JUDGMENT Hon’ble Rakesh Tiwari, J.—Heard learned counsel for the parties and perused the record. 2. The plaintiff-respondent No. 1 instituted Original Suit No. 253 of 1983 against the defendants for the decree of declaration with the allegation that Smt. Kiran Devi-defendant No. 4 is not a legally wedded wife of Late Lal Singh, father of the plaintiff that the plaintiff being the only daughter of Late Lal Singh is the sole heir to the property of her father. In the suit prayer was made for mandatory injunction to the effect that order of mutation in favour of Smt. Kiran Devi dated 7.2.1980 or of any other date be declared null and void and not binding upon the plaintiff. A prayer for cancellation of alleged sale deed dated 28.7.1980 executed by Smt. Kiran Devi in favour of defendant Nos. 1 to 3 holding it to be null and void and not binding upon the plaintiff, was also made. In the alternative it was prayed that Court may declare that the sale deed in question is subject to the maintenance and expenses for the marriage of plaintiff and for permanent injunction that the defendants be restrained to interfere in the peaceful possession of the plaintiff. 3. The suit was contested by the defendants No. 1 to 3 by filing written statement denying plaint allegation. Defendant No. 4, Smt. Kiran Devi filed separate written statement denying the plaintiff’s allegation in the plaint. The defendants in their written statement alleged that Lal Singh died on 23.9.1979; that wife had died before his death; that plaintiff was one and half year old when her mother died and; that after the death of his wife, Lal Singh married with Kiran Devi. The case of the defendants before the trial Court was that after the death of Lal Singh, defendant No. 4 Kiran Devi being his widow inherited the property of Lal Singh as such her name was mutated in the mutation proceeding on the agricultural land of Lal Singh by revenue authorities. Thereafter, the defendant No. 4 executed sale deed dated 28.7.1980 of the agricultural land in favour of defendant Nos. 1 to 3 whose names were mutated in respect of agricultural holdings of late Lal Singh and they are in its possession since then. 4. Thereafter, the defendant No. 4 executed sale deed dated 28.7.1980 of the agricultural land in favour of defendant Nos. 1 to 3 whose names were mutated in respect of agricultural holdings of late Lal Singh and they are in its possession since then. 4. The trial Court by judgment and order dated 12.3.2008 decreed the suit of the plaintiff after holding that defendant No. 4, Kiran Devi is not legally wedded wife of Late Lal Singh and the sale deed dated 28.7.1980 executed by her was declared null and void. The Court also granted permanent injunction to the plaintiff directing the defendants not to interfere with the peaceful possession of the plaintiff. 5. Aggrieved by the aforesaid judgment dated 12.3.2008, the defendants No. 1 to 3 filed Civil Appeal No. 67 of 2008;Smt. Sukha Devi and others v. Mithilesh Kumari, against the judgment and decree passed by the trial Court before the Additional District Judge, Anoopshahar (Buland Shahar) which was dismissed on 19.2.2010. 6. Against the judgment and order 19.2.2010, the defendants-appellants have filed the present second appeal challenging the validity and correctness of the aforesaid order dated 19.2.2010 passed by the Additional District Judge, Anoopshahar (Bulandshahar)in Civil Appeal No. 67 of 2008; Smt. Sukha Devi and others v. Mithilesh Kumari, dismissing defendant-appellants’ appeal arising out from decree and judgment dated 12.3.2008 passed in O.S. No. 253 of 1983; Mithilesh Kumari v. Smt. Sukh Devi and others. The defendant-appellants have prayed for setting aside the judgment and decree passed by the Courts below on the ground that defendant No. 4 was recorded Bhumidhar with transferable rights of the plot in dispute and she had legal right to transfer the land to defendants No. 1 to 3; that because the plot in dispute being agricultural land the plaintiff Mithilesh Kumari should have filed suit under Section 209 and 229-B of U.P.Z.A. & L.R. Act for declaration of her title for which the revenue Courts had jurisdiction and not the civil Courts. 