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1992 DIGILAW 393 (ALL)

Ram Asrey v. Nathoo

1992-03-25

BHAIRO PRASAD

body1992
JUDGMENT Bhairo Prasad, Member. - This is plaintiff's second appeal against the judgment and decree dated 4.4.1985 passed by Sri Awadh Saran, Additional Commissioner, Jhansi Division, Jhansi, reversing the judgment and decree dated 10.2.1982 passed by the Assistant Collector 1st Class, Karwi District Banda in a suit under Section 229-B of the U.P. Zamindar Abolition and Land Reforms Act. 2. The facts of the case are that Ram Asre, Kamta and Lavlesh Kumar filed a suit under Section 229-B of the Act with the contention that Smt. Kailashia was recorded sirdar of the plots in dispute. In order to obtain the bumidhari sanad, she deposited 10 times of the rent on 21.10.1961 and obtained the sanad on 27.11.1961. After becoming bhumidhar, she transferred the land in dispute in favour of the plaintiff 1 to 3 and delivered possession on 21.11.1961. Since then, the plaintiff Ram Asre, Ram Dulare, Kamta and Lavlesh Kumar have been continuing in possession. But due to some misfortune and loss of the original sale-deed, they have not been able to get their names recorded in the revenue papers. Taking advantage of the Plaintiff's weakness, Smt. Kailashia transferred the land through a sale-deed in favour of her own daughter Smt. Sukhia on 14.7.1975. Smt. Sukhia on her part transferred the land in dispute in favour of the defendants 5 to 8 on 10.9.1978 through a sale-deed. But the defendants did not come in possession. 3. The State of U.P. contested the suit alleging that the suit was collusive. Smt. Kailashia and Smt. Sukhia jointly filed a written statement denying to have executed any sale-deed in favour of the plaintiffs 1 to 3. She rather transferred the land in favour of the defendant Smt. Sukhia on 13.7.1975. The defendants 5 to 8 contended that the transfer was made in their favour. Smt. Kailashia died and her daughter Smt. Mahendra and Smt. Sukhia become her legal heirs. The learned trial court decree the suit against which an appeal was preferred before the Divisional Commissioner. The learned Addl. Commissioner allowed the appeal and set aside the learned trial court's order dated 10.2.1982. 4. I have heard the learned counsel for the parties. The contention of Sri Ratan Singh, learned counsel for the appellant are that the learned Addl. Commissioner has not considered and met the reasons recorded by the trial court. The learned Addl. Commissioner allowed the appeal and set aside the learned trial court's order dated 10.2.1982. 4. I have heard the learned counsel for the parties. The contention of Sri Ratan Singh, learned counsel for the appellant are that the learned Addl. Commissioner has not considered and met the reasons recorded by the trial court. His second contention is that the rights of the plaintiff is not to be extinguished if no mutation was effected. His third submission is that Smt. Kailashia acquired bhumidhari saned on 27.11.1961. Relying on 1972 R.D. 206, the learned counsel has contended that if the vendor transfers the land before becoming bhumidhar, the subsequent sale-deed would be void and the first sale-deed would prevail. As regards the bar under Section 34 of the Specific Relief Act, the learned counsel has submitted that the suit is not barred under Section 34 of the Specific Relief Act because other relief has also been sought. Reliance has been placed on 1987 R.D.63. As regard filing of the original sale-deed, the learned counsel has submitted that the secondary evidence has been produced under Section 165 of the Evidence Act and proved by the marginal witnesses. Besides, the respondent cannot raise objection on this point in first appeal if no objection was raised before the trial court regarding the secondary evidence. Reliance has been placed on 1978 R.D. 99. As regards the vendor's denial of having not executed any sale-deed in favour of the plaintiff, the learned counsel has contended that the expert has been examined and after secondary evidence is proved, the burden lies on the defendant. Reliance has been place on 1984 AWC 52 (Rev.) and 1974 Unreported Revenue Cases 339. 5. Sri C.P. Misra, learned counsel for the respondent has contended that the suit is simplicitor declaration and no relief for ejectment has been sought. The suit is, therefore, barred under Section 34 of the Specific Relief Act. Reliance has been placed on 1972 R.D. 251 (S.C). His second contention is that the suit is barred by Section 34(5) of the Land Revenue Act because the plaintiffs were not mutated over the land in dispute. His third contention is that the court below has given categorical finding after appreciating the oral and documentary evidence and neither the sale-deed nor the adverse possession is proved. 6. His second contention is that the suit is barred by Section 34(5) of the Land Revenue Act because the plaintiffs were not mutated over the land in dispute. His third contention is that the court below has given categorical finding after appreciating the oral and documentary evidence and neither the sale-deed nor the adverse possession is proved. 