# Ali Jan (Deceased) & Ors v. Fazroo & Anr

- **Citation:** (2016) 5 ILRA 1052
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-31
- **Bench:** Pramod Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ali-jan-deceased-ors-v-fazroo-anr-43723
- **Pages:** 6

## Headnote

Civil Law-Second appeal-Permanent injunction - Agricultural land - Recorded tenure holder and
bhumidhar - Unauthorized attempt to take possession - Partition - Possession - Registered will-deed
dated 27.8.1992 - Valid will-deed - Fraud - Forged document - Ownership and possession - Concurrent
5 All. Ali Jan (Deceased) & Ors. Vs Farzoo & Anr.

1053
finding - Section 331 - U.P. Z.A. & L.R. Act - Bar of suit - Dispute pending before revenue court - Board
of Revenue - Co-bhumidhar - No specific pleading of ownership - Suit not barred - First appellate court -
Erroneous and self contradictory finding - Second appeal - Judgment of trial court confirmed.

 Learned counsel for the appellant contended that admittedly Ali Jan was exclusive bhumidhar of the original
suit and he had declined any right of defendants over disputed property, and had executed will-deed of his
whole property in favour of plaintiff no. 1/3 Sugra Begum, which is proved from evidences; therefore the suit
was rightly decreed by trial court. He submitted that first appellate court had not properly appreciated the
legal position and after holding the plaintiff's ownership and possession of disputed property and all factual
points in favour of plaintiffs, it had dismissed the suit which was not barred by any legal provision.(Para 10)

Learned counsel for the respondents refuted these contentions and submitted that although original plaintiff
Ali Jan was owner of disputed agricultural land, but after his death all his legal heirs, including plaintiff and
defendants, became co-owners of his property. Therefore, plaintiffs have also acquired co-bhumidhari rights,
and injunction cannot be granted in favour of co-bhumidhar plaintiffs against other co-bhumidhar defendants
without any formal partition. He further submitted that bhumidhari rights are in dispute in this matter that can
be decided by revenue court; therefore the first appellate court had rightly held the suit barred by Section 331
of U.P. Z.A. & L.R. Act.(Para 11)

Held:(Paras-15,16)

It is a fact that after attaining finality of the judgment of revenue court regarding ownership and legal rights
of agricultural property, it would be binding on the parties. But at present it is apparent and established fact
that original owner of the disputed property Ali Jan had bequeathed said property in favour of his second wife
Smt. Sugra Begum (plaintiff no. 1/3) and appellants are substituted as plaintiffs in original suit, and were
found in possession of disputed property, and it is also proved that defendants had not specifically pleaded
their ownership of disputed property and were not found in possession of this property. Therefore, plaintiffappellants are entitled for the relief claimed in original suit.In view of the above, this appeal is allowed.

Case Law discussed:

## Text

1052 INDIAN LAW REPORTS ALLAHABAD SERIES
is correct and acceptable on facts and of law. Both the courts have given correct findings that it is
proved that appellants had received advance consideration and wullingly executed registered deed
of agreement for sale of disputed property to the respondents.

26. The only question to be determined in this matter at present is as to whether the
appellant had executed registered deed of contract for sale of his disputed property in favour of
respondent after receiving advance consideration, or not. This was not a question of law but was a
question of fact that could be decided on the basis of adduced evidences, as has been done by the
lower courts. There is no infirmity or perversity in findings of lower courts that may require
interference in it by re-appreciation of evidence. Therefore, in view of aforesaid discussions, the
second substantial question of law as above, is decided in negative, against the appellant and in
favour of respondents.

25. On examination of the reasonings recorded by the trial court, which are affirmed by the
learned first appellate court in first appeal, I am of the view that the judgments of the trial court as
well as the first appellate court are well reasoned and are based upon proper appreciation of the
entire evidences on record. No perversity or infirmity is found in the concurrent findings of fact
recorded by the lower courts regarding O.S. no. 491/1985 and first Civil Appeal no. 124/1994, to
warrant interference in this second appeal. None of the contentions of the learned counsel for the
appellant-defendant can be sustained.

