# Lakhan & Ors v. The Board of Revenue, U.P & Ors

- **Citation:** (2020) 6 ILRA 210
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-28
- **Case number:** Writ-B No. 23996 of 1994
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lakhan-ors-v-the-board-of-revenue-u-p-ors-45784
- **Pages:** 26

## Headnote

S.C., Sri Anil Kumar Rai, Sri Anshika
Agrawal, Sri Anupam Laloria, Sri D.N.
Gupta, Sri Ekansh Verma, Sri K.B. Garg, Sri
K.K. Dubey, Sri K.N. Saxena, Sri Kamlesh
Kumar Tiwari, Sri Radha Kant Singh, Sri
V.K. Gupta, Sri V.K. Singh, Sri Vishal
Agrawal, Sri Vishal Agrawal, Sri Vishnu
Singh

Civil Law - Revenue Entries - U.P. Tenancy
Act, 1939: Section 35, 36(1), 180(2) - U.P.
Zaminadri Abolition & Land Revenue Act,
1950: Section 229B - Claiming a right
based on long standing revenue entries is
that the revenue entries of long standing
in favour of a land holder or co-sharer
would raise a presumption and title, but
would not be a conclusive about it. These
entries continuing over a long period of
time cannot defeat the rights of a person
who has not abandoned or relinquished it,
but for some oversight, has not been able
to seek requisite correction. (Para 44)
6 All. Lakhan & Ors. Vs. The Board of Revenue, U.P. & Ors.
211
The present suits have been brought to rectify
revenue entries alone by expunging the name of
Sadarani from the revenue records relating to
suit property over which she recorded when she
inherited it, and the right to which she was
divested of on remarriage, going by the law
governing rights of parties at that time. Here it
has to be clarified that entries of howsoever
long standing in the revenue records, that do
not have a valid legal basis about them cannot
be permitted to continue, inasmuch as such
entries cannot confer title by mere long
continuance. They do raise a presumption of
good title but in the case in hand, it being
clearly established that there is no basis to
Sadarani's right to continue to be recorded, the
merely long continuing entries would not be
basis
in
themselves
to
perpetuate.
The
presumption in this case about long continuing
revenue entries stands squarely rebutted. (Para
56)

B. Indian Evidence Act, 1872: Section 101,
102 - onus probandi on an issue is the
burden to let in evidence on an issue and
lies upon that party who would fail, if no
evidence on either side were led. (Para 48)

In the instant case, Smt. Sadarani had both the
onus and burden to prove that Smt. Prema was
Parikshit's daughter. The case introduced by
Sadarai claiming a right for Prema as Parikshit's
daughter and therefore his heir entitled to
inherit his share, is beyond the scope of this suit
as entries are in favour of Sadarani that were
recorded upon the death of her first husband,
Parikshit and there is no entry in favour of Smt.
Prema, in her right as Parikshit's daughter, ever
recorded. The suit do not, therefore, seek any
relief to expunge Prema's name. The relief
sought is against Sadarani based on the
continuing entries in her name. The Court
further observed that in the present petition
Smt. Prema is contesting is not in her right as
Parikshit's daughter but as Sadarani's daughter,
representing her estate after her death. The
independent rights that she set up claiming to
be Parikshit's daughter are not established even
by as much a semblance, that may afford her
any locus standi in that right. The pleaded case
of Sadarani, however, indicates that she does
not even remotely indicate the slightest of
animus possidendi in relation to the suit
property that she, from her pleaded case,
acknowledges to have lost upon her remarriage
to Chimman. (Para 49, 50)

C. Jurisprudence - 'Possession in fact',
'Possession in law' - The element of intent
to possess or animus possidendi is the
requirement of possession in fact as much
as it is about possession in law. (Para 53)

Writ Petition Allowed. (E-10)

List of cases cited:-

## Text

_Characters 0–39,992 of 91,814. This is a partial read: ask again with offset=39992 for what follows._

210 INDIAN LAW REPORTS ALLAHABAD SERIES
they also got their share, since no writ
petition or any other proceeding was filed
against
the
order
dated
16.4.2001,
therefore, the same would be considered to
be admitted to the parties. The present
dispute relates to the fact whether the plot
in dispute could be auctioned as the total
area of the plot in the name of one persons
would become less then 3-1/8 acres in view
of the Section 178 of the U.P. Z.A. & L.R.
Act as it existed before the amendment Act
27 of 2004 dated 20.8.2004. It is relevant to
observed herethat after the amendment it
was permitted that plot can be transferred
in fragments also in view of the fact that
Section 178 to 182 of U.P. Z.A. & L.R. Act
is deleted from the Act, as such all the
parties should have been granted their share
of the plots and there was no occasion for
auctioning the property, confirming the sale
and distributing the auction proceeds
among
remaining
parties,
the
entire
proceeding was against the provision of
law. The order dated 14.3.2007 and
29.3.2006 are merely remand order and the
writ petition against the remand order is not
maintainable before this Hon'ble Court.

13. In the opinion of the Court there
is no illegality in the order passed by the
appellate Court dated 29.3.2006 and the
order passed by the revisional Court
dated 14.3.2007 and the finding recorded
by both the Courts below is as per law
and no interference is required by this
Court
under
Article
226
of
the
Constitution of India.

