Panch Mukhi Devi v. Shanti Devi — 1991 DIGILAW 462 (ALL)

JUDGMENT D.D. Verma, Member. - This is a second appeal against the judgment and decree dated 28-1-1984 passed by the learned Additional Commissioner, Faizabad Division, Faizabad in appeals filed against the judgment and decree dated 30-5-1981 passed by the trial court in a suit under Section 229-B/209 of the U.P.Z.A. and L.R. Act. 2. Briefly stated the facts of the case are that Smt. Shanti Devi and Ram Piyari Devi instituted a suit under Section 229-B/209 of the U.P.Z.A. and L.R. Act for declaration of their rights and title and prayed for ejectment of the defendants from the suit land, if found, in possession. It was alleged on behalf of the plaintiffs that the disputed plot was situated within the limits of Nagarpalika and was Kastkari of Baboo Ganpat Sahai, that after his death his heir Raghunath Sahai acquired bhumidhari rights and executed a sale deed in favour of the plaintiffs on 6-12-1969, that a mutation case was filed by the plaintiffs to which the defendants filed objection, that proceedings under Section 145 Cr.P.C. were also initiated which unfortunately terminated against the plaintiffs, that a room was constructed in 1955-56 on the disputed land and a SHIV LING was put up in front of this room. It was further alleged that a part of the disputed land was occupied illegally by one Ram Narain by putting coal etc. Ram Narain subsequently left the plot. It was also alleged that one Gopi Nath started to use a portion of the disputed land for storing BHUSA without permission of vendor Raghunath Sahai and afterwards Raghunath Sahai started charging Rs. 15/- per month as rent from him and that defendants or Panch Mukhi Devi temple had nothing to do with the land in question. The defendants denied the title and possession of Ragunath Sahai and avered that there was a litigation concerning demarcation between Baboo Raghunath Sahai and Panch Mukhi Devi temple in which the land in question was found to be the property of the temple and Baboo Raghunath Sahai got his name collusively entered over the property of the temple. They alleged that the land in question was not a part of khasra plot no. They alleged that the land in question was not a part of khasra plot no. 660 and that Raghunath Sahai was never in possession and could not validly transfer any rights to the plaintiffs, that Ram Narain was allowed by Panch Mukhi Devi to keep coal on the land on payment of rent, that similarly Ram Sundar was allowed to store BHUSA on payment of rent and that possession of Panch Mukhi has been found in 145 Cr.P.C. case. The trial court framed 6 issues out of which one was to the effect whether the land in question was used for agriculture, horticulture, pisciculture or animal husbandary? A perusal of the judgment of the trial court shows that a reference was made to Asstt. Collector-In-charge of the Sub-Division under Section 331-A of the U.P.Z.A. and L.R. Act on 10-9-1971 (paper No. 139). The S.D.O. Sadar Pratapgarh by his order dated 30-12-1971 held that the land in question was not used for agriculture or purposes connected with agriculture. The trial court, however, partially decreed the suit for an area of 0-2-2 in plot no. 660. Two appeals were filed before the learned Addl. Commissioner, one by Smt. Shanti Devi and other by Rati Bhan Singh and others, defendants in the trial court. The learned Addl. Commissioner allowed the appeal of Smt. Shanti Devi thereby decreeing the suit for an entire Toor area of 0-4-0 of land of plot no. 660. He dismissed the appeal of Rati Bhan and others. Panch Mukhi Devi temple and Sri Baboo Lal Srivastava, who were appellants nos. 3 and 4 in appeal no. 115 before the learned Addl. Commissioner have filled the present second appeal before the Board and they have arrayed Rati Bhan Singh and Satya Narain Singh who were appellants no. 1 and 2 in appeal before the learned Addl. Commissioner, as respondents nos. 3 and 4 before the Board. 