Sheo Balak Ojha v. Board of Revenue — 1982 DIGILAW 272 (ALL)

JUDGMENT R.S. Singh, J.- This writ petition is directed against the order of the Board of Revenue dated 21-12-1974 dismissing the appeal of the petitioner. 2. The facts of the case, in brief, are that a suit under Section 229-B/209 of the U.P. Zamindari Abolition and Land Reforms Act was filed by respondent no. 4 and others in respect of plot nos. 418 (area 91 acres) and 485 M (area .80 acres) on the allegations that originally Lautan Rai was the fixed rate tenant of the land in dispute. By private petition between his descendants the land in dispute fell in the share of Daulat Rai. Daulat Rai had executed usufructuary mortgage deed in favour of Prithvi Pal and Bechchu, ancestors of the petitioner on 13-6-1900 for Rs. 2000/-. After his death he was succeeded by his son Damri who on his death was succeeded by his widow Smt. Rani Devi, defendant no. 1. Smt. Rani Devi executed a sale-deed on 4-5-53 in favour of plaintiff-respondent no. 4. After obtaining a sale deed the plaintiff respondent no. 4 redeemed the mortgage on 8-5-53 on payment of Rs. 2000/- to the petitioner who put him in possession over the land in dispute. The petitioner has got no concern and he was never a tenant of the land in dispute and he is not in possession. The petitioner has got his name entered in the revenue records and is denying the title of the plaintiff-respondent. Hence the suit was filed for declaration that the plaintiff-respondent is the bhumidhar of the land in dispute and is in possession. In the alternative, a prayer for putting him in possession was also made in case he was found out of possession. The relief was subsequently amended for the ejectment of the petitioner when a dispute between the parties under Section 145 Cr. P.C. was decided in favour of the petitioner and the disputed land was released in his favour. 3. The suit was contested by the petitioner on the ground that there was no private petition among the descendants of Lautan Rai. On the basis of the sale-deeds by Smt. Rani Devi on 3-12-1957, by Ram Narain on 30-4-58 and by Sukhdeo and Paras on 13-10-1958 in respect of .66 acres of plot no. 487/4., the defendant-petitioner is bhumidhar of this plot. In respect of plot no. On the basis of the sale-deeds by Smt. Rani Devi on 3-12-1957, by Ram Narain on 30-4-58 and by Sukhdeo and Paras on 13-10-1958 in respect of .66 acres of plot no. 487/4., the defendant-petitioner is bhumidhar of this plot. In respect of plot no. 418 his case was that one Kapil was recorded as occupant in 1356 fasli and 1359 fasli. He obtained a decree against him and became a bhumidhar of this plot also. The petitioner has denied that he was a mortgagee of the land in dispute. It was further alleged that the suit was filed beyond time and that the suit was filed for a portion of plot no. 487 is also legally bad. The plaintiff-respondent is not the tenure-holder of any of the plots in dispute. Therefore, he is not entitled to any decree. 4. The suit was dismissed by the trial court on the finding that no private partition has been proved and the suit was also time-barred. The controversy was also raised before the trial court that Sukhdeo and Paras were not the real sons of Ram Dahin but they were held to be the real sons of Ram Dahin by the trial court. Against the judgment and decree of the trial court the plaintiff-respondent no. 4 filed an appeal which was allowed by the Additional Commissioner and the suit was decreed. It was held by the Additional Commissioner that Sukhdeo and Parasnath were not the real sons of Ram Dahin and the suit was not time-barred. It was further held that the private partition set up by the plaintiff-respondent no. 4 was proved. The findings recorded by the Additional Commissioner were affirmed by the Board of Revenue in second appeal. The petitioner has challenged the orders of the Board of Revenue and the Additional Commissioner in writ petition before this Court. 5. The pedigree as given in the plaint is reproduced belows:- 6. It was contended by the learned counsel for the petitioner that the private partition set up by the plaintiff-respondent has not been proved and the findings of the appellate courts contrary to it are without any basis of any evidence. 7. 5. The pedigree as given in the plaint is reproduced belows:- 6. It was contended by the learned counsel for the petitioner that the private partition set up by the plaintiff-respondent has not been proved and the findings of the appellate courts contrary to it are without any basis of any evidence. 7. In reply the learned counsel for the respondents contended that the Additional Commissioner as well as the Board of Revenue on a consideration of the evidence on the record of case have recorded a finding of fact that the private partition has been proved. 8. On the question of private partition the Additional Commissioner has in paragraph 5 of his judgment made reference to certain entries and the execution of usufructuary mortgage on 13-6-1900 by Daulat in favour of Prithvi Pal and Bachchoo, ancestors of the defendant-petitioner and also with reference to the oral and documentary evidence a finding was arrived at that private partition has been proved and Daulat was held to the sole tenant. The Board of Revenue has also considered this point and on the basis of the material evidence on the record affirmed the finding of the Additional Commissioner. The finding on the question of private partition is a question of fact which cannot be challenged in writ petition irrespective of the fact that it is not based on detailed discussions and reasonings. 