JUDGMENT Nathoo Lal, Member - This revision is directed against the Judgement and order dated 6-5-85 passed by the Commissioner, Kumaun Division, Nainital in Appeal No. 218 of 1982-83 Ratan Lal Bali v. Mahesh Chandra and others, preferred against the Judgement and order dated 23-6-83 passed by the Additional Collector (Finance and Revenue) district Nainital in case no. 51/4 of 82-83 Ratan Lal Bali v. Mahesh Chandra and others for the cancellation of allotment made in favour of opposite parties Mahesh Chandra and Suresh Chandra in respect of plot no. 168 (62 decimals) situated in village Phasiapura Tahsil Kashipur district Nainital. 2. The brief facts of the case are that on the application of the revisionist Ratan Lal Bali proceedings, for the cancellation of allotment allegedly made on 17.6.53 in favour of the opposite-parties no. 1 and 2 by the Land Management Committee were initiated in the Court of the Collector and although the complaint has apparently been made under section 198 (4) of the U.P. Zamindari Abolition and Land Reforms Act, to be called the "Act" hereinafter as shown in the application but the contents of the complaint and further proceedings taken up are definitely with regard to the allotment of the land in respect of abadi site which is to be dealt with under rule 115-P of the Rules made under the Act. The allegations have been that plot no. 168 (area 1.03 acres) had its corresponding number prior to consolidation as 41A and 42 and after record operations in the village in 1363 Fasli plot no. 41A corresponded to old plot no. 14/2 and plot no. 42 corresponded to old plot no 14/2 Meanwhile consolidation took place in 1374 Fasli. The contentions of the complainant are that towards east of the area of this plot a Saw Mill and Floor Mill etc have been in existence since long belonging to the revisionist but when The opposite parties interfered in the peaceful possession of the land in December 1979 the complainant brought a civil suit no. The contentions of the complainant are that towards east of the area of this plot a Saw Mill and Floor Mill etc have been in existence since long belonging to the revisionist but when The opposite parties interfered in the peaceful possession of the land in December 1979 the complainant brought a civil suit no. 216 of 1979 in the court of Munsif Kashipur in which the opposite parties filed alleged patta for the first time and accordingly the complainant could have knowledge about such a patta in-favour of the opposite parties during the course or litigation in the Civil Court The complainant has challenged the allotment in favour of the opposite-parties on various grounds and has made allegations that to defeat the purpose of justice a forged allotment and patta has been manipulated in conspiracy and in collusion with the erstwhile Pradhan of the village Sri Kishore Singh who was a dismissed Pradhan of the village. The allegation's were denied by the opposite parties who filed a written statement admitting that Saw Mill etc are in existence towards east of the plot but denied other allegation made against the execution of patta in favour of the opposite parties. The opposite parties also asserted that the lease was executed in Their favour by the Land Management Committee in accordance with the law and rules inforced in those times and no irregularity was made in making the allotment while the allotment has been made for abadi purposes and not for the construction of house. After completing the enquiry the complaint of the revisionist was dismissed by the Additional Collector, Nainital on 22.6.83 holding that there was no justification and ground for canceling The allotment in favour of the opposite parties. An appeal was preferred which has also been dismissed under the Judgement and order dated 6-5-85 passed by the Commissioner Kumaun Division Nainital which has given rise to the present revision in this court. 3. I have heard the learned counsels for the parties and have perused the record. 4. An appeal was preferred which has also been dismissed under the Judgement and order dated 6-5-85 passed by the Commissioner Kumaun Division Nainital which has given rise to the present revision in this court. 3. I have heard the learned counsels for the parties and have perused the record. 4. The learned counsel for the revisionist has argued that although there is a mention of section 198 (4) of the Act in the application given by the revisionist seeking cancellation of allotment, the wrong mentioning of section shall not affect the proceedings as the contents of application and further proceeding have been taken up for the cancellation of allotment for abadi sites to be dealt with under Rule 115-P of the Rules made under the Act. The learned counsel has further contended that both the learned courts below have dismissed the application is time barred because the limitation provided is six months while the complaint was made on 16.6.80 against the allotment of 1953 and no satisfactory explanation and day to day justification has been furnished even for not filing the complaint within six months from the-date of knowledge because the knowledge is allegedly admitted on 20.12.79 while the complaint has been made on 16.6.80. The learned counsel for the revisionist has laid much stress on the point that the limitation of six months provided under the Act as the provisions existed in those times was for the Gaon Sabha to seek cancellation of allotment. The learned