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2019 DIGILAW 1436 (ALL)

Banwari Lal v. Board of Revenue, Alld.

2019-05-24

SALIL KUMAR RAI

body2019
JUDGMENT : Salil Kumar Rai, J. 1. Heard Sri V.P. Varshney, the Counsel-for petitioner No. 4 and Ms. Suman Jaiswal, the Counsel for petitioner Nos. 1, 2 and 3 as well as Sri Pradeep Kumar Rai representing respondent No. 5. 2. Vide order dated 17.4.2018, the respondent No. 6 was transposed as petitioner No. 4 in the writ petition. Therefore, any mention of respondent No. 6 in the present, order may be treated as a reference to petitioner No. 4. 3. The facts of the case are that one Dwarika Prasad was the original tenure holder of Plot Nos. 1558 and 1560 (hereinafter referred to as 'disputed plots'). The total area of the disputed plots is 18 Biswa. Dwarika Prasad had two sons, namely, Madan Lal and Kanhaiya Lal who had half share each in the disputed plots. Madan Lal had one son Sheo Ratan. Kanhaiya Lal had one son, namely, Rajesh Kumar. It is alleged by the petitioners that through a sale-deed dated 31.3.1980, Madan Lal transferred his half share in the disputed plots to petitioner Nos. 1, 2 and 3. Sheo Ratan, i.e., the son of Madan Lal and one Badri Prasad - son of Bhoop Singh who is the father-in-law of respondent No. 5 - were the attesting witnesses of the transaction. Madan Lal died in 1985. For certain reasons, the name of petitioner Nos. 1, 2 and 3 were not mutated in the revenue records after the execution of the sale-deed dated 31.3.1980. After the death of Madan Lal, his son Sheo Ratan also executed a sale-deed dated 20.7.1987 transferring the half share of Madan Lal in the disputed plots to respondent No. 5. On the basis of the sale-deed dated 20.7.1987, respondent No. 5 got his name mutated in the revenue records in place of Madan Lal and thus, was recorded as a co-tenure holder of the disputed plots along with Rajesh Kumar, i.e., the son of Kanhaiya Lal. After the death of Kanhaiya Lal, his son Rajesh Kumar who got half share in the disputed plots after the death of Kanhaiya Lal, transferred his share in favour of respondent No. 6 through a sale-deed dated 8.1.1990. After the death of Kanhaiya Lal, his son Rajesh Kumar who got half share in the disputed plots after the death of Kanhaiya Lal, transferred his share in favour of respondent No. 6 through a sale-deed dated 8.1.1990. The execution of the sale-deed dated 8.1.1990 and rights of respondent No. 6/petitioner No. 4 flowing from the sale-deed dated 8.1.1990, i.e., the fact that respondent No. 6 has half share in the disputed plots is not disputed by respondent No. 5. Subsequently, the petitioner Nos. 1, 2 and 3 also executed a sale-deed dated 4.3.2013 in favour of respondent No. 6 regarding their half share in the disputed plots which they claim to have vested in them by virtue of the sale-deed dated 31.3.1980. Meanwhile, the petitioner Nos. 1, 2 and 3 also filed Suit No. 89 of 1990 (re-numbered as Suit No. 343 of 1998) under section 229-B of the Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950 (hereinafter referred to as, 'Act, 1950') for declaration of their rights as co-tenure holders of the disputed plots having half share in the same by virtue of the sale-deed dated 31.3.1980. Suit No. 89 of 1990 was instituted by petitioner Nos. 1, 2 and 3 through one Udham Singh who alleged that the petitioners had executed a power of attorney in his favour. On the strength of the sale-deed dated 20.7.1987, the respondent No. 5 also instituted Case No. 198 of 1994 under section 176 of the Act, 1950 for partition of the disputed plots claiming half share in the same. Suit No. 89 of 1990 and Case No. 198 of 1994 were consolidated and heard together by the Deputy District Magistrate, Khurja, District Bulandshahr (hereinafter referred to as, Trial Court'). The judgment in the aforesaid cases depended on the decision on the rival claims of the parties regarding the validity of the sale deeds dated 31.3.1980 and 20.7.1987 as both the sale deeds related to the share of Madan Lal in the disputed plots. The effect of any decision re-cognising the sale-deed dated 31.3.1980 as valid would have been to reject the claim of respondent No. 5 based on the sale-deed dated 20.7.1987. The Trial Court vide its judgment and decree dated 20.7.1998 decreed Suit No. 89 of 1990 instituted by petitioner Nos. 1, 2 and 3 and consequently dismissed Case No. 198 of 1994 filed by respondent No. 5. The Trial Court vide its judgment and decree dated 20.7.1998 decreed Suit No. 89 of 1990 instituted by petitioner Nos. 1, 2 and 3 and consequently dismissed Case No. 198 of 1994 filed by respondent No. 5. Aggrieved, the respondent No. 5 filed Appeal Nos. 55 of 1998 and 56 of 1998 before the Additional Commissioner, Meerut Division, District Meerut which were dismissed by the Additional Commissioner vide his judgment and order dated 19.11.1998. Aggrieved, the