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Ram Dass v. Board Of Revenue, U.P, Allahabad And Others Opp. Parties.

Allahabad High Court

Oct 6, 1966

Judgment

Subsequent
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Structured Summary of the Opinion — S.N. Singh, J.

Factual and Procedural Background

This petition under Article 226 arises from a suit instituted by the plaintiff-petitioner under Sec. 176 of the U.P. Zamindari Abolition and Land Reforms Act.

The operative facts as recited in the opinion are:

Two persons, Mohammad Hanif and Abdul Majid, were co-bhumidhars (co-tenureholders) of the land in suit, each holding half.
Mohammad Hanif sold his half-share to the defendants (vendees) — Mir Ahmad, Shaukat, Nizamjuddin and Mohammad Ail. The vendees alleged possession over that half by virtue of a sale deed executed in their favour by Mohammad Hanif.
Abdul Majid entered into an agreement to sell his half-share in favour of the plaintiff-petitioner but did not execute the sale deed; the plaintiff sued for specific performance. That suit was decreed and, on Abdul Majid's failure, a sale deed was executed by the court (the opinion refers to a sale deed executed by the court on 25th September 1958 in one place and refers elsewhere to a sale deed in favour of the vendees dated 25th April 1955; both dates are recorded in the opinion).
Subsequently Ram Das (the plaintiff-petitioner) instituted the present suit for partition of his half-share.
The defendants contested the partition suit alleging they had entered into possession over the entire property: half under the sale from Mohammad Hanif and half under an agreement with Abdul Majid dated 12th April 1955, for which they paid Rs. 100 as advance and claimed entitlement under Sec. 164 of the U.P. Zamindari Abolition and Land Reforms Act; they also pleaded possession from 1361 F. onwards and claimed title as sirdar over the other half.
The trial court and the first appellate revenue court decreed the plaintiff's suit, finding the plaintiff to be co-sharer to the extent of half and entitled to division; they negatived the defendants' claim of possession under the agreement and held that the defendants had entered into possession after the sale deed in their favour. The plea of limitation was overruled on the ground that possession of one co-tenureholder was possession of the other absent proved ouster.
The defendants appealed to the Board of Revenue. The Board set aside the two concurrent judgments and dismissed the plaintiff's suit. The Board accepted findings that the vendees had entered into possession after the sale deed in their favour and had not entered into possession by virtue of the agreement, but held that the plaintiff's suit was time-barred because the plaintiff had allegedly entered into possession in 1362 F. and the vendees' possession was adverse to him. The Board also held that non-impleadment of the U.P. State (where tenure question was involved) made the suit non-maintainable, and that the plaintiff had not proved the sale deed in accordance with law.
The petitioner filed the present writ petition challenging the Board's decision as manifestly erroneous on the face of the record. The Court directed production of the decree in the specific performance suit and heard the petition. The Court notes that some of the vendees were not parties to the specific performance suit and that no counsel with instructions appeared for the opposite parties at the hearing before the Court.

Legal Issues Presented

Whether the possession of the vendees (purchasers from Mohammad Hanif) over the property was "otherwise than in accordance with law" so as to permit a suit under Sec. 209 of the U.P. Zamindari Abolition and Land Reforms Act (and whether such possession could be treated as adverse to the plaintiff for limitation purposes).
Whether Sec. 209 of the U.P. Zamindari Abolition and Land Reforms Act permits a suit by one co-tenureholder against another co-tenureholder for ejectment, and consequently which period of limitation (three years or twelve years) applies to extinguish a co-tenureholder's right.
Whether non-impleadment of the State of U.P., when rival questions of tenureholdership are involved, is a jurisdictional or fatal defect rendering the suit non-maintainable.
Whether an objection to insufficiency of proof of a sale deed (a registered document executed by the court and acted upon by the trial and first appellate courts without objection) can be taken in a second appeal, thereby justifying reversal by the Board of Revenue.

