Smt. Farooqi Begum vs State Of U.P.
2023 Latest Caselaw 14161 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

[A.F.R.]
 
[Reserved]
 

 
In Chamber
 
Case :- SECOND APPEAL No. - 813 of 1975
 
Appellant :- Smt. Farooqi Begum
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Sunil Gupta,Amit Krishna,Anil Krishna,K.P. Upadhyaya,M.K. Pandey,Murlidher,R.P. Singh,Ravi Kant,S.C.Agarwal,S.P.Gupta,S.P.Singh,V.D. Ojha
 
Counsel for Respondent :- SC
 
Hon'ble Vivek Chaudhary,J.

1. Heard Ms. Nitya Ramakrishnan, learned Senior Advocate assisted by Sri Ashwath Sitaraman, Ms. Pragya Pandey, Mr. Mehul learned counsel for the appellant, Sri Sanjay Kumar Singh Additional Chief Standing Counsel along with Sri Rishi Kant, Standing Counsel and perused the record.

2. The facts of the case, as per the plaint averments are that 20 Bighas, 10 Biswas (Pukhta) of Bagh Huzoor Pasand situated in village-Thotar, Tehsil Sadar, District Rampur was given as a grant to Farooqi Beguam, defendant-appellant, one of the begums of H.H. Nawab Hamid Ali Khan, Nawab of Rampur State, by a deed dated 17.04.1924. Similar grants were made in favour of other begums of Nawab. The said grants were resumable at pleasure and after death of Nawab Hamid Ali Khan in 1930, his successor Nawab Raza Ali Khan resumed all grants in favour of all widows of his father, including that in favour of Farooqi Begum. The possession was taken over by the State authorities and the same was duly recorded in the relevant papers and thus, the grove concerned stood recorded in the name of State (Shamil Khalasa). Farooqi Begum and her servants, through collusion with revenue officers, got her name entered in the Patwari's record, though, she was out of possession and an entry thereof was already effected in the register muafiat, specially maintained by erstwhile Rampur State for this purpose. The land ultimately got vested in State of U.P. at the time of merger and horticulture department of the State of U.P. has been selling its bahar. The defendant-appellant, on the basis of her name illegally entered in the revenue record, started interfering in the possession of the State and was claiming its ownership. The State of U.P. took steps for correction of the revenue records but it was declined on the ground that it is not possible in summary proceedings as it is a long standing entry. Thus, the State of U.P. filed the present suit for declaration that it is the owner of the disputed grove and for a permanent injunction restraining the defendant-appellant from interfering in its possession. It also claimed damages/mesne profit and in the alternate it prayed for possession, if it is found out of possession. Farooqi Begam, the sole defendant, filed written statement denying the plaint allegations, except that proceedings before the Revenue Court culminated in her favour and claimed that she is continuously in possession since 1924. She also claimed ownership prior to extension of U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Z.A. & L.R. Act) on the basis of deed of 1924. Further, after its extension to Rampur State she claimed to have acquired rights of a bhumidhar. She also claimed that proceedings for ejectment against Laddan Khan were initiated by her, and since State was a party, thus is barred by estoppel from filing the said suit. She also raised other formal pleas. The suit was decreed by the Trial Court. The appeal filed against the same was remanded for fresh trial by the appellate court, by order dated 08.09.1971, after allowing application to amend the written statement. The Trial Court again heard the suit and decreed the same on 01.05.1973. Civil Appeal filed against the same was dismissed by judgment dated 06.03.1975. Second Appeal No.813 of 1975 filed by the defendant-appellant before this Court was also dismissed by judgment dated 21.07.2006. Against the same an SLP was filed in Supreme Court which was granted and converted in Civil Appeal No.1534 of 2009, and finally the second appeal was remanded back to the High Court by the Supreme Court by its judgment dated 12.07.2022. Thus, the present second appeal is before this Court. Farooqi Begum expired during pendency of second appeal and her only daughter, who was substituted, also expired and now daughter's sons are appellants before this Court.

3. Ms. Nitya Ramkrishnan, learned Senior Advocate for the appellant has raised three legal submissions before this Court for challenging the judgments of Trial Court and Appellate Court. The same are:-

(i) The deed dated 17.04.1924 is a gift-deed under Mohammadan Law (Hibanama) executed by a husband in favour of his wife, and is irrevocable.

(ii) Even presuming the deed is a grant by the State of Rampur, since the same was never resumed, the suit is liable to fail.

(iii) After U.P. Z.A. & L.R. Act was extended to State of Rampur, Farooqi Begum became Bhumidhar with transferable rights of the grove in dispute and thus appellants, having inherited bhumidhari rights, cannot be acquitted thereafter.

