Shahadat vs Jamai And Others
2023 Latest Caselaw 22494 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:56285
 
Court No. - 19
 

 
Case :- SECOND APPEAL No. - 1070 of 1981
 

 
Appellant :- Shahadat
 
Respondent :- Jamai And Others
 
Counsel for Appellant :- Mohd. Abid Ali,Atiya Abid,Mohd.Abid Ali
 
Counsel for Respondent :- M.A.Khan,Mohammad Aslam Khan
 

 
Hon'ble Jaspreet Singh, J.

1. Heard Ms. Atiya Abid, learned counsel for the appellant and Shri Mohd. Arif Khan, learned Senior Counsel alongwith Shri Mohd. Sadab Khan, learned counsel for the respondents.

2. The instant second appeal has been preferred by the plaintiff being aggrieved against the judgment and decree passed by the 3rd Additional District Judge, Pratapgarh in Civil Appeal No.32 of 1979 dated 09.11.1981 whereby the appeal of the plaintiff was partly allowed as a result the suit for injunction which was filed by the plaintiff bearing Regular Suit No.307 of 1969 was dismissed by means of judgment and decree dated 05.12.1978 passed by Munsif Sadar, Pratapgarh was partly allowed by the lower appellate court. Being dissatisfied the plaintiff-appellant has approached this Court under Section 100 CPC.

3. The appeal was admitted on 23.12.1981 on a solitary question of law which reads as under:-

"Whether the prohibition for transfer contained in Section 33 of the U.P. Tenancy Act 1939 will be applicable to trees which were planted on the land comprised in the hereditary tenancy of Niyamat?"

4. The record indicates that Shahadat the original plaintiff had instituted regular suit No.307 of 1969 before the Munsif Sadar, Pratapgarh with the averments that the plaintiff was the owner of eight trees, out of which seven trees were of Mahuwa which was on Khasra Plot No.789 and one Mango tree which was on Plot No.786 situate in Gram Tauhripur, Tehsil Patti, District Pratapgrah. It was pleaded that the aforesaid trees had vested with the plaintiff in terms of Section 9 of the U.P. Z.A. & L.R. Act and he was in possession thereof and the defendants had nothing to do with the trees in question. However, in proceedings initiated under Section 145 Cr.P.C., the Executive Magistrate accepted the possession of the defendants hence the suit was filed for possession of the said trees.

5. The suit was contested by the defendants-respondents who stated that the trees in question were situate on Plot No.789 which belonged to Niyamat. On the said Plot No.789, Niyamat also had his house and Sehan. Thus, Niyamat was the owner of the said trees.

6. It was also pleaded that the said trees were gifted by Niyamat on 16.11.1940 and since then the defendants have been in possession and it is for the said reason that even in proceedings initiated under Section 145 Cr.P.C. the possession of the defendants was accepted and in view thereof, the plaintiffs are not entitled to maintain the suit which is liable to be dismissed.

7. The trial court upon exchange of the pleadings framed six issues, out of which the relevant were (i) Whether the plaintiff was the owner in possession of the trees? (ii) Whether the defendants no.1, 2 and 3 were the owners of the trees as stated by them? (iii) Whether the defendants no.4 to 6 were the owners of the property in question?

8. The trial court considering the evidence led by the parties found that the plaintiff could not establish its own case in respect of the trees whereas the defendants were able to establish their ownership and possession over the trees in question and with the said findings the suit came to be dismissed on 05.12.1978 by Munsif Sadar, Pratapgarh.

9. The plaintiff being aggrieved preferred the regular civil appeal No.32 of 1979 and the 3rd Additional District Judge, Pratapgarh noticing the report of a survey commission and held that only the mango tree was situate on Plot No.786 whereas the seven three of Mahuwa were on Plot No.789. The lower appellate court also found that since the case of the defendants did not relate to Plot No.786 but they sought their rights over Plot No.789, accordingly it found that only Mango tree was on Plot No.786 which belonged to the plaintiff and since the seven Mahuwa trees were on Plot No.789 over which the defendant claimed their title, consequently the appeal was partly allowed and the suit was decreed to the extent that one Mango tree which was situate on Plot No.786 as shown in the survey commission map bearing No.Ga-52/6, the same shall be handed over to the plaintiff. It is being aggrieved against the aforesaid partial allowance of the appeal that the plaintiff has approached this Court.

