46. In the pedigree as well as in the allegations in the plaint the word 'Shiv Nandan Lal' was used. However, in written statement filed by Mst. Ram Dei in place of 'Shah Shiv Nandan Lal', the name of 'Shah Fundan Lal' was mentioned. In the oral testimony of the parties, the name 'Shah Fundan Lal' is used. In the judgement of the FA 480 of 1925, the name 'Shah Fundan Lal' is used. It is clear that:
Shah Fundan Lal and Shah Shiv Nandan Lal are names of the same person or Shiv Nandan could be typing mistake; and Mst. Ram Dei was widow of Madhuri Saran son of Kundan Lal.
47. OS 60 of 1924 was dismissed on 21.8.1925 holding that adoption of Gaur Saran was valid and he was allowed to manage the property of the trust,
48. The appeal against this judgement namely FA 480 of 1925 was dismissed by this court on 20.12.1928 reported in Sah Dharam Narain vs. Gur Saran: 1929 ALJR 189.
49. Gaur Saran Gupta was adopted son of Mst. Ram Dei and managed the trust property. Shah KS Gupta (the present shebait of the Plaintiff) is son of Gaur Saran Gupta. Thus the pedigree relevant for the purpose of this case is as follows:
Shah Govind Lal |
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| | Shah Kundan Lal Shah Fundal Lal | (died issueless) Madhuri Saran = Mst Ram Dei | Gaur Saran Gupta (adopted son) I Shah KS Gupta (the present shebait of the Plaintiff) 3rd POINT: 1858 DEED - IN RESPECT OF PROPERTY ALLEGED BY THE PLAINTIFF 50. The counsel for the Defendant submitted that: The 1858 Deed did not give description of the property;
It cannot be said that it was in respect of the property at present recorded as plot no. 61 (6.67 acres) in the nazul register.
52. The land of the 1858 Deed is described in the plaint as East: Road West: Post Office South: Road North: Property of Maharaja Bharatpur.
53. This is how it is also described in the 1881 Deed by which it was dedicated to the Plaintiff.
54. The Plaintiff is claiming the land at present described as plot no. 61 (area 6.67 acre) in the nazul register as the land that was subject matter of the 1858 Deed. In the nazul register, in front of this plot. Kothi of Mst. Ram Dei w/o Madhuri Saran is mentioned. Madhuri Saran was son of Shah Kundal Lal, one of the original beneficiary (see discussion on the second point) and one of the executors of the supplementary trust deed.
55. The next plot in the nazul register is plot no. 62 (area 9.32 acres). In front of this plot 'Kothi Bharatpur State' is mentioned.
56. The northern portion of the land of the 1858 Deed was leased out to Laxman Das by the Defendant in 1960 (the 1960 Deed). The property that was leased out is described as:
East: Gough Road West: Government Pucca Road North: Land belonging to Raja of Bharatpur South: Kothi and the land of Thakur ji Mahraj Radha Raman Ji
57. The northern boundary is the same namely land of Raja Bharatpur which is plot no. 42 where 'Kothi Bharatpur State' is mentioned in the nazul register.
58. The southern portion of the land of the 1858 Deed is subject matter of dispute in this case. This is also so described in the boundaries of the 1960 Deed.
59. This property was also let out to the planning department of the Defendant. Later on when the eviction suit no. 30 of 1969 was filed, it was described in the eviction suit as:
East: Gough Road West: Road leading to canal office North: Kothi of LD Bhargava South: Main Road.
60. The Plaintiff has been claiming the land of nazul plot 61 as the land that was subject matter of the 1858 Deed. It has not been disputed for about 130 years.
61. Considering the evidence of the case, in our opinion;
The Plaintiff was permitted to make construction over the land that at present is described in the nazul register as plot no. 61 (area 6.67 acres);
The northern portion of the 3.69 acres of the land has now been leased out to Laxman Das;
The southern portion of 2.98 acres of the land is subject matter of dispute in this case.
4th POINT: PROPERTY WAS ASSIGNED
62. The plaintiff's case is that the Shah Kundan Lal and Shah Phundan Lal created a trust by the 1866 Deed and dedicated property to the plaintiff. Thereafter, the property subject matter of the 1858 Deed was dedicated by the 1881 Deed.
63. The following circumstances are relevant for deciding whether the property was assigned to the Plaintiff or not:
The original document relating to the trust and supplementary trust deed are not on record but secondary evidence in respect to them has been filed and held to be admissible;
They were filed in OS 60 of 1924. They were accepted to be validly executed (see 1929 ALJR 189);
More than a hundred years have passed since execution of these documents without any challenge to them;
A department of the Defendant had taken a part of the property on lease for which OS 30 of 1969 was filed;
The registered deeds assigning the property to the Plaintiff has never been challenged prior to filing of the present suit rather they were accepted.
