Allahabad High Court
Smt. Kela And Another vs Jahangir Singh And Others on 17 December, 2024
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR 2024:AHC:196986 Reserved :- 10.12.2024 Delivered :- 17.12.2024 Court No. - 49 Case :- WRIT - B No. - 3538 of 1982 Petitioner :- Smt. Kela And Another Respondent :- Jahangir Singh And Others Counsel for Petitioner :- Virendra Singh,Deoraj Singh,Devendra Dahma,K.M. Garg Counsel for Respondent :- K.M.L. Nigam,A.S. Diwaker,Rajiv Asthana,S.C.,Sudhir Kumar Pandey,Syed Ashraf Ali Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri K.M. Garg, learned counsel for petitioners and Sri Syed Ashraf Ali, learned counsel for respondent no.1.
2. In the present case, contesting original respondent has filed a Suit under Section 229-B of U.P.Z.A. and L.R. Act, 1950 (for short "Act of 1950") against original Petitioners-1 and 2 for declaration that he was a co-tenure holder in suit property with defendants. The Suit was dismissed vide order dated 23.06.1970. In said Suit, following 5 issues were framed :-
"1. Whether plaintiff is co-tenure holder with defendants no. 1 and 2 in the land in suit?
2. Whether defendants no. 1 and 2 are sole sirdar in the land in suit?
3. Whether suit is barred under Order IX Rule 8 CPC?
4. Whether suit is barred by res-judicata?
5. What relief, if any, is the plaintiff entitled?"
3. Issues No. 3, 4 and 5 were not pressed and only issues no. 1 and 2 were decided. For reference, relevant part thereof is quoted below :-
"The first point to be seen is whether plaintiff can acquire sirdari rights by succession as son of Budha because Budha was admitted as tenant of this land. In my opinion, Budha was tenant of this land and so far his death, plaintiff automatically became sirdar of this land. However, the plaintiff has not reported succession as required by U.P. Land Revenue Act and so the Court is precluded for taking cognizance of the case on this point because it is barred under Section 34(5) of U.P. Land Revenue Act. No doubt, the defendants have not taken any objection on this point but this being a legal point and so it has been taken. Plaintiff is said to have filed an application but there is no document to support it. Therefore, the claim of the plaintiff as sole sirdar of the land cannot be recognized. Besides has not pressed this point seriously but has raised his claim on the basis of the compromise and admission. The compromise is dated 06.06.1956. On this date, the Tenancy Act was in force. Therefore, this compromise as best can mean that the plaintiff recognized defendants no.1 and 2 as co-tenant and defendants no. 1 and 2's father recognized the plaintiff as co-tenant. During the continuance of the Tenancy Act, this co-tenancy could not be recognized, in view of the bar created by Section 33 provisions of U.P. Tenancy Act because the Zamindar was not a party to it. Besides, the compromise was not recognized by Sri B.S. Kaushik, Judicial Officer vide his order dated 22.01.1966. It is placed on behalf of the plaintiff that this suit was withdrawn and so I think the point loses its significance. This compromise is Ex.Ka.-1. This compromise deed has been challenged by defendants no.1 and 2 under the circumstances it was necessary for the plaintiff to have sent this document to some expert for the comparison of thumb mark of Hoop Karan deceased. As given in this document with the admitted document of Hoop Karan. This felicitation deed or compromise is silent about the land revenues payable on this land. This was necessary with a view to decide the valuation of this land coupled with the fact if it requires registration or not. This document was not produced by the plaintiff in case u/s 145 Cr.P.C. in between him and father of defendants no. 1 and 2. Therefore, this document cannot be treated as genuine and in case conferring any title on the plaintiff. The next point is the admission of Smt. Nanhi the then tenant of this land. It is a settled law that there is no admission against legal pleas. When co-tenancy cannot be conferred or recognized by act of parties in the form of compromise, it cannot be recognized on the basis of admission. Therefore, then admission plea will also not help the plaintiff. Therefore, in view of above discussion, plaintiff cannot become sirdar either by succession or by compromise or by admission. Apart from these facts plaintiff has any right after the death of Budha it was necessary for him to file a declaratory suit after reporting succession as required u/s 34 U.P. Land Revenue Act challenging the compromise can admission of the then Zamindar Abbas Hussain because there could not be any super imposition of tenancy over the land of Jahangir Singh. The act of zamindar could be void u/s 4 of the Tenancy Act. When any compromise restricts a tenant from enforcing his legal rights. Therefore, the plaintiff has no case on the three points referred to above. The fact of possession will not help the plaintiff much because this land became subject of litigation in between the contesting parties after death of Budha in proceedings u/s 145 Cr.P.C. this land was declared to be in possession Hoop Karan. Under these circumstances, the plaintiff was absolutely out of possession ever since 1957. When he was declared as such by the S.D.M. under these circumstances of the plaintiff claims the sole sirdari rights, he should have filed a suit for ejectment against the defendants no.1 and 2 as his tenant. This means that plaintiff was ousted from this land and his rights if any are extinguished by the adverse possession of Hoop Karan and after him his heirs. I, therefore, hold that plaintiff is not co-tenure holder along with defendants no. 1 and 2 in this land but defendants no.1 and 2 are sole sirdars of the same. Both the issues are decided accordingly."
