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2013 DIGILAW 183 (UTT)

Virendra Kumar Saxena v. Board of Revenue U. P.

2013-04-05

B.S.VERMA

body2013
Judgment : By means of this petition the petitioner has sought a writ in the nature of certiorari for quashing the judgment and order dated 11-6-1994 passed by Assistant Collector Kashipur in revenue suit No. 22/7 of 1981-82, judgment and order dated 23-10-1990, passed by Addl. Commissioner, Kumaun Mandal Nainital in Z.A. appeal No. 106/163 of 1983-84, and the judgment and order dated 16-5-1994, passed by Board of Revenue in second appeal No. 66 of 1990-91, Annexure Nos. 3,4 and 5 respectively to the writ petition. 2. Brief facts of the case, according to the petitioner are that the plaintiff was a political sufferer and a disabled person. The land in suit were allotted to him in colonization scheme, being a disabled person. He filed suit against Liyakat Hussain for declaration as Bhumidhar and for possession over the land in suit U/S 229- B and 209 of U.P. Z.A. and L.R. Act. As per plaint case the plaintiff claims to be the Bhumidhar of plot Nos. 11/2 area 10.40 hectare and 11/4 area 3.50 acre situated in village Hariyawala Tehsil Kashipur District Nainital. In the year 1966-67 the plaintiff was aged about 67 years and due to his ill-health he was unable to cultivate the land and due to this reason he gave the land on Batai to Liyakat Hussain father of respondent Nos. 4 to 9, who used to cultivate the land and half of crop used to give to the plaintiff. The defendant No.1 getting the benefit of old age of plaintiff illegally got entered his name in the aforesaid land in revenue record in class-8. U.P. Z.A. and L.R.Act was enforced in the village w.e.f. 1-7-1969 i.e. in 1377 Fasli and from 1386 Fasli the defendant has become the Sirdar and thereafter Bhumidhar. The entries have been made illegally in the name of defendant No.1. It was further alleged that till 1979 the defendant No.1 cultivate the land on Batai and from 1980 he refused to cultivate the land on Batai and the possession of defendant is illegal since 1980 and he is liable to be evicted. 3. Suit was contested by filing written statement and in written statement filed by the defendant Liyakt Hussain it was pleaded that the right of Bhumidhari of defendant had matured. 3. Suit was contested by filing written statement and in written statement filed by the defendant Liyakt Hussain it was pleaded that the right of Bhumidhari of defendant had matured. The defendant No.1 has been cultivating the land in suit since 16 years and under the U.P. Tenancy Act he acquired the right as occupancy tenant and thereafter on coming in to force the U.P. Z.A. and L.R. Act, he has perfected his right as Sirdar and thereafter Bhumidhari. Proceeding U/S 39 of Land Revenue Act was also drawn against the defendant which was also dismissed by the Sub Divisional Officer. Kashipur on 2.12.1973. 4. The learned Assistant Collector after considering the evidence of parties came to the conclusion that the plaintiff could not prove that he was disabled person and being a disabled person the land was given on Batai to Liyakat whereas the defendant No.1 was able to prove his adverse possession of 17-18 years and beside oral evidence Khasra 12 sala was filed in which the possession of defendant was entered in 1374 Fasli and then he became Adhivasi and then Bhumidhar of the land in suit. Accordingly the suit of the plaintiff was dismissed. 5. The petitioner filed appeal before learned Addl. Commissioner, which was also dismissed on the similar grounds. Thereafter the petitioner filed second appeal before Board of Revenue, which too was dismissed. Hence, this writ petition. 6. In the writ petition the petitioner has reiterated the grounds taken in the suit and alleged that plots in dispute were allotted to him in colonization scheme and being disabled person in the year 1966-67 he gave the land on Batai to Liyakat Hussain. The petitioner has filed medical certificates of the doctors of Delhi, in whose treatment he was. He also filed extract of Khasra of 1373 Fasli to 1386 Fasli, but the trial court has committed manifest error in rejecting the evidence produced by the petitioner. It was also alleged that the learned Addl. Commissioner as well as the Board of Revenue also committed error in upholding the judgment of trial court. 7. The respondent Nos. 4 to 9, legal heirs of Liyakat Hussain contested the writ petition by filing the counter affidavit and denied the contents of the writ petition. It was also alleged that the learned Addl. Commissioner as well as the Board of Revenue also committed error in upholding the judgment of trial court. 7. The respondent Nos. 4 to 9, legal heirs of Liyakat Hussain contested the writ petition by filing the counter affidavit and denied the contents of the writ petition. In the counter affidavit it has been alleged that the father of answering respondents had perfected his rights by continuing possession for more than statutory period. The plaintiff failed to produce reliable medical evidence to prove his disability and the courts below have rightly did not rely on the said evidence. The plaintiff failed to prove this fact that the land in dispute was given on Batai to the respondent’s father. It was also submitted that the village was notified U/S 4 of Consolidation of Holding Act, on 27-5-1995. The petitioner filed his objection U/S 9-A of the Act. The Notification U/S 52 was issued on 25.10.1997 and petitioner’s objections U/S 9-A were dismissed on 31.12.1997. Against dismissal of the objections, the petitioner filed appeal No. 179of 1997-98 which was dismissed in default on 1.10.2002 and the restoration was filed on 11-11-2009 which is pending for disposal. 