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2014 DIGILAW 1256 (ALL)

Somma v. State of U. P.

2014-04-18

RAM SURAT RAM (MAURYA)

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JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri Riduvant Pratap Singh for the petitioners, Standing Counsel for State of U.P. and Sri Rajesh Yadav, Standing Counsel for the Gram Panchayat. In the facts of the case, the counsels for the respondents do no propose to file any counter affidavit. With the consent of the parties, the writ petition is decided finally. 2. This writ petition has been filed against the orders of Assistant Collector (1st Class) dated 25.07.2013, dismissing Suit No. 41/2012-13, filed under section 229 of U.P.Z.A. & L.R. Act, holding as not maintainable and Additional Commissioner dated 6.2.2014, dismissing the revision of the petitioners against the aforesaid order. 3. The dispute is in respect of plot Nos. 18, 19, 118m, 119m and 120m of village Chakhareti, pargana, tahsil and district Saharanpur. The suit was filed for declaration of bhumidhar of the disputed land on the allegations that the petitioners were in possession of the land in dispute since before the date of vesting and after the date of vesting, they had become sirdar of it and during consolidation, they were allotted aforementioned new plots. 4. A preliminary objection has been raised by District Government Counsel, Revenue, regarding maintainability of the suit. It has been stated that as plots in dispute are the land of the categories as mentioned under section 132 of U.P. Act No. 1 of 1951, as such, in view of provisions of Rule 176-A, five years is the maximum period for which asami right can be granted to the petitioners over it. After expiry of the period of five years, the petitioners are left with no right, as such, the suit is not maintainable. 5. The Assistant Collector (1st Class) by the impugned order dated 25.7.2013 accepted the objection of District Government Counsel, Revenue and dismissed the suit as not maintainable and the revision filed against the aforesaid order has also been dismissed by Additional Commissioner by order dated 6.2.2014 on the same ground. Hence this writ petition has been filed. 6. The Counsel for the petitioners submits that under the amended provision of section 229, a declaratory suit has been provided. The suit was for declaration of bhumidhari right. Without trial of the suit right of the petitioners has been decided on the preliminary objection. Hence this writ petition has been filed. 6. The Counsel for the petitioners submits that under the amended provision of section 229, a declaratory suit has been provided. The suit was for declaration of bhumidhari right. Without trial of the suit right of the petitioners has been decided on the preliminary objection. The petitioners were coming in possession over the land in dispute since before abolition of zamindari and have become sirdar of the land in dispute under sections 19 and 20 of the Act. In consolidation, the names of the petitioners were recorded and chak was carved out in their name. Rule 176-A will apply only in the cases, where patta has been granted by Land Management Committee. Without trial of the suit and without there being any evidence to prove that the land in dispute was ever allotted by Gaon Sabha, Trial Court held the petitioners were as asami for five years. The land which was allotted to the petitioners in consolidation, was not the land covered under the categories as mentioned under section 132 of U.P. Act No. 1 of 1951. The orders of the Courts below are illegal and liable to be set aside. 7. I have considered the arguments of Counsel for the parties and examined the record. 8. A Plaint can be rejected on the grounds mentioned under Order VII Rule 11 C.P.C. namely (a) the plaint does not disclose a cause of action; (b) where relief claimed is undervalued and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate (f) where the plaintiff fails to comply with the provisions of Rule 9. 9. The question arises for consideration as to whether the suit appears from the statements made in the plaint to be barred by any law? 9. The question arises for consideration as to whether the suit appears from the statements made in the plaint to be barred by any law? In the plaint the plaintiff claimed that their predecessor acquired sirdari right under section 19 of U.P. Act No. 1 of 1951. Thereafter they become bhumidhar and were recorded as such even during consolidation. Thus on the allegations made in the plaint the suit was not barred under any law. 10. The defendants raised the plea that the plaintiffs were asami of Gaon Sabha. In the light of the pleadings, Trial Court is required to frame issues in the suit and after taking evidence of the parties decide it finally. The main controversy arising between the parties, in the suit cannot be decided as preliminary objection. The issues which are falling within any of the clauses of Order VII Rule 11 C.P.C. can alone be decided as preliminary issues. The orders of the Courts below are illegal and liable to be set aside. 11. The Counsel for the petitioners submits that after passing the aforesaid orders Sub-Divisional Officer passed another order, which has been incorporated in the khatauni of the petitioners. By which heating the petitioners as asami, their names were deleted as such, interim protection be granted to the petitioners. The petitioners were recorded over the land in dispute since before date of vesting. Entry of their names as bhumidhar was also maintained during consolidation and a new chak is carved out in their names. The land which was allotted to the petitioners' during consolidation were not the land falling under the category as mentioned. There is no evidence to prove that Gaoh Sabha has granted patta to the petitioners at any time. Prima facie the petitioners have good case. Grave and irreparable loss will occur to them if they were ejected during pendency of the suit. Balance of convenience lies in their favour. As such it is necessary in the interest of justice that petitioners will not be ejected from the land in dispute during pendency of the suit. In view of the aforesaid discussion, the writ petition succeeds and is allowed. The orders of Assistant Collector (1st Class) dated 25.7.2013 and Additional Commissioner dated 6.2.2014, are set aside. As such it is necessary in the interest of justice that petitioners will not be ejected from the land in dispute during pendency of the suit. In view of the aforesaid discussion, the writ petition succeeds and is allowed. The orders of Assistant Collector (1st Class) dated 25.7.2013 and Additional Commissioner dated 6.2.2014, are set aside. The matter is remanded to Assistant Collector (1st Class) to decide the suit after framing the issues and giving opportunity to the parties to adduce their evidence in accordance with law.