Allahabad High Court
Ramesh Chandra And Others. vs Krishna Kumar And Others. on 24 February, 2021
Equivalent citations: AIRONLINE 2021 ALL 375
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
RESERVED
Court No.21
Case :- SECOND APPEAL No. - 38 of 1991
Appellant :- Ramesh Chandra And Others.
Respondent :- Krishna Kumar And Others.
Counsel for Appellant :- S.P.Shukla,R.P.Shukla,Rajesh Shukla
Counsel for Respondent :- N.N.Jaiswal,Ambika Prasad Mishra,D.C.Mukherjee,Umajeet Gupta
*****
Hon'ble Jaspreet Singh,J.
The instant second appeal has been preferred by the defendants against the judgment of reversal passed by the 5th Additional District Judge, Sultanpur in Regular Civil Appeal No.276/1989 whereby it reversed the judgment and decree dated 29.08.1989 passed by the V-Additional Munsif, Sultanpur in Regular Suit No.674/1987, as a result, the suit which was dismissed by the trial court has been allowed by the lower appellate Court.
This Court by means of the order dated 19.01.1991 had admitted the instant second appeal on the substantial questions of law at S.No.(b) and (d) as mentioned in the memo of the appeal and for the sake of convenience is reproduced hereinafter:-
"(b) Whether, in view of the fact that the suit was in respect of the Bhoomidhari land, any decree for eviction etc., could have been passed by the Civil Court or the suit was barred by Sec.331 U.P. Z.A. & L.R. Act.
(d) Whether, the Learned Court below has erred in law in not considering that the burden of prove the title of testator and the testation predecessor in interest was upon the legaties i.e. the plaintiffs."
That in order to appreciate the controversy involved in the above second appeal, brief facts leading upto the instant appeal is being noticed first.
Shri Krishna Kumar and Balram (original plaintiffs-respondents No.1 and 2 herein) instituted a suit in the Court of Munsif, District Sultanpur which was registered as Regular Suit No.674/1987 seeking a decree for permanent injunction. The suit was amended in the year 1988 and a relief for mandatory injunction was also incorporated.
Primarily, the case was that the property in question i.e. Plot No.387 situated in Village Dariyapur, Paragana Meeranpur, Tehsil Sadar, District Sultanpur belonged to Shri Ram Lal son of Kandhai Lal. It was further pleaded that Shri Ram Lal was the sirdar of the aforesaid plot since prior to 01.07.1958 and has been in its possession. Shri Ram Lal executed a registered will in favour of the plaintiffs in view thereof the plaintiffs became the owner in possession of the said property. It was also further pleaded that the defendants did not have any right or title in respect of the property in question. Consequently, they were intending to create interference in the peaceful possession of the plaintiffs and for the said reason a relief for permanent injunction was sought restraining the defendants from interfering in the peaceful possession. It was further alleged that during pendency, the defendants encroached upon the land of the plaintiffs and made certain constructions. Accordingly, by means of the mandatory injunction, a relief was sought that the defendants be commanded to remove the illegal structures.
The defendants No.1 to 6, who are the appellants before this Court filed a joint written statement denying the material averments in the plaint. The defendants set up a case that the property in question did not belong to Shri Ram Lal rather the property in question belonged to Shri Raghubar Dayal, who died issueless. The elder brother of Shri Raghubar Dayal had pre-deceased him. Consequently, the property belonged to Shri Raghubar Dayal, after his death, it devolved on Jaggan Nath Prasad (father of the defendant No.1), Gokul Prasad, who also expired issueless, Shri Ram Lal and Shyam Lal (father of the defendants No.5 and 6). Significantly, the defendants No.2 and 3 were the sons of Brij Lal, the defendant No.1. It was stated that Ram Lal had initially had 1/3rd share in the property and upon the death of Shri Raghubar Dayal, the property devolved in four shares, but since one of the brother namely Gokul Prasad died issueless, hence, his share also devolved upon the surviving three brothers namely Jaggan Nath Prasad, Ram Lal and Shyam Lal.
It was further pleaded that since Ram Lal was the elder in the family, hence his name was mutated in the revenue record but the rights and possession of the other brothers continued to vest. It was further pleaded that each of the co-sharer had demarcated his share by raising boundary walls and some of the boundary walls had with the passage of time fallen down which were re-erected by raising new wall and even affixing gates. It was also pleaded that Ram Lal expired in the year 1975 and at the relevant time he was only a sirdar, hence, he did not have the right to execute the will as relied upon by the plaintiffs.
