Neutral Citation No. - 2024:AHC-LKO:33696
Court No. - 19
Case :- WRIT - C No. - 3000005 of 1995
Petitioner :- Ram Dularey
Respondent :- State of U.P.
Counsel for Petitioner :- Shyam Mohan,Manoj Kumar
Gupta,R.K.Srivasta,Rajesh Kumar Shukla
Counsel for Respondent :- C.S.C.
Hon'ble Subhash Vidyarthi,J.
Order on C.M. Application No.2242 of 2003:
1. Heard.
2. This is an application seeking substitution of sole petitioner
who died on 11.04.2023 and it is claimed that the right to sue
survives upon the heirs.
3. No objection has been filed against the application for
substitution.
4. Accordingly, the application is allowed.
5. The learned counsel for the petitioner may carry out
necessary corrections in the memo of writ petition forthwith.
Order on memo of petition:
6. Heard Sri Manoj Kumar Gupta, the learned counsel for the
petitioner, Sri S.K. Khare, the learned Standing Counsel
appearing on behalf of the State and perused the records.
7. The instant writ petition has been filed by the petitioner
under Article 226 of the Constitution of India seeking quashing
of the order dated 27.03.1989, passed by the Additional
Collector/Prescribed Authority (Ceiling), Barabanki in Case
No.3/28/5/22/9 year 1988-89, under Sections 11/17 of U.P.
Imposition of Ceiling on Land Holding Act. The petitioner has
also challenged an order dated 05.09.1994, passed by the
Additional Commissioner, Faizabad Division, Faizabad in
Appeal No.220/611, Barabanki under Section 13 of U.P.
Imposition of Ceiling on Land Holdings Act, which was filed
against the aforesaid order dated 27.03.1989, whereby the
Additional Commissioner has dismissed the appeal of the
petitioner along with several other connected appeals.
8. The facts in brief are that the proceedings under Section 10
(2) were initiated against Rani Drig Raj Kunwar and were
concluded by means of order dated 17.9.1962 declaring certain
land to be surplus. The said order became final and publication
in this regard was also made on 5.9.1964.
9. The petitioner claims to be occupant of a part of the said land
so declared surplus by means of the order by the Prescribed
Authority on 17.9.1962. He moved objections before the
Prescribed Authority stating that he was not given any
opportunity of hearing though he was an occupant of the land
declared surplus and accordingly prayed that the said order
dated 17.9.1962 be revisited and recalled and fresh order be
passed only after hearing him. The Prescribed Authority by
means of order dated 1.4.1976 rejected the objections of the
petitioner. The said objections came to be abated as per the
provisions contained under Section 14 (3) of the Act of 1960 in
terms of the ordinance dated 10.10.1975.
10. The petitioner and some similarly situated persons had
challenged the said orders by filing writ petitions before this
Court, which were also dismissed on 14.4.1980. While
dismissing the writ petitions this Court had observed that the
petitioners would, in any way, be allowed to file their objections
under Section 11 as per the amended ordinance dated
10.10.1975. The petitioner preferred objections under Section
11 before the Prescribed Authority stating that he was in
possession of the land bearing old Plot No.1679/3-6-6 and Plot
No.168 Minz. area 2 bigha 18 biswa situated in Village
Tilokpur, Pargana Ram Nagar, Tehsil Fatehpur, District
Barabanki. It was stated that patta of the said land was given by
Raja Harnam Singh, the husband of Rani Drig Raj Kunwar and
on the basis of the possession after coming into force of
Zamindari Abolition and Land Reforms Act had acquired rights
of the said land. It was further stated that Rani Drig Raj Kunwar
had filed a suit for eviction against the petitioners under Section
202 of U.P. Z.A. & L. R. Act on 14.5.1959 which was decreed
by a common judgment and order dated 26.12.1962.
11. Against the judgment and order dated 26.12.1962 ten
appeals were filed before the Commissioner, Lucknow
including the appeal filed by the petitioner and the said appeals
were allowed on 14.7.1963 by Additional Commissioner,
Lucknow. The second appeal was also dismissed on 18.9.1964
by Board of Revenue and the rights of the petitioners were
upheld and the judgment attained finality. The petitioner and the
others who were bhumidhari tenants before abolition of
zamindari became sirdar after zamindari abolition and, as such,
they are independent tenure holders from the year 1958 onward.
12. It is in aforesaid circumstances that it has been submitted by
learned counsel for the petitioners that no notice or information
was given by the Ceiling Authority to the petitioners and the
other similarly situated persons, who are in possession of the
said land and even the suit under Section 202 had been
dismissed.
