(Judgment reserved on 22.11.2011)
(Judgment delivered on 01.03.2012)
Court No. - 30
Case :- SECOND APPEAL No. - 1444 of 2000
Petitioner :- U.P.Avas Evam Vikas Parishad, Lko. And Another
Respondent :- Lajja Ram
Petitioner Counsel :- K.P.Upadhyaya,R.K. Jain,R.P.Singh,Suneet Kumar,U.N. Sharma,Vivek Saran
Respondent Counsel :- Rajiv Mishra,Ajit Kumar,Ashutosh Srivastava,Awadhesh Srivastava,Madhu Tandon,Manu Saxena,Menu Saxena,P.K. Sinha,Prem Chandra
Case :- SECOND APPEAL No. - 1445 of 2000
Petitioner :- U.P.Avas Evam Vikas Parishad, Lko. And Another
Respondent :- Mahavir Prasad
Petitioner Counsel :- K.P.Upadhyaya,Murli Dhar,R.K. Jain,R.P.Singh,Suneet Kumar,U.N. Sharma,Vivek Saran
Respondent Counsel :- Rajiv Misra,Ajit Kumar,Ashutosh Srivastava,Manu Saxena,Menu Saxena,Prem Chandra
Hon'ble Sibghat Ullah Khan,J.
Heard learned counsel for the parties.
These Second Appeals have been filed by same set of defendants i.e. U.P. Avas Evam Vikas Parishad and its Estate Management Officer in two suits. Plaintiff in each suit was different. Second Appeal no.1444 of 2000 arises out of O.S. no.418 of 1997 filed by Lajja Ram. Second Appeal No.1445 of 2000 arises out of O.S. No.415 of 1997 which was filed by Mahaveer Prasad. Both the suits were decreed on 2.5.1997 by Civil Judge (S.D.) Ghaziabad. Against the said decrees defendants appellants filed Civil appeal no.105 of 1997 and 106 of 1997 which were dismissed by 2nd A.D.J. Ghaziabad through judgment and decree dated 13.9.2000 hence these second appeals.
These Second appeals were dismissed on 18.4.2003. Thereafter review petitions were filed which were also dismissed on 13.09.2007. Thereafter modification applications were filed which were also dismissed on 5.11.2007. Thereafter defendants appellants carried the matter to the Supreme Court where it was ultimately registered as Civil Appeal no.1184 and 1281 of 2008. Supreme Court set aside the orders dismissing the Second Appeals and the applications and directed the Second appeals to be heard afresh on merits through order dated 8.2.2008 which is quoted below.
"Considering the peculiar circumstances highlighted by Mr. K.K.Venugopal, learned senior counsel appearing for the appellants, we set aside the impugned orders of the learned Single Judge of the Allahabad High Court in Civil Miscellaneous Review Application No.107324 of 2003 in Second Appeal No.1445 of 2000 and in Second Appeal No.1445 of 2000 and direct the second appeal to be heard afresh on merits. We make it clear that we have not expressed any opinion on the merits of the case.
Thereafter, through order dated 17.5.2010 following three substantial questions of law were framed in these appeals:-
- Whether, when the notification for acquisition issued by the U.P. Avas Evam Vikas Parishad was describing the land acquired on the basis of boundaries the claim of the plaintiff-respondent that the plots in question were not duly identified for acquisition could entitle them to an injunction against the U.P. Avas Evam Vikas Parishad?
- Whether, after notification for acquisition of land has been issued under the U.P. Avas Evam Vikas Adhiniyam, the courts below could grant permanent injunction to the plaintiff-respondent without notification having been challenged or set aside by any competent court of law and as such the plaintiff-respondent were not entitled to the permanent injunction or any other relief granted by the courts below?
- Whether, the plaintiff-respondent could maintain the suit after enforcement of the UPZA & LR Act and the U.P.Avas Evam Vikas Adhiniyam and acquisition notification particularly when no declaration was sought under Section 9 (Sic. 229-B) of the UPZA & LR Act or under the relevant provision of U.P. Avas Evam Vikas Adhiniyam prior thereto?
The following substantial questions of law are also involved and have thoroughly been argued by learned counsel for both the parties.
- Whether notification under Section 117 (6) of U.P.Z.A.&L.R. Act dated 5.8.1983 directing resumption of the land in dispute alongwith other plots of Gaon Sabha can be ignored, set aside or treated/declared to be void particularly when no such prayer was made in the plaint?
- Whether the relief which has been granted by the lower appellate court can legally be granted particularly when such relief was not even claimed in the plaint?