4. Since, first and second submissions of defendant-appellant relate to the nature of deed dated 17.04.1924, hence, they are being considered together. Learned counsel for the defendant-appellant emphatically argued that the deed dated 17.04.1924 is in fact a gift-deed under Mohammadan Law (Hibanama) executed by a husband in favour of his wife and is an irrevocable document. In the alternative, she submits that presuming that the first submission is not accepted and the deed is treated to be a grant, even then, the same was never revoked by any of the Nawabs or the State Government and, hence, continues to be in force till date.

5. The defendant-appellant initially had filed the written statement on 13.02.1964. At that time, no case of the deed being a Hibanama was setup. Later the written statement was amended vide order dated 08.09.1971 and following paragraphs were added in the written statement:-

"5-A That the property in dispute was mafi La Khira 'revenue free grant' of the defendant. The allegations in the plaint that the defendant was the rent free grantee of the grove was not correct.

5-B. That the grove in suit was gifted to the defendant absolutely by the then Ruler of the erstwhile Rampur State on 17.4.1924 through the Sanad Mafi without imposing any restriction or condition for its resumption or otherwise. Therefore, it was not resumable and could not be resumed, and it was not resumed at any time.

5-C. That in case the court is of opinion that the grove in suit was rent free grant (which the defendant does not admit), even in such case the grant was not resumable under the law by the successors of the grantor and as such could not be resumed, the right to resume if any being lost long before 1930. The suit of the plaintiff is not maintainable."

6. A perusal of the written statement, as it stood initially or even after amendment, shows that no case of the said deed being a Hibanama is pleaded by the defendant-appellant. The best case pleaded in the amended paragraph-5B by the defendant-appellant is that it was a gift to the defendant-appellant by the then ruler of erstwhile Rampur State through Sanad Mafi without imposing any restriction or condition and was thus not resumable, and it was not resumed at any time. There is no pleading that the deed was a Hibanama under personal law or a gift by a husband to his wife under personal law. In absence of such a pleading it is not open for the defendant-appellant to argue at this stage that the deed is a Hibanama. Even otherwise following issues were framed between the parties:-

"1. Whether the grant in favour of the defendant was resumed in 1930 as alleged in para no.3 of the plaint?

2. Whether the plaintiff's predecessor, the Rampur State entered into possession of the grove in suit after resuming the grant?

3. Whether the suit is within time?

4. Whether the suit has been over-valued?

5. Whether this court has jurisdiction to try this suit?

6. Whether the suit is barred by order 21 rule 103 CPC?

7. Whether the suit is barred by Section 42 of Specific Relief Act?

8. What is the correct amount of damages, if any, recoverable from the defendant?

9. Whether the defendant acquired Bhumidari rights in the grove in suit on enforcement of the U.P. Zamindari Abolition and Land Reforms Act in this area, and is not liable to ejectment?

10. To what relief, if any, is the plaintiff entitled?

11. Whether the property in suit was revenue free grant (Muafi Lakheraj) of the defendant?

12. Whether the grove in suit was gifted to the defendant absolutely on 17.4.24 by the then ruler of Rampur State through Sanad Muafi without imposing any restriction or condition for its resumption?

13. Whether the grant in any case was not resumable under the law by the successor of the grantor and the right to resume if any, has been lost before 1930.

14. Is the suit barred by estoppel?" (emphasis added)

7. There is no issue framed with regard to any gift deed under Personal Law. Nearest issue on gift framed is issue no.12. The same is not claiming a gift under Personal Law but a gift by the ruler through Sanad Muafi. Further, only evidence given by defendant-appellant with regard to hibanama is in her second oral statement made on 29.03.1973, after amendment of written statement, wherein she states -

"ब्यान किया कि मुकदमें वाले बाग की मैं मालिक हूँ। मेरे शौहर हामिद अली खां ने हिबा किया। मैने अपने बहनोई करनल मुहम्मद अली खां से कहा कि आप इसका इन्तेजाम करे। नवाब साहब ने नूर जहां बेगम को अब्बास वाला बाग दिया था। हमने कहा आपने हमें कुछ नहीं दिया तो कहा कि हम हुजूर पसंद बाग आपको हिबा करते है। मैनें हिबा कबूल किया और अपने बहनोई के इन्तेजाम में दे दिया। नवाब साहब ने कुछ तहरीर लिख कर दी जो फाइल में दाखिल कर दी। नूर जहां बेगम हमारी सौत थी जिनका इन्तकांल हो गया। जब से बाग पर मेरा कब्जा रहा मै खेती कराती रही और कराती हूँ। जब तक कर्नल मुहम्मद अली खां हयात रहे मेरी तरफ से इन्तेजाम करते रहे। उनके इन्तकाल के बाद से मै इन्तेजाम कर रही हूँ। बाग में मेरा डेरा बना हुआ है।

