HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 1068 of 2001 Dhyan Singh Appellant/Plaintiff VERSUS Shyam Singh & others ..Respondents Dated: 30.6.2008 C.D. Bahuguna, counsel for the appellant M.S. Chauhan, Counsel for the respondent no.1 T.S. Fartyal, Counsel for the respondent no.2 Hon’ble Rajesh Tandon J. Heard Sri C.D. Bahuguana counsel for the appellant, Sri M.S. Chauhan, counsel for the respondent no. 1, none appears for respondent no. 2 despite several opportunities were given. The present First Appeal has been filed by the appellant against the Judgment and decree dated 04-07-2001 passed by the District Judge, Pithoragarh in Original Suit No. 31 of 1996. The brief facts of the case are the plaintiff/appellant instituted a suit for declaration and permanent injunction in the court of District Judge, Pithoragarh, on the averments that the land-in- question which is in the measurement of 20 Nali 11 Muthi, situate in Kandahar Tok of village Mirthi, (Narayan Nagar), Didihat, District Pithoragarh, is a lease land which was purchased by the plaintiff/appellant's father Nain Singh along with Kunwar Singh, the father of the respondent no. 1, by 2 means of a registered sale deed dated 07-10-1944 from one Sri Udai Singh. The case of the plaintiff/appellant is that although the family members of the plaintiff/appellant have been in continuous possession of the land-in-question right from the year 1944 but during record settlement operation in the year 1962 when he and his father were in service in Indian Army and were far away from the village, the respondent nos. 1 and 2 got their names recorded over the land-in-question in Varg-5 and then got the same regularized on their names on the averments of depositing 20 times of the land revenue. It is also the case of the plaintiff/appellant that in the year 1994, the respondent no. 2 Inder Singh claimed that the land-in-question was recorded in his name and the plaintiff/appellant should vacate the land-in- question. On inspection the plaintiff found it correct and then he filed a Mutation case no. 5 of 1994-95 before the Tehsildar, Didihat (Pithoragarh) for mutating his name over the land-in- question but the application was rejected in the month of March 1995. Thereafter the plaintiff/appellant instituted a regular civil suit under appeal. The plaintiff by instituting the regular suit under appeal sought the relief for declaring him lease-holder of land in question as also for permanent injunction, restraining the respondents from interfering with the possession of the plaintiff/appellant over the land in question. The defendants/respondents Shyam Singh and Inder Singh filed joint written statement before the trial court and stated therein that they were in exclusive possession of the land-in-question during the record settlement operation in 1962 and their names were recorded in Varg-5 as Bhumidhar over the land in question. They also took a different stand in the same breath, stating that the State Govt. has leased out the land 3 in question in their favour. The stand taken by the defendants/ respondents in Paragraph 8 of the written statements reads as under: “ oknh dk mDr lEiw.kZ Hkwfe esa dHkh Hkh dCtk ugha jgkA ooDr canksoLr] rFkk ckn esa Hkh mDr Hkwfe izfroknhx.k la[;k 2 o 3 dk dCtk gksus ls] eky dk [kkrksa esa mUgha ds uke ntZ fd;k fd;k x;k] rFkk jktLo vfHkys[kksa esa Js.kh 5 ds Hkwfe/kj Lokeh nksuksa mRrjnkrk mDr dkj.kksa ls cuk;s x;s gSa rFkk mudh Hkwfe jkT; ljdkj }kjk muds uke ij ukfer Hkh dh tk pqdh gSA” On the pleadings of the parties, the trial court framed following Issues: 1- D;k fookfnr lEifRr ds lEcU/k esa oknh ds ikl mldk oS/k iV~Vk gS\ 2- D;k oknh fookfnr Hkwfe ij dkfct gS\ 2- D;k fookfnr Hkwfe@lEifRr ij tehankjh fouk'k ,oa Hkwfe lq/kkj vf/kfu;e ds izkfo/kku ykxw gksrs gS\ 3- D;k okn flfoy izfØ;k lafgrk dh /kkjk 80 ds izkfo/kkuksa ls okf/kr gS\ 5- D;k oknh ekaxs x;s vuqrks"k dks ikus dk vf/kdkjh gS\ Both the parties adduced evidence and produced their witnesses in support of the rival contentions. Plaintiff has examined Sri Bhagwani Singh as P.W. 1, Dhyan Singh as P.W.2. The defendants have examined Sri Shyam Singh as D.W.1 and Sri Inder Singh as P.W.2. The plaintiff also filed copy of Khataun of village Talli Mirthi, copy of sale deed, original sale deed dated 10.3.1944. Copy of patta of Nazul land, copy of settlement map and copy of mutation order of Tehsildar dated 30.3.1995. 