MANSEETI KUNWAR Vs. RAM NATH SINGH

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 22. 12. 1973 in Civil Appeal No. 96 of 1973 passed by Sri Govind Prasad, III Temporary Civil and Sessions Judge, who dismissed the aforesaid appeal with costs and affirmed the judgment and decree of Sri V. N. Chaddha, Munsif in Civil Suit No. 62 of 1970. The dispute relates to plot No. 651; old number of plot No. 651 was 833 measuring 4 Biswas and 4 Dhurs. This land is situate in village Barhpur, Nandganj Market, Pargana Saidpur district Ghazipur and has been detailed at the toot of the plaint. A major portion of this plot covered by two houses of the plaintiff abutted the Ghazipur-Varanasi road. The following pedigree which was not controverter before me and was laid in written statement shall be helpful to appropriate the controversy in volved '- Pedigree: Ram Saran Singh Udit Narain Singh Nand Kishore Singh Shrimati Muna Kunwar Sahdeo Balbhaddar Singh Singh Raj Kumari Devi Bhopender Pratap Singh Plaintiff No. 2 Shrimati Manseeti Kunwar Plaintiff. No 1 Mahender Pratap Singh Shrimati Lakshmi Devi Narender Pratap Singh Shrimati Nirmala Devi Plaintiff No. 3. The suit was filed for a mandatory injunction to make over the land in dispute measuring 1 biswa 10 Dhurs to plaintiffs denuded of all the constructions land over the same by defendant No. 1; a perpetual injunction was also sought restraining the defendants from interfering with the plaintiff's possession over the land in dispute, in the alternative there was a prayer for recovery of possession. The costs of the suit were also claimed. The case laid in the plaint was that the plaintiffs acquired plot No. 833 and other plots through a registered lease dated 13. 11. 1982. From the time of the execution of the lease, the plaintiffs and their legal heirs have been in continuous possession over the disputed land. It was much before the con solidation operations that plaintiffs constructed two houses over a portion of plot No. 833. A little portion of the said plot was left vacant; the foundations thereon were filled up to the ground level. As the house stood on this land, so it was declared as abadi site during consolidation operations. The defendants had nothing to do with any portion of this plot but it was in March 1970 that defendant No. 1 tried to forcibly raise some constructions over the same. Subsequently, plaintiffs learned that the aforesaid vacant piece of land was treated by the administrative authorities as the land of the Gram Samaj and so they gave it in exchange of some other land to defendant No. 1. Such action was quite illegal and could not authorize the defendant No. 1 to usurp the plaintiffs' land. The Gram Samaj did not contest the claim. The suit was resisted by Ram Nath respondent only on the ground that the lease through which the plaintiffs claimed their title was a sham transaction which was never acted upon. Before coming into force of U. P. Act No. 1 of 1951 (U. P. Zamindari Abolition and Land Reforms Act), one Biswa and four Dhurs of this plot was in possession of Sita Ram and others and two Biswas in possession of one Jawahar Bind. The rest of the area of the plot was lying vacant. So after vesting, Sita Ram and Jawahar etc. became Sirdars of the area in their respective portions and the vacant area by force of the stature became the property of the Gram Samaj. During the consoled action operations the entire area of plot No. 833 came to be declared as abadi. In any case, the plaintiffs were neither recognized as owners over any portion of that plot, nor had they any interest in the plots at any Stage. In 1969, the State Government chalked out a scheme to construct a Family Planning Hospital in Nandganj and the defendant Plot No. 685 was chosen as the site. Having learnt about it, defendant approached the authorities. The Collector visited the site and on his suggestion, the contesting defendant agreed to accept in exchange of his 'land, an area of one Biswa 13 Dhurs of Plot No. 651. In accordance with that agreement, the defendant formally moved an application for exchange on 23. 9. 1969 in the Court of Sub-Divisional Magistrate Saidpur. In spite of objections raised by the plaintiffs Curing the proceedings, the settlement in exchange was finally made in favor Of the defendant on 16. 2. 1970. Thus the defendant was right in making ' construction over the land in suit and had already spent a sum of Rs. 6. 000/ -. The claim was barred by Section 49 of the U. P. Consolidation of Holdings Act and estoppels. The learned Munsif accepted the defense and dismissed the suit The plaintiff's appeal also failed. The plaintiffs have filed this appeal in this Court. I have heard learned counsel for the parties and perused the record. Sri R. S. Misra, learned Advocate for the appellants pointed out before me, that learned lower appellate Court rejected the contention of the defendant about the lease executed in favor of the plaintiffs being bogus. Sri Narendra Pratap Singh, husband of plaintiff No. 3 entered the witness box as P. W. I and testified to the circumstances in which the deed was executed in favor of the plaintiff. The certified copy of the lease deed dated 5. 