26. In view of the above, this appeal is dismissed.
----------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Second Appeal No.- 519 Of 2016

Ali Jan (Deceased) & Ors. ...Appellants
Versus
Fazroo & Anr. ...Respondents

Counsel for the Appellants:
Manish Dev Singh.

Counsel for the Respondents:
Sheetla Sahai Srivastava.

Civil Law-Second appeal-Permanent injunction - Agricultural land - Recorded tenure holder and
bhumidhar - Unauthorized attempt to take possession - Partition - Possession - Registered will-deed
dated 27.8.1992 - Valid will-deed - Fraud - Forged document - Ownership and possession - Concurrent
5 All. Ali Jan (Deceased) & Ors. Vs Farzoo & Anr.

1053
finding - Section 331 - U.P. Z.A. & L.R. Act - Bar of suit - Dispute pending before revenue court - Board
of Revenue - Co-bhumidhar - No specific pleading of ownership - Suit not barred - First appellate court -
Erroneous and self contradictory finding - Second appeal - Judgment of trial court confirmed.

 Learned counsel for the appellant contended that admittedly Ali Jan was exclusive bhumidhar of the original
suit and he had declined any right of defendants over disputed property, and had executed will-deed of his
whole property in favour of plaintiff no. 1/3 Sugra Begum, which is proved from evidences; therefore the suit
was rightly decreed by trial court. He submitted that first appellate court had not properly appreciated the
legal position and after holding the plaintiff's ownership and possession of disputed property and all factual
points in favour of plaintiffs, it had dismissed the suit which was not barred by any legal provision.(Para 10)

Learned counsel for the respondents refuted these contentions and submitted that although original plaintiff
Ali Jan was owner of disputed agricultural land, but after his death all his legal heirs, including plaintiff and
defendants, became co-owners of his property. Therefore, plaintiffs have also acquired co-bhumidhari rights,
and injunction cannot be granted in favour of co-bhumidhar plaintiffs against other co-bhumidhar defendants
without any formal partition. He further submitted that bhumidhari rights are in dispute in this matter that can
be decided by revenue court; therefore the first appellate court had rightly held the suit barred by Section 331
of U.P. Z.A. & L.R. Act.(Para 11)

Held:(Paras-15,16)

It is a fact that after attaining finality of the judgment of revenue court regarding ownership and legal rights
of agricultural property, it would be binding on the parties. But at present it is apparent and established fact
that original owner of the disputed property Ali Jan had bequeathed said property in favour of his second wife
Smt. Sugra Begum (plaintiff no. 1/3) and appellants are substituted as plaintiffs in original suit, and were
found in possession of disputed property, and it is also proved that defendants had not specifically pleaded
their ownership of disputed property and were not found in possession of this property. Therefore, plaintiffappellants are entitled for the relief claimed in original suit.In view of the above, this appeal is allowed.

Case Law discussed:

(Delivered by Hon'ble Pramod Kumar Srivastava, J.)

1. It is admitted case that Ali Jan, plaintiff of the Original Suit No. 654/1992, was recorded
tenure holder and bhumidhar of disputed agricultural property detailed in the plaint. It is also
admitted that from his first marriage, defendants Fazroo and Wakaru were born. From second
marriage of Ali Jan with Smt. Sugra (plaintiff no. 1/3), two sons Shakaruddin (plaintiff no. 1/1) and
Mohd. Rashid (plaintiff no. 1/2) were born.

2. Plaintiff Ali Jan had filed original suit against his two sons Fazroo and Wakaru with
averment that his sons Fazroo (defendant no.-1) and Wakaru (defendant no.-2) born from his late
first wife are unauthorizedly attempting to take possession of his disputed bhumidhari property
from him. Therefore, defendants be restrained by means of permanent injunction. After filing of the
original suit, Ali Jan died and was substituted by his second wife Smt. Sugra and her two sons.

