Smt Kishni Devi And Ors vs Mohan Chandra And Ors on 29 June, 2017

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Uttarakhand High Court

Smt Kishni Devi And Ors vs Mohan Chandra And Ors on 29 June, 2017

Bench: U.C. Dhyani

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

            Writ Petition No. 1268 (M/S) of 2006

Kishni Devi and others                     .....            Petitioners

                                    versus

Mohan Chandra and others                   .....          Respondents

Mr. M.S. Pal, Sr. Advocate assisted by Mr. D.S. Mehta, Advocate for the
petitioners.
Mr. R.C. Arya, Standing Counsel for the respondent State.
Mr. B.D. Upadhyaya, Sr. Advocate assisted by Mr. Naveen Tiwari,
Advocate for respondent no. 1.

U.C. Dhyani, J. (Oral)

By means of present writ petition, the petitioners seek to set aside / quash the impugned judgments and orders dated 30.11.1999, 30.10.2004 and 04.08.2006 (Annexure nos. 9, 10 and 11 to the petition).

2) The petitioner is primarily aggrieved by judgment and order dated 04.08.2006 (Annexure no. 1 to the petition), passed by respondent no. 5 in appeal no. 293 / 2004-05.

3) Brief facts, in the background of the present writ petition, may be stated as follows:

(a) The petitioner filed a suit no. 22 / 126 year 1983-84 (Annexure no. 2 to the petition) against respondent nos. 1 and 2. Respondent no. 4, vide order dated 12.08.1985, dismissed the suit filed by the petitioner (Annexure no. 3 to the petition).

(b) Aggrieved with the same, the petitioner filed an appeal before the Commissioner, who remanded the matter back to respondent no. 4 (Sub Divisional Magistrate), vide order dated 07.06.1988 (Annexure no. 4 to the petition).

(c) Respondent no. 4 once again, vide order dated 15.07.1992 (Annexure no. 5 to the petition), dismissed the suit of the petitioner. Petitioner was again compelled to file appeal against the order impugned before Addl. Commissioner (Judicial), who vide order dated 22.12.1993 (Annexure no. 6 to the petition), allowed the appeal and remanded the matter before the court below.

(d) Learned trial court once again dismissed the suit of the petitioner, vide order dated 08.07.1994 (Annexure no. 7 to the petition). Once again, an appeal was preferred and again the matter was remanded back to the trial court, vide order dated 30.12.1995 (Annexure no. 8 to the petition). Trial court dismissed the suit of the petitioner vide order dated 30.11.1998 (Annexure no. 9 to the petition).

(e) Appeal was preferred before the Addl. Commissioner, Kumaon Region. Said appeal was also dismissed vide order dated 30.10.2004 (Annexure no. 10 to the petition). Petitioner preferred appeal before respondent no. 6.

(f) There was specific allegation of the petitioner that entry in khatauni for the year 1400-1405 Fasli was wrongly made in the name of Gopal Dutt. It was also averred that petitioner was posted in the Indian 3 Army and in his absence the name of the respondent could not be inserted by deleting the name of the petitioner. Petitioner produced certified copy of the khatauni for the Fasli year 1383-1388 before the court below in which name of the petitioner was indicated (Annexure no. 11 to the petition). Petitioner also submitted copy of khatauni in which the name of respondent was inserted after deleting the name of the petitioner (Annexure no. 12 to the petition).

4) According to learned Senior Counsel for the petitioners, the entry was made in the documents in connivance with revenue authorities, therefore, the order impugned should be set aside.

5) The judgment rendered by Assistant Collector, I Class / S.D.M. Nainital on 30.11.1998 between Chaninath and Gopal Dutt in revenue suit no. 22 / 23 year 1997-98, delineates the entire facts as to how Gopal Dutt (respondent herein) was recorded as bhumidhar in land in dispute. It was a suit under Section 229 of U.P. Zamindari Abolition and Land Reforms Act. This Court need not reproduce entire facts and the reasoning leading to dismissal of suit filed by Chaninath against Gopal Dutt and others.

6) The submissions of learned Senior Counsel for the petitioner are as follows:

(i) The husband of the petitioner no. 1 and father of petitioner no. 2 to 6 (late Chaninath) was recorded 4 bhumidhar of class 1(ka) of khasra no. 118, 119, 125, 126 and 129 in village Nandpur.

(ii) Late Chaninath was in Indian Army from 1663 to 1982 so he let the said land to Gopal Dutt, father of respondent no. 1, according to provisions contained under Section 157 of U.P.Z.A. & L.R. Act.

