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1989 DIGILAW 305 (ALL)

Shanker Ji Maharaj v. Gaon Sabha

1989-03-31

GIRIDHAR GOPAL

body1989
JUDGMENT Giridhar Gopal, Member. - This revision has been filed by Shanker Ji Mahraj installed Mandir Panch Mandir Tamkohi Raj, Deoria through its Mutwalli Sri Khagendra Pratap Bahadur Sahi against Gaon Sabha Bhatiwallia through Pradhan and others against the order of learned Additional Commissioner, Goraphpur dated 27.4.1983 upholding the order of Sri H.P. Varma, Additional Collector Deoria dated 27.11.80 in appeal under Rule 115-S of the U.P.Z.A. and L.R. Rules upholding the order of the Tahsildar Padrauna dated 15.3.80 rejecting the objection of the revisionist against the allotment of pond made in favour of O.P. Naseer located in village Bhatwallia, tappa Dhuria Bijaipur, pargana Sidhuajobna, tahsil Padrauna district Deoria. 2. In brief the facts of the case are that the revisionist filed an application dated 27.11.79 for cancellation of lease and auction dated 30.3.78 made in favour of Nasear Ahmad and Basheer Ahmad, O.Ps. 3 and 4. O.P. No. 5 filed objection. The learned Tahsildar vide his order dated 15.3.80 rejected the application mainly on the ground that the application was barred by time, that the question of title was involved which could not be decided in those proceedings. The revisionist filed appeal before the Collector which was heard and disposed off by the Addl. Collector concerned who dismissed the appeal vide his order dated 27.11.80. Against the order of Addl. Collector the revisionist filed revision before the Commissioner end the same was dismissed by the impugned order dated 27.4.1983 against which the present revision is being heard. 3. I have heard the learned counsel for the parties and perused the records. The learned counsel for the revisionist argued that Tahsildar and the Addl. Collector have rejected the case of the revisionist mostly on the ground of limitation and involvement of question of title. As for the question of limitation the revisionist had pleaded that when he came to know of the patta on 15.11.1979 then after taking advice of the counsel and obtaining copies of the relevant orders he had filed the objection on 26.11.1979. That the request for condonation of delay was revanable and the same should have been done and the case heard and decided on merit. That similarly the Addl. Collector also erred in upholding the rejection of the objection mainly on the ground of limitation and the point that the question of title we involved. In the court of the Addl. That the request for condonation of delay was revanable and the same should have been done and the case heard and decided on merit. That similarly the Addl. Collector also erred in upholding the rejection of the objection mainly on the ground of limitation and the point that the question of title we involved. In the court of the Addl. Commissioner where the revision was heard and dismissed the revisionist had filed a copy of the order of S.D.M. Padrauna dated 30.8.82 in a case under Section 145. Cr.P.C. in which the possession of the revisionist was accepted. This piece of evidence was accepted on payment of costs of Rs. 10/-. The Addl. Commissioner while dismissing the revision by his impugned order dated 27.4.83 did not consider this additional piece of important evidence about possession of the revisionist. Against the above impugned order of the Addl. Commissioner when the revisionist came before the Board of Revenue he filed here copies of various impugned orders referred to above and also copy of the order of the S.D.M., dated 30.8.82 and also copy of the order dated 2.4.83 passed by 4th Add. Session Judge Deoria dismissing the revision filed by Gaon Sabha Bhatwalia against the order of this S.D.M. dated 30.8.82. The learned counsel for the revisionist referred to an important question of law involved in this case that the order of S.D.M. dated 30.8.82 under Section 145 Cr. P.C. about the same pond between the same parties is in favour of the revisionist, that the O.Ps. went in revision before the District Judge who dismissed the revision, that the same order of the District Judge dated 2.4.83 is also on record. As against this when the pond was leased out by the Gaon Sabha, an application was moved by the revisionist for cancellation before the Tahsildar, who had rejected the application. Revisionist had gone in appeal before the Collector, which was also rejected, and them the revisionist went in revision before the Addl. Commissioner who also rejected the revision. Now the question is which set of order i.e. the order of S.D.M. and the revisional order of District Judge or the orders of Tahsildar, Collector and the Addl. Commissioner will prevail. The learned counsel for the revisionist further pointed out that none of the revenue courts have decided the question of title about the pond. Now the question is which set of order i.e. the order of S.D.M. and the revisional order of District Judge or the orders of Tahsildar, Collector and the Addl. Commissioner will prevail. The learned counsel for the revisionist further pointed out that none