Ayodha (Died) Substituted By Lrs vs D.D.C. And Ors
2021 Latest Caselaw 4234 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No.18/ Reserved                                                        AFR 
 

 
Case :- CONSOLIDATION No. - 1877 of 1979
 
Petitioner :- Ayodha (Died) Substituted by LRs
 
Respondent :- D.D.C. And Ors
 
Counsel for Petitioner :- A.K. Verma,Ajay Sharma,D.K. Rastogi,S.C. Misra,V.B. Singh
 
Counsel for Respondent :- R.N. Srivastava,Dilip Kumar Pandey,Yogendra Nath Yadav
 

 
Hon'ble Rajnish Kumar,J.

1. Heard, Shri Ajay Sharma, learned counsel for the petitioner, Sri Dilip Kumar Pandey, learned counsel for the Gaon Sabha/opposite party no.4 and learned Standing Counsel. None appeared for the private respondents.

2. This writ petition under Article 226 of the Constitution of India has been filed challenging the judgment and order dated 06.03.1979, 19.07.1978 and 09.09.1977, passed by opposite parties no.1 to 3 respectively.

3. The dispute relates to the plot nos.352 and 353 which were recorded as Talab in the basic year khatauni and plot nos.351, 354, 409 and 410 recorded as Banjar in basic year Khatauni. The land in question is situated in village Palti Khera, Pargana Sareni, Tehsil Dalmau, District Raebareli. The consolidation proceedings initiated in the year 1968. The petitioner i.e. late Ayodhya had filed an objection under Section 9 of the U.P. Consolidation of Holdings Act in respect of the aforesaid plots claiming as his grove on which more than 300 trees were planted by him and his ancestors with the consent of the landlord and he is in possession over the same for the last over 50 years. Two more objections were filed by Shri Anoop Singh and Shri Sheo Singh claiming to be grove holders of the said plots, in dispute. All the three objections were forwarded to the Consolidation Officer, who partly allowed the objection of late Ayodhya vide judgment and order dated 28.07.1969. Other two objections were rejected. Both the parties preferred appeals which were decided by a common judgment and order dated 30.04.1970 by means of which the appeal of Sheo Singh and others was rejected while the appeal of Late Ayodhya was allowed and the case was remanded to the Consolidation Officer for deciding afresh after making spot inspection. In pursuance thereof the Consolidation Officer made spot inspection on 03.04.1972 and partly allowed the objection of Late Ayodhya vide judgment and order dated 22.04.1972.

4. Late Ayodhya as well as Gaon Sabha challenged the judgment and order dated 22.04.1972 in appeal before the Settlement Officer Consolidation. Both the appeals were decided by a common judgment and order dated 26.09.1974 and the order dated 22.04.1972 of the Consolidation Officer was set aside. The case was remanded with a direction that the Consolidation Officer shall make an inquiry after spot inspection to ascertain as to which of the trees were planted prior to Zamindari Abolition and what was their nature at that time. After remand the Consolidation Officer decided the case afresh by means of order dated 19.09.1977 after spot inspection and rejected the objection of late Ayodhya and directed that the entry of basic year would continue. The Consolidation Officer held that the land in question is of the Gaon Sabha and late Ayodhya is not its bhumidhar.

5. Late Ayodhya filed an appeal against the order dated 19.09.1977. The appeal was partly allowed by means of the judgment and order dated 18.07.1978 after spot inspection made by the Assistant Settlement Officer consolidation holding late Ayodhya to be bhumidhar of plot nos.409 and 410 and objection in respect of remaining plots was rejected. Aggrieved by the appellate order late Ayodhya preferred a revision which was dismissed by the Deputy Director of Consolidation by means of judgment and order dated 06.03.1979. Hence the present writ petition was filed. During pendency of this writ petition Ayodhya died, hence the present petitioners were substituted.

6. Submission of learned counsel for the petitioners was that after remand by the appellate authority by means of order dated 26.09.1974 the Consolidation Officer, without making local inspection and without giving opportunity to the petitioners, rejected the objection of the petitioners against the direction issued by the appellate authority, which could not have been done. He further submitted that the land in question was allotted to late Ayodhya by means of resolution dated 17.11.1963 passed by the Land Management Committee. The petitioners are in possession of the land in dispute since long, which is in the nature of grove. The trees planted by the predecessors in interest of the petitioners are there on the said land. Lastly learned counsel for the petitioners had submitted that the conclusions have been recorded contrary to the observations. Therefore the impugned orders are not sustainable and liable to be quashed and writ petition is liable to be allowed.

