Parbhu Devi v. Tafazzul Husain Khan — 1978 DIGILAW 643 (ALL)

JUDGMENT B.K. Tandon, Member. - Shrimati Parbhu Devi has preferred this second appeal against the judgment and decree July 10, 1972 passed by the Additional Commissioner, Faizabad Division allowing appeal No. 755 of 1970 and setting aside the decree dated July 7, 1970 of the Assistant Collector, First Class, Sultanpur in Suit No. 288/294 under Sections 229-B/209, UPZA and LR Act. 2. Tafazzul Husain and others, plaintiff-respondents filed this suit against U.P. State and other defendants on the allegations that Srimati Kamini Begum was their mother. She was a hereditary tenant upto July 1, 1952 of the land in suit and thereafter she became its Sirdar. She also perfected her rights under Section 210 of UPZA and LR Act. It was further alleged that defendants Nos. 3 to 8 had no right or title in the land, Srimati Kamini Begum expired on December 25, 1959 and the plaintiffs inherited her rights being her sons. Srimati Kamini Begum was confined to bed from 1950 and she used to live with Tafazzul Husain, plaintiff No. 1 at Sultanpur. The defendants in collusion with the Lekhpal got their names entered in the revenue records. The defendants obtained an order on September 14, 1959 from the Deputy Director of Consolidation producing a Farzi surrender deed before him. The defendants are not in possession and if they are held to be so, they may be ejected under Sec. 209 of the Act from the land mentioned in Schedule A of the plaint. The plaintiffs accordingly sought a declaration that they were Sirdars of the land in suit. Defendant Padarath, substituted by Srimati Parbhu Devi contested the suit saying that Mohammad Ayub Khan was the Sir-holder and he never executed any lease in favour of Srimati Kamini Begum nor she was ever in possession. The entry in her name was Farzi. On March 15, 1952 Mohammad Ayub executed a Patta in favour of Sheo Harakh, Bachau and Ram Gopal, which was verified by the Supervisor Kanungo. Proceedings for Amaldaramad of the Patta were continuing when consolidation started in the village. The Consolidation Officer rejected the application of defendants but eventually the Deputy Director of Consolidation allowed the correction in favour of the defendants and his judgment was upheld by the Hon'ble High Court. It was also alleged that Srimati Kamini Begum was never in possession and plaintiffs did not succeed to any land. The Consolidation Officer rejected the application of defendants but eventually the Deputy Director of Consolidation allowed the correction in favour of the defendants and his judgment was upheld by the Hon'ble High Court. It was also alleged that Srimati Kamini Begum was never in possession and plaintiffs did not succeed to any land. They also raised the plea of non-maintainability. Ram Ujagar and Raghubansh, defendants also filed written statement saying that they were also lease-holders alongwith Ram Padarath who was son of Sheo Harakh. The trial court dismissed the plaintiff's suit. In appeal, however, the Additional Commissioner decreed the suit of the plaintiffs. 3. The learned counsel for the appellants assailed the judgment of the Additional Commissioner firstly on the ground that it is based on superficial findings on documentary evidence and with no findings on oral evidence. The Additional Commissioner has failed to record any specific and independent finding as an appellate Court and merely said that he agreed with the arguments advanced by the learned counsel for the appellants' without assigning any reasons whatsoever as to why he was disagreeing with the findings of the trial court and why he proposed to accept the appeal of the plaintiffs. 4. Secondly, the learned counsel argued that, as held by the trial court, the mother of the plaintiffs was not a genuine tenant and any lease executed in her favour was in order to stop accrual of hereditary rights to the actual cultivators by creating a buffer tenancy between the landholder and the actual cultivators, namely some defendants and their predecessors in the present case. He argued that the Additional Commissioner in holding that Srimati Kamini Begum the mother of the plaintiffs, was a tenant, did not remember Section 6 of Act of 1947 which had added Explanation to Sec. 29 which deals with the conferment of hereditary tenancy rights. He argued that the Additional Commissioner in holding that Srimati Kamini Begum the mother of the plaintiffs, was a tenant, did not remember Section 6 of Act of 1947 which had added Explanation to Sec. 29 which deals with the conferment of hereditary tenancy rights. This Explanation to Section 29 reads as follows : "For the purposes of this section 'sub-tenant' does not include a person who holds land from a relation, dependant or servant of the landholder, unless such relation, dependants or servant proves to the satisfaction of the Court that he is a genuine tenant of such land and has not been admitted to prevent the accrual of hereditary rights in favour of such person." He submitted that the necessity of addition of this Explanation to the said Section was because the Legislature realised that the purpose of the section was being defeated by clever and unscrupulous landlords by the device of creating fictitious tenancies in favour of their relations, dependants and servants in order to prevent the accrual of hereditary rights in favour of the actual tenant. 