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Judgment
Sharad Kumar Sharma, J
A very interesting question of fact and law which emerges for consideration before this Court in the instant Second Appeal, as it has been sought to be pressed by Mr. M.C. Pandey, the learned Additional Advocate General appearing on behalf of the defendant /appellant i.e. the Divisional Forest Officer, Narendra Nagar, District Tehri Garhwal This Court, before going into the intricacies of the present Second Appeal and the factual aspects, which has already been argued yesterday by the counsel for the parties, in continuation today, before start of the dictation of the judgement in the Second Appeal in question, few additional points have been sought to be pressed by the learned Additional Advocate General for the defendant/appellant by drawing his implications being supported by the provisions contained under the Forest Act, particularly a reference has been made by the learned Additional Advocate General to the effect that since the Forest Act of 1927, is a self contained Act, it will have a precedence over any other statutory provisions of law for the purposes of determination of the rights in relation to the land as to whether it is covered by the land as contained and defined under Chapter 2 of the Forest Act of 1927.
To answer his argument, what he intends to submit is that another percept of the Act that since the Forest Act being a consolidated Act dealing with all situations particularly a reference has been made to Section 7 and Section 8 of the Forest Act, 1927, wherein all the powers have been vested with the Forest Settlement Officer for the purposes of conducting of an enquiry, he may exercise all the powers as given thereunder i.e. the power to enter into any land or to survey or to demarcate and make a map for the same. For the said purpose exercising powers under Section 8 of the act the Forest Settlement Officer exercises all the powers of the Civil Court under sub clause (b) of Section 8 of the Act. Sections 7 and 8 of the Indian Forest Act, 1927 read as under:-
"7. Inquiry by Forest Settlement-officer.-The Forest Settlement-officer shall take down in writing all statements made under section 6, and shall at some convenient place inquire into all claims duly preferred under that section, and the existence of any rights mentioned in section 4 or section 5 and not claimed under section 6 so far as the same may be ascertainable from the records of Government and the evidence of any persons likely to be acquainted with the same.
Powers of Forest Settlement-officers.-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 suits."
This Court cannot be oblivious of the fact that the implications of Section 8 as sought to be portrayed in his argument by the learned Additional Advocate General, has had to be read in correlation to the purposes for which it has been legislated and particularly in the instant case the power to venture into any land to survey or to demarcate is a power which has been vested with the Settlement Officer, which has had to be read along with the provisions contained under Section 44 which also constitutes to be the part of the Chapter II where the process of declaration of a land as a reserved forest is being intended to be undertaken by the State Government. Section 44 of the Indian Forest Act, 1927 reads as under:-
"44. All persons bound to aid in case of accidents at depot.-In case of any accident or emergency involving danger to any property at any such depot, every person employed at such depot, whether by the Government or by any private person, shall render assistance to any Forest-officer or Police-officer demanding his aid in averting such danger or securing such property from damage or loss.
We will have to revert back once again further to Section 3 of the Act, which too constitutes to be the part of Chapter II which intends and gives the power to the State Government to constitute any forest land or waste land which is a property of the Government or over which the Government has the propriety rights as to whole or any part of the forest land of which the Government is entitled to be declared as a reserved forest. While interpreting the impact of Section 3, we will have to refer to the U.P. Amendment as made under Section 3 of the Act, which will apply to the State of Uttarakhand in view of provisions contained under Section 86 of the Reorganization Act. Section 3, so far it has been made applicable in the State of Uttar Pradesh and now in the State of Uttarakhand under Section 86 of the Reorganisation Act, it excludes the applicability of the provisions of the Act on the "holding". The Holding, has not been defined under the Indian Forest Act, itself except under the explanation clause where the Holding defined herein would mean a Holding which has been given the meaning as assigned to it under the U.P. Tenancy Act and the expression would include the village Abadi and the meaning of the village Abadi as defined under the U.P. Village Abadi Act, 1947. Section 3 of the Indian Forest Act, 1927 as made applicable in the State of Uttarakhand is quoted hereunder:-
"3. Power to reserve forests.-The 1[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.
State Amendment
Uttar Pradesh.-For section 3, substitute the following section namely:- "3. Power to reserve forest.-The State Government may constitute any forest land or waste land or any other land (not being land for the time being comprised in any holding or grove or in any village abadi) 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 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 U.P. Tenancy Act, 1939, and the expression 'village abadi' shall have the meaning assigned to it in the U.P. Village Abadi Act, 1947." [Vide Uttar Pradesh Act 23 of 1965, sec. 2 (w.e.f. 23-11-1965).]
