Allahabad High Court
Pyare vs M.Abdul Hafeez on 11 January, 2019
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R.
RESERVED
Case :- SECOND APPEAL No. - 408 of 1993
Appellant :- Pyare
Respondent :- M.Abdul Hafeez
Counsel for Appellant :- M.C.Sharma,B.R. Tripathi,Rajeev Kumar Tripathi
Counsel for Respondent :- S.Mirza, M.A.Siddiqui
*****
Hon'ble Jaspreet Singh,J.
By means of the present second appeal, the appellant, who was the defendant in the trial court, assails the judgment passed by the first appellate Court dated 16.09.1993 passed by the Court of Additional Civil Judge, Bahraich whereby it reversed the judgment passed by the trial court dated 05.02.1991 passed by the first Additional Munsif, Bahraich, whereby the suit of the plaintiff-respondent had been dismissed.
An interesting question arises in the aforesaid second appeal, which was admitted by this Court by means of the order dated 01.12.1993. However, at the time of admission, the substantial questions of law were not formulated.
With the consent of the learned counsel for the parties, the Court formulated the following substantial questions of law, which are reproduced hereinafter.
(i) Whether the judgment and decree passed in R.S. No.127/1970 will operate as res judicata in the present suit filed by plaintiff-respondent and its effect ?
(ii) Whether the suit of the plaintiff was maintainable and any cause action had accrued on 01.09.1984 ?
(iii) Whether S.D.O. has power to declare the ownership under Section 123 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 ? and
(iv) Whether the appellant is entitled to the benefit of Section 123(2) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 and if so, its effect on the suit ?
In order to answer the aforesaid questions, certain facts necessary for effectual adjudication of the controversy, are being noticed hereinafter.
The plaintiff-respondent Mohd. Abdul Hafeez instituted a suit for possession against Shri Pyare on the pleadings that he was the owner of the plot bearing No.216(N) measuring 0.37 decimal, situate in Moza Bhoga Jot, Tehsil Kaiserganj, District Bahraich. He had purchased the aforesaid plot by means of a registered sale-deed dated 03.08.1973 from Shri Daya Shankar Bajpai. It was also pleaded that the defendant Shri Pyare had instituted a suit bearing R.S. No.127 of 1970 for injunction against four defendants including Shri Daya Shankar Bajpai and the said suit was dismissed on 12.05.1973. It was held that Pyare could not establish his possession or right over the property in question. His appeal bearing No.148 of 1973 was also dismissed. However, some time in the year 1982, the defendant Pyare forcibly occupied the property in question and started raising construction. As he refused to remove his construction, consequently a suit for possession was filed on 01.09.1984.
The defendant Pyare while filing his written statement in Paragraph-13 categorically pleaded that the property in question did not belong to Raja Vijay Pratap Singh, Daya Shankar Bajpai or the plaintiff Mohd. Abdul Hafeez nor they were in possession rather he pleaded that the property in question has been in his possession since long and even though his earlier suit bearing R.S. No.127/1970 was dismissed yet that would have no ill effect since he continued to remain in possession of the property in question and it has been falsely pleaded that Pyare came into possession only in the year 1982. The defendant Pyare specifically in Paragraph-21 claimed the benefit of the provisions of Section 123(2) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (henceforth "the Act of 1950", in short) and thus he pleaded that in view of the statutory recognition of his rights, the property in question stood vested with him and the plaintiff Abdul Hafeez had no right to seek possession.
The plaintiff filed the replication and refuted the plea of defence raised by the defendant. It replied that since the property in question has been in the nature of 'abadi', thus, the provisions of Section 123(2) of the Act of 1950 were not applicable. It was also pleaded in the replication that the S.D.O., of the concerned area did not have the right to declare the property in question as 'abadi' and to confer any benefit of Section 123 of the Act of 1950 on the defendant.
The parties led their respective evidence and the trial court framed eleven issues. For the purposes of the aforesaid second appeal, the Issues No.2, 3, 4, 5, 9, 10 and 11 as framed by the trial court are relevant and upon consideration of the same, the trial court held that since there was a denial of title and possession by the defendant, thus, in order to establish the same, it was necessary for the plaintiff to have examined his predecessor Shri Daya Shankar Bajpai. In absence of his being examined as a witness, his right and title as well as possession could not be established. Since, the evidence led by the defendant was much more superior wherein his possession relating to the property in question was established by referring to certain documents which were in context of land acquisition proceedings, consolidation proceedings, land ceiling proceedings and orders passed by the Deputy Commissioner under the U.P. Roadside Land Control Act, thus, the trial court found that these documents relating to the year 1963 and 1969 much prior to the date of the execution of the sale-deed of the plaintiff, established the possession of the defendant. Accordingly, the Issue No.2 was decided against the plaintiff by holding that he did not acquire any right on the basis of the sale-deed executed by Daya Shankar Bajpai. The Issues No.3 and 4 were also decided against the plaintiff. The trial court also considered the plea of the parties regarding the applicability of Section 123(2) of the Act of 1950 and the S.D.O. passed an order in term whereof the benefit of Section 123(2) of the Act of 1950 was given to the defendant. It further recorded a finding that it was within the jurisdiction of the S.D.O. to have passed the order dated 27.07.1988 and since the right of the defendant was covered within the ambit of Section 123(2) of the Act of 1950, therefore, the plaintiff was not entitled to seek possession from the disputed land as the same vested with the defendant and with the aforesaid findings, the suit of the plaintiff was dismissed by means of the judgment dated 05.02.1991.
