Ragho Saran v. Bindeshwari — 1976 DIGILAW 415 (ALL)

JUDGMENT S.S. Ahmed, Member. - This is a defendant's second appeal (No. 86) and two plaintiffs' second appeals (98 and 99) arising out of the order of Additional Commissioner, Allahabad Division, dated No. 14-10-70, whereby he dismissed appeal no. 569, filed by Bindeshwari Prasad against Raghu Saran and partly allowed and partly dismissed appeal no. 613 filed by Raghu Saran against Bindeshwari, against the judgment and decree dated 16-3-70, passed by S.D.O. Meja, district Allahabad, in a case u/s 229-B/176 of the U.P.Z.A. and L.R. Act. 2. The facts of the case, which are more or less admitted, are, briefly, that Bhagwandin and Bindeshwari filed a suit for declaration and partition. Setting up the following pedigree: They pleaded that the land in suit was acquired by their common ancestor Bhola and that Raghu Saran, defendant no. 1, was the tenant of the land in suit and had half share of the holding, the other half being the tenancy of the plaintiffs, that when a plaintiff obtained an extract from the khatauni, they came to know that the name of plaintiff no.1 has been struck off from the khatauni and hence this suit for declaration, that the plaintiffs and defendant no. 1 were co-sharers to the extent of each and also for partition. During the pendency of suit Bhagwandin, plaintiff no. 1 died and his son Bindeshwari Prasad continued with the suit. The defendant No. 1 (Raghusaran) contested the suit on the grounds that Bindeshwari had no share in the land in suit, that he was not in possession and had never been in possession for the last 20 years, that Bhagwandin had kept a woman who was already heavy with the child and this child when born, was known as Bindeshwari. According to Raghu Saran, Bindeshwari was not the real son of Bhagwandin who was not entitle to succeed to the plaintiff no. 1. It was also pleaded the in case the plaintiffs had any right, they had completely lost it. 3. The suit was decreed in respect of plot nos. 191, 259/2, 306/2, 47, 73 and 293 and it was declared that the share of the plaintiffs in respect of these plots was 1/2. However, the suit was dismissed with respect to plots nos. 72, 271, 290 194, 289, 286. Aggrieved by this order, the plaintiff filed an appeal (no. 3. The suit was decreed in respect of plot nos. 191, 259/2, 306/2, 47, 73 and 293 and it was declared that the share of the plaintiffs in respect of these plots was 1/2. However, the suit was dismissed with respect to plots nos. 72, 271, 290 194, 289, 286. Aggrieved by this order, the plaintiff filed an appeal (no. 569), before the Additional commissioner, with respect to plots for which the suit was dismissed. The defendant also file an appeal (no. 618) with respect to plots for which the suit was decreed. Since both the appeals arose from the same judgement, the Additional Commissioner heard and decided them together. He dismissed appeal no. 569 while allowed appeal no. 613, in respect of plots nos. 47, 73 and 293 only and dismissed it with respect to the rest of the plots. This order of the Additional Commissioner date 14-10-70 deciding the two appeals, has given rise to the present three appeal,in which the parties, the facts and the land in suit are the same. Hence the three appeals which have arisen out of the Additional Commissioner's impugned order are being taken up and decided together. A careful perusal of the judgment of the trail court and the Additional Commissioner will show that the facts are not really disputed and eve though Raghu Saran denied that Bindeshwari was the legitimate son of Bhagwandin, yet the evidence discussed by the trial court clearly shows that even this fact is not being seriously challenged. Thus, the facts are either admitted or there are concurrent finding of both the courts below in respect of them. I, therefore, do not consider it necessary to dwell at any length on the facts of the case as such. 5. The only point, which is the real bone of contention between the parties, is what the Additional Commissioner has described as the compromise has described as the compromise decree dated 18-3-59. It would be necessary to furnish some more details in respect of that decree in order to ascertain its validity and the binding effect which it has on the parities. It would appear that a long time back Raghu Sarnan had filed a suit for declaration against Bhagwandin, claiming that he was the sole sirdar of the land in suit. It would be necessary to furnish some more details in respect of that decree in order to ascertain its validity and the binding effect which it has on the parities. It would appear that a long time back Raghu Sarnan had filed a suit for declaration against Bhagwandin, claiming that he was the sole sirdar of the land in suit. In this case, Raghu Saran had maintained that he and Bhagwandin were co-tenants of the land but Bhagwandin had relinquished his rights in favour of Raghu Saran about 11 years ago and now as he was too old, he had nothing to do with the land in suit. This suit was decreed on 18-3-59. Since it appeared that that suit was collusive in nature, the State went up in appeal against the decree of 18th March, 1959 and on 14-9-59, the appeal was dismissed by Additional Commissioner, Allahabad. According to the learned Commissioner, this decree was binging on the parties - a fact which was vehemently opposed by the learned counsel for Bindeshwari. According to the learned counsel this decree did not have any binding effect because instead of being a compromise decree. It militated against the basic and fundamental principles of the Zamindari Abolition and Land Reforms Act, namely that the sirdari rights in the land not being transferable in nature, could not be relinquished by a tenant in favour of another tenure-holder even though he may be its co-tenant. Relying on the case State of Punjab v. Amar Singh and another A.I.R. 1974 (SC), p. 994 the learned counsel maintained that where a compromise went against the public policy, prescription of a statue or a mandatory direction to the Court, such a compromise could not operate of defeat the very purpose of the statue itself and the order embodying such a compromise would be ineffective. According to their Lordship of the Supreme Court, the public policy underling a particular enactment, could not be outwitted by consent orders calculated to defeat the provisions of the statue