14. In view of the legal position and
considereing the arguments advanced by
the parties, the present writ petition lacks
merit and is, accordingly, dismissed.

15. Interim order, if any, stands
vacated.

16. The parties shall bear their own
costs.
----------
(2020)06ILR A210
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.01.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-B No. 23996 of 1994

Lakhan & Ors. ...Petitioners
Versus
The Board of Revenue, U.P & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri S.N. Verma, Sri Ajay Krishna, Sri Ajay
Shankar, Sri Archana Singh, Sri Rama Nand
Gupta, Sri Shreeprakash Singh, Sri Triveni
Shanker, Sri Awadhesh Kumar

Counsel for the Respondents:
S.C., Sri Anil Kumar Rai, Sri Anshika
Agrawal, Sri Anupam Laloria, Sri D.N.
Gupta, Sri Ekansh Verma, Sri K.B. Garg, Sri
K.K. Dubey, Sri K.N. Saxena, Sri Kamlesh
Kumar Tiwari, Sri Radha Kant Singh, Sri
V.K. Gupta, Sri V.K. Singh, Sri Vishal
Agrawal, Sri Vishal Agrawal, Sri Vishnu
Singh

Civil Law - Revenue Entries - U.P. Tenancy
Act, 1939: Section 35, 36(1), 180(2) - U.P.
Zaminadri Abolition & Land Revenue Act,
1950: Section 229B - Claiming a right
based on long standing revenue entries is
that the revenue entries of long standing
in favour of a land holder or co-sharer
would raise a presumption and title, but
would not be a conclusive about it. These
entries continuing over a long period of
time cannot defeat the rights of a person
who has not abandoned or relinquished it,
but for some oversight, has not been able
to seek requisite correction. (Para 44)
6 All. Lakhan & Ors. Vs. The Board of Revenue, U.P. & Ors.
211
The present suits have been brought to rectify
revenue entries alone by expunging the name of
Sadarani from the revenue records relating to
suit property over which she recorded when she
inherited it, and the right to which she was
divested of on remarriage, going by the law
governing rights of parties at that time. Here it
has to be clarified that entries of howsoever
long standing in the revenue records, that do
not have a valid legal basis about them cannot
be permitted to continue, inasmuch as such
entries cannot confer title by mere long
continuance. They do raise a presumption of
good title but in the case in hand, it being
clearly established that there is no basis to
Sadarani's right to continue to be recorded, the
merely long continuing entries would not be
basis
in
themselves
to
perpetuate.
The
presumption in this case about long continuing
revenue entries stands squarely rebutted. (Para
56)

B. Indian Evidence Act, 1872: Section 101,
102 - onus probandi on an issue is the
burden to let in evidence on an issue and
lies upon that party who would fail, if no
evidence on either side were led. (Para 48)

In the instant case, Smt. Sadarani had both the
onus and burden to prove that Smt. Prema was
Parikshit's daughter. The case introduced by
Sadarai claiming a right for Prema as Parikshit's
daughter and therefore his heir entitled to
inherit his share, is beyond the scope of this suit
as entries are in favour of Sadarani that were
recorded upon the death of her first husband,
Parikshit and there is no entry in favour of Smt.
Prema, in her right as Parikshit's daughter, ever
recorded. The suit do not, therefore, seek any
relief to expunge Prema's name. The relief
sought is against Sadarani based on the
continuing entries in her name. The Court
further observed that in the present petition
Smt. Prema is contesting is not in her right as
Parikshit's daughter but as Sadarani's daughter,
representing her estate after her death. The
independent rights that she set up claiming to
be Parikshit's daughter are not established even
by as much a semblance, that may afford her
any locus standi in that right. The pleaded case
of Sadarani, however, indicates that she does
not even remotely indicate the slightest of
animus possidendi in relation to the suit
property that she, from her pleaded case,
acknowledges to have lost upon her remarriage
to Chimman. (Para 49, 50)

C. Jurisprudence - 'Possession in fact',
'Possession in law' - The element of intent
to possess or animus possidendi is the
requirement of possession in fact as much
as it is about possession in law. (Para 53)

Writ Petition Allowed. (E-10)