3. The second appeal has been filed on the grounds that the land in question was Abadi plot and not a land as defined under Section 3(14) of the U.P.Z.A. and L.R. Act, that the learned Addl. Commissioner has misquoted the finding of the S.D.O., to decide the land as being one not being used for purposes other than agriculture horticulture etc., that spot verification report dated 5-5-1978 prepared by the Asstt. Commissioner has misquoted the finding of the S.D.O., to decide the land as being one not being used for purposes other than agriculture horticulture etc., that spot verification report dated 5-5-1978 prepared by the Asstt. S.D.O. Patti was wrongly relied upon, that the land in dispute is not identifiable on the spot and that the learned Addl. Commissioners findings are not based on the consideration of evidence on record and that no finding was recorded by the courts below on the issue of Raghunath Sahai being Karpardas of Panch Mukhi Devi etc. 4. Long and detailed arguments were made by the learned counsels of both the sides. I have heard them attentively and have also gone through the records carefully. One of the main objections raised by the learned counsel for the defendant-respondents is that only the findings of fact have been questioned in the second appeal and that there were no substantive questions of law involved. I have gone through the memo of appeal and also on the basis of the arguments put forth by the learned counsels. I feel that only one substantive points of law is involved in this case and i.e. whether the property in dispute is an Abadi plot and if so, its consequent affect on the present case? All other points raised by the learned counsel for the appellants in their arguments as well as in their memo of appeal are findings of fact which could not be questioned at the stage of second appeal. 5. The question of disputed property being an Abadi or not has, for some unexplained reasons, been given a low priority by both the lower courts. While the trial court has only made a passing reference to it in its judgment, the lower appellate court has misquoted the finding itself of the S.D.O.-in-charge of the Sub-Division. S.D.O. Sardar Sri Nathoo Singh, on a reference from the trial court to him under Section 331-A had held on 30-12-1971 that the plot in question was not being used for purposes of agriculture, pisciculture, animal husbandary and poultry farming etc. The learned Addl. S.D.O. Sardar Sri Nathoo Singh, on a reference from the trial court to him under Section 331-A had held on 30-12-1971 that the plot in question was not being used for purposes of agriculture, pisciculture, animal husbandary and poultry farming etc. The learned Addl. Commissioner in his judgment quoted this finding as follows : "The learned S.D.O. in bis findings dated 30-12-1971 had held that the land in suit has been under the use for the purposes other than agriculture, horticulture, animal husbandary etc., and it is land within the definition of the U.P.Z.A. and L.R. Act." It is thus obvious that the learned Addl. Commissioner has misread the finding of the S.D.O. Sadar Pratapgarh and consequently has come to wrong conclusions. It may be pointed out here that the finding of the Asstt. Collector-In-charge of the Sub-Division, i.e. S.D.O. Sadar in this case is final as far as trial court trying the case under Section 229-B is concerned. This conclusion is derived clearly from a reading of sub-section 3 of Section 331-A. Also under this sub-section such finding of the Asstt. Collector-In-charge of the Sub-Division has been deemed to be a finding of the trial court for the purposes of appeal. Thus it becomes abundantly clear that the trial court had to base its final decision treating the land to be a nan-agricultural land, not covered under Section 3(14) of the U.P.Z.A. and L.R. Act. Once this position is accepted the jurisdiction of the trial court ceases. It is then upto the parties to approach the competent court for proper relief. 6. To this finding of the S.D.O. Sadar Pratapgarh of land being non-agricultural the only point raised by the respondent before this court was that since BHUSA was admittedly being kept on this land and BHUSA is used for agricultural purposes, the plot should be treated to be one being used for agriculture purposes. The respondents themselves in the trial court have stated that it was given to Ram Sundar for purposes of sale and purchase of BHUSA. The sale and purchase of BHUSA. The sale and purchase of Bhusa is not an activity which can be termed as agriculture. In the result the finding of the S.D.O. Sadar Pratapgarh dated 30-12-1971 stands. 7. The respondents themselves in the trial court have stated that it was given to Ram Sundar for purposes of sale and purchase of BHUSA. The sale and purchase of BHUSA. The sale and purchase of Bhusa is not an activity which can be termed as agriculture. In the result the finding of the S.D.O. Sadar Pratapgarh dated 30-12-1971 stands. 7. In view of the above discussions I allow the second appeal, set aside the judgment and decree of the trial court passed on 30-5-1981 and also the judgment and decree passed by the learned Additional Commissioner on 28-1-1984.