(iii) Learned lower courts dismissed the suit as well as appeal against the provisions of Section 10 of the U.P.Z.A. & L.R. Act.

(iv) Late Chaninath was recorded bhumidhar of class 1(ka) in said land in dispute, so entry of late Gopal Dutt and respondent no. 1 as sirdar and bhumidhar in the khasra no. 118, 119, 125, 126 and 129 is totally illegal.

(v) There is no order of any competent authority as to how the name of late Gopal Dutt and respondent no.

1 entered in the revenue record on the land of the petitioners khasra no. 118, 119, 125, 126 and 129.

(vi) The learned trial court and appellate courts totally ignored the provisions of U.P.Z.A. & L.R. Act and evidence on record.

7) Reliance is placed upon Section 10 of the U.P. Zamindari Abolition and Land Reform Act, 1950. The relevant provision necessary for adjudication of the present writ petition is Section 10(2)(vi), which is as follows:

"10. Tenants of sir. - (1) Every tenant of land recorded as sir of an intermediary who on the date immediately preceding the date of vesting is assessed in Uttar Pradesh to a land revenue of more than Rs. 250 annually or where no land revenue is assessed, is assessed to a larger amount of local rate than would be payable on a land revenue of Rs. 250 annually or in the case of an under proprietor, sub- proprietor or permanent tenure-holder the rent payable by him is more than Rs. 250 annually shall be deemed to be a hereditary tenant thereof at the rate of the rent payable by him on the said date; and such land shall not for the purpose of Section 18 be deemed to be sir.

........

(2) Nothing in [sub-section (1) and (1-A)] shall apply to a tenant of sir if his land-holder was-

......

(vi) a person in military, naval or air force of Indian Union,

8) The provisions of U.P.Z.A. & L.R. Act came into force in Tarai-Bhawar (area concerned) w.e.f. 01.07.1969, which date is known as "date of vesting". The name of defendant-respondent Gopal Dutt is recorded in khatauni as occupant over land in dispute prior to 1960, i.e., prior to Fasli year 1967. The name of plaintiff Chaninath and his brothers is recorded in category VI.

9) On enforcement of U.P.Z.A. & L.R. Act, if a bhumidhar fails to file a suit u/s 209 of the said Act against occupant within specified period of limitation (three years from the date of vesting following the date of occupation under the Act), in such a situation, his rights over the land occupied by another person extinguish and the occupant becomes the adhiwashi, sirdar and bhumidhar, as the case may be, as per Section 210 of the U.P.Z.A. & L.R. Act. Limitation is provided under Rule 338 of the U.P. Zamindari Abolition and Land Reforms Rules.

10) In the instant case, the name of defendant- respondent Gopal Dutt was recorded in revenue records prior to 1960 (Fasli year 1967) as occupant (a person in possession) and the date of vesting in Tarai-Bhawar is 01.07.1969. No suit under Section 209 of U.P.Z.A. & L.R. Act was filed within three years from the date of vesting 6 and, therefore, rights of the defendant-respondent Gopal Dutt became perfect. The plaintiff filed a suit under Section 229B of U.P.Z.A. & L.R. Act in the year 1983 after 12 years from the date of vesting.

11) Before joining the Indian Army, the petitioner knew that the name of defendant-respondent has been recorded in the revenue records, therefore, it was incumbent upon him to file a suit for eviction under Section 209 of U.P.Z.A. & L.R. Act and not for seeking declaration under Section 229B of the said Act. Documents reveal that defendant-respondent perfected his right by adverse possession. No revenue suit under Section 229B of U.P.Z.A. & L.R. Act was filed within three years from the date of vesting following the date of occupation. The bhumidhar, therefore, extinguished his rights and the rights of the defendant-respondent were perfected.

12) Reliance is placed upon paras 7 to 19 of the decision rendered by the Division Bench of this Court in the case of Fakir Singh and others vs I Addl. District Judge, Nainital and others, 2007 (1) U.D. 366. Said paras are reproduced here-in-below for reference:

"7. Now, it has to be seen as to what was the limitation to evict the trespasser in possession before the date of vesting under the Tenancy Act as well as under the U.P.Z.A. & L.R. Act after date of vesting. If no suit was filed against the trespasser in possession before and after the date of vesting, what would be the effect of non-filing the suit within the prescribed limitation under these Acts.

