Allahabad High Court
Sumer vs Bator on 24 July, 2020
Equivalent citations: AIRONLINE 2020 ALL 2653
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - At Residence Reserved A.F.R. Case:- SECOND APPEAL No. - 1289 of 1988 Appellant:- Sumer Respondent:- Bator Counsel for Appellant:- Faujdar Rai,M.C.Tiwari,R.S. Yadav Counsel for Respondent:- Gajendra Pratap, R.S. Kushwaha, Ramesh Singh Kushwaha Hon'ble J.J. Munir,J.
1. This is a defendants' Second Appeal arising from a Suit for permanent prohibitory injunction and, alternatively, for possession.
2. By this Appeal, the defendants of Original Suit no.36 of 1976, seek reversal of the judgment and decree passed by Mr. H.L. Kureel, the then Additional District Judge, Ghazipur, dated 18.02.1988 in Civil Appeal no.134 of 1984, allowing the Appeal and decreeing the Suit, that was dismissed by the Trial Court vide judgment and decree dated 02.05.1984.
Parties to the lis
3. The Suit was instituted by Bator son of Buddhiram and Shiv Chand son of Bator, arrayed as plaintiffs nos.1 and 2 in that order. The defendants to the Suit were seven in number, to wit, Sumer, Muneshwar, Uddhav, Munni, Jhuri, Radhey and Tufani, all sons of Sahdev. The said defendants were arrayed as defendants nos.1 to 7 in that order. This Appeal was lodged by all the defendants, who at the time of presentation of the Appeal, had grown to a figure of nine. This increase was on account of the death of defendant no.5 to the Suit, Jhuri, who was survived by his wife, Smt. Behafi and two sons, Mansha and Ramesh. Ramesh at the time of presentation of this Appeal was a minor and was, therefore, represented through his mother, Smt. Behafi, acting as his next friend. Pending Appeal, of the nine original defendants-appellants, four died. They are: Sumer, Muneshwar, Uddhav and Munni. Each of these deceased defendants-appellants are now represented on record by their heirs and legal representatives.
4. Amongst the plaintiffs-respondents, Shiv Chand son of Bator died pending Appeal. His heirs too have been brought on record. The nine defendants-appellants who lodged this Appeal, including the heirs and legal representatives of the deceased defendants-appellants, shall hereinafter be referred to as ''the defendants', except where the reference is to a particular defendant. The two plaintiffs-respondents to this Appeal, originally impleaded, including the heirs and legal representatives of the plaintiff-respondent no.2, Shiv Chand, shall be hereinafter referred to as ''the plaintiffs', except where the reference is to a particular plaintiff.
The suit property
5. The suit property is non-aggricultural land, bearing plot no.114, admeasuring a total of 2 biswas, 12 dhurs, situate at Village Palia, Pargana Pachochar, District Ghazipur. It is denoted in the plaint, giving rise to the suit, by letters अ ब स द य र अ.
The substantial question of law involved
6. This Appeal was admitted to hearing on 19.05.1988 on the following substantial question of law:
"Whether the decree passed by the lower appellate court suffers from an error of law because it has upset the findings recorded by the Trial Court about execution of lease in accordance with the provisions of the U.P. ZA. & L.R. Act."
The plaintiffs' case
7. The plaintiffs' case is that they are father and son, and natives of Village Palia, Pargana Pachochar, District Ghazipur. The land, over which the plaintiffs' old house is located, has been assigned a new no.183 and abutting it, is plot no.184. Prior to the notification of consolidation operations, the locale of new plot no.183 had a number of houses standing there. The last mentioned plot has a large number of dwelling houses, located thereon. The adjacent plot no.184 is parti. Prior to the notification of consolidation operations, the site of plot no.184 has always been banjar (uncultivable land). It has now been assigned plot no.184. The ingress and egress to the plaintiffs' house is oriented to the east. Lying in front of their entrance is a sehan carrying dimensions, expressed in indigenous units as 1- ½ lattha wide and 3 lattha long. This sehan is utilized by the plaintiffs, where they sit and move about and tether their cattle with great inconvenience - a pair of oxen and two buffaloes. Abutting the land where the plaintiffs' house is situate, on its west and south, is plot no.184. The aforesaid land being parti, is Gaon Sabha's property. Further west of plot no.184 and contiguous to it, is a kachcha public road, proceeding from Ghazipur to Gorakhpur.
8. It is pleaded that land of plot no.184, lying between the plaintiffs' house and the last mentioned public road, bears a total area of 2 biswas and 12 dhurs. It is the plaintiffs' case that they were in dire need of a sehan to meet their needs whereas the last mentioned land, that is, parti to the south and west of their house, was lying unutilized. Therefore, they applied to the Village Pradhan, Palia that this land which is denoted in the plaint by letters अ ब स द य र अ and a part of plot no.184, may be allotted to them on a abadi patta for their use as abadi and sehan. It is claimed that the Village Pradhan, in accordance with law and after publication by beat of drum with prior information to members of the Gram Samaj, convened a meeting of the Land Management Committee on 14.05.1970. Since there was a solitary application by the plaintiffs staking claim to the land denoted by letters अ ब स द य र अ, the Land Management Committee allotted 1 biswa 10 dhurs of the said land to plaintiff no.1, Bator and 1 biswa 2 dhurs of land, last mentioned, to plaintiff no.2, Shiv Chand son of Bator. The allotment aforesaid was made for the purpose of construction of their house by the plaintiffs on two abadi patta, each in favour of plaintiffs nos.1 & 2, after receiving a sum of Rs.30/- and Rs.22/- respectively, towards premium/ settlement charges. A formal patta was drawn and granted in favour of the plaintiffs.
