- (1.) POONAM Srivastav, J. Heard Sri U. S. Awasthi, learned counsel for the appellant and Sri B. D. Mandhyan, senior advocate, assisted by Sri S. C. Mandhyan, Sri A. K. Singh and Sri Badri Singh advocates for the plaintiff-respondent.
(2.) THE plaintiff-respondent instituted a suit No. 974 of 1995 against the defendant-appellant for injunction in respect of Plot No. 40 area 150 sq. yards situated in khasra No. 16m Village Mamura, Pargana and Tehsil Dadri, District Ghaziabad (hereinafter referred as disputed land ). THE plaintiff claimed his title on the basis of allotment made by Land Management Committee in the year 1974 to one Hukum Singh as he was a member of Scheduled Caste community. Hukum Singh aforesaid executed a sale-deed on 23. 5. 1995 for an amount of Rs. 45,000 in favour of the plaintiff and subsequent to the sale-deed, the plaintiff is owner in occupation. Since the disputed land is in the vicinity of Sector 59 of N. O. I. D. A. authority (defendant-appellant), they are interfering in the plaintiffs construction over the disputed land and the employees of N. O. I. D. A. have demolished the construction of a number of allottees, including plaintiff. N. O. I. D. A. has given alternative plots to them but the plaintiff was the only, allottee who has been singled out and in the circumstances, a relief was added by means of amendment application for allotment of an alternative plot. N. O. I. D. A. filed its written statement and denied the plaint allegations. THE plea taken by the defendant-appellant was that the land was acquired by the State Government for N. O. I. D. A. and it did not belong to Gaonsabha and therefore, allotment to Hukum Singh cannot be made, besides Gaonsabha and State Government have not been made as a necessary party. THE suit was barred by Sections 34 and 41 of the Specific Relief Act as well as Sections 331 and 331a of the Zamindari Abolition and Land Reforms Act. As many as six issues were framed. THE question of non-joinder of party was issue No. 3 which was decided against the appellant. Issue No. 4 was also decided in favour of the plaintiff that the suit is not barred by Sections 34 and 41 of the Specific Relief Act. Issue No. 5 was decided against the defendant-appellant and the trial court came to a conclusion that the suit is not barred by Sections 331 and 331a of the Zamindari Abolition and Land Reforms Act. Issue No. 1 was decided in favour of the plaintiff and the trial court recorded a categorical finding that the plaintiff is owner in occupation and finally the suit was decreed and N. O. I. D. A. was injuncted from making any interference in the peaceful occupation and construction thereon. THE appeal against the judgment and decree of the trial court was also dismissed. THE appellate court affirmed the findings of all the issues and recorded its conclusion in favour of the plaintiff. However, the decree of the trial court was amended to the extent that mandatory injunction was granted against the defendant to allot an alternative plot in Sector 66 N. O. I. D. A. alongwith other allottees and only thereafter N. O. I. D. A. will be entitled to use the disputed land of the plaintiff in accordance with his Master Plan. Substantial question of law raised in the instant appeal are as follows : 1. Whether a person can transfer a better title than he has? 2. Whether the suit is liable to be dismissed for non-impleadment of proper and necessary parties? Whether the relief of permanent injunction being the main relief can be granted in the alternative relief of mandatory injunction by way of amendment being barred of limitation and not paying the proper court fees taking the right of the appellant? Whether the land has been properly identified and as such the suit is liable to be dismissed? Sri U. S. Awasthi canvassed substantial question of law No. 1. 3. After hearing the respective counsels at length and going through two judgments, it is clear that the disputed land was never acquired nor any compensation has been paid to any of the allottees who were 18 in numbers including the plaintiff-respondent. The other 17 allottees have been given alternative plots in Sector 66 except the plaintiff. The courts below have arrived at a conclusive finding of fact that the plaintiff-respondent is owner in occupation. It was only because N. O. I. D. A. came up with the plea that the land in question is creating hindrance in the development by the Development Authority, the lower appellate court amended the judgment and decree to the extent of permitting for an alternative plot. The other 17 allottees who were also allotted in Sector 66, were given alternative plots and therefore, the plaintiff was also entitled to a similar relief. The question raised in this appeal that the plaintiff could not acquire any right by means of sale deed executed by power-of-attorney of Hukum Singh who was the original allottee, is without any substance. The courts below have recorded a categorical finding of fact that the land was allotted long back. 4. During the course of argument, Sri Awasthi raised another question of law that since the U. P. Z. A. and L. R. Act/rules imposes a specific bar that in the event, construction within the stipulated period is not made, the disputed land cannot be transferred to a third party. Rule 115q provides that whoever is allotted a land for building a house, if he fails to do so within three years from the date of allotment or uses it for a purpose other than it has been allotted, his right shall be extinguished, the land will be taken over by the Land Management Committee. Rule 115r provides that whenever a house is built on such land allotted by the Land Management Committee then it can only be transferred after lapse of ten years. For a ready reference, two Rules are quoted below : " 115q. The person to whom the housing site is allotted shall be required to build a house and begin to reside in it or to use it for the purpose for which it was built within three years from the date of allotment. If he fails to do so or uses it at any time for a purpose other than that for which it was allotted his right shall be extinguished and the site may be taken over by the Land Management Committee : Provided that in the case of a person belonging to Scheduled Caste or Scheduled Tribe the aforesaid time limit for building of the house shall not apply. 115r. (I) Where any land or site is allotted in accordance with Rules 115l to 115q and house is built thereon, then subject to the provisions of sub-rule (2), the allottee shall have no right to transfer such land, site or house within a period of ten years from the date of the allotment. "
(3.) IN the instant case, the plaintiff belongs to Scheduled Caste and therefore, the bar imposed by Rule 115q will not be applicable in the case of the plaintiff. It is also to be noted that the pleadings of the plaintiff was specific that whenever he raised construction, the defendant-appellant demolished the constructions and was not permitting the allottee to make any construction whatsoever. Besides, it is also to be noted that the allotment was in the year 1974 and the sale deed was executed in the year 1995 and therefore, the argument of the learned counsel for the appellant that the transfer made in favour of the plaintiff gives no right to him for the reason that the transferor could not transfer a better title than he himself had is devoid of substance. In the facts and circumstances, I do not find any substantial question of law worth consideration in this second appeal. Besides, there is yet another fact which is not disputed. An application dated 11 11. 1999 supported by an affidavit dated 29. 10. 1999 filed by Raja Ram Balmiki, respondent is brought. to my - notice by Mr. Mandhyan. It is stated in paragraph 4 that during pendency of the appeal, the Secretary N. O. I. D. A. , as per his report dated 25. 9. 1996 has considered the case of the plaintiff-respondent and has approved the allotment of alternative plot No. 12 in Sector 66 having an area 150 sq. meter as it has been done in the case of other 17 allottees similarly placed. Copy of the report of the Secretary dated 1. 10. 1996 is also annexed with the affidavit. The statement of D. W. 1 Nathuram Lekhpal also clearly shows that the alternative plots to the 18 Scheduled Castes allottees have been allotted by N. O. I. D. A. and, therefore, I do not see any reason why the decree of the two courts below cannot be given effect to by the N. O. I. D. A. The judgment of the two courts below do not suffer from any infirmity and raises any substantial question of law. The questions raised in this appeal do not exist and do not confirm and stand the test laid down by this Court as well as the Apex Court in a series of decisions.;