Uttarakhand High Court
State vs Virendra Kumar And Another on 4 August, 2025
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
HIGH COURT OF UTTARAKHAND AT NAINITAL
Second Appeal No. 66 of 1987
04 August, 2025
State. --Appellant
Versus
Virendra Kumar and Another --Respondents
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Presence:
1. Mr. Yogesh Tiwari and Mr. Pradeep Hairiya, learned Standing Counsel
for appellant.
2. Mr. D.S. Patni, learned Senior counsel.
Hon'ble Rakesh Thapliyal, J. (Oral)
In furtherance of the earlier argument, Mr.
Yogesh Tiwari, learned Standing Counsel with Mr. Pradeep
Hairiya argued that the Hon'ble Apex Court in its
judgment, framed certain issues for final determination of
instant second appeal.
1. The first issue is as follows:-
Did the respondents' predecessor-in-interest purchased
ownership rights or lease hold rights from Mr. John
Vaughan?
In response to this issue, Mr. Yogesh Tiwari argued
that the respondents' predecessor in-interest neither get
ownership right or any lease hold right from Mr. John
Vaughn simply for the reason that the lease was expired
due to efflux of time in 1954 and since then, the land in
question vest with the Government, and, furthermore, in
terms of the lease granted to John Vaughn, the lease hold
right can be transferred only with the prior permission of
the Deputy-Commissioner but here in this case, as per the
argument of learned counsel for the respondents, the
respondents derived the right pursuant to the sale deed
dated 17.11.1947, which itself reflects that before
transferring the right pursuant to the said deed, the
mutation of the predecessor of the respondents were
carried out prior to the date of execution of deed i.e. on
25.09.1947, which is not permissible.
2. He submits that mutation cannot be done prior to the
execution of deed. He further submits that even in this
deed, there is no any reference of prior permission of the
Deputy Commissioner, therefore, the answer to the issue
No.1 framed by the Hon'ble Apex Court is that the
respondents' predecessors in interest neither have got
ownership right or any lease hold right over the land in
question and as such answer goes against the respondents.
3. The issue No.2 is "in case of the latter, the next
question that arises is whether the leasehold rights stood
legally transferred to the predecessor of respondents as per
the conditions of 1924 Lease Deed, which was governed
under the Government Grants Act of 1885?
In reference to this issue, Mr. Yogesh Tiwari argued
that since the answer to issue No.1 goes against the
respondents as neither the predecessor of respondents got
any ownership right or lease hold right over the property in
question, therefore, the answer to Issue No.2 also goes
against respondents.
4. The issue No.3 is if the lease hold rights cannot be
held to be validly transferred under the 1924 Lease Deed,
whether the same stood determined at the time of
execution of the Sale Deed because of violation of the
stipulated conditions?
In reference to this, Mr. Yogesh Tiwari, learned
Standing Counsel also submits that the answer to issue
No.1 and 2 are relevant and since the 1924 lease deed
clearly stipulates a condition for transfer with prior
permission of the Deputy Commissioner, therefore, in
absence of such permission, the answer to this issue will
also go against the respondents.
In reference to this issue, he further reiterated his
argument by saying that in fact the 1924 lease deed
automatically expired in 1954 due to efflux of time, and
since then, the land vest with the Government and even
otherwise the deed dated 17.11.1947 is completely in
violation of the condition No. (e) of 1924 Lease Deed.
5. The issue no. 4 is that "if the aforesaid question i.e.
the issue Nos.1, 2 and 3 is answered negatively, did the
1924 Lease Deed stands determined at the expiration of
initial lease period of 30 years.
In reference to this Mr. Yogesh Tiwari argued that
since the Issue No.1, 2 and 3 answered negatively, and,
therefore, in view of issue No.4, 1924 Lease Deed has to be
taken into consideration and in the original Lease Deed
there was a condition No.(h), which provides that the lessee
further agrees that if he dies heirless before the expiry of
the lease and also on the expiry of the lease, the land
hereby demised and all the buildings standing on the land
shall revert to lesser without condition.
