# Sumer & Ors v. Bator & Ors

- **Citation:** (2020) 9 ILRA 267
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-24
- **Case number:** Second Appeal No. 1289 of 1988
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sumer-ors-v-bator-ors-45935
- **Pages:** 18

## Headnote

268 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Gajendra Pratap, Sri R.S. Kushwaha, Sri
Ramesh Singh Kushwaha

Civil Law - U.P. Zamidari Abolition and
Land Reform Act, 1950 - Section 11-Cprovision is to protect Gaon Sabha land or
State
land
from
being
declared
-in
another's favour-it has no relevance in
private
dispute
before
civil
CourtDefendants
have
neither
title
nor
possession-cannot
interfere
with
Plaintiff's possession - Appeal dismissed
with cost of Rs. 10,000/-

Held, So far as the plaintiffs are concerned, they
have been held to be in possession by the Lower
Appellate Court. Even if their possession is
traceable to a defective title based on the patta
owing to its non-approval by the Sub-Divisional
Officer as claimed, though this Court does not
say so that it is without approval, their possession
is one held under colour of title on the basis of a
Gaon Sabha patta. They are not rank trespassers.
Even if they were rank trespassers but in settled
possession, the defendants who have neither title
or possession, have no business to go about
interfering with the plaintiffs' possession over the
suit property by asking them not to construct a
boundary
wall
around
it
or
raise
any
constructions. The Lower Appellate Court, thus,
on the ground of possession traceable to the
patta found for the plaintiffs, if not on the basis
of title, has rightly decreed the Suit against the
defendants. (para 39)

Appeal dismissed. (E-9)

Cases referred: -

## Text

_Characters 0–39,851 of 62,848. This is a partial read: ask again with offset=39851 for what follows._

9 All. Sumer & Ors. Vs. Bator & Ors.
267
and "fixed" appearing in Article 54. The
Hon'ble Supreme Court considered the
judgment in S. Brahmanand (supra) and
held that when a date is fixed, it means a
definite date fixed for doing a particular
act. Therefore, there is no question of
finding intention from other circumstances.
Thus, this Court is of the considered view
that the intention/conduct of the defendantrespondent, as per the plaint pleadings i.e.
giving assurance etc., is of no importance
so far as the period of limitation is
concerned or the time from which it starts
running.

43. The next submission of the
learned counsel for the appellant that the
possession of the property had already been
delivered to plaintiff-appellant in pursuance
of the registered agreement to sell and,
therefore, Article 54 of the Limitation Act
should not bar institution of the suit, also
deserves rejection. Article 54 of the
Limitation Act which provides for a period
of 3 years for institution of the suit, does
not make any distinction between suits for
specific performance of contract, on the
basis of delivery of possession, pursuant to
agreement to sell or part performance of
agreement. Here, the judgment of the
Hon'ble Apex Court, on this point in the
case
of
Fatehji
and
others(supra)
paragraph 6 thereof requires reference, in
which it has been held that the fact that the
plaintiff was put in possession of the
property agreed to be sold on the date of
agreement, would not make any difference
with regard to limitation for filing a suit for
specific performance of contract. Article 54
of the Limitation Act does not make any
difference between the cases where the
property had been delivered in part
performance of the agreement or otherwise
and the cases where it has not been so
delivered.

44. The enquiry under Order VII rule
11 C.P.C. is only on institutional defects. If
the Court finds that the suit is barred by law
of limitation on the averments made in the
plaint, the plaint shall be rejected. There
shall be no occasion for the Court to
proceed to decide the suit on merits after
allowing the parties to lead evidence. In
view thereof, the submission of the learned
counsel for the plaintiff-appellant that the
Trial Court should have decided the suit on
merits
after
evidence
also
deserves
rejection.

45. No other point was raised by the
learned counsel for the appellant.

46. Thus, considered, I find that the
learned courts below have not committed
any error of law in rejecting the plaint and
in dismissing the appeal.

47. The second appeal does not raise
any substantial question of law and it is
hereby dismissed at the admission stage.
----------
(2020)09ILR A267
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.07.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 1289 of 1988

Sumer & Ors. ...Appellants
Versus
Bator & Ors. ...Respondents

Counsel for the Appellants:
Sri Faujdar Rai, Sri M.C. Tiwari, Sri R.S.
Yadav, Sri Chandra Kumar Rai

Counsel for the Respondents:
268 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Gajendra Pratap, Sri R.S. Kushwaha, Sri
Ramesh Singh Kushwaha

Civil Law - U.P. Zamidari Abolition and
Land Reform Act, 1950 - Section 11-Cprovision is to protect Gaon Sabha land or
State
land
from
being
declared
-in
another's favour-it has no relevance in
private
dispute
before
civil
CourtDefendants
have
neither
title
nor
possession-cannot
interfere
with
Plaintiff's possession - Appeal dismissed
with cost of Rs. 10,000/-

