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IN THE HIGH COURT OF ALLAHABAD
N. N. SHARMA
BHAGGAL - Appellant
Versus
RANGI LAL - Respondents
Second Appeal 2509 Of 1974
Decided On : 08/29/1985
PARTITION - PRIVATE PARTITION - MEMORANDUM OF PARTITION - REGISTRATION - NOT REQUIRED - U.P. ZAMINDARI ABOLITION AND LAND REFORMS ACT, 1950 - SECTION 210 - BHUMIDHAR - POSSESSION - EVIDENCE - WELL SUNK BY PLAINTIFFS - EXCLUSIVE POSSESSION - BONA FIDE PURCHASERS - DEFENDANTS NOT BONA FIDE PURCHASERS - CANCELLATION OF SALE DEED AND LEASE DEED - SUIT FOR - DECREE - APPEAL - DISMISSED.
Fact of the Case:
Plaintiffs filed a suit for cancellation of a sale deed and a lease deed executed by defendants 1 to 8 in respect of the disputed property, claiming to be the owners of the property as transferees from Smt. Aminunnisa, widow of Azmat Ali, by virtue of a registered sale deed executed in their favor on 18-1-1958. The defendants claimed to be bona fide purchasers for value and also claimed the benefit of S. 41 of the Transfer of Property Act.
Finding of the Court:
The trial court and the lower appellate court found that the plaintiffs were in exclusive possession of the disputed property as Bhumidhars, that the documents procured by defendants 1 to 8 were bogus, and that the defendants never remained in possession of the disputed holding. The courts also found that the plaintiffs had sunk a well in the disputed holding and that they were the bona fide owners of the property.
Issues: 1. Whether the certified copy of the sale deed executed by Majid Ali in favor of Azmat Ali was validly proved and acted upon. 2. Whether the memorandum of partition (Ext. 1) showing the disputed holding as having fallen in the lot of Syed Azmat Ali required registration. 3. Whether the defendants were bona fide purchasers for value. 4. Whether the plaintiffs were entitled to the benefit of S. 210 of the U.P. Zamindari Abolition and Land Reforms Act, 1950.
Ratio Decidendi: 1. The certified copy of the sale deed executed by Majid Ali in favor of Azmat Ali was validly proved and acted upon as it was a registered instrument and its execution was not disputed by the executant. The presumption under S. 90a of the Evidence Act was not applicable as the sale deed was not the basis of the suit but only a piece of evidence relied on by the plaintiffs to trace out the source of title of their predecessor-in-interest. 2. The memorandum of partition (Ext. 1) showing the disputed holding as having fallen in the lot of Syed Azmat Ali did not require registration as it was merely a memorandum containing the lots of plots which fell in the share of Azmat Ali and did not create any title in his favor. 3. The defendants were not bona fide purchasers for value as they had not paid any consideration for the sale deed and lease deed executed in their favor and they were fully conversant with the title and possession of the plaintiffs over the property in dispute. 4. The plaintiffs were entitled to the benefit of S. 210 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, as they were in exclusive possession of the disputed property as Bhumidhars.
Final Decision: The appeal was dismissed and the decree of the trial court and the lower appellate court was upheld.
( 1 ) THIS is a defendants appeal directed against judgment and decree dt. 1-6-1974 recorded by Sri K. C. Asthana, learned Temporary Additional Civil Judge, Gorakhpur by which he dismissed Civil Appeal No. 219 of 1973 with costs and affirmed the judgment and decree dt. 14-5-1973 recorded by Sri A. H. Ansari, learned IVth Additional Munsif, Gorakhpur in Original Suit No. 1340 of 1968. The suit was decreed with costs by learned trial Court.
( 2 ) THE dispute relates to plots Nos. 297/2 area 2. 47 acres and 298 area 1. 28 acres situate in village Koliya Mohal, Mustqil Tappa Rate, Pargana, Bhauwapar, district Gorakhpur.
( 3 ) THE following pedigree, which was not controverted before me, shall be helpful for appreciating the point involved in this appeal :-
( 4 ) THE plaintiffs, who are own brothers, are transferees of the disputed land from Smt. Aminunnisa, widow of Azmat Ali by virtue of a registered sale deed executed in their favour of 18-1-1958 (Ext. 14 ).
( 5 ) THIS holding belonged to Ehsan Ali, who was the owner of village Koliya where the plots in suit lie.
( 6 ) AFTER the death of Ehsan Ali, his four sons, namely, Nisar Ali, Sajid Ali, Azmat Ali and Majid Ali, became owners of the Khewat and share of each son was 1 anna 7 pies 1 khums. In 1930, Majid Ali transferred his share to Sri Azmat Ali who became owner of the share of Majid Ali also vide sale deed paper 21c. It is a certified copy of a registered document.
( 7 ) BY virtue of a private partition amongst the three remaining sons of Ehsan Ali, the plots in suit fell in the lot of Azmat Ali vide Ext. 1 dt. 21-10-1931.
( 8 ) THUS, after the death of Azmat Ali in 1946, Smt. Aminunnisa remained in sole possession as owner over this khudkasht and after abolition of Zamindari, she became its Bhumidhar. Aminunnisa sold this Bhumidhari to plaintiffs by virtue of a sale deed dt. 18-1-1958.
( 9 ) HOWEVER, on account of the mistake of Lekhpal, the names of other co-sharers also continued in the revenue papers over the plots in dispute. Plaintiffs also sunk a well over plot No. 297/2 in 1967 at their own expenses. It was also averred in the alternative that plaintiffs by virtue of their possession also became Bhumidhars of the land in dispute vide S. 210 of U. P. Zamindari Abolition and Land Reforms Act.
( 10 ) THE defendants 1 to 8, the co-villagers who were fully conversant with the title and possession of plaintiffs over the property in dispute, procured a sale deed about the disputed property in their favour from defendants 9 to 11 on 27-11-1968 to the extent of 1/4th share. A perpetual lease was also procured by these defendants from defendant No. 12 to the extent of 3/16th share in the said property.
( 11 ) THUS, the relief sought was for cancellation of the aforesaid sale deed dt. 27-11-1968 and the lease deed dt. 28-11-1968 relating to the land in dispute.
( 12 ) TWO sets of written statements were filed raising similar pleas. The factum of partition in the family was denied; it was also denied that Majid Ali sold his share by registered sale deed to Azmat Ali. In the alternative, it was pleaded that the aforesaid transactions were fictitious and were not acted upon by the parties themselves nor entries in the revenue records were made according to plaintiffs case.
( 13 ) SAJID Ali sold his share to Mustafa and Kamil. On the death of Mustafa, his 1/8th share was inherited by his daughter Mahbuba and daughters son Obedulla. Kamil, on the other hand, created a Waqf of this property appointing Obedulla his Mutwalli. Obedulla and Mahbuba were beneficiaries under it. So defendant No. 12 was competent to execute the lease.
( 14 ) IT was further pleaded that after the death of Majid Ali, his son Rafikul alias Rafiulla became owner and the plaintiffs themselves got a sale deed executed in respect of Rafikuls share on 28-11-1968 even though they alleged that the sale deed was obtained in favour of the mother of plaintiffs. Thus the suit was barred by estoppel and ac
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