List of cases cited:-

1. Sharda Prasad Vs. RCEO, Allahabad 1998
(34) ALR 509

2. Jagdish Vs. State of U.P. through Secretary,
Revenue Department Lucknow and ors. 2013
(121) RD 756

3. Shivaji Blaram Haibatti Vs. Avinash Maruthi
PAwar (2018) SCC 652: 2018 All C.J. 119

4. Devi Died Sri Sia Ram substituted and ors.
Vs. Mohd. Hanif and ors. 1963 RD 153

5. Ram Kumar and ors. Vs. Board of revenue
1982 RD 314

6. Kailash Rai Vs. Jai Jai Ram and ors. AIR 1973
SC 893: (1973) 1 SCC 527 (distinguished)

7. Mangroo and ors. Vs. Ram Sumer and ors.
2006 All C.J. 1924

8. Jagdev Vs. Deputy Director of Consolidation
2006 (101) RD 216

9. Smt. Gajodhari Devi Vs. Gokul AIR 1990 SC
46: 1989 Supp (2) SCC 160 (distinguished)

10. Shri Ram and ors. Vs. DDC Allahabad Camp
Fatehpur and ors. 2011 All. C.J. 635

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed against
judgments and decrees dated 28.04.1994
passed by the Board of Revenue, U.P. at
Allahabad in Second Appeal Nos. 151, 152
212 INDIAN LAW REPORTS ALLAHABAD SERIES
and 153 of 1989-90, reversing a judgment
and decree of the Additional Commissioner,
Jhansi Division, Jhansi dated 24th April,
1990 passed in Appeal No. 90/6/1986-87,
91/7/1986-87, 92/8/1986-87 and restoring the
decree of the Sub Divisional Officer, Jhansi
dated 27.07.1987 passed in Suit No. 105 of
1984-85, dismissing the petitioner's suit.

2. Petitioners are plaintiffs of four suits
being Suit Nos. 83, 84, 85 and 86 all brought
against one Sadarani and various proforma
respondents, all co-sharers of Khata No. 60
and 57 of village Dongari, Tehsil and
District Jhansi (hereinafter referred to as
''the suit property').

3. By the suits aforesaid, brought
under Section 229B, the plaintiffs, sought a
declaration that the name of Sadarani,
widow
of
Parikshit,
recorded
cotenureholder in the suit property, be
expunged and that of the plaintiffs, along
with proforma respondents to the suit, be
recorded to the exclusion of Sadarani over
the suit property. It must be mentioned here
that from the papers placed on record of the
writ petition, there is some discrepant
description of the precise numbers of suit
filed and there respective suit numbers. The
judgment of the Trial Court indicates that
two suits were filed being Suit No.
87/1984-85 and Suit No. 85/1984, both of
which were consolidated into a single suit
bearing No. 105/1984-85. How two suits
could be consolidated and given a single
suit number, is not in keeping with
fundamental principals of numbering suits.
But, that is how it is described in the
judgment of the Trial Court. In the
proceedings
in
Appeal
before
the
Commissioner and in Second Appeal
before the Board, four suits brought by
these
plaintiffs-petitioners
find
clear
mention, bearing suit Nos. 83, 84, 85 and
86 all of 1984-85. Whichever way the
proceedings have been registered and dealt
with, but in substance the suits under
reference were brought for a declaration to
exclude the name of Sadarani, the common
defendant to all the suits from the revenue
records, pertaining to the suit property.
Sadarani is now dead and represented by
her daughter respondent no. 3, Smt. Prema
before this Court.

4. The facts giving rise to the suits
that have culmiated in this writ petition can
be better appreciated with the aid of the
following pedigree:

Balu

Hardas
Parikshit (Deceased)

Smt. Sadarani (Widow)

Smt. Sadarani (Widow)

Sahab Singh Lakhan Ramesh

Jugraj

Naval (P-4) (P-1) (P-3)

(P-2)

5. It is common ground between
parties that the original owner of the suit
property was one Balu, who had two sons
Hardas and Parikshit. The suit property was
inherited in equal share by Hardas and
Parikshit. Hardas had four sons, Sahab
Singh, Lakhan, Ramesh and Jugraj. In the
array of parties, petitioner no. 4, Naval is
shown as son of Hardas but the name of
Sahab Singh is not mentioned. It is pointed
out by learned counsel for the petitioner
that Naval has been incorrectly described in
the array as son of Hardas. In fact, he is the
son of Sahab Singh, who died pendentelite.
The other son of Balu, Parikshit, is said to
6 All. Lakhan & Ors. Vs. The Board of Revenue, U.P. & Ors.
213
have died some time in the year 1944
leaving behind his widow, Sadarani.
Parikshit died issueless. Some issue has
been raised about this matter by Sadarani
which in due course would be noticed and
dealt with. Again, it is common ground
between parties that Sadarani's name was
recorded over the half share of Parikshit in
the suit property, all before the abolition of
Zamindari.
Sadarani
remarried
one
Chhimman, two years later. This is also not
in issue between parties. The name of
Sadarani continued to remain recorded in
the revenue records relating to the suit
property, to the extent of Parikshit's share,
along with the other co-sharers that she had
inherited, her remarriage notwithstanding.

6. It is the petitioner's case that their
father,
Hardas
entered
cultivatory
possession of his brother's share as he had
died issueless, when his widow remarried.
It is the petitioners stand that after death of
Parikshit and upon remarriage of Sadarani
to Chhimman two years later, she lost her
share in the suit property inherited from
Parikshit under Section 35 of the U.P.
Tenancy Act, 1939 (For short , ''the Act of
1939') which by operation of law went back
to Parikshit's reversionary heir, Hardas and
after him his sons, the petitioners. This loss
of title for Smt. Sadarani upon remarriage
and its reversion to Hardas, came about
under the provisions of Section 36(1) of the
Act of 1939, according to the petitioner. It
is pointed out with some emphasis by the
petitioners that this was the law prevalent at
the time, under the regime of the U.P.
Tenancy Act when Parikshit died; and also,
two years later when Sadarani remarried.