Under the U.P. Tenancy Act, 1939 the term "Holding" has been defined under sub Section (7) of Section 3 of the Act, which reads as under:
"(7) "holding" means a parcel or parcels of land held under one lease, engagement or grant, or in the absence of such lease, engagement or grant under one tenure and in the case of a thekedar includes the theka area;"
It means that it is a part or parcel of land held by a tenure holder or on lease or an engagement or as a grant and includes the interest of a Thekedar, which has been vested in the holding given by the tenure holder. Sub Section (7) of Section 3 of U.P. Tenancy Act, which has been attracted by the explanation contained to the amendment made in Section 3 of the UP Forest Act, it would definitely be inferred that the holding as used under Section 3 of the Act would always relate to a parcels of land which are being exclusively utilised by the tenants thereof or the tenure holder and which is being exclusively utilised for an agriculture purposes. That is why Section 3 of the Indian Forest Act and it excludes the applicability of the declaration of the land as to be the reserve forest and the holding or a grove is excluded from its ambit.
In order to elucidate the exact meaning as to what the term "holding" would mean under the revenue law, it would not be inappropriate also to deal with the definition of holding as defined under Section 3 of sub Section 4(c) of the U.P. Consolidation of Holdings Act, 1953. The holding under Section 3 of sub Section 4(c) of the U.P. Consolidation of Holdings Act, 1953, it means a parcel or parcels of land held by tenure holders singly or jointly with other tenure holders. In order to appreciate the definition of holding given under the Act, the definition of the term tenure holder is also required to be considered, which as per sub Section (11) of Section 3 of the Act means a bhumidhar with transferable rights for bhumidhar with non transferable rights. It also includes within its ambit the asami, government lessee, grantee, co-operative farming societies etc.
"[(4C) 'Holding' means a parcel or parcels of land held under one tenure by a tenure-holder singly or jointly with other tenure-holders];
[(11) 'Tenure-holder' means a] [bhumidhar with transferable rights or bhumidhar with non-transferable right] and includes -
(a) an asami,
(b) a Government lessee or Government grantee, or
(c) a co-operative farming society satisfying such conditions as may be prescribed;
In view of the definition of the tenure holder, if it is read with along with the implications of the exclusion of the term "holding" from Section 3 of the Indian Forest Act it would mean that for the purposes of declaration to be made under Section 4 of the Forest Act of 1927 of a land as reserve forest, the Holding as defined under the Tenancy Act cannot be taken into the purview of the powers of the settlement officer as it has been prescribed by Section 8 of the Forest Act of 1927.
In the judicial and revenue glossary as compiled by Mr H.S Wilson of the University of Oxford, he has dealt with the terminology of holding in relation to a right of cultivation which is vested with an individual and that is why in his glossary, he has utilised the word as 'कास्तकार' which means a holder of a land who has a right to cultivate his holding for agricultural purpose. In such a circumstances, the argument, as extended by the learned Additional Advocate General for the appellant that the provisions of the Land Revenue Act or the provisions contained under U.P.Z.A. & L.R. Act will not have an applicability over the land in question is unfounded as under Section 3 of the Indian Forest Act, 1927 itself the holding which will always be read along with the definition of the tenure holder given under the Consolidation of Holdings Act and would excluded from the purview of the applicability of the Forest Act of 1927 from the land which is defined, regulated and managed under the Revenue laws.
Reverting back to the merits of the matter. The present Second Appeal has been preferred by the defendant wherein he has questioned the judgement and decree dated 19th May 2018 as rendered by the Additional District Judge, Tehri Garhwal in the Appeal No. 46 of 2014 Divisional Forest Officer and others versus Rajendra Prasad and others, whereby the Appeal preferred by the appellant was dismissed and as a consequence thereto, it has resulted into an affirmation of the decree dated 19th June 2014 as rendered by the learned trial Court i.e. the Court of Civil Judge (Junior Division), Narendra Nagar, Tehri Garhwal in Original Suit No. 13 of 2011, Rajendra Prasad and others versus Division Forest Officer and others which had decreed the suit of the plaintiff/respondent and thereby by virtue of the impugned judgements has injuncted the appellant of the Second Appeal from interfering over the property in dispute in any manner whatsoever.
The property in dispute which was the subject matter of consideration before both the Courts below was the land lying in khata No. 168, Plot No. 4 ka, having an area of 0.7350 hectares and khata No. 262, Plot No. 4 kha having an area of 1.230 hectares, more particularly, as defined in the plaint map it is shown to be a land which is surrounded by in the East : Khasra No. 3, in the West : the forest land, in the North : Khasra No. 1 and in the South: Khasra No. 520 and 528 of village Dhalwala, Patti Dhamanshu.
