JUDGMENT M.C. Jain, J.
1. This appeal arises out of Original Suit No. 222 of 1992 dismissed by IVth Additional Civil Judge, Agra on 27.1.1994. The suit was filed by the plain tiff/appellant for permanent injunction against the defendants/respondents restraining them from transferring their rights in plot No. 465 and three Kothis numbered as 3/8, 3/9 and 3/10 existing thereon in excess of their 3/4th share therein.
2. The appeal was heard and decided by a Division Bench of this Court of which one of us (Justice R. R. K. Trivedi) was a member on 27.11.1997. The plaintiff/appellant was granted permission to withdraw the first appeal and original suit in question with liberty to file a fresh suit after removing the formal defect. The effect was that the State of U. P. and Collector of Agra had not been arrayed in the suit despite the fact that their action in renewing the lease in respect of disputed property only in the names of three sons of Prem Behari was a question of substantial importance for deciding the suit. Defendant No. 1 went in appeal before the Supreme Court being Civil Appeal No. 5612 of 1998. By order dated 9.11.1998, the Supreme Court set aside the Judgment of this Court dated 27.11.1997 and directed for the disposal of the appeal on merits. It is in this way that the appeal has again come up for hearing.
3. The case of the plaintiff/ appellant was that he was co-lessee/ tenant in possession of municipal Nazul land being plot then bearing No. 465, now bearing plot No. 3 area 3.88 acres in dispute and was co-sharer of three buildings bearing No. 3/8. 3/9 and 3/10 standing thereon. Vinod Behari had taken on lease the said plot No. 465 for ninety years by a registered lease deed dated 9.1.1917 commencing from 1.10.1916 from Collector, Agra.
4. At that time there already existed Kothi Nos. 3/8 then bearing No. 128 and 120 as was mentioned also in the registered lease deed dated 9.1.1917. The said Kothi was also owned and possessed by Vlnod Behari and at that time was let out by him to some tenant. Vinod Behari had no son and was treating the plaintiff's father Siddh Behari as his son and the lease was also taken by him through Siddh Behari as his Special Attorney. Siddh Behari continued to manage the said property on behalf of Vinod Behari. Vinod Behari died in or about 1934 and thereafter plaintiffs father Siddh Behari came in possession. Siddh Behari had three brothers : Gopal Behari, Sukhdeo Behari and Madan Behari being the sons of Prem Behari. Prem Behari had married twice. Siddh Behari was the son from his first wife who died. Gopal Behari, Sukhdeo Behari and Madan Behari were his step brothers having born after the marriage of his father Prem Behari with his second wife Smt. Binda Kunwar. Prem Behari father of Siddh Behari, Gopal Behari, Sukhdeo Behari and Madan Behari died in or about 1917 after the lease of plot No. 465 had been executed. There were some family feuds after the death of Prem Behari and it was decided by all the family members with the concurrence of Siddh Behari that a separate residence be constructed for Smt. Binda Kunwar and her three above named sons and they be shifted to the residence to be newly constructed on the leased plot No. 465. Accordingly, Kothi No. 3/9 was built on leased plot No. 465 with the money left by Prem Behari and Smt. Binda Kunwar with her three sons started residing therein whereas the plaintiff's father Siddh Behari continued to live in joint family property at Pipal Mandi, Agra. Kothi No. 3/10 was subsequently built by Madan Behari on Plot No. 465. Plaintiffs father Siddh Behari died in 1952 leaving behind his three sons : Jagraj Behari (plaintiff), Kishan Behari and Suresh Behari. Suresh Behari and Krishna Beharis son Ajit Twickley have been arrayed as proforrna defendant Nos. 8 and 9. Vinod Behari died in the year 1934 and the rights in plot No. 465 ultimately devolved on Siddh Behari. Gopal Behari, Sukhdeo Behari and Madan Behari. After the death of Siddh Behari in-1952, Gopal Behari. Sukhdeo Behari and Madan Behari, exercising their position and influence, got the lease renewed in their favour illegally, excluding the three sons of Siddh Behari including the plaintiff. Though the lease deed dated 9.1.1917 was for ninety years but it was renewable first after 30 years, then after 38 years and ultimately after 22 years, making a total period of 90 years. Subsequently also, the lease deed was fraudulently got renewed upto the year 2006 by concealment of correct facts and without the knowledge of the plaintiff and the proforma defendants. If the Collector had inquired into the details of all the heirs of original lessee Vinod Behari, truth would have come out but no such inquiry was held. The plaintiff, who was in service, always remained posted out of Agra and had no reason to doubt the intentions of Gopal Behari, Sukhdeo Beharl and Madan Behari. He had full faith that his name and those of other heirs of Siddh Behari would also be included in the lease deed at the time of renewal. The fraud played came to be revealed to him only on 2.12.1991. Then he and proforma defendants made an application before the Collector on 15.1.1992 to include their names, which was still pending. On knowing about the said objections, the defendants threatened to sell the property in dispute and hence arose the necessity for the filing of the suit.