9. It is averred that post-grant of patta in their favour by the Gaon Sabha over the suit property, they extended their old house by raising some kachcha constructions over a part of it. The plaintiffs plead that they also put up a thatched-roof construction (madai) leaving the residue of the suit property as a sehan and space reserved to tether cattle and to store agricultural implements. It is also pleaded that the kachcha and thatched construction erected over the suit property are shown in the plaint map, denoted by the letters त थ द ध. There is then some pleading as to the finer detail about utilization of every inch of the suit property, which indicates that to the west of the madai, denoted by letters त थ द ध, a stretch of about 10 dhur of land has been cultivated to raise a wheat crop. To the north of the wheat crop and west of the plaintiffs' house, a stretch of about 16 dhur has been utilized to cultivate potatoes.
10. It is also detailed that the land abutting the public road has three beds, where onion has been cultivated. The residue of the suit property, that lies to the north of the madai, is utilized to tether cattle and as an open-area living space. It is pleaded that on 16.02.1976, the defendants trespassed into the suit property and uprooted fixtures placed there to tether and feed cattle. The neighbours intervened and dissipated a possible crime. The plaintiffs have restored those fixtures immediately in the protection of the intervening neighbours. The plaintiffs after the said event proceeded to enclose the suit property with a boundary wall, which the defendants prevented them from doing. It is the plaintiffs' case that the defendants say that they would occupy the suit property and force the Gaon Sabha to settle it with the defendants on a patta. It is on this cause of action that the Suit was instituted on 19.02.1976 before the Court of the learned Munsif, Saidpur, District Ghazipur.
Reliefs claimed in the Suit
11. The following reliefs have been claimed by the plaintiffs:
"(A) By a decree in favour of the plaintiffs and against the defendants, the defendants be restrained in perpetuity from obstructing the plaintiffs in any manner in raising a boundary wall or constructions over plot no.184 denoted by letters अ ब स द य र अ;
(B) If the Court comes to a conclusion that the plaintiffs have been dispossessed in consequence of an illegal act by the defendants, a decree of possession be passed in favour of the plaintiffs ordering them to be put in possession of the suit property after dispossessing the defendants through process of Court;"
The defendants' case
12. A written statement was filed, jointly on behalf of all the seven defendants, denying the plaint allegations, with an assertion that there is no old house of the plaintiffs in existence in a part of plot no.183. It is asserted that the plaintiffs are henchmen of the Village Pradhan, Jagannath Rai, and eke out a living for themselves staying in the Pradhan's house. About 8-9 years ago, Jagannath Rai got a thatch-worked dwelling house built for the plaintiffs in the new abadi, that came into existence post-consolidation operations in the village. This new abadi lies to the north-west of Jagannath Rai's house. The plaintiffs have been living in the aforesaid thatched house. Their assertions to the contrary are incorrect.
13. It is further pleaded that the plaintiffs' thatched dwelling unit is situate at a distance of about a furlong to the south-west of the disputed house. The plaintiffs' thatched dwelling unit is located close by to Jagannath Rai's house. It is pleaded that the suit property is not located in plot no.183. The defendants then plead that the disputed house together with a sehan (courtyard) was got constructed by their father to look after his field in plot no.276. The house was also used to tether cattle, to store household wares, besides serving as a living room for menfolk. During consolidation operations, plot no.276 was recorded as an abadi to the extent of the 12 dhurs and remainder of the area stayed with the defendants as part of their original holding that was included in their chak. The defendants' chak was assigned chak no.185. It is asserted that by the side of the road, abutting the defendants' chak on its western boundary, the house in dispute stands since long. It is pleaded that after close of consolidation operations, the defendants have pooled together, according to their convenience, some land from their chak, last mentioned and some of it from the south of the house in dispute, besides still more from the east, all of which they have utilized to demarcate a sehan for themselves. This new sehan of theirs is in addition to the one that they have on the western side. It is also pleaded that in their aforementioned sehan, they have a standing Neem tree, besides a Well.
14. It is also the defendants' case that to the south-east of the house in dispute, in one corner, their father had got a Well sunk some 14-15 years ago, which continues in existence and is utilized by the defendants to irrigate their fields and provide water to their cattle. It is averred that the plaintiffs have nothing to do with the said Well. There is then a specific pleading that plot no.184 lies to the north of the disputed house and the defendants' chak no.185. It is in the shape of an alley (gali). In some part thereof, houses of Annu and others stand. Plot no.184 to the north of the line अ ट is shown in the plaint map. It is averred that line अ ट is shown in the Commissioner's map by letters T D A. It is specifically pleaded in paragraph 12 of the written statement that the suit property is part and parcel of the defendants' old house and their land comprised in plot no.185. It is asserted that there is no crop or other cultivation done over the land in dispute by the plaintiffs. Whatever crop or other cultivation is there, belongs to the defendants. The suit has been instituted as a vexatious action to harass the defendants. It is a mala fide action.
15. It is also pleaded that there are no tethering hooks or feeding troughs fixed to any part of the suit property, which the defendants are claimed to have damaged or destroyed. There is a specific plea in paragraph 15 to the effect that the plaintiffs have not acquired any right to the suit property through a patta abadi, executed by the Gaon Sabha and that the Gaon Sabha has no right to grant the land in dispute on a patta. It is also asserted that the plaintiffs never entered possession of the suit property on the basis of the Gaon Sabha patta, they rely on. There are pleadings in paragraph 16 of the written statement that show animosity between the plaintiffs and the defendants on account of defendant no.2 standing witness in some case (not specified) against Jagannath Pradhan, that had left the Pradhan with ruffled feathers. He had threatened the defendants with trouble on this score. It is also said that in the preceding year's election, the defendants were not politically aligned with Jagannath Rai, the Pradhan, which further enangered him. He, therefore, caused the plaintiffs, who are his henchmen, to institute the present Suit mala fide in order to harass the defendants on vexatious pleadings. It is also pleaded that the defendants do not know that if the plaintiffs had secured some forged patta from the Pradhan, which if there, would not bind them.
