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2017 DIGILAW 1612 (ALL)

Birendra Kumar v. Board of Revenue

2017-07-05

ANJANI KUMAR MISHRA

body2017
JUDGMENT Anjani Kumar Mishra, J. 1. Heard Shri S.C. Varma, learned counsel for the petitioners and Shri Rajiv Mishra for the contesting respondents. 2. The instant writ petition is directed against the judgment of the Trial Court, the First and Second appellate Courts in a Suit under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act. 3. This suit was filed by the respondent No. 5, Ram Kanya seeking a declaration regarding plots of Khata No. 34 (currently khata No. 46), situated in village Hasta Jariye, Pargana Karvi, District Banda. She claimed title by survivorship under Section 175 on the ground that her co-tenure holder, Shiv Sampat, died in 1978 without leaving any heir. 4. It is the admitted case of the parties that the land in dispute initially belonged to one Beni Ram, who had three sons, namely, Shiv Bodhi, Maiya Deen and Bachchi Ram. Shiv Bodhi died issue-less and therefore, half share each, in the disputed Khatas went to the two surviving brothers, Maiya Deen and Bachchi Ram. 5. Bachchi Ram, according to the plaintiff, had two sons, namely, Mahadev and Shiv Sampat and each had 1/4 share each in the disputed khata. 6. Shiv Sampat sold his entire share to the plaintiff, Ram Kanya. His brother, Mahadev, who had two daughters, namely, Medhiya and Ram Kanya sold his entire share to the sons of Medhiya i.e. his daughter’s son. 7. After the sale deeds, both Shiv Sampat and Mahadev, ceased to have any concern with the khata in question. 8. The remaining land of Beni Ram i.e. the half share of Maiya Deen devolved on his two sons, namely, Prabhu Dayal and Ram Badan. Ram Badan died issue-less, earlier in time and therefore, his share devolved upon his brother Prabhu Dayal. Prabhu Dayal also died issue-less and therefore, the half share of Maiya Deen devolved upon Shiv Sampat. Therefore, he again became owner of half share in the disputed khata. It is this share which is in dispute in the instant suit. 9. The factual situation, stated above, is admitted to the parties. 10. The case of the plaintiff is that after purchasing the 1/4 share of Shiv Sampat, she was recorded over the land as a co-tenure holder. It is this share which is in dispute in the instant suit. 9. The factual situation, stated above, is admitted to the parties. 10. The case of the plaintiff is that after purchasing the 1/4 share of Shiv Sampat, she was recorded over the land as a co-tenure holder. Since, Shiv Sampat died without leaving any heir, she became owner of his share by survivorship, in accordance with Section 175 of the U.P. Zamindari Abolition and Land Reforms Act, 11. The suit was contested by the petitioners alleging that Mahadev and Shiv Sampat, sons of Bachchi Ram, had a sister, Smt. Mahadeiya, who died in 1973 leaving behind two sons Ram Suhawan and Birendra Kumar. Since, Ram Suhawan and Birendra Kumar were the sister’s sons, of Ram Sampat, they were mutated over his share by means of a PA-11 entry, in accordance with Section 171 (m) of the Act, as it existed at the relevant point of time. 12. It was also their case that since Shiv Sampat had left behind heirs, namely, sister’s son, the plaintiff could not acquire any title by survivorship and that Section 175 of the U.P. Zamindari Abolition and land Reforms Act would not come into the play. 13. From the facts noticed above, it is clear that the dispute between the parties is whether, Shiv Sampat had a sister, Smt. Mahadeiya. The plaintiff has denied this assertion of the defendant. 14. The three Courts below have accepted the plaintiff’s case that Shiv Sampat and Mahadev did not have any sister Mahadeiya and have therefore, decided in favour of the plaintiff. 15. It appears that Ram Suhawan, one of the sons of the alleged Mahadeiya, died on 22.07.1985. He is stated to have executed a will in favour of Janki Saran and Dev Saran his nephews, the sons of Birendra Kumar. The said Birendra Kumar, Janki Saran and Dev Saran are the three petitioners in this writ petition. 16. Assailing the impugned orders, Shri S.C. Varma has submitted that on the death of Shiv Sampat, the sons of Mahadeiya were mutated over the land in question by means of a PA-11 entry in the Khatauni 1382-87F. The suit was filed on 15.04.1985, almost a decade after the entry in favour of the petitioners. 