Ram Bharosey v. Indra Pal — 1982 DIGILAW 852 (ALL)

JUDGMENT B.S. Sharma, Member - This is defendant No. 1 Ram Bharosey's second appeal against the judgment and decree dated 15-4-77 passed by the Additional Commissioner, Lucknow Division Lucknow in first appeal No. 152/75/77 of district Sitapur against the judgment and order dated 6-1-76 passed by the S.D.O. Sitapur in a suit under section 176 of the U.P.Z.A. and L.R. Act in respect of land situated in village Sarna, pargana and Tahsil Sitapur district Sitapur. 2. I have heard the learned counsels for the parties and have perused the record of both the courts below. 3. Briefly stated the case is that tire plaintiff-respondent, Indra Pal, tiled a suit under section 176 of the U.P.Z.A. and L.R. Act claiming ?rd share in Khatas no. 11 and 73 and ?th share in Khata no. 9 of the land in suit situated in village Sarna of district Sitapur. There were 5 defendants in the trial court. Defendants no. 4 and 5 i.e., Gaon Sabha concerned and the State of U.P. did not contest the suit. Defendants no. 2 and 3, namely Nand Kishore and Jeot Rani, respectively did not dispute the claim of the plaintiff. Only defendant no. 1, Ram Bharosey, the present appellant, contested the suit on the ground that Ram Prasad, his grand father has gifted the entire land in dispute to him through a will registered before the District Registrar Sitapur on 19-7-1939. According to this will, the entire property including the land in dispute of Ram Prasad was to devolve 011 the latter's wife on his death and on the death of his wife, it was to devolve on the defendant-appellant. According to the defendant-appellant, Ram Bharosey, there had been a family partition between his father Din Dayal and Jeet Ram son of Ram Prasad his grand father and according to this partition, he was given the entire land in question in accordance with the said will executed by Ram Prasad. According to the defendant-appellant, Ram Bharosey, there had been a family partition between his father Din Dayal and Jeet Ram son of Ram Prasad his grand father and according to this partition, he was given the entire land in question in accordance with the said will executed by Ram Prasad. The learned trial court after appraising both oral and documentary evidence produced by the parties held that the will said to have been executed by Ram Prasad in favour of Ram Bharosey could not be basis of any (i) title and rights to the land in dispute because this will have not come into operation after the death of Ram Prasad and his wife and the defendant-appellant, Ram Bharosey, had not even claimed any rights in the land in suit during the course of consolidation operations in the village which, admittedly, had taken place alter the death of Ram Prasad, the learned trial court further held that the partition as claimed by the defendant-appellant was not proved. The learned trial court, however, decided the suit on the basis of admitted family pedigree and decreed the claim of the plaintiff-respondent. Against this decision of the trial court the defendant-appellant, Ram Bharosey, referred first appeal before the Addl. Commissioner who held that no claim could be allowed in favour of the defendant-appellant on the basis of the will which had not been availed of by the defendant-appellant, Ram Bharosey, even during consolidation of holdings operations and, therefore, his claim was barred under section 49 of the U.P. C.H. Act. The learned Additional Commissioner dismissing the claim of the defendant-appellant upheld the order of the trial court and dismissed the first appeal. 4. The learned counsel for the appellant has argued that the plaint was not maintainable before the trial court as it did not spell out the specific share claimed by the plaintiff respondent in the land in dispute and thus the provisions of sub-rule (4) of rule 127 of the U.P.Z.A. and L.R. Rules were violated that the learned Addl. Commissioner has erred in law in allowing additional evidence to be filed in his court without recording reasons therefor as required under rule 27 Order XLI C.P.C. and he has wrongly relied on C.H. Form 45 as these documents had not at all been admitted as a piece of evidence in the first appellate court that the learned Addl. Commissioner has erred in law in allowing additional evidence to be filed in his court without recording reasons therefor as required under rule 27 Order XLI C.P.C. and he has wrongly relied on C.H. Form 45 as these documents had not at all been admitted as a piece of evidence in the first appellate court that the learned Addl. Commissioner has wrongly held that the claim of Ram Bharosey on the basis of will was barred under section 49 of the C.H. Act because according to the will, the interest of Ram Bharosey arose after the debt of Ram Prasad's wife and as her death had taken place alter the conclusion of the consolidation of holdings operations in the village, there was no question of Ram Bharosey claiming any title and interest in the land in suit during consolidation operations and in these circumstances there could be no question of Ram Bharosey's interest being barred under section 49 of the U.P. C.H. Act and finally, that the learned Additional Commissioner has not applied his mind to the facts and issues of the case and wrongly rejected the will as no pleading and finding had been recorded by the trial court in regard to the nonexistence and non-genuineness of the will. 5. The learned counsel for the respondent has argued that the plaint not only contains the pedigree on which the plaintiff's claim was based but it also contains specific request for the plaintiff's share in the land in suit and, therefore, it is wrong to say that the plaint was filed in violation of the provisions of Rule 127 (4) of the U.P.Z.A. and L.R. Rules ; that according to the provisions of sections 34 and 35 of the U.P. Tenancy Act, no will could be executed by Ram Prasad against the order of succession as provided under the law then in force and, therefore, the will was void ; further that the will has been rightly rejected by both the courts below because Ram Prasad's wife who was admittedly alive during the course of consolidation of holdings operations should have claimed entries in the land in suit in her favour during the consolidation operations and in the event of her failure to do so, provisions of section 49 of the C.H. Act act as a bar against her claim and that of her successor Ram Bharosey, defendant-appellant. In support of this argument a case reported on page 220 R.D. 1969 has been cited. Finally the learned counsel for the respondent has stated that additional evidence had been filed by both the parties on 24-2-77 in the court of the Addl. Commissioner and as no objections against these documents were filed by the parties, the learned Addl. Commissioner allowed these documents to be put on record and they read in evidence. This order of the learned Additional Commissioner, though does not spell out the reasons for allowing these documents but in the absence of any objections village parties, her order cannot be assailed on merits. The documents