8. Under the Z.A. & L.R. Act, limitation for filing the suit under Section 209, U.P.Z.A. & L.R. Rules, Appendix 7 III, Serial no. 30, clauses (i) and (iii) provide the limitation in case the suit to be filed after the date of vesting for ejectment of a person taking or retaining possession of land unlawfully. Clause (i) of the Rules prescribes a period of three years commencing from the date of vesting where the person was in possession of land on the date of vesting and the period of limitation for ejectment specified in U.P. Tenancy Act had not expired. Clause (iii) thereof prescribes a period of six years commencing from July 1 following the date of occupation and governs case where the land taken possession of the holding of Bhumidhar, Sirdar or Asami.

9. It is pertinent to mention here that at the time of vesting in entry 30 of Appendix III the limitation was two years for filing the suit for ejectment against the trespasser in possession of the land. The period of limitation of two years for suits mentioned in clause (i) of entry of Appendix III changed to three years by a Notification of the State Government of April 9, 1955. By this amendment, Governor made amendments in existing Rules framed under the U.P.Z.A.&L.R. Act Paragraph 32 of the Notification deals with the amendments in Appendix III clause (6) as follows:

"6. For the existing entries in column 4 against serial no. 30 of following shall be substituted against items (i),

(ii) and (iii) of column 3, three years."

10. Thus, the period of limitation which was two years for all the three clauses changed to three years on 9th April, 1955.

11. The controversy whether the amended Rules can be applied retrospectively came before the Hon'ble Allahabad High Court in the case of Hanumant Rai vs Deputy Director of Consolidation and others [1973 All.L.J. Pg 612] referred to above, wherein it was held by the Division Bench that the change in period of limitation would apply prospectively and not retrospectively.

12. Now, the second aspect of the case whether the period of limitation prescribed in U.P. Tenancy Act has 8 expired before the date of vesting. This controversy has been decided by the Division Bench of the Allahabad High Court in the case of "Mohd. Yaseen V. Amarnath and others, 1974 R.D. 239. Paragraph no. 5 of the judgment reads as under:-

"5. Where the period of limitation prescribed in the U.P. Tenancy Act has expired before the date of vesting, the trespasser acquires a right and the tenant loses his tenancy rights. For such a case it is not necessary to lay down a fresh period of limitation as one party acquires the right and the other is deprived of his right. There is no question of re-determination of the rights of the parties. It is only where the possession is not for a period to mature the rights that a fresh limitation has to be provided. Where the period of limitation has not expired, the tenant retains his rights and the trespasser continues to be a trespasser. The tenant under the U.P.Z.A. & L.R. Act became a Bhumidhar, Sirdar or Asami. Consequently, if in such cases clause (iii) is applicable, clause (i) shall become redundant. The redundancy is not to be assumed. In fact, an attempt has to be made to harmonize the provisions so that all the parts of the provisions may be fully applicable. On the application of this Rule, it must be held, as has been observed by the learned Single Jude also, that clause (i) applies to a trespasser in possession from before the date of vesting, where the trespasser has not acquired any right in the land, while the clause (iii) applies to cases where the trespass is after the date of vesting. The prescribed period of limitation for a suit under Section 209 for the ejectment of Amar Nath was thus three years commencing from the date of vesting (July 1, 1961). The suit was instituted long after the expiry of three years period. The suit being barred by limitation was liable to dismissal."

13. In that case, the date of vesting was July 1, 1961 and suit was dismissed being barred by limitation. In the case in hand, the date of vesting is 01.07.1969 and admittedly no suit was filed against the petitioners by the original tenure holder for eviction before or after the date of vesting. According to the finding of the Appellate Court, the petitioners were found in possession of the land in question since 1375 Fasli. The prescribed period of limitation was two years under the Tenancy Act 1939, which expired on 01.07.1969, i.e., 1377 Fasli.

14. The learned Appellate Court did not accept the contention of the petitioners and held that the petitioners did not acquire any tenancy rights till the date of vesting in the 9 land in question and a fresh period of limitation shall run after the date of vesting and the petitioners continued to be trespassers and limitation of 12 years would apply as has been mentioned in Appendix III, Serial no. 30 Clause (iii) of the Z.A. Rules and the period of 12 years came to an end after enforcement of the Ceiling Act.

