Nagar Palika Parishad vs Zakir Hasan & Others

This is a defendant's second appeal arising out of suit filed by plaintiffs-respondents for injunction restraining defendant and for damages against defendant-appellant on the ground that disputed property of Plot No.25 measuring about 1.577 hectares situated in village Khanalampura Post and District Saharanpur, plaintiffs' father was in possession of said property. Sri Tahir Hasan father of plaintiffs died on 15.12.1977 and plaintiffs as well as defendant Nos. 2 and 3 their names have been recorded on the basis of application before Tehsildar. An application on behalf of Nagar Palika was also made. Plaintiffs' application was allowed and name of plaintiffs in place of Tahir Hasan was recorded and application of Nagar Palika was rejected. Against this order, Nagar Palika filed an appeal that has been dismissed and revision too after hearing both the parties was rejected by order dated 5.2.1992. In such circumstances, plaintiffs have become Bhoomidhar and occupant of said property.

In spite of aforesaid fact an application was filed by Nagar Palika without any information to plaintiffs and he got an order in his favour. When plaintiffs came to know they made an application and that order was cancelled by order dated 17.3.1993, Tehsildar has again recorded name of plaintiffs. In the year 1963, a sale deed was executed in favour of Nagar Palika by Tahir Hasan but actual physical possession was never taken and Nagar Palika was never in possession of said property and their names were never recorded in the revenue record. Therefore, in view of sale deed, if they got any right that has come to an end by lapse of time. Plaintiffs' father's name was always recorded as ex-proprietary tenant. On 4.8.1972 in the area of Saharanpur, U.P. Urban Areas Zamindari Abolition and Land Reforms Act made applicable and in view of abolition of Zamindari in that area, disputed land vest in the State and every right of Nagar Palika has come to an end and in view of provisions of Tenancy Act, plaintiffs have become Sirdar of the land. Nagar Palika was only to get some compensation which they have received. Further averment was made that after abolition of U.P. Urban Area Zamindari Abolition and Land Reform Act, 1972, father of plaintiffs and plaintiffs' possession as Sirdar and subsequently as Bhoomidhar continued. In such circumstances, plaintiffs are in possession of land of his own rights.

Defendant filed their written statement and denied claim made by plaintiffs-respondents. It has been stated that plaintiffs are not Bhoomidhar in possession of property in dispute and a registered sale deed dated 7.5.1963 for Rs.37,560/- was executed by father of plaintiffs and there is a puccka wall and house also, which is mentioned in the sale deed. On the basis of aforesaid sale deed, defendants are the owners of the property in dispute. Due to some reasons, name in the said property could not be mutated and, therefore, sons of Tahir Hasan after his death has got recorded their names. It has also been stated that after the sale deed they are in possession of the property in dispute. Suit is barred by Sections 34, 38 and 41 of the Specific Relief Act as well as Section 326 of the Nagar Palika Adhiniyam and Section 331 of the U.P. U.P. Urban Areas Zamindari Abolition and Land Reforms Act.

Trial Court after considering the pleadings of parties has framed various issues. Issue No.1 was framed whether plaintiffs are bhumidhar in possession of the property in dispute as well as whether suit is barred by Section 326 of the Nagar Palika Adhiniyam and Section 331 of the U.P. Zamindari Abolition and Land Reforms Act as well as Sections 34, 38 and 41 of the Specific Relief Act.

On behalf of plaintiffs, plaintiffs in support of their case has produced one Abbas Hussain P.W.-1 and in documentary evidence 9-Ga which is Khasra nos. 1318 fasli to 1408 fasli, 1401 fasli paper No.24-ga and 61-Ga as well as Akarpatra 25, 19 Nakal Akarpatra, photocopy of the gazette of U.P., revenue receipts as well as other various documents including order passed by Tehsildar SDM as well as the Commissioner were produced.

On behalf of defendant one Banarsi Das Inspector has made a statement submitting the sale deed dated 12.7.1963, paper No.178, sale deed dated 7.5.1963, paper No.179ga, Nakal Khatuni and various other documents.

Trial Court after consideration of various issues and on the basis of evidence and statements, has recorded a finding that it is proved that father of plaintiffs in 1371 fasli meaning thereby that in the year 1963 he was not owner in possession of Khewat No.6/1 measuring 6 Biga, 14 Biswa and 15 biswansi. The said land is in limits of Nagar Palika. The Zamindari abolition was enforced in 1972. Before abolition there were two types of owner of agriculture land, one as owner and other Kastkar. On behalf of defendant's sale deed dated 7.5.1963 it shows that owner of Khewat no.6/1 and Khewat No.6/2 was one Mohd. Rashid Begum, the father of plaintiffs has purchased from the custodian and it was sold to the municipal board on 7.5.1973. On the basis of sale deed, name of municipal board was recorded in the revenue record as owner of the property but in the Khewat, name of Tahir Hasan was recorded as occupancy tenant. In other words, Nagar Palika has become owner but actual possession was remain with Tahir Hasan, father of plaintiffs. From fasli 1379, it shows that on the basis of sale deed executed in favour of municipal board, only rights as a owner of the property has been changed but possession was never taken and Tahir Hasan remained in possession of the said property. After abolition, according to Section 8 and according to Section 10, from 5.8.1972 all agriculture property within the limit of Municipal Board Saharanpur in spite of any contract has become free from every incumbent and vested in the State, therefore, from Khasra No.25, Khewat 6/1 and 6/2 all rights of the Municipal Board in spite of aforesaid sale has come to an end and property has vested in the State. Meaning thereby from 5.8.1972, right of Municipal Board has come to an end and according to Section 18, from that date persons who were in occupation of any agriculture land became Sirdar having new rights of the property and due to aforesaid reasons, in Khatuni Nos. 1382 and 1388 Fasli, name of Municipal Board has come to an end and name of Sri Tahir Hasan was recorded as Sirdar and compensation was awarded to the Municipal Board and that has been accepted. A finding has been recorded that Tahir Hasan became Sirdar earlier and after payment of revenue he has become owner and his name continuously recorded and subsequently this property on the basis of the order passed by Tehsidar Saharnapur, name of heirs of Sri Tahir Hasan has been recorded. Appeal filed by Nagar Palika has been rejected and revision too has been dismissed by order dated 6.2.1992.

After recording such finding, trial court has decreed the suit restraining defendant-appellant not to interfere in possession of plaintiffs as well as mud and malwa which has been collected by Nagar Nigam should be removed within a period of 30 days. Defendant filed an appeal against the said order. Appeal too has been dismissed vide judgment and order dated 25.4.2009 Hence, present second appeal has been filed by appellant.

Sri C.K.Pareikh learned counsel appearing for appellant submits that both the courts have misread the sale deed dated 7.5.1963 in which Khudkhast land was sold to Nagar Palika Parishad and clear statement in the sale deed was made that physical possession is also handed over to Nagar Palika Parishad. Finding recorded contrary regarding physical possession is not correct based on misreading and misinterpretation of the sale deed dated 7.5.1963. Under the U.P. Tenancy Act, in respect of transfer of Khudkhast land along with physical possession there is no bar in the sale of sir except proprietary interests. There is no bar under U.P. Tenancy Act in respect of transfer of Khudkast land along with physical possession but there is a bar in sale of sir plots except proprietary interest. In the present case, disputed plot was Khudkast land of vendor, therefore, sale deed is valid with physical possession but courts below have illegally presumed otherwise. No ex- proprietary tenancy right accrued in sale of khudkast land but khudkast land sold out right under U.P. Tenancy Act but courts below illegally applied the provisions of sale of sir right. Without admitting this fact, if disputed property is sir even then after transfer of physical transfer rights, title of seller will come to an end which makes no difference in the title of purchaser. Court below has committed an illegality apparent on the face of record that, in case, name was not mutated in the revenue record, that will not debar or dis entitle appellant to have any right on the basis of sale deed. Execution of sale deed is admitted. It has also been submitted that right of the party can be adjudicated only on the basis of entry in the revenue record. Entry in the revenue record only gives a presumption but not as a right in spite of the title. Entry in the revenue record only raised a presumption which can be rebutted, as in the present case, name of vendor recorded subsequently not at earlier stage, as such, both the courts have illegally raised presumption against defendant-appellant in respect of its title. He has placed reliance upon a Division Bench judgment of this Court reported in 2011(4) ADJ, 289 (Division Bench) Sri Ram and others Vs. Deputy Director of Consolidation, Allahabad and others. Taking support of aforesaid judgment, learned counsel for appellant submits that long standing entries hold only a presumptory value and they cannot be taken to be an absolute proof. He has placed reliance upon paragraphs 15, 21, 31 33 and 35. Same are being quoted below-

"15. In view of the foregoing discussions, it is held that the law laid down by the learned Single Judge In Jagdeo's case (supra) was in conflict with other earlier judgments as noticed by the learned Single judge in paragraph 32, and merely because the learned Single judge had arrived at a different conclusion was not sufficient for taking a divergent view. In such circumstances the learned Single Judge ought to have made a reference to be considered by a larger bench as laid down by the Full bench in Rana Pratap Singh's case (supra).