- Whether the entry of the name of father of the original plaintiff in each case in the revenue records is no entry in the eye of law and whether the entry even if made is legal?
- Whether the entry of the name of the father of the plaintiff in each case in the revenue record is a result of fraud and manipulation and in any case whether any such entry was ever made?
The matter in Second Appeal no. 1444 of 2000 relates to agricultural land comprised in following khasra plot numbers:
1. 387 1-5-0 (Pukhta)
2. 388 1-5-0 (Pukhta)
3. 389 1-5-0 (Pukhta)
4. 390 1-6-0 (Pukhta)
5. 391 4-1-0 (Pukhta)
6. 392 4-11-0 (Pukhta)
13-13-0(Pukhta)(about 8 acre)
The case taken up by the plaintiff of O.S. no.418 of 1997 in the plaint is that initially Sri Ragunath Sahai father of the plaintiff was owner in possession of the property in dispute and after his death said right was inherited by the plaintiff and in this manner plaintiff and his father were owners and possession over the land in dispute for 50 years and that the name of plaintiff's father was entered in the revenue record from 1359 fasli to 1366 fasli (1.7.1952 till 30.6.1959). It was further pleaded that due to fault of the lekhpal the name was not continued thereafter in the revenue record. In O.S. no. 415 of 1997 it was pleaded that name of Om Prakash father of the plaintiff was entered in the revenue record as owner from 1359 to 1362 fasli and due to mistake committed by Lekhpal the name was deleted in the subsequent years.
Defendants filed written statement stating that name of the plaintiff's father was never recorded in the revenue record not even during 1359 to 1366 (or 1359 to 1362) fasli as alleged by plaintiff and that the land in dispute had been acquired under Land Acquisition Act and through order dated 15.8.1989 possession was delivered to the defendants and that non impleadment of State of U.P. was fatal. Defendants filed copy of the award given by Special Land Acquisition Officer.
In order to show that name of plaintiff's father was recorded in the revenue record for 7 years (from 1359 fasli to 1366 fasli) plaintiff filed copies of Khataunis. Similar khataunis for 1359 to 1362 fasli were filed in the other suit.
Regarding the plea of acquisition the trial court held that in the documents pertaining to Acquisition plots in dispute were not mentioned.
The contention of learned counsel for the appellant is that as the land did not belong to any private person and it was gaon sabha land hence there was no question of Acquisition and therefore it was resumed under Section 117(6) of U.P.Z.A.L.R. Act. The said provision is quoted below:
The State Government may at any time, (by general or special order to be published in the manner prescribed), amend or cancel any declaration, notification or order ) made in respect of any of the things aforesaid, whether generally or in the case of any Gaon Sabha or other local authority, and resume such things, and whenever the State Government so resumes by such thing, the Gaon Sabha or other local authority, as the case may be, shall be entitled to receive and be paid compensation on account only of the development, if any effected by it in or over that things:
Provided that the State Government may after such resumption make a fresh declaration under sub-section(1) or sub-section (2) vesting the thing resumed in the same or any other local authority (including a Gaon Sabha), and the provisions of sub-sections (3),(4) and (5), as the case may be, shall, mutatis mutandis, apply to such declaration.
The order of resumption was passed on 5.8.1983 and it was in respect of 21 plots total area 27.47 acres including 6 plots in dispute. Similar order was passed in respect of plots in dispute in the other suit.
Lower appellate court framed some additional issues and remitted them to the trial court for being decided. Trial Court through order dated 31.5.1999 decided the said issues. The main issue was as to whether property in dispute was property of Gram Sabha/State of U.P. which was resumed and handed over to the defendants. Under the said issue trial court mentioned that the name of plaintiffs father was entered through order dated 24.4.1955 (1362 fasli). The trial court held that it was not proved that the land was acquired or its compensation was paid to the plaintiff. In respect of seven years entries in favour of the appellant's father, respondent contended that they were forged and fictitious and it was specifically argued that in case the entries had in fact been there then there was absolutely no reason for their discontinuance. The emphasis of the lower appellate court was also on the fact that numbers of disputed plots were not mentioned in Section 4 and 6 notifications. Section 4 and 6 land acquisition Act notifications are equivalent to Section 28 and 32 of U.P. Avas Evam Vikas Adhiniyam. The land was acquired for Vasundhara Housing Scheme.
Even in most of the revenue records of 1359 to 1366 fasli filed by plaintiffs in the main column banjar was recorded and in the remarks column the name of plaintiff's father was recorded as Patta Dawami Istamrari (permanent) holder.