7. It is the petitioners' further case that
their father, Hardas could not know about
this entry in the name of Sadarani,
continuing post her remarriage. After death
of Hardas, the petitioners' mother applied
for mutation in favour of her then minor
children, the petitioners (here it must be
mentioned that in all that record the name
of Naval, petitioner No. 4, does not figure
but of Sahab Singh, who is said to be his
father and now dead). It was at this point of
time that the petitioners' mother acting as
their guardian in the mutation matter came
across the illegal entry in the name of
Sadarani, surviving in the revenue records.
It is claimed that Sadarani was never in
possession
after
her
remarriage
to
Chhimman. Accordingly, the petitioners'
mother
brought
these
suits
in
the
petitioners' name, representing them as
their next friend, under Section 229B
U.P.Z.A&L.R. Act, seeking declarations to
expunge Sadarani's name and morefully
detailed
hereinbefore.
This
suit
was
contested by Sadarani who filed a written
statement dated 24.04.1984. Details of her
case pleaded in the written statement would
be mentioned hereinafter.

8. Similar written statements have
been filed in the other suits also and the
stand brought to the notice of this Court
during hearing is vindicated by what is
recorded about it in the judgment of the
Trial Court. Now, in the written statements
Sadarani has not apparently claimed a right
for herself in defence of the continuing
revenue entries in her favour. The manner
in which the Trial Court has spoken about
proceedings of the suit, the evidence is
noticed with reference to suit nos. 87/84
and 85/84. In suit no. 87/84, the following
documents were filed on behalf of the
plaintiffs-petitioners:
(1)
copy
of
a
Khatauni for the Fasli Years 1389-1394
relating to Khata No. 60; (2) a copy of the
notice under Section 80 CPC; (3) a copy of
notice under Section 106 U.P. Panchayat
Raj Act: (4) the postal receipt showing
214 INDIAN LAW REPORTS ALLAHABAD SERIES
dispatch of notice to Gram Pradhan Dongri;
and (5) the postal acknowledgment from
Gram Pradhan Dongri relative to the notice.

9. On the pleadings of the parties the
Trial Court framed the following issues
(translated
into
English
from
Hindi
vernacular):

1. Whether the plaintiffs are cosharers of a 1/4th share and Bhumidhar
with transferable rights in the property in
dispute comprising Khata Khatauni No. 50
comprising two plots admeasuring 5-5.6
acres
and
Khata
Khatauni
No.
57
comprising 14 plots, admeasuring 104-73
acres and are, accordingly, in possession of
the same?

2. Whether defendant No. 1 Smt.
Sadarani widow of Parikshit has remarried
Chhimman s/o Ranjor leading to a
divesting of her right and title in the
property in dispute?

3. Whether the plaintiffs have
served the Government of U.P. with a valid
notice under Section 80 CPC and the Gaon
Sabha with a valid notice under Section
106 U.P. Panchayat Raj Act? If not, its
effect?

4. Whether of the wedlock of
Sadarani and Parikshit, a daughter Prema
was born who is alive and the sole heir of
Parikshit?

5. Whether the property in
dispute has been partitioned by a Court of
competent jurisdication between Parikshit
and Hardas? If yes, its effect?

6. Whether the suit is bad for
misjoinder of parties? If so, its effect?

7. Whether the suit is barred by
Section 49 U.P. Consolidation of Holdings
Act?

8. Whether the plaintiffs suit is
liable to be dismissed?

9. Whether the plaintiffs are
entitled to relief?

10. Likewise, the plaintiffs-petitioners
have filed the following documents in Suit
No. 85/84: (1) a copy of the Khatauni for
the Fasli years 1389-1394 relative to Khata
No. 57; (2) copy of the notice under
Section 80 C.P.C.; (3) a copy of the notice
under Section 106 U.P. Panchayat Raj Act;
(4)a copy of the registered postal receipts
of notice dispatched to Gram Pradhan
Dongri;
(5)
a
copy
of
the
postal
acknowledgment
received
from
Gram
Pradhan, Dongri relative to the notice; (6) a
photostat copy of the revenue receipt in the
name of Sadarani, widow of Parikshit; (7) a
revenue receipt in the name of Sadarani
widow of Parikshit; (8) a receipt in the
name of Hardas and Sadarani, widow of
Parikshit; (9) a copy of the Khatauni in the
name
of
Smt.
Sadarani,
widow
of
Chhimman; (10) a copy of the family
register relating to Smt. Prema, daughter of
Chhimman; (11) a copy of the voter list
showing the name of Smt. Sadarani, wife of
Chhimman; (12) a certificate from the
Gram Sabha, Raksha that there is no family
there (possibly referring to Sadarani but not
clear from citation of this evidence in the
Trial Court's judgment); (13) a copy of the
extract of register of births and deaths
showing the name of Smt. Prema daughter
of Chhimman; (14) a copy of death
certificate from Gram Sabha, Raksha dated
04.08.44, showing the date of death of
Parikshi; (15) a copy of the Khatauni
relating to the Fasli Year 1389-1391 for
Khata No. 237; (16) a copy of the revenue
receipt, dated 25.07.1986.

