RAM KUMAR Vs. GRAM SAMAJ

JUDGEMENT

(1.) The present second appeal has been filed by the plaintiff. The plaintiffs were the intermediaries of the disputed land before the abolition of the Zamindari. Sometimes after the abolition of Zamindari proceedings were taken against them under Rule 115-C framed under the U. P. Zamindari Abolition and Land Reforms Act and they were ordered to be evicted. This order was passed on 2-9-1958. On 24-9- 1958, they issued a notice under Section 80 Civil Procedure Code to the State Government and also gave notice to the Gaon Sabha. The suit was, however, filed without for the period to expire on 3-10-1958. The name of State of U. P. was deleted from the plaint at the time of filing the suit as the notice period had not expired. The suit thus remained exclusively against the Gaon Samaj. Subse quently, the Goaa Samaj put in appearance and filed written statement, under orders of the Court the State was made party on 10-6-1960. The allegations in the plaint were that the disputed land was Sir and Khudkasht land of the plaintiff and the defendant had no right or possession over the same. It was further pleaded that this land was not 'banjar' in the year 1959 and did not vest in the State Government and Gaon Samaj. The order passed by the Tahsildar in Misc. Proceedings under Rule 115-C on 2-5-1958 was challenged as without jurisdiction and illegal as the matter in volved question of title. The relief claimed in the plaint was for a permanent injunction against the defendants executing the order dated 2-9-1958. The other reliefs were for costs and general relief. The suit was tried by the Munsif and various questions were decided by him. He found that the suit for injunc tion was maintainable in the Civil Court. He also found that the State was impleaded after expiry of 2 months from the date of service of the notice and that the suit was competent. It also held that the disputed land was cultivated by the plaintiff from before the Abolition of Zamindari and the plaintiffs were khudkast holder of the same. An appeal was filed by the defendants, i. e. the Gaon Sabha and the State of U. P. The appeal has been allowed by the trial Court below on two grounds. Firstly, it held that the suit was bad for non-joinder of State Government at the time of the filing of the suit and the subsequently impleadment of the Government could not cure the defect. The second finding it recorded was that the plaintiff was not the khudkast holder of the disputed land. As far as the question of non-joinder of the parties was concerned, the Court below relied upon Rule 110-B as it then was framed under the U. P. Zamindari Abolition and Land Reforms Act. Rule 110-B provided that the State Government was to be made a party in suits instituted against Gaon Sabha and the local authority mentioned under that rule. The Court below has relied upon Clause B of that rule which refers to "suits for the declaration of rights and/or of recovery of possession by a Bhumidhar or Sirdar. " Obvio usly this rule will not apply to suits for mere injunction as in the instant case. Any rule has to be construed according to its wordings and not according to the whims of the Court. The other objection relating to the non-maintainability of the suit was that the notice given to the State Government was not proved and the copy of notice filed in the Court could not be said to be a notice which was issued by the plaintiffs. This observation of the Court below is perverse. It rather does mean to show that the Court below made the remark without looking to the evidence at all. P. W. 1 in his examination in chief has stated as under: "gram Sabha Aur State of U. P. ko notice diye the, Yeh es notice ki sahi Nakal hai. Asal Nakal dono par bhi Ram Sarup ke Dastakhat Huye the. Paper number 5/37-C 1 woh dak se Acknowledgment aye tha jis par Collector Saheb ki Muhar lagi huyi thee. " This statement about the original and the copy having been signed by the plain tiff was not at all challenged in the cross-examination. In the circumstances, I hold that the notice was duly proved by the plaintiff P. W. 1 in the circums tances the finding of the Court below that the suit was not maintainable for want of notice under Section 80-C. P. C. is set aside. The suit was perfectly maintainable. As it was a suit for mere injunction and as the notice under Section 80 Civil Procedure Code has been validly given. The State was impleaded after a period of two months as required by Section 80 Civil Procedure Code. The suit against the State Government would be deemed to have been filed on 10-6-1960 when the State was ordered to be impleaded as party, under Section 22 of the Indian Limitation Act, 1908. The finding of the Court below that the suit will be deemed to have been instituted against the State Government on 