# State of U.P. Thru' The Collector Bijnor and another v. Ajay Singh and others

- **Citation:** (2012) 3 ILRA 1390
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-09-28
- **Bench:** Prakash Krishna, Arvind Kumar Tripathi (Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-thru-the-collector-bijnor-and-another-v-ajay-singh-and-others-42424
- **Pages:** 18

## Headnote

Indian Forest Act, 1927-Section-27- land
once reserved forest land-can be dereserve only by Central Government
notification-not by other process-suit for
permanent
injunction-without
having
any title-suit itself hit by provisions of
Section 27-A.

Held: Para 66

It follows when a reserve forest has
been established through notification, it
shall cease to be a reserve forest only
when there is a notification to this effect
by the State Government in the official
gazette and not by any other process. In
the case on hand, we do not find any
such notification on record. This being
so, it is end of the matter, so far as the
plaintiffs are concerned. The land in
dispute continues to be reserve forest
land and the suit is hit by section 27A, as
added in State of U.P.

## Text

_Characters 0–39,940 of 60,226. This is a partial read: ask again with offset=39940 for what follows._

1390 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

document should not have been referred
by the appellant as it is not part of record
of
the
Workmen's
Compensation
Commissioner as also it came into
existence after award. The award is dated
20th December, 2001. In all fairness, the
appellant should have sought permission
of the Court to lead additional evidence in
the appeals before referring the said
document in the course of argument. The
argument proceeded on the footing that
the said document found part of record
but on verification from the original
record, we find that it is not so. We
deprecate such practice.

29. Any other point was not pressed.

30. We do not find any merit in the
appeals. Both the appeals are, hereby,
dismissed with costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.09.2012

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.
THE HON'BLE ARVIND KUMAR TRIPATHI (II), J.

First Appeal No. - 658 of 2005

State of U.P. Thru' The Collector Bijnor
and another

...Applicants
Versus
Ajay Singh and others ...Respondents

Counsel for the Petitioner:
S.C.

Counsel for the Respondents:
Sri R.S. Mishra
Sri B.K. Mishra
Sri S.K. Srivastava

Indian Forest Act, 1927-Section-27- land
once reserved forest land-can be dereserve only by Central Government
notification-not by other process-suit for
permanent
injunction-without
having
any title-suit itself hit by provisions of
Section 27-A.

Held: Para 66

It follows when a reserve forest has
been established through notification, it
shall cease to be a reserve forest only
when there is a notification to this effect
by the State Government in the official
gazette and not by any other process. In
the case on hand, we do not find any
such notification on record. This being
so, it is end of the matter, so far as the
plaintiffs are concerned. The land in
dispute continues to be reserve forest
land and the suit is hit by section 27A, as
added in State of U.P.

(Delivered by Hon'ble Prakash Krishna, J.)

1. It is an unfortunate case. The facts
of the case unveils how some government
servants, here two officials, who were in
possession of revenue record, as part of duty
to protect the government land, colluded
with each other to grab the government
property by forging the revenue record and
entered the names of their wives and sons
who are plaintiffs herein. Thus, they caused
an estimated loss to the extent of Rs.50
crores to the public exchequer as found in
the inquiry report dated 11.4.2002.

2. This is defendants' appeal against
the original judgment and decree dated 30th
of May, 2005.

3. Present first appeal has been filed
by the State of U.P. through Collector,
Bijnor and Forest Range Officer, Amangarh
Range, Bijnor against the judgement and
decree dated 30.5.2005 and 8.7.2005,
respectively, passed by the Additional Civil
Judge (Senior Division),Bijnor by which the
suit has been decreed being O.S. No. 545 of
3 All] State of U.P. Thru' The Collector Bijnor and another V. Ajay Singh and others

1391
1991 Ajay Singh son of Mahavir Singh,
Abdullah son of Mohamood Khan, Smt.
Akhtari daughter of Imamuddin and Smt.
Nirmala Devi Daughter of Chhote Lal, all
residents of village-Rani Nangala, Post
Afzalgarh, Tehsil Nagina, District Bijnor.
against State of U.P. through Collector,
Bijnor and and Forest Range Officer,
Amangarh, Range, Bijnor and directed
defendants not to interfere in ownership and
peaceful possession of plaintiffs over Plots
No.24/2 to 24/5, 27/02, 28/1, 29 to 32 area
89 bigha, 18 biswa situated in village-Rani
Nangala, district Bijnor.

