# Divisional Forest Officer Noth Kheri v. Surjan Singh & Ors

- **Citation:** (2024) 3 ILRA 278
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-14
- **Case number:** Second Appeal No. 756 of 1982
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/divisional-forest-officer-noth-kheri-v-surjan-singh-ors-51657
- **Pages:** 14

## Headnote

A. Civil Law - Civil Procedure Code, 1908 -
Section 100 - Substantial question of law
- Significance of its formulation - Similar
second appeal was dismissed - Relevance
- Held, once the substantial questions of
law have been formulated in this second
appeal by the court after considering the
rival contentions, it cannot be dismissed
merely because the similar second appeals
have
been
dismissed by
this
Court,
particularly, when the said orders have
been passed without considering the
issues raised in this appeal. (Para 13 and
14)
B. Civil Law - Indian Forest Act, 1927 -
Sections 4 & 20 - UP Zamindari Abolition
and Land Reforms Act, 1950 - S. 229-B -
After issuance of notification u/s 4 and 20
of Act, 1927, the suit u/s 229-B was filed
and allowed, and based on this order
passed u/s 229-B, the civil suit was
decreed - Permissibility - Held, once the
notification has been issued u/s 4 of the
Act of 1927, all claims can be raised
before the Forest Settlement Officer, who
can consider the same and decide the
claim
after
affording
opportunity
of
evidence exercising the powers of a civil
court - No authority or court had power to
entertain any dispute in regard to the land
declared as reserve forest u/s 20 in view
of Section 27(A) as added by U.P. Act No.
23 of 1965, therefore, the suit under
Section 229-B of the Act of 1950, that too
without impleading the Forest department
or
concerned
Officer
of
the
forest
department, was not maintainable. (Para
15, 22 and 40)

C. Civil Law - Declaratory suit u/s 229-B
of the Act, 1950 - Non-joinder of party -
3 All. Divisional Forest Officer Noth Kheri Vs. Surjan Singh & Ors.
279
Maintainability - Suit was filed after
issuance of notification u/s 4 and 20 of
Act, 1927 - Though the St. Government
was
made
party,
but
the
Forest
Department was not impleaded as party -
Effect - Held, even if the St. was
impleaded no effective order could have
been passed without impleadment of the
forest department or the concerned officer
of the forest department - In view of S.
27-A of the Act of 1927, the said suit was
not maintainable, therefore the exparte
judgment and decree dated 30.09.1973,
against the St. also, is void. (Para 27)

Appeal allowed. (E-1)

List of cases cited :-

## Text

_Characters 0–39,713 of 47,715. This is a partial read: ask again with offset=39713 for what follows._

278 INDIAN LAW REPORTS ALLAHABAD SERIES

17. In view of the above analysis, this
Court finds that the order of the learned
Civil Judge and the first appellate Court
suffers from illegality, which is apparent on
the face of the record. Therefore, the
judgement dated 18.1.2016 passed by the
Additional District Judge, Court No. 15,
Lucknow in Regular Civil Appeal No. 142
of 2015 (Smt. Raeesa Bano Vs. Smt.
Tabassum Jahan & Others) and judgment
and decree dated 31.8.2015 passed by Civil
Judge (Senior Division), Mohanlalganj,
Lucknow, in Suit No. 128 of 2015
(Smt.Raeesa Bano Vs. Smt. Tabassum
Jahan & others) are hereby set aside.

18. The matter is remanded back
to the learned Civil Judge, Senior Division,
Mohanlalganj, Lucknow to pass a fresh
order in light of the above observations.

19. Considering the peculiar facts and
circumstances that the suit itself was filed
in the year 2015, and all evidence has been
adduced before the learned Civil Judge and
the suit was itself uncontested; therefore,
learned Civil Judge, Senior Division,
Mohanlalganj, Lucknow is further directed
to complete the proceedings of passing a
fresh order in Suit No.128 of 2015, within a
period of three months from the date of
receiving a copy of this order, in
accordance with the law.

20. With the observations above, the
appeal is allowed.
----------
(2024) 3 ILRA 278
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.03.2024

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Second Appeal No. 756 of 1982
Divisional Forest Officer Noth Kheri
 ...Appellant
Versus
Surjan Singh & Ors. ...Respondents

Counsel for the Appellant:
C.S.C.