21. In view of the foregoing discussion, it is thus clear that although estoppel rule of evidence, it may have the effect of creating substantive rights or defeating substantive rights. The applicability of the principle of estoppel may have difference were the rights claimed are right related to the period before abolition of zamindari and after abolition of zamindari and further with regard to the nature of tenure.

The question which is to be considered is as to whether or not estoppel and acquiescence can create an implied bar in filing an objection by a person claiming co-tenancy right under the Act, 1953 and as to whether the person who has failed to assert his rights under the Act, 1950 is barred from filing an objection.

The respective scheme of the Act, 1950 and the Act, 1953 needs to be noticed. The Act, 1950 was enacted to provide for the abolition of the Zamindari System which involves intermediaries between the tiller of the soil and the State in Uttar Pradesh and for the acquisition of their rights, title and interest and to reform the law relating to the land tenure.

The Act, 1953, was enacted with the object of ensuring compactness of holdings and also to provide a forum for settlement of disputes of all nature including rules in relation of land, mistakes in the revenue records and shares of tenure holders etc.

31. The Assistant consolidation Officer, under Section 9A of the Act, 1953, is entitled to settle the disputes even in cases where any objection is not filed on the basis of conciliation for eg. With regard to a plot, name of one branch of a family is recorded and the name of two other branches are not recorded. A dispute is raised at the time of partal (survey) which is noticed by the consolidation officials and if no objection is filed by the person claiming co-tenancy right, the Assistant Consolidation Officer is fully empowered under Section 9A, of the Act, 1953 to decide the dispute on the basis of conciliation between the parties in accordance with the rules.

Taking a converse case, i.e. if objections are filed claiming co-tenancy rights by a branch of a family whose name is not recorded for the last say 50 years, if the interpretation put by the learned Single judge is accepted, such objections are to be created as barred.

Thus for the same dispute although by conciliation it can be decided, but on objection it cannot be decided would lead to anomalous results which cannot be the intention of the legislature. Thus no such implied bar for filing objections can be read into the provisions of Section 49.

The entries in the revenue records raise only a presumption which is a rebuttable presumption. There is one more principle i.e. presumption of correctness of entries can apply to only genuine not forged or fraudulent entries. If the bar is read in filing objections against such entries it would lead to injustice.

33. Thus, when the revenue entries raise only a rebuttable presumption a party objecting to the said entry can always by sufficient evidence rebut the presumption. Shutting out such objections at the very threshold cannot be said to be in accordance with the provisions of the Act,1953.

35. In view of foregoing discussions, we answer the question Nos. 3,4 and 5 as follows:

(3) The learned single Judge in Jagdeo's case (supra) was not justified in invoking the principles of doctrine of estoppel and acquiescence for creating an implied bar merely because a co-tenant had failed to assert his rights under the Act, 1950, and a co-tenant is not barred in raising objections under the Act, 1953.

(4) The provisions of the Act, 1953, being a special Act has an overriding effect over other Acts for the time being in force relating to adjudication of rights by tenure holders contemplated under the Uttar Pradesh Consolidation of Holdings Act, 1953 and it is the consolidation Courts that have exclusive jurisdiction to decide the right, title and interest of claims relating to land tenure upon a notification under Section 4 of the Act.

(5) Long standing entries which are questioned in an objection filed under the Uttar Pradesh Consolidation of Holdings Act, 1953 hold only a presumptory value and they cannot be taken to be an absolute proof for pressing the principle of estoppel, acquiescence and waiver and no automatic bar of Section 49 of the Uttar Pradesh Consolidation of Holdings Act, 1953 is attracted."

Further reliance has been placed upon Municipal Board, Chunar and another Vs. Additional S.D.O., Sadar, Mirzapur and others reported in 1999 (3) AWC, 2706 and has placed reliance upon the following judgment:-

"1. Is the UP Tenancy Act, 1939 (the Tenancy Act for short), a ''law relating to land tenure' within the meaning of the UP Public Premises (Eviction of Unauthorised Occupants) Act, 1972 (the Act for short)? Is land held by a tenure holder under the Tenancy Act, ''premises' within the meaning of the Act? These questions arise for determination in these four writ petitions. This is how they arise.

FACTS

2. The property in dispute is Nazul property. The concerned District Magistrate had leased it out in favour of the predecessors-in-interest of the contesting respondents. The notified area committee had renewed it for a term. Subsequently the lessees transferred the property in favour of the contesting respondents. After expiry of the period of the leases, a notice was issued to the contesting respondents under the Act for their eviction in proceedings initiated by the Municipal Board, Chunar, Mirzapur (The Board for short). It is not disputed that now the Board manages the property. The Courts below have dismissed the proceedings on the ground that property in dispute is not premises under the Act. Hence,these writ petitions.

POINTS FOR DETERMINATION

3. I have heard Sri Sankatha Rai and Sri R.N. Singh learned counsels for the parties. The following points arises for determination:

(i)Is the Tenancy Act a law relating to land tenure within the meaning of the Act?

(ii)Is the land in question ''public premises' under the Act?

(iii)Are the contesting respondents in unauthorised occupation of the same?

Ist POINT: THE TENANCY ACT - LAW RELATING TO LAND TENURE.

4. There is no doubt that the Tenancy Act is a law relating to land tenure, as these words are normally understood. But is it a ''law relating to the land tenure' within the meaning of the Act, is the question before me. The Act was first promulgated as an ordinance then enacted as an Act in 1972. The Act was amended by the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976 (UP Act 28 of 1976) (the Amending Act for short). The Act as it originally stood is referred to as the unamended Act and as it stands today is referred to as the Act. The first four paragraphs of the statement of objects and reasons of the unamended Act narrate the history for enacting the Act.2 Paragraph 4 of the statement objects and reasons states that care was taken to consolidate several existing laws governing different classes of public lands and buildings. But it appears that despite this some anomalies persisted. It was for this reason that it was amended in 1976, amending some provisions of the unamended Act. This is so stated in paragraph 11 of the statement of objects, and reasons3 of the Amending Act. It is for this that the provisions of the unamended Act and the Act are relevant for deciding the controversy in issue.

5. Initially in the unamended Act the words ''premises' and ''public premises' were defined in clause 2(b)4 and 2(c) of the Act. There was no definition of the phrase ''law relating to land tenure'. The reference to the laws relating to land tenure was in the definition of the word ''premises' itself. The definition of the ''premises' in the unamended Act excluded the land held by a tenure-holder, inter alia under the Tenancy Act also. By the amending Act definition of ''premise' and ''public premises' were amended and the words ''law relating to land tenure' was inserted as clause 2(aa). This new definition of premises was deemed always to have been substituted. It was retrospective.5 The ''premises' now do not include land held by a tenure holder under any law relating to land tenure. But this law relating to land tenure in new clause 2(aa) does not include the Tenancy Act; earlier it did. This omission, in the light of the statement of objects and reasons of the unamended Act and the amending Act, appears to be on purpose. The intention of the legislature is not to exclude the land held by a tenure holder under the Tenancy Act from the purview of the Act.

6. Sri Sankatha Rai, learned Counsel for the petitioner argues that in the definition clause 2(aa) the words ''law relating to land tenure means' should be read as ''law relating to land tenure includes'. He says that the Tenancy Act has been dropped on a mistaken belief that it is no longer in force and has been repealed. According to him the Tenancy Act is still applicable to a small area of Uttar Pradesh where the different Land Reforms Act after independence are not in force. He says that the Court should correct the mistake and supply the omission.

7. I am afraid, it cannot be done. The Tenancy Act was mentioned in the unamended Act in 1972. It has been dropped in order to remove the defects. I cannot supply it even if it was an omission. May be it isn't an omission. Different land Reforms Acts; enacted after independence, contain a provision for speedy eviction of an unauthorised occupant from the property which broadly speaking belongs to Government-that is ''public premises' but the Tenancy Act does not contain such a provision. May be, this was a reason for excluding the Tenancy Act from the definition of the word ''law relating to land tenure'. Articles 31(A) and 31(B) of the Constitution to which reference was made during arguments have no bearing while interpreting the provisions of the Act. These Articles were enacted in a different context. The land even if held by a tenure holder under the Tenancy Act would be ''premises' within the meaning of the Act.

IInd POINT: IS THE DISPUTED LAND PUBLIC PREMISES?

8. The ''public premises' have been defined in section 2(e) of the Act. This definition was substituted by Section 25(2) of the amending Act and is deemed always to be to have been substituted. It is retrospective and includes nazul lands or any other premise entrusted to the management of the local authority.6 It is admitted case that the property in dispute was nazul property, which was let out by the District Magistrate and is being managed by the Board. The property in dispute has been entrusted to the management of the board and is public premises.

IIIrd POINT: UNAUTHORISED OCCUPATION

9. The word ''unauthorised occupation' has been defined under section 2(g) of the Act7. It says that a person is in unauthorised occupation of public premises if there is no authority for his occupation or if there was some authority or grant but has expired. The contesting respondents had authority/ grant for their occupation. There was a lease deed in favour of their predecessor in interest, but that lease deed has now expired. This is not disputed. Their occupation is unauthorised. They are liable for eviction.

