Research › Search › Judgment

Allahabad High Court · body

2009 DIGILAW 3031 (ALL)

ASHOK KUMAR AGARWAL v. DISTRICT MAGISTRATE

2009-09-04

RAN VIJAI SINGH, SUNIL AMBWANI

body2009
JUDGMENT By the Court.—Heard Shri Yogesh Agarwal, learned counsel appearing for the petitioner. Learned Standing Counsel appears for the State respondents. Shri K.K. Dube appears for respondent Nos. 4, 5/1 to 5/8 and 6. 2. By this writ petition, the petitioner has prayed for quashing the order of the District Magistrate, Lalitpur dated 19.1.2000, rejecting his application for converting lease hold rights over nazul plot No. 3861 area 151.40 square meters with the self assessed deposit of Rs. 11,128/- vide challan No. 47 dated 30.1.1999. 3. The writ petition was amended on an application, allowed by this Court on 12.3.2004, by adding grounds and prayers to quash the free hold deeds dated 3.2.2000 and 7.2.2000 converting a part of the same nazul plot of land into free hold in favour of Shri Suresh Chandra Jain-respondent No. 4, and Shri Padam Chandra Jain-respondent No. 6; and also to quash the order of the District Magistrate dated 24.1.2000, directing Shri Suresh Chandra Jain to deposit the money to convert the land into free hold land. 4. After rejecting petitioner’s application on the ground, that his title over the land is doubtful, and that he is not in occupation of the land except nine square meters on which he has kept a box, the District Magistrate allowed the application of respondent No. 4-Suresh Chandra, for converting 12 square meters of land in his possession into free hold on 24.1.2000, and also the application of respondent No. 5 for an area 32.70 square meters on 24.1.2000 and the application of respondent No. 6, for 15 square meters on 19.1.2000. All these three pieces of land are part of nazul plot No. 3861 with total area 151.40 square meters. The petitioner had claimed that other persons were his tenants and that they were not entitled for conversion of the portions of the nazul arazi into free hold, specially when he had applied for conversion of the entire land as free hold land in his favour. 5. Shri Yogesh Agrawal, learned counsel for the petitioner submits, that the District Magistrate did not consider the documents filed by the petitioner, establishing his right and title over the land in dispute. The petitioner was claiming the land from Ram Das Siddhi. Shree Chand and Ram Das Siddhi who were cousin brothers. 5. Shri Yogesh Agrawal, learned counsel for the petitioner submits, that the District Magistrate did not consider the documents filed by the petitioner, establishing his right and title over the land in dispute. The petitioner was claiming the land from Ram Das Siddhi. Shree Chand and Ram Das Siddhi who were cousin brothers. Smt. Ganga Bai was the wife of the brother of Ram Das, and that she had inherited entire land after their death. After the death of Smt. Ganga Bai, Nand Lal inherited the property and after Nand Lal, his two brothers late Gopal Das and Shree Krishna became the owners. It is submitted that on the death of Gopal Das and Shree Krishna, their heirs alongwith the plaintiff became the owners of the land. 6. The documents appended to the writ petition, including copy of plaint of Original Suit No. 51 of 1975 would show that Ram Das had purchased a plot from Nagar Palika, Lalitpur in the year 1901, in which Smt. Ganga Bai constructed a well in the year 1906. The predecessors of the plaintiff allowed some tenants to put wooden shops and collected rent from them. The plaintiff was threatened with eviction by the Nagar Palika, Lalitpur by a notice on 7.8.1975, on which he filed a Civil Suit No. 51/1975, Govind Das v. Nagar Palika Lalitpur and others. In this suit for injunction, issue No. 1 was framed to decide whether the plaintiff and defendant Nos. 3 to 5 were the owners and in possession of the property. The Civil Judge, Lalitpur, by her judgment dated 31.10.1981, decided issue No. 1 in favour of plaintiff, and held that the deed of the year 1901 is in favour of Ram Das and Siddhi Gautamia. The nazul clerk Ramesh Chandra PW-1 had stated in his deposition that in the nazul register the name of petitioner’s father Nand Lal is shown as Chand Mal. The clerk of Nagar Palika proved the papers/receipts issued by the Nagar Palika for house tax. The oral evidence led by the parties proved that Nand Lal was adopted by Ganga Bai and