Being aggrieved against the judgment passed by the trial court, the plaintiff preferred a regular civil appeal under Section 96 CPC. The first appellate Court after hearing the parties confined its attention on the issues No.10, 11 and 12 which related to the applicability of Section 123 of the Act of 1950 and as to whether the plaintiff was the owner in terms of the sale-deed dated 03.08.1973. The first appellate Court allowed the appeal and reversed the judgment passed by the trial court primarily holding that the findings recorded in the earlier suit bearing R.S. No.127/1970, which was instituted by the defendant Shri Pyare wherein he claimed his ownership and possession in respect of the property in question and having lost that suit and the findings recorded therein that he was neither owner nor he was found in possession, those findings would operate as res judicata in the present suit and this aspect was not considered by the trial court.
Another factor which prevailed in the mind of the first appellate Court was the fact that in ceiling proceedings, which were held in the year 1969, the authority concerned had excluded the land in question from the Ceiling Act by holding that there was an 'abadi' over the land in question and consequently the first appellate court came to the conclusion that since it was an 'abadi', therefore, the provisions of Section 123(2) of the Act of 1950 were not applicable. It also recorded a finding that even in prior proceedings relating to the land acquisition, the aforesaid land was found to be 'abadi' and that in the earlier Regular Suit No.127/1970 Pyare had also admitted that he was in possession over the land in question since last several decades, accordingly, it held that the land was 'abadi' and it could not be taken into consideration for grant of benefit of Section 123(2) of the Act of 1950. It further held that the S.D.O., did not have the right to declare the land in question as 'abadi' while the aforesaid right only vested with the civil court. The first appellate Court also considered that the land in question belonged to the "Ruhiya Estate", and its descendants Shri Raja Vijay Pratap Singh had sold the property to Shri Daya Shankar Bajpai, who in turn had sold the property to the present plaintiff Mohd. Abdul Hafeez, thus, he was the owner of the same. Accordingly, the appeal was allowed and the judgment of the trial court was set aside. The defendant was directed to remove his constructions within three months and hand over its vacant possession to the plaintiff. Being aggrieved against the judgment of reversal, the defendant has preferred the above second appeal.
I have heard Shri Rajieu Kumar Tripathi, learned counsel for the appellant and Shri M.A.Siddiqui assisted by Shri Aftab Ahmad, learned counsel for the respondents at length.
The primary contention of the learned counsel for the appellant while pressing on the substantial questions of law was that Section 123 of the Act of 1950 came by amendment in the year 1974. The aforesaid provision provided a right to those persons, who were found to have a house existing on the land in question belonging to the tenure holder. Such sites would vest with the persons, who had constructed the aforesaid house. It was urged that since admittedly the plaintiff had pleaded categorically that the defendant was in possession from the year 1982 and had raised constructions, thus, upon the amendment in the aforesaid Section 123(2) of the Act of 1950, the cut of date was amended which consequently gave the benefit of the aforesaid provisions to the defendant, therefore, the trial court was absolutely right in dismissing the suit inasmuch as once by the operation of law, the site in question had vested with the defendant, the plaintiff lost his right and even though he bought the property from the erstwhile 'bhumidhar' yet he could not get any benefit as in law he was prohibited from seeking the land as the same had vested with the defendant.
It was also urged by the learned counsel for the appellant that a finding in the earlier suit would not operate as res judicata since it was merely a suit for injunction wherein mandatory and permanent injunctions were sought. Once the findings were returned in the earlier suit that Pyare was not in possession nor he could establish his title, such findings were only relevant for the purposes of grant or refusal of injunction, but it could only operate as res judicata in a subsequent suit where the question of title was to be considered on the basis of statutory recognition of rights which was not available at the time when the first suit was filed. He also emphasized that from the documents available on record, the possession of the defendant was established even prior to the sale-deed dated 03.08.1973. Accordingly, the rights of the defendant-appellant stood perfected. He further elaborated that the Board of Revenue issued a notification was only in clarificatory in nature which recognized the vesting of rights in terms of Section 123 of the Act of 1950, which was a statutory provision. According to the learned counsel for the appellant vesting was a direct outcome of Section 123 of the Act of 1950 and the rights so vested in terms of statutory provision was only regulated by the notification of the Board of Revenue and thus the order passed by the S.D.O., to declare the ownership of the defendant by declaring it as 'abadi' as well as the notification issued by the Board of Revenue was only in consequence and recognition of right which was created and vested in the defendant by Section 123 of the Act of 1950.