जिस वक्त नवाब साहब ने कहा कि हमने बाग हुजूर पसंद तुम्हारे नाम हिबा किया उस वक्त ना कुछ कहा, फरमान जारी किया गया। नवाब साहब के फरमान गजट में होते थे। यह फरमान गजट में नही छपा इसकी वजह मै कुछ नही बता सकती।"

8. In the oral statement it is claimed by defendant-appellant that an oral gift was made by a husband to his wife, followed by deed executed by the husband, which was filed. As already found above, neither any case of oral gift is setup in the pleadings nor any such issue is framed. Law does not permit any evidence beyond the pleadings and issues. The oral statement is also incorrect and unreliable, as the deed dated 17.04.1924 is executed by the chief secretary of Rampur State and not by Nawab Sahab, as claimed in the oral statement. No other hibanama executed by Nawab Sahab is filed. Relevant portion of the deed dated 17.04.1924 in vernacular along with its english translation as produced by the appellant and not disputed by the State reads:-

"Bagh Huzur Pasand Farooqui Begum Sahiba ko ata kiya jata hai. Qubza bagh par karnel commandant Mohammad Ali Khan Bahadur Brigade commander ko dila diye jaye kyonke ye bagh unke zere intezam rahega. Is bagh me 130 bigha aarazi khaam hai magar Farooqui Begum Sahiba ko 82 bigha aarazi khaam us men se di jata hai. Ye is liye ke baagh Abbas khan wala ke masaawi rahe jo haal men Nur Jahan Begum Saahiba ko ata hua hai. Baqiya aaraazi Baaghe-e mazkur ki ba intezaam sarishta-e-baaghaat ba dastur rahe gi. Sanad Daarul Insha se di jaye. Ahkaam-e-zaabita jaari hon.

By Order Sd/- Chief Secretary"

Its English Translation reads:

"Bagh Huzur Pasand is bestowed upon (ata) Farooqui Begum Sahiba. Col Commandant Mohammad All Khan is handed over this orchard so that this orchard will be under his management. The orchard consists of 130 bigha Kham land. However, Farooqui Begum Sahiba is given 82 bigha Kham land from the same in order to keep it at par with Bagh Abbas Khan which has been granted to Noor Jahan Begum Sahiba recently. The remaining land of the said orchard will remain under the management of Horticulture department as usual. Certificate may be issued as per rule from the record office.

By Order Sd/- Chief Secretary"

9. A perusal of the same demonstrates that it is an order passed and signed by the Chief Secretary of the state in file number 3/28, in a Ijlas (Court or Sitting of respectable persons). The deed states that the Bagh Huzoor Pasand is given (ata) to Farooqi Begum Sahiba and possession is to be given to Colonel Commandant Mohd. Ali. Out of 130 Beegha (kham) of Bagh, 82 Beegha (kham) is given and the remaining land was kept under the management of Horticulture Department. The deed further states that the certificate may be issued as per rule from the record office. The same cannot by any stretch of imagination be called a gift deed by a husband to his wife under personal law. It is an official document executed by the Chief Secretary of the state in official proceedings, making a grant on part of State of Rampur in favour of Farooqi Begum Sahiba. Claim in the oral statement that possession of the Bagh was given after making an oral hiba and the management of the same was given by the appellant-defendant to her brother in law is contrary to the deed, which is admitted and relied upon by both the parties, and cannot be believed. Thus, submission of defendant-appellant with regard to any oral or written gift under any personal law is not found sustainable.

10. The next question is the nature of the deed dated 17.04.1924. It is already held above the same cannot be termed as a Hibanama under the Mohammadan Law. As already noted above, the deed grants (ata) 82 Bheegas (kham) out of 130 Bighas (kham) of grove Huzoor Pasand to Farooqi Begam Sahiba. The same is signed by the Chief Secretary of the State in ijlas. The reason for the grant provided is to maintain parity, as another grove, namely, Abbas Khan Wala, was granted (ata) to Noor Jahan Begum Sahiba. From perusal of the deed, it appears that for the status of begum sahibas of Nawab Sahab, (the then ruler of Rampur State), the Chief Secretary of the then Rampur State granted different Baghs to his Begums. The nature of a grant made by an erstwhile Indian State or its ruler is considered by a three Judges' Bench of the Supreme Court in case of 'Mohsin Ali Vs. State of M.P. and Others', reported in (1975) 2 SCC 122. Even the language of the document executed in the said case is quite parallel to the present case. In the said case, Firman dated 24.10.1934 was issued by the Nawab of Bhopal State, in appreciation of life and distinguished service of Sir Liyakat Ali, by which he gave to the later, in addition to grant of pensions, the residential use of house in question as 'Inayat Ata'. The dispute was of interpretation of the said document. Hence, it is necessary to have a closer look to the facts and findings of the said judgment. Relevant paragraphs of the said judgment reads:-

"9. The original firman is in Urdu. As rendered into English by the courts below, it reads:

"Hon'ble Motamid-u-Sultan Nasir-ul-Mulk Syed Sir Liaqat Ali.

