Allahabad High Court
Balwant Education Society And Another vs Mohan Lal Maheshwari And Others on 11 September, 2024
Author: Vipin Chandra Dixit
Bench: Vipin Chandra Dixit
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:148025 Reserved Court No. -35 Case :- FIRST APPEAL No. - 55 of 2012 Appellant :- Balwant Education Society And Another Respondent :- Mohan Lal Maheshwari And Others Counsel for Appellant :- Arvind Kumar Singh,Rahul Sahai,Raj Kumar Mishra,S.I. Ibrahim Counsel for Respondent :- A. Kumar,Ashutosh Srivastava,Atul Srivastava,Pramod Jain(Senior Adv.),Raj Kumar Kesari,Rakesh Pande (Senior Adv.),Ram Prakash Srivastava,S.R. Yadav,Seema Aggarwal,Shailesh Upadhyay,Shreesh Srivastava,Shreyas Srivastava Hon'ble Vipin Chandra Dixit,J.
1. This first appeal under Section 96 of C.P.C. has been filed on behalf of plaintiffs-appellants against the judgment and order dated 12.12.2011 passed by Additional District Judge Court No.3, Agra in Original Suit No.567 of 2004 (Balwant Education Society, Agra through secretary and another Vs. Mohan Lal Maheshwari and others), by which suit filed by plaintiffs/appellants was dismissed with cost.
2. Heard Sri Rahul Sahai, learned counsel for the appellants and Sri P.K. Jain, learned Senior Advocate assisted by Sri Shreesh Srivastava and Sri Shreyas Srivastava, learned counsel for the respondents and perused the record.
3. The Original Suit No.567 of 2004 has been filed by the plaintiffs-appellants seeking declaration that sale deeds dated 15.7.2003 executed by defendant nos.1 to 5 in favour of defendant nos.6 and 7 in respect of suit property are without authority and right, fraudulent, collusive, null and void and not binding upon the plaintiffs. It is further prayed that defendant nos.1 to 7 be restrained from implementing and enforcing the sale deeds staying their operation and effect in any manner whatsoever.
4. It was pleaded by the plaintiffs-appellants that plaintiff no.1 is an educational society registered under the Societies Registration Act and plaintiff no.2 is the Committee of Management to run the educational institute namely Raja Balwant Singh Intermediate College, Agra. It is further pleaded that Bungalow No.98 (New No.1/69) situated in Civil Lines, Hariparbat Ward, Agra along with building, out houses and land apartment to it known as "Blunt Sahib Ka Bangla" was purchased by the Committee of Management through a registered sale deed on 27.2.1990 from Isabella Sophia More and Lalia Nolan, Administrators of the Estate of Lanisa Rabecce Blunt under the letters of Administration granted to them by the District Judge, Agra vide its order dated 23.12.1909 and possession was also handed over to the plaintiffs. The plaintiffs are in actual physical possession over the same since long time. The aforesaid bungalow is being used for residence of staff members of educational institution. Residential houses were also constructed from time to time by the plaintiffs. A cycle stand for the institution is established since long on a portion of the compound of said bungalow. The plaintiffs are paying house tax and water tax. It is also stated that suit property was vested in the treasurer of charitable endowment for the United Provinces of Agra in the year 1950 and was notified in the U.P. Gazette on 31.7.1915 for the Balwant Rajput High School, Trust, Agra. It was again notified in U.P. Gazette on 28.4.1945. The plaintiffs are exclusive and absolute owner of aforesaid bungalow and they are in possession over the same since long. It is further alleged that defendants have no right or title in respect of suit property but the defendant nos.1 to 5 had sold the aforesaid bungalow through two sale deeds dated 15.7.2003 in favour of defendant nos.6 & 7. It is further pleaded that defendant nos.1 to 5 had no right or title over the disputed property and were not in possession over the same but they executed sale deeds in favour of defendant nos.6 & 7.