4. Original respondent-1/plaintiff filed an Appeal before Additional Commissioner which was allowed, vide order dated 30.09.1972. Its relevant part is quoted below :-
"अपीलकर्ता की ओर यह तर्क किया गया कि अवर न्यायालय ने बुद्ध का असल कास्तकार सही रूप से माना था और इसी प्रकार वादी अपील कर्ता वो बुद्ध सिंह का लड़का है उसको विवादित भूमि में वारिस के अधिकारी मिले। यह भी तर्क किया गया कि अवर न्यायालय का यह निर्णय कि दावा 34(4) एक्ट मालगुजारी से वादित वादित था। गलत क्यो कि बुद्धा सिंह की मृत्यु जमीदारी उन्मुलन के पूर्व हो गयी और उस समय धारा 34(5) एक्ट मालगुजारी दाखिल खारिज का प्रार्थना पत्र देना आवश्यक नहीं था। यह भी तर्क नहीं किया गया कि कथित परिवारिक फैसला एक्जीविट 1 को गलत रूप से रिक्त न होना निर्णय किया गया। इस विपरीत पत्यपक्षी की ओर से यह तर्क किया गया कि अपीलकर्ता ने विरासतन विवादित भूमि मे अपने को सह कृषक नहीं कहा है बल्कि 6.6.56 के पारिवारिक फैसले के आधार पर ही अपना अधिकार बताया है। यह तर्क किया गया कि वादी ने अपने वाद मे बुद्धा की मृत्यु की कोई समय नहीं लिखा अतएव यह नहीं कहा जा सकता कि बुद्धा की मृत्यु जमीदारी विनाश से पहले हुई या बाद में।
5. पत्रावली का अवलोकन से यह स्पष्ट है कि आरम्भ में विवादित भूमि का कृषक बुद्धा सिंह पिता व वादी था जैसा कि उद्धरण खतौनी 1355 में अंकित है जिसमें बुद्धा सिंह असल कास्तकारण दर्ज है। वादी ने अपने वाद पत्र के पैरा नं० 1 में यह अंकित किया है अपने पिता बुद्धा सिंह के मरने पर यह विवादित भूमि पर जमीदारी उन्मुलन से पूर्व काबिज व दाखिल होकर कास्त कर रहा है। इस प्रकार बुद्धा सिंह की मृत्यु पत्र में जमीदारी विनाश के पूर्व अंकित है वादी के गवाहान नं० 1 अहमद हुसैन व गवाह नं० 2 जहागीर सिंह के कथनों से यह स्पष्ट है कि बुद्धा सिंह की मृत्यु जमीदारी विनाश से पूर्व हुई अतः बुद्धा सिंह की मृत्यु के बाद वादीकर्ता विवादित भूमि का कृषक हो गया 1958 ए० डब्लू० आर० (रेवन्यु) पृष्ठ 34 में दाखिल खारिज का प्रार्थना पत्र देने से कोई आवश्यकता नहीं थी अतः अवर न्यायालय का यह निर्णय की वाद धारा 34(5) से वांछित है गलत जान पड़ता है। ऐसी कोई आपत्ति प्रतिवादी की ओर से उठायी भी नहीं गयी थी। पत्रावली पर दिये हुये विभिन्न प्रपत्रों से यह स्पष्ट है कि विवादित भूमि के बारे में वादी के पति वादी 1 व 2 के मां बाप के बीच काफी मुकदमें बाजी हुई ऐसा प्रकट होता है कि अब्बास हुसैन जो विवादित भूमि के जमीनदार थे उन्होने विना किसी आदेश के 1360 फसली की खतौनी मे अपना नाम मद नं० 3 में दर्ज करा दिया और उसके बाद एक मिला जुला वाद हुबकरण की ओर से दायर किया गया वहां पर यह उल्लेखनीय है कि हुबकरण का नाम बुद्धा के जीवन काल में कभी अंकित नहीं हुआ लेकिन हुबकरण के दावा यू० पी० टेनेन्सी एक्ट की धारा 63 के अन्तर्गत अब्बास हुसैन जमीदारी के विरूद्ध योजित किया और 2.4.55 के आदेश द्वारा यह वाद डिक्री हुआ इस दावे में अब्बास हुसैन ने हुबकरण का दावा तसलीम किया था और उसी तसफिये के आधार पर डिग्री हुई जान पड़ती है ऐसा प्रतीत होता है कि अब्बास हुसैन ने यह तसफिया हुबकरण से मिल जुल कर दिया था जहांगीर सिंह अपीलकर्ता उस वाद में पक्ष नहीं था अतः वह डिक्री बाध्य नहीं कर सकती और उसका कोई असर इस वाद पत्र पर नहीं है।
6. प्रतिवादी के गवाह संख्या 1 व 2 मे भली भांति साबित किया है पारिवारिक फैसला एक्जीवट क-1 पंचायत द्वारा कराया गया था और उस पर हुबकरण का अंगूठा मौजूद है। प्रतिवादीगण 1 व 2 के उस पारिवारिक फैसले से इन्कार किया परन्तु यह उनका कार्य था कि यह साबित करते कि उनको मिला हुबकरण का अंगुठा इस पर नहीं है इस बात की पुष्टि की यह पारिवारिक हुआ था श्रीमती नन्ही जो प्रतिवादीगण की मां है की स्वीकृत दिनांक 10.6.60 जिसकी प्रतिलिपि पत्रावली पर है होती है श्रीमती नन्ही हुबकरण की वेवा और प्रतिवादीगण 1 व 2 की मां है ओ कुल काल तक विवादित भूमि कि सह कृषक भी रही है और उसके कराओं के कराने के बाद ही प्रतिवादी गण को विवादित भूमि में अधिकार मिले है इस स्वीकृत दिनांक 10.6.60 में नन्हीं ने वादी जहांगीर के संशोधन के प्रार्थना पत्र को सही माना था और उसको विवादित भूमि को ½ भाग पर अंकित किये जाने का अनुरोध किया था अतः यह पारिवारिक फैसला एक्जीविट क-1 भली प्रकार साबित होता है इस बात को कोई प्रभाव नहीं कि 6.6.59 को जब पारिवारिक फैसला हुआ था जब विवादित भूमि की मालियत सौ रूपये अधिक थी अतएव एक्जीविट क को रजिस्टरी कराना आवश्यक नहीं थी।
