Heard Sri N. C. Rajvanshi, Senior Advocate assisted by Sri M. K. Rajvanshi, learned counsel for the petitioner, Sri Nawal Kishore for respondent no. 4 and learned Standing Counsel who has accepted notice on behalf of respondent nos. 1, 2, 3 and 6.
The relevant facts of the case as emerging from the pleadings of the parties are that the respondent no. 4, Smt. Shanti Devi filed Suit No. 46 of 2006 under Section 229 B of U. P. Z. A. & L. R. Act, 1950 before the respondent no. 3 against the petitioner claiming co-tenancy rights to the extent of half share in Plot No. 151, area 2.3460 hectare situate in village-Almaspur, district and Tehsil-Muzaffarnagar (hereinafter referred to as the disputed plot) alleging that the plot in dispute was recorded in the name of Samay Singh who died on 15.12.1980 leaving behind the respondent no. 4 and the petitioner as his heirs. Although after the death of Samay Singh the plot in dispute was liable to be recorded in the names of the respondent no. 4 and the petitioner jointly but taking advantage of the absence of the respondent no. 4 from the village, as she was residing elsewhere with her husband, the petitioner, her step sister whom she trusted, illegally got the disputed plot recorded in her name on the strength of a registered will deed dated 15.1.1981 allegedly executed by her father, Samay Singh in her favour pursuant to the order dated 18.12.1983 passed by the Tehsildar in Mutation Case No. 73 of 1983. The aforesaid fact came to the knowledge of the respondent no. 4 in the year 2005 and when the petitioner refused to acknowledge the respondent no. 4 as the co-tenure holder of the disputed plot, the respondent no. 4 filed the suit for declaration of her rights. In the plaint the respondent no. 4 had categorically alleged that the will deed dated 15.1.1981 was a forged and fabricated document as the same was neither signed by Samay Singh nor it bore his thumb impression. The petitioner filed written statement vehemently opposing the claim of respondent no. 4 denying the allegations made in the plaint regarding the will executed by Samay Singh in her favour. The other pleas regarding the suit being barred by Section 80 of the C. P. C. and Order XXIII Rule 1 of the Code of Civil Procedure, 1908 were also raised. The respondent no. 3 after considering the pleadings of the parties and the entire evidence on record decreed the suit filed by the respondent no. 4 vide his judgement and decree dated 23.12.2006. Aggrieved therefrom the petitioner filed an appeal before the Commissioner, Saharanpur Division, Saharanpur which was registered as Appeal No. 23/2006-07 and transferred for disposal before the respondent no. 2 and dismissed by him by his judgement dated 25.8.2007.
The petitioner challenged the judgements and decrees dated 25.8.2007 and 23.12.2006 passed by the respondent nos. 2 and 3 respectively by filing a Second Appeal before the respondent no. 1 which was registered as Second Appeal No. 36 of 2006-07 and dismissed by respondent no. 1 by the judgement and decree dated 6.8.2008.
The instant writ petition has been filed by the petitioner with a prayer for issuing a writ, order or direction in the nature of certiorari for quashing the orders dated 23.12.2006, 25.8.2007 and 6.8.2008 passed by the respondent nos. 3, 2 and 1 respectively.
Sri N. C. Rajvanshi appearing for the petitioner vehemently urged that the concurrent findings of fact recorded by the respondent nos. 3, 2 and 1 that the registered will deed executed by Samay Singh bequeathing his entire interest in the disputed plot in favour of the petitioner to the exclusion of respondent no. 4 was invalid are erroneous and the reasons given by the respondent nos. 3, 2 and 1 in their respective judgements in support of the aforesaid findings are wholly misconceived.
Sri Rajvanshi next submitted that Section 34 of the U. P. Land Revenue Act enjoins every person obtaining possession of any land by succession or transfer other than the succession or transfer which has already been recorded under Section 33 A of the Land Revenue Act to report such succession under Section 34 (5) of the Land Revenue Act.