Counsel for the Respondents:
Sajid Raza Rizvi, Satendra Nath Rai

A. Civil Law - Civil Procedure Code, 1908 -
Section 100 - Substantial question of law
- Significance of its formulation - Similar
second appeal was dismissed - Relevance
- Held, once the substantial questions of
law have been formulated in this second
appeal by the court after considering the
rival contentions, it cannot be dismissed
merely because the similar second appeals
have
been
dismissed by
this
Court,
particularly, when the said orders have
been passed without considering the
issues raised in this appeal. (Para 13 and
14)
B. Civil Law - Indian Forest Act, 1927 -
Sections 4 & 20 - UP Zamindari Abolition
and Land Reforms Act, 1950 - S. 229-B -
After issuance of notification u/s 4 and 20
of Act, 1927, the suit u/s 229-B was filed
and allowed, and based on this order
passed u/s 229-B, the civil suit was
decreed - Permissibility - Held, once the
notification has been issued u/s 4 of the
Act of 1927, all claims can be raised
before the Forest Settlement Officer, who
can consider the same and decide the
claim
after
affording
opportunity
of
evidence exercising the powers of a civil
court - No authority or court had power to
entertain any dispute in regard to the land
declared as reserve forest u/s 20 in view
of Section 27(A) as added by U.P. Act No.
23 of 1965, therefore, the suit under
Section 229-B of the Act of 1950, that too
without impleading the Forest department
or
concerned
Officer
of
the
forest
department, was not maintainable. (Para
15, 22 and 40)

C. Civil Law - Declaratory suit u/s 229-B
of the Act, 1950 - Non-joinder of party -
3 All. Divisional Forest Officer Noth Kheri Vs. Surjan Singh & Ors.
279
Maintainability - Suit was filed after
issuance of notification u/s 4 and 20 of
Act, 1927 - Though the St. Government
was
made
party,
but
the
Forest
Department was not impleaded as party -
Effect - Held, even if the St. was
impleaded no effective order could have
been passed without impleadment of the
forest department or the concerned officer
of the forest department - In view of S.
27-A of the Act of 1927, the said suit was
not maintainable, therefore the exparte
judgment and decree dated 30.09.1973,
against the St. also, is void. (Para 27)

Appeal allowed. (E-1)

List of cases cited :-

1.
St.
of
U.P.
Vs
Kamaljeet
Singh;
MANU/UP/2821/2017

2.
St.
of
U.P.
Vs
DDC
&
Ors.;
MANU/SC/0612/1996 : (1996) 5 SCC 194

3. St. of U.P. & ors. Vs Sonelal & Ors.;
MANU/UP/0151/2022

4. Sukhwant Singh Vs Divisional Forest Officer &
ors.; MANU/PH/0435/2009

5. Padhiyar Prahladji Chenaji Vs Maniben
Jagmalbhai; MANU/SC/0272/2022

6. Civil Appeal No. 3117 of 2009; Dhanraj Vs
Vikram Singh & ors.

7.
Daya
Shanker
Vs
DDC
Kheri;
MANU/UP/1528/2023

8. Moreshar Yadaorao Mahajan Vs Vyankatesh
Sitaram Bhedi; 2022 Live Law(SC)802

9. Smt. Shanta Rani Vs Nasib Kaur; JT 2023(10)
103

10. Poonam Vs St. of U. P. & ors.; (2016) 2 SCC
779
(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard Sri Vimal Srivastava,
learned
Additional
Advocate
General
assisted by Sri S.K. Khare, learned
Standing Counsel for the appellant and Sri
Satendra Nath Rai, learned counsel for the
respondents.

2. This second appeal, under Section
100 of Civil Procedure Code(hereinafter
referred to as CPC), has been filed against
the judgment and decree dated 16.04.1982
passed by the 1st Additional District Judge
Kheri in Civil Appeal No.152/1980, by
means of which the appeal has been
dismissed upholding the judgment and
decree dated 09.09.1980 passed by the VIth
Additional Munsif, Lakhimpur Kheri in
Regular Suit No.154/1977(Surjan Singh &
3 Ors. Versus Divisional Forest Officer,
North Kheri).

3. The following substantial questions
of law have been formulated in this
appeal:-

"(a) Whether the suit filed by the
plaintiff bearing No.154/1977 seeking a
decree
of
permanent
injunction
was
maintainable on the facts as pleaded giving
rise to any subsisting cause of action?

(b) Whether the suit of the
plaintiff for permanent injunction was
maintainable
especially
when
the
notification under Sections 4 and 20 of the
Indian Forest Act, 1927 was issued in the
year 1966 and 1970 respectively?

(c) Whether the decree passed in
a suit filed by the plaintiff under Section
229-B of the U.P. Z.A. & L.R. Act, 1950
without impleading the Forest Department
as a party instituted in the year 1973
whereas the notification under Section 4
and 20 of the Indian Forest Act, 1927 has
already been issued in the year 1966 and
1970 respectively and in view thereof the
suit was maintainable and the effect of a
decree passed in such proceedings under
280 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 229-B of the U.P. Z.A. & L.R. Act,
1950."