2-9-1958 cannot be sustained. Now coming to the second argument of the Court below the learned counsel for the appellants pointed out several instances of mis-reading by the Court below. The khasra that has been filed in the Court below seems to have been weeded out on 5-12-1973. The learned counsel for the appellant, however, produced certified copy of the said khasta before me. This is not disputed and there is no reason to doubt the genuineness of the certified copy issued by the Collectorate Record Room. The Court below has observed that this khasra was a suspicious document. i have looked to the khasra and I find that except for an omission about the plots being "serial number" there is no other mistake in it. The Court below has observed that the area mentioned in the khasra in column No. 2 does not tally with the area mentioned in Column No. 22. I have looked to every plot in dispute and for each plot the area is correctly mentioned. There is difference in the area of plot No. 46/1 which is not in dispute before us. The suspicion of the Court below is certainly incorrect. The other observation of the Court below was about Column No. 5 and 6 being blank. The Court below has found that it was proved by Exhibits 1 and 2 that these plots wore in the Zamindari of the plaintiffs Column No. 6 had to be blank. There is no reason for filing it 'unless there was some sub-tenancy. About column No. 5, the earlier entry was Khudkdst of Ram Rekha Badastur in plot No. 46/1. Thereafter all the plots in dispute were mentioned. It so seems that in 1359-F, there was an entry made by red ink on plot No. 46/1 and 46/2 which intervenes and consequently this entry of Badastur was broken by this red ink but this did not take away the right of the intermediary over this plot. However, all these plots are mentioned as cultivated and crop of Toria' has been shown therein. The Gaon Samaj did not allege that it was cultivated by some body else. Even the remarks column was blank. It proves that no body except the person recorded therein was in cultivatory possession. Further Explanation 8 which was relied upon by the trial Court was discarded by the lower appellate Court for flimsy reasons. This was "a document which was obtained perhaps at the instance of the plaintiffs from the Panch, Sarpanch and other village people certifying that the disputed plots were the khudkast of the plaintiffs and were in their cultivatory possession from before the Zamin dari Abolition. This document has been signed by Ram Swaroop Sabhapati and he has also put in his seal thereon. They are also signed by the Panch and Sarpanch. Some of the signatures are in English as well. This document was placed before the defendant's witness who had signed the same during their cross examination. The Court below says that this document is inadmissible as it was the statement of a living person. The Court below seems to have no idea of the provisions of Section 145 of the Evidence Act and the use of a document for that purpose. This document was wholly admissible in evidence and what weight was to be attached to it, would depend upon the statement of the witnesses who was sought to be contradicted. This document contained the seal of Gaon Sabha itself as Chairman and could very well be used against it, as its own admission. There is also misreading relating to the oral evidence of the witnesses. In the circumstances, I find that the finding arrived at by the Court below after discarding Ex. 8, mis-reading khasra of 1359-p', the statement of p. w, 1 Ram Kumar are sufficient to set aside the finding recorded by it. The learned counsel for the appellant further argued that suit was main tainable and he was entitled to a declaration that the order passed by the Tehsildar under Rule 115-C was without jurisdiction, if he was able to prove that a question of bonafide title was involved in the proceedings under Rule 115-C aforesaid. He relied upon a case reported in Paras Nath Singh v. State of U. P. ( 1960 Revenue Decisions 175) In the circumstances if the bona fide dispute of title was involved in the case the Tehsildar cannot be said to have any jurisdiction to pass the impugned order. I do not want to enter into the question of facts and give my own finding on the facts. In the circumstances, the findings recorded by the lower appel late Court are set aside. I hold that the suit was maintainable and the notice issued under Section 80 Civil Procedure Court though not necessary yet sufficiently complied with the provisions of law. As far as the finding about the period of khudkast is concerned, the Court will look into the evidence or re-construct the record in case the record has been weeded out and is directed to decide the case in accordance with the law. The costs of the appeal will abide the ultimate result of the suit. .