This is defendants’ second appeal arising out of non-concurrent judgments. The Original Suit No. 307 of 2011 (Bhola vs. DIOCESE and another) was dismissed by the trial court, however, the Civil Appeal No. 37 ...
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Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
Neutral Citation No. - 2024:AHC:146911
Reserved on 21.08.2024
Delivered on 10.09.2024
A.F.R.
Court No. - 36
Case :- SECOND APPEAL No. - 461 of 2014
Appellant :- The Catholic Diocese Of Gorakhpur
Through Its President
Respondent :- Bhola Deceased And 4 Others
Counsel for Appellant :- Sanjiv Singh, A. P.
Tiwari, Namwar Singh, S. S. Tripathi, Subhash
Ghosh
Counsel for Respondent :- S.P.K. Tripathi, Arvind
Srivastava III, Ashish Kumar Srivastava, Manish
Kumar Nigam, Pramod Kumar Singh, Praveen
Kumar, Sanjay Goswami
Hon'ble Kshitij Shailendra,J.
THE APPEAL
1. This is defendants’ second appeal arising
out of non-concurrent judgments. The Original Suit
No. 307 of 2011 (Bhola vs. DIOCESE and another)
was dismissed by the trial court, however, the Civil
Appeal No. 37 of 2011 filed by the plaintiff-
respondents has been allowed by the First Appellate
Court and, consequently, the suit has been decreed.
1 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
PLAINT CASE
2. The aforesaid suit was filed stating that the
plaintiff was Bhumidhar in possession over plot No.
26 measuring 93 decimals situated at Mauza Jangal
Salikram, District Gorakhpur. A statement No. 3234
filed by him before the Competent Authority under
Urban Land (Ceiling and Regulation) Act, 1976 was
pending and when the defendants, 1.5 months prior
to institution of suit, started en-covering the land by
raising constructions of boundary wall and the
plaintiff objected to the same, the defendants
threatened him to raise constructions of a hospital
over the land. It was alleged through amendment
that a lease deed was said to have been executed by
defendant No. 2, (State of U.P.) in favour of
defendant No. 1 (appellant herein), though the
State had no right to execute a lease. Further
pleading was that the land of the plaintiff had not
been declared vacant and, consequently, a decree
was prayed for directing the defendants to remove
constructions raised over the portion marked by
letters “v c l n” in the plaint map and deliver
possession of the land to the plaintiff and, on their
failure to do so, possession through process of the
Court be delivered and the lease deed be also
cancelled. Further, a decree restraining the
respondents from raising any constructions over the
2 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
land bearing No. 26 measuring 93 decimals was
also claimed.
IMPLEADMENT OF PARTIES AND AMENDMENT
IN PLAINT
3. The Original Suit was initially filed against
the DIOCESE of Gorakhpur, i.e. the present
appellant only. The plaint was, later on, amended
and averments were added based upon the lease
deed filed by the defendant-appellant before the
trial court asserting rights in the land in dispute in
its favour. Pursuant to an order dated 19.02.2001,
State of U.P. through District Magistrate,
Gorakhpur was impleaded as defendant No. 2. The
relief No. v was amended incorporating a prayer for
cancellation of the lease deed too.
DEFENCE IN WRITTEN STATEMENT
4. The defendant No. 1 (appellant) filed a
written statement taking a stand that it was a
registered Society and under a proposal to
construct Fatima Hospital in Gorakhpur, land was
required by it. On the request of the said defendant,
the State officials allotted a vacant land to the
appellant under the provisions of Urban Land
(Ceiling and Regulation) Act, 1976 (herein-after
referred to as “the Act of 1976”) and over the said
3 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
land, possession was delivered to appellant. The
appellant also filed additional written statement
stating therein facts regarding execution of lease in
its favour by the State Government. The State of
U.P., (defendant No. 2) also filed written statement
stating that the plaintiff had submitted an
application dated 05.02.1991 alongwith notarized
affidavit dated 21.02.1991 to the effect that he had
sold the entire property covered by land No. 197,
which had been declared as vacant under section
10(5) of the Act, 1976 and, in exchange thereof, an
area measuring 2805.90 Sq.Mts. covered by land
bearing No. 26 was handed over by the plaintiff to
the District Magistrate, Gorakhpur and, on the basis
of such written consent of the plaintiff, the State
Government had allotted the land to the appellant.
It was further pleaded that after coming into force
of Repeal Act No. 15 of 1999, the proceedings
under the Act of 1976 had stood abated and a
registered lease deed having already been executed
in favour of appellant, the construction of boundary
wall raised over the land was lawful.
TRIAL COURT’S JUDGMENT
5. The trial court framed 15 issues out of which
relevant issues relate to right, title, interest and
possession of the respective parties pursuant to the
ceiling proceedings and also lease deed relied upon
4 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
by the defendants. After the parties led
documentary and oral evidence, the trial court
decided issues No. 1, 2, 3, 6, 9 and 13 by observing
that since the plaintiff himself had submitted
application 157-A and affidavit 160-C before the
District Magistrate, Gorakhpur relinquishing his
rights over plot No. 26, over which possession was
delivered to the District Magistrate and, thereafter,
a lease deed was executed by the State in favour of
the defendant-appellant, the possession based upon
admission and consent would bar the suit for any
relief. Consequently, the trial court dismissed the
suit by judgment and order dated 22.11.2011
observing that in view of Sections 41(g) and 41(i) of
the Specific Relief Act, 1963, neither mandatory nor
prohibitory injunction could be granted in favour of
the plaintiff.
APPELLATE COURT’S JUDGMENT
6. Aggrieved, the plaintiff-respondent No.1 filed
Civil Appeal No. 47 of 2011, during the pendency
whereof he died and was substituted by his heirs
and legal representatives. The first Appellate Court
allowed the appeal by judgment and order dated
13.03.2014 and decreed the suit directing the
defendant-appellant to remove boundary wall
constructed by it over the land shown by letters “v
5 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
c l n” in the plaint map within a period of 60 days.
A further decree has been drawn directing the
defendants not to cause any interference in the
plaintiff’s possession over the land. Simultaneously,
lease deed dated 13.01.1993 registered before the
Sub Registrar-I, Gorakhpur, to the extent it relates
to plot No. 26, has been declared as void and
ineffective.
FINDINGS RECORDED BY FIRST APPELLATE
COURT
7. The first Appellate Court framed following
points for determination in the Civil Appeal : -
“1- क्याoApaold d Ndo. od4o61f.20o6.o(a ThoCti197
में अपीलार्थी /वादीo. o.B)o64%C oA&'61dGo.( o)4)oCa*NC
घोनिर्षत ह
ुआ र्थीा
, हस्तक्षेप योग्य है?
2- क्याoApaold d Ndo. od4o61f.20o6.o.3u)o4kuok5
जो वादी/अपीलार्थी द्वारा जिजलाधि'कारी के समक्ष
6v1 t.21.02.1991 कोo6vd oT 1 o.4 oT ) o40, से प्रत्यर्थी /
प्रधितवादी सं02 को निववानिदत आराजी में कोई स्वत्व एवं स्वानिमत्व
प्राप्त ह
ुआ
, निवधि' की दृनि@ से सही है ?
3- क्या प्रत्यर्थी संख्या 2 को प्रत्यर्थी संख्या 1 के पक्ष में
6pp 6v)oCD6Go. o.B)okE od o.B)oAl)aFo.a1(o. oA&'. a
प्राप्त र्थीा ?
