Allahabad High Court
Prince And Others vs D.D.C. And Others on 19 February, 2020
Author: Salil Kumar Rai
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. RESERVED ON 21.8.2019 DELIVERED ON 19.2.2020 Court No. - 50 Case :- WRIT - B No. - 6333 of 1996 petitioners :- Prince And Others Respondent :- D.D.C. And Others Counsel for petitioners :- Ajit Kumar, Amit Kumar Chaudhary, Uma Nath Pandey, V.K.S. Chaudhary Counsel for Respondent :- Y.S.Bohra, Ajit Kumar, S.C., Sankatha Rai, V.K. Singh, Y.S. Saxena, Yogendra Singh Bohra Hon'ble Salil Kumar Rai,J.
1. Heard Shri V.K. Singh, Senior Counsel, assisted by Shri Uma Nath Pandey, Advocate, learned counsel for the petitioners and Shri R.C. Singh, Senior Counsel, assisted by Shri Y.S. Bohra, Advocate, representing respondent Nos. 5 to 27.
2. The counsel for the parties have also filed their written arguments, which form part of the records of the case.
3. The present writ petition arises from orders passed in proceedings registered under Section 9-A(2) of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953'). The petitioners claim from one Gurbaksh Singh and his vendees and claim that they have purchased the disputed plots in 1984 from the recorded tenure holders. The respondent Nos. 5 to 27 are allottees of Gaon Sabha.
4. The plots in dispute in the present writ petition as well as in the consolidation proceedings from which the present writ petition arises are part of Khata Nos. 9, 19, 20, 74, 80, 160, 199 and 200 (hereinafter referred to as, 'disputed plots'). The impugned order passed by the Consolidation Officer records that the disputed plots were shown as Parti, Banjar and Reti in the revenue records from 1356 Fasli to 1363 Fasli. There is some dispute regarding the exact nature of the disputed plots as shown in the revenue records. The petitioners have filed a supplementary affidavit annexing the revenue records of 1356 Fasli and 1359 Fasli to show that in 1356 Fasli and 1359 Fasli the disputed plots were recorded as Class XIV and cultivable Banjar. The dispute relates to lands situated in District-Bulandshahar and Class XIV in Paragraph No. 124 of the U.P. Land Records Manual refers to culturable land which includes new fallow, old fallow, permanent pastures, grazing lands and other culturable waste. The revenue records annexed with the supplementary affidavit filed by the petitioners show that some disputed plots have been recorded as Reti (Sand) in 1356 Fasli and 1359 Fasli. However, as would be evident subsequently, the difference in the nature of plots as shown in the revenue records annexed with the supplementary affidavit and as stated in the impugned order passed by the Consolidation Officer is not relevant for a decision of the present writ petition.
5. Kunwar Shujjat Ali and Nawab Jamshed Ali were admittedly the Zamindars of the disputed plots. On 5.11.1952, Gurbaksh Singh filed Case Nos. 17/1952, 18/1952 and 19/1952 under Section 59 of the United Provinces Tenancy Act, 1939 (hereinafter referred to as, 'Act, 1939') for a decree declaring that he was the hereditary tenant of the disputed plots. In the aforesaid cases Gurbaksh Singh impleaded the erstwhile Zamindars of the disputed plots as defendants. The Gaon Sabha or the State Government were not impleaded as defendants in the aforesaid cases. A reading of the plaints instituting the aforesaid cases show that the cause of action for instituting the cases were claimed to have accrued on 30.6.1952 when the erstwhile Zamindars refused to cooperate with Gurbaksh Singh in getting his name entered in the revenue records as hereditary tenant. The plaints do not disclose as to how Gurbaksh Singh became hereditary tenant of the disputed plots. Interestingly, on the same date, one Irshad Khan, claiming to hold a power of attorney of the erstwhile Zamindars, filed a written statement admitting the tenancy of Gurbaksh Singh. On the same date, i.e., 5.11.1952 itself, the Judicial Officer decreed Case Nos. 17/1952, 18/1952 and 19/1952 on the admission made on behalf of the defendants and directed that Gurbaksh Singh be recorded as hereditary tenant of the disputed plots. A reading of the different orders passed by the consolidation authorities and a perusal of the different records annexed with the writ petition and the counter affidavit reveal that no mutation, as a result of the decrees dated 5.11.1952, was made in the revenue records till 1956 and it was the only on 30.7.1956 that the revenue records were corrected incorporating the name of Gurbaksh Singh.
6. Subsequently, proceedings under Section 212-A of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as, 'Act, 1950') were instituted by the Gaon Sabha for eviction of Gurbaksh Singh from the disputed plots. The Sub-Divisional Officer, relying on the decrees dated 5.11.1952, dropped the proceedings vide his order dated 11.7.1959. In the said proceedings, the Lekhpal of the village submitted a report dated 6.8.1957 stating that Gurbaksh Singh was living in Delhi and the land was vacant and in the nature of Banjar. In the said proceedings Gurbaksh Singh pleaded that the erstwhile Zamindars of the disputed plots had executed a lease in his favour in 1359 Fasli and he was in possession over the disputed plots since then. The order passed by the Sub-Divisional Officer, in proceedings registered under Section 212-A of the Act, 1950, shows that Gurbaksh Singh had also pleaded that the Patta of the disputed plots was executed by the erstwhile Zamindars on 13.6.1952 and declaratory decrees were passed in his favour on 5.11.1952. It appears from the order passed by the Sub- Divisional Officer that in the aforesaid proceedings, the Gaon Sabha had admitted that the disputed plots were given to Gurbaksh Singh by the erstwhile Zamindars. In his order dated 11.7.1959, the Sub-Divisional Officer recorded that Gurbaksh Singh was declared as Sirdar of the disputed plots by the decrees dated 5.11.1952. The said finding of the Sub-Divisional Officer is contrary to records because, admittedly by the decrees dated 5.11.1952, Gurbaksh Singh was declared only as hereditary tenant of the disputed plots.
7. Thereafter, the Gaon Sabha filed Suit No. 19 of 1959 in the Civil Court praying for a decree of permanent prohibitory injunction restraining the defendants, which included Gurbaksh Singh, from ploughing and cultivating the disputed plots and from cutting the grass on the disputed plots. In Suit No. 19/1959, the Gaon Sabha pleaded that the decrees dated 5.11.1952 were void and, therefore, by the said decrees Gurbaksh Singh did not derive any title or interest in the disputed plots. The trial court vide its judgement and decree dated 16.8.1967 decreed Suit No. 19/1959. In its judgement dated 16.8.1967, the trial court recorded a finding that the disputed plots were customary pasture land and Gurbaksh Singh or other defendants in the case were not in cultivatory possession of the disputed plots and thus did not acquire Sirdari rights over any portion of the disputed plots. Subsequently, one Santokh Singh, who was one of the vendees of Gurbaksh Singh, and is also the predecessor of the petitioners, filed a recall application under Order 9 Rule XIII of the Code of Civil Procedure Code, 1908, which was dismissed by the trial court and the appeal against the said order passed by the trial court was dismissed by the appellate court vide its order dated 16.10.1970. Civil Revision No. 47 of 1971 filed against the order dated 16.10.1970 of the appellate court was also dismissed by the High Court vide its order dated 1.10.1973. A reading of the orders passed by the consolidation courts shows that the execution case instituted by the Gaon Sabha for execution of the decree dated 16.8.1967 was dismissed on the ground that the defendants were not interfering in the possession of the Gaon Sabha over the disputed plots.