11. 1932 is on the record. Its formal proof was dispensed with on behalf of the defendants. It is a registered instrument executed by Balbhaddar Singh on his own behalf and as Mukhtariam of Babu Nand Kishore Singh and Sahdeo Singh to provide maintenance and other expenses to Shrimati Manseeti Kunwar and Raj Kumari Devi. Various plots including plot No. 833 measuring 4 Biswas and 4 Dhurs were given in perpetual lease to the plaintiff. It was also stipulated in the lease deed that the lessees were placed in possession over this holding. The contention of the defendants that this lease was a sham transaction was summarily rejected by the learned lower appellate Court and so plaintiffs claim must have been decreed. On behalf of the respondent No. 1 Shri Shashi Kant Varma learned advocate again raised this plea of the lease deed being a bogus transaction, on the ground that it remained a dead letter and was never acted upon. He invited my attention to Section 105 of the Transfer of Property Act and pointed out that a lease was a transfer of immovable property to en joy such property. Such a right was never enjoyed by the lessees. The lessees never entered into possession over the disputed holding. A mere statement of lessons in lease deed about the delivery of possession of the land to the lessees was of no avail to them. In this connection reliance was placed upon Nalam Pattabhiram Rao and others v. Mondavi Hi Narayanamoorthy and others (A. I. R. 1922 P. C. 102.) which provided: "a statement in a will suggesting an inference as to a fact in issue, cannot be proved by or on behalf of the person who made it or his representative-in-interest. Even where two executors, who where members of the family, acted upon the will, still the statement cannot be treated as an admission by the members of the family that the statement in the will, is true. . . . . . . . . " This case related to partition of the joint family property. One share was allotted to each branch at the time of the partition. There was a statement in the will of Peda Pattadhiramanna dated 11. 7. 1981 relied upon by the plaintiff which was not accepted as true in the said case. Obviously the lease deed in question is not a will and so the analogy stated above is not apposite. Learned counsel for the respondents also pointed out before me that after execution of this lease deed, the names of the lessees were not recorded in the revenue papers. Their possession over any portion of the disputed property was not recorded. Plot No. 651 was declared as abadi in consolida tion proceedings. When the plaintiffs preferred an objection about the proposed exchange before the S. D. M. that objection was rejected after inviting a report from Tahsildar (vide paper No. 32/c ). Copy of the report of the Tahsildar dated 17. 10. 1969 was paper No. 33/c. The Tahsildar reported about one Biswa and 13 Dhurs of the area as being vacant. This decision of the S. D. M. and of Gram Samaj had the force of res judicata and it was not open to the plaintiffs to reassert their rights. In this connection, reliance was placed on the case of Gulab Chand Chhotelal Parikh v. State of Gujarat (A. I. R. 1965 S. C. 1153.) which pointed that a decision in an earlier writ petition on merits operated as a bar to subsequent suit involving same question and for the same relevance. It was further pointed out that after consolidation proceedings were over, the matter could not be reagitated by the plaintiffs (vide Section 49 of the U. P. Consolidation of Holdings Act ). In this connection reliance was placed upon the case of Rakesh Kumar Minor under the guardianship of Shrimati Shanti Devi v. Board of Revenue (1972 A. L. J 769. ). It appears that in that case, one Mata Prasad had a half share in the grove in dispute. He died leaving two sons Har Swarup and Sri Ram. Har Swarup died in 1936 leaving a widow Shrimati Suraj Kumari plaintiff-respondent. At the commencement and end of the consolidation operations, the record showed that Shrimati Suraj Kumari was a tenant of the grove in dispute. She instituted a suit for partition. The suit was contested by Sri Ram on the ground that it was barred by family settlement, and that under the personal law, plaintiffs had no share or interest in the grove. The trial Court held that the alleged compromise did not relate to the plot in dispute. It did not operate as an estoppel to bar a suit. It was also held that in view of Section 49 of the Consolidation of Holdings Act, the question of title could not be readjudicated. The consolidation entries had to be given effect to according to which the plaintiff was a co-sharer. In these circumstances, it was pointed out that Section 49 of the U. P. Consolidation of Holdings Act could operate as a bar to subsequent