4- क्या 1976 केoA&'61dGoCtBd o33 की 'ारा 4 के तहत
यह वाद उपशनिमत हो गया र्थीा ?”
8. The first Appellate Court observed that the
6 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
plaintiff-Bhola was a co-sharer of the land bearing
No. 197 alongwith one Lallan and recorded a
finding that share of Lallan alone was declared as
vacant. It also observed that Statement No. 3234
concerning plaintiff-Bhola relating to the ceiling
proceedings, despite being available in their office,
had not been brought on record by the defendants
that would lead to adverse inference against them.
The Appellate Court also observed that since it was
not proved that any share of the plaintiff-Bhola in
plot No. 197 had been declared as vacant, any
application or affidavit submitted by him before the
District Magistrate would be deemed to be under
some mistaken belief and not voluntarily and, even
otherwise, the alleged surrender of land of plot No.
26 in favour of State, being in teeth of provisions of
sections 183, 184, 185, 186, 190, 191, 192, 193 and
194 of the Uttar Pradesh Zamindari Abolition &
Land Reforms Act, 1950, would not be treated as in
accordance with law.
ADMISSION/STAY ORDER IN THE INSTANT
APPEAL
9. In the instant appeal, an interim order of
status quo was passed on 02.05.2014 before
admission. It was extended from time to time. On
25.08.2015, parties were in clash before this Court
as regards declaration of land of plot No. 197 as
7 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
surplus. This Court, therefore, deemed it necessary
to call upon the District Magistrate concerned
alongwith relevant records relating to ceiling
proceedings so as to appreciate the rival
contentions. The District Magistrate appeared
alongwith record on 08.09.2015, on which date,
after noting down contentions of both sides, the
instant appeal was admitted on the following
substantial questions of law:-
“(i) Whether the lower Appellate Court was
justified in decreeing the plaintiff’s suit
notwithstanding his admission that Plot No.
26 is being offered in lieu of his having sold
the entire land of Plot No. 197 including the
land, which had been declared surplus?
(ii) Whether the judgment and decree of the
lower Appellate Court reversing and
invalidating the proceedings under Urban
Ceiling Act are without jurisdiction?
(iii) Whether the suit of the plaintiff-
respondent is barred by the principles of
estoppel and acquiescence, inasmuch as,
the defendant-appellant has raised
boundary wall constructed the Hospital at
the disputed plot and has invested huge
amount?”
COUNSEL HEARD
10.Heard at length Shri Navin Sinha, learned
Senior Advocate assisted by Shri Subhash Ghosh,
Shri Raghvendra Nayar and Ms. Saraswati Yadav,
8 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
learned counsel for the appellant as well as Shri
Sanjay Goswami, learned counsel assisted by Shri
Pramod Kumar Singh, learned counsel for the
plaintiff-respondents and Shri Vinod Kumar Sahu,
learned Additional Chief Standing Counsel for
respondent No.2 (State of U.P.).
SUBMISSIONS ON BEHALF OF THE APPELLANT
11.Shri Navin Sinha, learned senior counsel
argued with vehemence that the proceedings under
the Act of 1976 for declaration of land of plot No.
197 as surplus or vacant had been undertaken and
once the plaintiff himself admitted that the entire
land of plot No. 197 that was declared surplus, had
been sold by him and once he had given written
consent in the form of application 157-ka alongwith
affidavit 160-C before the District Magistrate
relinquishing his rights in his other holding covered
by plot No. 26, i.e. the subject land, and handed
over its possession to the District Magistrate,
consequential lease deed executed by the State in
favour of the appellant would be valid for all
purposes and title once vested in the said manner,
neither the registered lease deed could be declared
as null and void nor could a decree for injunction be
drawn in favour of the plaintiff-respondents and,
therefore, the first Appellate Court has grossly
erred in reversing the decision of the trial court.
9 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
Shri Sinha referred to the lease deed dated
11.01.1991, which was executed by the Governor of
the State in favour of the appellant and by referring
to the schedule of property attached to the deed, it
was contended that the land of plot No. 26 was
given in lieu of plot No. 197 under Order No. 1611
dated 13.03.1991 (a date subsequent to preparation
of lease deed) passed by the District Magistrate,
Gorakhpur and for the purpose of maintenance by
the allottee Society, i.e. the present appellant. Shri
Sinha also referred to an order dated 10.11.1980
annexed as Annexure CA-1 to the counter affidavit
filed on behalf of State of U.P. The said order, apart
from containing various recitals, mentions that
4354.76 Sq. Mts. of land covered by plot No. 197
was treated as surplus land. The entire thrust of
Shri Sinha is, therefore, to the effect that the
plaintiff had voluntarily surrendered his right, title,
interest and possession qua plot No. 26 in favour of
the State in exchange of his holdings covered by
plot No. 197 that was declared vacant/surplus but
illegally sold by the plaintiff to third parties.
SUBMISSIONS ON BEHALF OF THE PLAINTIFF-
RESPONDENTS
12.Per contra, Shri Sanjay Goswami, learned
counsel for the plaintiff-respondents vehemently
submits that the plaintiff’s share in plot No. 197 was
10 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
never declared surplus and whatever proceedings
were held, the same related to Lallan, the other co-
sharer and, therefore, no question of alleged
exchange of other holdings of the plaintiff, could
arise. It is contended that the plaintiff-Bhola was
the original owner of plot No. 26, area 93 decimals
and had half share in plot No. 197 (area 2.64 acres)
with 1.32 acres in his share. Remaining 1.32 acres
of plot No. 197 belonged to one Lallan. After the
commencement of Act of 1976, both Bhola and
Lallan submitted separate returns under Section
6(1) of the Act. The return submitted by Bhola was
numbered as 3234, whereas the return submitted
by Lallan was numbered as 3235. The Competent
Authority under the said Act prepared a draft
statement on the basis of return No. 3234 and
issued a notice under Section 8(3) of Act to plaintiff-
Bhola, who filed his objections to the draft
statement, mainly on the ground that most of his
land was agricultural in nature and that area of the
vacant land in other plot was less than the ceiling
limit. The Competent Authority allowed the
objections vide his order dated 18.12.1980 under
Section 8(4) of the Act and cancelled the draft
statement holding that returnee held the land
within his ceiling limits. However, a direction was
issued by the Competent Authority to his office to
find out the land use of the land in the master plan
11 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
and, in case any land was found in excess of the
ceiling limit, a notice be issued to the returnee to
submit statement. He submits that nothing was
done after the draft statement was cancelled by
order dated 18.12.1980 and no proceedings were
held against the plaintiff-Bhola under the Act of
1976 and, therefore, he continued to hold the land
in his own rights. Further submission is that the
Competent Authority proceeded against Lallan and
declared 1.08 acres land in plot No. 197 from his
share and that, at the most, State could exercise its
rights only in respect of part of the land to the
extent of share of Lallan alone and had no right
over the share of plaintiff-Bhola against whom
notice/draft statement was cancelled. Khatauni
pertaining to 1416 F to 1420 F annexed alongwith
counter affidavit was referred demonstrating that
the Competent Authority directed recording the
name of State of U.P. over plot No. 197 area 1.08
acres in the revenue records and the same still
continues therein and, hence, once it is established
that land of Bhola covered by plot No. 197 was not
declared surplus/vacant and the land did not vest in
the State, the plea of exchange of land of plot No.