3. In original suit, defendants had filed joint written-statement, which was, in fact, filed
after the death of original plaintiff. In this written-statement, they had admitted that in revenue
1054 INDIAN LAW REPORTS ALLAHABAD SERIES
records, name of late Ali Jan is recorded. They further pleaded that Ali Jan had partitioned his land
and gave the possession of some land to defendants, over which they are in occupation. Ali Jan had
not executed any will-deed dated 27.8.1992. The dispute of ownership of this land is pending
before revenue courts. Suit is barred by Section 331 of U.P. Z.A. & L.R. Act and is liable to be
dismissed.

4. In original suit, trial court had framed several issues, in which issue no.-1 was as to
whether Ali Jan had partitioned the disputed land and gave it to defendants, issue no.-2 was as to
whether will-deed dated 27.8.1992 was based on fraud and is a forged document, issue no.-3 was as
to whether suit is barred by Section 331 of U.P. Z.A. & L.R. Act, issue no.-4 was relating to relief
sought, and issue no.-5 was as to whether plaintiff is owner in possession of disputed land.

5. After accepting evidences of the parties and appreciated them, trial court had decided all
the five issues in favour of plaintiff and decreed the original suit by its judgment dated 17.11.2007
for the relief of permanent injunction.

6. Against the judgment of trial court, Civil Appeal No. 144/2007, Fazroo and Anr. vs.
Shakaruddin and others, was filed by defendants of the original suit. In this appeal, first appellate
court had not framed specific points of determination but instead had taken all the above noted five
issues framed by trial court, and decided them one by one. In this judgment, first appellate court
had decided issue no. 1, 2 and 5 in favour of plaintiff, but decided issue no.-3 relating to bar of suit
by Section 331 of U.P. Z.A. & L.R. Act in affirmative and in favour of defendants, and thereafter
allowed the appeal on this sole ground and thus dismissed the original suit by setting aside the
judgment of trial court.

7. Against this impugned judgment of first appellate court dated 26.2.2016 passed by
Additional District Judge, Court No. 17, Meerut, present Second Appeal has been preferred by the
plaintiffs of the original suit.

8. It is admitted fact that issue no. 1, 2 and 5 framed by trial court relates to fact and were
decided independently by the two lower courts with concurrent finding in favour of plaintiffappellant and against defendantrespondent. Both the lower courts had given finding that it is not
proved that Ali Jan had partitioned any portion of disputed agricultural land or given any portion of
his agricultural property to defendant-respondent. Both the lower courts had appreciated the
evidences and gave finding of fact that it is proved that registered will-deed dated 27.8.1992 was
executed by original plaintiff Ali Jan in favour of his second wife Sugra (substituted plaintiff no.
1/1) and this is a valid document without any irregularity or illegality. Trial court and the first
appellate court had also given finding that plaintiffs, including substituted plaintiffs, are owner in
possession of disputed property. The ownership was decided on the basis of fact that original owner
was original plaintiff Ali Jan, who had specifically stated that defendants are not owner of the
property in question. The possession of plaintiffs/appellants over disputed property was decided on
the basis of evidences, with concurrent finding, in favour of plaintiffs.
5 All. Ali Jan (Deceased) & Ors. Vs Farzoo & Anr.

1055
9. Only issue no.-3 framed by trial court regarding bar of Section 331 of U.P. Z.A. & L.R.
Act was decided in affirmative by first appellate court on the ground that dispute is still pending in
revenue court, before the Board of Revenue; but during this period, it was ordered by Additional
Commissioner that name of defendants be recorded in revenue records, so in spite of pendency of
second appeal before Board of Revenue, the defendants appear to be the cobhumidhar of disputed
property, and such dispute can be decided by revenue courts. with these observations the lower
appellate court had held the suit is barred by Section 331 of U.P. Z.A. & L.R. Act. This finding and
judgment of first appellate court had led the plaintiffs to prefer present second appeal. This is the
only question to be considered and determined by this Court in this appeal.

