This is a defendant's writ petition in a suit filed by the respondent-plaintiffs for a declaration that they are the tenure holders of the land in dispute and the defendant-petitioner having failed to prove his possession on any count, the plaintiffs were entitled for the declaration as sought for. This dispute relates to agricultural holdings, the succession and claim whereof is governed by the provisions of the U.P. Z.A. & L.R. Act, 1950 and the rules framed thereunder read-with the allied laws.
The respondents 3 to 9 fall under the same family pedigree which is quoted hereinbelow:-
The dispute relates to the claim by the defendant-petitioner acquiring rights through a sale deed from Smt. Phulesara who died issue-less on 28th August, 1966. The nature of the tenure as then existed was sirdari land which was a tenure with non-transferable rights. The legislature however introduced provisions under the Act for converting this nature of tenure to a bhumidhari which is a Class-1 tenure upon the deposit of twenty times land revenue to acquire full rights of tenancy so as to enable the tenure holder to dispose of the property.
Smt. Phulesara executed sale deeds in favour of the petitioner-defendant on 10.8.1966 in respect of Plot Nos. 65/2, 65/3, 112/2 and 113/3. The defendant-petitioner, apart from the sale deeds claimed to be in possession of the said plots along with Plot No. 112/3, from the time of his father Baldeo prior to the abolition of zamindari and accordingly also claimed adverse possession over the said plots. The defendant-petitioner got his name recorded in Class -9 of the Land Records Manual, which is the column of a trespasser. This entry of a trespasser according to the defendant-petitioner was reflected in the revenue records of 1371 fasli to 1377 fasli, which corresponds to 1964 AD to 1972 AD. This entry is for the period during which the sale deed was executed.
The father of the respondents 3 to 5 Laxmi Dubey and the respondent No. 9 Omkar Dubey joined as plaintiffs in original suit No. 426 of 1972 arraying the petitioner as defendant No. 1 and the other respondents as defendants second set, praying for a declaration that the plaintiffs are co-sirdars of the plots in dispute under the pedigree referred to hereinabove. The name of the defendant no. 1 on the basis of the alleged sale deed which has been entered in the revenue record, should be expunged and the plaintiffs should be declared to be the sirdars. In the alternative if their possession is not found, they may be put in possession thereof. A copy of the plaint is Annexure -1 to the counter affidavit dated 17.1.2006 filed by the respondent. The disputed land shown therein are plot Nos. 65/2, 112/2 and 113/2 only. Later on the plaintiffs came to know of the alleged entry of Class-9 in favour of the petitioner as a trespasser in relation to some additional land as well, apart from the land referred to in the plaint of the first suit, as such they instituted another suit in the year 1974. A copy of the plaint of the second suit is Annexure 2 to the said counter affidavit where the details of the holdings in dispute were entailed, including the additional plots beyond the sale deed, and which also discloses the undisputed family pedigree reproduced hereinabove.
Both suits were consolidated and the suit relating to Plot No. 65/2 and Plot No. 113/2 was decreed whereas the suit relating to Plot No. 112/2 was dismissed by the trial court on 30.8.1974. A copy of the said judgment is annexure 1 to the writ petition. The trial court held that so far as the land under the sale deed is concerned, Smt. Phulesara could not have executed the sale deed as the plaintiffs and the defendants second set had already a declaration of their shares in a suit of partition under Section 176 decided on 6.8.1974 and secondly the defendant-petitioner could not have acquired sirdari rights over the said plots. However, the trial court dismissed the suit with regard to Plot No. 112/2 holding that Form No. P.A.-10, indicating possession of the petitioner-defendant as a trespasser was available hence the suit for said plot was dismissed.
Appeals were filed against the said judgment and decree and the same was allowed on 23.3.1977 on the ground that additional evidence had been inducted by the trial court for which no opportunity was given to the parties and as such the judgment and decree of the trial court was vitiated.
The matter was accordingly remanded to the trial court to decide the matter again. The said judgment is on record along with the counter affidavit of Opposite Party No. 9 Omkar Dubey dated 21.12.2005.
After remand the entire suit was decreed on 27th July, 1982. The petitioner filed two appeals against the said judgment and decree of the trial court which was allowed on 12th April, 1990 and the matter was again remanded to the trial court. Against this remand order the respondent-plaintiffs went up in second appeal before the Board of Revenue and the Board allowed the second appeal on 2nd June, 2003 on the ground that the first appellate court which had passed an order of reversal was absolutely slip shod without containing any reasons. The matter therefore went before the first appellate court once again.