7. Learned counsel for the Gaon Sabha had submitted that the petitioners have no right on the land of Gaon Sabha as it was not allotted. He had submitted that the land of pond could not have been allotted on which there is no right of the petitioners. In regard to the land recorded as Banjar he had submitted that unless the lease is granted no right or hereditary right can be claimed. He had further submitted that no documentary evidence was adduced to show that the land in question was allotted to late Ayodhya. He had also submitted that the Land Management Committee has no right for giving any land to anybody because it has only right of management under Section 122-A of the Zamindari Abolition Act. It was also submitted that in case even if there was any proposal by the Land Management Committee, it was never accepted and approved by the Sub-Divisional Officer, as such the land was not allotted and no lease was given to the predecessor in interest of the petitioners. Therefore the petitioners cannot claim any right over the land in question. If the land in question was given on lease to the petitioners and it was in the nature of grove then it must have been recorded as such in the revenue records before the date of vesting and it should have also been recorded in the remark column. But it is not recorded as such, therefore also, the claim is not sustainable. In regard to plot nos.409 and 410 learned counsel for the Gaon Sabha had submitted that it could also not have been given to the petitioners though he admitted that the said part of the order has not been challenged by the Gaon Sabha. On the basis of above learned counsel for the Gaon Sabha submitted that the writ petition has been filed on misconceived and baseless grounds which is liable to be dismissed.

8. I have considered the submissions of the learned counsels for the parties and perused the record.

9. Indisputably Gata no.352 and 353 are recorded as Talab and Gata Nos.351, 354, 409 and 410 are recorded as banjar in the Khataui of the basic year. After initiation of consolidation proceedings in the year 1968 the petitioner i.e. Late Ayodhya and two others namely Anoop Singh and Sheo Singh had filed objections separately under Section 9 of the U.P. Consolidation of Holdings Act claiming their rights over the land in Dispute alleging that they are in possession with the consent of the landlord and the land is in the nature of grove. The claim of late Ayodhya was that he and his predecessors had planted about 300 trees on the land in question. The objection of late Ayodhya was partly allowed by the Consolidation Officer after remand from the appellate authority. It was again allowed partly by means of judgment and order dated 22.04.1972 and the name of Ayodhya (now deceased) was directed to be recorded as grove holder and sirdar. On being challenged in appeal again by both the parties, the appeals were allowed and the matter was remanded by means of judgment and order dated 26.09.1974 to decide afresh after inquiry by making spot inspection and determining the age of the trees.

10. In pursuance thereof the Consolidation Officer considered the matter in detail and after considering the oral and documentary evidence filed by the petitioners and also the spot inspection made by the predecessor of the officer concerned and by himself, rejected the claim of the petitioner by means of the order dated 19.09.1977. Learned Consolidation Officer, on the basis of spot inspection, has recorded a categorical finding that there is a passage in between the land in question and pond also. It has also been recorded that the villagers have denied the possession of the petitioners. He has further recorded that the nature and manner of planting of trees does not indicate that it is in the nature of grove. Therefore the contention of the learned counsel for the petitioners that the order has been passed without spot inspection is misconceived. The land in dispute is recorded as banjar and Talab and in the remark column the trees are recorded but the possession of the petitioners is not recorded. Here it is also pertinent to note that during pendency of appeal the Assistant Settlement Officer Consolidation had also made an inspection of the plots in question himself and it is recorded in the order and allowed the appeal partly. Therefore it can not be said that orders have been passed without spot inspection.

11. The order was challenged by the petitioners in appeal. The appellate authority partly allowed the appeal in regard to plot nos.409 and 410 and rejected the claim in respect of rest of the plots by means of the judgment and order dated 19.07.1978 and directed to record the name of the petitioners in Gata nos.409 and 410 as on the basis of evidence it was found that both the plots are adjacent to each other and are in the nature of grove and late Ayodhya and his father had planted the trees on the said plots, though it is without any basis. It has also been recorded that the said land was also released in favour of the petitioners under Section 145 of the Cr.P.C. etc. On being challenged the revisional authority also found that it has rightly been recorded in the name of petitioners. Though learned counsel for the respondents had submitted that the Gata nos.409 and 410 also could not have been recorded in the name of the petitioners but it has not been challenged by the respondents for the reasons best known to them. In regard to rest of the plots learned revisional court found that the plots are recorded as Banjar and Talab which was found in the spot inspection made by the Settlement Officer Consolidation also and accordingly rejected the revision. This court does not find any illegality or error in the findings recorded by the courts' below. The petitioners have failed to prove that the land or the trees were ever recorded in the name of predecessor in interest of petitioners.

