Allahabad High Court
Abdul Rauf Khan vs Abdul Samad And Others on 9 October, 1998
Equivalent citations: 1999(2)AWC939
JUDGMENT R.H. Zaidi, J.
1. This is plaintiff's second appeal, which arises out of a suit for permanent injunction and is directed against the judgment and decree dated 19.8.1998 passed by IInd Addl. District Judge, Bahraich.
2. It appears that the plaintiff-appellant filed a suit for permanent injunction prohibitory and mandatory. It was pleaded that the land in dispute (plot No. 771 measuring. O48 hectare) was allotted to him by the Land Management Committee of Gram Sabha on 24.8.1977, he was, on the basis of the said allotment, owner in possession of the land in dispute but on account of his poverty, he could not construct his residential house on the land in dispute that the defendants have forcibly occupied the land in dispute.
Plaintiff asked the defendants to vacate the land in dispute ; but in vain, hence the suit.
3. The suit was contested by the defendants-respondents who have denied the plaintiffs claim. It was pleaded that the plaintiff had no right to file the suit as he was neither the owner nor in possession of the land in dispute. There existed more than 35 years old house of the defendants on the land in dispute. It was pleaded that land in dispute was never auctioned, no resolution was ever passed by the Land Management Committee, no allotment of the same was made in favour of the plaintiff, and that alleged allotment was never approved by the competent authority. Receipt relied upon by the plaintiff and alleged to have been issued by the Pradhan of the village, was a forged document. Certain other technical and legal pleas regarding limitation, bar of Section 34 of the Specific Relief Act, etc. were also taken.
4. Trial court on the basis of the pleadings of the parties, framed as many as eight issues, issue No. 2 was as to whether the plaintiff was owner in possession of the land in dispute. Parties produced evidence oral and documentary in support of their cases. The trial court, recorded findings on relevant issues in favour of the plaintiff, and decreed the suit by its judgment and decree dated 29.8.1996. Aggrieved by the Judgment and decree passed by the trial court, defendants-respondents filed appeal before the Court below. The court below has reversed the findings recorded by the trial court on all material issues, allowed the appeal and dismissed the suit. Hence, plaintiff-appellant has filed the present second appeal, before this Court.
5. Learned counsel appearing for the appellant has vehemently urged that the resolution passed by the Land Management Committee was acted upon by the parties. Therefore, the same constituted a valid lease in favour of the appellant. The Court below had no jurisdiction to ignore and disregard the allotment of land In his favour, as the same was never cancelled by the competent authority. In support of his submission, he has referred to some decisions alleged to have been reported in Revenue Decisions ; but in spite of opportunity being afforded to him, he failed to produce the same before this Court.
6. I have considered the submissions made by the learned counsel for the appellant and carefully gone through the record.
7. The Court below has recorded a clear and categorical finding to the effect that the allotment alleged to have been made by the Land Management Committee was never approved by the Assistant Collector. Incharge of the Sub-Division. Therefore, the same was void and on the basis of the same plaintiff-appellant cannot claim ownership in the land in dispute and had no right to file the suit. Section 122C (2) and (4) of the U.P.Z.A. and L.R. Act and the Rule 115NC-General (2) of the Rules framed under the said Act, are relevant for the purposes of the present case, which are quoted below :
122C. Allotment of land for housing site for members of Scheduled Castes, agricultural labourers, etc.--(1).....................
(2) Notwithstanding anything in Sections 122A. 195, 196. 197 and 198 of this Act, or in Sections 4, 15, 16, 28B and 34 of the United Provinces Panchayat Raj Act, 1947, the Land Management Committee may with the previous approval of the Assistant Collector in charge of the sub division allot for purposes of building of houses, to persons referred to in sub-section (3)-
(a) any land earmarked under sub-section (1) ;
(b) any land earmarked for the extension of abadi sites for Harijans under the provisions of the U. P. Consolidation of Holdings Act, 1953.
(c) any abadi site referred to in clause (iv) of sub-section (1) of Section 117 and vested in the Gaon Sabha ;
(d) any land acquired for the said purposes under the Land Acquisition Act, 1894.
(4) If the Assistant Collector in charge of the sub-division is satisfied that the Land Management Committee has failed to discharge its duties or to perform its functions under subsection (2) or it Is otherwise necessary or expedient so to do, he may himself allot such land in accordance with the provisions of sub-section (3).
115NC. General-(1).................
(2) All allotment shall be made by the Land Management Committee in a meeting held for the purpose on the date announced under sub-rule (1) Where more than one person belonging to the same order of preference express their desire to be allotted a particular site, the said Committee shall draw lots to determine the person to whom the site should be allotted :
Provided that the prior approval of the Assistant Collector, incharge of the Sub-Division shall be obtained for every allotment under Rule 115L or 115M.
8. A perusal of the aforesaid statutory provisions reveals that without prior approval of the Assistant Collector incharge of the Sub-Division, no allotment of the land could be made by the land management committee. In the present case, it was pleaded and proved that no approval was ever accorded by the Assistant Collector, incharge of the Sub-Division, what to say of prior approval. Resolution of the Land Management Committee alleged to have been passed in favour of the plaintiff-appellant was thus non-est and void ab initio.
9. It is well-settled in law that the civil court has got jurisdiction to consider and decide the legality of the allotment, if it is called upon to decide the same. Reference in this regard may be made to the decision in Chikhuri Bollu Koen v. Santoo Koeri and another, 1983 ALJ 687. wherein it was ruled as under :
"What is made final by subsection (7) of Section 122C is the order of the Assistant Collector subject to the provisions of subsection (6), and the provisions of Section 333 of the Act, that is to say the Assistant Collector's order is subject to the order of the Collector under sub-section (6) of Section 122C and the order of the Collector is subject to the order of the Board of Revenue under Section 333, U. P. Zamindari Abolition and Land Reforms Act, and the orders so passed are final. Under sub rule (5) of rule 115P, it is the order of the Collector which is made final. In the present case, no application for cancellation of the allotment was ever made. The result is that there is no order of the Assistant Collector or the Collector or the Board of Revenue. Under the circumstances, these provisions do not operate to bar the Jurisdiction of the civil court to go into the question whether the allotment of land made by the Gaon Sabha was incompetent and, therefore, non est in law. I may here observe that the Schedule II to the Zamindari Abolition and Land Reforms Act read with Section 331 thereof does not exclude the jurisdiction of the civil court in the matter of applications covered by Section 122C or Rule 115P. The civil court could always see whether the land belonged to the plaintiff or not, and if it came to the finding that the land was settled with the plaintiff under Section 9, U. P. Zamindari Abolition and Land Reforms Act, and did not, therefore, belong to the Gaon Sabha and was not open to allotment as an abadi site under Section 122C, it could hold or declare the allotment to be invalid and ineffective in law and ignore it."
10. Admittedly, defendants-respondents were in possession of the land in dispute. The Court below has also recorded findings on the question of possession in favour of the defendants-respondents. Plaintiff-appellant having, thus, failed to prove that he was owner in possession of the land in dispute, the Court below committed no error of law or jurisdiction, in allowing the appeal and dismissing the suit. The judgment passed by the Court below is concluded by the findings of fact, which are based on relevant evidence on record. No substantial question of law is involved in the present case. Appeal lacks merit. Same is accordingly dismissed under Order XLI, Rule 11, C.P.C.