Dismissed

Bache Ram v. State of U.P

Uttarakhand HC14 Dec 2021WPMS/6842/1986

Case brief

AI extract

What is this about?

High Court at Nainital dismissed the writ petition challenging revenue orders in ejectment proceedings. The court held that factual disputes regarding missing documents and alleged fraud were not properly pleaded and that the respondents acquired title by operation of law confirmed by appellate courts.

What did the court decide?

Writ of Certiorari not issued; impugned orders of Assistant Collector and appellate authorities upheld.

Bache Ram Vs State of U.P — Landlord and Tenant | Uttarakhand HC (2021)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Writ Petition No. 4230 (MS) of 2001 Old No.

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Civil Misc. Writ Petition No. 6842 of 1986

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Bache Ram and others. .......….......Petitioners. -Versus- State of U.P. and others. ……...Respondents.

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Present:

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Shri M.S. Tyagi, Sr. Advocate assisted by Shri Sumit Bajaj, Advocate for the petitioners. Shri Yogesh Pandey, Addl. CSC and Shri Devesh Ghildiyal, Brief Holder for the State. Shri B.D. Upadhayay, Sr. Advocate assisted by Shri Sunil Upadhyay, Advocate for the private respondents.

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Sri S.K.Mishra, J.

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Date of Hearing and Judgment: 14.12.2021

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1. Heard Shri M. S. Tyagi, learned Sr. Advocate assisted by Shri Sumit Bajaj, learned counsel for the petitioners, Shri B.D. Upadhyay, learned Sr. Advocate assisted by Shri Sunil Upadhayay, learned counsel for the private respondents and Shri Yogesh Pandey, learned Addl. CSC with Shri Devesh Ghildiyal, Brief Holder for the State.

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2. In this writ petition, filed under Article 226 read with Article 227 of the Constitution of India, the petitioners pray for issuance of writ of Certiorari quashing the judgment and decree dated 17.10.1977, 06.11.1979 and 08.12.1983 passed by respondents no. 2, 3 and 3A respectively whereby the suit for ejectment filed by the petitioners under Section 209 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, (hereinafter referred to as “the Act” for brevity) was dismissed as far as plot no. 44/1 measuring 16 Bigha 16 Biswa is concerned.

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3. The facts of the case in date wise form are narrated as follows:

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i. On 22.12.1976, petitioners i.e. late Shri Bache Ram and others filed a suit under Section 209 of the Act in the court of Assistant Collector, Kashipur for ejectment of respondents no. 4 to 9 from the plot no. 13/2 measuring 7 Bigha 8 Biswa and from the plot no. 44/1 measuring 16 Bigha 16 Biswa.

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ii. On 17.10.1977, learned Assistant Collector, Kashipur decreed the suit in favour of plaintiffs – petitioners, herein, in respect of plot no. 13/2 but rejected the claim of the plaintiffs – petitioners over plot no. 44/1. Then, the petitioners preferred a first appeal to claim plot no. 44/1 and private respondents filed cross appeal to claim plot no. 13/2 before the Commissioner, Kumaon Division, Nainital. Both the appeals were dismissed by the Commissioner vide judgment and order dated 06.11.1978.

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iii. Feeling aggrieved, petitioners preferred a second appeal and private respondents preferred cross appeal before the Board of Revenue, Allahabad, Uttar Pradesh, which were numbered as Appeal No. 26 of 1978-79 and Appeal No. 14 of 1978-79 respectively. On 08.12.1983, both the appeals were dismissed by the Member, Board of Revenue, Allahabad.

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iv. In 1986, present writ petition was filed by the petitioners challenging the orders passed by the Assistant Collector, Kashipur; confirmed by the Commissioner, Kumaon Division, Nainital and the Member, Board of Revenue, Allahabad with respect to plot no. 44/1. However, no petition was filed by the private respondents challenging the findings recorded by the Revenue Authorities with respect to plot no. 13/2. Hence, the

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judgment passed by the Assistant Collector in respect of plot no. 13/2 has attained quietus.

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4. Shri M.S. Tyagi, learned Senior Advocate for the petitioners would argue that the document, on the basis of which, the Assistant Collector had refused to grant order of ejectment in favour of the petitioners in the original suit initiated in the year 1977, does not form part of the record. He would very emphatically submit that the order of Assistant Record Officer dated 21.07.1964 is not forthcoming. He would also draw attention of this Court to the order passed by the Coordinate Bench of this Court dated 12.03.2021 directing the respondents to file a certified copy of the order dated 21.07.1964.

