Hon'ble Dr. Satish Chandra, J.
Heard Sri Upendra Nath Mishra, Counsel for the appellant and Sri Mohd. Arif Khan, Senior Advocate, assisted by Sri M.E. Khan, Counsel for the respondent Nos. 1 to 4.
Through the instant first appeal under Section 96 of the Code of Civil Procedure, the appellant-Nagar Nigam, Lucknow has assailed the judgment and decree dated 20.2.2013 passed by the Additional Civil Judge (Senior Division), Court No.22, Lucknow [hereinafter referred to as the "trial Court"], in Regular Suit No. 323 of 2004, whereby the trial Court allowed the suit in favour of the plaintiffs/respondent Nos.1 to 4 and declared that on the basis sale deed in question dated 28.6.1940 Paper No. 89-Ga (loss Paper No. 9Ga/2), the plaintiffs/respondent Nos. 1 to 4 are the owner of land i.e. Khasra No. 1, measuring 30 bigha, 12 biswa, 4 biswansi situated at Village Farukkhabad Chillawan, Pargana Bijnour, Tehsil & District Lucknow.
Undisputed facts of the case are that the predecessor of respondent Nos. 1 to 4, namely, Sri Bharat Singh, filed a suit for perpetual injunction and declaration before the trial Court, which was registered as Regular Suit No. 323 of 2004. Notices were issued. In response thereof, defendant No.4/appellant and defendant Nos. 1 and 2/respondent Nos. 5 and 6 have appeared and filed their written statements but from the side of defendant No.3/respondent No.7, no one has put in appearance and as such, the case was proceeded against him ex parte vide order dated 1.11.2010.
After exchange of pleadings, the trial Court framed issue Nos. 1 to 6 on 9.11.2010 and issue No. 7 on 12.1.2013. The issues are as under :
While assailing the impugned decree, Sri Upendra Nath Mishra, Counsel for the appellant has contended that prior to promulgation of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 [hereinafter referred to as the "Act"] and after implementation of the Act, the disputed land i.e. Khasra Plot No. 1, measuring 30 bigha, 12 biswa, 4 biswansi situated at Village Farukkhabad Chillawan, Pargana Bijnour, Tehsil & District Lucknow, was recorded as pond/talab in the revenue records and right from the date of vesting, the said pond/disputed land had vested in the State under the provisions of Section 4 and 6 of the Act and till date, the disputed land is recorded as Pond land.
While placing reliance upon Sections 4, 6 and 132 of the Act, Sri Mishra has contended that inspite of alleged sale deed dated 28.6.1940, all rights upon the pond land of intermediaries or a person, who is claiming the rights upon the pond land through the intermediaries ceases and the pond land vests in the State, free from all encumbrances. Thus, the pond land (disputed land in this case) vests in the State of U.P. from the date of vesting (i.e. 1.7.1952) and the plaintiff-Bharat Singh and his successor (respondent Nos. 1 to 4) have got no legal right to claim declaration over the said land on the basis of alleged unregistered sale deed dated 28.6.1940 in view of the provisions of Section 4, 6 and 132 of the Act as well as Section 30 of the U.P. Tenancy Act.
Sri Mishra has contended that as per provisions of Section 117 of the Act, the disputed land was given to the Gaon Sabha and when the Gaon Sabha, Farukkhabad, Chillawan came under the limits of Nagar Nigam in the year 1987, then, the disputed land vested under the management of Nagar Nigam, Lucknow.
To strengthen the aforesaid submissions, Sri Mishra has placed reliance upon State of U.P. Vs. Ram Dass and others : AIR 1976 All. 44, Harihar Nath and others Vs. DDC Gyanpur : 2004 (97) RD 378, Hinch Lal Tiwari Vs. Kamla Devi : 2001 (6) SCC 496.
