SHADI LAL Vs. UP-SANCHALAK CHAKBANDI/COLLECTOR HARIDWAR & OTHERS
LAWS(UTN)-2013-8-121
HIGH COURT OF UTTARAKHAND
Decided on August 16,2013

SHADI LAL Appellant
VERSUS
Up-Sanchalak Chakbandi/Collector Haridwar And Others Respondents

JUDGEMENT

- (1.) Heard learned counsel for the parties.
(2.) In the consolidation proceedings in village Padli Gujar, Tehsil Roorkee, District Haridwar it was found that Gata No.231/7 area 0-0-7 and 259/2 area 0-0-10 was shown as banjar in C.H. Form 5 in the name of respondent no.3. The petitioner filed objection under Section 9(A) of the Consolidation Hoardings Act on 17.03.1988 before the Consolidation Officer. The petitioner put up his case that he is in possession of Gata No.231/7 and 259/2 for last 42 years and he had constructed his Godown. It was also submitted that the land is shown as banjar and Gram Sabha had no concern on the land. It was also stated that the land was purchased by the petitioner by way of registered sale deed dated 11.08.1953. Thereafter petitioner constructed a Bone Godown and also boundary wall around it and since then the land is in his possession. It was also contended that the land never vested in the Gaon Sabha at the time of vesting and same was in possession of Abdul Rajjaq son of Bisharat at the time of zamindari abolition. It was contended that in the land record fasli year 1359, the land was not recorded as banjar. It was also contended that at the time of second settlement i.e. fasli year 1326 khatoni and khasra shown the name of their owner and thus it is clear that land in question was not banjar. The objection filed by the petitioner was registered as case no.788. Petitioner filed the sale deed by which the same was purchased by the petitioner from one Abdul Rajjaq. Petitioner also filed the order dated 02.09.1974 passed by the Commissioner, Meerut in appeal by one person against the judgment passed in a suit under Section 209 of U.P. Z.A. L.R. Act. In the said judgment and order dated 02.09.1974, it was held that the petitioner is in possession of land in question. During the pendency of the suit against which an appeal was filed before the Commissioner an Advocate Commissioner was appointed, who inspected the spot and submitted his report in which it was mentioned that property in question was in possession of the petitioner. Consolidation Officer dismissed the objection of the petitioner on 14.12.1994. The Consolidation Officer in his order held that the sale deed referred by the petitioner does not disclose the disputed plot number and area. Consolidation Officer framed the issue whether the plaintiff has acquired the right of bhoomidhar with transferable rights and property in question on the basis of adverse possession. This issue was decided against the petitioner. Aggrieved by the order, petitioner filed appeal no.490 of 1995 before the Consolidation Officer/Settlement Officer, Roorkee. Said appeal was also dismissed. Consolidation Officer/Settlement Officer rejected the appeal of the petitioner on the ground that the land in question has been shown as banjar. He gave finding that no right can be given to the petitioner on the land of the Gaon Sabha on the basis of adverse possession. Against these two orders petitioner filed Revision No.37 of 2000 before the Deputy Director of Consolidation. Deputy Director of Consolidation also dismissed the appeal by holding that no right can be given to the Gaon Sabha land. The Deputy Director of Consolidation further held that even in the sale deed filed by the petitioner, the plot no.231/7, is not mentioned anywhere though plot no.259, 228 and 259 are mentioned. Aggrieved by the aforesaid orders, the petitioner filed present writ petition.
(3.) The main contention of learned counsel for the petitioner is that he purchased the land in question from one Abdul Rajjaq, whose name was duly recorded at the time of second Settlement and at the time of vesting of land under Zamindari Abolition Act. The land never vested in the Gaon Sabha. He submitted that all the courts below have erred by not appreciating the fact that the land was in the name of Abdul Rajjaq and said land can never be vested in the Gaon Sabha at the time of Zamindari Abolition Act. He submitted that the petitioner never claimed his right on the basis of adverse possession and courts below have wrongly framed that issue and decided the issue against the petitioner. Rights over the land in question were vested on the basis of sale deed dated 11.08.1953.;


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