MUNICIPAL BOARD KASGANJ Vs. UDAIBIR SINGH

JUDGEMENT

(1.) This is a plaintiff's second appeal arising out of a suit filed by the Municipal Board, Kasganj, district Etah in respect of the land in dispute for possession and injunction. The Municipal Board filed the suit in its capacity as the Manager of the land as according to the case of the plaintiff-appellant the land in dispute is the nazul land. The case of the plaintiff-appellant was that in the west of the house of the respondent Jwala Singh and Udaibir Singh (Jwala Singh died during the Pendency of this appeal and Udaibir Singh has been brought on the record in his place) there is a nazul plot No. 6849. According to the settlement map of 1901, 1902, this plot is under the control and management of the appellant. Jwala Singh submitted the plan for the construction of his house in which it was categorically admitted by him that the land towards west of the house was nazul land. Secondly it is alleged that the respondents have encroached upon the plot in dispute. A report was made by the Overseer to the Board and as such the suit was filed for possession over certain rate of land as well as for injunction restraining the respondents from taking possession over the other portion of the land in dispute. Jwala Singh did not contest the suit. Only Udaibir Singh contested the suit on the ground that the land in dispute is not nazul land and that the plaintiff-appellant has no control over this land and it is not in its management. It was further urged that the plaintiff-appellant has not been in possession for more than 12 years and as such the suit is barred by time. Before the trial Court, besides technical issues, two issues were framed relating to merits of the suit. The two issues which are relevant are mentioned below;- (4) Whether the land in dispute is Nazul land and is part of plot No. 6849 as alleged in the plaint? (5) Whether plaintiff is owner of the land in dispute? So far as issue No. 5 is concerned, this was wholly irrelevant as the plain tiff-appellant never claimed to be the owner of the land in dispute. The main issue, therefore, was issue No. 4. The trial Court after examining the evidence of the record came to the conclusion that the land in dispute is not the Nazul land. The trial Court further came to the conclusion that the appellant has not authorised to file the present suit. The judgment of the trial Court is dated 9th May 1970. Against the said judgment an appeal was filed before the lower appellate Court. The lower appellate Court also framed two points. It held that the land in dispute was not nazul land. It further held that the appellant could not file the present suit. The lower appellate Court therefore, dismissed the appeal on 8th April, 1971. The judgment dated 8th April, 1971 has been impugned in the present appeal. Learned counsel for the appellant has urged firstly that the suit filed by the plaintiff-appellant was maintainable in law and view to the contrary, taken by the lower appellate Court is clearly erroneous. The second submission of the learned counsel is that the finding recorded by the lower appellate Court that the land in dispute is not the nazul land is vitiated in law as the lower appellate Court has ignored to consider the material evidence on the record, it has wrongly held that the settlement maps of 1901- 1902 were not reliable and the admission made by respondent No. 1 has been illegally ignored. I have heard Shri S. C. Verma, learned Standing Counsel on behalf of the appellant and Shri G. N. Verma on behalf of the respondent. The plaintiff-appellant admits that the land in dispute is nazul land. He does not claim ownership in the said land. Section 118 of the U. P. Municipali ties Act provides that subject to the provisions of the next sections and to any conditions imposed by the owner of the property a Board may manage and control any property entrusted to its management and control. The Board being admittedly the Manager of the property and having control over the property in that capacity was bound to manage the property in accordance with the conditions imposed by the owner. In the case of nazul property the owner is the State Government and as such the Board could manage the property on such conditions as were imposed by the State Govern ment. The Nazul Manual contains the instructions given by the State Govern ment. The Municipality, therefore, has to manage and control the nazul land in accordance with the instructions issued by the State Government. In Municipal Board, Moradabad v. Habib Ullah (A. L. J. 332), a Division Bench of this Court had taken the view that the instructions regarding the manage ment of the nazul land were merely administrative instructions and were not rules made by the Government in exercise of the power conferred by Section 296 of the Municipalities Act. In the circumstances, it was held that they do not have statutory force. The instructions contained in the Nazul Manual may be administrative instructions but so far as the Municipal Board is concerned, it being only the manager of the nazul land, is bound by those instructions in law as the nazul land which is the property of the State Government was given to the Munici pality for control and management on the conditions laid down in the adminis trative instructions. In the circumstances the Municipal Board is bound by the instructions which are given from time to time by the State Government and also those which are contained in the Nazul Manual. Paragraph 47 of the Nazul Manual provides as follows : "47. Suits :-Suit affecting the proprietary right to nazul must be brought by or against the 'state of Uttar Pradesh and not by or against the local body which merely manages the property but the cost of litigation must, as stated in Rule 78, be met by the local body. " The whole of paragraph 47 is very wide. A suit which affects the pro prietary right in respect of nazul land has to be brought in the name of the State of U. P. These instructions appear to have been issued to avoid the adverse effect of any finding which might be recorded in any suit filed by the Municipal Board in respect of the proprietary right in nazul land. If no such instructions were given then the Municipal Board could have filed the suit as Manager and any finding given in a suit filed by the Municipal Board may bind the State Government. In view of the above, I am of the opinion that any suit affecting proprietary right to nazul land must be filed by or against the State of U. P. and not by any local body which is the Municipal Board in the present case. The instructions contained in paragraph 47 of the nazul Manual are clearly mandatory. The present suit had been filed on the allegations that the respondents have encroached upon the land in dispute which is the nazul land and further an injunction had been sought restraining the respondents from interfering with the possession of the land in dispute. The main issue framed was as to whether the land in dispute is the nazul land or not. In the circumstances the suit in question is affecting proprietary right of the State Government in respect of the nazul land. The suit should, therefore, have been brought by the State of U. P. and as such the suit filed by the Municipal Board was clearly not maintainable. Learned counsel for the appellant has further urged that the present suit is in fact a suit based on possessory title and the question of affecting proprieta ry right of the State Government in regard to nazul land is not involved. So far as the legal proposition is concerned, I agree with the learned counsel that in case the suit is filed merely on the basis of possessory title, the suit could be filed by the Municipal Board but in the instant case, as I have already held above, the suit as framed is not merely on the basis of possessory title but possession and injunction has been sought after seeking as adjudication from the Court of law that the land in suit is nazul land. In the circumstances, in my opinion the view taken by the trial Court as well as the appellate Court that the suit is not maintainable in law is a correct view and no interference is called for. Since I have held that the suit itself is not maintainable, it is not neces sary for me to go into merits of the second submission advanced by the learned standing counsel. In fact, once the trial Court as well as the appellate Court had found that the suit was not maintainable, it was not necessary for them to have gone into issue No. 4 and other merits of the case. It is, however, further made clear that any finding given by the trial Court or by the appellate Court, in regard to the title of land in suit will not be in regard to the title of land in suit will not be binding on the State Government in any subsequent suit filed by the State Government. This position has been conceded by Shri G. N. Verma, the learned counsel appearing on behalf of the respon dents. It will be open to the Courts in a subsequent suit if filed to go into the merits of the case afresh on the question of title to the land in dispute. In the result, the appeal fails and is, accordingly, dismissed, but in the circumstances of the case, parties are directed to bear their own costs. .