Judgment

SARKARIA, J. :- This is an appeal by certificate against a judgment dated July 28, 1967, passed by the High Court of Allahabad in Special Appeal No. 352 of 1967. It ariese out of these facts:

2. Jai Dutt, appellant, was in possession of public land bearing Survey Nos. 130, 131A and 131B, with an aggregate area of 80 Bighas and 19 Biswas in the area of village Guljarpur Purramsingh, Tehsil Kalachungi, Dist. Nainital. The Public Authority, Nainital served a showcase notice dated August 26, 1963 under Section 3 (1) of the U. P. Land (Eviction and Recovery of Rent and Damages) Act, 1959 (hereinafter called the Eviction Act) on the appellant for his eviction from this land on the ground that he was in its unauthorised occupation. The appellant contested the notice on the ground that he was in its possession for more than 12 years and had acquired the rights of a hereditary tenant in the land under Sec. 180 (2) of the U. P. Tenancy Act. 1939 (for short called the Tenancy Act). On these premises, the appellant contended that the land was not public land and as such, the Eviction Act had no application and the notice was illegal.

3. By its order dated October 31, 1963, the Public Authority dismissed the objections, holding that the appellat "has not filed any documentary evidence to show that the land in dispute was allotted to him by a competent authority, while the documents filed on behalf of the State show that it is a public land and "the O. P. (appellant herein) is trespasser thereon", and he is, therefore, liable to be evicted therefrom under Section 4 (1) of the Eviction Act. The Public Authority further assessed Rs. 12/- as damages payable by the appellant.

4. Against this order of the Public Authority. Jai Dutt carried an appeal under S. 5 of the Eviction Act to the District Judge. The appeal was heard by the Additional District Judge, Kummaon-Nainital, before whom the appellant reiterated the contention that he had been in possession of the land in question for the preceding 12 years, and as such, had acquired the rights of a hereditary tenant thereon. There, the appellant seems to have further contended that he had been paying "rent" for his occupation of the land. He appears to have shown some receipts also to the Additional District Judge.

5. The Additional District Judge negative all the contentions and dismissed the appeal.

6. The appellant then filed a writ petition under Art. 226 of the Constitution before the High Court to impugn the orders of the Public Authority and of the Addl. District Judge, inter alia, on the ground that since he had been paying rent for the land which has been in his cultivating possession for a number of years preceding the eviction proceedings, he could not be said to be an unauthorised occupant but a hereditary tenant under Section 180 (2) of the Tenancy Act. The learned single Judge of the High Court, who heard the writ petition, rejected this contention with the observation that the Khatauni of 1368 Fasli entered the petitioners possession over the disputed plots as ranging from 1 year to 6 years. The oral evidence led by the petitioner does not outweigh the force of the entries in the Khatauni. The petitioner, therefore, did not acquire any title under Sec. 180 of the U. P. Tenancy Act before 1953". The learned single Judge further observed that the decision of the Division Bench of that High Court in Shri Chandra v. State of U. P. (Writ Petn. No. 3277 of 1966 decided on 13-2-1967) was applicable to the case and the land in dispute will be public land and the possession of the appellant unathorised. In the result, the writ petition was dismissed with costs. The appellants special appeal was dismissed by a Division Bench of the High Court on July 28, 1967. In the meantime, the Eviction Act was successfully challenged before the High Court in Writ Petns. Nos 3755 and 3756 of 1962 which were decided on May 24, 1968 : (reported in AIR All 369) (FB).

7. Keeping in view the value of the sub