Durga Prasad Singh v. Jagtamba — 1967 DIGILAW 265 (ALL)

ORDER Gangeshwar Prasad, J. - These five appeals arise out of five suits filed by the Plaintiffs-Appellants in the revenue court against different Defendants u/s 209 of the UP ZA and LR Act. The suits and the first appeals preferred against the decrees passed therein by the trial court were disposed of by a common judgment and these second appeals will likewise be disposed of by a common judgment. 2. The admitted facts are that the plots in dispute belonged to one Gopal Singh and after his death they devolved upon his widow Ramuni Kumari. She sold the plots along with some other property to one Bhola Singh in 1898. The Appellants filed suit No. 10 of 1951 in the court of the Civil Judge Varanasi against Gopal Prasad and others, who were successors-in-interest of the original vendee, for cancellation of the sale deed of 1898 and for recovery of possession over the property covered by it. The suit was compromised and a decree in terms of the compromise was passed on 10-1-1956. It was alleged by the Appellants that in execution of the decree obtained by them they took delivery of possession through court on 29-7-1957. On 15-8-1957, according to the Appellants the Defendants took wrongful possession of the plots respectively involved in the suits against them and they also got their names entered in the village records. The Appellants, therefore, prayed that a decree for ejectment be passed against the Defendants. 3. The Defendants denied the claim of the Appellants and contended that they had been in possession of the plots since long and the suits were barred by time. They pleaded that they were subtenants of the plots in dispute prior to the enforcement of the UP ZA and LR Act and thereafter, they became Adhivasis and later acquired the rights of a Sirdar. They further pleaded that they were in cultivatory possession of the plots in dispute during 1359 F. and on that basis too they acquired Adhivasi rights upon the enforcement of the UP Land Reforms (Supplementary) Act and subsequently became Sirdars. The Defendants also contended that they were not bound by the decree in suit No. 10 of 1951 or by the delivery of possession alleged to have been taken in execution of the decree. 4. The Defendants also contended that they were not bound by the decree in suit No. 10 of 1951 or by the delivery of possession alleged to have been taken in execution of the decree. 4. One of the issues framed in the suits by the revenue court was: 'Whether the Plaintiffs are Bhumidhars of the land in suit and are entitled to sue?' This issue was remitted for decision to the Civil Court and the learned Munsif who decided the issue recorded a finding that the Appellants were Bhumidhars of all the suit plots except plot No. 836/1 'subject to Defendants acquiring sirdari rights'. Evidently, what the learned Munsif meant was that the Appellants would be Bhumidhars of those plots if the Defendants are not found to have acquired Sirdari rights and this finding was recorded by him presumably because a finding with respect to Sirdari rights claimed by the Defendants could only be given by the revenue court. On receipt of this finding the revenue court proceeded to hear and decide the suits and ultimately dismissed them, holding that the Defendants have become Sirdars and that the suits were also barred by time. On appeal the learned District Judge upheld the findings of both the civil and the revenue courts and maintained the decrees passed in the suits. The Plaintiffs-Appellants have now come up in appeal to this Court. 5. I he lower appellate court has recorded a clear finding to the effect that the Defendants have been in continuous possession of the disputed plots at least since 1359 Fasli and it was conceded by Sri Ganesh Prasad, Learned Counsel for the Plaintiffs, that if this finding is accepted the suits are barred by time unless the delivery of possession taken by the Appellants on 29-7-1957 is held to have, in law, interrupted the continuity of the Defendants' possession. 6. The finding of the court below regarding the actual possession of the Defendants from at least 1359 Fasli was assailed by the Learned Counsel for the Appellants on one ground only. 6. The finding of the court below regarding the actual possession of the Defendants from at least 1359 Fasli was assailed by the Learned Counsel for the Appellants on one ground only. He contended that in recording the said finding the court below relied upon the entries relating to the Defendants' possession in the remarks' column of the Khasra for 1362 Fasli, although the entries are inadmissible in evidence by reason of the fact that the provisions of paragraph A-80 and A 81 of the Land Records Manual had not been complied with. Reference in this connection was made to paragraph A-102C(3) of the Land Records Manual which says that if the Lekhpal fails to comply with any of the provisions contained in paragraphs A 80 and A-81 the entry in the remarks column of the Khasra will not be deemed to have been made in the discharge of his official duty. The Learned Counsel for the Defendants did not dispute that in making the entries in question the Lekhpal did not comply with the requirements of paragraphs A-80 and A 81 of the Land Records Manual. He, however, urged that since paragraph A-102C(3) was introduced into the Manual subsequent to the preparation of the village records for 1362 Fasli the entries cannot be discarded as inadmissible in evidence. In the circumstances of this case it is not necessary to decide whether the entries are inadmissible in evidence and have to be excluded from consideration altogether. It cannot be denied that the probative value of the entries, assuming that they are admissible, is considerably impaired, if not altogether taken away, on account of the non fulfilment of the requirements of paragraphs A-80 and A-81. The provisions made in the said paragraphs were intended to serve as checks upon the making of an incorrect entry and to afford an opportunity to the persons affected by an entry to have it corrected if the entry was really incorrect. If these salutary checks were disregarded in the making of an entry, such an entry, standing by itself, cannot safely be made the basis of a finding. The elimination of the entries in question