12. It is settled proposition of law that one cannot mature rights by adverse possession on Gaon Sabha land. A Division Bench of this court considered it in Sumit Kumar Tyagi Versus State of U.P. and others;2002 SCC OnLine All 399; 93 RD 623, the relevant paragraphs 11 and 12 of which are extracted below:-

"11. It is not understandable as to how some one can mature rights by adverse possession if his name is not recorded continuously for a period of ten years in the revenue records. The judgment further shows that the learned DGC (Revenue) had argued that on account of the amendments made in U.P.Z.A. & L.R. Act in 1976 and 1977, the period of limitation prescribed thereunder for filing a suit against Gaon Sabha had been removed altogether and, consequently, no rights could accrue on Gaon Sabha land by adverse possession. Reliance had also been placed on a decision rendered by the Allahabad High Court in Chattar Singhv. Sahayak [ 1979 RD 226.] where this point had been examined threadbare and it was held that on account of amendments in the Act, no sirdari rights can accrue over Gaon Sabha land by adverse possession. However, the Board of Revenue brushed aside this argument and allowed the Second Appeal and decreed the suit and declared the plaintiff to be bhumbidar of the land in dispute. To say the least, the Board of Revenue could not have brushed aside an authority of High Court where this point had been specifically decided. The period of limitation for filing a suit by the Gaon Sabha has been amended several times and in such a manner that no one can mature rights over the Goan Sabha land by adverse possession. The last amendment which was made by U.P. Land Laws (Amendment) Act, 1976, before expiry of the period then prescribed for filing of the suit, reads as follows:

"For Section 210 of the principal Act, the following section shall be substituted andbe deemed always to have been substituted, namely,

"210. If a suit for eviction from any land under Section 209 is not instituted by a bhumidhar, Sirdar or asami, or a decree for eviction obtained in any such suit is not executed by him, within the period of limitation provided for the institution of such suit or the execution of such decree, as the case may be, the person taking or retaining possession shall:--

(i) where the land forms part of the holding of a bhumidhar or sirdar, become a sirdar of such land, and the rights, title and interest of an asami, if any, in such land shall be extinguished;

(ii) Where the land forms part of the holding of an asami, on behalf of the Goan Sabha, become an asami thereof holding from year to year."

12. The result of this amendment was that the effect of non-filing of the suit by the Gaon Sabha as contemplated in Section 209(1)(b) of the Act, which was provided in sub-section (iii) of Section 210, was taken away. It has been held by several decisions of this court that after the aforesaid amendment a person in possession for 12 years over the property of a Gaon Sabha would not acquire sirdari rights. It has been further held that the effect of amendment having been given retrospective effect means that a trespasser even from July, 1952, could not acquire sirdari rights on the land belonging to Gaon Sabha (See Bhurey v.Board of Revenue, 1984 Revenue Decision 294, and Chatar Singh v. Sahayk Sanchalak, Chakbandi, U.P. Lucknow, 1979 Revenue Decision 226.) It is, therefore, obvious that the petitioner could not have matured any kind of rights over the Goan Sabha land. However, the Board of Revenue by a strange process of reasoning held that the petitioner had matured rights by adverse possession and had consequently become sirdar and thereafter bhumidar of the land."

13. Similar view has been taken by this court in Rizwan and another Versus Deputy Director of Consolidation, Saharanpur and others; (2003) 6 AWC 5065; (2003) 95 RD 714. The relevant paragraphs 5, 6 and 7 are reproduced below:-

"5. In the above fact-situation, the questions that boil down for consideration are (1) whether a person in unauthorised possession of Gaon Sabha property could acquire anybhumidhari right on grounds of adverse possession, and (2) whether an order passed by the authorities in a proceeding under Section 122B of the U.P.Z.A. and L.R. Act which culminated in dropping of proceedings could amount to a declaration of bhumidhari rights?

6. As regards the first question, reference may be made to amendment in Section 210 of the U.P.Z.A. and L.R. Act made by the U.P. Land Laws (Amendment) Act, 1976. The amendment having a bearing on the answer of the first question, may be excerpted below:

"For Section 210 of the Principal Act, the following section shall be substituted and be deemed always to have been substituted, namely:

"210. If a suit for eviction from any land under Section 209 is not instituted by abhumidhar, sirdar or asami, or a decree for eviction obtained in any such suit is not executed by him, within the period of limitation provided for the institution of such suit or the execution of such decree, as the case may be, the person taking or retaining possession shall:

(i) where the land forms part of the holding of a bhumidhari or sirdari become asirdar of such land, and the rights, title and interest of an asami. If any, in such land shall be extinguished;

(ii) where the land forms part of the holding of an asami, on behalf of the Gaon Sabha, became an asami thereof holding from year to year."

