Kamruddin (deceased) v. State & Ors.

Being aggrieved by the judgment and order dated

14.1.1988, the State filed an appeal before the Additional Commissioner, who vide order dated

27.11.1989, allowed the appeal and set aside the order dated 14.1.1988 and remanded the case back to the Prescribed Authority with certain directions that the Prescribed Authority shall examine the issue as to whether the sons of the petitioner are minor or major and as to when the land under lease was regularised in their favour. After the remand of the case, the learned Prescribed Authority passed the impugned order dated

19.11.1990 and gave a categorical finding that all the sons of the petitioner are major and Sri Jamaluddin acquired bhumidhari rights on plot no.58/3, area 7- 3 12, 1384 Fasli, on plot no.58/1, 6-14, 1390 Fasli, plot nos.52 and 56, area 20-04 in 1389-1394 Fasli. Liyakat Ali had acquired Adhiwasi right in 1379 Fasli on plot no.112, area 2-3. Nazakat Ali on plot no.8, 9-12, plot no.32/12, 1-08, 69/2, 8-08 in the year 1976, i.e. 1383-1384 Fasli. Masoom Ali had acquired bhumidhari rights on plot no.47, area 12-04 as bhumidhari (adhiwasi) and on plot no.46/1, area 6-04, 1386 fasli, total area 87 Bigha 2 Biswa. Further, the learned Prescribed Authority gave a finding that it appears that the disputed land must have been in the possession of the petitioner Kamruddin. Learned Prescribed Authority, on the basis of the revenue record, has also mentioned in its order that the land is recorded in the name of the sons of the petitioner in their individual name and they were major at the time of the enforcement of the Act. By the impugned order dated 19.11.1990, 48 Bigha 13 Biswa land of the petitioner was declared as surplus. The petitioner, being aggrieved, preferred an appeal before the learned Additional Commissioner, who by an order dated 12.2.1992, also dismissed the appeal and affirmed the finding of the Prescribed Authority, on the ground, that on 8.6.1973 the sons of the petitioner had not acquired bhumidhari rights and they have acquired the rights in the land by the competent courts during 1384-1390 Fasli. I have heard the learned counsel for the parties and have carefully gone through the record. By a perusal of the order of the Prescribed Authority, it shows that the learned Prescribed Authority has given a finding that it appears that the 4 disputed land must have been in the possession of the petitioner Kamruddin. There is no definite finding on the basis of any cogent evidence adduced by the State. Learned Prescribed Authority, on the basis of the revenue record, has also mentioned in its order that the land is recorded in the name of the sons of the petitioner in their individual name and they were major at the time of the enforcement of the Act. This fact is also not disputed that the sons of the petitioner acquired bhumidhari rights in 1384 Fasli. On the basis of unauthorised occupancy and thereafter as mentioned above, land was regularised in their name by the State itself treating them in an unauthorised occupant on the land in question. On one hand, the State Government is regularising the land in their favour, but on the other hand, this land was being clubbed with the tenure holder. This finding is a perverse finding. In other land, they have acquired bhumidhari rights on the basis of adverse possession in their individual capacity. Therefore, in any manner, the land cannot be clubbed with the land of their father since all the sons are major as held by the Prescribed Authority. Learned Additional Commissioner has also given a perverse finding that there is no evidence on record that the disputed land was recorded on the behest of the tenure holder in the name of his sons. Part of the land was of the State Government in possession of the sons of the tenure holder as unauthorised occupants. On the basis of their possession the same was regularised in their name by the State Government and some of the land was belonging to another tenure holder wherein they have acquired bhumidhari righs 5 after 1384 fasli. The above finding of the learned Additional Commissioner is also perverse. If the rights are acquired on the basis of adverse possession, the same cannot be said to be benami, it will be only in the case of transfer. In view of the discussion made in the foregoing paragraphs, the writ petition is liable to be allowed. Same is allowed. Impugned judgment and order dated

19.11.1990 passed by Prescribed Authority and the judgment and order dated 12.2.1992 passed by Additional Commissioner (Administration) Kumaun Division, Nainital are set aside. It is held that the land of the petitioners, which they have acquired after 1384 fasli, were in their possession, and cannot treated in the possession of tenure holder Late Sri Kamruddin and cannot be clubbed on the cut off date, i.e., 8.6.1973. So far as the finding in respect of granting benefit of section 5(3)(a)(b) of the Act is concerned, the same is affirmed. It is made clear that since Sri Kamruddin had died the land must have acquired by their sons in succession. If the sons are having more land, exceeding ceiling limit, then the Prescribed Authority would be at liberty to initiate proceedings under the Act. All pending applications stand disposed of. Rajni (B.S. Verma, J.) 19.11.2012