Ram Naresh v. Board of Revenue, U. P — 1985 DIGILAW 907 (ALL)

ORDER S.K. Dhaon, J. - This is a plaintiffs writ petition arising out of a suit for declaration under S. 229-B of the U.P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act). The subject matter of the controversy is certain grove land of which the petitioner claims to be a co-Bhumidhar along with respondent 4, Ramu. The plaintiffs case is that the land in suit is a joint family property and after the date of vesting the family became the Bhumidhar of the same and, therefore, he and the defendant Ramu (respondent 4) are co-sharers. Amongst other pleas, the defendant in his written statement pleaded that the suit was barred by limitation. The defendant also pleaded that the plaintiff has surrendered his rights in the land a long time back and since the said surrender he was in continuous possession over the land to the exclusion of the plaintiff. 2. The trial court negatived the plea of surrender raised by the defendant. It, however, relying upon the oral and some other evidence plus the deposition made by the plaintiff in the suit, recorded a finding that the defendant acquired rights by prescription and, therefore, the suit was barred by limitation. The first appellate court reversed the findings of the trial court and decreed the suit. In second appeal the Board of Revenue has set aside the decree of the first appellate court and restored the decree of the trial court dismissing the suit. Hence this petition. 3. In second appeal, the Board of Revenue has recorded a finding that the ouster of the plaintiff from the land in dispute stands established from the admission made by the petitioner (plaintiff) in his deposition in the suit itself. 4. In support of this petition it is urged that in the absence of any plea of ouster in the written statement, the Board of Revenue had no jurisdiction to throw out the suit of the plaintiff on the ground that the rights of the plaintiff stood extinguished. A true copy of the written statement of Ramu, the defendant, has been filed along with a supplementary affidavit filed on behalf of the petitioner. I have gone through the written statement more than once. A true copy of the written statement of Ramu, the defendant, has been filed along with a supplementary affidavit filed on behalf of the petitioner. I have gone through the written statement more than once. It is true that neither the word ouster has been used in the written statement nor is such a plea specifically raised as required by the form of general defence given in Schedule I appendix A of the Code of Civil Procedure. A written statement should normally be in accordance with the procedure prescribed. Times out of number courts have deprecated the practice of not observing the rule. But at the same time a court of law should be loath to reject a written statement outright on account of a technical defect. Therefore, nothing will turn upon the written statement not being in accordance with Appendix A to Schedule I. We have to concentrate on the substance of the averments made in the written statement and not the form. 5. The plea of surrender of the land in dispute by the plaintiff has been taken in specific terms. This plea, as already stated, has not found favour with the trial court. Nonetheless, the contents of the written statement have to be scrutinised to discern whether the necessary facts constituting ouster have been stated or not. It is to be borne in mind that the word `ouster' has no magic enchantment. True, it has acquired a legal connotation and the mere use of this word conveys the legal implications which are attached to it. However, if, instead of using the word the draftsman puts in the relevant material from which such a defence can be inferred, the requirement of the law is complete and courts of law will have to proceed on the assumption that a plea of ouster has been really taken. 6. In pars 12 of the written statement it was averred that Sukkhu, the predecessor-in-interest of the plaintiff, migrated to the place of his in-laws about 80 to 85 years back, he surrendered his rights in all his properties including the land in dispute and since then he had no connection left with any of the properties. 6. In pars 12 of the written statement it was averred that Sukkhu, the predecessor-in-interest of the plaintiff, migrated to the place of his in-laws about 80 to 85 years back, he surrendered his rights in all his properties including the land in dispute and since then he had no connection left with any of the properties. In para 13 it was recited that Sukkhu, since the alleged surrender, neither resided in the village wherein the land in dispute is situate nor did he have anything to do with the property situate there nor was he in possession over the same. On the contrary, the defendant had been in exclusive physical possession over the land in dispute. In para 15 it was stated that Sukkhu merely retained one-third share in a house with respect to which he later on executed a sale deed in favour of the defendant. Finally, in para 16 it was stated that the suit was barred by time. Having considered the matter carefully. I am of the view that in substance the plea of ouster has been raised by the defendant. 7. Let us now examine the deposition of the plaintiff (the petitioner) recorded in the suit to meet the submission of his learned counsel that the Board of Revenue has not only misread the statement, has not only taken an extract of the deposition out of the context, but has also thrown overboard the well-accepted principle of the construction of an admission of a party. It is to be borne in mind that the alleged admission has been extracted in cross-examination. 