1. Present second appeal has been preferred against the judgment dated 18.9.2002 passed by Additional District Judge Court, No.-2, Gorakhpur passed in Civil Appeal No. 79 of 1994, Vishwanath Prasad & others Vs. Sita Ram Tekriwal, by which judgment dated 17.11.19823 passed by Civil Judge-I, Gorakhpur in O.S. No. 102 of 1980 Vishwanath Prasad and others Vs. Sita Ram was set aside and the first appeal was allowed for the relief claimed in the original suit.
2. In original Suit No. 102 of 1980 the plaint case in brief was that plaintiffs are onwers of land detailed at the foot of plaint measuring approximately 26000 square feet situated in mohalla Purdilpur, Gorakhpur. The defendant Sita Ram Tekriwal took the land in possession from the plaintiff on lease by registered lease-deed dated 23.2.1972 for a period of 23 years and took the possession of said land same day for running the cinema. The defendant agreed to pay from the date of lease-deed Rs. 931/- per month as monthly rent for this lease in first week of each calendar month regularly up to period of 15 years, and thereafter at the rate of Rs. 1131/- per month for the remaining lease period in the like manner. The defendant had also agreed to pay Rs. 8000/- as premium within 9 months from the date of execution of lease deed to the plaintiff. The defendant did not pay Rs. 8000/- the amount of premium within time specified in lease deed in spite of several demands. Subsequently on protest and demand from the side of plaintiff, the defendant gave a signed written undertaking dated 4.2.1975 by which he acknowledged the liability to pay premium of amount of Rs. 8000/- and assured the plaintiff for its payment at an early date. But he did not honoured his assurance and avoided the payment of premium amount, and on 27.1.1978 defendant only paid Rs. 500/- towards amount of premium for which he made the endorsement of part-payment on the back of writing given by him on 4.2.1975 in his handwriting and signature and again acknowledged the liability to pay remaining amount of Rs. 7500/- by the same endorsement. Since September, 1977 the defendant had not paid the monthly rent of Rs. 931/- per month in spite of demand and request of plaintiffs. Therefore under terms of lease deed, in case of non payment of rent continuously for 6 months, the plaintiffs are entitled to enter into possession of land in suit by terminating the lease of defendants by giving 30 days' notice. As the defendants had failed to pay monthly rent of disputed land for more than 6 months in continuation the plaintiff sent a registered post notice dated 25.3.1980 to defendant through counsel for terminating the lease and for the demand of amount of rent due as well as the remaining amount of premium due alongwith interest. Said notice was served on defendant on 27.3.1980 but inspite of its service, the defendant had neither paid the amount of rent and premium due nor had handed over the vacant possession of the land in suit. Therefore, the plaintiff had filed suit for recovery of possession over land in suit detailed in plaint by ejecting the defendant and recovery of Rs. 45,716/- as the amount due as above and also for recovery of damages at the rate of Rs. 931/- per month pendelte lite and till recovery of actual possession of disputed property.
3. In original suit, defendant had filed written-statement in which he had admitted that he had taken possession of disputed land from plaintiffs after execution of registered lease-deed dated 23.2.1972 and had agreed to pay monthly rent for 15 years at the rate of Rs. 931/- per month and thereafter monthly rent at the rate of Rs. 1151/ per month and had also admitted to pay premium amount of Rs. 8000/- against which he had paid Rs. 500/-. Except these admissions, the defendant (present appellant in second appeal) had denied other plaint averments. In his written-statement, the defendant had further pleaded that although lease deed was executed for plot no. 216 but the area mentioned it also included the area of plot no 215. The disputed plot no. 216 was Khudkasht land of plaintiffs no. 1 to 4 before the abolition of urban zamindari, but after its demarcation plaintiff had lost its rights of ownership. The demarcation of these lands became final under section 3 of this Act. When plaintiffs no. 1 to 4 needed the money then they had leased their aforesaid 26000 sq. feet land to defendant the limits of which is given in lease-deed by which disputed land was transferred to defendant and the defendant had undertaken to pay rent and premium as stated above, but in fact it is not amount of rent but is amount of premium. Therefore, defendant had automatically become Bhumidhar on said land. The lease deed executed by plaintiffs no. 1 to 4 was illegal and ineffective. The plaintiffs had already received Rs. 61,946/- from time to time from defendant who became owner of disputed land under section 164 of UPZA & LR Act, 1951. Plaintiff cannot terminate the lease in favour of defendant by notice of 30 days because cinema building is constructed over the said land. The acknowledgment dated 4.2.1975 executed by defendant was not possible, therefore the said acknowledgment cannot confer any right to plaintiff. Suit is liable to be dismissed.
