N.N. Sharma, J.

1. This appeal is directed against the judgment and decree of II Addl. District Judge, Varanasi dated 30-1-1974 confirming the decree dated 5-1-1973 of Civil Judge, Gyanpur in Suit No. 32 of 1971 by which Plaintiffs claim was decreed for declaration that they are the owners of the tank, trees and constructions situated in the property in dispute.

2. Plaintiff came to the court with the allegation that village Domanpur Barhath was formerly Namenzuri village of Kashiraj and in this village plot No. 397 measuring 8 Bigha 17 Biswas 2 Dhoors was tank which had been filled up.

3. It was further averred that Sri Bali Karan, father of the Plaintiff moved an application before Collector, Bhadohi and obtained settlement of 2 Bighas 10 Biswas out of this plot for digging the tank after payment of Nazrana amounting to Rs. 250/- on 16th June, 1942.

4. Plaintiffs father got the tank dug and secured another settlement dated 13th September, 1945 with regard to an area of 4 Biswas 10 Dhurs in plot No. 395, 1 Biswa 10 Dhurs in plot No. 396 and 3 Bighas 17 Biswas and 10 Dhurs in plot No. 397 on payment of fresh Nazrana amounting to Rs. 835/-. Thus he got the tank dug in an area measuring 6 Bighas 13 Biswas and 10 Dhurs. These agreements were registered documents.

5. It was further averred that Plaintiffs father obtained an inheritable right of ownership in respect of this tank; he had right to plant trees on the embankment of the tank.

6. Plaintiffs father planted trees, constructed a temple of Sri Ramjankiji on the Bhita (embankment); he also used to fish in the tank. The name of his father was mutated on this tank.

7. The Zamindari Abolition & Land Reforms Act came into operation in this village from 1st July, 1954 and thereafter Plaintiffs father continued to be the owner of the tank as well as the trees and the temple in dispute.

8. During consolidation operations Plaintiffs name was removed from the revenue record and he was directed to get his title decided by the Civil Court. However, his civil rights remained intact.

9. Some persons began to interfere with his right and so he had to file the suit for declaration of his rights and for injunction claiming that the land in dispute did not vest in the State of U.P. or in Gaon Samaj.

10. It appears that State of U.P. and Gram Sabha were impleaded as Defendants in this suit.

11. Both the Defendants filed written-statements dated 5-10-1971 and 31-1-1972 respectively. They raised similar pleas. It was conceded that the property in dispute lay in Namanzuri village of Kashiraj; it was further pleaded that the tank in plot No. 397 was an old tank. It was public tank. Plaintiff was not the owner of the tank in dispute and every resident of the village had a right to take bath and irrigate his field from this tank. The villagers also used to plant Singharas in it. The tank never lost its character as such.

12. It was admitted that the temple and well were constructed by the Plaintiffs father but the villagers used to worship the idol of Sri Hanumanji installed in it. Ramlila and Dhanush Yagya used to, be performed towards north of this tank. There was also a Panchayat Bhawan near this tank. After Abolition of Zamindari this tank vested in Gram Samaj. Five issues were framed in the suit by learned trial Judge:

ISSUES

1. Whether the Plaintiff is the owner of the disputed tank by virtue of the lawful settlement in his favour from the erstwhile estate, the Maharaja of Banaras

2. Whether the notice under Section 80, Civil Procedure Code is invalid If so, its effect

3. To what relief, if any, is the Plaintiff entitled

4. Whether the suit is barred by estoppel and acquiescence

5. Whether the suit is barred by res-judicata

It was found under issue No. 1 that Plaintiff was perpetual lessee of the disputed tank by virtue of lawful settlement of its site in his favour from the erstwhile Banaras State. Issue Nos. 2, 4 and 5 were not pressed before the learned Trial Judge and so these issues terminated against the Defendants.

13. In the result the claim was decreed with costs.

14. Defendants preferred Civil Appeal No. 332 of 1973.

15. Learned First Appellate Court also dismissed the appeal with costs to the Plaintiff-Respondent.

16. Aggrieved by this decision only Gaon Sabha preferred this appeal through the Pradhan Gajraj Singh. State of U.P. has also been impleaded as Respondent No. 2.

17. I have heard learned Counsel for the Appellants and Sri Sankatha Rai, learned Counsel for Respondent No. 1 at length.

18. A preliminary objection was raised before me on behalf of Respondent that the appeal was incompetent.

19. His first point in this connection was that the State of U.P. through which Gram Sabha claimed title has submitted to the decree and as such Gram Sabha was not competent to file this appeal when State of U.P. did not choose to prefer this appeal.