9. The learned counsel for the petitioner based his title on the basis of three aforesaid sale-deeds executed in the year 1957 and 1958. But in view of the finding that there was a partition in the family and Smt. Rani Devi was the sole bhumidhar of the land in dispute who had already executed a sale deed on 4-5-1953 in favour of the plaintiff-respondent. The petitioner cannot claim to be bhumidhar on the basis of subsequent sale-deeds. 10. It has been next contended by the learned counsel for the petitioner that the petitioner was not the mortgagee of the land in dispute. There is no dispute about the fact that usufructuary mortgage-deed 13-6-1900 executed by Daulat in favour of Prithvi Pal and Bechchu and there is no denial of the fact that the petitioner is not the heir of the mortgagees. His possession has been established as mortgagee. The redemption of mortgage on payment of Rs. 2000/- has also not been denied. There is no dispute about the fact that usufructuary mortgage-deed 13-6-1900 executed by Daulat in favour of Prithvi Pal and Bechchu and there is no denial of the fact that the petitioner is not the heir of the mortgagees. His possession has been established as mortgagee. The redemption of mortgage on payment of Rs. 2000/- has also not been denied. In these circumstances the finding recorded by the appellate courts that the possession of the petitioner was as mortgagee cannot be challenged in this writ petition. 11. It was also contended by the learned counsel for the petitioner that in case the possession of the petitioner was a mortgagee but on the plaint allegations itself the mortgage was redeemed in the year 1953. Therefore, the possession of the petitioner will become that of trespasser from the date immediately after the redemption and the suit was filed on 24-3-1962. Therefore the suit was clearly barred by time. In support of his contention he has relied on Prithi Nath Singh and others v. Suraj Ahir and others reported in (A.I.R. 1963 S.C. 1041), wherein it has been held that subsequent to the redemption of the mortgage his possession becomes different from his previous possession as mortgagee. As soon as the mortgage is redeemed, the relationship of mortgagor and mortgagee comes to an end and possession subsequent to the redemption will not be as a mortgagee but will be as a trespasser. The learned counsel for the respondents does not challenge the legal position. But according to him after the redemption of mortgage the plaintiff-respondent had come in possession and it is only on the basis of the proceedings under Section 145 Cr. P.C. which was decided in favour of the petitioner that he came in possession when the land in dispute was released in his favour. 12. From the judgments of the Additional Commissioner as well as Board of Revenue it appears that the finding has been recorded that the petitioner came in possession from 6-5-1964 when the property in dispute was released by the Magistrate when the proceedings under Section 145 Cr. P.C. were decided in his favour. This is also a question of fact based on the discussions of the evidence and has to be accepted. 13. Lastly, it was contended by learned counsel for the petitioner that the total area of plot no. 487 was 2.63 acres. P.C. were decided in his favour. This is also a question of fact based on the discussions of the evidence and has to be accepted. 13. Lastly, it was contended by learned counsel for the petitioner that the total area of plot no. 487 was 2.63 acres. The petitioner has also purchased .66 acres out of it, and the suit is filed in respect of .80 acres of this plot. It has not been proved from which area the plaintiff-respondent wants decree or possession. It has been contended by the learned counsel for the respondent in reply that both the plots in dispute were the subject matter of the mortgage and the mortgagee cannot deny the title of the mortgagor as held in Sah Ali Hammad v. Mohammad Nazir Ali and others, (A.I.R. 1929 All. 329) ; Shree Ram v. Thakur Dhan Bahadur Singh, (A.I.R. 1965 All. 223) ; Mt. Bilas Kunwar v. Desraj Ranjit Singh and others, (A.I.R. 1915 P.C. 96); and M. Mujibar Rahaman v. Isub Sarati reported in the (A.I.R. 1928 Cal. 546). 14. According to the findings recorded by the appellate courts the defendant petitioner came in possession on 8-5-64 and he has got no title in the land in dispute and the plaintiff's title has been fully proved. Therefore, he has no right to resist the claim of the plaintiff-respondent for his rejectment. In view of the fact that he came in possession during pendency of the suit, strictly speaking, the question of limitation does not arise in this case and the question of limitation does not arise in this case and the Board of Revenue has committed no error in dismissing the second appeal of the petitioner. 15. In the result, the petition fails and it is accordingly dismissed without any order as to costs.