Allahabad High Court
Smt.Bhanmati And Others vs Salik Ram on 18 September, 2023
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2023:AHC-LKO:59492 RESERVED Court No. - 19 Case :- SECOND APPEAL No. - 35 of 1991 Appellant :- Smt.Bhanmati And Others Respondent :- Salik Ram Counsel for Appellant :- H.S.Sahai,Mohammad Aslam Khan,Q.M.Haque Counsel for Respondent :- S.C.Misra,G.P. Misra,I.D.Shukla,S.K.Mehrotra * * * * * Hon'ble Jaspreet Singh,J.
1. This is defendant's second appeal being aggrieved against the judgment and decree passed by the Second Additional District Judge, Gonda in Civil Appeal No.168/1986 dated 29.11.1990 whereby it has affirmed the judgment and decree passed in Regular Suit No.174/1978 dated 17.01.1985 decreeing the suit.
2. The aforesaid second appeal was admitted by this Court on 19.01.1991 on the substantial questions of law as formulated in the memo of second appeal at S.No.(1), (2), (4) and (5). For the sake of ready reference, they are being reproduced hereinafter.
"(1) Whether the plaintiff not being recorded in revenue records at any point of time, the suit for cancellation of the sale deed on the ground that the document was void, could be cognizable by the civil court and will not be barred under section 331 of the U.P. Zamindari Abolition & Land Reforms Act?
(2) Whether the fact being admitted that the consolidation proceedings having taken place in the village and the plaintiff was not recorded in the revenue records, from the very inception, and no objection of title and possession having been filed under Section 9 of the U.P. Consolidation of Holdings Act and the consolidation/proceedings having been concluded and the village having been denotified and the entries in the revenue records still continuing in favaour of Ram Baran, the predecessor-in-interest of the appellants, the present suit will not be barred under Section 49 of the U.P. Consolidation of Holdings Act?
(4) Whether the plaintiff, who was born after the date of vesting could claim any rights and title in the life time of his father, the father being alive, he could claim any rights?
(5) Whether the rights by birth could be available with respect to tenancy land?"
3. In order to answer the aforesaid substantial questions of law, it will be necessary to take a glance at the facts giving rise to the instant appeal.
4. Salik Ram (original plaintiff/respondent) instituted a suit in the Court of Munsif, Gonda bearing No.174/1978 seeking a decree of cancellation of a sale-deed dated 18.03.1978 executed by Ram Baran (the original defendant No.3 and father of the plaintiff and defendants No.4 and 5) in favour of Smt. Bhanmati (the original defendant No.1 and defendant No.4 who died during pendency of the instant appeal and is now represented by her sons who have been impleaded in their place) and Smt. Rajpati (the defendant No.2/appellant and wife of Ghanshyam the defendant No.4). For the sake of convenience, the Court shall be referring to the parties as they were originally impleaded in the regular suit.
5. While filing the suit, Salik Ram, the original plaintiff, had given a pedegree indicating that the common ancestor of the parties was Ganesh Dutt, who was survived by his son Shambhu Dutt. Shambhu Dutt had three sons Ramhet, Ram Baran and Rajman. It was further pleaded that the property subject matter of the sale-deed was ancestral, joint family property, coming from the time of Ganesh Dutt. It was also stated that Ramhet, Ram Baran and Rajman each had 1/3rd share in the property in question. Ram Baran had three sons namely the plaintiff Salik Ram, Bhagatram defendant No.4 and Ghanshayam defendant No.5.
6. It was further pleaded that upon the commencement of the consolidation operations in the village, the share of Ram Baran was determined and in respect of the property which came in the name of Ram Baran, the plaintiff had 1/4th share therein. It was also pleaded that there was no partition between the plaintiff and the defendants. The defendant No.3 Ram Baran (father of the plaintiff and the defendant No.4 and 5) did not have any right to execute the sale-deed in favour of the defendant No.1 and 2 namely Smt. Bhanmati and Smt. Rajpati (daughter-in-law and Bahu of Ram Baran). It was also urged that the said sale-deed was fraudulent and sham document in light of the grounds raised in Para-7 of the plaint. It was stated that the said sale-deed was liable to be cancelled and for the aforesaid reasons the suit came to be filed on 10.07.1978.