64. In view of above, we have no doubt that the property was assigned to the Plaintiff.
65. Nevertheless, only that right can be assigned to the Plaintiff that the original beneficiaries had. We will consider the nature of that right as well as its extent while answering the succeeding points.
5th & 6th POINTS: PLAINTIFF IS ENTITLED TO INJUNCTION
66. The counsel for the Defendant submitted that:
The trial court at one place held the property to be of Roshan Lal and at other place to be of the State;
It was nobody's case that property ever belonged to Roshan Lal;
The trial court has given contradictory finding; and The judgement of the trial court be set aside and the suit be dismissed.
67. The Plaintiff filed the suit with the allegation that the property was given to it by the British government. It was not their case that the property ever belonged to Roshan Lal. The Defendant's case was that the property belonged to the State--initially of the British government then of the State of UP-- and is recorded in the nazul register as the property of the State.
68. It was nobody's case that the property belonged to Roshan Lal. Had this case taken, it could have been explained. The State is super owner of all land, mines, and minerals: it is just possible that it might have first asked Roshan Lal to make construction and on his inability to do so, the Collector granted permission to the original beneficiaries to make constructions.
69. In our opinion, the property belonged to the State and the finding of the trial court that it belonged to Lala Roshan Lal is incorrect.
70. Nevertheless, merely for the reason that the finding of the trial court about Roshan Lal is incorrect, neither the appeal can be allowed nor the suit can be dismissed. This can be done only after deciding the nature of rights conveyed by the 1858 Deed. The suit can be dismissed only if we come to the conclusion that the Plaintiff has no legal right to be in possession of the land, thus dis-entitled to any injunction.
71. The counsel for the Plaintiff submitted2 that:
The 1858 Deed was executed prior to enforcement of the Government Grant Act, 1895 (the Grants Act) but it is applicable to 1858 Deed;
The 1858 deed should be read according to its tenor;
In any case, while interpreting a document, intention of the parties is to be seen;
The intention of the parties was to grant the land also.
72. There is some dispute whether the Grants Act is applicable to the 1858 Deed or not. However, there is no dispute with the preposition that:
A document is to be interpreted according to the intention of the parties; and The intention of the parties can be gathered from the words used in that document.
However the question is, does the 1858 Deed confer any right on the land or is it merely a permission to construct a Bungalow to be enjoyed by the beneficiaries that lapsed as the building has fallen down.
73. The counsel for the Defendant submitted3 that:
(i)The 1858 Deed merely granted permission to construct a bungalow. It also granted rights in that bungalow;
(ii)The 1858 Deed did not grant any right over the land over which bungalow was to be constructed. There is nothing in this document to indicate that any right over the land was transferred;
(iii)The rights can only be transferred by specific words. The 1858 Deed specifically grants rights in the constructions but does not say a word about the land;
(iv)The property is recorded in the nazul register. There is presumption of correctness of the nazul register. There is no evidence to rebut it;
(v)The word licence was defined under the Indian Contract Act, 1872 and thereafter under the Indian Easement Act 1882. Both these Act came into existence after execution of the 1858 Deed. However the entire transaction was akin to a licnece for making a bungalow and only the rights in that bungalow were granted;
(vi)The principle of licnece under section 62 of the Easement Act are general principles of licenses and are applicable in this case;
(vii)In pursuance of the permission the bungalow was also constructed. This building was affected by the licence. At present the bungalow is destroyed and the licensee or its assignee can not exercise their rights. The licence is deemed to be revoked on the principles mentioned in section 62(d) of the Easement Act;
(viii)In the written statement, it is mentioned that the construction by the original beneficiary fell down in 1972-73 . This may or may not be correct but it is irrelevant--as according to the Plaintiff's own case in the plaint, the building had fallen down before filing the suit and was not in existence.
74. There appear to be force in the submission of the counsel for the State as prima facie the 1858 Deed grants permission only to construct a bungalow and rights in that bungalow. There is no reference of granting any rights over the land; there is also no clause conveying the land. However, we decline to go into this question as the Defendant themselves have determined and admitted the status of the Plaintiff in the subsequent deed.