4. From perusal of record, it transpires
that the respondents herein filed the above
mentioned
civil
suit
for
permanent
injunction against the State of U.P. through
Collector
and
Forest
Range
Officer,
Amangarh, Bijnor alleging that they are
owners in possession of the disputed plots.
Defendant no. 2 has its office near that land
and its employees are inimical to the
plaintiffs. The plaintiffs are using the
disputed plots by sowing and reaping the
crops and defendants have no concern with
the land. There were some trees in the
disputed plots due to which they were
feeling difficulty in using that portion of the
land. So, they moved an application for
permission to cut those trees on 20.3.1990
before Prabhagiya, Van Adhikari (Tarai,
Pashchim Van Prabhag), Ram Nagar, who
was the superior officer of defendant no. 2
and had power to grant permission. In this
matter, defendant no. 2 was expecting some
bribe from plaintiffs and due to nonfulfilment of that demand, they were
inimical to them. The defendants threatened
that neither they will permit them to cut the
trees nor the plaintiffs will be permitted to
use the land for agriculture purpose. Several
letters were written for permission to cut the
trees, though due to lapse of time, the
permission deemed to be granted. On
5.7.1991, defendant no. 2 and other persons
along
with
Police
force
came
and
demolished their Dera and took away other
agricultural implements and hand-pump etc.
Plaintiffs filed the suit without giving any
notice under Section 80 CPC on the pretext
that if notice is given, then the delay will
defeat the purpose of suit and prayed for
exemption from giving notice under Section
80 CPC. The plaintiffs after filing the suit,
prayed that defendants be restrained from
interfering in ploughing, sowing and
reaping the crops and using the land and
also be restrained from interfering in the
possession of plaintiffs.

5. Defendants filed their written
statements denying that plaintiffs are
owners in possession or bhumidhar of the
disputed land. They also denied that they
are tenant of village-Rani Nangala because
the disputed land along with other land has
been declared reserved forest under Section
20 of Indian Forest Act and plaintiffs have
no right to challenge the notification for that
purpose. It was stated that disputed land is a
forest land and is in control and possession
of Forest Department. The standing trees
are also property of the forest department.
According to plaintiffs own admission, their
illegal possession has been removed, hence,
the suit is not maintainable. If at all,
plaintiffs have got their names recorded by
fraud or in-collusion of revenue personnel,
then that entry has no value and the
plaintiffs cannot claim any right due to that
illegal and forged entry. The suit is not
maintainable and it is barred by the
provisions of Section 331 of U.P. Zamidari
Abolition
and
Land
Reforms
Act
(hereinafter referred to as the Act). The
ownership of the plaintiffs is disputed,
hence, without declaration of title the suit is
not maintainable. Vide notification no. 147-
1392 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

1926, dated 31.7.1928 under Section 20 of
Indian Forest Act, the total area of village
Rani Nangala which is 1484 acre has been
declared reserved forest. Plaintiffs have not
raised
any
objection
against
that
notification, hence, the suit is barred.
Plaintiffs were never in possession of the
disputed land, so, the suit is barred by
Section 20 of Indian Forest Act, Sections 35
and 41 Specific Relief Act and thus
plaintiffs are not entitled to any relief. The
suit is undervalued.

6. It is worthy to note that appellant
had amended their written statement and
added para-34-A in which it has been
mentioned that vide letter no.30/7-BhuLekh-H-10 Inquiry Dt.15.4.2002 of District
Magistrate, Bijnor, the inquiry report has
been sent to Prabhagiya Nideshak, Van
Prabhag, Bijnor in which it has been found
that certain persons have on forged
documents got Rani Nangala village
declared as a revenue village which was
earlier forest land. It has also been stated
that Mahadev Singh Malviya, Lekhpal,
Amin
of
irrigation
department
Sri
Mahmood Ahmad and the then A.R.K.
Ghasita Singh have colluded and by
creating forged revenue papers declared the
forest land to be revenue village. The
disputed land is forest land and plaintiffs
have no concern with that land.

7. In their replication, plaintiffs have
stated that Rani Nangala village was already
a revenue village and no new revenue
village has been created, revenue records
cannot be changed and plaintiffs are
Bhumidhars with transferable right.

8. Learned Additional Civil Judge,
(Senior Division) after going through the
pleadings framed the following issues:

(i) Whether plaintiffs are owner in
possession of land Khasra Nos.24/2 to 25/5,
28/1,28/2,27/2, 29 to 32 area 89 bigha, 18
biswa, village Rani , Post Afzalgarh, Tehsil
Nagina, District Bijnor and also of the trees
therein? If so its effect.

(ii) Whether the disputed land has been
declared for reserve forest under Section 20
of Indian Forest Act? if so its effect.

