R.K.Srivastava vs State Of U.P. & Others
2014 Latest Caselaw 7611 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Judgment reserved on: 16.09.2014
 
           Judgment delivered on: 16.10.2014 
 
Court No. - 21
 

 
FIRST APPEAL FROM ORDER  NO. - 154 OF 1994
 

 
Rama Kant Srivastava S/o late Sri Triloki Nath Srivastava
 
R/o House No. 1055, Sector-9, 
 
Indira Nagar, Lucknow 	
 
		                               ..............Appellant
 
Versus
 

 
1. State of U.P. Through the Secretary, Urban
 
    Development, Janpath, Lucknow.
 
2. Sri Bhag Chandra Jain
 
3. Sri Prakash Chandra Jain
 
4. Sri Vimal Chandra Jain
 
5. Sri Subhash Chandra Jain
 
    (All sons of Late Sri Harish Chandra Jain
 
     R/o 158, Seth Lalumal Jain Marg, Aliganj, Lucknow)
 
6. Master Sanjay (Minor)
 
7. Master Sandeep (Minor)
 
8. Master Sachin (Minor)
 
    (All sons of late Sri Subhash Chandra Agarwal
 
     R/o Subhash Bhawan, near Railway Mal Godown, 
 
     Daliganj, Lucknow through their mother and 
 
     natural guardian, Smt. Vineeta Agarwal)
 
9. Smt. Vineeta Agarwal @/o late Sri Subhash Chandra Agarwal
 
    R/o Subhash Bhawan, near Railway Mal Godown, 
 
     Daliganj, Lucknow
 
10.Sri Jagdish Prasad Agarwal S/o late Sri Dhumi Ram Agarwal
 
     R/o  Subhash Bhawan, near Railway Mal Godown, 
 
     Daliganj, Lucknow
 
11.Sri Kailash Chandra Jain S/o late Sri Ori lal Jain
 
     R/o Lachchu Lal Jain Raod, Hasanganj, Lucknow     
 
 ..............Respondents
 

 
Counsel for Appellant:- Ashish Chaturvedi
 
Counsel for Respondent:- C.S.C., A.P.S. Gaur, 
 

 
Hon'ble Vishnu Chandra Gupta,J.

Judgement

This first appeal from order has been filed against the final order dated 07.06.1994 passed by Presiding Officer, Nagar Mahapalika Tribunal in Misc. Case No. 262 of 1985 deciding a reference under section 30 of the Land Acquisition Act, 1894 (herein referred to as the 'Act') whereby the claim of the appellant for compensation in respect of Plot No. 1-M area 6 bighas, 3 bishwa and Plot No. 64/1-M area 2 bigha, 19 bishwa, 15 biswansi and Plost No. 64/9-M area 14 biswa, 15 biswansi situated in Village Kalli Paschim Pargan-Bijnor, Tehsil and District- Lucknow has been rejected and the claim of the respondents no. 2 to 11 has been accepted for the compensation.

For deciding this appeal, certain facts are necessary to be taken into consideration. One Shri Chandra Kishore Rastogi is recorded tenure holder of the aforesaid agriculture land. The aforesaid land has been acquired by issuing a notification under Section 4 read with Section 17 of the Act apart from other lands for establishment of Sanjay Gandhi Post Graduate Institute. When proceeding of determination of compensation was in progress before Special Land Acquisition Officer, it was found that though the name of Chandra Kishore Rastogi S/o Madan Lal is mentioned in the revenue papers but in the remark column against these plots the name of deceased Harish Chandra Jain substituted by Bhag Chandra Jain, Prakash Chandra Jain, Vimal Chandra Jain, Subhash Chandra Jain was recorded against Plot no. 1-M and Plot no. 64/9, the name of Jagdish Prasad Aggarwal and Subhash Chandra Aggarwal was also recorded against the Plot No. 64/1 area 2 bigha, 19 biswa, 15 biswansi and name of Kailash Chandra Jain and Ladhu Lal Jain has been recorded against remaining Plot no. 1 area 3 bigha, 1biswa, 10 biswansi.

