Uttarakhand High Court
Shashi Bhushan vs Lalit Mohan Singhal on 1 September, 2020
Equivalent citations: AIRONLINE 2020 UTR 308
Author: Lok Pal Singh
Bench: Lok Pal Singh
RESERVED JUDGMENT
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Civil Revision No. 90 of 2014
Shashi Bhushan .......Revisionist
Vs.
Lalit Mohan Singhal .........Respondent
Mr. T.A. Khan, Senior Advocate for the revisionist
Mr. J.C. Belwal, Advocate for the respondent
Hon'ble Lok Pal Singh, J.
Instant Civil Revision, preferred under Section 25 of Provincial Small Cause Courts Act, 1887, is directed against the judgment and decree dated 20.08.2014 passed by Judge, S.C.C./Ist additional District Judge, Haldwani in SCC suit no.22 of 2010, whereby the respondent/plaintiff's suit for a decree of eviction and arrears of rent and damages, has been allowed.
2. Facts, in brief, are that the respondent/plaintiff filed a suit in the court of Judge, SCC against the revisionist/defendant for decree of eviction and recovery of rent and damages, stating that he is the recorded owner of suit property in which the revisionist/defendant was inducted as a tenant from 10.10.2009 @ Rs.16,000/- per month. It was stated that the provisions of U.P. Act No.13 of 1972 is not applicable to the suit property being newly constructed building and the rental value of more than ` 2,000/-. Respondent/plaintiff stated that he issued a legal notice dated 17.07.2010 to the revisionist/defendant under Section 106 of the Transfer of Property Act, terminating his tenancy on expiry of period of 30 days, and requesting him 2 to handover the peaceful and vacant possession of the suit property. It was also stated that despite expiry of period of notice, the revisionist/defendant has not vacated the suit property nor has paid the rent due. The revisionist/defendant contested the suit and filed his written statement. The revisionist/defendant admitted the plaint averments that the respondent/plaintiff is the owner and landlord of the suit property; the rent of the suit property is ` 16,000/- per month; and that the provisions of U.P. Act No.13 of 1972 are not applicable to the suit premises. It was stated that the land on which the tin shed and office has been constructed is a bhumidhari land and the provisions of U.P. Zamindari Abolition and Land Reforms Act (hereinafter to be referred as the UPZA & LR Act) is applicable, as in view of Section 156 of the UPZA & LR Act, no bhumidhari or Aasami shall let out any land in his holding for any land in his holding for any period except as provided in that section. It was also averred that when the premises in question was let out to the defendant, no declaration under Section 143 of the UPZA & LR Act was made by the plaintiff and the premises has been let out to the defendant in contravention of Section 156 of the UPZA & LR Act. Since no declaration has been made by the plaintiff, the land in question vested in the State Government.
3. On the pleadings of the parties, Judge, SCC, framed the following issues in the suit:-
(i) Whether the provisions of U.P. Act No.13 of 1972 are applicable to the land in question?3
(ii) Whether the tenancy of the defendant has been terminated by a notice dated 17.07.2020 issued under Section 106 of the Transfer of Property Act?
(iii) Whether the plaintiff is entitled to get the relief sought?
4. Thereafter, parties led their oral and documentary evidence. In oral evidence, respondent/plaintiff Lalit Mohan Singhal and revisionist/defendant filed their affidavits evidence. In documentary evidence, on behalf of the respondent/plaintiff, copy of notice dated 17.07.2010, postal receipts and acknowledgement were filed. On behalf of the revisionist/defendant deposit slips list 21C to 22C were filed.
5. Despite the admission made by both the parties that the provisions of U.P. Act No.13 of 1972 are not applicable to the disputed property, Judge, SCC formulated issue no.1 regarding applicability of the provisions of U.P. Act No.13 of 1972 to the disputed property. But while deciding said issue, Judge SCC proceeded to record its findings on some other aspect and it was accordingly held that the respondent/plaintiff is entitled to receive ` 32,334/- due on the revisionist/defendant.
