Jagir Singh v. Sohan Singh — 1992 DIGILAW 825 (ALL)

JUDGMENT Brijesh Kumar, M. - This second appeal is directed against the judgment and decree dated 8.8.1975 passed by the Addl. Commissioner, Bareilly Division, Bareilly in appeal No. 80 of 1972 preferred by the defendant and appeal No. 84 of 1972 preferred by the plaintiff, setting aside the judgment and decree of the learned trial court dated 7.4.1972. 2. The facts of the case are that Sohan Singh and others brought a suit under Section 209 of the U.P. Zamindari Abolition and Land Reforms Act against Jagir Singh in respect of plot Nos. 63/0.14, 64/0.17, 65/0.80, 66/0.17, 67/0.32, 68/0.31, 69/0.18, 70/0.16, 71/0.17, 72/0.23, 73/7.00, 73/2/8.80, 76/0.87, 77/2/0.30, 80/0.82. 81/0.65, 82/1.03, situate in village Dandaul, pergana Puraripur District Pilibhit with the allegation that they had purchased the suit plots and some other plots through a registered sale-deed from Neel Kanth Brijendra Narain, Thaneshwar 'Narain and Guru Narain Singh sons of Nilkanth and Laxmi Narain Singh son of Baij Nath Singh and Gaya Prasad minor son of Sri Devendra Narain Singh u/g Smt. Malti Devi mother. Mutation in their favour was also effected. The defendant Jagir Singh forcibly occupied the suit plots without the consent and permission of the plaintiffs in the month of Agahavn (15.11.1972) and sowed rabi crops therein. After harvesting rabi crops, he sowed paddy which was still standing. This unauthorised occupation of the suit plots by the defendant caused them loss of Rs. 1,500/- in respect of rabi crop only. The cause of action rose when the defendant Jagir Singh refused to vacate his unauthorised occupation and to pay damages. A prayer was, therefore, made to eject the defendant Jagir Singh from the land in dispute and also direct him to pay damages amounting to Rs. 1,500/- for the rabi crop. 3. The defendant Jagir Singh denied the allegations in his written statement. His case is that the plaintiffs are co-bhumidhars of the land in dispute. When Nilkanth deserted the village and his whereabouts were not traceable for the last 15 years, the interest of Nilkanth, if any, has already been extinguished. It has been further alleged that Smt. Maheshwari and others did not get the bhumidhar sanad. He claims to be in possession for the last 15 years. On the pleadings of the parties, the learned trial court framed 8 issues and decreed the suit in respect of plot Nos. It has been further alleged that Smt. Maheshwari and others did not get the bhumidhar sanad. He claims to be in possession for the last 15 years. On the pleadings of the parties, the learned trial court framed 8 issues and decreed the suit in respect of plot Nos. 63, 64, 65, 66, 76, 77/2 and passed orders for ejectment and payment of damages. Aggrieved by this decree, both the plaintiffs and the defendant filed first appeals before the Divisional Commissioner. The learned Addl. Commissioner allowed the appeal for the plaintiff and dismissed the defendants appeal. 4. I have heard the learned counsel for the parties. The contention of Sri T.S. Dabas, learned counsel for the appellant is that the plaintiffs have never been in possession and that the possession was never transferred to them. They have also not been mutated even today. His second contention is that the appellant has given link evidence to prove the broken entries. His last submission is that there was no notice to the State u/s 80 C.P.C. nor was any issue framed though a plea was raised in the written statement. Sri Shitla Prasad learned counsel for the respondent has contended that the plea of maintainability of the suit should have been taken at the earliest stage and if the plea was not raised at the appropriate stage, it is presumed to have been waived. His second contention is that after the death of Nilkanth, the plaintiffs purchased the land from the recorded tenants. Since Nilkanth was untraceable and bhumidhari sanad was issued in favour' of his wife Smt. Maheshwari Devi, she being bhumidhar since 1373-74 F had full right to transfer the property. He has further argued that there is no reference of PA-10, no proof of continuous possession and no ingredients of adverse possession proved. On the contrary, the sale deed and the payment of consideration is proved. 5. I have carefully considered the arguments advanced before me and have also perused the record. Admittedly, Nilkanth and others were sirdars of the land in dispute. The question for consideration is whether the recorded tenant Nilkanth alleged to be FAKIR for the last 15 years had lost his interest in the land in dispute. Section 186 of the Act deals with the abandonment. Admittedly, Nilkanth and others were sirdars of the land in dispute. The question for consideration is whether the recorded tenant Nilkanth alleged to be FAKIR for the last 15 years had lost his interest in the land in dispute. Section 186 of the Act deals with the abandonment. It reads as under: (1) "Where a bhumidhar with non-transferable rights (other than a minor, linatic or idiot) or asami has not used his holding for a purpose connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming for two consecutive agricultural years, the Tahsildar may on the application of the Gaon Sabha of the land holder or on facts coming to his notice otherwise, issue a notice to such bhumidhar with non-transferable rights or asami, as the case may be, to show cause why the holding be not treated as abandoned. (2) The application shall contain such particulars as may be prescribed. (3) If the Tehsildar finds that the application has been duly made he shall cause to be served on the bhumidhar with non-transferable rights or the asami or publish in the manner prescribed a notice in the form to be prescribed requiring him to appear and show cause on a date to be fixed why the holding be not held as abandoned. (4) If the bhumidhar with non-transferable rights or the asami does not appear in answer to the notice or appears but does not contest it, the Tehsildar shall declare the holding as abandoned and thereupon except as provided in Section 171, the holding shall be deemed to be vacant land. Provided that no declaration under this sub-section shall be made in respect of a holding or any part thereof, if the same has been mortgaged by the bhumidhar with non-transferable rights under sub-section (2) of Section 153 and the mortgage has not been fully redeemed, in which case the Tahsildar shall move the Collector for the realisation of the loan in such manner as may be prescribed. (5) If the bhumidhar with non-transferable rights or asami appears to contest the notice, the Tehsildar shall drop the proceedings". 