7. The suit was contested by the defendants-appellants, who filed their written statement on 06.12.1978 and it was resisted primarily on the plea that the property in question was exclusively of Ram Baran. Even during consolidation operations the plaintiff did not raise any objection or claim his rights and as such on the closure of the consolidation operations the rights of Ram Baran stood crystallized and indirectly now the plaintiff is not entitled to raise the issues which he should have raised before the consolidation operations and as such the suit was barred by Section 49 of the U.P. Consolidation and Holdings Act, 1953 (for short, 'Act of 1953').
8. It was also contended that since the name of the plaintiff was not recorded in any of the revenue records and the recorded tenure holder had executed the sale-deed in favour of the defendant No.1 and 2, who also got their names duly mutated, hence, in such circumstances, the suit was not maintainable and was hit by Section 331 of the U.P. Z.A. & L.R. Act, 1950 (for short, 'the Act of 1950') and as the cancellation necessarily involves the declaration of right of the plaintiff for which the civil Court is not competent to declare and for the said reason the suit was not maintainable in the Civil Court.
9. It was also specifically pleaded in Para-17 of the written statement that since the property belonged to Ram Baran, the defendant No.3, hence, in the lifetime of Ram Baran, the plaintiff had no right to claim any share nor he had any right to sue and for the aforesaid reasons the suit was not maintainable.
10. It was also pleaded that the grounds for cancellation of the sale-deed as mentioned in Para-7 of the plaint were misconceived and not tenable in law as Ram Baran being the sole owner of the property could alienate the property in favour of any person he so desired and for the reasons aforesaid the suit deserved to be dismissed.
11. The trial Court initially framed 7 issues out of which the important issues were, (i) Whether the defendant No.3 Ram Baran was the exclusive owner of the property and if so its effect? (ii) Whether the suit was barred by Section 49 of the Act of 1953? (iii) Whether the suit was barred by Section 331 of the Act of 1950; (iv) Whether and to what relief, the plaintiff is entitled to?
12. The trial Court found that the suit was not barred by Section 49 of the Act of 1953, however, it concluded that the suit definitely was hit by Section 331 of the Act of 1950 and the said issue was decided in favour of the defendants against the plaintiff. The trial Court further noticed that since the land in question was agricultural in nature, hence, the said land was earlier governed by the Oudh Rent Act, 1882 which did not have any provision of succession. This was followed by U.P. Tenancy Act, 1939 which had the limited rights of succession only for a limited period and this Act was further replaced by Act of 1950 which had a separate mode of succession under the provision of Section 171 and accordingly in either situation there was no provision for succession on the basis of the Hindu Succession Act and consequently neither the property could be treated as joint family property nor it could be treated as coparcenary property and thus for the aforesaid reasons it found that the property belonged to the defendant No.3 who had the right to transfer. Since, the defendant No.3 had transferred the property in favour of the defendants No.1 and 2 and it cannot be said that it was a transfer without consideration as the defendant No.3 himself was examined as a witness and deposed before the Court that he had executed the sale-deed and for the aforesaid reasons the suit came to be dismissed by means of the judgment and decree dated 25.05.1979 passed by the first Additional Munsif, Gonda.
13. The plaintiff preferred regular civil appeal bearing No.178/1979 whereby the lower appellate Court upheld the findings on Issue No.3 to the effect that the suit was not barred by Section 49 of the Act of 1953. It also reversed and set aside the findings on Issue No.4 and found that the suit was not barred by Section 331 of the Act of 1950. It also found that the Issue No.1 namely as to whether the sale-deed in question was liable to be cancelled in light of the averments made in Para-7 needed to be determined as this would also affect the issue no.7 as to what relief the plaintiff is entitled to. The lower appellate Court recorded that the findings on the other issues shall bind the parties as recorded by the lower appellate Court and only the issue No.3 is to be redetermined after hearing the parties and none of the parties will be entitled to raise any issue which has also already been decided by the lower appellate Court and remanded the matter after allowing the appeal by means of the judgment and decree dated 16.07.1983.
14. Thereafter the matter stood remitted before the Court of Munsif who following the order of remand considered the issue No.3 again and found that the sale-deed was not for the benefit of the other Members of the family and since the defendant No.3 Ram Baran had only a limited share he could not have sold the share of other persons as such he was not entitled to execute the sale-deed for the entire property. The suit came to be decreed by means of the judgment and decree dated 17.01.1985 passed by the Second Additional Munsif, Gonda.
