Sukharam v. Dukharam — 1978 DIGILAW 96 (ALL)

JUDGMENT G.S. Sial, M. - This is a second appeal against the judgment and decree dated March 1, 1973 passed by the learned Addl. Commissioner, Varanasi Division, in a suit arising out of a case under section 229-B/209 of the U.P.Z.A. and L.R. Act. 2. Briefly, the facts of the case are that the plaintiff filed a suit for declaration that he is the sole tenure-holder of the land in dispute and that the case of the defendant No. 1 had been wrongly recorded. The defendants contested the suit denying the claim of the plaintiff and alleging themselves to be co-Sirdars of the land in suit, along with plaintiff. The trial court decreed the suit holding that the land in dispute namely plots No. 407 area 0.33 acres, 408 area 0.26 acres, 410 area 0.20 acre, and 842 area 0.68 acre was recorded in 1334 F. with one year duration in favour of the plaintiff-appellant and his name continued to be so recorded till 1368 F. The name of the defendant No. 1 was entered for the first time in 1368 F. without any basis. It held that the disputed land was not acquired by Mangroo the common ancestor of the parties. It further held that defendant No. 1 had not filed any rent receipt and that the oral evidence also did not support his case in respect of possession. It further held that Mangroo's name was entered in 1368 F. but in 1334F the identity of the original holding had changed in all respects. The learned Addl. Commissioner has held that both the parties are co-tenure-holders. He has held that in 1368F the entry in respect of plot No. 842 is in favour of Mangroo on non-occupancy tenant. In 1334 F the land in suit was recorded in the name of the father of the plaintiff Ram Das with one year's duration and this entry continued till 1368 F. The lower appellate court also held that the plaintiff has not proved that the land was acquired by his father Ram Das alone. He further held that there was admission by the plaintiff himself as well as of defendants 2 and 3 that the land was acquired by the common ancestor Mangroo and hence the co-tenancy is fully established. 3. He further held that there was admission by the plaintiff himself as well as of defendants 2 and 3 that the land was acquired by the common ancestor Mangroo and hence the co-tenancy is fully established. 3. The learned counsel for the appellant stated that there was no such admission by the plaintiff which could be held relevant for the finding arrived at by the learned Addl. Commissioner. He submitted that the alleged admission is no admission within meaning of Section 21 of the Evidence Act. The statement of the plaintiff is a mere hearsay statement and he has no personal knowledge of the fact when the properly was acquired. Therefore, the alleged admission is inadmissible in evidence. Further, even if it is held to be admissible, the alleged admission is a confessing one and erroneous and ambiguous, and it cannot be relied upon. He referred to A.I.R. 1956 (S.C.) 596 in support of his argument. He stated that the entry of 1308 and 1334 F do show that all the land in suit was not acquired by Mangroo as the identity of the plots in dispute is not the same. He submitted that there is a presumption of correctness of entry of 1334F because at that time Act 23 of Agra Tenancy Act was in force and this entry continued till 1362 F. Nothing has been shown how the name of the defendant respondent came to be recorded in 1368 F. As regards admission of defendant Nos. 2 and 3 he submitted that they have not come in witness box and their statement has not been tested by cross examination and, therefore, that cannot be relied upon in evidence, being inadmissible. He referred to 1971 A.I.R. Allahabad, page 494 in support of his contention and submitted that their statement cannot bind the plaintiff. He further submitted that the entries clearly proved that the continuity of the land is broken and fresh settlement was made in 1334 and, therefore, the identity and continuity of tenure has completely changed. 4. The learned counsel for the defendant respondents in reply stated that the family continued to remain joint till the defendant No. 1 attained majority, i.e., till a few years before the institution of the suit. No evidence has been brought on record when Mangroo died. There is no evidence when the plots other than plot No. 842 were acquired. 4. The learned counsel for the defendant respondents in reply stated that the family continued to remain joint till the defendant No. 1 attained majority, i.e., till a few years before the institution of the suit. No evidence has been brought on record when Mangroo died. There is no evidence when the plots other than plot No. 842 were acquired. He submitted that upon the enforcement of the Agra Tenancy Act fresh tenure was created in favour of a non-occupancy tenant. Therefore the period is described as one year and not as 26 years. There is no evidence that plot No. 842 ever went out of the family. All the three defendants have pleaded in para 14 of their written statement that the property in dispute belonged to Mangroo the common ancestor. He further stated that if all the plots, even if they were acquired at different stages, were of the same nature of tenancy, they would be kept in the same tenure after the new Act came into force. Therefore there is no illegality in the findings given by the lower appellate court. Further according to the statement of the plaintiff him self, the partition had taken place much after 1334 F and hence the presumption will be that the property was acquired by Mangroo. He stated that the Supreme Court case referred to be the appellant will not apply in this case as that case relates to the prior admission tendered as evidence and not to the statement in the same proceedings. Likewise Section 21 also deals with prior admissions and therefore it will also not apply to this case. No application was filed by the plaintiff appellant that the statement has been made because of same confusion and no responsible explanation was given under what circumstances the alleged statement was made. The statement of the plaintiff is in consonance with the case put forward by the defendants and therefore it must be held to be of a great evidentiary value. He further submitted that the statement of the plaintiff and written statement of the defendants 2 and 3 that the plots are coming form the time of Mangroo are admissible and as such need not be subjected cross examination. He supported this contention vide section 58 of the Evidence Act. No allegation of collusion between defendants inter se had been made by the plaintiff. 