Looking into considerations with gratitude your valuable services and faithful sacrifices which you have rendered for more than 30 years and considering the economic condition of the State you have served without remuneration for the last 2 years, your application (for pension) is granted. You are granted permission to retire in lieu of your valuable services from 1st October, 1934. You should hand over charge of Mushir-ul-Muhami Rubkari Khas to Honourable Shoeb Qureshi.

Besides that pension you are entitled to receive under the Pension Rules of the State Treasury, you are also entitled to receive a sum of Rs 400 as monthly pension from Treasury of Deorhi in lieu of valuable services of Deodhi Khas and you are (further) granted your residential house situated at Bara Mahal Shahjahanabad, as gift."

10. The original of the crucial sentence, which has been underlined (in bold type) reads:

"Aur aapka sakoonti makan waqya Bara Mahal Shahjahanabad apko inayat ataa kiya jata hai."

11. The firman was by order published in the Bhopal Government Gazette, dated October 31, 1934, under the heading: "Pension to Aali Mortabat Sir Syed Liaqat Ali Saheb". Rendered into English, its material part runs thus:

"Now the said Hon'ble again requests for grant of his previous application on account of rendering service for more than thirty years. Hence His Highness the Ruler of Bhopal Khuld-Allah-Mulkahum considering his valuable services and his faithful sacrifices that he had served without remuneration for the last two years, taking into consideration the economic condition of the State. Considering (all his valuable services) with gratitude (His Highness the Ruler of State) grants him permission to retire from 1st November, 1934 and also grants him his residential house situated at Bara Mahal Shahjahanabad as gift."

His Highness the Ruler of Bhopal State further orders that Hon'ble Syed Sir Liaqat Ali Saheb be paid Rs 400 monthly pension from the Treasury of Deorhi Khas in respect of services of Deorhi Khas besides his regular pension under the Rules of the State Treasury for which he is entitled to receive from the Treasury of State."

12. The original of the underlined sentence (in bold type), in the Gazette Notification reads:

"Aur unko sakoonti makan waqya Bara Mahal Shahjahanabad inayat marhmat pharmate hain."

13. It is to be noted that the disposition evidenced by the firman, Ext. P-1, is a tripartite grant made by an autocratic ruler to his subject in recognition of long, meritorious services rendered by the latter. This grant belongs to the category of dispositions, which under the English Common Law are known as "Crown grants"

14. The tenor and language of the Firman, particularly the words "aapko inayat ataa kiya jata hai" unmistakably mark it out as a sovereign grant. According to Steingass' Persian-English Dictionary "inayat" (Noun) signifies "a favour, a gift, a present, a bounty"; and "ataa" (Verb) means "to give, to confer a benefit or present with". "Ataa" (Noun) implies "giving, a present, gift, donation, favour, a grant, endowment, concession; consideration".

15. In the widest sense, "grant" may comprehend everything that is granted or passed from one to another by deed. But commonly, the term is applied to rights created or transferred by the Crown, e.g., grants of pensions, patents, charters, franchise (See Earl Jowtt's Dictionary of English Law).

16. In England, contrary to the ordinary rule applicable to grants by a subject, grants by the Crown are usually construed most favourably for the Crown. The Rule in case of Royal Grants is that general words will not pass prerogative rights by implication.

17. This general rule is, however, capable of important relaxations in favour of the subject. If the intention of the Sovereign is obvious from the document which in precise, unequivocal terms defines the extent and nature of the benefit conferred, it must take effect. No question of seeking extrinsic aid to its construction arises. If the grant is for valuable consideration it must be construed strictly in favour of the grantee, for the honour of the Sovereign and where two constructions are possible, one valid and the other void, that which is valid ought to be preferred, for the honour of the Sovereign ought to be more regarded than the Sovereign's profit. Where, however, two interpretations may be given to the grant, both of which are good, that which is most favourable to the Crown is in many cases preferred. (See Halsbury's Laws of England, 3rd Edn., Vol. 7, paras 669 and 670, pp. 314-316).