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5. It was, therefore, argued by Shri M.S. Tyagi, learned Senior Counsel for the petitioners that such document is not forthcoming; there is no reference of the same in the written statement annexed as Annexure No. 2 to the counter affidavit (at page 37 of the brief) coupled with the fact that there is no specific mention about such an order, in the impugned judgment passed by the Assistant Collector; the order passed by the learned Assistant Collector, confirmed by the two Appellate Courts, is erroneous and is based on no evidence available on record and therefore, that order should be reversed. He would, therefore, argue that the writ petition should be allowed and decree of ejectment be issued in favour of the petitioners and against the private respondents.

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6. Shri B.D. Upadhyay, learned Senior Advocate appearing for private respondents would argue that the order of the Assistant Collector is based on his observations made on the perusal of record of rights, prepared by the official concerned in which endorsement was made in the remark column regarding the

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order passed by the Assistant Record Officer on 21.07.1964; as order of the Assistant Collector has been confirmed by the two Appellate Courts, therefore, this Court while exercising jurisdiction of Certiorari under Article 226 of the Constitution of India or supervisory jurisdiction under Article 227 of the Constitution of India, should not interfere with such factual findings. He has placed reliance upon the Section 32 of the Act which provides for presumption of genuineness of the entries in record of rights. Relying heavily upon the observations made by the learned Member, Board of Revenue while deciding the Appeal Nos. 14 and 26 of 1978-79, he would argue that the writ petition sans in merit, therefore, should be dismissed without any interference in the orders passed by the Revenue Authorities.

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7. Shri Yogesh Pandey, learned Addl. CSC for the State would argue that in view of the order dated 12.03.2021 passed by the Coordinate Bench of this Court, respondents had made an attempt to obtained a certified copy of the order but they have been informed by the concerned authorities that those documents were weeded out and destroyed in the year 1977. Thus, Shri Yogesh Pandey, learned Addl. CSC would argue that at this stage, it cannot be said that such a document was not in existence or any fraudulent practice has been adopted in the matter. In rebuttal argument Shri M. S. Tyagi, learned Senior Advocate would argue that a bare perusal of the entry made in the relevant document i.e. paper no. 10A of the paper book of the original record maintained by the learned Assistant Collector, would lead to the conclusion that there is manipulation in the document and hence, the case of the respondents is tainted with mala fide and is a case of fraud and misrepresentation.

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8. To a query made by this Court about the proceedings taken up by Revenue Authorities under the Act, learned counsel for the parties admit that the provisions of the Code of Civil Procedure, 1908 (hereinafter referred to as “Code” for brevity) are applicable to the proceedings under the Act, as it provided under Section 34 of the Act that the provisions of the Indian Court Fees Act and the Limitation Act, the Code etc. are applicable to the proceedings under the said Act. In other words, it is agreed by learned counsel for the parties that proceedings before the Revenue Authorities under the Act are not summary proceedings and all proceedings are tried as suits. Since there is no assembly regarding such contention, which is agreed by all the parties, there is no need to give any findings on the question of applicability of the provisions of the Code.

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9. Having carefully examined the records, this Court takes into consideration the following salient features, which are not disputed at this stage:

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i. Admittedly, plot no. 44/1 stood recorded in the name of the plaintiffs-petitioners.

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ii. In the written statement, the defendants - respondents took a plea that they are in possession of the land, in question, since 1957.

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iii. There is no specific plea in the written statement that the Assistant Record Officer has made an endorsement on 21.07.1964 to the effect that the possession of the respondents should be counted from the last five years instead of last one year.

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iv. There is no supporting document except the entry made in the remarks column of document no. 10A.

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v. There is no specific mention in any of the orders passed either by the learned Assistant Collector or by the Commissioner, Kumaon or by the learned Member of Board of Revenue that they have been passed on perusal of the order passed by the Assistant Record Officer on 21.07.1964.

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vi. No specific plea has been raised by the plaintiffs-petitioners either in the first appeal or in the second appeal regarding non-existence of such order allegedly passed by the Assistant Record Officer on 21.07.1964.

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10. Though Shri M. S. Tyagi, learned Senior Counsel for the petitioners, by referring to para 9 of the writ petition, made an attempt to establish that plaintiffs-petitioners have raised a plea in the writ petition about the non-existence of the document dated 21.07.1964.

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11. A careful examination of paragraph 9 of the writ petition, on which Shri M. S. Tyagi, learned Senior Counsel for the petitioners relies heavily, would reveal that the petitioners have averred therein that the document filed by the respondents belies the case of the respondents in as much as 1368 F and paper no. 10A, the order of the Assistant Collector dated 21.07.1964 proves otherwise. It is further averred that the judgment based on these documents is illegal and not sustainable under law.

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12. There is no specific pleading regarding any fraud or fraudulent misrepresentation or manipulation or interpolation in the document at any stage.