This time the judgment and decree of the trial court dated 27th July, 1982 was affirmed by the first appellate court on 5.7.2005 holding that the defendant had been unable to establish his adverse possession and even otherwise Smt. Phulesara had no authority to dispose of her share of the land as it was a sirdari tenure for which she had not acquired any order from the competent authority before transfer. It was further held that to the contrary Smt. Phulesara and the petitioner-defendant both had contested the matter relating to acquisition of full tenancy rights for transfer which had been decided adverse to them upto the Board of Revenue vide judgment dated 12.10.1971. It was further found that the said judgment had become final and once it was held that the sale deeds were in contravention of the provisions of the Act having been executed without any order of the competent authority as required under the then existing provisions of Section 134 to 137 of the 1950 Act, they were void. Reference can be had to the provisions of Sections 166 and 167 of the 1950 Act for the said purpose.
The petitioner-defendant preferred two second appeals which have been dismissed by the impugned judgment dated 14.9.2005. This petition accordingly questions the correctness of the orders of the courts below on the ground that the Board of Revenue failed to frame any substantial question of law as required under Section 100 C.P.C. and the summary dismissal of the second appeal was unwarranted on the facts that arose after pleadings were exchanged between the parties.
The contention is that the petitioner-defendant had acquired full right, title and interest by virtue of the sale deed as also by way of adverse possession, and both these questions being substantial questions of law, the Board has committed a manifest error by dismissing the second appeal. It was further contended by the learned counsel for the petitioner Sri S.P. Giri and Sri R.P. Dubey that the sale deed was valid as the deposit of revenue as required under the provisions of sections referred to hereinabove had been made and therefore Smt. Phulesara had full right to execute the sale deed which she did on 10.8.1966. The date of deposit of 20 times revenue was the relevant factor and they have relied on the decision in the case of Bindha Prasad & others Vs. Bhan Datt (dead) by LRS., reported in 2008 (2) SCC 537 to support their submissions. The said judgment in turn refers to another judgment of the apex court in the case of Deo Nandan Vs. Ram Saran, reported in 2000 (3) SCC 440. For the purpose of pleadings of adverse possession, they contend that the petitioner-defendant was in possession since the abolition of zamindari and prior to that his father was in cultivatory possession which has to be tacked along-with the possession of the petitioner for counting the period of adverse possession. They further contend that even if the sale deed is void then the possession of the petitioner becomes adverse to the true owner as the petitioner remained in possession under his own claim.
Learned counsel for the contesting respondents Sri B.L. Verma submits that the claim of adverse possession could not be proved by the petitioner-defendant and to the contrary the plaintiffs have been able to prove their right, title and interest over the land. He relies on the Full Bench decision of this Court in the case of Bansidhar Vs. Smt. Dhirajdhari and others, reported in 1971 RD 371 to contend that there is no order of the competent authority in favour of Smt. Phulesara to convert her tenancy rights and in the absence of any such order she could not have executed the sale deed in favour of the petitioner. To the contrary all the courts below have found that the application moved by Smt. Phulesara for declaring her to be Bhumidar with transferable rights had been rejected and the appeal filed against the same and the second appeal before the Board of Revenue had already been dismissed on 22.3.1968 and 12.10.1971 respectively as a result whereof the sirdari character of the land was retained and the sale deeds were void. He also contends that Phulesara or any other co-sirdar of the land in dispute had no authority to co-opt the petitioner as a sirdar. On the issue of adverse possession he submits that there was no evidence of the possession of the petitioner or his father prior to the abolition of zamindari and the entry of a trespasser was only for a period of about six years which appears to be on the basis of a sale deed as the entries of possession are of that period. The courts below were therefore right in rejecting the claim of adverse possession of the petitioner as it was not found either on any cogent oral evidence or any affirmative documentary evidence.
He further submits that during the period of pendency of the writ petition the petitioner tried to interfere with the possession of the answering respondents and this Court has taken care of by calling upon the police and the revenue authorities to give an explanation for having interfered with the same. The petitioner having no right, title or interest over the land in dispute, the writ petition deserves to be dismissed. He contends that on the basis of the findings of fact recorded by the trial court and the first appellate court, no substantial question of law did arise and therefore the Board has not committed any error in dismissing the second appeal summarily.
I have heard learned counsel for Gaon Sabha, the learned Standing Counsel as well as the learned counsel for the other defendants respondents arrayed herein.
Having heard learned counsel for the parties, it would be appropriate to clarify that the provisions of Section 100 C.P.C. do apply and the Board of Revenue which is the authority competent to hear a second appeal in revenue matters as provided for under the Act, is obliged to frame substantial questions of law before it proceeds to decide a second appeal. In the instant case the Board has clearly indicated that no substantial question of law was pointed out on behalf of the petitioner-appellant nor do they arise so as to warrant framing of the same and accordingly dismissed the second appeal.