Next submission of the Counsel for the appellant Sri Upendra Nath Mishra is that the trial Court passed the declaratory decree without determining the legal rights of the plaintiffs. He submits that as per provisions of Section 34 of the Specific Reliefs Act, if any person is entitled to any legal right to any property, then, Court may pass a declaratory decree holding the said legal character or legal right but in the instant case, the Trial Court, vide order dated 20.2.2013, failed to determine as to whether any legal right, either Bhumidhari or Asami rights, was ever accrued in favour of the plaintiffs over the pond land in qustion, in view of the provisions of the Act. He submits that according to the provisions of Section 30 of the U.P. Tenancy Act, 1939, no hereditary right can be conferred upon the land covered with water i.e. pond land.
Sri Mishra has next contended that alleged unregistered sale deed dated 28.6.1940 ought to have been proved by the plaintiffs according to the provisions of Section 68 and 69 of the Indian Evidence Act, but the same was not done as required under law insofar as though attesting witnesses Manohar Singh and Shivdan Singh were alive but they were never produced by the plaintiffs before the Court to prove the said unregistered sale deed, whereas P.W.2 Shatrohan Singh was produced to prove the alleged unregistered sale deed. He submits that as per his own submission, Shatrohan Singh was only 15 years old at the time of execution of alleged unregistered sale deed, therefore, as per the provisions of law, he being a minor at that time, could not be said to be a competent witness to prove the said sale deed. He further submits that during cross-examination, Shatrohan Singh admitted that Maqboolunisha never signed before him on the alleged unregistered sale deed and the alleged unregistered sale deed was sent by Maqboolunisha from her room to outside, where P.W.2 was standing. In his cross-examination, Shatrohan Singh totally failed to establish that the witnesses of the alleged unregistered sale deed had put their signatures before him. Shatrohan Singh failed to even prove the signature of Maqboolunisha and other attesting witnesses as per Sections 45, 47 and 71 of the Indian Evidence Act. Therefore, P.W.2 Shatrohan Singh cannot be said to be witness of alleged unregistered sale deed. Thus, the said sale deed cannot even be presumed to have been proved before the Trial Court.
Elaborating his submission, Sri Mishra has submitted that the forgery committed by the plaintiffs for obtaining a declaratory decree from the Civil Court was well established and proved from the record, which was evidently ignored by the trial Court, while passing the impugned judgment and decree. Since fraud vitiates everything and a decree obtained on the basis of fraud is a nullity in the eye of law, the impugned judgment and decree is not tenable in law and deserves to be set aside.
To strengthen his arguments, Sri Mishra has relied upon A.V. Papayya Sastry and others Vs. Govt. of A.P. And others : 2007 (4) SCC 221, S.P.Chengalvaraya Naidu Vs. Jagannath and others : AIR 1994 SC 853.
Lastly, Sri Mishra has submitted that Section 54 of the Transfer of Property Act provides that in case, an immovable property of value less than Rs.100/- is sold, registration of same is not required. However, the trial Court interpreted the aforesaid provisions that if sale consideration is less than Rs.100/-, then, registration is not required.
Per contra, Mohd. Arif Khan, Senior Advocate, appearing on behalf of the respondent Nos. 1 to 4 has submitted that prior to abolition of Zaminidari, the land in dispute was purchased in the name of predecessor-in-interest of the respondent Nos. 1 to 4, namely, Bharat Singh by means of sale deed dated 28.6.1940, which was executed by the then Zamindar Smt. Maqbullunnisha and since then, Bharat Singh was in possession over the disputed land and after his death, respondent Nos. 1 to 4 were in possession over the disputed land. He submits that though the land in dispute is recorded as Talab (pond) in the revenue records, but virtually the said land is a plain low land capable for cultivation. Since the date of purchase, different types of crops are being yielded over the land in dispute by the plaintiffs.