He submits that since the original Lease Deed was for
30 years and which was never be renewed and got expired
due to efflux of time in 1954, therefore, in terms of
condition No (h), the land along with the buildings standing
on the land shall automatically vest with the State
Government.
In support of this, he further submits that there is an
admission on the part of the respondents that the lease
neither was extended nor renewed.
6. The issue No.5 is that "if the 1924 Lease Deed stood
determined after the initial lease period of 30 years,
whether the respondents are entitled to seek protection of
holding over of the lease under Section 116 of the Transfer
of Property Act of 1882?
In reference to issue No.5, Mr. Yogesh Tiwari, learned
Standing Counsel argued that by virtue of the Government
Grants (Uttar Pradesh Amendment) Act, 1960, certain
amendments were carried out particularly in reference to
Section 2 and 3 of the Government Grants Act, 1895.
By referring amendment of Government Grants (Uttar
Pradesh Amendment) Act, 1960, Mr. Yogesh Tiwari, learned
Standing Counsel argued that by virtue of the said
amendment, the three acts i.e. Transfer of Property Act,
Zamindari Abolition Act and the UP Tenancy Act, are not at
all applicable, therefore, the respondents are not entitled to
hold any right over the property in question in terms of
Section 116 of the Transfer of Property Act.
In other words, he submits that by virtue of the
Government Grants (UP Amendment) Act, 1960 since the
Transfer of Property Act, the Z.A Act as well as the Tenancy
Act were completely brought outside the purview of the
Government Grants Act and are not applicable, therefore,
no holding over rights over the land in question including
the occupancy rights were accrued in favour of the
respondents.
In view of such submission, Mr. Yogesh Tiwari,
submits that the answer to the question No.5 completely
goes against the respondents.
7. The issue No.6 is that "alternatively could the lease
ever deemed to have been subsisted because of the doctrine
of the acquiescence and through the conduct of the
respondents? Furthermore, if the same could accord them
any benefit under the Zamindari Notification?
In reference to this issue, Mr. Yogesh Tiwari submits
that the answer to issue No.6 will be the same as answer to
the issue No.5. In Support of this, he further submits that
since the original lease deed of 1924 automatically expired
in 1954 due to efflux of time as neither the period was
extended nor the same was renewed, therefore, since 1954
the land vest with the Government.
8. The issue No.7 is that, "regardless of the fact that the
lease deed is deemed to have subsisted, was it possible for
predecessor of respondents to be accorded the status of
"Occupancy Tenant" under the 1939 Act, which resulted in
them being subsequently accorded the status of "Sirdar"
under the Zamindari Notification?
In respect of this, Mr. Yogesh Tiwari reiterates his
argument by submitting that by virtue of the Government
Grants Act (UP Amendment Act) 1960, since the Zamindari
Abolition Act, was brought completely outside the purview
of the Government Grants Act, therefore, the respondents
could not derive any benefit under the Zamindari
Notification, particularly when after 1960 Amendment,
Transfer of Property Act, Zamindari Abolition Act as well as
the Tenancy Act were completely outside the purview of
Government Grants Act. Relevant extract of Government
Grants Act (U.P. Amendment Act), 1960 are being
reproduced herein as under:-
For Sections 2 and 3 of the principal Act the
following shall be substituted be deemed always to
have been substituted.
"2. (1) Transfer of Property Act, 1882, not to apply to
Government Grants. Nothing contained in the Transfer
of Property Act, 1882, shall apply or be deemed ever to
have applied to any grant or other transfer of land or of
any interest therein, heretofore made or hereafter to be
made, by or on behalf of the Government to or in favour
of any person whomsoever; and every such grant and
transfer shall be construed and take effect as if the
said Act had not been passed.
(2) U. P. Tenancy Act, 1939 and Agra Tenancy Act,
1926 not to affect certain leases made by or on behalf
of the Government. Nothing contained in the U.P.
