Hari Shanker v. Kailash Narain — 1992 DIGILAW 97 (ALL)

JUDGMENT Brijesh Kumar, Member - This second appeal is directed against the judgment and decree dated 26.5.84 passed by Sri Awadh Saran, Additional Commissioner, Jhansi Division, Jhansi, allowing the appeal No. 83/7/6 of 1983-84 and reversing the decree of the learned trial court. 2. The facts of the case are that Hari Shanker and Laxman, minor sons of Devidin under guardianship of Smt. Gulab Rani alias Guddi filed a suit u/s 229-B/209 of the U.P. Zamindari Abolition and Land Reforms Act for the declaration of their rights and ejectment of the defendant Kailash Narain from plot no. 223/1: area 2-07 situate in village Laharia with the allegations that Kalloo s/o Sri Narain was the bhumidhar of the land in dispute. He executed a sale deed on 29.8.66 in favour of the plaintiffs and delivered possession. On 11.4.67 mutation was also effected in their favour. The then Lekhpal who bore a grudge against the father of the plaintiffs induced one Devidin to file objection. The lekhpal did not act upon the orders of the mutation and make relevant entries in the revenue papers. Taking advantage of the minority of the plaintiffs and ignorance of their mother, the lekhpal Chheda Lal saw that the plaintiffs were not aware of this mischief. When the defendant Kailash Narain threatened to harvest the crop in 1972, the plaintiffs came to know that actually the defendant Kailash Narain's name was got recorded in the revenue papers though he had no right or title. 3. The defendant Kailash Narain contested the suit denying the allegations and his knowledge of the minority of the plaintiffs. His allegation is that their father is still alive and so their mother had no right to be their guardian and file this suit. He has also pleaded that the total area of the plot in dispute is 4.14 acres held by two share holders Smt. Kala and Kalloo. Smt. Kala transferred her share in 1965 in favour of Gaya Prasad, Shiv Ram, Anand Ram and Parmanand. Mutation in their favour was also effected. Lalloo transferred his share on 21.3.70 for a consideration of Rs. 2000/- in favour of Kailash Narain and delivered possession. A plea of misjoinder of parties was also taken as they were not impleaded as parties. It was also pleaded that the plaintiffs had filed a suit on 22.3.72 which was dismissed and the present suit was not maintainable. Lalloo transferred his share on 21.3.70 for a consideration of Rs. 2000/- in favour of Kailash Narain and delivered possession. A plea of misjoinder of parties was also taken as they were not impleaded as parties. It was also pleaded that the plaintiffs had filed a suit on 22.3.72 which was dismissed and the present suit was not maintainable. The learned trial court decreed the suit. Against this decree, an appeal was filed before the Divisional Commissioner. The learned Additional Commissioner allowed the appeal setting aside the order dated 31.3.77 and 16.4.77 passed by the learned trial court. 4. I have heard the learned counsel for the parties. Sri Hari Shanker, learned counsel for the appellant has contended that the father-in-law of the defendant respondent Kailash Narain was lekhpal of the village at the time of the dispute. Kalloo sold his share to the appellant through a sale deed and mutation order was passed in their favour. The lekhpal manoeuvred to get the share of Kalloo transferred in favour of his own son-in-law. Assailing the findings of the learned Additional Commissioner, he has contended that the court below has erred in law by ignoring the fact that the original sale deed dated 20.8.66 was lost and a certified copy of the same was duly produced and duly proved by the attesting witness Santosh Kumar. It was further asserted that the sale deed in favour of the plaintiff appellant is duly proved and no evidence according to the provisions of the Evidence Act and mutation order on the basis of the sale deed was passed. But the mutation was not acted upon due to active connivance of the lekhpal Chheda Lal, the father-in-law of the defendant respondent. Another submission made by him is that since the vendor Kalloo has stated that he has sold the land in dispute to the plaintiff, his admission operates as estoppel against him. After he executed the sale deed in favour of the plaintiff appellant, Kalloo had no right to execute another sale deed on 23.3.70 in favour of the defendant respondent. He further assailed the findings of the court below alleging that it failed to meet the reasonings of the trial court in his judgment of reversal. 5. After he executed the sale deed in favour of the plaintiff appellant, Kalloo had no right to execute another sale deed on 23.3.70 in favour of the defendant respondent. He further assailed the findings of the court below alleging that it failed to meet the reasonings of the trial court in his judgment of reversal. 