IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO. 890 OF 2003 (Old No. 15684 of 1985) Shri Swarn Singh (since deceased), through his legal heirs. …………..Petitioners. Versus State of Uttar Pradesh and others. ………..Respondents. Mr. Alok Singh, learned Senior Advocate, assisted by Mr. Alok Mehra, learned counsel for the petitioners. Mr. Sudhir Kumar, learned Brief Holder for the State. Mr. J.C. Pandey, learned counsel for the respondent no. 4/1. None appears for rest of the respondents. & WRIT PETITION NO. 5897 (MS) OF 2001 (Old No. 15685 of 1985) Fakir Singh and others. ……Petitioners. Versus 1st Additional District Judge, Nainital and three others. ………….Respondents. Mr. Alok Singh, assisted by Mr. Alok Mehra, learned counsel for the petitioner. Mr. Sudhir Kumar, learned Brief Holder for the State. Mr. J.C. Pandey, learned counsel for the respondent no. 4/1. None appears for rest of the respondents. & WRIT PETITION NO. 6097 (MS) OF 2001 (Old No. 15683 of 1985) Jeet Singh and another ……Petitioners. Versus State of Uttar Pradesh and others. ………….Respondents. Mr. Alok Singh, assisted by Mr. Alok Mehra, learned counsel for the petitioner. Mr. Sudhir Kumar, learned Brief Holder for the State. Mr. J.C. Pandey, learned counsel for the respondent no. 4/1. None appears for rest of the respondents. 2 21st August, 2008 Hon’ble P.C. Verma, J. These writ petitions are being disposed of by one and common judgment as all are arising out of one and common judgment passed by the appellate Authority under Section 13 of the U.P. Imposition of Ceiling on Land Holdings Act, 1960, by which the appellate Authority has upheld the order passed by the prescribed Authority. 2. Prescribed Authority vide judgment and orders dated 30th September, 1978 declared the land in dispute held by the petitioner as surplus land in the ceiling proceedings drawn against the original tenure holder Laxmi Lal / respondent no. 4 (since deceased), who is represented by his legal heirs and a notice under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 was issued to respondent no. 4 –the tenure holder late Sri Laxmi Lal represented by his legal heirs and proceedings were taken up and determined the surplus and ceiling area of respondent no.4-the tenure holder. The tenure holder-late Laxmi Lal accepted the judgment of the prescribed Authority. The petitioners did not file any appeal, therefore, after expiry of the limitation period land vested in the State Government under Section 14 of the U.P. Imposition of Ceiling on Land Holdings Act, 1960. 3. The petitioners are claiming their independent rights over the land alleged to be held by them under Section 11(2) of the U.P. Imposition of Ceiling on Land Holdings Act. Aggrieved by the judgment and order passed by the Prescribed Authority on the direction of the 3 High Court in the writ petition filed by the petitioner, the Prescribed Authority entertained their objections and disposed of the objections holding that the petitioners had not perfected their rights on the date of vesting as the claim of right was on the basis of adverse possession. 4. Aggrieved by the aforesaid judgment and order passed by the Prescribed Authority, petitioners preferred appeals. All the appeals have been dismissed by the appellate Authority by upholding the view of the Prescribed Authority. 5. In all the aforesaid three writ petitions, leading argument was advanced by the learned counsel for the petitioner Mr. Alok Singh, learned Senior Advocate, assisted by Sri Alok Mehra. Sri Alok Singh, learned Senior Advocate submitted that the petitioners have perfected their rights as they were in possession from much before 1375 Fasli and had perfected their rights on the date of vesting when the U.P. Zamindari Abolition and Land Reforms Act, 1950 was enforced in the area, commencement of which was 1.7.1969 and the became Asami and they acquired right under the U.P. Zamindari Abolition and Land Reforms Act on re-vesting under the U.P. Zamindari Abolition and Land Reforms Act. It was further contended that since after the enforcement of U.P. Zamindari Abolition and Land Reforms Act, the petitioners were not dispossessed within three years, therefore, the petitioners had perfected their rights immediately after the expiry of three years from the date of vesting and became Asami under Section 210 of the U.P. Zamindari Abolition and Land Reforms Act. 4 6. Another limb of the argument of the learned Counsel for the petitioner Mr. Alok Singh, learned Senior Advocate is that the petitioners perfected their right immediately after the expiry of two years of limitation for ejectment of a trespasser, which at the relevant time was only of two years. He relied upon the Khasra Entry of 1375 Fasli and claimed that they became hereditary tenant, accrued to them under Section 180(2) of U.P. Tenancy Act, 1939, in 1376 Fasli as the possession was from earlier to 1375 Fasli. 7. Both the limbs of the arguments of the learned counsel for the petitioner rest on the possession of the petitioners. Records have been summoned by this Court from the Additional District Magistrate (Ceiling), Nainital and from records, it reveals that the petitioners; namely Swaran Singh & Fakir Singh were recorded in possession over Khasra for the year, 1375 Fasli and 1376 Fasli. No Khasra entry was found in the year, 1377, 1378 and 1379 in respect of these petitioners. 