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2015 DIGILAW 356 (UTT)

RAMVATI v. STATE OF UTTARAKHAND

2015-07-17

ALOK SINGH

body2015
JUDGMENT Hon’ble Alok Singh, J. (Oral) 1. Present petition is filed assailing the judgment and order dated 17.06.2015, passed by Deputy Director Consolidation / Additional Collector, Udham Singh Nagar, whereby revision preferred by the State Government was allowed and judgment and order dated 25.11.1995, passed by the Consolidation Officer was set aside. 2. Undisputedly, in Kumaon region wherein village, in question, is situated, provisions of U.P.Z.A. & L.R. Act were enforced w.e.f. 1st July, 1969; land of khata khatuni No. 80, Gata No. 242/1, Village Bandia, Pargana Rudrapur, Tehsil Kichha, District Udham Singh Nagar was recorded in the revenue record in favour of Murari Lal, Dharmpal and Har Sahai S/o Meva Ram as bhumidar in possession thereof; petitioners, herein, on the commencement of the consolidation operation, moved an application under Section 9 of the U.P. Consolidation of Holdings Act before the Consolidation Officer, Kichha saying one agreement to sell / relinquish / surrender deed was executed in favour of the petitioners on 13th January, 1968 by Mewa Ram, father of Murari Lal, Dharmpal and Har Sahia; petitioners are in possession of the land, in question, w.e.f. 31.01.1968, therefore, petitioners should be recorded as bhumidar of the land, in question, after deleting the name of Murari Lal, Dharmpal and Har Sahai S/o Meva Ram. Learned Consolidation Officer, Kichha, vide order dated 25.11.1995, having observed that petitioners were put in possession by the then hereditary tenant, Shri Meva Ram on 13.01.1968 and, since then, petitioners are in possession, therefore, before the commencement of the U.P.Z.A. & L.R. Act, petitioners have acquired occupancy tenancy right and after the enforcement of U.P.Z.A. & L.R. Act, have acquired bhumidari right, was pleased to pass order to record the name and possession of the petitioners over the land, in question, in place of Murari Lal, Dharmpal and Har Sahai S/o Meva Ram; having acquired knowledge about the mutation made in favour of the petitioners by the Consolidation Officer, Revision was preferred by the State Government under Section 49 of the Act, which was allowed vide impugned order. Feeling aggrieved, petitioners have invoked supervisory jurisdiction of this Court under Article 226 of the Constitution of India. 3. I have heard Mr. Rajesh Pandey, learned counsel for the petitioners, Mr. Gajendra Tripathi, learned Brief Holder for respondent No.1 and have carefully perused the record. 4. Feeling aggrieved, petitioners have invoked supervisory jurisdiction of this Court under Article 226 of the Constitution of India. 3. I have heard Mr. Rajesh Pandey, learned counsel for the petitioners, Mr. Gajendra Tripathi, learned Brief Holder for respondent No.1 and have carefully perused the record. 4. Undisputedly, before the enforcement of U.P.Z.A. & L.R. Act, Shri Meva Ram, father of respondent Nos. 2 and 3, herein was recorded as hereditary tenant of the property in question; on the enforcement of the U.P.Z.A. & L.R. Act on 01.07.1969, Shri Meva Ram was declared and recorded as bhumidar in possession of the land in question; after the death of Meva Ram, his three sons, namely Murari Lal, Dharmpal (respondent Nos. 2 and 3, herein) and Har Sahai were recorded as bhumidar in possession. On the commencement of the consolidation proceedings in the Village Bandia, Pargana Rudrapur, Tehsil Kichha, District Udham Singh Nagar, Shri Hridayanand, father of the present petitioners moved application under Section 9 of the Act claiming bhumidhary right thereon on the basis of alleged agreement to sell / relinquish deed dated 13.01.1968. 4. Learned counsel for the petitioners submits that Shri Meva Ram, father of respondent Nos. 2 and 3 was admittedly hereditary tenant of the land in question; Shri Meva Ram, being hereditary tenant was not authorsied to part with his possession in view of Sections 39 and 44 of the U.P. Tenancy Act, therefore, he has executed agreement to sell / relinquish deed dated 13.01.1968; in view of Section 180 (2) of the U.P. Tenancy Act, father of the petitioners has acquired hereditary tenancy right after completion of two years from the date of execution of relinquished deed dated 13.01.1968. 5. Learned counsel for the petitioners further contends that after the enforcement of U.P.Z.A. & L.R. Act, father of the petitioners has acquired bhumidhary rights, therefore, petitioners were rightly declared and recorded as bhumidar in possession of the property in question by the Consolidation Officer. 6. In the case of Bharit and others Vs. Board of Revenue, U.P. and others, reported in 1972 R.D. 451, Division Bench of Allahabad High Court has held that if any transfer deed is executed in respect of tenancy right, after the lapse of two years prescribed period of limitation, the transferee acquires hereditary tenancy right under Section 180 (2) of U.P. Tenancy Act, 1939. 7. Board of Revenue, U.P. and others, reported in 1972 R.D. 451, Division Bench of Allahabad High Court has held that if any transfer deed is executed in respect of tenancy right, after the lapse of two years prescribed period of limitation, the transferee acquires hereditary tenancy right under Section 180 (2) of U.P. Tenancy Act, 1939. 7. There is no dispute about the legal position as held by the Division Bench of Allahabad High Court in the case of Bharit (Supra). However, in the present case, relinquish deed, in question, was executed on 13.01.1968 and U.P.Z.A. & L.R. Act was enforced on 1st July, 1969, therefore, w.e.f. 1st July, 1969, U.P. Tenancy Act, 1939 stood repealed. Therefore, Section 180 (2) of the U.P. Tenancy Act, cannot press in service, as claimed by the learned counsel for the petitioners. Hence, petitioners cannot be said to have acquired hereditary tenancy right under Section 180 (2) of U.P. Tenancy Act, after expiry of two years from 13.01.1968, i.e. date of execution of relinquish deed. 8. There is another aspect of the matter. In the khatuni and khasra of the basic year, i.e. 01.07.1969, i.e. date of enforcement of U.P.Z.A. & L.R. Act, name and possession of the petitioners were not recorded in the revenue record, therefore, petitioners cannot be said to have acquired bhumidary right on the date of vesting, i.e. 01.07.1969. 9. Yet, there is one another aspect of the matter. After the commencement of the U.P. Consolidation of Holdings Act, consolidation survey was held and CH Form-5 was prepared and possession of the petitioners or their father was not found on the spot, therefore, was not recorded in CH Form-5, consequently, finding of the learned Revisional Court that petitioners could not prove their possession pursuant to the relinquish deed either on the date of vesting, i.e. 1st July, 1969 or on the date of commencement of the consolidation, seems to be perfectly justified, proper and legal. Therefore, does not require any interference. 10. In the result, writ petition fails and is hereby dismissed.