26 at the strength of a bare application and affidavit
allegedly submitted by plaintiff-Bhola before the
District Magistrate and consequential grant of lease
by the State in favour of appellant would be a mode
12 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
of grabbing the property of the tenure holder
without any mode of transfer recognized under the
law of either transfer of property or vesting of the
same in the State under the Act of 1976.
13.Shri Goswami seriously disputes the validity
of the lease deed by contending that though the
deed was executed on 11.01.1991, it was signed by
the witnesses and executants on 28.12.1992 and
30.12.1992 and the same was registered in the
office of Sub-Registrar in the year 1993. The lease
deed runs and ends in twelve pages, however, a
letter dated 29.10.1991 sent by the District
Magistrate to the Deputy Secretary, Awas Anubhag-
6, U.P. Government, Lucknow through special
messenger is attached to it. Just below this letter, a
table finds place in which various plots have been
shown, but there is no mention of plot No. 197 or
plot No. 26. After the table, a Note signed by three
persons, i.e. Surveyor, Junior Engineer and
Assistant Engineer on 24.05.1991 is found
mentioning that plot No. 26 was given in lieu of plot
No. 197 under Order No. 1611 dated 13.03.1991
passed by the District Magistrate, Gorakhpur and
for the purpose of maintenance by the allottee-
Society, i.e. the present appellant. Submission is
that the Act of 1976 does not contemplate any such
provision, by which such a transfer of land or
13 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
handing over possession thereof is permissible. He
submits that section 26 of the Act being a provision
as regards transfer of vacant land within the ceiling
limit, even no such procedure was followed and
though submission of the application 157-A or the
affidavit forming part thereto was not proved by
cogent oral and documentary evidence, even if the
same are treated to have been submitted on behalf
of plaintiff or other co-sharers, the same would be
in teeth of any recognized mode of transfer of
immovable property and contrary to the provisions
of the Act of 1976 and, hence, no rights in the
property would vest either in the State Government
or in the appellant. He also submits that once the
State of U.P. being defendant No. 2 in the suit,
respondent No. 2 in the Civil Appeal as well as in
the instant second appeal, has accepted the
appellate judgment by not assailing it by filing its
own second appeal, the alleged rights of the present
appellant being subservient to the alleged rights, if
any, held by the State Government, the same would
stand nullified in absence of a challenge.
SUBMISSIONS ON BEHALF OF THE STATE-
RESPONDENT
14.Learned Additional Chief Standing Counsel
submits that the State has not filed appeal against
judgment of the First Appellate Court as the main
14 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
decree has been drawn against the appellant and,
further, the District Magistrate was earlier
summoned by this Court alongwith record of ceiling
proceedings and he has already passed an order
dated 27.07.2022 by which allotment of disputed
plot No. 26 in favour of the appellant for
maintenance purposes has been recalled subject to
the final decision in the present second appeal.
ANALYSIS OF RIVAL CONTENTIONS IN THE
LIGHT OF RECORD OF PROCEEDINGS AND
SUBSTANTIAL QUESTIONS OF LAW FRAMED
15.Having heard learned counsel for both sides,
what the Court notices from record is that a counter
affidavit has been filed by the then Tehsildar
(Judicial), Sadar Gorakhpur in the instant second
appeal and in paragraph No. 13 thereof, it is stated
that the plaintiff had submitted a return No. 3234
before the Competent Authority in respect of plot
No. 197 stating that he was the owner of half share
of the said plot and Lallan was owner of rest half
share. Further statement is that Lallan had also
filed return No. 3235 before the Competent
Authority, whereafter the Authority passed an order
dated 10.11.1980 in respect of certain area of plot
Nos. 24, 25 and 197 declaring the same as surplus.
It is further stated that plot No. 197 measuring 1
acre and 8 decimal vested with the State
15 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
Government, but the plaintiff-respondent and
Lallan, being joint owners of the said plot, sold the
land that was declared surplus and also the land
that was not declared surplus and when this fact
came to the knowledge of the District Magistrate,
Gorakhpur, he took cognizance against the plaintiff
and heirs of Lallan for illegal transfer of the
Government land. At the same time, land owners
and other persons filed affidavit before the District
Magistrate in respect of plot No. 26 to be declared
as State land in place of plot No. 197, whereafter
possession of plot No. 26 had been taken by the
District Magistrate as surplus land and the same
stood vested in the State Government and
possession thereof had also been handed over to the
State Government.
16.In the supplementary counter affidavit filed
on behalf of plaintiff-respondent, it is stated that the
land of Bhola covered by plot No. 197 was never
declared surplus in ceiling proceedings. As a matter
of fact, the proceedings registered as return No.
3234 were dropped by order dated 18.12.1980 filed
as Annexure CA-1 to the counter affidavit. The
Competent Authority proceeded against co-share
holder Lallan and declared 1.08 acres of land in plot
No. 197 from his share as surplus. As regards the
order dated 18.12.1980, it is stated in the affidavit
16 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
that the said order was filed by the plaintiff
alongwith an application 38-C under Order XLI Rule
27 of Code of Civil Procedure before the first
Appellate Court. The said application was allowed
by the Appellate Court by order dated 08.11.2013,
which has attained finality. The same order is also
annexed as Annexure No. 12 to the affidavit filed
alongwith stay application by the appellant himself
as paper No. 42-C/2. The entire order is reproduced
as under:-
"न्यायालय सक्षम प्राधि'कारी/संय
ुक्त
o61v(4.,1Ja भूनिम
सीमारोपम, गोरखपुर
Al)J0) 'ारा 8(4)- 1Ja भूनिम (अधि'कतम सीमा एवं
6p61dG1) A&'61dG,1976
1. 1Ja भूनिम ( अधि'कतम o ChG o<pto6p61dG1 )
A&'61dG , 1976 की 'ारा 6(1) के o Al)J0) o CBN o k,5
Rd GN No1(o6ppaFhoCtBd o 3234 प्रस्तुत निकया o7TCGroIl4B1(
जंगल सालिलक राम के खसरा-1TUa 26(0-92-0), 172(0-
71-0) पूरा, 18(1-81-0), 81(0-23-0), 141(2-
08-0), 197(2-64-0) में आ'ा, 62(0-16-0),
63(0-60-0), 67(0-32-0), 77(0-08-0), 79(0-
04-0), 82(0-09-0), 83(0-13-0), 85(0-06-
0), 89(0-03-0), 158(0-04-0) में 1/8 भाग कहा
Waod4oCho.4 o6.oI1.( ok Co(p ChdoCp1oC64) भूनिम भी
है। प्रारूनिपक निववरणी 20-11-78 को जारी की गई जिजसके
निवरुद्ध आपलि\ प्राप्त ह
ुई।
आपलि\ के CGu01 में इंतखाब N)^1h
1383 से 85फ, उद्धरण खसरा 1382, 1383, 1386 और
1387फ प्रस्तुत निकया गया। G01( अधि'वक्ता को C,1 और
पत्रावली का ApNB.1 निकया।
2. पत्रावलीo ka o IkN`' o ]t)N U o N)^1h o1383 से
85फ खाता संख्या 242,258,263/5 केoApNB.1oC(o%k@
17 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
होता है निक निववरणीoGro7T1oJ aboGroTB-जो निववरण लिलखा गया है
वह सही 40Xo]C.( oA&)caMoTtJNoC SN.a Go.( oNCa o1TUa
58निम(0-67-0) में निववरणीo:%),).) 0o. o64%C o(' o40X
]CoJ a(o.Bo6ppaFoG(o14ho6vN d oJd o40Xok5 pNhokaoIkN`'
उद्धरण खसरा 1382, 1383, 1386 और 1387फo.Bov(N1(
C(o%k@o4B) o40o6.oNCa o1TUao81(0-23-0) में से 0-17-
0 1382 और 83फ में आबादी निकन्तु 86 और 87फ में पूरा 0-
23-0 आबादी लिलखा गया है, खसराo 1TUa o82(0-09-0),
83(0-13-0), 85(0-06-0), 158(0-08-0) लगातार
आबादी 1382, 1383, 1386 और 1387फ अंनिकत निकया गया
है और शेर्ष भूखण्डों पर फसलें, मक्का, ' 1 अर्थीवा बाग को प्रनिवनि@
28-1-76 C(okDp0o)u o. N l)aoGro.>oJ)o40XoA)<poनिववरणी
में आये ह
ु<oCDNdeboGroC(o.( pNoNCa o1TUao
81(0-23-0)
. o(' oAu 0)o0-11-5, 82, 83, 85 और 158 के क
ुल
क्षेत्रफल 0-32-0 का 1/8 Au 0)o0-04-0 d 1ho.
