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2005 (1) AWC 934
(ALLAHABAD HIGH COURT)
Mrs. Poonam Srivastava, J.
Second Appeal No. 395 of 1982
Decided on November 10, 2004
Mahanand (D.) through L.Rs.
Versus
Gaon Sabha Manik Patti, Varanasi and another
ownership - property dispute - U.P.C.H. Act, U.P. Zamindari Abolition Act, U.P.Z.A. and L.R. Act - Section 49 of U.P.C.H. Act, Section 9 of U.P.Z.A. and L.R. Act, Section 13 of the Evidence Act - the court discussed the applicability of Section 49 of U.P.C.H. Act, the binding nature of previous decrees, and the rights under U.P.Z.A. and L.R. Act in the context of a property dispute.
Fact of the Case:
The plaintiff filed a suit for permanent injunction against the defendants to restrain interference in possession of ancestral property. The lower courts dismissed the suit, leading to the second appeal.
Finding of the Court:
The court found that the lower courts failed to consider the oral and documentary evidence and legal questions involved in the controversy. It held that the suit was not barred by Section 49 of U.P.C.H. Act and the previous decrees were binding on the parties. The court also emphasized the plaintiff's continuous possession and set aside the lower courts' judgments.
Issues: The issues included the applicability of Section 49 of U.P.C.H. Act, the binding nature of previous decrees, and the rights under U.P.Z.A. and L.R. Act.
Ratio Decidendi: The court's decision was based on the failure of the lower courts to consider the evidence and legal questions, the applicability of Section 49 of U.P.C.H. Act, the binding nature of previous decrees, and the plaintiff's continuous possession.
Final Decision: The court allowed the appeal, set aside the lower courts' judgments, and directed the plaintiff to continue in possession without interference from the defendants.
Mrs. Poonam Srivastava, J.—Heard Sri B.K. Srivastava learned counsel for the appellant. Defendant-respondent No. 1 Gram Sabha Manik Patti, through its Pradhan Manik Patti, Taluqa Chauthar, Tehsil Gyanpur, district Varanasi has been arrayed as respondent No. 1 Sri V.K. Singh has filed his appearance on behalf of respondent No. 1 but is not present in the Court. Learned standing counsel appears for the respondent No. 2 State of U.P. through Collector. The second appeal is being taken up in the revised list.
2. The present second appeal has been filed by the plaintiff against a concurrent judgment and decree dated 14.10.1981 passed by IInd Additional District Judge, Varanasi in Civil Appeal No. 39 of 1971 confirming the judgment and decree dated 17.9.1971 passed by the Munsif Bhado at Gyanpur in Original Suit No. 2 of 1970, Mahanand v. Gram Sabha and another. The sole plaintiff-appellant died and his heirs have been substituted and have already been brought on record on 9.12.2003. A suit for permanent injunction was filed by the plaintiff-appellant against the contesting respondents for restraining them from causing interference in the peaceful possession over the land which is a tank and trees standing on the said land. The suit was dismissed. The appeal was also dismissed by the lower appellate court. The plaint case is plot No. 279 corresponds to plot No. 459 of 1320 settlement year (area measuring 3 bigha 9 biswa 15 biswansi) is the ancestral property over which the plaintiffs grandfather Jangi Yadav was in possession during his life time. The disputed land was in shape of pond which was used for rearing fishes besides, a number of trees on the Bhita of the pond planted by the predecessors of the plaintiff-appellant. The plaintiff claimed to be in possession since last more than 60 years. The father of the plaintiff died during life time of Jangi as such after the death of Jangi in the year 1952, the plaintiff succeeded. One Ravi Saran filed a suit in respect of the disputed property against Jangi Yadav which was numbered as Original Suit No. 312 of 1924. Jangi Yadav claimed his title and possession in the said suit which was however decreed, appeal was filed by Jangi Yadav in the chief court which was numbered as Appeal No. 57 of 1925. The appeal was allowed and Jangi Yadav was held to be owner of the disputed pond. It was also shown that fourteen trees were planted by him. In another proceedings one Hubraj filed a suit under Section 229B of U.P. Zamindari Abolition Act against the plaintiff and defendant in the present suit. Gaon Sabha did not contest the suit and did not file any written statement. The said suit ended in a compromise dated 25.4.1961 and plaintiff was found to be owner and bhumidhar of the suit property. Gaon Sabha did not challenge the said compromise decree.
3. The consolidation proceedings started and disputed property was recorded in column No. 6, consequently the name of the plaintiff was expunged. It is admitted that there was no contest during consolidation proceedings. After the name of plaintiff was expunged the Sabhapati of Gaon Sabha started causing interference in the plaintiff’s possession in the month of June, 1969. The plaintiff gave a notice under Section 106 of the Panchayat Raj Act and under Section 80, C.P.C. to the defendant on 20.10.1969, which was duly served. The notice was replied denying the title and possession of the plaintiff which led the institution of the present suit. The Gaon Sabha contested the suit denying the plaint allegation alleging that land in dispute is the property of the Gaon Sabha in the shape of pond and the plaintiff has no concern whatsoever and is not in possession and it was further claimed that the suit was barred by Section 49 of the U.P. Consolidation of Holdings Act (hereinafter referred as the Act) and the notice was said to be invalid. A number of issues were framed. Issue No. 4 was :
‘whether the suit is barred by Section 49 of U.P.C.H. A
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