6. On issue no.2, trial court recorded its finding that notice dated 17.07.2010 issued under section 106 of the Transfer of Property Act was served upon the defendant on 19.07.2010 and after expiry of 30 days period from the date of receipt of notice, since 18.08.2010 the defendant is in unauthorized possession of the land in dispute. Findings recorded by the trial 4 court on issue no.2 are based on proper appraisal of facts and evidence and, therefore, no interference is required in the same. Furthermore, the defendant has not come with a case that the notice dated 17.07.2010 was not served upon him on 19.07.2010 and there was any infirmity in the notice dated 17.07.2010. Findings recorded by the trial court on issue no.2 are hereby affirmed.
7. On issue no.3, trial court having considered the fact that the plaintiff has proved that an amount of Rs.32,334/- was due upon the defendant before issuing the notice and the tenancy was terminated vide notice dated 17.07.2010 that the defendant has deposited an amount of Rs.59,000/- before the trial court, the trial court recorded findings that the suit premises is abadi area therefore there is no requirement of any declaration u/s 143 of the Act.
8. The trial court, on the basis of findings recorded on issue nos.1 to 3, vide impugned judgment and decree, decreed the suit of the plaintiff, as aforesaid.
9. I have heard learned counsel for the parties and perused the entire record.
10. Learned counsel for the revisionist has vehemently argued that the land in dispute is a bhumidhari land and no declaration in respect thereof has been made by the respondent/plaintiff, therefore, the land alongwith building thereon, had vested in the State as per Section 165 of UPZA & LR Act. To buttress his submissions, learned counsel has cited following judgments:-
5a) Satgur Dayal vs. IV Additional District Judge, Kheri & Others, (2014) 123 RD 767 "3. Sri Chaudhary, learned counsel for the petitoiner contended that even if there existed some construction over a land which is recorded as agricultural land, the mere fact of such existence of construction over the land, the jurisdiction of Revenue Court under Section 143 of U.R. Zamindari Abolition and Land Reforms Act, 1951 (hereinafter referred to as the "Act, 1951") will not be barred. He placed reliance on Alauddin alias Makki v.
Hamid Khan, 1971 RD 160 : (AIR 1971 All 348); Dina Nath Verma v. Gokaran, 2003 (94) RD 323 : (2003 All LJ 1788); and, Veer Bal Singh v. State of U.P., 2009 (108) RD 124.
9. Since the land in dispute, despite and irrespective of nature of construction, as discussed above, continued to be an "agricultural land", in absence of any declaration made under Section 143, evidently Civil Court had no jurisdiction to decide the matter being barred by Section 331 of Act, 1951. The dispute could have been settled in Revenue Court. In view of above, the writ petition is allowed. The impugned orders dated 13.12.1994 and 07.09.1995 are hereby quashed. Since the Original Suit No.479 of 1993 itself is not maintainable being barried by Section 331 of Act, 1951 the suit itself is dismissed with liberty to parties concerned to avail such remedy as available in law, before Revenue Court, if so advised."
b) Dina Nath Verma and others v. Gokaran and others, (2003) 94 RD 323 "16. It may also be mentioned all the four houses are existing in agricultural land and admittedly there is no declaration under section 143 of U.P.Z.A. and L.R. Act. Learned counsel for the appellants has referred to the decision of this Court in Indrajeet Singh v. Sardar Arjun Singh. It was held in this case, that if no declaration in respect of the land is made under section 143 of U.P.Z.A. and L.R. Act, the land did not cease to be land. That even if certain construction exist on the land, it is not material. It was further observed that the rights decided by the consolidation Courts on such land are final."