75. The southern portion of the land over which building was permitted to be constructed by the 1858 Deed has been leased out to Laxman Das. It has been done by three different deeds:
(i)Lease deed dated 22.2.1953 executed by the Plaintiff in favour of Laxman Das (the 1953 Deed);
(ii)Lease deed dated 26.1.1956. It is a tripartite document between the Plaintiff, defendant and Laxman Das (the 1956 Deed);
(iii)Registered deed dated 12.5.1960 executed by the Defendant in favour of Laxman Das (the 1960 Deed).
76. The 1953 and 1956 Deeds were not part of the record in the suit but are filed alongwith the stay application by the Defendant in the appeal. They are not disputed by the Defendant. In fact, during arguments the counsel for the Defendant placed reliance on them. We did not consider it, as it was not part of the record and also for the reason that the 1960 Deed was subsequently executed by the Defendant and it finally determines the status of the Plaintiff.
77. The 1960 Deed was filed by the Plaintiff and it is part of the record. It's relevant part is reproduced as 'Appendix-2' to this judgement. The 1960 Deed mentions about the 1956 deed also.
78. The 1960 deed describes status of the plaintiff as perpetual lessee and it further records that the question of nature of the Plaintiff's right was reconsidered by the Defendant at the request of Laxman Das and after examining it they were satisfied that the Plaintiff held the land on lease in perpetuity. This is not only the admission on the part of the Defendant but the 1960 Deed also records that the Defendant had determined the status of the Plaintiff over the land after consideration.
79. This determination is admission of the Defendant. It is conclusive proof of the status of the Plaintiff as neither any explanation for the same has been offered, nor any action has been taken against Laxman Das.
80. The land in 1858 Deed comprises of northern portion that is at present land of the 1960 Deed and the southern portion that is the land in dispute. The nature of rights in the entire land is one and the same. There is no difference between the two. It is not possible that the Plaintiff is perpetual lessee of the northern part and merely licensee for the southern part of the land of the 1858 Deed.
81. The State should not and in our opinion cannot discriminate between its high official Laxman Das, who is occupying the northern part and the Plaintiff deity, which is claiming rights in the southern part of the land that originate from the same source namely the 1866 Deed.
82. There is nothing to show that the perpetual lease was cancelled. In fact it was not even the case of the Defendant that the Plaintiff was a lessee; there is no question of cancelling it.
83. In view of above, It is held that the Plaintiff holds the lease in perpetuity for the property in dispute;
As the lease was not cancelled, the Plaintiff is entitled to permanent injunction.
84. We would also like to record that some arguments were raised before us on the point whether merely on the basis of possession injunction could be granted or not.
(i)The counsel for the Plaintiff had submitted4 that:
The Plaintiffs are in possession of the property in dispute;
They can not be forcibly evicted; and They are entitled to injunction.
(ii) Whereas, the counsel for the Defendant had submitted5 that:
The State is owner of all land;
The Plaintiff has no legal right over the property in dispute;
No injunction can be granted against the real owner merely on the basis of the possession unless better title or atleast some rights are established;
The land is recorded as nazul land in the nazul register since starting of the nazul register i.e. from beginning of the last century. No injunction can be granted on the land recorded as nazul unless superior title is established;
The Plaintiff neither has better title nor has established any right. The only right he had was to enjoy the building. It has come to an end with the falling down of the building;
The Plaintiff is not entitled any injunction.
We have already held that the Plaintiff is entitled to permanent injunction. It is not necessary to consider these submissions.
A SUGGESTION
85. While deciding the first point, we have mentioned that this case was not properly conducted. In deciding a case, not only good knowledge of law and appreciation of evidence is necessary but one must know how to conduct a trial. This cannot be taught in the law schools, but the right place is the judicial training institutes.
86. We have a judicial training institute at Lucknow. This procedural aspect of conducting a trial should be specially emphasised during training of the judicial officers. With these words, we leave the matter.
CONCLUSIONS
87. Our conclusions are as follows:
(a)The document mentioned in paragraph 9 & 10 under the heading 'THE FACTS' are admissible and are taken into consideration without formerly noting down the exhibit numbers;
(b)The 1858 document was in respect of the land as alleged by the Plaintiff;
(c)The property, which was subject matter of 1858 Deed, was validly assigned to the Plaintiff;
(d)The Plaintiff is lessee in perpetuity of the land in dispute; and
(e)The lease has not been terminated; and
(f)The plaintiff is entitled to an injunction.
In view of our conclusions, the appeal is dismissed.
Date: 20.9.2011 BBL Appendix-1 (Devnagri transcription and English translation done by Sri Nasruddin Urdu translator in the High Court and Shri AA Khan guide in the High Court museum.
