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2014 DIGILAW 3835 (ALL)

Jag Narain v. D. D. C.

2014-12-23

ANJANI KUMAR MISHRA

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JUDGMENT Anjani Kumar Mishra, J. 1. Heard Shri Bipin Lal Srivastava, learned Counsel for the petitioner and learned Standing Counsel for the State-respondents. None has appeared for the Gaon Sabha despite notice in writing having been served upon Shri Manoj Kumar Yadav, who represents the Gaon Sabha as on date. 2. This writ petition arises out of an objection under section 9-A(2) of the U.P. Consolidation of Holdings Act filed by the Gaon Sabha and is directed against the appellate and revisional orders dated 15.1.1977 and 24.5.1979, respectively as also the order passed by the Consolidation Officer dated 9.4.1974 which partly allowed the objection. The dispute relates to plot No. 175/9, area 1 acre. 3. The objection was filed by the Up Pradhan on behalf of the Gaon Sabha on the ground that the land in dispute was Banjar, Talab and Bheeta; the petitioner's father being a Pradhan got his name interpolated in the revenue records and thereafter applied, and obtained a bhumidhari sanad. Hence his name was required to be expunged. 4. The objection was contested by the petitioner on the ground of possession of the land in dispute since before the Abolition of Zamindari where after he came Sirdar and then a Bhumidhar on the basis of the bhumidhari Sanad. It was alleged that the objection had been filed as the Up Pradhan, Shrish Chand Singh was inimical as the petitioner's father had opposed a suit under section 229-B that had been filed by Shrish Chand Singh. 5. The Consolidation Officer by his order dated 9.5.1974 allowed the objection of the Gaon Sabha in part. 0.33 acres of the plot in question was ordered to be recorded as Bheeta while as regards the remaining 0.67 acre the objection of the Gaon Sabha was rejected. 6. Aggrieved by the order, the petitioner as also the Gaon Sabha preferred appeals. The Settlement Officer, Consolidation dismissed both the appeals and affirmed the order passed by the Consolidation Officer. Against the appellate order, revisions were filed by the Gaon Sabha as also the petitioner. The Deputy Director of Consolidation by his order dated 24.5.1979 allowed the revision of the Gaon Sabha and dismissed the petitioner's revision. As a consequence thereof, the objection of the Gaon Sabha stood allowed in toto. Hence this writ petition. 7. Against the appellate order, revisions were filed by the Gaon Sabha as also the petitioner. The Deputy Director of Consolidation by his order dated 24.5.1979 allowed the revision of the Gaon Sabha and dismissed the petitioner's revision. As a consequence thereof, the objection of the Gaon Sabha stood allowed in toto. Hence this writ petition. 7. It has been submitted that the petitioner became Sirdar of the plot in question on the date of vesting as the petitioner was recorded as occupier over land which was not covered by section 212 or section 132 of the U.P. Zamindari Abolition and Land Reforms Act. Therefore, the entry in 1359 fasli was enough to confer Sirdari rights upon him on the Abolition of Zamindari. It has further been submitted that the reasons recorded by the Consolidation Officer and the Settlement Officer, Consolidation for holding in favour of the petitioner in part have not been adverted to, while passing a judgment of reversal. 8. It would be relevant to note that the petitioner's father was recorded in the khatauni of 1359 fasli under section 10-A. This entry is of an occupier of land without title when no one was recorded in Column-5 of the khasra. 9. Moreover, the entry under Zimab 10-A as already noted above, denotes an occupier of land without title. There is nothing on record to show as to under what right, title or interest, the petitioner's father was recorded in 1359 fasli. 10. The import of an entry under Ziman 10-A of the Khatauni has been considered in the case of Mahadeo Pandey v. Suraj Bhan Singh and others 1964 RD 253. It has been held therein that such entry only indicates that the person recorded has no title to the land and is not a tenant thereof. It does not shed any light on the nature of occupation of the person recorded under Class 10-A. The nature of occupation has to be determined by going behind and outside the entry on the basis of evidence and circumstances of the case. 11. The claim of the petitioner in the instant case is based upon the entry alone and there is no evidence or pleading as regards the nature of occupation and the same, therefore, cannot be determined. 11. The claim of the petitioner in the instant case is based upon the entry alone and there is no evidence or pleading as regards the nature of occupation and the same, therefore, cannot be determined. It is claimed by the petitioner that in view of the entry under Ziman 10-A, the person recorded became sirdar on the abolition of Zamindari. Sirdari rights accrued in accordance with the provisions of section 19 of the U.P. Z.A. & L.R. Act to a tenant holding on special terms in Avadh, an ex-proprietary tenant, an occupancy tenant, a hereditary tenant, a grantee at favourable rate of rent, a non-occupancy tenant of tea estates, a sub-tenant under the Tenancy Act or a holder of a patta Dawami or Istarari. 12. As already observed, in the case of Mahadev Pandey (supra) a person recorded under Ziman 10-A was not a tenant and only an occupier, and therefore, the petitioner's predecessor was not covered by any of the sub-sections of section 19. 13. In para 9 of the writ petition it has been averred that no one including the petitioner's father acquired sirdar rights to the land in question under section 19read with section 16 of the Z.A. & L.R. Act and that the petitioner became sirdar as he satisfied the conditions specified under Rule 177-A of the U.P. Z.A. & L.R. Rules which pertains to grant of sirdari rights on the basis of any entry in 1369 fasli. 14. The petitioner had neither filed any document on record evidencing the entry in 1369 fasli nor had raised this plea in the Courts below. At new plea is, therefore, being raised in the writ petition for the first time which cannot be permitted. The plea raised was only that the petitioner's father being recorded in the khatauni of 1359 fasli became sirdar on abolition of zamindari which has been rejected for cogent reasons. 15. The writ petition, therefore, lacks substance and the impugned order has to be affirmed. The petition is accordingly dismissed.