Prafulla C. Pant, J.@mdashThis appeal, preferred u/s 100 of Code of Civil Procedure, 1908, is directed against the judgment and decree dated 10-04-1980, passed by the then District Judge, Almora, in civil appeal No. 49 of 1978 (A), whereby the judgment and decree dated 03-11-1978, passed by Civil Judge, Almora, in Original Suit No. 03 of 1977 (A), is affirmed.
2. Heard learned Counsel for the parties and perused the entire lower court record.
3. Brief facts of the case are that the Plaintiffs/Respondents, filed civil suit No. 03 of 1977 (A), for declaration, arrears of rent and ejectment of Defendants. It is pleaded by the Plaintiffs that they are the owners of the house in suit, mentioned in the plaint. As per the Schedule A in the plaint, house in suit is situated in plots No. 791, 792, 793 and 794. Its courtyard is in plot No. 788 and 790. Land of plot No. 779, 780, 781, 783, 785, 786 and 787, are part of the house, used as BARA (kitchen garden etc.). Property is situated in Bageshwar (earlier part of District Almora). It is pleaded in the plaint that originally land in suit belonged to one Kifaiatullah, grantee of the State, who transferred land through sale deed to one Chintamani. Plaintiffs purchased the property in suit from Chintamani, who executed sale deed in their favour. Plaintiffs case is that Defendant - Bishan Lal Sah, was given the property in suit on rent at the rate of Rs. 64/- per month. It is alleged that he sub-let a portion of the property to Padam Singh (present Respondent No. 4). As such, the Plaintiff after serving notice terminated the tenancy of the Defendant/Appellant, and instituted a suit in the court of Judge Small Causes Court, where the Defendant / Appellant raised objection that he had perfected the title over the property in suit by virtue of adverse possessfofl. On this, plaint of Plaintiff was returned by the Judge Small Causes Court, for presentation before the competent court. Thereafter suit No. 03 of 1977 (A), was instituted before the civil court.
4. Defendant/Appellant Bishan Lal Sah, contested the suit before the trial court and claimed the title over the property in suit. It is specifically pleaded by the Defendant/Appellant that he has become bhumidhar of plots No. 779, 780, 782, 783, 785, 786, and 787, under provisions of U.P. Zamindari Abolition and Land Reforms Act, 1950, as he was a Sirtan of these plots on the date of vesting of the land on the State. With regard to the house, shop, chowk, verandah, kitchen and courtyard, situated in other plots in suit, it is pleaded by the Defendant / Appellant in his written statement that he has perfected the title over the same by virtue of adverse possession, as he enjoyed the possession of the same, uninterruptedly and peacefully for more than 12 years. Denying the sale deed, relied by the Plaintiffs, it is stated that Plaintiffs surreptitiously obtained fictitious documents to get dispossessed the Defendant-Bishan Lal Sah. It is also pleaded that the suit is bad for non joinder of necessary parties. The Defendant/Appellant, denied the landlord-tenant relationship between the parties.
5. Defendant No. 2 filed his written statement before the trial court, who admitted that the shop in question, which is situated in one of the plots in suit, was let out to him by Defendant No. 1- Bishan Lal Sah. It is pleaded by this Defendant that Plaintiffs have no right to eject him from the shop in question. However, later he did not contest the suit and as against him proceedings were drawn exparte.
6. On the basis of the pleadings of the parties, following issues were framed by the trial court:
1. Whether the Plaintiffs are the owners of the disputed property?
2. Whether the disputed property was let out to Defendant No. 1 on rent at the rate of Rs. 64/- per month by Laxmi Datt, father of the Plaintiffs ?
3. Whether the disputed portion of the disputed property has been sublet by Defendant No. 1 to Defendant No. 2 without permission of the Plaintiffs ? If so, its affect ?
4. Whether the Defendant No. 1 has not paid the rent to the Plaintiffs ? If so, are the Plaintiffs entitled to recover the amount of Rs. 2,240/- claimed by them, as arrears of rent for two years and 11 months ?
5. Whether the tenancy of the Defendant No. 1 has been terminated by the Plaintiffs through notice dated 20-03-1976 ? If so, its affect ?
6. Whether the notice dated 20-03-1976 is illegal ? If so, its affect ?
7. Whether the Court is competent to try the suit, as alleged in para-9 of the written statement 18A of the Defendant No. 1 ?
8. Whether the disputed property lies in plots No. 779, 780, 781, 782, 783, 785 and 787?
9. Whether the Defendant No. 1 has acquired bhumidhari right over the plot No. 779 to 787 (except 784), as alleged in para-10 of the written statement (18-A) of Defendant No. 1 ?
10. Whether the Defendant No. 1 has acquired the title by way of adverse possession over the disputed property by enjoying the same for last more than 12 years ? If so, its effect?
11. Whether the suit is bad for non impleadment of necessary parties, as alleged in para-14 and 15 of the written statement 18-A ?
