Raj Kishore Upadhyay vs Addl. District And Session Judge ...
2015 Latest Caselaw 1120 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 03.07.2015
 
Delivered on 10.07.2015
 
Court No. - 34
 

 
Case :- WRIT - C No. - 90 of 2011
 

 
Petitioner :- Raj Kishore Upadhyay
 
Respondent :- Addl. District And Session Judge And Others
 
Counsel for Petitioner :- Triveni Shankar,Ajay Shankar
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri Triveni Shankar, learned counsel for petitioner and learned Standing Counsel for respondents.

2. This writ petition has arisen from the order dated 17.7.2000 passed by Forest Settlement Officer/ Prescribed Authority, Sonbhadra deciding objection of petitioner in respect to land, Khasra no. 2634/8Ga M., area 30 bigha, declaring petitioner as a sole cultivator in possession of 13 bigha and declaring rest 17 bigha as part of Reserved Forest. Thereagainst petitioner filed Misc. Appeal No. 155 of 2000. Smt. Champa Devi, daughter of Kuber Chaubey filed objection in the aforesaid appeal. Lower Appellate Court, i.e., Additional District and Sessions Judge, Anpara at Obra, Sonbhadra allowed the appeal and set aside Forest Settlement Officer's order dated 17.7.2000 vide order dated 28.3.2003 declaring that none was in possession over disputed property, hence land in question is to be included within the Notification under Section 4 for declaring Reserved Forest.

3. Against the aforesaid order of Appellate Authority, Champa Devi, daughter of Kuber Chaubey, filed a Review Application registered as Review No. 6 of 2006 which was rejected by Lower Appellate Court vide order dated 9.3.2010. Another Review Application was filed by petitioner registered as Review No. 39 of 2005, and the same has also been rejected by Lower Appellate Court vide order dated 12.11.2010. These orders passed by Lower appellate Court allowing appeal vide judgment dated 28.3.2003 and the order dated 12.11.2010 rejecting petitioner's Review are also under challenge.

4. As already said, the dispute relate to Khasra No. 2634/8Ga M., area 30 bigha, in respect whereto State Government issued a Notification under Section 4 of Indian Forest Act, 1927 (hereinafter referred to as "Act, 1927") proposing to declare the same as 'Reserved Forest'. In the aforesaid Notification large area of other land was also included.

5. Petitioner filed objection claiming that though the disputed land was recorded in the name of Smt. Champa Devi, daughter of Kuber Chaubey, in 1939 fasali but the fact is that objector is in cultivatory possession of disputed land for the last 30 to 35 years and disputed land is neither a forest area nor otherwise ought to have been included in Reserved Forest since it is a plain and cultivable land and valuable rights are created in favour of petitioner by way of long standing cultivatory possession, hence he should be treated as 'Bhumidhar' in possession of disputed land.

6. Forest Settlement Officer, while considering the said objection under Section 7/11 of Act, 1927, formulated following four issues:

^^1& D;k fookfnr Hkwfe ij oknh 30 twu 1978 ;k mlls iwoZ ls dkfct gS\

2& ;fn dkfct gS rks D;k mUgsa t0fo0,o-Hkw0O;v0 1950 dh /kkjk&131d ds rgr LoRo gkfly gks pqdk gS\

3& D;k fookfnr Hkwfe Hk0fo-v0 dh /kkjk&4 esa foKkfir gS vkSj lqjf{kr ou cukus ds fy, mi;qDr gS\

4& D;k fookfnr Hkwfe lkoZtfud mi;ksx gsrq /kkjk%&4 ls i`Fkd fd;s tkus ;ksX; gS\^^

"1. Whether the plaintiff is in possession over the disputed land since June 30, 1978 or prior to it?

2. If so, whether he has obtained entitlement u/s 131-ka of the Zamindari Vinash evam Bhoomi Vyavastha Adhiniyam, 1950?

3. Whether the land in dispute is notified u/s 4 of Bha. Vi. A. and fit for being developed a conserved forest?

4. Whether the disputed land deserves to be separated from the process of Section 4 for public use?"

(English Translation by the Court"

7. Another objection was filed by Smt. Champa Devi, daughter of Kuber Chaubey claiming that she is the real tenure holder and in possession of disputed property and nobody else is in possession thereof.

8. A third objection was filed by Forest Department claiming that disputed land is proposed to be declared reserved forest and should be maintained as such.