10. The Courts below have dismissed the case of the Board on the finding that the property in dispute is not a premise within the meaning of the Act. This, I have held to be incorrect. Sri Sankatha Rai, counsel for the respondents says that as a matter of fact in the area, the U.P. Urban Area Zamindari Abolition and Land Reforms Act, 1956 (the Urban Zamindari Abolition for short) is applicable and the contesting respondents have become a tenure holder under that Act. This question has not been gone into by the courts below. I think it would be appropriate that the courts below should decide if the contesting respondents have any rights under the Urban Zamindari Abolition Act or not?

CONCLUSION

11. The orders of the District Judge, Mirzapur dated 20.12.1978 and that of the Prescribed Authority dated 19.7.1978 are hereby-quashed; the cases are send back to the Prescribed Authority for reconsideration on the merits. The parties would be entitled to lead evidence whether the contesting respondents have become tenure holders under the Urban Zamindari Abolition Act or not? It is also clarified that nothing in these proceedings prohibits any person to apply for freehold rights on the land in accordance with the policy of the State if applicable to the facts of the case.

With these observations the present writ petitions are disposed of. The parties will appear before the concerned Prescribed Authority under the Act on 6.9.1999.

Let the copy of this order be placed in the record of connected writ petitions No. 2526/1979, 2527 Of 1979 and 2528 of 1979."

Further reliance has been placed upon a judgment reported in AIR 1943 Allahabad, 247, Ram Raj Singh Vs. Rajendra Singh and another. Placing reliance upon aforesaid judgment, learned counsel for appellant has submitted that sir right is, however, not transferable except to the extent indicated by Section 6 of the Tenancy Act. In case of transfer of sir plot the transferor becomes by operation of law, entitled to ex-proprietary rights. There are two types of sir rights:- (1) proprietary rights and (2) cultivatory rights. The law permits the transfer of proprietary but, speaking generally, forbids the transfer of cultivatory rights. Therefore, on the transfer of sir plot, the transferee acquires the proprietary rights of the transferor but not as cultivatory rights. Further reliance has been placed upon some judgments that it cannot be disputed that a person who is exclusive proprietor and sir holder of a specific plot of land, has right to transfer his whole proprietary right in that plot and if he does not, after the transfer, claim ex-proprietary rights, no ex- proprietary rights will come into existence, and, in such a case the transferee will be entitled to actual possession of that plot. Reliance has been placed upon a judgment reported in AIR 1949 Allahabad 419 Ram Sewak Lal Vs. Bashist and others and in Dara Vs. Mathura reported in AIR 1951, Allahabad, 643, Further reliance has been placed upon a judgment of the Apex Court reported in 2008(3) AWC, 2569 (Supreme Court ) Mahant Dooj Das (Dead) through L.Rs. Vs. Udasin Panchayati Bara Akhara and another and reliance has been placed upon para 14, 15, 18 and 19 of the said judgment. The same are being quoted below:-

"14. By virtue of Section 8 after the agricultural area has been demarcated under Section 5, the State Government would issue a notification in the official Gazette declaring that from specified date all demarcated area situated in the urban area shall vest with the State Government and from the date so specified all such agricultural area shall be transferred to and vest except otherwise provided, in the State free from all encumbrances. The purport of Section 8 is very clear that the agricultural land falling in the urban area has to be demarcated under Section 5 and thereafter the notification shall be issued by the State Government in regard to the demarcated area in the urban area to have beer vested in the State. Sections 3 to 5 lay down the procedure for demarcation of the area for the purposes of acquisition of right, title and interest of intermediaries in urban areas of the agricultural area. Under Section 3, the State Government shall issue a notification in the official Gazette for the purposes of acquisition of right, title and interest of intermediaries in urban areas and declare such area as demarcated area. After the publication (1) the Demarcation Officer shall make inquiries in the prescribed manner and thereafter shall determine and demarcate the agricultural area within the urban area. After this, under Section4, the Demarcation Officer would within three months or such extended period as maybe extended by the State Government, from the date of notification issued under sub-section (1) of Section 3, submit his proposal with a reason thereof to the Commissioner, the Commissioner may make such modifications in the demarcated area as he may consider necessary. After the proposal is finalized by the Commissioner he shall publish a notice in the prescribed form in the gazette and in such other manner as may be prescribed, to the effect that the proposals as regards demarcation of the agricultural areas have been formulated and are open to inspection at the place which would be specified in the published notice. Thereafter, any person interested in such demarcation may within three months of the publication of the notice under sub-section (4) of Section 2 could file an objection on the proposal before such officer or authority in a manner provided therein. Section 5 lays down that after determination of the objections finally, demarcated agricultural area shall be published by notice in the gazette or in such other manner as may be prescribed to the effect that final demarcation of the agricultural area in the urban area is made and the details thereof are open to inspection at places specified in the notice. On such notice being issued, sub-section (3) of Section 5 provides for an appeal to the Board of Revenue against the order passed by the Commissioner prescribing finally demarcated agricultural area. Section 8 lays down that after the agricultural area in the urban area has been demarcated under section 5 the State Government shall notify it in the Official Gazette that such area is vested in the State from the date specified therein and all such agricultural areas shall stand transferred and vested in the State Government free from encumbrances. From the aforesaid provision, it is amply clear that elaborate procedure has been laid down before the agricultural area in the urban area is declared to be a demarcated area for the purpose of vesting in the State free from encumbrances. Section 3 provides for a notice to the general public that a particular agricultural area in the urban area is being picked up for declaring that area to be demarcated area for the purposes of all right, title and interest of intermediary to be vested with the State Government free from all encumbrances. After such notification the Demarcation Officer has to apply his mind, make inquiries whether a particular areas is to be declared as a demarcated area and thereafter submit his proposal for the purposes of declaration of demarcated area before the Commissioner. The Commissioner is authorized to make a modification the proposal and thereafter is called upon to publish a notice in the gazette or in any other manner as prescribed, that the proposal as regards demarcation of the agricultural area is formulated and are open to inspection. This apparently is a tentative proposal which is subject to the objection by any person or local authority. If any objection has been received within three months the Commissioner is called upon to decide those objections and thereafter pass a final order in regard to proposed demarcated area. Once the objections are decided and the Commissioner has arrived at the finding that a particular agricultural area in the urban area is to be declared as a demarcated area he shall publish a notice in the gazette showing the demarcated area which has been finally decided to be a demarcated areas for the place. Sub section (3) of Section 5 thereafter provides for an appeal from all encumbrances under Section 8 only after such an agricultural area has been finally declared to be demarcated area.

15. In the present case, there is no evidence led by the defendants that the suit land had been declared as a demarcated area and the suit area being declared to be such has vested with the State Government under Section 8 of the 1956 Act. The notification issued under Section 8 says that in exercise of powers of Section 8 of the 1956 Act, the Governor of U.P. declares that from 1.7.1963 all agricultural areas in the following urban areas (which admittedly falls within the Hardwar Union, District Saharanpur) of the then State of U.P. which has been demarcated under Section 5 of the Act shall stand vested with the State of U.P. and as from that day onwards all such agricultural areas shall stand transferred to, and vested, except as provided in the 1956 Act, in the State free from all encumbrances. It is clear from this notification under Section 8 that the land which has been demarcated under section 5 in the Hardwar Union shall be vested in the State free from all encumbrances. Unless and until it is shown that the land in suit has been declared as a demarcated area or falls within the demarcated area, exercising the powers under Section5, it cannot be said that it has been vested in the State by virtue of notification issued under Section 8 on20.6.1963,.By 20.6.1963 notification, it is only the demarcated area under Section 5 which has been vested in the State. That does not necessarily mean that the suit lands have been vested in the State. In the absence of proof, it cannot be said that he suit area is a demarcated area and thus vested in the State by issuance of the notification under Section 8 of the Act.

18. For application of the provisions of Section 331 of the 1950 Act which has been incorporated in the 1956 Act, it was necessary for the defendants to prove that the suit lands had been demarcated by the State Government by taking necessary steps as contemplated under Sections 3, 4 and 5, of the 1956 Act. Sections 3, 4 and 5, as already held by us, provide a complete code for demarcation of the agricultural areas after giving appropriate hearing to the party affected by following the procedure laid down therein, it also provides for an appeal to the Board of Revenue. It is only after the area is declared as demarcated area, Section 8 will be attracted and the notification to that effect would be issued in regard to and in respect of such declared demarcated area to be vested in the State Government. Unless the land is vested in the State Government, the provisions of Section 331 of the 1956 Act would have no application to oust the jurisdiction of the civil court.

19. In the present case, no evidence has been held by the defendants on whom heavy burden lies to prove the fact that the suit lands were declared demarcated. Notification under Section 8 which itself says that the demarcated area has been vested in the State Government, would not be given a meaning as if the suit lands had also been demarcated and thus stood vested in the State Government by virtue of the notification issued under Section 8 of the 1956 Act."