Per contra, Shri M.A. Siddiqui, and Shri Aftab Ahmad, would contend that Section 123 of the Act of 1950 would have a prospective applicability. The cut of date as referred by the learned counsel for the appellant was amended from time to time and the earlier cut of date of 1974 was extended to 1985, whereas the suit had been instituted only in the year 1984, therefore, the benefit of extension of the cut of date is not available to the defendant-appellant. It was further urged that the land in question has been held to be 'abadi' as even according to the defendant Pyare in the earlier R.S. No.127/1970 he had stated that he was in possession since the time his forefathers and to establish the aforesaid fact the copy of the plaint of the earlier suit, the judgment of the dismissal by the trial court, the judgment of the affirmance by the first appellate Court was also placed on record. From the perusal of the same, it was contended that the defendant was already treating the land to be 'abadi' and in an 'abadi' land, the provisions of Section 123 of the Act of 1950 were not applicable. In order to further buttress their submissions, learned counsel for the respondent submitted that in the earlier suit R.S. No.127/1970, it was held that the defendant Shri Pyare was not found in possession, therefore, it cannot be said that he was the one who was in possession and raised construction over the property in question and since he could not establish all the ingredients in respect of Section 123 of the Act of 1950, he was not entitled to its benefit.
Thus, in effect the contention of the respondent was to the effect that the provisions of Section of the Act of 1950 is prospective and not retrospective, since the possession of the defendant could not be proved in the earlier suit which led to its dismissal, therefore, it cannot be held that the defendant was in possession. Since, he came in possession of the premises in question only in the year 1982 as per the plaint case, therefore, the prospectivity of the relevant provisions will not entitle the defendant to claim the benefit of Section 123 of the Act of 1950, retrospectively as the extended cut of date in the provisions came in the year 1985, whereas the suit was instituted in 1984, and the rights of the parties were crystallized on the date of institution of the suit, thus, he was not entitled to the benefit of the aforesaid provisions.
Shri Rajieu Kumar Tripathi in rejoinder submitted that the land in question always remained a 'bhumidhari' land even assuming if it belonged to erstwhile "Ruhiya Estate", it was 'bhumidhari' land, which was sold by the descendants to Daya Shankar Bajpai, who in turn sold the same to the plaintiff Mohd. Abdul Hafeez. Merely because houses were constructed, it would not render the land to be converted into 'abadi' as for conversion, there is a process and the revenue authorities declare the land to be abadi. He further went on to elaborate that even if at all there is a declaration under Section 143 of the Act of 1950 in respect of the land in question even then the provisions of Section 123 of the Act of 1950 would apply.
In absence of any declaration of abadi and the land being recorded in the khatauni as agricultural it will confer the land with all rigorous and it shall be governed by Section 123 and other provisions of the U.P. Z.A. & L.R. Act. Merely because any part of land is used for any other purpose other than agriculture and even may be for residential use it will not change the nature of the land from agriculture to abadi.
He also submitted that there is no question of any retrospectivity of the operation of Section 123 of the Act of 1950. Since, the said provisions came in the year 1974 and it only the cut of date which has been amended from time to time. He further submitted that the effect of such amendment will be construed as on the date of decision rendered by the first Court i.e. the trial court and the law as prevailing then, would be taken note of. Since, the judgment of the trial court is dated 05.02.1991 and the cut of date was extended in the year 1985. Thus, admittedly on the date of adjudication, the Act provided that the persons described in Section 122 of the Act of 1950, who had built their houses upto 31st March, 1985 were entitled to be benefit of Section 123(2) of the Act of 1950.
According to the learned counsel for the appellant, admittedly, the plaintiff instituted the suit in 1984 and had admitted that the defendant was in possession since 1982, which was much prior to the cut of date of 31st March, 1985 and accordingly the rights vested and the trial court had correctly appreciated the legal position and had dismissed the suit.
He further went on to submit that the provisions of Section 123 of the Act of 1950 were not on the statute books when the earlier suit bearing R.S. No.127/1970 was decided. Thus, with the change in the law, the decision of 1974 would not operate as res judicata in the suit giving rising to the present second appeal. He further submitted that the earlier suit was in respect of different cause of action where the primary question to be ascertained was whether the disputed land was the 'Sahan Darwaza' of the plaintiff and it was merely on the basis of possession that the injunction suit had to be decided and the question of title was not directly in issue and, therefore, the earlier findings would not operate as res judicata. Learned counsel for the appellant to buttress his submission has relied on Ram Narain and others vs. Sub-Divisional Officer, Kairana, Muzaffarnagar and others, 2007 (103) RD 478 (DB); (2011) 9 SCC 107 Pirthi vs. Mohan Singh and others; 2018 SCC Online SC Page 427 Canara Bank vs. N.G. Subbaraya Setty.
The respondent on the other hand has relied upon the judgments reported in 2007 (102) RD 472 - Kayam Singh and others vs. Board of Revenue, U.P., Allahabad and others; 2008 (26) LCD Page 1234 - Vishwanath and others vs. Sultan (dead) by LRs and others; 1998 (89) RD Page 742 - Rameshwar Gond (Dead) vs. IInd Additional District Judge, Deoria and others; and 2007 (102) RD Page 235 - Majid and others vs. Rahmat Ullah.
In order to appreciate the submissions and answer the questions of law as framed, it would be convenient that the question of law referred under res judicata be considered separately whereas the substantial questions of law framed at S.No.2, 3 and 4, which directly involve the scope and the applicability of Section 123(2) of the Act of 1950 are taken together.
The Court has given its anxious considerations to the submissions of the learned counsel for the parties, who have argued ably and the Court also has perused the record carefully.