7. अतः पत्रावली से यह साबित है कि प्रारम्भ में जहांगीर से ही वादी को विवादित भूमि पर एक मात्र कृषक होने के अधिकार प्राप्त थे परन्तु पारिवारिक फैसले द्वारा उसने हुबकरण को सह कृषक मान लिया और वह दोनो विवादित भूमि के सह कृषक हो गये अतः वादी विवादित भूमि का सह कृषक प्रतिवादीगण 1 व 2 के साथ भली भांति साबित होता है। प्रत्यर्थी की ओर से यह तर्क किया गया कि विवादित भूमि पर वादी का कब्जा साबित नहीं होता है। अतः आर० डी० 1972 पृष्ठ 251 में निर्णय की गयी नजीर के अनुसार उसका वाद धारा 42 एस० आर० एक्ट से बाधित है खसरा 1362 व 64 में जहांगीर का कब्जा अंकित है ऐसा प्रतीत होता है कि धारा 145 के बाद मे 9.8.57 को परगनाधिकारी ने विवादित भूमि का कब्जा हुबकरण के पक्ष में तय किया था। परन्तु यह वाद सह खातेदारी का है ताकि एह मात्र खातेदारी का अतः हुबकरण अथवा प्रतिवादी एक व दो का कब्जा सह कृषक जहांगीर सिंह का कब्जा माना जायेगा अतः कब्जे का प्रश्न इस वाद में मौलिक नहीं है और वादी अपीलकर्ता को सह कृषक घोषित किया जाना चाहिए तथा अपील स्वीकार होने योग्य है।"
5. Original petitioners being aggrieved by above order, thereafter, have filed a Second Appeal before Board of Revenue which was dismissed vide order dated 01.02.1982. Its relevant part is quoted below :-
"7. I have examined carefully the judgments of both the Courts below and the record of the case in the light of the arguments advanced on behalf of the parties. First I would like to deal with the points which have been put forth on behalf of the appellants raising a contention that the suit was barred. The learned lower appellate court has held that Budha Singh, the father of the plaintiff-respondent Jahangir Singh had died before the abolition of Zamindari, and therefore, it was not mandatory for Jahangir Singh to move an application for mutation and consequently the suit was not barred under sub-Section 5 of Section 34 of the U.P. Land Revenue Act. Further, from the trial Court's record, it is clear that Jahangir Singh had moved an application for correction of papers in suit no. 11 of 1960. This fact is not denied by the appellants. In view of the aforesaid findings of the lower appellate Court and above fact there is no force in the contention that the suit was barred under provisions of Section 34(5) of U.P. Land Revenue Act.
A perusal of paragraphs 1, 2 and 3 read with sub part of para 6 of this plaint filed by Jahangir Singh makes it clear that the plaintiff had not only claimed his title and possession over the land in suit but he had also sought a declaration from the trial Court regarding his rights and possession as the sirdar of the land in suit. Under these circumstances, the present suit cannot be governed by the ruling cited by the learned counsel for the appellants. Considering the facts stated in the plaint and the evidence led on behalf of the plaintiff in the trial Court, there is no force in the contention that the suit was barred under Section 42 of the Specific Relief Act.
8. As regards, the question whether the suit was barred due to declaration under Section 145 Cr.P.C. and continuous possession of the appellants for more than 12 years, it would be discussed in the following paragraph as it is related to the compromise between the parties dated 06.03.1956.
