Ram Kishun Singh @ Ram Krishna ... vs State Of U.P. And Others
2013 Latest Caselaw 7255 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

											A.F.R
 
Court No. - 39
 

 
Case :- WRIT - C No. - 7672 of 2013
 

 
Petitioner :- Ram Kishun Singh @ Ram Krishna Singh
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Sudhakar Pandey
 
Counsel for Respondent :- C.S.C.,K.N.Mishra
 

 
Hon'ble V.K. Shukla,J.

Hon'ble Suneet Kumar,J.

Petitioner by means of this writ petition seeks a direction in the nature of mandamus directing the authorities concerned to permit the petitioner to transfer his land by registered sale deed in favour of any person and further a direction is being sought against the authorities not to interfere from transferring the title of the property in question in favour of any person.

The brief facts of the case is that Arazi Nos.296, 297 and 869 Ka (Mi) measuring 0.0216 and 0.684 Hectares respectively was recorded in the name of the ancestors of the petitioner in the revenue records. After the death of the Tikori Singh, father of the petitioner, the name of the petitioner has been recorded as successor in the revenue records.

Petitioner claims that he wants to transfer the said property to third parties, however, the said sale deed was objected to by the Sub Registrar (Registration) Kasia District Kushinagar by his order dated 18.1.2013 stating therein that District Cooperative Bank stands on the said property and further the property has been grossly under valued and there is a specific direction of the District Magistrate as well as Assistant Inspector General (Registration) stating that sale in respect of the property in question need not be registered.

Counter affidavit has been filed on behalf of the State wherein it has been stated that Deoria Kasia Zila Sahkari Bank Ltd. Branch Kasia was established in the year 1906 on the property in question and the Bank is running on the plots recorded in the name of Tikori Singh, father of the petitioner. On 1.11.1951, the Bank constructed the building on the said property. Tikori Singh who died in 1980 had never objected to the said construction during his life time and since 1980, the petitioner has also not raised any objection. It is also stated that after the death of Tikori Singh, the petitioner managed to get his name recorded in the revenue record during the consolidation proceedings, although the plots in dispute were recorded as abadi land in the revenue records and therefore were outside the consolidation proceedings. Since the petitioner was not in possession of the land in question prior to the enforcement of U.P.Z.A & L.R Act 1950, hence the property stood settled with the Bank under section 9 of the aforesaid mentioned Act.

Shri K.N.Mishra, Advocate has put in appearance on behalf of respondent Bank and it has been stated that the Bank was established in 1906 and since then the Bank is in possession of the said premises. The premises also comprises of the houses and quarters of the Bank officials. Extracts of Khasra (field register) has also been filed showing that on the said plot Cooperative Bank is established. During consolidation proceedings also the said property is recorded as abadi. The petitioner fraudulently managed to get the property recorded as Bhumidari and since then the petitioner claims to have title on the said property.

We have heard the counsel for the parties.

The contention of the petitioner that he has having title on the said property cannot be accepted as the petitioner has failed to demonstrate as to how he got himself recorded as Bhumidar on the land which is admittedly abadi. The Bank was established in the year 1906 is admitted between the parties. After abolition of the Zamindari and publication of notification under the Act, property in question vested with the Bank in pursuance of Section 9 of the U.P Z.A & L.R Act. Section 9 is reproduced below:

"9. Private wells, trees in abadi and buildings to be settled with the existing owners or occupiers thereof - All wells, trees in abadi and all buildings situate within the limits of an estate belonging to or held by an intermediary or tenant or other person whether residing in the village or not, shall continue to belong to or be held by such intermediary tenant or person, as the case may be,and the site of the wells or the buildings within the area appurtenant thereto shall be deemed to be settled with him by the State Government on such terms and conditions as may be prescribed."