11. The Trial Court has recorded that
since the two suits under reference were
consolidated,
both
the
plaintiffs
and
defendant, Sadarani testified in the witness
6 All. Lakhan & Ors. Vs. The Board of Revenue, U.P. & Ors.
215
box, in one instance with their evidence
being read in both suits.

12. On behalf of the plaintiffs,
Saligram, Pradhan Gram Sabha, Dongri
was examined as PW-1. One Dhaniram as
PW-2 and Smt. Goma was examined as
PW-3. It is required to be clarified here that
Smt. Goma is the plaintiffs' mother and
their next friend through whom the
plaintiffs, then minors, brought the suits.
No documentary evidence was filed on
behalf of the defendant, Smt. Sadarani and
all that was placed in evidence of her side
was her oral testimony in support of her
case.

13. Heard Sri Triveni Shankar,
learned counsel for the petitioner along
with Sri Awadhesh Kumar, Advocate on
behalf of the petitioner and Sri Vishnu
Singh, learned counsel appearing on behalf
of respondent No. 3. The learned Standing
Counsel has addressed this Court on behalf
of respondent nos. 1,2 and 4.

14. Sri Triveni Shankar, learned
counsel
for
the
plaintiffs-petitioners
submits that their short case is that upon
death of Parikshit, Sadarani's name came to
be recorded in the revenue records of his
family as his widow. It is urged by Sri
Triveni Shankar, learned counsel for the
petitioner that Smt. Sadarani admitted her
remarriage to Chhimman two years after
death of Parikshit and by her case pleaded
in paragraph 13 of the written statement has
acknowledged extinguishment of her right
in the suit property by non traverse. This
read together with her sole defence that her
daughter, Smt. Prema is begotten of
Parikshit during wedlock and that she has
inherited Parikshit's share in the suit
property, no case of any right, title or
interest in the said property remaining with
Sadarani is pleaded.

15. It is pointed out by Sri Triveni
Shankar that there is a pleading further,
also in paragraph 13 to the effect that two
years after Smt. Prema was born, Parikshit
died. Sadarani has averred that two years
after Parikshit's death, she remarried
Chimman. It is then pleaded that Smt.
Prema (written there as Smt. Prem), the
sole heir of the late Parikshit, is in
cultivatory possession of Parikshit's share
and pays land revenue, ever since (bearing
reference to Sadarani's remarriage). Sri
Triveni
Shankar
submits
that
this
categorical stand of Smt. Sadarani in her
pleadings excludes any case of her
continuing in possession of her share that
she had inherited from the late Parikshit. It
is emphatically urged that in the absence of
a pleading that Sadarani continued in
possession after her remarriage with
Chhimman, there is no question about her
perfecting her right under Section 180(2) of
the Act of 1939, read with the IVth
schedule, Group B to the said Act. Learned
counsel for the petitioner, therefore, urges
that the effect of failure on the plaintiffs
part to bring a suit within the limitation of
two years, against Sadarani, would not lead
to perfection of a right based on adverse
possession, once she does not plead a case
of possession for herself continuing after
her remarriage.

16. So far as the rights of Smt. Prema
claimed for her by Smt. Sadarani are
concerned,
learned
Counsel
for
the
petitioners submits that there was a
categorical denial that Smt. Prema was the
daughter of Parikshit. Rather, it is the
plaintiffs case that she was born after
Sadarani's marriage to Chhimman. It is
pointed out also that the family register of
216 INDIAN LAW REPORTS ALLAHABAD SERIES
Chhimman has been filed in evidence on
his behalf which shows that Smt. Prema
was born in the year 1950, six years after
Parikshit's death. An issue about Smt.
Prema being daughter of Parikshit was
framed but neither any evidence was led by
Smt. Sadarani or Smt. Prema, in support of
that issue or that issue was ever decided by
the Trial Court.

17. It is further argued by learned
Counsel for the petitioner that the Courts
below in failing to decide issue No. 4 have
acted in breach of Order XX Rule 5 C.P.C.,
that mandates all issues to be decided.
Learned Counsel for the petitioner submits
that the Board of Revenue has committed a
manifest error of law in dismissing the suit,
holding that Sadarani had perfected her
right to her share in the suit property, under
Section 180(2) of the Act of 1939 due to
the plaintiffs' failure to sue her for
ejectment, within two years of her
remarriage.
Learned
counsel
for
the
petitioner has urged that an admission is the
best form of evidence against its maker.
Sadarani having admitted that she is not in
possession of her share in the suit property
since her remarriage to Chhimman, there is
absolutely no reasoning sound in law by
which the Board of Revenue could have
reached the conclusions it did.

