Mowasi v. Board of Revenue, U. P. , Allahabad — 1965 DIGILAW 269 (ALL)

ORDER S.N. Singh, J. - This petition under Article 226 of the constitution arises out of proceedings u/s 59/189 of the U.P. Tenancy Act. The Petitioners claimed to be the tenants in possession filed the instant suit for a declaration about the tenancy right and in the alternative claimed possession if they were found not to be in possession. 2. This suit of the Plaintiffs was not contested by the land holder and the Gaon Sabha. They admitted the claim of the Plaintiffs. The other Defendants contested the suit on the ground that Plaintiffs were not the tenants of the plot in suit and that the Defendants themselves were the tenants thereof. The trial court accepted the Plaintiffs case but finding that Defendants were in possession decreed the suit for declaration of tenancy rights as well as the ejectment of the Defendants contesting. 3. The contesting Defendants preferred an appeal and the Additional Commissioner allowed the appeal and dismissed the suit on the preliminary ground that the lease the basis of the claim of the Plaintiffs required registration and the attestation in lieu of registration was neither properly done nor the same was done within four months of the execution of the document as provided by law. This decision of the Additional Commissioner was confirmed in appeal by the Board of Revenue, opposite party No. 1, by its order dated 16.7.1959. The Petitioners filed an application for review which was also summarily rejected by the Board by its order dated 14.12.1959 hence the present writ petition challenging the decisions of the opposite parties 1 and 2 as patently wrong on the face of the record has been filed in this Court. 4. I have heard learned Counsel for the parties in support of their respective contentions. The learned Counsel for the Petitioners submitted that opposite parties 1 and 2 have erred in law in holding that attestation in lieu of registration was done beyond time. It was urged that the complete document of lease came in existence only on 10.5.1950, as such the attestation done on 2.7.1950 was writ within time. The learned Counsel for the Appellants submitted that it was open to the parties by agreement to change the date of the execution and for this purpose he re(sic) on Gopal Chandra Chakraburtty and Anr. v. Surendra Kumar Roy Chaudhry and Anr. (1) (16 CWN 585). 5. The learned Counsel for the Appellants submitted that it was open to the parties by agreement to change the date of the execution and for this purpose he re(sic) on Gopal Chandra Chakraburtty and Anr. v. Surendra Kumar Roy Chaudhry and Anr. (1) (16 CWN 585). 5. It was further urged that apart from the lease which have been held inadmissible in evidence by the Addl. Commissioner and the Board there were other evidence on record which proved their tenancy right. Opposite parties Nos. 1 and 2 committed an error apparent on the face of the record in ignoring those documents. As against this the learned Counsel for the Respondents submitted that the document dated 15.12.1949 which was the basis of the claim of the Petitioners was presented for attestation beyond time and his contention was that, by merely adding certain terms in document on a subsequent date the date of execution could not be changed and the attestation made beyond four months was clearly invalid and conferred no right on the persons in whose favour it was executed. In support of this submission of his he relied on Maung Aung Din and Anr. v. Maung Aung Myint and Ors. (2) (AIR 1933 Rang. (5) and U. Aung Din and Anr. v. Maung Aung Myint and Ors. (3) (AIR 1933 Rang. 194) and AIR 1939 292 (Lahore) . It was also submitted that attestation itself was not properly done. The learned Counsel further submitted that in any view of the matter the question involved in this writ petition being highly disputed and debateable writ of certiorari could not be issued for there was no mistake apparent on the face of the record and for this proposition he relied on Nagendra Nath Bora and Another Vs. The Commissioner of Hills Division and Appeals, Assam and Others, AIR 1958 SC 398 and Satyanarayan Laxminarayan Hegde and Others Vs. Millikarjun Bhavanappa Tirumale, AIR 1960 SC 137 . 6. Apart from these arguments on merits the learned Counsel for the Respondents urged that this petition should be dismissed on the ground of latches. According to him the Board having decided the case on 16.7.1959 and the present writ petition having been tiled on 18.5.1960 was sufficiently delayed. Millikarjun Bhavanappa Tirumale, AIR 1960 SC 137 . 