8. While Suit No. 19 of 1959 was pending in the Civil Court, Gurbaksh Singh was issued a Bhumidhari Sanad on 1.10.1964 under Section 134 of the Act, 1950 and on the same date transferred the suit property to the vendors of the petitioners. Consequently, mutation proceedings were also registered under the Uttar Pradesh Land Revenue Act, 1901 (hereinafter referred to as, 'Act, 1901') and the said mutation proceedings culminated in favour of Gurbaksh Singh and his vendees.
9. Meanwhile, proceedings under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as, 'Ceiling Act') were also registered against Gurbaksh Singh and in the said proceedings the entire land of Gurbaksh Singh, which included the disputed plots, were clubbed and surplus land was declared after clubbing the disputed plots with the other holdings of Gurbaksh Singh. Proceedings under Section 176 of the Act, 1950 were also registered for partition of the disputed plots and a final decree was passed in the said case on 18.2.1977, which was recalled on a restoration application filed by the Gaon Sabha.
10. Subsequently, a notification under Section 4(2) of the Act, 1953 was issued and the village came under consolidation operations. As a consequence of the mutation orders passed in favour of Gurbaksh Singh and his vendees, the basic year records showed the petitioners and their predecessors as Bhumidhars of the disputed plots. The Gaon Sabha filed objections against the entries in the basic year records and on the objections of the Gaon Sabha, Case Nos. 646, 5034 and 55030 under Section 9-A(2) of the Act, 1953 were registered in the court of Consolidation Officer. The Consolidation Officer vide his judgement and order dated 4.11.1989 allowed the objections filed by the Gaon Sabha and declared the plots to have vested in the Gaon Sabha and also directed that the name of the petitioners be expunged from the revenue records relating to the disputed plots. The order dated 4.11.1989 passed by the Consolidation Officer was challenged by the petitioners in Appeal Nos. 913, 914, 915, 916, 917, 918, 919 and 920 filed before the Settlement Officer of Consolidation (hereinafter referred to as, 'S.O.C.') who vide his judgement and order dated 15.1.1993 dismissed the aforesaid appeals. Consequently, the petitioners filed Revision Nos. 1852, 1853, 1854, 1855, 1856, 1857, 1858 and 1859 of 1993 which were subsequently re-numbered as Revision Nos. 6, 7, 8, 9, 10, 11, 12 and 13 of 1995 before the Deputy Director of Consolidation (hereinafter referred to as, 'D.D.C.'), who vide his judgement and order dated 12.1.1996 dismissed the aforesaid revisions.
11. In the consolidation courts, the Gaon Sabha had pleaded that the decrees dated 5.11.1952 were without jurisdiction and void and thus conferred no rights or title in the disputed plots on Gurbaksh Singh and consequently the petitioners. In the consolidation courts, the petitioners pleaded that in view of the decrees dated 5.11.1952 and in light of the orders passed in proceedings under the Ceiling Act and Section 176 of the Act, 1950 as well as the fact that a Bhumidhari Sanad was issued to Gurbaksh Singh under the Act, 1950, the claim of Gaon Sabha was barred by the principles of estoppel and acquiescence and by res-judicata. It was pleaded that the decrees dated 5.11.1952 were declaratory decrees and should be treated as decrees passed under Section 229-B of the Act, 1950. In their impugned judgements and orders, the consolidation courts have held that the decrees dated 5.11.1952 passed by the Judicial Officer were void and without jurisdiction because after 1.7.1952, a suit under Section 59 of the Act, 1939 was not maintainable and the said decrees can not be treated as decrees under Section 229-B of the Act, 1950, because the Gaon Sabha and the State Government were not impleaded as defendant in the cases instituted before the Judicial Officer. The consolidation courts rejected the Bhumidhari Sanad issued to Gurbaksh Singh as void because, according to the consolidation courts Gurbaksh Singh was never the Sirdar of the disputed plots and thus was not entitled to a declaration under Section 134. The consolidation courts further held that the orders passed in mutation proceedings were not binding in any proceedings relating to title of the disputed plots. The plea of the petitioners regarding the orders passed under Section 176 of the Act, 1950 was also rejected by the consolidation courts on the ground that the decree passed under Section 176 of the Act, 1950 had been recalled on a restoration application filed by the Gaon Sabha. The consolidation courts while accepting the plea of the Gaon Sabha have relied on the findings recorded by the Civil Court in its judgement and decree dated 16.8.1976 passed in Suit No. 19/1959 which according to the consolidation courts had attained finality. On the aforesaid reasoning, the consolidation courts have rejected the plea of the petitioners that the claim of Gaon Sabha was barred by principles of estoppel, acquiescence and resjudicata. The plea of the petitioners that they were the bona fide purchasers without notice and, therefore, entitled to protection of Section 41 of the Transfer of Property Act, 1882 (hereinafter referred to as, 'Act, 1882') has also been rejected by the consolidation courts.
12. The orders dated 4.11.1989, 15.1.1993 and 12.1.1996 passed by the consolidation courts have been challenged in the present writ petition.
