Maqbool v. Mst. Baitula

Reserved on : 06.11.2023 Delivered on : 09.11.2023 Court No. - 48 Case :- WRIT - B No. - 14454 of 1981 Petitioner :- Maqbool Respondent :- Mst. Baitula Counsel for Petitioner :- Sanjai Misra,Dinesh Pathak,N.N.Mishra,Rakesh Pathak,S. Misra,Shailesh Kumar Tripathi Counsel for Respondent :- S.C.,A.Shafaut,Afshan Shafat,Madhur Prakash Hon'ble Saurabh Shyam Shamshery,J.

¶1The present case is arising out of a proceeding under Section 9-A(2) of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred as 'Act of 1953).

¶2The original petitioners before this Court have claimed their right on a share of their uncle namely, Shareef on basis of a sale deed executed by vendor (Shareef) on 23.7.1975 in their favour. The sale deed was challenged at instance of petitioner's uncle. However, since consolidation proceedings commenced, therefore, the suit was abated.

¶3In the aforesaid circumstances the original petitioners have filed objections in regard to land described in the sale deed being chak no. 700 of village Birdpur No.6, chak No.2 of village Mahdaiya and chak No.56 and 85 of village Marvatiya @ Narchahva, situated in Tehsil Naugarh, District Basti. The aforesaid objections were opposed by contesting respondents. In all there were 10 objections. The Consolidation Officer after considering rival pleadings has framed following five issues :- "

विा숌�क꿑�आधाꚊ섅पꚊ섅इसम諘ꖀविम् ा숌�विन्숌�勛匫विवि⸟㝀विकय꿑�गय꿑�हैः-1-

क्यामकू룾आवि숌�विावि숌�⸟㝀भूविमपꚊ섅जविꚊ섅滁码ैामाभूविमधꚊ섅स꿑�अविधपत्यहै। 2-

शꚊ섅ीɍकीमृत्य勛匫विकसवि⸟㝀वि) क꽦Ꚏह勛匫यीहैआयाैामावि룾ख꿑�क꿑�पू याा숌�म꿑�औꚊ섅

उसकाप्Ꚋ섅भा क्याहै। 3-

क्याैामाविापू अ勛匫मवि⸟㝀न्숌�꽦Ꚏस्⸟㝀अविधकाꚊ섅ीक꿑�हैयवि숌�हाⷴ⹧⸟㝀꽦Ꚏप्Ꚋ섅भा। 4-

क्याैामाहकमकू룾आवि숌�विम जावि शꚊ섅ीकैधाविकहैयवि숌�हाⷴ⹧⸟㝀꽦Ꚏ प्Ꚋ섅भा। 5-

शꚊ섅ीɍमृ⸟㝀ककाैधाविकाविꚊ섅सकौ है?"

¶4The Consolidation Officer by order dated 1.3.1980 decided aforesaid issue Nos.1 and 4 in negative. So far as issue No.3 it was 1 of 8 decided in affirmative and in regard to issue no.2, it was held that since vendor Shareef has not taken any proceeding to declare himself to be Bhoomidhar, as well as no permission was sought to execute a sale deed in terms of provisions of Act of 1953, therefore, he had no right to sell. The relevant part of the order is mentioned hereinafter :- "

