JANKI Vs. MURARI LAL

JUDGEMENT

(1.) HEARD Shri V.K.S. Chaudhary Senior Advocate assisted by Shri NP. Singh learned counsel for the appellants -defendants and Shri Mithlesh Kumar Tiwari and Shri Kharak Singh learned counsel for the respondents.

(2.) THE case of the appellant in brief is that Khazan Singh (husband of Smt. Ganga Devi defendant No. 1), Chiranji defendant No. 2 and Fatte (husband of Smt. Janki defendant No. 3) were 3 real brothers. The dispute between Smt. Ganga Devi and Chiranji and Fatte (deceased) substituted by her legal heir Smt. Janki, arose on the allegation that Smt. Ganga Devi had remarried and lost all rights and title in the land in accordance with the provisions of Section 172 of U.P. Zamindari Abolition and Land Reforms Act No. 1 of 1951 (hereinafter referred to in short as the Act) although it was held by the revenue Court that though she was living with another person but no case of remarriage could be proved and she continued to be the tenure holder. Due to the dispute during consolidation proceedings in the area between the above said three co -tenure holders, the proposed Chaks of three branches were numbered as 89 -A; 89 -B and 89 -C at one place. Plot No. 89 -C (in question) was proposed for Smt. Ganga Devr, which consisted of two parts, one the Bhumidhari portion of 4 -14 -13 bighas and another Sirdhari portion as 2 -18 -11 Bighas, total being 7 -15 -4 bighas. Smt. Ganga Devi allegedly deposited ten times rent for the Sirdhari plots of area 2 -18 -11 part of the plot No. 89 -C on 15.1.1969 and accordingly became Bhumidhar of the entire plot No. 89 -C consisting of total area of 7 -15 -4 bighas. On same date, i.e., 15.1.1969 Smt. Ganga Devi allegedly sold her part of plot No. 89 -C admeasuring 2 -18 -11 bighas in favour of Murari Lal plaintiff No. 1 and Amar Singh plaintiff No. 2 both sons of one Ganga Sahai who was the Pairokar of Smt. Ganga Devil On 15.1.1969, Smt. Ganga Devi also sold an area of 0 -13 -19 in favour of one Dulli alleged to be the servant of Ganga Sahai in separate plot No. 765. It is alleged that on 12.3.1969 Smt. Ganga Devi entered into an agreement to sell, part of the agricultural land situated in plots Nos. 89 -C and 725 -C in favour of Murari Lal and others (sons of Ganga Sahai) for Rs. 9,000/ -. This execution of unregistered agreement was disputed by the appellants -defendants alleged to have been forged and not duly executed by her in accordance with law. It has also been alleged that she leased out her rest of the land to Ganga Sahai. On 2.6.1969, Smt. Ganga Devi admittedly sold her entire plots to Chiranji and Fatte (husband of Smt. Janki Devi -appellant -defendant).

(3.) LEARNED counsel for the appellants has also submitted that the alleged contract of sale executed by Smt. Ganga Devi is a forged and fabricated document as per the statement of one Laxmi Kant attesting witness and also on the face of the record, as there is irregular spacing of the typed contents and specially the last line having been typed without any spacing since the alleged thumb of Smt. Ganga Devi existed on the said blank paper on which the alleged contract of sale has been typed out, though after the thumb impression, there was still ample of space left at the bottom of the page and the fin, rig by the learned District Judge that it was so done to confine the deed to a single sheet is contrary to what is apparent on the face of the document and without any evidence. It is based on mere surmises and -conjectures, and more so, this document does not contain the name of the deed writer and typist and has not been signed by the witness at the margin which is customary, but signed at the bottom of the document. It has also been submitted that Ganga Sahai father of the plaintiffs -respondents was doing pairvi on her behalf before the Consolidation Court, and he appears to have procured her thumb impression on blank papers and that her written statement in another case was inadmissible as evidence, as such, against the defendant -appellant since neither she was examined nor she entered in the witness box nor any affidavit was filed by her. She never came to the Court and even the said written statement was filed through her counsel. He has referred to Section 18 of the Evidence Act, which refers that the statement made by the persons referred to therein, are admissions, if they are made during the continuance of the interest of the persons making the statement. Her statement contained in the written statement was made after she had sold and parted with her whole property and had no proprietary interest left therein, thus, her statement made after parting her proprietary interest was not admissible against the defendant -appellant and the learned Icwer appellate court has grossly erred in relying upon the same. No compelling reasons existed for the lower appellate court to upset the judgment and decree of the trial Court with regard to the defendant being bonafide purchaser for value without notice of the contract. In fact, contract did not exist at that time and the suit was filed only after Smt. Ganga Devi had sold the property in favour of the appellants. Learned counsel for the appellants has further stressed that the Consolidation of Holding Rules are not applicable in the present case. The learned counsel for the appellants has further submitted that at the time when the appeal had been filed in 1974 the necessary amendments in Section 100 of the Code of Civil Procedure had not been made and therefore, no substantial question was required to be framed by the Court while admitting the appeal, more so, in terms of the saving clause Section 97(2) -clause (m) in the Central Act 104 of 1976. However, in my view the following substantial questions of law arise from the pleadings for consideration by this Court: -