9. Now coming to the compromise dated 06.06.1956, it may be stated that the plaintiff had claimed his rights of title and possession to the land in suit mainly on the basis of this compromise. This compromise was accepted by Nanhi, the mother of the appellants who had come into possession of the land in suit after the death of her husband, Hoop Karan. She was therefore, competent to make an admission in regard to the land in dispute and the appellants who had come into possession of the land in suit after the death of her husband, Hoop Karan. She was therefore, competent to make an admission in regard to the land in dispute and the appellants who were not holding the title and possession of the land in dispute were not required to be party in the suit under Section 33 of the Land Revenue Act and therefore the acceptance of the compromise by Nanhi in that suit could not be questioned or ignored merely on the basis that the appellants were not parties to that suit. On behalf of the respondents, it has been explained that the compromise was in respect of land having less than Rs. 100/- as rent and therefore, its registration was not compulsory according to the then provisions of U.P. Tenancy Act. This contention has not been controverted by the appellants in the courts below. Further no copy of the compromise deed has been filed. In the absence of any written compromise, it is not possible to judge the exact nature and implication of that compromise. The only fact that clearly emerges from the evidence on record in regard to that compromise is that the plaintiff, Jahangir Singh and Hoop Karan and later on his sucessor, Nanhi and then the two appellants had half share each in the land in dispute which act of both the appellants. This fact in itself does not correct that the compromise to be valid should have been registered under Section 17 of the Registration Act. In any case, its acceptance by Nanhi in a suit under Section 33 of the U.P. Land Revenue Act was fine so far as the rights regarding title and possession of Jahangir Singh of the land in dispute were concerned. The learned Additional Commissioner has examined at great length the inclusions of this compromise then reversed the findings of the learned trial Court, cannot be sustained for the reason as clearly stated by the learned Additional Commissioner paras 5 and 6 of his judgment. 11, 10 Now coming to the question whether the suit was barred by adverse possession and limitation in view of orders under Section 145 Cr.P.C. I am inclaimed to agree entirely with the learned Additional Commissioner that the question of possession is not so significant because of co-tenancy of the parties in the land in suit. As stated earlier, the suit was filed in the year 1956 after the first appeal against the decision of the trial Court dated 19.03.1966 had been decided on 04.12.1966. Thus, the suit was within prescribed period of limitation. As regard, the contention that the suit was barred by res-judicata, I afraid it has no force. Since the lower appellate Court had allowed a frosk suit to be filed treating the earlier suit as withdrawn, the principle of res-judicata would not apply in such circumstance. The appellants have failed to show if any adjudication in regard to the title and interest of the parties in regard to the title and interest of the parties in regard to the land in suit had been done by the courts in the aforesaid suit and the first appeal. In the absence, any such fact being established. The appellants cannot be permitted to claim the benefit of res-judicata specially when this was not pressed other before the trial Court of before the learned Additional Commission in his appeal.
