Full Judgment Text
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CASE NO.:
Appeal (civil) 2462-2463 of 2002
PETITIONER:
RAJESHWAR DAYAL & ORS.
Vs.
RESPONDENT:
AVNEESH KUMAR AVASTHI & ORS.
DATE OF JUDGMENT: 04/04/2002
BENCH:
D.P. Mohapatra & Brijesh Kumar
JUDGMENT:
D.P.MOHAPATRA,J.
Leave granted.
These appeals filed by heirs and legal representatives
of the erstwhile lessee are directed against the judgment
dated 9.9.1999 of the High Court of Judicature at
Allahabad dismissing the second appeal nos. 425/1960
and 1649/1962. The dispute raised in both the appeals
relates to the property under old plot No.5199 which
corresponds to new plot no.4635-A with an area of 1 bigha
2 biswas situate in the city of Meerut which forms a part
of the estate of a charitable trust, the Lala Nanak Chand
Trust. Bateshwar Dayal was one of the trustees of the said
trust. A registered lease deed was executed by the trust in
his favour for a period of 30 years w.e.f. 1.6.1926 on
annual rental of Rupees12 and 8 annas. After expiry of the
period of lease on 1.7.1956 the trust instituted the suit,
Original Suit No.690 of 1956, against Bateswar Dayal and
others seeking recovery of possession of the property. The
trial court dismissed the suit. The trust filed an appeal,
Civil Appeal No.914 of 1958, which was allowed and the
suit for eviction was decreed. The lower appellate court
while decreeing the suit observed that if the defendants so
like they may file a suit for specific performance of contract
to enforce the renewal clause of the registered agreement
between the trust and the defendants. Taking clue from
the observation of the lower appellate court the appellants
who are the heirs and legal representatives of Bateshwar
Dayal who died on 6.3.1958, instituted a suit,
O.S.No.34/60 for specific performance of contract. The
trust contested the suit. The trial court dismissed the suit
vide the judgment dated 30.10.1961. The appeal filed by
the plaintiff was also dismissed.
Two second appeals were filed in the High Court
challenging the judgments of the first appellate courts in
the two suits. Second appeal No.425/60 arose from
Original Suit No.690/56; the second appeal no.1649/62
arose out of original suit No.34/60. In second appeal
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No.425/60 the High Court formulated the following
substantial questions of law for decision :
"1. If the Civil Court has jurisdiction to
try the suit
2. If the plaintiffs got a decree for
eviction in view of renewable clause
in the agreement ?"
In second appeal No.1649 of 1962 a substantial
question of law settled for decision was :
"If the time consumed in pursuing the
suit No.690 of 1956 and Civil Appeal
No.914 of 1958 should be given in aid
to the time of limitation for filing a suit
for specific performance of contract in
the present case ?."
During pendency of second appeal No.425 of 1960
the Uttar Pradesh Urban Areas Zamindari Abolition and
Land Reforms Act (UP Act No.IX of 1957) (hereinafter
referred to as ’the Act’) came into force in the city of
Meerut. The land in dispute was declared as agricultural
area and a notification under Section 8 of the Act was
issued by the Government of Uttar Pradesh. The trust filed
an appeal in the High Court praying for quashing of the
notification issued under section 8 of the Act. The
appellants in the second appeal which was pending before
the High Court filed application for abating the appeals
since the area was declared agricultural area under section
8 of the Act. The High Court allowed the application and
the suits and the appeals arising therefrom were abated.
Against the order of abatement the trust filed special leave
petition before this Court which gave rise to civil appeal
Nos.1402/69 and 1403/69 (wrongly stated as 1492 and
1493 ) and also a writ petition bearing No.185/69 (wrongly
stated as 105/69) for quashing the Government
Notification dated 16.6.1964 under Section 8 of the Act. A
Constitution Bench of this Court by the judgment reported
in 1973 (2) SCC 238 (S.P.Watel & Ors. vs.State of U.P.)
