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1976 DIGILAW 242 (ALL)

Safi v. Wajifan

1976-04-04

H.N.AGARWAL

body1976
JUDGMENT H.N. Agarwal, Member. - This is a second appeal against the judgment and decree of Sri B.N. Singh, Additional Commissioner, Faizabad Division in Appeal No. 2207 of 1973 dated 20-12-1974 modifying the judgment and order of the Judicial Officer Sadar, Sultanpur dated 18-5-73 in Revenue Suit No. 364 of 1972 under Section 229B, U.P.Z.A. and L.R. Act. 2. I have heard the learned counsels for the parties and have gone through the record. 3. Srimati Wajifan, respondent No. 1, had filed a suit for declaration of her sirdari rights in certain plots claiming to be the widow and legal heir of one Munir Ahmed. She also claimed that during consolidation proceedings the name of her husband had been recorded as the tenure-holder of the plots in dispute and Section 49 and 27 of the Consolidation of Holdings Act barred further adjudication of title. The trial court decreed her suit. The lower appellate court upheld the order of trial court, but added that the suit of the plaintiff was to be decreed both the declaration as well as for possession against the defendants. The contesting defendants Mohammad Safi, Mohammad Taqi and Mohammad Rafi, have now come up in second appeal before this court. 4. The learned counsel for the appellants has contended that the trial court having decreed the suit only on relief of declaration and not for possession, its judgment could not be varied, reversed or modified in appeal by the defendant-appellants. He has further contended that as the lower appellate court had recorded a finding that the plaintiff was out of possession on the date when the present suit was filed, it could not disturb the possession of the appellants now. 5. A perusal of the original plaint shows that the plaintiff has prayed for a decree for declaration of her rights over the land in dispute and also for a decree of possession if she was not found to be in possession over the whole or a part of the land in dispute. However, the suit was filed only under Section 220-B and not under Section 209 of the U.P.Z.A. and L.R. Act. The defendant - appellants had contested the suit not on the ground that the plaintiff was not in possession, but on the ground that she was not the window of Munir Ahmed and had not rights in the land in dispute. The defendant - appellants had contested the suit not on the ground that the plaintiff was not in possession, but on the ground that she was not the window of Munir Ahmed and had not rights in the land in dispute. Based on the pleadings of the parties, the trial court had only framed the following issues:- 1. Whether the plaintiff is sirdar of the land in suit as alleged? 2. Whether the plaintiff is widow of Munir Ahmed? 3. Whether the contesting defendant is entitled to get special costs? Since the question of possession was not in issue before the trial court, it recorded no finding on the question of possession and only decreed the plaintiff's suit for a declaration that she was the sirdar of the land in suit. Since the plaintiff did not file an appeal against the trail court's order, the lower appellant court could not grant the relief of possession to the plaintiff on the basis of the appeal filed by the defendant-appellant. 6. Coming now to the finding of the appellate court has held that the defendant-appellants have been in possession of the land in suit after the order of mutation passed by the mutation court. This order was passed by the Tahsildar, Musafirkhana in mutation case No. 118 on 20-4-72. An order is mutation proceedings is not binging in a declaratory suit. There is, therefore, no force in the plea of the learned counsel that the trial court in the preset case could not give a finding contrary to the decision in the mutation case. However, as seen above, since the trail court did not pass a decree of possession in favour of the plaintiff, and no appeal was filed by the plaintiff against that order, the lower appellate court should not have granted any relief regarding possession. 7. The learned counsel for the appellants has also argued that the will relied upon by the lower appellate court in favour of the plaintiff-respondent could not be read in evidence and was inadmissible and the finding based on the will was illegal. The learned counsel for the respondent has, on the others hand, argued that the will was a registered document, and that as the original will was in possession of the defendant-appellants, the plaintiff-respondent had filed certified occupy of the will which is admissible in evidence in circumstances of the case. The learned counsel for the respondent has, on the others hand, argued that the will was a registered document, and that as the original will was in possession of the defendant-appellants, the plaintiff-respondent had filed certified occupy of the will which is admissible in evidence in circumstances of the case. The contention of learned counsel for the respondent must be upheld. Where primary evidence of a document is not forthcoming, secondary evidence can be given, therefore, the certified copy of the registered will, which has been duly certified by the Sub Registrar concerned, has rightly been admitted in evidence. The lower appellant court committed no illegality in recording its finding on the basis of the will. 8. The learned counsel for the appellants has further argued that in the mutation case the objection of the appellants was that the plaintiff-respondent was the maid servant of Munir Ahmed and this could not be read to mean that the appellants admitted her to be the window of Munir Ahmed. A copy of the application jointly filed by the plaintiff-respondent Srimati Wajifan and the defendant-appellants, Mohammad Safi, Mohammad Taqi and Mohammad Rafi before the mutation court on 23-10-1971 in on record. In this application Srimati Wajifan has been described as the widow of Munir Ahmed Khan. Further, the finding of the courts below that Srimari Wajifan was the widow of the Munir Ahmed is not based on this admission of the appellants, but on this admission of the appellants, but on the other independent evidence, which has been fully discussed in the judgments. I see no reason to disagree with the finding of the courts below that the plaintiff-respondent is in fact the widow of Munir Ahmed. 9. The learned counsel for the appellants has also argued that the statement of the plaintiff-respondent was self-contradictory. I have perused the statement of Srimati Wajifan before the trail court. The learned counsel for the appellants could not point out any instance of self-contradiction in her statement. On the other hand, this lady has in her statement given detailed facts about her marriage with Munir Ahmed indicating the name of the Qazi, the names of the witnesses present and the place of marriage. 10. The learned counsel for the appellants could not point out any instance of self-contradiction in her statement. On the other hand, this lady has in her statement given detailed facts about her marriage with Munir Ahmed indicating the name of the Qazi, the names of the witnesses present and the place of marriage. 10. The result be that I would uphold the concurrent findings of the courts below that the plaintiff-respondent was the widow of Munir Ahmed and was entitled to the declaration of sirdari rights in land is suit. The trail court rightly decreed the suit for declaration of sirdari rights. The lower appellate court has erred on modifying the trial court's order so as to grant the relief of possession as well. I allow the second appeal to the extent that the modification order by the lower appellant court be quashed. The trial court's order is restored.