8. A perusal of the record shows that there is no mention of any issue of Form P.A.-10 or no date of entry is mentioned or no diary number is mentioned for making the entry of possession. Issue of P.A.-10 is necessary under the U.P. Land Record Manual in Clause 71 of the Land Record Manual. The names of these two petitioners are not found to be recorded in 1377, 1378 and 1379 Fasli. Their names are further found in one Fasli year i.e. 1380 Fasli. So far as the name of petitioner no. 3 Jeet Singh is concerned, the same is found in possession in 1380 Fasli not in any earlier Fasli year. For ejectment of trespasser, 5 limitation for filing the suit for ejectment was two years under Section 180 of U.P. Tenancy Act. Evidence of possession is from 1375 Fasli. The Fasli Year is defined to be 1st July to 30th June. 1375 Fasli Year starts from 1st July, 1967 and ends on 30th June, 1968 and 1376 Fasli year starts from 1st July, 1968 to 30th June, 1969. 9. Learned counsel for the petitioner on this submitted that the possession as per the documents started from 1st July and was continued till 30th June, 1969 and in 1969, they completed two years, therefore, they perfected the right of hereditary tenant under Sub – section (2) of Section 180 of the U.P. Tenancy Act. Section 180 of the U.P. Tenancy Act, 1930 is reproduced hereunder: “180. Rights in respect of sub-tenancies.—(1) When an arrear of rent is realized from a cultivator by proceedings is distraint by any person other than his immediate landholder, he shall be entitled to deduct the amount so realized from any rent payable by him to such landholder, and such landholder, if he is not the defaulter, shall in like manner be entitled to deduct the same amount from any rent payable by m to his landholder, and so on until the defaulter is reached. (2) In lieu of deducting any such amount so realized the sub-tenant shall be entitled to institute a suit for recovery of the same form the defaulter. (3) Where land is sub-let and any conflict arises between the claims of a superior and inferior landholder whe distrain the same property, the claims of the superior landholder shall have priority.” 10. Limitation for filing the suit for ejectment is provided at Serial No. 18 of Schedule of Group-B suit under Section 180 for ejectment of a person occupying the land without title and for damages. Clause A is not relevant. Clause B is relevant i.e. in any other the case, the 6 limitation to be of two years. 4th Column of the Schedule says that the time from which the period begins to run and it says that it runs from 1st July following the date of such occupation or following the date of the commencement of this Act whichever is later, none of the petitioners falls within the first part of the running of the limitation clause that it will start from 1st July following the date of such occupation means the limitation will start running from 1st July, 1968 and not from 1st July, 1967, thus the petitioners have not perfected their rights as claimed by them under Section 180 of the U.P. Tenancy Act as evident from the records. So far as the second limb of the argument of the petitioner is concerned, the same is misconceived in view of the revealed facts from record that there was no entry of the possession in the 1377 Fasli i.e. to say that from 1st July, 1969 to 30th June, 1970 and vesting i.e. the basic year and basis of right will accrue when a person is found to be in possession in this Fasli year. Khasra indicates that the petitioner is not in the possession in that year. Therefore, both the limbs of the argument of the learned counsel for the petitioner fails and are hereby rejected. 11. The third limb of the argument of the learned counsel for the petitioner is that no ejectment suit was filed within three years from the date of vesting, therefore, they have acquired right under Section 210 of the U.P. Zamindari Abolition and Land Reforms Act since the petitioner was not recorded from the years, 1377, 1378 and 1379 Fasli and all the petitioners came to be recorded in 1380 Fasli, therefore, this argument of the learned counsel for the petitioner also fails as he was not in three 7 years of continuous possession from the date of vesting. Even no right can accrue to the petitioners in view of Explanation II of Sub-section (5) of Section 6 of the U.P. Imposition of Ceiling on Land Holdings Act, 1960. 12. Last argument of the learned counsel for the petitioner is that they have been declared Bhumidhar under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act. The judgment of the S.D.M. is dated 22.6.1985 and of appellate Authority is of 18.8.1987 rather the suit was filed in the year, 1974 as is evident from the suits of 1974-75. Admittedly, these suits were filed in the year, 1975 and the appeal thereof was dismissed in the year, 1987, therefore, the judgments are liable to be ignored. Sub section 6 of Section 5 provides that in determining the ceiling area applicable to a tenure holder, any transfer of land made after the 24th day of January, 1971, which but for the transfer would have been declared surplus land under this Act, shall be ignored and not taken into account. Proviso appended to this section is not relevant for the purposes of this case. Explanation I enables the meaning of transfer of the land made after 24th day of January 1971 and includes the declaration as a co-tenure holder. Clause (a) of the explanation is not relevant. Clause (b) is relevant which reads “any admission acknowledgement, relinquishment or declaration in favour of a person to the like effect, made in any other deed or instrument or in any other manner”. Therefore, the declaration made in the suits filed in 1974 and 1975 was liable to be ignored and it has rightly been ignored by the authorities below. 