20. A mere casual look at Section 117 of UP ZA & LR Act (U.P. Act No. 1 of 1951) shall go to disclose that the lands whether cultivable or otherwise, forests, trees, fisheries, hats, bazars and melas as specified in Clause (v), tanks, ponds, private ferries, water channels, and abadi sites etc. which had vested in the Gaon Sabha or any other local authority established for the whole or part of the village in which the said things are situate, or partly in one such local authority (including a Gaon Sabha) and partly in another.

21. Sub-section (4) of Section 117 of theempowers such local authority to perform, discharge and exercise the functions, duties and powers assigned, imposed or conferred by or under this Act or the U.P. Panchayat Raj Act, 1947 on a Gaon Sabha or a Land Management Committee. So after such vesting in local authority it was open to the Gaon Sabha to carry out the management, etc. on such property. Thus the Appellant had sufficient interest to prefer this appeal. Moreover U.P. State has also been impleaded as Respondent No. 2 and did not question the competency of Appellant to prefer this appeal. They resisted the claim of Respondent No. 1 on similar ground. So the contention is devoid of force.

22. The next contention was about the presentation of the memo of appeal on 5-9-1974 by Sri A.N. Rai who was neither the panel lawyer appointed by any resolution of the Land Management Committee of the Gaon Sabha nor by Collector as provided by paragraph-128 and paragraph-131 of Gaon Sabha and Bhumi Prabandhak Samiti Manual as amended upto date. Paragraph-128 reads:

The conduct of Gaon Sabha litigation shall not depend upon the individual discretion of the Chairman of the Bhumi Prabandhak Samiti (Land Management Committee), but shall be a matter of resolution of the Bhumi Prabandhak Samiti (Land Management Committee) as a whole. In urgent cases, however, the Chairman can take action on his own and seek ratification of the Bhumi Prabandhak Samiti (Land Management Committee) afterwards by including in the agenda of the next ensuing meeting.

Paragraph-131 runs as below:

131. Lawyers have been appointed who shall represent the Bhumi Prabandhak Samiti (Land Management Committee) and give it legal advice where necessary. The Committee shall not engage any lawyer other than the panel lawyer appointed. In important cases, however, special lawyers can be engaged with the specific provision of the Collector in writing.

There is a Vakil or mukhtar in each tahsil and one civil and one revenue lawyer at the district headquarters. The District Government Counsel is incharge of the whole work.

The Bhumi Prabandhak Samiti (Land Management Committee) requiring the advice of a lawyer should request the Tahsildar or the Sub-Divisional Officer t o arrange for it.

The Chairman of Bhumi Prabandhak Samiti (Land Management Committee) shall consult the panel lawyer in all cases in which he is summoned or is impleaded as Defendant.

If in any case the Bhumi Prabandhak Samiti (Land Management Committee) refuse to sign a plaint or to defend a case, as advised by the panel lawyer or the special lawyer, if engaged, as the case may be, or as instructed by the Tahsildar or the Sub-Divisional Officer the Lekhpal as Secretary of the Bhumi Prabandhak Samiti (Land Management Committee) shall act for the Bhumi Prabandhak Samiti (Land Management Committee) under orders of the Tahsildar for the above purpose only.

23. Thus the contention was that Sri A.N. Rai and Sri R.A. Pandey were neither panel lawyers to represent Gaon Sabha nor there was any resolution to that effect by the Gaon Sabha concerned. So this Court gave time to learned advocate for Appellants to procure the notice of engagement of the Standing Counsel for U.P. State.

24. Sri K.B. Garg, Standing Counsel for State filed his Vakalatnama in this appeal on 5th April, 1983.

25. Thus this appeal was incompetent throughout this period and on the date it was filed time to file the appeal had already expired nor Sri K.B. Garg, was legally authorised by any resolution of the Land Management Committee nor there is any written permission of the Collector in this behalf as required under para 131 of Gaon Sabha Manual.

26. On behalf of the Appellant the main authority relied upon is Gaon Sabha v. Ram Karan Singh 1981 RD 1 [LQ/AllHC/1980/7] in First Appeal No. 89 of 1975 in which the appeal was filed, without resolution of Land Management Committee nor any written authority was filed, it was observed:

The State Government retains powers to control the working of any Land Management Committee and to issue orders and directions to it as on occasion may require.

Neither was a resolution of the Gaon Sabha required for filing the appeal nor was any written authority needed to do so. From the language employed in paragraph 128 of the Gaon Sabha Manual it appears that it would not otherwise apply to an appeal which is filed qn behalf of the Gaon Sabha in this Court. But that apart, the requirement of filing a Vakalatnama, as laid down by Rule 4 of Order 3, is not applicable to the case of a counsel appointed by the State Government. Even under the Rules of the High Court and the settled practice prevailed, an appeal can be filed on behalf of the State without a written authority or a Vakalatnama. So apart from Rule 127-B the appeal could not be dismissed.