proceedings. Learned counsel for the respondents also pointed out that although learned lower appellate court did not discuss the oral evidence led by the parties on the point of possession, yet such evidence had been discussed by the learned trial Court and since its judgment was affirmed in appeal, the learned appellate Court was not under the necessity to have discussed the relevant and material evidence (vide Shrimati Damyanti Devi and others v. Brindaban and others (1979 A. W. C. 687. ). The learned counsel for the respondents also pointed out that the names of the plaintiffs were not recorded over the plot in dispute after the year 1932 up to 1358 F. No valid explanation for this omission of entry was put forward on behalf of the plaintiffs appellants. In the Khatauni of 1355 F, the name of one Sita Ram finds a place over an area of one Biswa ond four Dhurs of plot No. 833/1 and of Jawhar Bind on two Biswas of plot No. 833/1. None of the plain tiffs were recorded in any capacity in this document. There was no reference to the remaining area of 1 biswa and four Dhurs of this plot. The same position continued in the record of 1357 F. The names of the plaintiffs were recorded as hereditary tenants over an area of 2 Biswas of plot no. 833 and the rest of the area remained in hotch potch. This position continued in the crucial year of 1359 F, also in the Khasra of 1359 F, only two Biswas of plot no. 833/1 was recorded in the name of the plaintiffs as "parti Jadid". One Bigha and four Dhurs was shown as the site of house of Sita Ram. Learned counsel for the respondents also referred to the case of Bhola Ram v. Ameer Chand ( (1981) 2 S. C. C. 414.) which posited that even if the findings of facts recorded by the courts below were wrong or grossly inexcusable that by itself would not entitle the High Court to interfere under Section 100 of the Code of Civil Proce dure in absence of a clear error of law and so I must not disturb the findings about possession recorded by Courts below. It appears that it was a case for eviction on the ground of encroachment by the tenant. Civil Judge and District Judge held that room formed part of the tenancy and as such there was encroach ment. The High Court in that case held otherwise on this point and so it was pointed out that the High Court erred in the matter. On a careful consideration of the facts and evidence on record, I find that the approach of the learned lower appellate Court was incorrect. I propose to deal with the aforesaid contentions of learned advocate for respondent no. 1 seriatim. Learned lower appellate Court itself conceded that the registered lease deed 22. 11. 1932 was a genuine document. It was not sham transaction, nor could it be taken to be bogus. It accepted the statement of Sri Narendra Pratap Singh (P. W. 1) about the genuineness of this document and brushed aside the criticism by the learned counsel for the respondent about it. It is significant to note that at the time of the execution of this lease, the lessees were clothed with a legal status about the entire plot No. 833. It was not the case of the parties that the plaintiffs were in possession over any sub-plot of no. 833. But were out of possession over any other sub-division of this plot. Sub Division of plot no, 833 was not recognized by the plaintiffs. It could not be explained as to how the rights of the plaintiffs who were recognized as bhumidhars over a portion of this plot evaporated. The contention of the learned coun sel for the respondents that the lease deed remained a dead letter overlooks the fact that defendant as D. W. 1 in his statement prevaricated on this point. He could not deny the fact that lessons were the Zamindars of this plot. He further conceded that there were two houses of the plaintiffs on plot no 651 in existence. However, he added that these houses were constructed subsequent to the consoli dation proceedings. It is the consistent case of the plaintiffs that these houses were in existence long before the commencement of the consolidation proceedings and it was for this reason that Narender Pratap Singh (P. W. 1) testified that the plaintiffs were the Bhumidhars of the entire area of plot no. 833 measuring 4 Biswas and 41 dhurs the names of the lessees were recorded on this land. They also obtained Bhumidhari Sanads about this holding. Jawhar Bind or Billur Bind had no connection with this plot. Similarly 'sita Ram never remained in possession over this plot. Gaon Sabha had nothing to do with this plot; nor did it ever remain in possession over the same. This land was not lying parti. Two houses of plaintiffs were in existence prior to consolidation proceedings; the portion which was vacant had also foundation which filled up by the plaintiffs who had stored their bricks etc. on it. The nature of the land was recorded as abadi on account of existence of these houses on this land. This statement of Narender Pratap Singh (P. W. 1) finds a material support from the documentary evidence and local inspection. The Com missioner found the houses of the plaintiffs in existence on this plot and he had shown it in a map to scale (which is paper No. 73/ga) dated 18. 