Further Sri Parekh learned counsel appearing for appellant has submitted that under Section 100 of Civil Procedure Code, when there is a mis-construction of a document or wrong application of a principle of law while interpreting a document, it is open to interfere under Section 100 of Civil Procedure Code. In the present case also, courts below have illegally misinterpreted the documents and has wrongly applied principle of law. He has further placed reliance upon a judgment of the Apex court reported in Judgment Today, 1991(2) Supreme Court, 75 Mithlesh Kumari and another Vs. Fateh Bahadur Singh and another. Para 15 is relevant. The same is being quoted below:-

"15. Festinatio justitiae est novera informateeni. (Hob.97) hasty justice is stepmother of misfortune. Injustum est nisi tola loge impecta, de una aliquot emus particular proposition Judi care vel respondere. It is unjust to decide or respond to any particular part of a law without examining the whole of the law. But we are in time constraint. By consensus with the learned Counsel for the parties, we set aside the impugned order and remand this case to the High Court for disposal in accordance with the law applicable to the facts of the case expeditiously. The appeal is disposed of accordingly. We leave the parties to bear their own costs."

Further reliance has been placed upon 2011 (1) RCR (Civil) 333 Man Singh(D) by L.Rs. Vs. Ram Kala (D) By L.Rs. And Ors. Para 9 is relevant for the said purpose. The same is being quoted below:-

"In the opinion of the High Court, the only substantial question of law for consideration in second appeal was, whether there could be any estoppel against the statute"

The High court while dealing with the said question held as under:

It is well settled that there can be no estoppel against the statute. In case, the plaintiff was not aware of his right in the suit property at the time of filing of the suit in the trial court, it does not mean that his share is to be usurped by Smt. Shingari and her son Man Singh (Defendants)."

Reliance has been placed upon an unreported case in Writ Petition No.629 of 1974, Buddu through L.Rs and Ors. vs. Board of Revenue and others and reliance has been placed upon paras 6, 7, 8. The same are being quoted below:-

"6. Learned Counsel for the petitioner submitted that the land in dispute was admittedly sirdari. He refers to the plaint in the suit filed in 1964 giving rise to this petition in which the land has been described as sirdari. The contention is that the admissions made in the proceedings relating to correction of papers in respect of sirdari land or at all cannot be relied upon in a regular suit for title under Section 229B of the U.P. Zamindari Abolition and Land Reforms Act. A division Bench of this Court in Algoo and Ors. v. Dy. Director of consolidation, Jaunpur and others, 1979 AWC, 299, held that in mutation proceedings, the Court makes a direction as to mutation of names on the basis of possession. A finding given after contest or by consent of parties on the question of possession is within the jurisdiction of that Court. Such a finding or admission would be relevant and material in subsequent title proceedings but on the question of the mutation proceedings. Reliance was placed in that decision upon Bhurey v. Pir Bux, 1973 AWR, 279, for the proposition that any consent or admission made in the mutation proceedings has no relevance in the regular title proceedings. Stated in such a wide form the correctness of the proposition is a matter of doubt because the Evidence Act does not confine the admissibility of admissions only to those made in title proceedings. But it is not necessary to go into that question in this case. However, admissions made in mutation proceedings as to possession over tenancy land which was not transferable are relevant for determining their effect even upon title.

7. In Budhlal and Anr. v. Dy. Director of Consolidation, Gorakhpur, 1982 RD 324, it was held that sirdari right cannot be acquired by co-option or acquiescence or estoppel.

8. I have considered the decisions cited by the learned counsel for the petitioners. The recital in Anenxure-C.A.1 to the counter affidavit which was an admission, signed by Panna Lal, Buddhu and Bhulai, was that Ram Bharose had made an oral gift of the property to Panna Lal. At the time the admissions were made in the year 1961, the land in dispute was not bhumidhari as the plaint in the suit filed in 1964 giving rise to this petition still describes it as sirdari. The effect of the admission is that rights in respect of sirdari land were being created in favour of Panna Lal which was impermissible as held by the Division Bench in Budh Lal (supra) that rights even by co-option or acquiescence in respect of sirdari land cannot be created. Taking it that the admissions made in the year 1961 related to a transaction of gift by Ram Bharose made before the U.P.Zamindari Abolition Act, the position is not in any way different. Even under Section 33 of the U.P. Tenancy Act, transfer of such tenancy holdings which after Zamindari Abolition have come to be covered under section 19 of the U.P. Zamindari Abolition Act into sirdari tenancy was not permissible. Section 33 of the U.P. Tenancy Act, however, permitted release in favour of a co-tenant or co-option, which meant a tenant taking in a co-tenant. But in the present case, there was no co-option of another tenant but a transfer by gift. As transfer of the tenancy was not permissible, any arrangement made by Ram Bharose in favour of his son during his life time was not valid as there can be no estoppel against the statute. There is nothing on the record to show that Ram Bharosey was a tenant having a right to transfer. The admissions as to title made in the application (Annexure-C.A. 1 to the counter-affidavit) and in the depositions (Annexures C.A. 2 and 3 to the counter affidavit) are, therefore, not binding in a regular title proceeding. The Board of Revenue has erred in law in basing its finding solely upon the admission."

Further reliance has been placed upon Supreme Court judgment reported in AIR 1996 (7) Supreme Court, 580 Smt. Sawarni Vs. Smt. Inder Kaur and others. Placing reliance upon aforesaid judgment learned counsel for appellant states that the Apex Court has taken a view that recording name in the revenue record cannot only the basis of determination of rights of the parties. In case there are various other documents and if that has not been considered, judgment passed by courts below is liable to be quashed. He has placed reliance upon para 7 of the said judgment. The same is being quoted below:-

"7. Having heard the learned counsel for the parties and having scrutinized the judgment of the trial Judge as well as that of the lower appellate court, we find sufficient force in all the contentions raised by the learned counsel for the appellant. At the outset, it may be noticed that the plaintiff had filled the suit claiming half interest for herself and claiming half interest in favour of the husband and sons of Roori and, therefore, the learned Additional District Judge was wholly in error to hold that the plaintiff could not have filed the suit in question. In view of rival stand of the parties the main question that arose for consideration was whether Roori was daughter of Gurbax Singh or Inder Kaur, defendant No.5 was the daughter of same Gurbax Singh? The learned trial Judge after elaborate discussion of the evidence on record both oral and documentary came to the positive conclusion that it was Roori who was the daughter of Gurbax Singh as alleged by the plaintiff and not Inder Kaur. The lower appellate Court without focusing his attention to the wighty reasons advanced by the trial court and without examining the materials on record in that respect even did not set aside the said finding of the trial Judge and yet reversed the decree of the trial Judge. We have no hesitation to come to the conclusion that the said judgment of the Additional district Judge is wholly unsustainable in law. The crucial pint being as to who was the second daughter of Gurbax Singh, namely Roori or Inder Kaur, and the trial Judge having come to the positive conclusion that it was Roori who was the second daughter of Gurbax Singh, the lower appellate Court was not justified in not considering the material evidence as well as reasons advanced by the trial Judge and merely coming to the conclusion that the evidence on the file do not prove Roori to be the daughter of Gurbax Singh.further, the lower appellate Court has not come to any positive finding that Inder Kaur was the daughter of Gurbax Singh. He has been swayed away by the so called mutation in the revenue record in favour of Inder Kaur. Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. The learned Additional District Judge was wholly in error in coming to a conclusion that mutation in favour of Inder Kaur conveys title in her favour. This erroneous conclusion has vitiated the entire judgment. That apart, as it would be seen, the learned trial Judge had considered the oral evidence adduced on behalf of the parties to establish the respective stand as to who was the second daughter of Gurbax. Singh and on perusal of the same came to the conclusion that it was Roori who was the second daughter of Gurbax Singh. The Additional District Judge has not even discussed anything about the said oral evidence and the reasonings advanced by learned trial Judge in coming to the conclusion that it was Roori who was the second daughter of Gurbax Singh. Non consideration of the oral evidence adduced by the parties, by the lower appellate Court vitiates the ultimate conclusion on the question whether Roori was daughter of Gurbax Singh or not. It is further seen that Gurdip Kaur, widow of Gurbax Singh had executed a will in respect of the entire estate in favour of plaintiff and Roori and after death of Gurdip Kaur a succession certificate had been issued by the civil court under the Indian Succession Act in favour of plaintiff and said Roori. The said succession certificate and rights flowing therefrom cannot be ignored. Admittedly no attempt has been made by defendant Nos. 1 to 4 to annul the succession certificate on the grounds available under the Succession Act. The Additional District Judge committed serious error of law in not considering the said Will and the succession certificate in question which unequivocally clinches the matter and thereby the ultimate judgment of the Additional District Judge is vitiated. The High Court also was in error in not examining these questions and dismissing the Second Appeal in limine."

