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Markandey Sardar & Others v. Girja Prasad & Others - SECOND APPEAL No. 1113 of 1977 [2006] RD-AH 19486 (17 November 2006)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


Judgment reserved on 4.9.2006

Judgment delivered on  17.11.2006

SECOND APPEAL NO. 1113 of 1977

Markandey Sardar and others- Defendants-Appellant


Girija Prasad (since deceased) represented

By Smt. Parvati Devi and others Defendants-Respondent

Hon'ble Sunil Ambwani, J.

1. Heard Shri R.N. Singh, Senior Advocate assisted by Shri V.N. Singh for appellant and Shri Sankatha Rai for respondents.

2. The Second Appeal arises out of Suit for cancellation of sale deed dated 16.4.1969  and perpetual injunction over plot No. 145/1 area 2.53 decimal situate in village Katesar Pargana Ralhupur District Varanasi, executed by defendant no. 2 in favour of defendant no. 1. The suit  was decreed with the declaration that the sale is  not binding on the plaintiff. The suit for perpetual injunction, however, was dismissed.

3. Two civil appeals were filed,  one by Shri Markanday Sardar, Civil Appeal No. 301 of 1975, and the other by Girija Prasad and other,  Civil Appeal no. 330 of 1975. The civil appeal filed by Markanday Sardar-defendant-appellant was dismissed. The other civil appeal was partly allowed with a direction that the suit for perpetual injunction to restrain defendant no. 1 from interfering in the joint possession of plaintiff over disputed plots was also decreed. The judgment of the appellate court dated 27.5.1977 is under challenge.

4. Briefly stated the facts given rise to suit are that plaintiff and defendant nos. 2 to 5 are descendants of the  common ancestors. The property was acquired by two sale deeds. The share of the Prayag Sahu was 3/4th   and share of Ayodhya Sahu was 1/4th. The property was situate in a different villages and that by mutual family settlement the property in village Katesar  was exclusively given to Laxmi Narain, father of the plaintiffs, in lieu thereof the property of village Hariharpur Sahu was given to the heirs of Mathura Sahu  and since thereafter Laxmi Narain was in exclusive possession of the plot, which was a ''grove'. Their father constructed a boundary wall and three rooms near the gate. After the death of their father, the plaintiff was living in the rooms. The grove was given by plaintiff's father  for management to Sukhdeo Khatik, who got his name entered on the grove as a hereditary tenant, and got their father's name expunged in khatauni without their knowledge.

5. Plaintiff's father filed Suit No. 13 of 1955 in the court of Munsif, Havali, Varanasi against Sukhdeo Khatik. A receiver was going  to be appointed at the instance of defendant, on which, their father withdrew the suit with permission to file a fresh suit. Defendant no. 2 had no concern with the grove. The name of Sukhdeo Khatik was expunged and the name of plaintiffs were recorded on the grove. The defendant no. 2 and his heirs also got their name mutated on the grove with the connivance of Lekhpal and that thereafter defendant-2 executed a sale deed dated 16.4.1969 in favour of Markanday Sardar-defendant no. 1, of the half share of the grove He took forcible possession of the portion. The sale was alleged to be illegal. The plaintiff further alleged that sale deed was forged, without consideration and that no partition as mentioned in the sale deed had taken place.