8. 1970. It is correct that he did not prepare a may to scale to locate plot. No. 651. It was conceded by Ram Nath respondent that land in dispute as well as the houses of the plaintiffs lay on plot No. 651. This disputed land adjoins the house of the plaintiffs towards east as shown in the site-plan. At the time of commencement of U. P. Zamindari Abolition and Land Reforms Act in Khatauni of 1359 F and Khasra of the same year, plot No. 833/1 was recorded as 'parti Jadid'. This land was shown as Bhumidhari of plaintiffs. This entry was in consonance with Section 18 of the U. P. Zamindari Abolition and Land Reforms Act which shows that the land held by a tenant on perpetual lease or a hereditary tenant etc. has been settled with such tenure holders whether intermediaries or other wise, as Bhumidhars. There was no occasion on the part of the learned lower appellate Court to have ignored this entry and to have dismissed the plaintiff's claim on whimsical ground alleging that a portion of the land was lying vacant and so the continuous possession of plaintiffs over this land could not be established. It appears that the Gram Samaj never asserted its rights about the holding in dispute. It does not appeal 10 common sense that plaintiffs asserted their possession over a major portion of plot No. 833, but abandoned a por tion of this plot simply because it was left vacant. The wrong entries in the revenue papers in the names of Sita Ram or Jawahar or Bhitai Koeri cannot operate to the prejudice of the appellants. Whenever any cloud was cast on the title or possession of the plaintiffs, they dispelled the same. In 1958, when a suit was filed by one Rajender Raj and others against plaintiffs and Narender Pratap Singh about this holding, plaintiffs successfully asserted their possession over the same (vide Exs. 2, 3, and 4 ). The matter resulted in an adjustment. According to the statement of Narendra Paratap Singh (P. W. 1) respondent Ram Nath Singh himself was the pairokar of Rajender Rai and others and signed the order sheet of these proceedings in his presence. Those proceedings are relevant under Section 13 of the Indian Evidence Act on the point of possession, even though not inter parts (vide Ram Ranjan v. Narain XXII Indian Appeals 60 ). All these documents indisputably go to show that the plaintiffs were in continuous possession over land in dispute and possession followed title in this also. Title of the plaintiffs would have extinguished only under Section 45 of the U. P. Tenancy Act (Act No. XVII of 1939) had plaintiff died without leaving any heir or when they could have been ejected in execution of a decree or order of the Court or when they could have surrendered or abandoned the holding etc. It will not be possible to hold that the plaintiffs had abandoned a portion of demised land by leaving it vacant, although they were very much in possession over a major portion of the same and had constructed houses on it. So the contention of the respondent that the lease deed was a dead letter and plaintiffs never remained in possession over the disputed land is ruled out. As regards the plea of res judicata, it is to be discarded straight away. The Sub-Divisional Magistrate or any other revenue authority had no jurisdic tion at all to adjudicate the title of the plaintiffs about this land. The con solidation authorities had no authority to expunge the names of the plaintiffs from this land or to show that it vested in the Gram Sabha. Even the Tahsildar in his report (paper No. 33/ga) submitted that a major portion of plot No. 611 was covered by buildings of plaintiffs and an area of one Bigha 13 Dhurs was vacant. He requested to obtain an opinion of the Government Advocate (Revenue ). That opinion was never invited. The land was given in exchange to respondent by the Sub Divisional Magistrate treating it as the property of Gram Sabha. There is paper No. 42/c (resolution of the Gram Sabha ). This shows president or members of Gram Sabha concerned never knew that this land vested in them nor was it recorded as property of Gram Sabha in property register. If the land was abadi and not tenure, it was not open to consolidation authorities to expunge the names of the plaintiffs from this land and to hold that it vested in the Gram Sabha, In State of U. P. v. Shrimati Sarjoo Devi (1928 R. D. 211.), it observed:- "u. P. Zamindari Abolition and Land Reforms Act, of 1965, Section 3 (14), 19, Applicability and Scope of Section 3 (14) land need not be actually under cultivation or occupied for the purpose connected with the agriculture, Requirement of definition is satisfied if land is either held or occupied for the purpose concerned with the agriculture, word "held' occurring in Section 3 (14) of U. P. Zamindari Abolition and Land Reforms