Allahabad High Court
Lakhan vs Board Of Revenue on 28 January, 2020
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 38 Reserved A.F.R. Case :- WRIT - B No. - 23996 of 1994 Petitioner :- Lakhan Respondent :- Board Of Revenue Counsel for Petitioner :- S.N. Verma,Ajay Krishna,Ajay Shankar, Archana Singh,Rama Nand Gupta,Shreeprakash Singh,Triveni Shanker Counsel for Respondent :- S.C.,Anil Kumar Rai,Anshika Agrawal, Anupam Laloriya,D.N.Gupta,Ekansh Varma,K.B. Garg,K.K. Dubey, K.N.Saxena,Kamlesh Kumar Tiwari,Radha Kant Singh,V.K. Gupta, V.K.Singh,Vishal Agarwal,Vishal Agrawal,Vishnu Singh Hon'ble J.J. Munir,J.
1. This writ petition is directed against judgments and decrees dated 28.04.1994 passed by the Board of Revenue, U.P. at Allahabad in Second Appeal Nos. 151, 152 and 153 of 1989-90, reversing a judgment and decree of the Additional Commissioner, Jhansi Division, Jhansi dated 24th April, 1990 passed in Appeal No. 90/6/1986-87, 91/7/1986-87, 92/8/1986-87 and restoring the decree of the Sub Divisional Officer, Jhansi dated 27.07.1987 passed in Suit No. 105 of 1984-85, dismissing the petitioner's suit.
2. Petitioners are plaintiffs of four suits being Suit Nos. 83, 84, 85 and 86 all brought against one Sadarani and various proforma respondents, all co-sharers of Khata No. 60 and 57 of village Dongari, Tehsil and District Jhansi (hereinafter referred to as ''the suit property').
3. By the suits aforesaid, brought under Section 229B, the plaintiffs, sought a declaration that the name of Sadarani, widow of Parikshit, recorded co-tenureholder in the suit property, be expunged and that of the plaintiffs, along with proforma respondents to the suit, be recorded to the exclusion of Sadarani over the suit property. It must be mentioned here that from the papers placed on record of the writ petition, there is some discrepant description of the precise numbers of suit filed and there respective suit numbers. The judgment of the Trial Court indicates that two suits were filed being Suit No. 87/1984-85 and Suit No. 85/1984, both of which were consolidated into a single suit bearing No. 105/1984-85. How two suits could be consolidated and given a single suit number, is not in keeping with fundamental principals of numbering suits. But, that is how it is described in the judgment of the Trial Court. In the proceedings in Appeal before the Commissioner and in Second Appeal before the Board, four suits brought by these plaintiffs-petitioners find clear mention, bearing suit Nos. 83, 84, 85 and 86 all of 1984-85. Whichever way the proceedings have been registered and dealt with, but in substance the suits under reference were brought for a declaration to exclude the name of Sadarani, the common defendant to all the suits from the revenue records, pertaining to the suit property. Sadarani is now dead and represented by her daughter respondent no. 3, Smt. Prema before this Court.
4. The facts giving rise to the suits that have culmiated in this writ petition can be better appreciated with the aid of the following pedigree:
Balu Hardas Parikshit (Deceased) Smt. Sadarani (Widow) Sahab Singh Lakhan Ramesh Jugraj Naval (P-4) (P-1) (P-3) (P-2)
5. It is common ground between parties that the original owner of the suit property was one Balu, who had two sons Hardas and Parikshit. The suit property was inherited in equal share by Hardas and Parikshit. Hardas had four sons, Sahab Singh, Lakhan, Ramesh and Jugraj. In the array of parties, petitioner no. 4, Naval is shown as son of Hardas but the name of Sahab Singh is not mentioned. It is pointed out by learned counsel for the petitioner that Naval has been incorrectly described in the array as son of Hardas. In fact, he is the son of Sahab Singh, who died pendentelite. The other son of Balu, Parikshit, is said to have died some time in the year 1944 leaving behind his widow, Sadarani. Parikshit died issueless. Some issue has been raised about this matter by Sadarani which in due course would be noticed and dealt with. Again, it is common ground between parties that Sadarani's name was recorded over the half share of Parikshit in the suit property, all before the abolition of Zamindari. Sadarani remarried one Chhimman, two years later. This is also not in issue between parties. The name of Sadarani continued to remain recorded in the revenue records relating to the suit property, to the extent of Parikshit's share, along with the other co-sharers that she had inherited, her remarriage notwithstanding.
6. It is the petitioner's case that their father, Hardas entered cultivatory possession of his brother's share as he had died issueless, when his widow remarried. It is the petitioners stand that after death of Parikshit and upon remarriage of Sadarani to Chhimman two years later, she lost her share in the suit property inherited from Parikshit under Section 35 of the U.P. Tenancy Act, 1939 (For short , ''the Act of 1939') which by operation of law went back to Parikshit's reversionary heir, Hardas and after him his sons, the petitioners. This loss of title for Smt. Sadarani upon remarriage and its reversion to Hardas, came about under the provisions of Section 36(1) of the Act of 1939, according to the petitioner. It is pointed out with some emphasis by the petitioners that this was the law prevalent at the time, under the regime of the U.P. Tenancy Act when Parikshit died; and also, two years later when Sadarani remarried.
7. It is the petitioners' further case that their father, Hardas could not know about this entry in the name of Sadarani, continuing post her remarriage. After death of Hardas, the petitioners' mother applied for mutation in favour of her then minor children, the petitioners (here it must be mentioned that in all that record the name of Naval, petitioner No. 4, does not figure but of Sahab Singh, who is said to be his father and now dead). It was at this point of time that the petitioners' mother acting as their guardian in the mutation matter came across the illegal entry in the name of Sadarani, surviving in the revenue records. It is claimed that Sadarani was never in possession after her remarriage to Chhimman. Accordingly, the petitioners' mother brought these suits in the petitioners' name, representing them as their next friend, under Section 229B U.P.Z.A&L.R. Act, seeking declarations to expunge Sadarani's name and morefully detailed hereinbefore. This suit was contested by Sadarani who filed a written statement dated 24.04.1984. Details of her case pleaded in the written statement would be mentioned hereinafter.
8. Similar written statements have been filed in the other suits also and the stand brought to the notice of this Court during hearing is vindicated by what is recorded about it in the judgment of the Trial Court. Now, in the written statements Sadarani has not apparently claimed a right for herself in defence of the continuing revenue entries in her favour. The manner in which the Trial Court has spoken about proceedings of the suit, the evidence is noticed with reference to suit nos. 87/84 and 85/84. In suit no. 87/84, the following documents were filed on behalf of the plaintiffs-petitioners: (1) copy of a Khatauni for the Fasli Years 1389-1394 relating to Khata No. 60; (2) a copy of the notice under Section 80 CPC; (3) a copy of notice under Section 106 U.P. Panchayat Raj Act: (4) the postal receipt showing dispatch of notice to Gram Pradhan Dongri; and (5) the postal acknowledgment from Gram Pradhan Dongri relative to the notice.
9. On the pleadings of the parties the Trial Court framed the following issues (translated into English from Hindi vernacular):
1. Whether the plaintiffs are co-sharers of a 1/4th share and Bhumidhar with transferable rights in the property in dispute comprising Khata Khatauni No. 50 comprising two plots admeasuring 5-5.6 acres and Khata Khatauni No. 57 comprising 14 plots, admeasuring 104-73 acres and are, accordingly, in possession of the same?
2. Whether defendant No. 1 Smt. Sadarani widow of Parikshit has remarried Chhimman s/o Ranjor leading to a divesting of her right and title in the property in dispute?
3. Whether the plaintiffs have served the Government of U.P. with a valid notice under Section 80 CPC and the Gaon Sabha with a valid notice under Section 106 U.P. Panchayat Raj Act? If not, its effect?
4. Whether of the wedlock of Sadarani and Parikshit, a daughter Prema was born who is alive and the sole heir of Parikshit?
5. Whether the property in dispute has been partitioned by a Court of competent jurisdication between Parikshit and Hardas? If yes, its effect?
