DHIRAJI Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is a defendants' second appeal against the judgment and decree dated 23-2-70 passed by the Civil and Sessions Judge, Faizabad in Civil Appeal No. 48 of 1967 confirming the judgment and decree dated 7-2-67 passed by the Munsif, Faizabad in suit no. 109 of 1965. It appears that the plaintiff filed a suit for declaration and possession in respect of six agriculture plots described at the foot of the plaint. These plots lay in the Nazool area within the Municipal limits of Faizabad which, it was asserted, belonged to the plaintiff, the Union of India. Defendant-respondent no. 2 was Ziledar of the Opium Department and defendant-respondent no. 3, Smt. Dulari, was impleaded. The plaintiff's case was that the plots were leased out to Ghisey Lal, the predecessor-in-interest of defendants 1 to 5, for a period of one year in the year 1951-52 ; that the said Ghisey Lal relinquished the plots on 10-7-52 and delivered the possession to the District Opium Officer, Faizabad ; that thereafter a lease was granted in favour of Gopal Krishna alias Ram Gopal, the defendant-respondent no. 2, and thereafter, it was alleged, Ghisey Lal filed a collusive suit no. 288 of 1953 against the said Gopal Krishna alias Ram Gopal and obtained an ex parte decree on 20-9-55 and in the execution of the said decree Ghisey Lal took possession over the plots and dispossessed the plaintiff on 19-10-55. Objection under Order XXI rule 100 of the Code of Civil Procedure was filed by the plaintiff, but the same was rejected on 21-4-56 being barred by time whereafter the plaintiff filed a Regular Suit in the revenue court against Ghisey Lal and others. A decision that the revenue court had no jurisdiction to try the suit was recorded and the same was affirmed upto the stage of Board of Revenue, hence the plaintiff filed the instant suit. Ghisey Lal having died during the pendency of the case was substituted by his legal heirs and representatives as defendants 1 to 5. The defendant no. 2, Ram Khelawan, died and he was also substituted by his legal heirs and representatives. The precise prayer for declaration was that the defendants 1 to 6 were not the tenants in the plots in suit and on the basis of this declaration a further relief of possession of plots was claimed. Defendants 1 to 6 contested the suit and filed joint written-statement pleading that Ghisey Lal having been in cultivatory possession of the plots in suit since before the year 1951 and he never having relinquished the said plots, Ghisey Lal and thereafter his legal representatives acquired tenancy rights in the plots ; that the Union of India has no right to file suit through the Opium Department and finally it was urged that the finding having been recorded by the revenue court, the plaintiff was estopped from filing the suit in respect of the same subject-matter and that, in any case, the suit was barred by limitation and no relief for declaration as framed could be granted. After framing necessary issues, the learned Munsif held that Ghisey Lal had relinquished the plots in suit on 10-7-52 and that thereafter the possession of Ghisey Lal and his representatives became that of trespassers. The defence plea of adverse possession was negatived, but it was held that the suit was maintainable and that the decree passed in the revenue case did not bar filing of a fresh suit. It was further held that the Union of India could maintain the suit through the Opium Department and that it was not barred by limitation. The trial court, however, held that a negative declaration to the effect that the defendants were not the tenants of the plots could not be granted and hence the suit for possession alone was decreed. The defendants went up in appeal and the lower appellate court by judgment and decree dated 23-2-70 affirmed the findings recorded by the trial court and while upholding the judgment and decree of the trial court dismissed the appeal with costs. Aggrieved, the defendants have preferred this second appeal before this Court.

(2.) I have heard learned counsel for the parties and perused the record.

(3.) THE next submission made was that Ghisey Lal being in possession of the plots admittedly on 10-7-52 the defendants had perfected their rights under section 18 (1) (c) of the U. P. Zamindari Abolition and Land Reforms Act. Section 18 reads as under :-