12. Whether the verification of the plaint is defective, as alleged in the para-17 of the written statement of Defendant No. 1 ?
13. To what relief, if any, are the Plaintiffs entitled ?
7. The trial court after recording the evidence and hearing the parties, came to the conclusion that the Defendant No. 1 (Appellant) has become bhumidhar over plots No. 779 to 787 (except plot No. 784) under U.P. Zamindari Abolition and Land Reforms Act, 1950, and as such, the Plaintiffs are not entitled to any relief in respect of these plots. It further found that the house in suit is situated in plots No. 791 to 794, which was in the tenancy of the Defendant No. 1. It is also found proved on record that originally land belonged to one Kifaitullah, who transferred the land to Chintamani and he (Chintamani) by sale deed transferred the property in suit to Plaintiffs. The trial court also found that there existed landlord and tenant relationship between the Plaintiffs and the Defendant No. 1 in respect of the house in suit, situated in plots No. 791 to 794. It further found that the Defendant No. 1 Bishan Lal Sah, had committed default in payment of rent and his tenancy was terminated, as mentioned in the plaint. It is also found that Defendant No. 1 illegally let out the shop to Defendant No. 2. Accordingly, the trial court vide its judgment and decree dated 03-11-1978 decreed the suit for recovery of arrears of rent and mesne profits and also for the ejectment of the Defendants from the house in suit, situated in plots No. 791 to 794. However, the suit is dismissed by the trial court in respect of plots No. 779, 780, 782, 783, 785, 786, and 787. Aggrieved by said judgment and decree dated 03-11-1978, passed in suit No. 03 of 1977(A), Defendant No. 1 Bishan Lal Sah, filed civil appeal No. 49 of 1978(A). After hearing the parties, said civil appeal was partly allowed by learned District Judge, Almora, vide its judgment and order dated 10-04-1980, whereby only amount of arrears of rent was reduced from 2,240/- to 2,176/- and rest of the decree passed by the trial court, is affirmed. Hence this second appeal is filed before Allahabad High Court by Defendant No. 1 Bishan Lal Sah, in the year 1980, where it was admitted on 02-06-1980 on following substantial questions of law:
1. Whether the certified copy of the sale deed was admissible in evidence in view of Section 65 of Indian Evidence Act ?
2. Whether the sale deed not showing the disputed property, was a document which could be read as document of title in respect of such property ?
This appeal is received by transfer u/s 35 of U P. Reorganisation Act, 2000. Following are the additional substantial questions of law, formulated by this Court:
3. Whether the disputed constructed property, standing on khasra No. 788, 790 to 794, stood vested in the original Defendant in view of Section 9 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 ?
4. Whether, on the denial of title by the Defendant present suit is not maintainable, after expiry of period of limitation for the suit u/s 209 of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 ?
8. Answers to substantial questions of law:
Shri Alok Singh, Sr. Advocate, on behalf of the Appellant drew attention of this Court to Section 9 of U.P. Zaminadari Abolition and Land Reforms Act, 1950, and argued that the buildings in occupation of owners, tenants and other persons settled with the occupants, and as such, the Plaintiffs who purchased the property in suit from intermediaries cannot evict the Defendants, as after the house in suit settled with the Defendant, who was the occupier of the house, he cannot be said to be the tenant of the Plaintiffs.
9. Section 9 of aforesaid Act, reads as under:
9. Private wells, trees in abadi and buildings to be settled with the existing owners or occupiers thereof- All wells, trees in abadi, and all buildings situate within the limits of an estate, belonging to or held by an intermediary or tenant or other person, whether residing in the village or not, shall continue to belong to or be held by such intermediary, tenant or person, as the case maybe, and the site of the wells or the buildings with the area appurtenant thereto shall be deemed to be settled with him by the State Government on such terms and conditions as may be prescribed.