of the revenue courts have decided the question of title about the pond. The tahasildar had rejected the application on the ground of limitation. The Collector has not decided the question of title about the pond and the learned Addl. Commissioner has also confirmed the reasonings of the Collector and dismissed the revision and directed that if the revisionist so wants he should go in regular suit for declaration of his title, that the Collector and the Addl. Commissioner have not given any definite finding about the title of the revisionist, that it is open to the revisionist to establish his title here. The learned counsel referred to 2nd para of the order of the S.D.M., in which it is held that the pond was got constructed by the forefather of the revisionist, that it was not natural pond which will vest in the Gaon Sabha as only the natural pond will vest in the Gaon Sabha, that this order of the S.D.M. was passed after the impugned orders of Tahsildar and Addl. Collector, that the S.D.M. has held that the revisionist is the owner in possession of the pond in dispute. He also referred to Section 145 (2) of the Cr. P.C. wherein the question of fisheries had also been included in relation to ponds, that against this order of the S.D.M. the O.Ps. had gone in revision before the District Judge which was rejected. So the O.Ps. are required to establish their title in a competent court of law and only then they can eject the revisionist from the pond in dispute, that the auction done by the Gaon Sabha will not be important because when the dispute about title arose it was decided in favour of the revisionist. 4. The learned D.G.C. argued in reply that only question in this case was about the validity or otherwise of the patta. The learned Tahsildar had rejected the application for cancellation of patta on the ground of limitation, that the limitation was 42 days and the application was filed much later, that the Gaon Sabha used to auction the pond, that the Collector and the Addl. The learned Tahsildar had rejected the application for cancellation of patta on the ground of limitation, that the limitation was 42 days and the application was filed much later, that the Gaon Sabha used to auction the pond, that the Collector and the Addl. Commissioner both upheld the order of Tahsildar and also said that that if the revisionist is claiming title over the pond he should go to the competent court and as such no ground under Section 33 Z.A. and L.R. Act is made out for interference by this Court. 5. I have carefully considered the arguments of the learned counsel for the parties. The learned Addl. Commissioner has erred in not carefully considering the contents and implications of the order of the learned S.D.M. dated 30.8.82 putting the revisionist in possession in deciding the proceedings under Section 145 Cr. P.C., that detailed order of the S.D.M. throws enough light on the possession of the pond in dispute in favour of the revisionist and has rightly put the revisionist in possession, that the revisional order of the Addl. Session Judge dismissing the revision of the O.Ps. also supports the case of the revisionist. The Combined effect of the orders of the learned S.D.M. as well as Addl. Session Judge will be that the revisionist will remain in possession and will not be ejected except by an order of competent court. Since the learned Tahsildar and the Addl. Collector had mainly dismissed the objection and appeal respectively of the revisionist on the ground of limitation and the involvement of question of title, the propriety or otherwise of the patta have not been gone through by them. In the light of the above observations I am not inclined to uphold the order of the Additional Commissioner nor the orders of learned Addl. Collector and learned Tahsildar and consider delay as condonable. On the contrary there is enough force in the orders passed by the S.D.M. and the revisional order of the Addl. Session Judge. Since the revisionist was found in possession and was put in possession by the learned S.D.M. whose orders were upheld by the Addl. Session Judge the pond in dispute cannot be said to have been vacant for being allotted by the Gaon Sabha. The documentary evidence filed by the revisionist by way receipts issued by the Fisheries Department in his favour, registered will deed etc. Session Judge the pond in dispute cannot be said to have been vacant for being allotted by the Gaon Sabha. The documentary evidence filed by the revisionist by way receipts issued by the Fisheries Department in his favour, registered will deed etc. show that the pond in dispute No. 727 area 3.61 acres was constructed by fore-fathers of the revisionist as their personal property and that a Trust was created in favour of Shanker Ji Mahraj installed Panch Mandir Tamkohi Raj that the trust deed is dated 15.12.39 and was registered on 17.4.40 much before the Abolition of Zamindari and that it was not a natural pond and had not vested in Gaon Sabha and as such Gaon Sabha could not allot it legally. 6. In the light of the above, the revision is allowed and the impugned orders of learned lower courts are set aside.