5. Thirdly, the learned counsel for the appellant argued that there were consolidation proceedings and the matter was fought out between the parties upto the stage of the Deputy Director of Consolidation and ultimately decided in favour of the defendants. The Deputy Director of Consolidation by his order dated September 14, 1959 held that the entries in the revenue records were wrongly made and since the order of the Deputy Director of Consolidation has become final after the dismissal of the writ petition, the respondents cannot take this argument that they acquired Sirdari rights in view of entries from 1359 Fasli to 1370 Fasli. The Additional Commissioner has tried to give an escape to the plaintiffs on the pretext that this was only correction of papers proceeding under Sec. 8 and, therefore, it was not binding. The learned counsel argued that it has after all evidentiary value and could not have been lightly brushed aside particularly in view of the fact that the trial court had recorded a definite finding that original lease was not forthcoming. He further argued that the trial court has recorded a finding that the plaintiffs' own evidence shows that the mother never paid any rent to her husband. He further argued that the trial court has recorded a finding that the plaintiffs' own evidence shows that the mother never paid any rent to her husband. If there was a relationship between the husband and wife as that of a tenant and Zamindar, then actually rent should have been paid to and accepted by the Zamindar. The learned counsel fore the appellants, therefore, submitted that the order of the trial court should be restored. 6. The learned counsel for the respondents argued that in order to establish that the tenancy which was created in the name of the mother of the respondents was a bogus tenancy, it was necessary for the defendants to prove that they were the rightful tenants and that the landlord tried to superimpose any tenant upon these persons and only then the Explanation to Section 29 Tenancy Act comes into play. He referred to the statement of Ram Padarath from which, according to him, it is clear that he never paid any rent and no settlement was made in his favour. He referred to the Register Iqrarnama and said that this is a copy of the lease and signed by the Kanungo and the land-holder and the main object of this register if that if the lease is destroyed or lost, the tenant may not be put to any difficulty. He referred to Section 57 of the U.P. Tenancy Act and said that this was a genuine document. Referring to the various entries in the revenue records, he submitted that all entries available are in the name of Srimati Kamini Begum and not a single entry is in the name of the defendants, there is no evidence that defendants were tenants or that there was any lease or that they paid rent. Therefore, he argued that the tenancy in favour of Srimati Kamini Begum was correct and there had been no superimposition of tenancy in this case. 7. The learned counsel for the respondents further argued that it is not disputed that proceedings in consolidation were correction of papers proceedings. The Deputy Director of Consolidation decided against the plaintiff-respondents merely because the Consolidation Officer was a tenant of the landlord. Against that order a writ petition was filed and in the writ petition it was decided that since question of title was not decided thus matter should be reagitated. The Deputy Director of Consolidation decided against the plaintiff-respondents merely because the Consolidation Officer was a tenant of the landlord. Against that order a writ petition was filed and in the writ petition it was decided that since question of title was not decided thus matter should be reagitated. Therefore, the present suit was filed by the plaintiffs. He referred to Division Bench case reported in ALJ 1956 at P. 807. He argued that the moment the village was denotified and consolidation staff was withdrawn, the case of the plaintiffs came within the purview of revenue courts and, therefore, the suit was filed and in support of this contention he cited 1971 RD 242. He also referred to 1966 RD 222, and argued that there being no surrender, the title of Srimati Kamini Begum will continue. Lastly, he argued that the Additional Commissioner has discussed every document which is on record. 