5. He supported this contention vide section 58 of the Evidence Act. No allegation of collusion between defendants inter se had been made by the plaintiff. 5. In reply the learned counsel for the appellant referred to para 74 of the Land Records Manual to contend that the terms of cultivation of tenant shall be calculated from the date of such admission. He, therefore, submitted that the new tenancy started in 1334 F and it had noting to do with the previous tenancy of Mangroo as the duration is of only one year. 6. I have considered the arguments and have also gone through the record as well as the ruling referred to above. It is clear from the record that not attempt has been made to fix the date of death of Mangroo, the common ancestor. From the evidence on record it appears that Mangroo had in any case been dead when the record operations took place in 1334 F because the plots in dispute including plot No. 842 came to be recorded in the name of the father of the plaintiff, Ramdas, with one years duration. Further there is no evidence when the plots other than plots No. 842 were acquired. There is no evidence that they were acquired by Mangroo or that they were acquired by his son Ramdas, the father of the plaintiff. On the other hand there is evidence that the family of the plaintiff and the defendants continued to remain joint till defendant No. 1 attained majority, i.e., till a few years before the institution of the present suit. Thus, the property had been enjoyed by the parties to the suit in common till the present dispute arose. The point, therefore, to be determined is whether the plots in dispute were acquired by Mangroo the common ancestor or not and if so which plots and what rights accrue to the parties in dispute. It is admitted that plot No. 842 was recorded in the name of Mangroo in 1308 F as a non-occupancy tenant. This very plot came to be recorded in 1334 F along with other plots in dispute in the name of the father of the plaintiff with one year's duration. It is admitted that plot No. 842 was recorded in the name of Mangroo in 1308 F as a non-occupancy tenant. This very plot came to be recorded in 1334 F along with other plots in dispute in the name of the father of the plaintiff with one year's duration. The learned counsel for the appellant contended that as the identity of the plots is not the same and their continuity is also broken as the period recorded is one year, therefore even plot No. 842 should be held to be the sole acquisition of the plaintiff father. I am afraid that the view pressed by the learned counsel, for the appellant is not correct. According to Section 22 of Act 1901 right of non-occupancy tenancy was heritable. Agra Tenancy Act of 1926 created a new tenure of a statutory tenant and the non-occupancy tenants of Act 1901 were declared as statutory tenant as per section 19 of the Act. The statutory tenants were entered in class VIII of a part of the Khatauni. Sub-para 3 of the para 74 of the Land Records Manual in respect of non Z.A. areas clearly provides that when the rent is varied then the terms of cultivation shall be computed from the date of the said variation. From Khatauni 1308F it is clear that the rent Rs. 7 and 8 annas, 1334 F Khatauni shows that the plots are recorded in class VIII as statutory tenant with a rent of Rs. 26/- with one years duration. Thus it appears that the terms of cultivation has been calculated from the date of the variation in land revenue. Likewise the U.P. Tenancy Act, 1939 created a new tenure of hereditary tenants and recognized the statutory tenants recorded is class VIII under the Agra Tenancy Act of 1926, as hereditary tenants. Thus the mere recording of a change in the years of tenure does not establish that the continuity has been broken. Atleast it cannot be argued so in respect of plot No. 842 which was admittedly acquired by the common Ancestor Mangroo. Thus this plot must be held to be as belonging to the common ancestor in which the plaintiff and the defendants should be held to be co-tenants. 7. As regards other plots I have already said that it has not been established that they were acquired by Mangroo or even in his time. Thus this plot must be held to be as belonging to the common ancestor in which the plaintiff and the defendants should be held to be co-tenants. 7. As regards other plots I have already said that it has not been established that they were acquired by Mangroo or even in his time. The statement of the plaintiff that he had no personal knowledge of the fact whom the property was acquired cannot be interpreted to mean that they were acquired at the time of Mangroo. The first appellate court has used this statement to give a co-tenancy rights over all the plots in dispute which in my opinion is not correct. The statement at the most would mean that the plaintiff did not know when all the plots were acquired but his statement could well mean that atleast the plots, other than plot No. 842, were acquired before 1334 F and by his father, Ramdas. The defendants No. 2 and 3 have not come in the witness box. But they, in their written statement, have stated that the tenancy was ancestral. Their statement in the written statement and not subjected to cross examination cannot in any case bind the plaintiff as has been correctly argued, by the learned counsel for the appellant. The statement of the plaintiff, as a whole, which is clearly admissible for it is a statement made in the court of the proceedings itself, is some what confusing as does not clearly stipulate when the plots in dispute were acquired. But his statement cannot be stretched to mean that all the plots were acquired in the time of Mangroo. In any case it lay upon the defendants to show that the other plots were acquired by Mangroo or atleast to show that if they acquired by Ramdas he had used the family funds to acquired them. Therefore, I am of the opinion that the decision of the lower appellate court is not entirely correct. He is correct in giving rights of co-tenancy to the plaintiff along with defendants in plots No. 842 but is not correct in respect of other plots. Accordingly the second appeal is partly allowed and the order of the lower appellate court in respect of plots other than plot No. 842 is set aside. The parties to the dispute are declared co-tenants in respect of plot No. 842. Accordingly the second appeal is partly allowed and the order of the lower appellate court in respect of plots other than plot No. 842 is set aside. The parties to the dispute are declared co-tenants in respect of plot No. 842. The second appeal is decided accordingly. Costs on parties.