Saheb Singh v. Raj Bahadur — 1976 DIGILAW 736 (ALL)

JUDGMENT A.K. Sharma, Member. - Saheb Singh (District Hardoi) has come up in second appeal against the judgment and decree dated July 17, 1973, passed by the learned Additional Commissioner, Lucknow Division, confirming the judgment and decree passed by the learned Assistant Collector 1st Class, Hardoi, on November 1, 1972, in a case under Section 209 of Z.A. and L.R. Act. 2. Raj Bahadur Singh and other plaintiff-respondents filed the suit claiming that they were Bhumidhars of the plots in dispute and the position has been upheld during the Consolidation, that the defendant-appellant was his uncle's son and ofter took him up as Sajhi prior to 1967 and taking undue advantage of Sajhedari, Saheb Singh established his wrongful possession in July, 1967 and refused to vacate the land in dispute and has caused him damages of Rs. 15,000/-. Due notice was given by the plaintiff to the U.P. Government and the Gaon Sabha who, however, did not contest. 3. The suit was contested by Saheb Singh, defendant on the ground that he and the plaintiffs are the descendants of common ancestor Bhabhuti Singh and the land in dispute was a part of the Bhumidhari of Bhabhuti Singh and was recorded in succession in the name of the father plaintiffs only in a representative capacity and the defendant and other descendants of Bhabhuti Singh were co-tenants and the share of the plaintiffs was ?rd and that of the defendant and other descendants ?rd. He also put up the defence that he was in possession of the ?rd share for himself and on behalf of other descendants of Bhabhuti Singh according to a family settlement, and has denied that the plaintiffs are the sole Bhumidhars. He has also claimed that in any case he has matured his Sirdari rights by adverse possession and that the plaint was beyond limitation and he was not liable to any damages. 4. The trial court decreed the suit of the plaintiffs for ejectment of the defendant and did not award any damages or costs. The learned Additional Commissioner dismissed both the appeal and the cross-objection and upheld the judgment and decree of the trial court. 5. The learned counsel for the appellant has argued that the concurrent findings of both the learned courts below is that the land in dispute was formerly a Sir land held by their fathers and their grandfather. The learned Additional Commissioner dismissed both the appeal and the cross-objection and upheld the judgment and decree of the trial court. 5. The learned counsel for the appellant has argued that the concurrent findings of both the learned courts below is that the land in dispute was formerly a Sir land held by their fathers and their grandfather. Referring to para 3 of the plaint, in which it is stated that the defendant was now and then taken Sajhidar, who got his possession entered on the land in dispute, and also referring to the statement of the plaintiff in oral evidence that he was made Sajhidar for two years and then terminated, he has argued that under issue No. 6, the defendant was found in possession with the consent of the plaintiff before filing of the suit on August 10, 1970, and if so, the possession was by consent and the question of trespass did not arise and suit under Section 209 of the Z.A. and L.R. Act was not maintainable. He has pointed out that the defendant had denied Sajhidari and the evidence did not prove any Sajhidari and, therefore, the allegation of unauthorised continuance is possession after the termination of the Sajhidari is baseless. According to him it was wrong on the part of the learned Additional Commissioner not to have gone into the nature of Sajhidari on the ground that the plaintiff never claimed any rights on the basis of Sajhidari, this being a suit under Sec. 209, because it was relevant for bringing out the nature of the possession and prove that it was possession by consent and not as trespasser. Learned counsel referred to the explanation in Section 156 of the Z.A. and L.R. Act and holding that Sajhidari amounts to sub-letting, pointed out that by admitting the defendant as Sajhidar the plaintiff admitted the letting of a part of the holding to the transferee and this was in contravention of the provisions of sub-section (1) of Section 156 of the Z.A. and L.R. Act, as it was evident that this letting had nothing to do with any of the disabilities mentioned in Section 157 of the Act. He has referred to the close relationship of the parties to the dispute and the admittedly ancestral nature of this property and to the trial court's finding that the land in dispute had been divided as a family arrangement, with ?rd being in the possession of the defendant, and to the fact that the Additional Commissioner did not award any damages, and thereby upheld the trial court's finding on this point, and contended that in view of these findings it was just not possible to hold that there was any Sajhidari and the only conclusion that can be drawn is that the plaintiffs held ?rd of the holding and the defendant held the remaining ?rd along with other descendants as a family