Allahabad High Court
Prem Kumar And Others vs Subhash Chand And Others on 11 December, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:193613. Reserved on 22.11.2024. Delivered on 11.12.2024. A.F.R. In Chamber Case :- SECOND APPEAL No. - 512 of 2000 Appellant :- Prem Kumar And Others Respondent :- Subhash Chand And Others Counsel for Appellant :- K.P. Upadhyay,Amitabh Agarwal,Ayush Jain,B.N.Agrawal,K.S.Chauhan,Madan Lal Rai,Manish Kumar Nigam,Munna Pandey,Murlidhar,N.C.Tripathi,P.K. Jain,P.K.Srivastava,R.P. Singh,Rahul Sahai,Ram Prakash Srivastava,S.K. Srivastava,Sanjay Agrawal,Srijan Mehrotra Counsel for Respondent :- Manish Goyal,Archit Mehrotra,Devansh Misra,M.K. Sharma,Nalin Kumar Sharma,R.P. Singh,S.C.,S.K. Singh,Saumitra Dwivedi Hon'ble Kshitij Shailendra,J.
The Appeal
1. This is defendants' second appeal arising out of concurrent judgments passed by the civil court and the first appellate court whereby Original Suit No.625 of 1971 (Shri Subhash Chand and others vs. Shri Jetha Nand and others) claiming a decree for cancellation of a registered sale deed dated 23.08.1968 (hereinafter referred to as 'the sale deed') has been decreed and the Civil Appeal No.641 of 1979 (Shri Shiv Charan Das and others vs. Shri Subhash Chand & others) arising therefrom has been dismissed.
BRIEF FACTS AND PLAINT CASE
2. One Jhanda Ram (in short 'JR') had four sons namely Ram Chandra (non-party), Pyare Lal (defendant No.3) (in short 'PL'), Khanda Ram (non-party) and Jetha Nand (in short 'JN') (defendant No.1). JN was married to Smt. Dhanwanti Devi (in short 'DD') (defendant No.2). JR died in the year 1959, PL died in the year 1973 and JN died in the year 1993. PL had six sons, out of whom, reference of only three is relevant. These are Prem Kumar (Defendant No.4), Navin Kumar (defendant No.5) and Shyam Kumar. JN (since deceased) is succeeded by his five sons Subhash Chandra and four others who are respondent Nos.1 to 5 in the instant second appeal whereas wife and two sons of late PL are appellants herein.
3. The suit was instituted stating that plaintiffs were living as members of Joint Hindu Family (in short 'HUF') with defendant Nos. 1 and 2 and JR was Karta of the HUF; the said HUF being in existence since 1947. JR, the grandfather of plaintiffs, purchased an agricultural land in district Meerut from HUF funds in the name of defendant No.1-JN in the year 1953 and also purchased some landed property separately in the names of his other sons (non-parties) in the same year. After the death of JR, defendant No.1-JN who was subsequently transposed as plaintiff No.6 pursuant to various proceedings referred to hereinlater, managed the land for a couple of years as Karta of HUF. JN had to go out of Meerut for business purposes in 1963 and, while his sons were minors, JN entrusted management of the said HUF in the hands of defendant No.3-PL. The village and land in question came under consolidation operations in the year 1966, a separate chak was allotted in the name of JN and PL continued to supervise cultivation activities but withheld rabi crops of 1378 Fasli and, on asking, he denied plaintiffs' entitlement to the crops stating that the same belonged to defendants No.4 and 5. The plaintiffs came to know in May 1971 that HUF land had been transferred by PL to defendant Nos.4 and 5 on 23.08.1968 at the strength of a power of attorney executed by JN. Assailing the sale deed, it was alleged that JN had no right to execute the power of attorney dated 19.06.1963 in favour of PL in respect of HUF property, the sale was based upon malafides, collusion, for an inadequate consideration and was a sham transaction. Accordingly, a decree for cancellation of the sale deed was claimed.
DEFENCE
4. Defendants No.1 and 2 (JN and DD), in their joint written statement, admitted execution of the sale deed as well as power of attorney. They denied the allegations that JN had no right to execute power of attorney, however, they pleaded existence of HUF and JR being its Karta since partition of India and stated that HUF had a joint fund and the property had been purchased in the year 1953 by JN, who executed a power of attorney in favour of his elder brother PL for the purposes of looking after the litigation and cultivation but PL broke the confidence by executing sale deed in favour of his sons. Seller and purchaser, i.e PL and his son Navin Kumar, filed joint written statement denying constitution of a Joint Hindu Family stating that JR was a person of ordinary means and status; his sons, after attaining majority, separated themselves and used to earn their own livelihood; PL was separated in 1927; he plied a taxi for sometime and, thereafter, got employment in different firms; he then became a working partner in 1939 in M/s D.M. Gopi Chand and sons in business of Canteen; PL started contract of military canteen at different places; he was assessed to income tax as an individual; he had never been a member of a Joint Hindu Family, nor were his savings sufficient to purchase the property of HUF; JN was in service since 1939 to 1947 with M/s DM Gopi Chand and sons in New Delhi and then in Bareilly; PL kept JN in his employment and paid salary to him and in order to improve financial status of JN, he sublet the business to him. Since a sum of Rs.20,000/- was invested by PL in the business, it was treated as a loan to JN which was repaid by him to PL during course of time; PL improved his financial position and decided to carry out agricultural farming; he purchased the land in dispute with other lands in 1953 with his own money and it was not an HUF property nor was any money paid by JR towards sale consideration. Since PL could not purchase beyond permissible limits, he purchased the same in the name of his brother, nephews and sons as benami by investing his own funds. Real ownership in the property was pleaded in PL stating that it was in the name of JN as benami and the same was never his personal property nor did it belong to HUF. As regards JR, it was pleaded that financial condition of JR was not sound and when he came from Pakistan to India after partition; he got only two acres of land in district Gurgaon and a sum of Rs.1000/- for his property in district Gurgaon. This land was gifted by JR to the wives of this three sons. He left nothing on his death, there was neither HUF nor any HUF property; JR was living in upper portion of PL's house No.102, Ghori Mohalla, Lal Kurti, Meerut Cantt until his death; JN had no ancestral money nor any such property which could form nucleus for the purchase of land. Neither JR nor JN ever managed the land and it was PL alone who was continuing in possession of the land and managing the same making huge investments making the land worth cultivation.
5. After filing of the written statement by defendants No.3 to 5, the defendants No.1 and 2 amended their written statement stating that property was purchased by JR with the money that he had received as compensation, also from the income of the land situated in district Gurgaon and the money/gold ornaments which he had brought from Pakistan. After the death of PL, his legal representatives filed a written statement taking the same stand and defended the transaction of disputed sale. It is quite significant that plaintiffs also moved an application seeking transposition of JN (defendant No.1) as plaintiff No.6. The application was rejected by the trial court.
TRIAL COURT'S JUDGMENT
6. The trial court framed issues as regards cancellation of sale deed, maintainability of suit and bar of Section 49 of Uttar Pradesh Consolidation of Holdings Act, 1953 (in short 'the U.P.C.H. Act') apart from other issues on some compromise etc. By judgment and order dated 19.12.1979, it held the property as belonging to HUF holding that members of HUF would become and would acquire the land as tenants in common and inspite of the fact that their names were not recorded as co-tenants in the land records, they would be deemed to be co-tenants. The trial court arrived at a conclusion that JR had purchased the land as a Karta of Joint Hindu Family and acquisition by him was not as an individual as the land had been purchased from HUF funds. It decided the bar under Section 49 of the U.P.C.H. Act against the defendants and decreed the suit in part to the extent of 5/6th share of the plaintiffs and 1/6th share of JN. Consequently, the sale deed was cancelled to the extent of 5/6th share holding the plaintiffs as co-owners alongwith defendants No.4 and 5 to the extent of their 5/6th share in the property.