ुल
0-
15-5 रिरक्त भूनिम के रूप में है और शेर्ष भूखण्ड क
ृनिर्ष भूनिम के
Al)J0)o40X oनिववरणीo G(o(p ChdoCp1oC64)oCD6Go315.07
pJ0Ghaao40Xo]CGrocaMoCD6Go0-15-5 Au 0) o627.28 pJ0
GhaaohBi1(okaocaMoCD6Go. o6p%) ao2000 pJ0oGhaaoC(o.G
होता है। A)jo6ppaFhoG(oChG oC(oA&'.ocaMoCD6Go14ho40XoT ah
.>oJ)o: Y6k.o6ppaFho61a%)o.>oT )ho40X
3. गोरखपुरo.>oG4 dBT1 o27-11-80 से प्रभाव में
(oJ)o40XoG4 dBT1 oGroTtJNoC SN.a Go.( oNCa o1TUao18,
141, 197, 26, 172, 58, 62, 63, 67, 77, 79 और 89
का भू - उपयोग ज्ञात निकया जाय और यनिद भू'ारक के पास सीमा
से अधि'क भूनिम हो तो निववरणी :%),).) 0 को 1B6aC जारी की
जाय निक निववरणी प्रस्तुत करें ।
6v1 t.j निदसम्बर 18,1980”
(emphasis supplied)
17.Annexure CA-1 forming part of the counter
affidavit filed on behalf of respondent No. 2 State of
U.P., being order dated 10.11.1980, as referred to
by Shri Navin Sinha during the course of
arguments, does not find place on original record of
18 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
proceedings and, therefore, the same cannot be
read while deciding the second appeal. It was
neither on record of the trial court nor was even
admitted in additional evidence at the first appellate
stage. Even otherwise, in view of subsequent order
dated 18.12.1980 cancelling the statement of
vacant land, the said order, if at all had been in
existence, would be deemed to have been nullified
so as to conclude that plaintiff’s share in plot No.
197 was never declared surplus under the
proceedings of the Act of 1976. The order dated
18.12.1980 would, thereafter, attach finality to the
ceiling proceedings by which only this much was
observed regarding plot No. 197 that since master
plan of Gorakhpur had come into force w.e.f.
27.11.1980, the land use of various Khasra numbers
including Khasra No. 197 be determined and, in
case the land holder was having land in excess,
notice be issued to him for submitting statement. It
is, therefore, established on record that the
proceedings, initiated against plaintiff-Bhola were
dropped by the ceiling authorities vide order dated
18.12.1980 under Section 8(4) of the Act of 1976
and the share of Lallan in plot No. 197, which was
declared vacant stood vested in State and also
recorded as such in the name of State of U.P. in the
revenue records. It is also established that plot
No.26 was never subject matter of ceiling
19 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
proceedings and by mere application or affidavit
alleged to have been submitted by plaintiff-Bhola,
land in dispute covered by plot No. 26 cannot be
deemed to have vested in favour of State especially
when no share of plaintiff-Bhola in plot No. 197 was
ever declared surplus. Hence, the lease deed dated
11.01.1991 registered on 13.01.1993, would not
confer any right upon the defendant-appellant.
Further, the lease deed was executed in pursuance
of Government Order dated 29.04.1989, which
mentioned plot Nos. 189, 190, 207, 208, 198, 117,
110, 107, 103 and 121. Neither plot No. 197 nor
plot No. 26 was included in the aforesaid
Government Order.
18.Now carefully examining the lease deed
executed by the State of U.P. in favour of the
appellant, being paper No. 41-C/2 it is found that
though the deed was executed/prepared on
11.01.1991, it was signed by the witnesses and
executants on 28.12.1992 and 30.12.1992 and was
registered in the office of Sub-Registrar on
13.01.1993. The lease deed runs and ends in twelve
(12) pages, however, alongwith the same, a letter
dated 29.10.1991 sent by the District Magistrate to
the Deputy Secretary, Awas Anubhag-6, U.P.
Government, Lucknow through special messenger is
attached. The letter reads as under:
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Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
“egksn;]
d`i;k miZ;qDr fo"k;d ’kklu ds vkns’k i= la0
1947@9&o0Hkw0 91&385 ;w0lh0@86 fnuk¡d 17 flrEcj
1991 dk lUnHkZ xzg.k djsaA dSFkksfyd Mk;ksfll vkWQ
xksj[kiqj dks vkfoaVr Hkwfe rFkk ekSds ij okLrfod dCts
okyh Hkwfe dk fooj.k pkVZ ds :i esa layXu djrs gq,
vuqjks/k gS fd okLrfod dcts okyh Hkwfe ds lEcU/k esa
iV~Vk vfHkys[k dk fu"iknu djkus dk d"V djsaA”
(emphasis supplied)
Just below this letter, a table is attached,
which is titled as “dSFkksfyd Mk;ksfll vkWQ xksj[kiqj dks vkoafVr
Hkwfe] tks mUgsa okLrfod :i esa ekSds ij izkIr gS dk fooj.k:-” In it,
various plots have been shown, but there is no
mention of plot No. 197 or plot No. 26. Below the
table, a NOTE signed by three persons, i.e.
Surveyor, Junior Engineer and Assistant Engineer
on 24.05.1991 is contained. The NOTE reads as
under:
“uksV%& 1& vkjkt+h la[;k 24] 25 o x 28 lhekf/kD;
?kksf"kr rFkk jkT; ljdkj esa fufgr Hkwfe gSA
2& vkjkt+h la[;k 26 ftykf/kdkjh] xksj[kiqj ds
vkns’k la[;k 1611 fnuk¡d 13-3-91 }kjk vkjkt+h
la[;k 197 ds LFkku ij fy;k x;k gS tks
vkoaVh laLFkk ds dCts esa j[k j[kko gsrq fn;k
x;k gSA
3& vk0 la0 128 fLFkr ekStk f’koiqj vk0 la0
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its President vs. Bhola deceased and 4 others)
121 ds LFkku ij ftykf/kdkjh ds vkns’k fnuk¡d
13-3-91 }kjk fy;k x;k gSA”
(emphasis supplied)
19.The lease deed was signed by Shri Subhash
Chandra Bankhandi, Joint Secretary, Government of
U.P., Awas Anubhag on behalf of the State
Government. The aforequoted 2 pages added to the
deed do not bear signatures of Shri Bankhandi. The
letter appended to the deed recites that plot No. 26
has been taken in pursuance of letter of the District
Magistrate dated 13.03.1991 in exchange of plot
No. 197 and its possession has been handed over to
the appellant for its maintenance (RAKH RAKHAO).