Learned counsel for appellant has further submitted that in view of Section 26 of the U.P. Tenancy Act, 1939, Sub-Clause-1 provides as under:-

26. Ex-proprietary tenants- (1) When the landlord of the whole of mahal or of a specific area in a mahal transfers the whole of his proprietary right in such mahal or area by voluntary alienation otherwise than under the privations of sub-section (2) of Section 9, or when the whole of such landlord's right in such mahal or area is transferred by foreclosure or sale in execution of a decree or order of a civil or revenue court, the landlord shall become an ex-propretary tenant of his sir and of such portion of his khudkasht as he has cultivated continuously for three years at the date of transfer."

He submits that unless and until it is proved that landlord shall became an ex-proprietary tenancy of his seer and of such portion of Khudkhast and he has cultivated continuously for three years from the date of transfer, meaning thereby three years continues possession is necessary and from the record it is not clear that he was in continuous possession of three years according to Section 23 of the Tenancy Act. It has further been submitted that in the facts and circumstances of the present case, U.P Urban Areas Zamindari and Land Reforms Act will not be applicable. Further submission has been made that admittedly after the date of execution of sale deed, appellants were in possession of the property in dispute, therefore, finding recorded by courts below that possession has not been taken, is based on no evidence. Therefore, this appeal is liable to be allowed. In paragraph 5-B of the written statement, it has clearly been stated that there is no prove that compensation has been paid, therefore, finding to this effect that compensation has been received, no right will accrue to appellant.

On the other hand, Sri Ajit Kumar, learned counsel appearing for respondents submits that in the written statement, appellant has admitted this fact that plaintiffs are Bumidhar is in possession of the property in dispute. He has stated that in view of Section 45-F of the U.P. Tenancy Act, 1939, "where tenant has been deprived of possession and his right to recover possession is barred by limitation". Admittedly from the record and finding recorded by courts below, possession was never taken and plaintiff-respondent was always in possession and if appellant has not taken steps within a period of limitation to recover the possession, then in view of Section 45-F of the Tenancy Act, he cannot recover the possession. In view of Section 80 Sub- Clause 2, it is proved that if no suit is brought in this Section or if a decree obtained under this Section is not executed, person in possession shall become a heritated tenant of such plot or if such person is a co-sharer he shall become khudkast holder on the expiry of the period of limitation prescribed for such suit or for the execution of such decree and according to Section 209 of the U.P. Urban Areas Zamindari and Land Reforms Act, limitation is three years.

Further submission has been made that grounds taken by appellant in this Court has not been taken in the courts below, therefore, in view of Order 8, Rule 5, he cannot take all these grounds before this Court. He submits that finding has been recorded by the lower Appellate Court that a certified copy of the compensation assessment has also been filed on record which shows that compensation of the suit land was assessed by compensation officer and this indicates that compensation would have been paid to appellant on his proprietary rights being vested in the State under Section 8 of the U.P. Urban Area Zamindari Abolition and Land Reforms Act, 1956. Finding has also been recorded by the court below that in case suit land had been in possession of appellant as its khudkhast after the sale of this land, appellant would have become bhumidhar of the land not Tahir Husan as Sirdar. As the land was settled with Tahir Husan under Section 18 of the U.P. Zamindari and Land Reforms Act and not with appellant under Section 17 of the Act as it was under the occupation of Tahir Husain in spite of the sale in favour of appellant and possession was never transferred otherwise there would have no reason that Tahir Hasan firstly has become ex-proprietary tenant and then sirdar after abolition of zamindari of the agriculture area in the municipal limits of Saharanpur.

Sri Ajit Kumar, learned counsel appearing for respondents has placed reliance upon two judgments of Supreme Court reported in 1961 Supreme Court, 1790 Rana Sheo Ambar Singh Vs. The Allahabad Bank Ltd., Allahabad and has placed reliance upon paras 8 and 9 of the said judgment. The same is being quoted below:-

"8. Our attention in this connection was drawn to the compensation sections in the Act and it was urged that what was given to the intermediary under S. 18 was really his old right because no compensation was to be paid to him with respect to what was left to him under S. 18. The first section to be considered in this connection is S. 39 which deals with gross assets of a mahal. In these gross assets the amount computed at the rates applicable to the ex-proprietary tenants of similar land for land in the personal cultivation of or held as intermediary's grove, khudkashat or sir by all the intermediaries in the estate was to be included subject to certain exceptions which are immaterial for our purposes. The very fact that in the gross assets the rents of these lands in which the bhumidari rights were created under S. 18 were taken into consideration shows that these lands also vested in the State; if that were not so there was no necessity for including these assets in the gross assets for the purposes of compensation. Here again we may refer to a similar provision in the Rajasthan Act for purposes of comparison. The second Schedule to that Act provides how gross income is to be calculated and in calculating the gross income the income from khudkashat land has not been taken into account because it was excepted from the consequence of resumption under S. 23 of that Act. It is true that under S. 44 of the Act when calculating net assets, the income from sir and khudkashat land and grove land has been excluded on the ground that bhumidari rights have been conferred therein under S. 18 of the Act. That is however for the purposes of calculating what should be paid to the intermediary as compensation and in that connection it was necessary to take into account the fact that the legislature was creating a new right in the intermediary with respect to certain lands and therefore it was not necessary to give money as compensation. That would not however make any difference in our view as to the legal effect of the notification under S. 4 and under the notification sir and khudkashat land and grove land would vest in the State and would not be an exception to the consequences of vesting in S. 6 and therefore the proprietary right in sir and khudkashat land and grove land which were mortgaged would be extinguished and the bhumidari right which is created by S. 18 would be a new right altogether and would not therefore be considered to be included under the mortgage in this case.

9. This brings us to a consideration of S. 6 (h) of the Act. That lays down that "no claim or liability enforceable or incurred before the date of vesting by or against such intermediary for any money, which is charged on or is secured by a mortgage of such estate or part thereof shall, except as provided in S. 73 of the Transfer of Property Act, 1882, be enforceable against his interest in the estate."

This provision has in our opinion a two-fold effect. In the first place, it makes it impossible for the mortgagee to follow the proprietary right after it vests in the State. Secondly it provides that the only way in which the mortgagee can recover his money advanced on the security of the property which vested in the State by virtue of the notification under S. 4 and the consequences thereof under S. 6 is to follow the procedure under S. 73 of the Transfer of Property Act. Section 73 (2) provides that:

"where the mortgaged property or any part thereof or any interest therein is acquired under the Land Acquisition Act, 1894 (of 1894), or any other enactment for the time being in force providing for the compulsory acquisition, of immovable property, the mortgagee shall be entitled to claim payment of the mortgage money, in whole or in part, out of the amount due to the mortgagor as compensation."

There is no doubt that the property mortgaged has been compulsorily acquired in this case by the State under the Act. Therefore, S. 6 (h) read with S. 73 directs that the mortgagee shall proceed in the manner provided in S. 73, namely, follow the compensation money, and there is no other way possible for him in view of S. 6 (h) with respect to the property which has been acquired under the Act. We have held that sir and khudkashat land and grove land have been acquired under the Act and have vested in the State; therefore the mortgagee is relegated to enforce his rights against the mortgagor in the manner provided in S. 73 of Transfer of Property Act and in no other way. What we say here does not affect that property which is not acquired by the state, for example, property excepted under S. 9 of the Act; but where the property has vested in the State by virtue of a notification under S.4 and its consequences under S.6, the only course open to the mortageee is to follow the compensation money under S.6(h). The bhumidari rights created under S. are not compensation; they are special rights conferred on the intermediary by virtue of his cultivatory possession of the lands comprised therein. The respondent therefore cannot enforce his rights under the mortgage by sale of the bhumidari rights created in favour of the appellant under S. 18 so far as his sir and khudkashat land and grove land and concerned; it can only follow the compensation money as provided in S. 6 (h). The argument that bhumidari rights can be followed as substituted security must therefore equally fail."

Another judgment reported in 1943 ALJ (R) 213 Ram Raj Singh (Defendant) Vs. Rajendra Saingh and another (Plaintiffs) and others.

It has also been submitted that if finding of the trial court has not been challenged in the first appeal, it cannot be challenged in this appeal by appellant and he has placed reliance upon the following judgments:-

Nathuni Ram Vs. Raghupat Ram and others reported in 2007 (12) SCC, 438 "10. As noted above there are confusions galore in the High Court's order; firstly, the appeal was dismissed but the first appellate court's order which was in favour of the appellant was set aside without any challenge from the defendants; secondly, in the appellant's appeal the relief which was not questioned by anybody could not have been nullified; thirdly, the High Court's ultimate conclusion was that the appeal was allowed while it was otherwise."

Chacko and another Vs. Mahadevan reported in 2007(7) SCC 363, "6. It may be mentioned that in a first appeal filed under Section 96 CPC, the appellate court held that the fact that one cent land was sold for Rs.18,000 vide Ext.A-2 (ssale deed dated 4.9.1982) and three cents land was sold vide Ext. a-3 (sale deed dated 11.7.1983) for a sum of Rs.1000, showed that this was an unconscionable transaction and hence the sale deed dated 11.7.1983 was liable to be set aside. Aggrieved Mahadevan filed a second appeal, which was allowed by the impugned judgment."

