Bhagelu v. Gaon Sabha — 1992 DIGILAW 1303 (ALL)

JUDGMENT Bhairo Prasad, Member. - This second appeal has been filed by Bhagelu under Section 331(4) of U.P. Act No. 1 of 1951 against decree and judgment dated 8.12.1976 passed and Additional Commissioner, Gorakhpur Division, Gorakhpur in Appeal No. 1074/A of 1975 against the decree and judgment of the Sub-Divisional Officer, Lalganj, District Azamgarh dated 31.7.1975, passed in suit No. 7 under Section 202 of Act No. 1 of 1951. 2. In brief the facts of this case are that Gaon Sabha filed the suit under Section 202 of U.P. Act No. 1 of 1951 against Bhalgelu that he is Asami of plot No. 145 area .40, 170 area .39, 171 area .40, 259 area .40 , 260 kha area .511, 262 Kha area .180 and 266 area 3.630 of village Khumhadeori, Pargana Deogaon, Tahsil Lalganj, District Azamgarh. The Gaon Sabha sought ejectment on the ground that Bhagelu appellant-defendant does not behave properly. He create problem at time of irrigation the other land from the disputed pokhri. He also does not pay the land revenue. Bhagelu contested the suit on the ground that he is in possession over the dispute plots since before U.P.Z.A. and L.R. Act. The disputed land is only his means of livelihood. He has become sirdar of the disputed land. He has also taken the plea that no notice under Section 80 of Civil Procedure Code and Section 106 of Uttar Pradesh panchayat Raj Act was issued. The trial court framed 5 issues and after taking the evidence of the parties decreed the suit of the Gaon Sabha on 31.7.1975. Bhagelu filed the appeal before the Additional Commissioner. His appeal has been dismissed by the Additional Commissioner, Gorakhpur Division, vide his decree and judgment dated 8.12.1976, against which the present second appeal has been filed before me. 3. I have hared the learned counsel for the parties and have perused the record. 4. It is admitted by the parties that there has been litigation also between the parties in the consolidation court. The learned counsel for the appellant argued that the learned Deputy Director of Consolidation has held in his judgment in 1967 that the possession of the appellant over the disputed plot was from 17 to 18 years. It means that appellant Bhagelu was in possession over the disputed land before the vesting. The learned counsel for the appellant argued that the learned Deputy Director of Consolidation has held in his judgment in 1967 that the possession of the appellant over the disputed plot was from 17 to 18 years. It means that appellant Bhagelu was in possession over the disputed land before the vesting. The Gaon Sabha has not asserted that the appellant Bhagelu was admitted as Asami after the enforcement of U.P.Z.A. and L.R. Act. No resolution of allotment was also filed in the trial court to this effect, therefore, the circumstances proves fully that the appellant Bahgelu was recorded over the disputed plot before the enforcement of U.P.Z.A and L.R. Act. In that case the duty was on the Gaon Sabha to prove that Bhangelu was one of the class of Asami against which the ejectment suit is not time-barred. 5. Section 202 of U.P.Z.A. and L.R. Act provides that an Asami is liable for ejectment under Section 202 of U.P.Z.A. and L.R. Act on the grounds mentioned in Section 191 and 206, U.P. Act No. 1 of 1951. Section 191 of the Act provides the provisions of the Asami who has become Asami of a bumidhar. If the interest of the bhumidhar is extinguished the right and interest of the Asami will also extinguish. In the present case Bhagelu is not the asami of a bhumidhar, therefore, the provision of this section will not apply in the present suit. Section 206 of the Act provides that the Asami is liable to ejectment from the holding if he uses the land other than the purpose connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming. There is no allegation that the appellant Bhagelu uses the land other than these purpose. Therefore there is no ground under Section 206 of U.P. Act No. 1 of 1951 to eject the appellant. According to plaint allegation of the Gaon Sabha is that bahgelu does not pay the rent. Neither the trial court nor the appellate court has given any finding on this ground whether any rent is in arrears to be recovered from Bhagelu. Sub-Section H of Section 202 of the Act provides that an Asami is liable to ejectment that there is unsatisfied decree of arrears of rent outstanding against him and such decree can be executed by the rejectment. Sub-Section H of Section 202 of the Act provides that an Asami is liable to ejectment that there is unsatisfied decree of arrears of rent outstanding against him and such decree can be executed by the rejectment. There is no unsatisfied decree of arrears of rent outstanding against appellant Bhagelu. In these circumstances of the case mere allegation that Bhagelu has not paid the rent will be a ground for ejectment is not provided under the law. No any other grounds has been pleaded in the pleadings of the Gaon Sabha. As discussed above both the courts has not even given any finding whether there is any arrears of rent left to be paid. Section 200 of U.P.Z.A. and L.R. Act provides that no Asami shall be liable to ejectment from his holding except as provided in this Act. Section 204 of U.P. Act NO. 1 of 1951 also provided that if a suit for ejectment of an Asami of the certain category are not brought within the period prescribed for the ejectment they become non-transferable bhumidhar. The period of limitation under Section 200-H is three years. Under Section 220 of Sub-Section (1) of the Act provides. "Where an asami has been arrears of the whole or any part of the rent of a holding for a period of more than three months, the Gaon Sabha or the landholder, as the case may be, may make and application for an order for payment of the arrears and in default for the ejectment of the asami from the holdings. 6. The Presiding Officer has him self inspected the spot. There is also oral evidence on the record to prove this fact that the disputed land is a Pokhri or tank on the spot. The disputed land was cultivated when the Presiding Officer visited on the spot accept about 15 biswas of the area. In these circumstances of the fact now it is also on fact proved that the land in dispute in total is not a pokhri or tank on the spot. 7. There are 7 plots in dispute. No finding has been recorded as to in which of the plot there is Pokhri. This should have been identified and demarcated on the spot. 7. There are 7 plots in dispute. No finding has been recorded as to in which of the plot there is Pokhri. This should have been identified and demarcated on the spot. Both the courts below ought to have recorded the finding whether the area which is Pokhri under Cultivation Will remain to be Pokhri recorded or it will be a land fit for cultivation and what right will be attributed to the appellant regarding such agricultural land. I do not know whether the disputed plots are recorded as Pokhri by mistake or these plots were Pokhri at the time of the enforcement of U.P.Z.A. and L.R. Act and it subsequently filled up by silt and become fit for cultivation. If there was mistake in the records and the area was in cultivation before the enforcement of U.P.Z.A. and L.R. Act then the appellant will be bhumidhar of that portion of the land. The consolidation authorities although recorded the name of Bhegelu as Asami but has not given any finding whether the dispute land was Pokhri on the spot or cultivable land fit for agriculture purpose. The suit for ejectment of Asami is not barred by Section 49 of the U.P.C.H. Act but the plea can be taken that the consolidation court has not correctly recorded the entry. The entry recorded in the consolidation court can be rebutted. 8. In these circumstances of the case after considering whole aspect of the case I am of the opinion that both the courts below have committed substantial illegality in ejecting the appellant Bhagelu. Therefore this second appeal is allowed and the decree and judgment of both the courts below are set aside.