FIRST APPELLATE COURT'S JUDGMENT
7. Defendants assailed the judgment of the trial court before the District Judge by filing Civil Appeal No.641 of 1979, in which, the plaintiffs filed cross-objections praying for modification of the decree requesting for decreeing the suit in toto. The first appellate court, during the course of hearing the civil appeal, allowed an application on 30.11.1983 seeking transposition of defendant No.1 (JN) as plaintiff No.6, also allowed the civil appeal setting aside the trial court's judgment and remanded the matter for fresh decision by the trial court. Defendants challenged the order of remand by filing F.A.F.O. No.92 of 1984 which was allowed by this Court setting aside the remand order dated 30.11.1983 with the observation that the first appellate court could have allowed the application for transposition and have proceeded with the case itself and, if necessary, it could remand the relevant issue to the trial court but should not have reopened the entire case.
8. After remand by the High Court, an application for transposition of defendant No.1-JN as plaintiff No.6 was allowed by the first appellate court. An additional written statement was filed by the legal representatives of deceased PL pleading that the land was not the acquisition of HUF on or before the commencement of consolidation operations; the land in dispute was recorded in the name of JN as the sole bhumidhar; no objection was filed by the plaintiffs for co-bhumidhari rights during consolidation operations; chak was carved out in the name of JN as a sole bhumidhar; Power of Attorney as well as sale deed was validly executed for adequate consideration; plaintiffs are not the recorded tenure holders and, therefore, they could not get the relief of cancellation of sale deed until they were declared as co-bhumidhars with JN; since the relief claimed involves declaration of bhumidhari rights, the suit was barred by Section 331 of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as 'the U.P. Z.A. & L.R. Act'); plaintiffs Madan Lal and Hira Lal were not even born in the year 1953 and, hence, they could not be members of the alleged HUF. Bar of Section 49 of U.P.C.H. Act was also pleaded stating that at the time of notification of the village for consolidation, JN alone was recorded as sole bhumidhar, chak was carved out in his own name and no objection having been filed by the plaintiffs and the statements published at the stage of sections 9 and 10 of the Act having become final, no one had proceeded to question the entries; proceedings for recording of names on the basis of the disputed sale deed were also undertaken by the consolidation authorities and there being no objection in the proceedings under Section 12 of the Act, the civil suit was barred. Additionally a plea regarding bar of Section 34 of the Specific Relief Act, 1963 (hereinafter referred to as 'the S.R. Act') was also taken.
9. The first appellate court framed two additional points/issues. First, as to whether the suit was barred by Section 331 of the U.P. Z.A. & L.R. Act and the court had jurisdiction to try the suit and, secondly, as to whether the suit was barred by Section 34 of the S.R. Act. The first appellate court dismissed Civil Appeal No.641 of 1979 by the judgment and decree dated 25.03.2000 confirming the decision of the trial court. It also allowed the cross objections and decreed the suit in toto cancelling the entire sale deed.
ADMISSION ORDER IN THE INSTANT SECOND APPEAL
10. The instant second appeal was admitted in the year 2000 by a Co-ordinate Bench of this Court on the following substantial questions of law:-
"1. Whether in the face of the admitted position of plaintiffs' ouster since prior to the suit and the rejection of plaintiffs' application for amendment by addition of a prayer for possession of the disputed land on the ground of the plea being barred by limitation, the suit is barred by section 34 of Specific Relief Act and the finding of the lower appellate court to the contrary is illegal and untenable?
2. Whether in the face of the fact that Jethanand alone was recorded as the Bhumidhar of the land during consolidation operations and the name of the second appellant as Vendee of Jethanand under the sale-deed dated 23.8.1968 was also mutated during those operations under orders of consolidation authorities, the plaintiff's claim to be co-bhumidhars with Jethanand is barred by Section 49 Consolidation of Holdings Act?
3. Whether the pith and substance of plaintiffs' suit being a declaration of their co-Bhumidhar rights in the disputed land, the suit is exclusively cognizable by Revenue court in view of Section 331 Z.A. and L.R. Act and the fact that cancellation of the sale deed as prayed for does not make any difference to this position?
4. Whether the finding regarding the funds for the sale deed dated 6.6.1953 being joint family fund provided by the grand father Jhanda Ram is arbitrary and legally perverse and whether even assuming this to be so, this can not in the circumstances of this case legally suffice for the conclusion that Jethanand's sons were co- bhumidhars with him? "
LEARNED COUNSEL HEARD
11. I have extensively heard on many dates Shri Pramod Jain, learned Senior Counsel assisted by Shri Sanjay Agrawal for the appellants and Shri Manish Goyal, learned Senior Counsel assisted by Shri Archit Mehrotra for the respondents and perused the original record of courts below.
SUBMISSIONS OF THE APPELLANTS
12. By referring to the pleadings of the respective parties as well as statements of witnesses, it has been vehemently argued by Shri Pramod Jain, learned Senior Counsel that the plaintiffs had utterly failed to plead and prove formation/creation/existence of a Joint Hindu Family or HUF. Contention is that JR was a person of ordinary means and status and he did not receive any compensation in lieu of his land. JN stated in his cross-examination that he had never been a Karta of Joint Hindu Family and he deposited tax in his individual capacity. As regards bar of Section 49 of U.P. C.H. Act, it has been argued that notification under Section 4 of the U.P. C.H. Act was issued in the year 1966 and notification under Section 52 on 01.09.1973 and, therefore, the suit instituted in the year 1971 during the subsistence of consolidation operations was not maintainable before the civil court and both the courts have wrongly decided the said aspect. Further submission is that at the strength of disputed sale deed, when proceedings for recording the names of the transferees (appellants) were initiated and decided, no objections having been preferred by the plaintiff-respondents, the issues could not be decided by the civil court as all matters relating to changes and transfer and rights and interest, for which, cause of action had not arisen when the proceedings under Sections 7 to 9 of the U.P.C.H. Act had started or were in progress, could only be decided by the consolidation authorities and not by any other court including the civil court. Submission is that CH Forms 5 and 23 were issued in the name of JN as sole bhumidhar and pursuant to proceedings under Section 12, CH Form-45 was issued in appellants' name. Pendency of consolidation operations was admitted by JN in the written statement and also in the cross-examination of PW-1 Harish Sachdeva; neither any son of JN nor anyone else filed any objections before any consolidation authorities and possession was delivered to the appellants after adjudication of their rights; proceedings under Section 12 not being summary in nature in view of the language incorporated in the provision, finality was attached to such adjudication and civil court could not, directly or indirectly, nullify the orders passed by the consolidation court.
13. As regards bar of Section 34 of the S.R. Act, submission is that except relief of cancellation of the sale deed, since no relief of delivery of possession was claimed by the plaintiffs, the suit was barred under Section 34, particularly, in view of the fact that plaintiffs, at the first appellate stage, made an attempt to incorporate relief of possession by filling an amendment application, however, the same was rejected by the first appellate court on 19.01.1998 which order having attained finality, the suit was not maintainable. As regards the bar of Section 331 of U.P. Z.A. & L.R. Act, learned Senior Counsel very fairly concedes that such bar would not come in the way of deciding civil suit for cancellation of sale deed, however, he submits that merely because bar under Section 331 is not strictly attracted, the same would not mean that bar of other provisions i.e. Section 34 of the S.R. Act or Section 49 of U.P. C.H. Act would not apply.
14. It is further urged that an interim order was passed by this Court in the instant second appeal on 18.04.2000 staying execution proceedings and another order of status quo was passed on 10.04.2003, however, the second appeal was dismissed for want on prosecution on 06.09.2007, on which date, the stay order was also vacated but, soon thereafter, the order of dismissal was recalled on 27.09.2007, the appeal was restored and interim order was revived. Despite the fact that intimation regarding restoration of appeal and revival of the interim order was duly served upon administrative authorities and all concerned and the same was in the knowledge of the respondents, the District Magistrate, in a very high-handed manner, delivered possession of the property in dispute to the respondents. Submission is that the administrative authorities had no role in delivering possession and they had no competence in that regard, inasmuch as, any decree could be executed by the executing court only and, therefore, without there being any order of executing court, dispossession of the appellants despite an interim order of this Court being in existence, was wholly uncalled for. Learned Senior Counsel not only pressed his application under Order XXXIX Rule 2-A of Civil Procedure Code, 1908 (hereinafter referred to as 'C.P.C.') filed in the instant appeal but also an application under Section 144 C.P.C. dated 29.10.2007 requesting delivery of possession to the appellants.