6. Whether the suit is bad for misjoinder of parties? If so, its effect?
7. Whether the suit is barred by Section 49 U.P. Consolidation of Holdings Act?
8. Whether the plaintiffs suit is liable to be dismissed?
9. Whether the plaintiffs are entitled to relief?
10. Likewise, the plaintiffs-petitioners have filed the following documents in Suit No. 85/84: (1) a copy of the Khatauni for the Fasli years 1389-1394 relative to Khata No. 57; (2) copy of the notice under Section 80 C.P.C.; (3) a copy of the notice under Section 106 U.P. Panchayat Raj Act; (4)a copy of the registered postal receipts of notice dispatched to Gram Pradhan Dongri; (5) a copy of the postal acknowledgment received from Gram Pradhan, Dongri relative to the notice; (6) a photostat copy of the revenue receipt in the name of Sadarani, widow of Parikshit; (7) a revenue receipt in the name of Sadarani widow of Parikshit; (8) a receipt in the name of Hardas and Sadarani, widow of Parikshit; (9) a copy of the Khatauni in the name of Smt. Sadarani, widow of Chhimman; (10) a copy of the family register relating to Smt. Prema, daughter of Chhimman; (11) a copy of the voter list showing the name of Smt. Sadarani, wife of Chhimman; (12) a certificate from the Gram Sabha, Raksha that there is no family there (possibly referring to Sadarani but not clear from citation of this evidence in the Trial Court's judgment); (13) a copy of the extract of register of births and deaths showing the name of Smt. Prema daughter of Chhimman; (14) a copy of death certificate from Gram Sabha, Raksha dated 04.08.44, showing the date of death of Parikshi; (15) a copy of the Khatauni relating to the Fasli Year 1389-1391 for Khata No. 237; (16) a copy of the revenue receipt, dated 25.07.1986.
11. The Trial Court has recorded that since the two suits under reference were consolidated, both the plaintiffs and defendant, Sadarani testified in the witness box, in one instance with their evidence being read in both suits.
12. On behalf of the plaintiffs, Saligram, Pradhan Gram Sabha, Dongri was examined as PW-1. One Dhaniram as PW-2 and Smt. Goma was examined as PW-3. It is required to be clarified here that Smt. Goma is the plaintiffs' mother and their next friend through whom the plaintiffs, then minors, brought the suits. No documentary evidence was filed on behalf of the defendant, Smt. Sadarani and all that was placed in evidence of her side was her oral testimony in support of her case.
13. Heard Sri Triveni Shankar, learned counsel for the petitioner along with Sri Awadhesh Kumar, Advocate on behalf of the petitioner and Sri Vishnu Singh, learned counsel appearing on behalf of respondent No. 3. The learned Standing Counsel has addressed this Court on behalf of respondent nos. 1,2 and 4.
14. Sri Triveni Shankar, learned counsel for the plaintiffs-petitioners submits that their short case is that upon death of Parikshit, Sadarani's name came to be recorded in the revenue records of his family as his widow. It is urged by Sri Triveni Shankar, learned counsel for the petitioner that Smt. Sadarani admitted her remarriage to Chhimman two years after death of Parikshit and by her case pleaded in paragraph 13 of the written statement has acknowledged extinguishment of her right in the suit property by non traverse. This read together with her sole defence that her daughter, Smt. Prema is begotten of Parikshit during wedlock and that she has inherited Parikshit's share in the suit property, no case of any right, title or interest in the said property remaining with Sadarani is pleaded.
15. It is pointed out by Sri Triveni Shankar that there is a pleading further, also in paragraph 13 to the effect that two years after Smt. Prema was born, Parikshit died. Sadarani has averred that two years after Parikshit's death, she remarried Chimman. It is then pleaded that Smt. Prema (written there as Smt. Prem), the sole heir of the late Parikshit, is in cultivatory possession of Parikshit's share and pays land revenue, ever since (bearing reference to Sadarani's remarriage). Sri Triveni Shankar submits that this categorical stand of Smt. Sadarani in her pleadings excludes any case of her continuing in possession of her share that she had inherited from the late Parikshit. It is emphatically urged that in the absence of a pleading that Sadarani continued in possession after her remarriage with Chhimman, there is no question about her perfecting her right under Section 180(2) of the Act of 1939, read with the IVth schedule, Group B to the said Act. Learned counsel for the petitioner, therefore, urges that the effect of failure on the plaintiffs part to bring a suit within the limitation of two years, against Sadarani, would not lead to perfection of a right based on adverse possession, once she does not plead a case of possession for herself continuing after her remarriage.
16. So far as the rights of Smt. Prema claimed for her by Smt. Sadarani are concerned, learned Counsel for the petitioners submits that there was a categorical denial that Smt. Prema was the daughter of Parikshit. Rather, it is the plaintiffs case that she was born after Sadarani's marriage to Chhimman. It is pointed out also that the family register of Chhimman has been filed in evidence on his behalf which shows that Smt. Prema was born in the year 1950, six years after Parikshit's death. An issue about Smt. Prema being daughter of Parikshit was framed but neither any evidence was led by Smt. Sadarani or Smt. Prema, in support of that issue or that issue was ever decided by the Trial Court.
17. It is further argued by learned Counsel for the petitioner that the Courts below in failing to decide issue No. 4 have acted in breach of Order XX Rule 5 C.P.C., that mandates all issues to be decided. Learned Counsel for the petitioner submits that the Board of Revenue has committed a manifest error of law in dismissing the suit, holding that Sadarani had perfected her right to her share in the suit property, under Section 180(2) of the Act of 1939 due to the plaintiffs' failure to sue her for ejectment, within two years of her remarriage. Learned counsel for the petitioner has urged that an admission is the best form of evidence against its maker. Sadarani having admitted that she is not in possession of her share in the suit property since her remarriage to Chhimman, there is absolutely no reasoning sound in law by which the Board of Revenue could have reached the conclusions it did.
18. In support of his contention that admission is the best evidence against its maker. Shri Triveni Shankar he has placed reliance upon a decision of this Court in Sharda Prasad vs. RCEO, Allahabad, 1998 (34) ALR 509, where it is held:
"5. In the present case, it is an undisputed fact that the petitioner has acquired in a vacant state a residential building within the city of Allahabad. However, the tenant-petitioner asserted before the Rent Control and Eviction Officer that Section 12 (3) has no application since the tenanted accommodation is not a residential building and was being used by the petitioner for commercial purposes only. The Rent Control and Eviction Officer, however, has not accepted this assertion of the petitioner and on the other hand, has recorded a clear finding of fact that the dominant purpose of the building in question has been residential. While arriving at the said finding, the Rent Control and Eviction Officer has taken into consideration various circumstances and evidence including an important piece of evidence which is in the form of the own admission of the petitioner which he had made in the plaint filed by him in Suit No. 371 of 1998. In that plaint, the petitioner in clear and unequivocal terms admitted that in the disputed accommodation, he has been living with his son. his son's wife and children. An admission is the best piece of evidence against its maker and unless the same is satisfactorily explained it is of conclusive nature. It has been held by me in the case of Smt. Urmila Devi v. IInd A.D.J., Meerut 1998 (2) ARC 6, that an admission made by a party or his agent in earlier judicial proceedings is binding upon the party in subsequent proceedings and can be relied upon for proving the truth-incorporated therein and such an admission has the effect of shifting the onus of proving to the contrary on the party against whom it is produced and in the absence of a satisfactory explanation, it is presumed to be true. It is correct that before an admission can be acted upon as conclusive, it should be clear, definite and certain and not ambiguous, vague or confused."
19. To buttress his case that Smt. Prema is in fact born of the wedlock of Sadarani and Chhimman, much after Parikshit's death, learned Counsel for the petitioner has emphasised the importance of the family register that shows the records of births and deaths in a family and is maintained under Rule 2 of the Rules, framed under the U.P. Panchayat Raj Act, 1947. In support of the weight to be attached to a register of this kind, learned counsel for the petitioner has placed reliance upon a decision of this Court in Jagdish vs. State of U.P. through Secretary, Revenue Department Lucknow and others, 2013 (121) RD 756, where it has been held:
"17. It is trite law that a voter list does prima facie reflect the status of a person but a voter list is prepared under the provisions of a statutory law relating to elections which only confers a limited right to vote and is not a clinching evidence with regard to the status of the identity of that person. The same has to be supported by further material and in this regard the respondent No. 6 had filed the extract of the family register which has been completely overlooked. The entries made in a family register are made under a statutory law relating to the status of the family of a person under the Births and Deaths Register Act and Rules framed thereunder in relation to Local Laws including Municipal Laws.