He further submitted that the respondent no. 4, Smt. Shanti Devi having set up the case in the plaint that she was the daughter of Samay Singh and after his death she became the co-tenant along with the defendant-petitioner, thus before she could succeed in getting the decree in her favour declaring her to be co-tenant of the disputed plot along with the defendant petitioner, it was incumbent upon her to have pleaded and proved that she had filed the report as required under Section 34 (1) of U. P. Land Revenue Act and this having neither been pleaded nor proved by the plaintiff-respondent no. 4, her suit was barred under Section 34 (5) of the U. P. Land Revenue Act, 1901 and the respondent no. 3 clearly erred in decreeing the suit filed by the plaintiff-respondent no. 4 without taking into accunt the aforesaid aspect of the matter and the respondent nos. 2 and 1 also fell into the same error in dismissing the appeal and second appeal filed by the petitioner before them and in this view of the matter the judgements passed by the respondent nos. 3, 2 and 1 cannot be sustained and are liable to be quashed.
He further submitted that the finding recorded by the respondent no. 3 that the date of death of Samay Singh was 15.12.1980 and as affirmed by the respondent nos. 2 and 3 is totally vitiated on account of being based upon inadmissible evidence.
Sri Nawal Kishore, learned counsel appearing for the respondent no. 4 vehemently submitted that as far as the attack of the petitioner to the finding recorded by respondent nos. 1, 2 and 3 regarding the date of the death of Samay Singh is concerned, the same is a pure finding of fact based upon relevant evidence and not liable to any interference by this Court under Article 226 of the Constitution of India.
He next submitted that the courts below have given cogent reasons for holding the will allegedly executed by Samay Singh in favour of the petitioner to be invalid and no fault can be found with the same. He further submitted that the submission made on behalf of the petitioner that the plaintiff's suit was barred under Section 34 (5) of the Land Revneue Act on account of her having failed to report her succession as required by Section 34 (1) of the Land Revenue Act is concerned, the same is being raised by the petitioner for the first time before this Court as the said objection was neither taken by her in the written statement nor before the first appellate court or before the second appellate court and since there is neither any pleading nor any evidence on record in this regard, the petitioner cannot be permitted to raise the aforesaid plea at this stage for the first time before this Court which neither the trial court nor the first appellate court nor the second appellate court had any occasion to consider.
He further submitted that the claim of the respondent no. 4 for being declared co-tenant of the plot in dispute having been decreed by all the three courts and the will set up by the petitioner on the basis of which she claimed herself to be the sole tenant of the disputed plot having concurrently been found by the three courts to be suspicious and invalid, the judgements and decrees passed by the three courts cannot be set aside on the technical objection raised by the petitioner that the plaintiff's suit was barred under Section 34 (5) of the Land Revenue Act in the writ petition for the first time and even otherwise the bar enumerated under Section 34 (5) of the Act is not attracted to the facts of the present case.