6. The defendant Nos. 1 to 4 contested the suit. They filed written statement admitting the pedigree. They, however, denied that plaintiffs are exclusive owner of the disputed property. Prayag Sahu and Ayodhya Sahu had half share each in the plot. These transfers were acknowledged in mutation proceedings between Laxmi Narain Sahu and Mahadeo Sahu in Case no. 37/27/79 of 1935. After the death of Ayodhya Sahu the property came in exclusive possession of Mahadev Sahu-father of defendant no. 2. His possession was adverse to defendant nos. 3 and 4, who did not acquire any rights but were in possession. There was no private partition or any mutual family settlement. The share of Laxmi Narain-father of plaintiff was auctioned in execution of decree passed in Suit No. 20 of 1953 and suit No. 1 of 1954, Banaras Bank Ltd. vs. Laxmi Narain and others and therefore there was no question of giving the property of village Hariharpur in lieu of his share. After the death of Mahadeo and Laxmi Narain-the plaintiff defendant no. 5 and defendant no. 2 became owners of the property in which  defendant no. 2 had half share. The disputed plot was a grove from the very beginning in which Mahadeo and Laxmi Narain had planted  trees and made their constructions. The defendant no. 2-Badri was a minor in 1944 and thus name of Sukhdeo Khatik was entered due to mistake and carelessness of Laxmi Narain. The record was subsequently corrected and the name of defendant no. 2 was recorded with the plaintiff. There was a private partition in which half shares towards south of the grove along with the constructions came to the share of defendant no. 2. The remaining share towards north was allotted to plaintiff no. 5. After the partition defendant no. 5 transferred 13 decimal land towards north to Smt. Mahadevi and Maliullah by sale deed dated 21.9.1968. Badri-defendant no. 2 was in need of money. He transferred his half share towards south to defendant no. 1 through sale deed  for adequate consideration and delivered possession to defendant no. 1 who is bonafide purchaser for value. The defendants also pleaded the  suit is barred by Sections 41 and 43 of the Specific Relief Act.

7. The defendant  also contended that after the enforcement of the Zamindari Abolition and Land Reforms Act (UP Act No. 1 of 1950), defendant nos. 3 and 4 had no share in the plot and that a partition had taken place between defendant no. 2 to 4, the  suit was as such barred by principle of acquiescence as well as res judicata.

8. The pedigree was admitted. The parties joined issues on partition and family arrangement and further whether plaintiff is sole bhumidhar of the grove; whether defendant no. 2  had no right of title in the grove and whether sale deed executed by the defendant no. 2 on 16.4.1969 was a void transaction. The parties also joined issue on the question whether Badri-defendant no. 2 was in adverse possession and whether he had any share and interest in the property.

9. The appellate court confirmed the findings of the trial court in holding that name of Prayag Sahu and Ayodhya Sahu was jointly recorded on the disputed plot. There was no averment that half portion in the grove was purchased by Prayag Sahu in his name and that Prayag Sahu and Ayodhya were separate from each other. In the certified copy of khasra no. 1292 Fasli, the shares of Prayag and Ayodhya Sahu were not specified and thus in view of the specific mention of their shares on the khewat of that year, it is to be deemed that they were co-tenure holders with half-share each. The application filed by the father of the plaintiff to declare his share to be 3/4  in the khewat was rejected. It was held that the disputed property was ancestral and joint. The certified copy of the order dated 30.1.1936 passed in case No. 37/27/79 was on record. This order was not challenged and thus  Prayag Sahu and Ayodhya Sahu were entitled to half share each.

10. This fact is further proved from the certified copy of order dated 26.4.1947 (Ext. 23), and  the order dated 6.9.1947 in the matter of a suit with Banaras Bank Ltd. in which it was found that half share of Laxmi Narain was excluded from the proceedings. The appellate court found that though some of the members of the branches had entered into transactions, there was no evidence on record nor  any circumstances were placed on record to show that family was not joint hindu family and that the share of Prayag Sahu in the grove or his successor was more than half.

11. The appellate court then held that defendant no. 2 Badri had no right to transfer a specific portion towards south of the grove. He had half share undefined portion in the plot. The validity of the sale deed was however  not challenged. The plaintiffs  alleged that the share of  Ayodhya was only 1/4 . Since it was found that the plot was a joint grove, the sale was void. Actually the transferor got a partition of the share. The appellate court did not accept the argument that Section 7 (4) of the U.P. Encumbered State Act 1934 as held by the trial court was applicable. No notification was made as required by Section 11 of the Act in respect of the disputed grove. The defendant, nowhere alleged that the disputed land was not subject matter of the proceedings or that notification required under Section 11 was made. The half share of Laxmi Narain was exempted from the proceedings and that the proceedings in respect of the remaining portion did not come to an end. The disputed grove was recorded in Zaman-14 i.e. a propriety grove. The defendant no. 2 Badri was not entitled to transfer any part of it. The sale deed actually contravened the provisions of Section 7 (3) of the U.P. Encumbered Estate Act.