18. Thus the same has a statutory status and the impact thereof or the impact of a certified copy of the extract thereof being a public document has to be considered by the authority or by the Court while proceeding to assess the evidence led in this regard....."
20. Learned counsel for the petitioner has also urged that the Board of Revenue committed a manifest illegality in virtually dismissing the suit as not maintainable, holding it to be barred by Section 180 (2) Land Revenue Act, when no such plea was raised in the written statement on behalf of Sadarani. He points out that in the absence of a plea to that effect by the Sadarani in her written statement, no issue to the effect whether the suit was maintainable in view of the provisions of Section 180(2) of the Act of 1939 was framed by the Trial Court. In the absence of that plea and issue, it was not open to the Board in Second Appeal to consider that ground as the basis to reverse the decree. In support of this part of his submission, learned counsel for the petitioner has placed reliance upon the decision of their Lordships of the Supreme Court in Sri Shivaji Balaram Haibatti vs. Sri Avinash Maruthi Pawar, (2018) SCC 652 : 2018 All C.J. 119. He has drawn the attention of this Court to paragraph 24, 25 and 26 of the report, where it is held:
"24. First, the respondent (defendant) had not raised such plea in his written statement. In other words, the respondent did not set up such defence in the written statement. Second, the trial court, therefore, had no occasion to frame any issue on such plea for want of any factual foundation in the written statement. Third, the trial court and the first appellate court, in these circumstances, had no occasion to record any finding on this plea either way. Fourth, in the light of these three reasonings, the High Court ought to have seen that such plea really did not arise for consideration because in order that any question is involved in the case, the party concerned should lay its factual foundation in the pleading and invite finding on such plea. Fifth, the High Court failed to see the case set up by the respondent in his written statement. As mentioned above, the defence of the respondent was that he had denied the appellant's title over the suit shop and then set up a plea of adverse possession contending that he has become the owner of the suit shop by virtue of adverse possession, which according to him, was from time immemorial.
25. It was clear that the respondent never claimed that he was in possession of the suit shop as tenant of the appellant's predecessor-in-title. On the other hand, the respondent had asserted his ownership right over the suit shop on the strength of his long adverse possession.
26. It is these issues, which were gone into by the two courts and were concurrently decided by them against the respondent. These issues, in our opinion, should have been examined by the High Court with a view to find out as to whether these findings contain any legal error so as to call for any interference in second appeal. The High Court, however, did not undertake this exercise and rather affirmed these findings when it did not consider it proper to frame any substantial question of law. It is a settled principle of law that the parties to the suit cannot travel beyond the pleadings so also the court cannot record any finding on the issues which are not part of pleadings. In other words, the court has to record the findings only on the issues which are part of the pleadings on which parties are contesting the case. Any finding recorded on an issue dehors the pleadings is without jurisdiction. Such is the case here."
21. Sri Vishnu Singh, learned counsel for respondent no. 3, Smt. Prema on the other hand has supported the impugned judgment on the foot of a case that Smt. Sadarani had asserted that she remained in possession over the land in dispute, even after the death of her husband, Parikshit. Smt. Sadarani's interest is now represented by respondent no. 3, her daughter, besides that which is claimed for her in her own right as Parikshit's daughter.
22. Learned Counsel for respondent no.3 has submitted that the Trial Court has rightly opined that Smt. Sadarani continued in possession of the suit property with her name recorded as a co-sharer in the revenue records, even after her remarriage to Parikshit. And, since no suit was brought by Hardas to eject her on extingushment of her rights upon remarriage within the statutory period of limitation of two years, under Section 180 of the Act of 1939, she had perfected her title in view of the provisions of Section 180 (2). On these findings, in the submission of the learned Counsel for respondent no.3, the suit was rightly dismissed by the Trial Court.
23. Sri Vishnu Singh, learned Counsel for respondent no.3, however, has criticized the Additional Commissioner's approach in Appeal, where he has held that no suit for ejectment of Sadarani was required to be filed. Learned Counsel for the third respondent has submitted that the Additional Commissioner went wrong in holding that no such suit was required to be filed since Smt. Sadarani had failed to prove her possession beyond doubt, and that in consequence, the possession of Sadarani over the suit property is doubtful. The finding of the Additional Commissioner to the effect that since Sadarani admitted the possession of Smt. Prema in her oral evidence over the suit property, there is no case of Sadarani continuing in possession is contrary to documentary evidence on record. In the submission of the learned Counsel for the third respondent, once Smt. Sadarani has been recorded throughout as a co-sharer over the suit property along with the plaintiff-petitioners, it was necessary for the petitioners, rather their predecessor-in-interest to have brought a suit seeking to eject her. The possession of Smt. Prema, according to learned Counsel for respondent no.3 though not recorded, is in aid of Smt. Sadarani's possession. On this score supporting the finding of the Board of Revenue, learned Counsel for respondent no.3 submits that Smt. Sadarani had established her possession over the suit property by the fact that her name was recorded and the plaintiff-petitioners had to bring these suits, seeking to expunge her name and seeking their names to be recorded over that part of the suit property, where the name of Smt. Sadarani was recorded.
24. It is urged on behalf of respondent no.3 that even if it be assumed that Smt. Prema, daughter Smt. Sadarani was in possession of the suit property, that does not derogate from Smt. Sadarani's possession; or of Smt. Prema either. This is so as in the submission of the learned Counsel for respondent no.3, Smt. Prema's possession could be in aid of Smt. Sadarani, or in her own right as the lawful heir of the late Parikshit. He submits that the Board for all reasons assigned in the judgment has rightly concluded in favour of the third respondent.
25. Summing up his contentions, Sri Vishnu Singh, learned Counsel for respondent no.3 has emphasized that on the admitted case of parties, Smt. Sadarani remarried after death of Parikshit. At that time, the Act of 1939 was in force. Her name was recorded as a co-sharer by virtue of being Parikshit's widow. But, that right she lost upon her remarriage, two years after Parikshit's death. However so, no attempt was made to get her name mutated out on the basis that she lost title to the reversionary heirs in accordance with the provisions of Section 36(1) of the Act of 1939. Thus, when Hardas, father of the plaintiff-petitioners permitted the name of Smt. Sadarani to continue and did not take steps to get her name mutated out and to sue her for ejectment, under Section 180 of the Act of 1939, she perfected her right under Section 180(2), upon expiry of two years of her remarriage, that is said to be sometime in the year 1946. She became a khud kasht holder at the end of expiry of the two years' limitation to bring a suit for ejectment, along with other co-sharers, and upon the date of vesting a bhumidhar under the U.P. Z.A. & L.R. Act.
26. Sri Vishnu Singh, learned Counsel for the third respondent has also urged that the plaintiff-petitioners have not set up a case of ouster of Smt. Sadarani. She has continued as a co-sharer recorded in the revenue records over a period of 40 years, until these Suits were brought. She has, thus, perfected her rights. He has emphasized the well settled principle that unless ouster is pleaded and proved, possession of one co-tenant would be possession of the other.
27. Thus, even if Smt. Sadarani is not established to be in actual cultivatory possession, her recorded name continuing for over 40 years, would establish her possession through her co-sharers, that is to say, the plaintiff-petitioners as well as the others. Learned Counsel for the third respondent also submits that inaction of Hardas to seek correction of mutation entries after remarriage, by not suing for ejectment shows the plaintiff-petitioners acquiesced in the matter of Smt. Sadarani continuing as a tenant, a right that she must be credited with maturing after expiry of the period of limitation to bring a suit, and in any case, after the date of vesting.