मकू룾क꿑�⸟㝀Ꚋ섅ɍस꿑�एकक룾आ숌�꿑�शपꚊ섅मीश क꽦Ꚏ숌�ाविख룾विकयागयाहैइसक룾

कीविपᑞ꿑�ɍजी  जा룾ी⸟㝀ैयाꚊ섅कꚊ섅ाकहाहैइससम्न्धम諘ꖀउस꿑�एकप्Ꚋ섅ा)ा

प⸟㝀्Ꚋ섅숌�꿑�भीवि숌�याहै।

क룾पꚊ섅मीश क꽦ꚎगौꚊ섅स꿑�숌�꿑�ख꿑�स꿑�यहविवि숌�⸟㝀ह꽦Ꚏ⸟㝀ाहैविकइस

क룾पꚊ섅सहायकन्숌�꽦Ꚏस्⸟㝀अविधकाꚊ섅ीचकन्숌�ीकीम勛匫हꚊ섅룾गीहैजविकक룾

एस०ओ०सी०क꿑�यहा폳릦स꿑�जाꚊ섅ीह꽦Ꚏ⸟㝀ीहैɍौवि⸟㝀य꽦Ꚏक꽦Ꚏ숌�꿑�ख꿑�स꿑�यहविवि숌�⸟㝀ह꽦Ꚏ⸟㝀ाहैविक

इसम꿑�प्Ꚋ섅वि⸟㝀वि룾विपस폳릦룾ग् हैज꽦Ꚏशब्숌�वि룾खा)ाउसकीएक숌�्विय勛匫Ꚋ섅स꿑�विम룾कꚊ섅

प्Ꚋ섅वि⸟㝀वि룾विपहैकꚊ섅वि숌�यागयाहैीचम諘ꖀएक룾ाई 滁码सीवि룾ख숌�ीगयीहैɍौवि⸟㝀य኶ሾज꽦Ꚏ

x x x

विकयागया)ाउसकीइ폳릦कवि숌�य꿑�Ꚋ섅स꿑�룾ाइ पꚊ섅कीविमटाकꚊ섅उसपꚊ섅इाꚊ섅⸟㝀वि룾खी

गयीहैएकसा룾जा क꿑�प्Ꚋ섅प⸟㝀्Ꚋ섅पꚊ섅विपᑞी꿑�Ꚋ섅꽦Ꚏत्यम꿑�यह숌�ाविख룾विकयाहैविक

01.06.75

स꿑� 29.07.1975

क꿑�ीचशꚊ섅ीɍप勛匫⸟㝀्Ꚋ섅वि⸟㝀룾ा ्ቑप勛匫Ꚋ섅폳릦०

मꚊ섅विटयाउɍ

Ꚋ섅चहा महवि숌�याक꿑�ा⸟㝀क꽦ꚎईपꚊ섅मीश सहीप्Ꚋ섅ाप्⸟㝀विकयाहैइसस꿑�भीयह

पꚊ섅मीश कीक룾प勛匫जा विस슇�हैज꽦Ꚏप्Ꚋ섅त्यᑞक룾숌�꿑�ख꿑�स꿑�भीस्पष्टहै।मल्숌�꿑�इया

काचकम्Ꚋ섅हैजविकइसम꿑�चकम्Ꚋ섅

वि룾खाहैइसस꿑�यहविस슇�ह꽦Ꚏजा⸟㝀ाहैविक

ैामाविापू अ勛匫मवि⸟㝀०अ०च०्ቛ ाꚊ섅ाप्Ꚋ섅ाप्⸟㝀विकयागयाहै।" (emphasis supplied)

¶5The aforesaid order was challenged at behest of the petitioners by way of filing an appeal before the appellate authority, however, same was rejected by an order dated 27.5.1981 and relevant part thereof is mentioned hereunder :- "

चकस폳릦ख्या700

ग्Ꚋ섅ाम숌�प勛匫Ꚋ섅폳릦०6

सीꚊ섅숌�ाꚊ섅ीहैइसम꿑�शꚊ섅ीɍ꿑�अप꿑�अⷴ⹧शका20 ग勛匫ा

जमाविकयाहैपꚊ섅न्⸟㝀勛匫हअप꿑�जी का룾म꿑�भूविमधꚊ섅घ꽦ꚎविE⸟㝀ही폳릦ह勛匫ए)꿑�विल्कयह

म勛匫क숌�माअन्⸟㝀⸟㝀ःअैटह勛匫आजहा폳릦⸟㝀कअपी룾क⸟㝀ा क꿑�वि्ቛा अविभभाEकक꿑�इस⸟㝀क

काप्Ꚋ섅श् हैविकअ सभीसीꚊ섅숌�ाꚊ섅ीभूविमधꚊ섅ह꽦Ꚏगय꿑�हैइसवि룾एइसका룾ाभ

अपी룾क⸟㝀ाओ폳릦क꽦Ꚏवि숌�याजाय꿑�मै

उक꿑�इस⸟㝀क स꿑�सहम⸟㝀हीहूⷴ⹧सभीसीꚊ섅숌�ाꚊ섅

1977

ई०म諘ꖀभूविमधꚊ섅घ꽦ꚎविE⸟㝀ह勛匫एहैऔꚊ섅उसस꿑�ह勛匫⸟㝀पू शꚊ섅ीɍका숌�꿑�हान्⸟㝀ह꽦Ꚏगया)ा

इसवि룾एशꚊ섅ीɍअप꿑�जीका룾म諘ꖀचकस폳릦०

म諘ꖀअप꿑�अ폳릦शक꿑�भूविमधꚊ섅घ꽦ꚎविE⸟㝀ही폳릦

ह勛匫ए)꿑�विल्कयहभूविमसीꚊ섅숌�ाꚊ섅ीकी)ीऔꚊ섅इसक꿑�ैाम꿑�काक꽦Ꚏईप्Ꚋ섅श् हीउठ⸟㝀ा

इसवि룾एयवि숌�शꚊ섅ीɍ꿑�अ勛匫मवि⸟㝀룾꿑�कꚊ섅भीचकस폳릦०

काैामाविकयाह꽦Ꚏ⸟㝀ा⸟㝀 भी

उसक꿑�숌�ाविख룾खाविꚊ섅जकाक꽦Ꚏईप्Ꚋ섅श् ही폳릦उठ⸟㝀ा)ा।" (emphasis supplied)