Sri Khan has submitted that on 30.3.1993, a notice was given to Sri Bharat Singh by the Tehsildar, Nagar Nigam, Lucknow for removal of the alleged illegal possession over the land in dispute, but the said notice was wiithdrawn by Nagar Nigam, after submission of reply by Sri Bharat Singh. Thereafter, on 9.12.2003, a fresh notice was given by Tehsildar, Nagar Nigam to Sri Bharat Singh and in the year 2004, Nagar Nigam extended serious threats for dispossessing the father of respondent No.1 to 4 Sri Bharat Singh. In this background, Sri Bharat Singh, predecessor of respondent Nos. 1 to 4, filed Original Suit No.323 of 2004 for declaration and permanent injunction. He submits that apart from original sale deed dated 28.6.1940 along with its Hindi version and other documents, the plaintiff has also brought on record the order dated 13.12.2004 passed by the Naib Tehsildar, Bijnour, District Lucknow passed in case No. 76/394 :Sri Bharat Singh Vs. Smt. Maqbullunnisha under Section 34 of U.P. Land Revenue Act, whereby the Naib Tehsildar has recorded specific finding that from the evidence available on record, it is crystal clear that since the date of purchase, the land in dispute is in possession of Bharat Singh. This finding has never been challenged and as such, the same has attained finality.
Sri Khan has further submitted that at the stage of argument, original sale deed dated 28.6.1940 paper No. 9-C/2 was misplaced from the record and with the consent of the parties, Paper No.89-C, the certified copy of the document obtained from the Court was taken on record and was also agreed by the parties to be read in place of Paper No. 9-C/2. Plaintiffs had also brought on record the order dated 16.11.1996 passed by S.D.O., Sadar, Lucknow in Case No. 194/95-96 :Iftikhar-Uz-Zama Vs. Nagar Nigam, filed under Section 229 (B) of the Act, whereby Bhumidhar with non-transferable rights were given to Iftikhar-uz-Zama and his brother Shad-uz-Zama over 4 bigha, 4 biswa, 1 biswansi land of Khasra No. 1 situated at village Farukhabad Chillawan, Tehsil Sadar, District Lucknow. Against the order dated 16.11.1996, Iftikhar-Uz-Zaman and his brother preferred an appeal, which was allowed by the Additional Commissioner, Lucknow Division, Lucknow vide order dated 20.11.1997 and they were declared bhumidhar with transferable rights of the aforesaid land. Thereafter, State of U.P. preferred review application, seeking review of the judgment and order 20.11.1997, which was dismissed vide order dated 21.4.2001. In this background, the Trial Court has rightly decreed the suit of the plaintiff/respondent Nos. 1 to 4 vide impugned decree dated 20.2.2013.
Sri Khan has submitted that while deciding issue No.7, the trial Court has recorded specific finding that the sale deed dated 28.6.1940 is a valid sale deed and its registration was not necessarily required in view of the provisions contained under Section 17 (1) (b) of the Indian Registration Act, as the same was existing on the date of sale deed, whereas while deciding issue Nos. 1 and 2, the trial Court has recorded that the plaintiff is the owner in possession of the land in dispute on the basis of sale deed dated 28.6.1940 and the defendants including the appellant Nagar Nigam do not have right, title or interest over the same. It was also recorded that the entry of pond in the revenue records over the land in dispute makes no difference on the right, title or interest of the plaintiff/respondent Nos. 1 to 4. All the witnesses examined on behalf of the plaintiffs/respondent Nos. 1 to 4 have categorically stated that since the date of purchase, the plaintiffs/respondent Nos. 1 to 4 are in exclusive peaceful possession over the land in dispute but no cross-examination on the said point has been done on behalf of the appellant.
So far as the contention of the appellant's counsel that the suit filed by the plaintiff was not cognizable by the Civil Court, Sri Khan has submitted that no such plea was taken by the appellant in its written statement filed during trial, therefore, it is not open for the Nagar Nigam/appellant to take such a plea in this appeal in view of the provisions of Section 331 (1-A) of the Act.
To strengthen his argument, Sri Khan has placed reliance upon Balwant Singh and another Vs. Daulat Singh (dead) by Lrs. And others : AIR 1997 SC 2719, Union of India (UOI) Vs. R. Bhusal : 2006 (6) SCC 36, Ravinder Singh Vs. Janmeja Singh and others : AIR 2000 SC 3026; Bondar Singh and others Vs. Nihal Singh and others : AIR 2003 SC 1905, Traders Syndicate Vs. Union of India : AIR 1983 Calcutta 337, S.P. Singh Vs. Addl. Commissioner, Meerut Division, Meerut and another : 1998 (16) LCD 400, Kali Prasad and others Vs. Deputy Director of Consolidation and others : AIR 2000 SC 3722, and Gur Charan Singh and others Vs. Gram Sabha and others : 2008 (105) RD 460.
