Allahabad High Court

Angan Lal vs Om Singh & Others on 17 March, 2011

Bench: Shishir Kumar




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 19
 

 
Case :- SECOND APPEAL No. - 248 of 2011
 

 
Petitioner :- Angan Lal
 
Respondent :- Om Singh & Others
 
Petitioner Counsel :- Rajesh Kumar Mishra
 

 
Hon'ble Shishir Kumar,J.

Heard learned counsel for the appellant.

This is the plaintiff's appeal arising out of Suit No.87 of 1998 dated 18.08.2004, by which suit for injunction restraining the defendants has been decreed, but on an appeal filed by the defendants, the appeal has been allowed and the judgment and decree passed by the trial court has been set aside. Hence, the present appeal.

The brief facts of the case, as stated in the plaint, are that patta of the property in dispute was allotted by the Land Management Committee in the year 1974 in favour of one Shiv Charan. After the death of Shiv Charan, his son has inherited the said property and he executed a sale deed on 28.11.1997 in favour of the plaintiff and on the basis of said sale deed he is in possession of the property in dispute. The defendant nos. 2 and 3 wanted to take possession of the property in dispute and to make certain constructions over there by putting a Chhapar on 26.10.2000, therefore, the cause of action for suit has arisen.

The trial court on the basis of pleadings of the parties framed various issues and one of the issue framed was whether the plaintiff is the owner of the property in dispute on the basis of sale deed dated 28.11.1997. The trial court on the basis of pleadings of the parties has recorded a finding that the claim of the defendants is that it was a joint patta, therefore, in the said property half of the portion will be of Shiv Charan and half of the portion will be of one Mohan Lal. It was also pleaded by the defendants that Shiv Charan left the village and settled at his in-laws place and has given the said property to his brother Mohan Lal. Further, when the plaintiff on the basis of sale deed started the construction, then in a Panchayat the property was divided. The defendants have stated that they have got no knowledge regarding the fact that any patta was allotted in favour of Shiv Charan of 176 sqare ft.. They have also stated that they have not purchased any property from Mohan Lal. After considering all the issues, the trial court on the basis of sale deed executed in favour of the plaintiff has restrained the defendants and suit for injunction was decreed vide judgment dated 18.08.2004.

The defendants filed an appeal. The appeal has been allowed on the ground that admittedly it was the property of the Gaon Sabha and a patta was allotted in favour of Shiv Charan and by virtue of Rule 115-Q of the U.P. Zamindari Abolition & Land Reforms Rules, 1952, his son will inherit the property, but there are certain conditions which has to be fulfilled, otherwise the property will relate back to the Gaon Sabha. Admittedly in view of the provisions of law no sale deed can be executed for the said land being the fact that it is a property of the Gaon Sabha, therefore, allowed the appeal and dismissed the suit filed by the plaintiff / appellant. Hence, the present second appeal.

Learned counsel for the appellant has placed reliance upon two provisions of U.P. Zamindari Abolition & Land Reforms Rules, 1952. Rule 115-Q of the same is being quoted below:-

"115-Q. The person to whom the housing site is allotted shall be required to build a house and begin to reside in it or to use if for the purpose for which it was built within three years from the date of allotment. If he fails to do so, uses it at any time for a purpose other than that for which it was allotted his rights shall be extinguished and the site may be taken over the Land Management Committee:

Provided that in the case of a person belonging to Scheduled Castes or Scheduled Tribes the aforesaid time-limit for building of the house shall not apply."

He has further submitted that in view of Rule 115-R (2) the property has been inherited by the heirs and they became sole owner of the property, therefore, they can sell out the same. Rule 115-R is being quoted below:-

"115-R. (1) Where any land or site is allotted in accordance with rules 115-L to 115-Q and house is built thereon or not, then subject to the provisions of sub-rule (2), the allottee and in case of death of the allottee, his heirs shall have no right to transfer such land, site or house within a period of ten years from the date of allotment.

(2) Subject to the provisions of Rules 115-L to 115-Q all allotments of land or site shall be subject to following conditions, namely;

(a) the allottee as well as his heirs shall have a heritable interest in the land or site so allotted;

(b) the allottee and his heirs shall not be liable to ejectment;

(d) the allottee may mortgage, without possession, his interest in the land or the site allotted to him under rules 115-L to 115-Q as security for a loan taken from a co-operative society or from Uttar Pradesh Harijan and Weaker Section Housing Corporation or from the State Bank of India, or from any Bank, which is a Scheduled Bank, within the meaning of clause (e) of Section 2 of the Reserve Bank of India Act, 1934, for construction of a house on the land or site so allotted; and

(e) if the building is abandoned or if the owner thereof dies without any heir entitled to succeed the land or site and the building shall vest in the Gaon Sabha."

In such circumstances, counsel for the appellant submits that the findings recorded by the appellate court is perverse. Further, it is admitted to the parties that sale deed was executed, and appellate court has wrongly dismissed the suit interpreting the provisions, mentioned above.

I have considered the submission of the appellant and perused the record. There is no dispute that patta was allotted in favour of Shiv Charan and his son has inherited the same, but there is a condition in the Rule that where a land has been allotted like such the person to whom the housing site is allotted shall be required to build a house and begin to reside in it or to use it for the purpose for which it was built within three years from the date of allotment. Further, a condition is there that in case he fails to do so, his rights will be extinguished and the site may be taken over by the Land Management Committee. A finding has also been recorded that within a period of three years the house was not constructed, meaning thereby immediately in view of Rule 115-Q of the U.P. Zamindari Abolition & Land Reforms Rules, the property will vest to the Land Management Committee. Further, a contention has been raised on behalf of the appellant placing reliance upon Rule 115-R of Rules, from the perusal of which it does not appear to the Court that after the death of the original allottee, in case his son inherits the said property, he becomes the absolute owner with a transferable rights by executing a sale deed in favour of anybody. From the perusal of sub-clause (2) it does not appear to the Court that it gives absolute power to the heirs of the original allottee to execute and transfer the property which was allotted to their forefathers for the purpose of rehabilitation by the Land Management Committee. Further, a finding has also been recorded that it has not been established that within a period of three years the house was constructed by the original allottee, therefore, according to Rules, the property will immediately relate back to the Land Management Committee.

In such circumstances, in my opinion, the findings recorded by the appellate court is based on evidence and after appreciation of law. As soon as sale deed is executed by the son of Shiv Charan that sale deed will be treated to be null and void and property will immediately relate back to the Land Management Committee. Even the defendants, who claim some part in the property on the basis that Shiv Charan left the village and settled at his in-laws place and has given the property to his brother Mohan Lal that is also not possible in view of the provisions of law because as soon as Rules 115-Q and 115-R is violated immediately the property will relate back to the Land Management Committee and it will be open to the Land Management Committee either to allot patta in favour of anybody, who is eligible, or to keep this land with them, but no party to the present appeal will have any right to access of the said property.

In view of the aforesaid fact, no substantial question of law is involved in this appeal and it is hereby dismissed.

No order as to costs.

Order Date :- 17.3.2011