I have very carefully examined the submissions advanced by the learned counsel for the parties and perused the impugned judgements as well as the other materials brought on record. There is no dispute with regard to the fact that Samay Singh was recorded as the tenant of the disputed plot till his death on 15.12.1980. The respondent no. 4 claims that after the death of Samay Singh, the disputed plot was liable to be recorded in favour of his daughters, the plaintiff-respondent no. 4 and the petitioner as both became co-tenants of the disputed plot after his death. According to the petitioner late Samay Singh had bequeathed his entire interest in the disputed plot in her favour by a registered will deed dated 15.1.1981 and after the death of Samay Singh, in the year 1982 the petitioner got the plot in dispute recorded in her name under Section 34 of the Land Revenue Act as far back as on 18.12.1983. The order by which mutation was ordered in favour of the petitioner was never challenged by the plaintiff-respondent no. 4 and the same attained finality. However, according to the plaintiff-respondent no. 4 she had no knowledge of the mutation order passed on 18.12.1983 pursuant to which the petitioner's name was recorded as sole tenant of the disputed plot on the basis of a forged will set up by her in her favour, till the year 2005 and as soon as she got knowledge of the mutation made in favour of the petitioner and the forged will set up by the petitioner, she filed the suit for declaration of her co-tenancy rights in the disputed plot. The parties led oral as well as documentary evidence in support of their respective claims and the respondent no. 3 by his judgement and decree dated 23.12.2006 decreed the suit filed by plaintiff-respondent no. 4 for declaring her to be the co-tenant of the disputed plot to the extent of half share. The trial court after considering the oral as well as the documentary evidence on record including the death certificate of late Samay Singh recorded a categorical finding of fact in his judgement that Samay Singh had died on 15.12.1980 and the will dated 15.1.981 which was the basis of the petitioner's claim was invalid on account of being of a date which was subsequent to the date of the death of testator, Samay Singh. The respondent no. 3 further observed that although the first page of the will bore the thumb impressions of the marginal witnesses Smt. Chhoti and Harphool but before the Registrar on the same page marginal witnesses Harphool put her thumb impression while Bharat Bhushan put his signature thereon and the second page of the will deed did not bear the signatures of any of the witnesses. Last and the most clinching circumstance which weighed with the respondent no. 3 while coming to the conclusion that the will in question was suspicious and not genuine was that although admittedly Samay Singh had two daughters, the petitioner and the plaintiff-respondent no. 4, yet in the will it was mentioned that Samay Singh had only one daughter. The petitioner failed to furnish any satisfactory explanation for this omission in the will. The respondent no. 3 after holding the will to be suspicious and invalid held that the plaintiff-respondent no. 4 had half share in the disputed plot and hence she was entitled to be declared co-tenant to the extent of half share in the disputed plot. The findings recorded by the respondent no. 3 on the issues of fact which are based upon cogent evidence have been affirmed by the respondent nos. 2 and 1 while dismissing the first and the second appeal filed by the petitioner before them.
Learned counsel for the petitioner despite advancing elaborate arguments has failed to demonstrate that the concurrent findings of facts recorded by the courts below with regard to the date of death of late Samay Singh and the will set up by the petitioner in support of her claim being suspicious, suffer from any illegality, infirmity or perversity warranting interference by this Court.
Now coming to the last ground on which the learned counsel for the petitioner has assailed the impugned judgements, that the suit filed by the respondent no. 4 was barred under Section 34 (5) of the Land Revenue Act (hereinafter referred to as the 'Act') on account of her failure to submit the report of her succession under Section 34 (1) of the Act is concerned, I find that no such plea was either taken by the petitioner in her written statement filed by her before the trial court or in her appeals filed by her before the first or the second appellate court and the moot question which arises for consideration is that whether the petitioner can be permitted to raise the said plea for the first time before this Court.
This question however cannot detain me for long as the plea regarding bar of Section 34 (5) of the Land Revenue Act is a pure question of law and no revenue Court is authorized to entertain any suit or application by a person so succeeding or otherwise obtaining possession until such person had made a report to that effect and since it involves the question of jurisdiction, the same can be raised at any stage.
Thus, in view of the above, the plea raised by the plaintiff-respondent no. 4 that the petitioner cannot be permitted to invoke the bar of section 34 (5) of the Act for defeating her claim over the disputed plot for the first time in writ proceedings has no merit and is accordingly turned down.
I now proceed to examine whether the bar stipulated under Section 34 (5) of the Act is attracted to the facts and circumstances of the present case or not. The provisions of Section 33 A and 34 (1) and (5) of the Land Revenue Act are extracted hereinbelow:
"33-A. Correction of annual registers in cases of uncontested succession.___(1) Where a person obtains possession of any land by succession, the Qanungo shall make such enquiry as may be prescribed and if the case is not disputed, record the same in the annual registers.
[(2) The provisions of sub-section (1) shall mutatis mutandis apply__ I.to a person who has been admitted as a sirdar of any land under Section 195 of the U. P. Zamindari Abolition and Land Reforms Act, 1950 before the commencement of the Uttar Pradesh Land Laws (Amendment) Act, 1977 or as a bhumidhar with non-transferable rigths under the said section after such commencement, or as an asami of any land under Section 197 of the first mentioned Act.
ii.to every settlement of land made under sub-section (3) of Section 27 of the Uttar Pradesh Imposition of Ceiling of Land Holdings Act, 1960."