8. I have considered the arguments of the learned counsel for the parties. The Additional Commissioner while setting aside the order of the trial court has not given any reasons whatsoever for coming to this conclusion. He has merely sated that he agreed with the arguments advanced by the learned counsel for the appellants and, therefore, allowed the appeal. According to Order XX, Rule 4(2) the judgment of the Court shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. Therefore, it was necessary for the learned Additional Commissioner to give reasons why he did not agree with the finding of the learned lower court and why he thought it fit to reverse the judgment of the learned lower court. 9. The learned counsel for the appellant referred to Explanation to Section 29 of the U.P. Tenancy Act and argued that the lease executed by Babu Mohd. Ayub Khan in favour of his wife Srimati Kamini Begum was a bogus document and this lease was executed merely to prevent the tenure-holders from acquiring hereditary tenancy rights. The learned counsel for the respondents has in this connection referred to Section 57 of the U.P. Tenancy Act and argued that this was a genuine document and Srimati Kamini Begum had acquired tenancy rights on the basis of such a lease deed. The learned counsel for the respondents has in this connection referred to Section 57 of the U.P. Tenancy Act and argued that this was a genuine document and Srimati Kamini Begum had acquired tenancy rights on the basis of such a lease deed. In this connection, it would be worthwhile to go through the observation made by the Select Committee as to the object of adding the Explanation to Section 29 of the U.P. Tenancy Act. The Select Committee observes as follows : "We found that the purpose of the section had been defeated to a considerable extent by clever and unscrupulous landlords by the device of creating fictitious tenancies in favour of their relations, dependants and servants in order to prevent the accrual of hereditary rights in favour of the actual tenant who is thus reduced to the status of a sub-tenant. In our opinion a clear provision must be made in the said Act (UP Tenancy Act) to stop this evil." The result of this amendment would be that the sub-tenant holding the land from a relation, dependant or servant of the real landholder shall be presumed to be a hereditary tenant to the exclusion of such relation, dependant or servant until the later proves to the satisfaction of the court that he is a genuine tenant of such land and has not been admitted to prevent the accrual of hereditary rights in favour of the alleged sub-tenant. Thus a heavy burden of proof and of a most difficult negative character, now lies on such relation, dependant or servant. 10. The learned lower court has discussed in great detail about the lease executed by Mohammad Ayub Khan Zamindar in favour or his wife Srimati Kmini Begum. The learned lower court has observed that there is no evidence whatsoever to show that there was any dispute between the husband and wife resulting in the separation of Srimati Kamini Begum. The only evidence is that she was ill and lived with her sons at Sultanpur in connection with her treatment. Since no proof at all of separation between husband and wife was there, the trial court came to the conclusion that the lease made in favour of Srimati Begum was an effort to deprive the actual tenure-holders from acquiring the hereditary tenancy rights. Since no proof at all of separation between husband and wife was there, the trial court came to the conclusion that the lease made in favour of Srimati Begum was an effort to deprive the actual tenure-holders from acquiring the hereditary tenancy rights. The trial court had further held that this alleged deed was not a genuine document an it was a collusive transaction. This collusion became all the more apparent when Mohammad Ayub Khan executed a lease of the same land in favour of Sheo Harakh, Bachau and Ram Gopal. In this view of the matter, the trial court rightly held that the lease executed by the Zamindar Mohammad Ayub Khan in favour of his wife was a collusive document and it was made simply to prevent the actual tenure-holders from acquiring hereditary rights. As observed earlier, the Additional Commissioner has given no cogent reasons for setting aside this finding of the learned trial court. 11. The other point raised by the learned counsel for the appellant was that there was consolidation proceedings and the matter was fought out upto the stage of Deputy Director of Consolidation and ultimately it was decided in favour of the defendant-appellant. He stated that the writ petition filed by the plaintiff-respondent was also dismissed by the Hob'ble High Court and, therefore, the decision of the Deputy Director of Consolidation with regard to the entries during consolidation operations became final. 