During the course of determining of compensation, the appellant Rama Kant Srivastava also raised a claim for amount of compensation. Both respondents and appellant filed their respective claims before the Special Land Acquisition Officer (herein after referred to as 'S.L.A.O.') for the amount of compensation of aforesaid land. The claim of appellant was based on alleged usufructuary mortgage dated 10.11.1967. The copy of the unregistered document has been brought on record before the S.L.A.O. The same was also got proved by producing the evidence of PW-1 Gaya Prasad. On the contrary the respondents made their claim on the basis of three sale deeds executed by Chandra Kishore Rastogi the recorded tenure holder of the land in dispute in favour of the respondents no. 2 to 11. The sale deeds are dated 24.04.1982 and on the basis of sale deeds in the remark column the name of purchasers have been recorded. However, the name of Rama Kant Srivastava the appellant does not find place in the revenue records. Considering the dispute of amount of compensation determined among the appellant and respondents no. 2 to 11, the matter referred under Section 30 of the Act to the District Judge, Lucknow, who transferred the reference for decision to Presiding Officer, Nagar Maha Palika, Lucknow.

The Tribunal framed as many as 6 issues after considering the pleadings available on record, which reads as under:-

"1. Whether Bhag Chandra, Prakash Chandra, Subhash Chandra and Vimal Chandra sons of Harash Chandra Jain are entitled for the compensation of the plot No. 1-M area 3-1-10 as alleged by him?

2. Whether Kailash Chandra Jain is entitled for the compensation of the plot No. 1-M area 3-1-10 as alleged by him?

3. Whether Rama Kant Srivastava, O.P. is entitled for the compensation of the plot No. 1-M area 6-3-0 as alleged by him?

4. Whether the claim of Rama Kant Srivastava is barred U/S 49 of the C.H. Act? If so, its effect?

5. Whether the saledeed in favour of Harash Chandra Jain (deceased) and Kailash Chandra Jain are bogus deed and confer no right or title on them?

6. To what relief, if any, the parties are entitled?"

The Tribunal decided issue nos. 1, 2, 3 and 5 jointly and has held as under:-

"20. Thus from the above discussion I am of the opinion that Bhag Chandra Jain, Prakash Chandra Jain, Subhas Chandra Jain and Vimal Chandra Jain are entitled for the compensation of Khasra plot No. 1 are 3-1-10-0 and 64/9 area 0-14-5-0 and Jagdish Prasad Agarwal and Subhash Chandra Agarwal are entitled for the compensation of the Khasra plot No. 64/1 area 2-19-15-0 and Kailash Chandra Jain is entitled for compensation of the Khasra plot No. 1 area 3-1-10-0. I am also of the opinion that Rama Kant Srivastava has got no right or title to receive the compensation of the Khasra plot No. 1 area 6-3-0-0 and Khasra plot No. 64/3 area 3-17-0-0.

21. The above issues are decided accordingly."

The Tribunal while deciding the issue no. 4 has held as under:-

"23. In the circumstance I am of the opinion that the claim of Ram Kant Srivastava is also barred by the provision of Section 49 of the U.P. Consolidation of Holdings Act.

24. The above issue is decided accordingly."

The Tribunal while deciding the issue no. 6, the following findings were recorded which reads as under:-

"25. From the findings arrived on the different issues, I am of the opinion that Bhag Chandra Jain, Prakash Chandra Jain, Subhash Chandra Jain and Vimal Chandra Jain are entitled for the compensation of Khasra plot No. 1 area 31-1-10-0 amd 64/9 area 0-14-5-0 and Jagdish Prasad Agarwal and Subhash Chandra Agarwal are entitled for the compensation of the Khasra plot No. 64/1 area 2-19-15-0 and Kailash Chandra Jain is entitled for the compensation of the Khasra plot No. 1 area 3-1-10-0. I am also of the opinion that Ram Kant Srivastava has got no right or title to receive the compensation of the Khasra plot No. 1 area 6-3-0-0 and Khasra plot No. 64/3 area 3-17-0-0.

26. The issue is decided accordingly."

The Tribunal ultimately on the basis of aforesaid findings, answered the reference in the manner that the respondents no. 2 to 11 are entitled to get the compensation of the disputed property and claim of Rama Kant Srivastava (the present appellant) was dismissed. Aggrieved by the aforesaid award the present appeal has been filed.

I have heard learned counsel for the appellant Shri Ashish Chaturvedi as well as learned counsel for the respondents and also perused the written submissions given by the parties' counsel. I have also gone through the record of the appeal and the record of the Tribunal.

The facts of this case are that so far as the claimant of the appellant is concerned as per pleadings available before the S.L.A.O., the petitioner claimed compensation on the basis of an unregistered usufructuary mortgage dated 10.11.1967 wherein it has been mentioned that possession has been handed over to Rama Kant Srivastava over the property in dispute as a security of the loan of Rs. 1,500/-, which was taken by Chandra Kishore Rastogi. He also claimed possession. The appellant is also claiming title through adverse possession over the property in dispute and acquired title as owner thereof against the true owner. Another document of dated 25.06.1968 said to have been executed by Chandra Kishore Rastogi agreeing to sell the land in question to Rama Kant Srivastava in case he fails to repay the loan within 10 years was also placed on record of this appeal. This document does not fined place in the proceeding before the S.L.A.O. or before the Tribunal.

