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SahebdIn and anr. Vs. Jhulai Gadaria and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 3263 of 1963
Judge
Reported inAIR1971All546
ActsTenancy Law; Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951 - Sections 4, 6, 7 and 9
AppellantSahebdIn and anr.
RespondentJhulai Gadaria and ors.
Appellant AdvocateSripat Narain Singh, Adv.
Respondent AdvocateR.P. Singh, Adv.
DispositionAppeal dismissed
Excerpt:
tenancy - rights of 'riaya' - section 4 and 6 of u.p. zamindari abolition and land reforms act, 1951- easementary rights are not ceased - 'riaya' is a non-agriculturist and governed by easement act. - - (i) in every estate in such area including land (cultivable or barren) grove-land, forests (whether within or outside village boundaries), trees (other than trees in village abadi, holding or groves), fisheries, tanks, ponds, water channels, ferries, pathways, abadi sites hats, bazars and melas (other than hats, bazars and melas held upon land to which clauses (a) to (c) of sub-section (1) of section 18 apply) and (ii) in all sub-soil in such estates including rights, if any, in mines and minerals, whether being worked or not, shall cease and be vested in the state of uttar pradesh free..........a legal point and contended that under sections 4 and 6 of the u. p. zamindari abolition and land reforms act, even if the plaintiff acquired easementary right, the same came to an end under the provisions of the aforesaid sections 4 and 6 of the u. p. zamindari abolition and land reforms act. section 6 (a) reads as below:--'section 6 (a) all rights, title and interest of all the intermediaries: (i) in every estate in such area including land (cultivable or barren) grove-land, forests (whether within or outside village boundaries), trees (other than trees in village abadi, holding or groves), fisheries, tanks, ponds, water channels, ferries, pathways, abadi sites hats, bazars and melas (other than hats, bazars and melas held upon land to which clauses (a) to (c) of sub-section (1).....
Judgment:

K.N. Srivastava, J.

1. This is an appeal against the judgment and decree passed by the learned Additional Civil Judge, Azamgarh, allowing an appeal against the judgment and decree passed by the learned Munsif, Haveli, Azamgarh and decreeing the plaintiff's suit with costs.

2. The facts giving rise to this appeal are as follows:

3. The plaintiff brought a suit on the allegation that the defendants stopped the flow of the drain of the plaintiff's house and therefore, prayed for an injunction.

4. The defendants contested the suit and inter alia pleaded that the house in question was a new one and the defendants had not stopped the flow of the plaintiffs Nabdan as alleged by the plaintiff. It was also alleged that the Nabdan never flowed as alleged by the plaintiff.

5. The learned Munsif held that the plaintiff had no right to flow his Nabdan as alleged by him and dismissed the suit,

6. On appeal, the learned lower appellate Court came to the conclusion that the plaintiff had perfected his easementary right to flow his Nabdan and the flow of the same had been stopped by the defendants. With this finding, the appeal was allowed and the suit was decreed.

7. The learned counsel for the appellant contended that the learned lower appellate Court recorded a contrary finding of fact and, therefore, the plaintiff was not entitled to a decree. This argument has no force in it. After discussing the evidence, the learned lower appellate Court came to the conclusion that the rain water of the house of the plaintiff flowed towards south and not towards North as alleged by the plaintiff but this Nabdan always flowed towards North and the plaintiff never raised the level of his Sahen. The learned lower appellate Court also came to the conclusion that the plaintiffs Nabdan flowed in the direction as alleged by the plaintiff for more than twenty years on the plot of the defendants and that the plaintiff had acquired easementary right. There is therefore no contradiction in the finding of fact arrived at by the learned lower appellate Court. This finding of fact is based on the evidence on the record. The learned lower appellate Court inspected the spot in order to appreciate the evidence adduced by the parties. The plaintiff's evidence was in consonance with the spot situation and therefore it was rightly believed by the learned lower appellate Court. Thus the matter that the plaintiff had flowed the Nabdan as alleged by him for more than twenty years and that he had acquired easementary right to flow the water of the Nabdan in the manner alleged by him is concluded by finding of fact.

8. The learned counsel for the appellant raised a legal point and contended that under Sections 4 and 6 of the U. P. Zamindari Abolition and Land Reforms Act, even if the plaintiff acquired easementary right, the same came to an end under the provisions of the aforesaid Sections 4 and 6 of the U. P. Zamindari Abolition and Land Reforms Act. Section 6 (a) reads as below:--

'Section 6 (a) all rights, title and interest of all the intermediaries:

(i) in every estate in such area including land (cultivable or barren) grove-land, forests (whether within or outside village boundaries), trees (other than trees in village abadi, holding or groves), Fisheries, tanks, ponds, water channels, ferries, pathways, abadi sites hats, bazars and melas (other than hats, bazars and melas held upon land to which Clauses (a) to (c) of Sub-section (1) of Section 18 apply) and

(ii) in all sub-soil in such estates including rights, if any, in mines and minerals, whether being worked or not, shall cease and be vested in the State of Uttar Pradesh free from all encumbrances'.