13. It was argued by the counsel for the petitioners that in proceedings registered under Section 212-A of the Act, 1950 the Gaon Sabha had admitted that the erstwhile Zamindars of the disputed plots had given possession of the plots to Gurbaksh Singh. It was argued that because the Zamindars of the disputed plots had admitted Gurbaksh Singh as a tenant of the disputed plots, he become the hereditary tenant of the disputed plots and consequently, after the date of vesting the disputed plots were settled with Gurbaksh Singh under Section 19 of the Act, 1950 and he became Sirdar of the plots. It was further argued that even if the decrees dated 5.11.1952 passed in proceedings registered under Section 59 of the Act, 1939 were null and void, Gurbaksh Singh had matured his rights by adverse possession after three years from the date of vesting because the Gaon Sabha had not filed any suit under Section 209 of the Act, 1950 for eviction of Gurbaksh Singh. It was argued that subsequently Gurbaksh Singh was granted Bhumidhari Sanad which the Gaon Sabha could, but did not get cancelled under Section 137 of the Act, 1950 and, therefore, the declaration issued in favour of Gurbaksh Singh under Section 134 of the Act, 1950 had become final. It was argued that once the State Government through a judicial act under Section 134 of the Act, 1950 granted Bhumidhari Sanad to Gurbaksh Singh, the same can not be objected by the Gaon Sabha which is not the owner of any plot declared to have vested in it under Section 117 of the Act, 1950. It was argued that for the aforesaid reason, the Bhumidhari Sanad issued to Gurbaksh Singh could not have been rejected by the consolidation authorities at the instance of the Gaon Sabha. It was further argued that the different orders passed in proceedings registered under the Ceiling Act indicate that the State Government, which was the owner of the disputed plots, accepted Gurbaksh Singh as the Bhumidhar of the disputed plots and the Gaon Sabha did not file any objections before the ceiling authorities. It was argued that for the aforesaid reasons, the objections filed by the Gaon Sabha under Section 9-A(2) of the Act, 1953 were barred by estoppel, acquiescence and resjudicata. It was argued that, in any case, the petitioners are bona fide purchasers without notice and had purchased the disputed plots from its recorded tenure holders after taking reasonable care and thus entitled to protection under Section 41 of the Act, 1882. It was argued that for the aforesaid reasons, the impugned orders passed by the consolidation courts accepting the plea of the Gaon Sabha and rejecting the claim of the petitioners are contrary to law and liable to be set aside. In support his arguments, the counsel for the petitioners has relied on the following judgements :-
(a) Chandrapati Vs. D.D.C., 1975 ALJ 301,
(b) Banshidhar Vs. Smt. Dhirajdhara, AIR 1971 All (FB) 526,
(c) Sheo Charan Vs. Tota Ram ,1970 RD 103; and
(d) Devendra Nath Singh Vs. Civil Judge & Others AIR 1999 SC 2264
14. Rebutting the arguments of the counsel for the petitioners, learned counsel for the respondents has argued that the cases under Section 59 of the Act, 1939 instituted by Gurbaksh Singh were not maintainable and, therefore, the decrees dated 5.11.1952 passed by the Judicial Officer were void and without jurisdiction and thus the claim raised by the Gaon Sabha was not barred by res-judicata. It was argued that in the consolidation courts as well as in other proceedings, Gurbaksh Singh and his vendees and the present petitioners claimed title to the disputed plots on the basis of decrees dated 5.11.1952 and did not claim possessory title, i.e., they never claimed to have matured their rights by adverse possession over the disputed plots and the petitioners can not, for the first time in proceedings under Article 226 of the Constitution of India, be permitted to raise the plea of adverse possession especially in the context that there are no pleadings by the petitioners necessary to claim adverse possession. It was further argued that by Act No. 35 of 1976, Section 210 of the Act, 1950 was amended with retrospective effect and as a consequence of the said amendment there can be no adverse possession over Gaon Sabha plots. It was argued that the orders passed under the Ceiling Act do not affect the rights of the Gaon Sabha and, therefore, the same are not relevant for considering the claim of the Gaon Sabha. It was argued that Gurbaksh Singh was not the Sirdar of the disputed plots and, therefore, no Bhumidhari Sanad could have been issued to him and, thus the declaration under Section 134 of the Act, 1950 and the Bhumidhari Sanad issued to Gurbaksh Singh were void. It was argued that proceedings registered by the Gaon Sabha under Section 212-A of the Act, 1950 and the institution of Suit No. 19 of 1959 shows that the Gaon Sabha had not acquiesced to the claim of Gurbaksh Singh and the claim of Gaon Sabha in the consolidation courts was not barred by the principle of estoppel and acquiescence. It was argued that the Civil Court in its judgement dated 16.8.1967 had held that Gurbaksh Singh had not acquired Sirdari rights over the disputed plots and Gaon Sabha was in possession of the disputed plots. It was argued that the decree of the Civil Court granting permanent prohibitory injunction in favour of the Gaon Sabha had attained finality and could not have been discarded by the consolidation courts in favour of the Gaon Sabha. It was argued that for the aforesaid reasons, there is no illegality in the findings recorded by the consolidation courts. It was further argued that the findings recorded by the consolidation courts are concurrent findings of fact, which are not amenable to interference by this Court under Article 226 of the Constitution of India. The counsel for the respondents also argued that the petitioners are not entitled to protection under Section 41 of the Act, 1882. It was argued that for the aforesaid reasons, the writ petition lacks merit and was liable to be dismissed. In support of his arguments, the counsel for the respondents has relied on the following judgements :-
(a) Asarfi Lal Vs. Koili, AIR 1995 S.C. 1440,
(b) Sheetal Vs. D.D.C., 2017 (11) A.D.J. 456,
(c) Sheo Ji Singh & Others Vs. D.D.C., AIR 1974 All 261,
(d) Gram Panchayat of Village Naulakha Vs. Ujagar Singh & Others, AIR 2000 S.C. 3272,
(e) Suzuki Parasrampuria Suitings Pvt. Ltd. Vs. Official Liquidator of Mahendra Petrochemicals Ltd., AIR 2018 S.C. 4769,
(f) Shailendra Amar Singh Vs. Harnam Singh Cornalius 1998(89) R.D. 59,
(g) Smt. Arundhati Mishra Vs. Sri Ram Charitra Pandey, 1994(2) SCC 29,
(h) Mahavir & Another Vs. The Rural Institute, Amravati & Another, 1995(5) SCC 335,
(i) Muneshwar Vs. Raja Mohammad Khan & Others, AIR 1998 S.C. 1995,
(j) Hasan Ali & Others Vs. state of U.P. & Others, AIR 1990 S.C. 1980,
(k) State of U.P. Vs. Maharaja Dharmander Prasad Singh, AIR 1989 S.C. 997,
(l) Bhurey and Nain Singh Vs. Board of Revenue, 1984 R.D. 294; and
(m) Sunit Kumar Tyagi Vs. State of U.P., 2002(93) R.D. 623
15. I have considered the rival submissions of the counsel for the parties.
16. The issues that arise for consideration before this Court relate to the validity of the decrees dated 5.11.1952 passed by the Judicial Officer and the effect of the aforesaid decrees and whether the petitioners can claim title over the disputed plots by adverse possession, the effect of the orders passed under the Ceiling Act as well as the effect of the declaration made in favour of Gurbaksh Singh under Section 134 of the Act, 1950 and lastly as to whether the petitioners are entitled to protection under Section 41 of the Act, 1882.