10. In view of the discussion and findings given in the earlier paragraphs, I am of opinion that the appellants have failed to make out any case exclusively in their favour either on the basis of the alleged and exclusive adverse possession over the land in suit supported by a decision under Section 145 Cr.P.C. or any other grounds.
11. In the result, I find that second appeal has no force and it is hereby dismissed."
6. Above referred orders passed by First Appellate Court and Second Appellate Court are impugned in this writ petition.
7. Learned counsel for petitioners has submitted that Hoob Karan, father of petitioner-2 has earlier filed a suit for declaration under Section 59/63 of Act of 1939 which was decreed vide order dated 23.04.1955 that Hoob Karan was a hereditary tenant. The suit was decided on basis of a compromise. During said suit proceedings, respondent-1 has filed an objection, however, it was rejected.
8. Learned counsel has further submitted that Jahangir Singh, respondent-1 has also filed a suit to declare him a co-tenant which was dismissed for want of prosecution on 28.09.1963. A restoration application filed was also dismissed and thereafter an appeal was filed, which also got dismissed on 06.03.1964. Respondent-1 has also filed another suit under Section 59/63 of Act of 1939 to declare him co-tenant, however, said was dismissed as withdrawn vide order dated 19.03.1969.
9. Learned counsel has further submitted that despite earlier attempt of original respondent-1 for declaration, was failed, still, he has filed a fresh suit in the year 1969 and present writ petition is outcome of said suit.
10. Learned counsel has further submitted that there were multiple criminal cases between Jahangir Singh and Hoop Karan and proceedings under Section 145 Cr.P.C. was drawn and vide order dated 09.08.1957, it was held that property in dispute was in possession of Hoop Karan and his son was restrained to interfere in his possession.
11. Learned counsel has further submitted that Hoop Karan died in the year 1958 and his wife Nanhi immediately thereafter remarried and as such land in dispute was inherited by petitioners as minor daughters. Nanhi wife of Hoob Karan has no right to file any compromise and settle respondent-1 as co-tenant.
12. Learned counsel has further referred extract of Khatauni 1360-F shows that land in dispute is within municipal limits and it was recorded in the name of Abbas Hussain @ Jindu and in 1365-F, the land in dispute was recorded in the name of Hoop Karan which indicates that Jahangir Singh was not in possession.
13. Learned counsel has further submitted that suit was filed by respondent-1 on basis of an alleged unregistered agreement dated 06.06.1956. Said agreement was never acted upon and being an unregistered agreement, it was not admissible and no presumption could be drawn. The petitioners have filed an application during suit proceedings that unregistered alleged agreement was not only inadmissible but in previous litigation, it was also held inadmissible in evidence. Learned counsel has further referred a death certificate dated 22.09.2003 which shows that father of Jahangir Singh viz. Buddha died on 11.09.1956 i.e. after Act of 1950 came into force and since he has not reported the succession in terms of Section 34(1) of Act of 1939, the suit was barred by Section 34(5) of said Act.
