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1955 DIGILAW 41 (ALL)

Jagmohan Tewari v. Ram Pher Tewari

1955-02-14

RANDHIR SINGH

body1955
JUDGMENT Randhir Singh, J. - This is a second appeal arising out of a suit for possession of certain plots of land on the allegations that the Plaintiff was the tenant of the plots in dispute and the Defendants were in wrongful possession. 2. It appears that one Nakchhed was the original tenant of the plots in dispute and on his death, the tenancy passed to one Bhagwati. During the life time of Bhagwati a patta was executed by the zamindar in favour of the present Plaintiff. The Plaintiff then filed a suit for the possession of the plots but it was dismissed on the ground that the lease executed by the zamindar in the presence of the tenant holding the land was invalid and could not be given effect to. Bhagwati, however, died shortly after and a second suit was instituted by the Plaintiff on the allegation that Bhagwati having died without an heir, the land reverted to the zamindar and the patta granted by the zamindar earlier in favour of the Plaintiff became good. This second suit was contested by the Defendants on the ground that the Plaintiff was not a tenant and that he was not entitled to eject the Defendants. As a question of tenant's right was involved, an issue for a finding. The revenue court held that the patta did not become good even after the death of Bhagwati and the Plaintiff had not, therefore, become the tenant. On receipt of this finding, the learned Munsif dismissed the suit. The Plaintiff then went up in appeal and the learned Civil Judge, who heard the appeal, came to the conclusion that the lease became a good lease on the death of Bhagwati and as such on the principle of "feeding the estoppel" the Plaintiff became a tenant of the land in dispute. The appeal was allowed and the claim for possession was decreed. The Defendants have now come up in second appeal. 3. At first it was contended that the lower appellate court was not entitled to hold that Bhagwati had died without an heir in the absence of a definite issue on that point. this Court, therefore, framed an issue as follows and referred it for a finding to the trial court: Did Bhagwati leave any heirs entitled to succeed to the tenancy rights inherited by Bhagwati from Nakchhed and is this heir alive? 4. this Court, therefore, framed an issue as follows and referred it for a finding to the trial court: Did Bhagwati leave any heirs entitled to succeed to the tenancy rights inherited by Bhagwati from Nakchhed and is this heir alive? 4. The finding, which has been received from the trial court, is that Bhagwati has left no heir. The finding has, however, been challenged by the Appellants. It is contended that the learned Assistant Collector, who has given the finding, has not appraised the evidence correctly. It appears that some six witnesses were examined on behalf of the Appellants and three on behalf of the Respondent. One Sarjudei was said to be a daughter of Bhagwati and Sarjudei's son was said to be entitled to succeed to the tenancy of Bhagwati. The contention on behalf of the Plaintiff-Respondent was that this Srimati Sarjudei was the daughter of Jagmohan and not of Bhagwati. I have been taken through the evidence produced before the learned Assistant Collector and it appears to me that the view taken by him was correct. Of the six witnesses examined on behalf of the Appellants, three happened to be closely interested in Sarjudei and the evidence of the other three witnesses was also not convincing. The learned Assistant Collector had the advantage of hearing the evidence and his appraisal of the value of the oral evidence should be taken as correct unless there are any good reasons for rejecting it. No such reasons have been shown in the present case and I, therefore, accept the finding arrived at on the issue remitted to the trial court. The result is that Bhagwati died without leaving an heir to succeed to his tenancy and as such the land reverted to the zamindar. 5. The second point, which arises for determination is, if the lease, which had been executed by the Ajodhia Estate in favour of the Plaintiff in the life time of Bhagwati, became good on his death. The lease was duly attested before the revenue authority and there is an endorsement to that effect. An attempt has been made to show that the attestation, which amounted to registration, was not a valid attestation inasmuch as the presentation was not proper. The lease was duly attested before the revenue authority and there is an endorsement to that effect. An attempt has been made to show that the attestation, which amounted to registration, was not a valid attestation inasmuch as the presentation was not proper. This argument was advanced before the lower appellate court also but it was rejected on the ground that it involved a question of fact and could not, therefore, be allowed to be raised at that stage. In paragraph 9(b) of the written statement all that the Defendants pleaded was that the patta was not registered or attested. It is no where alleged that the person, who presented it for registration, was not duly authorised. If the Defendants had raised such a plea it would have been open to the Plaintiff to produce oral or documentary evidence in support of the contention that the person, who presented the document for registration, had been duly authorised. When the document was accepted for registration, it would be presumed that the person who presented it, was duly authorised and the presumption raised u/s 114 of the Indian Evidence Act, which has been made applicable to the present case by the court below, would clearly apply. 6. As regards the question of "feeding the estoppel", there can be no doubt that the lease would become valid on the death of Bhagwati if the presence of Bhagwati was the only obstruction to the validity of the lease. The learned Assistant Collector refused to recognise the Plaintiff as a tenant simply because the lease was executed at a time when Bhagwati was alive. No contract of tenancy between the Defendants and the zamindar had been established which clearly goes to show that no body else was admitted to the tenancy of the land after the death of Bhagwati by the zamindar. The patta executed by the zamindar in favour of the Plaintiff, therefore became good on the death of Bhagwati and the Plaintiff became the tenant of the land in dispute after the death of Bhagwati who has died without an heir entitled to succeed to the tenancy. The view taken by the lower court is, therefore correct. 7. No other point arises for determination. 8. The appeal is dismissed with costs to the contesting Respondent.