6c) Indrajeet Singh v. Sardar Aijun Singh and others, 1983 All LJ 388 "7. Learned counsel for the plaintiff-appellant contended that since the land in suit was Abadi land and as such the entries made during consolidation operations in favour of defendant no.1 would not estop the Gaon Sabha from claiming the land and the Gaon Sabha could, therefore, pass resolution for letting out the land to the plaintiff and the Izazatnama executed by it was a valid document. I am unable to agree with this contention as well. In the basic year Khatauni, name of the plaintiff's father was recorded as tenure-holder on the land in suit. No objection was filed by Gaon Sabha claiming any title in the land in suit. Objection was filed by defendant no.1 asserting that he is co-tenure holder along with Sardar Pooran Singh, father of plaintiff. The said objection was decided on the basis of compromise and in those proceedings it was not asserted that the objection is not entertainable. Even if certain constructions were situate on the land in suit in the form Bhattis etc. concerning lime business, that would not make the land as Abadi land. Name of plaintiff's father was recorded as tenure holder on the land in suit. Admittedly no declaration was made in respect of land in suit as is envisaged under S.143 of U.P. Zamindari Abolition & Land Reforms Act. The land in suit, therefore, did not cease to be land and the rights of tenure-holder could be determined by consolidation authorities in respect of land in dispute which was exclusively recorded in the name of plaintiff's father as tenure-holder thereof. If on certain plot, which forms part of folding certain constructions were made, such land would not cease to be part of the holding. It would continue to be recorded as such and the provisions of U.P. Zamindari Abolition and Land Reforms Act will govern such land in the absence of any declaration being granted under S. 143 of the U.P. Zamindari Abolition & Land Reforms Act. If any plot of the holding has become Abadi or is used as such, it will continue to be recorded in the holding with remark against it as 'Abadi Shamil Jot'. The Consolidation authorities, 7 therefore, had jurisdiction to determine as to who is tenure-holder of the land in suit.
7. Learned counsel for the plaintiff-appellant contended that since the land in suit was Abadi land and as such the entries made during consolidation operations in favour of defendant No. 1 would not estop the Gaon Sabha from claiming the land and the Gaon Sabha could, therefore, pass resolution for letting out the land to the plaintiff and the Izazatnama executed by it was a valid document. I am unable to agree with this contention as well. In the basic year Khatauni, name of plaintiff's father was recorded as tenure-holder on the land in suit. No objection was filed by Gaon Sabha claiming any title in the land in suit. Objection was filed by defendant No. 1 asserting that he is co-tenure-holder along with Sardar Pooran Singh, father of plaintiff. The said objection was decided on the basis of compromise and in those proceedings it was not asserted that the objection is not entertainable. Even if certain constructions were situate on the land in suit in the form Bhattis etc. concerning lime business, that would not make the land as Abadi land. Name of plaintiff's father was recorded as tenure-holder on the land in suit. Admittedly no declaration was made in respect of land in suit as is envisaged under S. 143 of U.P Zamindari Abolition & Land Reforms Act. The land in suit, therefore, did not cease to be land and the rights of tenure-holder could be determined by consolidation authorities in respect of land in dispute which was exclusively recorded in the name of plaintiff's father as tenure-holder thereof. If on certain plot, which forms part of folding certain constructions were made, such land would not cease to be part of the holding. It would continue to be recorded as such ans the provisions of U.P Zamindari Abolition & Land Reforms Act will govern such land in the absence of any declaration being granted under S. 143 of the U.P Zamindari Abolition & Land Reforms Act. If any plot of the holding has become Abadi or is used as such, it will continue to be recorded in the holding with a remark against it as 'Abadi Shamil Jot'. The Consolidation 8 authorities, therefore, had jurisdiction to determine as to who is tenure-holder of the land in suit.
8. Defendant no.1 filed objection under S. 9A(2) of the Act claiming to be co-tenure-holder along with plaintiff's father. The case was decided on the basis of compromise and the land in suit was ordered to be recorded exclusively in the name of defendant No.1 on the basis of compromise by which the parties are bound. Plaintiff, being heir and successor of Sardar Pooran Singh is bound by the said compromise. He was also the scribe of said compromise. In this view of the matter, I do not find any merit in the arguments advanced by learned counsel for the plaintiff-appellant that the consolidation Courts had no jurisdiction to entertain objection and the order passed by the Consolidation Officer on the basis of said compromise is illegal and void. The plaintiff, being heir and successor of Sardar Pooran Singh is bound by the said compromise and in my opinion the Courts below have rightly recorded findings to that effect. Claim of plaintiff-appellant was merely based on the aforesaid Izazatnama dated 17th May, 1971 executed by the Gaon Sabha. Both the Courts below have rejected the claim of the plaintiff- appellant and I do not find any merit in the arguments advanced by learned counsel for the plaintiff-appellant that the consolidation Courts had no jurisdiction to entertain objection and the order passed by the Consolidation Officer on the basis of said compromise is illegal and void. The plaintiff, being heir and successor of Sardar Pooran Singh is bound by the said compromise and in my opinion the Courts below have rightly recorded findings to that effect. Claim of plaintiff- appellant was merely based on the aforesaid Izazatnama dated 17th May, 1971 executed by the Gaon Sabha. Both the Courts below have rejected the claim of the plaintiff-appellant and I do not find any infirmity in the findings in view of what has already been said above. The alleged lease and Izazatnama executed by the Gaon Sabha cannot confer any right or title upon the plaintiff as Gaon Sabha could not lay any claim to the land in suit for reasons mentioned above."
