Smt. Banshpati Devi vs Board of Revenue and Others

Prakash Krishna, J.—This is defendant''s writ petition. It arises out of a suit instituted u/s 229B of the U.P.Z.A. & L.R Act (hereinafter referred to as an Act) by the respondent No. 2 against the petitioner and others being suit No. 63 of 1979. The said suit was filed on the pleas inter alia that the land in dispute belonged to Bhamman who was Sirdar thereof. The plaintiff respondent claimed himself as son of Bhamman who died on 11.2.1972 leaving behind him his widow Smt. Taufaniya. Taufaniya was also one of the defendants in the suit. The present petitioners are the purchasers of the land in dispute from Taufaniya. It was pleaded that on 1st of February, 1972 Bhamman who was an illiterate person had executed a gift deed in favour of the plaintiff namely Kanchhid (Plaintiff) and Sukkha Singh in respect of a land other than the disputed one. Sukkha is, admittedly, brother of Mst. Taufaniya. In nutshel, Kanchhid claimed the property being son of Bhamman.

The said suit was contested by Taufaniya and the present petitioners on the pleas inter alia that after death of Bhamman, the plaintiff and Taufaniya both applied separately for mutation of their names in the Revenue record over the land in question. Ultimately, a compromise was arrived at in between Kanchhid and Taufaniya in the mutation proceedings and the plaintiff Kanchhid agreed that the land be mutated in the name of Smt. Taufaniya. The said compromise was accepted by the Revenue Court and it was ordered accordingly. It was also pleaded that Kanchhid (plaintiff) is not son of deceased Bhamman and therefore, he is not entitled to succeed.

Another set of defendants were Chunni, Bhajjan and Mangala, the respondent Nos. 3 to 5 herein, claimed the property on the basis of agreement to sell in their favour by Smt. Taufaniya. They having lost from both the trial Court and the First Appellate Court, have left the scene. The decree against them has attained finality.

The parties led evidence in support of their respective cases. As many as seven issues were framed by the trial Court. Evidence was led oral and documentary. The trial Court decreed the suit by its judgment and decree dated 30th of July, 1979 holding that the plaintiff is son of Bhamman as is evident from the birth register dated 8th of May, 1950 and also from the admission of Bhamman in the registered gift deed dated 1st of February, 1972. The said gift deed was in respect of a property other than the property in dispute. The decree of the trial Court was challenged in appeal No. 354 of 1979. Chunni and others also filed appeal No. 410 of 1979. Both the appeals were heard together and were decided by the Additional Commissioner, Meerut Division, Meerut by a common judgment dated 14th of July, 1981 whereby the judgment and decree of the trial Court was reversed and the suit filed by Kanchhid was dismissed in toto. The appeal filed by Chunni and others was dismissed. Kanchhid carried the matter before the Board of Revenue in second appeal No. 123 of 1980-1981. The second appeal has been allowed by the impugned judgment and order dated 19th of September, 1991.

The learned Counsel for the petitioners submits that before the Second Appellate Court the only issue which was involved was whether Kanchhid is the son of Bhamman or not. The Second Appellate Court could interfere with the finding recorded by the First Appellate Court on the said issue on limited grounds namely if some relevant material has been ignored by the First Appellate Court or the finding of the First Appellate Court is based on some inadmissible evidence. The Second Appellate Court could not reappreciate the evidence while hearing the appeal u/s 100 C.P.C. nor it could reverse the finding of fact recorded by the First Appellate Court by taking a view other than one taken by the First Appellate Court. Elaborating the argument, it was submitted that there is no evidence worth the name on record to show that Kanchhid is the son of Bhamman. The finding recorded by the First Appellate Court on the above issue is well considered finding and could not have been disturbed in the second appeal. Secondly, the judgment of the Second Appellate Court is no judgment in the eyes of law as it is based on presumptions and assumptions. It, without discussing the evidence on record has allowed the appeal only taking into consideration one or two circumstances and by ignoring the other vital aspects of the case. The gift deed dated 1st of February, 1972 which is not in dispute has been misconstrued and misunderstood by the Second Appellate Court. There is no such admission in the gift deed by Bhamman accepting Kanchhid as his son. The learned Counsel for the contesting respondent, on the other hand, submits that the Second Appellate Court has in effect confirmed the judgment of the trial Court which is well considered judgment and was wrongly reversed by the First Appellate Court. He submits that the gift deed dated 1st of February, 1997 executed in favour of Kanchhid and Sukkha jointly and the entry made in Parivar Register and the extract of 1356 Fasli support the case of Kanchhid that he is son of Bhamman. It was also argued that admission or compromise made during the mutation proceeding, in view of the Division Bench decision of this Court in Bhure v. Peer Baksha 1973 ALJ 312 has no relevance in regular title proceeding.