counsel for the revisionist has laid much stress on the point that the limitation of six months provided under the Act as the provisions existed in those times was for the Gaon Sabha to seek cancellation of allotment. The learned counsel has also pointed out about the observations made by both the learned courts below on the basis of Appendix III, attached to the Rules with reference to rule 338 of the Rules framed under the Act relevant to the period under consideration and the contentions of the learned counsel are that it is the principle of natural justice and the established law on the point that in spite of the limitation provided with effect from specified date it always runs from the date of knowledge gained about the said incident for which the limitation has been provided and as such the limitation shall run from the date on which the revisionist-applicant could be able to know about the existence of the alleged allotment in favour of the opposite-parties because prior to that the opposite-parties had never agitated any claim on the basis of such allotment and this date was mentioned in the application which is 20.12.79 when for the first time the alleged patta was filed in the civil court by the opposite parties and the cancellation proceedings were initiated on 16.6.80 that is within the limitation period of six months from the date of knowledge and both the learned courts below have erred in appreciating the correct legal and factual position emerging out of record and have given wrong findings on the point of limitation. Going ahead with his arguments, the learned counsel for the revisionist has argued that the observations made by the learned Commissioner that there is nothing on record to show that the alleged allotment was made and the patta was executed against the provisions of law and rules is not the correct appraisal of the facts and the legal position relating to the matter under consideration and the contentions of the learned counsel are that as the law prevailing in those times in 1953 Rules 173, 174, 175 and 176 were relevant for the allotment of land by the Land Management Committee and the meeting of the Land Management Committee was mandatory about which announcement by beat of drums in the circle was legal requirement and in the meeting of Land Management Committee the allotments were to be made by auction and the lease executed was to be referred to the S.D.O. concerned along with the proceedings of the meeting for approval but there is nothing on record to show that compliance of these rules was ensured in respect of the alleged allotment in favour of the opposite-parties in spite of the specific allegations made about the non compliance by the revisionist and about farzi patta fabricated and manufactured in conspiracy and in collusion with the dismissed Pradhan of the village Refer ring to 1982 S. C. page 505 and 1985 R.D. page 110, the learned counsel for the revisionist has laid a great stress to press that if the prescribed procedure of public auction was not adopted in making allotment the whole proceedings of allotment shall be invalid and the patta shall be void ab-initio. 5. The learned counsel for the opposite-party on the other hand has contended during the course of his arguments that since no other person was claiming the land in dispute there was no question of any public auction and the lease executed on 17.6.53 with a premium of Rs. 5. The learned counsel for the opposite-party on the other hand has contended during the course of his arguments that since no other person was claiming the land in dispute there was no question of any public auction and the lease executed on 17.6.53 with a premium of Rs. 100/-, is perfectly valid The learned counsel also urged that the allotment is dated 17.6.53 while the cancellation application has been moved in June 1980 even beyond time from the date of knowledge and both the learned courts below have rejected the application while taking totally correct, legal and factural view of the matter The learned counsel for the opposite-party making reference of the civil litigation has contended that the revisionist has lost all his claims with regard to ownership and possession over the disputed land in the civil court and as a result of that defeat the present cancellation proceedings were initiated. The learned counsel tor the opposite-party has also asserted that the observations-of the learned courts below are practically correct when they said that no day to day satisfactory explanation has been furnished for the delay caused after the expiry of six months from the date of knowledge i. e. 20.12.79. The learned counsel for the opposite-party has also argued that there existed no legal provisions for the persons of Preferential category as the law and rules stood in 1953 when the patta was executed to the opposite-parties nor any permission from the Sub-Divisional Officer was necessary. 