8. Rejoinder affidavit has been filed by the petitioner and it was alleged that the courts below overlooked the fact that the name of answering respondents were shown in class-8 of Khasra which is possession with the consent of Bhumidhar. The courts below also overlooked the fact that the name of petitioner was not shown in 1377 and 1378 Fasli as such they had not perfected continuous possession of statutory period. The courts below also failed to appreciate the fact that as per paragraph 102-B of Land Record Manual, first entry should have been made in remark column after issuing P.A.-10 but in the instant case it is admitted fact that first entry of answering respondent was made in column No.6 of Khasra and even without issuing PA-10, hence the entry cannot be read for the purpose of adverse possession. 9. I have heard learned counsel for the parties and perused the entire record. 10. 9. I have heard learned counsel for the parties and perused the entire record. 10. So far as the petitioner’s being disabled and giving the land in suit on Batai to Liyakat Hussain, is concerned, the courts below have recorded a concurrent finding of fact that the petitioner had failed to prove by reliable and convincing evidence that the petitioner was disabled and for this reason he had given the land on Batai to Liyakat Hussain. 11. On the point of adverse possession of Liyakat Hussain on the land in suit, the defendant Liyakat Hussain besides oral evidence, also filed copy of Khasara of 12 sala in which his possession in 1374 Fasli was recorded and he had perfected his right of Adhivasi and in 1386 Fasli he had become the Bhumidhar. Liyakat Hussain also filed the receipts of payment of land revenue. The defendant also filed copy of order of Tehsildar Kashipur dated 5-11-1982 by which it is clear that Sri K.N. Dubey, Attorney Holder of plaintiff Maharaj Sahai, had sold the disputed land to R.D. Dogara through sale deed and mutation application of the purchaser was rejected and no appeal was filed and the rights of Sri K.N. Dubey in respect of the land in suit and further more he never applied to implead as plaintiff in suit or appeals despite the knowledge of suit. 12. Learned counsel for the petitioner has submitted that the name of defendant Liyakt Hussain was not shown in 1377 and 1378 Fasli as such he had not perfected continuous possession of statutory period. The courts below also failed to appreciate the fact that as per paragraph 102-B of Land Record Manual first entry should have been made in remark column after issuing PA-10 but in the instant case first entry of respondent was made in column No.6 of Khasra and even without issuing P.A.10 hence the entry cannot be read for the purpose of adverse possession. 13. On the other hand learned counsel appearing on behalf of the respondents 4 to 9, has contended that where the U.P. Z.A. and L.R. Act 1950 was not applicable in the area in 1374 Fasli issuance of PA-10 was not necessary to be issued as per paragraph 102-B of Land Record Manual. 13. On the other hand learned counsel appearing on behalf of the respondents 4 to 9, has contended that where the U.P. Z.A. and L.R. Act 1950 was not applicable in the area in 1374 Fasli issuance of PA-10 was not necessary to be issued as per paragraph 102-B of Land Record Manual. Learned counsel has relied upon the judgment of this court in the case of Shri Basant Collective Agricultural Farming Cooperative Society Ltd. vs. The State of U.P. and others, reported in 2009 (1) U.C. 117 wherein this court has decided similar controversy and it was held that entry of sub-tenant which was made in column-6 of Khasra has been made correctly in view of para-87 of L.R. Manual since at the relevant point of time when entry was made U.P. Z.A. and L.R. Act was not in force rather the Tenancy Act was in force. The entry was to be made as per provision of L.R. Manual para-87, which deals with entries of sub-tenants in column No.6 of the Khasra and not in remarks column. 14. I have gone through the above cited judgment. This court in the cited judgment has held that since in the year 1374 Fasli in which the entry of possession of the petitioner was made for the first time in Khasra record, which corresponds to the year 1966, Z.A. and L.R. Act was not applicable to the village concerned and issuance of PA-10 or P.A. 24 was not necessary since the tenancy Act was in force and not the U.P. Z.A. and L.R. Act was in force. U.P. Z.A. and L.R. Act was enforced in the village from 1.7.1969. In the case at hand possession of Liyakat Hussain was recorded in Khasra in 1374 Fasli as occupant, when the U.P. Z.A. and L.R. Act was not in force, therefore the trial court has rightly held that entry of possession was rightly made according to rules. 