1. It is admitted case that Ali Jan, plaintiff of the Original Suit No. 654/1992, was recorded tenure holder and bhumidhar of disputed agricultural property detailed in the plaint. It is also admitted that from his first marriage, defendants Fazroo and Wakaru were born. From second marriage of Ali Jan with Smt. Sugra (plaintiff no. 1/3), two sons Shakaruddin (plaintiff no. 1/1) and Mohd. Rashid (plaintiff no. 1/2) were born.
2. Plaintiff Ali Jan had filed original suit against his two sons Fazroo and Wakaru with averment that his sons Fazroo (defendant no.-1) and Wakaru (defendant no.-2) born from his late first wife are unauthorizedly attempting to take possession of his disputed bhumidhari property from him. Therefore, defendants be restrained by means of permanent injunction. After filing of the original suit, Ali Jan died and was substituted by his second wife Smt. Sugra and her two sons.
3. In original suit, defendants had filed joint written-statement, which was, in fact, filed after the death of original plaintiff. In this written-statement, they had admitted that in revenue records, name of late Ali Jan is recorded. They further pleaded that Ali Jan had partitioned his land and gave the possession of some land to defendants, over which they are in occupation. Ali Jan had not executed any will-deed dated 27.8.1992. The dispute of ownership of this land is pending before revenue courts. Suit is barred by Section 331 of U.P. Z.A. & L.R. Act and is liable to be dismissed.
4. In original suit, trial court had framed several issues, in which issue no.-1 was as to whether Ali Jan had partitioned the disputed land and gave it to defendants, issue no.-2 was as to whether will-deed dated 27.8.1992 was based on fraud and is a forged document, issue no.-3 was as to whether suit is barred by Section 331 of U.P. Z.A. & L.R. Act, issue no.-4 was relating to relief sought, and issue no.-5 was as to whether plaintiff is owner in possession of disputed land.
5. After accepting evidences of the parties and appreciated them, trial court had decided all the five issues in favour of plaintiff and decreed the original suit by its judgment dated 17.11.2007 for the relief of permanent injunction.
6. Against the judgment of trial court, Civil Appeal No. 144/2007, Fazroo and Anr. vs. Shakaruddin and others, was filed by defendants of the original suit. In this appeal, first appellate court had not framed specific points of determination but instead had taken all the above noted five issues framed by trial court, and decided them one by one. In this judgment, first appellate court had decided issue no. 1, 2 and 5 in favour of plaintiff, but decided issue no.-3 relating to bar of suit by Section 331 of U.P. Z.A. & L.R. Act in affirmative and in favour of defendants, and thereafter allowed the appeal on this sole ground and thus dismissed the original suit by setting aside the judgment of trial court.
7. Against this impugned judgment of first appellate court dated 26.2.2016 passed by Additional District Judge, Court No. 17, Meerut, present Second Appeal has been preferred by the plaintiffs of the original suit.
8. It is admitted fact that issue no. 1, 2 and 5 framed by trial court relates to fact and were decided independently by the two lower courts with concurrent finding in favour of plaintiff-appellant and against defendant-respondent. Both the lower courts had given finding that it is not proved that Ali Jan had partitioned any portion of disputed agricultural land or given any portion of his agricultural property to defendant-respondent. Both the lower courts had appreciated the evidences and gave finding of fact that it is proved that registered will-deed dated 27.8.1992 was executed by original plaintiff Ali Jan in favour of his second wife Sugra (substituted plaintiff no. 1/1) and this is a valid document without any irregularity or illegality. Trial court and the first appellate court had also given finding that plaintiffs, including substituted plaintiffs, are owner in possession of disputed property. The ownership was decided on the basis of fact that original owner was original plaintiff Ali Jan, who had specifically stated that defendants are not owner of the property in question. The possession of plaintiffs/appellants over disputed property was decided on the basis of evidences, with concurrent finding, in favour of plaintiffs.
9. Only issue no.-3 framed by trial court regarding bar of Section 331 of U.P. Z.A. & L.R. Act was decided in affirmative by first appellate court on the ground that dispute is still pending in revenue court, before the Board of Revenue; but during this period, it was ordered by Additional Commissioner that name of defendants be recorded in revenue records, so in spite of pendency of second appeal before Board of Revenue, the defendants appear to be the co-bhumidhar of disputed property, and such dispute can be decided by revenue courts. with these observations the lower appellate court had held the suit is barred by Section 331 of U.P. Z.A. & L.R. Act. This finding and judgment of first appellate court had led the plaintiffs to prefer present second appeal. This is the only question to be considered and determined by this Court in this appeal.
10. Learned counsel for the appellant contended that admittedly Ali Jan was exclusive bhumidhar of the original suit and he had declined any right of defendants over disputed property, and had executed will-deed of his whole property in favour of plaintiff no. 1/3 Sugra Begum, which is proved from evidences; therefore the suit was rightly decreed by trial court. He submitted that first appellate court had not properly appreciated the legal position and after holding the plaintiff's ownership and possession of disputed property and all factual points in favour of plaintiffs, it had dismissed the suit which was not barred by any legal provision.