respondent No. 5 filed Second Appeal Nos. 17 of 1998 and 18 of 1999 before the Board of Revenue, Uttar Pradesh at Allahabad, i.e., respondent No. 1 which have been allowed by the Board of Revenue vide its judgment and order dated 12.9.2000 and Suit No. 89 of 1990 has been dismissed while Case No. 198 of 1994 filed by respondent No. 5 for partition of the suit property has been decreed. The Board of Revenue has allowed the second appeals on the ground that Suit No. 89 of 1990 filed by petitioner Nos. 1, 2 and 3 could not have been decreed because the original sale-deed dated 31.3.1980 was not filed by the petitioners and only a photo copy of the sale-deed had been filed in the Trial Court which was not admissible in evidence. While passing the order dated 12.9.2000 allowing the second appeals, the Board has also relied on orders passed in favour of respondent No. 5 in mutation proceedings. The judgment and order dated 12.9.2000 passed by the Board of Revenue, Uttar Pradesh at Allahabad in Second Appeal Nos. 17 of 1998 and 18 of 1999 have been challenged in the present writ petition. 4. It is relevant to note that respondent No. 6 was not a party in Suit No. 89 of 1990 but was impleaded as a defendant in Case No. 198 of 1994 instituted under section 176 of the Act, 1950 by respondent No. 5 as she admittedly had half share in the suit property by virtue of the sale-deed dated 8.1.1990 executed by Rajesh Kumar, i.e., the son of Kanhaiya Lal. The respondent No. 5 claims no right over the share of Kanhaiya Lal and therefore, initially there was no dispute between respondent Nos. 5 and 6. The respondent No. 5 claims no right over the share of Kanhaiya Lal and therefore, initially there was no dispute between respondent Nos. 5 and 6. During the pendency; of the writ petition, the petitioners executed a sale-deed dated 4.3.2013 in favour of respondent No. 6 and therefore now, there is a dispute between respondent Nos. 5 and 6 regarding the share of Madan Lal vide order dated 17.4.2018, the respondent No. 6 was transposed as petitioner No. 4 in the writ petition. 5. Challenging the order dated 12.9.2000 passed by the Board of Revenue in Second Appeal Nos. 17 of 1998 and 18 of 1999, the Counsel for the petitioners and respondent No. 6 have argued that the judgments dated 20.7.1998 and 19.11.1998 passed by the Trial Court as well as the first Appellate Court were concluded by findings of fact and the Board of Revenue could not have interfered in the said findings of fact under section 331(4) of the Act, 1950. as no question of law was involved in the second appeals filed before it. It was argued that orders passed and proceedings in mutation cases are not binding in title disputes between the parties. It was argued that respondent No. 5 had not raised any objections in the Trial Court regarding the admissibility of the photo copy of the sale-deed dated 31.3.1980 in evidence and, therefore the objections regarding admissibility of photo copy in evidence could not have been raised in appeal. It was argued that the Board of Revenue had committed an error of law apparent on the face of record in allowing the second appeals on the ground that the photo copy of the sale-deed dated 31.3.1980 was not admissible in evidence and also by relying on the orders passed in favour of respondent No. 5 in mutation cases. It was argued that for the said reason, the order dated 12.9.2000 passed by the Board of Revenue is liable to be set-aside and the writ petition deserves to be allowed. In support of his argument, the Counsel for the petitioners has relied on the judgments of the Supreme Court in Commissioner, Hindu Religious and Charitable Endowment v. P. Shanmugama and others 2005 (98) RD 620 (SC), and Sukhu v. Ram Deo 1999 (90) RD 94 (Alld.), and of the High Court in Sharda Devi v. Board of Revenue, U.P. in CM. Writ Petition No. 4502 of 1976 and Net Bharti v. Board of Revenue 2001 (92) RD 550 (HC). 6. Rebutting the arguments of the Counsel for the petitioners and respondent No. 6, the Counsel for respondent No. 5 has argued that Suit No. 89 of 1990 was not maintainable as it was filed on behalf of the petitioners by a person who alleged that the petitioners had executed a power of attorney in his favour but no document to prove the said fact was filed in the Trial Court. It was stated that in his written statement filed in the Trial Court, the respondent No. 5 had brought the said fact to the notice of the Trial Court and had raised a plea regarding the non-maintainability of the suit on the aforesaid ground. It was further argued that the original sale-deed dated 31.3.1980 was not filed by the petitioners before the Trial Court and the petitioners did not bring any fact to the notice of the Trial Court which could have entitled them to file a secondary evidence under section 65 of the Indian Evidence Act, 1872. It was argued that the photo