¶6The fate of revision petition filed at behest of the petitioners also remained same and revision was dismissed by order dated 7.11.1981 and relevant part thereof is mentioned hereunder :- "

उपꚊ섅꽦Ꚏक्⸟㝀वि꿑�च क꿑�आधाꚊ섅पꚊ섅मैयहपा⸟㝀ाहूⷴ⹧विकमकू룾꿑�अप꿑�या म꿑�यह

स्ीकाꚊ섅कꚊ섅वि룾याहैविकपꚊ섅मीश ही폳릦वि룾यागया)ाइसक꿑�अवि⸟㝀विꚊ섅क्⸟㝀पꚊ섅मीश स꿑�

सम्विन्ध⸟㝀आ숌�꿑�शकीप्Ꚋ섅वि⸟㝀विपवि룾ज꽦Ꚏप⸟㝀्Ꚋ섅ा룾ीम諘ꖀ숌�ाविख룾हैउसक꿑�ाꚊ섅꿑�म諘ꖀचकन्숌�ी

अविधकाꚊ섅ी⸟㝀)ासहायकन्숌�꽦Ꚏस्⸟㝀अविधकाꚊ섅ी꿑�ज꽦ꚎविEकE विका룾꿑�है꿑�उविच⸟㝀है।

सा룾जा क꿑�ɍाम स꿑�भीविस슇�ह꽦Ꚏ⸟㝀ाहैविकक꽦ꚎईपꚊ섅मीश ही폳릦वि룾यागया।चक

स폳릦ख्या

ग्Ꚋ섅ाम्ቑप勛匫Ꚋ섅म्Ꚋ섅

सीꚊ섅숌�ाꚊ섅ीभूविमहै।शꚊ섅ीɍउसक꿑�भूविमधꚊ섅ही폳릦घ꽦ꚎविE⸟㝀

2 of 8

ह勛匫ए)꿑�।滁码सीपविꚊ섅विस्)वि⸟㝀म꿑�क꽦Ꚏईभी滁码साविन्숌�勛匫ही폳릦चाहैविजसक꿑�वि룾य꿑�प⸟㝀्Ꚋ섅ा룾ी

अधीस्) न्याया룾यक꽦Ꚏप्Ꚋ섅त्यावि⸟㝀⸟㝀कीजासक꿑�।अधीस्) न्याया룾य኶ሾक꿑�आ숌�꿑�श꽦Ꚏम꿑�

क꽦Ꚏई⸟㝀्रुविटपविꚊ섅룾विᑞ⸟㝀ही폳릦ह꽦Ꚏ⸟㝀ीहैऔꚊ섅꿑�न्यायस폳릦ग⸟㝀ए폳릦उविच⸟㝀है।" (emphasis supplied)

¶7The aforesaid orders passed by the three authorities under Act of 1953 are impugned in the present writ petition.

¶8Sri A.K. Srivastava and Shailesh Kumar Tripathi, learned counsel for petitioners have vehemently urged that since challenge to the sale deed before civil court was abated, therefore, the consolidation authorities have no power to cancel it or to withheld its legal consequences. The vendor Shareef has heritated his share and it was rightful for him to make sale deed in favour of the petitioners in regard to his share. The sale deed was executed by vendor after taking proper permission as required under Section 5(1) (c) of Act of 1953, which was placed on record and finding returned by the Consolidation Officer upheld by other two authorities that the document of permission was a forged document was perverse since it was returned without any proper enquiry.

¶9Learned counsel in alternative has submitted that even sale deed is considered to be unenforceable, still petitioners have a right to have share of Shareef being his uncle, who died issueless, however, such issue was not dealt or considered by any authorities.

¶10Per contra Mr. Madhur Prakash, learned counsel for respondent No.3 vehemently urged that not only permission was considered to be a doubtful document on basis of content thereof but since vendor of the original petitioner was not declared bhoomidhar, therefore, he was not legally empowered or entitled to execute any sale deed.