(iii) Whether plaintiffs are not in
possession of the disputed land? If so its
effect.

(iv) Whether civil court has no
jurisdiction to try the suit as has been
mentioned in para-26 of the written
statement and whether the suit is barred by
provisions of Section 331 of UPZA &LR
Act?

(v) Whether the suit is barred by
provisions of Section 38 and 41 Specific
Relief Act as has been mentioned in para-33
of the written statement?

(vi) Whether the suit is barred by
principles of estoppel and acquiescence? if
so its effect.

(vii) Whether the suit is barred by time
as has been pleaded in para-31 of the
written statement, if so its effect.

(viii) Whether the suit is undervalued
and the court fee paid is insufficient?

(ix) What reliefs, if any, are plaintiffs
entitled?

9. In support of their claim, parties
had filed several papers which shall be dealt
with at the appropriate place. In addition to
this, plaintiffs have examined Mohd. Akhtar
3 All] State of U.P. Thru' The Collector Bijnor and another V. Ajay Singh and others

1393
PW/1 and Hakim Singh as P.W. 2.
Defendants have examined Abdul Sattar as
D.W. 1. Learned lower court has after going
through the evidence and documents,
decreed the suit. Feeling aggrieved the
defendants have filed this appeal.

10. We have heard learned Standing
counsel for the State and Sri B.K.Mishra for
the respondents.

11. It has been argued from the side of
appellants that land in question is a reserved
forest land. The Civil Judge (Senior
Division) has no jurisdiction to hear the suit
as it was barred by Section 331 of the
UPZA & LR Act. The revenue entries in
favour of the plaintiffs is a result of forgery
and collusion with the employees of
revenue department. Plaintiffs-respondents
were never in authorized possession of the
disputed land and were never recorded as
tenure holder, anything contrary to this, is
wrong. By notification no. 147-1926 dated
31.7.1928 made under Section 20 of Indian
Forest Act, total area of about 1484 acres of
village Rani Nangala has been declared
forest land and since then the said land is in
exclusive possession and ownership of the
forest department. Later on, by another
notification dated 27.1.1939, 150 acre land
too of that village was declared forest land.
The notifications dated 31.7.1928 and
27.1.1939 were never challenged. Hence,
the suit is barred by principles of estoppel
and acquiescence. The copies of khasras
and khataunis pertaining to the land
ownership and possession of the respondent
are forged and fabricated and notifications
dated 31.7.1928 and 27.1.1939 have
overriding effects. The appellant had
constituted an inquiry committee presided
by Sub-Divisional Officer, Najibadad,
Bijnor and six other members dated
26.3.2002. The Committee has submitted
the inquiry report dated 11.4.2002 in which
the committee has concluded that plaintiffs
in collusion with revenue authorities have
manipulated and obtained forged entries
pertaining to the land in question. Appellant
no. 1, after agreeing with the inquiry report,
has already sent a letters dated 15.4.2002
with a specific direction to Prabhagiya
Nideshak, Van Prabhag, Bijnor, which is on
record. But learned court below has over
looked the same in passing the decree.

12.

Learned
counsel
for
the
respondents has argued that the agricultural
land of the respondent was acquired for
construction of 'pili dam' and 'Kalluwala
dam', therefore, they were displaced and
were deprived from their agricultural land.
Thereafter, the Government issued an order
being G.O. No. 3948 dated 30.6.1961 and
some of the forest land was handed over to
the Irrigation Department for rehabilitation
of the displaced persons. For this purpose
352 acre land was given to the Irrigation
Department. In view of the G.O. Dated
30.9.1961 and order dated 13th July, 1962
issued by the Chief Engineer, Irrigation
Department,
U.P.,
the
Government
Notification No. 731 dated 3.7.1928 and the
Government Notification dated 27.1.1939
declaring the land of Rani Nangala reserved
forest land under Section 20 of the Indian
Forest Act has become insignificant and
non-est. In view of this, right of the Forest
Department over the property in question
became extinct. The inquiry and action of
the State Government was illegal, arbitrary
and with mala fide intention and has no
effect on the decision of the suit.

13. Refuting the arguments advanced
by learned counsel for the respondents,
learned Standing Counsel argued that
plaintiffs-respondents have taken a simple
case of their being owner in possession over
1394 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

the disputed land as a Bhumidhar. They
have not pleaded anywhere that their land
was acquired by the Government for
construction of 'pili dam' and thus, after
displacement, they were allotted these lands
so the whole argument on this aspect is
without pleading and it cannot be taken into
account. It was also argued that revenue
entries cannot confer title on any person.
Plaintiffs have to prove that they are the
owners of the disputed land.