6. I have carefully considered the arguments advanced before me and have also perused the record. The plaintiff appellant have based their claim on the sale-deed dated 21.11.1961 alleged to have been executed by Smt. Kailashia. The learned trial court found this sale-deed executed by Smt. Kailashia and proved by the marginal witnesses. It also found that Smt. Kailashia become bhumidhar on 27.11.1961. Relying on 1972 R.D. 206, the learned trial court has held that the first transfer would get the benefit of Section 43 of the Transfer of Property Act if vendor acquired bhumidhari rights subsequently. As regards possession, it found the possession of the plaintiff appellant proved from 1368-F and the suit not barred under Section 34 of the Specific Relief Act. It also held that the subsequent sale-deed is void. The learned Addl. Commissioner has allowed the defendant's appeal on the ground that though the plaintiff claimed to be in possession since 1361-F no plausible explanation for not effecting mutation from 1961 has been given. He also did not find the plaintiff in possession. His reasoning is that there are no Khasra entries in favour of the plaintiff nor any entry in Class 9. As regards the irrigation receipts, he is of the view that these receipts obtained prior to 1961 i.e. 1363 and 1366-F are of no help to prove the possession of the plaintiffs. Besides this, no receipt for irrigation dues has been filed. He has also found the oral testimony adduced by the plaintiffs not reliable. As regards sanad, he is of the view that there is no reliable evidence to prove that Smt. Kailashia acquired sanad bhumidhari. He also finds the suit barred under Section 34 of the Specific Relief Act and also rejected the testimony of the finger-print expert. He is of the view that the expert's report is surrounded with suspicious circumstances for the reason that the photographer had handed over the negatives to the plaintiffs who could manipulate it at their sweet will. 7. He also finds the suit barred under Section 34 of the Specific Relief Act and also rejected the testimony of the finger-print expert. He is of the view that the expert's report is surrounded with suspicious circumstances for the reason that the photographer had handed over the negatives to the plaintiffs who could manipulate it at their sweet will. 7. The substantial question of law involved in this case is whether the suit is barred under Section 34 of the Specific Relief Act; whether the sale-deed alleged to have been executed in favour of the plaintiff is legally proved and whether the first sale-deed would prevail and the plaintiffs would get the benefit of Section 43 of the Transfer of Property Act in case the land in dispute was transferred before obtaining the sanad bhumidhari. It appears from the plaint that the plaintiff have sought declaration of their bhumidhari rights on the basis of the sale-deed dated 21.11.1961. In the alternative, they also claimed title on the basis of adverse possession. It is quite clear from the wording the prayer made in the plaint that the declaration of the bhumidhar title has been sought on the basis of the sale-deed dated 21.11.1961 and in alternative, the declaration has been sought on the basis of adverse possession. No other relief has been sought. 8. The learned Addl. Commissioner has not found the plaintiffs appellants in possession. I do not find any perversity, mis-appreciation or non-appreciation of evidence on the record. It is a finding of fact which is not to be disturbed in this second appeal. A person in possession is considered in law to have legally correct as contemplated by Section 42 of the Specific Relief Act. He can protect the possession through the court against a trespasser and claim full benefit of law. It is imperative for a plaintiff to prove unequivocally that he was in possession of the property at the time of the institution of the suit. In the instant case, the plaintiff are not in possession. They have not claimed possession or ejectment of the persons in possession of the land in suit. The plaintiff's suit is, therefore, barred by Section 34 of the Specific Relief Act. It has been held by the Hon'ble Supreme Court in Ram Saran etc. In the instant case, the plaintiff are not in possession. They have not claimed possession or ejectment of the persons in possession of the land in suit. The plaintiff's suit is, therefore, barred by Section 34 of the Specific Relief Act. It has been held by the Hon'ble Supreme Court in Ram Saran etc. v. Smt. Ganga Devi 1972 R.D. 251 that if the plaintiff have not sought possession of the property and they have merely claimed a declaration, the suit is barred under Section 42 of the Specific Relief Act. This ruling will prevail over the ruling given by the Hon'ble High Court in Mewa Ram v. Mangal Singh 1987 R.D. 63. The facts of Mewa Ram v. Mangal Singh's case is also different from the fact of the instant case. In the case under reference, an application for amendment was also pending before the Board of Revenue. I am, therefore, of the view that the suit is barred under Section 34 of the Specific Relief Act. 9. As regards the merits of the case, the court below has given findings of fact on possession and the opinion of the expert. The findings are based on full appreciation of evidence on record. They, therefore, call for no interference. Since the suit is barred, any discussion on merits of the case is not necessary. 10. In the result, this appeal fails and is consequently dismissed.