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1992 DIGILAW 1212 (ALL)

Jagannath v. Ram Swaroop

1992-09-07

BHAIRO PRASAD

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JUDGMENT Bhairo Prasad, M. - This second appeal has been filed under Section 331 (4) of U.P. Act No. 1 of 1951 against the order of Addl. Commissioner, Agra Division, Agra dated 28.5.1992 passed in appeal No. 1 of 1991 - Jagannath v. Ram Swarup and others filed against the order of Sub-Divisional Officer, Chhata, district Mathura dated 30.9.91 passed in suit No. 80/85-86/25/91 between Gaon Sabha v. Ram Swarup under Section 161 of U.P. Act No. 1 of 1951. 2. The brief facts of this case are that during consolidation operation plot No. 171 was ear-marked for construction of Gool for the irrigation of plots No. 159, 160, 161 and 162 of village Khanpur, Tahsil Chhata, District Mathura. This Gool was in the east of these plots. Other Gool was also ear-marked in the west of plot Nos. 161, 160, 159 and so many other. The application for exchange was filed by the Opp. parties Ram Swarup and others and Gaon Sabha, that Gool No. 171 which is in the east of these plots do not serve the purpose of irrigation as it is in the low lying area of village. The villagers have, therefore, constructed Gool from plot No. 162 of Ram Swarup and others in the west of these plots. From many years the large number of cultivators are irrigating their fields from this new Gool which is at Kulava No. 3 of the minor of the main canal, therefore, the Gaon Sabha passed a resolution to exchange .10 area of Gool No. 171 from the plot of Ram Swarup measuring 30. The appellant Jagannath opposed this exchange. The trial court, had dismissed the exchange but the appeal was filed and the first appellate court allowed the appeal and remanded the case to the Sub-Divisional Officer that he should personally visit the spot then, consider the convenience of the villagers regarding this exchange and if he is satisfied then he should decide the proceeding afresh again. In compliance of that order of the appellate court the Sub-Divisional Officer Visited the spot and he found that the Gool No. 171 is not in use for irrigating the fields of the villagers. It also, caused damage when the water is taken by cutting the minor from this Gool, therefore, he allowed the exchange by his impugned order. The appeal filed against that order has also dismissed by the Addl. It also, caused damage when the water is taken by cutting the minor from this Gool, therefore, he allowed the exchange by his impugned order. The appeal filed against that order has also dismissed by the Addl. Commissioner vide his order which is challenged in this second appeal. Both the courts have given a very elaborate and detailed judgment considering all points. 3. I have heard the learned counsels for both the parties. Perused the record. 4. The learned counsel for the appellant argued that the Gool is not a land as contemplated under Section 161 of Uttar Pradesh Zamindari Abolition Act, hence the exchange is not possible. 5. The learned counsel for the State argued on behalf of Gaon Sabha that the land which is reserved for the enjoyment of agricultural field is a land. 6. I agree with the contention of: the learned D.G.C. (R.) that the boundary of a field and channel of irrigation Gools left for irrigating the field or land. They are used in connection with the agricultural activities of the field, therefore, they are land, hence there is no force in the contention of the learned counsel for the appellant that the Gool is not land, hence it cannot be exchanged. 7. The learned counsel for the appellant argued that since this land was reserved for irrigation purpose, hence it cannot be exchanged. Plot No. 159 belongs to the appellant Jagannath. He has the facility of irrigating the land from the east Gool as well as from the west Gool both sol is the case of plot Nos. 161 and 160. The tenure-holder of plot No. 161 claimed that he is aggrieved from the exchange as is .15 area has gone in plot No. 162. This is not a lend for opposing the exchange. He also says that he can used his field from both the side but when the Sub-Divisional Officer visited on the spot his field was irrigated from western side of the Gool. Hence the Gool for which the exchange is proposed is also used by this tenure-holder. The appellant only contended in his objection that the exchange is illegal because it will caused the fragmentation of holding. The land which are reserved during the consolidation for public purpose should fulfil the purpose for which they are reserved. Hence the Gool for which the exchange is proposed is also used by this tenure-holder. The appellant only contended in his objection that the exchange is illegal because it will caused the fragmentation of holding. The land which are reserved during the consolidation for public purpose should fulfil the purpose for which they are reserved. When the chaks are carved out jointly it is not seen as where the land should be left for use of the rectified' facility. The mistake jointly appears that the land are left which do not fulfil the purpose. Therefore, the entry which are made in the consolidation can be rebutted and the mistake can be rectified subsequently. The Sub-Divisional Officer has corrected this mistake, therefore, the land exchanged do not violate the principle of fragmentation of holding or the land reserved for public purposes cannot be changed. The learned counsel for the appellant relied on 1971 R.D. page 466. The Hon'ble High Court of Allahabad has held in this decision that the land reserved for abadi purpose cannot be changed. The abadi and which is reserved is a different and than the land which is left for the enjoyment of agricultural facilities. If an abadi land which is reserved is a different land than the land which is left for enjoyment of agricultural facilities. If an abadi land is left by mistake which land always sub-merged during the rainy season and as such is not fit for abadi then the entry can be changed because the land do not serve the purpose in which it has been reserved. In the present proceeding this fact has been abundantly proved and have been held by both the courts below concurrently. In these circumstances of the case that rule will not apply in the circumstances of the case in the present proceeding and appeal. Therefore, there is no force in the contention of the learned counsel for the appellant hereto. Gool No.171 is not connected with any Kulava till now. It is carved out only to irrigate plot Nos. 162, 161, 160 and 159. It does not irrigate plot No. 162. Rather it damage the crops of these plots if after getting the minor water is tried to take to irrigate the cultivators of these plots. Gool No.171 is not connected with any Kulava till now. It is carved out only to irrigate plot Nos. 162, 161, 160 and 159. It does not irrigate plot No. 162. Rather it damage the crops of these plots if after getting the minor water is tried to take to irrigate the cultivators of these plots. The purpose of exchange will provide irrigation facilities to these plots from which side they jointly irrigate as Sub-Divisional Officer had noticed when he visited. 8. In these circumstances of the case, I do not find sufficient force in this appeal and it is accordingly dismissed.