34. Report of succession or transfer of possession.___[(1) Every person obtaining possession of any land by succession or transfer (other than a succession or transfer which has already been recorded under Section 33-A), shall report such succession or transfer to the Tahsildar of the Tahsil in which the land is situated."
(2) [****] (3) [****] (4)...................
(5) No Revenue Court shall entertain a suit or application by the person so succeeding or otherwise obtaining possession until such a person made the report required by the section.
[Explanation.___For the purpose of this section, the word 'transfer' includes____
1.(i) a family settlement by which the holding or part the holding recorded in the record of rights in the name of one or more members of that family is declared to belong to another or other members;
2.(ii) an exchange of holding or part thereof under Section 161 of the U. P. Zamindari Abolition and Land Reforms Act, 1950].
From the reading of the provisions of Section 33-A and 34 (1) and (5) of the Act it transpires that a report under Section 34 (5) of the Act is to be made only when Qanungo has failed to perform his duties under Section 33-A of the Act and report under Section 34 (1) of the Act is required to be lodged by a person obtaining possession on transfer or succession. Thus, the necessary condition which must pre-exist before the bar envisaged under Section 34 (5) of the Act can be invoked in a particular case on account of a person succeeding to a land having failed to submit report under Section 34 (1) of the Act is that in pursuance of such transfer or succession, such person must have obtained possession of the land to which he succeeded. The report under Section 34 (1) of the Act is required to be made only when a person has obtained possession on transfer or succession and if the plaintiff has not obtained possession of the land to which he succeeded, in that case the bar envisaged under Section 34 (5) of he Act shall not be attracted.
Thus, in view of the background of aforesaid legal position, I now proceed to examine as to whether the suit of plaintiff can be held to be barred by Section 34 (5) of the Act on the facts of the case and the evidence on record. The plaintiff-respondent no. 4 in para 8 of the plaint has categorically pleaded that after the death of Samay Singh his two daughters, the petitioner and the respondent no. 4 succeeded to the plot in dispute as co-tenants and since the petitioner was living in the village where disputed plots are situated, the petitioner cultivated the same after the death of their father on her behalf and on behalf of respondent no. 4 and her possession of the disputed plot was joint. The petitioner in para 8 of the written statement categorically denied the assertions of facts made by the respondent no. 4 in the plaint and pleaded that after the death of Samay Singh the petitioner succeeded as sole tenant of the disputed plot on the strength of the will executed by her father, late Samay Singh in her favour and obtained exclusive possession of the disputed plot. The petitioner further asserted that the respondent no. 4 had never got possession of the disputed plot. From a careful perusal of the pleadings of the parties the indisputed factual scenario which emerges is that the plaintiff-respondent no. 4 had not obtained actual physical possession over any portion of the disputed plot after the death of her father although she had succeeded him as co-tenant along with the petitioner. Since the plaintiff-respondent no. 4 had not got actual physical possession of the disputed plot, she was not at all required to report the succession under Section 34 (1) of the Act. There is also no material on record which may indicate that the Quanungo had after the death of Samay Singh failed to perform his duties enjoined upon him under Section 33-A of the Act rendering the petitoner liable to report her succession to the Tehsildar under Section 34 (1) of the Act.
In view of the foregoing discussion, I do not find that there is any merit in the submission advanced by learned counsel for the petitioner that the plaintiff's / respondent's suit was barred under Section 34 (5) of the Act and the impugned judements are not liable to be set aside on the aforementioned ground as well as the other ground as urged on behalf of the petitioner.
The impugned judgements are based upon relevant considerations and supported by cogent reasons and I do not find that there is any reason to interfere with the same.
The writ petition lacks merit and is accordingly dismissed.
Order Date :- 19.7.2011 HR