911. Per contra, learned counsel for the respondent has placed reliance on the following judgments:-
a) M/s Ajaz Carpets and three ors. V. M/s Birla International Pvt. Ltd. (2013) 99 ALR 731 "3. The entire argument of learned counsel for the appellant is that land in dispute is agricultural land and one Sri Gupta was original bhoomidhar, who illegally let out the land to the respondent in contravention of provisions of Section 156 of UPZA & LR Act and thereupon respondent illegally sublet the same to the applicants hence by virtue of Section 165 of UPZA & LR Act, applicants have become owners/bhoomidhars.
4. By virtue of Section 116 of Evidence Act, applicants are estopped from denying the title of the land respondent.
7. Accordingly, defendants had absolutely no right to deny the title of the landlord and set up a title in themselves. In case U.P. Act No.13 of 1972 had been applicable, tenants would have been liable to eviction on the ground of denial of title of the landlord also. The allegation in the plaint that land in dispute is situate within municipal area has categorically been admitted in para-4 of the written statement. UPZA & LR Act does not apply to the areas falling within municipal limits. There is no obligation in the written statement that under Sections 3 and 5 of U.P. Urban Area and Zamindari Abolition Act, 1956 any demarcation was made and land in dispute was declared to be agricultural land. In the absence of such declaration, UPZA & LR Act cannot apply to a land situate within municipal limits. By virtue of Section 64 of U.P. Urban Area Z.A. & L.R. Act 1956 provisions of Chapter-VIII of U.P.Z.A. & L.R. Act apply to agricultural area acquired under 1956 Act. Under Section 8 of 1956 Act, it is provided as under:
"After the agricultural area has been demarcated under Section 5, the State Government may at any time by notification in the Official Gazette declare that as from a date to be specified of such areas situate in the urban area 10 shall vest in the State and as from the beginning of the date or specified of such agricultural areas shall stand transferred to and vest except as hereinafter provided in the State free from all encumbrances."
Sections 156, 165, 209 of UPZA & LR Act are included in Chapter -VIII thereof.
8. Accordingly, in the absence of any pleading or evidence regarding demarcation under Section 3 & 5 of 1956 Act, provisions of Chapter-VIII of UPZA & LR Act cannot be said to be applicable upon the land/premises in dispute.