14. From the arguments of the parties,
we are of the view that following points are
to be determined;

1. "Whether the finding of the Court
below under issue no.1 holding that the
plaintiffs are the owners in possession of
disputed plot nos. 24/2 to 24/28/1 and 28/2,
27/2 , 29 to 32 situate in village Ram Nagla
is correct?"

2. "Whether the suit is hit by
provisions of the Forest Act as the disputed
land was admittedly declared as reserve
forest land?

3. "Whether the suit is barred by
Section 331 of the U.P.Z.A. & L.R. Act?

4. "Whether the plaintiffs were in
possession of the disputed property on the
date of the suit?

5. "Whether the suit is barred by the
provisions of Sections 38 and 41 of the
Specific Relief Act?

POINT NO.1

15. It is apt to notice the pleadings of
the plaintiff as set out in the plaint. The
plaint is a small document and it consists of
only 12 paragraphs in all. In the opening
part of the plaint it has been stated that the
plaintiffs are Bhumidhars with transferable
rights and are in possession of the plots
described therein measuring 89 bighas 18
biswas Pukhta land. In the subsequent
paragraphs i.e. in paragraphs 2 to 10 it has
been stated that the office of the defendant
no.2 is nearby and the respondent no.2 has
personal enmity with the plaintiffs. The
plaintiffs are carrying on the cultivation
activities in the disputed plots and the
defendants have no concern with them. It
has been further stated that the plaintiffs
sought permission for cutting the trees and
in this regard the correspondence is going
on but permission deemed to have been
granted automatically. On 5th of July, 1991
the defendant with the police force removed
the belongings of the plaintiffs and the
matter has been reported to the concerned
officer. They are still threatening the
plaintiffs. Notice under section 80 CPC
could not be given due to the urgency in the
matter. This all what has been pleaded in
the plaint.

16. In the plaint the plaintiffs have not
disclosed their source of title as to how they
have become Bhumidhar with transferable
rights. The plots in question are their
ancestral property or were acquired by them
by means of sale deed, gift etc. has not been
disclosed. There is no averment in the plaint
that they are the recorded Bhumidhars in the
revenue record of the plot in question. The
pleading as set out in the plaint is short of
necessary
averment
regarding
their
ownership. Non disclosure of the source of
the title in the plaint is a fatal defect,
specially when it was declared as reserve
forest by the government notifications dated
31st of July, 1928 and 21st of January, 1939
issued under section 20 of the Indian Forest
Act. The notifications are on record of the
case and their existence was not disputed by
3 All] State of U.P. Thru' The Collector Bijnor and another V. Ajay Singh and others

1395
the plaintiffs. By the notification dated 31st
of July, 1928, 1484 acres land situate at
Rani Nagla was declared as reserve forest
land. The boundaries are described therein.
It is paper No.257 Ga. By subsequent
notification dated 27th of January, 1939,
150 acres of land of District Bijnore,
Pergana Afzalgarh of Rani Nagla was
declared reserve forest land, under section
20 of the Indian Forest Act. The existence
of the Forest Department is not disputed by
the plaintiffs. Rather they have come
forward with the case that the office of the
Forest Department is there and people of
Forest Department use to visit the said
office and also reside.

17. It appears that the plaintiffs during
trial took a new stand not set up in their
plaint and evidence was led by them on the
footing that they are displaced persons and
their land has been taken away by the State
Government
in
connection
with
construction of Dam known as Pili
Jalashay. To rehabilitate such displaced
persons,
there
were
correspondence
between different departments of the State
Government and it was ultimately resolved
that
the
displaced
persons
may
be
accommodated by providing them land of
the Forest Department. The said plea has
found favour with the trial Court. The
question now arises whether the above plea
could at all be considered by the trial Court
in absence of necessary averments in this
regard in the plaint and secondly, whether
the plaintiffs have been able to prove any
such case that they are displaced persons or
their land was taken for the purposes of
construction of Pili Jalashay and the land
which is part of reserve forest was actually
allotted to them.