The said letter cannot be termed as “lease” or “part
of lease deed”, which was only in respect of land
detailed in the Government Order dated 29.04.1989
as recited in the lease deed. The Court also finds
that when the certified copy of the lease deed was
issued from the office of Sub Registrar, the
aforesaid letter dated 29.10.1991 and chart dated
24.03.1991 were also surprisingly made part of the
lease deed, but, in view of the fact that plot No. 26
did not find mention in the table/chart, mere
mention of plots No. 197 and 26 in Note No. 2
written at the bottom of the table/chart, would not
mean that the land stood vested in the State or that
it became part of lease deed.
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Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
20.Testing the submission of Shri Sinha that
once the plaintiff-respondent, by submitting
application and affidavit before the District
Magistrate, himself transferred right, title, interest
and possession of his plot No. 26 to the District
Magistrate and, therefore, he would have no right
to challenge the action of the State or the lease
deed, the same does not hold any water in it,
inasmuch as, title in immovable property does not
vest by mere admission . Even otherwise, the
admission, if any, is never a conclusive evidence as
to the truth of the matter stated therein and it is
only a piece of evidence, weight to be attached to
which must depend on the circumstances under
which it is made. Admission can also be shown to be
erroneous or untrue, so long as the person to whom
it was made acted upon it to his detriment.
Reference in this regard can be made to the
judgments of the Supreme Court in the case of
Nagubai Ammal and others vs. B. Shama Rao
and others, AIR 1956 SC 593 and K.S.
Srinivasan vs. Union of India AIR 1958 SC 419.
Significantly, plaintiff-Bhola, who appeared as PW-1
before the trial court, stated in his cross-
examination that he had sold his land covered by
plot No. 197 and that the plot No. 26 being a grove,
had been surrounded by the present appellant.
Raising of boundary wall by the appellant was also
23 of 47
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(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
alleged. As regards submitting application or
affidavit before the ceiling department, when
suggestion was put to PW-1, he stated that-
“ ;g dguk xyr gS fd eSusa lhfyax foHkkx esa bl
vk’k; dk dksbZ ’kiFk i= fn;k Fkk fd esjh vkjkt+h
ua0 197 tks fd eSa csp pqdk Fkk ds cnys esa 26 ua0
ys fy;k tk, ”
(emphasis supplied)
21.Now, to understand the documents allegedly
conferring title in favour of State qua disputed plot
No. 26, it is noteworthy that the entire case of both
the defendants is based upon application No. 157-क
and supporting affidavits 158-ग, 159-ग, 160-ग, and
161-ग, by which rights in disputed plot No. 26 were
allegedly surrendered or relinquished by the
plaintiff in favour of the defendants. The application
157-क contains thumb impression of Bhola, Shri
Ram and Smt. Khirni and affidavit 158-x was sworn
by Smt. Khirni, wife of late Sudama, affidavit 159-ग
was sworn by Mauzam, son of Sudama, affidavit
160-x was sworn by plaintiff-Bhola and affidavit
161-x was sworn by Shri Ram, son of Lallan. Except
the plaintiff-Bhola, deponents of all other affidavits
are heirs of late Lallan. In the cross examination of
24 of 47
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(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
plaintiff-Bhola (PW-1) as regards affidavit 158-C, he
stated that he could not identify as to whether it
contained thumb impression of Smt. Khirni, who
was illiterate. Similar was the stand with respect to
other affidavits except affidavit of Mauzam over
which his signatures were identified by plaintiff-
Bhola. However, since the dispute in the present
case is as to whether any share of Bhola held in plot
No. 197 was or was not declared surplus under the
Act of 1976, only affidavit 160-x is relevant and
there appears to be no dispute that remaining part
of the said plot No. 197 was declared as surplus,
however, the same related to Lallan succeeded by
his heirs and not to the plaintiff. As regards affidavit
160-x plaintiff-Bhola stated that:-
“eq>s ;kn ugha gS fd i=koyh ij miyC/k dkxt+
la0 160 x ’kiFk i= esjs }kjk fn;k x;k gS ;k
ugh a ”
(emphasis supplied)
22.From the entire cross-examination of PW-1, it
cannot be inferred that he ever proved the affidavit
160-x as having been submitted by him.
Surprisingly, no suggestion was put to him as
regards his thumb impression on application 157-क.
Therefore, in absence of such suggestion, contents
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(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
of the application or his thumb impression over
document No. 157-क, could not be read in evidence
against the plaintiff-respondent.
23.At the appellate stage, pursuant to an order
passed on an application under Order XLI Rule 27
read with Section 151 of Code of Civil Procedure,
various documents alongwith list Paper No. 40-C
were admitted in additional evidence. A certified
copy of the lease deed being paper No. 41-C/1 to C/
13, letter dated 29.10.1991 being paper No.
41-C/14 and schedule/table being paper No. 41/15
are included in such documents. The order dated
18.12.1980 passed by the Competent Authority
establishing that plaintiff’s land covered by plot No.
197 was never declared surplus was also admitted
as paper No. 42-C/2. Paper No. 43-C/2 on record is
a map drawn by the Inspector/Surveyor, which also
shows that 4354.76 Sq. Mts. of land covered by plot
No. 197 was declared as surplus vide return No.
3235 relating to Lallan and there is no mention of
the land belonging to plaintiff-Bhola or his share in
plot No. 197. The documentary evidence produced
by the appellant before the courts below, therefore,
reads against the appellant and cannot infer that
the land belonging to the plaintiff-respondent was
ever declared as vacant/surplus. Therefore, no
question, either factual or legal, as regards
26 of 47
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(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
exchange of plot No. 26 corresponding to share of
the plaintiff in plot No. 197 would arise.
24.There is also on record an information sought
from the Assistant Commissioner Stamps/Sub
Registrar, Sadar-I, Gorakhpur under the Right to
Information Act by application dated 03.04.2023,
being paper No. 44-C/2 and 44-C/3, by which
various objections and queries were raised as
regards issuance of certified copy of lease deed,
which initially contained 24 pages (both sides), but
as to under what circumstances the remaining
pages not signed by the executants of the lease
deed were made part thereof while issuing certified
copy of the said deed. On such application, the Sub
Registrar-I, Gorakhpur informed on 20.04.2013 that
the deed contained pages No. 1 to 12 duly signed by
the executants thereof and, due to clerical error,
the Government letter might have become part of it.
As regards issuance of certified copy, Rule 241 of
the Registration Manual was appended stating that
the typographical error so occurred would not affect
validity of the lease deed that is a question within
jurisdiction of competent Court. In that connection,
a letter dated 30.04.2013 issued by the Competent
Authority, Urban Land Ceiling, Gorakhpur also
forms part of the record as paper No. 45-C/1.
alongwith which, a three member report, paper No.