17. By virtue of Section 1(3), the Act, 1950 came in force w.e.f. 24.1.1951. Notification No. 4094-I-A-450-51 under Section 4 of the Act, 1950 was published in the official gazette on 1.7.1952. 1.7.1952 is the date of vesting in the Act, 1950. Consequently, by virtue of Section 339 of the Act, 1950 read with List 1 of Schedule III appended to the Act, 1950, the Act, 1939 stood repealed w.e.f. 1.7.1952. Further, by virtue of Section 4 all estates situated in the State of Uttar Pradesh vested in the State and by virtue of Section 6 of the Act, 1950, the rights, title and interest of all the intermediaries in every estate where the notification applied, including land whether cultivable or barren ceased and vested in the State of Uttar Pradesh free from all encumbrances and all grants and confirmations of title to or any right or privilege in respect of such land or its land revenue stood determined. Simultaneously, by Sections 18 and 19 of the Act, 1950 certain lands were settled with the intermediaries, cultivators and the tenants as Bhumidhar or Sirdar, as the case may be. Thus, after the repeal of the Act, 1939, the tenurial rights as they existed in the Act, 1939 ceased and fresh Bhumidhari and Sirdari rights were created under the Act, 1950. Therefore, after the date of vesting, a suit under Section 59 of the Act, 1939 for a declaration that the plaintiff was the tenant of a class specified in the Act, 1939 was not maintainable because the rights acknowledged by the Act, 1939 had ceased to exist on the date of vesting. In the aforesaid context, it would appropriate to refer to the observations made by a Division Bench of this Court in paragraph No. 2 of the judgement reported in Shital Prasad Vs. Board of Revenue and Others, 1962 RD Page 132 :-
"It is the admitted case of the parties that the suit in connection with which the judgements in question were passed by the revenue courts was instituted on February 3, 1953 after the U.P. Zamindari Abolition and Land Reforms Act had come into force. The suit was by opposite party no. 3 for a declaration that he was a tenant of a particular class of this land upto the year 1359 under Section 59 of the U.P. Tenancy Act. The U.P. Tenancy Act had been repealed by the U.P. Zamindari Abolition and Land reforms Act by the time the suit was instituted as the ownership rights in the estate had vested in the State Government with effect from July 1, 1952. As a result of this vesting and the enforcement of the U.P. Zamindari Abolition and Land Reforms Act the rights which opposite party purported to claim under Section 59 of the U.P. Tenancy Act as a tenant if they actually vested in him had been converted into rights as a sirdar under the U.P. Zamindari Abolition and Land Reforms Act. After July 1, 1952, therefore, the right in respect of which declaration was claimed in the suit by the opposite party had ceased to exist and for that right had been substituted a new right as sirdar. The U.P. Zamindari Abolition and Land Reforms Act also had a provision for a suit for declaration of such a right. The suit could be instituted under Section 229-B for a declaration that the opposite party was a sirdar of this land. In such circumstances this suit under Section 59 of the U.P. Tenancy Act in respect of a right which had already ceased to exist on the date of the suit and for which a new right had been substituted was clearly not maintainable and was not a suit covered by Clause 2 of the U.P. Land Tenures (Legal proceedings) (Removal of Difficulties) Order, 1952. Under sub-clause (b) of clause 2 of that Order a suit could no doubt be instituted in respect of certain rights under the U.P. Tenancy Act after the enforcement of the U.P. Zamindari Abolition and Land Reforms Act, but we consider that such a suit could only be in respect of a right which continued after the enforcement of the U.P. Zamindari Abolition and Land Reforms Act, in respect of which no remedy was provided in any express provision contained in the U.P. Zamindari Abolition and Land Reforms Act. The present suit by the opposite party was in respect of a right which, as we have indicated earlier, had been converted into a right as sirdar, and a suit of this very nature for claiming that right lay under the provisions of the U.P. Zamindari Abolition and Land Reforms Act under Section 229-B of that Act. Consequently, this suit under the provisions of U.P. Tenancy Act was not maintainable...."
(Emphasis added)
18. Another Division Bench of this Court in Sheo Ji Singh and Others Vs. D.D.C. and Others, AIR 1974 All 261, after noticing the judgement in Shital Prasad (Supra), held that as a suit under the Act, 1939 for declaration of tenancy rights under the Act, 1939 was not maintainable after 1.7.1952, therefore, a decree passed in such a suit would be without jurisdiction (Para No. 5).
19. After 1.7.1952, a person could claim only those tenurial rights which are recognized by the Act, 1950. Such a claim could be made on the ground that the land was settled with him under the different provisions of the Act, 1950 because he was an intermediary, cultivator or a tenant of any class specified in the Act, 1939 or the land was otherwise held and occupied by him in a manner recognized by the Act, 1950. The proper course for such a person was not to institute proceedings under the Act, 1939 for a declaration that he was a tenant of a class specified in the Act, 1939 but to institute proceedings under Section 229-B of the Act, 1950 for a declaration of his tenurial rights recognized under the Act, 1950 and such a declaration could have been made only if the person proved that before 1.7.1952, he was a tenant of a class specified in the Act, 1939 and therefore the land was settled with him under the Act, 1950.
20. Case Nos. 17/1952, 18/1952 and 19/1952 were instituted by Gurbaksh Singh on 5.11.1952 under Section 59 of the Act, 1939 for a declaration that he was a hereditary tenant of the disputed plots. There were no pleadings in the plaints as to how Gurbaksh Singh became a hereditary tenant of the disputed plots. The facts necessary to prove the claim of the plaintiff that he was a hereditary tenant as defined in Section 29 of the Act, 1939, were not pleaded in the plaints. The same Zamindars, who had refused to cooperate with Gurbaksh Singh in getting his name mutated in the revenue records till 30.6.1952 filed a written statement, on 5.11.1952 itself through a person claiming to hold their power of attorney, and admitted the claim of Gurbaksh Singh. More interestingly, on the same date, i.e., 5.11.1952, the Judicial Officer decreed the aforesaid suits on the admission recorded in the written statements and declared Gurbaksh Singh to be a hereditary tenant of the disputed plots. The decrees were for a right, which had ceased to exist on 5.11.1952. In view of the judgements of this Court in Shital Prasad (Supra) and Sheo Ji Singh (Supra), the cases instituted by Gurbaksh Singh were not maintainable and the decrees were without jurisdiction and thus null and void and did not confer any right on Gurbaksh Singh.
21. It was argued by the petitioners that the decrees dated 5.11.1952 were declaratory decrees and should be treated as decrees passed under Section 229-B of the Act, 1950.
22. In the cases instituted by Gurbaksh Singh under Section 59 of the Act, 1939, the State Government or the Gaon Sabha were not impleaded as defendants. If the cases had been instituted under Section 229-B of the Act, 1950, the Gaon Sabha and the State Government would have been necessary parties in view of Section 229-B(3) of the Act, 1950. Further, the prayers in the suits were not for decrees declaring the plaintiff, i.e., Gurbaksh Singh, as Bhumidhar or Sirdar, of the disputed plots but a hereditary tenant, a status recognized in the Act, 1939 but not recognized in the Act, 1950. The decrees passed in the aforesaid cases declared Gurbaksh Singh to be a hereditary tenant of the disputed plots. The right decreed through decrees dated 5.11.1952 was not recognized by the Act, 1950. For the aforesaid reasons, the cases instituted by Gurbaksh Singh under Section 59 of the Act, 1939 can not be treated to have been instituted under Section 229-B of the Act, 1950 and the decrees can also not be treated as decrees under Section 229-B of the Act, 1950.