18. These rules of interpretation have been applied to sovereign grants in India, also. (See Raja Rajinder Chand v. Sukhi [AIR 1957 SC 286 : 1956 SCR 889 as per S.K. Das, J. at p. 902] ; Gulabdas Jugjivandas v. Collector of Surat [6 IA 54 : ILR 3 Bom 186 (PC)] ; Shekh Sultan Sani v. Shekh Ajmodin [20 IA 50 : ILR 17 Bom 431 (PC)] ; Aziz-un-nissa v. Tassadduk Husain Khan [28 IA 65 : ILR 23 All 324 (PC)] ; Ram Narayan Singh v. Ram Saran Lal [AIR 1918 PC 203 : ILR 46 Cal 683 (PC) : 46 IA 88] )

19. It is in the light of the above principles that we have to determine whether by the firman, Ext. P-1, the Ruler intended to grant a life-estate or an absolute estate in the suit house."

11. The appellant in the said case were heirs of Sir Liaqat Ali who claimed the said document to be gift under Muslim Law and, thus, an absolute transfer. The same was strongly disputed by the other side and it was claimed, amongst other, that the last sentence of the Firman read along with the preamble shows that the same created a right of residence for life and not an absolute and heritable ownership. Considering the submissions, the Court held:-

"23. We are not persuaded to accept the appellant's contention that the firman conveys, in precise and unequivocal terms, full and absolute ownership of the suit house to the grantee. In our opinion, the language of the last sentence of the firman, which is the sheet-anchor of this contention, even by itself, does not indubitably and unequivocally indicate that the intention of the Ruler was to grant an absolute estate. The firman is conspicuous by the non-employment of any words declaring that thenceforth the grantee would have a heritable estate in the house or that the grantor had transferred all his rights in the property, absolutely in favour of the grantee. There is no use of such words that the grant would take effect as "nasalan-dar-nasalan", "from generation to generation" "to warsan, kaiam u qaman" "to grantee and his heirs" etc. pointing towards the creation of a heritable estate. Even the use of such terms by itself, has been held to be an inconclusive indication of the grantor's intention to confer absolute, heritable rights. Thus in Gulabdas Jugjivandas case [6 IA 54 : ILR 3 Bom 186 (PC)] , despite a reference in the sanad to the children or descendants' of the grantee, the Judicial Committee held that the grant had not been made "on terms which would make them hereditary".

24. Again, in Shekh Sultan v. Shekh Ajmodin, delivering the judgment of the Board, Lord Hannen quoted with approval, a minute dated March 15, 1922, recorded by Sir Thomas Munro

"in which he states that the terms in such document (sunnuds) 'for ever' from generation to generation or in Hindu grants, 'while the sun and moon endure', 'are mere forms of expression', and were never supposed either by the donor or receiver to convey the durability which they imply or any beyond the will of the Sovereign".

On the authority of another minute recorded by Sir Thomas Munro, it was further observed

"that while the seizure of private property by the native princes would have been considered unjust by the country, Jagir grants were not regarded by the people in the light of private property".

25. It is not necessary to multiply authorities with regard to the construction of such customary terms which could possibly be indicative of the grantor's intention to make a heritable grant, because the firman Ext. P-1, is bereft of all such terms. It will be sufficient to say that the language of the firman does not in clear and unambiguous terms express an intention to create an absolute estate in favour of the grantee and his heirs. The firman has therefore to be construed in accordance with the well established rule of construction applicable to sovereign grants.

26. Another cardinal canon of interpretation to be borne in mind is, that in order to ascertain the real intention of the grantor, the firman has to be read as a whole. It will not be correct -- as the appellants want us to do -- to dissect the firman into three water-tight compartments or to read the last sentence of the firman out of the context. It is also permissible to consider the surrounding circumstances and the occasion on which this grant was made, as legitimate aids to construction of the firman [see Gulabdas Jugjivandas v. Collector of Surat [6 IA 54 : ILR 3 Bom 186 (PC)] ].

27. The occasion for the grant as apparent from the preamble of the firman, Ext. P-1, (reproduced in the Notification Ext. P-2) was that the grantee Sir Liaqat Ali, having attained the age of superannuation, was retiring with the permission of the grantor, after putting in "valuable" and "faithful" service for more than thirty years including two years for which he served without remuneration, in view of the poor economic condition of the State. An analysis of the firman will show that it confers three-fold benefits on the grantee. Firstly, it grants him such pension as would be admissible under the Service Rules. This he would draw from the State Treasury. Secondly, in addition to the first, it grants him pension at the rate of Rs 400 per month which the pensioner would be entitled to draw from the Deodhi Treasury i.e. the Privy Purse of the Ruler. Thirdly, it grants him a beneficial interest in the residential house, in these terms: "Aur aapka sakoonti makan waqya Bara Mahal Shahjahanabad apko inayat ataa kiya jata hai".