Held, So far as the plaintiffs are concerned, they
have been held to be in possession by the Lower
Appellate Court. Even if their possession is
traceable to a defective title based on the patta
owing to its non-approval by the Sub-Divisional
Officer as claimed, though this Court does not
say so that it is without approval, their possession
is one held under colour of title on the basis of a
Gaon Sabha patta. They are not rank trespassers.
Even if they were rank trespassers but in settled
possession, the defendants who have neither title
or possession, have no business to go about
interfering with the plaintiffs' possession over the
suit property by asking them not to construct a
boundary
wall
around
it
or
raise
any
constructions. The Lower Appellate Court, thus,
on the ground of possession traceable to the
patta found for the plaintiffs, if not on the basis
of title, has rightly decreed the Suit against the
defendants. (para 39)

Appeal dismissed. (E-9)

Cases referred: -

1. Palakdhari Vs Deputy Director of Consolidation,
Gorakhpur & ors., 1992 AWC 228 All.

2. Sita Ram Vs Deputy Director of Consolidation
& ors., 1981 SCC OnLine All 797

3. Hira Teli Vs Shripati Rai & ors., 1981 SCC
OnLine All 512

4. Ram Daan (dead) through LRs vs. Urban
Improvement Trust, (2014) 8 SCC 902

(Delivered by Hon'ble J.J. Munir, J.)

1. This is a defendants' Second
Appeal arising from a Suit for permanent
prohibitory injunction and, alternatively, for
possession.

2. By this Appeal, the defendants of
Original Suit no.36 of 1976, seek reversal
of the judgment and decree passed by Mr.
H.L. Kureel, the then Additional District
Judge, Ghazipur, dated 18.02.1988 in Civil
Appeal no.134 of 1984, allowing the
Appeal and decreeing the Suit, that was
dismissed by the Trial Court vide judgment
and decree dated 02.05.1984.

Parties to the lis

3. The Suit was instituted by Bator
son of Buddhiram and Shiv Chand son of
Bator, arrayed as plaintiffs nos.1 and 2 in
that order. The defendants to the Suit were
seven
in
number,
to
wit,
Sumer,
Muneshwar, Uddhav, Munni, Jhuri, Radhey
and Tufani, all sons of Sahdev. The said
defendants were arrayed as defendants
nos.1 to 7 in that order. This Appeal was
lodged by all the defendants, who at the
time of presentation of the Appeal, had
grown to a figure of nine. This increase was
on account of the death of defendant no.5
to the Suit, Jhuri, who was survived by his
wife, Smt. Behafi and two sons, Mansha
and Ramesh. Ramesh at the time of
presentation of this Appeal was a minor and
was, therefore, represented through his
mother, Smt. Behafi, acting as his next
friend. Pending Appeal, of the nine original
defendants-appellants, four died. They are:
Sumer, Muneshwar, Uddhav and Munni.
Each
of
these
deceased
defendantsappellants are now represented on record
by their heirs and legal representatives.

4. Amongst the plaintiffs-respondents,
Shiv Chand son of Bator died pending
9 All. Sumer & Ors. Vs. Bator & Ors.
269
Appeal. His heirs too have been brought on
record. The nine defendants-appellants who
lodged this Appeal, including the heirs and
legal representatives of the deceased
defendants-appellants, shall hereinafter be
referred to as ''the defendants', except
where the reference is to a particular
defendant. The two plaintiffs-respondents
to this Appeal, originally impleaded,
including the heirs and legal representatives
of the plaintiff-respondent no.2, Shiv
Chand, shall be hereinafter referred to as
''the plaintiffs', except where the reference
is to a particular plaintiff.

The suit property

5. The suit property is nonaggricultural land, bearing plot no.114,
admeasuring a total of 2 biswas, 12 dhurs,
situate at Village Palia, Pargana Pachochar,
District Ghazipur. It is denoted in the
plaint, giving rise to the suit, by letters अ ब
स द य र अ.

The substantial question of law
involved

6. This Appeal was admitted to
hearing on 19.05.1988 on the following
substantial question of law:

"Whether the decree passed by
the lower appellate court suffers from an
error of law because it has upset the
findings recorded by the Trial Court about
execution of lease in accordance with the
provisions of the U.P. ZA. & L.R. Act."