23. Apart from the above, there is an additional reason to hold that the decrees dated 5.11.1952 did not confer any right recognized by the Act, 1950 on Gurbaksh Singh or the petitioners. By virtue of Section 4 read with Section 6 of the Act, 1950 all lands whether cultivable or otherwise, vested in the State of Uttar Pradesh free from all encumbrances and all grants, confirmation of title and any right or privilege in respect of such land or its land revenue stood determined. Only those lands were settled with the intermediaries, cultivators or tenants as Bhumidhar and Sirdar which were held or occupied for the purposes connected with agriculture, horticulture or animal husbandry which included pisciculture and poultry farming because land is defined in Section 3(14) of the Act, 1950 as land held or occupied for purposes connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming. The disputed plots could have been settled with Gurbaksh Singh as Sirdar under Section 19 of the Act, 1950 only if plots were held or occupied by Gurbaksh Singh for any purpose included in section 3(14) of Act, 1950. A reading of the different orders passed by the consolidation courts show that the disputed plots were recorded as Banjar, Parti and Reti in the revenue records. The petitioners have annexed copies of the revenue records of 1356 Fasli and 1359 Fasli to show that the plots were recorded as Class XIV and cultivable Banjar. The documents annexed with the supplementary affidavit also show that some of the disputed plots were recorded as 'reti'. Class XIV land includes permanent pastures and grazing lands. It is also evident from the Khatauni of 1356 Fasli and 1359 Fasli, filed alongwith the supplementary affidavit, that the disputed plots were not being used for agricultural purposes. There is nothing on record to show that the plots were held or occupied by Gurbaksh Singh for agricultural purposes immediately preceding the date of vesting. A reading of the order passed by the Consolidation Officer shows that the Khasras of 1349 Fasli to 1362 Fasli were not available before the Consolidation Officer and a copy of the application filed for the Khasras of the aforesaid years was returned back with a note from the Tehsil Office that the Khasras of the aforesaid years were not available. The petitioners claim that the disputed plots were leased to Gurbaksh Singh by the Zamindars. A reading of the order passed by the Consolidation Officer endorsing the different documentary evidence filed by the petitioners does not reveal that any document indicating the purpose of lease, was filed by the petitioners in the consolidation courts. Even in the plaints instituting cases under Section 59 of the Act, 1939 it has not been stated by the plaintiff, Gurbaksh Singh, that the plots were let or held for growing crops and was not a pasturage. The said pleadings were necessary because under Section 30 of the Act, 1939 hereditary rights did not accrue in pasture land and admittedly, in 1356 Fasli and 1359 Fasli, the plots were recorded as Class XIV. Similarly, there are no pleadings that the plots were not 'reti' as recorded in the revenue records. There is evidence on record, eg. the report dated 6.8.1957 of the Lekhpal of the village as reproduced in the order dated 11.7.1959 passed in proceedings registered under Section 212-A of the Act, 1950 that the tenant of the disputed plots was residing in Delhi and the disputed plots were lying Banjar and also the findings recorded by the civil court in its judgement dated 16.8.1967 which indicate that the disputed plots were being used as customary pasture lands. It would be relevant to notice that in Suit No. 19 of 1959 an issue was framed as to whether the disputed plots formed a customary pasturage. In any case, the petitioners did not produce anything to show that immediately preceding the date of vesting the land was being held or occupied for purposes connected with agriculture, horticulture or animal husbandry. In the circumstances narrated above it can not be accepted that the disputed plots were settled with Gurbaksh Singh under Section 19 of the Act, 1950.
24. For the aforesaid reasons, the decrees dated 5.11.1952 conferred no right on Gurbaksh Singh and do not bar by res-judicata, the consolidation courts to try and decide the issues regarding title of the disputed plots.
25. It was argued by the counsel for the petitioners that Gurbaksh Singh and consequently the petitioners were in possession of the disputed plots since 13.6.1952 and, therefore, Gurbaksh Singh matured his rights over the disputed plots by adverse possession in 1955 and became Sirdar thereof. The plea of adverse possession was not taken by the petitioners in the consolidation courts. It was pleaded by the counsel for the petitioners that the issue as to whether Gurbaksh Singh and consequently the petitioners had matured their rights by adverse possession can be decided, in the present case, on the basis of evidence already available on record.
26. The plea of adverse possession is not a pure question of law. It is a mixed question of law and fact. Findings on adverse possession are dependent on assessment of documentary and oral evidence. Proceedings under Article 226 of the Constitution are not continuation of a suit and the Writ Courts are not Courts of facts and do not enter into appreciation of evidence which is the prerogative of courts of facts. In view of the aforesaid, the petitioners can not be permitted to raise the plea of adverse possession in this Court for the first time. However, I have also proceeded to consider, on merits, the argument of the counsel for the petitioners regarding adverse possession.
27. The argument of the counsel for the petitioners regarding adverse possession is in the context that the original Section 209 of the Act, 1950 provided that if any person took or retained possession of any land otherwise than in accordance with the provisions of the law for the time being in force and without the consent of the Gaon Sabha, where the land did not form part of the holding of a bhumidhar, sirdar or asami, such a person was liable to ejectment on the suit of the Gaon Sabha or the Collector and was also liable to pay damages. Section 210 of the Act, 1950, as it was originally enacted, provided that if a suit for eviction from any land under Section 209 was not instituted by the Gaon Sabha or the Collector as the case may be or a decree for eviction obtained in any such suit was not executed within the period prescribed for institution of the suit or the execution of the decree, the person taking or retaining possession would acquire sirdari rights over the land. The period of limitation prescribed in the Act for instituting the suit or getting the decree executed was three years. It was argued by the counsel for the petitioners that in view of Sections 209 and 210 of the Act, 1950 Gurbaksh Singh had matured his rights on 1.7.955, i.e., three years after the date of vesting and became a Sirdar of the disputed plots. It is admitted by the respondents that no suit under Section 209 of the Act, 1950 was filed by the Gaon Sabha for eviction of Gurbaksh Singh and the only proceedings instituted by the Gaon Sabha for eviction of Gurbaksh Singh were proceedings under Section 212-A of the Act, 1950, which appear to have been instituted in 1957. For reasons to be stated presently, the aforesaid plea of the petitioners can not be accepted.
28. It is evident from a reading of the order dated 11.7.1959 passed by the Sub-Divisional Officer in proceedings registered under Section 212-A of the Act, 1950 that the name of Gurbaksh Singh was for the first time entered in the revenue records on 30.7.1956. There is nothing on record to show that Gurbaksh Singh was in possession of the disputed plots till 30.7.1956. Apart from the aforesaid, by Section 15 of U.P. Act No. 35 a new Section 210 was substituted in place of old Section 210 of U.P. Act No. 35 of 1976. Section 15 of U.P. Act No. 35 of 1976 is reproduced below :-
"15. Amendment of section 210.-For Section 210 of the principal Act, the following section shall be substituted and be deemed always to have been substituted, namely :-
"210 If a suit for eviction from any land under section 209 is not instituted by a bhumidhar, sirdar or asami or a decree for eviction obtained in any such suit is not executed by him, within the period of limitation provided for the institution of such suit or the execution of such decree, as the case may be, the person taking or retaining possession shall-
(i) where the land forms pail of the holding of a bhumidhar with transferable rights, become a bhumidhar with a transferable rights of such land and the right, title and interest of an asami, if any, in such land shall be extinguished;
(ii) where the land forms part of the holding of an asami on behalf of the Gaon Sabha, become an asami of the holding from year to year."
(Emphasis added)
29. Through U.P. Act No. 35 of 1976 Section 210 of Act No. 1950 has been substituted by a new provision, 'and is deemed always to have been substituted'.