¶11Learned counsel has referred the statement of petitioner No.1 (Makbool) that he has accepted that no such permission was sought. Counsel also added that land in dispute was a Sir land, therefore, it could not be sold.

¶12In rejoinder, learned counsels for petitioners have referred Section 91 of the Evidence Act that since the document of permission was on record, therefore, no oral evidence could be raised.

¶13Heard counsel for parties and perused the records.

¶14On basis of above referred factual and legal position, the challenge before this Court is concurrent finding of three authorities under the Act of 1953 and has held by Supreme Court in case of Krishnanand (Dead) through Legal Representatives and others vs. Deputy Director of 3 of 8 Consolidation and others, (2015) 1 SCC 553, any concurrent finding could be interfered in writ jurisdiction only when it suffer with perversity or passed beyond jurisdiction. Relevant paragraph thereof are mentioned hereinafter :- "12. The High Court has committed an error in reversing the findings of fact arrived at by the authorities below in coming to the conclusion that there was a partition. No doubt, the High Court did so in exercise of its jurisdiction under Article 226 of the Constitution. It is a settled law that such a jurisdiction cannot be exercised for re-appreciating the evidence and arrival of findings of facts unless the authority which passed the impugned order does not have jurisdiction to render the finding or has acted in excess of its jurisdiction or the finding is patently perverse. In the present case, though the High Court reversed the concurrent findings of the authorities below and came to the opposite conclusion on matter of facts, the High Court did not do so on the ground that the authorities below acted in excess of their jurisdiction or without jurisdiction or that the finding is vitiated by perversity.

¶13We are of the view that the High Court ought not to have entered into re-appreciation of evidence and reversed the findings of fact arrived at by the three authorities below, especially since, the authorities had neither exceeded their jurisdiction nor acted perversely. The High Court has no where stated that it was of the view that there is any perversity, much less the High Court failed to demonstrate any such circumstances." (Emphasis Supplied)

¶15The dispute which requires consideration is in regard to a permission allegedly granted under Section 5(1) (c) of the Act of 1953. All the three authorities have returned a concurrent finding that purported permission was not genuine as well as that no such permission was ever issued, therefore, it would be a case of fraud.

¶16The relevant findings returned by three authorities have already been reproduced in preceding paragraphs.

¶17Learned counsels for petitioners has tried to convince this Court that a document which was placed on record, could not be doubted on oral evidence and for that he has referred Section 91 of the Evidence Act. A copy of said document is not on record, therefore, finding returned by the Consolidation Officer on perusal of purported permission that there was use of ink remover and overwriting thereof, therefore, document was considered to be a doubtful document i.e. not a genuine document. In this regard, learned counsel for petitioners have not placed any substantial material or argument to disbelieve finding returned by the Consolidation Officer and as referred above further upheld by two authorities namely Appellate as well as Revisional. 4 of 8

¶18In the aforesaid circumstances, I am of considered opinion that document purportedly a permission granted under Section 5 (1) (c) of Act of 1953 could not be considered to be a genuine document, therefore, the argument of learned counsel for respondent No.3 that land was a Sir land, therefore, it could be sold and further that there was no document on record that by paying 10 times rent, the vendor has become bhumidhar also became relevant.

¶19It would apposite to refer a judgment passed by Supreme Court in the case of Placido Francisco Pinto v. Jose Francisco Pinto, 2021 SCC OnLine SC 842 that oral evidence of a written document is excluded except when it is sought to be alleged the document as a sham transaction and as discussed above, alleged document of permission was held to be a forged document. The relevant paragraphs of the Placido Francisco Pinto (supra) are reproduced hereinafter :- "24. Mr. Dhruv Mehta relied upon judgments of this Court reported as Smt. Gangabai w/o Rambilas Gilda v. Smt. Chhabubai w/o Pukharajji Gandhi

(1982) 1 SCC 4

and Roop Kumar v. Mohan Thedani

(2003) 6 SCC

to

contend that the respondents can lead oral evidence to rebut the contents of the document but not the appellants who had relied upon the sale deed. In Gangabai, the plaintiff entered into an agreement with the appellant for a loan of Rs. 2,000/- and it was decided that simultaneously the plaintiff would execute a nominal document of sale and a rent note. It was alleged by the plaintiff that documents were never intended to be acted upon. The trial court decreed the suit holding that the sale deed was never intended to be acted upon but the First Appellate Court held that the sale has taken place but the transaction between the parties constitutes a mortgage. The High Court held that Section 92 of the Indian Evidence Act, 1872 did not prevent plaintiff from establishing the true nature of the transaction. In appeal, this Court held that first proviso to Section 92 permits any fact which may prove which would invalidate any document, such as fraud, intimidation, illegality, want of due execution can be led into evidence. This Court while dismissing appeal of the defendant held as under: "11. …It is clear to us that the bar imposed by sub-section (1) of Section 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub-section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a 5 of 8 question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties…"