also that the plaintiff was realising rent from the tenant. Smt. Ganga Bai had requested the authorities to dig a well in the plot by her application dated 19.12.1905. The oral evidence led by the parties proved that Nand Lal was adopted by Ganga Bai and also that the plaintiff was realising rent from the tenant. Smt. Ganga Bai had requested the authorities to dig a well in the plot by her application dated 19.12.1905. The trial Court held that the land was not given on lease to Ram Das but was sold by Nagar Palika, Lalitpur to him and that according to the contents of the sale deed (paper No. 59-C1), one-third part of the land was left for digging well and for public use. The trial Court also found that the plaintiff is the owner of the land in dispute and is in possession as the owner with a right to file the suit. The trial Court decreed the suit in favour of plaintiff for injunction against the defendants. A Civil Appeal No. 57/1981 filed by plaintiff-appellant claiming costs of the suit was dismissed. It is stated that a Second Appeal limited to the payment of costs is still pending in the High Court. 7. Shri Yogesh Agrawal submits that the judgment and the other documents namely proceedings taken by the plaintiff for eviction of his tenants prove that they were claiming through him were not considered by the District Magistrate. The order of the District Magistrate is not based on the material brought on his record and is liable to be set aside. 8. Learned Standing Counsel has relied upon statement of facts in the affidavit of Shri C.P. Upadhyay, Tehsildar, Collectorate, District Lalitpur. In paragraph 10 of this affidavit, it is stated that the free hold deeds have been executed in favour of respondent Nos. 4 and 5 on 24.1.2000 and on 4.2.2000 and that a free hold deed was also executed in favour of Shri Padam Chandra Jain on 3.2.2000. The free hold deed dated 3.2.2000 was registered by Sub Registrar, Lalitpur on 7.2.2000. The petitioner cannot be granted free hold rights as he is unauthorised occupants over the land. The petitioner does no have proprietary right on the concerned plot and the area in possession of other persons. 9. Shri K.K. Dube appearing for respondent No. 4, the heirs of respondent No. 5, and respondent No. 6, submits that the petitioner did not inherit the property from late Ram Das and Siddhi Gautamia. The petitioner does no have proprietary right on the concerned plot and the area in possession of other persons. 9. Shri K.K. Dube appearing for respondent No. 4, the heirs of respondent No. 5, and respondent No. 6, submits that the petitioner did not inherit the property from late Ram Das and Siddhi Gautamia. The share of late Shri Ram Das was inherited by the father of the petitioner, his uncle Krishna Das and Gopal Das. The land was thereafter partitioned amongst the three brothers, and after the death of Shri Krishna Das, his share was inherited by his wife, son and daughter. The petitioner is in possession of only nine square meters of the land. He has withheld the best evidence namely the copy of municipal assessment, where names of the owners and names of the tenants have been recorded, on the respective areas on which the tenant’s wooden Khokhas are kept. 10. The free hold rights were granted to respondent Nos. 4, 5 and 6 on 12 square meters; 32.70 square meters and 15 square meters of land respectively by the District Magistrate on 24.1.2000 (to respondent Nos. 4 and 5) and on 19.1.2000 (to respondent No. 6). In paragraph 10 of the counter-affidavit of Shri C.P. Upadhyay, Tehsildar, Collectorate, Lalitpur, it is stated that the interim order dated 31.1.2000 was made available in the office of the District Magistrate on 4.2.2000. By that date the free hold rights were conferred on respondent Nos. 4, 5 and 6 and that the free hold deeds were executed on 3.2.2000, and was thereafter registered by Sub Registrar, Lalitpur on 7.2.2000. The Sub Registrar was not aware of the interim order. 11. The petitioner filed amendment application challenging the free hold rights in favour of respondent Nos. 4, 5 and 6, after three years of the execution of the lease deeds on 12.3.2004. The amendment applications were allowed on 12.3.2004 and 13.3.2004. 