IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 343 of 2001. (Old CMWP No. 17436 of 1988) Sucha Singh son of Sri Gyan Singh, Resident of Village Puranpur, Tehsil Kaladhungi, District Nainital. ….Petitioner. Vs. The State of Uttar Pradesh and others. ….Respondents. Sri Alok Mehra, learned counsel for the petitioner. Sri Sudhir Kumar, learned Brief Holder of the State for respondent nos. 1 to 3. Date November 28, 2008. P.C.: Hon’ble B.S. Verma, J. By means of this writ petition, the petitioner has sought a writ of certiorari quashing the order of the Prescribed Authority dated 26-8-1987 (Annexure ‘4’) as well as the order dated 29-7-1988, passed by the Commissioner, Kumaun Division, Nainital (Annexure ‘5’). By the order dated 26-8-1987, the Prescribed Authority Nainital declared 100-13 Bitha irrigated land of tenure holder Sohan Singh as surplus under the U.P. Imposition of Ceiling on Land Holdings Act (for short the Act). The appeal filed by the petitioner Sucha Singh was dismissed vide order dated 29-7-1988. Brief facts, giving rise to this writ petition, according to the petitioner, are that the petitioner was in possession of 92 Bighas 12 Biswas land situate in village Naripur, Tehsil Kaladhungi, district Nainital before 1374 Fasli. The provisions of U.P.Zamindri Abolition and Land Reforms Act were enforced in the area on 1-7-1969 and thereafter, the petitioner acquired Sirdari and Bhumidhari rights by operation of law because the petitioner was a recorded occupant in 1374 Fasli, over 92 Bighas, 12 Biswas land of village Naripur. Notice was issued under the Act to the original tenure holder Sohan Singh in the year 1975. The tenure holder filed his 2 objection before the Prescribed Authority wherein it was stated that the land of plot nos. 302/2 A, 306, 308, 309, 310, 311 and 320/1, area 92 Bigha, 12 Biswa is in possession of Sri Sucha Singh since before 1374 Fasli. The petitioner also came to know about the ceiling proceedings against Sri Sohan Singh, hence the petitioner also filed objection on 30-12-1975 in the ceiling proceedings alleging that the petitioner had already acquired Bhumidhari rights over 92 Bighas, 12 Biswas land. The Prescribed Authority did not find favour with the petitioner and passed an order dated 28-9-1976 declaring the land to be surplus. Aggrieved, the petitioner filed appeal before the District Judge, Nainital, which was ultimately heard and allowed by the Additional district Judge, Nainital by order dated 21-3-1977. The notice issued under Section 10(2) of the Act against tenure holder was quashed. Again, notice was issued to the original tenure holder under Section 10(2) of the Act and the proceedings started against him. When the petitioner came to know of this fact, he (petitioner) filed an objection and again alleged that the petitioner had already acquired rights and title on the date of enforcement of U.P. Zamindari Abolition and Land Reforms Act by virtue of his continuous possession before 1374 Fasli under Section 131 of the said Act and the land in question could not have been declared as surplus. The Prescribed Authority by a common judgment and order dated 26-8-1987 did not accept the claim of the petitioner holding that the petitioner had not filed any suit for declaration. Further aggrieved by said order, the petitioner went up in appeal (No. 3/5 of 1987-88) before the Additional Commissioner (Judicial) Kumaun Division, Nainital, but the appellate court did not find favour with the petitioner and dismissed the appeal by its order dated 29-7-1988. Hence this writ petition. The Counter Affidavit was filed on behalf of the State before the Allahabad High Court. It has been denied that any Sirdari or Bhumidhari rights have accrued to the petitioner. It has been stated 3 that Original tenure holder Sohan Singh alone had been in possession of the land in dispute. Supplementary counter affidavit has been filed by the respondents. It has been stated that the appeal filed by the petitioner was dismissed by the appellate court on 29-7-1988. The petitioner filed the present writ petition, which was dismissed for want of prosecution on 8-8-2005. It has also been stated that the prescribed Authority/Additional Collector Nainital by his order dated 14-7-2006 declared the land measuring 5.858 Hectares of Khata No. 146 situate in village Puranpur Tehsil Kaladhungi, District Nainital to be surplus as well as the land measuring 0.506 Hectarre of Khata No. 33 of village Narepur, Tehsil Kaladhuni, district Nainital and the possession of the said land has been taken from the petitioner and the land has been given in the Supurdgi of Amrik Singh, son of Sri Gurudev Singh. The writ petition filed by the petitioner is misconceived. Supplementary Rejoinder Affidavit and Additional Supplementary Counter Affidavit have been filed by the parties and both the parties