IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 2230/2001 State of U.P. now State of Uttaranchal through Collector Uttarkashi. ..…… Petitioner Versus Amar Singh and others. …….. Respondents ………………….. Sri R.C. Arya, Brief Holder for the State/petitioner. Sri Gopal Narain, learned counsel for the respondent No.1. Date: August 20, 2009 Hon’ble B.S.Verma,J. By means of this petition, the petitioner has sought writ in the nature of certiorari for quashing the order dated 15.12.1997 passed by Board of Revenue, Allahabad, in Second Appeal No.59 of 1989-90, Amar Singh versus Kundan Lal and others, contained in Annexure No.6 to the writ petition. 2. Briefly stated, the facts are that plaintiff- Amar Singh (respondent No.1 herein) instituted the suit on 07.06.1982, seeking declaration of Bhumidhari rights on the grounds that he had been in possession over the disputed land since 1960 as an Aasami. And by operation of law he became Sirdar in the year 1974 and Bhumidhar in the year 1977, and that the entries in the revenue record did not represent correct state of affairs and needed amendment. Notices were issued to all the eight defendants. Defendant Nos. 1 to 3 and 2 6 filed Iqbaldava on 11.08.1982. On 28.08.1982, written statement was filed on behalf of the Gaon Sabha, stating therein that the Gaon Sabha had no objection to the suit of the plaintiff being decreed. On 15.09.1982, one Smt. Jhiri widow of Harish filed an Iqbaldava admitting the claim of the plaintiff on behalf of Soka-minor, defendant No.5. On the same day, Smt.Geoni filed written statement on behalf of Sankatya/defendant No.4- minor admitting the claim of the plaintiff. The State has also filed written statement, contained in Annexure No.3 to the writ petition, wherein it has been stated that the suit was filed with the collusion of the defendants. The evidence was adduced by the parties. Suit was dismissed by the trial court on 11.11.1982 holding that there was a case of illegal transfer of holdings by the defendants in favour of the plaintiff and the land would vest in the State under Section 166/167 of the U.P. Zamindari Abolition & Land Reforms Act. The trial court placed reliance only on the confidential reports of Sri R.C. Tewari, Tehsildar dated 17.09.1982 and Sarjeet Arya, Supervisor Kanoongo, Rajgarhi dated 21.10.1982. This order was challenged in appeal. The Additional Commissioner allowed the appeal and remanded the case to the trial court for fresh decision after calling the concerned Tehsildar and Supervisor Kanoongo also in the witness-box. 3. On remand, the defendants resiled from their previous admission, but did not adduce any evidence. On 15.4.1987, the statement of Shri R.C. Tewari, Tehsildar was recorded. 3 4. The trial court, after examining the evidence on record, found that the plots in question do not constitute dense forest and answered issue No.1 in negative against the writ petitioner/State. The trial court, however, held that there happened to be transfer of land by the defendants who are members of Scheduled Caste and in favour of the plaintiff who does not belong to that class and this amounted to illegal transfer. The suit was dismissed on 04.07.1987. Against this order, Amar Singh / respondent No.1 filed first appeal before the Additional Commissioner which was dismissed. Against the said order, Amar Singh preferred second appeal before the Board of Revenue. 5. The Board of Revenue, after hearing the parties and perusing the record came to the conclusion that the plaintiff has successfully shown that he was in possession since 1960. He would come in the category of ‘Sirtan’ as defined by Section 2(c) of Tehri Garhwal Rajya Bhumi Sambandhi Adhikar Niyam, 1941. As a Sirtan, he would become Asami under Section 10(d) of the Kumaon and Uttarakhand Zamindari Vinash and Bhumi Sudhar Adhiniyam which was enforced by notification No.3178/A-69 dated 30.06.1969. He acquired the rights of a Sirdar under Section 36(b) of the Kumaon and Uttarakhand Zamindari Abolition and Land Reforms Act and became Bhumidhar in 1977 under Section 35(b) of U.P. Land Laws (Amendment) Act, 1977. The plaintiff has become Bhumidhar by operation of law. The first appellate court and the trial court were not justified in carrying out altogether different case 4 beyond the pleadings of the parties and set aside the orders. 6. I have heard Sri R.C. Arya, learned brief holder for the State and Sri Gopal Narain Advocate for respondent-Amar Singh, and perused the orders passed by the Board of Revenue as well as the Additional Commissioner and trial court. The main controversy was to be decided by the trial courts, whether the plaintiff was in possession as an Asami since 1960 and became Sirdar/Bhumidhar by operation of law or whether there was a transfer by the member of Scheduled Caste in favour of plaintiff who does not belong to that class and rights of both the parties ceased and the land in dispute vested in the State. 7. The undisputed facts are that no transfer was made by any instrument. In the written statement it was pleaded that the transfer was made by the member of Scheduled Caste in favour of respondent /plaintiff, hence the provisions of Section 157-A of U.P.Z.A. & L.R. Act would attract. The learned counsel for the State could not demonstrate how this transfer was made. The Board of Revenue has already observed that the reports submitted by Supervisor Kanoongo and Tehsildar were prepared without going on the spot. 8. It is not disputed by the petitioner that respondent No.1/Amar Singh was in possession of the land in dispute. The Board of Revenue has set aside the finding of the trial court on the ground that since 5 the respondent has acquired ‘Sirtan’ rights by operation of law and has become Bhumidhar on the date of application of Kumaon and Uttarakhand Zamindari Abolition & Land Reforms Act. 9. Section 157-A of U.P.Z.A. & L.R. Act deals with restrictions on transfer of land by members of Scheduled Castes. It provides that without prejudice to the restrictions contained in Sections 153 to 157, no bhumidhar or asami belonging to a Scheduled Caste shall have the right to transfer by way of sale, gift, mortgage or lease any land to a person not belonging to a Scheduled Caste, except with the previous approval of the Collector. 10. The learned Board of Revenue has rightly held that in the year 1960 there existed no restriction on transfer of land by members belonging to Scheduled Caste/Scheduled Tribes in favour of other person not belonging to Scheduled Caste/Scheduled Tribes, except with the previous approval of the Collector. Section 157-A was amended by Act No. 34 of 1974 and restriction was imposed on person belonging to Scheduled Caste on making transfer of land to any other person not belonging to Scheduled Caste without previous approval of the Collector. Section 157-B of the Act was added by U.P. Act No.20 of 1982 w.e.f. 03.06.1981. In view of above amendment, the learned Board of Revenue has rightly held that in the year 1960 there was no restriction governing transfer of land by any person of Scheduled Caste to any person not belonging to Scheduled Caste 6 to any person existed in Act. The restriction was made prospectively in the Act. 11. There is no such pleading that transfer was made by way of sale, gift, mortgage or lease by the members of Scheduled Caste, defendants in the suit. The respondent had filed a suit for declaration on the basis of adverse possession against the member of Scheduled Caste. The Board of revenue has rightly held that provisions of Section 157-A of U.P.Z.A. & L.R. Act would not attract in the present case. 12. In view of above discussion, the writ petition is devoid of merit and is dismissed in limine. (B.S.Verma,J.) 20.08.2009 P.Singh