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1992 DIGILAW 826 (ALL)

Evaz Khan v. State

1992-05-25

BRIJESH KUMAR

body1992
JUDGMENT Brijesh Kumar, Member - This second appeal is directed against the judgment and decree dated 22.8.1985 passed by the Addl. Commissioner, Bareilly Division, Bareilly in Appeal No. 45/128 of 1984-85 reversing the judgment and decree dated 21.5.1984 passed by the S.D.O. Baheri, district Bareilly in a suit u/Sec. 229-B of the U.P. Zamindari Abolition and Land Reforms Act. 2. The facts of the case are that Evaz Khan alias Chhotey Khan and Badloo Khan sons of Mehtab Khan brought a suit against the State of U.P. and the Gaon Sabha under Section 229-B of the Act in respect of plot No. 248/2-3/10 situate in village Simrawa Tehsil Baheri district Bareilly with the contention that Mahtab Khan, father of the plaintiffs was in possession over the plot in dispute. After the death of Sardar Khan, his son Fatehdin came in possession. But the property was initiated by Tufail Ahmad Khan after the death of Fatehdin Khan and Tufail Ahmad Khan was succeeded by the plaintiffs. They perfected their rights of sirdari and bhumidhari. It was also alleged that proceedings u/Sec. 122-B of the Act were initiated by the Tehsildar but the notice was subsequently vacated. Orders in their favour were passed during the consolidation operations but the orders were not corporated and they were not recorded in the revenue papers, It has been further alleged that the plaintiffs were wrongly recorded in Class 4. The cause of action arose when the Gaon Sabha failed to correct the papers. 3. The State of U.P. contested the suit denying the allegations and contending that the suit was barred u/Sec. 49 of the U.P.C.H. Act and that no right accrued to the plaintiffs. On the pleadings of the parties, the learned trial court framed 6 issues and decreed the suit holding that the suit was not barred u/Sec. 49 of the U.P.C.H. Act and that the land in dispute is not the property of the Gaon Sabha. Aggrieved by this decree, the State filed an appeal before the Divisional Commissioner. The learned Addl. Commissioner allowed the appeal and reversing the findings of the learned trial court holding that the plaintiffs are not the recorded tenure-holders and that in view of the U.P. Land Laws (Amendment) Act, 1976, no right accrued to them on the Gaon Sabha land. 4. I have heard the learned counsel for the parties. The learned Addl. Commissioner allowed the appeal and reversing the findings of the learned trial court holding that the plaintiffs are not the recorded tenure-holders and that in view of the U.P. Land Laws (Amendment) Act, 1976, no right accrued to them on the Gaon Sabha land. 4. I have heard the learned counsel for the parties. Sri T.S. Dabas, the learned counsel for the appellant has contended that the plaintiff appellants are recorded in C.H. Form 23. Subsequently, the Gaon Sabha was recorded. Relying on 1980 R.D. 300, the learned counsel has contended that the suit is not barred u/Sec. 49 of the U.P.C.H. Act. The learned D.G.C. (R.) has argued that in the absence of CH-23 and the order of the Consolidation Officer, the suit is barred u/Sec. 49 of the U.P.C.H. Act and that the entries made in the khatauni 1369-71-F are fictitious. 5. I have carefully considered the arguments advanced before me and have also perused the record. The plaintiffs' case is that their fore-fathers have been continuing in possession over the plot in dispute since before the abolition of Zamindari. Subsequently, the land in dispute continued to be in possession of their successors. Let us see how far this contention is correct. Relying on the order dated 26.2.1964 passed by the Consolidation Officer, the learned trial court has held that Fatehdin son of Sardar Khan and Evaz Khan son of Badloo Khan were recorded against the plot in dispute and the rent was also fixed. It also relied on the order of the Tehsildar passed in proceedings u/Sec. 115-D wherein the plaintiffs were found in possession as early as in 1363-F. On this very basis, it has not found the suit barred u/Sec. 49 of the U.P.C.H. Act. The learned Addl. Commissioner has observed that the respondent is recorded in the latest khatauni of 1389-94-F as trespassers of the Gaon Sabha in class 4 and that the order of the Consolidation Officer dated 26.2.1964 is not on the file but has been shown in the khatuani of 1369-71 -F. 6. The learned Addl. Commissioner has fallen into error in rejecting the reference of the order-of the Consolidation Officer dated 26.2.1964 made in the khatauni of 1369-71-F. This khatauni is an authentic document which has been issued from the record-room. I fail to understand why this document and the endorsement made thereon should not be believed. The learned Addl. Commissioner has fallen into error in rejecting the reference of the order-of the Consolidation Officer dated 26.2.1964 made in the khatauni of 1369-71-F. This khatauni is an authentic document which has been issued from the record-room. I fail to understand why this document and the endorsement made thereon should not be believed. The orders passed by the Consolidation Officer shows that Fatehdin son of Sardar Khan and Evaz Khan alias Chhotey Khan sons Badloo Khan and Mehtab Khan were recorded in Class 5. This Class 5 entry has expunged and the amount of land revenue was fixed in CH-7. Ch-7 is prepared under Rule 27-A of the U.P.C.H. Rules and framed u/Sec. 12-A of the U.P.C.H. Act. Rule 27-A (1) provides that the S.O.C. shall cause to be prepared by the Consolidation Lekhpal a statement in CH Form 7 to show the amount of the land revenue payable on new holdings, and apportionment or alteration, if any, in the amount of land revenue on existing holdings, where this may be necessary in view of the orders passed under Section 9-A. CH Form 7 will show the fasli year from which the above changes in land revenue on the affected holdings became due. 7. Section 12-A of the U.P.C.H. Act gives power to the S.O.C. to assess the land revenue on new holdings as a result of the order passed under this Act and also apportionment and alteration of the holdings of the tenure holders. Sub-clause (a) of Section 12-A (1) of the U.P. C.H. Act provides that the S.O.C. will determine the amount of land revenue payable by a tenure holder of the land on which he acquires right as a result of the order passed under this Act. It is quite clear from the above provisions that the consolidation authorities fixed the land revenue in Form CH-7 after the rights and title are determined u/Sec. 9 of the U.P.C.H. Act. It, therefore, follows that the rights and title of the plaintiffs in respect of plot No. 1012 (new No. 248) had already been determined by the consolidation authorities under the U.P.C.H. Act before the land revenue was fixed. They are, therefore, not trespassers. Had the orders of the Consolidation Officer been properly pursued and effectively implemented, the errors subsequently crept in the revenue papers would have been avoided. They are, therefore, not trespassers. Had the orders of the Consolidation Officer been properly pursued and effectively implemented, the errors subsequently crept in the revenue papers would have been avoided. Taking into consideration the entire facts of the case, I am of the view that the suit is not barred by Section 49 of the U.P.C.H. Act. 8. In the result, this appeal succeeds and consequently allowed and the order of the learned Addl. Commissioner is set aside and that of the learned trial court is upheld.