The plaintiffs' case

7. The plaintiffs' case is that they are
father and son, and natives of Village Palia,
Pargana Pachochar, District Ghazipur. The
land, over which the plaintiffs' old house is
located, has been assigned a new no.183
and abutting it, is plot no.184. Prior to the
notification of consolidation operations, the
locale of new plot no.183 had a number of
houses standing there. The last mentioned
plot has a large number of dwelling houses,
located thereon. The adjacent plot no.184 is
parti.
Prior
to
the
notification
of
consolidation operations, the site of plot
no.184
has
always
been
banjar
(uncultivable land). It has now been
assigned plot no.184. The ingress and
egress to the plaintiffs' house is oriented to
the east. Lying in front of their entrance is a
sehan carrying dimensions, expressed in
indigenous units as 1- 1⁄2 lattha wide and 3
lattha long. This sehan is utilized by the
plaintiffs, where they sit and move about
and
tether
their
cattle
with
great
inconvenience - a pair of oxen and two
buffaloes. Abutting the land where the
plaintiffs' house is situate, on its west and
south, is plot no.184. The aforesaid land
being parti, is Gaon Sabha's property.
Further west of plot no.184 and contiguous
to it, is a kachcha public road, proceeding
from Ghazipur to Gorakhpur.

8. It is pleaded that land of plot
no.184, lying between the plaintiffs' house
and the last mentioned public road, bears a
total area of 2 biswas and 12 dhurs. It is the
plaintiffs' case that they were in dire need
of a sehan to meet their needs whereas the
last mentioned land, that is, parti to the
south and west of their house, was lying
unutilized. Therefore, they applied to the
Village Pradhan, Palia that this land which
is denoted in the plaint by letters अ ब स द
य र अ and a part of plot no.184, may be
allotted to them on a abadi patta for their
use as abadi and sehan. It is claimed that
the Village Pradhan, in accordance with
law and after publication by beat of drum
270 INDIAN LAW REPORTS ALLAHABAD SERIES
with prior information to members of the
Gram Samaj, convened a meeting of the Land
Management Committee on 14.05.1970. Since
there was a solitary application by the
plaintiffs staking claim to the land denoted by
letters अ ब स द य र अ, the Land Management
Committee allotted 1 biswa 10 dhurs of the
said land to plaintiff no.1, Bator and 1 biswa 2
dhurs of land, last mentioned, to plaintiff no.2,
Shiv Chand son of Bator. The allotment
aforesaid was made for the purpose of
construction of their house by the plaintiffs on
two abadi patta, each in favour of plaintiffs
nos.1 & 2, after receiving a sum of Rs.30/- and
Rs.22/-
respectively,
towards
premium/
settlement charges. A formal patta was drawn
and granted in favour of the plaintiffs.

9. It is averred that post-grant of patta
in their favour by the Gaon Sabha over the
suit property, they extended their old house
by raising some kachcha constructions over
a part of it. The plaintiffs plead that they
also put up a thatched-roof construction
(madai) leaving the residue of the suit
property as a sehan and space reserved to
tether cattle and to store agricultural
implements. It is also pleaded that the
kachcha and thatched construction erected
over the suit property are shown in the
plaint map, denoted by the letters त थ द ध.
There is then some pleading as to the finer
detail about utilization of every inch of the
suit property, which indicates that to the
west of the madai, denoted by letters त थ द
ध, a stretch of about 10 dhur of land has
been cultivated to raise a wheat crop. To the
north of the wheat crop and west of the
plaintiffs' house, a stretch of about 16 dhur
has been utilized to cultivate potatoes.

10. It is also detailed that the land
abutting the public road has three beds,
where onion has been cultivated. The
residue of the suit property, that lies to the
north of the madai, is utilized to tether
cattle and as an open-area living space. It is
pleaded that on 16.02.1976, the defendants
trespassed into the suit property and
uprooted fixtures placed there to tether and
feed cattle. The neighbours intervened and
dissipated a possible crime. The plaintiffs
have restored those fixtures immediately in
the
protection
of
the
intervening
neighbours. The plaintiffs after the said
event proceeded to enclose the suit
property with a boundary wall, which the
defendants prevented them from doing. It is
the plaintiffs' case that the defendants say
that they would occupy the suit property
and force the Gaon Sabha to settle it with
the defendants on a patta. It is on this cause
of action that the Suit was instituted on
19.02.1976 before the Court of the learned
Munsif, Saidpur, District Ghazipur.