arrangement from long ago. He has also argued that the position was the same in the possession of respective parties and, therefore, there was no question for the defendant to agitate for any rights before the Consolidation Authority. As previously, the names of the representatives of the joint family were continued by the Consolidation authority and on account of the factual history of the ancestral holding, there was no question of Section 49 of the U.P. Consolidation of Holdings Act coming in as a bar. He was further clarified that if there had been a dispute between the parties, there would have been a cause of action, but as things continued as before the Consolidation and continued thereafter also, the cause of action was simply not there for agitating for any rights during consolidation and the cause of action arose only when the plaintiffs wrongfully asserted their right over the ?rd share also, by taking undue and illegal advantage of the entry standing in their name in the Consolidation record. He has referred to the trial court's holding the view that the defendant is in continuous possession on the land in dispute from before Consolidation and that it is no coincidence that he and the descendants other than the plaintiff have just ?rd area in their possession. He has stressed that the trial court's finding that the defendant along with the other descendants, is in possession over the ?rd of the holding has not been upset by the learned Additional Commissioner, who has there by conceded that the defendants have been in peaceful possession for years and were there not by trespass but by succession and family arrangement. On this point he has referred to 1964 R.D. 10 and 1974 Revenue Decisions 382 and urged that as there was no trespass, Section 209 was not attracted. With regard to the bar of Section 49 of the C.H. Act, he has further argued that it was for the plaintiff to have asserted his rights during Consolidation over the ?rd area of the holding, which admittedly at the time of Consolidation and before Consolidation, was in the possession of the defendant and descendants other than the plaintiffs and if the plaintiffs did not do so, they could not lay a claim to it now. In this connection he has referred to 1966 R.D. 373 and 1971 A.L.J. (Rev.) 20 and stated that if there was a trespass, it was for the plaintiffs to have agitated for its removal during Consolidation, a thing which he did not do. Accordingly, he contended that the plaintiffs could not maintain a suit under Section 209 after Consolidation and it was this that was barred by Section 49 of the C.H. Act. Referring to Section 28 of the Consolidation of Holdings Act, he pointed out that even at that state of the Consolidation proceedings, the plaintiffs did not assert their rights against the alleged trespass. 6. Regarding the entry of the plaintiff's name in the revenue records, learned counsel for the appellant argued that the nature of the entry had to be seen on the background of the history of the Khata of the holding and if a name was recorded in Khata, which had a hereditary succession, it was not permissible to ascribe exclusive character to it simply because the names of all co-tenure-holders were not recorded. He contended that it was an established law that the possession of one co-tenure-holder was the possession of and on behalf of all, and the Consolidation authority, in continuing the entry as it was, did not oust the co-tenants form succession. His point is that the entry cannot be wrenched from its own historical context and ascribed a fictitious history of its own, having nothing to substantiate it and with all facts on record in evidence contradicting such an interpretation. Section 49 of the C.H. Act was, therefore, not attracted to this case. His point is that the entry cannot be wrenched from its own historical context and ascribed a fictitious history of its own, having nothing to substantiate it and with all facts on record in evidence contradicting such an interpretation. Section 49 of the C.H. Act was, therefore, not attracted to this case. On this point he has cited 1964 R.D. 70 (H.C.) to show that mere entries in revenue records will not confer rights on any member to the exclusion of others in the joint family. 7. In reply to the point of possession as a result of Consolidation, raised in his arguments by the learned counsel for the respondent, the argued that Section 28 of the Consolidation of Holdings Act in respect of eliminating the possession of a trespasser within a period of six months, is applicable only in those cases where Chaks were allotted as a result of exchange of plots and it would not apply in those cases where the plots and possessions remained intact and undisturbed and there was no exchange of plots for the formation of a Chak. In this situation, he said, there was no question of the defendant agitating for his rights before the Consolidation Authorities, as he remained undisturbed where he was. 8. On the question of Limitation, the appellant's learned counsel has argued that the suit was time-barred, as the last date