JUDICIAL PRECEDENTS CITED
15. In support of his submissions, Shri Jain has placed reliance on the following authorities:-
(i). Rameshwar and others vs. Deputy Director Consolidation, Azamgarh and others, 2012 (115) R.D. 541;
(ii). Makhan Singh (D) by Lrs. vs. Kulwant Singh, (2007) 10 SCC 602;
(iii). Audhar and others vs. Chandrapati and others, (2003) 11 SCC 458;
(iv). D.S. Lakshmaiah & Anr. vs. L. Balasubramanyam & Anr., (2003) 10 SCC 310;
(v). Madan Mohan Mishra vs. Chandrika Pandey (Dead) by Lrs., (2009) 3 SCC 720;
(vi). Nagendra Pal Singh vs. Bhadrapal Singh, 2013(7) ADJ 682;
(vii). Union of India vs. Ibrahim Uddin, (2012) 8 SCC 148;
(viii). Venkataraja vs. Vidyane Doureradjaperumal, (2014) 14 SCC 502;
(ix) Ram Balak Singh v. State of Bihar and another, 2024 (4) AWC 3233 (SC).
SUBMISSIONS OF THE RESPONDENTS
16. Shri Manish Goyal, learned Senior Counsel, has vehemently opposed all the submissions raised from the appellants' side. As regards HUF, it is contended that there is a presumption of jointness of a hindu family but such a presumption does not apply in relation to properties which are distinct. By referring to unamended and amended pleadings contained in the plaint and written statements, it has been argued that when JR purchased landed property separately in the names of his sons, entire family was Joint Hindu Family and the ancestor of the parties namely JR, in order to avoid future complications, had purchased property in separate names, PL had no authority to transfer the land at the strength of the power of attorney in favour of his minor sons; there was a vague denial of jointness in paragraphs 17 and 24 of the written statement filed by the defendant No.3-Prem Kumar; the defence contained two contradictory versions as regards non-existence of jointness and also benami transaction. He further submits that in order to dislodge the presumption of jointness as regards the Hindu family, burden lies upon the person who asserts against jointness and it was not discharged by the defendants, either jointly or severely. Referring to the statement of DW-4 Puran Chand, it was emphasized that he stated his birth in 1952 and that consolidation operations had closed in the village in the year 1969 whereas chaks had been carved out in 1967. Submission, therefore, is that once the consolidation operations were closed in the year 1969 as per the defendants themselves, suit instituted after two years in the year 1971 was not barred by the provisions of Section 49 of U.P. C.H. Act.
17. Vehemently opposing the submissions of the appellants based upon notification under Section 52 of the U.P. C.H. Act, it has been argued that no such notification was brought on record by either side during the course of trial or before the first appellate court and it is for the first time that a photo-stat copy of a gazette notification dated 01.09.1973 has been annexed alongwith application under Order XLI Rule 27 C.P.C. dated 30.06.2022 by the appellants requesting to admit and read such document as an 'additional evidence'. Shri Goyal submits that such document is not readable in evidence and the application under Order XLI Rule 27 C.P.C. is bound to be rejected not only for the reason that the requirements of the said provision are not fulfilled but also in view of Section 81 of the Indian Evidence Act, 1872. He submits that the appellants have failed to establish as to source wherefrom the said document has been obtained by them and unless it is proved beyond doubt that the concerned gazette notification has been produced from proper custody, presumption under Section 81 of the Indian Evidence Act, 1872 read with Section 57 thereof would not stand attracted. He submits that except stating that gazette notification is a public document would not suffice allowing the application for additional evidence at second appellate stage and that as per sub-Section (2) of Section 57 of the Evidence Act, the Court can take judicial notice of all local and personal Acts of Parliament but the alleged gazette notification under Section 52 of the U.P. C.H. Act is not an Act of Parliament but is an administrative action, as is apparent from the notification itself that has been issued by a consolidation authority (Chankbandi Sanchalak), namely, one Shri Satya Prakash Bhatnagar. He further submits that after all the arguments against admissibility of the notification were advanced by him on a particular date during the course of final hearing of this appeal, the appellants, in order to improve their case, filed a supplementary affidavit dated 18.09.2024 without leave of the Court, annexing therewith another copy of the same notification stating in the affidavit that due to inadvertent error of the earlier counsel, authenticated and attested copy of the notification of 1973 could not be filed alongwith initial application dated 30.06.2022 and only a photo-stat copy of the same was filed. Regarding contents of the affidavits, it was argued that annexure to the supplementary affidavit was shown to have been obtained from government library- Amar Shaheed Chandra Shekhar Azad Pustkalaya Nagar Nigam Allahabad on 22.05.2022. He emphasized on the discrepancies qua seal affixed at the first page of the notification forming part of the application under Order XLI Rule 27 C.P.C. and the one at first page of the same notification attached to the supplementary affidavit. Submission is that the document brought earlier contained no date and the same was in English language, the subsequent document contains a blurred seal but readable to the extent that it is in Hindi but surprisingly contains a date 22.05.2022. The over all argument is that the requirements of Order XLI Rule 27 C.P.C. having not been fulfilled coupled with no clear source as regards "proper custody" and there being interpolations and manipulations in the alleged notification, the same cannot be read in evidence.
18. Necessary consequence, according to Shri Goyal, therefore, is that once chak was carved out in 1967 whereas consolidation operations were closed in 1969, not only suit instituted in 1971 was maintainable and unaffected by the bar under Section 49 of the U.P. C.H. Act but also there was no requirement of adjudication of any rights by the consolidation authorities as nothing remained to be adjudicated upon by them after things were settled in 1967 itself. It was also argued that provision comes into effect only as a measure of transitory/temporary suspension and does not create an absolute bar. Regarding alleged bar of Section 34 of the S.R. Act, it was argued that irrespective of rejection of the amendment application by the first appellate court whereby relief of possession was not permitted to be incorporated in the plaint, since the suit in question was a simplicitor suit for cancellation of the disputed sale deed as per Section 31 of the S.R. Act, there being no relief of declaration ever claimed, bar under Section 34 of the S.R. Act would not be attracted. Shri Goyal terms substantial question of law framed regarding the said bar as redundant and submits that it does not at all arise in the present case.
19. Shri Goyal further submits that power of attorney of 1963, when read as a whole, would infer that right to sale was not given to PL, rather, it was for persuasion of matters before the consolidation authorities and other administrative offices. Emphasizing upon Section 5(c)(ii) of the U.P. C.H. Act read with Section 45-A thereof, it was urged that since no permission was obtained from the consolidation authorities prior to execution of the disputed sale deed, it was void-ab-initio.
JUDICIAL PRECEDENTS CITED
20. In support of his submissions, Shri Goyal has placed reliance on the following authorities:-
(i). Smt. Sitabai and another vs. Ramchandra, (1969) 2 SCC 544;
(ii). T. Ravi and another vs. B. Chinna Narasimha and others, (2017) 7 SCC 342;
(iii). Kiran Devi vs. Bihar State Sunni Waqf Board and others, (2021) 15 SCC 15;
(iv). Shankar and others vs. Surendra Singh Rawat (dead) through Lrs. and another, (2021) 20 SCC 425;
(v). Smt. Bhuriya & Ors. vs. Board of Revenue at Allahabad & Ors., 1970 RD 466;
(vi) Ram Audh Singh and others vs. State of U.P. and others, 1969 ALJ 748 (FB);
(vii). Suba Singh vs. Mahendra Singh and others, (1974) 1 SCC 418;
(viii). Karbalai Begum vs. Mohd. Sayeed and another, (1980) 4 SCC 396;
(ix). Prashant Singh and others vs. Meena and others, (2024) 6 SCC 818
(x). Bhagwan Dayal (Since Deceased) and thereafter his heirs and legal representatives Bansgoal Dubey and anr., vs. Mst. Reoti Devi (Deceased) and after her death, Mst Dayavati, her daughter, AIR 1962 SC 287;
(xi). The State Bank of Travancore vs. Aravindan Kunju Panicker and others, (1972) 4 SCC 274;
(xii). Ram Awalamb and others vs. Jata Shankar and others, 1968 SCC Online All 178;
(xiii). Patram Singh (deceased by L.R's.) vs. Bahadur Singh, AIR 1983 ALL 348;
(xiv). Mata Badal Pandey and anr. vs. The Board of Revenue and others, AIR 1976 Allahabad 420.