Reliefs claimed in the Suit

11. The following reliefs have been
claimed by the plaintiffs:

"(A) By a decree in favour of the
plaintiffs and against the defendants, the
defendants be restrained in perpetuity from
obstructing the plaintiffs in any manner in
raising a boundary wall or constructions
over plot no.184 denoted by letters अ ब स
द य र अ;

(B) If the Court comes to a
conclusion that the plaintiffs have been
dispossessed in consequence of an illegal act by
the defendants, a decree of possession be
passed in favour of the plaintiffs ordering them
to be put in possession of the suit property after
dispossessing the defendants through process of
Court;"

The defendants' case
9 All. Sumer & Ors. Vs. Bator & Ors.
271

12. A written statement was filed,
jointly on behalf of all the seven
defendants, denying the plaint allegations,
with an assertion that there is no old house
of the plaintiffs in existence in a part of plot
no.183. It is asserted that the plaintiffs are
henchmen
of
the
Village
Pradhan,
Jagannath Rai, and eke out a living for
themselves staying in the Pradhan's house.
About 8-9 years ago, Jagannath Rai got a
thatch-worked dwelling house built for the
plaintiffs in the new abadi, that came into
existence post-consolidation operations in
the village. This new abadi lies to the
north-west of Jagannath Rai's house. The
plaintiffs have been living in the aforesaid
thatched house. Their assertions to the
contrary are incorrect.

13. It is further pleaded that the
plaintiffs' thatched dwelling unit is situate
at a distance of about a furlong to the
south-west of the disputed house. The
plaintiffs' thatched dwelling unit is located
close by to Jagannath Rai's house. It is
pleaded that the suit property is not located
in plot no.183. The defendants then plead
that the disputed house together with a
sehan (courtyard) was got constructed by
their father to look after his field in plot
no.276. The house was also used to tether
cattle, to store household wares, besides
serving as a living room for menfolk.
During
consolidation
operations,
plot
no.276 was recorded as an abadi to the
extent of the 12 dhurs and remainder of the
area stayed with the defendants as part of
their original holding that was included in
their chak. The defendants' chak was
assigned chak no.185. It is asserted that by
the side of the road, abutting the
defendants' chak on its western boundary,
the house in dispute stands since long. It is
pleaded that after close of consolidation
operations, the defendants have pooled
together, according to their convenience,
some land from their chak, last mentioned
and some of it from the south of the house
in dispute, besides still more from the east,
all of which they have utilized to demarcate
a sehan for themselves. This new sehan of
theirs is in addition to the one that they
have on the western side. It is also pleaded
that in their aforementioned sehan, they
have a standing Neem tree, besides a Well.

14. It is also the defendants' case that
to the south-east of the house in dispute, in
one corner, their father had got a Well sunk
some 14-15 years ago, which continues in
existence and is utilized by the defendants
to irrigate their fields and provide water to
their cattle. It is averred that the plaintiffs
have nothing to do with the said Well.
There is then a specific pleading that plot
no.184 lies to the north of the disputed
house and the defendants' chak no.185. It is
in the shape of an alley (gali). In some part
thereof, houses of Annu and others stand.
Plot no.184 to the north of the line अ ि is
shown in the plaint map. It is averred that
line अ ि is shown in the Commissioner's
map by letters T D A. It is specifically
pleaded in paragraph 12 of the written
statement that the suit property is part and
parcel of the defendants' old house and
their land comprised in plot no.185. It is
asserted that there is no crop or other
cultivation done over the land in dispute by
the plaintiffs. Whatever crop or other
cultivation
is
there,
belongs
to
the
defendants. The suit has been instituted as a
vexatious action to harass the defendants. It
is a mala fide action.

15. It is also pleaded that there are no
tethering hooks or feeding troughs fixed to
any part of the suit property, which the
defendants are claimed to have damaged or
destroyed. There is a specific plea in
272 INDIAN LAW REPORTS ALLAHABAD SERIES
paragraph 15 to the effect that the plaintiffs
have not acquired any right to the suit
property through a patta abadi, executed by
the Gaon Sabha and that the Gaon Sabha
has no right to grant the land in dispute on
a patta. It is also asserted that the plaintiffs
never entered possession of the suit
property on the basis of the Gaon Sabha
patta, they rely on. There are pleadings in
paragraph 16 of the written statement that
show animosity between the plaintiffs and
the defendants on account of defendant
no.2 standing witness in some case (not
specified) against Jagannath Pradhan, that
had left the Pradhan with ruffled feathers.
He had threatened the defendants with
trouble on this score. It is also said that in
the
preceding
year's
election,
the
defendants were not politically aligned with
Jagannath Rai, the Pradhan, which further
enangered him. He, therefore, caused the
plaintiffs, who are his henchmen, to
institute the present Suit mala fide in order
to harass the defendants on vexatious
pleadings. It is also pleaded that the
defendants do not know that if the plaintiffs
had secured some forged patta from the
Pradhan, which if there, would not bind
them.

Issues framed in the Suit

16. The Trial Court, on the pleadings
of parties, framed the following issues
(rendered
into
English
from
Hindi
vernacular):

"(1) Whether the plaintiffs are
owners in possession of the disputed land?

(2) Whether the house together
with plot no.184 is the land in dispute?

(3) Whether the suit is barred by
time?

(4) Whether the suit is barred by
principles of estoppel and waiver?

(5) Whether the suit has been
correctly valued and sufficient court fees
has been paid?

