KRISHNA SINGH Vs. HARI DUTTA

JUDGEMENT

(1.) This is a second appeal against the judgment and decree dated 5-7-1971 passed by the learned Commissioner, Kumaun Division, reversing the judgment and decree of the Asstt. Collector 1st Class in the case under Sec. 209 of the U. P. Z. A. and L. R. Act.

(2.) The facts of the case briefly are that Hari Dutta and his brother Narottam obtained the land in suit on the basis of allotment from the State of U. P. on 7-7-53. He sold this land to one Prem Singh for Rs. 800.00 and in pursuance of the Ekrarnama entered into in this behalf, Prem Singh entered into the possession of the land. Later on the State of U. P. learnt through the Patwari about this illegal transfer and Tahsildar at the instance of the Supdt. T. and B. gave a notice to Hari Dutta etc. to show cause under Sec. 4(1) L. E. Act for making the alienated without permission. In that case the copy of the judgment of the Tahsildar, Haldwani shows that both the parties pleaded that it was not a case of alienation but that Prem Singh had been admitted as a helper in the agricultural operations on Adhiyawala basis. In that case the P. W. Ganesh Chandra, Patwari, has clearly stated that Prem Singh had entered into possession of the land since 1360 F and that he had seen the papers with Prem Singh which evidenced that he had purchased the land from Hari Dutta and Narottam. The sale deed, however, was not produced before the court and, therefore, the Tahsildar, accepting the plea of Sajhi, vacated the notice on 3-3-58. Later on Prem Singh sold this land to one Kishan Singh for Rs. 2,000.00 and another Ekrarnama to that effect was entered into on 10-5-62. However all the time Hari Dutta continued to be recorded as tenant-in-chief in column 4 of the Khasra and the name of Prem Singh was entered in class 20 of the khatauni with red ink in 1367 F with one year period. The name of Kishan Singh finds place in the khasra of 1367 F for the first time though Prem Singh admitted that after the sale he handed over possession to Kishan Singh.

(3.) From the narration of the above facts it is clear that though Narottam and Hari Dutta continued to be recorded as tenant-in-chief they were not in possession of the land in suit since July 1953 when first Prem Singh took over possession and later on passed his claim on the land to Kishan Singh. As regards the order of the Tahsildar vacating the notice, the trial court as well as the first appellate court came to the conclusion that the parties colluded to get the judgment in their favour, for if the sale was established both Hari Dutta and Prem Singh could have lost the title as well as the possession of the land for the transfer of the land was probably not possible legally and was void.