APPELLANTS' SUBMISSIONS IN REJOINDER
21. In rejoinder, Shri Jain submits that at the time when the sale deed was executed, unamended provisions of Section 5 of the U.P.C.H. Act were there which did not require prior permission from the consolidation authorities in case of sale of entire holdings but such requirement could come in picture when only a part of holdings was transferred by the concerned bhumidhar which is not the case here. It was argued that a reference was made by learned Single Judge in such regard and the matter was decided by a Full Bench in Smt. Ram Rati vs. Gram Samaj Jehwa, AIR 1974 ALL 106 (FB). He submits that judgments cited from the respondents side are based upon proposition of law only whereas, in the facts of the present case, the same would not be applicable, inasmuch as, JN acquired full-fledged rights by sale deed of 1953 after the date of vesting as an individual and not in the capacity of Karta of HUF. He submits that in order to succeed in their contention, the plaintiffs should have established that JN acquired property as a Karta in a representative capacity for the benefit of family and there should have been a Joint Hindu Family fund in the hands of Karta. Arguments on strict requirement of "pleading and proof of creation/existence of HUF and existence of property" were emphatically raised and by referring to the statement of PW-1, Harish Sachdeva, it was argued that he expressed his ignorance about the fact as to whether his father had become Karta or not and he also stated that consolidation took place in the village in 1967 but he did not know that at that time any objection was raised by him to the effect that the land be recorded in the name of HUF.
22. Shri Jain, then, by referring to those portions of pleadings and statements of plaintiffs whereby they had tried to contend that JR, after being migrated from Pakistan to India, had been given compensation in lieu of his property in Pakistan, referred with vehemence, the provisions of The Displaced Persons (Claims) Act, 1950 (Act No.44 of 1950) and The Displaced Persons (Compensation and Rehabilitation) Act, 1954 (Act No.44 of 1954). He submits that immediately after partition of India, the Act No.44 of 1950 was enacted to provide for the registration and verification of claims of displaced persons in respect of immovable property in Pakistan whereas after four years, Act No.44 of 1954 was enacted to provide for payment of compensation and rehabilitation grant to displaced persons. Submission is that since Act No.44 of 1950 did not provide for any mechanism for payment of compensation but only provided for registration and verification of claims and for payment of compensation and rehabilitation grant, Act No.44 of 1954 was enacted, question of payment or receipt of compensation had not arisen before 1953 nor could it arise, as by that time, Act No.44 of 1954 had not even come into existence. Therefore, according to Shri Jain, entire story of having funds in hands qua purchase date of 1953 was cooked up by the plaintiffs but had no legs to stand on.
ANALYSIS OF RIVAL CONTENTIONS Re:- Bar under Section 49 of the U.P. CH. Act (Second question)
24. In order to appreciate this aspect, first of all we should understand the legislative significance of the provisions of sections 4 and 52 of the Act, relevant portions whereof are reproduced as under:-
"Section 4. Declaration and notification regarding consolidation-
(1)(a). The State Government may, where it is of opinion that a district or part thereof may be brought under consolidation operations, make a declaration to that effect in the Gazette, whereupon it shall become lawful for any officer or authority who may be empowered in this behalf by the District Deputy Director of Consolidation-
(i). to enter upon and survey, in connection with rectangulation or otherwise, and to take levels of any land in such area;
(ii). to fix pillars in connection with rectangulation, and;
(iii). to do all acts necessary to ascertain the suitability of the area for consolidation operations.
(b). The District Deputy Director of Consolidation shall cause public notice of the declaration issued under clause (a) to be given at convenient places in the said district or part thereof.
(2)(a). When the State Government decides to start consolidation operations, either in an area covered by a declaration issued under sub-section (1) or in any other area, it may issue a notification to this effect.
(b). Every such notification shall be published in the Gazette and in a daily newspaper having circulation in the said area and shall also be published in each unit in the said area in such manner as may be considered appropriate.
Section 52. Close of consolidation operations.-(1) As soon as may be, after fresh maps and records have been prepared [under sub-section (1) of Section 27], the State Government shall issue a notification in the Official Gazette that the consolidation operations have been closed in the [unit and the village or villages forming a part of the unit] shall then cease to be under consolidation operations:
[Provided that the issue of the notification under this section shall not affect the powers of the State Government to fix, distribute and recover the cost of operations under this Act.] [(1-A)] The notification issued under sub-section (1) shall be published also in a daily newspaper having circulation in the area and in such other manner as may be considered proper.] ............................
25. Therefore, U.P. C.H. Act being the Statute governing all the aspects qua consolidation, recognizes both commencement and closure of consolidation operations by issuance of notifications respectively under Sections 4 and 52 thereof and their publication in the official gazette and by no other manner. Oral statement of a witness cannot replace the statutory requirement of issuance of notification, either in relation to initiation of consolidation operations or their closure. One may visualize that in case valuable property rights involving these aspects are decided merely on the basis of oral testimony of witnesses, it would play a havoc and statutory requirements would be thrown into air. Therefore, unless there are statutory notifications published in official gazettes as required under the afore-quoted provisions, no presumption can be drawn either qua commencement or closure of consolidation operations.
Re: Application filed by the appellants under Order XLI Rule 27 C.P.C.
26. The Court finds no dispute in the instant case regarding issuance of notification under Section 4 of the U.P. C.H. Act in 1966. The dispute is regarding closure of consolidation operations. Much emphasis has been laid by both sides on this aspect by referring to the copy of the gazette notification annexed to the application filed by the appellants under Order XLI Rule 27 C.P.C. Whereas the contention of the appellants is that the document being a public document, should be considered as a piece of 'additional evidence' in the instant second appeal, contrary submission was advanced from the respondents' side that the document is inadmissible in evidence. Various provisions of the Evidence Act were pressed into service regarding admissibility of the notification and authorities were cited by both sides with vehemence, however, on bare reading of the grounds taken in the application under Order XLI Rule 27 CPC, the affidavit filed in support thereof as well as the supplementary affidavit filed after the respondents had advanced their arguments on admissibility of the gazette notification, no good ground stands made out to allow the application. The Supreme Court in Union of India vs. Ibrahim Uddin and anr. (supra), in relation to Order XLI Rule 27 CPC has held that the inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of Rule 27. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal. This Court finds that strict requirements of Rule 27 of Order XLI do not at all stand satisfied in the instant case and, even otherwise, there being discrepancy in the documents attached to two affidavits in support of plea of additional evidence, makes them doubtful at least as regards the source, timing and custody. This Court is not dealing with the numerous authorities cited at the bar in relation to admissibility of notification under Section 52 of the U.P.C.H. Act as an additional evidence, inasmuch as, it has found the application under Order XLI Rule 27 CPC lacking the requirements of the Code. Therefore, the application under order XLI Rule 27 C.P.C. stands rejected.