7. The amendment aforestated leaves no manner of doubt that it has been given retrospective effect the necessary Implication of which is that a person having been in unauthorised possession even from the date of enforcement of the U.P.Z.A. and L.R. Act,i.e., since, 1st July, 1952, would not acquire any bhumidhari right on Gaon Sabha property. The necessary consequence that flows from this amendment in essence is that even if a person had been in actual possession for 12 years or more and even if suit under Section 209 of the U.P.Z.A. and L.R. Act had not come to be filed, any person in occupation thereof cannot acquire bhumidhari rights on the land belonging to Gaon Sabha. In the perspective of the amendment aforestated made in Section 210 of the U.P.Z.A. and L.R. Act, the forceful contention pressed on behalf of the petitioners who have not adduced any documentary evidence to bolster up their rights or possession prior to the date of vesting otherwise in accordance with law and have merely relied upon varg 4 entry besides oral evidence in vindication of their bhumidhari rights, will not have any cutting edge and falls to the ground. The view I am taking respecting question No. 1 is fortified by a Division Bench of this Court in Likhi Ram Moola v. State of U.P., 2000 (1) AWC 521 : 2002 (93) RD 126, in which the question raised before the Division Bench resembled the question involved in the instant petition."

14. In regard to the claim over the land in dispute on the basis of alleged allotment by the Gaon Sabha vide resolution dated 17.11.1963, the perusal of copy of resolution annexed with the affidavit dated 13.11.1986 indicates that it is not an allotment. The Gaon Sabha has only passed a resolution that it has no objection in recording name of Shri Ayodhya Prasad in 409, 410, 354, 353, 352 and there are trees of Aam, Mahua, Kathar, Amrood and Babul etc. It does not indicate even that these trees were planted by the petitioners. Therefore it is not an allotment and it is not approved by the Sub-Divisional Officer also.

15. The Gaon Sabha can not allot it's any property to any body because the property is vested in Gram Panchayat under Section 34 of U.P. Panchayat Raj Act, 1947 in relation to direction, management and control and it's vesting in State is absolute. Therefore, the Gram Panchayat cannot give it to anybody as absolute right of ownership is not given to it. The issue was considered in Vinod Kumar Pandey and others Versus State of U.P.;2005 SCC OnLine All 641/(2005) 99 RD 490, relevant paragraphs 13, 14 and 15 are extracted below:-

"13.This Court dwelled upon the submissions made by the learned Counsels' at length. The Additional Advocate General invited the attention of the Courts to section 34 of the U.P. Panchayat Raj Act, 1947. Section 34 of the said Act reads as under:

"34. Property vested in the (Gram Panchayat).--(1) Subject to any special reservation made by the State Government, all public property situated within the jurisdiction of a (Gram Panchayat) shall vest in and before to the (Gram Panchayat) and shall, with all other property which may become vested in the (Gram Panchayat), be under its direction, management and control."

14.A perusal of the aforesaid section indicates that all public property shall vest in and belong to the Gram Panchayat and such property would be under its direction, management and control. The question that arises for consideration is, as to what kind of vesting is contemplated under section 34. Whether such vesting is absolute or is limited for such time as required by the State Government? In my view, the language used in the provision and the context in which the vesting takes place has to be understood. The task of the Court has been reduced considerably, as in a similar matter, the Supreme Court had the opportunity to consider in a similar situation with regard to the vesting of the property in a Gaon Sabha. In the case of Maharaj Singh v. State of U.P., [ 1977 (3) ALR 12 (Sum) : 1977 (1) SCC 155.] the Supreme Court, while interpreting the provisions of section 117 of the U.P.Z.A. & L.R. Act, held that the vesting in the State was absolute, whereas the vesting in the Gaon Sabha was limited and that it was open to the State Government to divest the said property from the Gaon Sabha at any time. For an absolute vesting, there had to be a transfer of property as well as of vesting. I have perused the Government Order dated 2.4.1999 as well as the Government Order dated 1.7.1999, which indicates that the State Government has only transferred the property for its management to the Gram Panchayat. There is no whisper in the Government Orders' that the property was to vest absolutely with the Gram Panchayat. Further, section 34 of the Panchayat Raj Act, indicates that vesting of the property to the Gram Panchayat is in relation to "direction, management and control". It is therefore, clear, that there is no absolute right given to the Gram Panchayat with regard to the ownership of the property and that the vesting is only confined to direction, management and control and that too, till such time as the State Government requires.

15.The Supreme Court in the case of Maharaj Singh (supra) held that the word "vesting" connotes different meanings and has to be interpreted in the manner and in the context as used in the provision. Therefore, while interpreting section 34 of the Act harmoniously, I am of the opinion, that the word "vest", used in section 34, means the enjoyment of the property so long as it last and that it is not an absolute vesting and is only a transfer of the property for a limited purpose, namely for a direction, control and management. Thus, the State Government was justified in issuing the order for transferring the property back to the parent department."

16. In view of above this court does not find any illegality or error in the impugned orders. The authorities have passed the reasoned and speaking orders on the basis of evidence and material on record. The writ petition is misconceived and lacks merit.

17. The writ petition is, accordingly, dismissed. No order as to costs.

.........................................(Rajnish Kumar,J.)

Order Date :-22.03.2021

Banswar