Arguments of the Parties

Petitioner (Plaintiff) — Principal Contentions

The plaintiff relied on the decree for specific performance obtained in his favour and on the sale deed executed by the court pursuant to that decree to claim his half-share and partition.
The petitioner challenged the Board of Revenue's dismissal as erroneous on the face of the record and relied on precedent to assert that the objection to insufficiency of proof of the sale deed could not be taken at the stage of second appeal where the document had been acted upon without objection by the lower courts.

Respondents (Defendants / Vendees / Board of Revenue) — Principal Contentions

The contesting defendants alleged they had entered into possession over half-share by virtue of a sale deed from Mohammad Hanif and over the other half by virtue of an agreement to sell by Abdul Majid dated 12th April 1955, having paid Rs. 100 by way of advance; they asserted entitlement under Sec. 164 of the U.P. Zamindari Abolition and Land Reforms Act.
The defendants claimed they had been in possession from 1361 F. (or thereabouts) and that their possession was adverse, leading the Board to treat the plaintiff's suit as barred by the three-year limitation rule.
The Board of Revenue also held that non-impleadment of the U.P. State was fatal when rival tenureholdership issues arise, rendering the suit non-maintainable.
The Board further accepted a plea that the plaintiff had not proved the sale deed in accordance with law, treating that as a ground to dismiss the suit in second appeal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Behari Lal v. Amin Chand and Allah Bande, A.I.R. 1924 Alld. 918	That an objection as to insufficiency of proof of a document, when not taken in the lower courts and when the document has been acted upon, cannot be taken in appeal (and certainly not in second appeal).	The Court relied on this authority to hold that the Board of Revenue should not have allowed the defendants to raise the objection to proof of the sale deed in second appeal where the trial and first appellate courts had acted on the document without objection.
Ajodhya Prasad Dube v. Mahabir, A.I.R. 1935 Alld. 293 at p. 294	Same proposition: limitation on raising objections to document proof in later appellate stages if not raised earlier.	The Court cited this case for the proposition that the objection could not properly be entertained by the Board in second appeal and so could not justify reversal.
Gopal Das v. Sri Thakurji, A.I.R. 1943 P.C. 83 at p. 86	Supports the rule that a document accepted and acted upon by lower courts cannot be rejected for want of formal proof at the second appeal stage.	The Court relied on this precedent to conclude that the registered document executed by the court, and accepted by the two lower courts without objection, should not have been held inadmissible by the Board.

Court's Reasoning and Analysis

The Court's analysis proceeds in identifiable steps, closely tied to statutory language and factual findings recorded by the revenue courts:

Nature of co-tenure possession and its legal effect: The Court observed that as between co-tenureholders (co-sharers), absent a division, each is entitled to share in every part of the holding. Therefore, entry into possession by a vendee of one co-tenureholder cannot be treated automatically as possession "otherwise than in accordance with law", because the vendee stands in the shoes of the co-tenureholder whose title he purchased.
On the Board of Revenue's characterization of possession as adverse to the plaintiff: The Court found confusion in the Board's conclusion that the vendees' possession was adverse to the plaintiff when, at the time the vendees entered, the plaintiff had not yet "come on the scene" — Abdul Majid was the co-tenureholder then. The Court noted the Board failed to consider whether the vendees' possession was without the consent of Abdul Majid; that fact was not proved.
Applicability of Sec. 209 (U.P. Zamindari Abolition and Land Reforms Act) and limitation: The Court compared Sec. 209 with the pre-amendment language of Sec. 180 of the U.P. Tenancy Act (prior to Act X of 1947) and relied on prior understandings that a co-sharer could not be ejected by another co-sharer under the unamended provision; the proper remedy is partition or a suit for joint possession. Since Sec. 209's language corresponds to the unamended Sec. 180, the Court held that a suit under Sec. 209 by one co-tenureholder against another cannot lie. Therefore, the three-year limitation rule invoked by the Board (applicable to suits under that section) was inapt; instead, the Court reasoned, the right of a co-tenureholder would be extinguished only after the twelve-year period applicable to such cases. The Board's application of the three-year rule was therefore held to be a legal error apparent on the face of the record.
On non-impleadment of the State of U.P.: The Court accepted that while the State may be a proper party where rival tenureholdership issues arise, there was no statutory requirement to implead the State in a suit under Sec. 176. Therefore, non-impleadment of the State could not be treated as a fatal, jurisdictional defect rendering the suit non-maintainable.
On objection to proof of the sale deed in second appeal: The Court noted that both the trial court and the first appellate court had acted upon the sale deed without any objection by the defendants. Relying on the precedents cited, the Court held that it was not open to the Board of Revenue, in second appeal, to allow the defendants to raise an objection to the formal proof of the document. The registered document executed by the court and accepted by the two courts below could not properly be held inadmissible for lack of formal proof at that stage; if the defendants had objected earlier, formal proof could have been offered.
Conclusion on error apparent on the face of the record: Taking the above points together, the Court concluded that the Board of Revenue had committed a mistake apparent on the face of the record in reversing the concurrent judgments of the two revenue courts.