Issues framed in the Suit
16. The Trial Court, on the pleadings of parties, framed the following issues (rendered into English from Hindi vernacular):
"(1) Whether the plaintiffs are owners in possession of the disputed land?
(2) Whether the house together with plot no.184 is the land in dispute?
(3) Whether the suit is barred by time?
(4) Whether the suit is barred by principles of estoppel and waiver?
(5) Whether the suit has been correctly valued and sufficient court fees has been paid?
(6) Whether the plaintiffs are entitled to any other relief, and if so, to what extent?"
Findings of the Trial Court
17. The Trial Court answered issue no.2 in the affirmative, relying on a report of the Survey Commissioner, dated 20.02.1984, on the basis of which it was held that the suit property lies in plot no.184. The Trial Court also looked into the evidence of DW-1, Tufani, from which also the Court concluded that the suit property is located in plot no.184. Issue no.2 was, therefore, answered in the affirmative in the terms indicated.
18. While deciding issue no.1, the Trial Court noticed that the plaintiffs' case is that they took the property in dispute on an abadi patta from the Gaon Sabha where they have various fixtures meant for tethering and feeding cattle, that are no concern of the defendants. It has been remarked by the Trial Court that once the defendants assert that the suit property is not located in plot no.184, but 185, which is their courtyard, the said property is neither the plaintiffs' or the Gaon Sabha's, where the Gaon Sabha may have a right to execute a patta in favour of the plaintiffs. To arrive at this conclusion, the Trial Court has looked into the dock evidence of PW-1, Bator as also the DW-1, Tufani and DW-2, Parasnath Rai. On an evaluation of the oral evidence of PW-1 and DW-1, the Trial Court has concluded that the plaintiffs' house is not located in plot no.184. The Court has also looked into Exs. 2 and 3, that are patta dated 04.05.1970, granted in favour of the plaintiffs by the Gaon Sabha. Regarding these documents, it is remarked that the same are not proved by the Pradhan, who is said to have granted these patta. Then Ex. 4 has also been looked into, which is a resolution of the Gaon Sabha, sanctioning grant of the two patta in favour of the plaintiffs. The Trial Court has taken exception to the fact that the Pradhan, who granted the patta, has not been produced as a witness. The absence of the Pradhan from the dock has led the Trial Court to infer that no patta had been executed in favour of the plaintiffs on 14.05.1970.
19. It is also remarked by the Trial Court that a look at the patta shows that these have been granted for the purpose of abadi, whereas the plaintiffs say that they are also cultivating. This inconsistent user, may be of a small part of the suit property, has been looked upon by the Trial Court as a suspicious circumstance. The Trial Court has, in particular, relied upon the report of the Commissioner to say that there is a standing crop of wheat, but no patta granted for agricultural purposes. It is also remarked that the plaintiffs have not filed any document to show that plot no.183 was the ownership of the Gaon Sabha. It is reasoned then that so far as evidence of DW-1, Tufani is concerned, his cross-examination shows that plots nos.275 and 276, were his old numbers, that were taken away during consolidation and in lieu thereof, he has got a field in plot no.185, as part of his chak. The Trial Court has then noted that DW-2, Parasnath Rai, has acknowledged in his cross-examination that plot no.184 was in the ownership of the Gaon Sabha. The Trial Court has remarked that it appears that the Gaon Sabha is the title-holder to the suit property, but the plaintiffs have not proved that it is Gaon Sabha land.
20. It is also said by the Trial Court that once the patta were granted for abadi purposes, there is no sense about cultivating that land. The Trial Court has also looked into Ex. A-1 and concluded therefrom that plot no.185 is recorded in the defendants' holding, whereas plot no.184 has been left as naveen parti. The Trial Court has remarked that it appears that close to the suit property, the defendants had their parti, wherein a Well exists. The Trial Court has gone on to observe that from a perusal of Ex. A-3, it appears that plot no.183, wherein the plaintiffs claim that their house stands, is recorded as grove. This shows, according to the Trial Court, that the plaintiffs do not have any old house close by to the suit property. In the opinion of the Trial Court, it is, therefore, difficult to believe that the plaintiffs have a house abutting the suit property, which led them to take the suit property on patta from the Gaon Sabha. The Trial Court has found PW-1, Bator to be contradicting himself, inasmuch as he says that plot no.184 is located to the east of his house, whereas in the plaint it is shown to be located in the north of it. The Trial Court has inferred that this witness's testimony being at variance with his pleadings, no faith can be reposed in what he says.
21. The Trial Court has, particularly, recorded a finding that since there is no approval of the patta by the Sub-Divisional Officer, which is essential to imbue it with life, the patta cannot be held valid. The Trial Court has answered this issue in the negative in terms that the plaintiffs have neither been able to prove their title or possession, vis-a-vis the suit property. On these findings, the Trial Court proceeded to dismiss the suit with costs.
The findings of the Lower Appellate Court
22. The Lower Appellate Court in reversing the Trial Court has remarked that while answering issue no.2, the Trial Court has held that the suit property is plot no.184. The defendants have not filed any cross-objections. It is further said by the Lower Appellate Court that the defendant has admitted during his cross-examination that the suit property is located in plot no.184. The Lower Appellate Court has proceeded to hold that it has, thus, become clear that the suit property is plot no.184 alone. The Lower Appellate Court has also remarked that it has figured in the defendant's evidence that plot no.184 has been carved out, out of the defendants' plots nos.275 and 276 and that he has been granted valuation of this land while adjusting his holdings, consolidated into chak no.185. The Lower Appellate Court has held that these circumstances prove that the defendant has no concern so far as the suit property goes. The Lower Appellate Court has emphasized that the defendants having acknowledged in their dock evidence that during consolidation operations this adjustment was made, where they received the value of plot no.184 elsewhere, puts an end to the matter, vis-a-vis the defendants' right to the suit property. The Lower Appellate Court has also held that this adjustment having been brought about during consolidation operations, the bar under Section 49 of the U.P. Consolidation of Holdings Act applies.