6. The procedure laid down above have not been followed, though there is a reference of the copy of the report dated 3.4.65 made by the Naib-Tehsildar showing that there was no cultivation over the disputed plots for the last 4 years. 6. The procedure laid down above have not been followed, though there is a reference of the copy of the report dated 3.4.65 made by the Naib-Tehsildar showing that there was no cultivation over the disputed plots for the last 4 years. This report does not meet the requirements of the law. Section 190 of the Act deals with the extinction of the interest of the bhumidhars with non-transferable rights. It provides that - (1) "Subject to the provisions of Section 172, the interest of a bhumidhar with non-transferable rights in a holding or any part thereof shall be extinguished- (a) when he dies having no heir entitled to inherit in accordance with the provisions of this Act: (b) when the holding has been declared as abandoned in accordance with the provisions of Section 186. (c) when he surrenders his holding or part thereof; (d) when the holding or part thereof has been transferred, let out or used in contravention of the provisions of this Act: (e) when the land comprised in the holding has been acquired under any law for the time being in force relating to the acquisition of land; (f) when he has been ejected in accordance with the provisions of this Act; or (g) when he has been deprived of possession and his right to recover possession is barred by limitation." 7. It appears from the record that Nilkanth and his wife Smt. Maheshwari Devi and others were sirdars as the khatauni 1374-76 indicates. Having been untraceable for more than 7 years, Nilkanth appears to have met with civil death. In the circumstances, Smt. Maheshwari Devi made an application to the Tehsildar/Asstt. Collector 1st class Puranpur and the Tehsildar passed the order for granting the sanad on 24.7.68. The Assistant Collector 1st Class had made it Class in his order (paper No. 51/5) that the recorded tenant have deposited 10 times rent. Once the requisite amount of the land revenue has been deposited and the orders for issuance of the sanad have been passed, the actual issuance of the sanand is a mere official formality. Where a sirdar after having deposited the requisite amount of the rent and has been ordered to be issued a sanand, he or she becomes bhumidhar in the eye of law irrespective of the fact whether any sanand has been actually issued to him or her or not. Where a sirdar after having deposited the requisite amount of the rent and has been ordered to be issued a sanand, he or she becomes bhumidhar in the eye of law irrespective of the fact whether any sanand has been actually issued to him or her or not. I do not find any force in the contention of the learned counsel for the appellant that the sanad was never issued in favour of the vendors. This being the legal position, Smt. Maheshwari Devi and other recorded tenants had a right to transfer the property. 8. The next question is whether the defendant appellant's case of adverse possession is proved. The learned Addl. Commissioner has observed that the plea of adverse possession of the defendant for the last 15 years is not substantiated. Had he been in continuous possession, the naib-tehsildar would not have reported on 30.4.75 i.e. in 1372 F that the land was lying uncultivated for the last 4 years. The learned Additional Commissioner finds that this fact is substantiated by the khatauni 1367, 1368, 1371 and 1372F. The learned court below also finds that the name of the defendant appellant was recorded in the khatauni of 1369-F for the first time over 10 plots. But there being no reference of PA-10, the entries were not in accordance with law. He further finds that the name of the defendant appeared in the succeeding khasra 1370, 1371 and 1372-F and his name was recorded in possession and he was recorded in remarks column of 1373-F under the order dated 2.11.63 passed by the S.K. The court below thus finds the defendant appellant in possession from 1373-F. The learned Commissioner has not also placed reliance on the rent receipts which were in the name of Smt. Maheshwari Devi and others. He also finds that they also do not show that they relate to the disputed land. As regards the oral evidence, he has rejected the testimony of the defence witnesses. He ultimately came to the conclusion that adverse possession of the defendant has not been so old as to mature his sirdari rights especially when the suit was filed on 21.11.69 i.e. 1377-F. This is a finding of fact which is not to be disturbed in second appeal. 9. He ultimately came to the conclusion that adverse possession of the defendant has not been so old as to mature his sirdari rights especially when the suit was filed on 21.11.69 i.e. 1377-F. This is a finding of fact which is not to be disturbed in second appeal. 9. Much stress has been laid on the fact that the suit is not maintainable as no notice u/s 80 C.P.C. was given to the State. The State Government is a necessary party to a suit filed u/s 209 of the Act. In the instant case, the State has been impleaded as necessary party. However, it is well settled that an objection against the notice u/s 80 C.P.C. can only be raised by the State and not by a third party (Popendra Singh v. Jaipal Singh 1983 R.D. 342. There are a number of rulings holding that the plea of want of notice is not open to a third party as the State can waive the plea by not taking this plea in its written statement. 10. In the result, this appeal fails and is consequently dismissed.