In Para-21, it was pleaded that since the land in question was sirdari land, hence, the matter was cognizable by a Revenue Court and not by the civil court especially where it involved a declaration of title. Hence, the suit was barred by Section 331 of the U.P. Z.A. & L.R. Act. The defendants had further raised other pleas regarding misjoinder and non-joinder of the parties. Later, the defendants filed another additional written statement on 30.07.1988 denying the fact that the allegations made by the plaintiffs that new constructions have been raised is false inasmuch as they were old constructions which had fallen down and as such in order to keep the said constructions safe, the boundary walls were raised. Another additional written statement was filed on 04.08.1989 wherein the defendants also raised a plea that since the plaintiffs are not in possession, they were not entitled to the relief of injunction. Moreover, the suit of the plaintiffs was barred by the limitation.
On the basis of the pleadings, the trial court framed eight issues. The issue no.1 was whether the plaintiffs are the owner in possession of the property in question. Issue no.2 was whether the defendants had raised illegal constructions and whether the plaintiffs are entitled to get the aforesaid construction removed and entitled to possession. Issue No.3 and 4 related to non-joinder of the parties and whether the suit was not valued and relating to sufficiency of the court fee. Issue No.5 was framed on the pleadings of the defendants as to whether the suit was barred by Section 331 of the U.P. Z.A. & L.R. Act. Issue No.6 related to the relief for entitlement of the plaintiffs to the relief claimed. Issue No.7 was in respect of the limitation and Issue No.8 was whether the plaintiffs had right to institute the suit.
In order to substantiate its case, the plaintiff examined himself as PW-1 and Bhagauti Prasad as PW-2 and also filed documentary evidence which included the original will and orders passed by the Nail Tehsildar, copies of the khatauni, copies regarding the judgment of partition passed by the Arbitrator amongst others. On the other hand, the defendant examined Brij Lal as DW-1 and Shri Hriday Narain as DW-2 and also filed documentary evidence. The trial court primarily considered the issues no.1 and 2 and found that the plaintiffs could not successfully prove the will nor could prove the title of Ram Lal from whom they were claiming. It also found that the plaintiffs could not prove their possession.
The trial court also found that since the property in question was Bhoomidhari and is not abadi, thus, the aforesaid land being the revenue paying land and the suit for such a property cannot be tried by the civil court and held that the suit of the plaintiffs was barred by the provisions of Section 331 of the U.P. Z.A. & L.R. Act. The issues No.4, 7 and 8 were decided against the defendants since the defendants did not press nor prove the said issues by leading any cogent evidence and finally on issue no. 6, the trial court held that the plaintiff could not establish his title and possession over the property hence he was not entitled to seek a relief for injunction or mandatory injunction and by means of the judgment and decree dated 29.08.1989, it dismissed the suit.
The plaintiff preferred a regular civil appeal, registered as R.C.A. No.276/1989. The appellate court re-appreciating the evidence finds that since the name of the plaintiff was admittedly recorded in the revenue records and in pursuance of the will of Ram Lal, who was the grand-father of the plaintiff and that the defendant admitted that there was a partition in the family in the year 1948 and thus, since all the properties which were joint had been partitioned and there was no material to indicate that the disputed property in question was acquired prior to the partition, thus, the said property belonged to Ram Lal in his individual capacity nor there was any evidence to indicate that the said property was joint, hence, the will was duly proved by the witness Bhaugti Prasad. Accordingly, the title of the plaintiff was found to be proved. It was also found that since the defendant had raised constructions, accordingly, the plaintiff was entitled for removal of the said constructions and the lower appellate court by reversing the findings of the trial court found the plaintiffs-appellant to be the owner of the property. The lower appellate Court also found that since the name of the plaintiff was recorded in the revenue records, thus, the findings on issue No.5 was incorrectly recorded by the trial court and the lower appellate court found that the civil court had jurisdiction to entertain the suit. In view of the aforesaid, the judgment and decree passed by the trial court dated 29.08.1989 was set aside and the suit of the plaintiff was decreed by means of the judgment and decree dated 27.11.1990 passed by the 5th Additional District Judge, Sultanpur.
Being aggrieved against this judgment of reversal dated 27.11.1990, the defendants-appellants have approached this Court in this second appeal.
Shri Daya Shankar Tripathi, Advocate holding brief of Shri Rajesh Shukla, learned counsel for the appellants while pressing the substantial questions of law as noted above submitted that the land in question was revenue paying land. The plaintiff did not have a right to institute a suit in the civil court seeking a decree of permanent injunction and mandatory injunction. It is submitted that in effect by means of the mandatory injunction what is the plaintiff is asking is eviction of the defendant. Such a relief could only be granted by the revenue court in terms of Section 209 of the U.P. Z.A. & L.R. Act.