28. As is indicated in the firman (Ex. P-1), Notification (P-2) in making this tripartite grant the Ruler was actuated by considerations of gratitude for the valuable services rendered by the grantee. The object of conferring these three-fold benefits was the same, namely, to secure to the retiring servant a handsome maintenance and comfortable residence for the rest of his life. In other words, all the three benefits granted under this firman were cognate benefits, arising out of the same occasion, and made with the same object in view viz. to enable the grantee to live comfortably in retirement. These related benefits could be compendiously described as "retirement benefits". The first two benefits were indisputably pensionary benefits enuring only for the lifetime of the grantee. All the three kindred benefits, including the one in question, were expressly meant for the person of the grantee. This is clear from the word "aapko" which means "to you" in the phrase "aapko inayat ataa kiya jata hai". The conjunction "aur" (and) at the commencement of the last sentence of the firman inextricably links the grant of interest in the residential house, with the pensionary benefits conferred in the foregoing parts of the firman. In short, all the three-fold benefits granted under this firman are off-spring of the same genus. The language of the firman relating directly to the grant in question, therefore, takes its colour from the preceding parts of the firman relating to the pensionary benefits conferred on the grantee for life. Thus, if the crucial words quoted above, are construed in the context of the akin grants, and according to the general tenor of the firman as a whole, it becomes clear that the intention of the Ruler was to grant only a right of residence limited to the lifetime of the grantee, and not an absolute estate in the house.

29. The surrounding circumstances also confirm the interpretation adopted by us. The first such circumstance was that at the time of the grant, the grantee had no issue, nor any near relation. Indeed, he died widowless and issueless. In this context, coupled with the omission of any words such as to "grantee and his heirs" or "nasalan-dar-nasalan" indicating the grant to be heritable, it would be reasonable to hold that the grant was intended to be for life only.

30. There is yet another circumstance which points towards the same conclusion. It is that at the time of the grant the grantee was already residing in the suit house. In this context, the word "sakoonti" (residential) in the last part of the firman used in association with "makan" (house) assumes significance. It suggests that the intention of the grantor was to convey to the grantee no more than a right of residence in the house which the latter was already enjoying.

...................

33. The argument advanced on behalf of the appellants: that the grant in question was a "hiba" made in accordance with Mohammedan law by one Muslim to another, has been stated only to be rejected. To all intents and purposes, it was a grant made by an absolute Ruler to his subject who had rendered long, meritorious services, on the eve of his retirement. Reference to Muslim law is therefore misconceived. We may, however, say in passing that even according to the observations of the Privy Council relied upon by the counsel, creation of an interest limited in point of time, in the usufruct of the property is not necessarily repugnant to Muslim law."

12. As in the aforesaid case of Mohsin Ali (supra), the Bagh in the present case was also granted by the State of Rampur to Farooqi Begum. There is no term used in the entire grant which may show that the State had withdrawn all its rights over the Bagh or any such word which can be construed as grant with heritable interest. The grant notes that it is made to Farooqi Begum as similar grant is also made to another begum. The grant at best is for the user and benefits of Begum Sahiba and nothing more. There is nothing in the document which can be read as withdrawal by the Rampur State of all its right from the said Bagh and/or surrender of all its rights in favour of Farooqi Begum or creation of any heritable interest in favour of Farooqi Begum and her children. Therefore, as already settled by Supreme Court in case of Mohsin Ali (supra)1 that such a grant can always be resumed by the State, as all rights and powers of State, including the power to resume the same, continued. Farooqi Begum had right to enjoy the Bagh for her life only, or till the will of the sovereign.

13. Next submission of learned Senior Counsel for the appellant is that the grant was never resumed by the State of Rampur or State of U.P. and there is no such document on record. Learned counsel for the appellant claims that the secondary evidence, register and list submitted before the Court to prove resumption, were not properly proved and were not reliable evidences. The said fact is strongly disputed by the counsel for the State of U.P. Learned counsel for the State of U.P. claims that both the courts have given a finding that the fact of resumption is proved from the secondary evidence filed and the same, being a concurrent finding of fact, can not be disputed at the stage of second appeal.

14. Before considering the said submission of parties, suffice is to say that, as already held above, the grant was made only for the user and benefit of Farooqi Begum. The same was only for the life time of Farooqi Begum and was not heritable. Admittedly, Farooqi Begum expired during pendency of the present second appeal and thereafter, her daughter was substituted as her legal heir who also expired and, now, appellants before this Court are sons of the said daughter. Neither the daughter nor the present substituted heirs of late Farooqi Begum have any right in the Bagh in dispute. Therefore, no relief in their favour can be granted. This fact was put during course of argument to the senior counsel for the appellant and disputing the same she raised her third submission and claimed that after extension of U.P. Z.A. & L.R. Act on Rampur State, late Farooqi Begum became a bhumidhar and her rights became absolute. Thus, now heirs of late Farooqi Begum are having absolute rights as bhumidhars and they cannot be evicted from the Bagh in dispute. This submission will be considered later and first this Court considers the submissions of appellant with regard to secondary evidence filed by the State of U.P. to prove resumption of bagh by the next Nawab of Rampur.