(6) Whether the plaintiffs are
entitled to any other relief, and if so, to
what extent?"

Findings of the Trial Court

17. The Trial Court answered issue
no.2 in the affirmative, relying on a report
of
the
Survey
Commissioner,
dated
20.02.1984, on the basis of which it was
held that the suit property lies in plot
no.184. The Trial Court also looked into the
evidence of DW-1, Tufani, from which also
the Court concluded that the suit property is
located in plot no.184. Issue no.2 was,
therefore, answered in the affirmative in the
terms indicated.

18. While deciding issue no.1, the
Trial Court noticed that the plaintiffs' case
is that they took the property in dispute on
an abadi patta from the Gaon Sabha where
they have various fixtures meant for
tethering and feeding cattle, that are no
concern of the defendants. It has been
remarked by the Trial Court that once the
defendants assert that the suit property is
not located in plot no.184, but 185, which
is their courtyard, the said property is
neither the plaintiffs' or the Gaon Sabha's,
where the Gaon Sabha may have a right to
execute a patta in favour of the plaintiffs.
To arrive at this conclusion, the Trial Court
has looked into the dock evidence of PW-1,
Bator as also the DW-1, Tufani and DW-2,
Parasnath Rai. On an evaluation of the oral
evidence of PW-1 and DW-1, the Trial
Court has concluded that the plaintiffs'
house is not located in plot no.184. The
Court has also looked into Exs. 2 and 3,
that are patta dated 04.05.1970, granted in
favour of the plaintiffs by the Gaon Sabha.
9 All. Sumer & Ors. Vs. Bator & Ors.
273
Regarding these documents, it is remarked
that the same are not proved by the
Pradhan, who is said to have granted these
patta. Then Ex. 4 has also been looked into,
which is a resolution of the Gaon Sabha,
sanctioning grant of the two patta in favour
of the plaintiffs. The Trial Court has taken
exception to the fact that the Pradhan, who
granted the patta, has not been produced as
a witness. The absence of the Pradhan from
the dock has led the Trial Court to infer that
no patta had been executed in favour of the
plaintiffs on 14.05.1970.

19. It is also remarked by the Trial
Court that a look at the patta shows that these
have been granted for the purpose of abadi,
whereas the plaintiffs say that they are also
cultivating. This inconsistent user, may be of
a small part of the suit property, has been
looked upon by the Trial Court as a
suspicious circumstance. The Trial Court has,
in particular, relied upon the report of the
Commissioner to say that there is a standing
crop of wheat, but no patta granted for
agricultural purposes. It is also remarked that
the plaintiffs have not filed any document to
show that plot no.183 was the ownership of
the Gaon Sabha. It is reasoned then that so
far as evidence of DW-1, Tufani is concerned,
his cross-examination shows that plots
nos.275 and 276, were his old numbers, that
were taken away during consolidation and in
lieu thereof, he has got a field in plot no.185,
as part of his chak. The Trial Court has then
noted that DW-2, Parasnath Rai, has
acknowledged in his cross-examination that
plot no.184 was in the ownership of the Gaon
Sabha. The Trial Court has remarked that it
appears that the Gaon Sabha is the titleholder to the suit property, but the plaintiffs
have not proved that it is Gaon Sabha land.

20. It is also said by the Trial Court
that once the patta were granted for abadi
purposes,
there
is
no
sense
about
cultivating that land. The Trial Court has
also looked into Ex. A-1 and concluded
therefrom that plot no.185 is recorded in
the defendants' holding, whereas plot
no.184 has been left as naveen parti. The
Trial Court has remarked that it appears
that close to the suit property, the
defendants had their parti, wherein a Well
exists. The Trial Court has gone on to
observe that from a perusal of Ex. A-3, it
appears that plot no.183, wherein the
plaintiffs claim that their house stands, is
recorded as grove. This shows, according to
the Trial Court, that the plaintiffs do not
have any old house close by to the suit
property. In the opinion of the Trial Court,
it is, therefore, difficult to believe that the
plaintiffs have a house abutting the suit
property, which led them to take the suit
property on patta from the Gaon Sabha.
The Trial Court has found PW-1, Bator to
be contradicting himself, inasmuch as he
says that plot no.184 is located to the east
of his house, whereas in the plaint it is
shown to be located in the north of it. The
Trial Court has inferred that this witness's
testimony being at variance with his
pleadings, no faith can be reposed in what
he says.

21. The Trial Court has, particularly,
recorded a finding that since there is no
approval of the patta by the Sub-Divisional
Officer, which is essential to imbue it with
life, the patta cannot be held valid. The
Trial Court has answered this issue in the
negative in terms that the plaintiffs have
neither been able to prove their title or
possession, vis-a-vis the suit property. On
these findings, the Trial Court proceeded to
dismiss the suit with costs.