Admittedly, according to revenue records, which have been placed by the plaintiff/respondent on record in support of his contention before the Courts below was that over the land in dispute which has been referred above when certain controversies arose as to whether the land in question falls to be within the purview and control of the Settlement Officer or it's a Revenue Land, the plaintiff has initiated the proceedings for getting the land demarcated by invoking Section 41 of the U.P. Land Revenue Act, 1901, by moving an application to the said effect before the Assistant Collector, First Class, Narendra Nagar, District Tehri Garhwal.
The Assistant Collector, First Class, Narendra Nagar, District Tehri Garhwal, after conducting an enquiry through the Revenue Inspector and demarcating the disputed land and in the presence of the Van Daroga, Forest Ranger and other forest officers had conducted the measurement under Section 41 on 21st April 2011, and thereafter he has submitted the report and had found that the land in question is covered by Khasra No. 4 ka and Khasra No. 4 kha, more particularly, described in the plaint map by red figure demarcated by the appellants A, B, C and D is a Revenue Land and would not fall to be a land which would be under the control of the Settlement Officer as provided under the Forest Act of 1927.
On the aforesaid basis, the plaintiff's case was that once after the demarcation, having been concluded under Section 41 of Land Revenue Act, 1901 and which has been held out that the land was lying outside the domain of forest land, and in fact it was held that it is a land belonging to the tenure holder who has been recorded as Shreni 1 ka, he holds a bhumidhari rights over the land in question as classified under Section 130 of U.P.Z.A. & L.R. Act, 1950 and hence no interference could have been made by the appellant herein over the land in question. On issuance of notices, the defendant/appellant herein has put in appearance and filed their written statement Paper No. 32 ka, which was supported by an affidavit Paper No. 23 ga and in order to substantiate their case, they have submitted that the land in question is a land which exclusively belongs to the Forest Department and it forms to be the part and parcel of the Notification issued on 14th October 1985, because it is said to have been notified by the Government on 23rd December 1964 as reserve forest and according to the argument raised before the Court below, it was contended by the defendant that the land in questions will fall to be within the list of lands covered under the Forest Act in Appendix ka appended to the Notification.
It was argued by the learned counsel for the appellant before the Court below that in order to exercise control over the management of the affairs of the land falling under the Notification issued under Section 4 of the Act as referred hereinabove, it would be the Settlement Officer, who would have the exclusive power under Section 20 of the Act to ensure that there is no wrongful interference by an intruder over the land which according to them fell within the Rishikesh Forest Division of Shivpuri range.
Based on the aforesaid arguments, as extended by the learned counsel for the parties, the learned trial Court had framed the following issues:-
"1. क्या वादीगण वादग्रस्त भूमि के मालिक तथा काबिज हैं यदि हां तो प्रभाव?
क्या वादग्रस्त भूमि आरक्षित वन भूमि है? यदि हां तो प्रभाव?
क्या सिविल न्यायालय को इस वाद के श्रवण का अधिकार प्राप्त है? यदि हां तो प्रभाव।
क्या वादी अनुतोष का अधिकारी है?''
Precisely, for the purposes of determining the controversy of the suit where a decree of permanent injunction is sought for two important factors which played a very vital role in the grant or denial of the decree of injunction is the establishment of the title over the land and establishment of the factum of possession. In relation thereto, the plaintiff, in support of his contention had produced himself in the witness box as PW1, he produce Mr. Hari Swarup as PW2 and Mr. Mahavir Prasad as PW3. Apart from it, he had also filed a documentary evidence which included khatoni Paper No. 11 ga/1211 ga /2, the copy of the demarcation order report Paper No. 14 ga and various other documents, as issued by the competent revenue authorities to show that the nature of the land still continues to be recorded as a holding lying in Shreni kha, over which the plaintiff/respondent can exercise the powers to put used of the land in accordance with the purposes as specified under sub Section (14) of Section 3 of the U.P.Z.A. & L.R. Act.
(14) "Land" [except in Sections 109, 143 and 144 and Chapter VII] means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming;
To substantiate their case the defendant/appellant before the learned trial Court too had led both documentary, as well as, oral evidences and to support their contentions, they have produced DW1 Om Prakash, DW2 Akhilesh Kumar, DW3 Sharan Pal and DW4 Rakesh Chandra, who were examined before the Court below. He had also placed reliance on a Notification as has already been referred above notifying the Reserve Forest and more particularly, the judgement, as rendered by the Assistant Collector, First Class, Narendra Nagar, Tehri Garhwal, while exercising powers under Section 41 and particularly, a reference has been made that as against the order passed under Section 41 the defendant/appellant has already preferred an Appeal under Section 210 of U.P. Land Revenue Act, 1901 and the same is pending consideration.