10. Learned counsel for the appellant contended that admittedly Ali Jan was exclusive
bhumidhar of the original suit and he had declined any right of defendants over disputed property,
and had executed will-deed of his whole property in favour of plaintiff no. 1/3 Sugra Begum, which
is proved from evidences; therefore the suit was rightly decreed by trial court. He submitted that
first appellate court had not properly appreciated the legal position and after holding the plaintiff's
ownership and possession of disputed property and all factual points in favour of plaintiffs, it had
dismissed the suit which was not barred by any legal provision.

11. Learned counsel for the respondents refuted these contentions and submitted that
although original plaintiff Ali Jan was owner of disputed agricultural land, but after his death all his
legal heirs, including plaintiff and defendants, became co-owners of his property. Therefore,
plaintiffs have also acquired co-bhumidhari rights, and injunction cannot be granted in favour of
co-bhumidhar plaintiffs against other co-bhumidhar defendants without any formal partition. He
further submitted that bhumidhari rights are in dispute in this matter that can be decided by revenue
court; therefore the first appellate court had rightly held the suit barred by Section 331 of U.P. Z.A.
& L.R. Act.

12. It is admitted fact that before institution of suit and at the time of institution of suit, and
even immediately after death of original plaintiff Ali Jan, there was dispute between the parties.
Admittedly original plaintiff Ali Jan had pleaded himself to be the owner in possession of disputed
property and his name was rightly recorded in revenue court, which was never challenged by any
person. This fact was also admitted in written-statement of defendantrespondent. So for other
points raised as defence in written-statement, for which issue no. 1, 2 and 5 were framed, had also
been decided in favour of plaintiff-appellants with finding that they are owner in possession of
disputed property, that Ali Jan had executed registered will-deed dated 27.8.1992 in favour of his
second wife plaintiff no. 1/3 Smt. Sugra Begum and that said willdeed is a valid document, and that
he had never partitioned his property and had never gave possession of any portion of it to
defendants. It is strange that on one hand first appellate court had given specific finding on point of
law and fact in favour of appellants (substituted plaintiffs) and on other hand it had held the suit as
being barred by Section 331 of U.P. Z.A. & L.R. Act. This provision comes into effect when the
dispute of ownership of agricultural property is the main relief and relates to cause of action of the
suit. In present matter, admittedly, original plaintiff Ali Jan was owner of disputed agricultural land
had ownership and possession at the time of institution of suit, which has been found proved by the
1056 INDIAN LAW REPORTS ALLAHABAD SERIES
two lower courts. It is also proved that after his death, the substituted plaintiffs (appellants) became
owner and came in possession of disputed property. Even in written-statement, the defendants had
not claimed their right of ownership or co-ownership of disputed agricultural property. Had they
pleaded specifically of their right regarding this property, then matter would have been different,
but although issue no.-3 relating to bar of Section 331 aforesaid was framed on the basis of
writtenstatement, but there is no specific pleading that defendants are owner of property in
question. They had only pleaded that Smt. Sugra Begum wife of Ali Jan had got executed a forged
will-deed dated 27.8.1992, and from evidences this fact was found not proved. Instead, it was
proved that this will-deed was executed by late Ali Jan in favour of his second wife Smt. Sugra
Begum (plaintiff no. 1/3) and is a valid document. Thus the finding of first appellate court is
against the specific pleadings of the parties and is found legally unacceptable.

13. From the records, it is found that after the death of Ali Jan, the dispute under Land
Revenue Act had arisen and gone up to the Board of Revenue, which was decided in favour of
substituted plaintiffs (present appellants). But after that defendant Fazroo and Wakaru had initiated
another proceeding before revenue court, which is sub-judice and its judgment for not become
final. Therefore pending the appeal before Board of Revenue this observation of first appellate
court is erroneous that defendants are co-bhumidhar of disputed agricultural property. On this point
findings of first appellate court is self contradictory when at one place it had specifically mentioned
that dispute in revenue court had not reached to its finality and at another place it has found that on
the basis of observation of lower revenue court, the defendants appear to be the co-bhumidhar of
this property. Such self contradictory and erroneous finding of first appellate court is, in fact, infirm
and perverse, and is hereby set aside.

