Gaon Sabha v. Khairati — 1992 DIGILAW 302 (ALL)

JUDGMENT Bhairo Prasad, Member. - This reference has been made by the Additional Commissioner Moradabad vide his recommendation dated 30.1.1989 under Section 333-A of U.P.Z.A. & L.R. Act. 2. Brief facts of the case are that Khairati and twenty-four others filed a suit before Assistant Collector 1st Class, Thnurdwara Moradabad under Section 22-B of U.P. Act No. 1 of 1951 for declaration of their right. They have claimed that the suit plots were allotted to them thirty years ago. They were resident of village Daulatpur Tiqari. That village was submerged in flood and was washed away by river Ram Ganga. They were then rehabilitated in village Bhagiawala plots were allotted to them. Hence they are now non-transferable bhumidhar of the suit plots. 3. The suit was contested by the Gaon Sabha on the ground that the plaintiffs have not acquired non-transferable bhumidhari rights over the dispute plots. 4. The learned trial court after taking the evidence decided vide its judgment dated 12.3.1987 that the plaintiff has become non-transferable bhumidhar of the suit plots and decreed the suit. 5. Against the decree and judgment Gaon Sabha preferred a revision before the Additional Commissioner under Section 333-A of U.P. Act No. 1 of 1951. 6. The learned Additional Commissioner has made this reference with the recommendation that the judgment and decree of the trial court should be set aside that the plaintiff could not be declared bhumidhars under Section 229-B of U.P. Act No. 1 of 1951. 7. Heard the learned counsel for both the parties. Perused the record. 8. The recommendation of the learned Additional Commissioner is that the patta had not been proved that it was executed. The trial court finding that the plaintiffs are members of scheduled caste and are agricultural labourers is also against the fact. Plaintiffs Khairati is Mohammaden and some of them are members of backward community. He also recommended that the evidence was not properly looked into by the trial court and the order was passed on surmises and presumption. 9. Before me the learned counsel for the opposite party argued that the Addl. Commissioner had exercised the jurisdiction of the first appellate court, after admitting the revision. The appeal was time-barred. Then the State Government filed the revision. Therefore, in the revision only legal points should have been considered and not the facts. 9. Before me the learned counsel for the opposite party argued that the Addl. Commissioner had exercised the jurisdiction of the first appellate court, after admitting the revision. The appeal was time-barred. Then the State Government filed the revision. Therefore, in the revision only legal points should have been considered and not the facts. The learned Additional Commissioner has considered the facts and have concluded his own findings. 10. The contention of the learned counsel for the opposite party is Correct. The Addl. Commissioner has scrutinised the evidence and not given its own finding then recommended the revision to be accepted. A perusal of the record shows that a proceeding under Rule 115-D of U.P. Act No. 1 of 1951 was started in 1971 against the opposite parties after notice they appeared and pleaded that the land was allotted to them after their village was washed away in flood of river Ramganga. The disputed land was then allotted to them by Gaon Sabha. The Tahsildar had dropped the proceeding but again in 1973 a proceeding under Section 122-B was also started against them they again contested their claim. The Tahsildar/Assistant Collector on 7.11.1973 again dropped the proceeding and recommended to the S.D.O. that they should be recorded sirdar in view of their right and claim over the dispute plot. The Sub-Divisional Officer rejected that report that the proceeding should be dropped but they could not be declared sirdars in that proceeding. After some time in 1984 again proceeding started under Section 122-B(4) of U.P. Act No. 1 of 1951. The opposite parties appeared again, they pleaded that the land was allotted to them and they have become non-transferable bhumidhars. The proceedings were dropped. The copy of the order of Tahsildar-Assistant Collector dated 7.11.1973 and 2.7.1984 is on the record. There is also C.H. Form 45. There was consolidation in the village and the plaintiffs and their ancestors were recorded in class 4 with the title that the Asami in possession under Section 13(3) of U.P. Z.A and L.R. Act. This C.H. Form was prepared in 1375 Fasli. The judgment of the Tehsildar/Assistant Collector dated 7.11.1973 also shows that the dispute land was forest land and it was released by Notification No. 3024/X15-176/54 dated 16.11.1954. This fully proves the claim of the opposite parties that the land was allotted to them. This C.H. Form was prepared in 1375 Fasli. The judgment of the Tehsildar/Assistant Collector dated 7.11.1973 also shows that the dispute land was forest land and it was released by Notification No. 3024/X15-176/54 dated 16.11.1954. This fully proves the claim of the opposite parties that the land was allotted to them. The entry of C.H. form 45 is not an entry of adverse possession but it is an entry or right and title of a particular nature over the Government and Gaon Sabha land. In this C.H. Form 45 the opposite parties are recorded in a joint Khata NO. 125. 11. The Asami under Section 13(3) of U.P. Act No. 1 of 1951 were liable to be ejected after the terms of the lease to be expired within three years. They had not been ejected after the term of the lease to be expired within three years. They had not been ejected. Three proceeding against them for ejected were started, therefore, they had acquired the rights and now they are not liable to be ejected. 12. There is pleading of the plaintiffs-opposite parties that they are members of scheduled castes and agricultural labourers. No such pleading was taken by the State Government against them. If there is no pleading how the learned Addl. Commissioner came to different conclusion is not known. While making the reference he should have specifically mentioned on what ground his conclusion was. The copy of the judgments of the proceeding under Sections 122-B of the Act fully proves that the land was allotted to them. It is on account of the fact that they lost the patta in fire. They are jointly recorded, therefore, there was only one patta. The patta must have been executed hurriedly because there was urgency to settle them being flood victims. 13. The suits are decided on pleadings of the parties and evidence. There is no evidence that the land was of public utility after the release from the forest department. The land must have been released from the forest department to settle the flood victims. In consolidation operation to the entry in their favour also indicates this fact. They have claimed only a limited right over the dispute plots. The right of the State Government and Gaon Sabha will exist. They away claims that they are allottees of the Government and Gaon Sabha. In consolidation operation to the entry in their favour also indicates this fact. They have claimed only a limited right over the dispute plots. The right of the State Government and Gaon Sabha will exist. They away claims that they are allottees of the Government and Gaon Sabha. They have never denied the right and title of the Gaon Sabha. In these circumstances their claim and title is proved. Their claim was also proved during the consolidation operation. The harrassment against the opposite party was on account or fact that they were recorded as a Clause 4 No body cared to lead into the whole heading of that clause under which they were categorised during the consolidation proceedings. 14. In these circumstances claim of the opposite parties is proved beyond any doubt. The learned trial court was right in decreeing the suit of the plaintiffs. The learned Addl. Commissioner has drawn wrong inference from the evidence. In these circumstances the revision is not accepted and it is accordingly dismissed and the judgment and decree of the trial court is confirmed.