Allahabad High Court
Daya Ram vs State Of U.P. And Others on 29 September, 2011
Bench: Sibghat Ullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
(Judgment reserved on 30.5.2011)
(Judgment delivered on 29.9.2011)
In Chamber
Case :- WRIT - C No. - 1391 of 1999
Petitioner :- Daya Ram
Respondent :- State Of U.P. And Others
Petitioner Counsel :- A.N.Srivastava,N.K.Srivastava,P.K.Srivastava
Respondent Counsel :- C.S.C.,D.D.Chauhan,D.P. Singh,V.K.Singh
Hon'ble Sibghat Ullah Khan,J.
Heard Shri A.N.Srivastava, learned counsel for the petitioner and learned standing counsel for the respondents.
This writ petition arises out of proceedings under Section 122-B of U.P. Zamindari Abolition & Land Reforms Act. The first order which has been challenged through this writ petition was passed on 31.10.1998 by Assistant Collector/Tehsildar, Tehsil Bilhaur District Kanpur Nagar in case no.209 underSection 122-B - Gaon Sabha vs. Daya Ram copy of the said order is Annexure-8 to the writ petition. Through the said order eviction of the petitioner from gaon sabha plot no.896 area 0.102 hectare situate in village Chaudharypur was directed and damages of Rs.27,765.00 were also imposed against the petitioner. The allegation against the petitioner was that on the land in dispute petitioner had encroached by constructing house and dumping the waste (ghoora). In the revenue record land in dispute was entered as usar.
It is mentioned in the said order that the case of the petitioner was that Civil court had decided a suit in respect of property in dispute in his favour. Tehsildar in his order observed that it was not clear that at the time when suit was filed and decided the land in dispute was entered in whose name and sketch map mentioned in the judgment of the Civil court was also not available on record hence it could not be ascertained that the judgment of the civil court was in respect of which precise property.
Against the order dated 31.10.1998 petitioner filed revision no.13 of 1998 which was dismissed by Additional Collector, Kanpur Nagar on 16.12.1998. Copy of the said order is Annexure-10 to the writ petition which has also been challenged through this writ petition. Revisional court observed that petitioner contended that petitioner's father was in possession for 100 years and the land in dispute was being used as khaliyan since 1949 and Nanha and some other persons tried to interfere in the possession of petitioner's father hence he filed original suit no.137 of 1949 which was decided in his favour.
Learned counsel for the petitioner has mainly argued that the ownership of the petitioner was approved by the Civil court and the said judgment operates as res-judicata. Copy of the judgment dated 15.1.1957 passed by Munsif, Hawali, Kanpur in Original suit no.137 of 1949 which was decreed is Annexure-5 to the writ petition. In the operative portion it is mentioned that defendants are restrained from interfering in plaintiffs possession over land shown by A,B,C,D in the site plan which shall form part of the decree. However, the site plan has not been filed. Against the said judgment and decree defendants of the suit filed Civil appeal no.158 of 1957. The said appeal was dismissed on 26.9.1958. Copy of the appellate court judgment is Annexure-6 to the writ petition.
The judgments passed by the Civil court do not operate as res-judicata as Gaon Sabha or the State was not party therein. The case taken up by petitioner's father in the Civil suit was that he was using the land in dispute as khaliyan and for tying his cattles for more than 50 years. In the Civil Court's judgment it is not mentioned that in whose name the land was entered in the revenue record. The suit was decreed mainly on the ground that defendants' witnesses virtually admitted the case of the plaintiff.
In my opinion judgment of the Civil court is admissible under Section 13 Evidence Act however, it will not operate as res-judicata as Gaon sabha or State was not party therein.
Order passed under Section 122-B of U.P.Z.A.&L.R. Act is subject to result of the regular suit based on title as provided under Section 122-B(4-D).
Accordingly, writ petition is dismissed on the ground of alternative remedy. Petitioner is at liberty to file Civil suit challenging the orders passed under Section 122-B of U.P.Z.A.&L.R. Act (which have been challenged through this writ petition).
The amount of Rs.8,000/- deposited under interim order passed in this writ petition shall be invested in some good interest bearing account initially for a period of three years renewable in the same manner after every three years alongwith accrued interest until decision of the suit, if filed within six months otherwise the said amount shall be kept in consolidated Gaon Fund constituted under Section 125-A, U.P.Z.A. & L.R. Act.
For a period of six months execution of the impugned orders shall remain stayed. If regular suit is filed within six months then until decision of the suit impugned orders shall not be given effect to on the condition that petitioner does not unduly delay the proceedings of the suit and every year on or before 31st July, petitioner deposits Rs.2,000/- before the trial court which shall be kept in some good interest bearing account. Order regarding disbursement of the already deposited amount of Rs.8,000/- and the yearly amount which the petitioner would be depositing alongwith interest should be passed while deciding the suit finally.
Order Date :- 29.9.2011
RS
