Heard learned counsel for the parties at the admission stage.
This appeal has been filed by defendants. It arises out of OS. no.614 of 1985 instituted by the respondents against the appellants. The suit was dismissed on 27.10.1994 by Additional Civil Judge (S.D.)/ACMM VI Kanpur Nagar. The suit was filed for possession. Against decree passed by the trial court, plaintiffs filed Civil Appeal no.46 of 1995 which was allowed by A.D.J. Court no. I, Kanpur Nagar through judgment and decree dated 27.2.2009. The suit was decreed only for demolition and possession. However, relief for damages was not granted and suit to that extent was dismissed.
Plaintiffs' case is that property in dispute is part of plot no.604, that R.S. Cooperative Housing Society purchased the said plot along with two other plots bearing nos. 601 and 603 and thereafter executed lease deed of an area of 300 sq. yds for the 999 years in favour of plaintiff no.1 on 18.4.1981 and similarly lease of another 300 sq. yds in favour of plaintiff no.2 on 5.5.1982.
Defendants' case was that the property belonged to Kanhai defendant no.5 who executed an agreement on 10.1.1980 and a sale deed on 10.5.1985 in favour of defendant no. 7 of 200 sq. yds. Defendant no.5 executed another sale deed on 19.4.1985 of another area of 200 sq. yd. in favour of defendant no. 2 and 8 who are husband and wife. Defendant no.4 also claimed that he made construction over 200 sq. yd area with permission of Chhedi one of the defendants. R.S. Cooperative Housing Society purchased the plots from Naronah family on 17.12.1980. Initially order was reserved in this appeal on 14.10.2011. However, the appeal was again listed for further hearing in order to inquire about one or two points from the learned counsel for both the parties. On 27.4.2012 on the request of learned counsel for the appellants records were summoned thereafter on 18.5.2012 following order was passed on the order sheet:
"Records of the courts below have been summoned. Learned counsel for both the parties after going through the entire records state that there is no evidence available on the files of the courts below to show that how much area was purchased by R.S. Cooperative Housing Society.
Accordingly, judgment again reserved. List for delivery of judgment on 9.7.2012. Interim order shall remain in operation until delivery of judgment."
However, copy of sale deed dated 17.12.1980 is available in records. Through specific portion of 1.05 bigha was sold.
Defendant no.4 asserted that the land was being cultivated by defendant nos. 5 and 6 and defendant no.4 made construction over an area of 200 sq. yd. with the permission of defendant nos. 5 and 6. Defendant no.5 is son of defendant no.6.
The sale deed dated 17.12.1980 through which R.S. Cooperative Society purchased the property was filed before the Court below.
The trial court held the suit to be barred as it was filed after more than six months from dispossession. The view of the trial court was utterly erroneous in law and was rightly set aside by the lower appellate court. The suit had not been filed under Section 6 of Specific Relief Act. It was a regular suit based on title hence Limitation of 12 years was applicable. Lower appellate court in this regard rightly placed reliance upon the leading judgment of the Supreme Court on this point reported in Nair Services Society Vs. K.C. Alexander AIR 1968 SC 1165. The trial court had also held that at the time of execution of the lease deed the plaintiff no.2 was minor. Even if it is so lease deed does not become void. If a transaction is for the benefit of the minor and the minor wants to abide by it then 3rd party can not challenge the transaction. In this regard also correct stand was taken by the lower appellate court after placing reliance upon Jaykant Harkishandas Shah Vs. Durgashanker Valji Pandya, AIR 1970 Gujarat 106.
The main point to be decided is as to whether transferrors of the society i.e. Mrs. M.D. Naronha and T.D. Naronha or Kanhai defendant no.5 was the Bhoomidhar/owner of the land in dispute. In the revenue record the name of transferrors of the society were entered as Bhoomidhars/owners and after the sale deed of 17.12.1980 the name of the society was entered in the Revenue Records as such over the sold property. Kanhai defendant no.5 and one Karan Singh claimed right in the land however their names are not recorded in the revenue records as Bhoomidhars/owners. The transferrors of the society had filed the suit for declaration and partition. Karan Singh filed application for impleadment in the said suit. The suit was decreed on the basis of compromise on 6.1.1981. The said order was challenged by Kanhai and Karan Singh through revision no.26 and 27 of 1981 - 1982 before Board of Revenue Allahabad. Kanhai and Karan Singh claimed that they were in possession over the land in dispute. The Board of Revenue dismissed the revisions through order dated 9.2.1995 (copy of which was filed before the courts below). In the said order it was categorically held that suit for partition had been got decreed through compromise and Kanhai and Karan Singh had no concern with the same and if they had any right in the land they could file suit for declaration.
In the revenue records Naronha family and after the sale deed of 17.12.1980 R.S. Cooperative Society was recorded as owner/Bhoomidhar. By virtue of order dated 9.2.1995 passed by Board of Revenue defendants appellants could get their right or title declared by competent court. Without that they can not question the sale deed dated 17.12.1980 and the lease deed dated 18.4.1981 and 5.5.1982.
Defendants appellants completely failed to show that Kanhai their transferror had any transferable right or even any right in the land in dispute.
The question whether partition decree passed in the suit under Section 229 B and 176 of U.P.Z.A.L.R. Act was binding upon Kanhai and Karan Singh is wholly irrelevant as the said suit was filed by the recorded Bhoomidhar/owners and even in the absence of partition decree only recorded owner Bhoomidhar could object to the sale.
Issues no.10 to 13 framed by the trial court related to the title and possession of defendants no. 5 and 7. The trial court under issue no.10,11,12 and 13 mentioned that during arguments learned counsel for the defendants did not press the said issues hence the said issues were decided in the negative i.e. against the defendants. Accordingly, even the trial court had not found any right title or possession of the appellants over the land in dispute.
Accordingly, there is no substantial question of law involved in this Second appeal. The findings recorded by the lower appellate court are absolutely in accordance with law. Second Appeal is therefore, dismissed under Order XL Rule 11 C.P.C.
Order Date :- 16.7.2012 vkg