In order to appreciate the respective contentions, it will be necessary to consider Section 123 of the Act of 1950 in its historical background.
By means of Uttar Pradesh Land Laws (Amendment) Act, 1974, which received the Presidential assent on 3rd December, 1974. Section 123 of the Principal Act came to be renumbered as sub-section (1) thereof and after sub-section (1) was so renumbered, the following sub-section was inserted, namely:
"(2) Where any person referred to in sub-section (3) of Section 122-C has built a house on any land held by a tenure-holder (not being a Government lessee) and such house exists on the fifteenth day of March, 1974, the site of such house shall, notwithstanding anything contained in this Act, be deemed to be settled with the owner of such house by the tenure-holder on such terms and conditions as may be prescribed.
Explanation.-For the purposes of sub-section (2), a house existing on the fifteenth day of March, 1974 on any land held by a tenure-holder shall, unless the contrary is proved, be presumed to have been built by the occupant thereof, and where the occupants are members of one family, by the head of that family."
Thereafter coming of the aforesaid provisions the cut of date as mentioned in sub-section (2) of the Amendment Act of fifteenth day of March, 1974 was amended and extended to 1985 and by subsequent amendment of the year 1977 that date came to be amended to be the 3rd June, 1995. Thus, the provisions of sub-section (2) came to be inserted by the Uttar Pradesh Land Laws (Amendment) Act, 1974 and thereafter it is only the cut of date mentioned in the aforesaid sub-section (2), which has been changed by subsequent amendments.
The legislative intent and the historical perspective of Sections 122 as it originally stood in the said Act related only to the constitution of a committee as contemplated in Section 121 for management of the land belonging to Gram Panchayat. It did not provide anything with regard to settlement of housing sites to the scheduled caste or otherwise. Section 123 as it stood originally provided for the term of such committee and method of conduct of its business as may be prescribed. However, this section did not provide anything else as was re-enacted in 1971 Act or 1974 Act respectively. The said Section 123 continued until 1958 when Section 123 was deleted by Act No.37 of 1958. Section 122 has also undergone certain changes in the meantime. Section 122-C was inserted by U.P. Act No.21 of 1971. By the said Act No.21 of 1971, Section 123 was re-enacted. Thereafter by Act No.34 of 1974 sub-section (2) of Section 123 was inserted while describing Section 123 as amended by Act No.21 of 1971 as sub-section (1).
Thus, from a plain reading of sub-section (1) of Section 123 of the Act, it provides that where any person referred in Section 122-C(3) has built a house on any land which is not subject matter of Section 9 of the Act or on any land referred to in Section 122-C (2) not being the land reserved for any public purpose and such house exists on 30th June 1985, the site of the house shall be held by the owner of the house on such terms and conditions as prescribed by the Rules. The aforesaid provisions does not require any formal allotment order by Assistant Collector in charge of the sub-division concerned, rather statute itself recognises such settlement on satisfaction of the conditions stipulated under the aforesaid provisions of the Act.
Similarly sub-section (2) of Section 123 of the Act provides that where any person enumerated in sub-section (3) of Section 122-C has built a house on any land held by tenure holder (not being a Government lessee) and such house exists on 30th June, 1985, the site of such house shall notwithstanding anything contained in the Act, be deemed to be settled with the owner of such house by the tenure holder on such terms and conditions as may be prescribed under the Rules.
In the opinion of the Court the settlement of land can be made, in favour of persons referred to in sub-section (3) of Section 122-C, if they have built their houses on any land held by tenure holder (not being Government lessees) and such house existed on 30th day of June, 1985. The restriction is only in respect of the land held by a Government lessee and such restriction is not applicable in respect of land held by tenure holders of other categories. In other words, if other conditions of Section 123(2) of the Act are satisfied, the land covered by house sites, of the persons enumerated under Section 122-C(3), shall be deemed to be settled with the owner of such house by the tenure holders of the land except upon the land of Government lessee.
In this connection, it is also significant to notice that the provisions of sub section (2) of Section 123 is couched with deeming provisions and also with non-obstante clause having overriding effect upon the other provisions of the Act, therefore, full effect of the provisions has to be given by the courts.
In Kamraj Nadar Vs. Kanju Thevar (1959) S.C.R. 583(602) = A.I.R. 1958 SC 687, it has been held that a deeming provision creates a legal fiction. The effect of such a legal fiction is that a position which otherwise would not obtain is deemed to obtain under certain circumstances. For ready reference the pertinent observation made by Hon'ble Apex Court in para 28 of the decision is reproduced as under:-
"28. ....... The provision is therefore made in Section 55-A (5) that any person who has given a notice of retirement under Section 55-A (2) is deemed not to be a contesting candidate for the purposes of Section 52. This is a deeming provision and creates a legal fiction. The effect of such a legal fiction however is that a position which otherwise would not obtain is deemed to obtain under those circumstances..........."
