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Allahabad High Court · body

1986 DIGILAW 111 (ALL)

Mahavir Singh v. Shri Pal

1986-01-30

OM PRAKASH

body1986
JUDGMENT Om Prakash, J. - This is a second appeal by the plaintiffs against the judgment and decree dated 17-3-1963 of the learned Civil Judge, Ghaziabad, affirming the judgment and decree dated 16-10-1971 passed by the II Additional Munsif, Ghaziabad. Both the courts below dismissed the suit of the plaintiff. The suit of the plaintiffs was for declaration that the sale deed dated 4-5-1965, which was executed by their father Sri Hari Singh in favour of defendants Nos. 1 to 4, be declared as invalid and they also claimed in alternative their possession over the suit plots admeasuring 5 bighas 7 biswas 16 biswansis. The sale deed was executed for the two plots Nos. 800 and 1359. The case of the plaintiffs is that the suit plots were their ancestral property and, therefore, they have acquired tenancy right by birth therein and they also acquired bhumidhari right after the date of vesting under Section 18 of the U.P. Zamindari Abolition and Land Reforms Act, 1951. The defendants denied the right, title or interest of the plaintiffs in the suit plots. 2. The trial court framed as many as four issues. The issue No. 1 was whether the plaintiffs have any right in the property in suit. This issue was decided in negative and, therefore, the suit was dismissed. In appeal, the lower appellate court accepted the contention of the plaintiffs to the extent that both the plots in dispute constituted ancestral property of the plaintiff, but then it was held that they did not acquire Bhumidhari right in the disputed plots. The approach of the lower appellate court was that the right possessed by any intermediary before the date of vesting was completely extinguished when the land was vested in the state on the enforcement of the U.P. Zamindari Abolition and Land Reforms Act, 1951, and absolutely new rights were conferred under the U.P. Zamindari Abolition and Land Reforms Act. Coming to this conclusion, the learned lower appellate court relied on Rana Sheo Ambar Singh v. Allahabad Bank Ltd. Allahabad 1961 All LJ 716: ( AIR 1961 SC 1790 ) and Jamuna v. Deputy Director of Consolidation 1970 All LJ (SOC) 16. 3. I have heard Sri N. A. Kazmi, learned counsel for the appellants and Sri R. N. Singh, learned counsel for the defendants-respondents. 3. I have heard Sri N. A. Kazmi, learned counsel for the appellants and Sri R. N. Singh, learned counsel for the defendants-respondents. The argument of Sri Kazrni is that the decision of the lower appellate court is wholly erroneous, inasmuch as there is no law to divest any person, who acquired tenancy right before the date of vesting, of his rights in the land and that like their father the plaintiffs being the members of the joint family and the suit plots being the ancestral property, they also became Bhumidhars under Section 18 of the U.P. Zamindari Abolition and Land Reforms Act. It is argued that it is immaterial whether the names of the plaintiffs were recorded or not in the revenue record as Bhumidhars after the enforcement of the U.P. Zamindari Abolition and Land Reforms Act. In short, the argument is that when it is accepted by the lower appellate court that the suit plots constituted ancestral property before the date of vesting, then the plaintiff would have acquired tenancy right by birth in the suit plots and after the enforcement of the U.P. Zamindari Abolition and Land Reforms Act they have become Bhumidhars like their father. It is contended that the suit plots being ancestral property, the father, namely, Sri Hari Singh, whose name was recorded as Bhumidhars in the revenue record, could not be kept at a higher pedestal, because his position was the same as that of the plaintiff. In the ancestral property, Sri Kazmi argued, all the male members up to three degrees would acquire right and that the entry in the revenue record will not be a determinative factor whether the plaintiffs acquired Bhumidhari right or not. I fully agree with this contention of Sri Kazmi. When the lower appellate court uninhibitedly accepted the case of the plaintiffs that the suit plots constituted ancestral property of Sri Hari Singh and his sons, who are plaintiffs, then the plaintiffs should have been held as co- Bhumidhars with their father. The lower appellate court relied on Rana Sheo Ambar Singh v. Allahabad Bank Ltd. Allahabad ( AIR 1961 SC 1790 ) (supra), but it was misread by him. The lower appellate court relied on Rana Sheo Ambar Singh v. Allahabad Bank Ltd. Allahabad ( AIR 1961 SC 1790 ) (supra), but it was misread by him. The portion reproduced from the aforesaid authority by the lower appellate court itself