It is further submitted that in terms of Section 331 of the U.P. Z.A. & L.R. Act, the jurisdiction of the civil court is barred and in terms of Schedule-II annexed appended with Section 331 of the U.P. Z.A. & L.R. Act, the proceedings under Section 209 of the U.P. Z.A. & L.R. Act is maintainable only before the Collector first class and it has a further forum of an appeal before the court of Commissioner and thus, in the aforesaid backdrop, the findings of the lower appellate court holding that the suit was maintainable before the civil court is erroneous and is against the statutory provisions.
Learned counsel for the appellants further submits that since the plaintiff had filed the suit for permanent injunction, hence, it was on him to have proved his title and possession. In absence of either of two, a decree for permanent injunction or mandatory injunction could not have been granted. The plaintiff had failed to establish how the property vested with Ram Lal. No evidence was led to indicate the source of possession. In absence of the same, the plaintiff could not claim title to the property on the basis of the will.
It was necessary to prove the will and while doing so it was also incumbent upon the plaintiff to have established that Ram Lal son of Kandhai had acquired title in the property which was capable of transfer only then the possession could have passed to the plaintiff by succession. The plaintiff was not entitled to take the benefit of any weakness in the case of defence and in the instant case, the lower court has wrongly shifted the burden on the defendant.
It was the primary duty of the plaintiff to have proved his own case and only once the burden was discharged satisfactorily then it shifted on the defendant to disprove. In the instant case, the plaintiff could not discharge his initial burden and thus shifting the burden on the defendant was absolutely erroneous, consequently, the decision of the lower appellate court is bad in the eyes of law.
Per contra, learned counsel for the plaintiff-respondents Shri Ambika Prasad Mishra has urged that it is not disputed that the name of the plaintiff stood duly mutated in the revenue records and the plaintiff had also filed the certified copy of the order passed by the Nail Tehsildar on 30.04.1986 in Suit No.364 wherein on the basis of the same will, the name of the plaintiff was duly mutated. Once the name of the plaintiff stood mutated and was recorded as the tenure-holder which had not been challenged by the defendant accordingly on the date of institution of the suit i.e. on 17.08.1987, the plaintiffs were entitled to invoke the jurisdiction of the civil court. Thus, the findings returned by the lower appellate court on the aforesaid issue is absolutely justified and in consonance to the settled proposition as also noticed in number of cases rendered by this Court as well as by the Hon'ble Apex Court. He has further urged that the trial court has completely misdirected itself and without noticing the fact that the name of the plaintiff was duly mutated in the revenue records, the trial court erred in dismissing the suit holding that the trial court did not have jurisdiction.
It is further urged that insofar as the title and possession is concerned, it is not disputed that the name of Ram Lal was incorporated in the revenue records. It is also admitted to the defendant that since Ram Lal was the elder in the family hence his name continued to remain in the revenue records. This being so and the fact that the defendant never assailed the said entires nor ever sought to raise any right in the property in question by either filing counter claim or by instituting a suit before the revenue Courts seeking co-sharer rights, the aforesaid plea raised by the defendant is misconceived.
It is further urged that the plaintiffs had filed a large number of documents to indicate that the family had various properties which were subjected to partition. The certified copy of the partition as well as the award passed by the Arbitrator which was made rule of the Court in a compromise before the District Judge also indicated that insofar as the family properties are concerned, the same had been partitioned amongst the co-owners. However, insofar as the property in dispute in the present case is concerned, there is no mention regarding the same in the said partition. This indicates that the disputed property in question was not part of the joint family and it was solely acquired by Ram Lal on his own and thus he had ful rights to execute the will. Insofar as the will is concerned, the same was duly proved by examining as the attesting witness namely Bhaugti Prasad as PW-2, who clearly deposed and proved the due execution and attestation of the aforesaid will. Once, the aforesaid witness was examined, who proved the will and Krishna Kumar-plaintiff No.1 examined himself as PW-1, the burden was discharged. The aforesaid witnesses were put to cross-examination, however, nothing could be elicited which could cast doubt and credibility over their statements.
This aspect of the matter was completely lost sight by the trial court and on irrelevant consideration it did not find favour with the plaintiffs and it dismissed the suit. It is further urged that the lower appellate court has considered the evidence and has referred to the documents which clearly indicated that the property was not joint property and admittedly it was in the name of Ram Lal, who had executed a will and also noticing the admitted stand of the defendant has recorded a finding of fact based on evidence that the plaintiff is the owner and that the possession has been illegally taken by the defendant by raising illegal constructions. Thus, they were entitled to a decree of mandatory injunction as well. In light of the aforesaid, the findings recorded by the lower appellate court do not require any interference from this Court in exercise of powers under Section 100 CPC.