Holding and Implications

Holding:

Petition allowed. The Court quashed the judgments of the Board of Revenue dated 18th January 1963/29th January 1963 and restored the conclusions of the trial court and the first appellate revenue court. The petitioner was held entitled to the costs of the petition.

Immediate consequences for the parties:

The Board of Revenue's dismissal of the plaintiff's suit was set aside; the earlier decrees in favour of the plaintiff (granting him co-sharer status to the extent of half and entitlement to partition) were vindicated by this writ Court's order.
The Board's grounds for dismissal — (a) treating the vendees' possession as adverse and applying a three-year limitation; (b) treating non-impleadment of the State as fatal; and (c) allowing an objection to proof of the sale deed in second appeal — were held to be erroneous.
The petitioner was awarded costs of the writ petition.

Broader implications:

The opinion applies established principles about the rights of co-tenureholders and appellate limitations on raising objections to documentary proof. The Court did not purport to lay down a novel rule of law beyond its application of these principles to the facts; accordingly, the decision primarily affects the parties before the Court by quashing the Board's reversal rather than announcing a new precedent.

Petition allowed.

Show all summary ...

S.N Singh, J.:— This petition under Art. 226 of the Constitution arises out of a suit instituted by the plaintiff petitioner under Sec. 176 of the U.P Zamindari Abolition and Land Reforms Act.

2. The facts giving rise to this petition are that Mohammad Hanif and Abdul Majid were two co-bhumidhars of the land in suit in equal shares. Mohammad Hanif sold his half share to the defendants opposite parties Mir Ahmad, Shaukat, Nizamjuddin and Mohammad Ail. It appears that the other co-tenureholder Abdul Majid executed an agreement to sell his half share of the property in favour of the plaintiff petitioner. Thereafter he did not execute the sale deed with the result that the plaintiff petitioner had to institute a suit for specific performance of the contract. That suit was finally decreed by the civil court and in pursuance of that decree on failure of Abdul Majid a sale deed was executed by the court on 25th September 1958. It is, after the execution of this sale deed by the court that the present suit was instituted by Ram Das for partition of his half share.

3. This claim of the plaintiff petitioner was contested by the vendees of Mohammad Hanif who alleged that they had entered into possession over half share by virtue of a sale deed executed in their favour by Mohammad Hanif and that over the other half they entered into possession by virtue of an agreement to sell by Abdul Majid on 12th April 1955. It was alleged that Abdul Majid having accepted Rs. 100/- as advance had put the vendees in possession over the other half belonging to Abdul Majid. They further alleged that in accordance with the agreement the vendees had to pay a further amount of Rs. 300/- to get the sale completed. According to the defence since the defendants had entered into possession over the disputed property after having advanced Rs. 100/- they were entitled to the benefit of Sec. 164 of the U.P Zamindari Abolition and Land Reforms Act and an alternative case was also set up that in any case the defendants were in possession from 1361 F. onwards and their possession being otherwise than in accordance with law they prescribed a title as a sirdar over the other half share of Abdul Majid.