The contention that as name of the plaintiff's father was recorded from 1359 to 1366 fasli hence it proved ownership/title and it must further be presumed that it was negligence and fault of the lekhpal that the name was not recorded in the subsequent years is extremely shaky as well as risky for the plaintiff. It can also be very well said that the entry of plaintiff's father's name for 7 years was a fault which was corrected afterwards. It is impossible that father of plaintiff would have remained silent for more than 40 years even though his name was not continuing in the revenue record.
Plaintiff did not file the alleged pata. The sole basis of the claim was entry in the revenue record for 7 years. If the plaintiff is basing his claim only on the entry and insisting that entry must be taken to be correct then absence of entry will also have to be taken as correct. A person who is not recorded in the revenue record for more than 40 years before filing of the suit, can not maintain the suit like the present one in the civil court.
In any case as the entry was discontinued and as apart from the entry no other evidence was brought on record by the plaintiff to establish his title, plaintiff could not assert any claim over gaon sabha land. The fact that the land in dispute was recorded as gaon sabha after 1366 fasli was quite evident from the resumption order. The courts below very conveniently ignored this aspect. If the land in dispute had not been recorded in the revenue record as gaon sabha land there was no question of passing resumption order under Section 117 (6).
The decree passed by the lower appellate court in O.S. no.418 of 1997 is quoted below:
"The appeal is hereby dismissed with costs through out. The judgment and decree of the learned lower court passed in O.S. No.418/97 Lajja Ram Vs. U.P. Avas Vikas Parishad, Ghaziabad is hereby confirmed with the modification that the appellant shall grant equal value land to the plaintiff in lieu of disputed property or the appellants shall grant atleast 12 times (twelve times) of the disputed land to the plaintiff in Sector-8 in lieu of disputed property.
Contempt petition case No.8/99 is hereby allowed and U.P. Avas Vikas Parishad through opposite parties is held guilty of defying the order of the Court by raising multi-storeyed buildings in the disputed land during the appeal. In accordance with the provisions of order 39 Rule 2(A) C.P.C. the property of Avas Vikas Parishad be attached for one year and sold for making compliance of order of the Court. Opposite parties Shri N.C. Pardhan and Shri S.C. Jain are hereby committed and sentenced to civil prison for a period of one month each. Since Avas Vikas Parishad is a local body of U.P. Government and since the opposite parties are the Officers of Avas Vikas Parishad, hence, it is further ordered in the interests of justice that the punishment mentioned above shall not be executed, if Avas Vikas Parishad restore the property in suit in the previous position by demolishing the entire constructions and vacating the land or in the alternative by granting 12(twelve) times of the disputed land in Section-8 within three months from the date of this order. If the property in suit is not vacated as mentioned above or in the alternative, the 12 times land is not granted to the plaintiffs in Sector-8 then the punishment awarded above shall be enforced and in that case, the respondent will be entitled to get the order enforced through court on the expenses of Avas Vikas Parishad. Avas Vikas Parishad is further directed to pay the costs of the contempt proceedings to the applicant/plaintiff".
The manner in which the suit has been decreed and appeal has been dismissed by the lower appellate court is utterly shocking to the judicial conscience. The courts below gifted valuable property of Gaon Sabha to the plaintiff.
The revenue documents which have been filed by the plaintiff disclose horrible state of affairs. In copy of khatauni of 1359 fasli in the main column the property is entered as banjar. At the end it is mentioned that over khasra no.392 there is possession of Raghunath Sahai since three years before through Patta Dawami Istamrari (permanent patta). The hand writing of this entry is quite different from that of the entry in the main column. Thereafter the next document is khatauni of same year with regard to other plots containing similar entry and thereafter there is additional entry that on certain plots the name of Ganpat Rai son of Chiranji Lal who is in possession on the basis of Patta Dawami Istamrari should be entered. In the other khataunis of 1359 fasli similar thing is mentioned in respect of Raghunath Sahai. These entries do not contain the name of the officers or name of the case in which the said order was passed or the date of the same. These remarks column entries are not signed by any one. In another copy there is reference to some order passed by Hakim Elaqa dated 24.4.1955 directing that the name of Raghunath Sahai should be entered as siradar.
The alleged Patta Dawami Istamrari has not been filed. In case there had been any such patta in existence then by virtue of Sections 15 and 17 of U.P.Z.A.&L.R. Act name of plaintiff's father would have been entered in the revenue record immediately as sirdar on Zamindari Abolition. Banjar vests in gaon sabha after Zamindari Abolition and no one can get any right over gaon sabha land unless it was allotted to him by gaon sabha.