15. The defendants this time came up in appeal bearing No.168/1986, however, the said appeal was also dismissed by means of the judgment and decree dated 29.11.1990 and the findings of the trial Court were affirmed, decreeing the suit.
16. Being aggrieved by the aforesaid judgment and decree dated 29.11.1990 whereby the judgment and decree passed by the trial Court dated 17.01.1985 was affirmed is under challenge before this Court.
17. Shri Mohd. Arif Khan, learned Senior Counsel assisted by Shri Mohd. Aslam Khan, learned counsel for the appellants while assailing the aforesaid concurrent judgment and decree has submitted that there are patent illegalities in the judgment passed by the two courts. It is submitted that in an agricultural property the parties are not governed by the personal law rather it is the general order of succession which is provided under Section 171 of Act of 1950 which become applicable. The property admittedly was recorded in the revenue records in favour of Ram Baran till the conclusion of the consolidation operations in the village. In the aforesaid circumstances it was Ram Baran who was exclusive owner. No fetters could be placed on his right to sell the property. It is thus, urged that Ram Baran being the exclusive owner and the father of the plaintiff, hence, in the lifetime of Ram Baran the plaintiff had no right nor any share would devolve on the plaintiff, Salik Ram and thus he had no right to sue.
18. Learned Senior counsel for the appellants further urged that since Ram Baran was a recorded tenure holder and after execution of the sale-deed dated 18.03.1978 the names of Smt. Bhanmati and Smt. Rajpati was recorded in the revenue records. Consequently, challenge to the said sale transaction would necessarily mean and involve declaration of the right of the plaintiff and for such declaration, a suit is not maintainable before the Civil Court rather the appropriate remedy was before the appropriate Court under the Act of 1950. Consequently, by virtue of Section 331 of the Act of 1950 the suit was barred. It is also urged that in respect of an agricultural property the right of succession is not akin to that of a coparcenary property or the joint family property. Since, the plaintiff himself at the time of institution of the suit was 22 years of age which necessarily ment that he was born sometime in the year 1956, but nevertheless after the date of vesting, hence, in such circumstances he could not have claimed any right in the property during the lifetime of Ram Baran, his father. It was urged that all these issues have not been appropriately considered by the two Courts and their judgments are patently illegal and suffers from manifest error of law, consequently, they deserve to be set aside as a result the suit of the plaintiff bearing R.S.No.174/1978 deserves to be dismissed after allowing this appeal.
19. Shri I.D. Shukla, learned counsel appearing for the plaintiff-respondents, on the other hand, submitted that the submissions of the learned counsel for the appellant cannot be countenanced for the reason that regarding jurisdiction in terms of Section 331 of the Act of 1950 it was already considered and was found that the suit was barred and the suit came to be dismissed on 25.05.1979. It was the plaintiff who had preferred first appeal No.198/1979 and the appeal of the plaintiff came to be allowed on 16.07.1983 wherein the findings were affirmed by the lower appellate Court to the extent that the suit was not barred by Section 49 of the Act of 1953 and that the findings recorded by the trial Court that the suit was barred by Section 331 of the Act of 1950 was erroneous and was set aside. The lower appellate Court also clearly stated that these issues as settled by the lower appellate Court is final and none of the parties could raise this issue again and only the issue which was left for re-determination by remanding the matter to the trial Court was as to whether the sale-deed dated 18.03.1978 was liable to be cancelled in light of the grounds raised in Para-7 of the plaint. It is thus submitted that these issues which had attained finality cannot be raised before this Court in second appeal. After the decision on merit has been rendered by the trial Court, after remand in compliance of the order of remand dated 16.07.1983 and it has also been affirmed by the lower appellate Court on 17.01.1985, now it is no more open to challenge the same before this Court.
20. It is urged that it was always open to the appellants to have assailed the order of remand in the first instance by filing FAFO in terms of Order 43 Rule 1(u) CPC but having failed to do so, it was no more open for the appellants to raise this issue. It is thus urged that the said issue of jurisdiction is no more open to be challenged by the defendants in second appeal.