15. The finding of the learned Appellate Court is perverse. The learned Appellate Court has also relied upon the case of "Mohd. Yaseen V. Amarnath and others, 1974 R.D. 239, in which the question of limitation was elaborately discussed by the Division Bench of Allahabad High Court. Paragraph 5 of the said judgment has already been quoted above. The learned appellate court misread the judgment. Clearly it was held by the Division Bench of the Allahabad High Court that clause (i) applies to trespasser in possession from before the date of vesting, where the trespasser had not acquired any rights in the land, while Clause (iii) applies to cases where the trespass is after the date of vesting. The period of limitation for a suit under Section 209 of the Z.A. and L.R. Act applies against those who trespassed the land after the date of vesting. In the case at hand, it is not disputed that the petitioners entered into possession since before 1375 Fasli as held by the appellate court. The learned appellate court lost sight to the fact by applying the period of limitation as three years under Section 180 of the Tenancy Act and the appellate court has held that the petitioners did not perfect their rights and the limitation had not expired. It may be added that the limitation was two years and not three years at the relevant time and the limitation against the petitioners for eviction had expired before the date of vesting because no suit was filed against them by the original tenure holder. Thus, the petitioners had perfected their hereditary rights under Section 180(2) of the said Act and at the time of vesting as per Section 131, they became Sirdar.

16. The petitioners had perfected their rights at the relevant time, i.e., on the date of vesting, but even for the sake of arguments it may be taken, according to the respondent's case that they had not perfected their rights on the date of vesting, the limitation would apply as that of Clause (i) and not of Clause (iii), as has been mentioned in the Schedule under Section 209 because Clause (iii) only applies in those cases in which the land was trespassed after the date of vesting, as has been held earlier. In that eventuality also, from 01.07.1969, the limitation under Section 209 of the ZA & LR Act had also expired on 01.07.1972 before the enforcement of the Ceiling Act and it is not disputed that no suit was filed after the date of vesting against the petitioners, therefore, the petitioners had acquired rights under Section 210 of the said Act.

17. It was further argued that the entry of the relevant Khasaras, referred to above, do not show that the name of the appellant-petitioners were recorded in the remarks column of khasra in accordance with law over the land of which they are trespassers, they cannot be deemed to have perfected their title over the land and such entry would not be of any avail to the persons concerned. It has been held by the Apex Court in the case of "Wali Mohammad (deceased) by L.Rs. Vs Ram Surat and others, 1989 R.D. 403 (Supreme Court)", that entries in revenue records should generally be accepted at their face value, but presumption of its correctness does not apply to forged or fraudulent entries. What the entry states in revenue records cannot be challenged, but the same can be challenged if the same was made fraudulently or surreptitiously. It was further held by the Apex Court that "It is true that the earlier in the revenue record ought, generally to be accepted at their face value and courts should not embark upon an appellate inquiry into their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent entries. The 11 distinction may be fine but it is real. The distinction is that one cannot challenge the correctness of what the entry in the revenue record states but the entry is open to attack that it was made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title."

18. Learned counsel for the petitioners further contended that the petitioners had filed a suit for declaration in the Court of the Additional Commissioner, Kumaun Mandal, and they were declared Bhumidhars by the said date. In this regard they have also filed copy of the judgment passed by Additional Commissioner dated 15.08.1984. The learned Commissioner did not accept the contention of the petitioners because the declaration was made by the Addl. Commissioner after the Ceiling Act came into force. If this finding is to be accepted, even the finding to this effect that the entry was not made in the revenue records as per provision of the Land Record Manual goes. The declaration was made by the Addl. Commissioner taking into consideration the fact that the entries were made in the revenue records as per provisions of the Land Record Manual.

19. In view of the discussion above, it is clear that the petitioners had perfected their rights before the date of vesting and they had become Sirdar under Section 131 of the U.P.Z.A. and L.R. Act being hereditary tenants. It is not disputed that no suit under Section 180 of the U.P. Tenancy Act or Section 209 of the Z.A. and L.R. Act was filed against the petitioners. As such the land in possession of the petitioners could not be clubbed with the land of the original tenure holder Laxmi Lal."

13) Attention of this Court is also drawn towards paras 17 and 20 of the judgment rendered by Hon'ble Apex Court in Pratap Singh alias Babu Ram and another vs Dy.