9. Even under UPZA & LR act, applicant cannot claim any benefit."
12. After going through the case-laws cited by the learned counsel for the parties, it transpires that there are contradictory decisions of the Court on this particular issue. Thus, the judgments cited above are of no assistance to any of the party. Recently, this Court in WPMS No.2180 of 2018 State of Uttarakhand vs. Amandeep Singh and others, decided on 28.07.2020, has discussed the effect of declaration or non-declaration u/s 143 of UPZA & LR Act and has accordingly held that as soon as a declaration is made under Section 143 of the Act, the land as defined under Section 3(14) of the Act comes out from the purview of the Act, but in the case where the declaration has not been made but in fact land is being used for the purposes not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming, the effect of non-declaration under Section 143 of the Act would also lead to the position that the suit property shall be deemed to be excluded from the provisions of the Act. Relevant paragraphs of the said judgment are reproduced hereunder:
"Effect of non-declaration of land under Section 143 of U.P.Z.A. & L.R. Act, 1950 -11
14) It would also be apt to quote herein Section 143 of the Act. The same is excerpted hereunder:
143. Use of holding for industrial or residential purposes. -
[(1) Where a bhumidhar with transferable rights uses his holding or part thereof for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming, the Assistant Collector-in-charge of the sub-division may, suo motu or on an application, after making such enquiry as may be prescribed, make a declaration to that effect. (1-A) Where a declaration under sub-section (1) has to be made in respect of a part of the holding the Assistant Collector-in-charge of the sub-divisions may in the manner prescribed demarcate such part for the purposes of such declaration.] (2) Upon the grant of the declaration mentioned in sub- section (1) the provisions of this chapter (other than this section) shall cease to apply to the bhumidhar with transferable rights with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject. (3) Where a bhumidhar with transferable rights has been granted, before or after the commencement of the Uttar Pradesh Land Laws (Amendment) Act, 1978, any loan by the Uttar Pradesh Financial Corporation or by any other Corporation owned or controlled by the State Government, on the security of any land held by such bhumidhar, the provisions of this Chapter (other than this section) shall cease to apply to such bhumidhar with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject."
15) Admittedly, the old bungalows, outhouses and land appurtenant thereto along with trees were already there over the suit property, though no declaration under Section 143 of the Act has been made to this effect. From a bare reading of Section 143 of the Act it is evidently clear that where a bhumidhar with transferable rights uses his holding or part thereof for a purpose not connected with agriculture, horticulture or animal husbandry which includes 12 pisciculture and poultry farming, the Assistant Collector-in-charge of the sub-division may, suo motu or on an application, after making such enquiry as may be prescribed, make a declaration to that effect. Thus a duty casts upon the Assistant Collector-in-charge of the sub-division to ascertain all the relevant facts during enquiry and then make a declaration to this effect.
16) The Assistant Collector (I Class), Almora without taking note of the provisions contained in Section 143 of the Act had passed the order dated 31.10.2017. The powers under Section 143 of the Act can be exercised suo motu or on an application of any person, and after making such enquiry as may be prescribed, the declaration could have been made by the Assistant Collector, but he failed to discharge his legal obligation as mandated under Section 143 of the Act.
17) Section 3(14) of the U.P.Z.A. & L.R. Act, 1950, defines "land" as under:-
"3. Definitions.
.............
14) "Land" except in Sections 109, 143 and 144 and Chapter VII means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming."
18) Since the jurisdiction under Section 143 of the Act is exercisable suo motu and admittedly the bungalows, outhouses and land appurtenant thereto along with trees already exist over the suit property, therefore, a declaration under Section 143 of the Act should have been made by the Assistant Collector-in charge of the sub-division. As soon as a declaration is made under Section 143 of the Act, the land as defined under Section 3(14) of the Act comes out from the 13 purview of the Act, but in the case where the declaration has not been made but in fact land is being used for the purposes not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming, the effect of non- declaration under Section 143 of the Act would also lead to the position that the suit property shall be deemed to be excluded from the provisions of the Act.
Effect of declaration of land under Section 143 of U.P.Z.A. & L.R. Act, 1950 -
19) As soon as the land defined under Section 3(14) of the Act is not being used for the purposes of agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming and a declaration under Section 143 of the Act is made, the provisions of Chapter VIII of the Act (except Section
143) ceased to apply to the bhumidhar with transferable rights with respect to such land. As soon as a declaration is made no further permission under any of the provisions of the Act is required.
20) A perusal of the sale seed would reveal that the sale deed has not been executed in regard to the agricultural land alone. A further perusal of the sale deed would reveal that the sale deed has been executed in regard to 201 Nali 10 Muthi land consisting of two old bungalows, outhouses and land appurtenant thereto along with 63 trees standing thereon situated in Village Papersali, District Almora. It is nowhere stated that it is only the agricultural land. It seems to this Court that these bungalows, outhouses and land appurtenant thereto along with trees cannot be considered as agricultural land. Therefore, the 14 provisions contained in Section 152-A are not applicable to it. The suit property is outside the purview of the U.P.Z.A. & L.R. Act, 1950."
