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1990 DIGILAW 611 (ALL)

Prem Shankar v. State of Uttar Pradesh

1990-06-25

NATHOO LAL

body1990
JUDGMENT Nathoo Lal, J. - This second appeal is directed against the judgment and decree dated 28-5-77 passed by the Additional Commissioner, Allahabad Division, Allahabad in Appeal No. 5 of 1976-77, Prem Shanker and others v. State., preferred against the judgment and order dated 12-10-76 passed by Sri H.G.S. Mathur, Assistant Collector, First Class Etawah in suit No. 52 of 1973-74, Prem Shanker and others v. State and others, under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, to be called the "Act" hereinafter. 2. The facts of the case in brief are that a suit under Section 229-B of the Act was brought by the appellants Prem Shanker and two others against the U.P. State and two others with the contentions that the land in suit comprising of ten plots numbering 60, 161, 83/4 Min, 102, 180/1 Min, 186 Min, 189/1 Min, 192/Min, 179/3 and 45 of village Jaitiya, Pargana, Tehsil and District Etawah were under the Zamindari of Smt. Laraiti Kunar of Mohalla Sabitganj Etawah city prior to Abolition of Zamindari and was recorded in village records as Usar and Banjar uneven land not suitable for easy cultivation and since Smt. Laraiti Kunar the then Zamindar was a Parda Nashin lady, the supervision of her zamindari property was looked after by her Mukhtare-Aam and the Manager who permitted the land to be cultivated by the plaintiffs long long ago about 30 years back and since then the plaintiff used to cultivate the land regularly and have been in possession over it continuously without any interruption while the Gaon Sabha has got no concern with the land in suit nor has ever been in possession over it. It was also pleaded that since one of the co-sharers Sri Angnoo was not ready to participate in the suit as plaintiff he has been impleaded as defendant No. 3. It has been pleaded in the plaint that consolidation operations under the U.P.C.H. Act are over and during consolidation operations the land in suit was kept out of consolidation scheme except for the purposes of renumbering of plots and the plaintiffs could not have any knowledge about the recorded entries during consolidation operations in respect of plots in suit and they were kept in dark by the consolidation authorities and were also made victims of fraud. The plaintiffs have therefore contended that Gaoa Sabha has never claimed ant kind of possession nor has ever created any hinderence in the cultivatory possession of the plaintiffs and consequently the plaintiffs have acquired tenancy rights over the suit land and are seeking declaration to that effect because they have invested large amount of money and physical labour for the improvement of the land. The suit was contested on behalf of the Gaon Sabha and on behalf of State of U.P. by filing written statements wherein the contentions of the plaintiffs and pleadings taken have been denied with the specific plea of the bar of Section 49 of U.P.C.H. Act coming in the way of the suit. After completing the trial, the suit was dismissed under the judgement and order dated 12-10-1976 passed by the Assistant Collector First Class Etawah feeling aggrieved of which the plaintiffs went in appeal before the Commissioner which has also been dismissed under the judgment and order dated 28-5-77 passed by the Additional Commissioner Allahabad Division, Allahabad giving rise to the present second appeal in this Court. 3. I have heard the learned counsels for the parties and have perused the record. 4. The learned counsel for the appellant during the course of his arguments has made assertions that the appellant-plaintiffs are entered in revenue records since 1372 Fasli and in the main column of the Khatauni the land is recorded as Usar and Banjar. The contentions of the learned counsel for the appellant are that so far as the possession over the land in suit is concerned, it is proved from the evidence available on record that the plaintiffs have been in cultivatory possession throughout continuously for the last thirty years over the suit land the best piece of evidence brought on record relates to the irrigation slips beginning from 1358 F issued by the irrigation department of the State Government in the name of the plaintiffs. Commenting on the findings recorded and observations made by the learned trial Court as well as by the learned first appellate court about the bar of Section 49 would be clear from the material on record that the land in suit continued to be recorded as Usar and Banjar in revenue records during the consolidation operations too and as such the land was kept out of consolidation activity was given to the plaintiffs so as to enable them to file objections and to agitate the matter of their rights and title over the land before the consolidation authorities and the contentions of the learned counsel therefore, are that under these circumstances the provisions of Section 49 of the Act are not attracted and cannot be held to bar the suit on that account. The learned counsel for the appellant has also