Sudesh Pal & Another vs State Of U.P. & Another
2013 Latest Caselaw 1582 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 
Case :- SECOND APPEAL No. - 487 of 2013
 

 
Appellants :- Sudesh Pal & Another
 
Respondent :- State Of U.P. & Another

Appellants Counsel :- P.K.Jain

Hon'ble Sudhir Agarwal. J.

1. Heard Sri Amit Kumar Singh, Advocate, holding brief of Sri P.K. Jain, learned counsel for appellants.

2. The only argument advanced by learned counsel for plaintiffs is that in khasra of 1337, disputed land was shown as Abadi in the possession of plaintiff-appellants but the same has been ignored by Courts below illegally though in view of aforesaid entry, plaintiff-appellants were entitled for benefit of Section 9 of U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act, No. 1 of 1951) (hereinafter referred to as "Act, 1950") and the Courts below have committed illegality in denying the same to plaintiffs on the basis of entry contained in the record of consolidation proceedings.

3. Section 9 of Act, 1950 reads as under:

"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."

4. It is clearly applicable when the evidence and proof exist that there existed a well or building on the land in question on the date of vesting. A person can claim benefit under Section 9 of Act, 1950 only on the ground that he was enjoying a building or house etc. on the land in question and not otherwise.

5. In the present case, learned counsel for appellants contended that even if there is no building which they were enjoying on the date of vesting, still on the basis of entry shown in the Khasra of Fasali 1337, plaintiffs are entitled for the said benefit.

6. The Courts below have considered the above submission and the fact that on the date of vesting, there was no building etc. which was being enjoyed by appellants and, on the contrary, the record of the consolidation proceeding clearly showed that the land was banjar and, therefore, vested in the State. Hence the plaintiffs' possession is wholly unauthorized and illegal and he is not entitled for any relief.

7. So far as applicability of Section 9 of Act, 1950 is concerned, a bare perusal thereof would make it explicit that it is applicable only when there is evidence and proof of factum that there existed well or building on the land on the date of vesting. In absence of these things, Section 9 has no application at all. In taking the above view, I am fortified by this Court's decision in Basti Ram Vs. Nagar Nigam, Ghaziabad and Anr., 1999 RD 636.

8. The Apex Court's decision in Budhan Singh Vs. Babi Bux, AIR 1970 SC 1880 itself says that while deciding rights under Section 9 of Act, 1950, legislature intended to ignore rights of the persons having legal title to possession. This is clear for the following observations made by Apex Court:

"10. We are unable to persuade ourselves to believe that the legislature intended to ignore the rights of persons having legal title to possession and wanted to make a gift of any building to a trespasser howsoever recent the trespass might have been if only he happened to be in physical possession of the building on the date of vesting. We are also unable to discern any legislative policy in support of that construction. It was urged before us by the learned Counsel for the appellants that the legislature with a view to put a stop to any controversy as to any rights in or over any building directed that whoever was in physical possession of a building on the date of vesting shall be deemed to be the settled of that building. He further urged that it would have been a hard and laborious task for the State to investigate into disputed questions relating to title or possession before making the settlement contemplated by Section 9 and therefore the legislature cut the Gordian Knot by conferring title on the person who was in possession of the building. We see no merit in this argument. The settlement contemplated by Section 9 is a deemed settlement. That settlement took place immediately the vesting took place. No inquiry was contemplated before that settlement. If there is any dispute as to who is the settled, the same has to be decided by the civil courts. The State is not concerned with the same. Section 9 merely settles the building on the person who was holding it on the date of vesting.

11. It is true that according to the dictionary meaning the word "held" can mean either a lawful holding or even a holding without any semblance of a right such as holding by a trespasser. But the real question is as to what is the legislative intent? Did the legislature intend to settle the concerned building with a person who was lawfully holding or with any person holding lawfully or otherwise? Mr. Misra contended that there is no justifi-cation for us to read into the section the word "lawfully" before the word "held". According to him, if the legislature intended that the holding should be a lawful one, it would have said "lawfully held". He wanted us to interpret the section as it stands.

12. It is true that the legislature could have used the word "lawfully held" in place of the word "held" in Section 9 but as mentioned earlier one of the dictionary meanings given to the word "held" is "lawfully held". In Webster's New Twentieth Century Dictionary (Second Edition), it is stated that in legal parlance the word "held" means to possess by "legal title". In other words the word "held" is technically understood to mean to possess by legal title. Therefore by interpreting the word "held" as "lawfully held", we are not adding any word to the section. We are merely spelling out the meaning of that word. It may further be seen that the section speaks of all buildings...within the limits of an Estate, belonging to or held by an intermediary or tenant or other person".... The word "belonging" undoubtedly refers to legal title. The words "held by an intermediary" also refer to a possession by legal title. The words "held by tenant" also refer to holding by legal title. In the sequence mentioned above it is proper to construe the word "held" in Section 9 when used in relation to the words "other person" as meaning "lawfully held" by that person. That interpretation flows from the context in which the word "held" has been used. We have earlier mentioned that the said interpretation accords with justice."

9. Thus, it is evident that decision in Budhan Singh (supra) specifically held that the word "held" cannot be extended so as to include within its ambit the mere trespasser or persons having no otherwise right to hold the building so as to extinguish or over look legal right or title over the disputed property of others. The Court said that scheme of the Act is to abolish all Estates and vest the concerned property in the State but at the same time certain rights were conferred on persons in possession of lands or buildings. It is reasonable to think that the persons who were within the contemplation of the Act are those who were in possession of lands or buildings on the basis of some legal title. Bearing in mind the purpose with which the legislation was enacted, the scheme of the Act and the language used in Section 9 of Act, 1950, the Apex Court said that the word "held" means "lawfully held". That is not the dispute in the present case for the reason that here inapplicability of Section 9 of Act, 1950 is based on the fact that on the date of vesting, it could not be shown that there was any building etc. on the disputed land so as to bring it within the ambit of Section 9 of Act, 1950.

10. In view of above, I do not find that there is any error or illegality in the judgments impugned in this second appeal and in my view, no substantial question of law has arisen in this Second Appeal warranting adjudication by this Court.

11. For the reasons stated above, I do not find any merit in this Second Appeal. Dismissed.

Dt. 2.5.2013

PS(KA)