Anant Ram v. Sheikh Mohammad Ishaq — 1981 DIGILAW 447 (ALL)

JUDGMENT K.P. Singh, J. - This is a defendant's second appeal arising out of a suit for possession and damages. 2. The plaintiffs were occupancy tenants of the disputed land and after the enforcement of Act No. 1 of 1951, they claimed bhumidhari right in the disputed land and had alleged that the defendant had taken 8 Bighas 7 Biswas from the plaintiffs through lease deed dated 25-8- 52 for a period of five years. On the expiry of the aforesaid period also the defendant continued in possession and paid yearly rent of Rs. 140 up to 31-8-59 and thereafter he did not pay the rent and became defaulter, hence the plaintiffs served a notice of ejectment on the defendant on 26-8-1964 and thereafter brought the suit giving rise to the present second appeal for the reliefs mentioned above. 3. The defence in the suit was that the Civil Court had no jurisdiction to try the suit and that the suit was barred by time and that the plaintiffs had got no right to execute the lease and that the defendant had become Sirdar of the disputed land as the lease deed in favour of the defendant dated 25-8-52 was void under the provisions of U.P.Z.A. and L.R. Act, and that the defendant was not liable to pay any damages and various other pleas were taken. 4. Both the courts below have decreed the plaintiffs' suit and aggrieved with the judgments of the courts below the defendant has approached this Court under Section 100 of the Code of Civil Procedure . 5. The learned counsel for the defendant-appellant has assailed the judgments of the courts below on the ground that the courts below have acted illegally in recognising the title of the plaintiffs in view of the provisions of Section 116 of the Indian Evidence Act. According to the learned counsel the lease deed in favour of the defendant was a void document in view of Section 156 of the U.P.Z.A. and L.R. Act, hence the defendant-appellant could not be estopped from challenging the title of the plaintiffs in the disputed land, yet the courts below have illegally held that the defendant-appellant was estopped from challenging the title of the plaintiffs to the disputed land. 6. 6. In this connection my attention has been drawn to the ruling reported in AIR 1964 All 395 , Shamsher Bahadur v. State of Uttar Pradesh wherein a learned single Judge of this Court has held that: "If there is no legal sub-tenancy, the so-called sub-tenant cannot be estopped from challenging the status of the tenant." 6-A. Viewed from this angles it appears that the courts below have committed mistake in recoginsing the claim of the plaintiffs taking help from the provisions of Section 116 of the Indian Evidence Act, but it is noteworthy that the defendant-appellant claims right from the plaintiffs-respondents who were occupancy tenants of the disputed land. The defendant-appellant claims sirdari right in the disputed land on the basis of his illegal possession for more than statutory period. The defendants-appellant also claims extinction of the plaintiffs' interest in the disputed land on the ground that the plaintiffs had let out the disputed land to the defendant in contravention of the provisions of Section 156 of the U.P.Z.A. and L.R. Act. Thus the interest of the plaintiffs in the disputed land became extinguished in view of the provisions of Section 190 of the U.P.Z.A. and L.R. Act. If the defendant-appellant does not succeed in acquiring sirdari right in the disputed land and does not succeed in establishing that due to letting of the disputed land by the plaintiffs to him, the interest of the plaintiffs became extinguished in view of the provisions of U.P.Z.A. and L. R. Act.. The conclusions arrived at by the courts below holding the claim of the plaintiffs in the disputed land cannot be held vitiated in law. 7. To any mind the interest of the plaintiff-respondents in the disputed land shall not be extinguished under the provisions of U.P.Z.A. and L.R. Act. The answers to the contentions raised on behalf of the defendant-appellant in this regard are contained in the rulings reported in 1966 All LJ 963, Permanand v. Board of Revenue and 1967 All WR (HC) 161, Lal Behari Ram v. Board of Revenue, U.P. Allahabad. Right of a sirdar, who had let out the holding in contravention of the provisions of U.P.Z.A. and L.R. Act shall not be extinguished until he has been ejected by the Gaon Sabha under Section 167 (2) of the U.P.Z.A. and L.R. Act. 8. Right of a sirdar, who had let out the holding in contravention of the provisions of U.P.Z.A. and L.R. Act shall not be extinguished until he has been ejected by the Gaon Sabha under Section 167 (2) of the U.P.Z.A. and L.R. Act. 8. In the present case it is admitted by the parties before me that Gaon Sabha had taken no steps against the transferor or transferee for ejectment, hence in my opinion when the defendant-appellant admits that he had taken the disputed land from the plaintiffs even the lease being against the provisions of law, the interest of the plaintiffs would not be extinguished. In this view M the matter the courts below have arrived at a correct conclusion that the plaintiffs were tenure-holders of the disputed land and were entitled to the reliefs claimed. 9. As regards the contention of the defendant-appellant that he became sirdar of the disputed land due to illegal and continuous possession for more than statutory period, it is noteworthy that in case of a void lease the possession of the lessees would be against the provisions of law, but it cannot be without the consent of the tenure-holder, hence in my opinion the lessee cannot acquire sirdari right in the land leased to him against the provisions of law under Sections 209 and 210 of the U.P.Z.A. and L.R. Act. To my mind the possession of the so-called lessee would be with the consent of the tenure-holders, hence the provisions of Sections 209 and 210 of the U.P.Z.A. and L.R. Act would not be attracted to the case of the lessee. Thus the defendant-appellant fails to acquire sirdari right in the disputed land on the basis of his illegal and continuous possession over the disputed land. 10. Another argument raised on behalf of the defendant-appellant is that the Civil Court had no jurisdiction to try the suit as the plaintiffs were tenure-holders under the provisions of U.P.Z.A. and L.R. Act and they were claiming possession and damages over the disputed land against the defendants, hence the revenue courts were only competent to grant relief to the plaintiffs in the suit giving rise to this second appeal. I think the contention cannot be accepted in this second appeal in view of the ruling reported in 1978 All LJ 1316 Nasiruddin v. Ram Swarup. I think the contention cannot be accepted in this second appeal in view of the ruling reported in 1978 All LJ 1316 Nasiruddin v. Ram Swarup. The Division Bench of this Court has emphasised that before the appellant can be heard on the question of jurisdiction, he has to show that a wrong decision by the trial Court on the question of jurisdiction has occasioned failure of justice. 