27. The necessary consequence of such rejection would be that there is no documentary evidence on record as regards closure of consolidation operations, i.e., the statutory gazette notification under Section 52. Since the disputed sale deed was executed in the year 1968 i.e. two years after the consolidation operations had commenced in 1966, in order to succeed in their plea that chaks were carved out after closure of consolidation operations, the burden to establish the same would lay upon the plaintiffs-respondents and not upon the defendants-appellants. To be more clear, it was for the plaintiffs to bring on record notification under Section 52 of the U.P. C.H. Act and they cannot get any advantage from reading statement of one or the other witness. The Court may refer to Sections 101 and 102 of the Evidence Act, 1872, according to which, whoever desires any Court to give judgment as any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist (Section 101) and the burden of proof in a suit lies on that person who would fail if no evidence at all were given by either side (Section 102). Therefore, the consolidation operations would be deemed to continue unless a contrary evidence is led regarding their closure which, not being on record, it is found that when the disputed sale deed was executed in the year 1968, consolidation operations did not stand closed. The contention of respondents that since DW4, in his cross-examination, had stated that consolidation operations had closed in 1969 whereas chaks had been carved out in 1967 does not have any force for multiple reasons; first, that a bare oral statement, in absence of gazette notification on record, is not a proof of closure of consolidation operations; secondly, even if the statement is accepted, it would mean that consolidation operations were closed in 1969 i.e. after the disputed sale deed was executed but before institution of suit; and, thirdly, carving out of chaks, as per this statement, in the year 1967 would be of no avail as the bar of Section 49 is to be seen in connection with adjudication of rights of transferees (appellants) as per Section 12 of the U.P. C.H. Act. For ready reference, Section 12 of U.P.C.H. Act is quoted hereunder:-
"12. Decision of matters relating to changes and transactions affecting rights or interests recorded in revised records. - (1) All matters relating to changes and transfers affecting any of the rights or interests recorded in the revised records published under sub-section (1) of Section 10 for which a cause of action had not arisen when proceedings under Sections 7 to 9 were started or were in progress, may be raised before the Assistant Consolidation Officer as and when they arise, but not later than the date of notification under Section 52, or under sub-section (1) of Section 6.
(2). The provisions of Sections 7 to 11 shall mutatis mutandis, apply to the hearing and decision of any matter raised under sub-section (1) as if it were a matter raised under the aforesaid sections."
28. In Narendra Singh and others vs. Jai Bhagwan and others, 2006 (100) RD 69, this Court said that jurisdiction of civil court to adjudicate upon dispute upon rights and title relating to lands included in consolidation proceedings is barred by Section 49 of the U.P. C.H. Act as the same has been conferred by the Act exclusively on the authorities under the said Act. In Madan Mohan Mishra vs. Chandrika Pandey (Dead) by Legal Heirs, 2009 (107) RD 2 SC, referring to Section 49 of the U.P.C.H. Act, the Court said that "Jurisdiction of the civil court not only in respect of matters which are specified therein but also the matters which could and ought to have been the subject-matter of the proceedings under the said Act is barred." The Court relied on its earlier two decisions in Audhar and others vs. Chandrapati and others, (2003) 11 SCC 458 and Narender Singh and others vs. Jai Bhagwan and others, 2005 (9) SCC 157. These authorities were reconsidered by this Court in Nagendra Pal Singh (supra). In its latest decision in Ram Balak Singh (supra), the Supreme Court has clearly laid down that when rights of tenure holder are determined and recognised by consolidation authorities, jurisdiction of civil court is excluded by very scheme of the Consolidation Act. Though the Supreme Court was dealing with a case arising from Bihar Act, principle of law applicable in the facts of the present case would be same.
29. On the aspect of presumption as regards HUF and matters associated thereto, particularly, considering the findings recorded by the first appellate court in the present case, this Court may observe that before the Apex Court in Narender Singh (supra), argument advanced was that revenue entry existed only in the name of father was in representative capacity for the entire body of joint family and it was urged that bar of Section 49 of the Act would not be attracted. However, the Supreme Court turned down the argument and held that though the suit lands were exclusively recoded in the name of deceased father, his sons even after attaining majority and being fully aware of execution of agreement for sale did not made any attempt to get their names jointly recorded in revenue records. The Apex Court held that jurisdiction to decide the dispute of rights and title in consolidation proceedings has been conferred by the Act exclusively on the Authorities under the said Act and the sons who claim joint ownership, ought to have approached the Authority. They, having failed to do so, the argument based upon "representative capacity" was found to be misleading and the decision of High Court in invoking bar under Section 49 of the U.P.C.H. Act was upheld.
30. The Supreme Court in Malkhan Singh vs. Sohan Singh and others, AIR 1986 SC 500 held that Sections 7 to 11 of the Act deal with the rights and title of the tenure-holder and by the application of those provisions to the proceedings under Section 12 in matters for which cause of action had arisen subsequently will make the decision a decision of title. But the position prior to the amendment of 1963 was different and there was no provision for the adjudication of the rights and title of a tenure-holder once the title and interest of the original tenure-holder had been finally determined and chak had been allotted. The judgment of Malkhan Singh (supra) was relied upon by this Court in Surendra Singh vs. Board of Revenue, U.P., Agra and others, 2015 (127) RD 694, holding that after the amendment made in U.P.C.H. Act in 1963, proceedings under Section 12 are in the nature of regular title proceedings unlike mutation proceedings which are summary in nature. Similar view was taken in Hakam Ali and anr. vs. State of U.P. and others, 2014 (122) RD 463 and Smt. Bhagwan Dei (Dead) Through Lrs. vs. Board of Revenue, U.P. Allahabad and others, 2010 (110) RD 747.
31. From a bare perusal of Section 12 and the ratio laid down in above-referred authorities, it is clear that the provision applies to all the matters relating to changes and transfers affecting any right or interest recorded in the revised records, for which, the cause of action had not arisen when proceedings under Sections 7 to 9 were started or were in progress. Admittedly, the appellants herein are transferees at the strength of sale deed of 1968 and, therefore, the cause of action for them had not arisen when proceedings under Sections 7 and 9 were pending. Their rights accrued immediately after sale and there is ample documentary evidence on record to establish that whereas CH Forms 5 and 23 were issued in the name of JN as sole bhumidhar, CH Form 45 was issued in appellants' name pursuant to orders passed by the Assistant Consolidation Officer.
32. The judgment of this Court in Smt. Bhuriya and others (supra), cited by the respondents is of no help to them as, in that case, the argument regarding bar of Section 49 was rejected in view of peculiar facts of that case where Assistant Consolidation Officer had mutated name of widow based upon succession and it was observed that a claim which arises after the consolidation scheme having been confirmed under Section 52 of the U.P. C.H. Act cannot be adjudicated by consolidation authorities. In that case, title of Smt. Bhuriya had accrued after death of Suggan and it was observed that when Suggan was alive, Smt. Bhuriya had no right at all and cause of action as regards her claim to inherit the holdings as widow accrued after proceedings under Sections 7 and 9 of the Act had been completed. The facts of the present case are altogether different, that is to say that there is no claim based upon succession but it arose out of a sale deed executed in favour of the appellants. Further, no cause of action had arisen for them at the stage of Sections 7 and 9 of the Act but arose subsequently based upon title vested in them and, therefore, their substantive rights were adjudicated under Section 12 of the Act and, hence, in absence of objections raised by the plaintiffs, bar under Section 49 stood clearly attracted.
33. The judgment in Ram Audh Singh and others vs. State of U.P. and others, 1969 SCC Online All 110 has also been considered in the judgments cited on behalf of the appellants and needs no further deliberation. The judgment of Suba Singh (supra) was also pronounced in the peculiar facts of that case and it was observed by the Supreme Court that nothing done in consolidation proceedings was undone by the suit and, therefore, the bar under Section 49 of the Act would not be attracted. In the present case, since title vested in the appellants at the strength of the sale deed was recognized by the consolidation authorities and incorporated in CH Form 45, the same could not be undone by the civil court that has wrongly decreed the suit by expressly or impliedly dislodging un-opposed adjudication made by the Consolidation Court. Therefore, the judgment in Suba Singh (supra) would be of no assistance for the respondents.