16. Assailing the impugned orders, Shri S.C. Varma has submitted that on the death of Shiv Sampat, the sons of Mahadeiya were mutated over the land in question by means of a PA-11 entry in the Khatauni 1382-87F. The suit was filed on 15.04.1985, almost a decade after the entry in favour of the petitioners. An entry that has remained in existence was almost a decade, in view of Section 44 of the U.P. Land Revenue Act, is to be assumed to be correct. The plaintiff, therefore, had to prove that this mutation was incorrect, which burden has not been discharged by her. She has never appeared in the witness box to depose in her favour. The oral testimony on her behalf, was that of her power of attorney holder, her husband. He was not competent to depose on issues, which were within the personal knowledge of the plaintiff. 17. In support of this contention, reliance has been placed upon the decision of the Apex Court in Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. and others (2005) 2 SCC 217 . 18. An allied argument raised is that the trial Court has drawn an adverse inference against the defendants as they failed to produce the Kanungo, who had made the PA-11 entry in their favour. This, it is submitted, is illegal, as no such adverse inference could have been drawn. 19. The next submission raised is that the Commissioner, while dealing with the first appeal has quoted extensively, the assertions made in the written arguments of the parties. A written argument is not part of the record and does not constitute pleadings. Therefore, findings returned on its basis renders the judgment, based on extraneous material. It is liable to be quashed on this ground, alone. 20. The next contention raised is that the entries in the family register have been relied upon for deciding the controversy between the parties ignoring the oral evidence, which again vitiates the impugned orders. The statement of Birendra Kumar, petitioner No. 1, has not been referred to, by any of the Courts below. Material evidence on record has thus, been ignored. 21. The statement of DW-2, Ashok Kumar has been discarded on the ground that he was 35 years of age on the date of his deposition, which is incorrect. The statement of Birendra Kumar, petitioner No. 1, has not been referred to, by any of the Courts below. Material evidence on record has thus, been ignored. 21. The statement of DW-2, Ashok Kumar has been discarded on the ground that he was 35 years of age on the date of his deposition, which is incorrect. A perusal of his cross-examination would show that he was 55 years of age on the date his statement was recorded. Therefore, relevant evidence has been discarded, on a patent and clear misreading of the record. 22. It has lastly been contended that the burden of proof has wrongly been cast upon the defendant. The burden of proving the plaint case was upon the plaintiff. 23. It is also submitted that the complete pedigree has not been considered. The Supreme Court has provided the manner in which, a genealogy is to be proved in State of Bihar v. Radha Krishna Singh, 1983 AIR (SC) 684 and in view thereof also, the impugned orders are vitiated. 24. Shri Rajiv Mishra appearing for the respondents has submitted that the family register extracted filed by the defendant has been discarded by the Courts below for cogent reasons. 25. As regards, the oral testimony of the DW-2 being discarded and non-consideration of the statement of DW-1, he has submitted that a genealogy was sought to be established on the basis of the oral testimony of these two witnesses. 26. DW-1 Birendra Kumar, the petitioner No. 1, claims to be the son of Smt. Mahadeiya. He was therefore, not competent to depose upon the parentage of his mother. His evidence in any case, would be hearsay. Besides, he is an interested party and therefore, also, his evidence could not be conclusive. 27. The oral testimony of Ashok Kumar, the Pradhan of the village has been discarded as he was merely three years old when Mahadeiya is stated to have died and therefore, he was not competent to depose on the question of her parentage. 28. He has next contended that no specific genealogy was pleaded by the defendants in the written statement despite amendment in the plaint in the year 2005. The findings returned by the three Courts below are therefore, concurrent findings of fact arrived at, after due appreciation of the entire evidence available on the record, both oral and documentary. 28. He has next contended that no specific genealogy was pleaded by the defendants in the written statement despite amendment in the plaint in the year 2005. The findings returned by the three Courts below are therefore, concurrent findings of fact arrived at, after due appreciation of the entire evidence available on the record, both oral and documentary. Therefore, the orders impugned call for no interference. In any case, the writ Court cannot appreciate the evidence and record its own findings. It can only interfere, in case, the orders impugned, suffer from an error manifest on the face of the record. No such error has been pointed out by the petitioners. 