When this argument was raised yesterday, pertaining to the pendency of Appeal against an order passed under Section 41 of the Land Revenue Act, the learned counsel for the plaintiff/respondent, forthwith denied the said argument on the ground that the appeal thus preferred by the defendant/appellant before the Appellate Court under Section 210 of the U.P. Land Revenue Act, 1901 has already stands dismissed as abated and the said abatement of the appeal has not yet been set aside, meaning thereby, in fact, as against judgement under Section 41, the same has attained finality, and the land in dispute has been held to be the holding.
If that be so, the case, it will consequently result into the fact that as far as the demarcation process, which has been recognised under the Land Revenue Law stands affirmed due to the dismissal of the Revenue Appeal No. 3 of 2010-2011, Divisional Forest Officer versus Rajendra Prasad. It is also not disputed and rather it has been supported by supplying the certified supply of the order sheet, passed by the Additional Commissioner, Garhwal Division as issued on 5th September 2018, which fortifies the fact about the dismissal of the Appeal preferred by the defendant/appellant before the Additional Commissioner under Section 210 of the Land Revenue Act.
The learned trial Court had initially rendered a decision in Case No. 13 of 2011, Rajendra Prasad and others v. Divisional Forest Officer and another vide its judgement dated 14th June 2014, as against which two civil appeals were filed before the appellate court which was decided by the judgement dated 21st February 2015, whereby this Civil Appeal No. 5 of 2014 as preferred by Rajendra Prasad versus Division Forest Officer was dismissed and the connected Civil Appeal No. 6 of 2014 as preferred by Division Forest Officer was allowed by the judgement dated 19th June 2016 and as a consequence thereto, the matter was referred back as was remanded for a fresh decision.
After framing of an issue and getting the findings recorded to the effect as to who in fact was in possession over the property in question. As against the order of remand, the plaintiff/respondent had approached before this Court by preferring an Appeal from Order, being Appeal from Order No. 221 of 2015, Rajendra Prasad and others versus Divisional Forest Officer and others. The same was decided by the judgement dated 21st February 2015 directing the learned trial Court to frame an additional issue. Consequently, after the remand, the learned trial Court has framed issue No. 5 to the following effect:-
"वाद बिन्दु संख्या -5 इस आशय का विरचित किया गया कि- क्या वादग्रस्त सम्पत्ति वादीगण के कब्जे में है। यदि हों तो प्रभाव?''
After the revival of the proceedings, after the order of remand dated 21.02.2015, the Civil Court had considered the evidences which have been brought on record and after considering the impact of the Notification issued under Section 4 which was issued under the Indian Forest Act which was relied by the defendant/appellant had concluded that so far as the Khasra No. 4 ka and khasra No. 4 kha are concerned, the same never constituted to be the part of the Notification and the Appendix annexed thereto as issued under Section 4 of the Indian Forest Act as the said land was not included in the list annexed with it, and in accordance with the findings which has been recorded by the revenue authorities in the Order/ Judgement dated 15th April 2001, on the effect of the demarcation proceedings which was held in the presence of the officials it was found that it stood recorded with plaintiff/respondent under Shreni 1 ka land in favour of the plaintiff and it was further recorded that they continued to occupy the property in dispute, and are in effective possession of the same.
The learned trial Court after considering the documentary evidence and oral evidences had ultimately decreed the suit holding thereof that the plaintiff happens to be the exclusive owner of khata No.168 and 262, so far it relates to Plot No. 4 ka and 4 kha and thereby had granted a decree of permanent injunction as against the plaintiff/ respondent from interfering over the property in questions by the judgement and decree dated 19th June 2014. This judgement was appealed by the defendants/appellants by invoking Section 96 of the Act. The appellate Court after considering the issue No. 5 as formulated after the remand had recorded a finding that as per the revenue records pertaining to the fasli year 1417 to 1422, the land in dispute, it has been recorded as an agriculture land and furthermore the appellate Court has also taken into consideration the fact that the defendant/appellant had never denied that the plaintiff/respondent happened to be the bhumidhar recorded in Shreni 1 ka nor in the pleadings, they have ever raised any dispute that the land in question constituted to be the part of the Notification as issued under Section 4 of the Act.