5. The suit was contested by the defendant nos.6 & 7 who have purchased the suit property from defendant nos.1 to 5. The defendant nos.1 to 5, 8 and 9 had not contested the suit and has not filed any written statement.
6. The defendant nos.6 and 7 appeared before the trial court and filed their written statement denying the plaint allegations. It was the case of the defendant nos.6 & 7 before the trial court that disputed bungalow was built before 1868. One Raghunath Das Maheshwari son of Salig Ram Maheshwari and Baldev Das Bhramin son of Laxman Das purchased the aforesaid bungalow through registered sale deed dated 26.2.1868 and both the purchasers became owners of equal shares in the property. Raghunath Prasad and Baldev Das had also purchased zamindari rights in the lands of mauja Sarjaipur, Mahal 5 biswa measuring 2 bigha and 17x18 biswa covered by the bungalow and its compound through sale deed dated 1.2.1869. Sri Baldev Das sold his shares in the property to Raghunath Das through registered sale deed dated 16.10.1875. Therefore, Raghunath had became exclusive and absolute owner of aforesaid property. The defendant nos.1 to 5 are legal heirs and administrators of Sri Raghunath Das Maheshwari.
7. It is further pleaded by the defendants that entire property was taken on rent by one english-man Blunt Sahib in the year 1874-75 which was endorsed in settlement year1285 Fasali (1870-78 A.D.). The defendant nos.1 to 5 have filed case under Section 21 (3) of U.P. Act No.13 of 1972 before the Rent Control Officer for eviction of Blunt Sahib. It is further pleaded by the contesting defendants that the status of Blunt Sahib was of a tenant in the suit property and status of plaintiffs not more than a tenant in respect of disputed property. They never became owner of the property. The property was let out by ancestors of defendant nos.1 to 5 to Blunt Sahib and the plaintiffs-appellants had purchased the suit property from Blunt Sahib then status of plaintiffs-appellants is only a tenant and they were never owner of the property. The learned trial court had framed following eight issues for determination:-
"नं० 1.क्या वाद अल्प मूल्यांकित है तथा प्रदत्त न्याय शुल्क अपर्याप्त है?
नं० 2. क्या वाद भा० साक्ष्य अधिनियम की धारा 116 से बाधित है?
नं० 3. क्या वाद उपमति तथा निबन्धन के सिद्धान्त से बाधित है?
नं० 4. क्या वाद धारा 80 सी०पी०सी० से बाधित है?
नं० 5. क्या डा. बी०के० अग्रवाल को वादी की ओर से वाद प्रस्तुत करने, वाद-पत्र हस्ताक्षरित व सत्यापित करने का अधिकार है?
नं० 6. क्या वादी वादास्पद सम्पत्ति का स्वामी व काबिज है?
नं० 7. क्या प्रतिवादी संख्या-1 लगायत 5 को वादास्पद सम्पत्ति का विक्रय विलेख दिनांक 15.07.2003 को प्रतिवादी संख्या-6 व 7 के पक्ष में निष्पादित करने का अधिकार वैध रूप से था?
नं० 8. वादी किस अनुतोष को पाने का अधिकारी है?"
8. The plaintiffs had produced Amar Singh Rajput as P.W.-1 and had also filed several documentary evidence in support of their case. The contesting defendant had produced Subhash Chandra Maheswari as D.W.-1 and Mohan Lal Maheshwari as D.W.-2 and have also filed documentary evidence in respect of their case.