The Court has considered the rival submissions and has also perused the record.
Insofar as the first substantial question of law relating to the jurisdiction of civil court to entertain the suit is concerned, this Court has no hesitation in stating that the findings of the trial court on issue no.5 is erroneous. The civil court did possess the jurisdiction to entertain the suit for the reason that the name of the plaintiff was duly recorded in the revenue record on the date of the institution of the suit. This position is not disputed. Once, the name of the plaintiff is recorded in the revenue record, he does have a right to seek the remedy before the civil court inasmuch as no declaration of the title is involved.
This Court is fortified in its view in light of the judgment of the Apex Court in case of Shri Ram and another vs. Ist Additional District Judge and others reported in (2001) 3 SCC 24 has held as under:-
"....... The question that now arises for consideration is whether a recorded tenure holder having prima facie title in his favour and in possession is required to file a suit in the revenue court or the civil court has jurisdiction to entertain and decide the suit seeking relief for cancellation of a void document. In Ram Padarath vs. Second ADJ, Sultanpur (1989) RD p.21, a Full Bench of Allahabad High Court considered this aspect of the matter and held thus: We are of the view that the case of Indra Dev vs. Ram Piari, has been correctly decided and the said decision requires no consideration, while the Dvision bench case, Dr. Ayodhya Prasad vs. Gangotri Prasad is regarding the jurisdiction of consolidation authorities, but so far as it holds that suit in respect of void document will lie in the revenue court it does not lay down a good law. Suit or action for cancellation of void document will generally lie in the civil court and a party cannot be deprived of his right getting this relief permissible under law except when a declaration of right or status and a tenure holder is necessarily needed in which event relief for cancellation will be surpluses and redundant. A recorded tenure holder having prima facie title in his favour can hardly be directed to approach the revenue court in respect of seeking relief for cancellation of a void document which made him to approach the court of law and in such case he can also claim ancillary relief even though the same can be granted by the Revenue Court."
"......On analysis of the decisions cited above, we are of the opinion that where a recorded tenure holder having a prima facie title and in possession files suit in the civil court for cancellation of sale deed having obtained on the ground of fraud or impersonation cannot be directed to file a suit for declaration in the revenue court 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 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"
Another judgment on the point is the case of Kamla Prasad and others vs. Kishna Kant Pathak and others reported in 2007 (4) SCC 213, wherein it has been held as under:-
".....In this connection, the learned counsel for the appellant rightly relied upon a decision of this Court in Shri Ram v. Ist ADJ. 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".
This Court lately in the case of Jai Prakash Singh vs. Bachchu Lal, Writ Petition No.3.553/2002, decided on 27.09.2019, had the occasion to consider the aforesaid issue regarding the jurisdiction and it reviewed all the earlier decisions and has held that in case if the person instituting proceedings is recorded as tenure-holder on the date of institution of the civil proceedings, he can maintain the proceedings in the civil Court as there is no question regarding declaration of his rights which are involved.
Thus, in light of the above settled position, the first substantial question of law is answered.
The other substantial question of law whether the court below has erred in not considering that the burden to prove the title was upon the plaintiff is concerned, this Court has noticed that the trial court while dismissing the suit and holding that the plaintiff could not establish his title and possession has held that since the order passed by the Naib Tehsildar on 30.04.1986 did not contain an elaborate reason, hence, the said order was ignored. The trial court while discarding evidence of the plaintiff witness created a doubt on the ground that initially when the plaintiff had instituted the suit, it was stated by him that the property in question belonged to Ram Lal son of Raghubar Dayal. The trial court found that Ram Lal son of Raghubar Dayal and Ram Lal son of Kandhai may be two different persons. The will which was brought on record indicated that it was executed by Ram Lal son of Kandhani Lal. In this fashion, it held that since the plaintiff could not explain this discrepancy, hence, there was a doubt over the title.
It further noticed that if Ram Lal had expired in the year 1975 while the mutation was carried out only in the year 1986. This also was taken to be a suspicious circumstance and the testimony of the plaintiff's witness was found unreliable. Since, the plaintiff admitted that the defendant had raised new walls and apparently for the said reason it clearly indicated that the plaintiff was not in possession and thus neither the title nor the possession of the plaintiff was found hence the issues no.1 and 2 were decided in negative.
