Parmanand Singh (D) Th. Lrs. vs Union Of India Through The Secretary

1. The present case reveals a very sorry state of affairs. It appears that the ancestors of the appellant were Zamindars, and the appellants claim that they were in possession of the disputed land, which is roughly 5 acres, since 1930. On 25th July, 1974, proceedings under Section 122-B of the U.P. Zamindari Act were initiated against the appellants on the ground that the said land belonged to the State Government and the Gaon Sabha and that the appellants therefore ought to be evicted. After the appellants filed their reply in the aforesaid proceedings, by order dated 25th July, 1974, the proceedings were dropped and it was stated that Digitally signed by USHA RANI BHARDWAJ Date: 2017.09.14 proceedings under Section 180 of the U.P. Tenancy Act be 15:54:08 IST Reason:

2. On 30th October, 1974, the State Government on behalf of the Union of India through the Collector Mirzapur filed a suit being Suit No.1 of 1974-75 under Section 180 of the U.P. Tenancy Act for recovery of possession and damages against the appellants. The appellants filed their written statement and contested the suit. During the pendency of the suit, a show cause notice dated 24 th February, 1977, was issued by the Defence Estate Officer under the Public Premises Eviction Act under Section 4(1) thereof. On 11th March, 1977, the appellant replied to the said notice. On 17th March, 1977 the Defence Estate Officer passed an order under Section 5(1) of the Public Premises Act. We have gone through the said order, which only states that the respondent was put on notice and their reply was received and considered. Without giving any reason as to why the reply was not acceptable, an order under Section 5(1) of the said Act was made to evict the appellants from the said premises. On 6th April, 1977 the State Government allowed the Suit No.1 of 1974-75 to be dismissed in default.

3. Inasmuch as the proceeding under Public Premises Act then continued, a writ petition being filed by the appellant which was also disposed of, an appeal which was first dismissed on the ground of delay was then restored by the High Court by order dated 10 th May, 1988. This 3 appeal finally dismissed on 10th April, 1990. This order recorded:

4. A writ petition was filed against the aforesaid order, in which an affidavit was filed by one Sonam Yangdol in which the deponent recorded some of the aforesaid facts and also referred to the suit that was filed under Section 180 of the U.P. Tenancy Act. Without giving the actual date on which the suit was dismissed for default, which we have seen is on 6th April, 1977, the 4 deponent of this affidavit went on to state “thereafter proceedings were initiated under the Public Premises Act for eviction on 24th February, 1977.”

10. Obviously, the suit was filed by the State Government on behalf of the Union on the footing that the non-occupancy tenant retained the possession of the plot of land without the consent of the Union, and that, therefore, he was liable to ejectment and to pay damages. Once that suit is dismissed for non-prosecution, the provisions of Section 180(2) kick in. Under this sub-section, if no suit is brought under the Section, which must also be understood as a suit being brought and dismissed in default, the person in possession shall become a hereditary tenant of such plot. The effect in law, therefore, of the dismissal for default of suit No.1 of 1974-75 on 6th April, 1977 is that the appellant's status is that of a hereditary tenant. This being the case, the foundational jurisdictional fact of the 8 appellant being an unauthorised occupant in order to attract the provisions of the Public Premises Act is lacking. As this is so, all the orders that have been passed by the authorities as well as the High Court are without jurisdiction. This being the case, it is now important to do complete justice between all the parties. Since, it appears that some portion of the appellants' 5 acres may be in the possession of the ex-servicemen as lessees of the Union of India, we direct as follows:

12. With these observations, the judgment under appeal is set aside and the appeal is allowed.

Date : 31-08-2017 This appeal was called on for hearing today. CORAM :