21. Shri Shukla further submits that the property in question was the property wherein the plaintiff had 1/4th share, accordingly, the sale-deed could not have been executed by Ram Baran to the detriment of other co-sharer. It has further been urged that this findings is a finding of fact coupled with the fact that Ram Baran did not have the necessity to sell the property and moreover noticing the evidence available on record, the lower appellate Court found that there was no evidence regarding payment of consideration of Rs.24,000/- which was a huge sum in context with the time when the said sale-deed was executed i.e. in the year 1978 and in absence of any proof regarding payment of such amount nor the execution of any receipt was substantiated and proved. Accordingly, the sale-deed being without consideration could not be upheld and this findings also returned by the lower appellate Court is a finding of fact which requires no inference and for all the aforesaid reasons, the appeal deserves to be dismissed.
22. The Court has considered the rival submissions and also perused the material on record.
23. In order to answer the aforesaid questions, which is the subject matter of the appeal, it will also be relevant to notice the powers of the lower appellate Court which is the Court of coordinate jurisdiction once an appeal is filed against the order which is passed after remand. It will also be relevant to notice what shall be the effect of such findings which have been returned by the courts below i.e. to say that a finding of fact or law which has been returned by the lower appellate Court at the stage of remanding the matter then whether the coordinate bench before whom the first appeal comes after remand is bound by such findings. Another upshot would be that after the findings have been given by the lower appellate Court after remand whether such findings can be assailed before the second appellate Court in terms of Section 100 CPC i.e. to say whether the findings which had attained finality by not challenging the order of remand in the first place whether could be challenged in the second round before the second appellate Court.
24. In this regard this Court takes aid of the following decision of the Apex Court wherein the aforesaid issues has been answered in Jasraj Inder Singh v. Hemraj Multanchand, (1977) 2 SCC 155 wherein, the Apex Court observed as under:-
"15. Be that as it may, in an appeal against the High Court's finding, the Supreme Court is not bound by what the High Court might have held in its remand order. It is true that a subordinate court is bound by the direction of the High Court. It is equally true that the same High Court, hearing the matter on a second occasion or any other court of coordinate authority hearing the matter cannot discard the earlier holding, but a finding in a remand order cannot bind a higher court when it comes up in appeal before it. This is the correct view of the law, although Shri Phadke controverted it, without reliance on any authority. Nor did Shri S.T. Desai, who asserted this proposition, which we regard as correct, cite any precedent of this Court in support. However, it transpires that in Lonankutty [Lonankutty v. Thomman, (1976) 3 SCC 528] this proposition has been affirmed. Viewed simplistically, the remand order by the High Court is a finding in an intermediate stage of the same litigation. When it came to the trial court and escalated to the High Court, it remained the same litigation. The appeal before the Supreme Court is from the suit as a whole and, therefore, the entire subject-matter is available for adjudication before us. If, on any other principle of finality statutorily conferred or on account of res judicata attracted by a decision in an allied litigation the matter is concluded, we too are bound in the Supreme Court. Otherwise, the whole lis for the first time comes to this Court and the High Court's finding at an intermediate stage does not prevent examination of the position of law by this Court. Intermediate stages of the litigation and orders passed at those stages have a provisional finality. After discussing various aspects of the matter, Chandrachud, J. speaking for the Court in Lonankutty [Lonankutty v. Thomman, (1976) 3 SCC 528] observed : (scc p. 535, para 23) "The circumstance that the remaining judgment of the High Court was not appealed against, assuming that an appeal lay therefrom, cannot preclude the appellant from challenging the correctness of the view taken by the High Court in that judgment."
The contention barred before the High Court is still available to be canvassed before this Court when it seeks to pronounce finally on the entirety of the suit."
25. Thus, from the above, it would be clear that insofar as this Court exercising powers under Section 100 CPC is concerned all the issues of law are open to be considered by this Court even though the first order of remand may not have been assailed. The findings returned by the Court of appeal while remanding the matter is binding on the Court of coordinate jurisdiction, when the matter comes up before the Court in second round after remand. Though, the order of remand is binding on the lower Court who is to abide by it and follow it strictly in accordance with the order of remand. In light of the aforesaid settled legal position this Court finds that the submissions of the learned counsel for the respondent-plaintiff that the issue regarding jurisdiction in terms of Section 331 of the Act of 1950 which was reversed by the lower appellate Court in the first round of litigation while remanding the matter and has been affirmed by the coordinate bench in the second round has attained finality and would bind this Court in second appeal is not sustainable.
