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2014 DIGILAW 3348 (ALL)

Ram Roop v. D. D. C.

2014-11-11

ANJANI KUMAR MISHRA

body2014
JUDGMENT Anjani Kumar Mishra, J. 1. Heard Sri Raj Kumar, learned Counsel for the petitioners and Sri Manoj Kumar Yadav, who appears for the Gaon Sabha. This writ petition arises out of an objection under section 9A(2) and is directed against the order dated 28.2.2014 passed by the respondent No. 1 in Revision No. 453/224, Gram Sabha v. Ram Roop and others, and connected revision Nos. 457/234, Ram Roop and others v. Gaon Sabha. 2. Relevant facts briefly stated are that the dispute in the writ petition pertains to plot No. 460/1 having an area of 3.46 hectares. This land was recorded as Bhita in the basic year. During partal, the petitioners or their ancestors were reported to be in possession over this land. 3. An objection under section 9 was filed by the petitioners on the ground that the petitioners were the grove holders of the plot in question. They had planted trees over it after obtaining permission from the Zamindar. The land has wrongly been entered as Bhita and that the petitioners were liable to be recorded as the grove holders-Bhumidhar thereof. 4. It has been averred that this objection was rejected by the Consolidation Officer by his order dated 26.11.1974. However copy of this order has not been annexed with the writ petition. 5. The consequential appeal filed by the petitioners was rejected by the Settlement Officer, Consolidation as being barred by time vide order dated 19.10.1989. 6. Aggrieved by the appellate order, the petitioners filed Revision No. 1076/990. This revision is stated to have allowed by order dated 26.7.1991, the delay in filing the appeal was condoned and the matter was remanded back to the appellate authority for passing a fresh order. This order was passed on the reasoning that no counter affidavit had been filed controverting the averments made in the affidavit filed alongwith delay application at the appellate stage. 7. Consequent to the aforementioned order of remand, the Settlement Officer, Consolidation by his order dated 17.11.1997 allowed the appeal and directed that the petitioners be entered as Bagdar Bhumidhar. In the operative portion of the order, it was further added by hand that the revenue entries be maintained as earlier- 8. Aggrieved by this part of the order, which was included in the operative portion by hand, the petitioners preferred a revision. Another revision was filed by the Gaon Sabha. In the operative portion of the order, it was further added by hand that the revenue entries be maintained as earlier- 8. Aggrieved by this part of the order, which was included in the operative portion by hand, the petitioners preferred a revision. Another revision was filed by the Gaon Sabha. Both these revisions were consolidated and have been decided by the common order, impugned in the writ petition. 9. By this impugned order, the revision filed by the petitioners has been dismissed while that of the Gaon Sabha has been allowed, the direction of the Settlement Officer, Consolidation for recording the petitioners as Bagdar Bhumidhar be set aside and the basic year entry of Bhita has been maintained. 10. Learned Counsel for the petitioners has submitted that the land in question was recorded in their names or in the name of their ancestors in 1356 Fasli and, therefore, the order impugned is patently illegal. The second submission of learned Counsel for the petitioner is that Lalman died during the pendency of the revisions before the Deputy Director of Consolidation. No substitution application was filed to bring on record the heirs of the deceased Lalman in the revision filed on behalf of the Gaon Sabha and, therefore, the said revision stood abated and could not have been allowed. It has lastly been submitted that the petitioners are the grove holders as they have planted the trees with the permission of the Zamindar and their names or the names of their ancestors were recorded in the Khatauni and the relevant revenue records. 11. Learned Counsel for the petitioners has relied upon the following judgments in support of his contentions. "1. Subrati v. D.D.C. 1981(2) RD (H) 401. 2. Bhillar and others v. D.D.C. and others, 1983 RD 299. 3. Ramdular v. Deputy Director of Consolidation 1982 AWC, 306." 12. Learned Counsel for the Gaon Sabha on the other hand supported the impugned order. He has submitted that the land in dispute surrounds a pond and was rightly recorded as Bhita. Several temples etc. exist on this Bhita land and the fruits and wood from the trees planted thereon are used by the general public. The revenue entries have been manipulated at the instance of the son of Sukkhan, who was Pradhan of the village. From the array of parties, it is clear that respondent No. 15 is the son of Sukkhan. exist on this Bhita land and the fruits and wood from the trees planted thereon are used by the general public. The revenue entries have been manipulated at the instance of the son of Sukkhan, who was Pradhan of the village. From the array of parties, it is clear that respondent No. 15 is the son of Sukkhan. 13. I have considered the submissions made by learned Counsel for the parties and have perused the record. 