It is also well settled that a deeming fiction cannot be introduced by construction and it is the exclusive privilege of the legislature to apply a deeming fiction in given case. A fiction cannot be resorted to for the purpose of interpreting statutory provisions. In this connection, a reference can be made to a decision of Bombay High Court rendered in Phate, S.R. and another vs. C.A. Kedar, AIR 1974 Bombay 281. The pertinent observation made by Bombay High Court in para 11 of the decision is extracted as under:-
"11. ......... A deeming fiction cannot be introduced by construction and it is the exclusive privilege of the Legislature to apply a deeming fiction in a given case. We cannot, therefore, by construction hold that for whatever length during the period of office as a Councillor holds the office of President, he must be deemed to have held the office of President for the entire term as a Councillor.........."
In Manorey @ Manohar Vs. Board of Revenue (U.P.) and others, JT 2003 (3) S.C. 538, Hon'ble Apex Court had occasion to consider somewhat similar controversy in context of the provisions of Section 122-B (4-F) of the Act. The pertinent observations made in paras 8, 9 and 10 of the decision are extracted as under:-
"8. First, the endeavour should be to analyse and identify the nature of the right or protection conferred by sub-section (4F) of section 122B. Sub-sections (1) to (3) and the ancillary provisions upto sub-section (4E) deal, inter alia, with the procedure for eviction of unauthorised occupants of land vested in gaon sabha. Sub-section (4F) carves out an exception in favour of an agricultural labourer belonging to a scheduled caste or scheduled tribe having land below the ceiling of 3.125 acres. Irrespective of the circumstances in which such eligible person occupied the land vested in gaon sabha (other than the land mentioned in section 132), no action to evict him shall be taken and moreover, he shall be deemed to have been admitted as a bhumidhar with non transferable rights over the land, provided he satisfies the conditions specified in the sub-section. According to the findings of the sub-divisional officer as well as the appellate authority, the appellant does satisfy the conditions. If so, two legal consequences follow. Such occupant of the land shall not be evicted by taking recourse to sub-section (1) to (3) of Section 122B. It means that the occupant of the land who satisfies the conditions under sub-section (4F) is entitled to safeguard his possession as against the gaon sabha. The second and more important right which sub-section (4F) confers on him is that he is endowed with the rights of a bhumidhar with non transferable rights. The deeming provision has been specifically enacted as a measure of agrarian reform, with a thrust on socio-economic justice. The statutorily conferred right of bhumidhar with non transferable rights finds its echo of clause (b) of section 131. Any person, who acquires the rights of bhumidhar under or in accordance with the provisions of the Act is recognised under section 131 as falling within the class of bhumidhar. The right acquired or accrued under sub-section (4F) is one such right that falls within the purview of section 131(b).
9. Thus, sub-section (4F) of Section 122B not merely provides a shield to protect the possession as opined by the High Court, but it also confers a positive right of bhumidhar on the occupant of the land satisfying the criteria laid down in that sub section. Notwithstanding the clear language in which the deeming provision is couched and the ameliorative purpose of the legislation, the learned single judge of the High Court had taken the view on Ramdin v. Board of Revenue (supra)(followed by the same learned judge in the instant case) that the bhumidhari rights of the occupant contemplated by sub-section (4F) can only blossom out when there is a specific allotment order by the land management committee under section 198. According to the High Court, the deeming provision contained in sub-section (4F) cannot be overstretched to supersede the other provisions in the Act dealing specifically with the creation of the right of bhumidhar. In other words, the view of the High Court was that a person covered by the beneficial provision contained in sub-section (4F) will have to still go through the process of allotment under Section 198 even though he is not liable for eviction. As a corollary to this view, it was held that the occupant was not entitled to seek correction of revenue records, even if his case falls under sub-section (4F) of section 122B. We hold that the view of the High Court is clearly unsustainable. It amounts to ignoring the effect of a deeming provision enacted with a definite social purpose. When once the deeming provision unequivocally, provides for the admission of the person satisfying the requisite criteria laid down in the provision as bhumidhar with non-transferable rights under section 195, full effect must be given to it. Section 195 lays down that the Land Management Committee, with the previous approval of the assistant collector in-charge of the sub division, shall have the right to admit any person as bhumidhar with non-transferable rights to any vacant land (other than the land falling under Section 132) vested in the gaon sabha. Section 198 prescribes "the order of preference in admitting persons to land under sections 195 and 197" The last part of sub-section (4F) of section 122B confers by a statutory fiction the status of bhumidhar with non transferable rights on the eligible occupant of the land as if he has been admitted as such under section 195. In substance and in effect the deeming provision declares that the statutorily recognised bhumidhar should be as good as a person admitted to bhumidhari rights under section 195 read with other provisions. In a way, sub-section (4F) supplements section 195 by specifically granting the same benefit to a person coming within the protective umbrella of that sub-section. The need to approach the gaon sabha under section 195 read with section 198 is obviated by the deeming provision contained in sub-section (4F). We find no warrant to constrict the scope of deeming provision.
10. That being the legal position, there is no bar against an application being made by the eligible person coming within the four corners of sub-section (4F) to effect necessary changes in the revenue record. When once the claim of the applicant is accepted, it is the bounden duty of the concerned revenue authorities to make necessary entries in the revenue records to give effect to the statutory mandate. The obligation to do so arises by necessary implication by reason of the statutory right vested in the person coming within the ambit of sub-section (4F). The lack of specific provision for making an application under the Act is no ground to dismiss the application as not maintainable. The revenue records should naturally fall in line with the rights statutorily recognized. The sub-divisional officer was therefore within his rights to allow the application and direct the correction of the records. The Board of Revenue and the High Court should not have set aside the order. The fact that the Land Management Committee of gaon sabha had created lease hold rights in favour of the respondents herein is of no consequence. Such lease, in the face of the statutory right of the appellant, is nonest in the eye of law and is liable to be ignored.
