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2014 DIGILAW 1700 (ALL)

Beg Raj v. Board of Revenue

2014-05-23

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT Ram Surat Ram (Maurya),J.: - Heard Sri Anupam Kulshrestha, for the petitioner and Sri Umang Srivastav, for the contesting respondents. 2. This writ petition has been filed against the orders of Board of Revenue U.P. dated 10.02.2014, rejecting the application of the petitioner for impleading as respondent in the revision filed by contesting respondents and dated 07.04.2014 allowing the revision of the respondents and decreeing their suit, under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act). 3. The dispute between the parties relates to plots 446 (area 1-15-0 bigha) and 518 (area 2-7-12 bigha) of village Kanawani, tahsil Dadri and district Ghaziabad. Jai Pal, Sukhbir, Roop Ram and Jai Singh (now represented by respondents-4 to 10) (hereinafter referred to as the respondents) filed a suit (registered as Suit No. 62 of 1984-85) under Section 229-B of the Act, on 04.09.1992, for declaring them as 'bhumidhar with non-transferable right'. The respondents stated the land in dispute was allotted to them by Land Management Committee on 27.06.1974 and possession over it was given to them. Although, their patta was canceled on 09.05.1980, in Case No. 65/1978-79 but as they remained in possession over the land in dispute on 30.06.1975 and continuing in possession, as such they become 'bhumidhar with non-transferable right' under Section 122-B (4-F) of the Act, as they belonged to scheduled caste. 4. State of U.P. and Gaon Sabha also filed their written statements and contested the suit on the ground that Land Management Committee illegally allotted the land in dispute to the respondents. Their patta has been canceled by the order dated 09.05.1980, in the case under Section 198 (4) of the Act. They filed a suit before Civil Court, which was also dismissed by order dated 07.07.1979 and their appeal was dismissed by order dated 08.08.1982. In spite of cancellation of patta, their names were illegally continuing in the revenue records and liable to be deleted. 5. The case was tried by Sub-Divisional Officer, who by order dated 18.06.1986 held that admittedly the land in dispute was allotted to the respondents on 27.06.1974 and possession was given to them over it. In spite of cancellation of patta, their names were illegally continuing in the revenue records and liable to be deleted. 5. The case was tried by Sub-Divisional Officer, who by order dated 18.06.1986 held that admittedly the land in dispute was allotted to the respondents on 27.06.1974 and possession was given to them over it. From the evidence on record, it was proved that the respondents were in possession over the land in dispute since its allotment in their favour on 27.06.1974 as such they had become 'bhumidhar with non-transferable right' under Section 122-B (4-F) of the Act. On these findings the suit was decreed. State of U.P. and Gaon Sabha filed a revision (registered as Revision No. 14 of 1986-87) from the aforesaid order. Additional Commissioner, by order dated 03.03.1987, affirmed the findings of Sub-Divisional Officer and dismissed the revision. State of U.P. and Gaon Sabha filed a second revision (registered as Revision No. 95 of 1986-87) from the aforesaid order. Board of Revenue U.P. by order dated 31.05.1995 allowed the revision and set aside the orders of the Courts below and remanded the matter to trial court for deciding the suit afresh. 6. After remand the Sub-Divisional Officer, by order dated 14.01.1999 held that possession of the respondents was permissive possession as such they would not get benefits of the provisions of Section 122-B (4-F) of the Act. On these findings the suit was dismissed. The respondents filed an appeal (registered as Appeal No. 26 of 1998-99) from the aforesaid decree. One Charan Singh also filed a revision (registered as Revision No. 36/97) from the aforesaid order. The appeal and revision both were consolidated and heard by Additional Commissioner, who by order dated 29.07.1999 dismissed appeal and revision. The respondents filed a revision (registered as Revision No. 30 of 2011-12) along with delay condonation application against the aforesaid order. Board of Revenue U.P. by order dated 25.09.2013 condoned the delay in filing the revision and admitted it for hearing. The petitioner filed an application dated 07.08.2012 for his impleadment as the respondent in the revision. Board of Revenue U.P. by order dated 10.02.2014, rejected the application of the petitioner for impleading him as respondent in the revision. Thereafter, the revision was heard on merit and allowed by order dated 07.04.2014. Hence, this writ petition has been filed. 