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13. This Court directed the private respondents to produce the certified copy of the document. The private respondents filed an affidavit on 28.10.2021 wherein they have stated that they have been informed by the concerned authorities that such document has been destroyed in the year 1977. In this factual background, which is not disputed, at this stage of litigation, this Court is of the opinion that since there has been no specific plea by the plaintiffs-petitioners that no such order passed by the Assistant Record Officer on 21.07.1964, such a plea cannot be taken up at the stage of final arguments of the case especially when the case relates to the year 1986. This is a factual aspect and needs to be pleaded specifically before the authorities concerned. As noted earlier, there is no such plea either before the first Appellate Court or before the second Appellate Court or even before this Court in specific terms.

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14. The Assistant Collector by virtue of his judgment dated 17.10.1977 decreed the suit of the plaintiffs-petitioners in part rejecting their claim as far as plot no. 44/1 is concerned. He while considering the materials available on record, not only has the opportunity to examine the existing documents produced before him but also observed the demeanour of the witnesses. His findings have been approved and upheld by the first Appellate Court and also by the second Appellate Court.

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15. A careful examination of the orders passed by the learned Member of Board of Revenue reveals that it is not argued before it that there is no such document dated 21.07.1964. In fact, it was argued before him that such document was misinterpreted. It is

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appropriate to take note of the exact words used in para 5 of the judgment, which reads as under:

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“05. Regarding the order dated 21.07.1964, it is only said that the period of possession in 1370 F should be read 5 years in place of 9 years. In fact, this order being passed in 1372 F supported the view that the possession has continued earlier of 1372F. However, the learned trial court has given a finding on the basis of entry in 1374F that the defendant has become Adhivasi and thereafter, Sirdars, who were not liable to ejectment. I have seen the Khasra 12 years on record and find no error in this finding. In fact, the extract shows a verification by the Supervisor Kanoongo dated 27.03.1967 saying that the plot no. 44A was not correctly shown on the map according to its existing form. Therefore, there is no question of misinterpretation of the order of the ARO.”

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16. Thus, it is clear that the even the Second Appellate Court admitted the existence of the document i.e. the order passed by the Assistant Record Officer on 21.07.1964. Rather, its misinterpretation was challenged before the Second Appellate Court. So, in that view of the matter, for issuance of Writ of Certiorari, this Court is of the opinion that this factual aspect should not again be re-assessed or the evidences should not again be re-appreciated for coming to different finding on factual aspect of the case.

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17. As far as, fraudulent practice or fraudulent misrepresentation of records are concerned, it is settled principle of law that fraudulent misrepresentation, fraud or manipulation

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in document is a very serious allegation, it has to be specifically pleaded and has to be established by leading cogent evidence, both direct evidence or circumstantial evidence. In this case, neither there is any pleading on record that such a document i.e. 10A of the paper book contained any fraudulent entry in the remarks column nor there is any specific evidence to support such a plea raised before this Court. At this stage, this Court is also not inclined to accept the plea that there was a fraud on the face of the record.

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18. Coming to the moot question, which involves in this case is whether the respondents have acquired title by operation of law i.e. the order passed by the Assistant Collector confirmed by two Appellate Authorities. This Court is of the opinion that in this connection, the Assistant Collector while deciding issue no. 1, 2, 3 and 5 to the suit has observed, at page no. 6 of the impugned judgment dated 17.10.1977, which reads as follows:-

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^^[ksr uEcj 44@1] 16 ch?kk 16 fcLok oknhx.k ds lhjnkjh [kkrs dk gSA ijUrq izfroknhx.k dk uke [kljs ds LrEHk 6 esa o’kZ 1973 Qlyh ls gks cnLrwj ntZ pyk vk jgk gSA 1373 Qlyh esa LRkEHk 6 esa ØkWl dk fu”kku Hkh cuk gqvk gSA ftldh vksj bafxr dj oknh ds fo}ku vf/koDrk us rdZ izLrqr fd;k fd ;g izfo’Vh iVokjh }kjk xyr dh x;h gS ijUrq izfroknhx.k dh vksj ls izLrqr fjdkWMZ vkWijs”ku ds le; lgk;d vfHkys[k vf/kdkjh }kjk fn; x;s vkns”k fnukad 21-07-1964 ds vk/kkj ij bl rF; dh iqf’V gks tkrh gSA^^

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19. Thus, it is apparent that the learned Assistant Collector observed that plot no. 44/1 is found to be in possession of the respondents on the basis of the Khatauni No. 1388 and by operation of law under the Act. The respondents have acquired title of Sirdar over the land in question. Hence, the application for ejectment of the respondents filed by the plaintiff-petitioners was

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correctly rejected by the learned Assistant Collector and was rightly confirmed by the two Appellate Authorities.

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20. In the above conspectus, writ petition fails and is hereby dismissed. No order as to costs.

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21. Urgent copy of this judgment be provided to the counsel for the parties, as per Rules.

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(S.K.Mishra) Judge

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SKS

Bache Ram v. State of U.P

Case brief

What is this about?

What did the court decide?

Bache Ram v. State of U.P

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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