6. So far as the contentions of the learned counsel for the revisionist on the point of limitation are concerned, I totally agree with his views under the given facts and circumstances of the case because if the date of knowledge is 20.12.79 and the cancellation proceedings were initiated on 16.6.80 the application of the revisionist was within limitation below six months period and no explanation or reasons were required to be given for the delay as no delay was caused. Moreover, it is relevant to note that the revisionist could have knowledge when the patta was filed in the court of Munsif during the pendency of suit brought by the revisionist seeking permanent injunction against the opposite-parties for restraining them from interference in the peaceful possession over the disputed land and it is after the end of this litigation that the cancellation proceedings were initiated. From the perusal of records, the Judgements, findings and orders given and passed by both the learned courts below and from the arguments advanced by the learned counsel for the parties it appears that the whole matter has been put in a confused sphere of legal and factual atmosphere seeking cancellation of allotment moved by the revisionist as well as the pleadings taken by the opposite-parties in defense in the written statement filed and other evidence brought on record it definitely becomes a case of allotment of abadi site while on the other hand the learned courts below as well as the learned counsel for the parties all appear to have been in the utter confusion to see the matter in dispute in the light of the allotment proceedings to be made for tenancy rights under section 195 of the Act and cancellation to be sought under section 198 of the Act. As a matter of fact, the admitted case of both the parties as it comes out of the pleadings and contentions is that the alleged allotment was made for abadi site and the patta was executed accordingly for abadi purposes. The legal provisions with regard to the allotments of Gaon Sabha land for abadi site are quite different, both with regard to the procedure of allotment and with regard to the procedure of cancellation and this confusion must be washed of before any definite appreciation and assessment of the matter can be made. Since the undisputed case of both the parties is about the alleged allotment for abadi purposes, the matter in dispute cannot be covered by the procedure laid down for the cancellation of allotments of land for tenancy rights and the matter is to be viewed with the relevant provisions of law and rules. From the perusal of a copy of patta filed by the applicant-revisionist himself which has not been denied by the opposite-parties because it is the certified copy obtained from the court of Munsif Kashi pur district Nainital wherein the patta was filed by the opposite-parties during civil litigations. From the perusal of a copy of patta filed by the applicant-revisionist himself which has not been denied by the opposite-parties because it is the certified copy obtained from the court of Munsif Kashi pur district Nainital wherein the patta was filed by the opposite-parties during civil litigations. On the face of it this patta shows that it was executed on 17.6.53 for abadi sites and the allotment has been made in favour of the opposite-parties Mahesh Chandra and Suresh Chandra and others sons of Sri Harish Chandra, resident of Phasiapura by the Land Management Committee Tanda Ujjain of Tehsil Kashipur district Nainital and this lease was issued by the then Chairman Sri Kishore Singh for plot no. 14/2 area 0.62 acres. The allegations of the revisionist have been that this lease is actually a forged document fabricated and manufactured in conspiracy with the erstwhile Pradhan of the village at the time when the interference by the opposite-parties Mahesh Chandra etc in the peaceful possession of the revisionist-applicant over the disputed land was challenged by the revisionist in the court of Munsif Kashipur district Nainital by seeking an injunction. Apparently the document does not appear to have been prepared in accordance with law and rules because on the face of it has been prepared in the form said to have been prescribed under Rule 176 of the Rules framed under the Act. Rule 176 is clearly relevant to the matters relating to the allotments of Gaon Sabha land for tenancy rights for the purposes of cultivation etc and the section provides that any person is admitted to land shall be entitled to a certificate and a receipt for the premium paid by him. Thus it is clear that neither the alleged allotment was made for tenancy right of Asami, sirdari or bhumidhari nor there was any question of executing a lease in the prescribed form in which the present lease to the opposite-parties is said to have been prepared and executed. Thus it is clear that neither the alleged allotment was made for tenancy right of Asami, sirdari or bhumidhari nor there was any question of executing a lease in the prescribed form in which the present lease to the opposite-parties is said to have been prepared and executed. Moreover, if for the sake of arguments it may be taken for granted that it was a lease for tenancy rights then under the provisions of Rule 176 read with section 195 of the Act specified categories of person'"were made entitled for the Gaon Sabha land for tenancy rights also and the Land Management Committee was under an obligation to prepare a list of the persons who were entitled under the provisions of Section 195 as were prevalent at that time and no prior approval of the Sub-Divisional Officer was necessary but under the provisions of Section 198 the preferences were laid down according to which recognised educational institutions, landless agricultural labourer or an Asami residing in the circle holding no land or a landless or a bhumidhar, of Adhivasi holding land less than 6 access and a Co-operative form etc. It is further clear that the words Land Management Committee were sub-stisuted for the