4. Learned counsel for the appellant
submitted that the notification under
Section
4
of
the
Indian
Forest
Act,1927(hereinafter referred to as the Act
of 1927) was issued in regard to land,
which includes the land in dispute, having
area 31.60 acre on 05.01.1966 and
published in the Gazette on 12.03.1966 and
notification under Section 20 of the said
Act was issued in regard to land having
area 174.31 acre on 27.12.1970 and
published in the Gazette on 11.04.1970,
therefore the respondents had no right and
title on the said land after the said date. He
further submitted that the respondents had
filed the suit for permanent injunction in
the year 1977 claiming their rights on the
land in dispute on the basis of the order
passed in their favour under Section 229 B
of the U.P. Zamindari Abolition and Land
Reforms Act 1950(hereinafter referred to as
the Act of 1950), which was filed and
allowed after the aforesaid notifications,
therefore the same was without jurisdiction,
and no right or title could have been
conferred on the respondents as the same
was barred by Section 27 A of the Act of
1927 as per the State amendment of U.P.
But without considering the aforesaid, the
suit for permanent injunction was decreed,
therefore the appellant had filed Civil
Appeal, which has also been dismissed
upholding the judgment and decree passed
by the trial court without considering the
aforesaid facts and legal position.

5. Learned counsel for the appellant
further submitted that the details of the
boundaries of the land of the respondents
was not given in the suit and the suit was
filed by four persons but their shares were
not mentioned,therefore the suit itself was
not maintainable. Thus, the submission is
that the judgment and decree passed by the
trial court as well the first appellate court
are not sustainable in the eyes of law and
liable to be set aside.

6. Learned counsel for the appellant
relied on State of U.P. versus Kamaljeet
Singh;MANU/UP/2821/2017, State of U.P.
Versus
DDC
&
Ors.;MANU/SC/0612/1996; (1996)5 SCC
194, State of U.P. & Ors. Versus Sonelal &
Ors.; MANU/UP/0151/2022, Sukhwant
Singh versus Divisional Forest Officer &
Ors.;MANU/PH/0435/2009,
Padhiyar
Prahladji
Chenaji
versus
Maniben
Jagmalbhai;MANU/SC/0272/2022,
Dhanraj vesus Vikram Singh & Others;
Civil Appeal No.3117/2009, Daya Shanker
versus DDC Kheri;MANU/UP/1528/2023,
AND Moreshar Yadaorao Mahajan versus
Vyankatesh Sitaram Bhedi; 2022 Live
Law(SC)802.

7. Per contra, learned counsel for the
respondents submitted that similar Second
Appeal No.383 of 1979 has been dismissed
by means of the order dated 21.12.1995 and
Second Appeal No.351 of 1980 and 350 of
1980 having identical facts have also been
dismissed by this Court, therefore this
appeal is also liable to be dismissed
accordingly.

8. He further submitted that the name
of the respondents was recorded on the
basis of the order passed in the case filed
by the respondents under Section 229 B of
the Act of 1950 in the khatauni of the 1384
Fasli (1977). The State was a party in the
said case, therefore even if the forest
department was not party, it will not make
any difference and the appellant is not
entitled for any benefit of the same. He
3 All. Divisional Forest Officer Noth Kheri Vs. Surjan Singh & Ors.
281
further submitted that the only photocopy
of the notification under Section 4 of the
Act of 1927 was produced and the
publication whereof also could not be
proved, therefore the judgment and decree
passed by the trial court as well as the first
appellate court have rightly been passed in
accordance with law, which does not suffer
from any illegality or error. Thus, the
submission is that the substantial questions
of law formulated by this Court does not
arise and the appeal is misconceived and
the
grounds
taken
therein
are
not
sustainable in the eyes of law, therefore it is
liable to be dismissed.

9. I have considered the submissions
of learned counsel for the parties and
perused the records.

10. Before considering the rival
contentions of learned counsel for the
parties in regard to the substantial questions
of law formulated by this Court, since a
plea has been taken that the appeal is liable
to be dismissed in view of the orders
passed by this Court in similar second
appeals, this Court has to see first as to
whether this appeal can be dismissed on
this ground or not.

11. Second Appeal No.383 of
1979(State of U.P. versus Sri Prem Singh
and others), was dismissed by means of the
order dated 21.11.1995 on the ground that
no substantial question of law is involved
in the said case, whereas the said appeal
was already admitted. However the said
order does not disclose that the legal
questions raised in this appeal, on the basis
of which the aforesaid substantial questions
of law have been framed appears either to
had not been raised in the said appeal or not
pressed. Be that as it may, the same have
not been considered in the said order. So far
as the Second Appeal Nos.350 of 1980 and
351 of 1980 are concerned, on perusal of
the order dated 22.11.2023 passed in
Second Appeal No.350 of 1980, it is
apparent that Second Appeal No.351 of
1980 was decided by a coordinate Bench of
this Court by means of the judgment and
order dated 14.08.2001. The State had filed
review of the said order, which was
dismissed as abated and considering the
same, the Second Appeal No.350 of 1980
has been dismissed. Thus the substantial
questions of law formulated in this appeal
have neither been considered nor decided
in the said appeals.