However, a perusal of the facts of that case shall go to show that the Standing Counsel Sri K.B. Garg, had filed the appeal and signed the memo of appeal from very beginning in that case but there was neither any resolution of the Gaon Sabha for filing the appeal nor there was any written authority. It was observed at page 6:

In the instant case the argument advanced on behalf of the Plaintiff was that for filing an appeal under para 128 of the Gaon Samaj Manual, the passing of a resolution was a condition precedent and since no such resolution had bsen passed. Sri K.B. Garg, counsel appearing for the Gaon Sabha had no power to file the appeal. It is doubtful that the U.P. Act No. 1 of 1951 or Rules give any statutory support to paragraph 128 of the Gaon Samaj Manual. Hence it is not necessary that a proper resolution of the Land Management Committee should be obtained for filing an appeal. Linked with the above another submission made by the Respondents learned Counsel was that since the present appeal was filed by Sir K.B. Garg on behalf of the Gaon Sabha without a duly signed Vakalatnama of the Chairman of the Land Management Committee of the Gaon Sabha concerned, the present appeal was incompetent.

The preliminary objection raised on behalf of the Respondent, therefore, requires us to consider two matters. The first is whether a resolution was required for filing an appeal and the second was whether the appeal could be filed without duly signed Vakalatnama of a person competent to execute it. Coming to the second aspect of the matter first a reference may be made in Rule 4 of Order 3 of the Code of Civil Procedure. This Rule requires that "no pleader shall act for any person in any court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent." Under this Rule appearance can be put by a pleader only under written authority of the person entitled to sign it. The present was the case where the appeal had been filed on behalf of Gaon Sabha by Sri K.B. Garg, who has been appointed as the Standing Counsel or panel lawyer under Section 127-B of the U.P. Zamindari Abolition and Land Reforms Act. Section 127-B empowers the State Government to appoint in respect of Goan Sabha one pr more legal practitioners. Under Sub-section (2) a panel lawyer is entitled to plead and act without any written authority on behalf of any Gaon Sabha of the area for which he is appointed before any court in any suit or other case. It would thus appear that the Government is empowered to appoint a lawyer for any court which would include the High Court. Such an Advocate can appear without any written authority of the Gaon Sabha for which he appearing. Sri K.B. Garg, has been appointed as a Standing Counsel for the State Government in exercise of power under Section 127-B. The State Government had power to appoint him as Standing Counsel generally for all the Gaon Sabhas. That being so, no written authority was required by him for filing the appeal from the Gaon Sabha. It may be noted here that despite the fact that the land gets vested in a Gaon Sabha under Section 117 ofNo. 1 of 1951, the State Government retains its control over it. I have already referred to the decision of Maharaj Singh v. State of U.P. (Supra) where the Supreme Court had an occasion to deal with the right of the State Government to file an appeal in respect of a land which had vested in the Gaon Sabha. The law laid down in the said case helps us in arriving at the conclusion that the estate belonging to the State is vested in the Gaon Sabha for community benefit and State can control the activities of the Gaon Sabha through the directions to the Land Management Committee. Precisely for this reason Section 127-B was enacted to enable the State Government to appoint lawyer so that the litigations could be properly prosecuted.

The discussion made above would show that neither was a resolution of the Gaon Sabha required for filing the appeal nor was any written authority needed to do so. From the language employed in paragraph 128 of the Gaon Samaj Manual it appears to me that it would not otherwise apply to an appeal which is filed on behalf of the Gaon Sabha in this Court. But that apart, the requirement of filing a Vakalatnama, as laid down by Rule 4 of Order 3, is not applicable to the case of a counsel appointed by the State Government. Even under the Rules of the High Court and the settled practice prevailed, an appeal can be filed on behalf of the State without a written authority or a Vakalatnama. So apart from Rule 127-B the appeal could not be dismissed on the preliminary point raised on behalf of the Respondent.

27. The learned Advocate for Respondents tried to distinguish the case on the ground that the Standing Counsel had filed the Vakalatnama in that case on behalf of Gaon Sabha. Sri K.B. Garg, had been appointed as the Standing Counsel or the panel lawyer under Section 127-B of the UP ZA & LR Act. In Sub-section (2) of said Section a panel lawyer may appear, plead and act without any written authority on behalf of any Gaoh Sabha. No private counsel had filed that appeal.

28. So the said authority is clearly distinguishable because in the instant case Sri A.N. Rai or R. B. Pandey had no authority of the Gaon Sabha for preferring this appeal. Moreover none of them was the panel lawyer for Gaon Sabha appointed by the State Government in exercise of powers under Section 127-B.

29. Sri K.B. Garg also relied on the observation that the aforesaid paras have no statutory recognition. There is resolution of Ext. B 1 dated 2-1-1972 by which Gaon Sabha Samiti empowered Sri Gajraj Singh Pradhan to look after defence of the suit and to prosecute the same.