5. The contesting defendants are the heirs of Gopal Behari, Sukhdeo Behari and Madan Behari (defendant Nos. 1 to 5). Their case was that after the death of Prem Behari, there was a family settlement of entire property including the property in dispute on 10.8.1918. In this family settlement. Vinod Behari and Siddh Behari (father of the plaintiff/ appellant) were parties. The family settlement was a registered document and thereby the property in dispute was allotted exclusively to Gopal Behari, Sukhdeo Behari and Madan Behari and their mother Smt. Binda Kunwar. This family settlement was acted upon by all the parties. It was not disputed by Siddh Behari during his lifetime who remained alive upto 1952. The names were accordingly shown in the renewed lease deed in 1956 to the full knowledge of the plaintiff but at that time also no effort was made by him to dispute the family settlement and to assert his right over the property in dispute. The suit was filed in 1992, long after the family settlement which had been accepted by all the members of the family including the father of the present appellant. They prayed for the dismissal of the suit.
6. Thus, the dispute is about the alleged rights of the plaintiff in respect of leased property with regard to which first lease was obtained by Vinod Behari through plaintiffs father Siddh Behari as Attorney on 9.1.1917 and had subsequently come to be renewed in favour of the predecessors of the contesting defendants and after them in their favour.
7. We have heard the learned counsel for the parties and have gone through the evidence and material on record. The whole controversy centres around the lease deed renewed by the State of U. P. through the Collector of Agra in respect of disputed property in favour of predecessors of the contesting defendants and themselves. Therefore, the first point that falls for determination in this appeal is as to whether the suit of the plaintiff could be maintainable without impleading the State of U. P. and the Collector of Agra as parties to the suit.
8. The lease deed dated 9.1.1917 contained a condition with regard to assignment also and the relevant portion reads thus :
".....and also will upon every assignment of the said premises hereby demised or any part thereof or within one calendar month thereafter deliver a notice of such assignment to the Collector of the District Agra setting for the names and description of the parties to every such assignment and the particulars and effect thereof..... or if there shall be any breach by the lessee of any covenant hereinbefore contained the Secretary of State notwithstanding the waiver of any previous cause or right of re-entry enter upon any part of the premises hereby demised or of the building thereon in the same of the whole and thereupon the said premise and building thereon shall remain to the use of and be rested in the Secretary of the State......"
9. The lease dated 9.1.1917 was exclusively in the name of late Vinod Behari who died in 1934. The first renewal of the leased property became due in 1946, which actually took place on 22.12.1955 and the renewal of the lease deed was registered on 23.1.1956. The renewal was effected in favour of Gopal Behari. Sukhdeo Behari and Madan Behari sons of Prem Behari born to him from his second wife Smt. Binda Kunwar. Gopal Behari. Sukhdeo Behari and Madan Behari were the step brothers of the plaintiffs father Siddh Behari. Obviously, the action on the part of the Collector Agra and State of U. P. in renewing the lease only in favour of above named three sons of Prem Behari assumes great importance which is challenged also by the plaintiff/appellant. It has been averred by the plain tiff/appellant in paragraph 26 of the plaint that it was only on 2.12.1991 that he came to know about the fraud committed by Gopal Behari and defendants in getting the renewal of the lease excluding his name and those of the proforma defendants and immediately thereafter, they filed objections before the Collector, Agra on 15.1.1992 for substitution of their names in the renewed lease deed obtained after 9.1.1917. The said objections are said to be still pending. Therefore, the plaintiff/appellant disputes the renewal of the lease deed excluding his name and those of proforma defendants. In this view of the matter, the Collector of Agra through the State of U. P. must have been made a party to the suit which has not been done. Neither any notice was served upon the State of U. P. through Collector, Agra under Section 80 of the Civil Procedure Code nor it was impleaded as a party to the suit. In the face of the above facts. We are of the opinion that the suit of the plaintiff/appellant in the present form could not be maintainable without impleading the State of U. P. through Collector. Agra as a party to the suit.