12. Section 100 of CPC provides that
the appeal shall lie to the High Court from
every decree passed in appeal by any Court
subordinate to the High Court, if the High
Court is satisfied that the case involves a
substantial question of law. Sub-section 4
of Section 100 of CPC provides that Where
the High Court is satisfied that a substantial
question of law is involved in any case, it
shall formulate that question and as per
sub-section 5, the appeal shall be heard on
the question so formulated and the
respondent shall, at the hearing of the
appeal, be allowed to argue that the case
does not involve such question. Section 100
of CPC is extracted hereinbelow:

"1[100. Second appeal.--(1) Save
as otherwise expressly provided in the body
of this Code or by any other law for the
time being in force, an appeal shall lie to
the High Court from every decree passed in
appeal by any Court subordinate to the
High Court, if the High Court is satisfied
that the case involves a substantial
question of law.

(2) An appeal may lie under this
section from an appellate decree passed ex
parte.
282 INDIAN LAW REPORTS ALLAHABAD SERIES

(3) In an appeal under this
section, the memorandum of appeal shall
precisely state the substantial question of
law involved in the appeal.

(4) Where the High Court is
satisfied that a substantial question of law
is involved in any case, it shall formulate
that question.

(5) The appeal shall be heard on
the question so formulated and the
respondent shall, at the hearing of the
appeal, be allowed to argue that the case
does not involve such question:

Provided that nothing in this subsection shall be deemed to take away or
abridge the power of the Court to hear, for
reasons to be recorded, the appeal on any
other substantial question of law, not
formulated by it, if it is satisfied that the
case
involves
such
question.]"

13. In view of above, in case the
Court finds that any substantial question of
law is involved in the second appeal, it can
be formulated and the appeal shall be heard
on the question so formulated and the
respondent can argue that the case does not
involve such question. However at the time
of hearing the Court, for the reasons to be
recorded, can hear on any other substantial
question of law on being satisfied that it is
involved in the case. In the present case,
after hearing learned counsel for the
appellant as well as the respondents and on
being satisfied that the aforesaid substantial
questions of law are involved in the instant
appeal, the same have been formulated by
this Court. Therefore this appeal is to be
decided
after
considering
the
rival
contentions of learned counsel for the
parties in regard to the substantial questions
of law formulated in this appeal. However
learned counsel for the respondent can
argue that this case does not involve the
said questions. But once the substantial
questions of law have been formulated by
this Court, this appeal cannot be decided
without hearing on the said questions and
without recording any finding on those
questions. Even otherwise even if a similar
appeal has been dismissed as discussed
above, it can be considered in view of
distinguishing
features
of
substantial
questions of law involved in this appeal as
formulated by this Court after hearing
learned counsel for the parties in view of
judgment of Hon'ble Supreme Court, in the
case of Smt. Shanta Rani versus Nasib
Kaur; JT 2023(10) 103, the relevant
paragraph 13 of which is extracted here-inbelow:-

13. At the outset, it may be
noticed that the Civil Appeal has been
admitted by referring to a few similar
petitions/appeals pending in this Court.
The similarity of an issue with a pending
matter has been raised as one of the
grounds for granting Special Leave, and
the Civil Appeal is numbered. With the
dismissal of the connected matters, the
natural result is that the instant Appeal
must follow.

Since a distinguishing feature is
raised by the Learned Counsel for the
Appellant,
we
would
consider
the
maintainability of the Civil Appeal. We
notice that the Appellant confined the
challenge to the Order of Eviction only to
three grounds before the High Court. Either
by choice or for any reason, the Appellant
before the High Court did not press any
other ground available against the Order of

Eviction or the Order refusing to
grant leave to the Appellant. Having done
so, in the Civil Appeal, contentions do not
expand
more
than
the
scope
of
consideration either by the High Court or
the Rent Controller.

14. In view of above, this Court is of
the view that once the substantial questions
3 All. Divisional Forest Officer Noth Kheri Vs. Surjan Singh & Ors.
283
of law have been formulated in this second
appeal by the court after considering the
rival contentions, it cannot be dismissed
merely because the similar second appeals
have been dismissed by this Court,
particularly, when the said orders have been
passed without considering the issues
raised in this appeal. Therefore the
contention of learned counsel for the
appellant is misconceived and not tenable
and liable to be repelled and accordingly
repelled.