Anathula Sudhakar Vs. P.Buchi Reddy (Dead) By LRS. and others reported in (2008) 4 Supreme Court Cases 594, "25. The plaintiffs and their witnesses gave evidence to the effect that Damodar Rao represented that his sister Rukminibai was the owner of the plot and negotiated for sale of the several portions thereof in favour of the plaintiffs and PW 3, and the Damodar Rao had attested the sale deeds in their favour and identified his sister as the vendor executant before the Sub-Registrar, at the time of registration of the sale deeds. It is no doubt true that if that was the position, it is possible for them to contend that having regard to Section 41 of the Transfer of Property Act, when the ostensible owner Rukminibai sold the property with the implied consent of Damodar Rao, the defendant as a transferre from Damodar Rao could not contend that the sales were not valid. They also alleged that the defendant was a close relative of Damodar Rao and the sale in favour of the defendant was was only nominal, intended to defeat their title. But Damodar Rao in his evidence denied having made the oral gift or having attested the sale deeds in favour of the plaintiffs. He also denied having identified his sister at the time of registration of the sale deeds. Whether Rukminibai's evidence and other plaintiffs' witnesses should be believed or whether evidence of Damodar Rao should be believed on the question of title, can be examined only when there are necessary pleadings and an issue regarding title. Further, where title of the plaintiffs is disputed and claim for possession is purely based on title, and the plaintiffs have to rely on various principles of law relating to ostensible ownership and Section 41 of the TP Act, validity of an oral gift by way of "pasupu kumkumam" under Hindu Law, estoppel and acquiescence, to put forth a case of title, such complicated questions could properly be examined only in a title suit, that is, a suit for declaration and consequential reliefs, and not in a suit for an injunction simpliciter.

26. The High Court formulated the following as substantial questions of law:

"(i) Whether the plaintiffs' suit for permanent injunction without seeking declaration of title is maintainable under law?

(ii) Whether the acts and deeds of Damodar Rao (DW2) made the plaintiffs to believe that Rukminibai is the ostensible owner of the suit property and thus made them to purchase the suit property for valid consideration and, therefore, the provisions under Section 41 of the Transfer of property Act are attracted and as such DW 2 could not pass on a better title to the defendant under Ext. B-1?

(iii) Whether the alleged oral gift of the suit property in favour of Rukminibai by DW 2 towards pasupu kumkumam is legal, valid and binding on DW 2 though effected in contravention of the provisions under Section 123 of the Transfer of Property Act?"

Having regard to the pleadings and issues, only the first question formulated by the High Court can be said to arise for its consideration in the second appeal. The second and third questions did not arise at all, as we will presently demonstrate.

27. The second question of law formulated by the High Court is a mixed question of fact and law, that is, whether the factual ingredients necessary to claim the benefit of Section 41 of the Transfer of Property Act were made out by the plaintiffs. To attract the benefit of Section 41 of the TP Act, the plaintiffs had to specifically plead the averments necessary to make out a case under Section 41 of the TP Act and claim the benefit or protection under that section. The averments to be pleaded were:

(a) that Rukminibai was the ostensible owner of the property with the express or implied consent of Damodar Rao;

(b) that the plaintiffs after taking reasonable care to ascertain that the transferor or Rukminibai had the power to make the transfer, had acted in good faith in purchasing the sites for valid consideration; and (c ) that, therefore, the transfer in favour of the plaintiffs by Rukminibai was not voidable at the instance of Damodar Rao or anyone claiming through him.

These pleas were not made in the plaint. When these were not pleaded, the question of the defendant denying or traversing them did not arise. In the absence of any pleadings and issue, it is un-understandable how a question of law relating to Section 41 of the TP Act could be formulated by the High Court."

Veerayee Ammal Vs. Seeni Ammal reported in 2002(1) SCC 134, " 7. Section 100 of the Code of Civil Procedure (hereinafter referred to as "the Code") was amended by the Amending Act No. 104 of 1976 making it obligatory upon the High Court to entertain the second appeal only if it was satisfied that the case involved a substantial question of law. Such question of law has to be precisely stated in the Memorandum of Appeal and formulated by the High Court in its judgment, for decision. The appeal can be heard only on the question, so formulated, giving liberty to the respondent to argue that the case before the High Court did not involve any such question. The Amending Act was introduced on the basis of various Law Commission Reports recommending for making appropriate provisions in the Code of Civil Procedure which were intended to minimise the litigation, to give the litigant fair trial in accordance with the accepted principles of natural justice, to expedite the disposal of civil suits and proceedings so that justice is not delayed, to avoid complicated procedure, to ensure fair deal to the poor sections of the community and restrict the second appeals only on such questions which are certified by the Courts to be substantial question of law. We have noticed with distress that despite amendment, the provisions of Section 100 of the Code have been liberally construed and generously applied by some Judges of the High Courts with the result that objective intended to be achieved by the amendment of Section 100 appears to have been frustrated. Even before the amendment of Section 100 of the Code, the concurrent finding of facts could not be disturbed in the second appeal. This Court in Paras Nath Thakur v. Smt. Mohani Dasi (deceased), AIR 1959 SC 1204, held :

"It is a well settled by a long series of decisions of the Judicial Committee of the Privy Council and of this Court, that a High Court, on second appeal, cannot go into questions of fact, however, erroneous the findings of fact recorded by the Courts of fact may be. It is not necessary to cite those decisions. Indeed, the learned Counsel for the plaintiff-respondents did not and could not contend that the High Court was competent to go behind the findings of fact concurrently recorded by the two Courts of fact."

10. The question of law formulated as substantial question of law in the instant case cannot, in any way, be termed to be a question of law much less as substantial question of law. The question formulated in fact is a question of fact. Merely because of appreciation of evidence another view is also possible would not clothe the High Court to assume the jurisdiction by terming the question as substantial question of law. In this case Issue No. 1, as framed by the trial Court, was, admittedly, an issue of fact which was concurrently held in favour of the appellant-plaintiff and did not justify the High Court to disturb the same by substituting its own finding for the findings of the Courts below, arrived at on appreciation of evidence.

He has also placed reliance upon Badat and Company, Bombay Vs. East India Trading Company reported in AIR 1964 Supreme Court, 538 and has placed reliance upon para 11 of the said judgment. The same is being quoted below.

"11. Order VII of the Code of Civil Procedure prescribes, among others, that the plaintiff shall give in the plaint the facts constituting the cause of action and when it arose, and the facts showing that the court has jurisdiction. The object is to enable the defendant to ascertain from the plaint the necessary facts so that he may admit or deny them. Order VIII provides for the filing of a written-statement, the particulars to be contained therein and the manner of doing so; Rules 3, 4 and 5 thereof are relevant to the present enquiry and they read :

Order VIII R. 3. It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.

R. 4. Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.

R. 5. Every allegation of fact in the plaint, if not denied specifically, or by necessary implication or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability.

Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.

These three rules form an integrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its non-compliance. The written-statement must deal specifically with each allegation of fact in the plain and when a defendant denies any such fact, he must not do so evasively, but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary. The first paragraph of R. 5 is a re-production of O. XIX R. 13 of the English rules made under the Judicature Acts. But in mofussil Courts in India, where pleadings were not precisely drawn, it was found in practice that if they were strictly construed in terms of the said provisions, grave injustice would be done to parties with genuine claims. To do justice between those parties, for which Courts are intended, the rigor of R. 5 has been modified by the introduction of the proviso thereto. Under that proviso the Court may, in its discretion, require any fact so admitted to be proved otherwise than by such admission. In the matter of mofussil pleadings, Courts, presumably relying upon the said proviso, tolerated more laxity in the pleadings in the interest of justice. But on the Original Side of the Bombay High Court, we are told, the pleadings are drafted by trained lawyers bestowing serious thought and with precision. In construing such pleadings the proviso can be invoked only in exceptional circumstances to prevent obvious injustice to a party or to relieve him from the results of an accidental slip or omission, but not to help a party who designedly made vague denials and thereafter sought to rely upon them for non-suiting the plaintiff. The discretion under the proviso must be exercised by a Court having regard to the justice of a cause with particular reference to the nature of the parties, the standard of drafting obtaining in a locality, and the traditions and conventions of a Court wherein such pleadings are filed. In this context the decision in Tildesley v. Harper, (1878) 7 Ch D 403 will be useful. There, in an action against a lessee to set aside the lease granted under a power, the statement of claim stated that the donee of the power had received from the lessee a certain sum as a bribe, and stated the circumstances; the statement of defence denied that that sum had been given, and denied each circumstance, but contained no general denial of a bribe having been given. The Court held, under rules corresponding to the aforesaid rules of the Code of Civil Procedure, that the giving of the bribe was not sufficiently denied and therefore it must be deemed to have been admitted. Fry, J. posed the question thus : What is the point of substance in the allegations in the statement of claim ? and answered it as follows :

"The point of substance is undoubtedly that a bribe was given by Anderson to Tildesley, and that point of substance is nowhere met....no fair and substantial answer is, in my opinion, given to the allegation of substance, namely, that there was a bribe. In my opinion it is of the highest importance that this rule of pleading should be adhered to strictly, and that the Court should require the Defendant, when putting in his statement of defence, and the Plaintiff, when replying to the allegations of the Defendant, to state the point of substance, and not to give formal denials of the allegations contained in the previous pleadings without stating the circumstances. As far as I am concerned, I mean to give the fullest effect to that rule. I am convinced that it is one of the highest benefit to suitors in the Court".

