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Hari Ram And Others v. Ram Prasad - SECOND APPEAL No. 798 of 1977  RD-AH 13378 (2 August 2007)
Court No. 27
Second Appeal No. 798 of 1977
Hari Ram and others......................Defendant-appellants
Ram Prasad ......................................Plaintiff-respondent
Hon'ble Pankaj Mithal,J
Heard learned counsel for the parties.
This appeal arises out of the suit for partition and separate possession over one half share in the disputed land.
The suit for partition was instituted by Ram Prasad, son of Angnu against his brother Tula Ram on the allegations that the land in dispute was settled by the erstwhile Zamindar in favour of Angnu for the purposes of tethering cattle and for parking bullock carts etc. The land is about 5 yards X 20 yards in area. The said land is in common use of the family of Angnu and has not been portioned and on abolition of Zamindari it has vested under section 9 of the U.P. Zamindari Abolition and Land Reforms Act with the family of the plaintiff and the defendant. Accordingly, the plaintiff has half share in it and is entitled to possession over the separate half. The suit was contested by the defendant on the ground that the said land had never vested in the family of Angnu by virtue of Section 9 of the Act. It was the land of the Gaon Sabha which was leased out by the Pradhan in favour of the defendant some times in the year 1970 and as such the said land is the exclusive land of the defendant which is not liable to be partitioned at the behest of the plaintiff who has no share in the same.
The Trial Court by the judgment and order dated 17.4.1976 dismissed the suit on the ground that no document has been produced to establish that the land in dispute was settled by the Ex-Zamindar in favour of Angnu. Therefore, the land cannot be treated to have vested in the family of the Angnu on the abolition of the Zamindari. On the other hand, the receipt of payment of rent dated 14.12.1970 showing payment of Rs. 15/- to the Gaon Sabha by the defendant coupled with the statements of the Pradhan DW1 establishes that the land was of the Gaon Sabha and was leased out in favour of the defendant and as such is not liable for partition. However, in appeal preferred by the plaintiff, the lower appellate court reversed the judgment and order of the trial court and decreed the suit for partition of half share as prayed by the plaintiff. The Trial Court relied upon the testimony of PW1 Jitendra Vir Ex-Zamindar who stated that the land in dispute was given by him about 35 years ago to Angnu in lieu the services rendered by him. The land was low lying and was levelled by the said Angnu for use. Therefore, it was held that the land was settled by the Zamindar in favour of Angnu before the abolition of Zamindari and the family of Angnu and thereafter plaintiff and the defendant were in joint possession of the same. Accordingly, the said land came to be vested with the family of Angnu under section 9 of the Act. This story of the land in dispute being leased out by the Gaon Sabha was totally disbelieved.
I have perused both the judgments of the courts below. The statement of Ex-Zamindar PW-1 is very material. He has categorically stated that the land in dispute was a low lying land and therefore he had given the same to Angnu who had levelled it, developed it and had started using. This was done about 35 years ago that means much before the enforcement of UPZA and LR Act. On the other hand, there is no material on record to establish by any stretch of imagination that the said land was ever recorded as the land of the Gaon Sabha. Therefore the Appellate Court has not committed any error in holding that the land in dispute was settled by the Ex-Zamindar in favour of Angnu and since he was in settled possession over the same on or before the date of vesting, i.e. 1.7.1952, the said land ultimately vested in Angnu. Once it is held that with the abolition of Zamindari the said land had vested in Angnu no claim of the Gaon Sabha arises on the said land. Moreover, no document has been produced showing that it became the land of the Gaon Sabha and was recorded as such. The solitary rent receipt of Rs. 15/- dated 14.12.1970 in the name of the defendant is not at all sufficient to hold that the said land was first of all the land of the Gaon Sabha and that it was duly leased out in favour of Gaon Sabha. Testimony of the Pradhan in this regard is not worth reliance as even no resolution of the Gaon Sabha was produced to establish that the Gaon Sabha ever decided to lease out the said land to the defendant. Therefore, in the absence of documentary evidence showing that the said land was recorded in the name of the Gaon Sabha and the resolution of the Gaon Sabha permitting the execution of the lease deed of the said land in favour of the defendant, it cannot be said that the defendant is the lessee of the land in dispute. It may also be noted that the procedure prescribed for executing the lease by the Gaon Sabha was not followed. Thus the findings of the trial court that the land in dispute was leased out by the Gaon Sabha to the defendant and is therefore the exclusive land of the defendant is erroneous and has rightly been set aside by the lower appellate court.
In view of the above discussion no substantial question of law arises in the second appeal, the matter stands concluded by the findings of fact recorded by the lower appellate court.
Accordingly the appeal fails and is dismissed being without substance.
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