34. In Karbalai Begum (supra), the Apex Court dealt with Section 9 CPC and observed that unless there is an express provision barring the suit based on title, civil court will not easily infer bar and, on facts of that particular case, suit was held to be not barred under Section 49 of the Act. On careful examination of the facts of case in Karbalai Begum, this Court finds that a plea of fraudulent entry of names by some of the parties was taken in those proceedings and the dispute was with regard to substantially recording the names in Khewat by some of the parties to the exclusion of others who claimed joint ownership in the property. No rights were asserted on the basis of a sale deed nor did that case arise out of adjudication made under Section 12 of the Act.
35. Much emphasis was laid by the respondents on the latest decision of Hon'ble Supreme Court in Prashant Singh and others (supra) and it was argued that under Section 49 of the U.P.C.H. Act, there is a provision for transitory suspension of jurisdiction of civil and revenue court only during the period when consolidation proceedings are pending. It was urged that power under Section 49 cannot be exercised to take away the vested title of a tenure-holder; no such jurisdiction is conferred upon a Consolidation Officer or any other Authority under the Act and power to declare ownership in an immovable property can be exercised only by a civil court. A close scrutiny of the judgment in Prashant Singh (supra) would reveal that the Apex Court has observed therein that unless a person is a pre-existing tenure holder, bar under Section 49 would not come in operation. In the instant case, JR purchased the property in 1953; notification under Section 4 of the Act was issued in 1966; the disputed sale deed was executed in 1968 during consolidation operations, therefore, JR had pre-existing rights at the strength of sale deed of 1953 and transferees from JN (son of JR) through power of attorney holder PL got their names mutated pursuant to proceedings under Section 12 of the Act. It is a case where dispute regarding pre-existing rights in JR or JN was of a different nature that is to say as to whether JR had purchased the property as Karta of Joint Hindu Family or in his individual capacity. Moreover, the case before the Apex Court, with great respect, did not involve question of adjudication of rights of transferees whose names were recorded under CH Form-45 pursuant to uncontested proceedings under Section 12 of the Act.
36. The Court may emphasize here that under Section 20 of the U.P. C.H. Act, a provisional Consolidation Scheme is prepared and objections against the scheme are invited. Section 21 is the provision for disposal of objections and, after such disposal, a final Consolidation Scheme is prepared. As per Section 27 of the Act, as soon as may be, after the final Consolidation Scheme has come into force, the District Deputy Director of Consolidation shall cause to be prepared for each village, a new map, field-book and record of rights in respect of the consolidation area, on the basis of the entries in the map, as corrected under Section 7, the Khasra Chakbandi, the annual register prepared under Section 10 and the allotment orders as finally made and issued in accordance with the provisions of this Act. The provisions of the Uttar Pradesh Land Revenue Act, 1901, shall, subject to such modifications and alterations as may be prescribed, be followed in the preparation of the said map and records. It has come on record of this case that names of the purchasers-appellants were recorded in CH Form 45. The said Form corresponds to Rule 97 of the Uttar Pradesh Consolidation of Holdings Rules, 1954. The said Rule corresponds to Section 27 of the Act and reads as under:-
"Rule 97 (Section 27).-The Consolidation Lekhpal shall, with help of the Khasra Mutabiqat and other relevant records mentioned in sub-section (1) of Section 27, prepare the Khatauni in C.H. Form 45 in duplicate."
37. As per Section 52(1) of the Act, notification for closure of consolidation operations is issued in the Official Gazette after fresh maps and records have been prepared under sub-section (1) of Section 27. It, therefore, establishes that notification under Section 52 would be issued after names of the transferees/successors etc. are recorded in the consolidation records as per Section 27(1) read with Rule 97 and CH Form 45. That is to say that such a notification cannot be issued prior to the stage of Section 27(1). It is, therefore, established that once the names of the appellants were recorded in CH Form 45 without there being any objection at any stage of proceedings recognized by the Act, the bar under Section 49 of the Act would stand attracted and it cannot be said that consolidation authorities would lose their competence in the instant case and that the civil court would be competent to examine the challenge made to the sale deed which was given effect to not only in consolidation records but also on the spot with delivery of possession to the appellants. Hence, the judgment in Prashant Singh and others (supra) cannot be read against the appellants so as to remove the bar under Section 49 of the Act, more so when the Apex Court in the said judgment itself observed that Section 49 of the U.P.C.H. Act is a provision for transitory suspension of jurisdiction of civil and revenue court only during the period when consolidation proceedings are pending. The suit in question having been filed during consolidation operations and there being no oral or documentary evidence on record that at any stage of proceedings under Section 12 or otherwise, any objections were raised by the plaintiffs against the claim raised by the appellants, the suit was clearly barred under Section 49 of the U.P.C.H. Act. In view of the above, second question is answered in favour of the appellants holding that the suit was barred by Section 49 of the U.P. C.H. Act.
Re:- Bar under Section 34 of S.R. Act (First Question)
38. The bar under Section 34 of the Act comes into play when declaration is claimed by the plaintiff as regards any legal character or to any right as to the property and he omits to claim further relief than a mere declaration of title. Section 34 finds place in Chapter VI of the Act titled as "DECLARATORY DECREES" whereas Chapter V contains provisions for "CANCELLATION OF INSTRUMENTS" and Section 31 is placed under this Chapter. It is a provision which is invoked by any person against whom a written instrument is void or voidable and he has a reasonable apprehension that such instrument, if left outstanding, may cause him serious injury. The authorities cited on behalf of rival sides on this aspect, when carefully appreciated, the court finds that the suit in question, being a simplicitor suit for cancellation of sale deed and no relief of declaratory rights under section 34 having been claimed, the suit squarely falls under Chapter V of the Act and has no concern with Chapter VI thereof. Hence, irrespective of rejection of amendment application at appellate stage in 1998, whereby the plaintiff was precluded from amending his plaint by incorporating relief of possession, the suit was very much maintainable under Section 31 of the Act. Therefore, first question is answered in favour of the respondents in the manner that the suit was not barred by Section 34 of S.R. Act.
Re:-Bar under Section 331 of the U.P.Z.A. & L.R. Act (Third Question).
39. During the course of arguments, Shri Pramod Kumar Jain, learned Senior Counsel, very fairly concedes that Bar under Section 331 would not be attracted in the facts of the present case and, therefore, he did not press the said substantial question of law. Even otherwise, in a recent judgment passed in Mangoo Singh & others vs. Ram Autar, 2024(9) ADJ 351, this Court, after considering various authorities, has held that suit for cancellation of sale deed is covered by Section 31 of the S.R. Act and is unaffected by the bar under Section 331 of the U.P. Z.A. & L.R. Act. Therefore, the third question is answered in favour of the respondents holding that the suit was not barred by Section 331 of the U.P. Z.A. & L.R. Act.
Re:- HUF/Joint Hindu Family property (Fourth Question)
40. Since plea of HUF arising out of a rebuttable presumption in civil proceedings requires proof beyond doubt, it would be appropriate to first discuss few authorities on burden of proof. In Baikuntha Nath Paramanik (dead) by his L.Rs. & heirs vs. Sashi Bhusan Pramanik (dead) by his L.Rs. & ors. (1973) 2 SCC 334, it was held that when a joint family is found to be in possession of nucleus sufficient to make the impugned acquisitions, then a presumption arises that the acquisitions standing in the names of the persons who were in the management of the family properties are family acquisitions.
41. In Surendra Kumar vs. Phoolchand (dead) through Lrs. & Anr. (1996) 2 SCC 491, the Supreme Court held that where it is established or admitted that the family which possessed joint property which from its nature and relative value may have formed sufficient nucleus from which the property in question may have been acquired, the presumption arises that it was the joint property and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family funds.
42. In D.S. Lakshmaiah & Anr. (supra), the Supreme Court held that there is no presumption of a property being joint family property only on account of existence of a Joint Hindu Family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was a nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available. In Patram Singh (deceased by L.R.s) (supra), decision of Privy Council in Appalaswami vs. Survanarayanamurti, AIR 1947 PC 189 was referred to and proposition was laid down to the effect that proof of existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family property.