words Gaon Sabha by Section 53 of U.P. Act No. XXXVII of 1958. It is thus clear that in 1953 as a matter of fact L.M.C. were not to make any allotment and instead the words used in Sections 195 and 198 were Gaon Sabha and the words L.M.C. were substituted by an amendment in 1958. The present lease said to have been executed and the document issued in the signatures of Sri Kishore Singh as Chairman of the L.M.C. is clearly proved to be a forged document because there was no provision for L.M.C. or its Chairman to execute any lease of tenancy rights according to the provisions of law and it was the Pradhan of the Gaon Sabha who might have been empowered. The observations of the learned courts below that the burden of proof lay on the revisionist-applicant to have proved that the allotment was made against the provisions of law and rules is also not correct view and is a misconceived opinion because the evidence which is not in the possession of the revisionist and the complainant cannot be expected to be produced by him and it was either for the allottee to have brought the record of Gaon Sabha or the L.M.C. on record to prove that the proceedings were taken in accordance with law and rules or the Gaon Sabha would have itself came forward to bring evidence before the Court to show that all the legal formalities were observed while making the allotment and there were no irregularities committed in it. Lastly, it was the duty of the courts below also to have summoned the record of the L.M.C. and the Goan Sabha when the allegations were made categorically with regard to the validity of allotment and violation of law and rules and procedure prescribed and the documents of the Gaon Sabha must have been brought on record to satisfy that there had been no irregularity in the allotment. In the absence of any such evidence to meet the allegations made by the revisionist applicant the only inference which can be drawn is that it was a forged document prepared to establish the claim over the land when the civil litigations started. 7. Coming to the question relevant to the allotment for Abadi sites it is clear that as the law existed in those times under Rule 115-L of the Rules framed under the Act the Abadi sites situated in the Abadi or in the waste land of the area vested in the Gaon Sabha, were to be allotted for the purposes of constructions of buildings in the following order of preference and the first preference went to the landless agricultural labourer or a landless servant of village community such as Barhai, Dhobi, Lohar and Sweeper etc. while the second preference went to bhumidhar, sirdar or Adhivasi holding less than 5 standard bighas of land. while the second preference went to bhumidhar, sirdar or Adhivasi holding less than 5 standard bighas of land. The other mandatory provisions for the allotment of Abadi sites was under this rule that the allotment shall be made on the result of public auction held for this purpose and the formalities for holding such auction were to be observed and the only exception provided for was when the land was required for the construction of a building for a charitable purpose or in cases where the site was required for setting up a cottage industry. There is nothing on record to show that these legal requirements were complied with before allotting the land to the opposite-parties. As a matter of fact the reality about the non-holding of any public auction has been admitted by the opposite-parties in the written statement clearly when it is said by them that since no other person was claimant for the land there was no question of any public auction. This plea of the opposite-parties cannot be accepted because neither they come under the preferential category provided for nor they are the residents of the village. Moreover, it cannot be believed that after pronouncement about the public auction by beat of drums no body would turn up to take the land for Abadi sites nor there is any evidence to show that the persons of preferential category were not available in the village. Moreover, the allotment by public auction is a mandatory provision and it must have been complied with and if at the time of public auction there would have turned up no other persons than the opposite-parties themselves to take the land for Abadi sites then only there would have been some justification in the plea of the opposite-parties but since no public auction was held there was no question of believing the fact that no other person was prepared to take the land except the opposite-parties. There is another aspect of the matter which absolutely washes of all the claims of the opposite-parties over the disputed land. There is another aspect of the matter which absolutely washes of all the claims of the opposite-parties over the disputed land. Rule 115-Q as it existed in those times clearly provided that the maximum area which may be auctioned in one lot shall not exceed 250 square yards and the allottee shall not be required to pay ground rent therefore and the only exception to this maximum limit of area was for the cases of allotment of site for construction of a building for a charitable purpose or for setting up a cottage industry. In the present case under consideration the allotment of land to the opposite-parties is for an area of 0.62 acres which is totally in violation of the above legal provisions which are mandatory and therefore the allotment itself is void-ab initio. Further the most