8 13. Sri Alok Singh, learned Senior Advocate very vehemently argued with a great emphasis that the case of the petitioner is squarely covered in Clause (a) of Explanation I appended to Sub-section (6) of Section 5. In order to consider his argument, Clause (a) is reproduced as under: “(6) In determining the ceiling area applicable t a tenure-holder, any transfer of land made after the twenty-fourth day of January, 1971, which but for the transfer would have been declared surplus land under this Act, shall be ignored and not taken into account: Provided that nothing in this sub-section shall apply to-- (a) a transfer in favour of any person (including Government) referred to in sub-section (2);” 14. Learned counsel for the petitioner emphasized the word ‘co-tenure holder’ and submits that he claims co- tenancy with the original tenure holder in a particular Khatauni Khata of the particular plot and khasra numbers over the area over which they claim to be in possession. 15. Learned counsel for the petitioner Mr. Alok Singh, learned Senior Advocate, has very fairly admitted that the petitioners were not claiming the joint tenancy rather co-tenancy. This is a new case set up before this Court and to substitute his point, he has not filed the copy of the plaint before this Court with the writ petition. Generally, in the suit for declaration under Section 229-B, the petitioners have been claiming their right alleged to have been accrued under Section 180 of the U.P. Tenancy Act. A suit for declaration of title cannot be a suit for declaration of the co-tenancy. I have already rejected the claim of title under Section 180, but the ground of limitation and if this is a ground in the suit if the right accrued under Section 180 of the U.P. Tenancy Act is the 9 sole ground is the adverse possession then the suit could not have been decreed and could have been dismissed. 16. Paragraph 55 of the Land Record Manual states that in order to maintain the map the Khasra prescribed by Section 28 of the U.P. Land Revenue Act, 1901 the Lekhpal shall make three field to field inspections every year of every villages in his halka and the tours shall begin respectively on 10th August, 1st January and 1st May. The first, second and third tours shall be completed on 25th September, 15th February and 31st May respectively. Paragraph 55 of the Land Record Manual is reproduced as under: “[55. Inspection Tours.—In order to maintain the map the Khasra prescribed by Section 28 of the U.P. Land Revenue Act, 1901 the Lekhpal shall make three field to field inspections every year of e very villages in his halka. The tours shall begin respectively on 10th August, 1st January and 1st May. The first, second and third tours shall be completed on 25th September, 15th February and 31st May respectively.]” 17. Paragraph 60 of the Land Record Manual is regarding the preparation of Khasra. The same is reproduced as under: “60. Preparation of Khasra.—(1) The Khasra is a field both in which the Lekhpal shall enter from time to time all changes in boundaries and facts required for the preparation of the Khatauni, of the agricultural statistics. It shall be prepared in Form No. P-3 give below: (2) Columns 1-3 shall be written up before the first tour; the names of tenants and sub-tenants and the entries relating to Kharif, crops shall be made during the first tour; entries relating to rabi and zaid crops shall be made during the second and third tour respectively; entries relating to the right and liabilities of tenants (i.e. nature of tenure, leases and rents) shall be made before 10 the end of the first tour, or in the case of letting for the rabi reason, as soon as possible thereafter; all other entries shall be made as early as possible in the year. (3) The Lekhpal is responsible for the accuracy of all entries and must satisfy himself of the facts by inquiry from the persons concerned, as well as by field inspections. (4) The Khasra shall be completed by 30th April, 9 it shall be bound in volumes containing each about 10 leaves. After completion of the khasra the Lekhpal shall cross out columns 5, 6, 21 and 22 against all the Lekhpal for one year, and it shall be filed with the Registrar Kanungo on or before 31st July, of the following year.” 18. As it is evident from record, the names of the petitioners were not recorded in 1377, 1378 and 1379 Fasli, the petitioners possession is not proved. Thus, the petitioners have not perfected any right or title under Section 180 of the U.P. Tenancy Act. 19. For the reasons recorded above, the writ petitions lack merit and are hereby dismissed. The judgments and orders passed by the courts below call for no interference and are hereby affirmed. 20. There is no order as to costs. (P.C. Verma, J.) 21.8.2008 Rathour