Act. Interpretation of "respondent fulfilled all requisite con ditions and became Sirdars under Section 19. " Thus the mere fact that a portion of this land was left vacant could not operate to the prejudice of the appellants who could have held the same (vide Section 3 sub-clause (14) of the U. P. Zamindari Abolition and Land Reforms Act of 1951 ). They became its Bhumidhars under Section 18 of the aforesaid Act. The consolidation authorities found that the land was abadi. On Such finding, they had no jurisdiction to order expunction of the names of the plaintiff's from Khatauni where plaintiffs were recorded as bhumidhars as is obvious from a perusal of the Khatauni of 1963 F (paper No. 28/ga ). It was held in Kamla Shanker and others v. Dy. Director of Consolidation and others (1979 R. D. 79.), as under:- "the contention is well founded that in case on a spot inspection the consolidation authorities found that the laud was covered by abadi, the only jurisdiction which the consolidation authorities had was to make an entry in the relevant column of C. H. From No. 2-A that the land abadi on the spot. They did not have any jurisdiction to direct the names of the petitioners to be expunged from the papers showing them to be Bhumidhars. " When the tenancy was not being used for the purposes of agriculture. U. P. Consolidation of Holdings Act could not apply to such land and consolidation authorities could have no jurisdiction to decide any question of title between the parties thereto, in Triloki Nath v. Ram Gopal (1974 R. D. 5.), the holding was given for digging out earth for the preparation of bricks in the brick kiln. It was held that consolidation Courts had no jurisdiction in the matter and so the bar of Section 49 of the U. P. Consolidation of Holdings Act, 1953 or Section 11 of the Code of Civil Procedure (as relied upon by the learned counsel for the respondents) shall not operate. Any order by consolidation authorities without jurisdiction is simply ignorable. Thus on account of legal error and wrong approaches to the learned appellate Court, it must be held that the property in dispute belonged to the plaintiffs. It was wrongly and illegally given to the defendant No. 1 in exchange. The exchange was not clothed with any rights by such wrong transaction. Learned counsel for the respondents also pointed out that injunction was equitable relief and as such equitable remedy cannot be availed of by the plaintiffs when defendant had already invested a sum of Rs. 6000/- on his constructions. This contention is also tenable. Respondent must have known that the land in dispute never belonged to Gram Sabha but belonged to the plaintiffs. It was simply his folly to have spent money upon a title which he knew would or might soon come to an end. Moreover, the plaintiffs asserted their rights prior to exchange before the S. D. M. by preferring an application dated 6. l0. 1969 (Paper No. 32/ga/l ). An injunctive relief was sought and an undertaking was given on behalf of the respondent by his learned Advocates on 10. 4. 1971 to pull down the construc tions in the event of success of the plaintiffs. So respondent is held fast by that undertaking now. The last contention raised on behalf of the respondent was that the disputed land has not been shown by a map to scale. Under such circumstan ces, injunctive relief must be refused. There are two reports of Commissioners on the record which show the land in dispute. The plaintiffs have also described the land in dispute through bounda ries (vide order VII, rule 3 of the Code of Civil Procedure ). Defendant No. 1 also admitted the identity of the land in dispute, which he had shown in a site-plan laid at the foot of the written statement which is not different from the site plan of the plaintiffs laid at the foot of the plaint. The land in dispute was also mea sured by revenue authorities prior to giving the same in exchange to respon dent (vide report Ex. 1) submitted by the Tahsildar Sadar. The area defined by boundaries by plaintiffs was admitted by the defendant himself as land in dispute, as discussed above. There is ample evidence on record to fix its identity as has been done by the learned Commissioner through measurements from eastern wall of plaintiffs' house. In the result, the appeal is allowed. The impugned judgment and decree are set aside and the plaintiff's suit is decreed with costs throughout. The defendants are ordered to remove the disputed construction from the land in suit as shown in the site-plan appended to the written statement (paper No. 54/6/k. a) and map to scale prepared by the Commissioner (paper No. 73/ga dated 19. 8. 1970) which shall form part of decree within four months from today failing which the plaintiffs shall get possession over the plot in dispute denuded of all the constructions through Court at the expense of defendants are perpetually restrained from interfering with the possession of plaintiffs on the land in dispute on wards in any manner. .