11. Learned counsel for the respondents refuted these contentions and submitted that although original plaintiff Ali Jan was owner of disputed agricultural land, but after his death all his legal heirs, including plaintiff and defendants, became co-owners of his property. Therefore, plaintiffs have also acquired co-bhumidhari rights, and injunction cannot be granted in favour of co-bhumidhar plaintiffs against other co-bhumidhar defendants without any formal partition. He further submitted that bhumidhari rights are in dispute in this matter that can be decided by revenue court; therefore the first appellate court had rightly held the suit barred by Section 331 of U.P. Z.A. & L.R. Act.
12. It is admitted fact that before institution of suit and at the time of institution of suit, and even immediately after death of original plaintiff Ali Jan, there was dispute between the parties. Admittedly original plaintiff Ali Jan had pleaded himself to be the owner in possession of disputed property and his name was rightly recorded in revenue court, which was never challenged by any person. This fact was also admitted in written-statement of defendant-respondent. So for other points raised as defence in written-statement, for which issue no. 1, 2 and 5 were framed, had also been decided in favour of plaintiff-appellants with finding that they are owner in possession of disputed property, that Ali Jan had executed registered will-deed dated 27.8.1992 in favour of his second wife plaintiff no. 1/3 Smt. Sugra Begum and that said will-deed is a valid document, and that he had never partitioned his property and had never gave possession of any portion of it to defendants. It is strange that on one hand first appellate court had given specific finding on point of law and fact in favour of appellants (substituted plaintiffs) and on other hand it had held the suit as being barred by Section 331 of U.P. Z.A. & L.R. Act. This provision comes into effect when the dispute of ownership of agricultural property is the main relief and relates to cause of action of the suit. In present matter, admittedly, original plaintiff Ali Jan was owner of disputed agricultural land had ownership and possession at the time of institution of suit, which has been found proved by the two lower courts. It is also proved that after his death, the substituted plaintiffs (appellants) became owner and came in possession of disputed property. Even in written-statement, the defendants had not claimed their right of ownership or co-ownership of disputed agricultural property. Had they pleaded specifically of their right regarding this property, then matter would have been different, but although issue no.-3 relating to bar of Section 331 aforesaid was framed on the basis of written-statement, but there is no specific pleading that defendants are owner of property in question. They had only pleaded that Smt. Sugra Begum wife of Ali Jan had got executed a forged will-deed dated 27.8.1992, and from evidences this fact was found not proved. Instead, it was proved that this will-deed was executed by late Ali Jan in favour of his second wife Smt. Sugra Begum (plaintiff no. 1/3) and is a valid document. Thus the finding of first appellate court is against the specific pleadings of the parties and is found legally unacceptable.
13. From the records, it is found that after the death of Ali Jan, the dispute under Land Revenue Act had arisen and gone up to the Board of Revenue, which was decided in favour of substituted plaintiffs (present appellants). But after that defendant Fazroo and Wakaru had initiated another proceeding before revenue court, which is sub-judice and its judgment for not become final. Therefore pending the appeal before Board of Revenue this observation of first appellate court is erroneous that defendants are co-bhumidhar of disputed agricultural property. On this point findings of first appellate court is self contradictory when at one place it had specifically mentioned that dispute in revenue court had not reached to its finality and at another place it has found that on the basis of observation of lower revenue court, the defendants appear to be the co-bhumidhar of this property. Such self contradictory and erroneous finding of first appellate court is, in fact, infirm and perverse, and is hereby set aside.
14. There has been concurrent finding of the trial court as well as the first appellate court that initially original plaintiff Ali Jan, and after his death substituted plaintiffs (appellants) are owner and in possession of disputed property. As discussed above, both the lower courts had given concurrent finding on every disputed factual point in favour of plaintiff-appellant including their ownership and possession. Therefore, the judgment of trial court for decreeing the original suit and finding that the plaintiff is entitled for the relief of permanent injunction, is found correct.
15. It is a fact that after attaining finality of the judgment of revenue court regarding ownership and legal rights of agricultural property, it would be binding on the parties. But at present it is apparent and established fact that original owner of the disputed property Ali Jan had bequeathed said property in favour of his second wife Smt. Sugra Begum (plaintiff no. 1/3) and appellants are substituted as plaintiffs in original suit, and were found in possession of disputed property, and it is also proved that defendants had not specifically pleaded their ownership of disputed property and were not found in possession of this property. Therefore, plaintiff-appellants are entitled for the relief claimed in original suit.
16. In view of the above, this appeal is allowed. The judgment dated 26.2.2016 of first appellate court passed in Civil Appeal No. 144/2007, Fazroo and Anr. vs. Shakruddin and others, is set aside, and the judgment of trial court dated 17.11.2007 passed in Original Suit No. 654/1992 is hereby confirmed.
Order Date :- 31.5.2016 SR