copy of the sale-deed dated 31.3.1980 filed by the petitioners in the Trial Court was not admissible and could not have been read in evidence and therefore no decree could have been passed in favour of the petitioners relying on the said document. It was further argued by the Counsel for respondent No. 5 that the sale-deed dated 31.3.1980 was never proved by the plaintiffs, i.e., the petitioner Nos. 1, 2 and 3, themselves who did not appear as a witness before the Trial Court and therefore, in any case, no decree could have been passed in favour of petitioner Nos. 1, 2 and 3 relying on the sale-deed dated 31.3.1980. It was also argued by the Counsel for respondent No. 5 that in any case, he was a bona fide purchaser without notice and therefore Suit No. 89 of 1990 could not have been decreed against respondent No. 5. 1, 2 and 3 relying on the sale-deed dated 31.3.1980. It was also argued by the Counsel for respondent No. 5 that in any case, he was a bona fide purchaser without notice and therefore Suit No. 89 of 1990 could not have been decreed against respondent No. 5. It was argued that for all the aforesaid reasons, the decrees passed by the Trial Court and the first Appellate Court were contrary to law and were rightly set-aside by the Board of Revenue vide its order dated 12.9.2000 and it was not a fit case for interference by this Court under Article 226 of the Constitution of India. In support of his contentions, the Counsel for respondent No. 5 has relied on the judgments of the Supreme Court in R.V.E. Venkatachala Gounder v. Viswesaraswami V.P. Temple and another 2004 All.C.J. 304 : 2005 (61) ALR 11 (Sum)., and U. Sree v. Srinivas 2013 (96) ALR 303 (SC). 7. I have considered the rival submissions of the Counsel for the parties and also perused the records. 8. It is apparent that the dispute between the parties relates to the sale-deed dated 31.3.1980 and the rights of petitioners and consequently respondent No. 6 based on the said sale deed. The sale-deed dated 8.1.1990 is not in dispute between the parties and the validity of the sale deeds dated 20.7.1987 and 4.3.2013 are dependent on a finding on the validity of the sale-deed dated 31.3.1980. 9. It is evident from a reading of the judgments dated 20.7.1998 and 19.11.1998 of the Trial Court as well as the First Appellate Court that Sheo Ratan, i.e., the son of Madan Lal who was one of the attesting witness of the sale-deed dated 31.3.1980, had appeared as a witness to prove the execution of the sale deed. The sale-deed was executed b)' Madan Lal. The fact that the plaintiffs did not appear as a witness to prove the sale-deed will not be fatal to the case of the plaintiffs. The sale-deed was executed b)' Madan Lal. The fact that the plaintiffs did not appear as a witness to prove the sale-deed will not be fatal to the case of the plaintiffs. The Counsel for respondent No. 5 has not brought to the notice of the Court any statutory provision or judicial precedent to show that the due execution of a sale-deed can be proved only by the vendor, or on his death, by the vendee and not by any other witness including the attesting witness or that the testimony of the attesting witness would be relevant and can be read in evidence only when either the vendor or the vendee have appeared as a witness to prove the sale deed. Even under section 68 of the Indian Evidence Act, 1872 it is the presence of the attesting witness that has been made necessary and not of the beneficiaries of the instrument, the execution of which is sought to be proved. 10. It is also apparent from a reading of the judgment dated 20.7.1998 passed by the Trial Court that no issue regarding the maintainability of Suit No. 89 of 1990 on the ground that the suit was filed by a person not authorized by the plaintiffs to file it was framed by the Trial Court. There is nothing on record and there is no averment in the counter-affidavit filed by respondent No. 5 that respondent No. 5, i.e., the defendant in the case, had insisted in the Trial Court that the said issue be framed or had pressed the issue regarding the maintainability of the suit in his arguments before the Trial Court. No review application was filed by respondent No. 5 against the judgment of the Trial Court. Before the First Appellate Court also the respondent No. 5 did not raise any grievance that the suit was not maintainable or any grievance regarding the failure of the Trial Court to frame an issue on the maintainability of the suit or that his arguments regarding maintainability of the suit were not considered by the Trial Court. A reading of the judgment and order dated 12.9.2000 passed by the second appellate Court also shows that even in the second appeals, no such ground was raised by respondent No. 5, i.e., the defendant in Case No. 89 of 1990. A reading of the judgment and order dated 12.9.2000 passed by the second appellate Court also shows that even in the second appeals, no such ground was raised by respondent No. 5, i.e., the defendant in Case No. 89 of 1990. In the circumstances, the petitioners cannot be permitted to raise any issue regarding the maintainability of Case No. 89 of 1990 for the first time in proceedings under Article 226 of the Constitution of India. 