IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Second Appeal No. 595 of 2001 (Old No. 1718 of 1987) [ 1. Jarib Ahmad (since deceased) S/o Sharif Ahmad Contractor, Meli Gate, Sugar Factory Bajpur (Nainital). 1/1. Najis Ali S/o Jarib Ahmad R/o Mundiya Pistaur, Bajpur, District Udham Singh Nagar. 2. Rahamtullah (since deceased) S/o Kallan R/o Mundiya Pistaur, Tehsil Bajpur, District Nainital. ...…………. Defendants / Appellants Versus Mamchand S/o Ramji Lal R/o Village Mundiya Pistaur Tehsil Bajpur, District Nainital. ...………… Plaintiff / Respondent Mr. Ahrar Baig, Advocate for the defendants / appellants. Mr. Gopal Krishan, Advocate for the plaintiff / respondent. Hon’ble Prafulla C. Pant, J. This appeal is directed against the judgment and decree dated 27.02.1987, passed by the Addl. Civil Judge, Nainital, in Civil Appeal No. 65 of 1985, whereby the said court has allowed the appeal and set aside the judgment and decree dated 05.09.1985, passed by the trial court (Munsif, Kashipur) and decreed the Suit No. 110 of 1982, against the defendants. 2) Heard learned counsel for the parties and perused the record. 3) Brief facts, giving rise to this appeal, are that plaintiff Mamchand instituted Suit No. 110 of 1982 against the defendants (present appellants) seeking injunction against the defendants not to interfere in possession of the plaintiff over land in suit situated in Village Mundiya Kalan, Tehsil Bajpur (now part of district Udham Singh Nagar). It is pleaded by the plaintiff / respondent in the suit that the plaintiff is in possession of the land in suit since 1366 Fasli (year 1973-74). It is also pleaded that thereafter the land has been settled with the plaintiff under Section 123 of the U.P. Zamindari Abolition and Land Reforms Act, 1950. The land in question is Abadi land over which there is plaintiff’s hut and some lime is lying over it. It is alleged by the plaintiff that on 12.08.1982, defendants made an attempt to trespass over the land in suit. During the pendency of the suit an amendment was sought and it is pleaded that defendants had taken possession of the land in suit (during the pendency of suit), hence, the relief of possession is also added in the relief clause. It is also pleaded that since 1975-76, land in suit is within the limits of Town Area Bajpur. 4) The defendants (present appellants) contested the suit and filed their written statements in which they denied possession of the plaintiff over the land in suit. It is pleaded by the defendants that the plaintiff had never been in possession over the land in suit. It is alleged that lime lying on the land in suit belongs to Rahamtullah (defendant No. 2). It is further pleaded that defendant No. 1 Jarib is power of attorney holder of defendant No. 2 Rahamtullah. 5) On the basis of the pleadings of the parties, the trial court, framed following issues: 1. Whether, the court had no jurisdiction to try the suit? 2. Whether, the plaintiff is in possession over the land in suit, since 1366 Fasli? 3. To what relief, if any, the plaintiff is entitled? 4. Whether, the defendants have encroached upon the land in question during the pendency of suit? 5. Whether, the suit is under valued, and court fee paid is insufficient? 6. Whether, the land is settled with the plaintiff under Section 123 of the U.P. Zamindari Abolition and Land Reforms Act, 1950? 6) After recording the evidence and hearing the parties, the trial court decided issues No. 1, 4 and 5 in favour of the plaintiff. However, on issues No. 2 and 6 finding was given by the trial court against the plaintiff, and on that ground dismissed the suit vide judgment and decree dated 05.09.1985. Aggrieved by said judgment and decree dated 05.09.1985, passed by the Munsif, Kashipur, in Civil Suit No. 110 of 1982, an appeal was filed by the plaintiff before the first appellate court, which was registered as Civil Appeal No. 65 of 1985. After hearing the parties, the lower appellate court (Addl. Civil Judge, Nainital) vide its impugned judgment and decree dated 27.02.1987, allowed the same, and decreed the suit. Dissatisfied with the judgment and decree passed by the first appellate court, this appeal was preferred by the defendants and filed before the Allahabad High Court on 04.07.1987, where it was admitted on 20th of July 1987. The substantial question of law involved in this appeal is as under: Whether, the plaintiff / respondent is covered under the beneficial category provided in Section 122-C of the U.P. Zamindari Abolition and Land Reforms Act, 1950? The appeal is received by transfer to this Court under Section 35 of the U.P. Re-organization Act, 2000 (Central Act No. 29 of 2000), for its disposal. 