28. In support of his contention, learned Counsel for respondent no.3 has placed reliance upon a decision of this Court in Devi Died Sri Sia Ram substituted and another vs. Mohd. Hanif and others, 1963 RD 153, where it has been held:
"In the case before us the question of any adverse possession or acquisition of rights by prescription by Jamna does not arise at all. What is to be seen is whether the plaintiffs' suit for possession is within time. As soon as Jamna re-married, she ceased to have any title to retain possession over the plots in question. Thereafter she will be deemed to have been retaining possession over the plots without the consent of the person entitled to admit her to occupy such plots or otherwise than in accordance with the provisions of law for the time being in force within the meaning of sub-section (1) of Section 180 of the U.P. Tenancy Act, 1939. A suit should have, therefore, been filed against her within the period of limitation prescribed under serial No.18 of group B of Schedule IV of the U.P. Tenancy Act, 1939. This period of limitation was three years by 1947, and thereafter reduced to two years. Jamna may easily be said to have re-married by 1352 fasli, which will correspond to 1945. The suit should have in any case, therefore, been filed by 1948. Thereafter the plaintiffs' suit against Jamna became barred by time and they did not acquire any fresh right to file the suit after her death.
No decision of this Court regarding the interpretation of Section 36(1) read with section 180(1) of the U.P. Tenancy Act was cited on either side. There are, however, two decisions of the Board of Revenue, Harnath Kurmi v. Mst. Sunder Bibi. (3) and Bhagwati Prasad v. Munna Kuar (4). They are cases in which the tenancy rights reverted to the land-holder and it was held that the rights inherited by the widow of a deceased tenant expired on her re-marriage, and if she is allowed to remain in possession by the land-holder, thereafter she begins to acquire new rights in her own name from that date.
Sub-section (2) of Section 180 of the U.P. Tenancy Act lays down that where no suit is filed against a person for possession over a tenancy plot under sub-section (1) of Section 180 within the period prescribed, therefore, the person in possession becomes hereditary tenant of the land in his possession. On the expiry of the period of limitation, therefore, Jamna became a hereditary tenant of the plots."
29. Further relying on the same principle, that bars a suit by the reversionary heirs to recover possession after expiry of the period of limitation envisaged under Section 180(1) of the Act of 1939 and perfection of the widow's right, after expiry of limitation from the date of her remarriage, learned Counsel for respondent no.3 has relied upon a decision of this Court in Ram Kumar and others vs. Board of Revenue, 1982 RD 314, where it is held:
"No doubt, before the enforcement of the Act, a Hindu female under the provisions of Hindu law and only life interest in the Sir and Khudkasht property left by her husband. There is no provision under the Act which takes away the right of a Hindu female in the land in which she had a limited interest. The limited ownership in its nature must be a bundle of rights constituting in their totality, not full ownership but something less. She holds the same for her enjoyment as long as she lives. Nobody is entitled to deprive her of it or to deal with the property in any manner to her detriment. She is in full occupation and control of the usufrous of it to the exclusion of all others. Therefore, in absence of expressed provisions in the Act taking away the right to make disposition inter-vivos, she becomes, on enforcement of the Act, fledged Bhumidhar and is entitled to exercise all right and benefits available to any other male Bhumidhar.
Considering the case from the other aspect, on the finding of the lower appellate court, Smt. Jurawan Dullaiya remarried long before the date of vesting and continued in possession. Therefore, the cause of action accrued in favour of the plaintiff to file a suit for her ejectment as soon as she remarried because her possession thereafter became adverse as she was not entitled to continue in possession on remarriage. Obviously, no suit was filed for her ejectment by the plaintiff within the time prescribed. Therefore, plaintiff's title extinguished in the land in occupation of Smt. Jurawan Dullaiya."
30. On the point that possession of one co-sharer must be deemed to be possession on his behalf and all the other co-sharers, constructively, even if the others are not in actual cultivatory possession, learned Counsel for respondent no.3 has relied upon the decision of the Supreme Court in Kailash Rai vs. Jai Jai Ram and others, AIR 1973 SC 893 : (1973) 1 SCC 527, where it is held:
"9. It should be remembered that the District Court has recorded a definite finding that the defendants have not set up any plea of ouster. This finding, so far as we could see, has not been disturbed by the High Court. The decree in Suit No. 918 of 1945 clearly recognises the right of the appellant as a co-sharer along with the defendants. In law the possession of one co-sharer is possession both on his behalf as well as on behalf of all the other co-sharers, unless ouster is pleaded and established. In this case, as pointed out by us earlier, the finding is that the defendants have not raised the plea of ouster. There is no indication in the Abolition Act or the Tenancy Act that bhumidhari rights are not intended to be conferred on all the co-sharers or co-proprietors, who are entitled to the properties, though only some of them may be in actual cultivation. One can very well visualise a family consisting of father and two sons, both of whom are minors. Normally, the cultivation will be done only by the father. Does it mean that when the father is found to be cultivating the land on June 30, 1952, he alone is entitled to the bhumidhari rights in the land and that his two minor sons are not entitled to any such rights? In our opinion, the normal principle that possession by one co-sharer is possession for all has to be applied. Further, even when one co-sharer is in possession of the land, the other co-sharers must be considered to be in constructive possession of the land. The expression "possession" in clause (a), in our opinion, takes in not only actual physical possession, but also constructive possession that a person has in law. If so, when the defendants were in possession of the lands and when no plea of ouster had been raised or established, such possession is also on behalf of the plaintiff-appellant. Under such circumstances, the lands can be considered to be in the "possession" of the appellant or, at any rate, in his constructive possession."
31. Since the reliefs in these Suits are for correction of revenue entries, that are of long standing, that is to say, 40 years until time when the Suits were instituted, learned Counsel for the third respondent has placed reliance upon a decision of this Court in Mangroo and others vs. Ram Sumer and others, 2006 All C.J. 1924, where in the context of facts there objections under Section 9-A(2) of the U.P. Consolidation of Holdings Act, 1953 were brought to correct recorded rights based on old and consistent revenue entries. It was held in Mangroo (supra):
"7. In consolidation maters, often it happens that people start challenging revenue entries standing for more than half, half or quarter century. The presumption attached with the correctness of revenue entries particularly if they are continuing for a very long time and since before Zamindari Abolition cannot be lightly taken to be rebutted. Oral evidence of the things which may have happened long before is not easy to find except in rare cases where something extraordinary is shown to exist. Certainly in respect of property rights is very essential. General uncertainty in respect of revenue entries standing since long and before Zamindari Abolition may lead to anarchy. In several cases consolidation Courts have done exactly the same. The purpose of consolidation is taken to be resurrection of dead (buried) disputes or revival of dormant ones. In fact this is not the spirit of consolidation Act. Under Section 9(2) of U.P.C.H. Act only disputes of recent past may be raised. Consolidation Act provides a new forum for adjudication of disputes but not a new opportunity for the same. In some cases people assert their rights on the basis of revenue entries which discontinued about 100 years before and consolidation Courts seriously entertain the said objections and some times direct reversal of revenue entries continuing for about 100 years. There are several doctrines of law on the basis of which such exercise is prohibited like Limitation, Acquiescence, Estoppel, Presumption of Correctness of Official Acts including revenue entries becoming stronger and stronger by passage of time, waiver, implied surrender and implied ouster etc. However independently of all these principles, such exercise is to be nipped in the bud on the doctrine of public policy. It is against public policy to permit a person to seek reversal of state of affairs continuing for scores of years. A certain but some what erroneous state of affairs is better than almost correct but uncertain state of affairs. To maintain state of affairs continuing since very long which may have some elements of inaccuracy is better than to thoroughly analyse the inaccuracy after expiry of long time since inception of the said affairs and reverse the same after thorough discussion of attending circumstances at the time of start of said state of affairs.
8. Revenue entries in respect of agricultural lands have got great value. A meticulous procedure has been prescribed for recording, correcting and maintaining the same under U.P. Land Revenue Act 1901 and Land Record Manual. Of course it is true that revenue entries do not confer title, however, short of that, revenue entries are most important evidence in respect of rights in respect of agricultural lands and possession thereof. These entries can not be equated with entries for the purposes of house tax etc. under Municipalities Act (or Nagar Mahapalika Adhiniyam) in respect of buildings."
This decision was followed in Jagdev vs. Deputy Director of Consolidation, 2006 (101) RD 216.