23. The Lower Appellate Court has also noticed that in the defendants' evidence, it has figured that the suit property belongs to the Gaon Sabha. It is admitted by the defendants that the suit property was reserved for the village abadi. The Lower Appellate Court has deduced that if this fact is correct that the suit property is under the management of the Gaon Sabha, the Gaon Sabha is entitled to transfer the same through a patta. The Lower Appellate Court has taken note of the fact that the plaintiffs have testified on oath that the Gaon Sabha has granted patta, bearing paper nos.10-C and 11-C in their favour. The plaintiffs have filed on record a certified copy of the proceedings of the Gaon Sabha, that carry a resolution to grant them land on patta. The Lower Appellate Court has reasoned that the defendants' plea that the patta are forged is bereft of any circumstances, pointed out by the defendants to show that forgery. The Lower Appellate Court has, therefore, held title in favour of the plaintiffs, based on the patta, numbering two.
24. The Lower Appellate Court has not rested the matter there. It has been remarked that the Trial Court has said that the plaintiffs have not proved the patta and the resolution of the Gaon Sabha and, therefore, these documents do not lend any support to the plaintiffs' claim about title. The Lower Appellate Court about this part of the Trial Court's findings says that it is based on an error. The reason to conclude to that effect is that certified copies of these documents that are public documents, do no require formal proof. They are read in evidence as public documents. The Lower Appellate Court has delved further into the matter. It has been noted that there is no evidence on record to show that the patta on the basis of which the plaintiffs' claim have been cancelled by any competent Authority. It has been recorded by the Lower Appellate Court that the defendants do not say that they have filed any application before the Collector or any other revenue Authority, seeking cancellation of the two patta. The Lower Appellate Court has said that cancellation of a patta is a matter exclusively in the domain of the Assistant Collector, First Class, under Section 198 of the U.P. Z.A. & L.R. Act. It is not in the jurisdiction of any other Authority to cancel a patta, already granted.
25. The Lower Appellate Court has held further that a patta, if not cancelled, is a valid title document in favour of the allottee. The Lower Appellate Court has held the plaintiffs to be in physical possession. It has been held also that even if the plaintiffs be held not in possession, they are entitled to relief because the defendants also have no possession over plot no.184. This crucial finding about possession is recorded by the Lower Appellate Court, in the following words:
"Plaintiffs exercise physical possession over the suit property since the date of the pattas. It is stated by the plaintiff on oath that he has his use over the suit property. On the contrary it is clarified by the defendant that he has all his use over 185. In view of these circumstances, the plaintiff is the owner in possession. Even if it is taken for granted that the plaintiff has no possession, then also plaintiff is entitled to relief because defendant has also no possession over 184."
26. Heard Mr. M.C. Tiwari, learned Counsel for the defendants (appellants) and Mr. Ramesh Singh Kushwaha, learned Counsel appearing on behalf of the plaintiffs (respondents).
27. At this stage, it is of utmost importance to point out that this Court while hearing the matter on 28th January, 2020, asked the learned Counsel appearing for the defendants about their right to resist the plaintiffs' claim, since it appears that the way the evidence figures and findings of fact by the Lower Appellate Court go, the defendants neither hold title to or possession of plot no.184. Mr. M.C. Tiwari, learned Counsel for the defendants very fairly conceded to the position that the defendants neither hold title to or possession of plot no.184, but submitted on an alternate foundation for his right to resist the plaintiffs' claim, that would be considered during the course of this judgment. Nevertheless, this Court recorded an order, which discloses the defendants' stand at the hearing before this Court, coming from Mr. M.C. Tiwari. The relevant part of the order dated 28.01.2020 is extracted below:
"Learned counsel for the appellant, Sri M.C. Tiwari has taken a stand that he has neither title or possession of plot no. 184 but at the same time, he submits that the plaintiff-respondent has not been granted patta over plot no. 184. He has trespassed into that land and constructed a thatched house. The defendant-appellant objects to the plaintiff-respondent raising constructions or a boundary wall over plot no. 184. The appellant does so in his right as a member of the Gaon Sabha."
28. Learned Counsel for the defendants, in accordance with his stand above extracted, has advanced his submissions. Mr. Tiwari has urged that even if the Lower Appellate Court, which is the last Court of fact, has not found for the defendants either in title or in possession, vis-a-vis the suit property, they are still entitled to resist the plaintiffs' claim. This submission proceeds on the basis that every member of the Gaon Sabha has a right to protect the interest of the Gaon Sabha, vis-a-vis its property, provided the same is not collusive or fraudulent. About this proxy locus of every member of the Gaon Sabha, to act on its behalf and protect its interest, distinct from the Corporate Body's right to protect its own interest in the manner prescribed by law through a duly authorized agent, learned Counsel for the defendants draws inspiration from a decision of this Court in Palakdhari vs. Deputy Director of Consolidation, Gorakhpur and others, 1992 AWC 228 All. He has called attention of the Court to paragraph 9 of the report in Palakdhari (supra), where it is held:
"9. In other words, Section 11-C of the Act is couched in a language having very wide sweep and it is to the effect that even though no objection has been filed on behalf of the Gaon Sabha at the proper stage, it is for the consolidation authorities to decide as to whether the right of the Gaon Sabha is involved even if no objection was filed by it and the land shall be directed to vest in Gaon Sabha. By implication the 'mens' or sententia legis, appears to be that any other person can file objection to protect the interest of the Gaon Sabha, provided the same is not collusive or fraudulent or to defeat its interest."
