Research › Search › Judgment

Allahabad High Court · body

2009 DIGILAW 762 (ALL)

DULARI DEVI v. UMA SHANKER

2009-03-06

PANKAJ MITHAL

body2009
JUDGMENT Hon’ble Pankaj Mithal, J.—The plaintiffs respondents instituted Original suit No. 334 of 1994 against defendant appellants for permanent injunction in respect of part of araji plot No. 227 having a total area of 83 decimal. The said araji was the joint bhoomidhari land of the two brothers Suleman and Usman in equal proportion. In a division between the two brothers, Suleman got half share situate towards northern side having an area 41 ½ decimal whereas Usman received the other half situate towards southern side having an area 41 ½ decimal. Suleman transferred part of his land i.e. 3 ½ decimal vide sale deed dated 23.8.1993 and another part i.e. 7 ½ decimal by sale deed dated 12.7.1994 in favour of the plaintiff respondents. Thus, the plaintiff respondents claimed to be the owners in possession of 21 decimal of the land falling to the share of Suleman. The balance land of his share i.e. 20 ½ decimal was transferred by Suleman by yet another sale deed dated 28.10.1995 in favour of the defendant appellants. In this background a dispute with regard to possession and interference arose when the plaintiff respondents wanted to raise constructions over the land which was purchased by them and therefore the suit was instituted wherein in defence a plea was taken that the sale deeds on the basis of which plaintiff respondents are claiming ownership are a void being in contravention of Section 168-A of the Act, which prohibits transfer of a fragment. 2. One of the issues involved in the suit and the appeal arising therefrom before the lower appellate Court was whether the sale deeds dated 23.8.1993 and 12.7.1994 were hit by Section 168-A of the U.P.Z.A. & L.R. Act (hereinafter referred to as an ‘Act’) 3. The said issue was decided by both the Courts below in favour of the plaintiff/respondents and the sale deeds were held to be valid as the provisions of Section 168-A were not applicable to the area. 4. I have heard Sri R.C. Singh, learned counsel for the defendant appellants and Sri Mool Behari Saxena learned counsel appearing for the plaintiff respondents. 4. I have heard Sri R.C. Singh, learned counsel for the defendant appellants and Sri Mool Behari Saxena learned counsel appearing for the plaintiff respondents. Both of them have jointly submitted that this second appeal can be disposed of finally at this stage on the sole substantial question of law whether the land in dispute is covered by the Act and as such the sale deeds on the basis of which the plaintiff appellants are claiming title can be said to be hit by Section 168-A. 5. The provisions of the Act are applicable to the whole of Uttar Pradesh except the areas which were included in a municipality or a notified area under the provisions of the United Provinces Municipalities Act, 1916 or a cantonment under the provisions of the Cantonment Act, 1924 or a Town area under the provisions of the United Provinces Town Area Act, 1924 as on 7.7.1949. This has been specifically spelled out in Section 1(2) of the Act itself. A plain reading of the aforesaid provision of the Act itself makes it clear that the provisions of the Act are applicable to the whole of Uttar Pradesh but would not apply to the areas which stood included as on 7.7.1949 within the municipality, notified area, cantonment or town area. Therefore, it is in the light of the above that the Division Bench of this Court in the case of Ram Lal and others v. Deputy Director of Consolidation, Hamirpur, 1987 AWC 38, also expressed the view that the areas which are included in the municipality, notified area, cantonment or town area would not be subject to the provisions of the Act. On the basis of the aforesaid decision the trial Court as well as the lower appellate Court treating the land in dispute to be within the Town Area, Lar, district Deoria held that the provisions of the Act are not applicable to the lands transferred by the two sale deeds and as such would not be void. However, none of the Courts recorded any finding as to when the area covered by the two sale deeds was notified to be included within the said town area. Both the Courts below have over looked the fact that the material aspect in this regard is the date of the inclusion of the area within the town area. However, none of the Courts recorded any finding as to when the area covered by the two sale deeds was notified to be included within the said town area. Both the Courts below have over looked the fact that the material aspect in this regard is the date of the inclusion of the area within the town area. This is relevant as the Government is competent to alter the limits of the municipality, notified area, cantonment or town area from time to time. According to the provisions of Section 1(2) of the Act the inclusion had to be as on 7.7.1949 and subsequent inclusion of the area would not therefore be a relevant criteria. Thus, it is held that inclusion of area into a municipality or any other local authority after the cut off date of 7.7.1949 is not material and is of no consequence for deciding about the applicability of the Act. 6. Thus, in the absence of a categorical finding with regard to the fact as to whether the area covered by the two sale deeds was within the town area as on 7.7.1949, this Court in Second appeal is not in a position to hold whether the Act is applicable to the land covered by the sale deeds. 7. Accordingly, in view of the above discussion the substantial question of law posed in this appeal cannot be specifically answered. Nonetheless, it is held that the provisions of the Act are not applicable to the areas which stood included in any municipality, notified area, cantonment or town area on the cut off date i.e. 7.7.1949. 8. In view of the aforesaid facts and the legal position as none of the Courts below have given a finding as to whether the land in dispute was within the jurisdiction of the town area as on 7.7.1949, the judgment and orders passed by them to the effect that the provisions of the Act are not applicable and the sale deeds are not hit by Section 168-A cannot be sustained. Accordingly, the Court has no option but to set aside the impugned judgment and orders of the Courts below and to remand the matter to the trial Court for decision afresh in the light of the observations made herein above. 9. Accordingly, the Court has no option but to set aside the impugned judgment and orders of the Courts below and to remand the matter to the trial Court for decision afresh in the light of the observations made herein above. 9. The appeal accordingly succeeds and the judgment, order and decree of the Court of first instance dated August 17, 2007 passed in Original suit No. 334 of 1995 (Uma Shankar and others v. Dulari Devi and others) and that of the lower appellate Court dated 9.10.2007 passed in Civil Appeal No. 66 of 2007 (Dulari Devi and others v. Umashankar and others) are set aside and the matter is remanded to the trial Court for decision afresh in accordance with law in the light of the observations made above. The trial Court shall make endeavour to decide the same most expeditiously preferably within a period of six months from the date of production of the certified copy of this judgment and orders before it by either of the parties. 10. The parties to bear their own costs. ———