14. Learned counsel has also referred orders passed in proceedings under Section 145 Cr.P.C. which was decided on 09.08.1957 that at that time, possession of petitioners was found on land in dispute. Family arrangement was inadmissible in evidence for want of compulsory registration.
15. In support of his submissions, learned counsel has placed reliance upon judgments of Supreme Court in Kale and otehrs vs. D.D.C. and others, AIR 1976 SC 807, Bishnudeo Narain and another vs. Seogeni Rai and others, AIR 1951 SC 280, Banarasi and others vs. Ram Phal, 2003 (94) RD 541 and R.S.R.T.C. and another vs. Bajrang Lal, (2014) 4 SCC 693 as well as judgment of this Court in Budhlal and another vs. D.D.C., Gorakhpur, 1982 RD 324.
16. Learned counsel for respondents has submitted that suit filed by respondent-1 was wrongly dismissed by trial Court, however, First Appellate Court has rightly interfered with a reasoned order and decreed the suit and therefore, a Second Appeal filed by the petitioners was rightly dismissed.
17. Learned counsel has further submitted that any finding returned during proceedings U/s 145 Cr.P.C. are not binding on civil proceedings or revenue proceedings.
18. Learned counsel has referred paragraph 5, 6 and 7 of judgment passed by First Appellate Court that Buddha was काश्तकार and his name was recorded in 1355-F. After his death respondent-1 was in possession of land in dispute and used the land as काश्त before Act of 1950, therefore, he would not require to report for mutation under above referred provisions. Name of Hoop Karan was only recorded during lifetime of Buddha. The family agreement dated 06.06.1956 was proved and since it was only for purpose of preparing the recital of shares already distributed, therefore, no registration was required.
19. Heard learned counsel for parties and perused the record.
20. First issue to consider is what would be the effect of findings returned in proceedings under Section 145 Cr.P.C. that Hoop Karan alone was in possession as on 09.08.1957. In this regard, the Court takes note of a judgment passed by Supreme Court in Shanti Kumar Panda vs. Shakuntala Devi, (2004) 1 SCC 438 that a decision of Criminal Court does not bind the Civil Court and its relevant part are being quoted below :-
"15. It is well settled that a decision by a criminal court does not bind the civil court while a decision by the civil court binds the criminal court. (See Sarkar on Evidence, 15th Edn., p. 845.) A decision given under Section 145 of the Code has relevance and is admissible in evidence to show: (i) that there was a dispute relating to a particular property; (ii) that the dispute was between the particular parties; (iii) that such dispute led to the passing of a preliminary order under Section 145(1) or an attachment under Section 146(1), on the given date; and (iv) that the Magistrate found one of the parties to be in possession or fictional possession of the disputed property on the date of the preliminary order. The reasoning recorded by the Magistrate or other findings arrived at by him have no relevance and are not admissible in evidence before the competent court and the competent court is not bound by the findings arrived at by the Magistrate even on the question of possession though, as between the parties, the order of the Magistrate would be evidence of possession. The finding recorded by the Magistrate does not bind the court. The competent court has jurisdiction and would be justified in arriving at a finding inconsistent with the one arrived at by the Executive Magistrate even on the question of possession. Sections 145 and 146 only provide for the order of the Executive Magistrate made under any of the two provisions being superseded by and giving way to the order or decree of a competent court. The effect of the Magistrate's order is that burden is thrown on the unsuccessful party to prove its possession or entitlement to possession before the competent court.
16. In Bhinka v. Charan Singh [AIR 1959 SC 960 : 1959 Cri LJ 1223] this Court held that the Magistrate does not purport to decide a party's title or right to possession of the land but expressly reserves that question to be decided in due course of law. His order is a temporary order irrespective of the rights of the parties, which will have to be agitated and adjudicated upon by a competent forum and in the manner provided by law. The life of the said order is coterminous with the passing of a decree by a civil court and the moment a civil court makes an order of eviction, it displaces the order of the criminal court. The orders under Section 145 of the Code are thus merely police orders and do not decide any question of title.