In the opinion of the Court if the Board is of the view that no substantial questions of law arose then the Board is certainly entitled to dismiss the appeal summarily. The issue therefore is as to whether any substantial question of law did arise or not. In my opinion, and in view of the conclusions drawn hereinafter no substantial question of law arose, as all questions of law had been determined which were mixed questions of law and fact by the trial court and the first appellate court. The Board of Revenue did not commit any error by arriving at the conclusion that there was no substantial question of law involved, inasmuch as, in my opinion as well, on facts found the petitioner defendant could not successfully assail the judgements and decrees of the courts below and accordingly in the absence of any substantial question of law, the Board has not committed any error in dismissing the second appeal Coming to the merits of the claim of the petitioner the first issue raised by the plaintiffs was that Smt. Phulesara had no right to transfer the land in dispute as she had not acquired a Bhumidhari Sanad, and the very deposit of the amount as required under the provisions of Sections 134 and 137 of the Act would by itself not be sufficient to extend any such benefit. Not only this, the said issue stands finalized by the order of the Board of Revenue dated 12.10.1971 which was never challenged by any of the parties and therefore the said issue cannot be raised and clearly stares on the face of the defendant-petitioner as well as the respondent nos. 6 to 8 who were trying to support the same. In my opinion, learned counsel for the contesting respondents is absolutely right, inasmuch as, the Full Bench decision of our court in the case of Banshidhar (supra) has clearly held that for the purpose of conferring such a benefit there has to be an order passed by the competent authority whereafter the deposit has to be made. Once the deposit has been made then it shall relate back even if the formal certificate or sanad is issued at a later point of time. To put it differently, the issuance of a certificate or Sanad under the aforesaid provisions is only a formality if the order has been passed by the competent authority and the deposit has been made. In such a contingency the date of issuance of the certificate would relate back to the date of deposit. The Full Bench clarified the said issue in matters that had arisen where sale deeds had taken place after the deposit but before the issuance of a certificate (sanad). This law stands settled and continues to hold the field even till today.
The judgments of the apex court referred to hereinabove have also taken notice of the said fact. The judgment in the case of Deo Nandan (supra) has referred to the aforesaid full bench decision and has also extensively quoted provisions of Sections 134 to 137, hence the same are not being reproduced here under. It was held in the case of Deo Nandan (supra) that the date of deposit is the date which removes all doubts of uncertainty and that would be the appropriate construction of the language used in the provisions. In paragraph 9 of the said decision it has been clarified that the two subsequent decisions of the Allahabad High Court in case of Mobin Khan Vs. Chunnu Khan, reported in 1981 ALJ 402 and in the case of Raghunandan Singh Vs. Yashwant Singh, 1978 ALJ 435 run counter to the full bench decision. However, the following lines of the judgment are relevant for the present purpose:-
The underlying intention of the legislature, therefore, clearly is that as and when the said application is accepted and order is passed under Section 137 it must relate back to the date when the application was filed."
Thus this judgment goes a step ahead of the full bench decision to hold that if the deposit has been made then the date on which the application is accepted and an order is passed under Section 137, would relate back to the date when the application was filed. However, the judgment of the full bench so far as the acceptance of deposit and passing of the order is concerned has been upheld. The decision relied upon by the learned counsel for the petitioner in the case of Bindha Prasad (supra) relies on the aforesaid decision and reiterates the same position.
Accordingly, an order has to be passed by the competent authority as required under the provisions of Section 134 and Section 137 of the Act.
Applying the aforesaid principles in the instant case Smt. Phulesara moved an application along-with her deposit but her application came to be rejected and the appeal and the second appeal filed against the same were admittedly dismissed on 22.3.1968 and 12.10.1971 to which the present petitioner was also a party. Accordingly, the said claim of the petitioner on the basis of the sale deed has been rightly rejected by the trial court and the appellate court and no substantial question of law arose before the Board to delve into the same. There is therefore a positive order passed against Phulesara and the petitioner refusing to convert the land into Bhumidhari as on the date of the alleged sale.
The second issue is relating to the defence of the petitioner who throughout raised the alternative plea of acquiring rights on the basis of a sale deed and of adverse possession from prior to the abolition of zamindari. The trial court and the appellate court have recorded clear findings to that effect and therefore it would be appropriate to refer to the decision of the trial court which has extensively considered the said issue. The trial court held that the defendant has entries of trespasser obtained between 1371 fasli to 1377 fasli which was obviously during the period when the sale deed had been executed by Phulesara. Phulesara is said to have died immediately after the execution of the sale deed on 28.8.1966. The trial court came to the conclusion that it appears that the entries were got made only on the basis of the said sale deed. The trial court further found that such an entry for a trespasser has not been made in accordance with the provisions of the Land Records Manual. It has further been held that Form No. P.A. 10 was not in accordance with the rules framed and as a matter of fact there was no documentary evidence prior to 1371 fasli to conclude that the petitioner was in possession.