10. Even on ignoring the above factor of the formal defect of the suit having been filed without impleading State of U. P. through Collector of Agra as a party to the suit, another important question that falls for determination in the appeal is as to whether plaintiff/appellant had any interest or right of any nature in the disputed property. There is a popular adage that the witnesses may lie but the circumstances will not. To begin with, it deserves mention that the original lease deed dated 9.1.1917 relating to the disputed property was exclusively in the name of Vinod Behari executed in his favour through Siddh Behari (father of the plaintiff/ appellant) as holder of power of Attorney. It is clear from the reading of the lease deed that Siddh Behari himself did not have any interest or right in the leased property except that he had signed it as power of attorney of lessee Vinod Behari. Admittedly. Prem Behari died in or about 1917 after the execution of the lease deed. It is admitted to the plaintiff/appellant himself in paragraph 11 of the plaint that at the time of his death, his grandfather Prem Behari left substantial property and to iron out the differences that arose amongst the members of the family, according to him, it was decided by all the family members with the concurrence of his father Siddh Behari that a separate residence be constructed for Smt. Binda Kunwar (second wife of Prem Behari) and her three sons (Gopal Behari, Sukhdeo Behari and Madan Behari) and they be shifted to the residence to be newly constructed on plot No. 465 and accordingly a new Kothi No. 3/9 was built thereon, where Smt. Binda Kunwar started living with her three sons. His own father Siddh Behari continued to live in the joint family property at Pipal Mandi. Judged in this background, it sounds to be natural that a family settlement was arrived at amongst the members of Joint Hindu Family after the death of Prem Behari in 1918 and the case of the contesting defend ants /res pendents is acceptable in this behalf. There is a registered memo of family settlement and relinquishment which was executed and registered on 10.8.1918. Its perusal shows that Vinod Behari original lessee of the disputed property acted as one of the Punches. It bears out that a family settlement took place amongst all four sons of Prem Behari after his death. Siddh Behari (father of the plaintiff/ appellant) son of the first wife of Prem Behari was on one side and Gopal Behari, Sukhdeo Behari and Madan Behari minors with their mother Smt. Binda Kunwar were on the other side. It was signed also by Vinod Behari as a witness who had acted as a Punch in such family settlement. Siddh Behari (father of the plaintiff/appellant) also signed It. It is apparent that through this family settlement the leased property came to the share of Smt. Binda Kunwar and her three sons Gopal Behari, Sukhdeo Behari and Mad an Behari. The deed was also to operate as a document of relinquishment executed and signed by Siddh Behari in respect of disputed property. Some other property marked as 'A' fell to his share whereas the property marked as 'B' comprising the disputed property fell to the share of Smt. Binda Kunwar and her three sons named above. This deed of family settlement and relinquishment also recites that the lease of the disputed property had been obtained in the name of Vinod Behari Ismafarzi (Benami) for Prem Behari. Indeed, this factum was admitted to Vinod Behari also who had acted as one of the punches and had signed the deed. It could be for the reason that the leased property belonged to Prem Behari that the family settlement could be arrived at in respect of this property too including other properties left by Prem Behari.
11. The plaintiff/appellant is bound by the acts of his predecessor and father Siddh Behari. It does not lie in his mouth to dispute the settled position after the death of his father after the lapse of long years.