urged that the consolidation authorities acting under the U.P.C.H. Act actually had no jurisdiction to entertain and decide the matters relating to the point about the land recorded as Usar and Banjar and not recorded in the holding of a tenant and therefore the provisions of Section 49 of that Act are not attracted at all on that score also. The learned counsel has cited 1984 ALJ page 518 and 528 (HC) : 1971 RD page 520 (HC) : 1976 AWC page 585 (HC) in support of his contentions wherein, it has been clearly held that if the land is not recorded in the holding of any tenant as land holder is recorded as Banjar land the consolidation authorities have got no jurisdiction to adjudicate upon. The learned counsel for the appellant going a head with his arguments has also contended that Section 27 (2) of the U.P.C.H. Act as amended by Act No. 12 of 1965 provides that all entries in the records prepared as a result of consolidation operations shall be correct unless contrary is proved and the learned counsel has therefore argued that the entries existing in revenue records on the basis of the records prepared as a result of consolidation operations are presumed to be correct but this presumption in rebuttable and if contrary is proved the entries cannot be held to be correct always. The learned counsel for the appellant has therefore urged that both the learned courts below have recorded perverse findings and made perverse observations in view of the facts evidence and circumstances of the case apparent on the face of record and the findings are legally vitiated needing interference in the second appeal. The contentions of the learned counsel for the appellant further are that none of the courts below have discussed and considered the documentary evidence in abundance placed on record by the plaintiffs and have ignored all the oral evidence adduced rendering the judgment and order to be absolutely perverse. The learned counsel has cited 1977 RD page 67 : 1976 AWR page 550 in support of his contentions. Further the learned counsel for the appellants has argued that the plaintiffs had a acquired rights prior to the Abolition of Zamindari even under the provisions of Section 180 (2) of the U.P. Tenancy Act enforced at that time on the basis of their possession over the land in suit in case the possession was considered to be without the consent of the then Zamindar as the plaintiffs had not been ejected from the land in suit within the limitation of two years prescribed under the law and had perfected tenancy rights over it. 5. So far as the question of bar of Section 49 of the U.P.C.H. Act applicable to the present suit is concerned, I totally agree with the contentions of the learned counsel for the appellant that since in revenue records the names of plaintiffs were not recorded as the land-holders and the land was recorded as Usar and Banjar, it was kept out of consolidation scheme and no consolidation operation were made upon the land in suit and as such the bar of Section 49 of the U.P.C.H. Act cannot come as a obstacle in the way of suit. I also agree that if the land was recorded as Usar and Banjar and not in the holding of any land holder the consolidation authorities did not have any jurisdiction to adjudicate upon the matters relating to the disputed land and therefore there is no question of the applicability of Section 49 of the U.P.C.H. Act to the case under consideration. The findings of the learned trial court as well as of the learned first appellate court holding that the suit is barred by Section 49 of the U.P.C.H. Act cannot therefore be sustained and it is held that the suit is not barred by Section 49 of the U.P.C.H. Act. 6. Moreover, I absolutely agree with the learned counsel for the appellant with regard to his contentions that possession of the plaintiffs over the land in suit is proved from the evidence on record undoubtedly for the last thirty years which goes to 1943-44 when the plaintiffs had according to their own version acquired the land from the then Zamindar Smt. Laraiti Kunar for cultivation and as the land had been lying Banjar and Usar, no written lease etc., could be executed but the contract was oral. If these facts about the acquisition of land from the then Zamindar are proved from the evidence on record the plaintiffs are to be held to have acquired rights of hereditary tenants even prior to the Abolition of Zamindari under the U.P. Tenancy Act but if it may be assumed that since no written contract or agreement or lease was signed between the parties, the assertions about taking the land from Zamindar was not to be believed then the cultivatory possession which is undoubtedly proved from the evidence on record will result in the acquisition of rights of hereditary tenant under Section 180 (2) of the U.P. Tenancy Act because the then Zamindar failed to bring a suit for ejectment against the plaintiffs within the prescribed period of limitation under Section 180 of the U.P. Tenancy Act and the tenancy rights were perfected by the plaintiff's accordingly. 