15. Adverting to the rival contentions
of learned counsel for the parties on the
substantial questions of law formulated in
the present appeal, the main issue to be
considered in this second appeal is as to
whether the suit filed by the respondents
under Section 229 B of the Act of 1950
could have been filed by the respondents
and allowed in favour of the respondents
after issuance of the notification under
Section 4 and Section 20 of the Act of 1927
and based on the order passed in the said
suit,the suit for permanent injunction could
have been filed by the respondents and
decreed by the civil court. To consider the
issue, it would be apt to consider the
relevant provisions of the Act of 1927 and
Act of 1950 first.

16. The Act of 1927 was enacted to
consolidate the law relating to forests, the
transit of forest-produce and the duty
leviable on timber and other forestproduce. Chapter XII of the Act of 1927
relates to reserve forest. Section 3 of the
Act of 1927 provides the power to reserve
forests, which provides that the State
Government may constitute any forest-land
or waste-land which is the property of
Government,
or
over
which
the
Government
has
proprietary
rights,a
reserve forest. Section 3 is reproduced
below:-

3. Power to reserve forests.-The
State Government may constitute any
forest-land or waste-land which is the
property of Government, or over which the
Government has proprietary rights, or to
the whole or any part of the forest-produce
of which the Government is entitled, a
reserved forest in the manner hereinafter
provided.

17. Section 3 in its application to the
State of Uttar Pradesh, has been substituted
by U.P. Act No.XXIII of 1965 with effect
from 23.11.1965 in the following manner:-

3. Power to reserve forests.-The
State Government may constitute any
forest-land or waste-land which is the
property of Government, or over which the
Government has proprietary rights, or to
the whole or any part of the forest-produce
of which the Government is entitled, a
reserved forest in the manner hereinafter
provided.

Explanation
The
expression
holding shall have the meaning assigned to
it in the U.P. Tenancy Act 1939 the
expression
village
abadi
shall
have
meaning assinged to it in the U.P. Village
Abadi Act 1947.

18. Section 4 provides that whenever
it has been decided to constitute any land a
reserved forest, the State Government shall
issue a notification in the Official Gazette.
Section 4 is reproduced below:- :

"Section 4 : Notification by State
Government---(1) Whenever it has been
decided to constitute any land a reserved
forest, the State Government shall issue a
notification in the Official Gazette :
284 INDIAN LAW REPORTS ALLAHABAD SERIES

(a) declaring that it has been
decided to constitute such land a reserved
forest ;

(b) specifying as nearly as
possible, the situation and limits of such
land ; and

(c)
appointing
an
officer
(hereinafter called "the forest settlement
officer") to inquire into and determine the
existence, nature and extent of any rights
alleged to exist in favour of any person in
or over any land comprised within such
limits, or in or over any forest produce, and
to deal with the same as provided in this
Chapter.

Explanation---For the purpose of
Clause (b), it shall be sufficient to describe
the limits of the forest by roads, rivers,
ridges or other well-known or readily
intelligible boundaries.

(2) The officer appointed under
Clause (c) of Sub-section (1) shall
ordinarily be a person not holding any
forest office except that of forest settlement
officer.

(3) Nothing in this Section shall
prevent
the
State
Government
from
appointing any number of officers not
exceeding three, not more than one of
whom shall be a person holding any forest
office except as aforesaid, to perform the
duties of a forest settlement officer under
this Act."

19. Section 5 provides that after the
issue of a notification under section 4, no
right shall be acquired in or over the land
comprised in such notification, except by
succession or under a grant or contract in
writing made or entered into by or on
behalf of the Government or some person
in whom such right was vested when the
notification was issued; and no fresh
clearings for cultivation or for any other
purpose shall be made in such land except
in accordance with such rules as may be
made by the State Government in this
behalf. Section 6 inter alia gives power to
Forest Settlement Officer to issue a
proclamation and requiring every person
claiming any right mentioned in Section 4
or 5 within such period as prescribed by
him to submit his objection claiming his
right or appear before him and state his
right or the amount of compensation, if any,
claimed by him. Section 7 gives power to
Forest Settlement Officer to investigate the
objections.

20. Section 8 deals with the power of
the Forest Settlement Officer, which
provides that the forest settlement officer
will have all the powers of the civil court in
the trial of the suit. Section 9 is with regard
to extinction of rights, if no claim is
preferred after notification under Section 4
of the Act of 1927 under Section 6 and
failed to satisfy that no knowledge could be
acquired before publication of notification
under Section 20. Sections 8 and 9 are
extracted below :

"Section
8--Power
of
forest
settlement officer.--For the purpose of such
inquiry, the forest settlement officer may
exercise the following powers, that is to say
:

(a) power to enter, by himself or
any officer authorised by him for the
purpose, upon any land, and to survey,
demarcate and make a map of the same :
and

(b) the powers of a civil court in
the trial of the suit."

