- (1.) PRAFULLA C. Pant, J. This appeal, preferred under section 96 of Code of Civil Procedure, 1908, is directed against the judgment and decree dated 22. 10. 2003, passed in suit No. 212 of 2003, by Additional District Judge /fast Track Court II, Dehradun, whereby the suit for permanent injunction filed by plaintiff-Dokham Tib-battan Foundation, is decreed against the defendants. (In the appeal Additional District Judge/fast Track Court, Dehradun, has unnecessarily been impleaded as respondent in the appeal ).
(2.) HEARD learned Counsel for the parties and perused the record. Brief facts, of the case are that plaintiff (respondent No. 1) instituted the aforementioned suit with the pleading that Dokham Tibbattan Foundation is a registered society having its registration No. 11/49/1968 and Shri Ogain Dorjee is its General Secretary, who is authorized to institute the suit on behalf of the society. It is pleaded that the object of the society is to rehabilitate the Tibbetan refugees and to make them self-reliant. Plaintiffs case is that under Uttar Pradesh Bhoodan Yagna Act, 1952 (U. P. Act No. 10 of 1953), the plaintiff-society was given 32 acres of land of plot No. 742/1 in Village Tauli, Pargana Pachwa Doon, Tehsil Dehradun. A grant was executed on behalf of the Government of U. P. and possession was handed over to the plaintiff-society. However, later on, it was realized that the land in question is a dense forest land and it may not be possible to rehabilitate the refugees in said land as it requires felling of large number of trees. On this, Forest Department of the State Government suggested that the land can be exchanged by transferring it to the department in exchange of some other suitable land. Accordingly, ownership and possession of the land was transferred to the Forest Department and in a case registered as 7/70-71, filed by the plaintiff, vide order dated 27. 4. 1971, order of exchange of land was passed, whereby in exchange of 32 acres of land of plot No. 742/1, 32 acres of land (26. 85 acres of land of plot No. 2353 and 5. 15 acres of land of plot No. 2367) was given to the plaintiff-society in Village Ark-edea. The name of the plaintiff-society from the land in Tauli was struck off and that of the Forest Department was entered, and in the land of Arkedea, name of plaintiff/society was entered along with another organization known as Tibbetan Nehru Memorial Foundation. It is alleged by the plaintiff (respondent No. 1) in the plaint that thereafter the officers of the defendant (State) with mala fide intention tried to deprive the plaintiff of the land given in exchange. Defendant No. 1, the Forest Department of the State instituted a suit under sectior 166 of U. P. Zamindari Abolition and Kami Reforms Act, which was registered as case No. 62/84-85 against the plain tiff-society. Meanwhile, plain tiff-society also got registered a case No. 7/84-85 under section 39 of U. P. Land Revenue Act. The Sub-Divisional Magistrate, Dehradun, where both the cases were tried, allowed the case of the Forest Department. Separate revisions were filed by the plaintiff-society before the Commissioner, Garhwal Garhwal Mandal, which were registered as revision No. 6/85-86 and revision No. 7/85-86. Both the revisions were decided by Additional Commissioner, Garhwal Division, vide his order dated 13. 02. 1987, dismissing the same (revisions ). On this, plaintiff-society challenged the order dated 13. 2. 1987, before the Board of Revenue, Allahabad, where the revision was registered as No. 15/86-87. Board of Revenue allowed the revision of the plaintiff-society in compliance thereof and again name of plaintiff-society was entered in the revenue records on 6. 1. 1989. A writ petition (Old No. 2540 of 1989) was filed on 8. 12. 1988, on behalf of the State, before Allahabad High Court, which was also dismissed. It is alleged in the plaint that defendants are permitting anti-social elements to take possession of the land in suit. Hence the suit for injunction was instituted by present respondent No. 1, in the Civil Court. Defendant (appellant) contested the suit and filed their written statement wherein it is admitted that in Village Tauli, 32 acre of land of plot No. 742/1 was granted to plaintiff-society by Bhoodan Samiti and vide order 12. 02. 1970, and the name of the plaintiff society was entered in the revenue record. However, it is pleaded by the defendants that vide Notification No. 10250/4-B-20-278/70, dated 08. 01. 1971, said land of Village Tauli was declared reserved forest. Vide its decision dated 27. 04. 1971, the Forest Settlement Officer, Dehradun, sent a proposal to exchange 32 acres of land of plot No. 742/1, given by Bhudan Samiti to plaintiff-society with other land in Village Arkedea to be given to the society. However, the Government vide its order dated 26. 12. 1974, informed that under section 20 of Indian Forest Act, 1927, all the rights of the persons holding the land come to an end over the land declared a reserved forest. Therefore, it is not admitted by the defendants that the Forest Settlement Officer had any right to allot land of plot Nos. 2353 and 2362 in village-Arkedea, Dehradun. Entries made by the revenue authorities in favour of the plaintiff in pursuance to the proceedings launched before such authorities by the plaintiff are illegal and does not confer any right to the plaintiff over the land in dispute (i. e. 32 acres of plot Nos. 2353 and 2362 in village Arkedea ). Lastly, it is pleaded by the defendants in their written statement that under the garb of transfer of State land the plaintiff-society is encroaching upon the adjoining said land illegally and as such, the suit is liable to be dismissed.
(3.) ON the basis of the pleadings of the parties, following issues were framed by the Trial Court:- 1. Whether the plaintiff is owner and in possession of the land in suit? 2. Whether the civil Court has no jurisdiction to try the suit? 3. Whether the suit is barred by section 5 of Indian Forest Act, 1927? 4. To what relief, if any, the plaintiff is entitled? The Trial Court after recording the evidence and hearing the parties, gave finding that land in suit is owned and possessed by the plaintiff-society. It further found that the suit is cognizable by the civil law, the possession of the plaintiff cannot be disturbed by the defendants. Accordingly, the Trial Court decreed the suit for permanent injunction vide impugned judgment and decree dated 22. 10. 2003. Aggrieved by said judgment and decree, this appeal is filed by the defendants.;