4. After framing of issues and affording opportunity of hearing to parties the court of Civil Judge-I, Gorakhpur had dismissed the original suit by its judgment dated 17.11.1983. Against this judgment of trial court, Civil Appeal no. 79 of 1994 they've dated at that Nicola Manitoba your will that we'll you in the Lane on the month is that if the peaceful review the sub number the sub to us for parch totally because delay are to her bumper from the will only you number was but they arewith this amount on the sum of the's was delayed in manner in the ballroom telephoning one, positively Locarno Khatoni because you lay militiaman order will was preferred by plaintiffs which was heard and allowed by the judgment dated 18.9.2002 of Additional District Judge, Court No.-2, Gorakhpur. By this judgment, the first appeal was allowed and original suit was decreed for the relief sought in plaint.
5. Against impugned judgment dated 18.9.2002 of the first appellate court, present second appeal has been preferred by the defendant of original suit.
6. This second appeal was admitted by order dated 7.4.2003 of this Court, but at that time no substantial question of law was framed. Therefore after hearing, after perusal of memorandum of second appeal, original records and on the basis of arguments preferred by learned counsels for the parties, following substantial questions of law are framed for deciding the appeal on merits:
(1) Whether the disputed plot no. 216 had been demarcated under U.P. Urban Zamindari Abolition Act? If so, its effect on rights of plaintiffs-respondents?
(2) Whether the defence advanced by defendant-appellant is barred by doctrine of estoppels and acquiescence?
(3) Whether the defence advanced by defendant-appellant is barred by law?
(4) Whether the lease-deed dated 23.2.1972 executed by plaintiffs-respondents in favour of defendant-appellant is null and void?
7. Learned counsel for the appellant contended that this is a suit for recovery of possession of bhumidhari land but there is evidence that the said land is being used for non-agricultural purposes. Since no proceeding under Section 143 of UPZA & LR Act has been conducted, therefore no finding could be given about change of agricultural nature of disputed property. Without considering these facts, judgment given by lower appellate court is erroneous. He further submitted that after abolition of zamindari the UP urban Area Zamindari Abolition Act has come into operation, and disputed land was demarcated. So plaintiffs had been deprived of their alleged bhumidhari rights because disputed property had vested in State by operation of law; but these facts were suppressed by the plaintiffs/respondents at the time of execution of registered lease-deed in question which in itself is a void document and is not enforceable under the law. He further submitted that defendant/appellant became sub-tenant of the disputed property which was earlier held by plaintiffs, so relief of eviction is exclusively within jurisdiction of revenue court. Unless it is proved that disputed property is non-bhumidhari land, as such, the relief cannot be granted to plaintiffs. The lower court should have framed issues on this point before deciding the matter. He submitted that civil court has no jurisdiction to grant relief for agricultural property. For these reasons appeal should be allowed. He admitted after taking possession to the disputed land from plaintiffs, defendant/appellant had stopped paying rent to him admissible under registered lease-deed executed by the parties. His submission was that in aforesaid circumstances civil court has no jurisdiction to grant relief to plaintiffs. He further contended that plaintiff no.-2 of the original suit had died and was not substituted; therefore relief cannot be granted regarding his share. These points were not considered by lower appellate court at the time of passing of the impugned judgment , therefore appeal should be allowed.
8. Learned counsel for the respondents contended that defendant/appellant had admittedly executed registered lease deed dated 23.2.1972 and on same day had taken possession of said land and agreed to pay rent, as admitted in the pleadings of the parties. His submission was that in any circumstances, defendant cannot deny or challenge the right of his lessor and plea taken by him is barred by doctrine of estoppel and from the provisions of Section 116 of Indian Evidence Act. He further submitted that no plea of bar under Section 331-A of UPZA & LR Act and lack of jurisdiction of court was taken by the appellant in lower court. Such plea cannot be raised directly in second appeal by defendant/appellant. He further submitted that bhumidhari rights and title of plaintiff over dispute property is admitted fact in the pleadings, and there is no evidence to prove that disputed property was ever demarcated; therefore the judgment of lower appellate court giving such finding is without infirmity or error. He further submitted that in spite of absence of one co-owner the other co-owners can file suit on his behalf for eviction; therefore, the death of plaintiff no. 2 will not bar relief required in the suit. There is no error in the impugned judgment, so appeal should be dismissed.
9. The main point of contention is that the disputed land has been demarcated under the U.P. Urban Zamindari Abolition Act, therefore that plaintiffs-respondent had lost his legal rights over it. The pertinent point is that if the said land was demarcated then that must have been some evidence of it. This point was not properly considered by the trial Court, but the first appellate Court had properly scruitinized the evidences and after discussing them, gave specific and direct finding of fact that said land was not demarcated. This finding of the first appellate Court appears correct that had there been any demarcation, there must have been evidence for the same. The absence of any evidence regarding demarcation leads to only inference that the demarcation of disputed land was not proved. The fact of demarcation was pleaded and asserted by the defendant-appellant, therefore burden of proving the same is on defendant-appellant; but he had failed to discharge this burden. Therefore findings of the first appellate Court in this regard is found correct that the disputed land of plot no. 216, Purdilpur was never demarcated under the U.P. Urban Zamindari Abolition Act, and said findings are hereby confirmed. Accordingly the first substantial question of law is decided in negative, against appellant-defendant and in favour of the respondent-plaintiffs.