4. On the pleadings of the parties relevant issues were framed and the first two revenue courts decreed the plaintiff's suit holding that by virtue of the sale executed by the court in favour of the plaintiff petitioner he became a co-sharer to the extent of half and was entitled to the division claimed. The plea of the defendants that they had entered into possession by virtue of an agreement on the advancement of Rs. 100/- was negatived. The concurrent finding of the two first courts was that the defendants had entered into possession after the execution of the sale deed in respect of half of the property in their favour. The plea of limitation raised by the defendants was over ruled on the ground that possession of one co-tenureholder was possession of other since ouster had not been proved the suit was well within time.

5. The defendants preferred an appeal before the Board of Revenue. The Board of Revenue set aside the two concurrent decisions and dismissed the suit. The Board, however, accepted the findings of the two courts below that the vendees of Mohammad Hanif, that is the contesting defendants entered into possession over the entire property belonging to Mohammad Hanif and Abdul Majid after the execution of the sale deed in their favour on 25th April 1955. The Board further accepted the concurrent findings of the two courts below that the vendees did not enter into possession by virtue of an agreement as alleged by the contesting defendants. It, however, dismissed, the suit of the plaintiff on the ground that the plaintiff had entered into possession in the year 1362 F. and vendees possession was adverse to the plaintiff and since the suit had been instituted more than three years after entering, into possession of the vendees it was time barred. The Board further held that the U.P State being a necessary party non-impleadment of U.P State also made the suit non-maintainable. The last point found against the plaintiff petitioner was that the plaintiff had instituted the suit on the basis of a sale deed executed by the court and had not proved the document in accordance with law.

6. The petitioner has filed the present writ petition and challenged the decision of the Board of Revenue as manifestly erroneous on the face of the record. On a previous occasion I had heard this writ petition and had heard the petitioner's learned counsel and Sri Sharafat Husain holding the brief of Sri Mawaziz Abbas. After having heard the learned counsel I had directed the petitioner to file the decree of the suit decreeing the claim of the petitioner for specific performance of the contract in order to see whether all the vendees defendants were parties to the suit for specific performance of the contract. The said document although not filed was shown to me at the time of the hearing of this writ petition and it disclosed that all the defendants vendees were not parties to the suit for specific performance of the contract.

7. When this case was taken up for hearing yesterday the learned counsel for the petitioner was heard. Sri Tripurari Nath one of the counsel for the opposite parties made a statement that he had no instructions in the case. No other counsel appeared to oppose the petition with the result that I had not the advantage of hearing the learned counsel for the opposite parties any further after the arguments of the petitioner's counsel had closed.