Both these documents are unregistered document though the market value of the land in question involved in these documents having market value is more than 100 Rupees.

In view of contents contained in the aforesaid documents, they are required to be compulsorily registered under the Registration Act. The name of appellant- Rama Kant Srivastava is not recorded in the revenue records.

The name of respondents no. 2 to 11 are recorded in the revenue records in place of true owner of the land in dispute namely Shri Chandra Kishore Rastogi on the basis of sale deed executed by him in favour of the respondents no. 2 to 11. These sale deeds were executed on 22.04.1982.

The declaration under Section 6 read with Section 17 of the Act was also issued on 06.03.1982 and the State Government has taken possession over the land in question on 31.03.1982 and the reference was made on 28.02.1983.

In view of the admitted facts the submissions of learned counsel for the parties have to be taken into consideration.

Learned counsel for the appellant submits that the possession was handed over by Chandra Kishore Rastogi to the appellant on 10.11.1967 when he executed a mortgage with possession as a security of loan of Rs. 1,500/-. Shri Chandra Kishore Rastogi by executing another document dated 25.06.1968 in the form of conditional sale that in case the amount of loan is not returned within 10 years, the document will be converted into sale and the right to get back the loan will not be available to Chandra Kishore Rastogi. It was further submitted that even if these documents are unregistered than in that event the possession should be treated as adverse against true owner and title has been matured by laps of statutory period of possession over the property in dispute and as such became their owner the owner. It was further submitted that the property in dispute was out of consolidation operation and filed in support of his contention form no. 23 Part-I having endorsement dated 22.04.1984 where it has been mentioned 'Chak Baahar' and on this score it has been contended that the land was out of consolidation operations. Therefore, the land fall outside the purview of the consolidation and he has not required to seek any declaration of his title in respect to the property in dispute from consolidation authorities. He further contended that the sale deeds executed by Chandra Kishore Rastogi in favour of respondents no. 2 to 11 are of dated 24.04.1982 when the possession of land in question was delivered to the State in pursuance of notification/declaration under section 6 of LA Act and as such, the sale deeds executed in favour of the respondents no. 2 to 11 a void-ab-intio and did not confer the title upon the respondents no. 2 to 11. In support of his contention learned counsel for the appellant relied upon the judgment of the Apex Court in case of S. P. Changalwariya Naidu (dead) through Lrs. Vs. Jagannath (dead) through LRs., 1994 (1) SCC 1 and submits that the sale deeds executed by Chandra Kishore Rastogi are based on fraud because he was not having any title on 24.04.1982 . He also relied upon another Judgment of Apex Court in case of M/s Jethmull Bhojraj Vs. State of Bihar and others, 1972 (1) SCC 714 wherein it was held that when the State took possession over the land acquired, the property vested absolutely in the Government free from all encumbrances.

Learned counsel for the respondents no. 2 to 11 submits that the appellant has no case, he fraudulently prepared the documents with intend to illegally grave the land on the basis of these documents. No title whatsoever, could be vested in appellant for the following reasons:-

1. That the documents relied upon by the appellant to establish his title over the property are unregistered documents which in terms of Section 17 of Registration Act require compulsory registration. For want of registration these documents could not be taken into consideration for establishing the title of the appellant.

2. That the document which is said to be executed on 25.06.1968 is also a forge document. It is not only unregistered but the same has not been pleaded or proved either before the S.L.A.O. or before the Tribunal during the proceeding under Section 30 of the Act. Therefore, no reliance could be placed on it. Moreover it is also not established that this document has been executed by Chandra Kishore Rastogi.

3. That at the time of execution of the alleged documents dated 10.11.1967 and 25.06.1968 Chandra Kishore Rastogi was not having transferable rights in respect to property as they are recorded as Sirdar.

4. That no tenure holder of agriculture land could mortgage his land with possession in view of prohibition contained in Section 152 (2) and Section 155 of U.P. Zamindari Abolition And Land Reforms Act, 1950 for (short Z.A.L.R. Act). The consequence of such mortgage with possession has been provided under Section 166 of ZALR Act that even if transaction validly executed, the same would be void.

5. That appellant can not plead two modes of acquiring title that is by forfeiture of mortgage as well as by adverse possession.

6. That the name of the appellant was never entered in revenue records nor he could produce any proof regarding his actual physical possession over the property in dispute.