27 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
45-C/2 is attached. These three members were
Office Assistant, Peshkar and Nodal Officer and
they responded to the query raised under Right to
Information Act in the manner that against every
question raised, a remark: ‘copy of registered
document received in the office is attached as
Annexure No. 1’ is mentioned. It is, therefore, clear
that all officers, who were involved in responding to
the RTI query, avoided answering the question that
was germane to the controversy as to in what
manner Government could treat plot No. 26 as part
of the lease deed executed in 1991-1992 and
registered in the year 1993.
(emphasis supplied)
25.This Court would also not ignore a letter
dated 26.11.1991, paper No. 46-C/10, issued by Shri
Subhash Chandra Bankhandi, Joint Secretary of
U.P. Government to the District Magistrate,
Gorakhpur, clearly mentioning that plot No. 26, that
was allotted to the appellant-Society in lieu of plot
No. 197 for the purposes of maintenance, was not
affected by ceiling operations and, therefore, since
plot No. 26 had not vested in the State under the
Ceiling Act, as to under which provision of law it
could be allotted to the Society. Clarification was
sought from the District Magistrate on this line. On
similar lines, an earlier letter dated 10.04.1991 (46-
28 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
C/7) was written by the Joint Secretary asking the
District Magistrate as to under which provision of
law land unaffected by ceiling operations could be
released. The District Magistrate, on 21.05.1991,
responded to the letter dated 10.04.1991 and,
instead of answering the query raised, it attacked
on the sale made by the tenure holders of plot Nos.
197 and 121 and, as regards release of unaffected
land, it was mentioned that there was no provision
under the Ceiling Act, however, on the alternative
of change of land holders, consideration can be
made at the level of the Government.
26.As regards right of Govt./competent Authority
to purchase a vacant land in excess of ceiling limit,
it would now be quite necessary to refer Section 26
of the Act of 1976, which reads as under:
“26. Notice to be given before transfer of
vacant lands. (1) Notwithstanding anything
contained in any other law for the time being in
force, no person holding vacant land within the
ceiling limit shall transfer such land by way of
sale, mortgage, gift, lease or otherwise except
after giving notice in writing of the intended
transfer to the competent authority.
(2) Where a notice given under sub-section (1) is
for the transfer of the land by way of sale, the
competent authority shall have the first option
to purchase such land on behalf of the State
Government at a price calculated in accordance
with the provisions of the Land Acquisition Act,
1894 (1 of 1894) or of any other corresponding
29 of 47
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(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
law for the time being in force and if such
option is not exercised within a period of sixty
days from the date of receipt of the notice, it
shall be presumed that the competent authority
has no intention to purchase such land on behalf
of the State Government and it shall be lawful
for such person to transfer the land to
whomsoever he may like: Provided that where
the competent authority exercises within the
period aforesaid the option to purchase such
land the execution of the sale deed shall be
completed and the payment of the purchase
price thereof shall be made within a period of
three months from the date on which such
option is exercised.
(3) …………....”
(emphasis supplied)
27.Section 26(2) quoted above, though gives first
option to the Competent Authority to purchase land
on behalf of State Government, in order to exercise
such an option, compliance of sub-Section (1) of
Section 26 is a prerequisite and further
requirement is calculation of a price of the land in
accordance with the provisions of the Land
Acquisition Act, 1894 or any other corresponding
law for the time being in force. The provision
further clarifies that if such option is not exercised
within a period of 60 days from the date of receipt
of the notice, it shall be presumed that the
Competent Authority has no intention to purchase
such land on the behalf of the State Government.
Section 26(1) of the Act, therefore, recognises mode
30 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
of transfer by way of sale, mortgage, gift, lease or
otherwise but it does not contemplate any transfer
by submitting a letter by the vendor or filing of
affidavit by him.
(emphasis supplied)
28.Transfer of Property Act, 1882 recognizes
only five (5) modes of transfer of property viz, sale,
gift, lease, mortgage and exchange. The appellants’
case is based upon exchange of land made by the
plaintiff through application 157- d and the
affidavits forming part thereto. No case of sale, gift,
lease or mortgage was set up by the appellant-
Society or the State of U.P. Therefore, even going to
the extent of examining the case of exchange, it
would be apt to refer Section 118 of the Act, 1882
as contained under Chapter VI thereof. “Exchange”
has been defined as under:
“118. “Exchange” defined. —
When two persons mutually transfer
the ownership of one thing for the
ownership of another, neither thing or
both things being money only, the
transaction is called an “exchange”.
A transfer of property in completion of
an exchange can be made only in
m anner provided for the transfer of
such property by sale.”
(emphasis supplied)
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Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
29. It is thus clear that even if two persons
mutually transfer ownership of an immovable
property, in order to the transaction being termed
as “exchange”, it has to be only in the manner
provided for transfer of such property by sale.
Therefore, “exchange” is permissible only when it
has ingredients of a “sale” covered by Section 54 of
the Act. In the present case, such ingredients are
completely missing and, therefore, alleged handing
over possession by the plaintiff to the State/District
Magistrate cannot be termed as “exchange” of
plot(s).
(emphasis supplied)
30.Even if the provision of “exchange”, as
contained in Uttar Pradesh Zamindari Abolition &
Land Reforms Act, 1950, qua agricultural land is
examined, as per section 161, “exchange” means as
follows:
“161. Exchange. - (1) A bhumidhar may
exchange with-
(a) any other bhumidhar land held by him; or
(b) any [Gaon Sabha] or local authority, lands
for the time being vested in it under Section
117:
Provided that no exchange shall be made
except with the permission of an Assistant
Collector who shall refuse permission if the
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(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
difference between the rental value of land
given in exchange and of land received in
exchange calculated at hereditary rates is more
than 10 per cent of the lower rental value.
(1-A) Where the Assistant Collector permits
exchange he shall also order the relevant
annual registers to be corrected accordingly.
(2) On exchange made in accordance with sub-
section (1) they shall have the same rights in
the land so received in exchange as they had in
the land given exchange.”
31.This Court is conscious of the situation that if
transfer of immovable property by a citizen to the
State or inter-se two citizens is permitted through
exchange of letters or affidavits, it would lay down
an unprecedented and unique but absolutely illegal
mode of transfer of property and immovable
property would, then, become capable of being
transferred completely dehors the provisions of the
Transfer of Property Act, Registration Act or any
other law governing creation of rights in immovable
property. In the instant case, the lease created in
favour of the appellant is for a period of 90 years
and, therefore, it had to be through any recognized
mode of transfer qua the disputed plot in clear
terms and, even before that, it must have been
established on record that initial transfer by
plaintiff-Bhola in favour of State/District Magistrate
was having a sanction of law, which is not found
here.