18. In support of his contention that
admission is the best evidence against its
maker. Shri Triveni Shankar he has placed
reliance upon a decision of this Court in
Sharda Prasad vs. RCEO, Allahabad,
1998 (34) ALR 509, where it is held:

"5. In the present case, it is an
undisputed fact that the petitioner has
acquired in a vacant state a residential
building within the city of Allahabad.
However, the tenant-petitioner asserted
before the Rent Control and Eviction
Officer that Section 12 (3) has no
application
since
the
tenanted
accommodation is not a residential building
and was being used by the petitioner for
commercial purposes only. The Rent
Control and Eviction Officer, however, has
not accepted this assertion of the petitioner
and on the other hand, has recorded a clear
finding of fact that the dominant purpose of
the
building
in
question
has
been
residential. While arriving at the said
finding, the Rent Control and Eviction
Officer has taken into consideration various
circumstances and evidence including an
important piece of evidence which is in the
form of the own admission of the petitioner
which he had made in the plaint filed by
him in Suit No. 371 of 1998. In that plaint,
the petitioner in clear and unequivocal
terms admitted that in the disputed
accommodation, he has been living with his
son. his son's wife and children. An
admission is the best piece of evidence
against its maker and unless the same is
satisfactorily explained it is of conclusive
nature. It has been held by me in the case of
Smt. Urmila Devi v. IInd A.D.J., Meerut
1998 (2) ARC 6, that an admission made
by a party or his agent in earlier judicial
proceedings is binding upon the party in
subsequent proceedings and can be relied
upon for proving the truth-incorporated
therein and such an admission has the
effect of shifting the onus of proving to the
contrary on the party against whom it is
produced and in the absence of a
satisfactory explanation, it is presumed to
be true. It is correct that before an
admission can be acted upon as conclusive,
it should be clear, definite and certain and
not ambiguous, vague or confused."

19. To buttress his case that Smt.
Prema is in fact born of the wedlock of
6 All. Lakhan & Ors. Vs. The Board of Revenue, U.P. & Ors.
217
Sadarani and Chhimman, much after
Parikshit's death, learned Counsel for the
petitioner has emphasised the importance
of the family register that shows the records
of births and deaths in a family and is
maintained under Rule 2 of the Rules,
framed under the U.P. Panchayat Raj Act,
1947. In support of the weight to be
attached to a register of this kind, learned
counsel for the petitioner has placed
reliance upon a decision of this Court in
Jagdish vs. State of U.P. through
Secretary,
Revenue
Department
Lucknow and others, 2013 (121) RD 756,
where it has been held:

"17. It is trite law that a voter list does
prima facie reflect the status of a person but
a voter list is prepared under the provisions
of a statutory law relating to elections
which only confers a limited right to vote
and is not a clinching evidence with regard
to the status of the identity of that person.
The same has to be supported by further
material and in this regard the respondent
No. 6 had filed the extract of the family
register
which
has
been
completely
overlooked. The entries made in a family
register are made under a statutory law
relating to the status of the family of a
person under the Births and Deaths
Register Act and Rules framed thereunder
in relation to Local Laws including
Municipal Laws.

18. Thus the same has a statutory
status and the impact thereof or the impact
of a certified copy of the extract thereof
being a public document has to be
considered by the authority or by the Court
while proceeding to assess the evidence led
in this regard....."

20. Learned counsel for the petitioner
has also urged that the Board of Revenue
committed a manifest illegality in virtually
dismissing the suit as not maintainable,
holding it to be barred by Section 180 (2)
Land Revenue Act, when no such plea was
raised in the written statement on behalf of
Sadarani. He points out that in the absence
of a plea to that effect by the Sadarani in
her written statement, no issue to the effect
whether the suit was maintainable in view
of the provisions of Section 180(2) of the
Act of 1939 was framed by the Trial Court.
In the absence of that plea and issue, it was
not open to the Board in Second Appeal to
consider that ground as the basis to reverse
the decree. In support of this part of his
submission,
learned
counsel
for
the
petitioner has placed reliance upon the
decision of their Lordships of the Supreme
Court in Sri Shivaji Balaram Haibatti vs.
Sri Avinash Maruthi Pawar, (2018) SCC
652 : 2018 All C.J. 119. He has drawn the
attention of this Court to paragraph 24, 25
and 26 of the report, where it is held:

"24.
First,
the
respondent
(defendant) had not raised such plea in his
written statement. In other words, the
respondent did not set up such defence in
the written statement. Second, the trial
court, therefore, had no occasion to frame
any issue on such plea for want of any
factual foundation in the written statement.
Third, the trial court and the first appellate
court, in these circumstances, had no
occasion to record any finding on this plea
either way. Fourth, in the light of these
three reasonings, the High Court ought to
have seen that such plea really did not arise
for consideration because in order that any
question is involved in the case, the party
concerned should lay its factual foundation
in the pleading and invite finding on such
plea. Fifth, the High Court failed to see the
case set up by the respondent in his written
statement.
As
mentioned
above,
the
defence of the respondent was that he had
denied the appellant's title over the suit
218 INDIAN LAW REPORTS ALLAHABAD SERIES
shop and then set up a plea of adverse
possession contending that he has become
the owner of the suit shop by virtue of
adverse possession, which according to
him, was from time immemorial.

25.
It
was
clear
that
the
respondent never claimed that he was in
possession of the suit shop as tenant of the
appellant's predecessor-in-title. On the
other hand, the respondent had asserted his
ownership right over the suit shop on the
strength of his long adverse possession.

