- (1.) SUNIL Ambwani, J. The plaintiffs second appeal arises out of the judgment of District Judge, Banda dated 23-8-1975 in civil appeal No. 4 of 1975, allowing the appeal and setting aside the judgment and decree of Munsif Banda in Original Suit No. 708 of 1969 by which he had decreed the suit for permanent injunction to restrain defendants to demarcate and take possession of plot Nos. 921 area 2 Bigha and 13 Biswa and plot No. 749 area 35 Bigha. For rest of the plots the suit was dismissed.
(2.) THE plaintiff filed the suit stating that he was landlord of village Titihra, Tehsil Naraini, District Banda of agricultural plots, which were situate within his Zamindari. He continued to occupy the land either as Bhumidhari or as sirdar including khalihan and grazing ground. On some of these plots houses were situate. In February, 1969 the employees of Forest Department of the State under the instruction of Divisional Forest Officer, Banda came to him for demarcation and enclosure of these plots under U. P. Private Forest Act, 1935. He did not receive any notification under Section 17 of the Act nor any such notification came to his knowledge. No enquiry was made under Section 18 nor any proclamation was made under Section 19 of the Act. THE defendant did not comply Sections 32 and 33 of the Act and did not issue any proclamation under Section 33. THE defendants had no right to interfere in his possession and to demarcate the land. He claimed permanent injunction in respect of 41 plots having total area of 413 Bigha 1 Biswa. In the written statement it was alleged that a notification under Section 3 (3) of the Indian Forest Act, 1927 (the Act) was published in U. P. Gazette on 18-10-1962 after a notification under Section 4 of the Act was published prohibiting the cutting of trees on 28-7-1954. The management of the land had vested in the State and its forest department. Thereafter notices and proclamation under Section 6 was issued, with wide publicity. The plaintiff also preferred claim before the Forest Settlement Officer, Banda for his plots. The claims were dismissed. The plaintiff did not file any appeal. He is as such estopped from agitating the matter in civil Court. The plaintiff is not in possession and has no right to maintain the suit for injunction. The proceedings for demarcation have been completed long before the suit was filed. The Munsif decided issue No. 3 as preliminary issue. The plaintiff amended the plaint. The Munsif held that the suit was not barred by Section 331 of the U. P. Z. A. and L. R. Act. The civil Court and not the revenue Court had the jurisdiction to decide the case. The plaintiff was a Bhumidhar of plot No. 921 area 2 bigha 13 biswa and plot No. 749 area 35 bigha. He has no right or claim over the rest of the plots. The suit was decreed only in respect of these two plots. The appellate Court held that the plaintiff had knowledge of the proceedings under the Indian Forest Act. He filed objections before the Forest Settlement Officer, which were dismissed. The department has filed extract of the register to show that the objections were dismissed. Though register B was not proved according to law, the plaintiff admitted in his cross-examination that he had filed objections in respect of two other plots. He, however, claimed that his objections were allowed. The appellate Court found that no objections were filed in respect of plot Nos. 921 and 749. The plaintiff stated that he was misled by Lekhpal, who had informed him that his two plots in respect of which objections were moved before the Forest Settlement Officer were the only plots taken by the Forest Department.
(3.) THE appellate Court held that once the plaintiff came to know of the move of the Forest Department to take some of his land, he should have made proper enquiries and filed objections in respect of all the land in dispute. Since he had actually taken objections, he cannot succeed on the plea that he had no notice of the proceedings for declaring the land as forest land. THE rights and title of the plaintiff have extinguished under Section 9 of the Act. He cannot obtain a decree from the civil Court against the State and forest for permanent injunction. Shri R. R. Shivhare, learned Counsel for the appellant submits that the plaintiff-appellant was a recorded tenure holder. The land was not forest or waste land. The plaintiff appellant was not given individual notice nor any notification was issued under Section 4. The petitioner was not informed nor could gather knowledge of the proclamation of the two plots. The notification under Section 6 and Section 20 are bad in law, and that his rights are not affected under Section 9 of the Act. The land is in cultivatory possession of the plaintiff. The plaintiff could pursue his rights in Civil Court and that the appellate Court grossly erred in law in holding that the prescribed procedure was followed.;