SHEORAJI Vs. GRAM SABHA PAKRI NAGAUPUR

JUDGEMENT

(1.) A Writ Petition No. 404 of 1971 has been filed by Smt. Sheoraji and Writ Petition No. 395 of 1971 has been filed by Sati Prasad and others. Both these writ petitions have been directed against the same orders passed by the Subordinate Consolidation authorities. They were connected together. They are being dispos ed of by this common judgment. In writ petition No. 404 of 1971 the dispute has been confined with respect to plot Nos. 715/6 and 716/2 which according to the as sertion of the petitioner are groves. In writ petition No. 395 of 1971 various petitioners have claimed to have perfected their rights with respect to various plots mentioned in para 17 of the writ petition. It may be mentioned that in the instant case dispute between the petitioners and opposite party No. 4 Gaon Sabha Pakri relates to the plots mentioned above. In both these cases objections had been filed by Gaon Sabha Pakri claiming it to be their property while the petitioners asserted to have acquired Sirdari rights by virtue of ad verse possession. It is further asserted by the petitioner Smt. Sheo raji in Writ Petition No. 404 of 1971 that the disputed plots were groves and she was in possession over the same. The dispute was referred to the Consolidation Officer who ordered the names of the petitioners to be expunged and directed the same to be recorded in the name of Gaon Sabha. This order is of September 30, 1969. The appeals were preferred by the petitioners but they were dismissed by the Settlement Officer (Consolidation) on January 3, 1970. The re visions preferred by the petitioners were also dismissed by the De puty Director of Consolidation on November 23, 1970. This is how the matter has now come up before this court and the various orders passed by the respective Consolidation authorities have been serious ly challenged on several grounds which I propose to consider in-seriatim. Learned counsel for the petitioners in the first instance argued that the petitioners had perfected their rights by reason of fact that, they had been in continuous possession and Gaon Sabha did not take any legal proceedings to file a suit for their ejectment and this aspect of the matter has not been considered by any of the consoli dation courts. He also maintained that the limitation involved for filing such a suit has not been duly considered by the consolidation courts. In my opinion both these contentions are devoid of sub stance inasmuch, the limitation has been taken into consideration but not in the manner as urged by the learned counsel for the parties. In order to decide the issue it is necessary to go into the back ground of the facts before the law relied upon by this learned counsel for the petitioners can be appreciated. It may be mentioned that the proceedings under Rule 115-C, U.P. Zamindari Abolition and Land Reforms Rules (hereinafter to be referred as rules) had been initiated by the Gaon Sabha against the petitioners with respect to certain plots of land- On this orders had been passed on May 30, 1957 under Section 115-D. The order passed by the Tehsildar is Annexure-1 in W.P. No. 404 of 1971. The relevant portion of the order is 'the land is entered as jungle which is property of G.S. Therefore, the defen dants are ordered to vacate the land and pay up two years rent cal culated at circular rate. It is, therefore, clear that proceedings had been initiated for throwing out the trespassers who were asserting possession over the disputed property. The petitioners in order to protect and continue their illegal possession filed a suit for injunc tion against Gaon Sabha for interfering with their possession. This suit was dismissed on September 12, 1960 by the judgment and dec ree passed by Sri J.P. Singh a, learned Munsif, Akberpur. The ap peal preferred by the petitioner was also dismissed on January 27, 1961. There are certain observation made in this order on the basis of which a considerable amount of argument was built up by the learned counsel for the petitioners. The main contention of the petitioners was based on the statement of Ram Dularey. The then Pradhan of Gaon Sabha, whose statement was recorded on March 18, 1960, wherein, he had stated that petitioners had entered into cultivatory possession over the plots in dispute prior to the date of vesting and ever since then had been in possession and occupation of the same. In my opinion, this statement neither inspires confidence or can be accepted because a clear cut find ing has been recorded after perusal of the statement of Ram Dularey that the Pradhan had colluded with the petitioners. This statement also is belied by the fact that the land in dispute is not recorded in the cultivatory possession of anyone and the revenue papers show that it is covered by Jangle Dhak and there has been no entry cannot be held that the limitation would start running from 1360 F. which according to Ram Dularey Pradhan had been the Fasli year of pos session of the petitioners. Learned Counsel for the petitioners have not brought anything on record from which this Court can record a finding with respect to the commencement on the cultivatory possession of the petitioners except Smt. Sheoraji, petitioner of Writ Petition No. 404 of 1971, claiming then to be her plots, over which she had set up a dispute. According to her the plots in dispute are groves. This position will be discussed later on. In the circum stances, I do not find any substance in the submission of the learned counsel for the petitioners that the petitioners had already perfected their rights by adverse possession when the limitations was of two years. Such a case has not been accepted by any of the subordinate consolidation authorities. Even the learned Civil and Sessions Judge, Faizabad in his order dated January 27, 1961, clearly held, that the petitioners were not entitled to Bhumidhari or Sirdari rights. In my opinion, there was no necessity for Gaon Sabha to institute any suit under Section 209 of U.P. Z.A. and L.R. Act (hereinafter to be referred as the Act) when they had already initiated a proceeding. If the petitioners were dissatisfied with the order passed by the learned Tahsildar under rule 115-D of the Rules, it was for them