30. Apparently, the new Section 210 has been given a retrospective effect. Section 210 as substituted by U.P. Act No. 35 of 1976 does not provide for the consequences of the failure of the Gaon Sabha to institute any suit under Section 209 or its failure to execute any decree passed in any proceedings instituted under Section 209. It was held by a Division Bench of this Court in Sunit Kumar Tyagi (Supra) and by a Single Bench of this Court in Bhurey and Nain Singh (Supra) that the effect of amendment having been given retrospective effect means that a trespasser, even from July, 1952, could not acquire Sirdari rights on the land belonging to the Gaon Sabha. The judgement in Chandrapati (Supra) relied upon by the petitioners was delivered on 10.1.1975, i.e., before the amendment of Section 210 through U.P. Act, No. 35 of 1976 and is thus not applicable in the present case.
31. It was argued by the counsel for the petitioners that Gurbaksh Singh had matured his rights by adverse possession against the Gaon Sabha on 1.7.1955, i.e., after three years from the date of vesting and, therefore, the amendment incorporated through U.P. Act No. 35 of 1976 can not divest Gurbaksh Singh of his Sirdari rights which vested in him on 1.7.1955. The argument of the petitioners can not be accepted. The statute of limitation are rules of procedure which do not create any substantive right, but only prescribe the period within which legal proceedings may be instituted for enforcement of substantive rights. Further, in Sree Bank Ltd. Vs. Sarkar Dutt Roy and Company, AIR 1966 SC 1953 the Supreme Court referred with approval the observation of Craies that, 'if a statute is passed for the purpose of protecting the public against some evil or abuse, it may be allowed to operate retrospectively, although by such operation it will deprive some person or persons of a vested right.' The evil or abuse sought to be prevented through the amendment was misappropriateion of public property.
32. Apart from the aforesaid, Gurbaksh Singh and consequently the petitioners claimed that Gurbaksh Singh came in possession over the disputed plots through a lease allegedly made by the erstwhile Zamindars of the disputed plots in favour of Gurbaksh Singh. In the consolidation courts and in all proceedings before the parties, the petitioners and Gurbaksh Singh also justified their possession on the basis of the decrees dated 5.11.1952. It was as a consequence of the decrees dated 5.11.1952 that Gurbaksh Singh was issued a Bhumidhari Sanad in 1964 and the proceedings instituted by Gaon Sabha under Section 212-A of the Act, 1950 for eviction of Gurbaksh Singh were dismissed. A possession can not be considered adverse if it could be referred to a lawful title. The Supreme Court in paragraph No. 5 of the judgement reported in P.T. Munichikkanna Reddy & Others Vs. Revamma & Others, (2009) 6 SCC 59 observed that, 'Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession.' A perusal of the facts stated previously would show that the Gaon Sabha had never acquiesced to the possession of either the petitioners or their predecessors including Gurbaksh singh and had never abandoned the property. The Gaon Sabha instituted proceedings under Section 212-A of the Act, 1950 for eviction of Gurbaksh Singh and also filed a suit for injunction against Gurbaksh Singh and his vendees. Thus, Gurbaksh Singh and consequently the petitioners did not acquire any right over the disputed plots by adverse possession and the plea of adverse possession by the counsel for the petitioners is also not tenable and is rejected.
33. The other argument that was raised by the counsel for the petitioners was that the title of Gurbaksh Singh, from whom the petitioners claim, was accepted by the State Government in proceedings registered under the Ceiling Act, wherein the State Government declared the holdings of Gurbaksh Singh as surplus after clubbing the disputed plots with the other plots acquired by Gurbaksh Singh. The aforesaid contention of the counsel for the petitioners also has no force. By U.P. Act No. 35 of 1976, the Act, 1953 was amended and through Section 31 of the U.P. Act No. 35 of 1976 an Explanation was added to Section 5 of the Act, 1953. The said amendment was also given retrospective effect. Section 31 of U.P. Act No. 35 of 1976 is reproduced below:-
"31. Amendment of Section 5-In Section 5 of the principal Act, in sub section (2), for the Explanation thereto, the following Explanation shall be substituted and shall be deemed always to have been substituted, namely :-
"Explanation- For the purposes of sub section (2), a proceeding under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 or an uncontested proceeding under Sections 134 to 137 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 shall not be deemed to be a proceeding in respect of declaration of rights or interest in any land."
(Emphasis added)
34. Apparently, for the purposes of Act, 1953, the proceedings under the Ceiling Act are not deemed to be proceedings in respect of declaration of rights or interest and, therefore, the orders passed under the Ceiling Act in relation to Gurbaksh Singh did not bar the consolidation courts to consider the issue regarding the title of the disputed plots.
35. It was vehemently argued by the counsel for the petitioners that the title of Gurbaksh Singh over the disputed plots were admitted by the State Government while declaring him to be the Bhumidhar in proceedings registered under Section 134 of the Act, 1950. It was argued that the Gaon Sabha took no steps for cancellation of the Bhumidhari Sanad issued to Gurbaksh Singh, and therefore, the issue regarding title of Gurbaksh Singh over the disputed plots was barred by resjudicata. It was further argued that by a notification under Section 117 of the Act, 1950, the State is not divested of its ownership over any land which vested in it under the Act, 1950 and by a notification issued under Section 117, the Gaon Sabha gets the right to only manage the land. It was argued that once the State Government issued a Bhumidhari Sanad to Gurbaksh Singh, the same would amount to the owner admitting the title of Gurbaksh Singh over the disputed plots and the Gaon Sabha has no right to challenge the title of Gurbaksh Singh and the petitioners over the disputed plots because the Gaon Sabha was never the owner of the disputed plots.
36. A reading of the Explanation to Section 5 of the Act, 1953 as introduced through U.P. Act No. 35 of 1976 reproduced above would show that uncontested proceedings under Section 134 to 137 of the Act, 1950, which relate to grant of Bhumidhari Sanad are deemed not to be proceedings in respect of declaration of rights or interest in any land. Section 134 of the Act, 1950 provided that a Sirdar may apply to an Assistant Collector for declaration of his Bhumidhari rights in respect of land specified in the application after depositing the requisite amount. Section 135 of the Act, 1950 empowered the Assistant Collector to pass an order declaring the applicant to be the Bhumidhar of the land specified in such order after making such inquiry as may be prescribed. Section 136 of the Act, 1950 provided that where a declaration under Section 135 of the Act, 1950 has been duly made the Sirdar, from the date thereto, shall be deemed to be the Bhumidhar of the land specified in the declaration and shall have all the rights and be subject to all the liabilities conferred or imposed upon Bhumidhars by or under the Act, 1950. Section 137 of the Act, 1950 specified the grounds on which the declaration granted under Section 135 of the Act, 1950 could be cancelled or modified by the Assistant Collector. Sections 134 to 137 of the Act, 1950 as substituted by Clause 9 of U.P. Act No. 35 of 1976 are reproduced below :-
"Substitution of new sections 134 to 137.- For sections 134 to 137A of the principal Act, the following sections shall be substituted namely :-
"134. Application for Bhumidhari right by Sirdars -(1) A sirdar, not being a sirdar referred to in clause (b) of section 131 may apply to an Assistant Collector for declaration of his bhumidhari rights in respect of the land specified in the application.