12. Vinod Behari himself died in 1934 and during his lifetime he never made any assignment in favour of anyone. During his lifetime, he never gave any notice to the Collector, Agra, about any assignment in favour of any party in respect of leased property, whereof he was the lessee on paper as per the lease deed dated 9.1.1917. It is clearly indicative of the fact that he had accepted the position and facts as contained in the deed of family settlement and relinquishment dated 10.8.1918 in which he had acted as one of the Punches and through which the leased property had fallen to the share of Smt. Binda Kunwar and her three sons Gopal Behari, Sukhdeo Behari and Madan Behari. Siddh Behari (father of the plaintiff/appellant) relinquished all his claims, relating thereto in lieu of another property having fallen to his share. It may be stated at the risk of repetition that it was also recited in the said deed of family settlement and relinquishment that the lease in 1917 in respect of disputed property had actually been obtained for Prem Behart in the name of Vinod Behari. Siddh Behari father of plaintiff/ appellant himself died in 1952. The first renewal of the lease deed became due in 1946. He also never applied for renewal. Instead, renewal was applied for by Gopal Behari, Sukhdeo Behari and Madan Behari sons of Smt. Blnda Kunwar in whose favour renewed lease deed was executed on 22.12.1955 which was registered on 23.1.1956. The point of the matter is that during their life time, neither Vinod Behari nor Stddh Behari laid any claim to the disputed property after the deed of family settlement and relinquishment was executed on 10.8.1918, whereby the disputed property had fallen to the share of Smt. Binda Kunwar and her three sons Gopal Behari. Sukhdeo Behari and Madan Behari. Siddh Behari, father of plaintiff/appellant ceased to have any right or interest of any ktnd whatsoever, in the leased property after 10.8.1918. As mentioned above, the plaintiff/appellant is bound by" the acts of his predecessor/father and he cannot choose to dispute the settled position suiting to his interest and convenience, but having no legal basis.
13. We also wish to point out that the second renewal of the lease deed became due in 1984. Civil Misc. Writ Petition No. 4266 of 1987 was filed by some heirs of the lease holders of the lease renewed by the deed of 1955 for renewal of lease deed in their favour. The plaintiff/appellant admitted in his cross-examination before the Court below that he had received notice of that writ petition. Thus, he was aware of the renewal proceedings but he did not put forth any claim. It is indicative of the fact that it dawned upon the plaintiff/appellant at a much belated stage and he started disputing the settlement arrived at as back as on 10.8.1918 which had been accepted and acted upon by all the concerning parties including his predecessor/father who was alive upto 1952. The plaintiff/appellant filed the suit giving rise to this appeal as late as on 16.3.1992 by twisting the facts beyond recognition.
14. It has also been argued by the plaintiff/appellant that the family settlement of 1918 did not relate to the disputed leased property. According to him, it related to a different property No. 85. In the plaint in paragraph 5, it has been so averred as under :
"5. That at the time of the said lease there already existed Kothi now bearing No, 3/8 then bearing No. 128 and 120 as is also mentioned in the said registered lease deed dated 3.1.1917. The said Kothi was also owned and possessed by the said Shri Vinod Behari and was at that time let out by him to tenant and was popularly known as "Agents Kothi" as is also mentioned in the said lease-deed dated 9.1.1917."
15. On consideration, we find that the contention of the plaintiff/ appellant that the family settlement of 1918 pertained to some other property is wholly imaginary and unacceptable. A conjoint reading of the lease deed of 1917 together with the annexed map and the family settlement of 1918 makes it abundantly clear that the family settlement of 1918 related to the property leased out by the 1917 deed, which fell to the share of Smt. Binda Kunwar and her three sons Copal Behari. Sukhdeo Behari and Madan Behari. Actually. Agent's Kothi is depicted in the southern boundary of the leased property. It is simply a figment of the imagination of the plaintiff/appellant that the family settlement of 1918 did not relate to the leased property in dispute but to some other property.
16. In view of the above discussion, we reach to the final conclusion that the plaintiff/ appellant has no right or interest of any nature whatsoever in the disputed property which stood settled in favour of Smt. Binda Kunwar and her three sons Gopal Behari, Sukhdeo Behari and Madan Behari by the family settlement of 1918.
17. In the result, the appeal is devoid of merit and is hereby dismissed with costs.