7. Sri Rajesh Kumar Pandey, appearing for the appellants has placed reliance upon a judgment rendered in the case of Thimmaiah v. Shabira, AIR 2008 SC 1275 . 7. Sri Rajesh Kumar Pandey, appearing for the appellants has placed reliance upon a judgment rendered in the case of Thimmaiah v. Shabira, AIR 2008 SC 1275 . Relevant paragraphs 6 and 7 of the said judgment, are quoted as under : “(6) UNDISPUTEDLY, the suit was one for permanent injunction and in such a suit the plaintiff has to establish that he is in possession in order to be entitled to a decree for permanent injunction. The general proposition is well settled that a plaintiff not in possession is not entitled to the relief without claiming recovery possession. Before an injunction can be granted it has to be shown that the plaintiff was in possession. (7) IN the instant case, Issues Nos. 1 and 3 which were framed on 1.10.1988 clearly refer to this vital aspect. The trial Court while answering the aforesaid issues held in the negative. Unfortunately, the High Court did not consider the effect of these findings and even did not record any finding regarding possession. Therefore, as rightly contended by learned counsel for the appellant, the High Court could not have allowed the appeal. As noted above, even while formulating the point of determination, the High Court did not formulate the question relating to possession.” 8. Both the Courts have held in favour of the plaintiff, hence the case of Thimmaiah v. Shabira (supra) cited by learned counsel for the appellant does not apply as in the above case general principal has been examined which does not apply in the case of minor as in the present case. 9. Sri A.N. Bhargava, Advocate appearing for the caveator submits that Mithilesh Kumari being the only daughter of Lal Singh, out of legal wedlock with his wife Prema is entitled to inherit her property and that as Kiran Devi has been found to be an imposter and never to have married Lal Singh could neither have laid claim upon the properties of Late Lal Singh nor had any legal right to transfer his properties to defendant Nos. 1 to 3 and the civil Court had the jurisduction in the matter to decide the question of title and possession in the facts and circumstances of this case. 10. 1 to 3 and the civil Court had the jurisduction in the matter to decide the question of title and possession in the facts and circumstances of this case. 10. On basis of the pleadings of the parties, the trial Court framed the following issues: ^^1- D;k oknh fookfnr lEifRr dh Hkwfe/kjh] ekfyd o dkfct gS\ 2- D;k Jherh fdju nsoh yky flag dh fo/kok gS\ 3- D;k Jherh fdju nsoh }kjk fu"ikfnr cSukek cgd izfroknh la[;k 1 rk 3 vukf/kdkj ,oa izHkkoghu gS\ 4- D;k izLrqr ckn lquus dk vf/kdkjh gS bl {ks= U;k;ky; dks ugh gS] tSlk fd izfrokn i= esa vfHkdfFkr gS\ 5- D;k okn dk ewY;kadu de fd;k x;k gS rFkk U;k;’kqYd vi;kZIr gS\ 6- D;k izLrr okn iks"k.kh; ugha gS tSlk fd izfrokn i= esa vfHkdfFkr gS\ 7- vurks"k ;fn dksbZ gks ftls oknh ikus dk vf/kdkjh gS\ 8- oknh ,oa izfroknhx.k dh vksj ls izys[kh; ,oa ekSf[kd lk{; izLrqr fd;k x;kA 9- fo}ku voj U;k;ky; }kjk mHk; i{k ds fo}ku vf/koDrkx.k dks luus ,oa i=koyh ij miyC/k lk{; dk voyksdu djus ds mijkUr oknh dk okn lO;; fMdzh fd;k vkSj ;g vknsf’kr fd;k fd Jherh fdju nsoh ¼izfroknh uEcj&4 yky flag irk okfnuh½ dh fookfgrk iRuh ugha gSA fodz; i= fnukafdr 23-8-80 dks okbM djkj nsrs gq, fujLr fd;k rFkk izfroknhx.k dks okfnuh ds 'kkafriw.kZ dCts esa gLr{ksi djus ds fy, lnSo ds fy, us"ksf/kr fd;kA bl vkns’k dh ,d izfrfyfi mifucU/kd vuwi’kgj ftyk cqyUn’kgj dks izsf"kr dh x;hA bl fu.kZ; ls {kqCèk gksdj orZeku vihy izLrqr dh x;h gSA** 11. The facts culled out from the record are that father of the plaintiff was the owner of the disputed land and he died on 12th April 1979 and his wife died on 23rd September, 1979; that the plaintiff was only heir of the deceased Lal Singh; that the defendants have impersonated Smt. Kiran Devi who claimed herself to be the legally wedded wife of Late Lal Singh and claimed inheritance; that Smt. Kiran Devi was not the married wife of Late Lal Singh;that the uncle of plaintiff left the suit of mutation either negligently or with the collusion of the defendants and never preferred appeal against the order of mutation passed by Sub Divisional Officer. The question before the Courts was whether Smt. Kiran Devi could have transferred the title of the land in dispute in favour of the defendants by the sale deed dated 28.7.1980; that status of Smt. Kiran Devi as to whether she was legally wedded wife of Lal Singh could be determined by civil Court or by the revenue authorities in mutation proceedings. 