9. The petitioner-objector in support of his claim adduced oral evidence of Sri Sukhlal, son of Murhu, while objector Smt. Champa Devi got her claim fortified by deposition of Paras Nath, son of Gadar, who contested the matter holding Special Power-of-Attorney from Smt. Champa Devi.

10. The Forest Settlement Officer had also made a spot inspection of premises and found that in 13 bigha of the land, Arhar crop was sown and rest of the land was uneven parti. The people present on spot told him that 13 bigha land is solely being cultivated by Sri Raj Kishore and in rest of the land, due to uneven level, very occasionally some crop is sown. From the record, this Court also finds that in Survey Form-9 of 1385 and 1395 fasali, name of Smt. Champa Devi, daughter of Kuber Chaubey was recorded as Bhumidhar in respect to disputed land, but at the time of survey, disputed land was found non agricultural; and, bushes, forest etc. were found existing. There was a survey report of Kanoongo also dated 26.7.1995 stating that disputed land was being cultivated by Sri Raj Kishore since long and he is growing Arhar, Til on the disputed land. On behalf of Smt. Champa Devi, the extract of Khatauni 1369 fasali and 1359 fasali were filed showing that disputed land was recorded as bhumidhari in her name and the crop of Sava, Til, Jau etc. was being sown therein. He, therefore, recorded his inference that disputed land is in possession for agricultural purposes since prior to 1359 fasali and in subsequent survey also cultivation on the disputed land was found but Champa Devi was not found in possession, instead Raj Kishore was cultivating about 13 bigha of land solely, hence he partly allowed objection of Raj Kishore, i.e., petitioner, declaring him cultivator in possession of disputed land, area 13 bigha only, and separated the aforesaid part of land from the proposed Notification under Section 4 of Act, 1927 but for rest of area, i.e., 17 bigha, he allowed it to be included in Reserved Forest. The objection of Smt. Champa Devi was rejected in its entirety.

11. Against the order passed by Forest Settlement Officer on 17.7.2000, petitioner Raj Kishore filed Misc. Appeal No. 155 of 2000 wherein Smt. Champa Devi filed cross-objection dated 10.7.2002 requesting that after setting aside order passed by Forest Settlement Officer, entire land should be maintained as Bhumidhari of Smt. Champa Devi.

12. It appears that Sri Sushil Chand Srivastava, Additional District Judge, Anpara at Obra also made a spot inspection of disputed land and prepared his report dated 30.5.2002 in which he found that disputed land is a non irrigated land giving only one crop in a year. The agriculture is totally depended on rain water and since long it is being cultivated by Sri Raj Kishore growing Arhar, Sava, Sarson, Alsi, Chana, Jau etc. therein.

13. Against the aforesaid inspection report, objection was filed by Smt. Champa Devi and a cross objection was filed by Sri Raj Kishore. It is not clear from record, whether objection of Smt. Champa Devi against local inspection report of Lower Appellate Court was decided and any order was passed thereon or not.

14. Lower Appellate Court, however, passed a final order in Misc. Appeal on 28.3.2003 observing that petitioner-appellant, Raj Kishore, failed to prove his possession over disputed property in 1385 fasali or 1395 fasali on which date name of Smt. Champa Devi was recorded in revenue records as Bhumidhar in possession and if any subsequent possession has been obtained by petitioner, he is not entitled for any benefit.

15. Counsel for petitioner has raised three objections. First that local inspection report dated 30.5.2002 has not been considered by Lower Appellate Court. Secondly it has ignored to consider Section 131-A of U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act, No. 1 of 1951) (hereinafter referred to as "Act, 1950"). Lastly it is contended that Lower Appellate Court has not considered evidence on record and the judgment is patently illegal.