12. Shri R.N. Singh, learned counsel for appellant submits that  a co-sharer is entitled to sell an undivided portion of the property. The sale deed qua his share in the property shall be valid and that the alienation to the extent which exceeds his share would be invalid. The U.P. Encumbered Estate Act 1934 has no application to the facts of the case. The relief was granted by U.P. Encumbered Estates Act 1934 to the agriculturist who were debtor on the verge of insolvency. It was intended to assist the land owner whose assets were not sufficient  to discharge the indebtness and  applied to those landlords whose land revenue was more than Rs. 100. The purpose of the Act was to enquire into such debt, the higher rate of interest and where it was found that estate is solvent,   the landlord was required to give his acceptance to the remedies enumerated in clause-27, leaving it to special court to choose one or more remedies which it considers most suitable. These remedies ensured that repayment will be made to the creditor on the reduced amount. If the landlord declined,  the special judge was required to close the proceedings.

13. Shri R.N. Singh submits that on the enforcement of the U.P. Zamindari Abolition & Land Reform Act 1950 (Act No. 1 of 1951) all the estates vested in the state free of all encumbrances and hence there was no question of applicability of the provisions of the UP Encumbered Assets Act 1934. Once it was held that both the branches were  holders to the  half each each, the sale by the  defendant no. 2, was valid to the extent of his interest on the property. The plaintiff did not have the right to get the entire sale deed cancelled. The appellate court had wrongly observed in the judgment that learned counsel for appellant did not dispute that the grove is subject matter to the proceedings under the U.P. Encumbered Estate Act 1934. The trial court had rightly refused the injunction and that the appellate court without any foundation or findings of possession refused the relief of injunction. Such a relief could also be issued  against a co-sharer. The form of injunction issued by the lower appellate court is not workable.

14. The substantial questions of law, that  arise for consideration are, firstly whether the provisions of U.P. Encumbered Estate Act 1934 will continue to apply even after the enforcement of U.P. Zamindari Abolition and Land Reforms Act 1951; secondly, whether the transactions by co-sharer to the extent of his interest on the property without any partition  will invalidate the entire sale deed, and thirdly whether the appellate court could have granted the relief of permanent injunction without recording any finding regarding possession.

15. Shri Sankatha Rai, learned counsel for respondent submits that the UP Zamindari Abolition and Land Reforms Act 1950 extinguished the rights of intermediaries in the agricultural land. Shri Laxmi Narain had executed a mortgage to Banaras State Bank. Badri had only 1/4  share in the property. The property was covered by the notification issued under the U.P. Encumbered Estates Act 1934 and that Badri having only 1/4  share could not have sold the property without partition.

16. The U.P.  Encumbered Estates Act, 1934 is a pre-independence act enacted to provide relief of Encumbered Estates in U.P. and to liquidate the debt which had accumulated on such assets. The act was not intended to apply  to the subject of partition amongst the members of the joint family. It provides relief to certain class of depositors and vesting of the entire property of the debtor  by the collector in the hands of Special Judge for the purposes of liquidation of debt.  The Act granted relief to the landlords and deprived the creditors of their civil remedies. It came into force on 30.4.1934. The Act covered private debts. Any landlord within one year of the enforcement of Chapter III of the Act could apply under Section 4 to the Collector stating the amount of such private debts and also of his public debts both decreed and undecreed  requesting that the provisions of this Act be applied to him. No such application could be made by a member of a joint hindu family unless all the members such family join and there was express declaration of the intention of  separating from the joint family giving full details of the remaining members of the family and their shares. The application was required under Section 6 to be transferred to the Special Judge informing him  of such public debts outstanding against the landlord. As soon as the Collector made an order accepting the application and transferred it to the Special Judge  all proceedings pending in any civil or revenue court in respect of any public or private debt to which the landlord was subjected or his immovable was encumbered except an appeal, review or revision against the decree or order, were to be stayed and the attachment on the other executions were to be rendered null and void. No fresh suit or proceedings could be undertaken for recovery of such debts and no decree could be obtained on the basis of any private debt incurred by the landlord.