18. Paper no. 32-C-1 is photocopy of
minutes of the meeting held at Ram Nagar
(Nainital) on April, 10,1966 and an
endorsement of 'not admitted' has been
made by appellant's counsel on this
document. It is not a certified copy. Nobody
on behalf of the plaintiffs has proved it. Nor
it has come from proper custody. Though
this document is not admissible in evidence
but for the sake of argument, a perusal of
this document reveals that 351.97 acre land
was given to Irrigation Department for
rehabilitation of the persons displaced due
to submergence of their land in pili dam and
for rehabilitation of affected cultivators.
There is no document on record to show
that plaintiffs were such tenure holders of
the land which was acquired for pili dam. In
fact there is no document which may point
out that as to what was the number of plots,
area and who were tenure holders of the
land which was acquired for construction of
pili Dam. If the pili dam was constructed on
forest land then there was no occasion to
rehabilitate the persons who were illegally
occupying the forest land. If these persons
were tenure holders of any revenue land
then the plot numbers and name of tenure
holders should have been mentioned in the
notification if any for acquisition of land
acquired for construction of pili dam. In the
absence of any such document the theory
that any land of plaintiffs was acquired for
construction of pili dam is nothing but a
cock and bull story.

19. On this count, we do not find any
evidence on record which may show that
any piece of land of the plaintiffs was
acquired for construction of pili dam or
their land was submerged in pili reservoir.

20. From the above discussion, we
find that neither there is any pleading to that
effect nor there is any evidence to support
the argument advanced by respondent's
1396 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

counsel. The lower court has erred in not
considering this aspect.

21. Now, comes the second aspect of
the case.

22. There is no iota of evidence on
record to show that the reserve forest land
was ever allotted to the plaintiffs. The date
of allotment ,authority and order, if any,
allotting the land to plaintiffs are not on
record. The Court below has totally ignored
this aspect of the matter and proceeded to
hold the plaintiffs' title on the basis of some
stray revenue entries in their favour in
addition to the statement of witness Mohd.
Ahamed PW/1.

23. At one place, witness Mahmood
Ahmed, P.W. 1 who is husband of Akhtari
has stated that plaintiffs' land is ancestral. If
that would have been the case, plaintiffs
would have filed Khatauni of basic year i.e.
1356 Fasli to show that their ancestors were
recorded tenure holder of the disputed plot.
The claim of ownership in this case does
not travel beyond the Khatauni of 1396
Fasli. No record prior to 1396 Fasli has
been filed. Plea of ancestral property and
allotment of the disputed land in lieu of land
taken for Pili Jalashay both cannot go hand
to hand being inconsistent and contradictory
to each other. On that count too we are of
the opinion that plaintiffs have failed to
prove their title over the disputed land.

24. Now, comes the revenue entries,
allegedly recording the plaintiffs' names.

25. It has to be seen that when and
under what circumstances plaintiffs' name
came to be mutated in the revenue records
and by whose order and whether plaintiffs
have been able to prove that the entries are
genuine.

26. In this case, plaintiffs have to
prove that they are the owners in possession
as Bhumidhar of the land and the revenue
entries are genuine. The burden lies on
them. Revenue entries are not documents of
title. Here, they are not long standing
entries. These entries at the most relate back
around the period of filing of the plaint.

27. In the case of State of Himachal
Pradesh Vs. Keshav Ram AIR 1997 SC
2181, the Apex Court has held that:

"The question, therefore, arises as to
whether the entry in the settlement papers
recording somebody's name could create or
extinguish title in favour of the person
concerned? It is to be seen that the disputed
land originally stood recorded in the name
of Raja Sahib of Keonthal and thereafter the
State was recorded to be the owner of the
land in the record of right prepared in the
year 1949-50. In the absence of the very
order of the Assistant Settlement Officer
directing necessary correction to be made
in favour of the plaintiffs, it is not possible
to visualize on what basis the aforesaid
direction had been made. But at any rate
such an entry in the Revenue papers by no
stretch of imagination can form the basis
for declaration of title in favour of the
plaintiffs."

28. In the case of Balwant Singh and
another Vs. Daulat Singh (dead) by Lrs.
and others AIR 1997 SC 2719, the Apex
Court has held that, "entries and revenue
record do not convey or extinguish any
title."

29. In the case of Vishwa Vijaya
Bharati Vs. Fakhrul Hassan and others
AIR 1976 SC 1485, the Apex Court has
held that:
3 All] State of U.P. Thru' The Collector Bijnor and another V. Ajay Singh and others

1397

"It is true that the entries in the
revenue record ought, generally, to be
accepted at their face value and courts
should not embark upon an appellate
inquiry into their correctness. But the
presumption of correctness can apply only
to genuine, not forged or fraudulent,
entries. The distinction may be fine but it is
real. The distinction is that one cannot
challenge the correctness of what the entry
in the revenue record states but the entry is
open to the attack that it was made
fraudulently or surreptitiously. Fraud and
forgery rob a document of all its legal effect
and cannot found a claim to possessory
title"

30. In the case of Narain Prasad
Aggarwal (dead) by Lrs. Vs. State of
Madhya Pradesh (2007)11 SCC, 736,
Apex Court has held that:

"Record-of-right is not a document of
title. Entries made therein in terms of
Section 35 of the Evidence Act although are
admissible as a relevant piece of evidence
and although the same may also carry a
presumption of correctness, but it is beyond
any doubt or dispute that such a
presumption is rebuttable."