13. Since the petitioner remained in continuous cultivatory
possession of the land in question much prior to abolition of
zamindari,he automatically became bhumidhar as per Section
204 and 210 of U.P. Z. A. & L. R. Act. With regard to
possession it has been submitted by learned counsel for the
petitioner that name of the petitioner found mention in khatauni
for the fasli year 1959 and even after the consolidation
proceedings were completed, name of the petitioner was duly
mutated in the revenue records. It is in aforesaid circumstances
that the petitioners had moved application under Section 11 of
the Act of 1960.
14. The Prescribed Authority while considering the case of the
petitioner had formulated seven questions for determination.
One of the questions was as to whether the petitioner was
bhumidhar of the said land ? With regard to the said aspect he
had stated that the said land was initially recorded in the name
of Zamindar Raja Harnam Singh. It is stated that after death of
Raja Harnam Singh his wife Rani Drig Raj Kunwar had
wrongfully got her name mutated in place of the petitioner. The
petitioner had submitted that he had received the said land by
way of patta from Raja Harnam Singh but he was unable to
produce the said patta before the Prescribed Authority. He
further considered the fact that benefit of the order passed in
suit filed by Rani Drig Raj Kunwar under Section 202 could be
given to the petitioners in as much as the suit was merely a suit
for eviction where Rani was unsuccessful and the suit was
dismissed. He did not rely upon the order passed in proceedings
under U.P. Z.A. & L.R. Act in as much as the said orders were
passed after the cut off date prescribed in the Act of 1960 and
hence declined to give any benefit of the case and accordingly
rejected the objections filed by the petitioners.
15. Being aggrieved by the said order of the Prescribed
Authority the petitioner preferred an appeal before the
Commissioner, Lucknow. The said appeal was also rejected by
the Commissioner, holding that the petitioners were unable to
demonstrate that he was the owner of the said land in as much
as his claim which was based on the patta given by Raja
Harnam Singh could not be produced either before the
Prescribed Authority or before the appellate court and, hence, in
absence of such evidence he found that the appeal could not
succeed and accordingly upheld the findings recorded by the
Prescribed Authority.
16. Learned counsel for the petitioners while assailing the
aforesaid orders has submitted that the petitioner is in
continuous possession since 1359 fasli till date. He submits that
merely the fact that Rani Drig Raj Kunwar had moved
application for eviction is demonstrative of the fact that the
petitioner was in cultivatory possession of the said land. He
submits that the said suit was decreed and the appeal filed by
the petitioner was allowed and the suit was dismissed.
Subsequently his possession and rights over the said land were
duly recognized by the consolidation authorities who recorded
name of the petitioner on the said land. He submits that
litigation with regard to the said land was continuing since 1959
and culminated only on 10.09.1964 when the second appeal
was dismissed by the Board of Revenue. He further submits
that the authorities below have not correctly appreciated the
findings recorded in the said case and have not given any
benefit of the same to the petitioner and consequently erred. He
submits that even if the petitioner was unable to produce patta,
still the authorities should have considered the fact that he had
acquired rights over the said land on the basis of adverse
possession.
17. Explanation II of Section 5 of the Act of 1960 is relevant in
this regard which reads as under:-
Explanation II — [ If on or before January 24, 1971, any land
was held by a person who continues to be in its actual
cultivatory possessions and the name of any other person is
entered in the annual register after the said date] either in
addition to or to the exclusion of the former and whether on the
basis of deed of transfer or license or on the basis of a decree,
it shall be presumed, unless the contrary is proved to the
satisfaction of the prescribed authority, that the first mentioned
person continues to hold the land and that it is so held by him
ostensibly in the name of the second mentioned person. ]
18. The learned counsel for the petitioner submits that
undisputedly possession of the petitioner on the said land was
continuing prior to the cutoff date i.e. 24.1.1971 and, hence, it is
to be presumed that the petitioner is the owners of the land until
any contrary evidence is produced. In the entire proceedings
there is no other person who claimed title adverse to the
petitioner and, hence, even as per the provisions contained in
Explanation II the Prescribed Authority should have issued
notice to the petitioners before proceeding to decide the said
case.
19. Lastly, it was submitted that in the facts of the present case,
it was incumbent upon the Prescribed Authority to have
considered whether by the adverse possession rights over the
said land has been perfected by the petitioners or not?
20. Learned Standing counsel, on the other hand, has opposed
the writ petition. He submits that the Board of Revenue has
passed the order and dismissed the appeal filed by Rani Drig
Raj Kunwar only on 10.9.1964 which was after consolidation
proceedings had culminated and consequently the benefit of the
said order could not be given to the petitioner. He submits that
the petitioners had laid claim of ownership on the said land on
the basis of patta and he was not able to demonstrate their title
either before the Prescribed Authority or Additional
Commissioner and accordingly submits that there is no
infirmity in both the orders.