9. The issue no.1 regarding insufficiency of court fees was not pressed by the defendants. Issue no.4 that whether the suit is barred by Section 80 of C.P.C. was also decided against the defendants on the ground that Sri Nurul Hasan, Tehsildar, Agra was impleaded as defendant no.8 in personal capacity and he never turned up before the court and have not raised any objection in this regard. The trial court has decided the issue against defendant. So far as issue no.5 is concerned, it was decided against the defendants by the trial court holding that Dr. B.K. Agrawal was secretary of the society who runs the institution and was a juristic person having right to file case on behalf of the institution. The issue nos.6 & 7 are relevant for deciding the controversy in the suit regarding ownership and possession of plaintiffs over the suit property and whether the defendant nos.1 to 5 have any right or title to execute the sale deed dated 15.7.2003 in favour of defendants no.6 & 7. The trial court after considering the evidence and material which are available on record has decided both the issues against the plaintiffs/appellants. The trial court has recorded the finding that the plaintiffs/appellants have failed to prove their right of exclusive and absolute ownership in respect of suit property and the status of plaintiffs/appellants is only lease holder. The trial court has further recorded the finding that the ancestors of defendant nos.1 to 5 were recorded in Government record and they inherited the said property from their ancestors. The defendant nos.1 to 5 are having legal right to execute the sale deeds dated 15.7.2003. Both the issues 6 and 7 were decided against the plaintiffs/appellants. The suit filed by plaintiffs was dismissed with cost vide judgment and order dated 12.12.2011.
10. It is submitted by learned counsel for the appellants that plaintiffs-appellants have purchased the suit property through registered sale deed from the daughter of Blunt Sahib namely Isha Bela Sophia More and Lalia Molan, administrators of State Lanisa Rabecce Blunt through registered sale deed dated 27.02.1910 and the plaintiffs-appellants are in possession over the suit property. The suit property is used for residential purposes for the staff of educational institution. It is further submitted that the plaintiffs-appellants are absolute owner and in possession over the suit property and the defendant nos. 1 to 5 have no right or authority under the law to sell out the property in question to defendant nos. 6 and 7. It is submitted that since 27.02.1910, the plaintiffs-appellants are in possession over the suit property and running Intermediate College in the name of Balwant Singh Intermediate College. It is submitted that Blunt Sahib was exclusive owner of the disputed Bungalow which is known as "Blunt Sahib Ka Bangala" and after the death, his wife became the owner of the property and after the death of wife, the daughters of Blunt Sahib have become exclusive owners of property and they executed the sale deed on 27.02.1910 in favour of plaintiffs-appellants. It is further submitted that the name of plaintiffs' institution was recorded in the revenue record as well as record of Nagar Nigam and the house tax and water tax are being paid by the plaintiffs-appellants. It is submitted that the suit filed by defendants under Section 21(8) of Act No. 13 of 1972 for recovery of rent by the defendant nos. 1 to 5 was dismissed by Rent Control Officer holding that the defendants had failed to prove the owner ship of suit property. The defendants had failed to prove their ownership in respect of suit property. It is further submitted that the defendants are claiming ownership in respect of suit property that they inheritted the property from their ancestor Raghunath Das, whereas, the defendants had failed to prove that Raghunath Das was owner and predecessor of suit property. Lastly, it is submitted that even otherwise the plaintiffs are in possession over the suit property since 27.02.1910, therefore, it confers title upon him. It is submitted that admittedly, the plaintiffs-appellants are in possession over the suit property and their possession were never challenged by the defendants and they acquired title by way of adverse possession over the suit property.
11. On the other hand, learned counsel appearing on behalf of defendant-respondent nos. 6 and 7 submits that the property in question was let out to Blunt Sahib in the year 1874-1875. The status of Blunt Sahib was a lessee and the legal heirs of Blunt Sahib inherited the same status as was of Blunt Sahib. Since, Blunt Sahib was lessee / tenant of disputed property, the status of daughters of Blunt Sahib was not more than lessee and the property transferred by daughters of Blunt Sahib to the plaintiff society through sale deed dated 27.02.1990, the status of plaintiff society is also as a lessee / tenant and no right or title conferred upon the plaintiffs-appellants. It is submitted that from the bare perusal of documents dated 27.02.1910, it is apparent that it is "Deed of Assignment" and not a "Title Deed". It was admitted by the executor of deed of assignment / daughters of Blunt Sahib that their right as a lessee of the land and the purchaser and irrespective shall have the same right as they have. The right of plaintiffs-appellants over the suit property was not more than lessee. The plaintiffs-appellants have failed to establish their ownership in respect of suit property and the trial court has rightly dismissed the suit filed by plaintiffs-appellants. It is further submitted by learned counsel appearing on behalf of defendant-respondent nos. 6 and 7 that no right or title accrue in favour of plaintiffs-appellants on the basis of any entry made in revenue record and record of Nagar Nigam. The entries of revenue record and Nagar Nigam is merely for the purpose of payment of taxes. The trial court has rightly dismissed the suit. Lastly, it is submitted that the witness of plaintiffs namely Amar Singh Rajpoot, who appeared before the trial court as PW-1 has also admitted that the Bungalow of Blunt Sahib was obtained by plaintiffs society through deed of assignment.