29. Mr. Tiwari says that it is in keeping with the spirit of Section 11-C of the U.P. Consolidation of Holdings Act (for short, the Act) that every member of the Gaon Sabha has locus standi to bring appropriate proceedings or defend them before any Court or Authority, where property interests of the Gaon Sabha are in peril or likely to be jeopardized. He exposits his submissions about the locus standi of every member of a Gaon Sabha by saying that the provisions of Section 11-C of the Act are not to be read in a pedantic manner, confining the sweep of an extended right in favour of every member of the Gaon Sabha to protect its interest by limiting that right to proceedings, arising out of objections under Section 9-A of the Act, alone. He submits that the provisions of Section 11-C are to be read in a purposive manner, bearing in mind the object of the Rule there and the mischief that is sought to be curtailed by it. Read that way, according to Mr. Tiwari, any member of the Gaon Sabha can always act to defend or pursue any proceeding in Court, where interests of the Gaon Sabha are likely to be jeopardized, or are in imminent peril.
30. According to learned Counsel for the defendants, the right is available, irrespective of the nature of proceeding or the forum. He argues, therefore, that since he has a right to defend the interests of the Gaon Sabha in his capacity as a member thereof, it does not matter that on concluded findings of fact, the defendants do not hold title to the suit property or a possessory title therein. He submits that he has a locus to show that the plaintiffs do not hold valid title to the suit property, passed on to them through the patta, executed in accordance with the provisions of the U.P. Z.A. & L.R. Act (for short, the Z.A. Act). He further submits that the plaintiffs not being lawful title holders of the suit property, which is a Gaon Sabha property, the defendants have a right to prevent the plaintiffs from consolidating their encroachment by erecting a boundary wall around it, or by raising further constructions thereon. To this end, the defendants are entitled to show to this Court that the plaintiffs have not been granted the patta in accordance with the provisions of the Z.A. Act. It is submitted that the Trial Court specifically held the patta to be invalid, inter alia, on the ground that the Sub-Divisional Officer had not granted permission, envisaged under the Z.A. Act, which alone infuses life into a patta granted by the Land Management Committee. He emphatically points out that the learned District Judge has not recorded any finding about non-establishment by the plaintiffs of this essential condition, relating to approval of their patta by the Sub-Divisional Officer. The learned District Judge, in fact, has not set aside that finding by any reasons assigned, which the Trial Court recorded in relation to non-approval by the Sub-Divisional Officer. The consequence, according to learned Counsel for the defendants, is that the decree passed by the Lower Appellate Court is vitiated by a manifest error of law, inasmuch as there is no reversal of that finding by the Trial Court, about execution of a patta contrary to the provisions of the Z.A. Act. He adds to this submission of his by saying that the absence of permission by the Sub-Divisional Officer to the resolution of the Land Management Committee to grant the twin patta in favour of the plaintiffs, is a matter that goes to root of the plaintiffs' title.
31. Learned Counsel appearing for the plaintiffs, Mr. Ramesh Singh Kushwaha has refuted the submissions advanced on behalf of the defendants. Mr. Kushwaha urges that the substantial question of law, formulated at the time of admission of this Appeal to hearing, is not at all involved. He submits that this question about the validity of the patta and a fortiori the validity of the appellate judgment and decree, is not open to challenge at all by the defendants, who are utter strangers to the suit property. They have no kind of right, interest or even a privity in or to the suit property, entitling them to question the plaintiffs' claim. Dilating on his submissions, learned Counsel for the plaintiffs submits that admittedly the defendants do not claim title to or possession over the suit property. They found their right to object on their status as members of the Gaon Sabha. He submits that the proposition is too well settled to brook doubt that individual members of the Gaon Sabha, cannot take up cudgels on its behalf, unless authorized by that Body Corporate in the manner prescribed. Reliance is placed in support of the said contention on a decision of this Court in Sita Ram vs. Deputy Director of Consolidation and others, 1981 SCC OnLine All 797. The question in the said case was whether a private person, a member of the Gaon Sabha, could file objections under Section 9-A(2) of the Act, on behalf of the Gaon Sabha, seeking to expunge the name of a person recorded as a bhumidhar, alleging some illegality about it, without a resolution passed by the Gaon Sabha in favour of that private person under Section 128 of the Gaon Sabha Manual. He has drawn the attention of this Court to paragraphs 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 of the report in Sita Ram (supra):
"10. It is, thus, to be seen whether the objection filed by the opposite party No. 3 Sheo Prasad on behalf of the Gaon Sabha was a valid and competent objection under section 9A(2) of the Act and the name of the petitioner, who was recorded as Bhumidhar in the basic year Khatauni could be expunged. In this connection reference to para 128 of the Gaon Sabha Manual would be relevant as it prescribes the manner for the commencement of any suit or proceedings or for filing defence therein. In Gram Samaj v. Deputy Director of Consolidation, (1969 Rev Dec 356) Hon'ble D.S. Mathur, J. (as he then was) considering the aforesaid provision observed that:
"This paragraph (128 of the Gaon Sabha Manual) having been framed under the rule making power conferred on the State Government shall have the force of law."
11. Further considering the question whether the said provision is mandatory or merely directory, it was held in the aforesaid case that:
"When paragraph 128 is complete, reasonable and equitable, and lays down how the Land Management Committee can sue or defend, it must be held to be mandatory."
12. Regarding action to be taken on behalf of the Gaon Sabha in emergent matters, the Hon'ble Judge observed that--
"Paragraph 128 is also a complete provision. The State realized that occasions may arise where it may become necessary for the Chairman to take action before the Land Management Committee can meet to discuss the matter. Consequently it was provided in paragraph 128 that in urgent cases the Chairman can take action on his own and seek ratification of the Land Management Committee by including it in the agenda of the next ensuing meeting. The underlying purpose evidently is that eventually the decision of the Land Management Committee shall prevail. If the Land Management Committee does not approve of the action taken, such action shall become ineffective and a suit, if already instituted, shall fail."