26. A question of law is always open to be considered by this Court under Section 100 CPC even if at all the two Courts may have incorrectly decided the same as shall be evident from the language of Section 103 CPC which reads as under:-
"103 Power of High Court to determine issues of fact.--In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,--
(a) which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or
(b) which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100.]"
27. In light of the aforesaid, this Court takes up the issue regarding jurisdiction of the Civil Court to entertain a suit for cancellation of the sale-deed. This issue may not detain this Court for long inasmuch as this law has been fairly settled by considering the decision of the Apex Court in Shri Ram and another v. Ist Additional District Judge and others, (2001) 3 SCC 24, Kamla Prasad and others v. Kishna Kant Pathak and others, (2007) 4 SCC 213 and recently this Court had also the occasion to consider the jurisdiction of the Civil Court vis-a-vis revenue Courts in Second Appeal No.1046 of 1982 Bankey Singh v. Milap Singh and others, decided on 05.04.2023, and the relevant portion of the said report read as under:-
"24. In the case of Ram Padarath (Supra), the full Bench of this Court while considering the issue has held as under:-
"42. Section 331 of the U.P. Zamindari Abolition and Land Reforms Act excludes the jurisdiction of civil court in respect of those matters for which relief can be had from the revenue court by means of a suit, application or proceeding mentioned in Schedule-II to the 'Act' Section 331 of the Act, if read without Explanation, does not create any difficulty. Dispute regarding jurisdiction arises when Explanation, which is an integral part of the section, is interpreted and applied to the facts of a particular case. The object of Explanation to any statutory provision is to understand the Act in the light of the Explanation which ordinarily does not enlarge the scope of the original section which it explains, but only makes its meaning clear beyond dispute. The Explanation, thus, makes the thing still more explicit and exists primarily removing doubts and dispute which may crop up in its absence. Section 331 of the 'Act' along with Explanation cannot be read so as to oust the jurisdiction of civil court if the primary relief on the same case of action can be granted by the civil court notwithstanding the fact the consequential relief or ancillary relief flowing out of the main relief, the grant of which also becomes necessary, can be granted by revenue court alone.
43. In the case of void document said to have been executed by a plaintiff during his disability or by someone impersonating him or said to have been executed by his predecessor whom he succeeds, the relief of cancellation of the document is more appropriate relief for clearing the deck of title and burying deep any dispute or controversy on its basis in presenti or which may take place in future. The document after its cancellation would bear such an endorsement in sub-Registrar's register and would be the basis for correction of any paper and revenue record, including record of register. Section 31 of the Specific Relief Act itself prescribes as to who can seek relief of cancellation. A third person cannot file a suit for cancellation of a void document. If in fact no decree for cancellation was needed and real and effective relief could be granted by the revenue court only, the civil court decree would even then be valid and not void if no objection to the same was taken before the trial court. If such an objection was taken before the trial court before framing of issues and objection continued to be taken before appellate and revisional court and there has been failure of justice because of change of forum then the civil court decree could be said to be without jurisdiction.
44. Section 331 (1-A) of the 'Act' provides that objection to the jurisdiction of court is to be taken before framing of issue, otherwise its notice will not be taken by appellate or revisional court, also with a further rider that unless there is failure of justice, notice of such objection will not be taken by the superior court. As frivolous and technical pleas of jurisdiction every now and then were being taken which resulted in lingering on proceedings and delay or defeat of justice, the U.P. Legislature by U.P. Act No.IV of 1969 inserted section 331-(1A) extracted earlier, in the U.P. Zamindari Abolition and Land Reforms Act. The statement of objects and reasons for U.P. Act No. IV of 1969 itself provides that the said amendment was being made as it was considered necessary in order to curtail frivolous and technical pleas in litigation. The statements and the reasons of a statue cannot be ignored and are to be given due importance and are the safest guide for interpreting a particular statue."
25. However, the matter was considered by a co-ordinate Bench of this Court in Jai Prakash Singh (Supra) wherein taking note of the earlier decision, this Court held as under:-
"From the various authorities/judgments referred hereinabove, the position which can be culled out in regard to the questions framed by this Court is as under:-
If a person who questions sale deed executed or purported to be executed by him in respect of agricultural land can file the suit for its cancellation before Civil Court, if it is alleged by him that the sale deed is void or voidable on the ground of fraud, coercion, undue influence, misrepresentation or impersonation. Similarly sale deed executed or purported to be executed by predecessor-in-interest of a plaintiff can also be challenged by him before civil court on the same grounds. However, in such a situation, it is necessary that immediately before the execution of the sale deed, the plaintiff or his predecessor-in-interest must undisputedly be recorded in the revenue records.