9. Much stress was laid on the word 'encumbrances' and it was contended that the word 'encumbrances' included easementary right as well and, therefore, under Section 6, the easementary rights also came to an end. In support of this argument, reliance was also placed on Section 16 of the Land Acquisition Act where the word 'encumbrances was used and which runs as follows:--

'16. Power to take possession.--When tide Collector has made an award under Section 11, he may take possession of the land, which shall thereupon (vest absolutely) in the (Government) free from all encumbrances.'

10. The learned counsel for the appellant laid stress upon the word 'encumbrances'1 used in Section 16 of the Land Acquisition Act. The Calcutta High Court in the case of Rashid Allidina v. Jiwandas Khemji : AIR1943Cal35 held that the word 'encumbrances' used in Section 16 of the Land Acquisition Act included an easementary right as well. A similar view was taken in a Privy Council case in Municipal Corporation of the City of Bombay v. Great Indian Peninsula Rly. Co., AIR 1916 PC 3. In this case also, it was held that the word 'encumbrances' in Section 16 of the Land Acquisition Act included easementary right as well. This Court has also held in the case of Abdul Karim v. George High School : AIR1936All879 that the word 'encumbrances' used in Section 16 of the Land Acquisition Act covers easementary right as well. On the basis of the above mentioned decisions it was, therefore, urged that the legislature used the word 'encumbrances' in Section 6 of the U. P. Zamindari Abolition and Land Reforms Act to include easementary right as well and while interpreting the word 'encumbrances' used in Section 6 of the Act should be given the same meaning which has been given to this word in Section 16 of the Land Acquisition Act.

11. The above argument has no force in it for two reasons. The first reason is that under Section 6, the rights and interest of intermediaries under Section 6 of the U. P. Zamindari Abolition and Land Reforms Act vested in the State of Uttar Pradesh and not in any other person. In Sub-clause (12) of Section 3, an 'intermediary has been defined in the Act as below:--

'Section 3 (12). Intermediary' with reference to any estate means a proprietor, under-proprietor, sub-proprietor, thekadar, permanent lessee in Avadh and permanent tenure-holder of such estate or part thereof.'

12. The plaintiff was, therefore, neither a proprietor nor under-proprietor. sub-proprietor, Thekadar or permanent tenure-holder of such estate or part thereof. The plaintiff was the Riaya in the village and did not possess agricultural holding in the village. He was, therefore, non-agriculturist Riaya. Under the provisions of the U. P. Zamindari Abolition and Land Reforms Act, the right, interest and title of intermediaries and tenure-holders came to an end after the enforcement of the U. P. Zamindari Abolition and Land Reforms Act. All rights in the agricultural village came to be vested in the State. The State resettled the land with a new class of tenants such as Bhumidhar, Sirdar, Adhi-vasi and Asami. The plaintiff was not a tenant of either of the classes mentioned above nor was he an intermediary. Section 7 (aa) confers easementary rights for the more beneficial enjoyment of the land held by a Bhumidhar, Sirdar, Adhivasi and Assami. This section, therefore, clearly goes to show that the easementary rights acquired prior to the enforcement of the Act by a Bhumidhar, Sirdar, Assami and Adhivasi were acknowledged under the Act and they were not taken away. The intermediary also was given Bhumidhari rights in a Sir and Khudkasht land and grove. If by using the word 'encumbrances' under Section 6, the legislature meant to take away such easementary rights, the purpose of Section 7 (aa) of the U. P. Zamindari Abolition & Land Reforms Act would become altogether negatory.

The provisions of Section 7 (aa) of the Act, therefore, clearly go to show that by using the word 'encumbrances' in Section 6 of the U. P. Zamindari Abolition & Land Reforms Act, the legislature never intended to take away the easementary right which a Bhumidhar, Sirdar, Adhivasi and Assami had acquired in a land. The easementary right can be acquired by a person as laid down in the Easements Act. This right cannot be conferred under any law unless one has perfected such an easementary right or has satisfied the conditions under which such easementary right can be acquired under the Easements Act. If the legislature meant to take away the easementary rights by enacting Section 6, that easementary right could not be perfected under Section 7 (aa) without satisfying the condition of acquisition of such right mentioned in the Easements Act and, therefore, I am of the opinion that the use of the word 'encumbrances' in Section 6 of the Act cannot be given the same interpretation which has been given by different High Courts to the use of the word 'encumbrances' under Section 16 of the Land Acquisition Act.