"Section 9--Extinction of rights,--
Rights in respect of which no claim has
been preferred under Section 6, and of the
existence of which no knowledge has been
acquired by inquiry under Section 7, shall
be
extinguished,
unless
before
the
3 All. Divisional Forest Officer Noth Kheri Vs. Surjan Singh & Ors.
285
notification under Section 20 is published,
the person claiming them satisfies the forest
settlement officer that he had sufficient
cause for not preferring such claim within
the period fixed under Section 6."

21. Section 11 of the Act of 1927
provides that the forest settlement officer
shall pass an order admitting or rejecting
the claim to a right in or over any land. The
appeal against the order passed by the
Forest Settlement Officer is provided under
Section 17.

22. In view of above, once the
notification has been issued under Section
4 of the Act of 1927, all claims can be
raised before the Forest Settlement Officer,
who can consider the same and decide the
claim
after
affording
opportunity
of
evidence exercising the powers of a civil
court in the trial of the suit. After
finalization
of
the
proceedings,
the
notification under Section 20 is issued
declaring the land as reserved forest.
Section 20 of the Act of 1927 is extracted
here-in-below:

"20-Notification declaring forest
reserved.-(1) When the following events
have occurred, namely:-

(a) the period fixed under section
6 for preferring claims have elapsed and all
claims (if any) made under that section or
section 9 have been disposed of by the
Forest Settlement-officer;

(b) if any such claims have been
made, the period limited by section 17 for
appealing from the orders passed on such
claims has elapsed, and all appeals (if any)
presented within such period have been
disposed of by the appellate officer or
Court; and

(c) all lands (if any) to be
included in the proposed forest, which the
Forest Settlement-officer has, under section
11, elected to acquire under the Land
Acquisition Act, 1894 (1 of 1894), have
become vested in the Government under
section 16 of that Act,the State Government
shall publish a notification in the Official
Gazette, specifying definitely, according to
boundary-marks erected or otherwise, the
limits of the forest which is to be reserved,
and declaring the same to be reserved from
a date fixed by the notification.

(2) From the date so fixed such
forest shall be deemed to be a reserved
forest.
State Amendments

Uttar Pradesh- In section 20,in
sub-section (1), for clause (b), substitute
the following clause namely,

(b) if any such claims have been
made, the period limited bySection 17 for
appealing from the orders passed on such
claims has clasped and all appeal(if any)
persented within such period have been
disposed by the District Judge; and

[Vide Uttar Pradesh Act 23 of
1965,sec.8 (w.e.f. 23.11.1965]"

23. Section 23 of the Act of 1927
provides that no right of any description
shall be acquired in or over a reserved
forest except by succession or under a grant
or contract in writing made by or on behalf
of the Government or some person in
whom such right was vested when the
notification under section 20 was issued.

24. Section 27 A has been added by
U.P. Act No.23 of 1965 which provides for
finality of orders, which cannot be called in
question in any court of law. Section 27 A
on reproduction reads as under:-

'Section 27A--Finality of orders,
etc.--No act done, order made or certificate
issued in exercise of any power conferred
286 INDIAN LAW REPORTS ALLAHABAD SERIES
by or under this Chapter shall, except as
herein before provided, be called in
question in any Court."

25. In view of above, it is evident that
as per scheme of the Act, in the proceeding
beginning with notification under Section
4, all claims regarding land included in the
notification
are
adjudicated
by
an
authorised officer i.e. Forest Settlement
Officer, who exercises all the powers of the
civil court in trial of the suits as per Section
8, the appeal of which can be preferred
under Section 17. Section 5 of the Act of
1927 provides that after issue of a
notification under section 4, no right shall
be acquired in or over the land comprised
in such notification, except by succession
or under a grant or contract in writing made
or entered into by or on behalf of the
Government or some person in whom such
right was vested when the notification was
issued. The said notifications published in
the official gazettes are public documents
which need not be proved and they shall be
deemed to have been issued in accordance
with law after following the due procedure
of law.

26. The Act of 1950 was promulgated
for abolition of the zamindari system which
involves intermediaries between the tiller
of the soil and the State in Uttar Pradesh
and for acquisition of their rights, title and
interest and to reform the law relating to
land tenure consequent on such abolition
and acquisition and to make provision for
other matters connected therewith. As per
Section 4 of the said Act, after the
notification
issued
by
the
State
Government, all the estates vested in the
State. However, certain buildings and
appurtenant thereto, wells, tress etc. have
been settled in favour of the owners and
occupiers
thereof
under
Section
9.
Therefore, all the estates in State of U.P.
after notification under the said Act vested
in State and unless anybody acquired any
right or title under the said Act, he is not
entitled to claim any right over any land.