11. So far as the argument of the Counsel for respondent No. 5 that the original sale-deed dated 31.3.1980 was not filed in the Trial Court and the photo copy could not have been read in evidence is concerned, it may be noticed that in his appeals before the First Appellate Court and the Board of Revenue, the respondent No. 5 had raised the plea that the photo copy of the sale-deed was not admissible and could not be read in evidence and therefore, no decree could be passed in favour of the petitioners on the basis of the alleged sale-deed dated 31.3.1980. However, there is nothing on record to show that respondent No. 5, i.e., the defendant in Case No. 89 of 1990 had raised any objections before the Trial Court regarding admissibility of the photo copy in evidence or any objections regarding the mode of proof of the sale-deed dated 31.3.1980. The failure of respondent No. 5 to raise any such objections in the Trial Court barred him from raising objections regarding admissibility of photo copy in evidence and the mode of proof of the sale-deed before the Appellate Court. The objections could not have been raised for the first time in appeal and the failure of respondent No. 5 to have objected in the trial Court was fatal to his case. At this stage, it would be relevant to quote the observations of the Supreme Court in Paragraph No. 20 of its judgment R.V.E. Venkatachala Gounder (supra):-- "The learned Counsel for the defendant-respondent has relied on Roman Catholic Mission v. State of Madras, AIR 1966 SC 1457 in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case, which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of. documents in evidence may be classified into two classes:- (i) ah objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as "an exhibit", an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of. admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection, amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior Court." (Emphasis added) 12. In View of the aforesaid, the argument of the Counsel for respondent No. 5 that the sale-deed dated 31.3.1980 could not have been read in evidence, cannot be accepted and stands rejected and no illegality was committed by the Trial Court by reading in evidence the sale-deed dated 31.3.1980. 13. The Trial Court as well as the First Appellate Court, after considering the documentary evidence on record as well as the testimony of different witnesses, decreed the case of petitioner Nos. 1, 2 and 3. The findings recorded by the Trial Court and the First Appellate Court in their judgments dated 20.7.1998 and 19.11.1998 were findings of fact. Under section 331(4) of the Act, 1950, the Board of Revenue could not have interfered in the judgments and decrees of the Trial Court and the First Appellate Court except on questions of law. A reading of the judgment dated 12.9.2000 passed by the Board of Revenue shows that no questions of law were either framed by the Board of Revenue or were involved in the second appeals. The Board of Revenue has set-aside the judgments and decrees passed by the Trial Court and the first Appellate Court relying on the mutation proceedings and mutation orders passed in cases which were contested by both the parties. The Board of Revenue has set-aside the judgments and decrees passed by the Trial Court and the first Appellate Court relying on the mutation proceedings and mutation orders passed in cases which were contested by both the parties. Orders passed in mutation proceedings do not decide the title of the parties and are not binding in any title dispute. The other ground given by the Board of Revenue to set aside the decrees passed by the lower courts is that the original sale-deed dated 31.3.1980 was not filed by the plaintiffs in the Trial Court. It has already been held that the failure of the petitioners to file the original sale-deed in the Trial Court was not, in the circumstances narrated earlier, fatal to the case of the petitioners. Therefore, the said grounds were not valid reasons to interfere in the decrees passed in favour of the petitioners by the Trial Court and the First Appellate Court. 14. For the aforesaid reasons, the order dated 12.9.2000 passed by the Board of Revenue in Second Appeal Nos. 17 of 1998 and 18 of 1999 is contrary to law and liable to be set-aside. 15. The order dated 12.9.2000 passed by the Board of Revenue, Uttar Pradesh at Allahabad, i.e., respondent No. 1 in Second Appeal Nos. 17 of 1998 and 18 of 1999 is, hereby, quashed. 16. The writ petition is allowed.