Considered the respective submissions of the learned Counsel for the parties and perused the record. The main points mooted in the present petition are - (1) Whether the Board of Revenue was justified in upsetting the factual findings arrived at by the lower appellate Court? and (2) Whether the plaintiff has established his case for grant of decree as claimed?

It is essential to have a look to the plaint in brief. In the plaint the petitioner has shown his age as 23 years in the array of the parties. It has been pleaded that Bhamman son of Ramali was the recorded Sirdar of the plots in dispute who died on 11.2.1972 and at that time the plaintiff was the sole heir. After death of Bhamman -the plaintiff, defendant No. 1 - Mst. Taufaniya, defendant No. 2 -- Chunni and defendant No. 3 -- Mangala filed separate applications for mutation. The plaintiff is an illiterate person and the defendant Nos. 1, 2 and 3 in collusion with the plaintiff''s advocate filed an application after obtaining his thumb impression without his knowledge. The order of mutation passed by Tehsildar will have no adverse effect on the right of the plaintiff. Thereafter, a reference has been made to some sale deed that was got executed by the defendant No. 1 and defendant Mo. 2 with a view to cause unlawful loss to the petitioner. The defendants failed to remove their possession from the land in question and also paid no heed to the request of the plaintiff to get the revenue record corrected. The suit has been filed after giving a notice u/s 180 of C.P.C. and Section 106 of the Panchayat Raj Act.

This is all which has been pleaded in the plaint by Kanchhid. It is interesting to note that in the entire plaint there is no whisper even remotely that Kanchhid (plaintiff) is the son of Bhamman. Except making a vague allegation that he is sole surviving heir of Bhamman, there is no plea about his legal title to the property in dispute. The plaint is defective being vague. In oral evidence Kanchhid took a different stand. He came out with a case that his mother Ram Dei was earlier marriged to one Umrao and after death of Umrao, she remarried to Bhamman by Karao marriage and from this wedlock he was born, a case which was not pleaded at all in the pleadings. It is axiomatic to note that no such plea has been set out in the plaint. The plaintiff''s evidence is at variance with the pleadings.

The plaintiff produced birth register dated 8th of April, 1950 and gift deed dated 1st of February, 1972 which was executed by Bhamman in his favour jointly with Sukkha, brother in law of Bhamman. He produced Ramji Lal, Girdhari and Angal Singh. Angal Singh is son of umrao who has stated that his mother was Ramdei and father was umrao. After death of Umrao, his mother went to her paternal home where she entered into a contract of Karao, in other words, entered into Karao marriage with Bhamman and from the union of Bhamman with Ram Dei, Kanchhid (plaintiff) was born.

The defendants, on the other hand, produced voter list of village Alampur dated 17.12.1972 and voter list of the year 1973 and the family register of Umrao to show that Kanchhid is son of Umrao. The Trial Court proceeded to decide the issues by taking into consideration the fact that in the gift deed dated 1.2.1972, executed by Bhamman, Bhamman has admitted that Kanchhid is his son and therefore, Kanchhid is his heir. It also held that Kanchhid was born out of Karao marriage of Bhamman with Ram Dei. As regards the compromise, which was entered into between the parties before Tehsildar in mutation proceedings, it was held that the said compromise has no relevancy or bearing to the present proceedings u/s 229-B and 209 of the U.P.Z.A. & L.R. Act. The possession of the defendants was held to be unauthorised one.

The said judgment was challenged by way of appeal before the First Appellate Authority who reappreciated the evidence on record and after discussing the each and every aspect which was taken into consideration by the Trial Court, reversed it. The Appellate Court considered the gift deed dated 1.2.1972 and found that Kanchhid is not son of Bhamman. The said gift deed is dated 1.2.1972 and Bhamman expired shortly thereafter on 11.2.1972 i.e. within a period of ten days. The Appellate Court was of the view that normally a father does not gift a property to his son. The said gift deed does not relate to the property in question. In the gift deed only this much has been written that Kanchhid is son of self (Khud). The First Appellate Authority concluded that Bhamman was an illiterate person and he was not supposed to know as to what parentage of Kanchhid has been written therein. The said gift deed is surrounded by suspicious circumstances as few days thereafter Bhamman expired. The said gift deed was objected when presented for registration before the Sub Registrar, by Chunni, one of the defendants by filing an application before the Sub Registrar, as endorsed therein. In the said gift deed caste of Bhamman has not been written nor his parentage has been written.