43. In Ratnagiri Nagar Parishad vs. Gangaram Narayan Ambekar and others, (2020) 7 SCC 275, while dealing with the provisions of Indian Evidence Act, 1872, the Supreme Court observed that weakness in defence cannot be the basis to grant relief to the plaintiffs and shifts burden on defendants and, therefore, held the decision of first appellate court, by which it had proceeded to find fault of the defendants to answer the controversy in favour of the plaintiff, as erroneous. In Addagada Raghavamma and another vs. Addagada Chenchamma and another, AIR 1964 SC 136, it was held that there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. The circumstances do not alter the incidence of the burden of proof but having regard to the circumstances of a particular case, the onus of proof may be shifted. Such a shifting of onus is a continuous process in the evaluation of evidence.
44. In the present case, the disputed sale deed was challenged mainly on the ground that PL was not competent to transfer the HUF property at the strength of the power of attorney. Other assertions that the sale was based upon malafides, collusion, for an inadequate consideration and was a sham transaction, were not made substantial grounds of challenge and necessary evidence to that effect is also lacking on record. Therefore, it has to be seen as to whether the property in the hands of JN was, in fact, the property purchased by JR from Joint Hindu Family funds, what is the evidence in that regard and to what extent the parties succeeded to prove their case. There are various sale deeds on record and none of them, contains any mention or whisper that they were executed by or in favour of JN/JR as a Karta of HUF or that the sale consideration had been paid from the HUF funds or that these transfers were for the benefit of HUF. General Power of attorney dated 19.06.1963 (111-Ka) and notice dated 26.07.1969 (150-Ka) served on behalf of JN through his counsel Shri Om Prakash Gupta to PL also mention that the land in dispute exclusively belongs to JN with no averment of Joint Hindu Family property. Further, names of vendees of the sale deeds on record including those of the disputed sale deed were recorded in their respective names establishing that presumption qua existence of a Joint Hindu Family was not there.
45. The plaintiffs claimed that after partition of India in 1947, the Joint Hindu Family consisted of JR, JN, his wife and sons. Merely on these pleadings, it cannot be inferred that transfer in favour of other sons including non-parties to the lis was made from the HUF funds. Further, the plaintiffs furnished absolutely no specified details of the alleged HUF funds. JN and his wife duly admitted execution of power of attorney in favour of PL and sale deed by PL in favour of his sons. Amended written statement filed by the defendants tried to fill up the omissions made in the plaint as regards the formation of nucleus or source of alleged HUF funds. They did not plead that the land or the properties for which JR allegedly received compensation were ancestral or that the land in District Gurgaon purchased by him was in his personal capacity or money or earnings allegedly brought by him were ancestral or contributed by the members of the Joint Hindu Family. PW-1 Harish Sachdeva S/o JN also stated in his oral testimony that his grandfather, i.e., JR had purchased property in 1953 from his own funds. He also expressed his ignorance about the source of funds utilized by JR for purchasing property in 1953. He further expressed his ignorance whether after death of JR, his father JN had become Karta or not. His statement is clear also to the effect that no objections were raised taking plea of HUF during consolidation operations. Though he said that his father was paying income tax as Karta, no documentary evidence to support this statement was brought on record. It has also come on record that at the time of partition, the plaintiffs were minors, JN was in service and other sons were living separately having their separate business.
46. Further, since JR acquired property in 1953, the Court finds considerable force in the submission of Shri Jain that plea of receiving compensation as a result of migration from Pakistan to India was not supported by any statutory sanction. The Displaced Persons (Claims) Act, 1950 (Act No.44 of 1950) was enacted to provide for the registration and verification of claims of displaced persons in respect of immovable property in Pakistan and The Displaced Persons (Compensation and Rehabilitation) Act, 1954 (Act No.44 of 1954) was enacted to provide for payment of compensation and rehabilitation grant to displaced persons. Since Act No.44 of 1950 did not contain any provision for payment of compensation but only provided for registration and verification of claims and for payment of compensation and rehabilitation grant, Act No.44 of 1954 was enacted, question of payment or receipt of compensation could not have arisen in or before 1953. Hence, the Court is not in a position to accept the bare plaint version in absence of any cogent evidence regarding formation of Joint Hindu Family or acquisition of property therefrom. In view of the above discussion, the fourth question is answered in the manner that findings recorded by the courts below to the effect that funds in the sale deed dated 06.06.1953 were Joint Hindu Family fund provided by JR are perverse and, consequently, the conclusion drawn by the courts that sons of JN were co-bhumidhars with him is wholly unsustainable.
47. As regards the arguments of Shri Manish Goyal on applicability of Section 5(c), both prior or subsequent to the amendments incorporated in the U.P. C.H. Act, the Court observes that the disputed sale deed was not challenged on the ground of non-obtaining prior permission from the consolidation authorities. There being neither any pleadings nor evidence in that direction, examining the validity of the sale deed on that line would be beyond the scope of exercise of second appellate jurisdiction under Section 100 CPC. In Govindaraju vs. Mariamman, JT 2005 (2) SC 107, after placing reliance upon its judgment in Santosh Hazari vs. Purushottam Tiwari (Deceased) By LRs., JT 2001 (2) SC 407, the Supreme Court held that for a question of law to be involved in the case, its foundation has to be laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by the Court of fact. In Panchugopal Barua and others vs. Umesh Chandra Goswami and others, AIR 1997 Supreme Court 1041, the Supreme Court condemned the approach of the High Court in considering the question which was not supported by pleadings or evidence on record and held that such an approach was contrary to the principles governing second appellate jurisdiction under Section 100 CPC. Therefore, this Court refrains itself from examining the validity of sale on that pretext, also for the reason that it is not covered by questions framed in the appeal nor does this Court feel it appropriate to frame any additional question of law in this regard in absence of necessary material on record.
48. In view of the above discussion on merits of the instant second appeal, this Court finds that the trial court as well as the first appellate court have grossly erred in presuming that the property in dispute had been purchased by JR in the year 1953 from joint family fund and that members of the HUF were tenants in common. The judgments impugned are based upon misreading of the pleadings and lack of proper scrutiny of evidence on record as well as misinterpretation of the law applicable to the concept of jointness of a Hindu family and acquisition of property. Findings that even if the property was recorded in the name of one person only, the other members would be deemed to have coparcenary rights intact or that these rights could be conferred on individuals who were or could be deemed to be actual tillers of the soil are not according to the facts and the law governing the case. The Courts have cursorily decided the issues of jointness vis-a-vis bar under Section 49 of the U.P. C.H. Act without meticulously examining the pleadings and oral and documentary evidence on record.
Conclusion
49. The conclusion drawn, therefore, is that the suit is held to be barred by Section 49 of the U.P Consolidation of Holdings Act, 1953, not barred by either Section 34 of the Specific Relief Act, 1963 or Section 331 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 and it is also held that plaintiffs have failed to prove their plaint case of joint nucleus or creation/existence of HUF and purchase of property as such. The questions framed are accordingly answered.
Civil Misc. Impleadment Application No.44 of 2024
50. By means of this application, prayer to implead four persons as respondents No.18, 19, 20 and 21 has been made with a further prayer that they be heard in the instant second appeal. This application is dated 25.08.2024 and, for the first time, it came up before the Court as a bare application without record on 31.08.2024, on which date, the Court directed the office to list the application with previous papers. It was thus placed on record. However, the Court finds that final hearing in this appeal had commenced on 21.08.2024, on which date, substantial arguments on behalf of appellants were also heard and they stood concluded on 28.08.2024, whereafter arguments on behalf of contesting respondents were heard on 10.09.2024 that stood concluded on 17.09.2024. Thereafter, on 30.09.2024, arguments from the appellants' side, in rejoinder, were heard and, then, arguments on behalf of contesting respondents were again heard and both the sides completed their all arguments on 03.10.2024. Further judgment was reserved on 22.11.2024 when arguments in connected Second Appeal No.694 of 2001 were concluded. No arguments were advanced on any date in support of the present impleadment application. The application is, therefore, rejected.
RE- Civil Misc. Application No.271217 of 2007 (under Section 144 CPC) RE- Civil Misc. Application No.76134 of 2008 (under Order XXXIX Rule 2-A CPC).