31. It has been mentioned in the plaint
and also in the statement of P.W. 1 that
plaintiffs have sought permission to fell
certain trees on 20.3.1990 in which
permission
was
not
granted
for
a
considerable time.

32. A perusal of the record reveals that
Akhtari and Nirmala Devi moved an
application, Paper no. 189-C for taking
away trees on which Forest Department
passed an order that they should obtain
ownership
certificate
from
District
Magistrate, Bijnor. This clearly goes to
show that Forest Department has raised
objection regarding the ownership of the
plaintiffs over the disputed land and trees.
There is a specific order dated 28.2.1995
passed by the forest department against the
plaintiffs, which has been confirmed by this
Court in writ no.13772 of 1995, decided on
31.1.2002.

33. It will not be out of place to
mention here that the case of defendants
from the very beginning is that the land in
dispute is the reserve forest land and the
alleged revenue entries in favour of
plaintiffs
are
forged
and
fictitious
documents. As noticed herein above, these
revenue entries are not long standing
revenue entries and appears to be recorded
for the first time in the year 1396 Fasli
which corresponds to the year 1989. At this
juncture, we may note that the District
Magistrate had constituted a Committee
consisting of high officials such as Sub
Divisional Magistrate being the Chairman,
Assistant Bhulekh Adhikari, Tehsildar
Nagina, Tehsildar Dhampur, concerned
ACF and Sri B.K. Garg, Assistant Engineer
(Irrigation) as members. In the inquiry
report which is on record it was found out
that Maha Veer Singh @ Maha Dev Singh
Malviya @ Maha Veer Singh @ Maha
Kabir Singh @ Maha Dev Sharma etc. etc. ,
the then Lekhpal, Tehsil Nagina in
connivance with Mahmood Ahmed @
Mohd. Ahmed @ Mahmood Khan etc. etc.
by playing fraud and forging the documents
with a view to give the undue advantage to
their family members, friends and relatives
have fabricated cases under sections 33/39
of U.P. Revenue Act to get the names of
these persons recorded in the revenue
record. A copy of the said report is on
record.
1398 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

34. It was rightly pointed out by the
learned standing counsel that every attempt
was made by the plaintiffs to conceal their
identities. For example, the plaintiff no.4
Smt. Nirmala Devi is wife of Maha Veer
Singh but instead she has been shown as
daughter of Chhote Lal. The plaintiff no.1 is
son of Maha Veer Singh. The importance of
Maha Veer Singh in the matter is because of
the fact that a detailed inquiry was
conducted against Maha Veer Singh.

35. Indisputably, the plaintiff no.2
Abdullah is son of Mahmood Khan and
Smt. Akhtari who is wife of Mahmood
Khan has been described in the plaint as
plaintiff
no.3
as
Smt.
Akhtari
D/o
Imamuddin.

36. In the inquiry report it has come
that these two persons have transferred the
government property in the names of their
son, wives, father, brother in law and other
family members by fraudulent action and
forging the revenue records and thus,
caused a loss of Fifty Crores of rupees and
have taken away 142.40 hectares land of
National Forest known as Jim Corbett.

37. Plaintiffs have not averred a single
word in their plaint that disputed land
previously belonged to forest. P.W. (1)
Mahmood Ahmad has also not uttered a
single word in his examination-in-chief
regarding the disputed land being the forest
land. He has specifically denied that
disputed land does not belong to Forest
Department and it was never in possession
over the disputed land.

38. It is to be noted that Khatauni
Paper No.10 C (1) and 10 C (2) of the lower
court record has been filed on behalf of the
plaintiffs which is of 1396 to 1401 Fasli ie.
Year 1991 to 1996.

39. P.W.1 Mahmood Ahmad, who is
husband of Akhtari defendant/respondent
no. 3 in this case has stated in cross
examination that the disputed land is
ancestral property of the plaintiffs and the
proof is in the file. He has gone to the extent
of denial.

40. The gazette by which land of
village Rani Nangala was declared to be
reserved forest is on record. He has
admitted the suggestion that it is correct to
say that 1484 acre land was acquired as
reserved forest. The trial Court found that
the disputed land was declared as reserve
forest land through two official gazettes,
referred above, the burden that subsequently
a part of it ceases to be reserve forest would
lay on the plaintiffs. The plaintiffs have
failed to discharge the said burden.