It also took into consideration the other aspects of the case, such as (i) name of Kanchhid is recorded in the family register of Umrao son of Sheo Lal, (ii) it is shown that Kanchhid was born in the year 1944, (iii) the birth register dated 8th of April, 1950 does not relate Bhamman but it relates to Bhajjan, a different person and (iv) the said birth register was got issued from the record room on 2.2.1972 when Bhamman was alive and he died on 11.2.1972 and there was no dispute at that time and as such, there was no occasion for obtaining any such certified copy of the birth register. The very fact that extract of birth register was taken just before the death of Bhamman shows that the plaintiff Kanchhid was planning and making preparation by creating evidence to grab the property of Bhamman. With that view in mind, he surreptitiously in the gift deed dated 1st of February, 1972 got mentioned himself as son of Bhamman. It has also taken into consideration that although birth of plaintiff has been shown in the birth register as 8th of April, 1950 as well as in the birth register of 1944, which is not possible. Resultantly, it was held that the birth register filed by the plaintiff is a forged and fabricated document and has no relevancy. The Appellate Court has also considered the other aspect of the case. In the plaint, the plaintiff has not disclosed the name of his mother. The theory of Karao marriage of Smt. Ram Dei with Bhamman was rejected as name of Smt. Ram Dei was never recorded as wife in the family register of Bhamman nor her name was recorded in the voter list as wife of Bhamman. It also took into consideration that in the voter list the parentage of plaintiff has been mentioned as Umrao and not as Bhamman. Umrao had three sons Sheo Lal, Angan and Kanchhid, all residents of house No. 16. On the basis of family register, voter list and other materials on record, the Appellate Court reached to the conclusion that Kanchhid (plaintiff) has failed to prove that he is son of Bhamman. The evidence led by the defendants proved that the plaintiff is son of Umrao. The said view finds corroboration from the mutation proceedings wherein the plaintiff entered into a compromise with Smt. Taufaniya. The First Appellate Court has taken pains to make analytical analysis of the oral evidence led by the parties. It took into consideration the statements of the witnesses examined by the plaintiff and rejected the oral testimony on the ground that witnesses so produced failed to establish the Karao marriage of Ram Dei with Bhamman, as they are of very young ages. They could not depose about the alleged marriage, if any, of Ram Dei with Bhamman as, according to them, they were 12-13 years old. None of the family members, or close relatives of family or the family friend has been examined nor any such person was produced who could depose about the said Karao marriage between the mother of plaintiff and Bhamman. Thus, after taking into consideration the documentary and oral evidence as well, the Appellate Court reached to the conclusion that the factum of Karao marriage as alleged by the plaintiff is not proved on record. This is the sum and substance of the findings recorded by the First Appellate Court.

The Second Appellate Court by a laconic and cryptic judgment has allowed the second appeal and ventured to enter into the appreciation of evidence and that too in a summary manner. The second appeal has been allowed without discussing or considering the various aspects of the case noticed by the First Appellate Court, as noticed in brief in earlier part of its judgement.

To say least, the said approach of the Second Appellate Court is far from satisfactory. The Second Appellate Court was hearing appeal u/s 100 of C.P.C.. Whether Kanchhid is son of Bhamman or not, is essentially a question of fact. The finding could be reversed on such issue only on limited grounds well known to law.

The Board of Revenue proceeded to decide the second appeal as if the judgment of the First Appellate Court is based on the compromise arrived at in mutation proceeding and on the gift deed. Evidently, it is not correct. The First Appellate Court has considered a host of other material, all on record to arrive at a particular finding. It took into consideration that name of the plaintiff does not find mention in the family register of Bhamman. On the contrary, his name finds place along with his brothers in the family of Umrao. In the voter list also, parentage of plaintiff has been mentioned as son of Umrao. His address has also been shown as house No. 16 wherein his other brothers who are sons of Umrao are residing. The Karao marriage is not proved. The birth extract dated 8.4.1950 is not in respect of Kanchhid. Non consideration of these aspects by the Board of Revenue, vitiates its judgment.

The case of the plaintiff was that after death of Umrao, Smt. Ram Dei widow of Umrao entered into a Karao marriage with Bhamman and from this wedlock he was born. The theory of Karao marriage has been disbelieved, in absence of any cogent evidence, by the First Appellate Court. The Second Appellate Court has not even touched the said finding which means that the theory of Karao marriage as was set out by the plaintiff is not established. This is fatal to the plaintiff''s case. The case of the plaintiff is that he is born out of wedlock of Smt. Ram Dei with Bhamman. If Karao marriage itself is not proved, the plaintiff cannot claim himself as son of Bhamman at any rate. There is no explanation from his side as to how he has been shown as son of Umrao in the birth register and in the family register relating to Umrao. Also there is no explanation whatsoever how in the voter list his father''s name has been mentioned as Umrao. All these aspects of the matter have been very conveniently ignored by the Second Appellate Court.