itself. The learned counsel also referred to a case of Board of revenue, in which a similar view has been taken. According to their Lordship of the Supreme Court, the public policy underling a particular enactment, could not be outwitted by consent orders calculated to defeat the provisions of the statue itself. The learned counsel also referred to a case of Board of revenue, in which a similar view has been taken. This is the case of Lalloo and Dafali R.D. 1972, p. 215 in which a distinction has been drawn between the provisions of U.P. Tenancy Land Act and the Zamindari Abolition and Land Reforms Act and it has been held that while a compromise varying the legal share of the co-tenant have got a binding effect in a suit for division of holding under section 49 of the U.P. Tenancy Act, it will not be applicable to a suit under Sec. 176 of the U.P.Z.A. and L.R. Act because while Sec. 33(c) U.P. Tenancy Act provided for the release or the transfer of interests in favour of a co-tenant, there was no such provision in Sec. 176 of the Zamindari Abolition and Land Reforms Ac 6. The learned Additional Commissioner only enunciated a bald proposition that the compromise decree dated 18-3-59 was binding on the parties. He did not care to go into the merits of this proposition and to give reason why he held the compromise decree to be of a binding nature. It is for this purpose that the two cases, referred to above, by the learned counsel for Bindeshwari will have to be distinguished for the purposes of the instant appeal. 7. The first and the most important distinguishing feature is that although the compromise or consent decree was passed in March 1969, yet it pertains to a transaction which had taken place as far back as 1948 namely, at least four years before the Zamindari Abolition and Land Reforms Act came into force. The judgment in the compromise suit, makes it very clear that the plaintiff (Bhagwandin) had claimed that his co-tenant, Raghu Saran had relinquished his rights in the holding about 11 years ago. The suit was filed in 1958 and, thus, according to Bhagwandin, the relinquishment had taken place some time in 1948, whereas the Zamindari Abolition and Land Reforms Act came into force in 1952. The suit was filed in 1958 and, thus, according to Bhagwandin, the relinquishment had taken place some time in 1948, whereas the Zamindari Abolition and Land Reforms Act came into force in 1952. It would be quite incorrect to say that the relinquishment of Raghu Saran in favour of Bhagwandin took place after the Z.A. and L.R. Act came into force. It is true, that the decree was passed after the new legislation had come into force but the actual fact of relinquishment, which really clothes the decree with the sanctity which the Additional Commissioner had attached to it, actually took place long before the Zamindari Abolition and Land Reforms act was enacted. This fact was made further clear by the judgment of the appeal, filed by the State Government against the controversial decree of March 1959. In this appeal, it was clearly alleged the parties were closely related to each other, that it was a case of legal transfer and that no surrender of a sirdari holding was permissible under the new act although it was possible, in the case of co-tenants, under the U.P. Tenancy Act. In passing his order dated 14-9-59, the learned Additional Commissioner took all these facts into consideration and then recorded a finding to the effect that the suit has been rightly decreed by the Judicial Officer and that there was nothing collusive about it. 8. This point was also agitated in the trail court, where three specific issued were framed in this regard. These issued are: (a) Issue no. 4-Has the plaintiff been in possession within the last 20 years? If so, its effect. (b) Issue No. 5-Has the right or plaintiff, if any, been extinguished by the adverse possession of defendant no. 1? (c) Issue No. 10 - Did Bhagwandin relinquish his rights in the suit land or list 'Ka' of W.S. in favour of defendant no. 1? All these issues were clearly answered by the trial court and on the basis of its findings. It held that the rights of Bindeshwari had extinguished in respect of plots nos. 72, 271, 290, 194, 289 and 286 only. It is in the background of these facts that the binding effect of the compromise or the consent decree is to be seen. It held that the rights of Bindeshwari had extinguished in respect of plots nos. 72, 271, 290, 194, 289 and 286 only. It is in the background of these facts that the binding effect of the compromise or the consent decree is to be seen. In case this decree had been on the basis of any relinquishment or surrender, made by one of the tenants in favour of a co-tenure-holder, after the Z.A.L.R. Act had come into force, it would have been clearly and manifestly in contravention of the provision of the Act and would, therefore, have been void and ineffective. Since, however, this relinquishment took place at least four years before the new Act came into force, no aspersion can be cast on the genuineness or authenticity of the transaction resulting in the compromise decree of 18-3-59, which has, thus, a binding effect on the parties. 9. In view of the above position of law and facts, the finding of the learned Additional commissioner that the compromise decree date 18.3.59 is binding on the parties, will have to be upheld. This will be considered to be binding not because it is a compromise but because the fact of relinquishment in favour to a co-tenure-holder is borne out by the previous decree which resulted first in the decree of 18.3.59 and then in the order of the Additional Commissioner, confirming it on 14.9.59. 10. I have observed earlier that I do not propose to go into the pure findings of fact, in respect of which either the views of the learned lower court are concurrent or in respect of which the finding of the first appellate court should be regarded as final. 11. In the result, appeal no. 98, arising out of appeal no. 569, is dismissed. Appeal no. 99, arising out of appeal no 613, in regard to plots nos. 47, 73 and 293, is also dismissed and finally, appeal no. 86, arising out of the appeal no. 613, in respect of the remaining plots in further dismissed. 12. In view of the facts and circumstances of this case, the parties will bear their own costs. 13. This order will also govern appeal nos. 98 and 99 of 1970/71 Allahabad.