30. Learned Advocate for Respondent pointed out that the provisions of Gram Sabha Manual have statutory force. In this connection he relied upon Sec 128, Sub-clause (k) of UP ZA & LR Act and Rule 115-B along with explanation appended to it. Sec 128, Sub-clause (k) which deals with appointment of panel lawyer and says that State Government may make Rules for the purpose of carrying into effect provisions of this Chapter which includes Sub-clause (k) the conduct and prosecution of suits and proceedings by or against the Land Management Committee. Rule 115-B runs as below:

Rule 115-B. The directions on the subjects mentioned in Rule 115-A shall be issued by the State Government to the Bhumi Prabandhak Samiti (Land Management Committee), through the Collector of the district.

Explanation I. The directions contained in the Bhumi Prabandhak Samiti Manual shall be deemed to be the directions issued in accordance with Rule 115-A.

Explanation II. The directions contained in the Gaon Samaj Manual, so

far as they are necessary for purposes of this Act and are not inconsistent

with these rules, shall be deemed to be the directions issued under Rule 115-A so long as they remain in force.

31. Thus the contention was that these provisions were not brought to the notice of Honble Judge in that case. The resolution of Ext. B 1 did not extend to the preferring of appeal also by the Pradhan in 1974. There was no ratification of the action of the Pradhan by a subsequent meeting.

32- The next authority relied upon on behalf of the Appellant has been reported in Shastri Yagnapurushdasji v. Muldas Bhumdardas Vaishya : AIR 1966 SC 1119 [LQ/SC/1966/16] . It appears that the Assistant Government Advocate had accepted the Yakalatnama. Government Advocate was, however, permitted to accept the same and the defect was held to be removed.

33. In the instant case this defect has not been removed. Mr. Garg never applied for signing the memo of appaal. He has also not shown that he had been appointed panel lawyer in 1974.

34. The authority relied upon on behalf of the Appellant has been reported in Gram Samaj Kairadih v. The Deputy Director of Consolidation 1969 AWR 501. In that case it was held that para-128 of the Gaon Sabha Manual was mandatory. It was observed:

Para 128 of the Gaon Samaj Manual is complete, reasonable and equitable, and lays down how the Land Management Committee can sue or defend; it must be held to be mandatory.

The Chairman of the Land Management Committee could not have filed a written statement or preferred an appeal or revision without the Land Management Committee having passed a resolution, or the action of the Chairman being rectified by the Land Management Committee in the next ensuing meeting. In the instant casa the Land Management Committee had not passed such a resolution till the decision of the first revision under Section 48 of the U.P. Consolidation of Holdings Act, nor was the action taken by the Chairman ratified in the next meeting of the Land Management Committee, Hence neither the written statement nor the appeal nor the revision were maintainable. In the circumstances, when no written statement could be filed, no second revision could also be preferred by the Chairman after the passing of the resolution by the Land Management Committee, at a belated stage, i.e. after the decision of the first revision, the second revision under Section 48 of the Consolidation of Holdings Act was thus also liable to dismissal.

35. I do not find that this authority helps the appallants in any manner.

36. The next authority relied upon on behalf of the Appellant has been reported in Rekhi v. Gaon Sabha 1972 RD 329. It was observed at that page:

It was contended that under Para-128 of the Gaon Sabha and Bhumi Prabandhak Samiti Manual it was necessary that a resolution of the Land Mangement Committee should have been taken before filing a suit. This very Appellant had been ejected under the provisions of Rule 115-C of the Zamindari Abolition Rules from the same land on November 2, 1965; but he took possession of it again.

If the proceedings taken earlier were valid, it was not necessary to require a fresh resolution of the Gaon Sabha for the second proceedings of ejectment. It has nowhere been proved that the earlier proceedings to which the present proceedings are consequential had also been conducted without a resolution of the Gaon Sabha, or that the bona fides of the Chairman were in doubt. The rule also provides ex post facto inclusion in agenda. There is therefore considerable latitude in the matter of the prosecution of genuine cases for the safeguard of the interest of the property of the Gaon Sabha. Even if it is assumed for a moment that this small technicality was not complied with, it would not be possible to order reinstatement of the trespasser.

So the aforesaid authority is also distinguishable on the said facts. In none of the said authority the question of permission accorded by the Collector to Standing Counsel was considered. In The Land Management Committee Naimi Patti v. The Board of Revenue U.P. Allahabad 1965 AWR 515 it was observed that para-131 was directory and had no force of statutory law. It was further observed in that case specifically that no panel lawyer was appointed in High Court nor Mr. K.B. Garg was appointed panel lawyer at that time and under such circumstances it was held that the defect did not go to the root of the matter.