to have established the rights claimed by them, it is curious to note that the petitioners only filed a suit for injunction rather than filing t a suit to establish their rights. This injunction was not grant ed. I, therefore, see no substance, in the submission of the learned counsel for the petitioners that since Gaon Sabha had failed to file a suit under Section 209 of the Act in order to seek a decree for ejectment, the rights of the Gaon Sabha, in any manner, were for feited and the petitioners would be deemed to have preferred their rights. It is well settled that continuous possession does not confer any rights. Learned Counsel for the petitioners placed reliance on a deci sion Paras Nath Singh v. State of U. P. and others 1960 R.D. 175 in assertion of the rights that the Tahsildar had no jurisdiction under rules 115-C to 115-F of the rules to institute any enquiry into the objections filed by a person. This argument and the decision lost its weight in view of amended Section 122-B of the Act which has been made retrospec tive in operation. Learned counsel for the petitioner then relied on a Full Bench of this Court in Abaul Wahid Khan v D. D. C., Jaunpur and others 1968 R.D. 57 wherein it is stated that Section 201 of the Act deals with a fac tual states, that is, if a suit is not filed for whatever reasons, the consequences mentioned in that Section would follow. Section 209 of the Act provides a remedy for a person to eject a trespasser. Such a proceeding is not contemplated by the U.P. Consolidation of Hold ings Act was concerned. In my opinion, this case could not be made applicable to the facts of the present case. It was for the petitioners to establish that they had acquired certain status in the light of the factual circumstances and I have no hesitation in holding that the petitioners miserably failed to establish their rights over the dis puted plots. In the circumstances, the argument that no suit having been filed within limitation under Section 209 of the Act to eject the petitioners, who in the eyes of law are trespassers, the rights by Gaon Sabha had been forfeited and the petitioners should be deemed to have perfected their rights by adverse possession, is devoid of sub stance. I have already held that the fact of cultivatory possession of the petitioners is belied by the extracts of Khasra from 1369 F. to 1373 F. The original Khataunis of 1359 F. and 1360 F. have been perused by the Settlement Officer (Consolidation) and he observed that the plots in dispute had been recorded as Jungle Dhak and there had been no entry of crop or cultivation or occupation. That being so, the entire argument of the learned counsel for the petitioners is devoid of a substance and false to ground. Learned counsel for the petitioner Smt. Sheoraji vehemently argued that plot Nos. 715|6 and 716|2 had been reported to be groves by the consolidationer vide his report dated September 29, 1969 contained in Annexure 6- He therefore, argued that over the groves Gaon Sabha could not be deemed to have any vested rightls. Learned counsel argued that no doubt the Deputy Director of Conso lidation could reject it, but only after inspecting the plots and coming to a conclusion that the report could, not be accepted. I would like to observe that this point in different manner was placed before the Deputy Director of Consolidation who observed that the 'report of Assistant Consolidation Officer, showing certain trees was relied. She may have scattered trees, but she has failed to prove that these trees constitute the plots as a grove'. This finding is contrary to the report submitted by Kanungo and con-tamed in Annexure No. 6 in which he was clearly stated that these plots have the character of a grove. In my opinion, the Deputy Dir ector of Consolidation could not have discarded this report without inspecting the place. The learned counsel relied on a decision. Satya Narain and others v. Ram Manohar and others 1977 R.D. 257 where in I myself had made an observation that the Deputy Director of Consolidation and the Settlement Officer (Consolidation) should have made a local inspection before upsetting the order because the or der had been passed by the Consolidation Officer after making the local inspection. There appear to be some substance in the contention of the learned counsel for the petitioner that these plots had atleast a disputed character which could be termed as a grove. Look ing to the sketch map attached with the report I find that atleast ten trees are such which are about 20 years ago. Likewise in plot No. 715 there are 8 or 9 trees of advanced age. It would have been better if before recording a finding, the Deputy Director of Consoli dation had inspected the site. In this view of the matter, I think the contention of the learned counsel for the petitioner Smt Sheo-laji deserves to succeed. I would also like to observe that Writ Petition No. 395 of 1972 deserves to be dismissed on the ground of laches. The order im pugned in the writ petition is of November 23, 1970 and the writ pe tition was presented in the Court on March 13, 1972, almost after a lapse of more than a year. No explanation for approaching this court at the belated stage has been disclosed in the writ petition. It ap pears that since Writ Petition No. 404 of 1971 had been admitted, the petitioners also thought of taking a chance before this Court im pugning the very same order. This petition, in my opinion, suffers from inherent laches and the remedy under Article 226 of the Cons titution being discretionary in nature, I do not think that it would be just and proper to inference with the impugned order for which a considerable delay had been occasioned by the petitioners and for which there is no satisfactory explanation. The result is that in view of the observations made above Writ Petition No- 404 of 1971 succeeds and is allowed and Writ Petition No. 395 of 1972 is dismissed. I further direct that the Deputy Director of Consolidation will restore the revision preferred by Smt. Sheoraji to its original num ber and proceed to dispose it of in the light of the observations made above after determining the nature of the plots mentioned in W.P. In the special circumstances of the case I make no order as to costs.