Another important aspect, which has been considered by the learned Appellate Court in Appeal No. 6 of 2014, Divisional Forest Officer and others versus Rajendra Prasad that on comparing the map as annexed with the plaint, along with the Notification dated 14th October 1985 and that of 23rd December 1964 in the appendix annexed to the said Notification issued under the Forest Act 1927, there is no such proposal ever extended or accepted by any of the competent Forest Officer to include the land in dispute in the Appendix A after constituting it as to be the part of the Notification under Section 4 of the Forest Act. Meaning thereby, as per the evidences which has been brought on record by the defendant/appellant themselves in the light of the Notification as referred above at no point of time the Khasra No. 4 ka and khasra No. 4 kha was ever included in the Notification vesting the land under the management and control of the Settlement Officer, Forest.
The learned counsel for the appellant has placed reliance on a judgement as reported in AIR 1996 Supreme Court, 2432, State of Uttar Pradesh versus Deputy Director Consolidation. The said judgement as rendered by the Hon'ble Apex Court was dealing with the status of a Sirdar and his tenure holder rights over the State land who under the revenue law has never been held as to be the proprietor of the land, because in relation to the land under the possession of the Sirdar its' propriety rights are always vested with the State Government and hence such a land which is a sirdari land, it could always be made as subject matter of Section 4 Notification to be issued under the Forest Act of 1927 but not the land falling as bhumidhari land in shreni 1 ka.
The learned counsel for the appellant had particularly referred to para 11 of the judgement wherein the interference was made by the Hon'ble Apex Court in relation to those lands which fell within the Notification under Section 5 of the Consolidation of Holdings Act and the consolidation proceedings were held contrary to the interest of the State while considering the sirdari rights of the occupants of the land and they were not the proprietors, as it has been observed in para 7 of the said judgement. Para Nos. 7 and 11 of the said judgement read as under:-
"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.
We, therefore, allow the appeals, set aside the impugned judgment of the High Court and also the orders of the Consolidation Authorities to the extent they are against the interest of the State. We hold that the land in dispute was rightly declared and notified as a reserve forest and the respondents have no rights or claim or any interest in the said land. No costs."
This judgement on which the reliance has been placed by the learned counsel for the appellant would not apply in the instant case for the reason being that under the provisions of U.P.Z.A. & L.R. Act, the status of the tenure holders as defined under Section 129 and in particular, the provisions which are contained under Section 130 of the Act, it is altogether a different and a distinct right and status of tenure holder of bhumidhari rights, which is exclusively created in favour of the tenure holder, as defined under Section 129 of the Act. Since the judgement in question related to the Sirdari rights, it was altogether on different premise and would not be applicable so far as the land in question is concerned, over which as per the orders of the demarcation held under Section 41 of Land Revenue Act also, the plaintiff/respondent had been held to be holding a bhumidhari rights over the land in question.
There is another important aspect, which has to be taken into consideration is in the light of the statement recorded by the witnesses adduced by the defendant/appellant particularly the one who has appeared as DW8, Kamal Singh Panwar, who in his statement while placing reliance on the khatauni paper No. 75 ga of the land in dispute has admitted the fact that Khasra No. 4 is not recorded in the name of the department. He has further recorded the fact that the Notification, which has been placed on record, it does not anywhere include within it Khasra No. 4 ka and khasra No. 4 kha Dhalwala to have been ever declared as a reserved forest or included in the Notification. Consequently, the Appellate Court too, by the judgement dated 19th May 2018 had affirmed the decree passed by the learned trial Court on 9th June 2014, holding that the plaintiff exercises the exclusive bhumidhari rights over the land in question and since the land which has been claimed to be falling under the Notification issued by the State Government under Section 4 of the Act has not been established and even the oral testimony of their own witnesses have concluded that it was never constituted to be the part of the Notification, declaring it as to be reserved forest and particularly in view of the revenue entries, as well as, the judgement rendered under Section 41 of the Act, the plaintiff had been determined to be an exclusive owner of the property in possession and hence had rightly dismissed the Appeal, affirming the judgement rendered by the learned trial Court.
While concluding the judgement, the learned counsel for the plaintiff/respondent had pointed out that the Appeal No. 5 of 2014, wherein a part of the finding recorded by the learned trial Court pertaining to the title of the plaintiff/respondent which was made subject matter of a decision to be rendered in a regular proceedings has been set aside and Appeal No. 5 of 2014 has been allowed. This judgement rendered in appeal has attained finality because no Second Appeal has been preferred against the same by the defendant/appellant.
Hence, this Court concludes that as far as the finding on title and possession is concerned, that has been concurrently held in favour of the plaintiff/respondent after the appraisal of the evidence on record which does not call for any interference by this Court while exercising its jurisdiction under Section 100 of the Code of Civil Procedure.
Hence, the Second Appeal in question is concluded by concurrent finding of facts, which does not involve any substantial question of law to be answered by this Court. Hence, the Second Appeal is dismissed. However, there would be no order as to cost.