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1991 DIGILAW 1555 (ALL)

Sher Ali v. State

1991-12-23

BRIJESH KUMAR

body1991
JUDGMENT Brijesh Kumar, Member - This second appeal is directed against the decree dated 2.7.77 passed by the Additional Commissioner, Lucknow Division, Lucknow, dismissing the appeal No. 188 of 1975-76 and confirming the decree dated 28.8.76 passed by the Assistant Collector 1st Class Rai Bareli, dismissing the suit No. 13/144 of 1975-76. 2. The facts of the case are that Sher Ali, Hashim Ali minor under the guardianship of his mother Khaliqunnissa and Smt. Khaliqunnissa widow of Nawab Ali filed a suit u/s 229-B of the Act for declaration of their title in respect of plot Nos. 1598, 1599, 1600, 1602, 1608, 1609, 1610, 1611 and 1615. His case is that his father Asghar Ali alias Dulli had obtained plot Nos. 1555, 1556, 1557, 1559, 1564, 1565 and 1566 on a patta on 4.7.1904 for a period of seven years. The lease holder Asghar All came in possession on the strength of the patta and continued to cultivate the land and pay rent to the Nazul Department. During settlement, these numbers were changed and the new numbers were given. The new numbers are given above. In 1939, Asghar Ali died. Upon his death, the plaintiffs inherited the property, came in possession, had all along been cultivating and paying rent to the Nazul Department. Despite their continuous possession and cultivation of the land, the defendants 2 and 3 were bent upon to eject them from the land in dispute. In persuance of their design, they have leased out plot No. 1611/1 and 1609 in favour of the defendant Bindeshwari and the defendant No. 6 Brij Raj Singh who threatened to interfere with the peaceful possession of the plaintiffs. The defendant No. 5 has already started laying foundation of plot No. 1611. This move on the part of the defendant necessitated filing of the suit. 3. The State contested the suit through collector Rai Bareli and filed written statement denying the allegations. Its contention is that Asghar Ali was the lease holder of the land in dispute for a period of seven years from 15.10.27. The lease expired on 14.10.34. After the expiry of the lease, Asghar Ali or his heirs took no steps for the renewal of the lease. For the first time, Nawab Ali, Sher Ali' and Anwar Ali moved an application for the renewal on 12.8.1959 in respect of plot No.. 155 area 6-17-16. The lease expired on 14.10.34. After the expiry of the lease, Asghar Ali or his heirs took no steps for the renewal of the lease. For the first time, Nawab Ali, Sher Ali' and Anwar Ali moved an application for the renewal on 12.8.1959 in respect of plot No.. 155 area 6-17-16. The application was rejected on 9.11.67 by the Collector and the possession was taken over by the tehsildar under the orders of the Collector on 5.1.68. Since this date, the land is in possession of the Nazul Department. After the possession was taken over, some portion of this plot was leased out to the defendant No. 6 Brij Raj Singh for a period of 30 years on an annual rent of Rs. 105/- and some portion was leased out in favour of the defendant No. 5 Bindeshwari Prasad for a period of 30 years on an annual rent of Rs. 20/- for the construction of house. The remaining area of the disputed land is still in possession of the Nazul Department. 4. The defendant Bindeshwari Prasad and Brij Raj Singh also contested the suit. The defendant Bindeshari Prasad says that plot No. 1611/1 (M) was leased out to him on 7.6.69 over which he got constructed a pucca house with shops and a boundary. Similar plea was taken by the defendant Brij Raj Singh. He has stated that plot No. 1600 area 1-1-0 was leased out to him for the construction of house. 5. The learned trial court dismissed the suit on 28.8.76 holding that no sirdari rights could accrue on the Nazul land. An appeal against this order was also dismissed on 2.7.77 by the learned Addl. Commissioner. 6. I have heard the learned counsel for the appellant and the learned D.G.C. (R). Sri Hari Shanker, learned counsel for the appellant has contended that the appellant is recorded tenure-holder and has been in possession since 1904 and even if he did not acquire the rights of a sirdar, he would still be an asami and cannot be ejected by process of law. The respondent has no right to super impose new leasees without first taking legal steps to terminate his existing tenancy. In support of his arguments, he has placed reliance on 1945 A.W.R. and 1988 R.D. 56. The respondent has no right to super impose new leasees without first taking legal steps to terminate his existing tenancy. In support of his arguments, he has placed reliance on 1945 A.W.R. and 1988 R.D. 56. Justifying the findings of the courts below, the learned D.G.C. (R) has contended that once the lease is not renewed, the right would automatically extinguish. 7. I find sufficient force in the contention of the learned D.G.C. (R). The lease had expired and no steps for its renewal was taken for a long time. When subsequently approached, the lease was not renewed. Where a lease is cancelled or not renewed, the natural corollary is that the lease holder ceases to be the holder of the land and is liable to ejectment. The rulings cited by the learned counsel for the-* appellant are not of any help to him. 8. In the result, this appeal fails and is consequently dismissed.