S.U.Khan - (1.) -Proceedings for eviction under Section 122B of U.P.Z.A. and L. R. Act were initiated against respondent No. 2, Jagdish in respect of Gaon Sabha plot No. 819 area 0.125 hectares and plot No. 835 area 0.256 hectare (total area 0.381 hectares equivalent to 3810 square meters) situate in village Ghimau Tehsil Bilhaur District Kanpur. In the revenue records the entire land in dispute is entered as navin parti and bunjar. True copy of khatauni recording the said fact dated 5.2.2004 has been annexed as Annexure 2 to the writ petition. The said khatauni is for 1404 to 1409 fasli issued on 4.9.2004. Lekhpal gave the report against respondent No. 2 on 31.12.1995 and the case was registered as Case No. 5, Gaon Sabha v. Jagdish, on the file of Assistant Collector Ist Class/Deputy Collector, Bilhaur Kanpur. Respondent No. 2 pleaded that he was a member of Scheduled Caste and as he was in possession over the land in dispute since 1975, hence, land stood settled with him under Section 122B (4F) of the Act. Respondent No. 2 claimed that he must be declared bhumidhar of the land in dispute. Pradhan filed objections to the effect that respondent No. 2 was resident of Gram Panchayat Lalpur and not of Gram Panchayat in question i.e., Gaon Sabha, Ghimau. The Deputy Collector observed that respondent No. 2 did not file any documentary evidence in support of his case. Tehsildar had also reported that respondent No. 2 was not resident of Gaon Sabha, Ghimau. Deputy Collector decided the matter against respondent No. 2 , through order dated 31.10.1998 on the ground that respondent No. 2 was not resident of Gaon Sabha concerned. Against the said order respondent No. 2 filed revision being Revision No. 55 of 1999. Additional Commissioner, (Administration) Kanpur Division, Kanpur allowed the revision on 5.8.1999 set aside the order of Deputy Collector and directed the entry of name of respondent No. 2 as bhumidhar over the land in dispute. Commissioner held that for conferment of benefit of sub-section (4F) of Section 122B of the Act it was not necessary that occupant must be resident of the same village. Commissioner further held that Lekhpal had reported that respondent No. 2 was in possession since before 30.6.1995 which was the cut off date at the relevant time. Initially cut off date for conferment of benefit of Section 122B (4F) of the Act was June, 1975. Thereafter, it was changed to June, 1985, and then to June, 1995. At present the cut off date is May, 2002. Whenever cut off date is changed some people start making evidence of their prior possession since before the cut off date. The moist convenient method in this regard is to get the Lekhpal issue notice of eviction in form No. 49Ka. In all such situations the Court must take action against the Lekhpal for not initiating the eviction proceedings before the cut off date. Moreover, in order to prove the possession prior to cut off date the best evidence is entry in the revenue records made before the cut off date. Until decision by the revisional court, in the revenue records land in dispute was shown as navin parti and bunjar.
(2.) THE case of the petitioners who are seven in numbers is that over the land in dispute they are also having their houses since long. Petitioners admit that over an area of 3 biswa respondent No. 2 is also having his house. (It is necessary to mention here that in the entire writ petition it is not stated that the petitioners are member of Scheduled Castes hence entitled to benefit of Section 122B (4F) of the Act). Learned counsel for the respondent has cited an authority of the Supreme Court in Chandrika Singh v. Arvind Kumar Singh, 2006 ACJ 2139, wherein it has been held that writ petition filed by a person who was not a party in the proceedings before the authorities below is not maintainable. If the allegation of the petitioners that they are in possession over the land in dispute since long is correct then the impugned order passed by the Additional Commissioner is not sustainable. Petitioners were not heard before passing the said order. It is very unfortunate that Gaon Sabha has not challenged the impugned order of the learned Commissioner. Lekhpal appears to have supported the case of respondent No. 2 in order to benefit him. Accordingly, writ petition is disposed of with liberty to the petitioners to file regular suit for declaration of their right impleading therein Gaon Sabha, State and respondent No. 2. If such a suit is filed it must be decided on the basis of evidence brought on record without taking into consideration in the least or in any manner the order of Commissioner as the said order is not binding upon the petitioners. In case it is found that petitioners or any other person who is party in the suit has constructed his house over a small portion of the land in dispute (say about 200 or 300 sq. mts.) and the house is in existence for about 10 years then the Court where the suit is filed may consider to settle the land over which house is constructed with the occupant on payment of market value of the land at the time of occupation. I have discussed this aspect in detail in Bhudaee v. Collector, 2005 (98) RD 741. It is needless to add that in the suit petitioners may apply for temporary injunction.
(3.) FOR a period of six months neither petitioners shall be evicted from their houses nor their houses shall be demolished in case the houses are in existence. Writ petition is accordingly disposed of.;