12. Defendant No. 4, Smt. Kiran Devi was impleaded by the plaintiff as defendant No. 4 during pendency of suit. Defendants No. 1 to 3 filed written statement stating that Lal Singh died on 12 April 1979 but denied that Prema wife of Lal Singh died subsequently on 23rd September, 1979. She claimed that as the plaintiff was only one and half year old at the time of death of her mother and therefore Lal Singh married to her; that when Lal Singh died she (Smt. Kiran Devi) inherited her property being his legally wedded wife and her name was mutated by the revenue authorities in the mutation proceeding. It was stated that she executed sale-deed in favour of the defendants No. 1 to 3 on 28.7.1980 and subsequently they have been mutated in the revenue record in her place. 13. The trial Court recorded findings of fact that Smt. Kiran Devi although filed her written statement but had not appeared in the witness box to prove that she was legally married with Lal Singh; that plaintiff was not examined by the Court in mutation proceeding and the statement of Har Prasad was against the minor i.e. the plaintiff was inadmissible as he being never friend of minor had no right to make admission against the interest of minor except with the prior permission of the Court. It was held that the statement of Har Prasad before the Revenue Court that Lal Singh’s first wife was Prema Devi and his second wife was Kiran Devi was against the interest of the minor child and this statement had been given by him being in collusion with defendants No. 1 to 3. 14. After examining Section 18 of Evidence Act and Section 147 of C.P.C. the Court held that the statement of the guardian will not be an admission against the minor, therefore, the statement given by Har Prasad in the mutation proceeding shall not be read as admission in this suit. 14. After examining Section 18 of Evidence Act and Section 147 of C.P.C. the Court held that the statement of the guardian will not be an admission against the minor, therefore, the statement given by Har Prasad in the mutation proceeding shall not be read as admission in this suit. The Court also examined the provision of Section 109-A of U.P. Panchayat Raj Act, 1947 read with Rule 142 of U.P. Panchayat Raj Rules, regarding registration of birth and death maintained by Gaon Sabha and came to the conclusion that Kiran Devi was not legally wedded wife of Lal Singh in the aforesaid context. 15. The order of Section 145 of Criminal Procedure Code is not binding upon Civil Court. In the proceeding under Section 145, Magistrate has to decide the case on the basis of prima facie possession, but in the order of S.D.M. Sadar it has not been disclosed that at the time of initiation of proceedings under Section 145, who was in the possession. By order dated 23.9.1999 possession of attached property was given to the defendants by which possession of defendants could not be presumed, particularly, when order of SDM was appealed again under Section 145 and all the documents filed therein do not disclose that defendants were in possession on the date of execution of impugned sale-deed. 16. There is a maxim, and i.e. “Nemo Dat Quod Non Debet” meaning thereby a person cannot transfer better title than what he possess. It means Kiran Devi who had no right and title in the Lal Singh’s property cannot pass any right or title in favour of the defendants No. 1 to 3 and as such the impugned sale deed executed by Kiran Devi to defendants No. 1 to 3 being null and void cannot transfer any legal right of the plaintiff in the property of her father to the defendants No. 1 to 3. 17. In the circumstances, in view of what has been stated above and also in view of the fact that learned counsel for the appellant has not been able to formulate any substantial question of law in the present second appeal, the appeal is, accordingly, dismissed. —————