37. Learned Advocate for Respondent relied upon Sita Ram v. Deputy Director of Consolidation 1982 ALJ 76 where it was observed:

A person cannot initiate legal proceedings on behalf of or for the benefit of another without any authority from that other. Para-128 of the Gaon Sabha Manual provides the procedure and the manner in which suits or proceedings can be filed and conducted on behalf of the Gaon Sabha and the same has3 got to be done in that particular manner.

The Gaon Sabha is a body corporate and the Land Management Committee is an executive body of the Gaon Sabha charged with the functions to supervise and protect the property vested in the Gaon Sabha and it has to function in the manner sanctioned under law. The provisions contained in Para 128 of the Gaon Sabha Manual and Rule 110-A of the U.P. Zamindari Abolition and Land Reforms Rules prescribed the manner in which the litigation is to be conducted by and on behalf of the Goan Sabha. These provisions, which are mandatory, would govern the litigation to be conducted on behalf of the Gaon Sabha in all proceedings under the provisions of the U.P. Consolidation of Holdings Act.

Where an objection under Section 9 A (2) of the U.P. Consolidation of Holdings Act in respect of land leased by the Gaon Sabha is filed by a private person without any authority of Gaon Sabha and/or of Land Management Committee authorising that person to file objection, appeal and revision, the objection filed by that person was wholly incompetent and the orders passed thereon and in appeal and revision therefrom were wholly without jurisdiction, more so when the action of that person in filing objection, appeal or revision was not ratified by the Land Management Committee.

38. It is noticeable that Sri K.B. Garg, learned Standing Counsel appeared for Respondent in that case in which after relying on the observations made above reliance was placed upon a Division Bench case in Ambika Singh v. Bhibhuti Singh Sp. A. No. 247 of 1972; Nazir Ahmad v. King Emperor : AIR 1936 PC 253 [LQ/PC/1936/58] (2); State of Gujrat v. Shanti Lai : AIR 1969 SC 634 [LQ/SC/1969/9] ; Ram Chandra v. Govind AIR 1975 SC 915 [LQ/SC/1975/97] and in Taylor v. Taylor (1875) 1 Ch. D. 426.

39. Learned Advocate for the Respondent further, relied upon Dhani Ram v. The Deputy Director of Consolidation : 1977 AWC 668: : AIR 1977 All. 491 [LQ/AllHC/1977/211 ;] ">1977 All. 491 [LQ/AllHC/1977/211 ;] [LQ/AllHC/1977/211 ;] . In that writ petition the facts were that the Petitioner filed objection under Section 9 U.P. Consolidation of Holdings Act that certain plots and land was his ancestral grove and its entry as Banjar in villags papers was incorrect. Gaon Sabha contested this objection in absence of any resolution to that effect. That objection was allowed by the Consolidation Officer. Appeal and revision filed by Gaon Sabha were held as unauthorised and the orders passed by the Settlement Officer, Consolidation and Deputy Director of Consolidation were held as without jurisdiction. It was posited at page 492 of AIR 1977:

The reason is that the Chairman of the Land Management Committee could not have filed a written statement or preferred an appeal or revision without the Land Management Committee having passed a resolution, or the action of the Chairman being ratified by the Land Management Committee in the next ensuing meeting 1969 AWR (HC) 500 Foll.

40. In that case reliance was also placed upon Gram Samaj Kairadki v. Deputy Director of Consolidation U.P. Lucknow reported in 1969 AWR 500 delivered by Mr. Justice D.S. Mathur, as he then was. At page 503 paragraph 19, while interpreting paragraph 129 of the Gaon Samaj Manual it was held:

To sum up, the Chairman of the Land Management Committee could not have filed a written statement or preferred an appeal or revision without the Land Management Committee, having passed a resolution or the action of the Chairman being ratified by the Land Management Committee in the next ensuing meeting. The Land Management Committee had not passed such a resolution till the decision of the first revision, nor was the action taken by the Chairman ratified m the next meeting of the Land Management Committee. Hence, neither the written statement nor the appeal nor the revision was maintainable. In the circumstances, when no written statement could be filed, no second revision could also be preferred by the Chairman after the passing of the resolution by the Land Management Committee, at a belated stage; The Second revision under Section 48 of thewas thus also liable to dismissal.

41. In the instant case also mere fact that resolution Ext. B 1 authorised the Pradhan to file a written statement in the suit and to do Pairvi by itself could not justify filing of the appeal on the date of institution by a private counsel without ratification of the same by the Land Management Committee by including it in the agenda of the next ensuing meeting. When Vakalatnama by Sri K.B. Garg was filed the time to file the appeal had already run out. I respectfully agree with the aforesaid authorities cited on behalf of the Respondents.

42. Thus for the said reasons I find that preliminary objection is weighty and hold that the appeal was incompetent and the filing of the Vakalatnama after efflux of so many years by the learned Standing Counsel who could not show that he was Standing Counsel at the time of filing the appeal could not revalidate the same as it tends to operate to the manifest disadvantage of Respondent.