12. Considered the submissions of learned counsel for the parties and perused the record.
13. The claim of the plaintiffs-appellants is on the basis of sale deed dated 27.2.1910 that they purchased the suit property through registered sale deed from the legal heirs of Blunt Sahib and they are in possession over the same. From bare perusal of the sale deed which is letter of assignment in favour of plaintiffs executed by daughters of Blunt Sahib shows that the sellers are having right of lessee and they transferred their right of lessee to the plaintiffs-appellants. It is well settled law that no one can transfer more right to the purchaser that he has himself. In the present case the status of daughters of Blunt Sahib was as lessee of disputed property which is evident from the letter of assignment/sale deed dated 27.2.1910. The relevant portion is quoted herein below:-
"The receipts whereof the vendors hereby acknowledge the said vendors hereby convey on to the dead purchaser and his representatives in the same or similar office in the managing committee of the said Balwant Rajput High School the said Kothi is situate in mauza Sirjaipur bounded on the East by Kachs Road, West by pucca road, South by fields in the possession of Raja Ram and others, North by Kacha road, with all rights in and appurtenants thereto of the Vendors in the above named Kothi. The possession of the said Kothi was duly made over to the purchaser on the 10th December 1909. The said vendors assure the said purchaser that the said Kothi to free from any encumbrances. That they are the sale and only inheritors to the estate of the Late Lauisa Rebecca Blunt and they have obtained Letters of Administration on the 23rd December 1909 and that their rights as lessees of the land are those of lessees and they are entitled to sell, mortgage, or transfer those rights in any way they like and the purchaser and his representatives shall have the same rights as we the vendors enjoyed hereto before and shall have full liberty to break down any building reconstructed or to transfer his rights in the land in any way he likes."
14. From perusal of document dated 27.2.1910, it is apparent that the lessee right has been transferred by the daughters of Blunt Sahib to the plaintiffs-appellants. The witness of plaintiffs' namely Amar Singh Rajput, who appeared as P.W.-1 had admitted in his cross examination that the Bungalow No.98 was obtained by our society in February, 1910 through deed of assignment since then society is in possession over the same. The relevant portion of cross examination of P.W.-1 is quoted herein below:-
"मैं सन 1998 में सोसायटी का सदस्य पहली बार बना। 1998 के वाद ही मुझे सोसायटी के बारे में व उसके क्रिया कलाप के बारे में ज्ञात हुआ था। 1998 से सोसायटी के संबंध में जानकारी हुई थी। 1998 से पूर्व सोसायटी के किसी भी क्रिया कलाप की जानकारी संबंधित अभिलेख के आधार पर ही बता सकता हूं। बंगला सं. 98 हमारी सोसायटी ने सन फरवरी 1910 डीड आफ असाइनमेन्ट द्वारा प्राप्त किया था। तभी से सोसायटी बंगले पर काबिज है। बंगला न. 98 मौजा सरजैपुर में हैं जो 1910 की डीड में लिखा है वह सही है।"
15. From the aforesaid evidence adduced by the plaintiffs before the trial court, they have failed to prove their ownership over the property in question and they are in possession as lessees. The trial court has recorded the finding after considering the evidence and materials which are available on record that the plaintiffs have failed to prove their ownership in respect of suit property. The burden of proof lies upon the plaintiffs as per Section 101 of Indian Evidence Act, which is quoted herein below:-
"101. Burden of proof.
Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
16. The Hon'ble Apex Court in the case of R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple and another reported in JT 2004 (6) SC 442, has held that the plaintiff, who claims possession on the basis of title, is required to prove his title. The relevant paragraph is quoted herein below:-
"In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the Court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored with him. However, as held in A. Raghavamma & Anr. Vs. Chenchamma & Anr., AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff's title."
17. The similar view has been taken by the Hon'ble Apex Court in the case of Ratnagiri Nagar Parishad Vs. Gangaram Narayan Ambekar and others reported in AIRONLINE 2020 SC 553 and has held that initial burden of proof was on the plaintiffs to substantiate their cause for actionable nuisance, which they had failed to discharge. The weakness in the defence cannot be the basis to grant relief to the plaintiffs and to shift the burden on the defendants. The relevant paragraph 16 is reproduced herein below:-
"16. Be that as it may, on a fair reading of the judgment of the trial Court, it is manifest that the trial Court had opined that the plaintiffs failed to substantiate the case set out in the plaint regarding the actionable nuisance. The trial Court justly analysed the evidence of the plaintiffs in the first place to answer the controversy before it. The first appellate Court, however, after adverting to the oral and documentary evidence produced by the parties, proceeded to first find fault with the evidence of the defendants to answer the controversy in favour of the plaintiffs. The first appellate Court committed palpable error in not keeping in mind that the initial burden of proof was on the plaintiffs to substantiate their cause for actionable nuisance, which they had failed to discharge. In such a case, the weakness in the defence cannot be the basis to grant relief to the plaintiffs and to shift the burden on the defendants, as the case may be. Thus understood, the findings and conclusions reached by the first appellate Court will be of no avail to the plaintiffs."
18. The plaintiffs have failed to prove that Blunt Sahib was the owner of disputed bungalow whereas it was the case of the defendants before the trial court that the ancestors of defendant nos.1 to 5 had let out the disputed bungalow to english-man Blunt Sahib on rent. The trial court has recorded the categorical finding of fact after considering the documentary evidence adduced by the parties that the disputed bungalow was purchased by ancestors of defendant nos.1 to 5 through registered sale deed dated 26.2.1868 and the defendant nos.1 to 5 had inherited the said property from their ancestors. The defendants no.1 to 5 having full right of ownership, have executed the sale deed in favour of defendant nos.6 and 7 through two registered sale deeds on 5.7.2003. The plaintiffs-appellants have failed to prove their right as owners of disputed property.
19. The second submission of plaintiffs-appellants is that the name of plaintiffs were recorded in revenue record as well as Nagar Nigam which proves their ownership on suit property and defendant nos.1 to 5 have no right to sell out the said property to defendant nos.6 and 7. On this point the law has been settled by the Hon'ble Apex Court in series of cases that mutation of land in revenue record does not create or extinguish title over such land or presumptive value of title. It is only for the purposes of payment of rent. The relevant para 8 of the judgment passed by the Hon'ble Apex Court in the case of Smt. Bhimabai Mahadeo Kambekar (D) through LR Vs. Arthur Import and Export Company and others reported in 2019 (3) SCC 191 is quoted herein below:-
"8. This Court has consistently held that mutation of a land in the revenue records does not create or extinguish the title over such land nor it has any presumptive value on the title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. (See Sawarni(Smt.) vs. Inder Kaur, (1996) 6 SCC 223, Balwant Singh & Anr. Vs. Daulat Singh(dead) by L.Rs. & Ors., (1997) 7 SCC 137 and Narasamma & Ors. vs. State of Karnataka & Ors., (2009) 5 SCC 591)."