7. Now coming to the evidence on record it would be found that in the current khatauni the plaintiffs are recorded in possession over the land in dispute as is evident from the khatauni for 1380 and 1379 Fasli while the land is recorded as Banjar. The plaintiffs-appellants have filed a number of land revenue receipts and also the irrigation slips to show that in the year 1358 F seven of the plots in suits were brought under cultivation and were irrigated and the irrigation slips were issued in the name of plaintiffs Chattar, Angnoo and Prem Shanker along with one Baleshwar and the crops of Chana, Lahi, Sihua, Matar, Jau and Arhar etc. were sown. were sown. Similarly in the year 1360 Fasli seven of the plots in suit were still under cultivation with irrigation by the canal source and the irrigation slips issued shows that crops of Paddy, Chari, Palwa and Pandh etc., were grown. Similar is the position with regard to subsequent years 1372-F, 1373-F, 1374-F, 1375-F, 1376-F and 1377-F which all go to show that the Usar and Banjar land has been brought under by cultivation by and the crops grown were irrigated which is proved from the irrigation slips filed by the plaintiffs. C.H. Form 41 is the comparative table showing the plots in suit having their old corresponding numbers tallying with the numbers mentioned in the irrigation slips. Similarly C.H. Form 18 has also been filed which shows that the land in suit was recorded as Banjar and Usar and also surrounded by the land cutting by the floods of River water. C.H. Form 25 and Form 54 showing that the land was recorded as Banjar and Usar have also been filed. The khasras etc. for 1372-F, 1373-F, 1374-F, 1375-F, 1376-F, 1377-F and 1378-F have also been filed to show that the land in dispute is recorded as Usar and Banjar but has also remained recorded in the name of plaintiffs and others and also to show that the crops were grown over the land. Apart from the documentary evidence on record the oral evidence available can also not be ignored so far as the fact of possession is concerned, the Lekhpal of the circle Sri Padam Singh has been examined on oath who has clearly disclosed in his statement and has admitted that the plaintiff's are actually in the cultivatory possession over the land in suit and they are recorded as tenants of class 4 in revenue records since 1376-F. The Lekhpal has also admitted that the land in suit is under cultivation on the spot. The Lekhpal was examined on behalf of the State and Gaon Sabha as D.W.1. The other witness examined on behalf of the State and Gaon Sabha D.W.2 is Sri Pooran Mal who has disclosed that he had remained Lekhpal of the circle of village Jaitiya for 25 years continuously and prior to him his uncle had remained Lekhpal of the circle for 25 years in the past. The other witness examined on behalf of the State and Gaon Sabha D.W.2 is Sri Pooran Mal who has disclosed that he had remained Lekhpal of the circle of village Jaitiya for 25 years continuously and prior to him his uncle had remained Lekhpal of the circle for 25 years in the past. He has also disclosed that he was also Lekhpal at the time of Abolition of Zamindari and also resigned after the "consolidation operation were over. He has admitted that the land was under the Zamindari of Smt. Laraiti Kunar who had allowed the plaintiffs to cultivate the land much before the Abolition of Zamindari and since then the plaintiffs have continuously been cultivating the land. The Lekhpal has also disclosed that the land in suit was kept out of consolidation scheme. The statement of this witness is very important so far as the fact of possession of the plaintiff is concerned who has stated that the plots in suit were not brought under the consolidation operations and has proved continuous possession of plaintiffs over the suit land from much before the Abolition of Zamindari. The witnesses examined by the plaintiffs include the two erstwhile Pardhans of the village. P.W. 1 is defendant No. 3 Sri Angnoo who has proved that the plaintiffs and he himself have been in cultivatory possession over the land in suit for the last 30 years and the land was acquired from the then Zamindar Smt. Laraiti Kuar prior to Abolition of Zamindari. The other witness it Shobha Ram who has been the first Pradhan elected in the first election and remained Pradhan for a long period since 1951-52 as disclosed by him in his statement. The witness has stated on oath that the land in dispute is absolutely cultivatory land and is also irrigated for the crops grown and the plaintiffs along with defendant Angnoo have been in cultivatory possession over the land for the last 30 years. The witness has also asserted that the plaintiffs have brought the land under cultivation by putting many labour and material because it was Banjar earlier and the witness has clearly disclosed that the land in suit has never been in possession of Gaon Sabha. The witness has also asserted that the plaintiffs have brought the land under cultivation by putting many labour and material because it was Banjar earlier and the witness has clearly disclosed that the land in suit has never been in possession of Gaon Sabha. There is nothing in his statement to