43. As regards the merits of the case also learned Advocate for Appellant again relied upon Gaon Sabha v. Ram Karan Singh 1981 RD 1. [LQ/AllHC/1980/7] It appears that in that case Plaintiff claimed the aforesaid tank to be the property of his ancestors who had dug it in the capacity of tenants. They asserted that the ancestors of Plaintiffs were the owners in possession of the tank through cultivating Singhara and pisciculture. They also alleged that they had been in possession over the mango trees situated on the Bhita of the tank and enjoyed the usufruct of these trees. Their allegation was that the Defendants had no concern with the properties but the Consolidation Officer concerned ordered expunging of the names of the Plaintiffs without any lawful authority and directed the tank to be entered in Zaman VI. The Consolidation Authorities did not have any jurisdiction or power to adjudicate upon the title of the tank and, as such the orders passed by the Consolidation Authorities were not binding on the Plaintiffs. They claimed that emboldened by the unauthorised orders of the Consolidation Authorities, the Pradhan of the Gaon Sabha had started interfering with their possession. Therefore, they were compelled to bring the suit for declaration which was contested. However it was observed in that case that disputed plot was land within the meaning of Section 3, Sub-clause (14) of the UP ZA & LR Act. Section 3, Sub-clause (5) of the U.P. Consolidation of Holdings Act has given it the same meaning assigned to it and it was further found that the Appellants did not prefer any objection at the relevant stage before the Consolidation Authorities and so Section 49 applies and the suit filed by the Plaintiffs was barred. It was further held that the Plaintiffs failed to prove that the tank was dug up by their ancestors and there was no evidence. They failed to discharge the burden which lay upon them." So the evidence adduced by the parties in this case has to be scruitinised, in the light of the said observations also.

44. A mere look at the plaint of the suit shall go to disclose that the bone of contention in this case is not only tank but temple, trees and well also about which the reliefs of declaration and injunction was sought. Plaintiff claimed to be the owner of the said temple and well and also alleged that this property was their exclusive ownership. This averment was admitted in para-5 of the written statement. There are statements of Jagarnath, P.W.1, Ram Sunder Singh, P.W.4 in support of the claim of the Plaintiff. D.W. 2, Gajraj Singh also admitted that the temple was constructed by Balikaran, Plaintiffs father. Similarly as regards the ownership of trees it was laid in para-5 of the plaint that the tress were planted by Plaintiffs father. Parties were not at issue regarding the Plaintiffs title and thus Plaintiffs suit regarding the title was rightly decreed by the court below. Sri K.B. Garg, learned Advocate for the Appellant pressed his appeal about pond only.

45. As regards the pond learned Counsel for the Appellant relied upoq Gaon Sabha v. Ram Karan Singh : 1981 RD 1 [LQ/AllHC/1980/7] where it was observed;

The land in dispute was a tank. In the proceedings under the U.P. Consolidation of Holdings Act it was recorded as a tank of the Gaon Sabha. The Plaintiffs sought declaration through the present suit to the effect that they were the owners of the tank. The plea about ownership of the tank was based on the assertion that it had been dug by the ancestors of the Plaintiffs.

The suit was brought by the Plaintiffs for the relief of declaration. Burden lay upon them to prove their ownership and possession. The Plaintiffs whose suit was for declaration had to show affirmatively that the tank had been dug by their predecessors-in-interest. They miserably failed to do so. The ancestors of the Plaintiffs were entered against the disputed area as the tenants whereas the Maharaja of Banaras was entered in the Zamindars column.

In the context of the Tenancy Laws, the question of ownership of the tank the Plaintiffs being the owners of the tank did not arise. The village where the tank was situate belonged to Maharaja of Banaras. In 1320 F. assuming that the entry made in that year is correct, the predecessors of the Plaintiff only were entered in the tenants column.

Sections 132 and 133 of the U.P. Zamindari Abolition and Land Reforms Act applied to Banaras State, Section 132(4) of the said Act expressly provides that "Sirdari rights shall not accrue in lands covered by water and used for the purpose of growing Singhara. So a person cultivating or growing Singhara, could not become a Sirdar. He could be an Asami under Clause (iii) of Clause (a) of Section 133. The Appellants could only be Asamis under Section 133 of the U.P. Zamindari Abolition and Land Reforms Act.

46. It appears from a perusal of the fact of that case that Plaintiffs claimed that the tank had been dug by the Plaintiffs predecessors in interest and they were in possession over the same. The burden to prove the ownership and possession lay upon them which they failed to discharge. Under these circumstances it was held that they could not successfully assert their rights either before the Consolidation Authorities or before this Court as the tank was the land within the meaning of Section 3 Sub-clause (14) of UP ZA & LR Act and Section 3, Sub-clause (5) of U.P. Consolidation of Holdings Act. So this case shall apply only if Plaintiffs failed to prove their ownership over the same.