17. On an order made by Section 6 of the Act and the transfer of the proceedings to the Special Judge, a creditor could file a written statement  under Section 8 and verify  the statement. The Special Judge was thereafter required to publish a gazette notification calling all persons having claims in respect of private debts against the person or property, to admit claims, apportion the debts and property in case of joint hindu family, determine the liability of joint debtors, apportion the liability of the heirs of the deceased-debtor and if necessary appoint a receiver under Section 9-A or to provide for management and preservation of the property under Section 9-B of the Act. Any transfer of property made by a landlord or other person acting on his behalf for being transferred before and in consideration of marriage in good faith for valuable  consideration could be avoided by the Special Judge. The Special Judge was thereafter required to examine the claims and  determine the amount of debts. Section 16 provided for ranking all debts for priority and determination of amount of public debts reported by the Collector. The decrees were thereafter required to be transferred under Section 9 to the Collector to be realize by him under Section 24. The method of payment of instalment and recovery, persons entitled to possession of property and cessation of disabilities was provided under Sections 29, 35 and 44 of the Act.

18. On the enforcement of the U.P. Zamindari Abolition and Land Reforms Act 1950, the zamindari of agricultural land in rural areas of the State of U.P.  was abolished. The intermediaries interest was acquired on payment of equitable compensation and zamindari was replaced by land tenures. The U.P. Encumbered Assets Act, 1934 was not included in List-1 of Schedule III, repealed under Section 339 of the U.P. Zamindari Abolition and Land Reforms Act 1950. The U.P. Encumbered Estates Act,  1934 was amended by U.P. Act No. XIII of 1944 and adopted and modified by A.O.'s 1950. The reference to ''propriety rights and land' included a reference to compensation and rehabilitation grants under UP ZA & LR Act 1950 and the expression ''agricultural area and date of vesting' and ''urban area' were given the same meaning as they are assigned in U.P. Urban Zamindari Abolition and Land Reforms Act 1956. The word ''provincial' was replaced by the State Government. The Act as such continued to apply even after the enforcement of UP ZA&LR Act 1950. Section 7 (3) prohibited the transfers of the encumbered estates after the passing of the order under Section 6 of the U.P. Act 1934 or until the passing of the order under sub section (2) of Section 44, without the sanction of the Collector and any such transfer under sub section (4) in-contravention of the provisions of  Section -7 was to be treated as void.

19. Shri R.N. Singh, learned counsel for appellant submits  that the appellate court proceeded to hold that the estate was encumbered  and order of the Collector under Section 6 of  U.P. Act of 1934 was operative only for the reason that the learned counsel for defendant did not dispute the fact. He submits that no such concession was given in the appellate court. The fact whether the estate was encumbered and protected  under U.P. Act of 1934  and that all transactions of protected estate were void under Section 7 (4) of the Act, depended on the protection  order under Section 6 of the Act of 1934 passed by the Collector. There was an order dated 26.4.1947 (Ext. 23) exempting the half share of Laxmi Narain from the proceedings. This order was apparently made under Section 9 (5) of the Act which authorized Special Judge determining the amount of joint liability of the joint debtors. By this order the half share of defendant nos. 2 to 4 was exempted and the remaining half share continued to be subject matter of the proceedings.

20. The trial court recorded findings that Badri had inherited 1/4th  share from Mahadeo and Shiv Nath and Bhola Nath had inherited 1/4th  share  from Hari and thus Shiv Nath and Bhola Nath had 1/4th share on the disputed grove. The half share of Prayag  Sahu was inherited by Bindra and half share of Bindra was inherited by Laxmi Narain. The trial court recorded the findings that disputed grove was joint in which Prayag Sahu had half share and the branches of Ayodhya had larger share and that the disputed plot was purchased from joint family funds. Shiv Nath and Badri filed an application (Ext. B-1) under Section 4 of the U.P. Encumbered Estates Act. It was forwarded to the Special Judge-II Mirzapur in Case No. 23 of 1936. There were seven claims of creditors in the case.  The claim no. 1 was of Banaras State Bank Ltd; claim no. 2 of the Cooperative Society Banaras; claim no. 3  of Hazari Suraj Prasad; claim no. 4  of Gauri Shanker; claim no. 5  of Kedar Hazari; claim no. 6 was of Laxmi Dutt and claimant no. 7 of Batuk Nath. These claims were decreed against Badri; Bhola and Shiv Nath and period of decree was also mentioned in the judgment dated 16.12.1945. A revised provisional award was given on 4.2.1948 (Ext. A-11) in Case No. 5 of 1944 in which only Banaras Estate Bank Ltd was entitled to get its money. The other debts were discharged. The appeal preferred by Gauri Shanker was allowed on 14.11.1958. The provisional award was set aside and the case was remanded to the trial court on 10.7.1963 (Ext. A-12). The appellate court's judgment dated 10.7.1963 shows that debts of Banaras Estate Bank Ltd and Cooperative Society were liquated and their decrees were satisfied. The debts of other claimants were not liquated and thus it was held that Badri could not have executed the sale deeds in favour of Markandey Sardar-defendant no. 1 and that the said sale deed was void under Section 7 (4) of the U.P. Act of 1934.