4 The trial court recorded the findings on Issue nos. 1, 2 and 5 against the plaintiff/appellant and in favour of the defendants/respondents. The trial court recorded finding that the area of the lease land purchased by late Nain Singh (the father of the plaintiff) and late Kunwar Singh (the father of defendant No.1 Shyam Singh) was only 2 Nali land and not 20 Nali 11 Muthi land. On Issue no. 2, which relates to the question of actual physical possession, the trail court recorded finding that possession of the plaintiff over the land in question was not established. The trial court also recorded finding that there was no lease in the name of the Plaintiff over the land-in-question and rather lease Patta was in the names of the defendants/respondents Shyam Singh and Inder Singh. As regards Issue 3, the trial court has recorded the finding that the land-in-question was a Non-Z.A- land and the provisions of the U.P.Z.A. & L.R. Act were not attracted. As regards Issue no. 4 the trial court recorded finding that no notice under section 80 CPC was required and the Issue was decided accordingly. Record of the trial court has been summoned to this Court, it would be convenient to decide all the Issues in the light of the evidence available on the records. Since Issue no.1 and 2 are closely related to each other and the evidence of the Issue nos. 1 is dependent on evidence of Issue no.2, both the issues are being dealt with jointly. From the perusal of the evidence on record it is apparent that a lease deed was executed on 11-07-1931 in respect of 2 Nali Non-Z.A. land by the State Govt. in favour of one Ganesh Datt Kharkwal under the provisions of the Government Grants Act, 5 1935 (paper no.11Ga). Similarly, one more lease deed in respect of 2 Nali Non-Z.A. land was executed by the State Government as on 24-01-1934 in favour of Nirmal Singh (paper no.10Ga). Subsequently, the lease-land in favour of Ganesh Datt Kharkwal was purchased by Nirmal Singh aforesaid. Nirmal Singh thereafter died and his son Gaffoor alias Chandu and his wife Sakuran sold the entire land of both the lease deeds to one Udai Singh (Paper no.9 Ga). Thereafter, Udai Singh sold the entire land purchased by him from Gaffoor and Sakuran, jointly to Nain Singh, the father of the plaintiff/appellant and Kunwar Singh, the father of the respondents no.1 Shyam Singh, by way of a registered sale-deed dated 07-10-1944 (Paper no.46Ga). In view of Paragraph no. 71-A of the Nazul manual, a lease land remains transferable by sale or otherwise. Even otherwise, no plea to the contrary has been taken by the defendants/respondents in this regard. In the sale-deed dated 07-10-1944 (Paper no.46Ga), there is no mention of the exact area of the land to have been sold to Nain Singh and Kunwar Singh by sale-deed dated 07-10-1944 and only this much is stated that entire land held and purchased by Udai Singh from Gaffoor and Sakuran has been sold away by them to Nain Singh and Kunwar Singh. The trial court has recorded the finding that since lease deed of Ganesh Datt Kharkwal was not filed in the record of the trial court, therefore, it could not be presumed that such land was also purchased by late Nain Singh (father of the plaintiff/appellant) and Kunwar Singh. The finding of the trial court is as under: “tSlk fd Åij dgk x;k gS fd mUgksaus ml tehu dks Hkh [kjhnk tksa fd if.Mr x.ks’knRr [kdZoky v0ew0m0 9@28 }kjk yht ij yh Fkh ijUrq oknh }kjk og yht iV~Vk nkf[ky 6 ugha fd;k x;k gSA bl izdkj oknh vf/kd ls vf/kd nks ukyh Hkwfe dk gh [kjhnnkj ekuk tk ldrk gSA” A copy of lease-deed paper No. 50 executed on 11-07-1931 in respect of 2 Nali land by the State Govt. in favour of one Ganesh Datt Kharkwal under the provisions of the Government Grants Act, 1895 is part of the record of the trial court and it is marked as paper no.11Ga. Therefore, the finding of the trial court that a copy of lease deed of Ganesh Datt Kharkwal was not filed in the trial court, is apparently erroneous and the conclusion reached on that basis that only 2 Nali land was purchased by the father of the plaintiff/appellant and Kunwar Singh in the year 1944, becomes erroneous. As per stand of the plaintiff/appellant the area of both the lease-deeds of the year 1931 and 1934 is 4 Nali on record, but in extension of the said 4 Nali lease land, late Nirmal Singh and Udai Singh had occupied and possessed 20 Nali and 11 Muthi land; and late Udai Singh ultimately sold entire 20 Nali and 11 Muthi land in his possession to the father of the Plaintiff Nain Singh and his uncle Kunwar Singh by registered sale-deed dated 07-10-1944. The trial court has recorded the finding to the effect that