The findings of the Lower Appellate
Court
274 INDIAN LAW REPORTS ALLAHABAD SERIES

22. The Lower Appellate Court in
reversing the Trial Court has remarked that
while answering issue no.2, the Trial Court
has held that the suit property is plot
no.184. The defendants have not filed any
cross-objections. It is further said by the
Lower Appellate Court that the defendant
has admitted during his cross-examination
that the suit property is located in plot
no.184. The Lower Appellate Court has
proceeded to hold that it has, thus, become
clear that the suit property is plot no.184
alone. The Lower Appellate Court has also
remarked that it has figured in the
defendant's evidence that plot no.184 has
been carved out, out of the defendants'
plots nos.275 and 276 and that he has been
granted valuation of this land while
adjusting his holdings, consolidated into
chak no.185. The Lower Appellate Court
has held that these circumstances prove that
the defendant has no concern so far as the
suit property goes. The Lower Appellate
Court has emphasized that the defendants
having
acknowledged
in
their
dock
evidence
that
during
consolidation
operations this adjustment was made,
where they received the value of plot
no.184 elsewhere, puts an end to the matter,
vis-a-vis the defendants' right to the suit
property. The Lower Appellate Court has
also held that this adjustment having been
brought
about
during
consolidation
operations, the bar under Section 49 of the
U.P. Consolidation of Holdings Act applies.

23. The Lower Appellate Court has
also noticed that in the defendants'
evidence, it has figured that the suit
property belongs to the Gaon Sabha. It is
admitted by the defendants that the suit
property was reserved for the village abadi.
The Lower Appellate Court has deduced
that if this fact is correct that the suit
property is under the management of the
Gaon Sabha, the Gaon Sabha is entitled to
transfer the same through a patta. The
Lower Appellate Court has taken note of
the fact that the plaintiffs have testified on
oath that the Gaon Sabha has granted patta,
bearing paper nos.10-C and 11-C in their
favour. The plaintiffs have filed on record a
certified copy of the proceedings of the
Gaon Sabha, that carry a resolution to grant
them land on patta. The Lower Appellate
Court has reasoned that the defendants' plea
that the patta are forged is bereft of any
circumstances,
pointed
out
by
the
defendants to show that forgery. The Lower
Appellate Court has, therefore, held title in
favour of the plaintiffs, based on the patta,
numbering two.

24. The Lower Appellate Court has
not rested the matter there. It has been
remarked that the Trial Court has said that
the plaintiffs have not proved the patta and
the resolution of the Gaon Sabha and,
therefore, these documents do not lend any
support to the plaintiffs' claim about title.
The Lower Appellate Court about this part
of the Trial Court's findings says that it is
based on an error. The reason to conclude
to that effect is that certified copies of these
documents that are public documents, do
no require formal proof. They are read in
evidence as public documents. The Lower
Appellate Court has delved further into the
matter. It has been noted that there is no
evidence on record to show that the patta
on the basis of which the plaintiffs' claim
have been cancelled by any competent
Authority. It has been recorded by the
Lower Appellate Court that the defendants
do not say that they have filed any
application before the Collector or any
other
revenue
Authority,
seeking
cancellation of the two patta. The Lower
Appellate Court has said that cancellation
of a patta is a matter exclusively in the
9 All. Sumer & Ors. Vs. Bator & Ors.
275
domain of the Assistant Collector, First
Class, under Section 198 of the U.P. Z.A. &
L.R. Act. It is not in the jurisdiction of any
other Authority to cancel a patta, already
granted.

25. The Lower Appellate Court has
held further that a patta, if not cancelled, is
a valid title document in favour of the
allottee. The Lower Appellate Court has
held the plaintiffs to be in physical
possession. It has been held also that even
if the plaintiffs be held not in possession,
they are entitled to relief because the
defendants also have no possession over
plot no.184. This crucial finding about
possession is recorded by the Lower
Appellate Court, in the following words:

"Plaintiffs
exercise
physical
possession over the suit property since the
date of the pattas. It is stated by the
plaintiff on oath that he has his use over the
suit property. On the contrary it is clarified
by the defendant that he has all his use over
185. In view of these circumstances, the
plaintiff is the owner in possession. Even if
it is taken for granted that the plaintiff has
no possession, then also plaintiff is entitled
to relief because defendant has also no
possession over 184."

26. Heard Mr. M.C. Tiwari, learned
Counsel for the defendants (appellants) and
Mr. Ramesh Singh Kushwaha, learned
Counsel appearing on behalf of the
plaintiffs (respondents).