Director of Consolidation, Mainpuri and others, (2000) 4 SCC 614. Said paras are reproduced here-in-below:

"17. A bare reading of the words of Entry 30 in Appendix III, relating to suits under Section 209 of the Act, makes it clear that the period of limitation would not run from the date of vesting, as the character of the mortgagee's possession remains "permissive" and does not become "adverse" to the interest of the mortgagor who after acquiring "bhumidhari" rights under Section 18, may still allow the mortgagee to continue in possession. As pointed out earlier, Entry 30 would apply to a suit where a person has obtained possession over land "unlawfully" and continues to retain that possession unlawfully. The period of limitation in the case of a "permissive" possession would start running from the date of mortgagee, who is asked to deliver possession, refuses to do so. "Permissive possession" means that the mortgagee is in possession over the property in question with the leave of the owner, or to put it differently, of the "bhumidhar". If on being asked to deliver possession, the mortgagee refuses or declines to do so, it would given rise to a cause of action on the date on which possession is refused to be delivered and consequently the period of three years would start running from that date.

20. We are not, in this case, considering the question of the mortgagee acquiring title by adverse possession against he mortgagor. That question is separate and distinct from the question we are considering in the instant case in which we are concerned only with the interpretation of Entry 30 of Appendix III which prescribes the period of limitation for a suit under Section 209 of the UPZA&LR Act. Of course, if the suit is not filed within the period of limitation, the consequences indicated in Section 210 of the ZA&LR Act will follow with the result that the person already in possession unlawfully or retaining such 13 possession qua the "bhumidhari" land would immediately acquire the status contemplated by Section 210."

14) Reliance is also placed upon para 36 of the judgment rendered by this Court in Shri Basant Collective Agricultural Farming Cooperatives Society Ltd. vs The State of Uttar Pradesh and others, 2008 (2) U.D. 285. Said para is reproduced here-in-under:

"36. In that case, the date of vesting was July 1, 1961 and suit was dismissed being barred by limitation. In the case at hand, the date of vesting is 01.07.1969 and, admittedly, no suit for eviction of the petitioner has been filed by the original tenure holder under the U.P Tenancy Act or after the enforcement of the U.P.Z.A. and L.R. Act under Section 209 thereof hence the petitioner society had perfected its rights as hereditary tenant and became Sirdar under Section 131 of the U.P.Z.A. and L.R. Act and subsequently, became bhumidhar with transferable rights by operation of law in the year 1977 without paying ten times of land revenue."

15)          It, therefore, follows that:
      (a)    under the Z.A. & L.R. Act, limitation for filing

the suit under Section 209, U.P.Z.A. & L.R. Rules, Appendix III, Serial no. 30, clauses (i) and (iii) provide the limitation in case the suit to be filed after the date of vesting for ejectment of a person taking or retaining possession of land unlawfully.

(b) if the suit is not filed within the period of limitation, the consequences indicated in Section 210 of the ZA&LR Act will follow with the result that the person already in possession unlawfully or retaining such possession qua the "bhumidhari" land would 14 immediately acquire the status contemplated by Section 210.

16) The irresistible conclusion would, therefore, be -

(a) The provisions of U.P.Z.A. & L.R. Act came into force in Tarai-Bhawar (area concerned) w.e.f. 01.07.1969, which date is known as "date of vesting". The name of defendant-respondent Gopal Dutt is recorded in khatauni as occupant over land in dispute prior to 1960, i.e., prior to Fasli year 1967.

(b) On enforcement of U.P.Z.A. & L.R. Act, if a bhumidhar fails to file a suit u/s 209 of the said Act against occupant within specified period of limitation (three years from the date of vesting following the date of occupation under the Act), in such a situation, his rights over the land occupied by another person extinguish and the occupant becomes the adhiwashi, sirdar and bhumidhar, as the case may be, as per Section 210 of the U.P.Z.A. & L.R. Act.

(c) The name of defendant-respondent Gopal Dutt was recorded in revenue records prior to 1960 (Fasli year 1967) as occupant (a person in possession) and the date of vesting in Tarai-

Bhawar is 01.07.1969. No suit under Section 209 of U.P.Z.A. & L.R. Act was filed within three years from the date of vesting and, therefore, rights of the defendant-respondent Gopal Dutt became perfect.

(d) Before joining the Indian Army, the petitioner knew that the name of defendant-respondent has been recorded in the revenue records, therefore, it was incumbent upon him to file a suit for eviction under Section 209 of U.P.Z.A. & L.R. Act and not for seeking declaration under Section 229B of the said Act.

(e) Documents reveal that defendant-respondent perfected his right by adverse possession. No revenue suit under Section 229B of U.P.Z.A. & L.R. Act was filed within three years from the date of vesting following the date of occupation. The bhumidhar, therefore, extinguished his rights and the rights of the defendant-

respondent were perfected.

17) In view of the above discussion, the writ petition fails and is dismissed.

(U.C. Dhyani, J.) Dt. June 29, 2017 Negi 16

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