Thus from the consideration of the aforesaid legal provisions, Section 123(2) of the U.P. Z.A. and L.R. Act has been enacted with a non-obstante clause, the Court despite any other provisions contrary contained in the Act itself has to give effect to deeming provision under the statute and the Court would assume those facts on which the legal fiction is created by statute even if those facts do not exist in reality and the rights of the parties will have to be determined on such imaginary things to define the rights of the parties, for which such legal fiction has been created by the statute.
It is in this connection that it is to be pointed out that on satisfaction of certain conditions laid down in Section 123(2) of the Act, the legal fiction has been created for the purposes of settlement of house site with the owner of the houses by the tenure-holder and those conditions are that the houses must have been built by a person referred to in Section 122-C(3) on the land of the tenure-holder not being Government lessee before 30th June, 1985.
On the satisfaction of the aforesaid conditions, the Court will have to assume the necessary facts on which the tenure-holder of the land could settle the house site with the owner of the houses even if in reality all necessary facts pertaining to such settlement were not existing, therefore, in the given facts and circumstances of the case, since admittedly the house of the defendant was existing on the 30th June, 1985, the land covered by the house site shall be deemed to be settled with them by the tenure-holder of the land in question irrespective of the circumstances in which such eligible person have build their houses over the land in dispute. It is immaterial whether they built houses with the permission of the tenure-holder in question or otherwise by taking forcible possession of the land or such possession is unauthorized or a trespasser.
This Court is fortified in its view and reliance is placed on a Division Bench judgment of this Court reported in 2007 (103) RD Page 478 (DB) which is a binding precedent.
Applying the principles which have been culled out to the present giving facts and circumstances, it is clear that the construction of the defendant was existing, admittedly according to the plaintiff, since 1985 i.e. prior to the cut of date as mentioned in sub-section (2) of Section 123. The plaintiff has also admitted that the possession of the defendant was forcibly taken by the defendant in 1982 and he had raised his construction. Thus, this Court is of the firm opinion that the defendant was entitled to the benefit of sub-section (2) of Section 123.
The submission of the learned counsel for the respondent that the land in question was 'abadi' and, therefore, Section 123 of the Act of 1950 does not apply, also does not impresses this Court. It will be relevant to note that the first appellate Court as well as the learned counsel for the respondent has referred to the order of the Prescribed Authority (Ceiling) dated 01.11.1969 wherein the said Authority while exempting the land of Plot No.216 (Old No.338), situate in Village Bhoga Jot wherein it indicated that the land is being used by the predecessors of transferee who are occupying the same, by raising their residential structures and thus according to the Ceiling Authority, the said plot was converted into 'abadi'. This Court finds that merely because the Ceiling Authority found that the land was not cultivable and was being used for 'abadi' will not render the same as the 'abadi' inasmuch as the word "abadi", has a different connotation under the Revenue Laws. In order for the land to be declared as 'abadi' there has to be a proper declaration either during consolidation operations when land is cut out of the 'chaks' for abadi or upon the preparation of the revenue records and unless and until the land is recorded as 'abadi' in the khatauni, it will not be treated as 'abadi' even though some residential constructions may have been raised thereon.
The khatauni of the land in question as placed on record indicates that the said land continued to be recorded as the grove land. Moreover, even the sale-deed by which the plaintiff had purchased the property does not indicate that it is the abadi which is being sold rather the plaintiff stated that he had purchased the property from its Bhumidhari Shri Daya Shankar Bajpai. Thus, the plaintiff-respondent cannot derive any benefit from the fact that the said authorities treated the land to be abadi since it had certain structures thereon. This notion primarily prevailed in the mind of the first appellate court, which is erroneous and thus the finding on the aforesaid basis stands vitiated and cannot be sustained.
From the provisions of the Act of 1950, it clearly indicates that only upon a declaration made under Section 143 of the Act, the effect of that provision is that only Chapter-VIII of the Act other than under Section 143 which cease to apply in respect of the land which is subject matter of such declaration and thereupon the bhumidhar of land with non-transferable rights shall be governed by his personal law to which he is subject in the matter of devolution or succession of the land alone. It implies that only in the matter of devolution or succession of the land under such declaration the personal law of the Bhumidhar with transferable rights to which he is subject shall apply but so far as other purposes are concerned, the provisions of Chapter-VIII of the Act, shall continue to apply without any restriction or legal embargo thereon. The consequences ensuing due to such declaration under Section 143(1) of the Act are clearly emanating from the provisions of sub section (2) and (3) of the aforesaid section and do not admit of any ambiguity, therefore, the same should be understood in the context of the provisions of sub sections (2) and (3) of Section 143 only and should not be dilated or widened to cover other provisions of the Act.