15. For disputing the findings of the original and appellate Courts with regard to the secondary evidence submitted to prove resumption of grant in 1930, Senior Counsel for the defendant-appellants submits that the Muafiat register filed by the State of U.P. was having loose papers with entries made in different inks. For the said purposes she has relied upon the oral statement of Roop Kishore, arranger, revenue records, who has stated that normally on the first and last pages of such register, a stamp is put and signature of officer is made which is not found in the register deposited before this Court. He further states that register does not contain page numbers. Thus, the same cannot be taken into account as it is not a reliable document.

16. Admittedly, a fire had taken place in which revenue records of former Rampur State were destroyed. Therefore, original orders of resumption of grant are lost. A perusal of the register shows that all the Muafiat grants of Rampur State and their resumptions are noted in the said register. It is not that the entry of resumption with regard to disputed Bagh Huzoor Pasand alone is made at the end of the register. There are number of resumption entries, before and after the entry of Bagh Huzoor Pasand, of same period (1930), with regard to other Baghs given to different begums also noted in the said register. A mere fact that the entries are made with different inks or some of its pages are loose itself cannot be a reason to disbelieve the register. The statement of witness Roop Kishore that normally a stamp is placed at the beginning and end of the register or absence of page numbers in itself is not a sufficient ground to disbelieve the register as no other register containing such stamps and signatures was filed before the Court to prove any such prevalent procedure. No rule was referred to under which any such stamp or signatures was required to be put. Even otherwise, witness Roop Kishore only brought the register as he was a clerk in the revenue department. He also proved list of Munshi Gopinath. He claimed that he was engaged in 1926 in Muhafizkhana Mal of Rampur State. He was removed in July, 1930 and re-engaged in October, 1931 and is thus unaware of developments of said period (July, 1930-October, 1931). Till 1930 he was working as extra weeder and did not perform any other work. His re-engagement was with garden department. Therefore, he was never in charge of maintaining the disputed register, rather of any revenue record. His engagement in revenue department was only as a weeder and he performed work of making bundles of weeding files. Therefore, his statement with regard to manner of preparation and maintenance of Muafi register being outside his domain of work is not reliable. He was not even aware as to which office maintained the said register as he states that Muafi register might be kept in early times in darulnisha or Muhafizkhana. Therefore, he is only a witness who brought record/register from revenue department of State of U.P. and his evidence can only be read to that extent. He never maintained records of State of Rampur and can not give evidence on manner in which they were maintained. Therefore, this Court does not find any reason to disbelieve the finding of facts given by both the original as well as appellate Courts. An old register containing details of all Muafiats of the State of Rampur, including that of defendant, cannot be disputed only on such flimsy grounds, when contents of resumption of other grants in favour of all such persons, including other begums, is duly and correctly noted.

17. Now for considering merit of the submission of appellant-defendant with regard to her bhumidhari rights, it is necessary to go into the applicability of U.P. Z.A. & L.R. Act to the Rampur State. U.P. Z.A. & L.R. Act itself came into force w.e.f. 24.01.1951. At that time, it was not applied on State of Rampur. The same was made applicable to the territories of the former Rampur State by notification no. 3168/IA-599-1951, dated 30.06.1954 and estates were vested in State by notification no. 3169/IA-599-1951, dated 01.07.1954 respectively. Relevant portions of the said notifications read as follow:-

"Gazette Notification No.3168/I-A-559-1951

Dated Lucknow, June 30, 1954

IN exercise of the powers conferred by sub-clause (ii) of clause (e) of sub-section (1) of section 2 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act No.I of 1951), hereinafter referred to as the said Act, the Governor, Uttar Pradesh is pleased to direct that the said Act shall apply, subject to the modifications and amendments specified in the Schedule hereto annexed, to the territories of the former Rampur State as defined in the Rampur (Administration) Order, 1949.

The Governor is further pleased to order under sub-section (3) of section I of the said Act, that this Act shall come into force in the aforesaid territories with effect from the date of this notification."

"Gazette Notification No.3169/I-A-559-1951,

Dated Lucknow, July 1, 1954.