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Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
32.Now, in order to ascertain as to whether any
law actually permits taking over possession on the
basis of alleged voluntary surrender by the tenure
holder and whether this Court is proceeding in right
direction while deciding the instant appeal, this
Court went through entire file to find anything
substantial which could read in support of the
appellant’s plea. The Court found on record written
submissions filed earlier on behalf of appellant
through which it is contended that “voluntarily
surrendering and delivering possession” is included
in “vesting” under Section 10 (3) of the Act of 1976
and reliance in this regard has been placed upon a
judgement of Supreme Court in State of U.P. vs
Hari Ram, 2013 (4) SCC 280, in paragraphs 28
and 29 whereof it is observed as follows:
“28. The ‘vesting’ in sub-section (3) of
Section 10, in our view, means vesting of
title absolutely and not possession though
nothing stands in the way of a person
voluntarily surrendering or delivering
possession. The court in Maharaj Singh
v. State of UP and Others (1977) 1 SCC
155, while interpreting Section 117(1) of
U.P. Zamindari Abolition and Land Reform
Act, 1950 held that ‘vesting’ is a word of
slippery import and has many meaning and
the context controls the text and the
purpose and scheme project the particular
semantic shade or nuance of meaning. The
court in Rajendra Kumar v. Kalyan
(dead) by Lrs. (2000) 8 SCC 99 held as
follows:
34 of 47
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its President vs. Bhola deceased and 4 others)
“We do find some contentious
substance in the contextual facts,
since vesting shall have to be a
“vesting” certain. “To vest, generally
means to give a property in.” (Per
Brett, L.J. Coverdale v. Charlton.
Stroud’s Judicial Dictionary, 5th edn.
Vol. VI.) Vesting in favour of the
unborn person and in the contextual
facts on the basis of a subsequent
adoption after about 50 years without
any authorization cannot however but
be termed to be a contingent event.
To “vest”, cannot be termed to be an
executor devise. Be it noted however,
that “vested” does not necessarily
and always mean “vest in possession”
but includes “vest in interest” as well.
29. We are of the view that so far as the
present case is concerned, the word
“vesting” takes in every interest in the
property including de jure possession and,
not de facto but it is always open to a
person to voluntarily surrender and deliver
possession, under Section 10(3) of the Act.”
(emphasis supplied)
33.The argument of the appellant as contained
in the written submissions and also pressed before
the Court is that once plaintiff had, by application
and affidavit, agreed for acquisition and taking
possession of plot No. 26 in lieu of plot No. 197, he
would be deemed to have abandoned his right and
interest in the land in the year 1991 and the said
conduct of plaintiff would operate as estoppel
against him and, therefore, in view of provisions of
35 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
Section 41(g) and 41(i) of the Specific Relief Act, his
conduct would dis-entitle him from claiming any
reliefs.
34.This Court is of the view that the judgment in
Hari Ram (supra) would be of no help to the
appellant, inasmuch as, therein, voluntary
surrender was discussed in the light of Section
10(3) of the Act, 1976 and it was observed that
vesting under the said provisions means absolute
vesting of title and nothing stands in the way of a
person voluntarily surrendering or delivering
possession. It would be quite significant to
reproduce here section 10 of the Act of 1976 and its
relevant sub-sections for a ready reference:
“10. Acquisition of vacant land in excess
of ceiling limit.-(1) As soon as may be after
the service of the statement under section 9
on the person concerned, the competent
authority shall cause a notification giving the
particulars of the vacant land held by such
person in excess of the ceiling limit and
stating that-
(i) such vacant land is to be acquired by the
concerned State Government; and
(ii) the claims of all persons interested in such
vacant land may be made by them personally
or by their agents giving particulars of the
nature of their interests in such land, to be
published for the information of the general
public in the Official Gazette of the State
concerned and in such other manner as may
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be prescribed.
(2) After considering the claims of the persons
interested in the vacant land, made to the
competent authority in pursuance of the
notification published under sub-section (1),
the competent authority shall determine the
nature and extent of such claims and pass such
orders as it deems fit.
(3) At any time after the publication of the
notification under sub- section (1), the
competent authority may, by notification
published in the Official Gazette of the State
concerned, declare that the excess vacant land
referred to in the notification published under
sub- section (1) shall, with effect from such
date as may be specified in the declaration, be
deemed to have been acquired by the State
Government and upon the publication of such
declaration, such land shall be deemed to have
vested absolutely in the State Government free
from all encumbrances with effect from the
date so specified.
(4) ……………………….”
(emphasis supplied)
35.A bare perusal of sub-section (3) of Section
10 would reveal that it speaks of deemed vesting
absolutely in the State Government, but uses words
“such land”, which means that the land which,
being in excess of the ceiling limit, had been
declared as vacant. By no stretch of imagination,
vesting or deemed vesting or absolute vesting or
voluntary surrender can be understood in respect of
land, which was exempted from ceiling proceedings,
37 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
which exactly is the situation in the present case. As
held above, no part of plaintiff’s share in plot No.
197 was ever declared as surplus/vacant, rather,
under the order dated 18.12.1980 passed by the
Competent Authority, statement No. 3234 furnished
by the plaintiff was accepted and the said order had
attained finality.
(emphasis supplied)
36.The Court now considers the order dated
27.07.2022 passed by the District Magistrate,
Gorakhpur, which has been admitted as additional
evidence in the instant appeal vide order dated
21.08.2024 passed on Civil Misc. Application No. 24
of 2022 under the provisions of Order XLI Rule 27
of Code of Civil Procedure by consent of parties.
The order dated 27.07.2022 came into existence
during the pendency of the instant second appeal
and it refers to the proceedings held under the Act
of 1976 in relation to plot No. 197 alongwith other
plots, institution of Original Suit No. 307 of 1991
giving rise to the instant appeal, proceedings of first
Appellate Court and its decision and it is mentioned
in the order that in view of order dated 13.03.2014,
i.e. the first Appellate Court’s judgment, being
effective and the fact that plot No. 26 was given to
the appellant only for the purposes of maintenance
and was not allotted to it and that shortfall of the
38 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
land allotted to appellant becomes complete from
the land covered by plots No. 24 and 25, the order
dated 13.03.1991 by which disputed plot No. 26 had
been allotted to the appellant for maintenance
purposes, is recalled. It is also mentioned that the
order dated 27.07.2022 would remain subject to the
final decision to be pronounced in the present
second appeal. Once it is held that the disputed plot
No. 26 had never lawfully vested either in State or
in District Magistrate nor did it form part of the
lease deed executed in favour of appellant nor was
transfer of its possession otherwise lawful having
support of any statutory provision, the order dated
27.07.2022 recalling the previous order of giving
the property to the appellant for maintenance, is
hereby upheld.
37.It is also found that the Original Suit was
contested both by the appellant, who was defendant
No. 1 and State of U.P. that was defendant No. 2,
however, no second appeal has been filed by the
State of U.P. against the impugned appellate decree
and, therefore, it has attained finality against State
of U.P. For this additional reason, challenge made
by the present appellant to the appellate decree can
be said to be quite weak if not baseless, inasmuch
as, the appellant was, at the best, a mere caretaker
or Manager of the property as per Note No. 2
39 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
contained in Annexure which, as aforesaid, did not
form part of the lease deed. It is also significant to
mention that the original suit was filed in the year
1991, the lease deed was written on 11.01.1991, it
was signed by the witnesses and executants on
28.12.1992 and 30.12.1992 and the same was
registered in the office of Sub Registrar on
13.01.1993, i.e. during the pendency of the suit. The
said dates are self explanatory to demonstrate that
things were managed to the detriment of the
interest of the plaintiff-respondent. The action lis
pendens would certainly be subject to final decision
in the lis covered by the suit and the appeal(s).
38.From perusal of entire record, it becomes
crystal clear that settlement or allotment or even
coming into possession over the disputed plot No.