If sale deed executed by a person is challenged by another person on the ground that even though immediately before the sale deed only the name of vendor/vendors was undisputedly recorded in the revenue records, still plaintiff had a right in the revenue records, still plaintiff had a right in the said land, then such suit is not maintainable before Civil Court, as it primarily involves question of declaration of right in the agricultural land. In such a situation, it is not actually the sale deed and state of affairs coming in existence by execution of the sale deed which is being challenged. The challenge in such a situation in real sense is to the position and affairs in existence immediately before the execution of the sale deed. If a person asserts that apart from the recorded tenure-holder he also has got a right in the agricultural land then his only remedy lies in filing a suit for declaration before the Revenue Court."
26. In Kamla Prasad (Supra), the Apex Court has held as under:-
"Having heard the learned advocates for the parties, in our opinion, the submission of the learned counsel for the appellants deserves to be accepted. So far as abadi land is concerned, the trial Court held that Civil Court had jurisdiction and the said decision has become final. But as far as agricultural land is concerned, in our opinion, the Trial Court as well as Appellate Court were right in coming to the conclusion that only Revenue Court could have entertained the suit on two grounds. Firstly, the case of the plaintiff himself in the plaint was that he was not the sole owner of the property and defendant Nos. 10 to 12 who were proforma defendants, had also right, title and interest therein. He had also stated in the plaint that though in the Revenue Record, only his name had appeared but defendant Nos. 10 to 12 have also right in the property. In our opinion, both the Courts below were right in holding that such a question can be decided by a Revenue Court in a suit instituted under Section 229B of the Act. The said section reads thus:
229B. Declaratory suit by person claiming to be an asami of a holding or part thereof.#(1) Any person claiming to be an asami of a holding or any part thereof, whether exclusively or jointly with any other person, may sue the landholder for a declaration of his rights as asami in such holding or part, as the case may be.
(2) In any suit under sub-section (1) any other person claiming to hold as asami under the landholder shall be impleaded as defendant.
(3) The provisions of sub-sections (1) and (2) shall mutatis mutandis apply to a suit by a person claiming to be a bhumidhar, with the amendment that for the word 'landholder' the words "the State Government and the Gaon Sabha" are substituted therein.
On second question also, in our view, Courts below were right in coming to the conclusion that legality or otherwise of insertion of names of purchasers in Record of Rights and deletion of name of the plaintiff from such record can only be decided by Revenue Court since the names of the purchasers had already been entered into. Only Revenue Court can record a finding whether such an action was in accordance with law or not and it cannot be decided by a Civil Court.
In this connection, the learned counsel for the appellant rightly relied upon a decision of this Court in Shri Ram & Anr. v. Ist Addl. Distt. Judge & Ors., (2001) 3 SCC 24. In Shri Ram, A, the original owner of the land sold it to B by a registered sale deed and also delivered possession and the name of the purchaser was entered into Revenue Records after mutation. According to the plaintiff, sale deed was forged and was liable to be cancelled. In the light of the above fact, this Court held that it was only a Civil Court which could entertain, try and decide such suit. The Court, after considering relevant case law on the point, held that where a recorded tenure holder having a title and in possession of property files a suit in Civil Court for cancellation of sale deed obtained by fraud or impersonation could not be directed to institute such suit for declaration in Revenue Court, the reason being that in such a case, prima facie, the title of the recorded tenure holder is not under cloud. He does not require declaration of his title to the land.
The Court, however, proceeded to observe: "The position would be different where a person not being a recorded tenure holder seeks cancellation of sale deed by filing a suit in the civil court on the ground of fraud or impersonation. There necessarily the plaintiff is required to seek a declaration of his title and, therefore, he may be directed to approach the revenue court, as the sale deed being void has to be ignored for giving him relief for declaration and possession".""
28. In light of the aforesaid exposition of the law which has been laid in the aforesaid decisions noted hereinabove, it would be clear that in the instant case, Ram Baran was admittedly recorded tenure holder and he in his lifetime had executed the sale-deed on 18.03.1978. The name of the defendant No.1 and 2 namely Smt. Bhanmati and Smt. Rajpati was also admittedly mutated in the revenue records.