47. Before me learned Advocate for the parties also argued that it was a Namanzuri village of the erstwhile Banaras State. The contention put forward on behalf of the Respondent was that UP ZA & LR Act did not apply to this tank.

48. It appears that history about merger of Banaras State was detailed in Gaon Sabha v. Ram Karan Singh reported in 1981 RD page 3 (Supra). I need not enter into this controversy for the simple reason that a careful perusal of the pleadings as well as the statements of parties as recorded under Order 1, Rule 10 of the Code of Civil Procedure on 4-7-1972 shall go to disclose that the disputed tank originally belonged to Maharaja Banaras as Zamindar. Facts admitted need not be proved and Plaintiffs are thus tied with their own admissions made in the said statements and in their pleadings.

49. Thus the evidence on record has to be scrutinised as to how far the Plaintiffs have succeeded in showing that it was the tank which had been legally let out by Zamindars to Plaintiffs or the rights of Zamindar subsisted in this tank on July 1, 1954 when the aforesaid UPZA & LR Act was made applicable to this village vide U.P. Notification No. 3170/I-A-1002-1954 dated Lucknow 1st July, 1954.

50. Plaintiff Jagarnath examined himself as P.W. 1 and Kali Charan Tewari as P.W. 3 and his uncle Ram Sunder Singh as P.W. 4 to state about the manner in which this area in dispute was acquired by his father Balikaran through two Qabuliats Ext. 1 registered on 17th July, 1942 executed by Balikaran Singh in favour of Raja about plot No. 397 measuring 12 biswas 2 Dhurs which shows the nature of the soil on that day. It was no longer a pond but had been filled up. An area measuring 2 Bigha 10 biswas was taken on lease by the lessee for digging a tank and planting trees, etc. on the terms detailed in the said lease on payment of Nazarana amounting to Rs. 250/-.

51. The next document is Ext. 2 registered on 16-7-1945 by which Balikaran Singh, further acquired an area measuring 3 Bigha 17 Biswas 10 Dhurs on plot No. 397 and 4 Biswas 10 Dhurs of plot No. 395 and 1 biswa 10 Dhurs of plot No. 396 of this Parti land of the estate on payment of Nazarana to the extent of Rs. 835/- through applications submitted to Collector sanctioned by the Chief Secretary of Banaras State on 17-12-1943. A perusal of this registered document shows that this pond in dispute was dug and embanked by Balikaran Singh and was recorded as his tenancy in copy of Khatauni of 1359 Fasli Ext. 4 and subsequent Khatauni Ext. 7 ranging from J 369 to 1371.

52. There is also the cogent oral evidence of the aforesaid P.W. 1 Jagarnath, Kali Charan, P.W. 3 and Ram Sunder Singh, P.W. 4 who testified about the manner of acquisition and construction of the building and embankment: they further testified that Singharas were not sown in it by public. This ownership and possession of Plaintiff was sought to be rebutted by the testimony of D.W. 1, Lalla Maurya, Lekhpal, who had seen the possession of the pond for the last one year only; he was not present at the time when this pond was acquired. He could not tell the person who enjoyed the fruits of the trees nor he could tell about the ownership of Bhita, his residence is 17 or 18 miles away from this village: Gajraj Singh, D.W. 2 resident of Gram Sabha Domanpur testified that it was a land of public utility: there was a Panchayat Bhawan on it, although it was not noted in the papers: he is also a sojourner in the village. On this evidence learned courts below found that Plaintiff was owner in possession of the pond in dispute.

53. It appears that the Defendants were emboldened by the judgment and order in consolidation proceedings who ordered mutation in the Khatauni in remark column (Ext. 7) that the name of Plaintiff should be expunged from the pond in dispute.

54. Ext. 4 is copy of judgment of Deputy Director of Consolidation which shows that finally Consolidation Authorities held "whatever rights the applicant has would continue to subsist and any person questioning the same would have to seek relief in civil court of competent jurisdiction. Thus the revision was partly allowed. He did not find that this pond was land within the meaning of Section 3, Sub-clause (14) of UP ZA & LR Act which means land held or occupied for purpose connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming.

55. Similarly the word land has been defined in Section 3, Sub-clause (5) which runs as below:

Land under the Consolidation of Holdings Act: According to Section 3(5) of the Consolidation of Holdings Act, land means land held or occupied, for purposes connected with agriculture, horticulture and animal husbandry (including piscicualture and poultry farming) and includes:

(i) the site being part of a holding of a house or other similar structure, and

(ii) trees, wells and other improvements existing on the plots forming the holding.