The case of the plaintiff that he was paying land revenue is also ridiculous. Plaintiff did not bothere about entry of his name in the revenue record but continued to pay the land revenue. It is impossible. The entry in the khatauni of 1359 fasli to the effect that name of plaintiff's father should be entered is baseless. Invariably whenever such entry is made it is written therein that such thing is to be done as per order of officer concerned and the name of the officer, name of the case and date of decision is mentioned which all are missing from the khatauni of 1359 fasli filed by plaintiff.
Accordingly, it is stark forgery and manipulation. The Provision of presumption is provided under Section 114 of Evidence Act, which contains some illustrations also. The said section along with illustrations (e) & (f) is quoted below:
"114. Court may presume existence of certain facts.- The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case.
The Court may presume-
(e)that judicial and official acts have been regularly performed;
(f)that the common course of business has been followed in particular case;"
If the presumption of entry in favour of plaintiff's father for four or seven years is to be presumed then presumption of correctness of discontinuance of entry for 40 years will also have to be drawn.
Life of law has not been logic, it has been experience (O.W. Holmes). This principle applies with greater force on presumptions and human conduct. I have heard and decided hundreds of matters pertaining to agricultural land and my experience is that Gaon Sabha property has been looted by unscrupulous persons on a very large scale by manipulation in the revenue records and forging of orders particularly of consolidation courts. The modus operendi is that a very old entry or copy of order is produced like a rabbit from the hat of a magician and its resumption or recording is sought.
Supreme Court in Civil Appeal No.1132 of 2011, Jagpal Singh and others Vs. State of Punjab, in Para-20 observed as follows:
"20. In Uttar Pradesh the U.P. Consolidation of Holdings Act, 1954 was widely misused to usurp Gram Sabha lands either with connivance of the Consolidation Authorities, or by forging orders purported to have been passed by Consolidation Officers in the long past so that they may not be compared with the original revenue record showing the land as Gram Sabha land, as these revenue records had been weeded out. Similar may have been the practice in other States. The time has now come to review all these orders by which the common village land has been grabbed by such fraudulent practices."
In Dina Nath Vs. State of U.P. 2009 (108) R.D. 321, I held that not making any efforts for getting the name of the petitioner entered in the revenue records on the basis of alleged patta by Gaon Sabha for 29 years proved that no patta was executed. I issued directions to all the Collectors to reopen all such cases where names of private persons were entered in the revenue records over Gaon Sabha land. Matter was carried to the Supreme Court in the form of S.L.P. (Civil) C.C.4398 of 2010 Dina Nath Vs. State. The Supreme Court decided the matter on 29.03.2010 and quoted almost my entire judgment in inverted commas and approved the same.
Accordingly, it is held that whenever a person comes along with the case that Gaon Sabha land was allotted to him or some order was passed by any Court in his favour declaring his right over Gaon Sabha land or some revenue entry was in his favour long before but during last several years his name is not recorded in the revenue records then an irrebuttable presumption amounting to almost conclusive proof must be drawn to the effect that allotment order or entry is forged.
Accordingly, substantial questions of law numbers 3,4,5 and 6 are decided in favour of the appellants and against the respondents. Both the Second Appeals are allowed with exemplary cost of Rs.5 lacs in Second Appeal No.1444 of 2000 and Rs.1 lac in Second Appeal No.1445 of 2000. Decrees passed by the Court below are set aside and both the suits are dismissed. It is further directed that a First Information Report shall immediately be lodged against the plaintiffs for malicious prosecution and manipulation in the official records.
Severe stricture is passed against the Judge of the trial court as well as of lower appellate court for passing extremely illegal and unjust judgments and decrees. A copy of this judgment shall be placed in their service records and be also sent to Hon'ble the chief Justice to consider as to whether disciplinary proceedings are warranted against them.
During arguments in these appeals learned counsel for the appellant stated that Sri Moti Goel son of Lajja Ram plaintiff in one of the suits who also appeared as witness in the said suit had usurped various Gaon Sabha properties of District Ghaziabad and Gautam Buddh Nagar. Accordingly, it appears to be a fit case where a public interest litigation (P.I.L.) should be registered and Collectors of both these Districts should be directed to submit the reports regarding those cases where similar things happened and Gaon Sabha properties were usurped by unscrupulous persons and those cases where properties had been acquired/ resumed, these persons managed to get the compensation.
Accordingly, office is directed to place copy of this judgment before the Bench hearing Public Interest Litigation matters.
Order Date :- 1.3.2012