27. Adverting to the facts of the
present case, the respondents had filed suit
under section 229 B of the Act of 1950
after 11.04.1970 i.e. after issuance of the
notification not only under Section 4 but
Section 20 of the Act of 1927 without
impleading
the
forest
department
as
respondent as admitted by the respondents.
However, it has been stated that the State of
U.P. was impleaded in the said suit but it
has not been disclosed as to through whom
State of U.P. was impleaded. However
since the land in dispute was already
declared as forest land, therefore the forest
department was a necessary party to the
suit because it could have only given the
correct facts and clarified the position.
Even otherwise, even if the State was
impleaded no effective order could have
been passed without impleadment of the
forest department or the concerned officer
of the forest department. The Hon'ble
Supreme Court, in the case of Moreshar
Yadaorao Mahajan versus Vyankatesh
Sitaram Bhedi(supra), has held that no
effective decree could have been passed in
absence of necessary party and if a
necessary party is not impleaded, the suit
itself is liable to be dismissed. The twin test
to be satisfied for being a necessary party is
that there must be right to some relief
against such party in respect of the
controversies involved in the proceedings
and no effective decree can be passed in the
absence of such a party. Similar view was
taken by Hon'ble Supreme Court in the
case of Poonam vs State of Uttar Pradesh
and others; (2016) 2 SCC 779. Even
otherwise, in view of Section 27 A of the
3 All. Divisional Forest Officer Noth Kheri Vs. Surjan Singh & Ors.
287
Act of 1927, as inserted by the State
amendment of U.P., the said suit was not
maintainable,
therefore
the
exparte
judgment and decree dated 30.09.1973,
against the State also, is void.

28. The respondents, claiming right
and title over the land in dispute i.e. Plot
No.1 minjumla/50 acres situated in Village
Madanpur, Pragana/Tehsil Palia, District
Kheri on the basis of aforesaid judgment
and decree dated 03.09.1973 passed in suit
under Section 229 B of the Act of 1950,
filed suit for permanent injunction against
the appellant
on
05.07.1977
bearing
Regular Suit No.154 of 1977. The suit was
decided in favour of the respondents. The
claim of the respondents is that they are in
possession on the land in dispute for the
last 30 years and are Sirdar of the land in
dispute and they have been declared as
such by the Divisional Officer, Kheri in the
suit filed under Section 229 B of the Act of
1950 and the forest department had no
concern with the land in dispute. Even if it
is assumed that the suit u/s 229 B of the Act
of 1950 could have been filed and decreed,
though it could not have been, the
respondents were declared Sirdar of the
land in dispute by the said order and
decree. The Sirdar has no right or title on
the land. The Sirdar is not a proprietor but
merely the tenure holder and the propriety
right of any such land vested with the State.
Thus, even if the respondents were in
possession on the land in dispute as Sirdar,
they have no right or title over the land in
dispute and it could have been declared the
forest land by the Government under
Section 3 of Act of 1927 and State
amendment of U.P. by Act No.XXIII of
1965, as it has propriety rights over the said
land. Hence, the State was justified in
declaring and notifying the land in dispute
as reserve forest.

29. The Hon'ble Supreme Court, in
the case of State of U.P. versus Deputy
Director of Consolidation and others
(supra), has held that the person who was
holding the land as Sirdar was not vested
with propriety rights and he was tenure
holder and the propriety rights vested with
the State. It has further been held that after
notification under Section 4of the Forest
Act, the objections could not have been
raised qua the said notification before the
consolidation
authorities
and
the
consolidation authorities were bound by the
notification which had attained finality as
per scheme of the Act of 1927. The relevant
paragraphs
7
to
10
are
extracted
hereinbelow:-

"7.It is thus obvious that a person
who was holding the land as Sirdar was not
vested with proprietary rights under the
Abolition Act. He was a tenure holder and
the proprietary rights vested with the State.
The High Court, therefore, fell into patent
error in assuming that by virtue of their
status as Sirdars the respondents were
proprietors of the land. The State being the
proprietor of the land under the Abolition
Act it was justified in issuing the
notification under Section 4 of the Act.

8. The nature of the land -
whether covered by Section 3 of the Act or
not - could only be determined on the date
of the notification under Section 4 of the
Act which was issued on March 29, 1954.
Neither the Consolidation Authorities nor
the High Court have gone into the question
as to what was the nature of the land on the
relevant
date.
The
Consolidation
Authorities recorded their findings in the
year 1968-69. They were wholly oblivious
of the nature of the land 14-15 years back
in the year 1954.