Tenancy Act, 1939, or the Agra Tenancy Act, 1926,
shall affect or be deemed to have ever affected any
rights, created, conferred or granted, whether before or
after the date of the passing of the Government Grants
(U.P. Amendment) Act, 1960, by leases of land by, or
on behalf of, the Government in favour of any person,
and every such creation, conferment or grant shall be
construed and take effect, notwithstanding anything to
the contrary contained in the U.P. Tenancy Act, 1939 or
the Agra Tenancy Act, 1926.
(3) Certain leases made by or on behalf of the
Government to take effect according to their tenor.-All
provisions, restrictions, conditions and limitations
contained in any such creation, conferment or grant
referred to in Section 2, shall be valid and take effect
according to their tenor, any decree or direction of a
Court of law or any rule of law, statute or enactment of
the Legislature, to the contrary notwithstanding:
Provided that nothing in this section shall prevent, or
deemed ever to have prevented the effect of any
enactment relating to the acquisition of property, land
reforms or the imposition of ceiling on agricultural
lands." [Vide Uttar Pradesh Act No. 13 of 1960].
9. In a reference to issue No. 8, Mr. Yogesh Tiwari,
learned Standing counsel argued that the answer to issue
No.8 would be the same as to answer of issue Nos.5 and 7,
and reiterates his argument by saying since the Zamindari
Abolition Act as well as the Tenancy Act were brought
outside purview of the Government Grants Act, therefore,
the respondents will not get the status of either hereditary
tenant or the Sirdhar in terms of Section 131 of Zamindari
Abolition Act.
10. Mr. Yogesh Tiwari, learned Standing Counsel
conclude his argument by submitting that answers to all
the issues as framed by the Hon'ble Apex Court in Para
No.34 goes against the respondents, therefore, the
judgment and order passed by the trial Court is liable to be
set-aside. He further submits that not only this, even the
first Appellate Court have not considered all these aspects
and confirmed the decree of the trial Court and as such,
the finding as drawn by both the Courts below are
completely perverse.
11. He also submits that not only this, the trial Court
have no jurisdiction to decide the dispute as raised
regarding which a specific objection has been raised, but
that aspect has not been dealt with and not only this,
Collector's order was set aside and by set-asiding the order
of the Collector the entries which were struck off by the
Collector were restored which is completely beyond the
scope of the Civil Court and that issue can only be
adjudicated by a Revenue Court.
12. He also refers clause (d) of Original lease deed dated
1924, which contains the following condition:-
(d):- the lessee agrees that he shall not claim the benefits
which agricultural tenant and lessees are given in the Tarai
and Bhaber estates.
13. Mr. Yogesh Tiwari submits that the Zamindari
Abolition Act came into force in the area where the land is
located with effect from 01.07.1969 and the UP
Amendment to Government Grants Act came prior to that.
14. He submits that since the answer to all these issues
as framed by the Apex Court goes against the respondents,
therefore, the instant appeal is liable to be allowed.
15. Mr. D.S. Patni, learned Senior counsel, who appears
for the respondents, submits that the arguments as
advanced by Mr. Yogesh Tiwari, are totally misconceived
since the original lease deed of 1924 was a special lease
and is not covered under the Government Grants Act.
In support of his contention, he refers clause e, h and
l of the Original Lease Deed of 1924 for advancing his
argument.
16. He also submits that a written note, wherein he has
referred to the orders of the SDM regarding the mutation in
the Revenue Record, which was assailed by way of a
revision, but the same was dismissed on 07.08.1980. There
is also another revision, which was also dismissed i.e.
Revision No. 135 of 1979-80 and then matter referred to
before the Board of the Revenue and the Board of Revenue
also dismissed the revision on 28.01.1982.
17. He submits that despite the fact that against the
mutation, all the orders of the mutation were confirmed
despite this, the Additional Collector passed an executive
order on 31.12.1981 by expunging the entries in the
revenue records without affording any opportunity of
hearing which creates cause of action to file the suit since
there was immediate threat of their eviction.
18. For rest of the argument, he requests that the matter
be posted tomorrow.
19. List this matter tomorrow i.e. on 05.08.2025.
. (Rakesh Thapliyal, J.)
04.08.2025
R.Bisht