13. The Board of Revenue also in two decisions, Kamla Devi v. Gaon Sabha, 1970 Rev Dec 195 and Sardar Khan v. Gaon Sabha, 1975 Rev Dec 287 held that the provisions of para 128 of the Gaon Sabha Manual are mandatory and any act done in contravention of the aforesaid provision would be unauthorised and illegal.
14. The learned counsel for the Gaon Sabha Sri K.B. Garg, however, referred to a single Judge decision of this Court, Rameshwar Sahai v. Dy. Director of Consolidation, U.P., Lucknow, 1973 All WR (HC) 238, wherein Hon'ble R.B. Misra, J. (as he then was) considered the question whether an objection under section 9 of the U.P. Consolidation of Holdings Act could be filed by an individual on behalf of the Gaon Sabha or not and observed that:
"It was next contended that the contesting respondents were not interested persons within the meaning of section 9 of the U.P. Consolidation of Holding Act and so the objection filed by them could not be taken to be an objection under section 9 of the U.P. Consolidation of Holdings Act. In my opinion the phrase ''interested person' is wide enough to include the contesting respondent as the property in dispute being the property of the Gaon Sabha, every adult member of the village was entitled to raise objection in respect of the Gaon Sabha property especially when the contesting respondents came with the allegations that the Gaon Sabha had colluded with the petitioner in the allotment of land or the creation of the lease in their favour."
15. Sri K.B. Garg argued that since in the present case lease in respect of the land in question was granted by the Gaon Sabha to the petitioner, who is in military service at the instance of the Collector of the district, and, therefore, the Gaon Sabha took no interest in filing the objection and the objection filed by the opposite party No. 3 who is an adult resident of the village, would be a valid objection under section 9A(2) of the Act on behalf of the Gaon Sabha and thus the Deputy Director of Consolidation has not erred in ordering the land in dispute to be recorded in the name of the Gaon Sabha, which is a tank land.
16. Sri K.B. Garg in support of his argument, further referred to an unreported decision in Civil Misc. Writ No. 4642 of 1969 Bhabhuti Singh v. D.D.C., decided on 29-3-1972 wherein Hon'ble R.B. Misra, J. (as he then was) had held that:
"The expression ''any person interested' in section 9(2) of the U.P. Consolidation of Holdings Act is wide enough to include the petitioner who had in para 7 of his objection (filed as Annexure A to the petition) stated that the continuance of the name of the contesting respondents causes injustice and prejudice to all the residents of the village and the Gaon Sabha. The expression ''all the residents of the village' certainly included the petitioners."
17. The petitioner in the said case had alleged that he was also using the tank and the pathway and so was the case with other residents of the village as well.
18. The learned counsel for the petitioner Sri R.N. Singh, in reply, stated that against the aforesaid decision Special Appeal No. 247 of 1972, Ambika Singh v. Bhibhuti Singh, was filed and decided on 11-1-1973. The Division Bench held that:--
"Under rule 110-A of the U.P. Zamindari Abolition Rules any member of the Committee authorised by the Chairman of the Land Management Committee in writing, or in the absence of such authorisation, any member authorised by the Committee under a resolution to this effect, is entitled to sign any correspondence, contract or document, and to do all other things necessary for the conduct of suits and proceedings. Under rule 128 of the Gaon Samaj Manual the conduct of Gaon Samaj Litigation shall not depend upon the individual discretion of the Chairman of the Land Management Committee, but shall be a matter of the resolution of the Land Management Committee as a whole. In urgent cases, however, the chairman can take action on his own and seek ratification of the Land Management Committee afterwards. This rule when read with rule 129 make it clear that only a member of the Land Management Committee can be authorised either by the Chairman or by a resolution of the Committee.
19. Thus it is clear that the Land Management Committee can authorise a member under rule 110-A of the Zamindari Abolition Rules or under rule 128 of the Gaon Samaj Manual. In urgent cases the Land Management Committee can afterwards ratify the action of the chairman. Thus the action of Bhabhuti Singh in filing the objection was justified if he was a member duly authorised by the Land Management Committee or the Chairman. The Settlement Consolidation had, in our opinion, rightly remanded the case for determination of this question.
20. We, therefore, dismiss the appeal subject to the observation that in case it is found that Bhabhuti Singh was not a member duly authorised by the Land Management Committee his objection would not be maintainable on the ground that he was himself an interested person under section 9(2) of the Consolidation of Holdings Act"
21. Thus the view taken by the Hon'ble Single Judge in Rameshwar Sahai (1973 All WR (HC) 238) (supra) and in Bhabhuti Singh (supra) stands overruled by the Division Bench in the aforesaid Special Appeal of Ambika Singh (supra) and I am also of the same view as taken by the Division Bench, quoted above.
22. It is well settled that no person can plead for another without being authorised by him in that behalf. It is a basic principle of law that a person cannot initiate a legal proceedings on behalf of or for the benefit of another without any authority from that other. The provisions already referred to above provide the procedure and the manner in which suits or proceedings can be filed and conducted on behalf of the Gaon Sabha and the same has got to be done in that particular manner.
23. In Nazir Ahmad v. King Emperor, AIR 1936 PC 253 (2) at p. 257 the Privy Council held that;
"Where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden."
24. The Supreme Court in State of Gujarat v. Shanti Lal, (1969) 1 SCC 509: AIR 1969 SC 634 at p. 654 observed that "It is a settled rule of interpretation of statues that when power is given under a statute to do a certain thing in a certain way, the thing must be done in that way or not at all."
25. The same view was taken by Supreme Court in another decision in Ramchandra v. Govind, (1975) 1 SCC 559: AIR 1975 SC 915. The said cardinal principle was enunciated more than a century ago in Taylor v. Taylor, (1875) 1 Ch. D. 426 and it has been consistently followed. It is thus well settled that where either under the Act or in the Rules, a procedure for the performance of a particular act has been prescribed, the same has got to be done in that manner or not at all.