17. We would like to clarify that in the case of Bhinka [AIR 1959 SC 960 : 1959 Cri LJ 1223] the question -- what is a competent court, did not arise for determination; nor did the question as to what is the weight and value to be assigned to or what is the efficacy of the order of the Magistrate in a subsequent suit or proceeding initiated before a competent court directly arise for consideration. This we say because it is also well settled that Sections 145 and 146 nowhere specifically provide for the order of the Magistrate being subject to and superseded by only a decree of "civil court". The words "competent court" used in Section 146(1), in the context in which they have been used, only mean "any court which has jurisdictional competence to decide the question of title or rights to the property or entitlement to possession based on right or title to the property though the court is not necessarily a civil court". The words "until evicted therefrom in due course of law" as occurring in sub-section (6) of Section 145 mean the eviction of the party successful before the Magistrate, consequent upon the adjudication of title or right to possession by a competent court; that does not necessarily mean a decree of eviction. The party unsuccessful before the Magistrate may dispute the correctness of the finding arrived at by the Magistrate and is at liberty to show before the competent court that it had not dispossessed the successful party or that it is the unsuccessful party and not the successful party who was actually in possession and the finding to the contrary arrived at by the Magistrate was wholly or apparently erroneous and unsustainable in law.
18. In Jhummamal v. State of M.P. [(1988) 4 SCC 452 : 1988 SCC (Cri) 974] this Court has held that a concluded order under Section 145 CrPC, made by a Magistrate of competent jurisdiction should not be set at naught merely because the unsuccessful party has approached the civil court. An order made under Section 145 CrPC, deals only with the factum of possession of the party as on a particular day. It confers no title to remain in possession of the disputed property. The order is subject to decision of the civil court. The unsuccessful party, therefore, must get relief only in the civil court. He may move the civil court with a properly constituted suit. He may file a suit for declaration and prove a better right to possession. The civil court has jurisdiction to give a finding different from that which the Magistrate has reached. Here again we may hasten to add that the expression "civil court" used by this Court in Jhummamal case [(1988) 4 SCC 452 : 1988 SCC (Cri) 974] means competent court and not necessarily a civil court as commonly understood."
21. In aforesaid circumstances, Court is of considered opinion that findings returned in proceedings U/s 145 Cr.P.C. are not binding on a Civil Court. The Court will decide the issue on merit i.e. on basis of pleadings and evidence in regard to possession of land in dispute.
22. Second issue for consideration is effect of alleged family settlement dated 06.06.1956 i.e. whether it requires registration or not. In this regard, learned advocates for rival parties have referred judgment of Supreme Court in Kale (supra) wherein it was held as follows :-
"20. A Full Bench of the Allahabad High Court in Ramgopal v. Tulshi Ram [AIR 1928 All 641, 649 : 26 ALJ 952] has also taken the view that a family arrangement could be oral and if it is followed by a petition in court containing a reference to the arrangement and if the purpose was merely to inform the court regarding the arrangement, no registration was necessary. In this connection the Full Bench adumbrated the following propositions in answering the reference:
"We would, therefore, return the reference with a statement of the following general propositions:
With reference to the first question:
(1) A family arrangement can be made orally.
(2) If made orally, there being no document, no question of registration arises.
With reference to the second question:
(3) If though it could have been made orally, it was in fact reduced to the form of a "document", registration (when the value is Rs 100 and upwards) is necessary.
(4) Whether the terms have been 'reduced to the form of a document' is a question of fact in each case to be determined upon a consideration of the nature and phraseology of the writing and the circumstances in which and the purpose with which it was written.
(5) If the terms were not 'reduced to the form of a document', registration was not necessary (even though the value is Rs 100 or upwards); and while the writing cannot be used as a piece of evidence for what it may be worth, e.g. as corroborative of other evidence or as an admission of the transaction or as showing or explaining conduct.
(6) If the terms were 'reduced to the form of a document' and, though the value was Rs 100 or upwards, it was not registered, the absence of registration makes the document inadmissible in evidence and is fatal to proof of the arrangement embodied in the document.""
23. Learned counsel for petitioners has referred a decision dated 19.03.1969 passed by Revisional Officer in a Suit filed by respondent-1 under Section 59/61 of U.P. Land Revenue Act, 1901 wherein on issue of admissibility of family settlement an order was passed that it could not be admissible in evidence though it has not been disputed that suit was subsequently dismissed as withdrawn vide order dated 19.03.1969.