6. Apart from these arguments on merits the learned Counsel for the Respondents urged that this petition should be dismissed on the ground of latches. According to him the Board having decided the case on 16.7.1959 and the present writ petition having been tiled on 18.5.1960 was sufficiently delayed. He urged that the time taken in disposing of the review petition should not be excluded and that in such a case the only question for consideration by this Court is as to whether the review petition was rightly rejected or not. For this parpose he placed reliance on Nanhoo Mal v. Moleo and Ors. (7) ( 1963 AWR 498 ). If the time taken in disposing of the review petition is excluded the question of latches does not arise nor has it been argued on behalf of the Respondents that even then this petition is delayed. 7. I have considered the respective contentions of the learned Counsel for the parties and I am of opinion that this petition should succeed. 8. In order to appreciate the controversy it is necessary to give brief facts of the case. Village Anuppur was under the Superintendence of Court of Wards, Etawah. The Special Manager, Court of Wards purported to execute a lease in favour of the Petitioners Nos. 1 to 4 on 15.12.1949. Thereafter it appears that certain terms were fur-ther added in the document by the agreement of the parties to the document and the document in the present form complete in all respects came into existence on 10.5.1950. This document was presented before the Qanungo for attestation in lieu of registration on 2.7.1950 and the attestation was done. Thereafter it appears that the Petitioners Nos. 1 to 4 who had been admitted to tenancy by the Special Manager, Court of Wards in agreement with other Petitioners wanted to get the other Petitioners admitted as cotenants. The land holder Court of Wards agreed to the admission of the other Petitioners as cotenants with the result that Petitioners Nos. 5 to 15 along with Petitioners Nos. 1 to 4 were accepted as cotenants by registered document dated 6.11.1950. 9. The land holder Court of Wards agreed to the admission of the other Petitioners as cotenants with the result that Petitioners Nos. 5 to 15 along with Petitioners Nos. 1 to 4 were accepted as cotenants by registered document dated 6.11.1950. 9. It is after the execution of the registered deed referred to above that the present suit originally was filed by Petitioners Mowasi, Prakash Chandra, Kallu and Champat for the declaration of their tenancy rights making other Petitioners as Defendants but later on the other Petitioners were also transposed from the array of Defendants to that of Plaintiffs. The Petitioners in support of their claim of tenancy relied on the two documents mentioned above and further filed extract of Khasra for the year 1357F and irrigation slips for the years 1358F and 1359F and rent receipts for the years 1357F and 1358F and in addition examined the Ziledar, Court of Wards who exprestly deposed about the admission of the Plaintiffs as tenants. 10. Having given the necessary facts I purpose to deal with the respective contentions of the parties. A suit u/s 59 of the U.P. Tenancy Act is principally filed against the land holder and the person claiming through the land holder. In this case the land holder has clearly admitted the Plaintiffs to be the tenants thereof. The Plaintiffs in support of their claim of tenancy have relied on the lease dated 15.12. 1949 which was completed on 10.5.1950. The question arises as to what is the effect of this subsequent addition of certain terms in the original lease dated 15.12.1949 and the subsequent attestation on 2.7.1950. It was open to the parties to the document dated 15.12. 1949 to execute a fresh document on 10.5.1950 and so long as they were in agreement this could have been done and if by agreement of the parties the complete document came into existence in this form on 10.5.1950 this latter date should be deemed to be the date of execution. The difficulty could arise only if the parties were not agreed and then the document which was originally executed on 15th December 1949 could not be registered or attested beyond four months. The cases relied on by the Respondents in this respect are cases wherein the executant himself was challenging the registration. The case relied on by the Petitioner's counsel appears to be more in point. The cases relied on by the Respondents in this respect are cases wherein the executant himself was challenging the registration. The case relied on by the Petitioner's counsel appears to be more in point. In my opinion the attestation in the circumstances of the present case should be held to be within time. Apart from this even if it is held that attestation having been made beyond time the document dated 15th December 1949 did not confer any right on