HIGH COURT OF JUDICATURE AT ALLAHABAD (Judgment reserved on 23.08.2011) (Judgment delivered on 30.08.2011) Court No. - 19 Case :- WRIT - B No. - 11759 of 1996 Petitioner :- Smt. Phekni Respondent :- Board Of Rev.,U.P. At Allahabad And Others Petitioner Counsel :- A.B.Singh Respondent Counsel :- S.C.,R.C. Singh WITH Case :- WRIT - B No. - 11760 of 1996 Petitioner :- Smt. Molna And Others Respondent :- Board Of Rev.,U.P. At Allahabad And Others Petitioner Counsel :- A.B.Singh Respondent Counsel :- S.C.,R.C. Singh WITH Case :- WRIT - C No. - 13724 of 2000 Petitioner :- Smt.Molna Devi & Another Respondent :- D.J.& Others Petitioner Counsel :- G.N.Verma,A.B. Singh Respondent Counsel :- C.S.C.,Dhirendra Pratap Singh,K.K. Mishra,O P Singh,R.C. Singh,S N Singh Hon'ble Sibghat Ullah Khan,J.
Heard learned counsel for the parties.
Smt. Fekani was tenure-holder of some agricultural land. She executed a sale deed on 16.12.1986 of the same in favour of her two daughters, Smt. Molna Devi and Smt. Rambha Devi, who are petitioners in the second and third writ petitions. Smt. Fekani (or Phekani) was petitioner in the first writ petition. She died on 25.12.2007. Both of her daughters have been substituted at her place.
After execution of the sale deed dated 16.12.1986, Ram Preet Viswakarma, respondent No.4 in the first and second writ petitions and respondent No.3 in the third writ petition filed suit under Section 229-B of U.P.Z.A. & L.R. Act on 22.12.1986, i.e. after six days of execution of the sale deed. (Suit No.520 or 620) In the suit on 15.01.1987, a compromise was filed purporting to be on behalf defendant Fekani. According to the said compromise Smt. Fekani had received some amount and agreed for declaration in favour of the plaintiff Ram Preet. The suit was decreed on the basis of compromise by S.D.O. Sadar, Gorakhpur on 30.01.1987. On 07.03.1988, a restoration application was filed purporting to be on behalf of Fekani. However she later on denied to have filed any such restoration application. The restoration application was dismissed in default on 05.10.1988, against which an appeal was filed, which was also dismissed in default on 24.09.1988. Smt. Fekani again denied to have filed any such appeal.
On 08.09.1988, a second restoration application was filed in the suit by Smt. Fekani which according to her was her first restoration application. She also filed an application on 07.01.1991 for recalling the order dated 10.05.1988 through which earlier restoration application purporting to be on her behalf had been dismissed in default. She also filed similar restoration application in appeal for setting aside the dismissal in default order of appeal dated 24.09.1988. On 23.01.1991, appellate court allowed the restoration application of Smt. Fekani dated 07.01.1991. However on the same date appeal was dismissed on the ground that according to Smt. Fekani, she had not filed the appeal. On 29.06.1991, S.D.O. dismissed the restoration application (second restoration application) filed by Smt. Fekani.
The daughters of Smt. Fekani, i.e. Smt. Molna Devi and Smt. Rambha Devi, had also filed restoration application before the S.D.O./ Trial Court. The said application was also dismissed on 29.06.1991 by the same order on the ground that they were not parties in the suit.
Additional Commissioner, Judicial Gorakhpur Division, Gorakhpur on 22.12.1993 dismissed the appeals (No.550 to 553, all of 1991), which had been filed by Smt. Fekani and her daughters against the order dated 29.06.1991. Against the appellate order Smt. Fekani and her daughters filed second appeals before the Board of Revenue, U.P. at Allahabad (Second Appeal No.4 of 1993-94), which was dismissed on 17.11.1995 against which first and second writ petitions are directed.
Meanwhile, Smt. Molna and Smt. Rambha, daughters of Smt. Fekni also filed a civil suit for declaration that the decree passed under Section 229-B of U.P.Z.A. & L.R. Act on the basis of a forged compromise was not binding upon the petitioners. Suit was filed on 28.02.1996 (O.S. No.315 of 1996). A preliminary objection was raised in the civil suit regarding its maintainability which was rejected by the trial court on 26.11.1999 (First Additional Civil Judge, Senior Division, Gorakhpur). Against the said order, Ram Preet, defendant in the suit filed Civil Revision No.266 of 1999, which was allowed by District Judge, Gorakhpur on 18.12.1999. Said order has been challenged through the third writ petition. The revisional court held that only revenue court had got jurisdiction to try the suit. With the said view, I fully agree. If a person challenges a decree passed by a revenue court, then the same may be challenged before the revenue court itself.
In Para-2 of the first writ petition, it has been stated that after execution of sale deed dated 16.12.1986, the name of the vendees, i.e. Molna and Rambha were mutated in the revenue records. Ram Preet, respondent No.4 in the writ petition has filed counter affidavit. In Para-17 of the counter affidavit, the fact of mutation of the names of defendants after sale deed dated 16.12.1986 has not been denied. The only thing which has been stated is that the sale deed executed by the petitioner of the said writ petition (Smt. Fekani) in favour of respondents No.8 & 9 (her daughters) is forged and a fabricated document. No detail has been given how it is forged or fabricated. It has not been stated that Smt. Fekani did not execute the sale deed.
Under Section 18 of Evidence Act which is quoted below, admission of a party is admissible only if it is made during continuance of the interest.
"18. Admission by party to proceeding or his agent.-
Statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorized by him to make them, are admissions.
by suitor in representative character. - Statements made by parties to suits suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character.
Statements made by -
(1) by party interested in subject matter.- Persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding and who make the statement in their character of persons so interested; or (2) by person from whom interest derived.- persons from whom the parties to the suit have derived their interest in the subject-matter of the suit, are admissions, if they are made during the continuance of the interest of the persons making the statements."
Smt. Fekani had executed sale deed in favour of Smt. Molna and Smt. Rambha on 16.12.1986. Accordingly, even if she entered into compromise with Ram Preet in the revenue suit on 15.01.1987 as alleged by him still it was utterly meaningless and under no circumstances binding upon Smt. Molna and Rambha.
Moreover, in the alleged agreement dated 15.01.1987, it was mentioned that Smt. Fekani after receiving some amount from Ram Preet agreed for declaration in his favour. If the property is transferred in lieu of money then it is out and out-sale and immovable property cannot be sold except through registered sale deed. Accordingly, on this score also the said agreement even if entered into was illegal.
Even the appellate court/ Additional Commissioner, Judicial, Gorakhpur Division, Gorakhpur in its judgment dated 22.12.1993 passed in Appeals No.550 to 553, all of 1991, copy of which is Annexure-VIII to the first and second writ petitions held that Smt. Molna and Rambha were not parties in the suit, hence there was no need to decide their cases.
Accordingly, third writ petition is dismissed. First and second writ petitions are disposed of with the direction that the compromise decree dated 30.01.1987 shall not be treated to be binding upon Smt. Molna and Smt. Rambha and their names shall be recorded/ continued to be recorded in the revenue records over the agricultural land in dispute and they must be treated to be bhoomidhars of the same and no one shall interfere in their possession.
Order Date :- 30.08.2011 NLY