8. After hearing the learned counsel for the petitioner I am of opinion that this petition should succeed. The facts stated above would show that there were two co-tenureholders Mohammad Hanif and Abdul Majid. Mohammad Hanif's share was purchased by the contesting defendants who according to the findings of fact recorded by the revenue courts entered into possession over the entire property belonging to Mohammad Hanif and Abdul Majid. The question for determination is as to whether this possession of the vendees was, lawful or otherwise than in accordance with law. A co-sharer unless there is a division of that property is entitled to half of every inch of the plot. Therefore, if the vendees entered into possession of the property it cannot be said that their possession was otherwise than in accordance with law. The Board of Revenue has dismissed the suit on the ground that the possession of the defendants was adverse to the, plaintiff. There appears to be some confusion when the Board says that the possession of the vendees was adverse to the plaintiff when the plaintiff had not come on the scene at all. At the time when the vendees entered into possession it was Abdul Majid who was the other co-tenureholder and it had not been shown as to whether the defendants entered into possession in spite of the protest by Abdul Majid. The Board of Revenue had not at all considered whether the possession of the defendants vendees was without the consent of Abdul Majid or not. A suit under Sec. 209 of the U.P Zamindari Abolition and Land Reforms Act is a suit for ejectment of a person who is in possession otherwise than in accordance with law and also without the consent of the bhumidhar, sirdar or asami as the case may be. In the case of a co-tenureholder there cannot be his ejectment by another co-tenureholder the other co-tenureholder can get a decree for joint possession only and further his possession cannot be said to be otherwise than in accordance with law because he has a right to be in possession by virtue of his title as a co-tenureholder. In order to establish his possession as otherwise than in accordance with law it has to be proved that he was in possession over the share of the other without his consent which has not been proved in this case. The language of Sec. 205 of the U.P Zamindari Abolition and Land Reforms Act is similar to the language of Sec. 180 of the U.P Tenancy Act before the amendment by Act X of 1947. Before this amendment this Court always held that a co-sharer could not be ejected under Sec. 180 of the U.P Tenancy Act on the suit of another co-sharer, the proper remedy was held to be a suit for joint possession in civil court or partition. After the amendment of this section by Act X of 1947 the situation changed in view of the explanation I added to the section. Since the language of Sec. 209 of the U.P Zamindari Abolition and Land Reforms Act is similar to the unamended Sec. 180 of the U.P Tenancy Act in my opinion a suit by one co-tenureholder against another co-tenureholder cannot lie under Sec. 209 of the U.P Zamindari Abolition and Land Reforms Act. If such is the position in law the right of a co-tenureholder cannot be said to have been extinguished by lapse of three years. To such a case in my opinion twelve years period of limitation will apply in order to extinguish the right, of such a co-tenureholder. In this case the Board appears to have committed a mistake in applying three years rule of limitation. Since in my opinion Sec. 209 of the U.P Zamindari Abolition and Land Reforms Act did not apply to the facts of such a case the right of Abdul Majid did not extinguish by the vendees remaining in possession for three years. Firstly because such a suit as already stated above did not lie under Sec. 209 of the U.P Zamindari Abolition and Land Reforms Act. Secondly it has not been proved in this case that the vendees entered into possession without the consent of Abdul Majid the other co-tenureholder. The first two courts in my opinion were right in holding that the possession of one co-tenureholder could not be accepted to be adverse unless ouster was proved, the Board in taking a contrary view has erred in law.

9. The second point which the Board has decided against the petitioner is that the petitioner did not implead the State of U.P as a party to the suit. It was observed by the Board that in a case where rival question of tenureholdership is involved U.P State was a necessary party. It may be said that U.P State in such cases may be a proper party but there was no statutory provision for imp-leading the State of U.P in a case under Sec. 176 of the U.P Zamindari Abolition and Land Reforms Act. In absence of such statutory provision it can only be said that the state was a proper party and non-impleadment of the U.P State could not be held to be a fatal defect.

10. Coming to the last point which the Board has decided against the petitioner it has to be remembered that after the filing of the sale deed in court the two courts the trial court as well as the first appellate court, acted upon the document without any objection by the defendants. No objection was taken by the defendants in the trial court nor in the first appellate court about insufficiency of proof of the document in such circumstance it was not open to the Board in second appeal to have allowed the defendants to take this plea. Learned counsel for the petitioner has very rightly relied on Behari Lal v. Amin Chand and Allah Bande A.I.R 1924 Alld. 918., Ajodhya Prasad Dube v. Mahabir A.I.R 1935 Alld. 293 at p. 294. and Gopal Das v. Sri Thakurji A.I.R 1943 P.C 83 at p. 86. for the proposition that such an objection cannot be taken in appeal much less in second appeal. The document accepted being a registered document and executed by the court and acted upon by the first two courts could not be held to be inadmissible for lack of proof. If the defendants had taken that objection the formal proof would have been offered in the first court. This in my opinion could not be a ground for reversing the judgment of the two courts as held in the above cases cited by the learned counsel for the petitioner.

11. For the reasons given above it is clear that the Board has committed a mistake apparent on the face of the record in reversing the judgment of the two courts below. Accordingly this petition succeeds and the judgments of the Board dated the 18th of January 1963/29th of January 1963 is hereby quashed. The petitioner is entitled to his costs of this petition.