Decided on June 14,2001

District Judge,Pithoragarh Respondents


P.C.VERMA,J. - (1.)THIS is a writ pe­tition filed by the petitioner, challeng­ing the order dated 25.4.2001 passed by the District Judge, Pithoragarh in appeal under Section 9 of the U. P. Public Premises (Eviction of Unauthor­ised Occupants) Act, 1972. The said appeal was filed by the petitioner against the order dated 25.4.2001, passed by the Prescribed Authority under Section 4 of the said Act hold­ing the petitioner to be unauthorised occupant and directing the petitioner to vacate the premises and an order was also passed by Prescribed Authority un­der Section 7 of the said Act imposing penal rent on the petitioner at the rate of Rs. 3,000 per month.
(2.)THE dispute relates to plot No. 1286. Sri Jagannath was the owner of the plot in dispute who died in 1982. On 24.11.1979, an agreement to sell was executed in favour of the petitioner by late Sri Jagannath and possession of the land was transferred to the peti­tioner. Petitioner claims that by virtue of Section 164 of Zamindari Abolition and Land Reforms Act, he became transferee of the land. Section 164 of U.PZ.A. and L. R. Act reads as under:
"Section 164. Transfer with posses­sion by a bhumidhar to be deemed a sale.- Any transfer of any holding or part thereof made by a bhumidhar by which possession is transferred to the transferee for the purpose of securing any payment of money advanced or to be advanced by way of loan, and existing or fu­ture debt or the performance of any engagement which may give rise to a pecuniary liability, shall, notwith­standing anything contained in the document of transfer or any law for the time being in force, be deemed at all times and for all purposes to be a sale to the transferee and to every such sale, the provisions of Sections 154 and 163 shall apply."
3. The learned counsel for the pe­titioner has filed an affidavit to show that he does not possess the land more than twelve and half acres. Therefore, Section 164 of the UPZ.A. and L.R. Act is not attracted. However, Section 163 of the said Act stands deleted and Section 164 stands in statute-book. 4. The dispute arose after the death of Sri Jagannath when his son Sri Basant Lal sold the property in favour of Government, for an institution on 6.8.1982. Petitioner was not aware about this sale deed and continued to enjoy the possession. The petitioner came to know about the said sale deed when notice under the U. P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972, was served on him. fie filed the objection in response to the notice and contested the case on the aforementioned grounds. The Pre­scribed Authority rejected the conten­tion of the petitioner relying on the sale deed in favour of the State Govern­ments by Basant Lai son of Sri Jagannath. The District Judge also took the same view and affirmed the order of the Prescribed Authority. 5. The learned counsel for the pe­titioner submits that once question of title was raised and the petitioner was a bona fide transferee under Section 164 of the U.P.Z.A. and L.R. Act, he could not have been held to be an unauthorised occupant and it was not proper for the Prescribed Authority to have referred the matter for decision of title. 6. After service of notice, the peti­tioner ought to have filed a suit for can­cellation of said sale deed and decla­ration of his title. In my opinion, with­out there being cancellation of sale deed by a competent court, the Pre­scribed Authority was not wrong, in holding the property to be public prop­erty. The question as to whether the sale deed could have been executed by Basant Lal, in the facts and circum­stances of the case when the petitioner became bona fide transferee of the land in question under Section 164 of U.P.Z.A. and L.R. Act was to be de­cided by the competent court in the present proceedings. Therefore, I pro­vide that the petitioner may file a suit for cancellation of sale deed and to get his title declared. Since the petitioner prima facie appears to be bona fide transferee, therefore. I further provide that if such suit is filed within a period of one month, the Court concerned may pass appropriate order on appli­cation under Order XXXIX, Rules 1 and 2 of the C.P.C. within 15- days from the date of filing of the suit. And for one and half month, the petitioner shall not be dispossessed from the land in dispute and no recovery shall be made from the petitioner. 7. Subject to above, the petition is disposed of finally.

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