14. It is clear from a perusal of the appellate order that the Settlement Officer, Consolidation relied upon the entry of 1291 Fasli, wherein 18 trees were recorded over the land in question having an area of 3.46 hectares. He has further recorded that the number of trees was such that the land could not be used for any other purpose and, therefore, in view of section 205 of the U.P. Tenancy Act, the petitioners were grove holders on the date of vesting. With the aforesaid findings, he allowed the appeal. 15. The Deputy Director of Consolidation in the impugned order has recorded that the number of trees said to be existing over the land in dispute were not in such numbers as to constitute on grove. He has therefore recorded that, in fact, the appellate order grants title to the petitioners over the trees, while maintaining the entry of Bhita as regards the land, whereupon these trees exist. I find no illegality in this reasoning given by the Deputy Director of Consolidation. It is settled law that ownership of trees planted over land belonging to the Gram Sabha is of the person who have planted the tree and merely because such trees have been planted, the owners of such trees do not acquire title over the land, whereupon three trees have been planted. 16. Coming to the judgments cited by the petitioners, in the case of Subrati (supra), this Court has held that Bhita would constitute a grove, if the number of trees planted thereon were in such numbers that would preclude the land from being used for any other purpose. It has further been held that if the trees exist in such number so as to constitute a grove, then the person who have planted the trees would be grove holder and after abolition of Zamindari, Bhumidhar of the land in question. 17. It has further been held that if the trees exist in such number so as to constitute a grove, then the person who have planted the trees would be grove holder and after abolition of Zamindari, Bhumidhar of the land in question. 17. The relevant portion of the judgment in the case of Bhillar (supra) is extracted below "If the disputed land though Bhita presents shape of a grove on the spot and the petitioners along with others are owners in possession of the trees situate thereon since the year 1288-F. I think that the petitioners would acquire grove holder right in the disputed land under the provisions of Tenancy Laws and under the provisions of U.P.Z.A. and L.R. Act, they would acquire bhumidhari right in the disputed area." 18. It is clear from the portion of the judgment extracted above that if the numbers of trees planted were in such numbers so as to constitute a grove, the person who had planted trees would become grove holders thereof under the provisions of the Tenancy Act and would acquire Bhumidhari rights under the provisions of U.P. ZA and LR Act. 19. Similar is the position in the case of Ramdular (supra), wherein also the matter was remanded back for a decision on the question whether the trees standing upon the land in dispute were sufficient to constitute a grove. 20. I have given my careful consideration to the judgments cited by learned Counsel for the petitioners, but I am constrained to hold that they do not help the petitioners. 21. The Deputy Director of Consolidation has categorically recorded that the 18 trees said to be existing over the plot in dispute having an area of 3.46 hectares were not enough to constitute a grove. He has also recorded on the basis of this reasoning that the land was entered as Bhita in 1334 Fasli as also in the Khatauni of 1356 and 1359 Fasli, which entry has continued up to the basic year and has therefore held that the conclusion of the Appellate Court that the petitioners or their ancestors were grove holders on the date vesting and, thereafter, became Bhumidhars in view of section 18 of the U.P. ZA and LR Act, is erroneous. 22. 22. All the cases relied upon by the learned Counsel for the petitioners only hold that in case the number of trees existing were in such numbers as to constitute a grove, the holders of the trees would become grove holders. 23. On the contrary, the Deputy Director of Consolidation in the impugned order has recorded a categorical finding that the number of trees existing over the plot in question, which was recorded as Bhita were not in such numbers as to constitute a grove. He has therefore rejected the claim of the petitioners in this regard and has directed that the entry of Bhita be maintained. I find no illegality in the reasoning given by the Deputy Director of Consolidation and, therefore, the impugned order is not liable to be interfered with. 24. Insofar as the other submission of learned Counsel for the petitioner that Lalman had died during the pendency of the revision and that therefore the revision filed by the respondent No. 4 stood abated also lacks substance. The revision filed by the Gram Sabha had been filed through the Lalman, the Up-Pradhan and this fact is clearly established from perusal of Annexure-6 to the writ petition, which is the memo of revision filed by the Gaon Sabha. The death of the Up-Pradhan would not lead to abatement of the revision filed on behalf of Gaon Sabha, which is a body corporate having perpetual succession as provided in the U.P. Panchayat Raj Act, 1947. Therefore, the second submission made by learned Counsel for the petitioner is also wholly without sub-stance. Accordingly and for the reason given above, the writ petition lacks merit and is accordingly dismissed.