26. It is these issues, which were
gone into by the two courts and were
concurrently decided by them against the
respondent. These issues, in our opinion,
should have been examined by the High
Court with a view to find out as to whether
these findings contain any legal error so as
to call for any interference in second
appeal. The High Court, however, did not
undertake this exercise and rather affirmed
these findings when it did not consider it
proper to frame any substantial question of
law. It is a settled principle of law that the
parties to the suit cannot travel beyond the
pleadings so also the court cannot record
any finding on the issues which are not part
of pleadings. In other words, the court has
to record the findings only on the issues
which are part of the pleadings on which
parties are contesting the case. Any finding
recorded on an issue dehors the pleadings is
without jurisdiction. Such is the case here."

21. Sri Vishnu Singh, learned counsel
for respondent no. 3, Smt. Prema on the other
hand has supported the impugned judgment
on the foot of a case that Smt. Sadarani had
asserted that she remained in possession over
the land in dispute, even after the death of her
husband, Parikshit. Smt. Sadarani's interest is
now represented by respondent no. 3, her
daughter, besides that which is claimed for
her in her own right as Parikshit's daughter.

22.

Learned
Counsel
for
respondent no.3 has submitted that the
Trial Court has rightly opined that Smt.
Sadarani continued in possession of the
suit property with her name recorded as
a co-sharer in the revenue records, even
after her remarriage to Parikshit. And,
since no suit was brought by Hardas to
eject her on extingushment of her rights
upon remarriage within the statutory
period of limitation of two years, under
Section 180 of the Act of 1939, she had
perfected her title in view of the
provisions of Section 180 (2). On these
findings, in the submission of the
learned Counsel for respondent no.3,
the suit was rightly dismissed by the
Trial Court.

23. Sri Vishnu Singh, learned
Counsel for respondent no.3, however,
has
criticized
the
Additional
Commissioner's approach in Appeal,
where he has held that no suit for
ejectment of Sadarani was required to
be filed. Learned Counsel for the third
respondent has submitted that the
Additional Commissioner went wrong
in holding that no such suit was
required to be filed since Smt. Sadarani
had failed to prove her possession
beyond doubt, and that in consequence,
the possession of Sadarani over the suit
property is doubtful. The finding of the
Additional Commissioner to the effect
that
since
Sadarani
admitted
the
possession of Smt. Prema in her oral
evidence over the suit property, there is no
case of Sadarani continuing in possession is
contrary to documentary evidence on
record. In the submission of the learned
Counsel for the third respondent, once Smt.
Sadarani has been recorded throughout as a
co-sharer over the suit property along with
the plaintiff-petitioners, it was necessary
6 All. Lakhan & Ors. Vs. The Board of Revenue, U.P. & Ors.
219
for the petitioners, rather their predecessorin-interest to have brought a suit seeking to
eject her. The possession of Smt. Prema,
according
to
learned
Counsel
for
respondent no.3 though not recorded, is in
aid of Smt. Sadarani's possession. On this
score supporting the finding of the Board of
Revenue, learned Counsel for respondent
no.3 submits that Smt. Sadarani had
established her possession over the suit
property by the fact that her name was
recorded and the plaintiff-petitioners had to
bring these suits, seeking to expunge her
name and seeking their names to be
recorded over that part of the suit property,
where the name of Smt. Sadarani was
recorded.

24. It is urged on behalf of respondent
no.3 that even if it be assumed that Smt.
Prema, daughter Smt. Sadarani was in
possession of the suit property, that does
not
derogate
from
Smt.
Sadarani's
possession; or of Smt. Prema either. This is
so as in the submission of the learned
Counsel for respondent no.3, Smt. Prema's
possession could be in aid of Smt.
Sadarani, or in her own right as the lawful
heir of the late Parikshit. He submits that
the Board for all reasons assigned in the
judgment has rightly concluded in favour
of the third respondent.

25. Summing up his contentions, Sri
Vishnu
Singh,
learned
Counsel
for
respondent no.3 has emphasized that on the
admitted case of parties, Smt. Sadarani
remarried after death of Parikshit. At that
time, the Act of 1939 was in force. Her
name was recorded as a co-sharer by virtue
of being Parikshit's widow. But, that right
she lost upon her remarriage, two years
after Parikshit's death. However so, no
attempt was made to get her name mutated
out on the basis that she lost title to the
reversionary heirs in accordance with the
provisions of Section 36(1) of the Act of
1939. Thus, when Hardas, father of the
plaintiff-petitioners permitted the name of
Smt. Sadarani to continue and did not take
steps to get her name mutated out and to
sue her for ejectment, under Section 180 of
the Act of 1939, she perfected her right
under Section 180(2), upon expiry of two
years of her remarriage, that is said to be
sometime in the year 1946. She became a
khud kasht holder at the end of expiry of
the two years' limitation to bring a suit for
ejectment, along with other co-sharers, and
upon the date of vesting a bhumidhar under
the U.P. Z.A. & L.R. Act.

26. Sri Vishnu Singh, learned Counsel
for the third respondent has also urged that
the plaintiff-petitioners have not set up a
case of ouster of Smt. Sadarani. She has
continued as a co-sharer recorded in the
revenue records over a period of 40 years,
until these Suits were brought. She has,
thus,
perfected
her
rights.
He
has
emphasized the well settled principle that
unless ouster is pleaded and proved,
possession of one co-tenant would be
possession of the other.

