S.N.Srivastava - (1.) -Second appeal in hand has been preferred by the Defendant Appellants, i.e., Nagar Palika, Aligarh impugning the judgment and decree dated 28th March, 1985 passed by the lower appellate court in Civil Appeal No. 214 of 1983 whereby judgment passed by the trial court in Original Suit No. 132 of 1982 dismissing the suit of the plaintiff was reversed and suit of the plaintiff was decreed.
(2.) IT would appear from the record that the plaintiff respondent instituted Original Suit No. 132 of 1982 for the relief of permanent injunction to restrain the defendant from interfering with the possession of the plaintiff over the land in dispute. The suit aforestated was instituted by the plaintiff with the allegation that the plaintiff is a transferee through sale deed dated 24.8.1959 executed by M/s. Tika Ram and Sons Pvt. Ltd. Aligarh in relation to plot No. 1456 admeasuring 4 Bighas, 19 biswas situated in village Kisanpur which is now subsumed within the limits of Nagar Palika Aligarh ; that on 16.3.1982 employees of Nagar Palika Aligarh descended on the land in question for taking forcibly illegal possession notwithstanding the fact that the plaintiff happens to be owner of the land in dispute ; and further that the land in dispute does not form part of the land which is or has been used for the purposes of brick kiln and further that it was the land of one Radhey Shyam which was being used for the purposes of Brick-kiln. On the other hand, it would appear from the record, the defendants repudiated the plaint allegations and pleaded that plaintiff being transferee did not acquire bhumidhari rights after the date of vesting and that the land in dispute, as a matter of fact, had come to be vested in Gaon Sabha and thereafter, in Nagar Palika, Aligarh. IT was averred in the written statement that the land in dispute was barren land and hence, on this ground also, it had come to be vested in the Gaon Sabha and by virtue of operation of U.P.Z.A. and L.R. Act, it became property of the Nagar Palika in the year 1955 and in the ultimate analysis, it was prayed that the suit was liable to be dismissed. The quintessence of arguments advanced across the bar by the learned counsel for the defendant/appellants is that since the property in question was being appropriated for the purposes of brick kiln prior to the date of vesting, no bhumidhari rights could accrue to the plaintiff. The learned counsel also drew attention of the Court to the fact that initially, one Niyazi Begum owned the property but subsequently she transferred the land to M/s. Tika Ram and Sons Ltd. which Trust re-conveyed the property in favour of plaintiff by means of sale deed dated 24.8.1959 but asserted that since land was being used for the purposes of brick-kiln, no rights could accrue to the plaintiff to bestow upon him the status of Bhumidhar. The learned counsel also assailed the finding of the lower appellate court in which it was held that the land in dispute was never used for the purposes of brick kiln and criticized it as perverse and sought that the same is liable to be set aside. The learned counsel, in order to prop up the submission aforestated, placed credence on a decision in Rana Sheo Ambar Singh v. Allahabad Bank Ltd., Allahabad, AIR 1961 SC 1790. The learned counsel stressed that unless there is cultivatory possession of land in dispute, no Bhumidhari rights could accrue as envisaged in Section 18 of the U.P.Z.A. and L.R. Act. It has lastly been submitted that the property in question has already come to be vested in the Gaon Sabha as contemplated in Section 117 (1) of the U.P.Z.A. and L.R. Act and therefore, the plaintiff has no title and the suit was rightly dismissed by the trial court upon appraisal of evidence before it. Per contra, Sri Chandra Shekhar learned counsel representing the plaintiff respondent contended that the land in question was originally owned by one Niyazi Begum who was recorded in the revenue records as Khudkast and by means of sale deed dated 26.9.1929, she alienated the property in favour of the transferor of plaintiff who transferred it in favour of plaintiff on 24.8.1959. The learned counsel argued that as the land was recorded as Khudkast on the date of vesting, in Khata of transferor of plaintiff, there is no manner of doubt that Bhumidhari Rights had come to accrue in favour of transferor of plaintiff and the land was rightly transferred to the plaintiff-Trust. The learned counsel strongly refuted the assertion that the land in question was ever used for brick-kiln purposes. The learned counsel also referred to Sections 4, 6, 18 and 117 (1) of the U.P.Z.A. and L.R. Act and notification issued under Section 117 of the U.P.Z.A. and L.R. Act dated 11.8.1954. It crystallizes from a perusal of the notification that the land recorded in any Khata or grove did not vest in Gaon Sabha. It would further appear from the notification that after vesting of the land in the State, fresh bhumidhari rights as contemplated under Section 18 of the U.P.Z.A. and L.R. Act came to be conferred upon the Intermediary or in favour of a khudkasht land. The learned counsel also disputed the contention that the area had come to be included within the limits of the Nagar Palika Aligarh. Few facts which brook no dispute may be summed up for a clearer picture. From a perusal of the record, it would transpire that the total area of plot No. 1456 was initially 9 bighas, 16 biswas and out of it, land admeasuring five Bighas was transferred in favour of Radhey Shyam. This land transferred in favour of Radhey Syam is not involved in the suit. It would also appear that Niyazi Begum was khudkasht holder who transferred the left-over land of plot No. 1456 in favour of Tika Ram and sons Pvt. Ltd. and on the date of vesting the land in question was recorded as khudkasht of Tika Ram and sons who subsequently transferred this property in favour of plaintiff by means of sale deed dated 26.9.1959.
(3.) BEFORE dwelling on merits, I feel called to advert to the provisions of Section 4 of the U.P.Z.A. and L.R. Act and Section 4 of the Act being germane to the points requiring adjudication on merits, are excerpted below : 4. Vesting of estates in the State.-(1) As soon as may be after the commencement of this Act, the State Government may, by notification, declare that, as from a date to be specified, all estates situate in Uttar Pradesh shall vest in the State and as from the beginning of the date so specified (hereafter called the date of vesting), all such estates shall stand transferred to and vest, except as hereinafter provided, in the State free from all encumbrances. (2) It shall be lawful for the State Government, if it so considers necessary, to issue, from time to time, the notification referred to in sub-section (1) in respect of only of such area or areas as may be specified and all the provisions oj sub-section (1) shall be applicable to and in the case of every such notification." From a perusal of record in entirety, it would appear that it has not been disputed that the land originally belonged to one Niyari Begum, which was recorded in the revenue record as khudkasht land in the name of Tika Ram and company on the date of vesting and it leaves no manner of doubt that the land was part of holding on the date of vesting and it was original holding of Niyazi Begum as khudkasht which she transferred by means of sale deed in favour of Tika Ram and company and regard being had to the above notification and also Sections 4, 6 and 18 of the U.P.Z.A. and L.R. Act, the land in question cannot be said to have settled in the Gaon Sabha. There is nothing on record to sustain the arguments of the learned counsel for the appellant that the land was a barren and since it was being used for brick-kiln purpose, it had vested in Gaon Sabha and subsequently, in Nagar Palika when the boundaries of Nagar Palika extended to village Kisanpur. In this connection, I would scan the finding recorded by the lower appellate court. The lower appellate court has recorded a categorical finding that the land was never made use of for brick kiln purposes and further that other part of plot No. 1456 (not in suit) was appropriated for brick kiln purposes belonging to one Radhey Shyam and in this connection, the lower appellate court thoroughly scanned the evidence, documents and also relief upon other relevant evidence and papers and in the ultimate analysis after appraising the materials on record, came to a categorical finding that the land in question was not used for brick kiln purposes on the date of vesting. The findings recorded by the appellate court are well knit and reasoned ones based on materials on record and the same cannot be called in question on any of the aspects.;