29. Another fact which is significant is that though Ram Baran was impleaded as defendant No.3 and did not file his written statement but he entered into the witness-box and admitted that he had executed the sale-deed of his own free will and that he had received the sale consideration. Thus, in any case if at all the plaintiff Salik Ram assailed the sale-deed, it necessarily would involve the question of declaration of his right as has been noticed in the decision taken note of hereinabove and such a suit which involved declaration of right was not cognizable before the Civil Court and to the aforesaid extent the findings returned by the two Courts are not in accordance with law and are contrary to the settled legal position, thus, the same cannot be sustainable. Thus the first question stand answered.
30. Insofar as the second question regarding the suit being barred by Section 49 of the Act of 1953 is concerned, this Court finds that in the given facts and circumstances there was not much evidence led by either of the parties to indicate that the suit was barred by Section 49 of the Act of 1953.
31. The relationship between the parties is that of the son and the father (executant of the sale-deed) and Bhabhis (in whose favour the sale-deed was executed). Since, the property belonged to family and in the name of the father as a proposition and in absence of any contrary evidence the parties cannot be compelled to institute the proceedings merely because the consolidation operations had commenced. It is quite possible that at the given point of time that the consolidation operations were in progress and the parties may not have a cause and they may continue to live in peace. Merely because they did not raise objections during consolidation operations and with passage of time if any dispute emerges later this in itself grants right to the parties to agitate their grievances before the appropriate Court and in such circumstances under Section 49 of the Act of 1953 does not operate as an automatic bar. In order for the bar of Section 49 of the Act of 1953 to operate proper evidence must be led by the parties to show that the plaintiff of the suit had adequate opportunity to raise the grievances or agitate his right during the consolidation operations and despite subsistence of dispute and the person being in knowledge thereof did not raise the dispute and let the entries become final, it is only in such circumstances that at a later stage the person is not permitted to re-agitate this issue before the Civil Court which he could and ought to raised before the consolidation Courts and then Section 49 of the Act of 1953 would operate and it is akin to Section 11 CPC.
32. This Court is fortified in its view and draws strength from the decision of this Court in Sri Ram and others v. Deputy Director of Consolidation, 2011 (4) ADJ 289 (DB), namely Paragraphs No.25, 26, 27, 28 and 33. Thus, this Court upholds the findings that the suit was not barred by Section 49 of the Act of 1953 and the second substantial question of law stands answered.
33. Insofar as the third and the fourth question of law is concerned, the same can be taken up together inasmuch as it relates to the rights of the plaintiff to institute the suit by claiming the rights in the property on the basis of his birth.
34. The admitted facts as borne out from the record is that on the date of the institution of the suit in the year 1978, the plaintiff was about 27 years and thus necessarily he would have been born sometime in the year 1956. The Act of 1950 came into force w.e.f. 01.07.1952 i.e. prior to the birth of the plaintiff. Once, the Act of 1950 came into force, then in respect of agricultural properties, the provisions of said Act of 1950 was applicable to the parties.
35. Needless to say that the Act of 1950 is a special Act. In Section 171, it has its own mode and table of succession which is different to the table of succession which may be applicable to the parties as per their personal law that is to say if the parties are Hindu then they will be governed by Hindu Succession Act and in case of Muslim, they will be governed by Mohammedan Law. The fact remains that admittedly the property in question is an agricultural property, the personal law is not applicable and it is only the mode of succession as provided under Section 171 of the Act of 1950 become applicable.