16. So far as the first objection with regard to local inspection report dated 30.5.2002 is concerned, I find that Lower Appellate Court has firstly considered the date on which petitioner has entered into the possession over land in dispute. No specific date or time was mentioned by petitioner but in a vague manner it said that petitioner is in possession of disputed land and cultivating the same since long. The evidence produced by petitioner also did not give any particular date or year since when petitioner entered into possession of disputed land and started cultivation. The inspection report found petitioner in possession of disputed land at the time of inspection or for sometime prior thereto. By itself it would not help the petitioner. At the best it could have been relevant only to find out who was the person actually in possession at the time of inspection, but this fact by itself would not help petitioner in any manner. He was actually claiming his right on the basis of Section 131-A of Act, 1950 which reads as under:

"131-A. Bhumidhari rights in Gaon Sabha or State Government land in certain circumstances.- Subject to the provisions of Section 132 and Section 133-A, every person in cultivatory possession of any land, vested in a Gaon Sabha under Section 117 or belonging to the State Government, in the portion of district Mirzapur south of Kaimur range, other than the land notified under Section 20 of the Indian Forest Act, 1927 before the 30 day of June, 1978, shall be deemed to have become a bhumidhar with non transferable rights of such land.

Provided that where the land in cultivatory possession of a person, together with any other land held by him in Uttar Pradesh exceeds the ceiling area determined under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960, the rights of a bhumidhar with non transferable right shall accrue in favour of such person in respect of so much area of the first mentioned land, as together with such other land held by him, does not exceed the ceiling area applicable to him, and the said area shall be demarcated in the prescribed manner in accordance with the principles laid down in the aforesaid Act."

17. Only those persons who are in possession of land stated in Section 131-A, before 30.6.1978, may claim benefit and not otherwise. Therefore, it was incumbent upon petitioner to specifically adduce evidence and prove that he was cultivating land from a period prior to 30.6.1978. On this aspect, neither any evidence was adduced before Courts below nor even before this Court. On the contrary, revenue record clearly shows that at the time of enforcement of Act, 1950, i.e., 1359 fasali (from 1st July 1949 to 30th June 1950) or 1360 fasali (from 1st July 1950 to 30th June 1951), land was recorded in the name of Smt. Champa Devi as her bhumidhari. Then in the survey Form-9 of 1385 fasali (from 1st July 1975 to 30th June 1976) again name of Smt. Champa Devi was recorded. So much so in the Khasra of 1395 fasali (from 1st July 1985 to 30th June 1986) name of Smt. Champa Devi was recorded. In 1395 fasali and 1385 fasali, it was also found that though land was in the name of Smt. Champa Devi but it was uncultivated forest, bush etc. For the period of 1385 fasali to 1395 fasali, covering the period from from 1st July 1975 to 30th June 1986, the land was recorded as bhumidhari of Chama Devi, but she was not found in possession nor cultivating the same, and further on the basis of Survey-Partal, it was specifically mentioned in record that it was uncultivated forest, bush etc. These documents give uncontroverted evidence that petitioner did not possess land in question at least till 30.6.1986.

18. The petitioner could not adduce any evidence to show that before 30th June 1978, he came in possession and started cultivating the land. If the possession was acquired by him subsequent to 30th June 1986, i.e. 1395 fasali, that fact by itself would not help him in any manner. The statement of Sri Sukhlal, son of Murhu was recorded on 23.10.1998. In his examination-in-chief, he has said that land is cultivable and plain and for the last 25-30 years, Raj Kishore is cultivating the same. The statement is vague and more a guess. In cross-examination, however, he has said that Raj Kishore is cultivating land for quite some time but then he said that he is not aware of any survey conducted about 18 to 20 years back and at that time possession of Raj Kishore was found or not.

19. Petitioner, Raj Kishore, himself got his statement recorded and in cross examination, he said that in the survey conducted about 18 to 19 years back, he was in possession and got a certificate of possession but no such document was placed on record to fortify the said statement. Thus even petitioner could not substantiate his stand. His oral statement has to be prevailed by otherwise documentary evidence.

20. In the order of Lower Appellate Court though specifically reference of local inspection report or Section 131-A is not there, but from contents thereof, it is evident that Lower Appellate Court found that petitioner could not show that he was in possession of disputed land before the cut of date, i.e., 30th June' 1978. Any possession after 1985 or 1986, i.e., 1395 fasali would not help him in any manner. Therefore, relevant provisions and the most crucial aspect relevant to be examined in this matter have been examined by Lower Appellate Court and nothing has been brought before this Court to show that the said findings recorded by Court below is illegal or perverse in any manner. Even before this Court petitioner could not adduce any evidence to show his cultivatory possession over the disputed land before 30th June' 1978. In view thereof, I do not find any error apparent on the face of record in the impugned order warranting interference.

21. The writ petition lacks merits. Dismissed with cost, which I quantify to Rs. 5,000/-.

Dt. 10.07.2015

PS