32. Quite distinct and apart from all these contentions, it is submitted by the learned Counsel for respondent no.3 that Smt. Sadarani who was a recorded co-tenant holder along with the petitioners and had come to be recorded as such, upon the death of her husband, Parikshit, cannot be divested of her title to the suit property, her remarriage two years later notwithstanding. This right for Smt. Sadarani is claimed as she continued to be recorded after the date of vesting for many years, in view of the provisions of the U.P. Z.A. & L.R. Act, 1951. In support of this foundation of Sadarani's right to her husband's property, learned Counsel for the third respondent has placed reliance upon a decision of the Supreme Court in Smt. Gajodhari Devi vs. Gokul, AIR 1990 SC 46 : 1989 Supp (2) SCC 160. It has been held in Smt. Gajodhari Devi (supra):
"3. The short question for determination in this appeal is as to whether the appellant being admittedly the widow of a co-sharer of the holding at the time Ram Sewak died, she ceased to be a co-sharer or tenureholder on getting remarried to Raghuraj. The appellant became widow in 1953. Ram Sewak died some time in 1961. At the time of death of Ram Sewak the appellant was the widow of his son and was entitled to a share in the property on that basis. Admittedly, she remarried subsequently. The right of the appellant has to be determined with reference to the time when Ram Sewak died. There is no law which takes away the appellant's right which vested in her when succession opened and it is not the case of the respondents that on remarriage there has to be divesting. Unnecessary emphasis was laid on the fact of remarriage by the Tribunals below. We set aside the judgment of the Board of Revenue affirming the order of the Additional Commissioner which upheld the decision of the Sub-Divisional Officer in the suit for partition under Section 176 of the Act."
33. This Court has considered the rival submission of parties. The case of the petitioners who have come up seeking to quash the judgment and decree of the Board is founded on a right of reversion from Smt. Sadarani, that fructified according to the petitioners in favour of Hardas when Sadarani remarried, after Parikshit's death. There appears to be no issue between parties that the death of Parikshit and remarriage of Sadarani to Chhimman occurred at a time when the Act of 1939 was in force, which governs the rights of parties. The Trial Court has returned a finding of fact on appreciation of evidence that at the time of Sadarani's remarriage, Act of 1939 was in force. Nevertheless, to probe the matter a little further, this Court finds that there is a document recording the death of Parikshit, filed by the petitioners referred to in the summary of evidence in the Trial Court's judgment as a certificate of death, dated 14.08.1944. This would indicate that Parikshit died sometime in the year 1944 and going by Sadarani's stand in the written statement and her testimony that she remarried two years after Parikshit's death, her remarriage would be about the year 1946. It is relying on this evidence and acceptance of the fact by parties that the Trial Court held that at the time of Sadarani's remarriage, Act of 1939 was in force. This finding has not been disturbed by any of the Courts below, and they have proceeded on the basis that it was the Act last mentioned that governed rights of parties to succession when Sadarani remarried after Parikshit's death. This Court, therefore, proceeds on the basis that it was the Act of 1939, that would govern the rights of parties to succession.
34. The petitioners who claim through Hardas have founded their right on a succession to the suit property in favour of Hardas upon remarriage by Parikshit's widow. It is claimed by them that upon Parikshit's death, his share went to Sadarani in accordance with Section 35 of the Act of 1939. This share, that is to say, the suit property on remarriage of Sadarani to Chhimman devolved upon Hardas, Parikshit's brother being the next heir entitled of the last male tenant, Parikshit. This succession is claimed to be in accordance with Section 36 of the Act of 1939.
35. Here, this Court may refer to the provisions of Sections 35 and 36 of the Act of 1939, that are quoted in extenso:
"Section 35. Succession to a male tenant. - When a male tenant, other than a tenant mentioned in Section 34 dies, interest in his holding shall devolve in accordance with the order of succession given below:-
(a) male lineal descendants in the male line of descent:
Provided that no member of this class shall inherit if any male descendant between him and the deceased is alive;
(b) widow;
(c) father;
(d) mother, being a widow;
(e) step-mother, being a widow;
(f) father's father;
(g) father's mother, being a widow;
(h) widow of male lineal descendant in the male line of descent;
(i) unmarried daughter;
(j) brother, being the son of the same father as the deceased;
(k) daughter's son;
(l) brother's son, the brother having been a son of the same father as the deceased;
(m) father's brother;
(n) father's brother's son;
Section. 36 Succession to a female tenant holding an interest inherited as a widow etc. - (1) When a female tenant, other than a tenant mentioned in Section 34, who either before or after the commencement of this Act has inherited an interest in a holding as a widow, as a mother, as a step-mother, as a father's mother, or as a daughter dies or abandons such holding, surrenders such holding, or a part of such holding or, in the case of a tenant inheriting as a widow or as a daughter, marries, such holding or such part of such holding shall, notwithstanding anything in Section 45, devolve in accordance with the order of succession laid down in Section 35 of the heir of the last male tenant, other than a tenant who inherited as a father's father under the provisions of that section.
(2) When a tenant who inherits an interest in a holding as a father's father in accordance with the provisions of sub-section (1), or of Section 35, abandons such holding or surrenders such holding or a part of such holding or dies, such holding or such part shall, notwithstanding anything in Section 45, devolve upon the nearest surviving heir of the last male tenant, such heir being ascertained in accordance with the provisions of Section 35."
36. It is true that going by the events of death of Parikshit and his widow's remarriage two years later, the time when it happened and the law that was in force at the time, the suit property would go to Hardas upon Sadarani's remarriage. It would go by virtue of Section 36(1) of the Act of 1939. This legal position is not in issue between parties and has been accepted by all the Courts below, even so that the Courts below have disagreed on different grounds. The reason that has weighed with the Trial Court and the Board in Second Appeal to dismiss the petitioners' Suits seeking expunction of Sadarani's name from the revenue records and mutation of the petitioners in her place, along with other co-sharers, is a right that Sadarani matured to the suit property on account of the failure of Hardas to bring a suit for her ejectment within the prescribed limitation of two years, in accordance with the provisions of Section 180(2) of the Act of 1939. Sadarani, no doubt, has remained recorded in all these years over the suit property based on the succession, that opened in her favour upon Parikshit's death. It is equally true that in accordance with Section 36 of the Act of 1939, Hardas would be the heir entitled to succeed Sadarani in place of Parikshit. It is also trite that no Suit was filed for Sadarani's ejectment under Section 180(1) of the Act of 1939 within the period of limitation prescribed under Serial no.18 of Group B of Schedule IV to the Act, last mentioned. It is also true for a proposition of law that if no Suit is brought under sub-Section (1) of Section 180 within the prescribed period of limitation, the person in possession if a co-sharer would become a khud kasht holder. Here, it would profit to extract the provisions of Section 180 of the Act of 1939. These read as under:
"Section 180. Ejectment of person occupying land without consent. - (1) A person taking or retaining possession of a plot of land without the consent of the person entitled to admit him to occupy such plot and otherwise than in accordance with the provisions of the law for the time being in force, shall be liable to ejectment under this section on the suit of the person so entitled, and also to pay damages which may extend to four times the annual rental value calculated in accordance with the sanctioned rates applicable to hereditary tenant :
Provided that, notwithstanding the provisions of sub-section (1) of Section 246, where such a person taking or retaining possession is one of the co-sharers whose joint consent is required to bring such suit, he shall not be required to join as plaintiff in the suit. In such a case, the decree passed in favour of the plaintiff shall be deemed to be in favour of all such co-sharers.
Explanation I. - A co-sharer in the proprietary rights in a plot of land taking or retaining possession of such plot without the consent of the whole body of co-sharers or of an agent appointed to act on behalf of all of them, shall be deemed to be in possession of such plot otherwise than in accordance with the provisions of the law within the meaning of this section.
Explanation II. - A tenant entitled to sub-let a plot of land in accordance with the provisions of the law for the time being in force may maintain a suit under this section against the person taking or retaining possession of such plot otherwise than in the circumstances for which provision is made in Section 183.
(2) If no suit is brought under this section, or if a decree obtained under this section is not executed, the person in possession shall become a hereditary tenant of such plot, or if such person is a co-sharer, he shall become a khudkasht holder, on the expiry of the period of limitation prescribed for such suit or for the execution of land decree, as the case may be.
Provided that where the person in possession cannot be admitted to such plot except as sub-tenant by the person entitled to admit, the provisions of this sub-section shall not apply until the interest of the person so entitled to admit is extinguished in such plot under Section 45(f)."
37. To the understanding of this Court, the moot question is whether on the case of parties the fact that revenue entries continued to remain recorded in favour of Sadarani would by itself indicate her continuing possession over the said property, so as to necessitate within limitation the institution of a suit for her ejectment, under Section 180 (1) of the Act of 1939.