fatal provision for the present case of the opposite-parties is relating to Rule 115-P which provides that the person to whom an Abadi sites is allotted shall be required to build a house either Kachcha or Packka and begin to reside in it within two years from the date of allotment and if he fails to do so his rights shall be extinguished and the site may be reauctioned. It is an admitted fact that the opposite-parties have raised no building construction over the disputed land as yet and their contentions are that they raised wooden pillars on the boundary of the plot and built a gate also and the land has been used for tractor to stand over the land. It is an admitted fact that the opposite-parties have raised no building construction over the disputed land as yet and their contentions are that they raised wooden pillars on the boundary of the plot and built a gate also and the land has been used for tractor to stand over the land. The fact that no building constructions has been raised has clearly been admitted by the opposite-parties in the written statement when they say that the alleged allotment was made for Abadi purposes only and not for the construction of houses although the revisionist-applicant have always claimed the raising of boundary and of the gate himself but if the version of the opposite-parties may also be accepted the fact which is admitted and not denied by them is that no building has been constructed over the land and this act on the part of the opposite-parties is in clear violation of the provisions of Rule 115-P and the only consequences resultant on it are that the opposite-parties the so called allots of the land for Abadi site have failed to build any house kacha or packa over the land in dispute and all their rights over the disputed land shall be deemed to have extinguished and the so called lease-deed is a waste-paper now seeding no consideration for its cancellation at all. Thus I come to the conclusion that by own pleadings and admissions of the opposite-parties Mahesh Chandra and others, their rights, if any, might have been on the basis of the alleged allotment had extinguished on the expiry of a period of two years from the date of allotment and they did not enjoy any rights or title over the land after the date of expiry of two years from the date of allotment and the allotment automatically became infructuous void and the document on record is a waste paper. 8. 8. From the facts and circumstances of the case arising out of the material available on record including the material relating to the civil litigation, it can definitely be believed that there was a long fought dispute between the contesting parties particularly with regard to the possession of the land in question and as has also been admitted by the learned Additional District Judge Nainital under his Judgement dated 25-11-1981 passed in civil appeal No. 55 of 1981, the parties fought criminal and civil both kinds of litigations over the possession of the land and ultimately the litigations have also taken shelter in the revenue court. It has been admitted that the name of applicant revisionist was recorded in Municipal records for the purposes of assessment of house-tax and water-tax etc and the taxes have also been paid for the land in dispute and for the building and industrial units existing over the land but the claim of title has not been accepted by the civil courts mainly on the grounds that there was no evidence to prove the claim of the revisionist relating to the acquisition of rights and title over the land as a result of the operation of the provisions of the Act as it came into force particularly under Section 9 of the Act and also because the opposite-parties did have a prima facie case for title and ownership on the basis of the alleged lease deed said to have been executed in their favour by the Land Management Committee. Ownership and title may be disputed so far as the revisionist is concerned but the fact of possession appears to have been prima facie proved from the evidence and circumstances of the case because the litigations started by Marpeet between the parties particularly when the opposite-parties started to interfere into the peaceful possession of the revisionist over the land in dispute which resulted after awards in civil litigation and has now converted into the revenue litigation. It is not understandable as to why the said litigation and dispute had not arisen before 9-12-79 when Mahesh Chandra and others attempted to occupy the land in dispute by force particularly when the documents of prima facie title in the form of a lease-deed was said to have been in the possession of the opposite-parties since 1953 when the lease is alleged to have been executed. It is thus definitely clear that the revisionist had been in actual possession over the land in dispute since long as is evident from the Judgements recorded by the civil courts too although the evidence of revisionist could not be believed by those courts for some reason or the other and the evidence of the opposite-parties was believed. 9. In view of the discussions made above, this revision is allowed, the impugned order of the Additional Collector dated 23-6-1983 and of the court below dated 6-5-1985 are set aside and it is held that rights of opposite-parties, if any, over the land in dispute on the basis of the alleged allotment had extinguished after the expiry of two years from the date of alleged allotment.