have been allowed to be filed by the learned Addl, Commissioner in the interest of justice. In reply, the learned counsel for the appellant has stated that the provisions of sections 34 and 35 of the U.P.T. Act would not necessarily apply to this case as the plaintiff-respondent has not shown that the land in dispute was governed by the provisions of the U.P. Act would not necessarily apply to this case as the plaintiff-respondent has not shown that the land in dispute was governed by the provisions of the U.P. Tenancy Act and it was not governed by other law being the personal property of the executor of the will. Further, he has stated that the appellant, Ram Bharosey, did not have interest in the land in dispute during the course of consolidation operations as Ram Prasad's wife was then alive, as such his claim over the land in suit could not be barred by section 49 of the C.H. Act. Since the land in dispute devolved upon the defendant-appellant after the conclusion of consolidation operations, he can certainly claim the land in dispute despite entries to the contrary in the revenue records made during the consolidation operations. In support of this argument, the learned counsel has cited a case reported on page 585 AWC 1976. 6. I have carefully considered the arguments raised by the learned counsels on behalf of both the parties. I have also gone through the record of both the courts below with special reference to the points raised by the learned counsels during the course of their arguments. 6. I have carefully considered the arguments raised by the learned counsels on behalf of both the parties. I have also gone through the record of both the courts below with special reference to the points raised by the learned counsels during the course of their arguments. As regards the point that the plaint did not contain necessary particular of shares of the plaintiff as required under sub-rule (4) of rule 127 of the U.P.Z.A. and L.R. Rules. I find from the plaint itself that the plaintiff-respondent in paragraph 1 and 2 of the plaint had clearly stated the family pedigree and has share in the land in suit and in paragraph 9, he had made dear request of specific share in the land in suit. In view of this clear position, the argument raised by the learned counsel for the appellant in this regard seems to be misconceived and has no substance in it. In regard to the will, both the courts below have not accepted it as a basis for the claim of the appellant. I have gone through this will. It was executed as early as in 1939. The executor of the will had died long before but no steps were taken by his wife to get her name entered in the revenue records in accordance with this will. Further no steps were taken by her or by her successor according to will to get their interests safe-guarded in the revenue records during consolidation of holdings operations. The failure on the part of Ram Prasad's wife to have her name recorded in the revenue papers during the consolidation operations has not at all been explained by the defendant-appellant whose claim is solely based on the said will. The mere existence of a will on paper which is not put into operation by the beneficiaries, even when an opportunity under law is available to them to get it enforced certainly deprives them of any rights to secure enforcement of that will when their rights have been determined according to law during the consolidation of holdings operations. In this context, it may be mentioned that the learned trial court has rejected the claim of the defendant-appellant that subsequent to the will, there had been any partition amongst Jeot Ram son of Ram Prasad and Din Dayal father of the defendant, Ram Bharosey. In this context, it may be mentioned that the learned trial court has rejected the claim of the defendant-appellant that subsequent to the will, there had been any partition amongst Jeot Ram son of Ram Prasad and Din Dayal father of the defendant, Ram Bharosey. There is nothing on record to question this finding of the trial court There is also nothing on record to question the findings arrived at by the courts below in regard 10 the non-validity of the support of the claim of the defendant-appellant and both the courts below have rightly rejected the claim of the defendant-appellant in view of the provisions of section 49 of the U.P. C.H. Act. 7. As regards the question of allowing the additional evidence by the learned additional commissioner, his court's record show that certain documents were filed by both the parties on 24-2-77. On the lists of these documents, the learned additional Commissioner on the same date merely recorded the fact that these documents had been filed by the concerned parties. Admittedly, no objections were filed by the parties, against the filing of the aforesaid documents before the learned additional commissioner. The implication, in these circumstances, is that he allowed the said documents to be filed in her court as additional piece of evidence. Though she has not recorded any reasons for allowing this additional evidence but from the circumstances of the case, it appears that she did so in pursuance of the provisions of sub-rule (b) of Rule 27 Order XLI C.P.C. No doubt according to the provisions of sub-rule (2) of Rule 27 from XLI C.P.C., the learned additional commissioner should have recorded the reasons for addition of the said documents, but her omission or failure to do so does not amount to an illegality and the additional evidence allowed by her is not rendered inadmissible on this account alone. The provisions of sub-rule (2) of Rule 27 XLI C.P.C. are merely directory and not mandatory and their non-compliance by a court cannot necessarily vitiate admission of additional evidence specially when the parties do not object to admission of such evidence. The defendant-appellant should have objected the admission of documents by the plaintiff-appellant in the first appellate court and it is not open to him now to complain about it in the second appeal. The defendant-appellant should have objected the admission of documents by the plaintiff-appellant in the first appellate court and it is not open to him now to complain about it in the second appeal. In view of these reasons, I am afraid that the contention of learned counsel for the appellant that the learned additional commissioner has erred in allowing the additional evidence in her court and in relying upon C.H. Form 45, has no force. Before concluding my findings, I would also like to add that it was for the defendant-appellant to prove that the will was validly executed specially in the face of provisions of sections 34 and 35 of the U.P.T. Act. His duty was all the more clear when the will was not accepted by the plaintiff-respondent. At this stage the appellant's plea that it was for the plaintiff-respondent to prove that the property was not governed by Sections 34 and 35 of the U.P.T. Act cannot the accepted. 8. In view of what has been discussed above, I find that there is no substance in the second appeal. It is, therefore, dismissed, The parties shall bear their own costs.