21. I have heard learned counsel for the parties and perused the
records.
22. From the materials contained in the writ petition as well as
the orders of the authorities below it is clear that the petitioner
is in possession of the land bearing old Plot No.1679/3-6-6 and
Plot No.168 Minz. area 2 bigha 18 biswa situated in Village
Tilokpur, Pargana Ram Nagar, Tehsil Fatehpur, District
Barabanki. Civil suit was filed by Rani Drig Raj Kunwar for
eviction of the petitioner from the said land where she was
unsuccessful. However, she challenged the same before Board
of Revenue and even consolidation proceedings under the Act
of 1960 were commenced. The said orders of the Prescribed
Authority with regard to Rani Drig Raj Kunwar who was
original tenure holder became final by the order dated
17.9.1962 and publication was made on 5.9.1965. The
petitioners was not aware of the said proceedings and it is only
after he moved application in consolidation proceedings and
only after interference of the High Court that he preferred his
objection under Section 11 before the Prescribed Authority.
23. The question which arises for consideration in the present
writ petitions is that as to whether the petitioner had sufficient
or any right on the said land which ought to have been
considered by the Prescribed Authority while concluding the
ceiling proceedings against Rani Drig Raj Kunwar. With regard
to possession and ownership of the said land it has been
submitted that the petitioner had been given patta by Raja
Harnam Singh. Undisputedly, the petitioner was in possession
of the said land and it is due to possession over the said land
that Rani Drig Raj Kunwar had filed suit under Section 202 of
U.P. Z.A. & L.R. Act where she was unsuccessful and the
proceedings were laid to rest by the order passed by the Board
of Revenue on 18.9.1964. The claim of the petitioner was duly
considered during the consolidation operations and record was
duly modified including his name on the land on which he
claims to be in possession. Once it has been shown that the
petitioner has succeeded in sustaining his objection in the suit
proceedings, it is clearly demonstrated that the petitioner was in
possession and with the knowledge of the person who was
claiming herself to be owner of the said land and consequently
he was in adverse possession of the said land. Once this fact is
demonstrated the Prescribed Authority was under duty to
consider the rights of the petitioners on the ground of adverse
possession and by not considering this, he has not exercised
jurisdiction vested in him and consequently the period during
which the petitioners were in possession of the said land cannot
be ignored. This should have been duly dealt with by the
Prescribed Authority. It is also without doubt that the
proceedings for eviction were commenced in 1959 which is
prior to coming into force of the Ceiling Act, 1960. The
proceedings were pending against the petitioner since much
before the cutoff date and the finding of the Prescribed
Authority that the benefit of the said proceedings cannot be
given to the petitioner as the proceedings had culminated after
the cut off date, is clearly arbitrary. The petitioner was a
defendant in the said suit and was able to demonstrate his
possession while Rani Drig Raj Kunwar was unable to establish
her title over the said land. Therefore, the Prescribed Authority
in the facts of the present case was bound to consider the rights
of the petitioner over the said land on the basis of possession. In
not doing so both the authorities below have acted arbitrarily
and consequentl the impugned orders are liable to be set aside.
24. Apart from that, in the present writ petitions interim order
was passed in 1995 in favour of the petitioners which is
continuing till date. Numerous other writ petitions filed by
similarly situate persons against the similar orders have been
allowed by means of a judgment and order dated 13.10.2023,
passed by a coordinate Bench of this court in a bunch of writ
petitions, leading writ petition being Writ-C No.3000009 of
1995.
25. In order to meet the ends of justice as well as to provide
opportunity to the petitioner to lay their claim over the said land
the matter is remitted back to the Prescribed Authority for
reconsideration of the rights of the petitioners if it has perfected
on the basis of adverse possession. The issues which have been
considered by both the authorities below do not require any
interference as they have duly considered the same and we do
not find any infirmity or error in the orders except that they
have not considered the aspect of adverse possession and only
for this reason, the orders impugned are liable to be set aside.
Accordingly, the order dated 17.9.1962 and 27.3.1989 passed
by the Prescribed Authority, the order dated 5.9.1994 passed by
Commissioner, Faizabad Division, Faizabad and orders dated
30.12.1981 and 13.9.1994 under challenge in Writ C
No.3000009 of 1995 are set aside.
26. The matter is remitted back only for limited purposes to the
Prescribed Authority as stated above. The Prescribed Authority
is directed to conclude and pass necessary orders expeditiously,
say within a period of four months from the date a certified
copy of this order is placed before him.
27. The petitioners undertake to participate in the proceedings
and submit all the documents in support of their submissions
within a period of one month from today before the Prescribed
Authority.
allowed
28. In light of the above, the writ petitions are .
.
(Subhash Vidyarthi, J.)
Order Date :- 30.4.2024
Ram.
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