15. All the courts below have recorded a categorical finding that the petitioner had failed to prove his case that the land in question was given to Liyakat Hussain on Batai and the Liyakat Hussain had been successful in proving its adverse possession over the land in suit and by way of adverse possession. 15. All the courts below have recorded a categorical finding that the petitioner had failed to prove his case that the land in question was given to Liyakat Hussain on Batai and the Liyakat Hussain had been successful in proving its adverse possession over the land in suit and by way of adverse possession. He was recorded in 1374 Fasli occupant under U. P.Tenancy Act therefore he has perfected the right as Adhivasi, thereafter became Sirdar and thereafter Bhumidhar U/S 131 of Z.A. and L.R. Act, by operation of law after coming into force the Z.A. and L.R. Act. I do not find any illegality in the finding arrived at by the courts below in view of the discussions made in foregoing paragraphs. 16. Learned counsel for the petitioner also contended that the second appellate court, i.e. Board of Revenue did not frame any substantial question of law in the second appeal and thereby committed a manifest error of law and the judgment passed by Board of Revenue is not sustainable in the eyes of law. Learned counsel has relied upon the judgment and order dated 27-6-2008 passed by Hon’ble Apex Court in Petition for Special Leave to Appeal (Civil) No. 23406/2008 Yogesh Chandra Upreti versus Girish Kakkar and others, wherein it has been held that – ‘A reading of order dated 21-7-2006 shows that the Addl. Chief Revenue Commissioner allowed the second appeal without framing question of law much or less substantial question of law, this was in clear violation of mandate of Section 331(4) of Act which reads as under- ‘A second appeal shall lie on any of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 (V of 1908) from the final order or decree, passed in appeal under sub-section(3), to the authority, if any, mentioned against it in column 6 of the Schedule aforesaid.’ 17. In reply, the learned counsel appearing on behalf of the respondent placed reliance to the judgment rendered by the Apex Court in the case of State of Uttarakhand (Previously State of Uttar Pradesh) versus Mohan Singh and others, reported in 2013 (1)(U.D.) Supreme Court of India, page 29. 18. In para 26 in above cited judgment it has been held as under- “26. 18. In para 26 in above cited judgment it has been held as under- “26. We are of the view that the principle laid down in Mahindra and Mahindra and the judgments referred to earlier clearly apply when we interpret sub-section (4) of section 331 of the U.P. Act. Sub-Section(4), as we have already indicated, has used the expression ‘on any of the grounds’ specified in Section 100 of the C.P.C. Consequently, the then existing Section 100 (i.e. Section 100, as it existed in 1908 unamended) was incorporated in sub-section (4) of Section 331 and substitution of the new Section 100 does not affect or restrict the grounds as incorporated. The right of appeal to the Board of Revenue under sub-section (4) of Section 331 clearly intended to be limited to the grounds set out in the then existing Section 100, since those were the grounds which were before the Legislature and to which the Legislature could have applied its mind and it is reasonable to assume that it was with reference to those specific and known grounds that the Legislature intended to limit the right of appeal. 19. Further in para-27 of above cited judgment it has been held that ‘the appeal before the Board of revenue would, therefore, lie on a question of law.’ 20. So far as the judgment Yogesh Chandra Upreti versus Girish Kakkar and others passed in SLP (Civil) No. 23406/2008, decided on 27-6-2008 by the Hon’ble Apex Court (supra), wherein the Apex Court has observed that –‘any question of law is much less substantial question of law, the second appeal U/S 331(4) of the Act would lie on substantial question of law.’ The judgment has been delivered by Hon’ble two Judges of Hon’ble Apex Court, wherein earlier judgment of larger Bench ‘Santosh Hazari’ was not considered, wherein in para 12 and 14 it has been held that ‘question of law and substantial question of law are different. In view of the latest judgment of State of Uttarakhand (Previously State of Uttar Pradesh) versus Mohan Singh and others, (supra) the second appeal would lie on question of law not on substantial question of law U/S 331(4) of the Act. 21. In view of the latest judgment of State of Uttarakhand (Previously State of Uttar Pradesh) versus Mohan Singh and others, (supra) the second appeal would lie on question of law not on substantial question of law U/S 331(4) of the Act. 21. In view of above latest judgment of the Apex Court, which is a well discussed judgment, the appeal would lie before the Board of Revenue on any of the grounds mentioned in the then existing Section 100 C.P.C., and not on substantial question of law, as per amended Section-100 C.P.C. which was amended in the year 1976. Therefore the argument of Senior Advocate cannot be accepted. 22. The writ petition being devoid of merit is liable to be dismissed. 23. The writ petition is dismissed. No order as to costs.