12. The learned counsel for the respondents in this connection argued that the proceedings during the consolidation proceedings were in connection with correction of papers only. The question of title was not determined in those proceedings and, therefore, the matter regarding title could be agitated in the revenue courts, after the village had been denotified. In support of this argument be cited 1956 ALJ 807. In this ruling, their Lordships had observed that 'It has been the consistent practice of the High Court not to interfere with orders made by the Board of Revenue in cases in which the only question at issue is whether the name of the petitioner should be entered in the record of rights. That record is primarily maintained for revenue purposes and an entry therein has reference only to possession. That record is primarily maintained for revenue purposes and an entry therein has reference only to possession. Such an entry does not ordinarily confer upon the person in whose favour it is made any title in the property in question and his right to establish his title to is expressly reserved by Section 40(3) of the Land Revenue Act. The only exception to this general rule is in those cases in which the entry itself confers a title on the petitioner by virtue of the provisions of the U.P. Zamindari Abolition and Land Reforms Act. He also cited 1971 R.D. 242 and 1966 R.D. 222. In R.D. 1971 ruling the following observations were made : "After the cancellation of declaration one of the consequences that ensued was that the area became subject to the normal revenue administration of the district vide Rule 18(4). The question as to who were entitled to be entered in the records again came within the purview of the Revenue Courts and the bar of Section 49 did not apply to the holding in respect of which merely a provisional entry had been ordered by the ACO under Rule 21." In the order ruling quoted by the learned counsel for the respondents 1966 RD 222, the following observations were made : "Where in connection with objection for correction of papers during consolidation proceedings the orders of the Deputy Director of Consolidation and the Commissioner exercising the powers of the Director had become final and they were not challenged any where and there was therefore no occasion for them to be reconsidered, the order of the Deputy Director is without jurisdiction when he directed that the case be heard again. That order cannot stand and has to be quashed and the Settlement Officer Consolidation is prohibited from proceedings with the case in accordance with the remand order passed by the Joint Director." 13. In this connection, it may be mentioned that the case of the learned counsel for the appellants had never been that the decision taken by the Deputy Director of Consolidation in the correction of papers case had become final or that the bar of Section 49 applied. In this connection, it may be mentioned that the case of the learned counsel for the appellants had never been that the decision taken by the Deputy Director of Consolidation in the correction of papers case had become final or that the bar of Section 49 applied. His main argument was that the decision taken by the Deputy Director Consolidation had great evidentiary value and the Additional Commissioner should have given cogent reasons for disbelieving the decision made by the Deputy Director of Consolidation in this connection. The rulings quoted by the learned counsel for the respondents are not of much help to him because the case of the learned counsel is not that these entries cannot be challenged before the revenue courts or that these entries had become final and bar of Section 49 of the Consolidation of Holdings Act operated against such entries. His only argument was that the Additional Commissioner has not given any reasons why he discarded the decision taken by the Deputy Director of Consolidation in consolidation proceedings. The argument of the learned counsel for the appellant has great force. The Additional Commissioner should have given reasons why he discarded these entries, especially when the learned lower court had accepted these entries and placed reliance on them in deciding the case. These entries were found to be incorrect by the Deputy Director of Consolidation and I find no reason to disagree with the finding of the Deputy Director of Consolidation on this point. Therefore, the trial court on the basis of documentary and oral evidence and on the basis of the decision of the Deputy Director Consolidation had rightly come to the conclusion that Mohammad Ayub Khan executed a fictitious lease deed in favour of Srimati Kamini Begum in order to prevent the actual tenure-holders from acquiring hereditary right and these entries in favour or Srimati Kamini Begum are on the basis of a fictitious lease deed Srimati Kamini Begum and subsequently her legal heirs could not acquire Sirdari rights on the basis of this fictitious lease deed or entries made in favour of Srimati Kamini Begum on the basis of this lease deed. 14. The result is that the order of the Additional Commissioner cannot be sustained. His order is set aside. The second appeal is allowed and the order of the trial court is restored. 14. The result is that the order of the Additional Commissioner cannot be sustained. His order is set aside. The second appeal is allowed and the order of the trial court is restored. This order will govern second appeal No. 4(2) of 1972-73 filed by Ragubansh.