JHAJHAN SINGH Vs. RAM SINGH

JUDGEMENT

(1.) This writ petition is directed against the judgment and order of the Board of Revenue dated 13-10-1977 dismissing the second appeal filed by the petitioner. The facts of the case, in brief, are that a suit under Section 176 of the U. P. Zamindari Abolition and Land Reforms Act for division of holdings was filed by the plaintiff-petitioner (hereinafter referred to as the petitioner) against Sri Ram Singh, defendant-respondent No. 1 (hereinafter referred to as the defendant-respondent) on the allegations that plot No. 345 (area 4 big. 12 his. 15 biswansis) was purchased by them from one Chandan through a sale-deed 18-3-1971. According to the plaint allegations the sale-deed was for Rs, 6000/- out of which Rs. 5500/- were paid by the petitioner and the remain ing Rs. 500/- were paid by the defendant-respondent wherein the share of the petitioner was 19/20 towards the south and the share of the defendant-respon dent was 1/20 towards north. It was further alleged that the well and the trees are also in the share of the petitioner. On these allegations the petitioner prayed for division of his share in the holding in dispute. The suit was contested by the defendant-respondent on the allegation that the sale-deed was for a consideration of Rs. 6. 000/- and the sale-considera tion was paid by the petitioner and the defendant respondent half and half. According to the defendant-respondent as he paid Rs. 3000/- towards the sale-consideration, his share is one half and not 1/20th as alleged by the petitioner. The share claimed by the petitioner is wrong and the well and trees are not in the share of the petitioner. It was further alleged that after the execution of the sale-deed the defendant-respondent is in possession over the half of the property in dispute. The suit was decreed by the trial Court for 11/12th share of the plain tiff and 12th share of the defendant-respondent. Aggrieved by the order and decree of the trial Court the defendant-respondent preferred an appeal. Cross-objection was also filed by the petitioner. The Additional Commissioner allowed the appeal with a finding that the shars of the plaintiff-petitioner and the defendant-respondent is half and half and on this finding the cross-objec tion was dismissed. The petitioner preferred a second-appeal against the decree of the Additional Commissioner which was dismissed by the Board of Revenue. The petitioner has challenged the order of the appellate Courts before this Court by means of the present writ petition. One of the contentions raised by the learned counsel for the petitioner is that when in the sale-deed the amount paid towards sale consideration by each party has been mentioned along with their shares in the disputed land, the oral evidence is barred under Section 91 and 92 of the Evidence Act. There fore, the Courts below have erred in law in considering the evidence against the terms of the sale-deed in this case. The learned counsel for the petitioner has placed reliance on (Mahant) Har Narain Dass v. Mt. Bibi Rup Kuer A. I. R. 1932 Oudh 168 and Khudawand Karim Khalesan-fi-Sabil Allah and others v. (Babu) Narendra Nath and others, A. T. R. 1936 All. 258 and Ningawwa v. Byrappa Shiddappa Hirekerbar and others, A. I. R. 1968 SC. 956. In reply the learned counsel for the respondents contends that Sections 91 and 92 of the Evidence Act are not applicable in this case. Therefore, the Courts below were justified in relying on evidence adduced by the parties. A perusal of Sections 91 and 92 of the Evidence Act makes it clear that it restricts oral evidence against the terms of the sale-deed between the "parties" The word 'parties' used in these sections contemplates vendor on one side and the vendee on the other. In this case the present dispute is not between the vendor and vendees or their representatives but it is a case between the vendees inter se. Therefore, on the plain reading of the aforesaid sections it is clear that the sections restrict oral evidence against the terms of the sale-deed between the vendors and the vendees and their representatives only and not in a case where a dispute is between the vendees inter se as in the present case. Thus the provisions aforesaid are not applicable to the facts of the present case and none of the case relied upon by the learned counsel for the petitioner relate to a case where there is a dispute between vendees inter se. These cases are not applicable to the facts of the present case. Therefore, it cannot be said that the Courts below were wrong in considering the oral evidence regarding the shares of the parties. It was next contended by the learned counsel for the petitioner the terms mentioned in the sale-deed should have been accepted by the Courts below unless it was proved by the defendant-respondents that the sale-deed was void. According to the learned counsel only void sale-deed could have been ignored by the revenue Court and valid sale-deed or even voidable sale-deed could not be ignored by the revenue Courts unless it was cancelled by the Civil Court. This contention of the learned counsel for the petitioner is misconceived. From the facts of this case it does not appear that it was ever the case of the defendant-respondent that the sale-deed was a void document. The defendant respondent is also claiming title through a sale-deed as the plaintiff petitioner has claimed. In other words, both the parties are deriving their title through the sale-deed in dispute. Therefore, the validity of the sale-deed has not been challenged at all. It is only the share between the parties which is in dispute. This contention of the learned counsel has also no force. Lastly, it has been contended that in any case if the oral evidence was permissible in this case it was necessary for the appellate Courts to record a finding that out of Rs. 6000/- as sale consideration Rs. 3000/- were paid by the defendant-respondent. There is no finding of any of the appellate Courts based on evidence that half of the sale consideration was paid by the defen dant-respondent. In reply to the arguments of the learned counsel for the petitioner it was contended by the learned counsel for the defendant-respon dent that the appellate Courts have recorded a finding of fact that both the parties have halt' and half share. Therefore, it is not a fit case for interference in writ jurisdiction. According to the facts of the case dispute between the parties was regarding the share of each party in the land in dispute. The property was acquired through a sale-deed by both the parties. Therefore, the share of the parties could be determined only on the basis of the considera tion paid by earn party. From the perusal of the judgments of the appellate Courts it appears that no clear finding based on evidence has been recorded regarding the payment of consideration by each party. The case has been decided merely on the circumstances and the evidence which-cannot be held to be legal. It was necessary for the appellate Courts to consider the evidence adduced by the parties and record a finding regarding the payment of sale-consideration by each party in order to come to a correct conclusion regarding the share of each party in the land in dispute. I find substance in this conten tion of the learned counsel for the petitioner and I am of the view that the appellate Courts (Respondent No. 3 and 4) have committed a manifest error of law in declaring the shares of the parties without recording any specific finding on the payment of the sale-consideration, Therefore, the orders of the appellate Courts cannot be sustained in law, but it would be in the fitness of things it the case is sent back to the Board of Revenue for a fresh decision. In the result, the petition succeeds and is accordingly allowed. The order of the Board of Revenue dated 13-10-1977 is quashed and the Board of Revenue is directed to decide the second appeal afresh according to law and in the light of the observations made above. However, the parties shall bear their own costs. .