21. The trial court further found that defendant no. 2 had 1/4th  share on the disputed grove. He could therefore sell only 1/4th  share. The defendant no. 2, however, transferred a specified half portion on the disputed grove to the defendants, which he could not do and thus the sale deed had to be cancelled.

22. These findings have been affirmed by the appellate court. The question whether U.P. Encumbered Estates Act 1934 continue to apply even after the enforcement of Zamindari Abolition and Land Reforms Act 1951 is thus decided in affirmative. This decision, however, does not help the appellant as the sale deed was void on the date of disputed sale deed dated 16.4.1967. The estate was encumbered and that the sale deed  was executed without permission of the Collector.

23. Shri R.N. Singh then submitted that a person could transfer his share and that sale deed qua the share of the transferor would be valid. He relies upon the judgment in Ram Narain Rai vs. Assistant Settlement Officer URC 1974, 293 in which it was held that when an individual co-sharer sells undivided land, he gets the benefit of delivery and area sold away is liable to be adjusted against his share at the partition. The second judgment in Pal Singh vs. Deputy Director of Consolidation 1970 AWR 895 and Full Bench in Ram Raj Singh 1943 AWR 213 holding that transfer by co-owner cannot adversely  affect the right of other owner and that the transferee will only step into the  shoes of transferor to claim and  enjoy the  rights that belonged to his transferor, is a good law but has  no application to the present case. Under U.P. Encumbered Estates Act 1934, the liability of joint debtor could be decided under Section 9 (5) of the Act  to determine the amount of joint debt which is due by the debtor or debtors who have applied and the amount due by those who have not applied. The Act, however, does not provide for partition and separation of the encumbered estate to the extent of the interest of the shareholder in the encumbered estates. Even if such proceeding could be taken, there is no evidence that Badri had applied for separating his 1/4th   share in the grove for executing sale deed dated 16.4.1969. The sale was in contravention of Section 7 (3) of the U.P. Encumbered Estates Act 1934 and was a void transaction under sub section (4). The courts below as such did not commit any illegality in cancelling the sale deed.

24. Coming to the question of issuing permanent injunction restraining the defendants from interfering in plaintiff's rights, once the sale deed is declared to be void and suit for cancellation of sale deed was decreed, the plaintiffs were entitled to perpetual injunction restraining the defendants from interfering in their rights. The trial court, however, dismissed the suit for relief of perpetual injunction on the ground that plaintiff had claimed partition injunction. The heirs of defendant nos. 1, 2 and defendant nos. 3 and 4 were his co sharers and that in the absence of partition no such injunction could be claimed for exclusive possession against heirs of defendant nos. 1, and 2 and defendant nos. 3 and 4. The trial court, however, dismissed the suit against defendant no. 1 on the ground that there was no separate prayer restraining defendant no. 1 to be perpetually restrained from interfering in their joint possession of the grove.

25. The Appellate Court  held that such a defect could not be a ground to refuse a relief of perpetual injunction. Once the sale is declared to be void, the relief of perpetual injunction could not be refused. The purchaser of the land through a void sale deed could be restrained  from interfering in the possession of the plaintiff.

26 The second appeal is consequently dismissed. The cross objection is also dismissed. The appellants will pay cost of proceedings to the respondents.




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