Learned counsel for the petitioner were in vain to establish anything to the contrary on the basis of the material that was on record. There is no indication of any claim of adverse possession of the petitioner established either on the basis of facts alleged or the evidence adduced prior to 1371 fasli. This corresponds to the year 1964. The suit was filed in 1972 and therefore even if he had a claim of possession that was less than 12 years. Not only this, the trial court examined the statement of the petitioner where he said that he was in possession for the past 15 or 16 years. This statement was clearly contrary to the theory of adverse possession as the petitioner failed to prove any possession of his father Baldeo either prior to abolition of zamindari or even subsequently. In such a situation, the tacking of any such period was also not established by the petitioner.
Apart from this, the petitioner could have led evidence to prove that his possession was different from that as claimed under the sale deed in view of the Division Bench judgment of this Court in the case of Bharit and others Vs. Board of Revenue, U.P. at Allahabad and others, 1973 ALJ 29. Applying the principles laid down therein on the facts of the present case the petitioner failed to prove his possession either adverse to the true owner or as a tenant of any other form under the U.P. Z.A. & L.R. Act, 1950. To the court it appears that having failed in his attempt to have established the sale deed executed by Smt. Phulesara in his favour, the petitioner took recourse to the entries referred to by him which did not in any way support the oral evidence led by the petitioner and thus utterly failed to prove his claim of adverse possession.
There is yet another aspect which deserves to be noticed. The respondent no. 9 in his affidavit has indicated that the sale deeds were executed by Phulesara not only in favour of Sarjoo but in favour of the respondent no. 6 to 8 as well. Sri A.L. Tiwari has put in appearance on behalf of the said respondents. This fact has not been disputed by the learned counsel for the respondent nos. 6 to 8. The counter affidavit has been filed on behalf of the said respondents through one Mainker supporting the order of the Board of Revenue and they also claim their share on the basis of the sale deed executed by Phulesara. As found hereinabove the said respondents for the reasons given in the case of petitioner, also cannot claim any title on the basis of the said sale deed executed by Smt. Phulesara. They also had not contested the orders of the Collector or Commissioner nor had they contested the matter before the Board in 1971. They therefore cannot be now heard to say that they are entitled to the benefits of the sale deed. They appear to be sitting on the fence along with the petitioner who had also set up a similar sale deed and they appear to have fanned the dispute along with the petitioner being collaterals of the contesting respondents.
Accordingly this court is of the firm opinion that the petitioner has not been able to prove either his title or possession over the land in dispute and hence, the Board of Revenue did not commit any error in dismissing the appeal summarily.
Before parting with the case it will be appropriate to refer to the facts that had intervened during the pendency of the writ petition, namely, that the petition had been dismissed in default on 10.7.2006. Prior to this vide order dated 31st August, 2005, the name of the petitioner had been expunged and a miscellaneous application had been moved on 5.12.2005 by the petitioner before the Sub Divisional Magistrate for correcting the entries. By that time, the second appeal had already been dismissed. The Sub Divisional Magistrate rejected the application on 31.8.2006. The matter remained pending before this Court and an application came to be filed by the contesting respondents that inspite of the fact that the only interim order passed by this Court was not to alienate the property in dispute, the petitioner started interfering with the possession of the answering respondents with the aid of the Police and the Lekhpal concerned. The concerned Kotwal Inspector and the Lekhpal were summoned by this Court to explain as to how they were interfering at the instance of the petitioner. They filed affidavits before this Court that an application had been moved by the petitioner and in view of the orders of the Government dated 16th June, 2009 and the Circular of the Police Department dated 28th April, 2008, Tehsil Diwas and Thana Diwas are organized for resolving such disputes.
Needless to say that the authorities are bound to carry out orders of the Court and not to create any rights or make the said executive orders a basis for undue favours being extended inspite of the fact that the matter is sub-judice. It would be appropriate to clarify that the Revenue Codes and enacted laws in this state provide for all remedies and the orders passed by the authorities under the statutory provisions have to be implemented. No third forum can be created for any adjudication for resolution of such disputes through executive orders. To the mind of the Court, the said Govt. Order or Circular at the best can aid the orders passed by the competent authority and as in the instant case once the parties were before this Court there was no occasion for any interference by the revenue officials or by the police authorities except to ensure compliance of the orders of the court. Any device adopted by a litigant to alter the situation or obtain any reports in his favour as has happened in the present case would therefore be clearly an interference with the course of justice and shall be dealt with firmly by the court. The Police Authorities and the Lekhpal had therefore no business to exchange reports with each other and they had simply to ask the parties to approach this Court. The interference therefore was absolutely uncalled for.
The writ petition stands dismissed with the said observations.
Dt. 27.9.2011 Sahu