allowed the writ petition and quashed the Notification
dated 16.7.1964 under Section 8 of the Act in respect of
the lease in dispute and issued certain directions to the
State Government. The operative portion of the judgment
reads as follow:
"In the result, we allow the writ petition
and quash the Government notification
under Section 8 of the Act, dated June
16, 1964, with respect to the land in
dispute. We direct the Government to
proceed afresh with respect to the land in
dispute in accordance with Sections 3,4,5
and 6 of the Act. If it is found in the
course of enquiry under Sections 3,4 and
5 that the land in dispute was an
"agricultural area" and was being used for
agriculture or horticulture on the relevant
date, it will be open to the Government to
issue a notification with respect to it
under Section 8 if, on the other hand, it is
found in that enquiry that it was not an
"agricultural area" on the said date, no
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notification under Section 8 should be
issued with respect to it. The appeals are
also allowed. The orders of the High Court
abating the appeals and the suits are set
aside. The High Court will restore the
appeals and the suits to their original
numbers. The appeals will be decided on
merits when the appropriate authority
under Section 5 of the Act has held that
the land in dispute is not an "agricultural
area". If it is held by him that the land in
dispute is an "agricultural area" and the
State Government issues a notification
under Section 8 of the Act with respect to
the land, the appeals will be disposed of
in accordance with the provisions of the
Act. In the circumstances of this case
parties shall bear their own costs."
From the impugned judgment it appears that the
learned single Judge dealing with the contentions raised
on behalf of the appellants that the civil court has no
jurisdiction to deal with the matter took note of the
decision of the Constitution Bench and held :
"Since 28th March, 1973 uptil now
admitted to both parties, the State of
U.P. has not issued a fresh notification
under section 8 of the U.P. Urban
Zamindari Abolition & Land Reforms
Act. The Hon’ble Supreme Court has
taken note of the affidavit of Trust that
the suit land is kothi land and it is not
agricultural land. Under the
circumstances there remains no
material at all to hold that the suit
land is land under the definition of
Section 3(b) of the U.P. Tenancy Act.
The lower appellate Court has, of
course, observed that the suit land is a
grove land but after the judgment of
the Hon’ble Supreme Court there
remains no point for argument to the
appellants that the Civil Court has no
jurisdiction to try the suit."
Dealing with the question of enforcement of the
renewal clause of the contract the learned Judge held that
appellate court was right in holding that in the context of
the case remedy, if any, available to the plaintiff was to file
a suit for specific performance of the renewal clause of the
contract. The learned single Judge upheld the decision of
the Court below decreeing the suit filed by the trust for
recovery of possession of the property.
Dealing with the suit filed by the appellants herein
for specific performance of the renewal clause of the
contract of lease the learned single Judge held that they
are not entitled to take the help of section 14 of the
Limitation Act. They cannot be accepted to be bona fide
pursuing the remedy in a court of law for enforcing the
renewal clause. Therefore, the time consumed in
defending the eviction suit filed by the trust could not be
availed by them under the provisions of section 14 of the
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Limitation Act. The learned single Judge further observed
that the period of limitation for instituting a suit for
specific performance of contract will run from the date on
which cause of action for such suit arose. So computed the
suit filed by the appellants was clearly barred by limitation
and was rightly dismissed as time barred. The learned
single Judge also observed that undisputedly the 30 years
term for which the claim of renewal was made by the
appellants had expired in 1986 and thus the appellants
had enjoyed the extended period of lease despite refusal
of extension by the landlord. On the above findings the
learned Judge dismissed the second appeal vide judgment
dated 9.9.1999. These appeals by special leave are
directed against the said judgment.
During pendency of these appeals, this Court in the
order dated 6.11.2000 referring to the directions issued in
the judgment of the Constitution Bench had observed :
"It is unfortunate that after 1978
nothing concrete was done in this
matter for several years but the
aforesaid directions were binding on
the High Court. The aforesaid enquiry
as directed by this Court is not yet
completed but the High Court has now
disposed of the Second Appeals on
merits, without waiting for the result of
the inquiry. In these appeals the
question is whether the property is
’agricultural land’ and that question is
still pending inquiry, as directed by
this Court earlier. It appears that the
said inquiry is in progress and the
Commissioner, Meerut Division is
proceeding to complete the inquiry. We
direct that the inquiry into the
demarcation under sub-section (2) &
(3) of Section 4 and Rule 30 of the U.P.
Urban Zamindari Abolition and Land
Reforms Act, 1956 shall be completed
within three months from the date of
the receipt of this order and the
Commissioner shall submit a report to
this Court by sending it to the
Registrar (General) of this Court. As
and when the report is received, the
copies of the same will be furnished to
the parties and the matter will be listed
for further orders."