It is not the case of the petitioner that his father has ever raised any objection or adjudicated the matter before any forum to challenge the vesting of the property in favour of the Bank. The father of the petitioner died in the year 1980 and then, the petitioner also did not raise any objection or approached any forum to claim title to the said property. It is during consolidation proceedings, the petitioner fraudulently managed to get his name entered as Bhumidar of the said property. The said entry is absolutely on the basis of fraud and mis representation as Abadi land are not included within consolidation proceedings and are excluded from the said proceedings. The Consolidation Officer themselves have recorded the said property as abadi which is recorded in Form CH 41. For more than 50 years after abolition of Zamindari, the Bank is functioning on the said property and also have constructed the premises. The petitioner till date have not raised any objection nor his father ever raised any objection knowing very well that the property vested with the Bank under section 9 of the Act. It is also not the case of the petitioner that the Bank is a tenant and his father ever received any rent or the petitioner has been receiving any rent since 1980. Nothing has also been brought on the record to show that the building in question was constructed by the father of the petitioner.

Section 4 of U.P.Z.A & L.R Act deals with vesting of an estate in the State whereas Section 6 deals with consequences of the vesting of an estate in the State. Now reading the two sections together three things emerges on coming into the force of the Act. By virtue of Section 4 the right, title and interest of all intermediaries in every estate, including Hats, Bazars and Melas, stood terminated. Secondly, this whole bundle of interests came to be vested in the State, free from all encumbrances, the quality of the vesting being absolute. Thirdly, one and only one species of property in Hats, Bazars and Melas was expressly excluded from the total vesting of estates in the State, viz. such as had been held on lands to which Section 18(1)(a) to (c) applied. Section 9 at this stage needs to be examined as it provides for settlement under the State, of some kinds of landed interests in existing owners or occupiers.

Ordinarily property is held by a person to whom it belongs i.e Owner. Such person alone is entitled to the deeming concept of settlement under Section 9 and not any person holding on inferior right or by imperfect adverse possession.

In Hari Shanker versus Narendra Pratap Bahadur Singh and others AIR 1973 Allahabad 561 where Zamindar-plaintiff's permitted the defendants to construct building exclusively in their ownerships on Zamindar's land. The rent from the said property was being shared. After abolition of the Zamindari, the owner of the building started realising rents from the shops by not paying the share to the Zamindar. The Zamindar filed suit for recovery of half of the share on the ground that ownership of the site on which the shop stood belonged to him. This Court repelled the said argument on the ground that the building belonged to the person who constructed it and after abolition of the Zamindari since the site vested with the State, it could not be said that the Zamindar held the said buildings. The Court further stated that the word 'held' used in section 9 would mean building belonging to a person lawfully and it would not mean a tenant who has an inferior right. The tenant hold it on behalf of the owner and not on his own right. Secondly a trespasser will also have no right under section 9 as the trespasser cannot be the owner vide Budhan Singh versus Nabi Bux AIR 1962 Alld 43 which was affirmed by the Supreme Court in Budhan Singh versus Nabi Bux AIR 1970 SC 1880. In Budhan Singh (Supra) it was held that a house built as Riyaya on the land of Zamindar of the Village, with his permission, belonged to the said person and not to the Zamindar. Even in case the person had left the premises for some time and on his return the building was taken possession by the Zamindar, it was held that Zamindar being the trespasser would not have a right under section 9 and the building would not be deemed to be settled with the Zamindar because 'held' in section 9 means lawfully held and not gained wrongful possession.

In the facts of the present case, it is not the case of the petitioner that the Bank was ever a tenant of his father or ancestors. It is a specific case of the Bank that they had constructed the building of the Bank and the premises around the Bank and the banking activity is being carried on since 1906. Therefore, after abolition of the Zamindari, in view of section 9, the building standing on the site belonging to the father of the petitioner shall be deemed to have been settled in favour of the Bank.

It is also admitted case between the parties that after abolition of the Zamindari, no proceedings was ever initiated by the father of the petitioner and even after the death of the father of the petitioner in 1980, the petitioner did not initiate any proceeding. The silence on the part of the petitioner as well as his father for the more than of 50 years cannot be raised and adjudicated in a writ jurisdiction under article 226.

The Court is of the view that property on which the Bank stands was deemed to have been settled in favour of the Bank by the State under section 9 of U.P.Z.A & L.R Act.

For the reasons stated herein above, this Court is not inclined to interfere under Article 226 of the Constitution of India. The relief claimed for seeking mandamus to enable the petitioner to transfer the property to 3rd party cannot be accorded as the petitioner has failed to demonstrate before this Court that he has any title to the said property.

The petition is devoid of merits and is dismissed.

Order Date :- 3.12.2013/IB