have refuted the allegations made by each other. I have heard learned counsel for the parties and perused the material on record including the impugned orders. The Prescribed Authority has given a finding that the possession of petitioner was recorded averse against Sohan Singh, but Sohan Singh did not take any steps to expunge the entry of petitioner Sucha Singh, therefore, no benefit can be given to the tenure holder. The learned Appellate Court also did not find favour with the petitioner and the appeal was dismissed on the ground that the name of Sucha Singh was not recorded in 1378 to 1380 Fasli, but this fact that Sucha Singh was recorded in 1374 Fasli was not denied by the appellate court. The Prescribed Authority has recorded a finding on the issue that Sucha Singh was recorded occupant in 1374 Fasli. 4 By the Government Notification No. 226/1A-2-1(2)-69, dated June 30, 1969 the U.P. Zamindari Abolition & Land Reforms Act, 1950 with certain modification and deletion of certain provision has been made applicable to the areas mentioned in the notification. In place of Section 131 of the said Act, the following were substituted:- “131. Every persons belonging to any of the following classes shall be called as Sirdar and shall have all the rights and be subject to all the liabilities conferred or imposed upon Sirdars or under this Act; namely:- (a) Every person who, on the date immediately preceding the appointed day held land as- (i) An occupancy tenant; (ii) A hereditary tenant, Not being a tenant referred to in clause (a) of Section 130. (iii) a grantee at favourable rate or rent. (iv) A lessee holding a lease under the provisions of the Government Grants Act, 1895 and having rights of a hereditary tenant under the terms of the lease, but not possessing the right to transfer the holding by sale, (b) Every person who is admitted as sirdar of vacant land under the provisions of this Act, (c) A tenant in any of the 42 Buxari villages specified in the annexure, appended hereto, who was recorded in Class X(1) in the Khatauni of the previous agricultural year and (d) Every person who in any other manner, acquired the rights of a sirdar under or in accordance with the provisions of this Act.” Now, it has to be seen as to what was the limitation to evict the trespasser in possession before the date of vesting under the Tenancy Act as well as under the U.P.Z.A. and L.R. Act after date of vesting. If no suit was filed against the trespasser in possession before and after the date of vesting, what would be the effect of non-filing the suit within the prescribed limitation under these Acts. Under the Z.A. & L.R. Act, limitation for filing the suit under Section 209, U.P.Z.A. & L.R. Rules, Appendix III, Serial No.30, clauses (i) and (iii) provide the limitation in case the suit to be filed after the date of vesting for ejectment of a person taking or retaining possession of land unlawfully. Clause (i) of the Rules prescribes a period of three years commencing from the date of vesting where the 5 person was in possession of land on the date of vesting and the period of limitation for ejectment specified in U.P.Tenancy Act had not expired. Clause (iii) thereof prescribes a period of six years commencing from July 1 following the date of occupation and governs case where the land taken possession of the holding of Bhumidhar, Sirdar or Asami. It is pertinent to mention here that at the time of vesting in entry 30 of Appendix III the limitation was two years for filing the suit for ejectment against the trespasser in possession of the land. The period of limitation of two years for suits mentioned in clause (i) of entry of Appendix III changed to three years by a Notification of the State Government on April 9, 1955. By this amendment, Governor made amendments in existing Rules framed under the U.P.Z.A. & L.R. Act. Paragraph 32 of the Notification deals with the amendments in Appendix III clause (6) as follows:- “6. For the existing entries in column 4 against serial no.30 of following shall be substituted against items (i), (ii) and (iii) of column 3, three years.” Thus, the period of limitation which was two years for all the three clauses changed to three years on 9th April, 1955. The controversy whether the amended Rules can be applied retrospectively came before the Hon’ble Allahabad High Court in the case of Hanumant Rai Vs. Deputy Director of Consolidation and others [ 1973,All.L.J.Page 612] referred to above, wherein it was held by the Division Bench that the change in period of limitation would apply prospectively and not retrospectively. Now, the second aspect of the case whether the period of limitation prescribed in U.P. Tenancy Act has expired before the date of vesting. This controversy has been decided by the Division Bench of the Allahabad High Court in the case of “Mohd. Yaseen