the Petitioners Nos. 1 to 4, in my opinion the subsequent registered document dated 6th November 1960 by which the Zamindar had clearly admitted the admission of the Petitioners Nos. 1 to 4 as the tenants itself was sufficient to prove the admission of Petitioners Nos. 1 to 4 as the tenants of the plots in suit. Moreover, the Petitioners had filed revenue extracts and rent receipts, in proof of their tenancy rights. Opposite parties Nos. 1 and 2 committed error apparent on the face of the re-cord in ignoring those documents in proof of the Petitioner's tenancy rights. A tenancy comes into existence only by admission of the Zamindar and in this case this admission of the Zamindar is well proved not merely by the statement of the Zamindar but also by the production of rent receipts and the cooption deed referred to above. Even if there was' no registered document by virtue of Section 55 of the U.P. Tenancy Act the tenant could have sued the Zamindar for executing a document in terms of the settlement. Therefore proof of admission only is necessary in order to create tenancy in favour of a person which is amply proved in this case. 11. The above being my view it cannot be said that the point involved in this case is a debateable one in far I am concerned I am clear in my mind that Plaintiff's tenancy in this case was clearly proved. Opposite parties Nos. 1 and 2 have committed mistake apparent on the. face of the record in not holding the Plaintiffs tenancy as proved. In this view of the matter Nagendra Nath Bora and Anr. v. Commissioner of Hills Division (5) and Satyanarayan Laxminarayan Hesde and Ors. v. Mallikarjun Bhavanapor Tirumale (6) cited by the learned Counsel for the Respondents are not applicable. 12. face of the record in not holding the Plaintiffs tenancy as proved. In this view of the matter Nagendra Nath Bora and Anr. v. Commissioner of Hills Division (5) and Satyanarayan Laxminarayan Hesde and Ors. v. Mallikarjun Bhavanapor Tirumale (6) cited by the learned Counsel for the Respondents are not applicable. 12. Now coming to the question of latches as urged by the learned co-unsel for the Respondents it has already been observed that if it is found that the time taken in review should be excluded, there is no question of latches. So the only question is whether the Petitioners were justified in filing the application for review as they did in this case. In my opinion there was sufficient justification for the filing of the review the judgment in second appeal would show that the learned Member had not considered the effect of the irrigation slips and the rent receipts though the Petitioners had brought it to the notice of the learned Member in sup-port of their claim of tenancy. The Board wrongly observed. "There is no other evidence on record to prove the tenancy in favour of the Plaintiffs. They legitimately thought that since this matter had escaped the notice of the Board they might succeed if those documents were again specificity brought to the notice of the Board The Board again without consider sing those documents and their effect, sum marily rejected the review petition. In my opinion the rejection of the review application by the Board summarily was wholly unjustified without dealing with the point raised in the review petition. Even applying the ratio decidendi of the authority cited by the learned Counsel for the Respondents I am of opinion that the decision of the Beard on review was clearly erroneous and the learned Member has not at all applied his mind to the points made out in the review application, In short the Petitioners were justified in filing the application in review and the time taken in the proceedings for review should be excluded in considering the question of latches in the circumstances of the present case. This is a fit case in which delay, if any, should be over looked and I propose to over look it. 13. In view of what has been said above the Petitioners have succeeded in showing that the orders of opposite parties Nos. This is a fit case in which delay, if any, should be over looked and I propose to over look it. 13. In view of what has been said above the Petitioners have succeeded in showing that the orders of opposite parties Nos. 1 and 2 suffer from mistakes apparent on the face of the record and their decisions deserve to be qua Shed. 14. Accordingly, I allow this writ petition, quash the orders of the Board dated 14th December 1959 and the 16th of July 1959 and the order of the Addl. Commissioner dated 24th July 1956. The Opposite party No. 2 is directed to restore the case to its original number and decide the appeal on merits in accordance with law the Petitioners will get their costs of this Court.