27. At this stage, it is of utmost
importance to point out that this Court
while hearing the matter on 28th January,
2020, asked the learned Counsel appearing
for the defendants about their right to resist
the plaintiffs' claim, since it appears that
the way the evidence figures and findings
of fact by the Lower Appellate Court go,
the defendants neither hold title to or
possession of plot no.184. Mr. M.C. Tiwari,
learned Counsel for the defendants very
fairly conceded to the position that the
defendants
neither
hold
title
to
or
possession of plot no.184, but submitted on
an alternate foundation for his right to resist
the plaintiffs' claim, that would be
considered during the course of this
judgment.
Nevertheless,
this
Court
recorded an order, which discloses the
defendants' stand at the hearing before this
Court, coming from Mr. M.C. Tiwari. The
relevant part of the order dated 28.01.2020
is extracted below:

"Learned
counsel
for
the
appellant, Sri M.C. Tiwari has taken a stand
that he has neither title or possession of
plot no. 184 but at the same time, he
submits that the plaintiff-respondent has
not been granted patta over plot no. 184.
He has trespassed into that land and
constructed
a
thatched
house.
The
defendant-appellant objects to the plaintiffrespondent raising constructions or a
boundary wall over plot no. 184. The
appellant does so in his right as a member
of the Gaon Sabha."

28.

Learned
Counsel
for
the
defendants, in accordance with his stand
above
extracted,
has
advanced
his
submissions. Mr. Tiwari has urged that
even if the Lower Appellate Court, which is
the last Court of fact, has not found for the
defendants either in title or in possession,
vis-a-vis the suit property, they are still
entitled to resist the plaintiffs' claim. This
submission proceeds on the basis that every
member of the Gaon Sabha has a right to
protect the interest of the Gaon Sabha, visa-vis its property, provided the same is not
collusive or fraudulent. About this proxy
276 INDIAN LAW REPORTS ALLAHABAD SERIES
locus of every member of the Gaon Sabha,
to act on its behalf and protect its interest,
distinct from the Corporate Body's right to
protect its own interest in the manner
prescribed
by
law
through
a
duly
authorized agent, learned Counsel for the
defendants
draws
inspiration
from
a
decision of this Court in Palakdhari vs.
Deputy
Director
of
Consolidation,
Gorakhpur and others, 1992 AWC 228
All. He has called attention of the Court to
paragraph 9 of the report in Palakdhari
(supra), where it is held:

"9. In other words, Section 11-C
of the Act is couched in a language having
very wide sweep and it is to the effect that
even though no objection has been filed on
behalf of the Gaon Sabha at the proper
stage, it is for the consolidation authorities
to decide as to whether the right of the
Gaon Sabha is involved even if no
objection was filed by it and the land shall
be directed to vest in Gaon Sabha. By
implication the 'mens' or sententia legis,
appears to be that any other person can file
objection to protect the interest of the Gaon
Sabha, provided the same is not collusive
or fraudulent or to defeat its interest."

29. Mr. Tiwari says that it is in
keeping with the spirit of Section 11-C of
the U.P. Consolidation of Holdings Act (for
short, the Act) that every member of the
Gaon Sabha has locus standi to bring
appropriate proceedings or defend them
before any Court or Authority, where
property interests of the Gaon Sabha are in
peril or likely to be jeopardized. He
exposits his submissions about the locus
standi of every member of a Gaon Sabha
by saying that the provisions of Section 11C of the Act are not to be read in a pedantic
manner, confining the sweep of an
extended right in favour of every member
of the Gaon Sabha to protect its interest by
limiting that right to proceedings, arising
out of objections under Section 9-A of the
Act, alone. He submits that the provisions
of Section 11-C are to be read in a
purposive manner, bearing in mind the
object of the Rule there and the mischief
that is sought to be curtailed by it. Read
that way, according to Mr. Tiwari, any
member of the Gaon Sabha can always act
to defend or pursue any proceeding in
Court, where interests of the Gaon Sabha
are likely to be jeopardized, or are in
imminent peril.

