Jhoori And Others vs Shambhoo Nath And Others
2019 Latest Caselaw 1728 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 21 								AFR
 

 
Case :- SECOND APPEAL No. - 232 of 1990
 

 
Appellant :- Jhoori And Others
 
Respondent :- Shambhoo Nath And Others
 
Counsel for Appellant :- Mohd. Abid Ali,Abid Ali,Tilakraj Singh
 
Counsel for Respondent :- V.P. Nagaur,Akhtar Abbas,Hamendra Nath Tewari,Shyam Lal Misra
 

 
Hon'ble Attau Rahman Masoodi,J.

This second appeal has arisen out of the judgement/decree rendered by first appellate court below i.e. II Additional District Judge, Sultanpur on 21.2.1990 in Regular Civil Appeal No. 49/1986 affirming the judgement/decree rendered in Regular Suit No. 287 of 1984 on 29.3.1986 by the court of III Additional Munsif, Sultanpur.

The facts of the case in brief are that a suit for permanent injunction was filed by the respondents herein in respect of the disputed land shown in the site plan and marked as 'Aa', 'Ba', 'Sa', 'Da'. In paragraph-3 of the plaint, it was averred that the land in dispute had come to be settled in favour of the plaintiffs within the scope of Section 9 of U.P.Z.A. & L.R. Act as on the date of vesting of land in the State. It was also averred in the plaint that the existing structure had collapsed 2-3 years ago and, as a matter of fact, the disputed land was within the actual possession of the predecessors of the plaintiffs since prior to the enforcement of U.P.Z.A. & L.R. Act.

The written statement was filed by the appellants herein taking the same stand that they being the successors in interest of the same very family, had perfected their rights under Section 9 of the U.P.Z.A. & L.R. Act. Thus, the suit for permanent injunction was not maintainable against them.

The trial court having regard to the rival pleas advanced in the plaint and the written statement, framed as many as three issues. Issue no. 1 was to the effect, as to whether the trees planted on the disputed land, as averred in the plaint, belonged to the plaintiffs or not. Issue no. 2 was framed as to the sufficiency of court fee and issue no. 3 was, as to what other reliefs the plaintiffs were entitled to.

It is in the light of the aforesaid issues that evidence was led by the parties, which has come to be considered by the trial court as well as the appellate court below. It is to be noted that a commission report was also called for which is also a part of the evidence considered by the court below. Surprisingly enough, the commission report is not on record except a site plan drawn by Amin Commissioner.

At the time of hearing of the second appeal, this Court has allowed the impleadment of the State as a party looking to the fact that the plea under Section 9 of U.P.Z.A. & L.R. Act was raised by both the parties. Thus, it became imperative that the State ought to have been impleaded as a party in the suit proceedings. This Court has no hesitation to put on record that in all cases where the benefit of Section 9 of U.P.Z.A. & L.R. Act is claimed by the parties, the State/Gaon Sabha concerned shall be impleaded as a party to the suit proceedings. It may be the situation that the dispute is between the private parties but any claim on the premise of Section 9 must come to the notice of the State for the reason that land vests in the State of which the rights are either adjudged or deemed to be settled. The collusive suits may even worsen the situation. In the present case, however, since the Collector, Sultanpur has been impleaded as a party at this stage, therefore, the suit proceedings may not fail merely on account of non-joinder of a party but the issue touching upon the scope of Section 9 of the U.P.Z.A. & L.R. Act must necessarily be tested by the trial court within the ambit of law in presence of all the parties necessary and proper.

This Court having critically analyzed the oral evidence on record, has gathered that the trial court has firstly not framed an issue so as to test the claim of the plaintiffs-respondents within the scope of Section 9 of the U.P.Z.A. & L.R. Act and secondly, the State Government has not been afforded opportunity of putting up its stand and in this manner, the real controversy in the suit could not be delved upon. The claim of intermediaries under Section 9 of the U.P.Z.A. & L.R. Act virtually is nothing but a right claimed against the State property, therefore, participation of the State in suit proceedings is indefeasible.

This Court, regard being had to the oral evidence, has also no doubt to observe that as on the date of vesting, there existed two houses, of which khandhar is found existing on the western side of the disputed land. The plaintiffs as well as the defendants had built their new houses in the village. The house of the plaintiff was situated on the southern side of the disputed land whereas the house of the defendants was situated on the northern side of the disputed land. The evidence led before the trial court clearly shows that the existing khandhar of the two old houses belonging to the ancestors of the plaintiffs as well as the defendants are situated on the western side of the disputed land. In between Khandhar and the disputed land, there was a chak allotted to the plaintiffs. The plaintiffs had to establish that a house existed on the disputed land marked as 'Aa', 'Ba', 'Sa', 'Da' as on the date of vesting without which the benefit of Section 9 cannot be claimed. It is well settled that the land appurtenant to land cannot be settled within the scope of Section 9 of the Act. It is the trees, wells and land appurtenant to a building existing on the date of vesting that would fall within the scope of Section 9 of the U.P.Z.A. & L.R. Act.

Having regard to the evidence led before the court below on the aspect as to whether any building was existing on the disputed land or not, it is firstly gathered that no issue on Section 9 was framed by the trial court which was necessary to have been framed and secondly, the evidence led by the plaintiffs on the aspect of structure existing on the disputed land merely qualifies the land on the eastern side being uneven. Inference about the existence of a building cannot be drawn merely on the basis of uneven land. For the lack of any such finding having been recorded by the trial court or the appellate court below, it is difficult to hold that the benefit of Section 9 can safely be claimed by the plaintiffs under such a circumstance. Moreover, the State was not impleaded as a party in the suit proceedings. Non-impleadment of State as a party in the suit proceedings has necessarily deprived the trial court to have access to the revenue record which may have come to the aid of either of the parties to establish their claim in the light of documentary evidence. The oral evidence led before the trial court does not settle the dispute on the basis of possession which both the parties have claimed for being the descendants of the same family.

Looking to the facts and circumstances of the case, the matter calls to be remitted to the trial court for returning a finding on the following issue:

"Whether there existed a building/habitable structure on the dispute land as on the date of vesting of the land in the State under the U.P.Z.A. & L.R. Act."

The matter is remitted to the trial court for returning a finding on the above issue with a further observation that the plaintiffs shall implead the Collector, Sultanpur and Gaon Sabha concerned as defendants in the suit proceedings by making an appropriate application. The Collector, Sultanpur shall be afforded an opportunity of filing a written statement or evidence particularly on the aspect of claim laid under Section 9 of the U.P.Z.A. & L.R. Act.

Learned Standing Counsel shall inform the Collector, Sultanpur/Gaon Sabha to ensure the filing of written statement to the plaint not later than a period of three months from today. The trial court shall afford opportunity to both the parties for filing documentary evidence, if any. The findings recorded by the trial court shall be returned to this Court within a period of six months from today.

List this second appeal for further hearing after six months.

Let a copy of this order be forwarded to the District Judge, Sultanpur as well.

Order Date :- 27.3.2019

Fahim/-