26 was not through any mode recognized under any
law. Even the District Magistrate did not find any
provision under which a land unaffected by ceiling
proceedings could be allotted or settled in favour of
the Society and everything was left at the discretion
of the State Government. Interestingly, by the time
when the aforesaid correspondence was being
exchanged inter-se District Magistrate and the
State Government, the lease deed had been
executed or at least prepared on 11.01.1991. As
noted above, executants of the deed, i.e. Finance
40 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
Secretary of the appellant and the Joint Secretary of
the State Government as well as witnesses signed
the deed in December, 1992, i.e. after about 23
months. The deed was, thereafter, registered in the
office of the Sub-Registrar on 13.01.1993. There is
no decision of the State Government on record, in
consonance with the provisions of Act of 1976 so as
to justify taking over rights and possession over plot
No. 26. Therefore, the action of the respondents is
nothing, but apparently property grabbing by the
State officials to the detriment of the interest of a
rustic tenure holder, who fell as a prey in the sharp
and deadly jaws of giant administrative machinery
run by the State in collusion with the appellant and
this Court can safely reach to a conclusion that even
the application 157-Ka and the affidavits enclosed
thereto might have been obtained from the tenure
holders including the plaintiff-respondent under
coercion in order to grab the land covered by plot
No. 26, which might suit to the proposal of raising
some constructions by the appellant-Society over
the disputed land or the land adjoining thereto. This
Court cannot approve such a property grabbing by
the State or the appellant, particularly when it has
no statutory or otherwise sanction of law. The office
of the Sub-Registrar too is under the supervision of
the District Magistrate being head of the
Collectorate and in the circumstances elaborated
41 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
above, it can safely be concluded that all the
officials and their team members joined hands
together to design and engineer transactions and
actions that had no legal foundation or sanctity and,
therefore, irresistible conclusion drawn by this
Court is that raising of boundary wall over the
disputed land or any other constructions thereon or
taking over possession of the same is a clear act of
trespass.
SUBSTANTIAL QUESTIONS OF LAW ANSWERED
39.In view of above discussion, once it is found
that the alleged admission made by the plaintiff-
Bhola in application and affidavit allegedly
submitted by him is of no consequence, significance
or legal sanctity and cannot be termed as
documents conferring right, title, interest or
possession in favour of the appellant or the State of
U.P., and having further found that share of
plaintiff-Bhola in plot No. 197 was never declared
surplus, the first question, on which the instant
second appeal was admitted, is answered in the
manner that the first Appellate Court was perfectly
justified in decreeing the suit and no factual or legal
error is found in its order. The second question
directly/indirectly relates to jurisdiction of the civil
court in upsetting the ceiling proceedings. Although
no argument was advanced from the appellant side
42 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
in this regard, since the Court has to answer the
said question, it itself went through the entire Act of
1976 and did not find any provision which may
either expressly or impliedly bar jurisdiction of civil
court. Even if sections 7, 11, 12, 32 and 33 are
examined, the same relate to the land which is
declared vacant under the Act and the proceedings
before the Competent Authority, Tribunal, Appellate
Court, State Government and also this Court in the
form of second appeal against the decision of a
Tribunal under Section 12, which refers to Section
11 that is a provision for payment of amount for
vacant land acquired. In the instant case, once first
Appellate Court as well as this Court has found that
no share of plaintiff-Bhola in plot No. 197 was ever
declared surplus and finality to this fact was
attached by the order dated 18.12.1980 passed by
the Competent Authority with no further
proceedings thereafter except unlawful and
artificial vesting of property covered by plot No. 26
in alleged exchange of plot No. 197, which had no
concern with the Government as far as plaintiff-
Bhola’s share is concerned, none of the provisions
under the Act of 1976 would create an express or
implied bar against exercise of jurisdiction by civil
court so as to protect individual civil right to
property, which the plaintiff asserted in his favour.
In this view of the matter, it is held that civil suit
43 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
was perfectly maintainable as per Section 9 of the
Code of Civil Procedure. Hence, the judgment and
decree drawn by the first Appellate Court is well
within jurisdiction as the suit property covered by
plot No. 26 had no concern with the appellant or the
State and was alien to ceiling proceedings. As
regards third question, even if the defendant-
appellant had raised constructions over the said
plot by investing huge amount, it is held that the
suit was not barred by principles of estoppel and
acquiescence as there was neither any voluntary
surrender of property nor a transfer having legal
sanction in favour of defendants. Consequently, all
the three questions are answered in favour of the
plaintiff-respondents and against the appellant as
well as the State and its functionaries.
40.This Court, therefore, does not find any
factual or legal error in the first Appellate Court’s
judgment except that heavy cost and damages
should also have been imposed on the appellant and
the State. Once this Court has arrived at a
conclusion that the action of the State as well as
appellant did not have any sanction of law, rather it
amounted to grabbing land of a rustic villager and
committing trespass over it, the instant appeal
deserves to be dismissed with heavy cost.
41.This Court may observe that third relief
44 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
claimed in the plaint was with respect to award of
cost and fourth relief was in the form of “any other
relief which the Court may deem fit and proper in
the facts of the case”. The Court may take aid of
Rule 33 of Order XLI of Code of Civil Procedure
where the Appellate Court shall have power to pass
any decree and make any order which ought to have
been passed as the case may require and the said
power may be exercised by the Court
notwithstanding that the appeal is as to part only of
the decree and may be exercised in favour of all or
any of the respondents or parties, although such
respondents or parties may not have filed any
appeal or objection. These provisions do apply to
Second Appeals also in view of Order XLII Rule 1 of
Code of Civil Procedure. The Court finds that the
first appeal was dismissed with cost, but without
quantifying the same.
42. This Court deems it appropriate to refer latin
legal phrase fiat justitia ruat caelum that means
"Let justice be done though the heavens fall." The
maxim signifies the belief that justice must be
realized regardless of consequences. Considering
the length of trespass and also applying doctrine of
e x debito justitiae which applies for rendering
complete justice in accordance with the
requirement of justice in the given facts of a case,
45 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
since taking over possession over the plaintiff’s land
by the State and the appellant, joining hands
together and with the aid of the entire State
machinery at district and secretariate level by
manipulating documents, one after another, has
resulted in depriving the plaintiff and his legal heirs
of user, occupation, possession and utilisation of
their immovable property for a period of more than
32 years, this Court thinks it just and proper to
award exemplary cost and damages against both
the defendants. The Court quantifies the same as
Rs.10,00,000/- (rupees ten lacs).
43.The second appeal, accordingly, stands
dismissed with cost of Rs.10,00,000/- (Rupees
ten lacs) to be jointly borne by the appellant and
the State Government and its functionaries in equal
share. The cost shall be deposited before the
Executing Court within a period of three months
from the date of this decision and the same shall be
immediately released by the Executing Court in
favour of legal representatives of plaintiff-Bhola
without furnishing any security. It shall be open for
the State Government to fix liability and
responsibility upon any individual official(s) to bear
cost but, in any case, it shall be deposited and paid
in the manner as directed above. The Executing
Court shall, within six months henceforth, execute
46 of 47
Second Appeal No. 461 of 2014
(The Catholic Diocese of Gorakhpur through
its President vs. Bhola deceased and 4 others)
the decree in toto alongwith decree of cost, if not
deposited by the judgment debtors, as directed
above.
44.All pending applications stand disposed off.
45. Office to forthwith prepare decree based
upon this judgment.
Order Date :- 10.09.2024
Sazia
(Kshitij Shailendra,J)
47 of 47
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