26. The Gaon Sabha is a body corporate and the Land Management Committee is an executive body of the Gaon Sabha charged with the functions to supervise and protect the property vested in the Gaon Sabha and it has to function in the manner sanctioned under law. The provisions contained in para 128 of the Gaon Sabha Manual and Rule 110A of the U.P. Zamindari Abolition and Land Reforms Rules prescribed the manner in which the litigation is to be conducted by and on behalf of the Gaon Sabha. These provisions, which are mandatory, would govern the litigation to be conducted on behalf of the Gaon Sabha in all proceedings under the provisions of the U.P. Consolidation of Holdings Act.
27. Thus, in view of the above I am of the opinion that the objection filed by opposite party No. 3 Sheo Prasad cannot be treated to be a valid objection on behalf of the Gaon Sabha under section 9A(2) of the U.P. Consolidation of Holdings Act, on the ground that he was himself an interested person under section 9A(2) of the Act, as admittedly the Land Management Committee of the Gaon Sabha had not passed any resolution taking decision to file objection, appeal and revision nor opposite party No. 3 was authorised to file those on behalf of the Gaon Sabha. It is also not disputed that the action of opposite party No. 3, in filing objections, appeal and revision on behalf of the Gaon Sabha, was not ratified by the Land Management Committee in its meetings. Thus, the objections, appeal and revision filed by opposite party No. 3 Sheo Prasad on behalf of the Gaon Sabha were wholly incompetent and opposite parties Nos. 1 and 2 acted illegally and without jurisdiction in passing the impugned orders."
32. It is further urged by the learned Counsel for the plaintiffs that allotment of land in the plaintiffs' favour has to be construed according to the apparent tenor of the Land Management Committee's Resolution and the patta executed in their favour, of which certified copies have been brought on record. He urges that the patta being granted by the Land Management Committee of the Gaon Sabha in exercise of their statutory powers under Section 157 of the Z.A. Act, read with Rule 115-L of the U.P. Z.A. & L.R. Rules, the presumption as to regularity relating to official acts attaches. If at all the defendants had any locus, they would have brought on record evidence to show that there were some essential conditions unfulfilled vitiating the patta, like non-grant of permission by the Sub-Divisional Officer, which they allege. He also submits that the defendants do not say that they had even applied for cancellation of the patta, granted in favour of the plaintiffs, before the Authority competent in the matter. The patta would, therefore, be presumed to be valid unless shown by the defendants by evidence to be initially invalid or subsequently cancelled. No such evidence has been led on behalf of the defendants. Again, learned Counsel for the plaintiffs submits that this question about non-discharge of burden is subject to the big hurdle of a valid locus standi that the defendants have not been able to cross. In support of this limb of his submission about the binding effect of an order of allotment passed under the Z.A. Act granting patta unless cancelled by the competent Authority, learned Counsel for the plaintiffs has placed reliance on a decision of this Court in Hira Teli vs. Shripati Rai and others, 1981 SCC OnLine All 512. He has called attention of this Court to the report in Hira Teli (supra), where it is held:
"20. It is not in dispute that the order of allotment in favour of the plaintiff made on March 19, 1971 has not been cancelled by the appropriate authority, namely, the Assistant Collector in charge of the Sub-Division. The rights which the plaintiff acquired in the land in dispute under this allotment order had to be recognised. The lower appellate Court was in error in taking the view that the order was invalid for it had been made in favour of a person who was not a resident of the circle of the Gaon Sabha concerned. The plaintiff was entitled to a decree for possession over the suit land an account of the order of allotment in his favour dated March 19, 1971. The Courts below were in error in refusing that relief to him. Their decree cannot be upheld. ......."
33. Mr. Kushwaha, in support of that limb of his stand where he says that the substantial question of law formulated is not at all involved, submits that the Lower Appellate Court has clearly found for the plaintiffs on double count - one about their title to the suit property and the other about their possession over it. The Lower Appellate Court has clearly recorded a finding of fact that the plaintiffs are in possession of the suit property. At the same time, learned Counsel for the plaintiffs emphasized that the defendants have neither been found to hold title or possession. Thus, assuming for the sake of argument, that there is some flaw in the passage of title to the plaintiffs, on the basis of their patta involved, because of the alleged non-approval by the Sub-Divisional Officer, the plaintiffs are still entitled to a decree protecting their possession against third parties and strangers, like the defendants, based on their possession alone. Learned Counsel for the plaintiffs, therefore, strongly urges that on account of their possession being found established by the last Court of fact with the defendants not being found either to hold title or possession, the substantial question of law framed is not involved or required to be answered.
34. It is true, going by the findings of the Lower Appellate Court on facts and the concession made before this Court by Mr. Tiwari, that the defendants do not claim title to or possession of plot no.184, that is to say, the suit property. Whatever interest they had in the suit property was taken away during consolidation proceedings with adjustment of their rights made by the Consolidation Authorities, elsewhere. The stand of Mr. Tiwari recorded by this Court in the order dated 28.01.2020, where he says that the defendants seek to prevent the plaintiffs from raising constructions or a boundary wall over the suit property in their rights as members of the Gaon Sabha lends support to the findings recorded by the Lower Appellate Court that the defendants have neither title or possession over the suit property. So far as the plaintiffs are concerned, the Lower Appellate Court has recorded a categorical finding that the plaintiffs are in physical possession of the suit property since the date of the patta, whereas the defendants are in possession and use of plot no.185. This categorical finding is enough to support an action to protect possession based on settled possession which is regarded in law as good title, or what is sometimes called possessory title, against every other person, except the true owner. A person in settled possession of property, even a trespasser, is entitled to protect his possession against intrusion by any third party, but the true owner or one who holds a real, higher or better title.