We have considered the rival submissions and we are of the view that the findings recorded by the trial Court are based on cogent reasons and documentary evidence produced before it. Before the trial Court the respondents/plaintiffs have brought on record the order dated 13.12.2004 passed by Naib Tehsildar, Bijnour district Lucknow passed in Case No. 76/394 under Section 34 Land Revenue Act, Bharat Singh Vs. Smt. Maqbulunnisha, wherein Naib Tehsildar has recorded a finding to the effect that from the evidence, it is established that since the date of purchase, land is in possession of Bharat Singh. Moreover, in respect of the same Khasra No. 1 land measuring over 4 bigha, 4 biswa, 1 biswansi, the Sub-Divisional Officer, Sadar passed an order dated 16.11.1996 in Case No. 194/95-96 under Section 229(B) of the U.P.Z.A. & L.R. Act giving Bhumidhari with non-transferable rights to one Iftikhar-uz-Zama and his brother Shad-Uz-Zama. It has been brought to our notice that when only bhumidhari with non-transferrable rights were given to the aforesaid persons, they preferred an appeal against the order dated 16.11.1996 before the Additional Commissioner, which was allowed vide its judgment and order dated 20.11.1997 and they were declared Bhumidhar with transferable rights over the aforesaid land. Against the said appellate order, the State Government preferred a review petition, which was dismissed vide order dated 21.4.2001. Thereafter, the State Government did not agitate the matter any further and as such, the said judgment has attained finality.
As regard the maintainability of suit filed by the plaintiff/respondent herein before the Civil Court, we are in full agreement with the arguments advanced by the answering respondent that the plea has been taken by the appellant for the first time before this Court and no such plea was raised while filing written statement. Therefore, no such plea can be raised now in view of the legally settled position and especially the provisions contained in Section 331 (1-A) of the U.P.Z.A. & L.R. Act. In the backdrop of the aforesaid fact, the conclusion is inescapable that respondents/plaintiffs cannot be deemed to have any terminal rights over the land in question.
We would like to add that the case of the plaintiffs was based on sale deed dated 28.6.1940 executed by the then Zamindar Smt. Maqbulunnisha and validity of the sale deed was under consideration before the learned trial Court and as such, the competent civil court has every jurisdiction to decide the validity of the said sale deed. It may be pointed out that the trial Court while deciding issue No.7 has recorded a categorical finding that the said deed dated 29.6.1940 is a valid sale deed and its registration was not necessarily required in view of the provisions contained under Section 17 (1) (b) of the Indian Registration Act as the same was existing on the date of sale deed. Our view is fortified by the decision of the Apex Court rendered in AIR 2003 SC 1905 : Bondar Singh and others Vs. Nihal Singh & others. It is borne out from the record that the plaintiffs were having possession over the land in question after the sale deed and as such, their adverse possession is thus clearly established. To put it differently, mere recording of the land in dispute as pond in the revenue records does not nullify the ownership of respondent Nos. 1 to 4 over the land in dispute inasmuch as mutation does not confer any title upon any person.
As regard the assertion of the appellant that after comng into force of UPZA & LR Act, the land would vest in the State cannot be accepted for the reason that since prior to the abolition of Zamindari, the land in question was purchased by the predecessor-in-interest of the respondent Nos. 1 to 4, Bharat Singh and he was put to possession over the same, hence even after abolition of Zamindari, the land in question shall continue to belong to its purchaser and his legal heirs.
Having considered the materials on record, we are of the view that the judgment and decree dated 20.2.2013 has been passed by the learned trial Court in accordance with law after considering the oral as well as documentary evidence and as such, it cannot be said that findings are perverse or erroneous. Consequently, the judgment of the trial Court is affirmed and the instant appeal is dismissed.
Costs easy.
Order Date : 24th February, 2014 Ajit/-
Judgment delivered under Ch.VII Rule 2 of the Allahabad High Court Rules, 1952.