20. The same view was taken by the Hon'ble Apex Court in the case of Jitendra Singh Vs. The State of Madhya Pradesh and others reported in 2022 (1) All WC 231. The relevant para 5 of the said judgment is reproduced herein below:-
"5. We have heard Shri Nishesh Sharma, learned Advocate appearing for the petitioner.
It is not in dispute that the dispute is with respect to mutation entry in the revenue records. The petitioner herein submitted an application to mutate his name on the basis of the alleged will dated 20.05.1998 executed by Smt. Ananti Bai. Even, according to the petitioner also, Smt. Ananti Bai died on 27.08.2011. From the record, it emerges that the application before the Nayab Tehsildar was made on 9.8.2011, i.e., before the death of Smt. Ananti Bai. It cannot be disputed that the right on the basis of the will can be claimed only after the death of the executant of the will. Even the will itself has been disputed. Be that as it may, as per the settled proposition of law, mutation entry does not confer any right, title or interest in favour of the person and the mutation entry in the revenue record is only for the fiscal purpose. As per the settled proposition of law, if there is any dispute with respect to the title and more particularly when the mutation entry is sought to be made on the basis of the will, the party who is claiming title/right on the basis of the will has to approach the appropriate civil court/court and get his rights crystalised and only thereafter on the basis of the decision before the civil court necessary mutation entry can be made."
21. The mutation of names of plaintiffs in Nagar Nigam is merely for the purposes to pay rent and confers no right or title and it is only for the civil court to decide the title.
22. The third submission of plaintiffs-appellants is that the suit filed by defendants under Section 21(8) has been filed by the defendants no.1 to 5 for enhancement of rent which was dismissed by Additional District Magistrate/Rent Control Officer, Agra vide order dated 6.11.1997 on the ground that the defendant nos.1 to 5 have failed to prove their ownership. Any finding recorded by Rent Control Officer cannot decide the title between the parties. The proceeding before the Rent Control Officer is with regard to the rent and Rent Control Officer has no authority under the law to decide the dispute regarding title between the parties.
23. The last submission of learned counsel for the plaintiffs-appellants is that the plaintiffs-appellants are in possession since 27.2.1910 and therefore, they acquired title by way of adverse possession over the suit property. From bare perusal of plaint it is apparently clear that plaintiffs-appellants never claimed title of disputed property on the ground of adverse possession. The claim of plaintiffs-appellants was on the basis of sale deed dated 27.2.1990 executed by daughters of Blunt Sahib whereas they never claimed title on the basis of adverse possession. Since there was no claim of the plaintiffs on the ground of adverse possession in their plaint and they never pleaded adverse possession and even no issues were framed in this regard, it is not open to the plaintiffs-appellants to raise this question at first time in the appeal.
24. The trial court after considering the evidence adduced by the parties has recorded the finding while deciding the issue nos.6 and 7 that plaintiffs had failed to prove their ownership by producing cogent evidence and status of plaintiffs-appellants are as lessee on the basis of deed of assignment, whereas the defendants-respondents no.1 to 5 have inherited the said property from their ancestors, who were recorded as owner in revenue record. The defendants no.1 to 5 are owner of disputed property through their ancestors and they have every right to execute the sale deeds. The sale deeds dated 5.7.2003 executed by defendant nos.1 to 5 in favour of defendants no.6 and 7 are valid and the issue nos.6 & 7 have been decided in negative against the plaintiffs-appellants.
25. The finding recorded by the trial court regarding ownership and title of disputed property are based on evidence and materials which are available on record and there is no illegality in any manner. No ground for interference is made out. The first appeal filed by plaintiffs-appellants is liable to be dismissed.
26. The first appeal filed by plaintiffs-appellants is dismissed accordingly and the judgment and decree dated 12.12.2011 passed by Additional District Judge, Court No.3, Agra in Original Suit No.567 of 2004 is affirmed.
27. No order as to costs.
Order Date :-11.09.2024 Kpy