for filling the suit was June 30, 1970, while the suit was filed on August 10, 1970. He stated that Consolidation came to close on May 23, 1964 (1371 F) and limitation started running from 1372F. According to him as the cause of action for the plaintiff was only against the contesting defendant and not against defendants 2 and 3 i.e., Gaon Sabha and the State Government, therefore, no notice was required to be given under Section 80 C.P.C. and therefore, under Section 15 of the Limitation Act, the benefit of 60 days of the notice period could not be given to the plaintiff. He has, therefore, contended that the suit was time-barred. He has made a distinction between impleading the State Government and the Gaon Sabha as parties and instituting a case against the Gaon Sabha and the State Government, and has argued that as the latter were only to be impleaded as parties, the question of a notice under Section 80 C.P.C. did not arise. He has made a distinction between impleading the State Government and the Gaon Sabha as parties and instituting a case against the Gaon Sabha and the State Government, and has argued that as the latter were only to be impleaded as parties, the question of a notice under Section 80 C.P.C. did not arise. No relief, he stated, was sought against defendants No. 2 and 3. Therefore, 60 days notice period had to be excluded in counting the period of Limitation and on this basis the suit was time-barred. 9. Learned counsel for the respondent argued on the question of limitation first and then on the question of maintainability of this suit and its merits. He has stated that under Section 209 Z.A. and L.R. Act, the State Government and the Gaon Sabha were necessary parties and had to be impleaded and the only way of instituting a suit against the State Government and the Gaon Sabha was by giving a notice under Section 80. C.P.C. as otherwise the suit itself would not be maintainable and would not be properly instituted and, therefore, the benefit of 60 days of the notice period was available to the plaintiff-respondent for purposes of calculating the period of limitation. He has stated that by thus correctly calculating the period of limitation, the suit was withing limitation and the distinction drawn by the learned counsel for the appellant impleading the State Government and the Gaon Sabha and instituting a suit against the State Government and Gaon Sabha was of no significance for purposes of Section 209 Z.A. and L.R. Act, as the only was of instituting a suit impleading the State Government and a local body was by way of Section 80 C.P.C. notice. 10. Regarding the maintainability of the suit, learned counsel for the plaintiff-respondents has argued that the plaintiff's case is that at one time the possession of the defendant was by consent and later is was without consent, as made clear by para 3 of the plaint. He stated that now and then the defendant was taken up an Sajhi but later on the Sajhidari was terminated, and after, that the unauthorised possession started from July, 1967. He referred to the trial court's finding that the possession was by consent, but argued that by the institution of the suit the possession became adverse. On this point he has cited 1952 A.I.R. 80. He referred to the trial court's finding that the possession was by consent, but argued that by the institution of the suit the possession became adverse. On this point he has cited 1952 A.I.R. 80. Referring to the opposite counsel's point that no issue had been framed by the trial court as to whether the defendant was a Sajhi or not, he has stated that it was not the case of the appellant that he was there in possession by consent as Sajhi and, therefore, there was no question of an issue being framed on the point. Regarding the other contention that the plaintiffs should have asserted their claim before the consolidation Authority, he has contended that as the land was exclusively recorded in the name of the plaintiff, during Consolidation, there was no cause him to assert his claim or to agitate for it. On this point he has cited 1976 R.D. 162. Regarding delivery of possession of the land in dispute as a result of Consolidation, he has argued that under Section 28 of the C.H. Act, the trespasser is deemed to have been ejected under sub-section (2) of this Section on the expiry of a period of six months. The defendants, therefore, he said, were deemed to have been dispossessed, if at all they were in possession, and their possession determined ipso facto on the expiry of the said period of six months. He, therefore, contended that whatever possession the defendants had was disrupted and the plaintiffs possession thus came about as a result of Consolidation. He said that this suit for the ejectment of defendants had been filed in time and there was no question of their maturing any Sirdari rights. He has urged that for those above reasons the suit for ejectment was perfectly maintainable, as the defendant was a trespasser. He emphasised that the theory of the entry of name in representative capacity in the revenue record was alien to