41. A perusal of the plaint reveals that
the fact that they have received the land in
place of their land which submerged in pili
dam has not been pleaded. In the case of
Union of India Vs. R. Bhushal, (2006) 6
SCC 36, the Apex Court has held that "no
evidence can be led on a plea not raised in
the pleading."

42. In the case of Ravinder Singh Vs.
Nanmeja Singh and others (2000) 8 SCC
191, Apex Court has held that "no evidence
can be lead on a plea not raised in the
pleadings and no amount of evidence can
cure defect in the pleadings."

43. In the case of M.M.B. Catholicos
Vs. T. Paulo Avira AIR 1959 Supreme
Court 31, it has been held that plaintiff
cannot be allowed to set up a new case in
his evidence. He cannot be allowed to go
out side his pleading and lead evidence on a
fact not pleaded.
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1399

44. The Apex Court recently in Maria
Margarida Sequeria Fernandes and
Others v. Erasmo Jack de Sequeria
(Dead), JT 2012 (3) SC 451 has again
reiterated the importance of pleadings of the
parties. The following observations are apt
to reproduce :-

"52. Truth is the foundation of justice.
It must be the endeavour of all the judicial
officers and judges to ascertain truth in
every matter and no stone should be left
unturned in achieving this object. Courts
must give greater emphasis on the veracity
of pleadings and documents in order to
ascertain the truth.

53. Pleadings are the foundation of
litigation. In pleadings, only the necessary
and relevant material must be included and
unnecessary and irrelevant material must
be excluded. Pleadings are given utmost
importance
in
similar
systems
of
adjudication, such as, the United Kingdom
and the United States of America."

Thereafter, in para 61 it concluded that
"pleadings are extremely important for
ascertaining the title and possession of the
property in question."

45. D.W. 1 Abdul Sattar, has
specifically stated that the disputed land was
acquired as forest land through a gazette of
the year 1928. 1484 acre land was declared
reserve forest and after that in the year
1930,150 acre land was also notified to be
the forest land. These notifications were
issued under Section 20 of Indian Forest
Act. He has further stated that these
notifications are on record which are Paper
No. 20-C and 33-C.

46. A perusal of the record reveals that
paper no. 22-C and 33-C are the gazette
notifications dated 15th September, 1928
and 27th January, 1939 respectively. The
same papers have been filed vide no. 257-C
and 258-C. Through these notifications
1484 acre land and 150 acre land was
declared as reserved forest land. The court
below also in the judgement while
discussing issues no. 1,2,3, has held that the
total area of Rani Nangala was declared
reserved forest land through different
gazette notifications.

47. We have examined the original
record of the case and are constrained to
observe that the trial Court has decreed the
suit ignoring the fact that there is no
evidence worth the name to support the
plaintiffs' case. None of the plaintiffs
appeared in the witness box. However, they
have produced two witnesses namely
Mahmood Ahmed PW/1 and Hakim Singh,
PW/2. Indisputably, Mahmood Ahmed
PW/1 is the husband of Akhtari, one of the
plaintiffs. A bare perusal of the statements
of witnesses would show that they could not
state any material fact with regard to the
plaintiffs' title, if any, to the disputed plots.

48. The witness PW/1 in the cross
examination stated that he is retired from
the post of Amin of Irrigation Department
and that he was looking after the record of
the land in question and the other related
things. This statement in the cross
examination goes a long way to support the
contention of defendants as they have found
on inquiry, that Mahmood Ahmed colluded
with Maha Veer who was Lekhpal of the
village and these two persons manipulated
the revenue record because the records were
in their possession and they had access to
the record.

49. In para 11 of the cross
examination PW/1 has stated that the land
1400 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

was given to him in the year 1962-63 in
exchange but could not state the particulars
of his land which was taken in exchange.
This is indicative of the fact that the witness
is telling lie and his evidence lacks credit.

50. In further cross examination in
para 16 the witness has stated that the
disputed land was the ancestral property of
the plaintiffs, a case which has not been
even pleaded by the plaintiffs in the plaint.
The land was declared reserve forest land in
the year 1928 by the State Government by
issuing gazette and there is no question of
being ancestral property of the plaintiffs.
The right, title or interest, if any, on
declaration of reserve forest by the gazette
notification vested in the government.

51. The other witness who has been
examined is one Hakim Singh. He is a
fellow villager and has stated that he got the
land in exchange as also the plaintiffs got
the land in exchange. He further stated that
he knows the plaintiffs for the last 37 years.
He also could not give the particulars of the
plots which were given in exchange. In para
7 of the cross examination he has stated that
he has not seen Nirmala Devi and Akhtari
Devi carrying on any agricultural operation
on the spot. The statement of the witness
does not prove the possession of the
plaintiffs over the land in dispute. Nor he
could prove the title of the plaintiffs.