7. The petitioner filed an application dated 07.08.2012 for his impleadment as the respondent in the revision. Board of Revenue U.P. by order dated 10.02.2014, rejected the application of the petitioner for impleading him as respondent in the revision. Thereafter, the revision was heard on merit and allowed by order dated 07.04.2014. Hence, this writ petition has been filed. 7. It may be mentioned that the petitioner also filed a suit (registered as Suit No. 19/98 and 98/92) under Section 229-B of the Act, on 04.09.1992, for declaring him as 'bhumidhar with non-transferable right'. The suit was dismissed by Sub-Divisional Officer by order dated 08.12.1998. The petitioner filed an appeal (registered as Appeal 23/99) from the aforesaid order, which was dismissed by order dated 29.07.1999. The petitioner filed Second Appeal No. 5 of 1999-2000) which was dismissed by order dated 08.10.2012 and Cross-Objection of the respondents was decreed. The petitioner filed Writ-B No. 26121 of 2014 from the aforesaid order, which has been dismissed by a separate judgment by this Court. 8. The counsel for the petitioner submitted that the impleadment application of the petitioner has wrongly been rejected by Board of Revenue. Board of Revenue illegally recorded a findings that the respondents were in possession of the land in dispute. Even if it is held that the respondents were in possession of the land in dispute, their possession was on the basis of patta dated 27.06.1974 and permissive possession and no right can be given to them on its basis. 9. I have considered the arguments of counsel for the parties and examined the record. So far as the claim of the petitioner, is concerned, all the revenue courts found that the petitioner in his cross examination admitted that he was not in possession over the land in dispute. The petitioner could not adduce any evidence to prove his possession. Findings of facts recorded by three revenue courts in respect of possession of the petitioner over the land in dispute is binding upon this Court. Even if the petitioner was having less than 3.125 hectare land but in the absence of possession over the land in dispute no right can be given to the petitioner under Section 122-B (4-F) of the Act. 10. Even if the petitioner was having less than 3.125 hectare land but in the absence of possession over the land in dispute no right can be given to the petitioner under Section 122-B (4-F) of the Act. 10. So far as possession of the respondents, are concerned, admittedly the respondents were granted patta by Land Management Committee on 27.06.1974 of the land in dispute and given possession. Their names were continuously recorded over it. Their patta was canceled by order dated 09.05.1980. Lekhpal in his statement admitted delivery of possession to the respondents on the basis of patta dated 27.06.1974. Section 122-B (4-F) of the Act was inserted by U.P. Act No. 35 of 1976 and members of scheduled caste community, agricultural labourers etc. who were in occupation of the land since from before 30.06.1975, were deemed to be sirdar, admitted under Section 195 of the Act. Thus they were in occupation of it on 30.06.1975 as held by all the revenue courts. As such they acquired 'bhumidhar with non-transferable right' under Section 122-B (4-F) of the Act. 11. Under Section 122-B (4-F) of the Act, the phrase "having occupied it from before June 30, 1975" has been used. There is no difference between permissive possession or adverse possession under this section. The phrase "retaining possession" as used under Section 180 of U.P. Tenancy Act, 1939 came for consideration before Supreme Court in Bhinka v. Charan Singh, AIR 1959 SC 960 , in which it was held that the word "retaining" to a person taking possession in accordance with the provisions of the law but subsequently retaining the same illegally. So construed, the appellants' possession of the lands being illegal from the inception, they could not be described as persons retaining possession of the said lands in accordance with the provisions of any law for the time being in force, so as to be outside the scope of Section 180 of the Act. Similar phrase has been used under Section 209 of the Act and Supreme Court in Vishwanath Vs. Chandrabahn AIR 1996 SC 919 followed Bhinka's case. Thus it makes no difference that the respondents took possession on the basis of patta. They were in occupation of the land in dispute on the date of commencement of Section 122-B (4-F) of the Act as such they acquired right under the Act. Chandrabahn AIR 1996 SC 919 followed Bhinka's case. Thus it makes no difference that the respondents took possession on the basis of patta. They were in occupation of the land in dispute on the date of commencement of Section 122-B (4-F) of the Act as such they acquired right under the Act. Judgment of Board of Revenue in this respect does not suffer from any illegality. 12. In view of the aforesaid discussions, the writ petition has no merit and is dismissed.