13. In view of the above, the contention of learned counsel for the revisionist that due to non-declaration u/s 143 of the UPZA & LR Act whereupon construction has been made, the property shall vest in the State u/s 156 of the Act, is misconceived. As held by this Court in aforesaid judgment, in such a situation, the suit property shall be deemed to be excluded from the provisions of the Act.
14. It is the admitted case of the respondent/plaintiff that the suit property was let out to the revisionist/defendant at the rent of ` 16,000/- per month and the tenancy of the defendant is not protected under the provisions of the U.P. Act No.13 of 1972. In the written statement, there is admission of the defendant that the plaintiff is the landlord of the suit property. Thus, in view of the provisions contained in Section 116 of the Evidence Act, the defendant/revisionist is estopped from denying the title of the landlord/respondent. For convenience, Section 116 of the Evidence Act is quoted hereunder:-
"116. Estoppel of tenant; and of licensee of person in possession.- No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the license of the person in possession thereof, shall be permitted to deny that such person 15 had a title to such possession at the time when such licence was given."
15. In State of Andhra Pradesh and Others v. D. Raghukul Pershad & Others, (2012) 8 SCC 584, Hon'ble Apex Court has held as under:-
"7. The law is settled by this Court in D. Satyanarayan v. P. Jagadish that the tenant who has been let into possession by the landlord cannot deny the landlord's title however defective it may be, so long as he has not openly surrendered possession by surrender to his landlord. Although, there are some exceptions to this general rule, none of the exceptions have been established by the appellants in this case. Hence, the appellants who were the tenants of the respondents will have to surrender possession to the respondents before they can challenge the title of the respondents.
8. In the plaint as framed by the respondents in the present case, the relief of eviction against the appellants was not based on the title of the respondents. Mr. M.L. Varma, learned Senior Counsel appearing for the respondents vehemently submitted that on a reading of the plaint, it will appear that the respondents had claimed to be owners of the land. We find that although an averment has been made in the plaint that the respondents were the owners of the suit land, no relief for declaration of title as such has been claimed by the respondents. Only the relief of eviction was sought in the plaint on the ground that the lease had not been renewed after 1986 and the rent had not been paid since 1986. In our considered opinion, therefore, this being not a suit of declaration of title and recovery of possession but only a suit for eviction, the trial court, the first appellate court and the High Court were not called upon to decide the question of title.
9. For the aforesaid reasons, we set aside the findings of the trial court, the first appellate court and the High Court on title, but we maintain the decree for eviction. We, 16 however, order that the appellants will vacate the suit land within six months from today and further make it clear that the suit, if any, filed by the appellants for declaration of title and consequential relief cannot be entertained by the Court unless the appellants first vacate and hand over possession to the respondents."
16. Insofar as the rent/damages is concerned, the respondent/plaintiff by oral as well as documentary evidence, has been able to prove the fact that ` 32,334/- towards rent was due on the revisionist/defendant, whereas on the other hand, the revisionist/defendant has not led any reliable evidence. The trial court has recorded a categorical finding that the defendant has neither filed any documentary evidence nor has led any oral evidence to substantiate that ` 40,000/- was paid by the defendant to the plaintiff towards some construction raised by the plaintiff. There is no illegality or perversity in the findings so recorded by the trial court on this point. Same are hereby affirmed.
17. In view of the foregoing discussion, civil revision lacks merit. Same is hereby dismissed. Impugned judgment and decree dated 20.08.2014 is upheld. Revisionist is granted three months' time i.e. till 30.11.2020 to handover the vacant and peaceful possession to the respondent, subject to the following undertaking:-
i) The revisionist shall file an undertaking before the court below within one month to the effect that he shall vacate the suit property on or before 30.11.2020 and shall handover the vacant and peaceful possession of the property in question to the respondent.17
ii) The revisionist shall pay the entire decretal amount within two months, adjusting the amount already paid, if any.
iii) The revisionist shall not create any third party interest over the property in question.
iv) In the event of default of any of the aforesaid conditions, the decree holder shall be entitled to get the decree executed forthwith.
(Lok Pal Singh, J.) 01.09.2020 Rajni