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Kalpu and anr. Vs. Sanaurar Khan and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 639 of 1972
Judge
Reported inAIR1982All307
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11; Uttar Pradesh Zamindari Abolition and Land Reforms Rules, 1951 - Rule 26A; Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951 - Sections 9
AppellantKalpu and anr.
RespondentSanaurar Khan and anr.
DispositionAppeal dismissed
Excerpt:
.....form part of the abadi of the village, the trees would, at best, be enjoyed by the plaintiffs subject to the ownership of the state government/ gaon sabha in the land on which the trees stand......of the abadi of the village, the trees would, at best, be enjoyed by the plaintiffs subject to the ownership of the state government/ gaon sabha in the land on which the trees stand. but the customary law, with regard to the trees being what it is, the defendants surely could have no claim over the trees unless they had established as a fact that they had plant-ed and nurtured the trees. the trees had already been held to belong to the plaintiffs in suit no. 594 of 1955. the subsequent deletion of rule 26-a of the u. p. zamindari abolition and land reforms rules or its being held to be ultra vires by this court could not have had the effect of taking away or destroying the rights of the plaintiffs in the trees as their owners in possession as the trees were situate on baniar land.7. in.....
Judgment:

Deoki Nandan, J.

1. This is a defendant's Second Appeal from a decree for Rs. 100/- as damages against the defendants Nos. 1 to 5, a mandatory injunction against them to fill up two ditches shown on the map (paper No. 45-C), which forms part of the decree of the trial court, and for a prohibitory injuriestion perpetually restraining the said defendants from interfering in the possession and enjoyment of the plaintiffs and the defendants Nos. 6 and 7 over plots Nos. 136 and 205.

2. The dispute between the parties centres round four mango trees shown by the figures 1 to 3 and 15 and a bamboo clump, which are situate on plot No. 136 to the west of plots Nos. 135 and 205. There is no dispute that the plaintiffs and the defendants Nos. 6 and 7 are the bhumidhars in possession of plots Nos. 135 and 205. There is also no dispute that plot No. 136 does notbelong to the plaintiffs, but was recorded as Banjar and the contesting defendants' house is situate on that plot. The plaintiffs claimed that the said four mango trees and the bamboo clump belonged to them as they had nurtured them, and further claimed that the defendants' act of digging the ditches complained of had caused damage to the trees, in respect of which the amount of Rs. 100/- was claimed by way of damages. The contesting defendants claimed that they were not responsible for digging the ditches and named one Lalman as responsible for the same. The plaintiffs' title to the trees and their possession were also denied.

3. As many as eight issues were framed by the trial court, Issues Nos. 1 and 2 related to undervaluation and insufficiency of court-fees. They do not survive. With regard to issue No. 3, it is no longer in dispute that the trees lie on plot No. 136 and the ditches lie mostly on plots Nos. 135 and 205 with reference to issue No. 4, it is no longer in dispute that the plaintiffs are the bhumidhars of plots Nos. 135 and 205. The only dispute that survives is with regard to the ownership of the four mango trees and the bamboo clump situate on plot No. 136. Although it was contended before me that the ditches were not dug by the contesting defendants and that they did not damage the trees. I do not think that anything much turns upon the same as the only relief claimed was the sum of Rs. 100/-for the damages caused to the trees, and that having been decreed on the concurrent finding that the contesting defendants did dig the ditches and damage the trees, I did not permit the learned counsel for the appellants to reopen that controversy in Second Appeal.

4. With regard to the ownership of the trees, the most important feature in this case is that in an earlier suit No. 594 of 1955, the plaintiffs had been held to be the owners of the trees. It appears from the judgment of the lower appellate court that the main contention of the defendants was that that judgment cannot operate as res judicata in view of the deletion of Rule 26-A of the U. P. Zamindari Abolition and Land Reforms Rules. It is undisputed that if the rule existed and if the rule was valid, the trees were correctly held to belong to the plaintiffs and if that beso, it would be difficult to say that the plaintiffs have not been in possession of the same.

5. The applicability of the rule of res judicaia prescribed by Section 11 of the Civil P. C. does not depend upon the correctness or the incorrectness of the former decision. Whether right or wrong, the former decision is binding between the parties. The subsequent deletion of Rule 26-A and the view of this Court that the rule was ultra vires could not have the effect of wiping out the earlier de-cision that the trees had been nurtured by the plaintiffs and belonged to them as they stood on Baniar land.

6. According to Section 9 of the U. P. Zamindari Abolition and Land Reforms Act, all trees in Abadi belonging to or held by an intermediary or tenant or other person shall continue to belong or be held by such intermediary tenant or person and are deemed to be settled with him by the State Government. Rule 26-A referred to trees in holding. It is undisputed that the trees in question do not lie in the holding of any person. They lie on Baniar land. If the land is part of the Abadi of the Village, they would be deemed to belong to the plaintiffs under Section 9 of the U. P. Zamindari Abolition and Land Reforms Act itself. In case the Banjar land did not form part of the Abadi of the village, the trees would, at best, be enjoyed by the plaintiffs subject to the ownership of the State Government/ Gaon Sabha in the land on which the trees stand. But the customary law, with regard to the trees being what it is, the defendants surely could have no claim over the trees unless they had established as a fact that they had plant-ed and nurtured the trees. The trees had already been held to belong to the plaintiffs in Suit No. 594 of 1955. The subsequent deletion of Rule 26-A of the U. P. Zamindari Abolition and Land Reforms Rules or its being held to be ultra vires by this Court could not have had the effect of taking away or destroying the rights of the plaintiffs in the trees as their owners in possession as the trees were situate on Baniar land.

7. In the result, the appeal fails and is dismissed with costs.


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