27. Thus, even if Smt. Sadarani is
not established to be in actual cultivatory
possession, her recorded name continuing
for over 40 years, would establish her
possession through her co-sharers, that is
to say, the plaintiff-petitioners as well as
the others. Learned Counsel for the third
respondent also submits that inaction of
Hardas to seek correction of mutation
entries after remarriage, by not suing for
ejectment shows the plaintiff-petitioners
acquiesced in the matter of Smt. Sadarani
continuing as a tenant, a right that she
must be credited with maturing after
expiry of the period of limitation to bring
220 INDIAN LAW REPORTS ALLAHABAD SERIES
a suit, and in any case, after the date of
vesting.

28. In support of his contention,
learned Counsel for respondent no.3 has
placed reliance upon a decision of this
Court in Devi Died Sri Sia Ram
substituted and another vs. Mohd. Hanif
and others, 1963 RD 153, where it has
been held:

"In the case before us the
question of any adverse possession or
acquisition of rights by prescription by
Jamna does not arise at all. What is to be
seen is whether the plaintiffs' suit for
possession is within time. As soon as
Jamna re-married, she ceased to have any
title to retain possession over the plots in
question. Thereafter she will be deemed to
have been retaining possession over the
plots without the consent of the person
entitled to admit her to occupy such plots
or otherwise than in accordance with the
provisions of law for the time being in
force within the meaning of sub-section (1)
of Section 180 of the U.P. Tenancy Act,
1939. A suit should have, therefore, been
filed against her within the period of
limitation prescribed under serial No.18 of
group B of Schedule IV of the U.P.
Tenancy Act, 1939. This period of
limitation was three years by 1947, and
thereafter reduced to two years. Jamna may
easily be said to have re-married by 1352
fasli, which will correspond to 1945. The
suit should have in any case, therefore,
been
filed
by 1948.
Thereafter
the
plaintiffs' suit against Jamna became barred
by time and they did not acquire any fresh
right to file the suit after her death.

No decision of this Court regarding
the interpretation of Section 36(1) read with
section 180(1) of the U.P. Tenancy Act was
cited on either side. There are, however, two
decisions of the Board of Revenue, Harnath
Kurmi v. Mst. Sunder Bibi. (3) and Bhagwati
Prasad v. Munna Kuar (4). They are cases in
which the tenancy rights reverted to the landholder and it was held that the rights inherited
by the widow of a deceased tenant expired on
her re-marriage, and if she is allowed to
remain in possession by the land-holder,
thereafter she begins to acquire new rights in
her own name from that date.

Sub-section (2) of Section 180 of
the U.P. Tenancy Act lays down that where
no suit is filed against a person for possession
over a tenancy plot under sub-section (1) of
Section 180 within the period prescribed,
therefore, the person in possession becomes
hereditary tenant of the land in his
possession. On the expiry of the period of
limitation, therefore, Jamna became a
hereditary tenant of the plots."

29. Further relying on the same
principle, that bars a suit by the reversionary
heirs to recover possession after expiry of the
period of limitation envisaged under Section
180(1) of the Act of 1939 and perfection of
the widow's right, after expiry of limitation
from the date of her remarriage, learned
Counsel for respondent no.3 has relied upon a
decision of this Court in Ram Kumar and
others vs. Board of Revenue, 1982 RD 314,
where it is held:

"No
doubt,
before
the
enforcement of the Act, a Hindu female
under the provisions of Hindu law and only
life interest in the Sir and Khudkasht
property left by her husband. There is no
provision under the Act which takes away
the right of a Hindu female in the land in
which she had a limited interest. The
limited ownership in its nature must be a
bundle of rights constituting in their
totality, not full ownership but something
less. She holds the same for her enjoyment
6 All. Lakhan & Ors. Vs. The Board of Revenue, U.P. & Ors.
221
as long as she lives. Nobody is entitled to
deprive her of it or to deal with the property
in any manner to her detriment. She is in
full occupation and control of the usufrous
of it to the exclusion of all others.
Therefore,
in
absence
of
expressed
provisions in the Act taking away the right
to
make
disposition
inter-vivos,
she
becomes, on enforcement of the Act,
fledged Bhumidhar and is entitled to
exercise all right and benefits available to
any other male Bhumidhar.

Considering the case from the
other aspect, on the finding of the lower
appellate court, Smt. Jurawan Dullaiya
remarried long before the date of vesting
and continued in possession. Therefore, the
cause of action accrued in favour of the
plaintiff to file a suit for her ejectment as
soon
as
she
remarried
because
her
possession thereafter became adverse as
she was not entitled to continue in
possession on remarriage. Obviously, no
suit was filed for her ejectment by the
plaintiff
within
the
time
prescribed.
Therefore, plaintiff's title extinguished in
the land in occupation of Smt. Jurawan
Dullaiya."

30. On the point that possession of
one co-sharer must be deemed to be
possession on his behalf and all the other
co-sharers, constructively, even if the
others are not in actual cultivatory
possession, learned Counsel for respondent
no.3 has relied upon the decision of the
Supreme Court in Kailash Rai vs. Jai Jai
Ram and others, AIR 1973 SC 893 :
(1973) 1 SCC 527, where it is held:

"9. It should be remembered that the
District Court has recorded a definite finding
that the defendants have not set up any plea of
ouster.