38. Sri Vishnu Singh has pressed in aid the decisions of this Court in Mangroo (supra) and Jagdev (supra) which go to say that revenue entries are of particular importance, in the context of title to agricultural land. The Court has gone in that decision to the extent that while revenue entries may not confer title, but short of that, these are the most important evidence about rights of parties to agricultural land and possession thereof. The Court has differentiated the worth and value of revenue entries about their bearing on title and possession, with entries for the purpose of house tax under the Municipalities Act, or Nagar Mahapalika Adhiniyam in respect of buildings, which do not have similar worth, bearing on the question of title and possession. This Court in Mangroo (supra) also emphasised the need to uphold long standing revenue entries on the foundation of public policy. In the Court's opinion expressed in Mangroo (supra) it is against public policy to approve reversal of a state of affairs continuing for scores of years. The same principles have been reiterated in Jagdev (supra).
39. Sri Vishnu Singh, learned counsel for the third respondent has urged that the revenue entries here continued for 40 years before institution of these suits. In between, the U.P. Zamindari Abolition and Land Reforms Act, 1951 came into force with the date of vesting there being 01.07.1949. Under the Act of 1939, since a suit for ejectment was not brought by the petitioners within the prescribed period of limitation under Sub Section (1) of Section 180 of the Act, last mentioned, Sadarani being a co-sharer of Jagdev became a Khudkast holder under Sub Section (2) of Section 180. Upon enforcement of these U.P. Zamindari Abolition and Land Reforms Act, the suit property being Khudkast became her Bhumidhari under Section 9 of the latter Act. This, according to Sri Vishnu Singh, is the effect of the 40 years long continuing revenue entries, regarding which no steps were taken by the petitioners or their predecessor-in-title, Jagdev by bringing a suit for ejectment or short of that to seek rectification of the revenue records within limitation.
40. Learned counsel for the third respondent has buttressed his argument that founds title as well as possession on long standing revenue entries by a submission, that is a sequel or a corollary to the first. In this part of his submissions, Sri Vishnu Singh has urged that on the point of possession, possession of one co-sharer must be deemed to be possession on behalf of all other co-sharers, constructively, even if the others are not in actual cultivatory possession. He has drawn support from the decisions of their Lordships of the Supreme Court in Kailash Rai (supra) that has been noticed and the relevant part quoted hereinbefore. On the foot of this principle, learned counsel for the third respondent submits that the mere fact that Sadarani, after her remarriage had not remained in cultivatory possession, could not lead to her ouster and consequent loss of possession or title. He submits with much emphasis that the long standing revenue entries speak for a unimpeachable title through the changing statutory regime of the Act of 1939 and the Zamindari Abolition Act, which now constitute her into a Bhumidhar with transferable rights - and a co-sharer with the petitioners.
41. The fact that she has not remained in cultivatory possession of the suit property would not be of any consequence as she is protected by the principle regarding community of possession and title between co-sharers. In any case, she must be held to be in constructive possession through the other co-sharer going by the principle in Kailash Rai (supra). It is also emphasized that there is no plea of ouster raised on behalf of the petitioners so as to denude Sadarani of her possession and consequently her title.
42. This Court must record straightway that the law laid down in Mangroo (supra) and Jagdev (supra) that has placed revenue entries on a sacrosanct pedestal if they be of long standing, almost as an unimpeachable evidence of valid possession and good title, is no longer good law in view of the decision of a Division Bench of this Court in Shri Ram and others vs. DDC Allahabad Camp Fatehpur and others, 2011 All.C.J.635, where the correctness of the aforesaid two decisions rendered by a learned Single Judge of this Court was in issue. Their Lordships of the Division Bench in Sri Ram and others (supra) while answering questions nos. 3, 4 and 5 held with reference to question nos. III and V, that would be best appreciated by a juxtaposition of the questions framed and their Lordships answer:
(III) Whether the learned single Judge in Jagdeo's case was justified in invoking the principles of the doctrine of estoppel and acquiescence for creating an implied bar merely because a co-tenant had failed to asset his rights under The U.P. Zamindari Abolition & Land Reforms Act and was, therefore, barred from raising an objection under the Uttar Pradesh Consolidation of Holdings Act, 1953 and the rules framed thereunder?
(3) The learned Single Judge in Jagdeo's case (supra) was not justified in invoking the principles of doctrine of estoppel and acquiesence for creating an implied bar merely because a co-tenant had failed to assert his rights under the Act, 1950, and a co-tenant is not barred in raising objections under the Act, 1953.
(V) Whether "long standing entries which are questioned in an objection filed under the Uttar Pradesh Consolidation of Holdings Act hold only a presumptory value or they can be taken to be an absolute proof in law on the principle of estoppel, acquiescence and waiver and thereby attract an automatic bar of Section 49 of the U.P.C.H.Act".
(5) Long Standing entries which are questioned in an objection filed under the Uttar Pradesh Consoli-dation of Holdings Act, 1953 hold only a presumptory value and they cannot be taken to be an absolute proof for pressing the principle of estoppel, acquiescence and waiver and no automatic bar of Section 49 of the Uttar Pradesh Consoli-dation of Holdings Act, 1953 is attracted.
43. The decision of the learned Single Judge in Mangroo (supra) and Jagdev (supra) were overruled by their Lordships of the Division Bench in Sri Ram (supra), though all rendered in the context of U.P. Consolidation of Holdings Act, 1953. Nevertheless, the decision Sri Ram (supra) firmly put in place a principle that long standing revenue entries do raise a presumption in favour of the person whose name is entered but they cannot be regarded as absolute proof, by invoking the principles of estoppel acquiescence and waiver. Their Lordships have disapproved of the learned Single Judge's approach in Mangroo (supra) and Jagdev (supra) according sacrosanctity to long standing revenue entries on the principle of public policy "that a certain but somewhat erroneous state of affairs is better than almost correct but uncertain state of affairs", to quote the words of the learned Single Judge in Mangroo (supra). This disapproval of the principle laid down by the learned Single Judge in Mangroo (supra) and followed in Jagdev (supra) was expressed in the following words, by their Lordships of the Division Bench:
56. We are unable to subscribe to the above view. No public policy can be found out which does not permit a person to seek reversal of the state of affairs continuing for scores of years, if he has a right to do so. The view of the learned Single Judge "that a certain but some what erroneous state of affairs is better than almost correct but uncertain state of affairs" an also not be approved. A person who has a right to a property which right he has neither abandoned nor relinquished can be claimed even after a lapse of considerable period, provided the claim is not barred by any law of limitation.
57. Law pertaining to land tenure is principally for determining rights of peasants of this country who earn their livelihood from agriculture. Most of them are not literate enough to know their rights and vigilantly assert their rights. Unless the claim of such person is barred by any law, barring their objection on the principle of estoppel and acquiescence is not in accordance with the purpose and object of that Act.
(Emphasis supplied in the report)
44. What, therefore, turns on the question of claiming a right based on long standing revenue entries is that the revenue entries of long standing in favour of a land holder or co-sharer would raise a presumption about possession and title, but would not be conclusive about it. These entries continuing over a long period of time cannot defeat the rights of a person who has not abandoned or relinquished it, but for some oversight, has not been able to seek requisite correction. Here, for instance, there is no evidence that Jagdev was a highly accomplished man or even literate enough to understand his obligations about checking up on the revenue records. He did understand the law as then in force that once his brother's widow remarried, she lost her right and, therefore, he entered upon his brother's share and took the same into his cultivatory possession, exercising dominion over it based on title as well as possession. It was upon his death that Jagdev's widow, according to her case, took steps to secure mutation for the petitioners, who were then minors, acting for them as their next friend (guardian as it is described). It is then that she chanced upon revenue entries continuing in favour of Sadarani over the part that she had inherited from Parikshit, her deceased husband. The petitioners' mother knowing that Sadarani had lost title upon remarriage to Chhimman, brought the present suits for rectification of the revenue records, seeking to expunge her name and to record the petitioners over that part.