14. There has been concurrent finding of the trial court as well as the first appellate court
that initially original plaintiff Ali Jan, and after his death substituted plaintiffs (appellants) are
owner and in possession of disputed property. As discussed above, both the lower courts had given
concurrent finding on every disputed factual point in favour of plaintiff-appellant including their
ownership and possession. Therefore, the judgment of trial court for decreeing the original suit and
finding that the plaintiff is entitled for the relief of permanent injunction, is found correct.

15. It is a fact that after attaining finality of the judgment of revenue court regarding
ownership and legal rights of agricultural property, it would be binding on the parties. But at
present it is apparent and established fact that original owner of the disputed property Ali Jan had
bequeathed said property in favour of his second wife Smt. Sugra Begum (plaintiff no. 1/3) and
appellants are substituted as plaintiffs in original suit, and were found in possession of disputed
property, and it is also proved that defendants had not specifically pleaded their ownership of
disputed property and were not found in possession of this property. Therefore, plaintiff-appellants
are entitled for the relief claimed in original suit.

16. In view of the above, this appeal is allowed. The judgment dated 26.2.2016 of first
appellate court passed in Civil Appeal No. 144/2007, Fazroo and Anr. vs. Shakruddin and others, is
5 All. Dileep Kumar Vs State Of U.P. & Ors.

1057
set aside, and the judgment of trial court dated 17.11.2007 passed in Original Suit No. 654/1992 is
hereby confirmed.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.05.2016

BEFORE

THE HON'BLE RAJAN ROY, J.

Service Single No.- 4423 Of 2016

Dileep Kumar ...Petitioner
 Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Amit Bose, Abhishek Bose

Counsel for the Respondents:
C.S.C.

Service Law - Police Act, 1861 - Section 7(d) - Transfer of Station House Officer - Loss of special
emoluments - Whether punishment - Administrative exigency - Public interest - Transfer simpliciter -
Preliminary enquiry - Law and order during Zila Panchayat elections - Allegation of political malafide - Nonimpleadment of alleged person - Scope of judicial interference in transfer matters - Maintenance of police
records - Absence of note sheets - Directions for proper maintenance of files -Dismissed.

By means of this writ petition the petitioner who is a Sub Inspector of Civil Police in the State of Uttar Pradesh
has challenged the order dated 05.02.2016 passed by the Superintendent of Police, Sultanpur transferring him
from the post of Station House Officer, Police Station Kurebhar, District Sultanpur to Police lines
Sultanpur(Para 1)

The contention of the petitioner is that the impugned action amounts to punishment under Section 7(d) of
Police Act, 1861(5 of 1861) (hereinafter referred to as 'the Act, 1861') as the petitioner was paid Rs.300/- per
month as special emoluments on being posted as Station House Officer at Police Station Kurebhar, District
Sultanpur which as a result of impugned order will no longer be admissible, consequently, it has resulted in
removal of petitioner from an office of special emoluments as was held by the Supreme Court in the case of
State of U.P. vs. Jagdev Singh reported in 1984 (Supp) S.C.C. 413. The other contention is that the action is
malafide, the factual foundation of which has allegedly been laid down by the petitioner in paragraphs 17 to
23 of the writ petition. According to him political influence had been exercised by one Shrawan Kumar Yadav
@ Pintu Yadav who was a candidate for the post of Member of Zila Panchayat, Sultanpur on a ticket of ruling
Samajwadi Party. During the course of voting on 09.10.2015 an incident of fighting, firing and brawl amongst
his supporters and winning candidate, took place. As the petitioner declined to take the side of Sri Yadav
therefore, he threatened him with transfer. Ultimately the impugned order was passed on 05.02.2016. He
says that an FIR was lodged at his Police Station against Sri Yadav by the Returning Officer of the Polling both
concerned. Sri Yadav is said to have lost the election, therefore, out of ill will he got the petitioner transferred.
A charge sheet had already been submitted against Sri Yadav. Earlier also under the influence of one Shakeel