Resham Devi vs Board of Revenue, U.P. & Ors.

Vikram Nath, J.

This petition under Article 226 of the Constitution of India has been filed by Smt. Resham Devi, assailing the correctness of the judgments and orders dated 29.9.1981,11.5.1982 and 25.7.1985, passed by the respondent nos.3, 2 and 1 respectively, whereby the suit filed by Smt. Prema Devi for declaration as Bhumidhar of the land in dispute was dismissed but at the same time a direction was given that the name of the petitioner recorded in the revenue records be expunged.

The dispute relates to the agricultural property recorded in the name of one Bhoop Singh. On the death of Bhoop Singh, the name of the petitioner (his widow) was recorded over the land in dispute. One Prema Devi alleging herself to be the sister of Bhoop Singh and further alleging that the petitioner was not the legally wedded wife of Bhoop Singh, objected in the mutation proceedings. Mutation proceedings culminated in favour of the petitioner. Whereupon Prema Devi filed a suit for declaration under Section 229B of the U.P Zamindari Abolition and Land Reforms Act, 1950. Both the parties led evidence before the Trial Court. During the pendency of the suit Smt. Prema Devi died and her sons were substituted. The Trial court framed four issues. First issue was as to whether the plaintiffs were the sister''s sons of Bhoop Singh and were entitled to be declared as Bhumidhar. The second issue was as to whether the petitioner Smt. Resham Devi was the wife of Bhoop Singh and, therefore be entitled to succeed his estate. The third issue was as to whether the petitioner Smt. Resham Devi was the wife of one Babu Ram and if so its effect and fourth issue was as to what relief the plaintiffs were entitled.

The finding recorded after evidence was that Prema Devi or her sons, had failed to establish that Prema Devi was the sister of Bhoop Singh and as such neither Prema Devi nor her sons were entitled to be declared as Bhumidhar. On the second and third issues the Trial Court recorded a finding that the petitioner Smt. Resham Devi was the wife of Babu Ram.

In view of the finding recorded on the first issue, the fourth issue with regard to the relief to which the plaintiffs would be entitled, ought to have been decided in negative, holding that the plaintiffs would not be entitled to any relief and the suit ought to have been dismissed. However, the Trial Court went on to record that neither the plaintiffs nor the defendant were entitled to be declared as Bhumidhar and as Bhoop Singh died issueless and heirless, therefore the land in dispute vested in Gaon Sabha. Vide judgment and order dated 29.9.1981 the Trial Court directed while dismissing the suit that the name of the defendant Smt. Resham Devi be deleted from the revenue records and name of the Gaon Sabha be recorded. Against this judgment of the Trial Court, only the petitioner filed an appeal. No appeal was filed by the heirs of deceased Prema Devi. The Trial Court dismissed the appeal filed by the petitioner vide judgment and order dated 11.5.1982. Second Appeal filed by the petitioner was also dismissed by the Board of Revenue vide judgment and order dated 25.7.1985. It is against this judgment that the present petition has been filed.

I have heard Sri Siddhartha, learned counsel appearing for the petitioner, learned standing counsel and learned counsel for the Gaon Sabha. Despite the fact that the case was taken up in the revised call and has been showing in the additional cause list for the last several days, no one appeared on behalf of the private respondent no.5.

The submission advanced on behalf of the petitioner is firstly that once the plaintiff had failed to establish her case, the Trial Court had no option but to dismiss the suit and not to proceed any further. It is further submitted that there was no pleading nor any issue was framed with regard to the fact that Bhoop Singh had died heirless and that the land should be vested in the Gaon Sabha. It is further submitted that the courts below could not have gone beyond the scope of pleadings and the relief claimed in the suit. It is next submitted that even if the courts below could have examined the question further, the finding recorded by them that Smt. Resham Devi was not the legally wedded wife of Bhoop Singh but was the wife of Babu Ram, stood vitiated inasmuch as the courts below had placed reliance upon the statement of Smt. Resham Devi, alleged to have been given in mutation proceedings, which according to the learned counsel for the petitioner could not have been relied upon. It is further submitted by the learned counsel for the petitioner that the courts below ignored the relevant fact that Smt. Resham Devi was blind and, therefore, her statement alleged to have been given in the mutation proceedings, which she had denied in the declaratory suit, ought to have been ignored giving benefit to the petitioner Smt. Resham Devi on the ground of her disability.

On the other hand the learned standing counsel appearing on behalf of the State and the learned counsel appearing for the Gaon Sabha have submitted that the findings recorded by the courts below do not warrant any interference and the writ petition deserves to be dismissed.

Without going into the various submissions advanced on behalf of the petitioner, this petition deserves to be allowed for the following two reasons.

The learned counsel for the petitioner, with regard to his last submission that the statement given in the mutation proceedings could not have been relied upon in regular declaratory suit, has referred to a Division Bench decision of this Court in the case of Bhurey vs. Peer Bux and others, reported in 1974 Revenue Decisions (Suppl.) 259. This Court in paragraph 11 of the report, has clearly held that any admission or consent given in mutation proceedings, would not have any relevance in regular title proceedings. Para 11 of the said report is extracted herein below:

Reliance was also placed upon an admission of the predecessors of the respondents in the mutation proceedings. It is well established that any consent or admission made in mutation proceedings has no relevance in regular title proceedings. Consequently, the alleged admission of Ilahi Baksh or Ali Baksh is not admissible in the present title proceedings. The Deputy Director was in error in spelling out an exclusive title in Bhurey on the basis of these admissions.

In the present case also I find that the courts below have placed much reliance on the alleged submission of Smt. Resham Devi (petitioner), said to have been given in mutation proceedings that she was married to Babu Ram. Thus, the finding of the courts below placing reliance on the submission given in mutation proceedings stands vitiated.

In view of the aforesaid discussion the findings recorded that Smt. Resham Devi was the wife of Babu Ram, based upon an inadmissible evidence, cannot be sustained. Other than such evidence, there was no other material on record to show that Smt. Resham Devi was not the wife of Bhoop Singh or that she was the wife of Babu Ram.

It is further well settled that no suit could be brought for a negative declaration. The plaintiff can institute a suit for declaration of his own rights. However, he could not have instituted a suit that defendants be declared that they have no rights. In the process of determining the rights of the plaintiff, the court will also examine the rights of the defendants. However, where the plaintiff fails to establish his rights, the suit must necessarily fail and no further. The entries as they stood prior to the filing of the suit should be maintained. This is where the judgments of the courts below went off the track and beyond the scope. The Gaon Sabha or the State could have brought a suit against the petitioner after the judgments of the court below. In its absence the right of the petitioner as it stood prior to the institution of the suit should have remained intact.

In view of aforesaid discussion the writ petition deserves to be allowed. The impugned orders dated 29.9.1981, 11.5.1982 and 25.7.1985 to the extent they direct for expunging the name of the petitioner and vesting the land in suit in the Gaon Sabha are hereby quashed. The revenue entries as they stood at the time of filing of the suit shall stand restored.

Petition succeeds and is allowed as above.

However, there shall be no order as to costs.