29. I have considered the submissions made by the parties and have perused the record. 30. The first submission made is that the suit was filed more than 10 years after the PA-11 entry was made in favour of the petitioners. The second limb of this argument is that this entry having remained in existence for almost a decade, the plaintiff should have deposed in person. The oral testimony, on her behalf by her power of attorney holder cannot be relevant for the purposes of this case. 31. In so far as the submission that the suit was filed almost 10 years after the PA-11 entry in favour of the sons of Mahadeiya was made, suffice it to state that no limitation has been provided for filing a suit under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act. 32. In any case, the entry which is stated to have been remained in existence before its challenge by means of the suit, is a PA-11. 33. It would be relevant to note that this was an entry made by Kanungo. Even if this entry had been made after due contest, in a mutation case, the finding, if any, recorded would not be binding on the courts in regular title proceedings, as is provided in Section 40(A) of the U.P. Land Revenue Act. Therefore, the petitioners cannot derive any benefit by this entry alone. It shall still have to be proved that this entry was justified. 34. Therefore, the petitioners cannot derive any benefit by this entry alone. It shall still have to be proved that this entry was justified. 34. On the question as to whether, it was mandatory for the plaintiffs, to have deposed before the Court, it is no doubt true that the Apex Court in the case of Janki Vasudeo Bhojwani has held that a power of attorney holder cannot depose on the facts, which are in the personal knowledge of his principal. Yet, in the case at hand, the plaintiff was claiming title to the land in question by survivorship. It is not in dispute that her name was recorded over the khata in question on the basis of the sale deed executed in her favour by Shiv Sampat. Subsequently, Shiv Sampat acquired a fresh title in the Khata in question having inherited the land recorded in the name of Prabhu Dayal. It is the case of the defendants that they inherited the land in question in accordance with Section 171(o) of the U.P. Zamindari Abolition and Land Reforms Act as they were the sister’s sons of Shiv Sampat. 35. The trial Court has elaborately dealt with this aspect. It has opined that in case, this fact was to be proved by the plaintiff, she would need to produce negative evidence. In any case, the fact that the mother of the defendant was the sister of Shiv Sampat was an assertion of the defendants. The same was required to be proved by positive evidence, to be led by them. 36. Under the circumstances, this Court is of the considered opinion that even if, the plaintiff did not appear in the witness box, the same cannot be held against her. Her case that she was a co-tenant with Shiv Sampat stood established by the revenue entry in her favour. This was proved by the relevant Khatauni filed by and on behalf of the plaintiff. 37. I, therefore do not find any substance in the submission that the Courts below have committed an illegality in decreeing the suit, despite the plaintiff not have appeared in the witness box, to prove her case. 38. The plea of Mahadeiya being the sister of Shiv Sampat was raised by the defendants. This is what was required to be proved by them, as has rightly been held by the Courts below. 38. The plea of Mahadeiya being the sister of Shiv Sampat was raised by the defendants. This is what was required to be proved by them, as has rightly been held by the Courts below. Therefore, even the contention that the onus was wrongly cast upon the defendants, cannot be accepted. 39. The second contention is that the first appellate Court has, in its judgment, quoted extensively the written arguments and therefore, the judgment is vitiated as a written argument does not constitute pleadings and therefore the judgment is based on extraneous considerations. 40. In the context of this argument, I carefully perused the first appellate order. The Commissioner has, no doubt, extensively referred to the argument of the parties as contained in their written arguments. However, each argument has been considered and adequately addressed, I do not find any illegality in the approach. 41. Besides, it is not correct to say that only the written arguments are the basis of the judgment passed by the appellate authority. The points raised in the written arguments have been noticed and duly considered and decided, one way or the other. The approach of the first appellate Court is therefore, found to be one of the convenience and appears to have been adopted to adequately consider each and every point raised in the written arguments. The same cannot in any manner, vitiate, the judgment of the first appellate Court. 