Upon perusal of the record, this Court finds that the trial court has misdirected itself and had not noticed the fact that once the order passed by the Nail Tehsildar was on record and on the basis of which the names of the plaintiffs stood mutated. The order of the Naib Tehsildar also takes note of the will executed by Ram Lal son of Kandhai in favour of the grand children, who are plaintiffs, it was not open for the trial court to have ignored the said order especially when the defendant, who were claiming co-sharer/co-tenancy rights never assailed the same nor raised any dispute regarding the authenticity or validity of the said order either before the trial court or before the revenue court.
The plaintiff by examining the attesting witnesses of the will namely Bhagauti Prasad discharged his burden as per Section 68 of the Evidence Act read with Section 63 of the Indian Succession Act. Merely because, the mutation order was passed in the year 1986 does not cast any doubt over the testimony. The reasons given by the trial court in disbelieving the testimony and stating that Ram Lal expired in 1975 is not a fact which has been brought on record by any cogent evidence. This is merely a statement made in the pleadings of the defendant. The contention of the plaintiff in his evidence in this regard is different. In absence of any cogent material such as death certificate or any statement which corroborates the date of death of Ram Lal, the trial court misdirected itself in considering that Ram Lal expired in 1975 and the mutation was made in 1986, hence a delay and this delay gave rise to an inference haboured by the trial court. Thus, this Court does not find favour with the manner in which the said findings has been recorded.
The trial court also misdirected itself when it failed to take notice that by virtue of seeking a relief for mandatory injunction the plaintiff acknowledged that the defendant had raised illegal construction itself shows that since the defendant had made illegal construction and had encroached upon the land of the plaintiff that is the reason why the decree of mandatory injunction was sought.
In a suit of this nature where the plaintiff was seeking permanent injunction as well as the mandatory injunction, the Court ought to have taken note of the fact that when the defendant has made illegally encroachment which is sought to be removed by the plaintiff, in fact, the consideration before the Court is if the title of the plaintiff is established in the given circumstance, the said removal of construction can be ordered by mandatory injunction. The Court would decide the controversy in light thereof merely because the constructions have been raised and the plaintiff is not in possession will not lead to an inference that the plaintiff is not in possession, hence, the relief be refused.
In the instant case, the plaintiff had set up a clear case regarding the property in question being of Ram Lal, who had executed a will in favour of the plaintiff and they have been in possession. On the other hand, the contention of the defendant was that the property was joint and that Ram Lal being the elder his name was mutated in the revenue records but the right of the other co-owners was also decided and the possession was also of the other co-owners. However, the defendants have not brought on record any material nor could lead any evidence indicating the possession of the defendants. The defendants also could not refute the fact that once partition had taken place and the property in question was not the subject matter of the aforesaid partition then under what circumstances, the said property remained joined and when was it acquired by the joint funds and why the defendants-appellants never sought any counter claim or agitated their rights before the appropriate Court seeking their declaration or their title. In absence of such material pleadings, the lower appellate court has considered the evidence of the defendants and found that they have not been able to establish their plea. In view of the aforesaid, it cannot be said that the lower appellate court has put a reverse burden on the defendant.
This Court finds that the findings recorded by the lower appellate court is based on appreciation of evidence, which was led before the court below. Learned counsel for the appellants could not point out any perversity in the said findings inasmuch as it has not been pointed out that any evidence, which was legally admissible has not been taken note of or any evidence which was available on record has been ignored.
Thus, while arguing on the aforesaid substantial questions of law, learned counsel for the appellants is persuading this Court to re-appreciate the evidence to reverse the findings merely because another view may be position. This Court in exercise of powers under Section 100 CPC is not required to re-appreciate the evidence. Even the view taken by the lower appellate Court which is possible and is based on appreciation of legal, admissible evidence, it cannot be said that the lower appellate Court has exceeded his jurisdiction. Needless to say that the lower appellate Court while exercising powers under Section 96 CPC is the final Court on both the law and fact, it is permissible for the lower appellate Court to re-appreciate the evidence and come to contrary finding. In case, if the judgment is reversed, the stipulation is that the lower appellant Court should consider the evidence and the reason of the trial court and reverse such finding. In the instant case, the aforesaid process has been adopted and this Court does not find any error, which has resulted in grave miscarriage of justice. The second substantial question of law is also answered.
This Court does not find that there is any error in the judgment passed by the lower appellate Court. Accordingly, the second appeal fails and the judgment and decree passed by the lower appellate court dated 27.11.1990 by the Additional District Judge, Court No.5, Sultanpur in Regular Civil Appeal No.276/1989 is affirmed. In the facts and circumstances of the case, there shall be no order as to costs.
The record of lower court be remitted to the court concerned within two weeks from today.
Order Date :- 24th February, 2021 Rakesh/-