13. As said above, the appellant was not an intermediary. He was only a riaya possessing a house in the village and, therefore. Section 6 of the U. P. Zamindari Abolition & Land Reforms Act will not come into play so far as rights of persons other than an intermediary is concerned.

14. The word 'encumbrances' was used in Section 4 as well which lays down that from the date specified all estates in Uttar Pradesh shall vest in the State free from all encumbrances. The term 'estate' has been defined in Section 3 (8) of the U. P. Zamindari Abolition & Land Reforms Act which runs as below:--

'Section 3 (8) 'Estate' means and shall be deemed to have always meant the area included under one entry in any of the registers described in Clauses (a), (b) (c), or (d) and, in so far as it relates to a permanent tenure-holder, in any register described in Clause (e) of Section 32 of the U. P. Land Revenue Act, 1901, as it stood immediately prior to the coming into force of this Act, or, subject to the restriction mentioned with respect to the register described in Clause (e), in any of the registers maintained under Section 33 of the said Act, or in a similar register described in or prepared or maintained under any other Act, Rule, Regulation or Order relating to the preparation or maintenance of record of rights in force at any time and include share in, or of an 'estate':'

15. It was argued that under Section 4, a house was included in an estate and, therefore, the house of the appellant also vested in the estate and as it vested in the State free from all encumbrances, therefore, an easementary right also attached to the house ceased to exist from the date of vesting.

16. Under Section 9, all buildings situated in Abadi as well as wells and trees held by an intermediary, tenant or other person continued to belong or to be held by such tenant or person and the site of the well, building within the area appertaining thereto was settled with him on such terms and conditions as prescribed. The house in question, therefore, continued to belong to the plaintiff as provided under Section 9 of the U. P. Zamindari Abolition & Land Reforms Act. The expression 'held' has been interpreted as 'lawfully held'. There is no 3oubt that the plaintiff was lawfully holding his house and he continued to be in possession of the same even after the date of tie vesting. The U, P. Zamindari Abolition & Land Reforms Act did not terminate the easementary right in the land held by the Bhumidhar, Sirdar, Adhivasi and Asami.

It was clearly laid down, in Section 7 (aa) of the U. P. Zamindari Abolition & Land Reforms Act that the Bhumidhars, Sirdars, Adhivasis and Asamis continued to enjoy the easementary rights for the more beneficial enjoyment of the property. The, word 'continued' clearly intended that the easementary right never came to an end and had continued with the dominant owner. As said above, the word 'continued' has a special significance in Section 7 (aa) of the U. P. Zamindari Abolition & Land Reforms Act and it knocks at the bottom of the argument of the learned counsel for the appeal and that the easementary right attached to a land or for the beneficial enjoyment of the land or property came to an end under Section 4 or Section 6 of the U. P. Zamindari Abolition & Land Reforms Act.

17. There is another aspect which too cannot be lost sight of at this stage. If the easementary rights which a Bhumidhar, Sirdar, Adhivasi or an Asami enjoyed continued with him, there was no reason why such a right acquired by a non-agriculturist Riaya should be deemed to have been curtailed or taken away by operation of Sections 4 or 6 of the U. P. Zamindari Abolition & Land Reforms Act. It appears that the U. P. Zamindari Abolition & Land Reforms Act applied to a class to tenure-holders created under this Act and, therefore. Section 7 (aa) was intended to safe-guard the easementary right acquired by the holders of tenures which were created under the U. P. Zamindari Abolition & Land Reforms Act. The case of Riaya who held a house in village and was not a Bhumidhar, Sirdar, Adhivasi or Asami is not governed by the U. P. Zamindari Abolition & Land Reforms Act and as the right of easement acquired by him was to be governed by the Easements Act, therefore, in my opinion the legislature did not think it at all necessary to safe-guard the interest of such a Riaya by including such Riaya among the tenure holders who were mentioned in Section 7 (aa) of the U. P. Zamindari Abolition & Land Reforms Act.

18. For these reasons, I am, there-fore, of the opinion that the easementary right of flowing the water of the drain by the plaintiff over the land of the defendants did not come to an end under Section 6 of the U. P. Zamindari Abolition & Land Reforms Act and the appeal has no force in it.

19. In the result, the appeal is hereby dismissed with costs.


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