5. Sri V.K. Saxena, learned counsel for the respondent has submitted that Kalloo has denied to have executed any sale deed in favour of the plaintiffs and the mutation proceedings have no bearing on a regular suit. 6. I have carefully considered the arguments advanced before me and have also perused the records. It is undisputed that Kalloo was the owner of the property in dispute. Both the plaintiffs and defendant claim ownership of the land in dispute on the basis of sale deed executed by Kalloo. The question to be determined in this case is which of the two sale deeds is validly executed. The plaintiff appellant has filed an attested copy of the original sale deed executed on 20.8.66. It appears from the judgment of the learned trial court that Smt. Gulab Rani, mother of the plaintiff appellant stated before it that she had filed the original sale deed in the mutation proceedings. After mutation order was passed, she did not get back the original sale deed. She was informed that one Mahesh Chand Advocate had taken back the sale deed. The learned trial court had summoned the file of mutation proceedings. The sale deed dated 20.8.66 was filed in the proceedings. This is proved from the list of documents attached to the file. The sale deed was got filed through Sri Deshraj Singh Advocate. Smt. Gulab Rani stated before the trial court that she tried in vein to trace out Sri Mahesh Chand but she could not get the sale deed which was deliberately withheld with an intent to harm her. The learned trial court in the circumstances mentioned above, held that in the absence of original sale deed, secondary evidence was duly proved by the attesting 'witness Santosh Kumar. The learned Additional Commissioner did not agree with this finding dubbing the testimony of Santosh Kumar as not reliable. Another ground on which he rejected the sale deed is that its executor Kalloo denies to have executed any sale deed in favour of the plaintiff appellant. The learned Additional Commissioner did not agree with this finding dubbing the testimony of Santosh Kumar as not reliable. Another ground on which he rejected the sale deed is that its executor Kalloo denies to have executed any sale deed in favour of the plaintiff appellant. The learned Additional Commissioner has unjudiciously concluded that the sale deed is not proved as required u/s 68 of the Evidence Act. He has utterly failed to appreciate the circumstances in which the original sale deed was deliberately removed. It is proved from the evidence on record that Chheda Lal the then lekhpal of the circle is the father-in-law of the defendant respondent. This lekhpal was bent upon to harm the plaintiff appellant. The learned trial court has observed that the lekhpal was instrumental in not getting the entries made in favour of the plaintiffs in spite of the mutation order passed on 11.4.67. But when it came to the case of his son-in-law in whose favour the mutation order was passed, he acted with breakneck speed in making the mutation effective in compliance of the mutation order dated 6.6.70. The mutation order was effected on 17.6.70. On the contrary, in the case of the plaintiff appellant, he did not send any parwana amaldaramad to the tehsil and in order to give a slip to the plaintiff, he sent another parwana amaldaramad which did not relate to the case. 7. The learned Additional Commissioner has rejected the sale deed in favour of the plaintiff appellant on the ground that its executor had denied to have executed any sale deed. The lekhpal has referred to the admission of Kalloo in mutation proceedings No. 8 wherein he had admitted to have executed the sale deed in favour of the plaintiff appellant. The learned trial court has observed his demand and refused to take his statement at its face value with regard to his denial about the first sale deed. The denial is obvious because he had executed another sale deed in favour of the defendant respondent. The learned trial court has rightly rejected the denial of Kalloo. The learned Additional Commissioner should have weighed the evidence in the light of the admission of Kalloo made in the mutation proceedings. It is, no doubt, settled that the mutation proceedings have no bearing on a regular suit. But the statement made during a proceeding, cannot be altogether ignored. The learned trial court has rightly rejected the denial of Kalloo. The learned Additional Commissioner should have weighed the evidence in the light of the admission of Kalloo made in the mutation proceedings. It is, no doubt, settled that the mutation proceedings have no bearing on a regular suit. But the statement made during a proceeding, cannot be altogether ignored. I am, therefore, satisfied that the learned trial court has rightly inferred that the sale deed executed in favour of the plaintiff appellant is validly proved. 8. As regards possession, it has been recorded by the learned trial court that Smt. Gulab Rani remained in possession of the land in dispute after the execution of the sale deed. Subsequently, the defendant respondent Kailash Narain came in possession on the basis of the subsequent sale deed. Kalloo had no right, after making a sale deed in favour of the plaintiff appellant as early as 1966, to execute another sale deed in respect of the same land in favour of the defendant respondent. The defendant respondent has no right to retain land and claim ownership on the basis of a document which is void. 9. In the result, this appeal is allowed and the order of the learned Additional Commissioner is set aside. The judgment and decree passed by the learned trial court is upheld.