7) Learned counsel for the appellants argued that the lower appellate court has erred in law in holding that the plaintiff was in possession over the land in suit since 1366 Fasli. It is contended that the plaintiff was a minor child in that year. Whether, the plaintiff was minor or not, is not the relevant question in the present case for the reason that there was no bar in the law to record name of a minor as a tenure holder over a land in suit. The evidence on record shows that the plaintiff was a recorded tenure holder in 1366 Fasli and was in possession. That being so, defendants’ case was rightly rejected by the first appellate court which held that the plaintiff was in possession over the land in suit. In a case of oral evidence of oath against oath it was the revenue record which was to be seen, and that evidence supported the plaintiff. That being so, the lower appellate court has committed no error of law in recording the finding that the plaintiff was in possession since 1366 Fasli over the land in suit, and defendants have encroached upon his land. Even otherwise, this is a question of fact which need not to be looked into by this Court, particularly, when the same is not perverse. 8) Section 123 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (as it existed prior to 1995) provided that without prejudice to the provisions of Section 9, where any person referred to in sub-section (3) of Section 122-C has built a house on any land referred to in sub-section (2) of the Section, not being land reserved for a public purpose, and such house existed on 30th day of June 1985, the site of such house would be held by the owner of the house on the terms and conditions as may be prescribed. Sub-section (2) of Section 123 of the Act further provides that where any person referred to in sub-section (3) of Section 122-C has built a house or any land held by the tenure holder (not being a Government lessee) and such house existed on the 30th day of June 1985, the site of such house would, notwithstanding anything contained in this Act, be deemed to be settled with the owner of such house by the tenure holder on such terms and conditions as may be prescribed. Prior to said date of 1985, which was inserted vide U.P. Land Laws (Amendment) Act, 1986, the cut off date was March 15, 1974. The plaintiff’s name was recorded in the year 1366 Fasli (year 1973-74). Since, his hut stood from the date prior to March 15, 1974, the lower appellate court has rightly held that the house site settled with the plaintiff under Section 123 of the Act. As far as sub-section (1) of Section 122-C of the U.P. Zamindari Abolition and Land Reforms Act, 1950 is concerned, it provides order of preference by which the house sites are to be allotted under sub-section (3) of the Section. It gives priority to the agricultural labourers and village artisans belonging to Scheduled Castes over the other persons of that category. The lower appellate court has discussed in evidence that the plaintiff being a ‘BADAHEE’ (carpenter community), was member of Scheduled Caste, and as such, there was no bar in allotment of house site to him. It has also been discussed that P.W. 1 Ramji Lal, father of the plaintiff, has stated that since plaintiff Mamchand was his only son that is why he got the land allotted in his name. It is pertinent to mention here that the lower appellate court has taken note of the fact that D.W. 1 Jarib Ahmad (defendant No. 1 / appellant) admitted in his statement that the disputed land is Abadi land. In the cross-examination, this witness has admitted that he belongs to Rampur and on his behalf Rahamtullah (defendant No. 2) lives over the land in suit. D.W. 2 Asgar Ali says that he is in possession of the land in question on behalf of Rahamtullah. D.W. 3 Hazir Ali comes with the story that hut in the land in question was put up by one Garib. All this evidence is against the pleadings pleaded in the written statement, as such, lower appellate court has rightly accepted the case of the plaintiff (as it was supported by revenue record) that he was in possession of the land in question since 1366 Fasli, and the defendants have encroached upon it. 9) Having considered submissions of learned counsel for the parties and after going through the papers on record, this Court does not find any error of law committed by the lower appellate court in holding that the plaintiff has successfully proved the possession over the land in suit since 1366 Fasli, and in recording the finding that during pendency of suit the defendants have encroached upon over the land in suit. Nothing has been pleaded in the written statement by the defendants that the plaintiff did not belong to any beneficial category as required under sub-section (3) of Section 122-C of the U.P. Zamindari Abolition and Land Reforms Act, 1950, as such, the defendants / appellants are not entitled to claim benefit on its basis in their favour. Substantial question of law stands answered in favour of plaintiff / respondent. 10) For the reasons as discussed above, this appeal is liable to be dismissed. The appeal is dismissed. No order as to costs. (Prafulla C. Pant, J.) Dt. July 09, 2009. H. Negi