(2) An application under sub section (1) may be made by one or more of the co-sirdars and in respect of the entire holding or any part thereof or any share therein.
(3) No application under sub section (1) shall be entertained unless an amount equal to ten times the land revenue payable or deemed to be payable on the date of application for such holding, part or share has been deposited in the manner prescribed.
135. Declaration of bhumidhari right. -(1) If the Assistant Collector is satisfied that the application referred to in section 134 has been duly made, he shall, by order, declare the applicant to be the bhumidhar of the land specified in such order.
(2) Before making an order under sub-section (1), the Assistant Collector may make such inquiry as may be prescribed.
136. Consequences of declaration-Where a declaration under section 135 has been duly made, the sirdar shall from the date thereof, be deemed to be a bhumidhar of the land specified in the declaration, and shall have all the rights and be subject to all the liabilities conferred or imposed upon bhumidhars by or under this Act.
137. Cancellation of declaration-(1) A declaration granted under section 135 may on the application of any person interested (including the State Government), be cancelled or modified by the Assistant Collector on any of the following grounds, namely -
(a) that the declaration was obtained fraudulently by making of false suggestion, or by the concealment from the Assistant Collector something material to the case;
(b) that the declaration was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant thereof, though the allegation was made in ignorance or inadvertently;
(c) that a decree or order passed by a competent Court in a suit or other proceedings with respect to the holding for which declaration made shows that the application was not entitled thereto.
(2) Where the declaration is cancelled under sub-section (1) the person depositing the amount shall be entitled to its refund."
(Emphasis added) Sections 134 to 137 of the Act, 1950 have been amended and re-numbered many times. The present Section 137 was previously numbered as Section 137-A. Sections 134 to 137 as introduced by U.P. Act No. 35 of 1976 have been reproduced above as the previous provisions relating to grant of Bhumidhari Sanad and substituted by Clause 9 of U.P. Act No. 35 of 1976 are almost the same so for as the issue in the present case is concerned.
37. At this stage it would also be relevant to refer to the procedure prescribed in the Uttar Pradesh Zamindari Abolition and Land Reforms Rules, 1952 for grant of Bhumidhari Sanad. Rules 116, 119 and 121 are relevant for the present case and are reproduced below :-
"116. (1) Subject to the provisions of sub-rule (2), every application under section 134 (1) for the acquisition of bhumidhari rights shall contain the following particulars:
(a) The name, parentage and address of the applicant. (b) Whether the bhumidhari rights are sought to be acquired in respect of the entire holding or any-part thereof.
(c) Khasra number of plots and area of each plot in respect of which bhumidari rights are sought to be acquired.
(d) Name of village, pargana and tahsil in which plots are situate.
(e) Amount of land revenue payable or deemed to be payable in respect of the plots referred to in clause (c).
(f) Total amount deposited in the Treasury for the acquisition of bhumidhari rights.
(2) Where the application referred to in sub-rule (1) is made by or on behalf of some of the co-sirdars only, the following further particulars shall also be mentioned in the application:-
(a) The names of the recorded co-sirdars who have joined in the application and their respective shares in the holding.
(b) The names of the recorded co-sirdars who have not joined in the application and their respective shares in the holding."
119. (1) The Assistant Collector shall thereupon scrutinize the application and may examine on oath the applicant or any other person whose evidence he considers necessary.
(2) The Assistant Collector shall make a memorandum of the statements recorded by him and shall sign it.
(3) If the Assistant Collector finds that the amount deposited under rule 116 is less than the amount specified in section 134(3), he may grant time to the applicant to make up the deficiency.
(4) Where the Assistant Collector is satisfied that the amount required by section 134(3) has been properly deposited and the application is otherwise in order, he shall make on order declaring the applicant to be the bhumidhar of the land specified in such order and shall also direct that necessary corrections be made in the record-of-rights.
121. (1) Where an application under section 134 (1) has been made by or on behalf of a co-sirdar referred to in rule 116 (2), the Assistant Collector shall fix a date of hearing and shall issue notices to the co-sirdars who have not joined in the application to show cause why the application should not be allowed.
(2) If on the date of hearing no objection is filed, by the co-sirdars to whom notices were issued under sub-rule (1), and the Assistant Collector is satisfied that the conditions laid down in Rule 119 (4) are fulfilled, he shall grant the declaration in accordance with section 135.
(3) If on the date of hearing of the application, any objection is filed, the Assistant Collector, shall hear and decide the same and pass such orders as appears to him just and proper."
(Emphasis added)
38. A reading of Section 137(c) of the Act, 1950 clearly shows that the declaration made by the Assistant Collector declaring any person as Bhumidhar is always subject to a decree or order passed by a competent court in a suit or other proceedings with respect to the holding for which the declaration was made and which shows that the concerned person was not entitled to grant of such declaration. Further, a reading of Rule 116 of the Rules, 1952 would show that the applicant is only called upon to disclose the name of co-sirdars who have either been joined or who have not been joined in the application and their respective shares in the holding. A reading of Rule 119 of the Rules, 1952 shows that while scrutinizing the application, the Assistant Collector may examine on oath the applicant or 'any other person whose evidence he considers necessary.' A reading of Rule 121 of the Rules, 1952 shows that if the application is made by or on behalf of co-sirdar, the Assistant Collector shall issue notice to the other co-sirdars, who have not joined in the application to show cause why the application should not be allowed. A reading of the Rules clearly show that the proceedings for a declaration of Sirdar as Bhumidhar under Section 134 to 136 of the Act, 1950 are summary proceedings where the Sirdari rights of the applicant are not directly and substantially in issue and notices in the proceedings are not issued to the Gaon Sabha but only to the co-sirdars. In any case, the declaration under Section 134 of the Act, 1950 would not bind the Gaon Sabha if no notice in such proceedings are issued to the Gaon Sabha. In the present case, no notices were issued to the Gaon Sabha in proceedings registered under Section 134 of the Act, 1950. Further, a reading of Section 137(c) of the Act, 1950 shows that the said declaration is not binding on any court of competent jurisdiction where the right or title of a person or the fact that he was not entitled to a declaration under Section 134/135 of the Act, 1950 is under challenge. In the present case, the Gaon Sabha could not have got the Bhumidhari Sanad cancelled under Section 137(a) or (b) of the Act, 1950. The declaration under Section 134 of the Act, 1950 in favour of Gurbaksh Singh was a consequence of the decree dated 5.11.1952 and the resultant mutation in the revenue records. The declaration was thus not obtained by any false suggestion or untrue allegation of any essential fact concealed by Gurubaksh Singh.