52. After having examined the oral
evidence of the plaintiffs it is apt to consider
the documentary evidence filed by the
plaintiffs. On an examination of original
record, we find that the plaintiffs have filed
uncertified copies of certain documents
along with various lists of documents.
Through list of documents paper No.27 C,
three documents 28 C, 29 C and 30 C were
filed. Similarly, through the list of
documents C-40, copy of report dated
4.7.1991 has been filed being paper No.
41C. Through list C-46, six documents C47 to C-58 were filed. None of these
documents is either original document or
certified copies. The defendants have
disputed the correctness and genuineness of
these
documents
and
have
made
endorsement " not admitted". Strangely
enough, the plaintiffs have not produced
any witness or evidence to prove these
documents. The trial Court without caring
as to whether the documents referred to
above, have even been proved or not has
proceeded to rely upon them. Consequently,
these documents have not been proved in
accordance with law, could not have been
relied upon by the trial Court and as such
the order of the trial Court is vitiated.

53. Whenever there is change in entry
in revenue record, the procedure of Chapter
III of U.P. Land Revenue Act has to be
followed, especially Section 33 of U.P.
Land Revenue Act 1901. Sections 34 to 39
of U.P. Land Revenue Act gives power of
change in record and correction of entries.

54. Plaintiffs have not filed any order
by which the revenue entries were ordered
to be corrected or changed. The plaintiffs
have not even filed any paper to show that
such land was allotted to them by virtue of
they being displaced person by construction
of pili dam or reservoir. Paper no. 34-C-1/1
and 34-C/2 alleged to be written by the then
Sub Divisional Magistrate, Nagina dated
27.3.1991 in which it has been mentioned
that Executive Engineer, irrigation zone,
Nainital has requested that the land of
persons mentioned in the list attached with
this letter, was acquired for construction of
pili dam and some land was allotted to them
and these are in possession of that land
since last 28 years. But their names have not
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1401
been mentioned in revenue papers, so rent
has not been fixed. Hence, the name of the
persons mentioned in the list, be mutated in
revenue records. This letter was filed by the
plaintiffs but it was not admitted by the
State Counsel and so it should have been
proved by the plaintiffs. This letter has not
been proved. It has not come from proper
custody. This letter appears to be part of
forgery because the plaintiffs have not
pleaded in the plaint that their land was
acquired for construction of pili dam or
reservoir and the notification of acquisition
is not on record. We feel that this has been
deliberately concealed so as to cover the
forged entries in revenue record.

55. It is also worthy to mention that
none of the plaintiffs have examined
themselves. Only husband of Smt. Akhtari
who is party to the fraud, has appeared in
the witness box. He too has admitted that
the disputed land is surrounded by forest
land on two sides. He has further stated that
he has received this land in exchange and he
cannot tell the plot numbers of the land
which he has given in its exchange. He has
further admitted Survey of India for 1966 to
1967 has prepared a map but in this map
none of the plot numbers of plaintiffs have
been shown. He has further admitted in his
cross examination that office of the Forest
Department is situated in the disputed land
where forest officials live and work. It has
further been stated in his cross examination
that the building which comprises of the
Office
of
Forest
Department
was
constructed by Forest Department. It was
constructed according to him forcefully but
he has not taken any action for removal of
that building.

56. In the case of Adivekka and
others Vs.Hanamavva Kom Venkatesh
and others AIR 2007 SCC 2025, it has
been held that non examination of the party
to the lis would lead to drawal of an adverse
inference in the case. The Apex Court has
based this observation on earlier laws laid
down in the case of Sardar Gurbakhsh
Singh vs. Gurdial Singh and Another AIR
1927 Privy Council 230 and Tulsi and
others Vs. Chandrika Prasad and others
(2006) 8 SCC 322.

57. From the above discussion, we are
of the opinion that plaintiffs have not been
able to prove that the Khataunis filed by
them are genuine documents. The entire
land of Rani Nangala was declared a
reserved forest land by Government
Notification. No order by which plaintiffs'
names were mutated in Khatauni, have been
filed or proved and the procedure given in
Sections 34 to 39 of U.P. Land Revenue Act
has not been followed.

58. In view of the above discussion,
we are of the opinion that the plaintiffs have
failed to establish their title over the land in
question.

59. We could lay our hands to a recent
decision in the case of R. Hanumaiah and
another V.