Dharam Singh (D) Thr. Lrs. & Ors. vs Prem Singh (D) Thr. Lrs.

Suit for permanent injunction – On the basis of Sirdari rights in favour of their predecessor-in-interest in respect of suit property (i.e. Plot No. 719) – Case of defendants was that predecessor-ininterest of the plaintiff being the caretaker of the property of original owner was in possession of her entire property including the suit property after the death of the original owner – Entire property including the suit property was escheated to the State as the original owner died leaving no heir – Collector ordered for release of the property of the original owner from the possession of predecessorin-interest of the plaintiff – However, he was allowed to remain in possession of the land to the extent of 4 Nali – Predecessor-ininterest handed over the possession of the entire land of original owner except 4 Nali 1 Muthi to the State – Defendants were give the suit property in exchange of their property which was acquired by the State – During the record operations, predecessor-in-interest of the property was shown in possession of the plots which was escheated to the State – Assistant Record Officer passed an order directing deletion of the name of predecessor-in-interest from the record on the basis of a report that the name was recorded surreptitiously by the record officials – Despite that the name of predecessor-in-interest continued in the record as occupant of the land – Pursuant to Zamindari Abolition Act, Patwari made entry in the Khata/Khatauni giving status of Asami and right of Sirdar to the predecessor-in-interest of plaintiff – Trial Court decreed the suit – High Court in appeal, dismissed the suit – On appeal, held: In view of order of the Assistant Record Officer directing deletion of the name of the predecessor-in-interest of the plaintiff as occupant of the land, he could not have been held to be recorded occupant within meaning of s. 10(e) of Zamindari Abolition Act – Hence, Asami rights could not have been obtained and consequently he could not have been treated as Sirdar – Patwari was also not a competent authority to make such entry in Khata Khatauni – It is proved that the land of the original owner was escheated to the State; the predecessor-in-interest of the plaintiff had released the land from his possession and that the suit land was given by the State to the defendants in exchange – Hence, claim of plaintiff by virtue of entry made by Patwari cannot be accepted – Suit is liable to be dismissed – Kumaon and Uttarakhand Zamindari Abolition and Land Reforms Act, 1960 – s. 10 (e).

Dismissing the appeal, the Court

HELD:1. Asami/Sirdari right on Plot No.719 in the suit was claimed on the ground that the father of the appellant (predecessor-in-interest) was recorded in possession. Plot No.719 along with other plots was recorded in the name of the original owner, last tenure holder. The original owner having died without leaving any legal heirs, her land escheated to State. The Collector has also passed an order for taking possession of land of the original owner from the possession of the father of the appellant except leaving four Nali one Muthi land in his possession. A document dated 14.05.1956 was recorded in this respect which was signed by the father of appellant. Plot No.719 was not included in four Nali which was left with the father of appellant. [Para 6][22C-D]

2. The right of the father of the appellant was sought to be claimed in accordance with Section 10 sub-clause (e) of the Kumaon and Uttarakhand Zamindari Abolition and Land Reforms Act, 1960. For acquiring right under Section 10 sub-clause (e) it has to be established that person claiming Asami right was recorded as occupant of land. The High Court in its judgment noticed that the record operation in the village in question was undertaken between the period from 1952 to 1963. In the record operation it was noticed that the name of the father of the appellant was recorded in possession on some plots including Plot No.719. A report was submitted that the name of the father of the appellant had been recorded surreptitiously by the Record Operation Officials. The report further mentioned that possession of land has already been taken over and handed over to the Malguzar. [Paras 7, 8][22-E; 23-B-D]

3. The statute confers Asami right to a person recorded as occupant in the last revision of records which were undertaken between 1952 to 1962. In the said revision order was passed deleting the name of the father of the appellant from the record which is a fact not disputed by any of the parties. When in a record, operation order is passed for deleting the name of the father of the appellant from possession over the land in question, he cannot be held to be recorded occupant within the meaning of Section 10(e) of 1960 Act. [Para 11][24-E-F]

4. The order of Assistant Record Officer directing the deletion of the name of the father of the appellant was passed on the report of Record Operation Officials in which report it was mentioned that the name of the father of the appellant has been surreptitiously recorded. The report was accepted and the direction was issued to delete the name. Thus, Asami right could not have been obtained by the father of the appellant. [Para 13][29-C]

5. As per the provisions of the Act, 1960 those persons who had acquired Asami right under the Act were treated to be Sirdar w.e.f. 1st January, 1974. The father of the appellant being not recorded occupant, when could not acquire Asami right, no question arises of he getting Sirdari right. More so entry made by Patwari was not consequent to any order passed by any competent officer. Patwari (Lekhpal) was not authorised to enter the name of any person or confer any right. Lekhpal (Patwari) was not entitled to make entry in Khata Khatauni of 1379-1385. No right was acquired on the strength of the aforesaid entry. [Para 15][25-F-H]

6. Land of various persons was acquired for construction of Government buildings in which one of the persons whose land was acquired was the predecessor-in-interest of respondent. The Government utilised the land of the original owner which was escheated to State by giving the said land in exchange to those persons whose land was acquired. The order pertaining to exchange is dated 05.09.1960 which was brought on the record as Annexure-P4. In the said order it was noticed that father of the appellant was in possession of Plot No.719. Plot No.719 was given in exchange to person whose land was acquired by the State. The High Court has also relied on the document paper No.23 Ga/2 which was written on 14.05.1956 in which it is indicated that father of appellant has handed over the possession of the entire land of the original owner except four Nali. [Paras 16, 17][26-AD]

7. Father of appellant himself clearly stated that the land of the original owner which is escheated to the State will be released from his possession and he shall not interfere and he shall be in possession of only four Nali which has been given to him. Plot No.719 was not given to him and was not included in the said four Nali land which was left with him. This makes it clear that he could not claim any right on Plot No.719 belonging to the original owner which was escheated to the State and was given in exchange to predecessor-in-interest of the defendant on 05.09.1960. The claim of the plaintiff that by virtue of entry made by Patwari, he became Sirdar, cannot be accepted. [Para 18][26-F-H] Vishwa Vijay Bharati v. Fakhrul Hassan and others (1976) 3 SCC 642 : [1976] Suppl. SCR 519 – relied on.