There is another aspect of the matter yet. In the plaint nowhere it has been pleaded that he is son of Bhamman nor the fact that he was born out of Karao marriage of Bhamman with Smt. Ram Dei, finds place therein. Only in the array of the parties the parentage of the plaintiff has been shown as Bhamman. His age has been shown as 23 years. The plaint has been cleverly drafted. Except making a bald allegation in the plaint that his counsel colluded with the defendants during the mutation proceedings and he put his thumb impression on the compromise application, there is no corroborative material in support thereof. The pleading has not been supported by evidence. In the entire deposition the plaintiff has not said even a word about collusion of his advocate with Smt. Taufaniya.

Much emphasis was laid by the Trial Court and the Board of Revenue as well as by the counsel for the respondents herein, on the gift deed dated 1st of February, 1972 whereby Bhamman gifted certain piece of land of another village (not presently in dispute) to Kanchhid and his brother in law namely Sukkha. The said gift deed has been relied upon by Kanchhid solely for the purposes to show that in the said gift deed, Bhamman has mentioned the parentage of Kanchhid as of self (Khud). From the said fact, an argument has been tried to be built up that Bhamman has admitted that Kanchhid is his son. On a careful reading of the said gift deed, it would show that no such inference can possibly be drawn. The said gift deed has been drawn just like a Will. It has been stated that the executant of the gift deed is a man of age and can die at any time and therefore, the executant wants to make an arrangement of all his properties. The further averment is that Kanchhid Singh son of Khurd (self) and Sukkha Singh son of Hari Singh are residing with him and they have taken all his care and also helped him in agricultural operation and therefore, he is very happy with them and wants to give his entire property to them. After fully understanding the nature of transaction and with sound mental condition in full senses has executed the gift deed and they have accepted the gift. On a close reading of the said gift deed, evidently there is no mention that Kanchhid is his son or he was born and brought up by him treating him as his son. On the contrary, the averment in the gift deed is to the effect that Kanchhid along with Sukkha Singh is helping him in his work as also in the agricultural operation and therefore, he is very much pleased with them. These averments run to the contrary to the inference sought to be drawn by the learned Counsel for the respondents. The emphasis by the learned Counsel for the respondents is that in the gift deed the parentage of Kanchhid Singh has been described at one place as "Sri Kanchhid Singh son of Khurd (self)". That description is obviously incorrect and the executant namely Bhamman never intended to treat Kanchhid as his son. It is an acknowledged legal position that when a question of interpretation of a document arises, it should be read as a whole. One part of recital cannot be read in isolation, divorced with the context of the other parts. It must be remembered that the executant of the document namely Bhamman was an illiterate person and the document was drawn by some other person or deed writer. Also under Hindu Law, there is no such doctrine as doctrine of acknowledgment of paternity prevalent under Mohammedan Law. Assuming for the sake of argument that the parentage of Kanchhid Singh has been described as Khud (self), it will not lead to anywhere. There is no express averment in the entire document which runs into number of pages acknowledging Kanchhid as his son by Bhamman. On a reading of the document as a whole, at the most, it shows that Kanchhid and Sukkha had extended their helping hands to Bhamman. The other aspect of the case is that the inference which has been drawn by the First Appellate Court that the gift deed does not establish that Kanchhid is son of Bhamman is an inference which is plausible one. It cannot be said that the said inference is arbitrary or no such inference can possibly be drawn. It is also relevant to note that the validity of the gift deed is not in issue here.

In other words, the said document is not a document of title so far as the present suit is concerned. This being so, the interpretation of document or the inference to be drawn by such document cannot by any imagination be said to be a question of law. It was not open to the Board of Revenue while hearing a second appeal to have drawn a different inference from the said gift deed. The First Appellate Court has given weight to the gift deed it deserves. The Second Appellate Court has committed illegality in believing the artificial version of Kanchhid.

In Hero Vinoth v. Seshammal AIR 2006 SCW 2833, the Apex Court has held that it is now well settled that an inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law while interpreting the document, it is open to interference u/s 100 C.P.C.

In Balasubramanian and Others Vs. Ramaiah Thondaman, the Apex Court while reversing the judgment of High Court held that High Court committed serious error in interfering in the judgment of Lower Appellate Court and without adverting to the details considered by the Lower Appellate Court, second appeal could not have been allowed.

