (iii) held by a fixed rate tenant or a rent grantee as such, or (iv) held as such by - (i) an occupancy tenant (ii) a hereditary tenant (iii) a tenant on patta dawami or istarmari. possessing the right to transfer the holding by sale. or held by a grove-holder, on the date immediately proceeding the date of vesting, and (b) all lands in an agricultural area held on lease duly made before the 1st day of July, 1955, for the purpose of erecting building, shall be deemed to be settled by the State Government with such intermediary, leasee, tenant, grantee or grove-holder, as the case may be, who shall subject to the provisions of this Act, be entitled to the provisions of this Act, be entitled to take or retain possession as a bhumidhar thereof. Sub-section (1)(b) of Section 17 provides that intermediaries in possession of or holding or deemed to hold any land as sir, khudkasht or an intermediary grove, or as a grove etc., will be entitled to take or retain possession as bhumidhar thereof. The land in dispute in the instant case is grove land, and that land will be deemed to be held by the plaintiff-appellant and the plaintiff-appellant is entitled to take possession of that land as bhumidhar. The defendants could not take advantage of possession delivered to them in proceedings under Section 145 Cr.P.C. The possession Under courts orders will not after the provisions contained in Section 17 of the U. P. Urban Areas Z.A. Act. The plaintiff-appellant became bhumidhar of the land in suit and is entitled to take possession of that land as bhumidhar. The defendants could not take advantage of possession delivered to them in proceedings under Section 145 Cr.P.C. The possession Under courts orders will not after the provisions contained in Section 17 of the U. P. Urban Areas Z.A. Act. The plaintiff-appellant became bhumidhar of the land in suit and is entitled to take possession of that land as bhumidhar. It is proved from the evidence on record that the plaintiff-appellant was an intermediary and he acquired the rights of a bhumidhar at the time of vesting as provided under Section 17 of the U.P. Urban Areas Z.A. Act. Consequently, it is held that the plaintiff-appellant was title holder and is entitled to take possession of the land as bhumidhar. 7. Accordingly, this second appeal is allowed and the orders of the courts below are set aside.