Consolidation Law and the plaintiff's names were exclusively recorded in Consolidation and no dispute could be raised thereafter. He contended that, if the defendant had any claim, he should have got it recognised in Consolidation, and having failed to do so, Section 49 C.H. Act barred the raising of any dispute or matter which could or ought to have been raised during Consolidation and arose out of it. He contended that, if the defendant had any claim, he should have got it recognised in Consolidation, and having failed to do so, Section 49 C.H. Act barred the raising of any dispute or matter which could or ought to have been raised during Consolidation and arose out of it. Regarding the appellant's counsel's argument that it was the plaintiffs who had a cause of action during Consolidation and not the defendant, he has pointed out that, since his name had been entered upon the plot by the Consolidation authority and possession assured under Section 28 of the C.H. Act, there was no cause of action for them and it was the defendant who now stood barred by Section 49 of that Act. He contended that it was of no legal validity, once the Consolidation was over, to refer to the ancestral character of the property and the records as prepared and finalised by the Consolidation authority were the basis of all rights thereafter. 11. At this stage I would refer to another point raised in arguments, namely, about 'Sajhidari's', its legal cotenant and consequences of admitting of a Sajhidar by Sirdar. Learned counsel for the appellant argued that Sajhidari, in accordance with the definition of letting contained in the explanation to Section 156 of the Z.A. and L.R. Act, was in contravention of the legal provisions, as the defendants suffered from none of the disabilities mentioned in Section 157(1), and therefore attracted the penalty under Section 189(aa). Learned counsel for respondent countered it saying that a third party had no locus standi in the matter and that the only party under the law to move for extinguishing the rights and taking over the land will be the Gaon Sabha. He said that the rights of the plaintiffs could not be extinguished even in letting, unless a suit was brought by the Gaon Sabha for taking over. On the point of extinction of right, appellants counsel replied that after the 1958 amendment which brought in sub-sec. (aa) to Section 189, the rights extinguished ipso facto and it was not incumbent for Gaon Sabha to bring a suit. 12. I have gone through the record of the case and considered the judgments passed by the learned courts below and the detailed arguments advanced from both the sides. (aa) to Section 189, the rights extinguished ipso facto and it was not incumbent for Gaon Sabha to bring a suit. 12. I have gone through the record of the case and considered the judgments passed by the learned courts below and the detailed arguments advanced from both the sides. The point of limitation may be disposed for first, including the point relating to the giving of Section 80, C.P.C. notice to the State Government and the Gaon Sabha. I see no validity in the arguments advanced on behalf of the appellant, the Section 80. C.P.C. notice was not required and if the notice period is excluded the suit would be found to lie clearly beyond limitation and, therefore, not maintainable. According to the learned counsel who argued this point, the impleadment of the State Government and Gaon Sabha was to be distinguished from the institution of a suit against them and that it was in the latter case only that Section 80, C.P.C. notice was required. His contention is that no relief was sought against the State Government or the Gaon Sabha and there was no question of institution of suit against them and that they had only to be impleaded and issue of summons to them would suffice. The arguments are ingenious but do not serve to overcome the legal requirement that the only way of even impleading the State Government or the Gaon Sabha is by giving them a notice under Section 80, C.P.C. It is a mandatory requirement in such suits that the State Government and the Gaon Sabha be made parties. The question of seeking relief specifically from the State Government and the Goan Sabha is not involved where it is a statutory requirement that they or either of them be impleaded. Therefore, the distinction between impleading a party and institution a suit against the State Government or Gaon Sabha is of no consequence. Section 80. C.P.C. notices to the Government and the Gaon Sabha are inescapable, if a suit has to be maintainable in all those cases where the law lays down that they shall be parties. The Full Bench decision of this Board in 1976 R.D. 244 places the subject beyond the pale of controversy. The ruling also points to situation in which non-issue of notice to them would not invalidate the proceedings, but those are not relevant. The Full Bench decision of this Board in 1976 R.D. 244 places the subject beyond the pale of controversy. The ruling also points to situation in which non-issue of notice to them would not invalidate the proceedings, but those