45. Now, this case of the petitioners would have to be tested in the face of long standing revenue entries in favour of Sadarani over her late husband's share, as the said entries do raise a presumption about her possession and title. The question that would, therefore, arise in the face of this presumption based on long standing entries of 40 years in this case would be, whether Sadarani upon her marriage to Chhimman, two years after her husband's death, continued to exercise dominion over her share, even if she did not actually cultivate the land. Or, is it a case where upon her remarriage, knowing the law of the time she relinquished all her rights in the suit property, never to look back, and the entries that are now impugned in the suits brought by the petitioners, continued by sheer oversight.
46. This Court is of opinion that upon her remarriage, Sadarani knowing and going by the law in force at the time, gave up her possession and title to the suit property. Even now, she has not asserted that she has title to or possession of the suit property, as her pleaded case goes in paragraph 13 of the written statement, which reads to the following effect:
"१३. यह कि प्रेम के पैदा होने के २ वर्ष बाद मेरे पूर्व पति अर्थात प्रेम के पिता श्री परीक्षत की मृत्यु हो गयी उसके २ वर्ष बाद मिन प्रतिवादिनी ने विरादरी के रीत रिवाज के अनुसार छिम्मान पुत्र रन्जोर निवासी रकसा से दूसरा विवाह कर लिया तथा परीक्षित के हिस्से की भूमि पर मौके पर परीक्षित की एक मात्र वारिस श्रीमती प्रेम उसी समय से काबिज व दाखिल है तथा खेती कराती है व सरकारी लगान अदा करती है"
47. She has no doubt tried to assert her possession and title that she had acquired to the suit property upon Parikshit's death, in her testimony in the witness box, where she has asserted that she is cultivating the suit property with the help of her son-in-law, Ramlal but, that evidence cannot be looked into in the face of a specific case that Sadarani has taken in the written statement, where she almost admits the petitioners' case of having nothing to do with the suit property consequent upon her remarriage. Rather, she has introduced a different case that would support inheritance in favour of her daughter Prema, whom she says is begotten of Parikshit. This is contrary to the petitioners' case that Parikshit died issueless and that Sadarani after her remarriage had begotten two children of her other husband, Chhimman. Smt. Prema is, therefore, claimed to be the daughter of Chhimman and not Parikshit by the petitioners. Issue no. 4 was framed by the Trial Court to the effect: whether Prema was born of the wedlock of Smt. Sadarani and Parikshit, who is alive and his sole heir? The said issue has not been decided by the Trial Court or gone into by the Appellate Courts. It must be remarked here that issue no. 4 is ex facie a defendant's issue, and, therefore, the onus probandi as well as the burden of proof lay upon Smt. Sadarani, so far as this issue was concerned.
48. The principle concerning onus probandi and the discharge of it is embodied in Section 101 of the Evidence Act, as distinguished from burden of proof that is the subject matter of Section 102 of the said Act. Onus probandi on an issue is the burden to let in evidence on an issue and lies upon that party who would fail, if no evidence on either side were led. Here is a case where Sadarani had both the onus and burden to prove that Smt. Prema was Parikshit's daughter. She almost let in no evidence about it, except her oral testimony. On the other hand there is evidence led on behalf of the petitioners' in the form of a Family Register, maintained under Rules framed under the Panchayat Raj Act that show the profile of Sadarani's family after her second marriage to Chhimman. There the name of Smt. Prema, described as Prem Kunvar finds place. Her date of birth is mentioned to be 1951 whereas Parikshit died in the year 1944. Also, there is consistent evidence of the three witnesses who deposed for the petitioners that Parikshit died issueless. It was perhaps in the face of this hopelessly untriable issue no. 4 about Prema being Parikshit's daughter that the same was not pressed before the Trial Court; and, therefore, never decided.
49. This apart the issue that is involved, is about entries in favour of Smt. Sadarani that were recorded upon the death of her first husband, Parikshit. There is no entry in favor of Smt. Prema, in her right as Parikshit's daughter, ever recorded. The suits do not, therefore, seek any relief to expunge Prema's name.
The relief sought is against Sadarani based on the continuing entries in her name. The case, therefore, introduced by Sadarani claiming a right for Prema as Parikshit's daughter and, therefore, his heir entitled to inherit his share, is beyond the scope of this suit. It is not part of the cause of action involved here. It is also not the third respondent's case that Sadarani ever brought a suit on behalf of Prema in order to establish her right to inherit Parikshit's share on the foot of a case that Prema is Parikshit's daughter. In these suits also, Smt. Prema has appeared and filed her written statements, through an impleadment, but neither Sadarani or Smt. Prema have sought to bring a counter-claim to establish a right that Prema is Parikshit's daughter, and, therefore, entitled to inherit his share. These suits are about Sadarani's inheritance in the first instance from Parikshit which according to the petitioner, she lost on remarriage to Chhimman. Here, it needs to be remarked that the present petition that Smt. Prema is contesting is not in her right as Parikshit's daughter but as Sadarani's daughter, representing her estate after her death. The independent rights that she has set up claiming to be Parikshit's daughter are not established even by as much a semblance, that may afford her any locus standi in that right.
50. The written statement filed on behalf of Sadarani clearly indicates that she has not put forward by as much as a hint that she has continued in possession of the suit property or that she has remained a co-sharer thereof, though without cultivating the same alongwith other co-sharers, constructively or on the principle that possession of one co-sharer is possession of all. Rather, she has said in the written statement that she remarried Chhimman of Raksha and possession of Parikshit's share on the spot is with his sole heir, Smt. Prem (variously described as Smt. Prem, Smt. Prema or Prem Kunvar in different documents). Since time of her remarriage, it is also pleaded, that Prema gets the suit property cultivated and pays land revenue. The case set up about Smt. Prema need not detain this Court any further as it has been pointed out that the suits are about the right title and interest of Sadarani, based on revenue entries in her favour. The pleaded case of Sadarani, however, indicates that she does not even remotely indicate the slightest of animus possidendi in relation to the suit property that she, from her pleaded case, acknowledges to have lost upon her remarriage to Chhimman.
51. In this connection, it would be profitable to go to what possession ''in fact' and ''in law' would mean on fundamental principles of jurisprudence, so far these are relevant here. In this connection reference may be made to certain principles about "possession in fact" and "possession in law" enunciated in the celebrated treatise, Salmond on Jurisprudence, Twelfth Edition by P J Fitzgerald (Indian Economy Reprint 2007 and published by Universal Law Book Company Private Limited). There, it has been exposited what possession in fact would mean, in Chapter 9 (pages 272 to 274) thus:
So far no distinction has been made between the mental and physical aspects of possession. Many jurists have distinguished two such elements. Salmond considered that possession consisted of a corpus possessionis and an animus possidendi. The former, he thought, comprised both the power to use the thing possessed and the existence of grounds for the expectation that the possessor's use will not be interfered with. The latter consisted of an intent to appropriate to oneself the exclusive use of the thing possessed.
It is certainly true that in assessing whether possession has been acquired, lost or abandoned intention may be highly relevant. Moreover, it is doubtful whether in ordinary usage possession could be ascribed to a person utterly unable to form any intentions whatsoever: it would be odd to describe a day-old baby or a man in a protracted coma as actually (as opposed to legally) possessing anything at all. As against this, however, we may find counter-examples of possession unaccompanied by intentin. I should normally be said to possess the coins in my pocket, even if unaware of their existence and so unable to form any intention in respect of them. Can we say then that what the possessor needs is at least a minimum intention, an intent to exclude others from whatever may be in his pocket? To this there are two replies. First, in its widest and loosest sense, the sense in which "possesses" simply means "has", I can be said to possess such things as a find head of hair, a stout heart or a good sense of humour without any question of intent arising. Secondly, in the narrower sense, where the subject-matter of possession consists of material objects other than parts of the possessor's own body, it is misleading to assert that the possessor must actually be intending anything at all. If I possess something, then it is true that if my possession is challenged or attacked I shall probably display an intention of excluding such interference. But unless my possession is under attack and in the normal course of events it is not; further more it would be highly unusual to find a man's possession under constant attack no question of, or need for, intent is involved.
The test then for determining whether a man is in possession of anything is whether he is in general control of it. Unless he is actually holding or using it in which event he clearly has possession we have to ask whether the facts are such that we can expect him to be able to enjoy the use of it without interference on the part of others. There will always, of course, be border-line cases. Suppose I become paralysed: am I still in possession of the coat by my side? Such questions need not detain us, for the ordinary concept of possession is not designed to cope with such marginal cases, while the existence of legal rules relating to legal possession will answer such questions and obviate the need for any decision in terms of possession in fact.