24. On a question that whether said finding on compromise would be final on issue and would raise a bar of res-judicata, the Court considers the discussion made by Second Appellate Court that petitioners have failed to show that any adjudication in regard to title and interest of parties was decided in said suit. Said suit was dismissed as withdrawn, therefore, any finding returned therein would not act as a res-judicata. In this regard, a reference is taken of a judgment passed by Supreme Court in Sri Ramchandra Mission and another vs. P. Rajgopalachari and others, (2008) 15 SCC 533 and its relevant paragraph is quoted below :-
"12. It is pointed out that the earlier suit having direct effect was withdrawn and the effect of it has to be considered. The effect of the withdrawal of a suit has been considered by this Court in K. Sivaramaiah v. Rukmani Ammal [(2004) 1 SCC 471] . It was inter alia observed as follows : (SCC p. 475, para 5) "5. So far as Original Suit No. 7359 of 1989 is concerned, the findings recorded in the judgment therein could have constituted res judicata but the fact remains that the appellate court permitted the withdrawal of the suit and once the suit has been permitted to be withdrawn all the proceedings taken therein including the judgment passed by the trial court have been wiped out. A judgment given in a suit which has been permitted to be withdrawn with the liberty of filing a fresh suit on the same cause of action cannot constitute res judicata in a subsequent suit filed pursuant to such permission of the court.""
25. From Ramchandra Mission (supra), it is evident that if a suit is dismissed as withdrawn, proceedings taken therein including judgment passed by trial Court would be wiped out whereas admittedly in present case, the suit was dismissed as withdrawn without any judgment on merit as well as order dated 22.01.1966 passed in said suit has only referred that since value of land involved in family settlement was more than Rs. 100/-, therefore, it is required registration, which could be considered as a trial order passed on merit.
26. So far as issue in terms of Kale (supra) that on basis of contents of family settlement that whether it requires registration or could still be considered, therefore, by said order, requirement of res-judicata was not fulfilled, therefore, it would not be barred for trial Court, to consider whether said document requires registration or not. The plea of res-judicata was rightly rejected by Trial Court and by Second Appellate Court. Nanhi has accepted the family settlement/compromise as well as it was also not correct to contend that property was valued more than Rs. 100/- as well as that even it was valued more than Rs. 100/-, still, since by said document, shares of party which were already accepted and acted upon were recorded, therefore, no registration was required.
27. The issue no.3 before trial Court i.e. whether suit was barred under Order IX Rule 9 CPC was not pressed. Order IX Rule 8 CPC provides procedure where defendants only appear. Order IX Rule 9 CPC provides decree against plaintiff by default bars fresh suit i.e. if a suit is wholly or partially dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside. However, in present case, the suit was dismissed for want of prosecution on 28.09.1963 though the order is not on record.
28. As referred above, a factor would go against petitioners that said issue was not pressed during suit proceedings when it was dismissed. Even it was not raised specifically in second appeal. Therefore, despite above provisions, petitioners will not get any help from it.
29. Last issue for consideration is if the condition prescribed U/s 34 (1) of Act of 1901 was not complied with whether in view of Section 34(5) of Act of 1901, no suit could be filed.
30. In this regard, Court takes note of findings returned that father of respondent-1 Buddha died before Act of 1950 came into force, therefore, he was not required to report in terms of Section 34(1) of Act of 1901. The Court takes note that by way of filing supplementary affidavit, petitioners have brought on record a death certificate of Buddha that he died after Act of 1950 came into force, however, said document has been placed for first time before this Court, therefore, it has not been considered by trial Court, First as well as Second Appellate Courts.
31. In view of above, in writ jurisdiction, said document cannot be verified or scrutinized. No material was produced before Revenue Courts that Buddha died after enforcement of Act of 1950.
32. In aforesaid circumstances, Court is of considered opinion that all arguments raised in this writ petition have no force, therefore, this Court does not find any ground to interfere with impugned order, hence, writ petition stands dismissed.
Order Date :- December 17, 2024 N. Sinha [Saurabh Shyam Shamshery, J.]