when only 2 Nali land was purchased by the father of the Plaintiff Nain Singh and his uncle Kunwar Singh, how the plaintiff could claim to be in possession of 18 Nali land. As per submission of the Counsel for the appellant, while posing this question before the plaintiff, the trial court was required to pose the same question before the defendant Inder Singh also as to how he was in possession of 20 Nali 11 Muthi land when even a small fraction of land was neither purchased by him or his 7 father Jagat Singh from any lease holder nor the same has been allotted to him or his father by the State Government in the year 1944 or at any time prior to record settlement in the year 1962. The burden was equally on both the parties as it is settled law that when both the parties adduce evidence in support of any claim, burden lies equally on both the parties to establish the individual claim. The authority of law, which can be conveniently referred to in this respect is-1993 (2) Allhabad Law Reports-315, Laxman Prasad Vs. Ram Kumar Singh, wherein, the following is observed in the body of judgment: “ It is also one of the well settled principle of law that when both the parties have led evidence on the point in issue, the burden to prove loses its importance and it is the duty or the function of the court to appreciate the evidence led by both the parties and to arrive at a finding on the basis of appreciation of evidence and I find support for this view of mine from decision of Privy Council in the case of Mohd. Aslam Khan V. Feroz Shah (AIR 1932 PC228) and N.B. Calholies V. Thuklam Parlo (AIR 1959 SC31)” As regard discharging the burden about retaining entire land of 20 Nali 11 Muthi, the defendant Inder Singh failed to produce any lease deed granted by the State Govt. in his favour or in favour of his father Jagat Singh at any point of time. He also failed to establish a plea taken by him in Para 8 of the W.S. to the effect that by entry of his name in Varg -9, he had become Bhumidhar of the land in question. The trial court failed to appreciate this aspect of the matter that a person like 8 defendant Inder Singh has no trace over the lease land since the year 1944 when the plaintiff‘s father Nain Singh along with Kunwar Singh had purchased the land in question. The case of the plaintiff/appellant is that by purchasing the land by sale deed dated 07-10-1994, his father got possession over 20 Nali 11 Muthi land with late Kunwar Singh. Therefore, the plaintiff has established his possession over 20 Nali 11 Muthi land on the strength of his sale-deed of 1944, the original lease of which was duly granted by the competent authority in the year 1931 and 1934. No such basis or foundation has been set forth by the defendant Inder Singh in the written statements or in any other evidence. He claimed his possession on the basis of Varg-9 entry recorded during record operation in 1962. He has not produced any evidence before the trial court to establish his possession over the land in question prior to the year 1962. The plaintiff/appellant claims the entry of Varg-9 in the name of defendant Inder Singh As false and fictitious, as there is no trace of possession of the defendant Inder Singh over the land in question prior to the year 1962. I find force in the submission of the learned counsel for the appellant that in absence of any trace of possession of defendant/respondent Inder Singh over any portion of the land in question prior to the year 1962, the possession claimed by the defendant Inder Singh since the year 1944 or nearby period over the land in question only on the basis of his alleged possession during record operation in the year 1962, is not believable at all and, therefore, it cannot be presumed that any lease (Patta) was granted/executed in his favour or in favour of his father Jagat Singh in or around the year 1962 by any authority on the basis of the alleged continuous possession 9 prior to the year 1962. The entry of Varg-9 in the name of the defendant/respondent Inder Singh cannot be said to be genuine. I also find substance in the submission of the learned counsel for the appellant that the entry of Varg-9 cannot confer a Bhumidhari right or a right of lease over Govt. land, on the defendant Inder Singh, as claimed by him in Paragraph 8 of the written statement. A further submission of the counsel for the appellant is that on perusal of finding of Trial Court on issue No.3, it is undisputed that the land in question is a Non-Z.A. land and is Nazul land as well