36. Taking things forward if at all it is seen as per the plaint case that the property belonged to Ganesh Dutt, however, there is no adequate evidence to indicate when and how Ganesh Dutt acquired the property. Moreover, upon the death of Ganesh Dutt, how the property devolved to Shambhu Dutt has also not been explained. This assumes significance is for the reason that prior to the Act of 1950 the landed properties in the area of Oudh were governed by the Oudh Rent Act, 1882 which was replaced by the U.P. Tenancy Act, 1939. Though in terms of the Oudh Rent Act, 1882, there was a complete bar of succession insofar as the tenant was concerned. There was some leverage in the U.P. Tenancy Act, 1939. Upon the death of the tenure holder (tenant), his legal heirs (as per condition) were entitled to succeed only for a period of five years and not beyond. Thus, in the aforesaid circumstances, there was no reason that after Ganesh Dutt, the property would devolve on his son Shambhu Dutt, however, the fact remain that the property on the date of vesting, onward, including at the time of commencement of consolidation operations was in the name of Ramhet, Ram Baran and Rajman. Since, prior to the commencement of the consolidation proceedings, Ramhet and Rajman expired. Consequently, the share of Ram Baran was only 1/3 as the share of Ramhet would devolve on his son Ram Chandra whereas the share of Rajman would devolve to his wife Anarkali. In this view of the fact which has been set out in the plaint, apparently Ram Baran would have 1/3rd share and that would also vest exclusively in his own rights. Even though if the property was acquired by Ram Baran and as pleaded by the plaintiff and it was a part of joint family that comprised of Ram Baran and his three sons, namely, Salik Ram, Bhagatram, and Ghanshayam then it was the bounden duty of the plaintiff to have explained by cogent evidence to the existence of the joint family which was together in residence, mess and work from which joint family funds were available and from the joint family nucleus the property had been acquired. This fact has neither been pleaded properly nor any evidence has been led to the aforesaid extent, therefore, the issue of joint family property cannot be said to have existed. Even otherwise insofar as the landed property is concerned, there can be a claim of co-tenancy but not a claim of coparcenary.
37. From the reading of the averments made in the plaint, the plaintiff has sought to develop his case on the rights of property being son of Ram Baran and by claiming his separate share of 1/4 in the property of Ram Baran during his lifetime appears to be emerging from the concept of coparcenary, however, apparently, it is not applicable on agricultural properties. Thus, the claim of the plaintiff that he had 1/4th share is not sustainable.
38. Another issue that needs to be noticed is that the claim of co-tenancy can only be claimed by Salik Ram that too, qua, his own real brothers namely Bhagatram, and Ghanshayam but that is not the case since the properties were in the name of Ram Baran and till time Ram Baran survived his three sons could not inherit the property or claim any right. The claim of co-tenancy would arise if the property was in the name of common ancestor and after that if may have been recorded in the name of one person and then in such circumstances, the other brothers could claim a case of co-tenancy that too only by proving certain conditions which apparently is not the case here.
39. In this regard, this Court has considered the difference between a case of co-tenancy, joint family property and joint family in Writ Petition No. 2979 of 1980 Nand Lal and others v. Deputy Director of Consolidation and others, decided on 25.08.2021 and also in Dropadi Devi & others v. Shiv Chandra Dixit, 2020 SCC Online, All 104.
40. In view of the aforesaid, it is clear that during lifetime of Ram Baran, the plaintiff Salik Ram had no right to the property nor he could claim any share and apparently for the said reason he even did not have a right to seek cancellation of the sale-deed especially on the grounds which were contained in Para-7 of the plaint. It is not disputed that Ram Baran entered into the witness-box and stated that on his own volition he had executed the sale-deed dated 18.03.1978 in favour of his daughters-in-law namely Smt. Bhanmati and Smt. Rajpati and that he had received the sale consideration and there is no evidence to the contrary.
41. In light of the aforesaid admission and there being no contradiction in the cross-examination of Ram Baran, it cannot be said that any intrinsic law has been violated by execution of a sale-deed by Ram Baran. In view of the aforesaid, the trial Court as well as the lower appellate Court had erred in entertaining the suit and cancelling the sale-deed dated 18.07.1978 for the reasons noted hereinabove neither the Civil Court had the jurisdiction nor the aforesaid plaintiff had a right to sue to seek a cancellation and once the sale-deed had been admitted by Ram Baran that he executed on his own will after receiving the sale consideration, it was erroneous on the part of the two Courts to have carved out a case that had the sale consideration of Rs.24,000/- been paid to the excutant Ram Baran then at least he would have executed a receipt and on the said basis inference has been drawn. In light of the evidence on record such inference borders on surmises and conjectures and such findings are apparently perverse.
42. In light of the detailed discussions hereinabove, this Court has no hesitation in allowing the second appeal which is accordingly allowed. The judgment and decree passed by the two courts dated 29.11.1990 in Civil Appeal No.168/1986 and the judgment and decree dated 17.01.1985 passed in Regular Suit No.174/1978 are set aside and the suit of the plaintiff bearing No.174/1978 shall stand dismissed. In the facts and circumstances, there shall be no order as to costs. The record of the trial Court be returned forthwith.
Order Date :- 18th September, 2023 Rakesh/-