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2007 DIGILAW 230 (UTT)

ALAM SINGH v. BISHAN SINGH

2007-05-01

PRAFULLA C.PANT

body2007
JUDGMENT Hon’ble Prafulla C. Pant, J. This second appeal, preferred under Section 100 of the Code of Civil Procedure, 1908, is directed against the judgment and decree dated 05.11.1981, passed by learned District Judge, Chamoli, in Civil Appeal No. 07 of 1981, whereby the judgment and decree dated 16.06.1981, passed by Munsif, Karanprayag, in Civil Suit No. 51 of 1972, dismissing the suit, is affirmed, and the appeal is dismissed. 2. Heard learned counsel for the parties and perused the papers on record. 3. Brief facts of the case are that plaintiffs (present appellants) who are residents of village Malla Kaliyana, Patti Lohba, Tehsil Karanprayag, District Chamoli, instituted a suit in 1972, under Section 11 of the Kumaun Nayabad and Waste Lands Act, 1948 (U.P. Act No. XXXII of 1948) [now repealed during the pendency of suit in 1977] against the grant of Nayabad over plot No. 243 to the defendants (present respondents) and sought declaration that the plaintiffs grazing right and collecting pine needles (leaves) should not be interfered by the defendants, who are residents of village Talli Kaliyana, Patti Lohba, Tehsil Karanprayag, District Chamoli. It is pleaded in the plaint that the plaintiffs and other residents of their village have grazing right and the right to collect the pine needles from plot No. 243, measuring area 10 Nalis. It is further pleaded that the Nayabad grant No. 980 of 1970-71 was given to the defendants, vide order dated 28.01.1972, by the Commissioner, Pauri Garhwal. The plaintiffs’ case is that there is already paucity of grazing land for them and as such defendants should not have been given said grant, nor have the defendants any right to interfere with the customary and easementary rights of the plaintiffs. It is further alleged in the plaint that the defendants got the Nayabad grant issued by fraud. 4. Defendants contested the suit stating that there is sufficient grazing land for the plaintiffs apart from the disputed land. It is pleaded by the defendants before the trial Court that no fraud was committed by them in obtaining the Nayabad grant. It is further pleaded by the defendants that the suit was barred by time. 5. On the basis of the pleadings of the parties, the trial court framed following issues : 1. Whether plaintiffs have customary right of gauchar (grazing) on the land in suit? 2. It is further pleaded by the defendants that the suit was barred by time. 5. On the basis of the pleadings of the parties, the trial court framed following issues : 1. Whether plaintiffs have customary right of gauchar (grazing) on the land in suit? 2. Whether the plaintiffs right, if any, are affected by the grant in suit? 3. Whether the disputed land was not granted to defendants in Nayabad? 4. Whether the suit is barred by time? 5. To what relief, if any, the plaintiffs are entitled? 6. The trial court, after recording the evidence and hearing of the parties, found that there is sufficient grazing land for the plaintiffs. It further found that the disputed land is granted to the defendants under the Kumaun Nayabad and Waste Lands Act, 1948, and no right of the plaintiffs is affected. As to the issue on the point of limitation, the trial court held that the suit was not barred by time. The trial court in view of the findings on issue Nos. 1 to 3, dismissed the suit with costs. Against said judgment and decree dated 16.06.1981, passed in Civil Suit No. 51 of 1972, the plaintiffs preferred Civil Appeal No. 07 of 1981, before the District Judge, Chamoli, who after hearing the parties, dismissed the appeal vide its judgment and order dated 05.11.1981. Hence, this Appeal. This Second Appeal was Initially filed before the Allahabad High Court in the year 19.02.1982, where it was admitted on 13.07.1982. However, no substantial question of law was formulated by the Allahabad High Court. After the creation of State of Uttarakhand, this Appeal has been received by transfer to this Court, under Section 35 of the U.P. Re-organization Act, 2000, for its disposal. 7. Following is the substantial question of law involved on which the parties addressed this court : Whether the disputed grant in favour of the defendants (present respondents) was in contravention of provision of the Kumaun Nayabad and Waste Lands Act, 1948, as there was no provision empowering the Commissioner to review its decision under said Act? Answer to substantial question of law : 8. It is pertinent to mention here that the Kumaun Nayabad and Wastelands Act, 1948, which was applicable to whole of Kumaun (which included the districts of Garhwal) was passed by the Legislature to regulate the use of unmeasured land in the hills. Answer to substantial question of law : 8. It is pertinent to mention here that the Kumaun Nayabad and Wastelands Act, 1948, which was applicable to whole of Kumaun (which included the districts of Garhwal) was passed by the Legislature to regulate the use of unmeasured land in the hills. The said fact is clear from the preamble of the Act. Sub-section (3) of Section 3 of the said Act defines Nayabad grant as grant of unmeasured land made in accordance with the provisions of the Act. It is pertinent to mention here that after the first settlement during British period, in hills, land under cultivation of villagers was known as Naap (measured) land and rest land of villagers used to be called BENAAP (unmeasured) land. Section 4 of said Act provides that breaking up of waste land for cultivation can be — (1) by extension, or (2) by a Nayabad grant Section 6, 7, 8 and 9 of the Act provide the exception in granting the Nayabad. Clause (b) of Section 7 of the Act provides that no extension or grant shall be made over traditional boundary of another village. 9. Mr. N.S. Negi, learned counsel for the appellants argued that the Commissioner had no power to review its decision under the Kumaun Nayabad and Waste Lands Act, 1948, as such, the grant in suit in favour of the defendants by the Commissioner is not recalled. The trial courts judgment shows that the trial court requisitioned the entire file of the disputed Nayabad grant, and inspected the same. The trial court has observed that, though, the Assistant Collector recommended the grant, but the Deputy Commissioner and the Commissioner acted on the noting of their clerk and did not apply their mind. When the mistake was detected by the Commissioner, he rectified his order and issued the Nayabad grant, in favour of the defendants. As such, the trial court did not find any fraud committed by the defendants in obtaining the grant. The lower appellate court has also found that there was no fraud committed by the defendants in obtaining the grant in respect of plot No. 243. To this extent the finding of the courts below is concurrent. The same cannot be interfered by this Court. The lower appellate court has also found that there was no fraud committed by the defendants in obtaining the grant in respect of plot No. 243. To this extent the finding of the courts below is concurrent. The same cannot be interfered by this Court. As far as the power to review its decision is concerned, though, the order in question, granting Nayabad does not amount reviewing the decision, but assuming for a moment that the same is so, Section 16 of the Kumaun Nayabad and Waste Lands Act, 1948, provides that the provisions of the Code of Civil Procedure, in so far as they are not inconsistent to the provisions of the Act, shall apply to the proceedings under the aforesaid Act. As such, even if there is no express provision in aforesaid Act No. XXXII of 1948 empowering Commissioner to review its decision, same flows from the Coe of Civil Procedure, 1908, read with Section 16 of the aforesaid Act. Accordingly, the substantial question of law stands answered. 10. For the reasons as discussed above, this Court does not find any error of law committed by the trial court or by the lower appellate court, as such, this second appeal is liable to be dismised. The same is dismissed. No order as to costs.