belonging to the State Govt. and the provisions of the U.P. Z.A. & L.R. Act are not applicable to this land and the land is governed by the Government Grants Act, 1935 and the Nazul Manual. Since the land in question was not the land of erstwhile Zamidar, prior to the date of the vesting under Section 4 of the U.P.Z.A. & L.R. Act, and since it has although been a Government land, therefore, no question would arise to regularize the said land in the name of any person on the basis of depositing 20 times of the land revenue. I find substance in the submission of the counsel for the appellant. It is not probable that 20 times of the land revenue was deposited by the defendants in respect of the Non-Z.A. land for becoming Bhumidhar under Varg-9 entry as per plea taken in Paragraph no. 8 of the W.S. In respect of the Non-Z.A. land, lease (Patta) cannot be granted under the provisions of the U.P.Z.A. Act. A lease (Patta) in respect of such land, can be granted only under the provisions of the Government Grants Act, 1895, keeping in view of the provisions of the Nazul Manual. Therefore, the plea of the respondents, particularly that of respondent no.2, Sri Inder 10 Singh to the effect that a lease was granted in his favour or in favour of his father Jagat Singh in or around the year 1962, during record operation, after depositing 20 times of land revenue, is not sustainable in the eye of law. I have examined the entire records of the trial court and I have not found in the record file of the trial court, any copy of lease (Patta) executed by the competent authority of the State Government in favour of the respondents. An adverse inference may be drawn for non-production of the copy of the lease (Patta) by the respondents in the trial court that no Patta was executed/granted by any competent authority of the State Govt. in favour of the respondents in respect of the land in question in or around the year 1962. Alleged Patta in favour of the respondents by any revenue authority in respect the Nazul land under the provisions of the U.P.Z.A. Act, can be termed as a void document. The trial court while dealing with the issue no.1 recorded the following finding: “pqafd tehu mRrj izns’k ljdkj dh Fkh vkSj cUnksoLr ds le; o"kZ 1962-63 eas izfroknh bUnzflag o ';keflag ds dCts eas ik;h x;h rc muds uke Js.kh&5 eas voS/k dCtsnkj dh gSfl;r ls ntZ gqbZ vkSj ftlds ckor mUgksaus 20 xq.kk yxku nkf[ky fd;k vkSj ;g fu;fer iV~Vsnkj cusA” As discussed above, in Para. 8 of the W.S., the defendant Inder Singh claimed to have become Bhumidhar over the land in question by Varg-9 entry but the above finding of the trial court goes contrary to the pleadings set up by the defendants. There is inherent illegality in the findings recorded by the trial court, as regards execution of Patta on the name of the 11 defendants/respondents. Moreover, without verifying availability of a copy of lease-Patta in the records of the trial court and without formal proof of execution of such Patta in favour of the defendants/respondents, by the statements of the defendants/respondents itself, there was no justification for the trial court to record specific finding in favour of the defendants/respondents about granting of lease (Patta) in respect of the land in question. Therefore, entire findings of the trial court on Issue no. 1 vitiates in law. The second issue before the trial court was-Whether the plaintiff is in possession of the land in question. The plaintiff/appellant adduced evidence to prove his actual physical possession over the land in question by producing himself in the witness box. He also produced a witness, named Bhagwan Singh as P.W.-1, who is the Patwari of the area, who in his statements categorically stated that the plaintiff is in actual physical possession of the land in question as he was found in possession during the Revenue Partal (dCtk iMrky) which was held in the Fasli year 1404 corresponding to the English calendar year 1996-97. He in his statements duly proved the Khasra document, which was prepared during Revenue Partal (dCtk iMrky). A duly proved copy of Khasra of the land in question is available as paper no. 57Ga in the lower court record file. In the column of the possession of the Khasra, the name of the plaintiff/appellant is recorded over entire 20 Nali 11 Muthi land. While recording finding on Issue no.2, the trial court discarded the entry of possession of the plaintiff/appellant on the ground that when possession of the plaintiff/appellant was found over the land in question