56. Obviously there is one sided evidence on record to show that this pond lost its character when it was held by intermediary: it was not being used for agricultures, horticulture, and animal husbandry etc. and was the property of the tenant and not intermediary and as such could not vest in the State or Gaon Sabha. The point is well covered by Rama v. State of U.P. 1971 RD 520 where it was observed:

There is an inherent lack of jurisdiction in the consolidation authorities in adjudicating upon the rights of the parties in respect of property not situate on a holding. Obviously a Banjar land does not form part of a holding and, therefore, the consolidation authorities had no jurisdiction to adjudicate upon the rights of the parties in respect of the trees in question. It is open to the parties as to get their rights adjudicated upon by a competent Civil Court.

57. Under such circumstances when this pond could not vest in Gram Sabha or State as it was dug and the embankment and building on the same had been constructed by Balikaran who was not ah intermediary at the time of vesting the suit could not be barred by Section 49 of U.P. Consolidation of Holdings Act. It is significant to note that in this connection no issue was pressed or drawn by the learned trial Judge. So this contention of learned Advocate for the Appellant also falls through.

58. Learned Advocate for the Appellant Sri K.B. Garg also pointed out that the registered Qabuliat were unilateral documents and were violative of Sections 105 and 107 of Transfer of Property Act. In this connection reliance was also placed on Asha Ram v. Mst. Ram Kali AIR 1965 SC 183 which posited:

Where no lease deed had been executed by landlords in favour of the lessee, but the latter had executed a Qabuliat, in favour of the former and the lessors accepted the Qabuliat and received rant as provided therein, the lessee cannot be denied the status of tenant.

This ruling does not operate to the prejudice of the Respondents. The suit property in that case was agricultural land to the extent of 10 Bighas, 13 Biswas. On 8-7-1930, the then owners of the land, Ram Prasad and Udairaj executed an usufructuary mortgage over it and certain other properties in favour of Dwarka Prasad, Naubat Singh and Munshilal. This land was originally held in Sir by the mortgagors, but as part of their bargain with the mortgagees, they applied to have their names removed from the Sir and that was done by an order dated 18-6-1930, the lands being thereafter entered as Khudkasht in the names of the mortgagees. It was held that the action of the mortgagees in leasing the land to tenants on the terms set out in the Qabuliat was neither prudent nor bonafide and on a consideration of the entire evidence that the lease evidenced by the Qabuliat was not binding on the mortgagors.

This authority is clearly distinguished for the simple reason that the pond was not an encumbrance with a mortgagor; lessor accepted the Qabuliat and received the rent from the lessee. In the instant case Qabuliat was executed by Balikaran Singh: Nazarana was paid by him to Zamindar who accepted the same. Balikaran Singh dug the pond and the document was acted upon throughout.

The point is well covered by Nirjhin Kumari v. Gram Samaj 1980 RD 164 where it was observed that:

U.P. Zamindari Abolition and Land Reforms Act I of 1951, Section 6 Right, title and interest of intermediaries vests in State of U.P. and not that of tenants--Tank and Bhita built on tenancy land--Did not vest in State of U.P.

From the reading of Section 6 it is clear that all rights, title and interest of the intermediaries vests in the State of U.P., when a notification has been issued under Section 4 in the Gazette. By virtue of that section, rights, title and interest of the tenants, however, do not vest in State of U.P. In the circumstances, it is obvious that view taken by the lower appellate court that the tank and bhitas of the Plaintiffs-Appellants which were built by their predecessor in interest on the tenancy land dismissing the suit of the Plaintiff-Appellant in respect of tank and bhita is a view wholly erroneous in law.

59. On the other hand Asa Ram v. Mst. Ram Kali : AIR 1965 SC 183 [LQ/SC/1964/36] supports the contention of the Plaintiff. In this case also Nazarana was accepted by Zarnindar in pursuance of the Qabuliat. So there is no violation of the provisions of Sections 105 and 107 of the Transfer of Property Act.

60. In Tilakdhari Singh v. Diirga Prasad Singh 1967 RD a similar ratio was laid down regarding the trees. It was observed at page 270:

Section 6 of theonly lays down that the rights, title and interest of the intermediaries in trees other than trees in village abadi, holding or grove shall cease and be vested in the State of Uttar Pradesh. It does not purport to take away rights of other persons in respect of trees who were not intermediaries on the date of vesting.

In the instant case the High Court upheld the finding of courts below that the pond in dispute was the property of the Zamindar and after abolition of Zamindari it vested in Gaon Samaj, and the finding of the lower appellate, court that the trees standing in the pond or on the boundary thereof were scattered trees planted by the Plaintiffs ancestors and were very old, and, further, that the Plaintiffs themselves had been in possession of the trees and were still in possession thereof and therefore the ownership in the tress still vested in the Plaintiffs.

61. In this view of the matter the appeal is dismissed. The impugned judgment and decree are affirmed. However, in the circumstances of the case parties shall bear their own costs of this Court.