8. In the examination-in-chief the plaintiff stated that the property in dispute was a joint family property. His father, in 1950, acquired Bhumidari rights over the same and obtained a sanad and his name was entered in the revenue papers. The Lekhpal deliberately did not enter his name after his father's death. His father did not surrender his rights. He did not execute any sale deed of his share in the house. Before we read the cross-examination it has to be borne in mind that the property in dispute as well as the house referred to in the deposition of the plaintiff are situate within the municipal limits. His father did not surrender his rights. He did not execute any sale deed of his share in the house. Before we read the cross-examination it has to be borne in mind that the property in dispute as well as the house referred to in the deposition of the plaintiff are situate within the municipal limits. This fact is evident from the statement of the plaintiff in the examination-in-chief that prior to the institution of the suit he had given notice to the State of Uttar Pradesh as well as to the Nagar Mahapalika. In the cross- examination the plaintiff stated that he enquired about his share in the property in dispute from the defendant Ramu and he was informed that he (the plaintiff) had no share in the same. Then, he made enquiries from the village Lekhapal He made this enquiry about 8 months back. The plaintiff was subjected to a long cross-examination about the family members as well as about the situation of the various plots which are the subject matter of the suit. To one question his answer was that at no stage did he ever pay any tax to the Municipality with respect to his house. Apart from the property in dispute he held land covering 13 biswas. He had no other property at that time. It was wrong to suggest that his father had executed any deed of surrender in favour of Ramu or Ramu's father. It was wrong to suggest that he had no property in village Bharlai (the village where the property in dispute is situate). It was wrong to suggest that in village Bharlai he had no house. It was wrong to suggest that he had executed a sale deed of a share in the house in favour of Ramu. Once, 15 or 16 years back he had asked Ramu to get his name mutated. At that time no one else was present. Ramu refused this request by saying that he had no share. Thereafter the cross-examiner put certain questions regarding the number of children the other members of the family had. Then a question was asked about the possession of Ram over the property in dispute. He stated that he was paying land revenue with respect to the property in dispute and this payment was,being made to Ramu and so on. 9. Thereafter the cross-examiner put certain questions regarding the number of children the other members of the family had. Then a question was asked about the possession of Ram over the property in dispute. He stated that he was paying land revenue with respect to the property in dispute and this payment was,being made to Ramu and so on. 9. Sections 17 and 31 of the Evidence Act make it clear that an admission is not conclusive proof of the matter admitted. An admission merely suggests an inference to the court on some fact or facts in issue. Therefore, before the Court draws any inference against party making an admission it becomes its to scrutinise the evidence in and out. It should examine the deposition whole hog on point in issue and not base its judgment on truncated or extracted portion of an alleged admission. The inference has to be a clear one therefore, the admission must be an equivocal and comprehensive one. 10. In Bharat Singh v. Mst. Bhagirathi, AIR 1966 SC 405 it was held that admissions have to be clear if they are to be used against a person making them. 11. In Ajodhya Prasad Bhargava v. Biawani Shanker Bhargava, AIR 1957 All 1 (FB) this Court has taken the view that an admission should be clear, certain, definite and not ambiguous, vague or confused. 12. In Jwala Das v. Pirsant Das, AIR 1930 PC 245 the view taken is that if a statement is to be relied upon as an admission the whole statement must be taken. 13. Reading the statement of the plaintiff through and through, the conclusion is inevitable and also keeping in view the fact that the Board of Revenue has turn out of context a few lines from the deposition of the plaintiff (the lines underlined by me above) the conclusion is irresistible that the plaintiff did not make any admission much less a clear, certain and definite one that about 15 or 16 years back the defendant Ramu had informed him (the plaintiff) that he had no share in the property in dispute. Since the Board of Revenue has not referred to any other material except the alleged admission of the plaintiff while recording his findings on the question of ouster of the plaintiff from the property in dispute, the matter has to be sent down to the appropriate Court for considering the other trial on record having bearing on the said question. 14. I am deliberately refraining from ,expressing any opinion as to what in law constitutes ouster although some debate has taken place before me on this question. There is no limitation prescribed by or under the Act for instituting a suit for the declaration of rights under S. 229-B. A suit for possession by a co-sharer is not contemplated by law. His remedy is to file a suit for partition. Therefore, S. 209 of the Act will have no application in type case of a suit for possession by a co Bhumidhar. For filing a suit for partition under S. 176 of the Act too no period of limitation is prescribed by or under the Act. Sub-cl. (c) of S. 189 is referable to S. 209. Section 341 makes the provisions of the Limitation Act. 1963, applicable to the proceedings under the Act unless otherwise expressly provided by or under the Act. There is nothing in the Act to indicate that the provisions of the Limitation Act will not apply to suit instituted under S. 229B. Therefore, the provisions as contained in S. 27 of the Limitation Act will be attracted suits instituted under section 229B. Section of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property all be extinguished. Therefore, it is for the defendant to prove that the rights of the plaintiff have extinguished even though the property in dispute is a joint family property and the parties are co-sharers. This can happen only if the ousted from the property in dispute or the period more than the one prescribed for the institution of the suit for possession. While giving its finding on this question the Court will analyse the evidence led by the defendant in this behalf and then it will apply the relevant law. 15. The question now arises as to which Court should be directed to give a fresh decision. While giving its finding on this question the Court will analyse the evidence led by the defendant in this behalf and then it will apply the relevant law. 15. The question now arises as to which Court should be directed to give a fresh decision. The first appellate court has decreed the suit. I see no reason as to why the petitioner should be deprived of the finding given by the first appellate court in his favour. I, therefore, consider it appropriate that the Board of Revenue should rehear the appeal and give a fresh decision. 16. This petition succeeds and is allowed. The order dated 31-7-1978 passed by the Board of Revenue is quashed. It is directed to rehear the appeal of the respondent and decide the same on merits and in accordance with law and in the light of the observations made above. There shall be no order as to costs.