10. Sections 115 and of 116 of the Indian Evidence Act, 1872 reads as under:
"115. Estoppel.-When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.
Illustration- A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it. The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title.
116. Estoppel of tenant; and of licensee of person in possession.- No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when such licence was given. "
11. In original suit, in reply to plaint averments, the defendant had filed written-statement in which he had admitted that the disputed land was in possession and user of plaintiffs. After accepting the plaintiffs to be the owner and title holder of said property he had taken possession of it from them after execution of registered lease-deed dated 23.2.1972 and had agreed to pay monthly rent for 15 years at the rate of Rs. 931/- per month and thereafter monthly rent at the rate of Rs. 1151/ per month and had also admitted to pay premium amount of Rs. 8000/- against which he had paid Rs. 500/-. Had there been no execution of lease-deed dated 23.2.1972andcontract for payment of monthly rent as well as premium amount, there would have been no occasion for the plaintiffs to hand over possession of disputed property and there was no reason for defendant-appellant to get the possession of the same.
12. In this matter the defendant-appellant had by his act and declaration in form of registered lease-deed had intentionally and deliberately caused the plaintiffs-respondents to believe that he will pay lease rent and premium and shall recognize right of plaintiffs as owner/ lessor of the property in question and hand over its possession to them after stipulated period. It is also admitted that acting upon such belief, the plaintiffs-respondents had handed over the possession of disputed property to defendant-appellant. Therefore the defendant-appellant cannot be allowed in any suit to deny the truth of title and right to get possession back of said property. His defence as well as the contentions in this appeal are not acceptable, and barred by section 115 of the Indian Evidence Act.
13. After entering into registered lease deed and the contract is relating it, the appellant became lessee and tenant of the disputed immovable property. Therefore under section 116of the Indian Evidence Act, he or any person claiming through him cannot be permitted to deny being the tenant and lessee of the plaintiff-respondents. The defence of the appellant is barred by the principle of estoppels and acquiescence. Accordingly the 2nd substantial question of law is decided in affirmative, and against appellant-defendant.
14. In view of the findings of first and second substantial questions of law, as above, it is held that after its earlier admission at the time of execution of registered lease-deed dated 23.2.1972 regarding the title, lessor-ship and ownership of plaintiffs and their right to get back possession of disputed property, the defence of the defendant-appellant containing denial of his earlier of admission is barred by law. The defence of the appellant-defendant is barred by sections 115, and 116 Indian Evidence Act.
15. Apart from it the appellant had claimed in their written-statement that they had become Bhumidhar of the disputed land. Any such right of appellant cannot be recognized unless it is declared by competent revenue court, which is not their case. Without any such declaration, the appellants cannot legally raise defence of their title and ownership of disputed land. Therefore their defence is not legally acceptable and barred by law. The third substantial question of law is accordingly decided in affirmative, and against the defendant-appellant.
16. As held earlier the plaintiff-respondents had been in possession and user of disputed property, and had been exercising their rights over it as owner, without any adverse claim from any other person. The defendant-appellant had admitted their aforesaid rights. Admittedly on the promise of defendant-appellant to act as lessor-tenant, the parties had executed registered lease-deed dated 23.2.1972 without any misrepresentation or fraud. In absence of any error or illegality in said lease-deed, this enabled the defendant to take possession of the property in question. There is no reason to hold said lease-deed as null or void. If said lease-deed was invalid or void, then possession of appellant on its basis was erroneous, and the possession of plaintiff-respondents should be restored. So there is no error in judgment under challenge in this appeal. Apart from it, as held earlier the defendant-appellant cannot legally raise such plea in defence, and he is legally estopped from doing so. The plea of defendant-appellant in this regards barred by principle of estopple and acquiescence. For these reasons fourth substantial question of law is decided in negative.
17. On the basis of above discussion it is found that the plaint case, on its facts was rightly found proved by the first appellate court. This court had re-appreciated the evidences adduced by parties during the proceedings, and discussed them before holding that disputed land belongs to title and rights of plaintiffs-respondents, and also that the defendant-appellant is neither owner nor has right to retain its possession. On examination of reasonings recorded by the learned first appellate court in first appeal, I am of the view that its judgment is well reasoned and based upon proper appreciation of entire evidences on record. These findings appear to have been given after application of mind and are apparently acceptable. No perversity or infirmity is found in the finding of fact recorded by the first appellate court to warrant interference through this appeal. None of the contentions of learned counsel for the defendant-appellants can be sustained.
18. On the basis of above discussion it is also proved that defence of defendant-appellant is not tenable. He cannot plead against his own admission which led the plaintiffs-respondents to hand over possession of disputed property to him. It is also found that the defence of the appellant is barred by principle of estoppels and acquiescence. It is also proved that the defendant-appellant had failed to prove his right or title over disputed property, while plaintiff-respondent's rights over this property is proved. Therefore appellant is not entitled to any relief in this second appeal.
19. In view of the above this appeal is dismissed with costs.
Order Date :- 03.08.2016 SR/Sanjeev