30. According to learned Counsel for
the defendants, the right is available,
irrespective of the nature of proceeding or
the forum. He argues, therefore, that since
he has a right to defend the interests of the
Gaon Sabha in his capacity as a member
thereof, it does not matter that on
concluded findings of fact, the defendants
do not hold title to the suit property or a
possessory title therein. He submits that he
has a locus to show that the plaintiffs do
not hold valid title to the suit property,
passed on to them through the patta,
executed in accordance with the provisions
of the U.P. Z.A. & L.R. Act (for short, the
Z.A. Act). He further submits that the
plaintiffs not being lawful title holders of
the suit property, which is a Gaon Sabha
property, the defendants have a right to
prevent the plaintiffs from consolidating
their encroachment by erecting a boundary
wall around it, or by raising further
constructions thereon. To this end, the
defendants are entitled to show to this
Court that the plaintiffs have not been
granted the patta in accordance with the
provisions of the Z.A. Act. It is submitted
that the Trial Court specifically held the
patta to be invalid, inter alia, on the ground
that the Sub-Divisional Officer had not
9 All. Sumer & Ors. Vs. Bator & Ors.
277
granted permission, envisaged under the
Z.A. Act, which alone infuses life into a
patta granted by the Land Management
Committee. He emphatically points out that
the learned District Judge has not recorded
any finding about non-establishment by the
plaintiffs
of
this
essential
condition,
relating to approval of their patta by the
Sub-Divisional Officer. The learned District
Judge, in fact, has not set aside that finding
by any reasons assigned, which the Trial
Court recorded in relation to non-approval
by
the
Sub-Divisional
Officer.
The
consequence, according to learned Counsel
for the defendants, is that the decree passed
by the Lower Appellate Court is vitiated by
a manifest error of law, inasmuch as there
is no reversal of that finding by the Trial
Court, about execution of a patta contrary
to the provisions of the Z.A. Act. He adds
to this submission of his by saying that the
absence of permission by the SubDivisional Officer to the resolution of the
Land Management Committee to grant the
twin patta in favour of the plaintiffs, is a
matter that goes to root of the plaintiffs'
title.

31. Learned Counsel appearing for the
plaintiffs, Mr. Ramesh Singh Kushwaha
has refuted the submissions advanced on
behalf of the defendants. Mr. Kushwaha
urges that the substantial question of law,
formulated at the time of admission of this
Appeal to hearing, is not at all involved. He
submits that this question about the validity
of the patta and a fortiori the validity of the
appellate judgment and decree, is not open
to challenge at all by the defendants, who
are utter strangers to the suit property. They
have no kind of right, interest or even a
privity in or to the suit property, entitling
them to question the plaintiffs' claim.
Dilating on his submissions, learned
Counsel for the plaintiffs submits that
admittedly the defendants do not claim title
to or possession over the suit property.
They found their right to object on their
status as members of the Gaon Sabha. He
submits that the proposition is too well
settled to brook doubt that individual
members of the Gaon Sabha, cannot take
up cudgels on its behalf, unless authorized
by that Body Corporate in the manner
prescribed. Reliance is placed in support of
the said contention on a decision of this
Court in Sita Ram vs. Deputy Director of
Consolidation and others, 1981 SCC
OnLine All 797. The question in the said
case was whether a private person, a
member of the Gaon Sabha, could file
objections under Section 9-A(2) of the Act,
on behalf of the Gaon Sabha, seeking to
expunge the name of a person recorded as a
bhumidhar, alleging some illegality about
it, without a resolution passed by the Gaon
Sabha in favour of that private person
under Section 128 of the Gaon Sabha
Manual. He has drawn the attention of this
Court to paragraphs 10, 11, 12, 13, 14, 15,
16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27
of the report in Sita Ram (supra):

"10. It is, thus, to be seen whether
the objection filed by the opposite party
No. 3 Sheo Prasad on behalf of the Gaon
Sabha was a valid and competent objection
under section 9A(2) of the Act and the
name of the petitioner, who was recorded
as Bhumidhar in the basic year Khatauni
could be expunged. In this connection
reference to para 128 of the Gaon Sabha
Manual would be relevant as it prescribes
the manner for the commencement of any
suit or proceedings or for filing defence
therein. In Gram Samaj v. Deputy Director
of Consolidation, (1969 Rev Dec 356)
Hon'ble D.S. Mathur, J. (as he then was)
considering
the
aforesaid
provision
observed that:
278 INDIAN LAW REPORTS ALLAHABAD SERIES

"This paragraph (128 of the Gaon
Sabha Manual) having been framed under
the rule making power conferred on the
State Government shall have the force of
law."

11.
Further
considering
the
question whether the said provision is
mandatory or merely directory, it was held
in the aforesaid case that:

"When
paragraph
128
is
complete, reasonable and equitable, and
lays down how the Land Management
Committee can sue or defend, it must be
held to be mandatory."

12. Regarding action to be taken
on behalf of the Gaon Sabha in emergent
matters, the Hon'ble Judge observed that--

"Paragraph 128 is also a complete
provision. The State realized that occasions
may arise where it may become necessary
for the Chairman to take action before the
Land Management Committee can meet to
discuss the matter. Consequently it was
provided in paragraph 128 that in urgent
cases the Chairman can take action on his
own and seek ratification of the Land
Management Committee by including it in
the agenda of the next ensuing meeting.
The underlying purpose evidently is that
eventually the decision of the Land
Management Committee shall prevail. If
the Land Management Committee does not
approve of the action taken, such action
shall become ineffective and a suit, if
already instituted, shall fail."

13. The Board of Revenue also in
two decisions, Kamla Devi v.