Ramesh Singh vs Gram Panchayat And Others
2012 Latest Caselaw 2857 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 26
 

 
Case :- WRIT - C No. - 15560 of 2000
 

 
Petitioner :- Ramesh Singh
 
Respondent :- Gram Panchayat And Others
 
Petitioner Counsel :- Anil Sharma
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble B. Amit Sthalekar,J. 

By this writ petition, the petitioner is seeking a writ in the nature of certiorari quashing the notice dated 5.2.2000 whereby the Tehsildar Chandpur District Bijnor held the possession of the petitioner to be unauthorised and called upon the petitioner to show cause as to why he may not be evicted for unlawful occupation of the land in question which belongs to Gaon Sabha and also for causing damages to the property.

The facts of the case, in brief, are that the petitioner was allotted the land in question by the Land Management Committee for a sum of Rs.900/- payable to the Gaon Sabha through receipt dated 20.4.1980. The petitioner constructed boundary wall, two rooms, tin shed besides a thatch over this land. He tethered his cattle and used to store cow dung cakes. He also kept his tractor-trolley, tiller and buggi etc. One room was used for storing chaff. The case of the petitioner further is that the Gram Pradhan and his employees are trying to forcibly evict the petitioner from the property to construct an office for Krishi Prasad in the north of the disputed land. The petitioner filed a suit no. 783 of 1992 which the respondents did not contest and, therefore, the decree became final between the parties. Thereafter the respondents again tried to forcibly evict the petitioner from the land in question and, therefore, the petitioner again filed another suit no. 28 of 1994, which was decreed on 12.12.1994. This suit was contested by the respondent-Gaon Sabha by filing its written statement, paper no. 47-A. In the written statement it was alleged that the Pradhan was the father of the petitioner and therefore, he could not have allotted the land in question to his son and even otherwise there was no resolution of the Land Management Committee of the Gaon Sabha. It was alleged that the petitioner took advantage of the fact that his father was the Pradhan of the Gaon Sabha and took possession over the land in question. The trial court held that the plaintiff-petitioner was in possession over the land in question and that he had a receipt from the Land Management Committee in his favour but it also recorded a finding that the receipt was issued by his own father and beside the plaintiff-petitioner had not filed copy of the resolution of the Gaon Sabha and suit was ultimately dismissed.

Aggrieved the plaintiff-petitioner filed civil appeal no. 18 of 1997 (Ramesh Singh Vs. Babu Ram and others). The appellate court has recorded a clear cut finding that the appellant-petitioner was in possession over the land in question and this finding had not been challenged by the respondent-Gaon Sabha. It has also recorded a finding that receipt was issued by the Gaon Sabha in favour of the appellant-petitioner showing him to be a valid allottee of the land in question. However, the court held that as long as the appellant-petitioner had a valid allotment order in his favour he could not have been dispossessed from the land in question and he cannot be said to be a person who had encroached over the land of Gaon Sabha so far as the legal allotment certificate in his favour survives. On the question of damages the appellate court had held that the petitioner had failed to establish the extent of damage he had sustained and therefore, the relief to the extent of damage was rejected and the appeal of the appellant-petitioner was partly allowed. It was held that the appellant-petitioner cannot be evicted from the suit property otherwise than in accordance with law.

I have heard Shri Anil Sharma, learned counsel for the petitioner and the learned standing counsel for the respondents as well as perused the material on record.

The submission of Shri Sharma is that the appellate court in civil appeal no. 18 of 1997 has recorded a clear cut finding that there was an allotment order in favour of the petitioner dated 20.4.1980 and there was also a receipt of payment of Rs. 900/- in pursuance of the order of allotment and therefore, the possession of the petitioner over the land in question cannot be said to be illegal or unauthorised. His submission further is that the order of the court below dated 13.4.1998 passed in civil appeal no. 18 of 1997 had become final between the parties inasmuch as the respondent did not challenge the same in any superior court and, therefore, the possession of the petitioner having been held to be valid over the land in question, he could not be said to be an unlawful occupant of the disputed land or have caused any damage to the same.

Rebutting the submissions of the learned counsel for the petitioner, the learned standing counsel has submitted that at the time when the land was allotted in favour of the petitioner, the petitioner's father was the Pradhan of the Gaon Sabha and, therefore, the land in any case could not have been allotted in favour of the petitioner and that it was a collusive action and therefore, the possession over the land in question and any receipt of the Gaon Sabha was a fraudulent action and, therefore, there was absolutely no infirmity in the notice issued by the Tehsildar, Chandpur, District Bijnor dated 5.2.2000 and the Tehsildar was well within his right to proceed to take action in pursuance of the provisions of section 122(B) of the U.P. Zamindari Abolition and Land Reforms Act 1950. It has also been submitted that the respondents were never made a party to the suit and whatever decree was obtained by the petitioner was an ex-parte decree.

From a perusal of the records and considering the submissions of the learned counsel for the respective parties, it is seen that there was a clear cut finding of the appellate court in civil appeal no. 18 of 1997 (Annexure-3 to the writ petition) that the possession of the petitioner over the land in question was valid and there was an allotment order in his favour and also a receipt has been issued to him of Rs.900/- which was paid by the Gaon Sabha and, therefore, his possession cannot be said to be illegal and unauthorised. The appellate court has also recorded a clear cut finding that the Gaon Sabha was a party to the dispute and had contested the suit by filing the written statement which was filed as paper no. 47-A and, therefore, it cannot be said that the Gaon Sabha was not a party in the suit or that the decree was an ex-parte decree and the finding recorded by the court below was not binding upon the respondents.

Even assuming that the decree was ex-parte, the respondents could have applied to the court for setting aside the ex-parte decree. In view of the categorical finding recorded by the appellate court that the suit had been contested by the respondents and the written statement had also been filed, it cannot be said that the suit was decreed ex-parte.

So far as the finding recorded by the civil court that the possession of the petitioner is valid and there was a receipt in his favour, the learned standing counsel has not been able to point out that any challenge was given to the order of the civil court dated 13.4.1998 and therefore, in the circumstances the finding has become final between the parties.

In this fact situation the possession of the petitioner cannot be held to be illegal, or unauthorized and the order dated 5.2.2000 passed by the Tehsildar, Chandpur District Bijnor holding the petitioner to be in illegal and unauthorised possession over the land in question deserves to be quashed.

For the aforesaid reasons the writ petition is allowed and the order dated 5.2.2000 passed by the Tehsildar, Chandpur District Bijnor is accordingly quashed.

There shall be no order as to cost.

Order Date :- 13.7.2012

o.k.