In any event of the matter the provisions of other Chapters of the Act including the provisions of Chapter VII of the Act, which contains the provisions of section-123 shall continue to apply with full force and Section-143(1) would not affect the operation and applicability of the provisions of Chapter VII of the Act, which includes Section 123 in respect of such land and further on such declaration, the land which is subject matter of declaration is neither excluded from the definition of the "land" under Section 3(14) of the Act nor the Bhumidhar with transferable rights of land ceases to be Bhumidhar with transferable rights despite the use of the land is changed for the purposes, not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming. In other words, in spite of such declaration and change in user, the land would remain as such within the meaning of land defined under Section 3(14) of the Act and Bhumidhar with transferable rights would also remain intact with aforesaid status and rights, and in the case at hand since the land in question is entered in the revenue records and there is no declaration under Section 143 of the Act either thus the land in question continues to be governed by the Act of 1950 including Section 123.
Thus the submissions of the learned counsel for the respondent in this regard is misconceived and is accordingly rejected.
Now coming to the aspect as to the fact regarding retrospectivity of the provisions is concerned, it is no doubt true that unless and until any provision is specifically provided to be retrospective, it shall operate prospectively only.
The judgments cited by the learned counsel for the respondent to the effect that Section 123 of the Act is of prospective operation is settled and there can be no quarrel on the aforesaid proposition. Significantly in all the cases so cited by the learned counsel for the respondent, the proceedings had been initiated prior to the amendment of 1974 and more so the amendment of 1974 in the Act of 1950 had come into force after the decree was passed by the Court of first instance. After the amendment of 1974 parties sought to take the benefit of the amended Section 123 and thus the question arose whether the said amendment could operates retrospectively to nullify the decree already passed by competent courts. It is in that context and background it was held that the provisions of Section 123 of the Act of 1950 is prospective and in no manner can it effect a decree already passed by a competent court.
Thus, the judgments cited by the learned counsel for the respondent are clearly distinguishable and do not help the respondents inasmuch as in the present case, the suit was filed on 01.09.1984, the written statement was filed on 17.02.1986 when the cut of date had been amended to 30th June, 1985 and was in force. Hence, the provisions of Section 123 of the Act of 1950 was already on the statute books and by mere change of the cut of date it cannot be said that the provision itself is having retrospective effect rather the correct position as obtained is that on the date of institution of suit on 01.09.1984 the provisions of Section 123 was already in force. The change of cut of date to 30th June, 1985 was made during the pendency of the suit and in any case prior to the date of decree passed by the Court of first instance.
Moreover, the Hon'ble Supreme Court in the case of Pirthi vs. Mohan Singh (supra) had the occasion to consider the effect of provisions coming into force during the pendency of the proceedings and after considering the Constitution Bench judgment, the Apex Court held that if the amending provision comes into effect before the date of decree is passed by the court of first instance, it would apply to pending proceedings. However, the said liberty will not be applicable if such provisions are amended for the first time during the pendency of the appeal. The relevant paragraphs of the said judgment are being reproduced as under:-
"24. After analyzing all the decisions cited therein, the Constitution Bench has concluded thus: (Shyam Sunder vs. Ram Kumar, (2001) 8 SCC 24 (Paras 44-48) "44. From the aforesaid decisions, the legal principle that emerges is that the function of a declaratory or explanatory Act is to supply an obvious omission or to clear up doubts as to meaning of the previous Act and such an Act comes into effect from the date of passing of the previous Act. Learned counsel for the appellants strongly relied upon a decision of a two-Judge Bench of this Court in Mithilesh Kumari vs. Prem Behari Khare, (1989) 2 SCC 95 in support of his argument. In the said decision, it was held by this Court that the Benami Transactions (Prohibition) Act, 1988 being a declaratory Act, the provisions of Section 4 of the Act have retroactive operation. The reliance on this decision by the appellants' counsel is totally misplaced as this decision was overruled in R. Rajagopal Reddy vs. Padmini Chandrasekharan, (1995) 2 SCC 630 wherein it was held that the Act was not passed to clear any doubt that existed as to the common law or the meaning of effect of any statute and it was, therefore, not a declaratory Act.
45. We have already quoted substituted Section 15 of the amending Act but do not find that the amending Act either expressly or by necessary implication intended to supply an omission or to clear up a doubt as to the meaning of the previous Section 15 of the parent Act. The previous Section 15 of the parent Act was precise, plain and simple. There was no ambiguity in it. The meaning of the words used in Section 15 of the parent Act was never in doubt and there was no omission in its phraseology which was required to be supplied by the amending Act. Moreover, the amending Act either expressly or by implication was not intended to be retroactive and for that reason we hold that amending Act 10 of 1995 is not a declaratory Act and, therefore, it has no retrospective operation.
46. For the aforestated reasons, we approve the view of law taken in Didar Singh vs. Ishar Singh, (2001) 8 SCC 24 and further hold that the decision in the case of Ramjilal v. Ghisa Ram, (1996) 7 SCC 507 does not lay down the correct view of law.
47. The result of the aforesaid discussion is that the amending Act being prospective in operation does not affect the rights of the parties to the litigation on the date of adjudication of the pre-emption suit and the appellate court is not required to take into account or give effect to the substituted Section 15 introduced by the amending Act.
48. In view of what has been stated above, these appeals fail and accordingly are dismissed, but there shall be no order as to costs."