during Revenue Partal, it was 12 not informed to the concerned Tehsildar for further steps. The finding reads as under: “ tgka rd iVokjh dh izfof"V;ksa dk loky gS easjh jk; eas mleas Hkh vf/kd fo’okl ugha fd;k tk ldrk D;ksafd ;fn ml le; fookfnr Hkwfe ij oknh dk dCtk ik;k Fkk rc mlus fjiksVZ lEcfU/kr rglhynkj dks dk;Zokgh djus ds fy, nh tkuh pkfg, FkhA bl izdkj ;g okn foUnwq Hkh oknh ds fo:} ,oa izfroknhx.k ds i{k eas fu.khZr fd;k tkrk gSA” The finding of the trial court is not based on any evidence whatever but on conjectures. Khasra Paper no. 57 Ga is a Public document, collected from the revenue records of the revenue department. Since the entry of possession of the plaintiff/appellant over the land in question has already been entered in the Khasra of the revenue department, there was no basis for the trial court to record baseless finding that report of possession was not sent to the Tehsildar. Therefore, the finding of the trial court on Issue no.2, vitiates in law. It is also pertinent to state it here that the defendant Inder Singh did not file any objections before the Tehsildar, nor did file any appeal or revision before the Assistant Collector or the Collector against the report of Revenue Partal, wherein the exclusive possession of the plaintiff/appellant was found over the land-in-question. In view of the entry of possession recorded in the Khasra on the basis of the Revenue Partal, which is paper no.57Ga in the trial court record file, entire case of the defendant Inder Singh about his actual physical possession since 1962 demolishes. His plea about granting of lease-Patta on his name on the basis of his alleged physical possession over the land, also demolishes. 13 Since from the above discussion of the evidence, there is no proof of actual physical possession of the defendant Inder Singh over the land in question during the Revenue Partal in the year 1996-97, his actual physical possession over the land in question can not be presumed long back in the year 1962 as he has not set up any case of forcible dispossession from the land in question. Therefore, it does not stand proved from any iota of evidence that any lease-Patta was granted on the name of the defendant Inder Singh by any competent authority during or around the year 1962 on the basis of possession. It has already been observed in the body of this judgment that any copy of lease-Patta said to have been granted/executed allegedly in favour of the defendant Inder Singh has not been filed by the defendants before the trial court and, therefore, there is no evidence of execution of any Patta in the record of the trial court. The trial court committed patent illegality on the face of record by deciding Issue no.1 and 2 in favour of the defendants/respondents. The plaintiff/appellant filed a Mutation case no. 5 of 1994-95 before the Tehsildar, Didihat, Pithoragarh for mutating his name over the land in question i.e. 20 Nali 11 Muthi land. The defendant/respondent Shyam Singh himself appeared before, Tehsildar, Didihat and stated that the name of late Nain Singh has been left out from being entered in the Khatoni due to mistake of records during Bandobast operation and he would have no objection if the name of the plaintiff/appellant is mutated along with him in the revenue records. A copy of statements of the defendant/respondent Shyam Singh given before the Tehsildar, Didihat is available in the trial court’s record as Paper no. 15Ga. The statements read as under: 14 ÞeSa /;ku flag iq= Jh uSu flag dks tkurk gwa ;s esjs HkkbZ ds yM+ds gSa tks esjs Hkrhts yxrs gSa] blds firk th rFkk eSa ppsjs HkkbZ gSaA xzke rYyh esFkhZ esa /;ku flag o gekjh tehu gSA ftl tehu dk ;g ekeyk pyk gS] ;g eSus ns[kh gSA izkFkhZ /;ku flag blesa jgrs gSa vkSj edku gS vkSj dkLrdkjh Hkh djrs gSaA ;g tehu 20 ukyh rFkk 11 eqV~Bh gSA ;g tehu ¼fookfnr½ esjs firk th Lo0 uSu flag }kjk o"kZ 1944 esa [kjhnh x;hA ;g tehu esjs ekek mn; flag iq= Jh eksgu flag teft;ky ls [kjhnh FkhA rc ls bl tehu esa gekjs lautk;r ifjokj dk dCtk gSA bl tehu esa /;ku flag iq= uSu flag tks Lo;a [kjhnnkj Fks dk uke ugha p<+k gSA ;s uke p<+us esa eq>s dksbZ vkifRr ugha gSA eSa ;g Lohdkj djrk gwa fd tehu esa /;ku flag dk uke p<+uk pkfg, FkkA fjdkMZ esa xyrh gksus ls /;ku flag dk uke ugha p<+ ik;k gSAß The defendatn/respondent Shyam also gave similar statements before the trial court as DW-1, which is available in Paper no.77-Ga of the trial court record file. The statements read as under:- Þoknh /;kuflag iq= uSuflag us o"kZ 94&95 esa esjs o izfroknh u0 2