11. In the present case the learned counsel for the defendant-appellant has not been able to satisfy me that any, failure of justice has taken place. hence his attack on the judgments of the courts, below for want of jurisdiction fails and in my opinion the judgments and decreased passed by the courts below cannot be held illegal and without jurisdiction. 12. During the course of arguments the learned counsel for the plaintiffs-respondents contended that on the date of the suit the disputed land was situate within the municipal limits, hence the provisions of U.P.Z.A. and L.R. Act would not apply to the facts and circumstances of the present case, and the contentions raised on behalf of the defendant-appellant based on the provisions of U.P.Z.A. and L.R. Act should not he entertained. According to the learned counsel for the plaintiffs-respondents the courts below rightly held the title of the plaintiffs in the disputed land and decreed the suit. 13. The learned counsel for the defendant-appellant has tried to refute the contentions raised on behalf of the plaintiffs-respondents and has contended that in view of the provisions of Section 1 (2) of the U.P.Z.A. and L.R. Act the disputed land was out of the municipal limits on 7th day of July, 1949, hence the provisions of U.P.Z.A. and L.R. Act were attracted and the contentions raised on behalf of the plaintiffs-respondents should fail. In my opinion the contentions raised on behalf of the defendant-appellant have force. 14. In the present case the disputed land was outside the municipal limits when the U.P.Z.A. and L.R. Act was made applicable and the provisions of the U.P.Z.A. and L.R. Act became applicable to the land in question. Nothing has been shown to me how the provisions of the U.P.Z.A. and L.R. Act became inoperative due to the circumstance that the disputed land was included within the municipal limits much after the enforcement of the provisions of U.P.Z.A. and L.R. Act to the land in question. 15. Nothing has been shown to me how the provisions of the U.P.Z.A. and L.R. Act became inoperative due to the circumstance that the disputed land was included within the municipal limits much after the enforcement of the provisions of U.P.Z.A. and L.R. Act to the land in question. 15. The only contention raised on behalf of the plaintiff-respondents is that when the disputed land was included within the municipal limit the provisions of U.P.Z.A. and L.R. Act became inoperative and the defendant-appellant could not acquire any right in the disputed land due to his illegal and continuous possession for more than statutory period. It is difficult for me to accept the contention of the learned counsel for the plaintiff-respondents that the provisions of U.P.Z.A. and L.R. Act became inoperative when the area was included within the limits of the municipality. 16. A Division Bench of this Court in 1970 All LJ 824 Mohd. Shafi v. Gram Sabha, village Bisauli has observed as below though in a different situation (at p. 831):- "Even though a particular plot of land may go outside the territorial limits of a Gaon Sabha, yet the Gaon Sabha is entitled to continue to perform, discharge or exercise the functions, duties and powers under the mentioned Act, in spite of such transfer on the footing that part of the village lay within its circle. So, so long as the State Government does not make a declaration, transferring the rights in a particular plot as well as the powers and functions in relation to that land to another local body, the pre-existing Gaon Sabha would continue to exercise its rights and perform its functions, as previously. Mere transfer of the terrtory from a Gaon Sabha to a Town Area will not divert the Gaon Sabha of its rights in such lands." 17. On the analogy contained in the above quotation I think that unless the State Government make a declaration transferring the right in a particular plot, the right accrued to the tenure-holder shall continue and the provisions of the U.P.Z.A. and L.R. Act shall govern the situation. Mere transfer of territory from Gaon Sabha to municipality will not divert the tenure-holder of his right nor the provisions of U.P.Z.A. and L.R. Act would become inoperative. 18. Mere transfer of territory from Gaon Sabha to municipality will not divert the tenure-holder of his right nor the provisions of U.P.Z.A. and L.R. Act would become inoperative. 18. However, in the present case, J have already indicated above that the defendant-appellant has not succeeded in establishing his sirdari right in the disputed land under the provisions of U.F. Z.A. and L.R. Act nor has he succeeded in establishing that the right and interest of the plaintiffs became extinguished in the disputed land due to the fact that the plaintiffs-respondents had let out the disputed land to the defendant-appellant in contravention of the provisions of Section 156 of U.P.Z.A. and L.R. Act. In this view of the matter the defendant-appellant has not been able to attack the, judgments and decrees passed by the courts below and in my opinion they are not vitiated in law, though the courts below have wrongly taken aid from the provisions of Section 116 of the Indian Evidence Act in recognising the claim of the plaintiffs-respondents. 19. In the circumstances of present case when the defendant-appellant fails to establish his claim in the disputed land and accepts that, he got the disputed land from the plaintiffs, the plaintiffs' title continues to subsist and the decrees granted by the courts below to the plaintiff-respondents cannot he characterise) illegal in any manner. 20. In the result, the second appeal fails and is accordingly dismissed. The judgments and decrees passed by the courts below are hereby confirmed. Parties are directed to bear their own cost.