are not relevant. The benefit of the notice period must go to the plaintiff and it was correctly held that the suit was filed in time. 13. I find that the trial court has in deciding issue No. 6 held in clear and categorical terms that the defendant has not committed any trespass and that it is wrong for the plaintiffs to allege that the defendant has committed trespass on the land in dispute. This finding has not been upset by the learned Addl. Commissioner. I, therefore find force and validity in the argument of the learned counsel for the appellant that the suit of the respondents is not maintainable at all. Trespass has not only to be asserted but proved conclusively. What is conclusively proved is that there is no trespass at all committed by the appellant. The suit for ejectment can in no way be decreed. It is just not maintainable. The plea of Sajhidari' has been found to be a cock and bull story laid out to pave the way for showing trespass of the defendant at some post-Consolidation stage. The learned courts below having concurred and conceded that there was no trespass, had no right to order ejectment. That is not only logic but also the law. 14. The relevance of the bar of Section 49 of the C.H. Act may be further seen. the position here is clear: the Consolidation record entered the names of the plaintiff's as Bhumidhars of the plot. There was no dispute about it raised by anyone before the Consolidation authority. The plaintiff's names were adopted as they had come up from the past. There was no verdict on any dispute given by the Consolidation authority. In the arguments before me it has emerged that neither side had found anything to dispute about, so far as possession and rights in land were concerned. The plaintiff's names were adopted as they had come up from the past. There was no verdict on any dispute given by the Consolidation authority. In the arguments before me it has emerged that neither side had found anything to dispute about, so far as possession and rights in land were concerned. It is an accepted finding that the defendant and descendants other than the plaintiffs together have been in possession of just two-thirds of the plots from much before Consolidation just as the plaintiffs had been on their one-third and the position has always remained the same, in spite of the entry of Consolidation. There was no actual taking of possession by the plaintiffs over the two-third of the plot as a result of consolidation. No delivery of possession tool place. Everything stayed put where it was as to possession of one-third and two-third potions. There has all along been acquiescence in and acceptance of this position on the part of the plaintiffs and the learned courts below have found no evidence of forcible entry and have rejected the superficial, vague and concocted plea of Sajhidari. Rather all the ingredients of a well-established family arrangement have been found to exist. It is also controvertible that the plot is ancestral and the names were recorded in the revenue records before Consolidation in a representative capacity. It also recognises that the possession of one co-tenure holder is the possession of all co-tenure holders. Where no dispute took place before the Consolidation authority and the entry as it existed was adopted in the record of rights, and the possession have continued as they were and no trespass was found, there was no case for trespass and ejectment. Section 49 of the C.H. Act is not relevant here and is no bar to defendant showing with reference to all the antecedent and genealogy and pre-Consolidation revenue record, how he and other descendants happen to be peaceably cultivating ?rd of the plot and were not trespass. If Section 49 was bar to interference with plaintiffs title and Section 28(2) had assured him possession, and no trespass had been proved and the plea of Sajhidari had its bottom knocked out, there was no case for Sec. 209, whatever the re-ordering or mess the consolidation created for this joint family, settled on its ancestral land. 15. If Section 49 was bar to interference with plaintiffs title and Section 28(2) had assured him possession, and no trespass had been proved and the plea of Sajhidari had its bottom knocked out, there was no case for Sec. 209, whatever the re-ordering or mess the consolidation created for this joint family, settled on its ancestral land. 15. If the plea of Sajhidari and its termination by the plaintiffs had been given out in some detail and concrete shape, it would have been possible for the courts to see whether it amounted to illegal transfer, attracting Section 189 (cc). Since the clear finding is that there was no Sajhidari, the arguments about extinction of Bhumidhari rights of the plaintiff and vesting of the land in the Gaon Sabha need not be gone into. 16. I, therefore, find that the appeal must be allowed, as the appellant has clearly established in both the courts below and in this appeal that there is no trespass committed by him on the land in suit and plaintiff's suit was not maintainable. 17. The appeal is allowed. Costs easy.