IN exercise of powers conferred by sub-section (1) of section 4 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act No.1 of 1951), as applied to the territories of the former Rampur State, as defined in the Rampur (Administration) Order, 1949, by notification no.3168/IA-559-1951, dated June 30, 1954, all estates situate in the aforesaid territory excluding estates owned by the State Government, and the land allotted to His Highness the Nawab of Rampur under Article 4 of the Agreement between the Govenor-General and His Highness the Nawab of Rampur dated May 15, 1949, read with item (xviii) of the Collateral letter dated May 15, 1949, from the Ministry of States, Government of India, to His Highness the Nawab of Rampur, and mentioned in the list of his private properties, shall vest in the State of Uttar Pradesh, and as from the beginning of that date, all such estates shall stand transferred to and vest, except as provided in the said Act, in the State free from all encumbrances." (emphasis added)

18. The term 'Estate' was modified from time to time in the U.P. Z.A. & L.R. Act itself as well as one provided in the notifications by which U.P. Z.A. & L.R. Act was made applicable to Rampur and other States. The definition of word 'Estate' was finally provided and settled by U.P. Act No.XIV of 1958 by which U.P. Z.A. & L.R. Act was amended. The aforesaid U.P. Act No.XIV of 1958, being a short Act, is quoted below:-

"U. P. Act No. XIV of 1958.

An Act to amend the U. P Zamindari Abolition and Land Reforms Act, 1950, (U. P. Act 1 of 1951).

WHEREAS it is expedient to amend the U. P. Zamindari Abolition and Land Reforms Act, 1950, for the purpose hereinafter appearing:

It is hereby enacted in the Ninth Year of the Republic of India as follows:

1. Short tille and commencement.-(1) This Act may be called the Uttar Pradesh Zamindari Abolition and Land Reforms (Amendment) Act, 1958.

(2) It shall be deemed to have come into force from the first day of July, 1952.

2. In section 3 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, for clause (8), the following shall be and be deemed to have always been substituted:

"(8) Estate, means and shall be deemed to have always meant the area included under one entry in any of the registers described in clause (a), (b), (c) or (d) and, in so far as it relates to a permanent tenureholder, in any register described in clause (e) of section 32 of the U. P. Land Revenue Act, 1901, as it stood immediately prior to the coming into force of this Act, or subject to the restriction mentioned with respect to the register described in clause (e), in any of the registers maintained under section 33 of the said Act or in a similar register described in or prepared or maintained under any other Act, Rule, Regulation or Order relating to the preparation or maintenanes of record-of-rights in force at any time and includes share in, or of an 'estate'. Explanation.-The Act, Rule, Regulation or Order referred to in this clause shall include, Act, Rule, Regulation, or Order made or promulgated by the erstwhile Indian States whose territories were merged or absorbed in the State of Uttar Pradesh prior to the date of vesting notified under section 4 of this Act."

19. A bare perusal of the provisions of U.P. Z.A. & L.R. Act and the aforesaid notifications shows that estates owned by Rampur State never vested under the said Act as the same vested in State of U.P. on merger. It is only the estates belonging to land holders and intermediaries, duly noted in the register prepared and maintained under the revenue laws as applicable in the erstwhile Indian States which vested under the provisions of U.P. Z.A. & L.R. Act and the said land holders or intermediaries were given different rights under the U.P. Z.A. & L.R. Act. There is nothing on record to show that the grants given by the erstwhile State of Rampur were treated as estates belonging to land holders or intermediaries. It is already held above that grants given by State of Rampur always remained property of Rampur State, resumable at will. Land and properties owned by Rampur State vested in State of U.P. on merger and no contrary submission with regard to the same is made before this Court. The said land falls within exception carved out by 'excluding estates owned by the State Government' in vesting notification no.3169/I-A-559-1951 dated 01.07.1954. Defendant-appellants have not filed any record of rights duly maintained in their favour under the revenue laws or rules of erstwhile State of Rampur noting their names as intermediary. In absence of the same, claim of defendant-appellant that they ought to be treated as land holders/intermediaries under the revenue laws of erstwhile State of Rampur and, thus, having earned bhumidhari or other revenue rights under U.P. Z.A. & L.R. Act can not be accepted. They have also not filed order of any competent revenue authority under U.P. Z.A. & L.R. Act declaring Farooqi Begum as having bhumidhari rights also goes to show that name of Farooqi Begum was wrongly/illegally recorded as bhumidhar. It goes without saying that there cannot be any bhumidhari or other rights under the U.P. Z.A. & L.R. Act on lands belonging to the State Government. It is already held that the bagh in dispute was a State land in which Farooqi Begum had user and enjoyment right only for her life and nothing more. Therefore, she is not found to be having any rights under old revenue laws of State of Rampur which could be converted as bhumidhari or other right under U.P. Z.A. & L.R. Act. Hence, the said submission of defendant-appellant also does not have any force and the same is rejected.

20. Thus, this Court does not find any force in the present second appeal and the same is dismissed.

Order Date :-05.05.2023

Arti/-

[Vivek Chaudhary,J.]