35. What the defendants seek to do is to resist the plaintiffs' claim to injunct them from interfering with the plaintiffs' possession by pleading a jus tertii. The jus tertii they claim is of the Gaon Sabha which they seek to assert on its behalf. In order to substantiate this kind of a jus tertii, the defendants have fallen back on the provisions of Section 11-C of the Act. Section 11-C reads:
"11C. In the course of hearing of an objection under Section 9-A or an appeal under Section 11, or in proceedings under Section 48, the Consolidation Officer, the Settlement Officer (Consolidation) or the Director of Consolidation, as the case may be, may direct that any land which vests in the State Government or the Gaon Sabha or any other local body or authority may be recorded in its name, even though no objection, appeal or revision has been filed by such Government, Gaon Sabha, body or authority."
36. A perusal of the aforesaid provision shows that Section 11-C of the Act has no relevance, or the slightest application, in the context of a private dispute between two parties, suited before a Court of civil jurisdiction. In a case where one party seeks to protect possession on the ground of its long continuance against another, who has no title or possession by asking the Court to injunct the intruder, Section 11-C appears to be absolutely irrelevant. Section 11-C is a special provision that operates in a case where consolidation proceedings have been notified under the Act and a Consolidation Authority is siezed of title objections under Section 9-A. The purpose of Section 11-C appears to be to protect Gaon Sabha land or State land from being declared in title proceedings under the Act, in favour of another. The provision there has been engrafted because a decision about title, recorded by Consolidation Authorities has finality attached to it under Section 49. State or Gaon Sabha land or the land of a Local Body or Authority may not be lost due to inaction on their part, Section 11-C obliges the Consolidation Authorities to ensure that even though no objection, appeal or revision has been filed in title proceedings under the Act by the Government, Gaon Sabha, Local Body or Authority, their lands are restored to their khata. It is in the context of the aforesaid provision that this Court in Palakdhari (supra) acknowledged a locus standi in a private person to represent and protect the Gaon Sabha's interest. The locus was extended because the Authorities deciding title proceedings are obliged by the Act to safeguard the interest of the Gaon Sabha and the other named entities in Section 11-C.
37. The special principles as to locus of a private person, to act on behalf of the Gaon Sabha, in the context of title proceedings under Section 9-A of the Act, founded on the provisions of Section 11-C thereof, cannot be extended to plead a jus tertii in the Gaon Sabha by a private person, who is party to a suit that seeks to restrain trespass by one who is in settled possession of an immovable property/ land.
38. The law generally about the right of a person in settled possession of an immovable property to protect it against trespass by another, is well settled and oft restated by high judicial Authority. In this connection, a relatively recent decision of the Supreme Court in Ram Daan (dead) through LRs vs. Urban Improvement Trust, (2014) 8 SCC 902 may be referred to with immense profit. In Ram Daan (supra), their Lordships have held in paragraphs 11 and 12 of the report thus:
"11. It is settled position of law laid down by the Privy Council in Perry v. Clissold [1907 AC 73 (PC)]: (AC p. 79) "It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is forever extinguished, and the possessory owner acquires an absolute title."
The above statement was quoted with the approval by this Court in Nair Service Society Ltd. v. K.C. Alexander [AIR 1968 SC 1165]. Their Lordships at para 22 emphatically stated: (AIR p. 1175) "22. The cases of the Judicial Committee are not binding on us but we approve of the dictum in Perry v. Clissold [1907 AC 73 (PC)]."
12. The question, therefore, is that in view of the concurrent finding recorded by all the three courts below that the appellant has been in possession of the property (at least from the year 1959) whether the injunction as prayed for by the appellant can be denied? As can be seen from the judgment [1907 AC 73 (PC)] of the Privy Council referred to supra, a person such as the appellant in possession of land has a perfectly good title against the entire world except the rightful owner. However, the rightful owner must assert his title by the process of law within the period prescribed by the statutes of limitation applicable to the case."
39. Here, what is not in dispute is that the defendants do not hold title or possession. So far as the plaintiffs are concerned, they have been held to be in possession by the Lower Appellate Court. Even if their possession is traceable to a defective title based on the patta owing to its non-approval by the Sub-Divisional Officer as claimed, though this Court does not say so that it is without approval, their possession is one held under colour of title on the basis of a Gaon Sabha patta. They are not rank trespassers. Even if they were rank trespassers but in settled possession, the defendants who have neither title or possession, have no business to go about interfering with the plaintiffs' possession over the suit property by asking them not to construct a boundary wall around it or raise any constructions. The Lower Appellate Court, thus, on the ground of possession traceable to the patta found for the plaintiffs, if not on the basis of title, has rightly decreed the Suit against the defendants. The substantial question of law formulated at the time of admission of this Appeal is really not involved. The defendants have not, during the course of hearing, brought to the notice of the Court any other substantial question of law requiring formulation. This Court too has not noticed any other substantial question of law that may be required to be formulated and the parties heard on it. After hearing the plaintiffs, who are respondents to this Appeal, at length, this Court finds that this Appeal deserves to be determined under sub-Section (5) of Section 100 CPC for the reasons hereinbefore elaborately indicated.
40. This Appeal has remained pending for the past 32 years and during this time, the plaintiffs have suffered a stay of operation of the decree passed in their favour by the Lower Appellate Court. During this long period of time, the younger of the two plaintiffs has passed away. Now, the plaintiffs have shown that no substantial question of law is really involved. They would, therefore, be entitled to their costs from the defendants.
41. In the result, this Appeal fails and is dismissed. The plaintiffs shall be entitled to receive in costs a sum of Rs.10,000/- from the defendants.
42. Let the Lower Court Record be sent down at once, along with a copy of this judgment to the Trial Court.
Order Date:- 24.7.2020 Anoop