U.P. Zaminadari Abolition and Land Reforms Act, 1950, (U.P. Act 1 of 1951) was made applicable in Uttarakhand (as its area then existed) on 01 -07-1969. The object of said Act was to provide for abolition of zamindari system, which involves intermediaries between the tiller of soil and State. To correctly interpret the intention of Section 9, quoted above, it is necessary to read the same with Sections 4 and 6 of said Act. Section 4 of U.P. Act No. 1 of 1951, provides vesting of estates in the State. Section 6 of said Act, provides consequences of vesting of an estate in the State. Clause (a) of Section 6, provides that all rights, title and interest of all the intermediaries in every estate in such area, including land (cultivable or barren), grove-land, forests whether within or outside village boundaries, trees (other than trees in village abadi, holding or grove), fisheries tanks, ponds, water-channels, ferries, pathways, abadi sites, hats, bazaars and melas other than hats, bazaars, and melas held upon land to which Clauses (a) to (c) of Sub-section (1) of Section 18 apply, shall cease and by vested in the State of Uttar Pradesh free from all encumbrances. That being so, Section 9 is an exception to what has been taken away from the intermediaries by the State. Now, the question raised before this Court, in appeal, is that whether a house in suit, which was owned by the Plaintiffs on the date of vesting and found to have been let out to Defendant No. 1 (present Appellant) settled with the Plaintiffs or the Defendants. As far as plots No. 779 to 787 (except plot No. 784), is concerned, there is concurrent finding of facts of both the courts below that over these plots, the Defendant No. 1 was Sirtan and after zamindari abolition, he became Bhumidhar of these plots. Therefore, the suit filed by the Plaintiff in respect of these plots was dismissed. But both the courts below have concurred that house, shop, kitchen and courtyard in suit, lie over plot No. 791 to 794 in respect of which Laxmi Datt (father of Plaintiffs) was recorded in Class IV in the revenue record, before the land was purchased by the Plaintiffs from the intermediary Chintamani (who had purchased it from original grantee Kifaitullah). As such, on the date of vesting, Plaintiffs were owners in possession of the house, shop, kitchen and courtyard etc. in suit and there is also concurrent finding of fact that Defendant No. 1 was their tenant on rent at the rate of Rs. 64/- per month. Word ''tenant'' used in Section 9 of U.P. Act 1 of 1951, is not defined in the Act, but it is mentioned in Clause (26) of Section 3 of the Act that word ''tenant'' will have the same meaning as given in the United Provinces Tenancy Act, 1939. Clause (23) of Section 3 of said Act defines the tenant, which refers to the tenancy in respect of land and it has no mention of the tenancy of a house.
10. On behalf of the Appellant, attention of this Court, is drawn to principle of law laid down in Budhan Singh v. Nabi Bux 1970 A.L.J. 903, in which the Supreme Court has defined word ''held'' used in Section 9 of U.P. Act 1 of 1951. In said case, the Apex Court has opined that word ''held'' in the Section means ''legally held''. I have gone through said case law. In my opinion, this case law does not help the Appellant in the present case, as in said case, the point in dispute was whether the intermediary who took advantage of communal rights when the Muslim occupants in the village over cowshed etc left the village for some short period, could be said to have ''held'' the houses, on the date of vesting or not. In the present case, this Court is considering different question- whether the shop, house, kitchen and courtyard in suit, which was let out by intermediary to the tenant, can be said to have held it on the date of vesting or not. In other words, whether it is the tenant in the house, who can be said to have ''held'' the building on the date of vesting or the intermediary. If object of U.P. Zamindari Abolition and Land Reforms Act, 1950, is kept in mind, that intention of the legislature was to remove the intermediary between the State and the actual tiller of the soil, it does not appear to be its intention to deprive the lawful owner of a house particularly when shop was also being run by the subtenant inducted unlawfully by the tenant. It is nobody''s case that U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, is applicable to the building. After considering all the aspects in the controversy in suit, this Court does not find force in the contention of the learned Counsel for the Appellant that it was tenant who held the house and, as such, it vested in him u/s 9 of U.P. Act 1 of 1951. It is pertinent to mention here that the rent note between the Plaintiff and Defendant No. 1 (Ext. 1 and Ext. 2) establishes the landlord-tenant relationship between the parties.
11. As far as substantial question of law No. 4 is concerned, since the property in dispute in respect of which the trial court has decreed the suit for ejectment of the Defendant, is house, as such, there is no applicability of Section 209 of U.P. Zamindari Abolition and Land Reforms Act, 1950, to it, which pertains only to land''. The trial court has already dismissed the suit against the Defendants in respect of plots No. 779 to 787 (except plot No. 784) to which Defendant No. 1 was Sirtan at the time of vesting of the land in State ana later became ''Bhumidhar''.
12. Section 65 of Indian Evidence Act, 1872, provides the cases in which secondary evidence relating to document may be given. Clause (f) of said Section provides that secondary evidence can be given when the original is a document of which certified copy is permitted under law to be given in evidence. Since sale deed executed by the original intermediary Kifaitullah, in favour of the Plaintiff-Chintamani, is not a document in dispute nor the basis of the suit, and its certified copy can be adduced in evidence, as such, there is no illegality committed by the courts below if the certified copy of sale deed is read in evidence in the case. As far as the registered sale deed, executed by Chintamani, is concerned, the original sale deed has been filed by the Plaintiffs (the purchasers) and the same is also proved on record. It is misconceived notion that the house in dispute is not mentioned in the sale deed, as perusal of the sale deed executed by Chintamani, does disclose about the land and building in suit, sold to the Plaintiffs.
All the substantial questions of law stand answered in favour of Plaintiffs (Respondents No. 1 to 3).
13. For the reasons as discussed above, this appeal has no force and the same is liable to be dismissed. The appeal is dismissed. However, the Defendants are allowed two months time to vacate the premises in suit for which the suit is decreed by the trial court, failing which the Plaintiffs would be at liberty to get the decree executed through said court. No order as to costs.