The Supreme Court has held that in a second appeal High Court can interfere only when the finding has been arrived at by ignoring vital evidence. No vital evidence has been shown to have been ignored by the First Appellate Court while arriving at the finding of fact. Therefore, in view of the judgment of the Apex Court in Udham Singh v. Ram Singh (2007) 15 SCC 529, the Board of Revenue was not justified in interfering with the finding recorded by the First Appellate Court. The Board of Revenue has not kept parameters of Section 100 of C.P.C. in view.

It may be noted here that by virtue of Section 341 of the U.P.Z.A. & L.R. Act, the provisions of C.P.C. 1908 have been made applicable to the proceedings under the U.P.Z.A. & L.R. Act. In Ashiq Ali and Anr. v. Board of Revenue and Ors. 2006 (101) RD 84 it has been held by this Court that in view of the amendment of Section 100 of C.P.C, substantial questions of law are required to be framed by the Board of Revenue. The same view has been taken in Ram Phal and Anr. v. State of U.P. and Ors. 2007 (102) RD 682. In this case, Section 331(4) of the U.P.Z.A. & L.R. Act which provides that a second appeal shall lie on any of the grounds specified in Section 100 of C.P.C from the final order or decree, passed in an appeal under Sub-section (3) to the authority, if any, mentioned against it in column 6 of the Schedule aforesaid, has been noticed.

In Sri Net Bharti and others Vs. Board of Revenue and others, the Court has considered the manner in which a second appeal u/s 100 C.P.C. has to be disposed of. It has been said that if the second appellate court is affirming the findings of first appellate court, general agreement with the finding recorded by the first appellate court, would be sufficient compliance of Section 100 C.P.C., but in those cases where the second appellate court is setting aside the findings of first appellate court is required to meet the reasons given by the first appellate court. It has been further held that the decisions rendered by the Supreme Court with reference to Section 100 C.P.C. dealing with the power and jurisdiction of High Court to dispose of a second appeal without framing substantial questions of law are equally applicable to the second appeals decided by the Board of Revenue under the provisions of the U.P.Z.A. & L.R. Act. It has been held that under the amended Section 100 C.P.C read with Sub-section (4) of Section 331 and Section 341 of the U.P.Z.A. & L.R. Act, existence of substantial question of law is sine qua non for exercise of power by the Board of Revenue in second appeals and such second appeals can be only heard and decided on the substantial question of law so formulated at the time of admission after affording opportunity to the respondent or respondents, as the case may be, to argue that the appeal does not involve such substantial question of law. It is true that before amendment of Section 100 C.P.C., a second appeal was entertainable on a question of law but after amendment, a second appeal is made entertainable by Parliament only on substantial question of law. The unambiguous expression "substantial question of law" used u/s 100, C.P.C. does not require any interpretation by Courts. It is thus crystal clear that question of law is not sufficient to entertain a second appeal unless such question of law partakes the shape of "substantial question of law".

Similar view has been taken in Pawan Kumar v. Board of Revenue 2007 (25) LCD 1120.

Taking into consideration the other provisions of the U.P.Z.A. & L.R. Act, as also earlier decisions of the Court, it has been held that in view of the judgment of the Apex Court in the case of Gian Das v. Gram Panchayat, Village Sunner Kalan and Ors. 2006 (101) RD 449, framing of substantial questions of law by the Second Appellate Court while deciding an appeal u/s 100 C.P.C. as amended is the requirement of law failing which the judgment is vitiated.

In view of the above discussion, I find that the order of the First Appellate Court was well considered order and it has been set aside by the Second Appellate Court without bothering about the glaring facts which have been highlighted in the order of the First Appellate Court. The Board of Revenue has travelled beyond the scope of Section 100 of C.P.C. and has committed mistake of law in reversing the finding of fact as to whether Kanchhid is son of Bhamman or not. On the evidence on record, I am satisfied that the plaintiff has failed to establish his case for grant of decree as claimed. The evidence produced by him is untrustworthy and was rightly discarded by the First Appellate Court. The plaintiff has failed to prove the Karao marriage of Smt. Ramdei with Bhamman and as such Kanchhid cannot be said son of Bhamman. The impugned judgment and order of Board of Revenue is faulty and cannot be allowed to stand. It is hereby quashed and the judgment and order of First Appellate Court is restored.

In the result, the writ petition succeeds and is allowed with cost of Rs. 10,000/- (Rupees Ten Thousand) payable by Kanchhid to the petitioners within a period of one month.