52. Similarly about ''possession in law', it is said in Chapter 9, at pages 274 to 276:
A legal system could of course content itself with providing that in law the existence of possession should depend solely on the criteria of common sense. In this case possession in law would be identical with possession in fact; a man would in law possess only those things which in ordinary language he would be said to possess. Such a system of law, then, would concern itself only with actual possession. Even so, the concept of possession would not be free of difficulty. For possession in fact, a we saw, is not a wholly simple notion; the question whether I am in fact in possession of an article depends on such factors as the nature of the article itself and the attitudes and activities of other people. But the general outline of the concept of possession in fact, as given in the preceding section, would suffice for the purposes of a legal system that adopted this approach.
Even with such a legal system, however, there would no doubt arise borderline questions to which lay usage gave no answer but which the law would have to resolve: if A loses his golf-ball on B's golf-links and the ball is found by C, we cannot proceed with in the matter of safeguarding possession until we know who in such a case actually has possession. Yet, at the moment when C has found the ball but h as not yet picked it up, it is by no means clear which of these three parties would ordinarily, and outside the law, be held to be in possession. A legal system's solutions to such marginal problems would inevitably refine the notion of possession and produce divergences between the factual and the legal concepts.
Apart from this type of development however, the two concepts could quite easily coincide. Nor need such coincidence restrict legal protection to cases of actual possession. If A wrongfully takes possession of B's watch, the law can still afford all its possessory remedies to B, on the ground that B did originally have, and therefore ought to have, possession. The fact that the law regards as possessors only those who are actually in possession need not prevent it from protecting those who are not in possession but who in the general view of society ought to be Indeed the protection of possession would be of little point if legal protection ceased the moment possession was lost : the protection of possession entails supporting the dispossessed against the dispossessor.
But when a system of law allows possessory rights and remedies to persons not in actual possession, it may do so, not by considering them simply as entitled to possession and its attendant rights, but by regarding them as being for legal purposes in possession. Thus, we may find that one who is not actually a possessor is nevertheless considered as such in the eyes of the law; and conversely Untitled 1 one who actually has possession may be looked on by law as a non-possessor. Accordingly the concept of legal possession parts company still further from the ordinary notion of possession, as law tends to invent instances of constructive possession, i.e., cases where something less than possession in one person is deemed possession in law, and where conversely the actual possession of some other party is reduced to something less than legal possession.
53. The principles above adumbrated so far as they bear on the case in hand would show that possession in fact certainly is one of the most obvious index to possession in law. The finer principles of possession in law apart, there has to be a definite element of intention about the person who claims possession or is claimed to have it. Apart from extreme and marginal cases that have been discussed in the exposition by the learned Author (supra), the element of intent to possess or animus possidendi is the requirement of possession in fact as much as it is about possession in law. There could be cases of a person in possession but not in the legal sense of it, and vice versa. Again, those finer shades of the concept need not detain this Court in answering whether Sadarani must be deemed on the basis of revenue entries over a long period of time, to be either actually in possession of the suit property or in law, through her co-sharers. As noticed above, her clear stand in the written statement discloses an animus on her part to relinquish her right and possession upon the event of her remarriage, two years after she inherited it from Parikshit. Its quite another matter and absolutely irrelevant that she set up right in a third person, about which there is no cause of action, right or relief involved in these suits.
54. This Court is also of considered opinion that the decision of their Lordships of the Supreme Court in Kailash Rai (supra) relied upon by the third respondent to canvass the point that possession of one co-sharer must be deemed possession on his own behalf, and all other co-sharers, constructively though all of them may not be in actual possession, is not at all attracted to the issue that arises on the facts here. This is so because it is not even remotely established by any evidence by Sadarani, that she has continued as a co-sharer in the suit property. The specific case of hers, to be a little repetitive, in paragraph 13 of the written statement is that after her remarriage, it is Smt. Prema who has inherited the suit property from Parikshit, claimed to be her father. There is indeed an admission by Sadarani that she lost her share/her title or interest in the suit property, once she remarried Chhimman two years after Parikshit's death. This stand about Sadarani's rights is indeed an unqualified admission that she is no longer a co-sharer. The principle in Sharda Prasad (supra) that admission is the best piece of evidence against its maker applies squarely to Sadarani, looking to the stand in her pleadings. The decision of their Lordships of the Supreme Court in Kailash Rai (supra) does not help the third respondent. There has been much ado at the instance of both parties, and in the judgments of the Courts below too, about Sadarani acquiring Khudkast rights under sub Section (2) of Section 180 of the Act of 1939, for the petitioners or their predecessor failure to bring a suit against her for ejectment within the statutory period of limitation, under Sub Section (1) of Section 180.
55. This Court is of clear opinion that the said question does not at all arise in this case as Sadarani never asserts to have continued in possession or as a co-sharer after her remarriage. It is for this reason that Hardas never brought a suit, seeking to eject her within the prescribed period of limitation. Thus, Sadarani must be held not to have acquired any rights under sub Section (2) of Section 180 of the Act of 1939, and lateron, Bhumidhari on the basis of those Khudkast rights. The Board and the Trial Court while pronouncing upon the rights of parties to reach a conclusion in favour of Sadarani, therefore, assumed on specious ground that failure of the petitioner or their predecessor to bring a suit for ejectment against Sadarani, would defeat these suits, as Sadarani would have perfected her right under Section 180(2).
56. The present suits have been brought to rectify revenue entries alone by expunging the name of Sadarani from the revenue records relating to suit property over which she was recorded when she inherited it, and the right to which she was divested of on remarriage, going by the law governing rights of parties at that time. Here, it has to be clarified that entries of howsoever long standing in the revenue records, that do not have a valid legal basis about them cannot be permitted to continue, inasmuch as such entries cannot confer title by mere long continuance. They do raise a presumption of good title but in the case in hand, it being clearly established that there is no basis to Sadarani's right to continue to be recorded, the merely long continuing entries would not be basis in themselves to perpetuate. The presumption in this case about long continuing revenue entries stands squarely rebutted. It is precisely this contingency which their Lordhsips of the Division Bench in Shri Ram and others (supra) answered to overrule the two earlier decisions by the learned Single Judge in Mangroo (supra) and Jagdev (supra).
57. The submission that learned counsel for the third respondent, urged for a last, is on the authority of the decision of their Lordships of the Supreme Court in Gajodhari Devi (supra). He submits that the decision is an authority for the principle that a widow once she inherits property, she cannot be divested upon remarriage. The said decision in the opinion of this Court is of no assistance to the third respondent inasmuch as the principle laid down by their Lordships in Smt. Gajodhari Devi (supra) was in the context of a case, where succession had opened out in favour of the widow, of a pre-deceased son of the tenure holder. The tenure holder died in the year 1961 and the widow inherited a share in the property in her right as the widow of the deceased Bhumidhar's son. The rights of the widow were governed by the U.P.Z.A.&L.R. Act, 1951 whereas in the present case, the rights of parties, on common ground are governed by a very different law in force at the relevant time, that is to say, the Act of 1939. The U.P.Z.A.&L.R. Act does not envisage any such principle about divesting, upon remarriage of a widow, of the share that she has inherited from her husband or the husband's father. This position under the U.P.Z.A.&L.R. Act is in sharp contrast to sub Section (1) of Section 36 of the Act of 1939, where upon remarriage the widow looses her share that she had inherited from her husband, which would then devolve upon the heir of the last male tenant, that is her husband. As such, the third respondent's case is not at all remotely covered by the principle in Smt. Gajodhari (supra).
58. In the result, the writ petition succeeds and is allowed with costs. The impugned judgment and decrees dated 28th April, 1994 passed in Second Appeal Nos. 151, 152 and 153 of 1989-90 passed by the Board of Revenue, U.P. at Allahabad are hereby set aside and judgments and decrees of the Additional Commissioner, Jhansi Division, Jhansi dated 24th April, 1990, passed in Appeal No. 90/6/1986-87, 91/7/1986-87 and 92/8/1986-87 stand restored.
Order Date :- 28.01.2020 Anoop, BKM/-