25. From the above discussion, particularly, in para 45, the Constitution Bench observed that the Amending Act 10/1995 is not a declaratory Act and, therefore, it has no retrospective operation. In para 46, the Constitution Bench has approved the view of law taken in Didar Singh (supra) and further held that the decision in the case of Ramjilal (supra) does not lay down the correct view of law. No doubt, in the penultimate para 47, the Constitution Bench has concluded that the amending Act being prospective in operation does not affect the rights of the parties to the litigation on the date of adjudication of the pre-emption suit and the appellate court is not required to take into account or give effect to the substituted Section 15 introduced by the amending Act. It is clear that the appellate court is not required to take into account or give effect to the substituted Section 15 introduced by the amending Act. On the other hand, as discussed and concluded in para 46, the dictum laid down in Didar Singh (supra) has been approved.
26. In Didar Singh (supra), it was held that in a suit for pre-emption, pre-emptor must prove his right to pre-empt up to the date of the decree of the first court and any loss of right or subsequent change in law after the date of adjudication of the suit and pre-tendency of appeal would not affect the decree of the first court. The said view has been approved by the Constitution Bench. In other words, in a suit for pre-emption, the pre-emptor must prove his right to pre-empt up to the date of decree of the first court. To put it clear, the pre-emptor must have the right to pre-empt on the date of sale on the date of filing of the suit and on the date of passing of the decree by the court of the first instance [Emphasis supplied].
27. In the case on hand, the amendment Act came into force with effect from 17.05.1995 and suit had been laid on 31.10.1992. In other words, on the date of institution of the suit, the plaintiff/pre-emptor had a right to claim "right of pre-emption". However, during the pendency of the suit, since the amendment Act came into force, deleting the right of pre-emption and in the absence of such right on the date of passing of the decree by the court of first instance, we are of the view that both the courts below have correctly appreciated the effect of the amendment and the High Court also rightly dismissed the second appeal holding that the plaintiff had lost the character of a co-owner during the pendency of the suit by virtue of the amendment Act."
Thus, the entire submission made by the learned counsel for the respondent that the change of cut of date and giving its benefit to the defendant-appellant would in effect mean to apply the provision of Section 123 retrospectively is fallacious and deserves to be rejected.
Now, lastly coming to the applicability of res judicata in respect of findings of the earlier proceedings to the present suit, it has been submitted that the findings of possession and ownership returned in earlier suit No.127/1970 would operate as res judicata in the present suit as it was between the same parties and related to the same property. Even though at first blush, the argument made by the learned counsel for the respondents seem to be attractive but in fact it is also fallacious and deserves to be rejected for the reason that in the earlier suit, the question of title was not involved. It was merely a suit for simplicitor injunction. Moreover, the provisions of Section 123 of the Act was not available at that time which as indicated above came only on the statute book for the first time in 1974. Thus, with the change in law, if there is a change in the legal effect, the earlier judgment would not operate as res judicata. In this regard, the judgment of the Hon'ble Supreme Court in Canara Bank vs. N.G. Subbaraya Setty (supra) is germane and important and the relevant paragraph is quoted:-
"(ii) An issue of law which arises between the same parties in a subsequent suit or proceeding is not res judicata if, by an erroneous decision given on a statutory prohibition in the former suit or proceeding, the statutory prohibition is not given effect to. This is despite the fact that the matter in issue between the parties may be the same as that directly and substantially in issue in the previous suit or proceeding. This is for the reason that in such cases, the rights of the parties are not the only matter for consideration (as is the case of an erroneous interpretation of a statute inter parties), as the public policy contained in the statutory prohibition cannot be set at naught. This is for the same reason as that contained in matters which pertain to issues of law that raise jurisdictional questions. We have seen how, in Natraj Studios (supra), it is the public policy of the statutory prohibition contained in Section 28 of the Bombay Rent Act that has to be given effect to. Likewise, the public policy contained in other statutory prohibitions, which need not necessarily go to jurisdiction of a Court, must equally be given effect to, as otherwise special principles of law are fastened upon parties when special considerations relating to public policy mandate that this cannot be done.
(iii) Another exception to this general rule follows from the matter in issue being an issue of law different from that in the previous suit or proceeding. This can happen when the issue of law in the second suit or proceeding is based on different facts from the matter directly and substantially in issue in the first suit or proceeding. Equally, where the law is altered by a competent authority since the earlier decision, the matter in issue in the subsequent suit or proceeding is not the same as in the previous suit or proceeding, because the law to be interpreted is different."
In light of the above, the question raised by the respondent regarding res judicata also fails and in view of above detailed discussions, it is clear that the first appellate court misdirected itself and thus the findings recorded cannot be sustained, accordingly the judgment and decree dated 16.09.1993 deserves to be set aside and is accordingly set aside.
In the result, the second appeal is allowed and the judgment passed by the first appellate Court dated 16.09.1993 in Civil Appeal No.11 of 1991 is set aside and the judgment and decree passed by the First Additional Munsif, Bahraich dated 05.02.1992 passed in Regular Suit No.230 of 1984 is affirmed.
In the facts and circumstances, there shall be no order as to costs.
The registry is directed to remit the record of the trial court within two weeks.
Order Date :- 11 January, 2019 Rakesh/-