It is true that in England the concerned rule is inflexible and that there is no proviso to it as is found in the Code of Civil Procedure. But there is no reason why in Bombay on the original side of the High Court the same precision in pleadings shall not be insisted upon except in exceptional circumstances. The Bombay High Court, in Laxminarayan v. Chimniram Girdhari Lal, ILR 41 Bom 89 at p. 93 : (AIR 1916 Bom 103 at p. 104) construed the said provisions and applied them to the pleadings in a suit filed in the Court of the Joint Subordinate Judge of Ahmednagar. There, the plaintiffs sued to recover a sum of money on an account stated. For the purpose of saving limitation they relied in their plaint upon a letter sent by the defendant firm. The defendants in their written statement stated that the plaintiff's suit was not in time and that "the suit is not saved by the letter put in from the bar of limitation". The question was raised whether in that state of pleadings, the letter could be taken as admitted between the parties and, therefore, unnecessary to be proved. Batchelor, Ag. C. J. after noticing the said provisions, observed :

"It appears to us that on a fair reading of paragraph 6, its meaning is that though the letter put in by the plaintiffs is not denied; the defendants contend that for one reason or another its effect is not to save the suit from the bar of limitation. We think, therefore, that.................. the letter, Exhibit 33, must be accepted as admitted between the parties, and therefore, unnecessary to be proved."

The written statement before the High Court in that case was one filed in a court in the moffusil; yet, the Bombay High Court applied the rule and held that the letter need not be proved aliunde as it must be deemed to have been admitted in spite of the vague denial in the written statement. I, therefore, hold that the pleadings on the original side of the Bombay High Court should also be strictly construed, having regard to the provisions of Rr. 3, 4 and 5 of Order VIII of the Code of Civil Procedure, unless there are circumstances wherein a Court thinks fit to exercise its discretion under the proviso to R. 5 of O. VIII."

Placing reliance upon Smt. Dilboo (dead) by L.Rs. And others Vs. Smt. Dhanraji (dead) and others reported in AIR 2000 Supreme Court, 3146, and Ram Khilona and others Vs. Sardar and others AIR 2002, SC, 2548, learned counsel for respondents submits that in the present appeal no new question has been raised by appellant. He has only to assail the findings recorded by the courts below whether that is on the basis of relevant record after appreciation of evidence or not but no new questions can be raised in the second appeal in view of the aforesaid judgments.

Further submission has been made that findings recorded by courts below are finding of fact based on evidence on record, therefore, in the present second appeal, pure question of facts are involved, as such, need not to be interfered. He has placed reliance upon the following judgments:-

Balasubramanian and others Vs. Ramaiah Thondaman reported in 2007 (13) Supreme Court Cases 182, "11. In the earlier paragraphs, we have already stated that the plaintiff's vendors were not in possession of title deed to the suit property except adangal extracts and patta in the name of Ramasami Knoar. No doubt he also filed proceedings of the Assistant Settlement Officer dated 24.2.1969 as Ext. A-7 which shows that rough patta had been issued in favour of Ramasami Konar and Nachammai. In this aspect, it is relevant to refer to the factual discussion by the lower appellate court. In the proceedings for a grant of Ryotwari patta, the Settlement Officer had issued a notification calling for objections from the villagers. As rightly pointed out by learned counsel for the appellants, the name of the defendant's husband was found in Form 5. It is brought to our notice that in the said proceedings, Settlement Officer conducted suo motu inquiry in respect of 370 cases by verifying the revenue records and prepared Form 5 statement which refers the name of the defendant's husband. This factual information strengthens the case of the defendant that her husband got title to the suit property.

12. Based on the various materials/information a petition was filed (Ext.B-3) on 29.4.1969 before the Assistant Settlement Officer for rectification of the mistake in grant of patta in favour of the plaintiff's vendors. Only in this context, Ramasami Konar appeared in person and informed the officer that he has no objection to change the patta in respect of the suit property in favour of the defendant's husband. Even otherwise, the grant of patta cannot be equated to that of a document of title. At the mot the patta proceedings and the ultimate order by the competent authority granting patta may be used as a piece of evidence to show that the subject-matter property is with the grantee. Considering all these material aspects, particularly the action of the plaintiff's vendors in informing the Assistnat Settlement Officer about the wrong decision in granting patta in their favour and considering the oral and documentary evidence with regard to the same, the lower appellate court rightly concluded that the Assistant Settlement Officer has passed an erroneous order which could not confer any right or title to the plaintiff's vendors i.e. said Ramaswami Konar and Nachammai.

13. The stand of the defendant that since at the relevant time the plaintiff's brother was a village karnam, the plaintiff got the sale deed by utilizing his brother's service as well as taking advantage of old age of the plaintiff cannot be ruled out. All these factual aspects were duly considered by the lower appellate court which is a final court of appeal. While such is the position, the High Court placing heavy reliance on Ryotwari patta alone interfered with the well-considered judgment of the lower appellate court. We are satisfied that all the details as adverted to by the lower appellate court have not been considered by the High Court and it committed an error in setting aside the judgment merely on the basis of Ryotwari patta when the same was proved to be obtained by mistake by the authority concerned. Infact, the High Court did not consider Ext. B-19 notice sent by the vendors to the plaintiff wherein they admitted in categorical terms that patta was wrongly granted to them. In such circumstances, the High Court could not have allowed the second appeal based only on patta proceedings which were found to be wrongly obtained."

Sattatiya alias Satish Rajanna Kartalla Vs. State of Maharashtra reported in (2008) 3 Supreme Court Cases 210, "11 (ii). In Hanumant Govind Nargundkar v. State of M.P. Which is one of the earliest decisions on the subject, this Court observed as under:

"10.... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

15. The above noted propositions have been reiterated in Bodhraj v. State of J & K, Bharat v. State of M.P., Jaswant Gir v. State of Punjab, Reddy Sampath Kumar v. State of A.P., Deepak Chandrakant Patil v. State of Maharashtra, Ramreddy Rajesh Khanna Reddy v. State of A.P. And State of Goa v. Sanjay Thakran."

Dharmarajan and others Vs. Valliammal and others reported in 2008 (2) Supreme Court Cases 741.

"10. A glance at the High Court judgment suggests that the High Court has gone into a dangerous area of appreciation of evidence, that too on the basis of non-existent substantial questions of law. The five questions of law framed by the High Court were as follows:

"(1) Whether the admitted long possession of the original owner Karupayee and that of Doraiswamy who claims title through her cannot be tacked together in law for the purpose of adverse possession?

(2) Whether the burden is not on the plaintiff who is out of possession to prove that he has got valid title in the suit properties as laid down by this Court?

(3) Whether non-examination of the vendors of the plaintiff is not fatal to the case of the plaintiff?

(4) Whether Ext. A-8 is not admissible in evidence?

(5) Whether lower appellate court is justified in decreeing the suit for declaration, having found that the defendants are in possession and having refused to grant injunction in favour of the plaintiff?"

11. In our opinion none of these questions could be said to be either question of law or a substantial question of law arising out of the pleadings of the parties. The first referred question of law could not and did not arise for the simple reason that the plea of adverse possession has been rightly found against the plaintiff. Karupayee Ammal's possession, even if presumed to be a valid possession in law, could not be said to be adverse possession as throughout it was the case of the appellant Dharmarajan that it was a permissive possession and that she was permitted to stay on the land belonging to the members of the Iyer family. Secondly, it has nowhere come as to against whom was her possession adverse. Was it adverse against the a Government or against the Iyer family? In order to substantiate the plea of adverse possession, the possession has to be open and adverse to the owner of the property in question. The evidence did not show this openness and possession was pleaded on the part of Karupayee Ammal. Further even the legal relationship of Doraiswamy and Karupayee Ammal is not pleaded or proved. All that is pleaded is that after Karupayee Ammal's demise Doraiswamy as he foster son continued in the thatched shed allegedly constructed by Karupayee Ammal. There was no question of the tacking of possession as there is ample evidence on record to suggest that Doraiswamy also was in service of Iyer heirship was also not decisively proved. We do not, therefore, see as to how the first substantial question of law came to be framed. This is apart from the fact that ultimately the High Court has not granted the relief to the respondents on the basis of the finding of this question. On the other hand the High Court has gone into entirely different consideration based on re-appreciation of evidence. The second and third questions are not the questions of law at all. They are regarding appreciation of evidence. The fourth question is regarding the admissibility of Exhibit A-8. In our opinion there is no question of admissibility as the High Court has found that Exhibit A-8 was not admissible in evidence since the Tahsildar who had issued that certificate was not examined. Therefore, there will be no question of admissibility since the document itself was not proved. Again the finding of the High Court goes against the respondent herein. Even the firth question was a clear-cut question of fact and was, therefore, impermissible in the second appeal."

