UDAI SINGH Vs. GAON SABHA AND ORS.

JUDGEMENT

(1.) THIS is the Plaintiffs second appeal filed against the Defendants for cancellation of the order passed under Section 122B of U.P. Zamindari Abolition and Land Reforms Act (in short the Act) as well as a declaration to that effect be made that the judgment passed is not binding upon them as well as Defendants be restrained from interfering and dispossessing the Plaintiff from Plots No. 286 and 267 as well as the cost of the same should be paid. It has been stated in the plaint that Plaintiff as well as the Defendants -second set are the owner in possession of the plot in dispute and a house has already been constructed which has been shown in the plaint -map as ADEF, EFGH and GHIJ. Towards the south of the house, Plot No. 265 belonging to Parsadi, Devi Sahai and Lukka was there. Plaintiff and Bhagmal have purchased 1/3rd share and this plot has been shown as CPMN. House of Babu Giri has been shown as JHIJ which has been purchased by one Smt. Jaggo and rest of the land of Plot No. 265 has been purchased by him and this property was handed over to Babu Giri. It was further stated that Parsadi was using land towards east and subsequently it has been transferred to the Plaintiff and Defendants -second set and they have constructed a house in the year 1967 and a tube -well and Chakki has been installed.

(2.) IN 1981 some objection was made by Gram Sabha regarding this property. Then an application was made by the Plaintiff and the Defendants -second set and then on the basis of resolution dated 25.10.1981 about 150 sq. yard land was allotted on Patta in favour of the Plaintiff and Defendants -second set. Nobody has raised any objection in making the construction. A report by the Lekhpal was made on 12.9.1998 stating therein that the possession of the Plaintiff is illegal and a proceeding under Section 122 B of the Act was initiated. The Plaintiff was under the impression that the property shown as PTSR is the property in Plot No. 266 and this is the property allotted on Patta to the Plaintiff. An order was passed by the Tehsildar concerned on 26.3.1990 for ejectment. A revision was filed which has also been dismissed on 22.2.1990 as well as writ petition filed by the Plaintiff -Appellant has also been dismissed. Subsequently after verification Plaintiff came to know that Plot No. 266 is the north of Plot No. 265 and the parental house has also been included. Though the Plaintiff is in possession of the said property before abolition of Zamindari, therefore, it devolved in favour of the ancestors of the Plaintiff -Appellant. Regarding Plot No. 267, a Patta has been granted in his favour which has been accepted by the Gram Sabha, therefore, any order under Section 122 B of the Act is not applicable and that may be treated to be null and void. On the spot there is a construction and unless and until it is divided, possession of the property cannot be taken.

(3.) THE trial Court after considering the claim of the parties framed various issues and one of the main issues was whether the Plaintiff and Defendants -second set were the owners in possession of Plots No. 266 and 267. Whether any Patta was granted in their favour and various other issues relating to legal possession and whether suit was barred by Section 49 of the Consolidation of Holdings act as well as Section 41 of the Specific Relief Act was also framed.