12. We have heard learned counsel for the parties at length and find that the District Magistrate could not have gone beyond the decree of civil Court in Original Suit No. 51/1975 in which Nagar Palika, Lalitpur was defendant No. 1 to the suit. The Civil Court, after considering documentary and oral evidence, held that the petitioner is the successor-in-interest of late Shri Ram Das. The Civil Court, after considering documentary and oral evidence, held that the petitioner is the successor-in-interest of late Shri Ram Das. The land was not given on lease to Ram Das, but was sold by Nagar Palika to Ram Das. The sale deed (Paper No. 59 C-1) also proved that one-third part of the land was left for digging the well and for public purposes. The findings in respect of the nazul land have become final between the parties. These findings, however, do not bind the State Government as the State Government through Collector was not party to the suit. The nazul lands belong to the State Government and are given in the management of the local bodies. The Nagar Palika, Lalitpur was managing the land on behalf of the State Government. It could not have settled the land in favour of petitioner by any document to be treated as sale. The findings, with regard to the title of petitioner on the basis of paper No. 59-C, a document of sale, therefore, was not binding upon the State Government. The finding of possession, however, had persuasive value, to be considered by the District Magistrate. The District Magistrate could not have denied the conversion of the land into free hold on the ground, that the petitioner did not have title over the land. If the petitioner had the ownership, there was no need for him to apply for free hold rights. The District Magistrate was only required to consider whether the petitioner was in possession through Nagar Nigam to consider the grant of free hold rights. 13. The free hold deeds in favour of respondent Nos. 4, 5 and 6 have been registered and have conferred ownership upon them after the State Government has accepted the requisite amount for converting the land into free hold land. The petitioner took more than three years to amend his writ petition to challenge the order of the District Magistrate. In the amendment application, the petitioner had pleaded ignorance of the orders of the District Magistrate and free hold deeds executed in favour of respondent Nos. 4, 5 and 6. The order, by which the amendment application was allowed, gives petitioner a right to challenge the orders of the District Magistrate. In the amendment application, the petitioner had pleaded ignorance of the orders of the District Magistrate and free hold deeds executed in favour of respondent Nos. 4, 5 and 6. The order, by which the amendment application was allowed, gives petitioner a right to challenge the orders of the District Magistrate. We find that on the execution of deeds conferring free hold rights in favour of private respondents their rights have matured and thus the prayers made by the petitioner to set aside the orders of the District Magistrate has to be considered in the light of the law of limitation. The prayers to set aside the orders of District Magistrate are barred by unexplained laches, and thus the areas for which free hold deeds were granted in favour of respondent Nos. 4, 5 and 6, would not be available to the petitioner for conversion of his rights. 14. We further find that the Civil Judge, Mirzapur, in her judgment dated 31.10.1981 in Original Suit No. 51/1975, held that in the document of title one-third of the land was left for the purposes of digging well and for other public purposes, and that late Ganga Bai had taken possession and had dug a well in the land. The petitioner, therefore, cannot be held entitled for free hold rights of the entire land. He is entitled for conversion of free hold of only that portion, which is not covered by the free hold rights of respondent No. 4, the heirs of respondent No. 5 and respondent No. 6, and one-third portion of the land to be separated before the free hold rights are granted to him. 15. The writ petition is allowed. The order of District Magistrate dated 19.1.2000 is set aside. The District Magistrate will reconsider petitioner’s application for free hold rights afresh after excluding the land on which the free hold rights are granted to respondent No. 4, the heirs of respondent No. 5 and respondent No. 6 and after identifying and separating one-third portion of the land, on which the permission was granted to dig the well and was left for public purposes. ————