create any doubt in the reliability of the witness and has contended that the land was acquired by the plaintiffs from the erstwhile Zamindar about 6 or 7 years prior to Abolition of Zamindari, and then began to cultivate it. The other witness is Nathu Ram who has also been the Pradhan of the village after the term of Sri Shobha Ram. The witness has clearly admitted that the land in suit has been under the cultivatory possession of the plaintiffs along with defendant Angnoo for the last 30 years or 32 years and the land is not Usar and Banjar now on the spot but is being cultivated and irrigated also by canal water. The witness has also stated that the land in suit has never been in the possession of Gaon Sabha. There is nothing in his statement also to create any doubt about his credibility. Thus from the documentary as well as from the oral evidence on record the fact of possession is undoubtedly proved in favour of the plaintiffs for the last 30 to 32 years from much before the Abolition of Zamindari and the only flaw in the evidence appears to be that the names of the plaintiffs are not recorded in the main columns of the khatauni although the land has never been in the possession of the Gaon Sabha. As discussed above if it is presumed for the sake of arguments that the land in suit was occupied by the plaintiffs along with defendant Angnoo prior to Abolition of Zamindari without the consent of the erstwhile Zamindar Smt. Laraiti Kunar, the then Zamindar could bring a suit for ejectment against them under Section 180 of the U.P. Tenancy Act and if that suit was not brought and the plaintiffs were not ejected, they along with the defendant No. 3 acquired rights of hereditary tenant because under the provisions of Section 180 (2) of the U.P. Tenancy Act if no ejectment suit was brought against the person in possession without the consent of the person entitled to admit him to occupy such land, the person in occupation shall become a hereditary tenant of such land. Thus it is proved beyond doubts that the plaintiffs along with defendant No. 3 had acquired rights and had become the hereditary tenant under the provisions of law prevailing prior to Abolition of Zamindari. 8. But presuming again that the occupation of the plaintiffs over the land in suit was not for the period sufficient to perfect their rights of hereditary tenants then after the Abolition of Zamindari a suit under Section 209 of the Act ought to have been brought for their ejectment. Section 209 (b) as it stood prior to amendment of 1976 provided that where the land did not form part of the holding of a bhumidhar, sirdar or asami but was being occupied without the consent of the Gaon Sabha, the person occupying such land was liable to ejectment on the suit to be brought by the Gaon Sabha or by the Collector and limitation provided for such a suit against the unauthorised occupier of land in Appendix III attached under Rule 338 of the U.P.Z.A. & L.R. Rules made under the Act was three years from the date of vesting as it provided that if the person was in unauthorised possession of the land on the date of vesting and the period of limitation for his ejectment specified under the U.P. Tenancy Act, 1939 had not expired, he shall be liable for ejectment within three years from the date of vesting. Now coming to the question that if the plaintiffs were not ejected from the land in suit within three years from the date of vesting what consequences had followed. Now coming to the question that if the plaintiffs were not ejected from the land in suit within three years from the date of vesting what consequences had followed. Section 210 as it stood at that time and relevant to the case provided that if a suit was not brought under Section 209 within the period of limitation, the person taking or retaining possession in any case to which provisions of sub-clause (b) of Section 209 applies shall become a sirdar or asami as if he had been admitted to the possession of the land by the Gaon Sabha. Thus it is clear that the plaintiffs whose occupation of land in suit is proved from before the Abolition of Zamindari and also on the date of vesting and also that the plaintiffs along with defendant Angnoo have not been ejected within the limitation prescribed for either under Section 180 of the U.P. Tenancy Act prior to Abolition of Zamindari or under Section 209 of the Act after the Abolition, the legal consequences have followed conferring upon the plaintiffs and defendant Angnoo sirdaji rights under Section 210 as it stood at the relevant period of limitations i.e., after three years from the date of vesting. I, therefore come to the conclusion that the plaintiffs along with the defendant Angnoo had acquired sirdari rights after the expiry of three years from the date of vesting and subsequently acquired bhumidhari rights by operation of law and the appeal must succeed. 9. In view of the observations made above, the second appeal is allowed, the judgment and decree passed by the trial court on 12-10-76 and by the first appellate court on 28-5-77 are set aside and the suit of the plaintiffs is decreed. Costs easy.