9. The crucial question for
consideration, however, is whether the
288 INDIAN LAW REPORTS ALLAHABAD SERIES
Consolidation
Authorities
have
the
jurisdiction to go behind the notification
under Section 20 of the Act and deal with
the land which has been declared and
notified as a reserve forest under the Act. It
is necessary, therefore, to examine the
scheme of Chapter II of the Act. Section 3
provides that the State Government may
constitute any forest land or waste land
which is the property of the Government or
over which the Government has proprietary
rights or to the whole or any part of the
forest produce to which the Government is
entitled a reserved forest. Section 4
provides for the issue of a notification
declaring the intention of the Government
to constitute a reserved forest. Section 5
bars accrual of forest rights in the area
covered by the notification under Section 4
after the issue of the notification. Section 6,
inter alia, gives power to the Forest
Settlement Officer to issue a proclamation
fixing a period of not less than three
months from the date of such proclamation
and requiring every person claiming any
right mentioned in Section 4 or Section 5
within such period, either to present to the
Forest Settlement Officer a written notice
specifying or to appear before him, and
state the nature of such right and the
amount
and
particulars
of
the
Compensation (if any) claimed in respect
thereof. Section 7 gives power to the Forest
Settlement
Officer
to
investigate
the
objections. Section 8 prescribes that the
Forest Settlement Officer shall have the
same powers as a civil court has in the trial
of a suit. Section 9, inter alia, provides for
the extinction of rights where no claim is
made under Section 6. Section 11(1) lays
down that in the case of a claim to a right
in or over any land, other than a right of
way or right of pasture, or a right to forest
produce or water course, the Forest
Settlement Officer shall pass an order
admitting or rejecting the same in whole or
in part. In the event of admitting the right
of any person to the land, the Forest
Settlement Officer, under Section 11(2), can
either exclude such land from the limits of
the proposed forest or come to an
agreement with the owner thereof for the
surrender of his rights or proceed to
acquire such land in the manner provided
by the Land Acquisition Act, 1884. Section
17 provides for appeal from various order
under the Act and Section 18(4) for revision
before the State Government. When all the
proceedings provided under Section 3 to 19
are over the State Government has to
publish a notification under Section 20
specifying definitely the limits of the forest
which is to be reserved and declaring the
same to be reserved from the date fixed by
the notification.

10. It is thus obvious that the
Forest Settlement Officer has the powers of
a civil court and his order is subject to
appeal and finally revision before the State
Government. The Act is a complete code in
itself and contains elaborate procedure for
declaring and notifying a reserve forest.
Once a notification under Section 20 of the
Act declaring a land as reserve forest is
published, then all the rights in the said
land claimed by any person come to an end
and
are
no
longer
available.
The
notification is binding on the Consolidation
Authorities in the same way as a decree of
the civil court. The respondents could very
well file objections and claims including
objection regarding the nature of the land
before the Forest Settlement Officer. They
did not file any objection or claim before
the authorities in the proceedings under the
Act. After the notification under Section 20
of the Act, the respondents could not have
raised any objections qua the said
notification
before
the
Consolidation
Authorities. The Consolidation Authorities
3 All. Divisional Forest Officer Noth Kheri Vs. Surjan Singh & Ors.
289
were bound by the notification which had
achieved finality."

30. In the case of State of U.P. versus
Kamal Jeet Singh(supra), the Division
Bench of this Court considered the scheme
of the Indian Forest Act and has held that
the Forest Settlement Officer has the
powers of a civil court and once the
notification under Section 4 and Section 20
of the Forest Act has been issued, it attains
finality and except revision before the State
no authority has jurisdiction to determine
the rights as contained in Section 27-A of
the
Forest
Act.
Thus,
the
revenue
authorities could not have determined the
rights under Section 229 B of the U.P. Z.A.
& L.R. Act 1950.

31. A coordinate Bench of this Court,
in the case of State of U.P. versus Sone Lal
and others(supra), has held that once
notification is issued under Section 4 of the
Forest Act, no right could have been
acquired in or over the land declared as
forest land.

32. It is also noticed that though
the claim was set up by the respondents in
the plaint that they are in possession on the
land in dispute for the last 30 years,
however in the oral evidence of P.W. 1
Surjan Singh i.e respondent no.1, he
admitted in his cross examination that he
had not got it from anybody and got it
vacant and he also admitted that he has not
deposited the land revenue for the last 30
years. He also admitted that he had filed the
suit
without
impleading
the
forest
department but the State was impleaded,
however it has not been disclosed as to
through whom the State was impleaded in
the suit, whereas the State can be
impleaded in the suit only through the
department concerned in accordance with
law.

33. It is also noticed that the
commission was issued during the trial,
which was conducted on 17.12.1979. The
report of commission i.e. GA 2 / 30/1 and
Ga 2 30/2 indicates that during the
commission, the respondents stated that
they have got the patta of the land in
dispute in the year 1969 and since then they
are in possession of the land in dispute,
therefore the respondents could have in
possession for the last eight years in view
of this.