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1991 DIGILAW 1385 (ALL)

Bhajan Lal v. State of Uttar Pradesh

1991-11-13

S.K.LAKHTAKIA

body1991
JUDGMENT S.K. Lakhtakia, Member - These are 5 connected and appeals against the judgment and decree of the Additional Commissioner, Agra Division, Agra dated 31.7.90 allowing the four appeals filed by Nagar Mahapalika and State and dismissing the 5th Appeal filed by present appellant against the judgment and decree of the trial court dated 4.2.89 whereby suit No. 55 was decreed in full whereas suit No.54 was partially decreed. 2. Suit No. 54 was filed by Bhajan Lal and his brothers Ram Khilari and Amar Singh whereas suit No. 55 was filed by Bhajan Lal alone under Section 229-B of U.P. Act No. 1 of 1951 for being declared as Bhumidhar with non-transferable: rights of the disputed plots on the ground that the said land has been continuing in their, possession for a long time and they were in possession on 30.6.75 and they are members of scheduled caste and are agricultural labourers and the land is not covered by the provisions of Section 132 of U.P. Act No. 1 of 1951 and that they, do not possess land more than 3? acres including the disputed land, this, therefore, claimed rights with the help of Section 122-B (4-F) of U.P. Act No. 1 of 1951. It was also alleged that originally this land was situated in village Sarjaipur but by notification it has been brought within the extended limits of Nagar Mahapalika with effect from 8.7.82. 3. The defence was that since the land is situated within the limits of Nagar Palika no rights under Section 122-B (4-F) of U.P. Act No. 1 of 1951 could accrue in favour of plaintiffs. 4. The trial court decreed suit No. 55 as a whole but partly decreed suit No. 54 in respect of plots No. 155, 156, 157 and 158 Land dismissed the suit in respect of plot Nos. 154/1, 149-K, 169 and 184. 5. Feeling aggrieved the Nagar Mahapalika and State filed two separate appeals each against the judgment and decree of the trial court and Bhajan Lal and others also filed appeal in respect of the land about which their suit had partly been dismissed. 6. 154/1, 149-K, 169 and 184. 5. Feeling aggrieved the Nagar Mahapalika and State filed two separate appeals each against the judgment and decree of the trial court and Bhajan Lal and others also filed appeal in respect of the land about which their suit had partly been dismissed. 6. Their learned Additional Commissioner held that since the land lay within the boundary of Nagar Mahapalikam rights under Section 122-B (4-F) could not accrue to the plaintiffs and accordingly he dismissed the plaintiff's appeal and allowed the appeal of the state and nagar Mahapalika, These five appeals have been preferred by the plaintiffs against the judgment and decree of the Additional Commissioner. All the five appeals are being disposed of by a common judgement since the points involved are the same. This order shall govern Second Appeal Nos. 3 to 7 of 1990-91/Agra. 7. Heard the learned counsel for both the parties perused the record. 8. Learned counsel for the appellants contended that on 1.7.52 when U.P.Z.A. & L.R. Act came into force, the disputed land was vested in Gaon Sabha under Section 117 of U.P. Z.A. & L.R. Act and was Banjer and did not fall withing the category of Section 132 of the Act. It was, further argued that the fact that the possession of the plaintiffs have been continuing and that they were in occupation on 30.6.75 is also admitted to the defendants and the other factors that they are members of the Scheduled Caste and are landless agricultural laboureres and that they do not possess land for more than 3? acres including the disputed appeals of Nagar Mahapalika and the State should have been dismissed by the learned Additional Commissioner and the declaration in favour of the plaintiffs could not be denied merely because the land had subsequently been brought withing the precincts of Nagar Mahapalika with effect from 8.7.82. 9. Learned counsel for the respondent contended that even though the plaintiffs are Harijans and they do not possess land more than i.e. 3? acres but it is not proved that they are agricultural labourers, hence they are not entitled to the benefit of provisions of Section 122-B (4-F). It was also contended that the benefit so provided by law cannot be made the basis of declaration and it can be used only as a defence in a proceeding for ejectment against the occupant. acres but it is not proved that they are agricultural labourers, hence they are not entitled to the benefit of provisions of Section 122-B (4-F). It was also contended that the benefit so provided by law cannot be made the basis of declaration and it can be used only as a defence in a proceeding for ejectment against the occupant. It was also argued that no rights under this section can accrue because the land at present lies in the boundary of Nagar Mahapalika. 10. In my opinion the arguments raised on behalf of the appellants are correct. Nagar Mahapalika itself brought suits for ejectment against the plaintiffs in respect of the entire land of both the suits. The copies of the plaint of suit Nos. 7 and 8 of 1970 are on record which show that the possession of the plaintiff's on the entire land of both the suits was admitted to the Nagar Mahapalika as early as in 1970. The other facts that the land is Bahjer and had vested in the Gaon Sabha under Section 117 of the Act are also proved because the land was brought within the extended boundary of the Nagar Mahapalika Only on 8.7.82 by a Notification of the U.P. Government. So on 30.6.75 the land belonged to the Gaon Sabha and, therefore, rights could be claimed thereon under Section 122-B (4-F) of the Act if the conditions as mentioned therein were fulfilled. The subsequent extention of the boundary of the Nagar Mahapalika would, therefore, not affect the rights of the occupation if other conditions were satisfied and they were in possession on 30.6.75. The finding of the learned Additional Commissioner that no rights could accrue to the occupation because the land was brought within the limits of Nagar Mahapalika on 8.7.82 is, therefore, obviously against the provisions of the Act and the spirit of Section 122-B (4-F) of the Act. Therefore, his finding cannot be sustained and has to be reversed. 11. It is proved from the record that the plaintiffs are members of Scheduled Caste and they do not have land more than 3? acres and that the land was Banjer. They have clearly stated that they are agricultural labourers. Therefore, his finding cannot be sustained and has to be reversed. 11. It is proved from the record that the plaintiffs are members of Scheduled Caste and they do not have land more than 3? acres and that the land was Banjer. They have clearly stated that they are agricultural labourers. There is no ground to disbelieve them on this point because obviously they are engaged in agriculture and since the land held by them is meagre, hence it cannot be doubted that they are agricultural labourers. The trial court had, therefore, come to a correct conclusion and had rightly decreed suit No.54. As regards suit No. 55 the trial court did not arrive at a correct finding and it incorrectly dismissed the suit in respect of same plots even though the possession thereon had been admitted by the Nagar Mahapalika in the previously instituted suits under Section 209 of U.P. Act No. 1 of 1951. The suit No. 55 also, therefore, deserves to be decreed in full, hence the judgment and decree of the trial court deserve to be modified as well. 12. As regards the argument of the learned counsel for the respondent that the provisions of Section 122-B (4-F) can only be used in defence and no suit for declaration can be brought on the basis of the same, I do not find any force therein. This section clearly provides that by virtue of the possession of the occupant on 30.6.75 and the other conditions also being fulfilled the occupant has to be deemed to be a Bhumidhar with non-transferable rights and he cannot be ejected. This provision is, therefore, self-sufficient to permit the occupant to get himself declared as Bhumidhar with non-transferable rights if he meets all the requirements of Section 122-B (4-F). The occupant can, therefore, very well bring a suit for declaration and it is wrong that the provisions can be used only for the purposes of defence. 13. In the result these appeals succeed; and are allowed. The impugned judgment and decree passed by the learned Additional Commissioner are set aside. The judgment and decree of the trial court in respect of suit No. 55 is also modified and both the suits No. 54 and 55 are decreed in their entirety and the plaintiffs are declared Bhumidhars with non-transferable rights of the respective entire land in dispute.