Thereafter the Commissioner Meerut Division passed
an order under Section 52 on 1.5.2001. The appeal filed
against the said order under sub-section (3) of section (5)
of the Act, appeal No.93-Z(M)/2001 titled Rajeshwar Dayal
& others vs. State of U.P. & Ors. was decided by the Board
of Revenue, U.P. vide order dated 19.11.2001.
From the order dated 1.5.2001 of the Commissioner,
Meerut Division it appears that the authority has
discussed in great detail the different steps taken for
verification of the revenue records in respect of the land in
dispute over a span of four decades; the spot visits made
by the demarcation officer and his report containing the
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observations regarding the prevailing state of things on the
land; the contentions raised by both sides and the
position of law with reference to the relevant provisions of
the Act. The ultimate findings recorded by the
Commissioner are quoted hereunder:
"I have heard the contentions of the
learned Advocates and perused the
available evidence on record. From the
comments of demarcation officer of the
year 76 and 2000, it is clear that
disputed land is not being used as
agricultural land. Revenue Records
which are produced by Sri Rajeshwar
Dayal, they are of the year late than
1956 when the decision is to be taken
for the year 1956 whether the disputed
land was sued for agriculture purposes.
From the comments of Demarcation
officer it is clear that on the appointed
date, disputed land was not used for
agricultural purpose but was land
appurtenant to the house built in abadi
which was given by Nanak Chand Trust
for fixed period on Patta to Pt.
Bateshwar Dayal. Evidence available on
record on the basis of comments of
Demarcation Officer it is clear that on
the appointed date disputed land was
not being used for agricultural purpose.
On the appointed date the aforesaid land
is not agricultural land. Accordingly,
objections are disposed of and there is
no requirement of (Simankan)
Demarcation."
In the appeal filed by Rajeshwar Dayal and others
against the order of the Commissioner Meerut Division
App. No.93(Z)M 2000-2001 the Member, Board of Revenue,
dismissing the appeal, by his order dated 19.11.2001
made the following observations :
".The main dispute in this case is
that whether the disputed land is
being used by Pt. Bateshwar Dayal
Sharma and his legal heirs for the
purpose of agriculture or plantation or
not. For determination of this fact, on
perusal of the evidence adduced on the
record of file, it is clear that in the
Reports dated 05.04.1976 and
13.11.2000 of Demarcation Officer, in
this regard, it is clearly mentioned that
the disputed land is not being used for
agricultural purpose. In this respect, I
am fully in agreement with the view of
Commissioner, Meerut Division,
Meerut that the assessment of the
disputed land is to be determined on
the basis of prescribed year 1956 and
the evidence adduced on the record by
Rajeshwar Dayal & Ors. is related to
after the year 1956. In such
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circumstances, I am fully in
agreement with the conclusion of the
Commissioner, Meerut Division and I
uphold the order dated 1.5.2001
passed by him and do not consider
any need of interference of any kind.
The present appeal being devoid of any
substance, is liable to be dismissed.
In view of the above discussion, this
appeal is dismissed. Order dated
1.5.2001 passed by the Commissioner,
Meerut Division, Meerut is confirmed."
From the discussions in the foregoing paragraphs the
position that emerges is that the revenue authorities i.e.
Commissioner, Meerut Division and the Member, Board of
Revenue, have in compliance with the directions issued in
the Judgment of the Constitution Bench in S.P. Watel
case (supra) have determined the question whether the
land in dispute was ’agricultural land’ on the relevant date.
They have concurrently held that the land was not being
used as agricultural land on the relevant date. In view of
such concurrent findings the question of Government
issuing a notification under Section 8 of the Act abolishing
the intermediary interest held by the trust in the property
does not arise. The consequential position that follows is
that the appellants who are in unauthorized occupation of
the land since the expiry of the period of the lease have no
valid reason to resist the claim of the trust for recovery of
possession of the property. Therefore the judgment of the
High Court dismissing the second appeals filed by the
appellant herein is unassailable.
In the result these appeals being devoid of merit are
dismissed with costs. Hearing fee is assessed at
Rs.20,000/-.
.J.
(D.P.MOHAPATRA)
.J.
(BRIJESH KUMAR)
April 4, 2002