Heard Sri N.C.Rajvanshi, learned counsel for the petitioner and learned standing counsel for the respondents.
Petitioners are claiming right over a pond through a suit instituted by them against respondent State of U.P. through Collector Allahabad and Gaon Sabha of Village Tikari Tehsil Handia, District Allahabad (O.S. no.688 of 2002). Along with plaint of the suit application for temporary injunction was filed which was rejected by the trial Court/Civil Judge (S.D.) Allahabad on 22.12.2003. Against the said order petitioners filed Misc. Civil appeal no.214 of 2003 which was dismissed by A.D.J. Court no.13 Allahabad on 6.2.2006, hence this writ petition.
The plot number of the property (pond) in dispute is 325 (old no.172) area 0.856 hectare. On inquiry from Court learned counsel for the petitioners categorically stated that since before Zamindri abolition till date the property in dispute was a pond. The case of the petitioners was that their ancestors took the pond in dispute from the then Zamindar on 5.1.1940 through registered Ijajatnama (permission deed) through which petitioners ancestors were permitted to dig pond, plant trees etc. and thereafter petitioners ancestors (Mahaveer Singh, Ram Kripal Singh and Ram Kishore) dug pond in the said plot and planted trees. It was further stated that Ram Kishore executed registered gift deed in respect of his share in the property in dispute in favour of Mahavir Singh on 24.6.1955.
Defendants denied the plaint allegations and asserted that pond in dispute vested in State/Gaon Sabha under Section 6 of U.P.Z.A.L.R. Act on Zamindari abolition. Plaintiffs themselves filed copy of Khatauni in which property in dispute was shown as pond but the names of petitioners or their ancestors were not mentioned therein. If in the revenue record the plot is shown as pond and no ones name is mentioned then it means that it is State/Gaon Sabha property. If the allegation of the petitioners that Zamindar gave the land to their ancestors and their ancestors dug the pond in the land in dispute before Zamindari abolition had been correct then immediately after Zamindari abolition the names of their ancestors should have been entered as tenure holders (Seerdars). In fact names of plaintiffs petitioners or their ancestors were never recorded in the revenue record neither before zamindari abolition nor after zamindari abolition. Learned counsel for the petitioners has argued that during consolidation petitioners could not raise the objection as the land was pond hence beyond the purview of the jurisdiction of the consolidation courts. Only in rare cases a pond can belong to a private person and that is when he digs the pond in the land of which he is tenure holder. In respect of such property, in the revenue record the name of tenure holder is bound to be mentioned and only in the last column of revenue record which relates to nature of the land pond may have been mentioned. The assertion that since the date of Ijajatnama petitioners ancestors were in possession can not be believed as their names were never entered in the revenue record.
In the Ijajatnama the main thing which was stated was that it was being granted for planting trees; permission to dig pond was secondary. It was also mentioned that in the Government record (revenue record) the persons in whose favour Ijajatnama was executed should get their names entered as Kashtkar and as Bagdar (cultivators grove holders). Annexure 9 and 10 is copy of Khatauni 1359 fasli obtained in August 1959 which falls in 1367 fasli. It has not been explained that why currently obtained copy was not filed and why in the year 1959 A.D. copies of revenue records from 1359 to 1367 fasli were not obtained. Learned counsel for the petitioner on inquiry from Court has categorically stated that since zamindari abolition (first day of 1360 fasli) names of the petitioners were not there in the revenue records. No reliance can therefore be placed upon the aforesaid said certified copy showing the names of petitioners' ancestors under zimn-10. Learned counsel for the petitioner has cited following authorities:
1. Madan Lal Vs. Board of Revenue All C.J. 1980, page 587,
2. Gaon Sabha Vs. Jagannath RD, 1984, page 193,
3. Nirhijhin Kurmi and others Vs. Gram Samaj All C.J. 1980 page 120,
4. Iqbal Ahmad and others Vs. State of U.P. and others Civil Misc. Writ Petition no.38910 of 2003 decided on 6.3.2006 by High Court Allahabad.
None of the authorities is applicable to the facts of the instant case. Right from 1 July 1952 (first day of 1360 fasli till date) the property is recorded as pond in the revenue record and names of petitioners are not there. Consolidation had also been taken place before filing of the suit in which no objection was raised. Accordingly, I do not find any error in the impugned orders.
Writ petition is dismissed.
Order Date :- 9.10.2012 vkg