High Court
Case Details
Court No. - 36 Case :- SECOND APPEAL No. - 270 of 2024
Legal Reasoning
Appellant :- Jatan Singh Respondent :- Gram Sabha Ismailpur And 8 Others Counsel for Appellant :- Ram Kishore Pandey Counsel for Respondent :- Himanshu Srivastava,Sunil Kumar Singh Hon'ble Kshitij Shailendra,J. 1. Heard Shri Ram Kishore Pandey, learned counsel for the appellant and Shri Sunil Kumar Singh, learned counsel for respondent No.1. 2. Other respondents are performa parties, as far as the controversy is concerned. 3. The plaintiff-appellant filed a suit for permanent prohibitory injunction restraining interference by the Gaon Sabha in respect of property covered by Gata No.306. The claim was based upon the plea of Section 9 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as 'Act, 1950'). In the written statement filed by the Gaon Sabha, it was stated that the disputed land is covered by Gata No. 293 which is the property of Gaon Sabha and has been encroached upon by various persons including plaintiff-appellant. 4. The trial court decreed the suit, however, the decree has been reversed by the lower appellate court and, consequently, the suit has been dismissed. 5. Learned counsel for the appellant submits that the trial court has, while considering the issue no.1, recorded a clear finding based upon the stand taken by the defendant also to the effect that there is a 20 feet wide road in between Gata No. 306 and Gata No. 293 and, therefore, it is not possible that plaintiff who was occupying the land covered by Gata No. 306 would encroach upon the land covered by Gata No. 293 by overstepping 20 feet road existing between the two Gatas. 6. As regards Section 9 of the Act, 1950, after discussing Amin report and other evidences, the settlement of the disputed land in favour of the plaintiff's predecessor and the plaintiff has also been decided. 7. The lower appellate court has reversed the decree by relying upon judgment of hon'ble Supreme Court in the case of Hinch Lal Tiwari Vs. Kamala Devi and Others, AIR 2001 SC 3215 and judgment in the case of Janki Vashdeo Bhojwani and another Vs. Indusland Bank Ltd. and others [2005 (58) ALR 440] and has observed that since Gata No. 293 is a land of pokhar, it is the duty of the administration that encroachment made there over be removed. 8. The contention is that the plaintiff has no concern with the land covered by Gata No. 293 and he had confined his claim over Gata No. 306 only. Learned counsel has not disputed that Gata No. 293 is the land belonging to Gaon Sabha and if it has been encroached upon, such encroachment should be removed. However he submits that his possession over Gata No. 306 be protected and should not be disturbed pursuant to the appellate court's decree. 9. Shri R.K. Pandey, learned counsel further submits that before the trial court as well as before the lower appellate court there was an order of status quo operative and he has filed such order along with the supplementary affidavit which is already on the record. 10. On the other hand, Shri Sunil Kumar Singh, learned counsel for the respondent has vehemently argued that the plaintiff claimed ownership over the land covered by Gata No. 306 as well as Gata No. 293 and has referred to the proceedings under Section 145 Cr.P.C. in this regard. He, however, does not dispute that land covered by Gata No. 306 is recorded as Abadi but under no circumstances Pokhar can be encroached upon and, therefore, any encroachment made by the plaintiff over Gata No. 293 should be removed. 11. He further submits that plaintiff-appellant did not appear in the witness box to lead evidence and, therefore, his case was not proved in accordance with law as rightly held by the appellate court. 12. Prima facie, this Court finds that there being ample evidences as regards the revenue map and other documents coupled with oral evidence that there is a 20 feet road in between Gata No. 293 and Gata No. 306. Once the plaintiff does not claim any rights over the Pokhar land covered by Gata No. 293, his claim of settled possession over Gata No. 306 as per the plea under Section 9 of the Act, 1950 as held by the trial court in his favour could not be dislodged by relying upon the judgement in the case of Hinch Lal Tiwari (supra). 13. Matter requires consideration. 14. Notice need not to be issued to any party as the only contesting party Gaon Sabha is already represented by Shri Sunil Kumar Singh, learned counsel. 15. The instant second appeal is admitted on the following substantial questions of law:- A. Whether the identity of Abadi plot no.306 has been established by the consolidation map as well as from the pleadings, and statement of the then Pradhan Sundar Singh, and the land in dispute being an upper tenant land, and same is settled with the appellant in view of the provision of Section 9 of UPZA & LR Act? B. Whether the appellate court has committed an illegality in allowing the appeal on the ground of the order passed in a proceeding u/s 145 Cr.P.C., which is summary in nature, ignoring the oral as well as documentary evidence, particularly the Amin report? C. Whether the findings of the lower appellate court are vitiated in passing the judgment and decree in view of the Hinch Lal Tiwari vs. Kamla Devi case, in respect of the Abadi land of the appellant? D. Whether the appellate court has passed the decree beyond the pleadings and without reversing the categorical findings in respect of separate location of plot no.293 and 306, and directed the state to initiate the proceeding for eviction in pursuance of order passed by Hon'ble Apex Court in the case of Hinch Lal Tiwari vs. Kamla Devi? 16. Summon the record of the appellate court as well as trial court. 17. List this appeal for final hearing on 04.11.2024. 18. Until further orders of this Court, the parties to the instant appeal shall maintain status quo with regard to the possession over the land covered by Gata No. 306 only. 19. This interim order will not be read in respect of Gata No. 293 (Pokhar). Order Date :- 16.7.2024 K.K.Tiwari