Pandurang Jivaji Apte Vs. Ramchandra Gangadhar Ashtekar(dead) by Lrs and others reported in AIR 1981, SC 2235.

"14. On the findings of fact recorded by the two courts below, which are final and which could not be normally set aside by the second Appellate Court, the decree-holder cannot compel Apte or Bavdekar to produce the property before the Court or the proceeds of the sale of the property as the amount due to Apte from judgment-debtor has not still been satisfied."

I have considered the submission of parties and perused the record.

From the record it clearly appears that property in dispute was recorded in the name of Tahir Hasan, father of plaintiffs. A sale deed was executed in favour of Nagar Palika and proprietary right was given on the basis of sale deed dated May, 1963 but from the record it clearly appears that possession was never taken by Nagar Palika as well as in the revenue record, name of appellant was never recorded as occupancy tenant. From the record, it is also clear that their application has been rejected up to the stage of Commissioner. Trial court after consideration of various evidence on record has recorded a finding that in the year 1972, U.P. Urban Areas Zamindari Abolition and Land Reforms Act was enforced. In view of Section 8 of the aforesaid act, it is provided that after demarcation of agriculture area under Section 5, the State Government may, at any time, by notification in the official 'Gazette' declare that as from a date has to be specified of all such areas situated in the urban area shall vest in the State and as from the beginning of the date so specified all such agricultural areas shall stand transferred to and vest except as hereinafter provided in the State free from all encumbrances.

In view of Section 10 of the Act where the notification under Section 8 has in respect of agricultural area is published all rights will come to an end and in view of Sections 15, 16 and 17 of the aforesaid act, if a person is in possession of or held or deemed to be held by and intermediary as 'sir', 'khudkast' and further he is in possession of agriculture property he will become an occupancy tenant. Section 18 provides that all land in an agricultural area held or deemed to have been held on the date immediately preceding the date of vesting by any person shall, unless he has become an 'asami' under Clause (h) of Section 19, shall be entitled to take or retain possession as 'sirdar' thereof and the land shall be deemed to be settled with him by the State Government.

Trial court after considering all issues has recorded a finding on the basis of relevant record that defendant-appellant has failed to prove that he was ever in possession of the property in dispute after execution of sale deed. Therefore, immediately after enforcement of U.P. Urban Areas Zamindari Abolition and Land Reforms Act, plaintiff has become sirdar and subsequently bhumidhar and finding has also been recorded that Nagar Palika has also received compensation. As regards argument raised by appellant regarding placing reliance upon Section 26 of the Tenancy Act regarding continuous possession for three years, will not be applicable in the present case being fact that defendant was never in possession of property in dispute. There is no specific denial regarding possession of plaintiff-respondent. Court below has recorded a finding that certified copy of compensation assessment shows that compensation was assessed and, therefore, compensation would have been paid, appellant on his proprietary rights being vested in State under Section 8 of the Act. Finding of fact has also been recorded that suit land was in possession of appellant. In case suit land would have been in possession of appellant as it is khudkasht after the sale of the land, appellant would have become Bhumidhar of the land and not Tahir Hasan.

The Apex Court in AIR 1961 Supreme Court, 1790 Rana Sheo Ambar Singh Vs. The Allahabad Bank Ltd. has held that "Where the proprietary rights in certain villages mortgaged before the U.P. Act 1 of 1951, the legal effect of the notification under Section 4 would be that under the notification sir and khudkast land and grove land would vest in the State and would not be an exception to the consequences of vesting in Section 6 and therefore, the proprietary right in sir and khudkast land and grove land which were mortgaged would be extinguished. The boomidhar right which is created by Section 18 would be a new right altogether and could not, therefore, be considered to be included under the mortgage of the proprietary rights executed before the Act." From the record, it is clear that possession was always with plaintiff-respondent in spite of execution of the sale deed. Proprietary rights may have been transferred in the name of Nagar Nigam on the basis of sale deed but actual physical possession was never handed over and plaintiff-appellant was always in possession of the property in dispute.

Therefore, in pursuance of Sections 17 and 18 of U.P. Urban Areas Zamindari Abolition and Land Reforms Act, that land or grove held by an intermediary as sir khudkhast settled with him and he become Bhumidhar of it. From the papers filed on record like Khatuni, it appears that suit land settled with Tahir Husan, who became sirdar of it not with the appellant which falsifies the case of appellant that he was the proprietor in possession of the suit land on the basis of sale deed dated 7.5.1963 which was a khudkast because in that case appellant would have become as Bhumidhar of the suit land under Section 17 of the U.P. Urban Areas Zamindari Abolition and Land Reforms Act 1956 and not Tahir Husan as Sirdar under Section 18 of the Act.

As regards contention of appellant that name of Tahir Husan wrongly continued to be recorded in the revenue record does not appear to be correct for the reasons that had been a fact that appellant would have certainly objected it to revenue authority but it is apparent from Khatuni and Khasra right from agricultural areas till the abolition of zamindari i.e. on 5.8.1972 that appellant has ever objected to the revenue authorities regarding entry of the name of Tahir Hasan and this shows that it is well within knowledge of appellant that name of Tahir Hasan was correctly recorded as tenant in Khatuni over the suit land in spite of execution of sale deed. From perusal of Sections 33 and 44 of the U.P. Tenancy Act, it says that interest of ex-proprietary tenant is heritable but not transferable otherwise than in accordance with the provisions of this act which shows in favour of Tahir Hasan and not appellant after sale of proprietary right, possession of Tahir Hasan become of ex-proprietary tenant whose interest was though heritable but not transferable. From perusal Section 44 of the Act it is clear that every transfer made by tenant in contravention of the provisions of this Act shall be void. If occupancy right of the suit land was transfered by Tahir Hasan, same was being in contravention of the provision of this Act. Only proprietary rights of khudkhast land by proprietor would be transferred and not occupancy right as provided under Sub-Section 1 of Section 26 of the U.P. Tenancy Act.

It was also submitted on behalf of appellant that they had been put into possession over the suit land on the date of sale as is mentioned in the sale deed itself that possession of the land has been transferred along with title. He submits that in view of facts stated in the sale deed that possession of the land has been transferred alongwith sale, therefore, respondents cannot submit that they are continued to be in possession over the suit land even after the sale and he has placed reliance upon various judgments of the Apex Court. From perusal of aforesaid judgments, it has been held in the decisions that where terms of contract are contained in written agreement, oral evidence cannot be led to ascertain terms of contract. The Hon'ble Apex Court has also held that no oral evidence could be led to reduce the meaning of clause of agreement itself are clear and decisive. Appellant is not entitled to get benefit of these because from the khasra entries right from the agriculture years 1371 till abolition of zamindari and even after abolition of zamindari in the agricultural areas of the municipal limit the land in suit remain recorded in the name of Tahir Hasan. There is no single entry of Khasra in favour of appellant to show that suit land was in possession of it. The Commissioner's report also shows to that effect.

There is no dispute that zamindari was abolished in the municipal limits of Saharanpur on 5.8.1972 and all agricultural areas in the limit demarcated under Section 5 of the Act should transfer and vested in the State from all encumbrance. Therefore, sir, Khudkast, grove etc. of intermediary settled under Section 177 of the Act become bhumidhar. This Court in 1990 ALJ, 772, Kailash Prasad Naik Vs. Mohan Lal Sahgal has held that after final demarcation of agriculture area under Section 5 of the Act No.9 of 1957 vest in the State Government under Section 8 and consequence under Section 10 rights of intermediaries are distinguished and land is settled to its holder as per provisions of Sections 17, 18 and 19 of the Act.

It is also to be noted from the record that appellant never objected when name of Tahir Hasan entered in the revenue record after the sale. This shows that appellant was never in possession of the property in dispute. Whether after abolition of Zamindari, proprietary right vested in the State and proprietaries were given compensation for their right being vested in the State. The land settled with those who were in possession either as Bhumidhar or Sirdar or Asami and as the suit land is settled with Tahir Hasan under Section 18 of the Act, appellant never objected to it, now he has no right to say that name of Tahir Hasan wrongly continued in the revenue records. As regards decision cited by appellant that entry in favour of a person does not convey any title, appellant could be given benefit of these decisions only when it is proved that name of Tahir Hasan has wrongly been recorded after the sale of the land. His name was wrongly recorded but under the provisions of law, it cannot be said that he did not become tenant of the suit land after sale of proprietor rights during applicability of U.P. Tenancy Act and as Sir and Bhumidhar after enforcement of U.P. Zamindari Abolition and Land Reforms Act become applicable in the agriculture areas of Saharanpur municipal limits.

In view of aforesaid facts and circumstances, I am of opinion that findings recorded by courts below are finding of fact based on evidence after due consideration of pleadings of the parties. Therefore, as no substantial question of law is involved, as such, the appeal is hereby dismissed.

No order as to costs.

Dated : May 24, 2011 SKD