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Allahabad High Court · body

1987 DIGILAW 1197 (ALL)

Moose v. Vishwanath

1987-12-10

BRIJESH KUMAR

body1987
JUDGMENT Brijesh Kumar, Member - This second appeal has been filed against the judgment and decree dated October 18, 1978 passed by the Additional Commissioner, Varanasi Division, Varanasi, in appeal No. 75/529 of 1969 filed against the judgment and decree dated August 25, 1969 passed by the trial court in a suit under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act. 2. Briefly stated, the facts of the case are the Vishwanath and others brought a suit under Section 229-B of U.P. Z.A. and Land Reforms Act against Duiji and others in the court of the Judicial Officer (Revenue) in respect of plot number 566-ka, kha and 658-ka and kha, situate in village Bhakharia, pergana Khaswar Raja, district Varanasi. The case of Vishwnath is that his father was Bhumidhar of the land in dispute on the basis of a lease executed in his favour on July 15, 1959. Duiji illegally occupied the land. Ram Prasad, the father of Vishwanath filed a suit for possession and the suit was decreed. In compliance of the decree Ram Prasad obtained possession on June 25, 1960 through the Kurk-Amin. Amaldaramad was issued but the Lekhpal did not enter his name in the relevant records. The appellant contested the suit in the ground that the plaintiffs had never been in possession. The Judicial Officer (Revenue) who decreed the suit had no jurisdiction and Amin never visited the plot and that the suit is barred by Section 34 of the U.P. Land Revenue Act. Sri S.P. Srivastava, Judicial Officer (Revenue), Varanasi, decreed the suit on August 25, 1969. Against this order the appellant went in appeal before the Additional Commissioner, Varanasi Division, Varanasi who dismissed the appeal upholding the decree passed by the learned trial court on October 13, 1978. This second appeal has been filed on the ground that the courts below adopted and procedure in refusing oral evidence let by the appellant and that the alleged decree relied by the respondent was only a paper transfer and delivery of possession, as the possession by the respondent was not given in accordance with rule 337 of the Revenue Court Manual. 3. I have heard the learned counsel for the parties and have also perused the record. 3. I have heard the learned counsel for the parties and have also perused the record. The learned counsel for the appellant has made two submissions-firstly that the Kurk-Amin had not given the alleged possession in accordance with the provisions contained under Order XXI Rule 35, C.P.C. And Rule 337 of the Revenue Court Manual has also not been followed. His second submission is that though the plaintiff has been in possession of the land in dispute, the suit was filed after six years. The learned counsel for respondent has argued that Ram Prasad, the decree-holder was delivered possession in presence of two witnesses through Kurk-Amin Chandra Mohan and the court did not follow para 392 of the Revenue Court Manual. 4. Order XXI Rule 35 C.P.C. prescribes the procedure for delivery of possession. It is read as under: "35 Decree of Immovable Property-(1) Where a decree is for the delivery of immovable property, possession thereof shall be delivered to the party whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refused to vacate the property. (2)Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode; at some convenient place, the substance of the decree. (3)Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the court through its officer, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or belt or break open any door or do any other act necessary for putting the decree-holder in possession." 5. Para 337 of the Revenue Court Manual is read as follows: "337. Procedure of Delivery of Property.- Delivery of possession in execution of a decree or order for ejectment shall be made by the Kurk-Amin who, on his arrival in the village, shall send notice to the person to be ejected, and in case there is any sub-tenant, to such sub-tenant also. Procedure of Delivery of Property.- Delivery of possession in execution of a decree or order for ejectment shall be made by the Kurk-Amin who, on his arrival in the village, shall send notice to the person to be ejected, and in case there is any sub-tenant, to such sub-tenant also. The ejectment shall be made on the post (not at the village Chaupal), and from each field separately in the manner provided in rule 35 of Order XXI of the first schedule of the Code of Civil Procedure, 1908) (V of 1908) in the presence of the person to be ejected if he is in the village and of two villagers whose names should be mentioned in the Kurk-Amin's report. If the person to be ejected is not present in the village, or refuses to attend, the Kurk-Amin shall record the fact in his report. If at the time of the delivery of possession there exists not holding any ungathered crop or any trees of which the value has not been determined by the court, the Amin shall state in report the kind of crop and his estimate of its probable value, and the kind, number and estimated age and value of the trees. The report shall be signed by the decree-holder or his agent to whom delivery is made, and by the person to be ejected, if present and the parties shall be directed to apply, if they wish to do so, to the court executing the decree, for the settlement of the value of such crops and trees. If the Lekhpal is present in the village, the Kurk-Amin shall ask him to attend, and shall see that the Lekhpal makes record of the ejectment in his diary as directed in the rules relating to Lekhpals. In case any party refuses to sign the report, the Amin shall record that fact" 6. Para 338 of the Revenue Court Manual Provides that when the delivery of possession has been made in accordance with para 337, the Kurk-Amin shall submit his report with particulars required to the court which issued the warrant for delivery of possession. It follows from a reading of the above provision that the Amin is required to sent a written notice to the judgment-debtor otherwise he shall have no reliable evidence on record of the fact that he has sent a notice. It follows from a reading of the above provision that the Amin is required to sent a written notice to the judgment-debtor otherwise he shall have no reliable evidence on record of the fact that he has sent a notice. The Kurk-Amin is also required to submit a report to the court which issued a warrant for delivery of possession. In the present case, the plaintiff has filed a copy of Dakhalnama in the trial court. It is evident form this document that he respondent had obtained possession of the land in dispute on June 25, 1960 in the presence of two witnesses. He had given a certificate to the effect that he had obtained the possession through Kurk-Amin Chandra Mohan. There is no indication of date of possession in this document. It does not bear the signatures of the kurk-Amin Chandra Mohan. The Kurk-Amin did not make any endorsement that he has delivered the possession to Ram Prasad. There is nothing on the record to show that he had submitted a report as required under Para 338 of the Revenue Manual, to the court which issued the warrant for delivery of possession. There is no proof of notice having been issued to the appellant. I am, therefore, satisfied that the above provisions were not complied with by the Kurk-Amin regarding possession and the alleged delivery of possession is not in accordance with rules. The court below has held that the possession of the respondent was from oral evidence and the Dakhalnama was properly written. The learned Additional Commissioner has erred in holding that the Dakhalnama was in accordance with law. 7. Notwithstanding these irregularities on the part of the Kurk-Amin, this fat is established beyond all reasonable doubt that the respondent obtained possession from the Kurk-Amin Chandr Mohan. The Dakhalnama is a corroborative piece of evidence of delivery of possession. In the present case the possession was delivered to the respondent. Therefore, any defect crept into the Dhakhalnama cannot, in any way, mitigate the strength of any other evidence on record. The learned Additional Commissioner has rightly observed that the plaintiff has tried to take advantage of the defect in the operative portion of the decree. This has encouraged the Lekhpal to expunge the name of the appellant from the revenue records. 8. The learned Additional Commissioner has rightly observed that the plaintiff has tried to take advantage of the defect in the operative portion of the decree. This has encouraged the Lekhpal to expunge the name of the appellant from the revenue records. 8. In the result, the appeal is dismissed and the judgment and decree passed by the learned Additional Commissioner is upheld.