from consideration does not, however, help the Appellants and it leaves the finding of the lower appellate court unaffected. If these salutary checks were disregarded in the making of an entry, such an entry, standing by itself, cannot safely be made the basis of a finding. The elimination of the entries in question from consideration does not, however, help the Appellants and it leaves the finding of the lower appellate court unaffected. The learned District Judge has in his judgment expressly said that even if the Khasra for 1362 Fasli is ignored there is reliable oral evidence on behalf of the Defendants to prove their continuous possession. The finding has, therefore, to be accepted and the appeals have to be decided on the footing that the Defendants were in possession in 1359 Fasli and have continued in possession at least since then. 7. It is not disputed by the Learned Counsel for the Appellants that if the above finding is accepted and the delivery of possession taken on 29-7-1957 did not interrupt the continuity of the Defendants' possession, the suits which have given rise to these appeals are barred by time. The effect of the delivery of possession is, therefore, the main point to be considered. On behalf of the Appellants it has been argued that since the Defendants claim to hold from the persons against whom the decree in suit No. 10 of 1951 was obtained, proceedings for delivery of possession taken in execution of the decree were effective also against them and the Appellants will be deemed to have taken possession from them as well. In examining the correctness of the above argument it is necessary to first determine the status of the Defendants in respect of the plots in dispute. 8. In their written statements the Defendants pleaded that they were subtenants but they did not specify whose subtenants they were. Shambhu Singh Defendant No. 2, however, stated in his deposition that the Defendants had taken the plots on rent from Kishun Singh and Jwala Singh and it was admitted before me by the counsel for the parties that said Kishun Singh and Jwala Singh were Defendants in suit No. 10 of 1951. The plots in suit were admittedly Sir and Khudkasht and it is, therefore, obvious that the Defendants could not in law be sub-tenants. The plots in suit were admittedly Sir and Khudkasht and it is, therefore, obvious that the Defendants could not in law be sub-tenants. If a plot was Sir the tenant thereof became a non occupancy tenant (although in common parlance a tenant of Sir was described as a subtenant) and if it was Khudkasht the tenant thereof acquired the status of a hereditary tenant under the UP Tenancy Act of 1939. In either case, therefore, the Defendants on their case, were tenants-in-chief before the enforcement of the UPZA and LR Act. If they held from Kishun Singh and Jwala Singh they could not be mere subtenants. 9. Now, it cannot be disputed that a decree for possession passed against a person who was in unlawful possession of a land as a landlord could not affect the rights of those who claimed to hold as hereditary or non-occupancy tenants. It necessarily follows that delivery of possession taken against such a person could not extinguish the right of his tenants or have in law the effect of terminating their possession. Reference in this connection may be made to the decision of their Lordships of the Supreme Court in Shri Jagadguru Gurushiddaswami Guru Gangadharswami Murusavirmath v. The Dakshina Maharasthra Digambar Jain Sabha AIR 1953 Supreme Court 514. Reference in this connection may be made to the decision of their Lordships of the Supreme Court in Shri Jagadguru Gurushiddaswami Guru Gangadharswami Murusavirmath v. The Dakshina Maharasthra Digambar Jain Sabha AIR 1953 Supreme Court 514. Their Lordships observed that "it may be assumed as a proposition of law that a sub-lessee would be bound by a decree for possession obtained by the lessor against the lessee no matter whether the sub-lease was created before or after the suit, provided the eviction is based on a ground which determines the sub lease;" but this proposition was held by their Lordships to be inapplicable to the facts of the care before them because it was 'not a suit by a landlord against his tenant' but 'a suit by the holder or manager of a Math to recover possession of Math property which was improperly alienated by his predecessors on the ground that the Defendants became a trespasser as soon as the previous Mahant died and the Plaintiff was entitled to recover possession on proof of his title: suit No. 10 of 1951 which resulted in the deli, very of possession in question here was a suit for the cancellation of a sale deed and for recovery of possession from persons who were said to be in unlawful possession and it, therefore, resembled in its essential nature the suit with which their Lordships had to deal in the above mentioned decision. The position, consequently, is that if the Defendants were tenants of the judgment debtors the delivery of possession did not operate as an extinction of their rights nor did it have the effect of disturbing the continuity of their possession. 10. The delivery of possession was all the more ineffective against the Defendants if they were trespassers or did not hold the land from the persons against whom the decree in suit No. 10 of 1951 was passed and the delivery of possession was taken. It is well established that a person who does not hold through the judgment-debtor is not bound by the decree for possession passed against the judgment-debtor and deli-very of possession taken against the judgment debtor cannot have the effect of breaking the continuity of such persons actual possession. In either view of the matter, therefore, the suits of the Plaintiff-Appellants are barred by time and they have been rightly dismissed. In either view of the matter, therefore, the suits of the Plaintiff-Appellants are barred by time and they have been rightly dismissed. The other pleas raised by the Defendants need not be decided. 11. It has lo be noted that in the judgment of the trial court the plot involved in suit No. 150 of 1957 has been shown as 882 although the correct number of the plot is 482. 12. The appeals fail and they are accordingly dismissed. The parties shall, however, bear their own costs in this Court.