Shyam Sundar Chaudhary vs Gaon Sabha Sonbarsa

Hon''ble Satyendra Singh Chauhan, J.—Heard learned counsel for the parties.

The appellant feeling aggrieved with the judgment and orders dated 8.11.1982 and 9.8.1983 has preferred this appeal.

Counsel for the appellant has pressed this second appeal on the substantial question of law that abadi land, which was recorded in the first settlement shall be deemed to have settled with the appellant u/s 9 of the U.P.Z.A.& L.R. Act (for short the ''Act'').

The facts, in brief, are that a Suit for permanent injunction was filed by the appellant (since deceased) against the Gram Sabha and two private parties. The Suit was dismissed, against which an appeal was filed. In the appeal the partial claim of the appellant was admitted and the temple (Shivala), which was constructed by the ancestors of the appellant was held to belong to the appellant. But so far bheeta, and tank, which were existing on the spot no finding has been recorded and it has only been observed that the appellant will continue to use that as it was being used by him. Hence this appeal.

Submission of learned counsel for the appellant is that the temple (Shivala) along the tank were constructed by the ancestors of the appellant and it was a private tank as well as abadi of the appellant in the first settlement and the said fact has been admitted by the then Pradhan as well, who appeared in the witness box. Therefore, no other view was possible except to hold that the land along with the Temple and the tank belong to the appellant, which was the private property of the appellant.

Plot No. 14 happens to be the original holding of the appellant, which was recorded as abadi in the first settlement. The said plot was later on bifurcated into three plots, namely, 56, 57 and 58 in the second settlement and 62, 63 and 64 in the third settlement and at present they are 16, 17 and 18. The identity of the land remained the same and it has not been found that there was any dispute in regard to the identity of the land.

The question, which falls for consideration is as to what will be the status of the appellant in respect of the land, which was recorded as abadi in the first settlement and the evidence on record goes to indicate that tank with the temple (Shivala) was constructed by the ancestors of the appellant in their private capacity and it was being maintained as such without any interference by anybody. It has also to be noted that yearly fare was also being held on the said land. The vesting of the land under Sections 117 and 132 of the Act can take place in respect of the properties, which are defined therein. In the present case, it has to be noted that the property in question was the abadi and, therefore, abadi land shall be deemed to have settled u/s 9 of the Act with the owner, who was occupying the same apart from the category of properties defined under Sections 117 and 132 of the Act. The present property, which happens to be the private land of the appellant on which construction has been made of temple (Shivala) and the tank goes to indicate that it shall be deemed to have settled with the appellant and the evidence in this regard is also not lacking that the said temple along with the tank was constructed by the ancestors of the appellant.

The appellate court having accepted the claim of the appellant only in respect of the temple and denying the claim of the appellant in respect of the land, which was attached with the temple, which happens to be the abadi committed serious illegality. Once it is an abadi land and development has been made by the owner, then it shall be deemed to have settled with the appellant. Therefore, the Court has no option but to hold that the appellant, prima facie, appears to have title in respect of the land in question.

The appeal is accordingly allowed and the judgment and orders dated 8.11.1982 and 9.8.1983 passed by the courts below are hereby set aside. The Suit filed by the appellant is decreed and the respondents are permanently restrained from interfering in respect of the property in question.