V. Amarnath 6 and others” [1974,R.D. Page 239]. Paragraph no. 5 of the judgment reads as under:- “5. Where the period of limitation prescribed in the U.P.Tenancy Act has expired before the date of vesting, the trespasser acquires a right and the tenant loses his tenancy rights. For such a case it is not necessary to lay down a fresh period of limitation as one party acquires the right and the other is deprived of his right. There is no question of re-determination of the rights of the parties. It is only where the possession is not for a period to mature the rights that a fresh limitation has to be provided. Where the period of limitation has not expired, the tenant retains his rights and the trespasser continues to be a trespasser. The tenant under the U.P.Z.A. and L.R.Act became a Bhumidhar, Sirdar or Asami. Consequently, if in such cases clause (iii) is applicable, clause (i) shall become redundant. The redundancy is not to be assumed. In fact, an attempt has to be made to harmonize the provisions so that all the parts of the provisions may be fully applicable. On the application of this Rule, it must be held, as has been observed by the learned Single Judge also, that clause (i) applies to a trespasser in possession from before the date of vesting, where the trespasser has not acquired any right in the land, while the clause (iii) applies to cases where the trespass is after the date of vesting. The prescribed period of limitation for a suit under Section 209 for the ejectment of Amar Nath was thus three years commencing from the date of vesting (July 1, 1961). The suit was instituted long after the expiry of three years period. The suit being barred by limitation was liable to dismissal.” In that case, the date of vesting was July 1, 1961 and suit was dismissed being barred by limitation. In the case at hand, the date of vesting is 1-7-1969 and admittedly no suit was filed against the petitioner by the original tenure holder for eviction before or after the 7 date of vesting. The petitioner has claimed his possession over the land in question since before 1374 Fasli. The prescribed period of limitation was two years under the Tenancy Act 1939, which expired on 1-7-1968, i.e. 1376 Fasli. The petitioner had perfected his rights at the relevant time, i.e. on the date of vesting, but even for the sake of arguments it may be taken, according to the respondent’s case that the petitioner had not perfected his rights on the date of vesting, the limitation would apply as that of Clause (i) and not of Clause (iii), as has been mentioned in the Schedule under Section 209 because Clause (iii) only applies in those cases in which the land was trespassed after the date of vesting, as has been held earlier. In that eventuality also, from 1-7-1969, the limitation under Section 209 of the ZA & LR Act had also expired on 1-7-1972 before the enforcement of the Ceiling Act and it is not disputed that no suit was filed after the date of vesting against the petitioner, therefore, the petitioner had acquired rights under Section 210 of the said Act. Besides, the petitioner has filed supplementary affidavit in this writ petition and along with the supplementary affidavit, the petitioner has annexed copy of Khasra of 1374 Fasli and copy of Khatauni. In column no.5 of the Khasra, the name of tenure holder Sohan Singh and in column no. 6 name of petitioner Sucha Singh find place. In the Khatauni, name of Sucha Singh is recorded as occupant in occupation without permission of the person recorded in column no. 5 of Khasra. All these documents fully lend support to the contention of the petitioner that Sucha Singh was recorded occupant in 1374 Fasli. In the view of the discussion above, it is clear that the petitioner had perfected his rights before the date of vesting and he had become Sirdar under Section 131 of the U.P.Z.A. and L.R. Act as mentioned above and by operation of law, he acquired Bhumidhari rights. The fact that the name of the petitioner was recorded adverse 8 against the tenure holder Sohan Singh in 1374 Fasli has not been controverted by the respondents at any stage by any cogent evidence. It is not disputed that no suit under Section 180 of the U.P. Tenancy Act or Section 209 of the ZA and L.R. Act was filed against the petitioner. As such the land in possession of the petitioner could not be clubbed with the land of the original tenure holder Sohan Singh. Accordingly, the writ petition is allowed. The impugned order dated 26-8-1987 passed by the Prescribed Authority and the order dated 29-7-1988 passed by the Commissioner Kumaun Division, Nainital, are set aside. No order as to costs. However, the Prescribed Authority may proceed against the petitioner independently in accordance with law, if the petitioner is found in possession of land in excess of ceiling limit. (B.S. Verma,J.) RCP