supports the case of the plaintiffs, as it was held by the Supreme Court in the said case that Khudkasht and Sir land and intermediary groves shall be deemed to be settled with intermediary and he would have acquired Bhumidhari right therein. The plaintiffs being the members of the joint family and the suit land being ancestral property, belonged to all the members of the family and not only to the head of the family. All were the intermediaries and, therefore, the suit plots belonged to the plaintiffs as well as their father. What the Supreme Court said is that all the three kinds of the properties namely, Khudkast, Sir land and intermediary groves vested in the State and were resettled with the intermediary on a new tenure and not in the same right, which he had in them before the date of vesting. It is this observation of the Supreme Court which has been misread by the lower appellate court. No doubt, after the enforcement of the U.P. Zamindari Abolition and Land Reforms Act the intermediaries, who were entitled to the tenancy rights before the date of vesting, would acquire the new rights under the aforesaid Act and the old rights will not be continued under the new Act. 4. The question for consideration in the instant appeal is whether the plaintiffs, who were entitled to the suit land, which was ancestral property, will cease to have any right therein after the enforcement of the U.P. Zamindari Abolition and Land Reforms Act. This question was not answered against the plaintiffs by the Supreme Court in that case, but the only, pronouncement was that after the enforcement, of the U.P. Zamindari Abolition and Land Reforms Act, the tenure holders will have the property under the new rights and the old tenancy right prior to the date of vesting would extinguish. It does not mean that an intermediary, who had a right either in Khudkast or Sir land or intermediary groves before the date of vesting, cannot become Bhumidhar after the U.P. Zamindari Abolition and Land Reforms Act came into force. It does not mean that an intermediary, who had a right either in Khudkast or Sir land or intermediary groves before the date of vesting, cannot become Bhumidhar after the U.P. Zamindari Abolition and Land Reforms Act came into force. The father of the plaintiffs acquired Bhumidhari right and there was no difference between his position and that of the plaintiffs and, therefore, the plaintiffs would equally acquire Bhumidhari right with their father. 5. The contention of Sri Kazmi is fully supported by Mahabir v. Suba Lal, 1965 ALL LJ 582 and by Chetanayaraj Singh v. II Additional Civil Judge, Aligarh, 1977 All WC 289. The argument of Sri Singh is that the case of Mahabir (supra) was overruled by Ram Awalamb v. Jata Shankar, 1968 All LJ 1108: ( AIR 1969 All 526 ) (FB). I do not agree with the submissions of Sri Singh. In the case of Mahabir (supra), a learned single Judge of this Court held that on passing of the U.P. Zamindari Abolition and Land Reforms Act the members of the joint Hindu Family hold Bhumidhari tenure as joint tenants and not as tenants in common. In the case of Ram Awalamb (supra), the Full Bench of this Court disagreed with the observation of the learned single Judge in the case of Mahabir (supra) to a limited extent only that after the U.P. Zamindari Abolition and Land Reforms Act, the members of a joint Hindu Family, who acquire Bhumidhari tenure, will not become the joint tenants but tenants in common. So the point of disagreement was whether the members of the joint Hindu Family, who acquire Bhumidhari right after the enforcement of the U.P. Zamindari Abolition and Land Reforms Act, will hold the said right either as joint tenants or tenants in common. Whereas, the learned single Judge in the case of Mahabir (supra) took the view that they will hold Bhumidhari tenure as joint tenants, the Full Bench in the case of Ram Awalamb (supra) held that they would hold Bhumidhari tenure as tenants in common. On the point of acquisition of Bhumidhari right by the members of the joint family, there was no disagreement in the case of Ram Awalamb (supra). 6. On the point of acquisition of Bhumidhari right by the members of the joint family, there was no disagreement in the case of Ram Awalamb (supra). 6. I therefore, hold that the father of the plaintiffs was not entitled to transfer the share of the plaintiffs and to that extent the sale deed 4-5-1965 in favour of the defendants Nos. 1 to 4 is invalid. 7. In the result, the appeal is partly allowed with costs. The judgment and decree of the Courts below are set aside. The suit of the plaintiffs is decreed and it is declared that the sale deed dated 4-5-1965 to the extent of the shares of the plaintiffs in the suit plots is invalid and inoperative.