51. These two applications raise grievance arising out of appellant's dispossession from the property in dispute pending instant appeal.
52. By means of application u/s 144 CPC, prayer to direct restitution of possession of the applicants/appellants over plot Nos.1035 area 3.563 hectares and 1049 area 5.817 hectares (total area 9.380 hectares) situated in revenue Village Ghat, Pargana, Tehsil and District Meerut which formed subject matter of original suit, civil appeal as well as instant second appeal, has been made. The application is supported by affidavit of appellant No.1 describing the history of litigation. The averments made in the affidavit and the supporting documents reveal that the names of the appellants were recorded in CH Form 45 concerning new Gata No.1035 and 1049 (old No.110). An interim order was passed by this Court in the instant second appeal on 18.04.2000 staying execution proceedings and another order of status quo was passed on 10.04.2003, however, the second appeal was dismissed for want on prosecution on 06.09.2007, on which date, the stay order was also vacated but, soon thereafter, the order of dismissal was recalled on 27.09.2007, the appeal was restored and interim order was revived.
53. The information regarding restoration of appeal of the second appeal on 27.09.2007 and revival of the interim order was served through affidavit of appellant No.1 upon the District Magistrate, Meerut at 02:37 PM, the same day. The District Magistrate marked the affidavit to Additional District Magistrate (E)/S.D.M. Meerut. The affidavit contained a prayer that the proceedings for transfer of possession being carried out on administrative side pursuant to order dated 06.09.2007 dismissing the appeal for want of prosecution be stayed as the appeal had been restored and order of status quo had been revived by the High Court. The Naib Tehsildar (IV), Meerut, however, submitted a report pursuant to the District Magistrate's letter dated 24.09.2007 and further orders of District Magistrate, Sub Divisional Magistrate and Tehsildar that the possession over the aforesaid property had been delivered to Subhash Chand and others, i.e. the respondents, in the presence of police force.
54. The affidavit supporting application under Order XXXIX Rule 2-A CPC and the documents attached thereto reveal that on 27.09.2007, the police force moved from the police station concerned pursuant to letter No.294/7-DLRC/07 dated 24.09.2007 submitted by Lekhpal and Tehsildar at police station at about 02:55 PM, by which time, affidavit informing restoration of the second appeal as well as revival of an interim order of status quo had been served in the office of the District Magistrate as aforesaid. At 07:00 PM, the same day, the police force came back from the spot, however, by that time, the appellants had been dispossessed through police force with delivery of possession to the respondents. There is on record a report signed by revenue officials on different dates of March 2008 to the effect that appellants were in possession over the property prior to 06.09.2007, on which date the instant second appeal was dismissed for want of prosecution and on 27.09.2007, possession was delivered to Subhash Chand and others on account of vacation of the said order. The report further states that a prayer was made by appellants to redeliver possession to them on account of revival of the interim order, however, since matter for change of possession was pending before the High Court, no proceedings at Tehsil level were warranted. The revenue officials continued to report to one or the other officer in the departmental hierarchy, however, there is neither any order nor any report on record, by which, possession taken from the appellants through police force was redelivered to them. Contrarily, it is established that despite full knowledge to all the administrative and revenue officer, from top to bottom in the district, about restoration of the instant second appeal and revival of the interim order of status quo, they deliberately delivered possession to the respondents and very cleverly left the question of redelivery of possession up to the High Court. This happened in 2007-2008 and, since then, the appellants are out of possession and their applications under Section 144 CPC and under Order XXXIX Rule 2-A CPC have yet not been decided.
55. The Court expresses its serious anguish on the mode and manner in which the revenue officers and administrative machinery, by adopting all coercive measures and taking recourse to high-handedness, committed abuse of their position and flouted the order passed by this Court. They committed two sins; one, by forcibly dispossessing the appellant on administrative side with the aid of police force without intervention of the executing court and, secondly, they refused to redeliver possession to the appellants by preparing and submitting one or the other report, taking aid of pendency of the second appeal before this Court. The Court must emphasize here that the suit giving rise to the instant second appeal was a simplicitor suit for cancellation of the disputed sale deed. As noted in this judgment, prayer to amend the plaint at first appellate stage attempting to add a relief for delivery of possession was rejected in the year 1998, which order attained finality. Therefore, even if, the decree impugned in this second appeal was put into execution or might have been put into execution, it could be executed only to the extent of making an endorsement in the record kept in the office of the Sub-Registrar as regards cancellation of the disputed sale deed and for no other purpose. The decree could not be executed for delivery of possession as there was no such decree in existence. It is for this reason that the respondents moved the giant wheels of administrative and police machinery and by practically teasing and brushing aside the executing court as well as this Court and making mockery of established procedure of law, they succeeded in forcibly dispossessing the appellants. In the memo of delivery of possession, no reference of any order passed by the executing court finds place. This act of the respondents in collusion with the administrative and police officials leads this Court to exercise its inherent powers under section 151 C.P.C. also to impose heavy damages upon the respondents on account of they being in unauthorized possession over the aforesaid land in dispute for a period of about more than seventeen (17) years. Considering the fact that the appellants were dispossessed from more than 90000 sq. mtrs. of land by all illegal means, this Court assesses the damages as Rs.10,00,000/- (Rs. Ten lacs).
56. This Court may observe that section 144 CPC would apply if the decree is varied or reversed in any appeal, revision or any other proceedings. It was held by Supreme Court in Mrs. Kavita Trehan and another vs. Balsara Hygiene Products Ltd. (1994) 5 SCC 380 that: "Section 144 CPC incorporates only a part of the general law of restitution. It is not exhaustive." (See Gangadhar v. Raghubar Dayal [AIR 1975 ALL 102 (FB): 1974 ALL LJ 751] and State Government of A.P. v. Manickchand Jeevraj & Co. [AIR 1973 AP 27;(1972) 2 Andh LT 23]. The jurisdiction to make restitution is inherent in every Court and will be exercised whenever the justice of the case demands.
57. Since, this Court is reversing the decree impugned herein holding that cancellation of sale deed was not according to law and the appellants having been dispossessed on that basis, the application under Section 144 CPC stands allowed and it is hereby directed that the executing court shall ensure hassle-free delivery of possession of the property covered by the disputed sale deed to the appellants within 2 months henceforth and, for that purpose, if required, it may use such force as the law permits. It also directs the respondents to deposit damages to the tune of Rs.10,00,000/- (Rs. Ten lacs) before the executing court within two months, failing which the said sum shall be recovered by the executing court from the respondents by all legally permissible means as if it is a money decree within a period of next six months and not later than that in any case. For these purposes, a Misc. Case may also be registered before the civil court.
58. As regards application under Order XXXIX Rule 2-A CPC, in view of the order passed on application under section 144 C.P.C. granting substantial relief to the appellants, the Court does not feel it appropriate to proceed for adjudicating the issue as regards awarding or not awarding punishment to the alleged violators of the interim order or the proceedings of this appeal. Necessary consequences arising from final order would confer substantive rights upon parties qua the property in dispute. The application under Order XXXIX Rule 2-A CPC, accordingly stands disposed off.
59. The second appeal succeeds and stands ALLOWED with above observations and directions. The impugned judgment and order dated 19.12.1979 pronounced and passed by learned Munsif, Meerut Court No.12 in Original Suit No.625 of 1971 (Subhash Chand and others vs. Jetha Nand and others) as well as judgment and order dated 25.03.2000 pronounced and passed by Vth Additional District Judge, Meerut in Civil Appeal No.641 of 1979 (Shiv Charan Dass and others vs. Subhas Chand and others) and the decree drawn on that basis are hereby SET ASIDE. The Original suit stands DISMISSED.
60. A copy of this judgment may also be filed by the appellants before the Sub-Registrar concerned in order to make necessary endorsements in the concerned records in terms of Section 31 of the Specific Relief Act, 1963.
Order Date:-11.12.2024 Jyotsana (Kshitij Shailendra, J.)