39. In the present case, the dispute is as to whether Gurbaksh Singh was the Sirdar of the disputed plots by virtue of Section 19 of the Act, 1950 and thus entitled to a declaration under Section 134 of the Act, 1950. It is not disputed that the consolidation courts have the jurisdiction to decide disputes regarding title of land in proceedings under Section 9-A of the Act, 1953. The declaration under Section 134/135 of the Act, 1950 issued in favour of Gurbaksh Singh granting him a Bhumidhari Sanad was not binding on the consolidation courts and findings on the issue whether Gurbaksh singh was the Sirdar of the disputed plots and consequently entitled to be declared as Bhumidhar was not barred by resjudicata. The judgement of this Court in Banshidhar (Supra) is not an authority on the question as to whether the declaration made by the Assistant Collector under Section 134 of the Act, 1950 would be binding on any competent court in any dispute regarding title. The issue in the aforesaid case was as to when does the Sirdar who had made an application under Section 134 of the Act, 1950 and made the necessary deposits acquires the status of a Bhumidhar. Similarly, the judgement of this Court in Sheo Charan (Supra) does not decide the said question. This Court in Sheo Charan (Supra) only held that the declaration issued under Section 134 of the Act, 1950 has a strong evidentiary value and is atleast a prima facie evidence of the bhumidhari rights of the holders. A prima facie evidence is not a proof of the fact pleaded. Further, the observations made by this Court in paragraph No. 14 of the judgement reported in Sheo Charan (Supra) that the consolidation courts could not have ignored the Bhumidhari Sanad and the declaration granted under Section 134, is not applicable in the present case. The judgement in Sheo Charan (Supra) was delivered on 17.12.1969. By Clause 31 of the U.P. Act No. 35 of 1976, the Explanation introduced in Section 5 provides that uncontested proceedings under Section 134 to 137 of the Act, 1950 shall not be deemed to be proceedings in respect of declaration of rights or interest in any law. The amendment was introduced after the judgement delivered in Sheo Charan (Supra).
40. Thus, no illegality was committed by the consolidation authorities in rejecting the plea of the petitioners based on the Bhumidhari Sanad issued to Gurbaksh Singh.
41. It was lastly pleaded by the petitioners that they purchased the disputed plots after Gurbaksh Singh was granted a Bhumidhari Sanad and his name was entered in the revenue records. It was argued that for the said reason, the petitioners took reasonable care while purchasing the disputed plots and are therefore bona fide purchasers without notice and thus entitled to protection under Section 41 of the Act, 1882. Section 41 of the Act, 1882 is reproduced below :-
"Section 41. Where, with the consent, express or implied, of the persons interested in immoveable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith."
42. A perusal of the facts as reproduced earlier shows that the Gaon Sabha had continuously contested the right of Gurbaksh Singh and his vendees over the disputed plots. The Gaon Sabha instituted proceedings under Section 212-A of the Act, 1950 to get Gurbaksh Singh evicted from the disputed plots and also contested the mutation proceedings against Gurbaksh Singh and his vendees. The Gaon Sabha also filed a recall application for recall of the decree passed in proceedings instituted under Section 176 of the Act, 1950 by the vendees of Gurbaksh Singh and on the said application of the Gaon Sabha, the decree passed in proceedings registered under Section 176 of the Act, 1950 were recalled. The Gaon Sabha also instituted a suit for a permanent prohibitory injunction against Gurbaksh Singh, which was decreed on 16.8.1967 and the appeal filed against the said decree was dismissed. Apparently, the Gaon Sabha never represented Gurbaksh Singh or his vendees to be the owner of the disputed plots and Gurbaksh Singh and his vendees represented themselves as Bhumidhars of the disputed plots without any consent, expressed or implied, of the Gaon Sabha. In case the petitioners had made proper inquiries they would have known the aforesaid facts. In this context it would be appropriate to reproduce an extract from the judgement of the Privy Council reported in Nageshwar Prasad Pande Vs. Raja Pateshri Partab Narain Singh & Another, AIR 1950 Privy Council:-
"The learned Subordinate Judge apparently relies on the provisions of Section 41 of the Transfer of Property Act, but he overlooks the proviso to that section, which is to the effect that a transferee from an ostensible owner can defeat the real owner only if after taking reasonable care to ascertain that the transferor had power to make the transfer, he acted in good faith. There is nothing in this case to show that the plaintiff made any inquiry whatsoever to ascertain the title of his mortgagor, Rudra Narain Singh. It is true, the name of Rudra Narain Singh was entered in the revenue papers, but if inquiry had been made, it would have appeared that at the time when mutation of names was applied for objections were preferred on behalf of the Raja of Basti and that the name of Rudra Narain Singh was entered simply because he was in possession. Further inquiry as to Rudra Narain's title would have led to the discovery of the fact that there was a Will, by virtue of which the Raja of Basti was the owner of the property after the death of Rup Kunwari. It cannot be said that the name of Rudra Narain Singh was entered as ostensible owner with the consent of the real owner, the Raja of Basti. On the contrary, his name was entered in spite of opposition put forward by the Raja. The present plaintiff is a person who has been lending money to the family for a long time. He resides in the same locality and was apparently acquainted with all the circumstances of the family concerned. He cannot therefore claim to be bona fide transferee without notice so as to be in a position to defeat the title of the real owner."
(Emphasis added)
43. The petitioners can not be held to be bona fide purchaser of the disputed plots as the Gaon Sabha has been continuously denying the title of Gurbaksh Singh and his vendees representing themselves as the true owners of the disputed plots. Apart from the aforesaid, Gurbaksh Singh had no legally recognized title or interest in the disputed plots. Gurbaksh Singh or his vendees had no title to convey and, therefore, the petitioners did not get any title from their vendors. The petitioners never relied on any representation or any act or conduct on the part of the Gaon Sabha, which could persuade them to believe that Gurbaksh Singh or his vendees were the true owners of the disputed plots. In this regard, it would be appropriate to reproduce the observations of the Supreme Court in paragraph No. 37 of the judgement reported in Ramrao Jankiram Kadam Vs. State of Bombay and Others, AIR 1963 S.C. 827 :-
"37. It was then suggested that the plaintiff was disentitled to any relief by reason of an estoppel raised by S. 41 of the Transfer of Property Act. The basis for this argument was that some time after the sale the second defendant had purchased the plot bearing Survey No. 80 for Rs. 2,000/- from the Government while the fifth defendant similarly purchased plots bearing Survey Nos. 35 and 40 for Rs. 1,750/- and that the inaction of the plaintiff without taking proceedings to set aside the sale constituted a representation to the world that the Government were properly the owners of the property which they had purchased for nominal bids and this was the reasoning by which S. 41 of the Transfer of Property Act was sought to be invoked. The respondent did not rely on any representation or any act or conduct on the part of the appellant but their belief that Government had acquired title by reason of their purchase at the revenue sale. If the Government had no title to convey, it is manifest the respondents cannot acquire any. They would clearly be trespassers. In the circumstances we consider there is no scope for invoking the rule as to estoppel contained in S. 41 of the Transfer of Property Act."
(Emphasis added) Thus, the plea of the petitioners for the protection of Section 41 of the Act, 1882 also has no force and is rejected.
44. For all the aforesaid reasons, I do not find any illegality in the impugned orders passed by the consolidation authorities. The petitioners have no legally recognized title or interest in the disputed plots. The consolidation authorities rightly accepted the claim of Gaon Sabha and rejected the claim of the petitioners.
45. For the aforesaid reasons, the writ petition lacks merit, and is, accordingly dismissed.
Order Date :- 19.2.2020 Anurag/-