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2013 Supreme(All) 379
ALLAHABAD HIGH COURT
BEFORE : SUDHIR AGARWAL, J.
MOHD. MAHMUDUL HAQ ....Appellant
Versus
Smt. RAM RATI ....Respondent
(Second Appeal No. 1404 of 1977, decided on 4th February, 2013)
Counsel :
Ramesh Chandra Singh, R.C. Singh, G.K. Sahai, V.K. Gupta, Vijay Kumar Gupta and S.N. Sahai for the Appellant; V.B. Khare, R.U. Ansari, Rafiuddin Ansari,V.D. Ojha,V.K. Khare and Yasharth for the Respondents.
Headnote:U.P. Urban Areas Zamindari Abolition Act, 1956—Section 17—United Provinces Tenancy Act, 1938—Sections 3(10) and 16—U.P. Zamindari Abolition and Land Reforms Act, 1950—Section 3(14)—Graveyard—Nature of land—Plaintiff-appellants instituted original suit against defendant in respect of property in dispute referred as Qabristan on ground that it is ancestral and he is Zamindar and Mutawalli therof—One of issues before trial Court is whether land in suit is private graveyard or bhumidhari of defendant-respondent—Neither defendants could show that their predecessors were tenants or hereditary tenants nor could place anything in evidence to show that defendants succeed tenancy rights in respects to land in question under 1939 Act—As such status of defendant could have been at the best of a licensee and not otherwise—Lower Appellate Court having not addressed itself to the various statutory provisions dealing with this aspect has committed a patent illegality—In the instant case, since land in question formed part of municipal area, provisions of 1956 Act became applicable after its enforcement—Defendant-respondent could have acquired bhumidhari rights if he/she would have been hereditary tenant—No evidence was adduced by defendant to show that area was demarcated as agricultural and in absence of such evidence, no right could have accrued to the defendant—Admittedly, in municipal record disputed land was shown as Qabristan—Merely that the some part of disputed land is subsequently cultivated by some person, its nature would not have changed—Impugned judgment set aside—Matter remitted back. [Paras 14 to 18]
Hon’ble Sudhir Agarwal, J.—Heard Sri R.C.Singh, learned counsel for the petitioner. None appeared for the respondents though the names of Sri V.B. Khare, Sri V.D. Ojha, Sri Yasharth, Sri R.U. Ansari and Sri V.K. Khare have been shown in the cause list as counsel for the respondent. Sri Ansari, one of the several counsels for the respondent has sought adjournment on the ground of illness, which I declined to accept since it is an old matter pertaining to year 1977 and there are several other counsel to represent respondent. I accordingly proceed to hear this appeal ex parte.
2. Following four substantial questions of law were formulated by this Court:
“(i) Whether the admission made in the agreement dated 19.7.1946 by the Sukhinath (original defendant) was binding on Smt. Ram Rati widow of Sukhinath and admission marked as exhibit -2 not having been explained or rebutted, it was not only binding but conclusive and decisive of the matter?
(ii) Whether agreement Ex.-2 proved that the land in question was grave-yard and it was not legally open to Smt. Ram Rati defendant to go against the admission in that document when she claimed right in the land through Sukhinath defendant who executed the agreement?
(iii) Whether the land in dispute being Kabristan and so recorded in municipal record, it will remain Kabristan and it being also waqf property, its nature cannot be changed?
(iv) Whether the permissive possession of a licencee could turn into adverse possession particularly in view of the proved agreement dt 19.8.1946?”
3. The brief facts, which would be helpful to answer the aforesaid questions, as born out from record, are as under:
4. The plaintiff-appellant Mohd. Mahmoodul Haq instituted original suit No. 1258 of 1971 against defendant Sukhinath in respect to property in dispute, referred to as Qabristan, with boundary, situate at Mohalla Shah Maroof, City Gorakhpur.
5. The plaintiff’s case is that Qabristan is ancestral and plaintiff is Zamindar and Mutawalli thereof. The Qabristan bounded by walls on south-east and north. There also existed very old trees. On the south east corner of Qabristan, there is a house which belong to plaintiff. The defendant Sukhinath was permitted to reside in the house on the condition that he shall look after graves and grow vegetables on vacant land and whenever required, shall vacate the premises. The defendant, however, acted against terms and conditions on which he was licensed to reside, hence, the suit for possession and damage.
6. The original defendant Sukhinath died during pendency of the suit and Smt. Ram Rati and Smt. Chilhia, both claimed to be widows of Sukhinath, were substituted as defendants 1/1 and 1/3 respectively. The defendant No. 1/3 did not file any written statement but defendant No. 1/1 contested the suit filing her written statement. She disputed the claim set up by plaintiff and said that land in suit is not Qabristan. There are only two graves and it was not qualified to be a Qabristan. The trees are owned by Sukhinath and house was also built by him. The land was his ancestral tenancy and he was not a licensee, as alleged by the plaintiff. Consequently, she claimed that defendants are entitled to continue in possession in their own rights.
7. The suit was decreed for relief No. 1, 1(A) and 4 with costs vide Trial Court’s judgment and decree dated 3.7.1976. There-against Civil Appeal No. 239 of 1976 was filed by defendants 1/1 and 1/3. The lower Appellate Court i.e. Additional District Judge, Court No. 3, Gorakhpur, vide judgment and decree dated 5.5.1977, allowed the appeal, and, Trial Court’s judgment has been modified to the extent that plaintiff’s suit is decreed only for possession over the house in suit and piece of land lying to the west thereof. The judgment and decree of Trial Court as regards its Sahan and remaining land is maintained. But with regard to damage, the judgment of Trial Court has been reversed. The lower appellate Court has held that defe