10. In light of the substantial question of law which has been framed and noticed above, it would be seen that apparently in terms of Section 33 of the U.P. Tenancy Act 1939, there is a bar of transfer. However, the record indicates that the rights of the parties was claimed after having perfected their rights with the advent of the U.P. Z.A. & L. R. Act, 1950. In view of Section 9 of the U.P. Z.A. & L.R. Act, from the date of vesting i.e. 1st of July, 1952 trees, wells and such appurtenances to land shall vest with the owners/occupencies holder as shall be evident from the language of Section 9 of the U.P. Z.A. & L.R. Act which reads as under:-

9. Private wells, trees in abadi and buildings to be settled with 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 are appurtenant thereto shall be deemed to be settled with him by the State Government on such terms and conditions as may be prescribed.

11. Learned counsel for the appellant has urged that once the defendants were claiming rights in terms of the gift dated 16.11.1940 which was hit by Section 33 of the U.P. Tenancy Act, 1939, no rights could have been conferred on the defendants and as such this aspect of the matter has been ignored by the two courts. It is further urged that the findings recorded by the lower appellate court are against weight of the material on record.

12. Learned counsel for the defendants-respondents, on the other hand, submits that with the advent of the U.P. Z.A. & L.R. Act, 1950 even if at all, the gift is ignored yet it would be found that in terms of Section 9 of the U.P. Z.A. & L.R. Act, the defendants have the right over the property who have been in possession since long and this possession was established not only in the civil suit but also in the proceedings under Section 145 Cr.P.C. and this has been properly considered by the two courts which does not require any interference, accordingly, the appeal deserves to be dismissed.

13. The Court has heard the learned counsel for the parties and also perused the material on record.

14. The question regarding the alleged gift dated 16.11.1940 even if said to have been executed looses much of its significance for the reason that not only that the said gift could not be proved but even otherwise, it may not have much legal bearing for the reason that the parties are claiming rights over trees and from the pleadings, it is clear that the plaintiff claims the trees over the Plots No.789 and 786 whereas the defendants categorically confined their claim only in respect of the trees situate on Plot No.789. Therefore in so far as the finding recorded by the lower appellate court that the Mango tree which is situated on Plot No.786 is concerned which has been identified on the basis of survey commission report bearing No.Ga.No.52 and there is no dispute by the defendants in respect of Plot No.786, consequently the finding that the plaintiff has the right to get the Mango tree situate on Plot No.786 is affirmed and there is no dispute about it since the defendants-respondents did not assail the said finding nor file any cross-appeal or cross objections Under Order 41 Rule 22 CPC.

15. Now in furtherance of the aforesaid, if the findings recorded in so far as Plot No.789 is concerned, this Court finds that there was no material available on record nor any revenue entries indicating the entry of trees amongst any of the parties. On the contrary, in light of the evidence which was led by the parties including the statements recorded of D.W.3, namely, Abdul Gaffar, who clarified and deposed that the disputed trees in question are on Plot No.789 and belonged to the defendants. His agricultural fields were also situate on the southern side from where the said trees were planted. The facts still remains that the other defendants witnesses clearly indicated that the trees were on Plot No.789. The possession of the defendants over the Plot No.789 was also established. Even if the defendants did not have any title in terms of the gift dated 16.11.1940 but with the advent of 1950 Act and more particular Section 9, the right of the trees would vest with person who was found in possession. This being the situation, the finding has been recorded in favour of the defendants.

16. The trial court also noticed the evidence of the plaintiff witnesses more particularly the plaintiff witness no.2 who instead of supporting the case of the plaintiff supported the case of the defendants. It was established that the plaintiff was the daughter of Niyamat. The plaintiff did not get any property from Niyamat and he has been residing separate from his father which was a fact admitted rather the defendants were residing in the house of the Niyamat and were in its possession and the disputed trees were in the abadi of Niyamat.

17. It was also established from the evidence that the defendants were staying in the house of Niyamat which was part of the abadi and the trees were also present in the said land and in terms of operation of Section 9 of the U.P. Z.A. & L.R. Act, the same vested with the defendants and it is in this view of the matter that the findings have been recorded which are based on proper appreciation of evidence and this Court does not find that there is any error committed by the lower appellate court which requires any interference from this Court in terms of Section 100 CPC.

18. In light of the aforesaid, the appeal is dismissed and the judgment and decree dated 09.11.2081 passed in Civil Appeal No.32 of 1979 is affirmed. In the facts and circumstances, there shall be no order as to costs. The lower court record shall be remitted expeditiously.

Order Date :- 21th August, 2023

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