7. That by way of an amendment carried out in the year 1977. The categories of tenure holder has been classified by virtue of Section 130 (B) of Z.A.L.R. Act, wherein all Sirdar has been given right to become Bhumidhar with by operation of law on deposit of certain statutory . As such Chandra Kishore Rastogi become bhumidhar with transferable rights after the execution of alleged documents dated 10.11.1967 and 25.06.1968

8. That mortgagee can not claim title under the usufructuary mortgage by forfeiture as a matter of right but he has to obtain decree under Section 66 of Transfer of Property Act.

It was further contended that so far as the right to recover the compensation by respondent nos. 2 to 11 are concerned, Section 54 of Transfer of Property Act defines 'sale'. The sale is a transfer of ownership in exchange of price paid or promised or part paid and part promised. The Sale could be made in respect of tenable immovable property of the value of 100 Rupees and upward coupled with delivery of possession by Registrar instruction only. The right of ownership does not only include right to dispose of property but it also includes all rights attached to such property including to recover the compensation in respect to the property in question and as such, the respondents no. 2 to 11 being 'person interested' is competent to take compensation of the land in question because the true owner has transferred all his rights in favour of respondents no. 2 to 11 and has not come forward to claim ownership or compensation after executing registered sale deeds in favour of the respondents no. 2 to 11. Shri Rama Kant Srivsatava the appellant in such a way can not claim any right on the basis of the ground that sale deeds executed in favour of respondents no. 2 to 11 are void. It was also submitted by learned counsel for the respondents that the mutation was made in revenue records after 24.02.1982 in the revenue records by the Consolidation Authority, therefore, it can not be said that property in question was out of the Consolidation operation specially on the basis of document, the authenticity of the same is not admitted to the respondent and has been filed without permission during pendency of appeal. The same is also not placed before S.L.A.O. or before the Tribunal.

After considering the submissions of both the parties, I am of the view that there are substance in the argument of counsel for the respondents no. 2 to 11. Admittedly the alleged document of conditional sale dated 25.06.1968 was never brought on record either before the S.L.A.O. or before the Tribunal nor the same has been proved. These documents are also unregistered, therefore, these documents can not be treated as sale deed and would be void in view of Section 17 of the Registration Act. Moreover, the existence of this document is not admitted to the respondent nor at any State has been proved that the same has been executed by Chandra Kishore Rastogi. The another document dated 10.11.1967 is also unregistered document, it is not only unregistered but also hit by Section 152, 155 read with Section 166 of the Z.A.L.R. Act. These documents were also not admitted at any stage by Chandra Kishore Rastogi.

Therefore, in view of the aforesaid reasons it can not be said that on the basis of these documents, which alleged to be usufructuary mortgage in favour of the appellant create any title in appellant in absence of any decree of competent Court relinquishing the title of Chandra Kishore Rastogi. So far as the plea of adverse possession is concerned, admittedly the plea taken is contradictory to the plea taken by the appellant claiming title on the basis of these documents. It is evident from pleadings of the appellant that his possession was permissible. He has not pleaded nor proved that he entered into possession over the property in dispute openly and in the knowledge of true owner Chandra Kishore Rastogi with intent to keep it in his possession, therefore, the plea of adverse possession could not be allowed to prevail. The plea of adverse possession is not at all sustainable.

So far as the title of the respondents are concerned, it has not been disputed by the appellant that sale deeds executed on 24.02.1982 was not executed by Chandra Kishore Rastogi. The case of the appellant is that Chandra Kishore Rastogi was not having any interest in the property on the date when the sale deed was executed.

The recital made in the sale deed demonstrate that no objection certificate has already been taken from competent authority under urban ceiling and Consolidation Authorities much earlier to the execution of sale deeds and notification under section 4 of L.R. Act, i.e. 18.09.1981, which was valid till 15.05.1982. It is true there is mention of taking possession over property in question by the State in the award but there is nothing on record with whom actual physical possession was taken by the State over the land in question. Moreover, nothing has been brought on record to establish on behalf of the appellant that possession has been taken over the land in question from him. Therefore, on the basis of such possession even if title is not vested in the respondents no. 2 to 11 then in absence of any contrary intention expressed by Chandra Kishore Rastogi the respondents no. 2 to 11 are entitled to get the compensation of the acquired land for which they have paid amount as consideration for sale and Chandra Kishore Rastogi has transferred all his rights relating to the property in dispute.

In view of aforesaid discussions made by learned counsel for the parties, there is no merit in appeal.

Accordingly, the appeal is dismissed. Interim order if any, shall stand discharged.

There shall be no order as to costs.

Order Date :- 16.10.2014

R.K.P.