42. Relying upon the decision of this Court in Bal Kishan v. Board of Revenue U.P. and others, 1994 RD 318, it has been submitted that the oral testimony on record has not been considered. It was necessarily required to be considered in view of the law laid down in the case cited. 43. This argument also does not help the petitioners because the oral testimony of DW-2, Ashok Kumar has been considered in the impugned judgments. His oral testimony was with regard to the genealogy and the family register extracts filed by the parties. The family register is a public document, prepared in the course of duty and a presumption of its correctness is attached to it. 44. His oral testimony was with regard to the genealogy and the family register extracts filed by the parties. The family register is a public document, prepared in the course of duty and a presumption of its correctness is attached to it. 44. In reply to the contention of counsel for the petitioner that the oral testimony of Birendra Kumar, petitioner No. 1, has not been considered, the submission of Shri Rajiv Mishra is that his oral testimony on the issue involved in the case is of no consequence. Birendra Kumar was not competent to have deposed upon the parentage of his mother as it was not something which could be in his personal knowledge. His evidence in this regard would be mere hearsay evidence. 45. The contention of counsel for the respondents has substance. Therefore, the impugned order cannot be said to be perverse. 46. It has also been argued that the trial Court has made an adverse inference against the defendant on the ground that the Kanungo, who had made PA-11 entry in their favour was not produced. 47. This observation whereby the petitioner is aggrieved has been made in the context of the factual situation existing in the case. This trial Court had prior to it, observed that the defendants had not adduced any positive evidence to establish their assertion. It is in this context that the trial Court observed that in case the Kanungo who made the PA-11 entry had been produced, he may have shed some light or disclosed the basis of the entry made by him. Under the circumstances, the so called adverse inference appears to be only an additional circumstance, going against the petitioner-defendants. 48. The Courts below have dealt in detail with the family register extracts, filed by the defendants and have discarded it for cogent reasons. One of the reasons given is that although the name of Mahadeiya was recorded, it was recorded after the name of the defendants daughter-in-law, which was not possible as the daughter-in-law became part of the family at a much later stage in time. 49. I do not find any illegality in the reasoning or logic given by the Courts below in this regard. 50. In this context, I have also examined the memo of the appeals, filed before the first and second appellate Courts. 49. I do not find any illegality in the reasoning or logic given by the Courts below in this regard. 50. In this context, I have also examined the memo of the appeals, filed before the first and second appellate Courts. In neither of them has any specific ground being taken that the oral testimony of Birendra Kumar has not been considered by the trial Court. It is therefore, clear that the petitioners in this writ petition are raising a plea, which has not been raised earlier. This new plea, in my considered opinion, cannot be permitted to be raised for the first time, in a writ petition. 51. It would also be relevant to note that this such specific ground has not been raised in the writ petition, either. Even the statement of Birendra Kumar, DW-1 has been filed only with the rejoinder affidavit. 52. I have carefully perused the deposition of Birendra Kumar, filed along with the rejoinder affidavit. 