This text is also agreed by the counsel for the parties.) Transcription in Devnagri साहब मुसफिक मेहरबान दोस्तान शाह कुन्दन लाल साहब व शाह फुन्दन लाल साहब सल्लमहू।
वाद इश्तेयाक मुलाकात की वाजेह हो कि लाला रोशन लाल साहब बॉगला नहीं बनवाती मगर जमीन अपनी वास्ते बॉगला की देने को तैयार है जमीन मौजूद है, लेहाजा आप की खिदमत में तकलीफ दी जाती है कि आप उस जमीन पर बॉगला बतस्सरूफ जर अपने बहुत जल्द बनवा दे और यह भी वाजे हो कि जो आप बॉगला तैयार कराये मिल्कियत सरकार न होगा आप की मिल्कियत में रहेगा। अलावा वरीं हमकों मन्जूरी के कुछ सवा हमारे राह पोश हूं तकलीफ यह है कि अगर आप के यहां कोई ज़िरह होवे तो मुलाखता के वास्ते एक ज़िरह बतौर नमूना भिजवा दीजिए कि उसी मुताबिक ज़िरह मंगवाई जायेगी और तैयारी बॉगला में तवाकुफ न हो कल सुबह ही मदद बंगले की लगवा दीजिए फकत।
अलमरकूम मिस्टर महारानहाल साहब मजिस्ट्रेट बहादुर जिला द. अग्रेंजी में मार्क थार्नहित कलेक्टर
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दस्तावेज के पुश्त पर आज तारीख १० अप्रैल १८५८ ई० मुसम्मी बनाम समद ख १७ सितम्बर १८८५ ई० १३ दिसम्बर १९०० हर प्रसाद वकील लाला बेनी माधव वकील English Translation Sahab Mushifiq, after Nice meeting with my friends Shah Kundan Lal and Shah Phoondan Lal, it came to my notice that Lala Roshan Lal does not build the bungalow, but he is ready to give his land for construction of bungalow. A piece of land is available. Hence, you are requested to built your bungalow at the earliest on that land at your own cost. Be it known further that the bungalow to be built by you would not be in the ownership of the Government, it would remain under your ownership. Apart from this permission, I wish to make one more request with you that if have any dress kindly sent it to me as a sample. if it is liked by me some more dress may be asked for. If you have no objection, you may start the work for construction of bungalow by tomorrow.
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On the back of the document Today dated 10th April 1858 Musammi Versus Smad Kha 17th September 1885 13th December 1900 Har Prasad Vakil Lal Beni Madhav Vakil Appendix-2 AND WHEREAS in view of the said assignment and in order to assure to the second party the possession over the said land the said Sri Thakurji Mahraj Radha Ramanji and the parties hereto executed an Indenture dated the twenty sixth day of January, One thousand nine hundred and fifty-six registered as No. 553 in Book No. 1 Volume 527 on pages 139 to 150 on the sixteenth day of May, One thousand nine hundred fifty six at the office of the sub-Registrar, Mathura;
AND WHEREAS the second party claimed that the said Sri Thakurji Mahraj held the aforesaid land on lease in perpetuity and made a request that his status as assignee of the lessee's rights in perpetuity be reconsidered, and the State government has at the request of the second party examined and are satisfied that the claim of the second party is correct;
AND WHEREAS it has been agreed between the parties hereto finally to set as rest the said controversy and also to recognise the status of the second party as assignee of rights as permanent lessee that the assignment by way of lease in perpetuity may be executed;
NOW THEREFORE IN PURSUANCE of the said agreement and in supersession of the Indenture dated the 26th day of January, 1956, the first party hereby confirms and demises to the second party ALL THAT plot of land described in the Schedule hereto and delineated on the plan annexed hereto and thereon shown and marked ABCDE in red colour NO HOLD the said premises from the twenty second day of February one thousand nine hundred and fifty three in perpetuity PAYING THEREFOR the yearly rent of Rs.10/- on the thirty first day of December in each year at the office of the Collector, Mathura or at such other place or places as the State Government may appoint in this behalf.
THIS INDENTURE made on the twelveth day of May one thousand nine hundred and sixty BETWEEN the Governor of Uttar Pradesh (hereinafter called 'the first party') of the one part AND Sri Lakshman Das Bhargava son of Pt Govind Das Bhargava, permanent resident of Mathura (hereinafter called the second party) of the other part;
WHEREAS Sri Thakurji Mahraj Radha Ramanji held the land, described in the Schedule hereto as a perpetual lease;
AND WHEREAS the said Sri Thakurji Mahraj Radha Ramanji through his Manager and Sarbarakar assigned the premises aforesaid to the second party and the State Government also concurred in the said assignment;