¶25A reading of the aforesaid judgment would show that it was open to the plaintiff to assert that the document was never intended to be acted upon and the document is a sham. Such question arises when one party asserts that there has been a different transaction altogether than what is recorded in the document. It is for that purpose oral evidence is admissible.

¶26In Roop Kumar, this Court was seized of an appeal filed by the defendant arising out of a suit for possession and for rendition of accounts. The plaintiff claimed that he entered into an agency-cum-deed of license with the appellant-defendant on 15.5.1975 and the terms of such agency-cum-licensing agreement was incorporated in an agreement dated 15.5.1975. The stand of the defendant was that he was in lawful possession as a tenant under the plaintiff. The trial court decreed the suit holding that the transaction between the respondent and the appellant evidenced by an agreement dated 15.5.1975 amounts to license and not sub-letting. The question before the High Court was whether a relationship between the parties is that of a licensor and licensee or that of a lessor and lessee. The first appeal was dismissed. This Court held that it is general and most inflexible rule that in respect of written instruments, any other evidence is excluded from being used either as a substitute for such instruments, or to contradict or alter them. This is a matter both of principle and policy. It was held that in Section 92 of the Evidence Act, the legislature has prevented oral evidence from being adduced for the purpose of varying the contract, such contract can be proved by production of such writing. It was held that Section 91 is concerned with the mode of proof of a document with limitation imposed by Section 92. If after the document has been produced to prove its terms under Section 91, provisions of Section 92 come into operation for the purpose of excluding evidence of any oral agreement or statement for the purpose of contradicting, varying, adding or subtracting from its terms. This Court held as under: "17. It is likewise a general and most inflexible rule that wherever written instruments are appointed, either by the requirement of law, or by the contract 6 of 8 of the parties, to be the repositories and memorials of truth, any other evidence is excluded from being used either as a substitute for such instruments, or to contradict or alter them. This is a matter both of principle and policy. It is of principle because such instruments are in their own nature and origin, entitled to a much higher degree of credit than oral evidence. It is of policy because it would be attended with great mischief if those instruments, upon which men's rights depended, were liable to be impeached by loose collateral evidence. (See Starkie on Evidence, p. 648.)

¶18In Section 92 the legislature has prevented oral evidence being adduced for the purpose of varying the contract as between the parties to the contract; but, no such limitations are imposed under Section 91. Having regard to the jural position of Sections 91 and 92 and the deliberate omission from Section 91 of such words of limitation, it must be taken note of that even a third party if he wants to establish a particular contract between certain others, either when such contract has been reduced to in a document or where under the law such contract has to be in writing, can only prove such contract by the production of such writing. xxxxxx

¶21The grounds of exclusion of extrinsic evidence are : (i) to admit inferior evidence when the law requires superior would amount to nullifying the law, and (ii) when parties have deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory.

¶22This Court in Gangabai v. Chhabubai [(1982) 1 SCC 4 : AIR 1982 SC 20] and Ishwar Dass Jain v. Sohan Lal [(2000) 1 SCC 434 : AIR 2000 SC 426] with reference to Section 92(1) held that it is permissible to a party to a deed to contend that the deed was not intended to be acted upon, but was only a sham document. The bar arises only when the document is relied upon and its terms are sought to be varied and contradicted. Oral evidence is admissible to show that document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties." 7 of 8

¶27A perusal of the above judgment would show that the oral evidence of a written agreement is excluded except when it is sought to be alleged the document as a sham transaction."

¶20In the present case, it was alleged that document of permission was a sham i.e. not a genuine document, therefore, there was no bar to raise evidence.

¶21The outcome of the above referred discussion on facts and law is that since the petitioners have failed to point out any perversity or irregularity in the impugned order and has discussed above, all the argument raised have no legal basis, therefore, there is no ground to interfere with concurrent finding of three authorities, therefore, this writ petition is accordingly, dismissed. Order Date :- 9.11.2023 Md Faisal 8 of 8 High Court of Judicature at Allahabad