53. In State of Bihar v. Radha Krishna Singh, the Supreme Court in paragraph 19 of its judgment, has laid down the manner for consideration of the oral evidence of a party, as regards a genealogy. The same is quoted below - “19. The principles governing such cases may be summarized thus: (1) Genealogies admitted or proved to be old and relied on in previous cases are doubtless relevant and in some cases may even be conclusive of the facts proved but there are several considerations which must be kept in mind by the Courts before accepting or relying on the genealogies. (a) Source of the genealogy and its dependability. (b) Admissibility of the genealogy under the Evidence Act. (c) A proper use of the said genealogies in decisions or judgments on which reliance is placed. (d) Age of genealogies. (e) Litigations where such genealogies have been accepted or rejected. (2) On the question of admissibility the following tests must be adopted: (a) the genealogies of the families concerned must fall within the four corners of Section 32(5) or Section 13 of the Evidence Act. (b) They must not be hit by the doctrine of post item motam. (c) The genealogies or the claims cannot be proved by recitals, depositions or facts narrated in the judgment which have been held by a long course of decisions to be inadmissible. (b) They must not be hit by the doctrine of post item motam. (c) The genealogies or the claims cannot be proved by recitals, depositions or facts narrated in the judgment which have been held by a long course of decisions to be inadmissible. (d) where genealogy is proved by oral evidence, the said evidence must clearly show special means of knowledge disclosing the exact source, time and the circumstances under which the knowledge is acquired, and this must be clearly and conclusively proved.” 54. In the context of the observations made by the Supreme Court, two extremely important aspects, emerge in the case at hand. In the written statement filed by the defendants, no pedigree was given 55. Besides, Birendra Kumar in his deposition has neither disclosed his source, time or the circumstance under which this knowledge that his mother Mahadeiya was the sister of Shiv Sampat was acquired by him. Moreover, Birendra Kumar was deposing to prove his own case and is a highly and completely interested witness. 56. The Supreme Court in the judgment referred to above has held that the exact source of knowledge, the time and circumstances where-under the knowledge was acquired, must be proved conclusively. Nothing in this regard has been stated in the oral testimony of Birendra Kumar, who is an interested witness. 57. The Supreme Court has laid down the conditions extracted above, in the context of the following observation made in the earlier part of the same judgment : - “In such cases, as there is a tendency on the part of an interested person or a party in order to grab, establish or prove an alleged claim, to concoct, fabricate or procure false genealogy to suit their ends, the courts in relying on the genealogy put forward must guard themselves against falling into the trap laid by a series of documents or a labyrinth of seemingly old genealogies to support their rival claims.” 58. On the question of genealogy, another fact which emerges from a perusal of the written statement, filed by Birendra Kumar, petitioner No. 1 is that he has mentioned therein the pedigree of his father’s family. This pedigree is wholly irrelevant for the purpose of the instant case, wherein, the pedigree of his mothers family alone would be of any relevance. On the question of genealogy, another fact which emerges from a perusal of the written statement, filed by Birendra Kumar, petitioner No. 1 is that he has mentioned therein the pedigree of his father’s family. This pedigree is wholly irrelevant for the purpose of the instant case, wherein, the pedigree of his mothers family alone would be of any relevance. This is so because the crux of the defendants’ case is that they inherited the land of Shiv Sampat being his sister, Mahadeiya’s, sons. 59. The contention of learned counsel for the petitioner that the reasoning of the Court below that Ashok Kumar, DW-2 was very young on the date Mahadeiya died, appears to the correct. However, this Court finds that the oral testimony of Ashok Kumar has been discarded for other reasons also, namely that he appeared to be a tutored witness, who knows the pedigree of Birendra Kumar but is not clear about his own pedigree. 60. He was also found to be an interested witness as the witness of the plaintiff had deposed against him, in a case of murder. 61. The above reasons given by the Courts below, render the question of the oral testimony of Ashok Kumar to be a question of appreciation of evidence. Even if, the additional reason given by the Court below for discarding his oral testimony on the ground that he was only 3 years old on the date, Mahadeiya died, is ignored, the other reasons given for discarding his oral testimony would still remain intact. The net result would still be the same. Therefore, this Court does not find it appropriate to interfere with the impugned orders only on the ground that the Court below has misread the age of Ashok Kumar, DW-2. 62. In view of the foregoing discussion and since the petitioners have not been able to make out a case in their favour, the writ petition fails and is dismissed.