# Mahesh Chand v. Brijesh Kumar & Anr

- **Citation:** (2024) 3 ILRA 314
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-15
- **Case number:** Second Appeal No. 1623 of 1992
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahesh-chand-v-brijesh-kumar-anr-51630
- **Pages:** 26

## Headnote

A. Civil Law - Civil Procedure Code, 1908 -
Section 100 - Substantial question of law
3 All. Mahesh Chand Vs. Brijesh Kumar & Anr.
315
-
UP
Zamindari
Abolition
and
Land
Reforms Act, 1950 - S. 229-B - Non
concurrent finding - Suit for ejectment,
recovery of arrears of rent and mesne
profits - Suit property was earlier situated
in a Gram Sabha, but subsequently
included within the local limits of the town
area - Applicability of Act of 1950 - Held,
the provisions of the Act of 1950 would
apply to agricultural land located in an
area that has fallen within the limits of a
town
area
upon
extension
of
its
boundaries after the date of vesting; more
specifically, after 07.07.1949. (Para 31
and 32)

B. Civil Law - UP Zamindari Abolition and
Land Reforms Act, 1950 - Ss. 3(14) and
143 - Land was let out for running a
petrol pump, a non-agricultural activity -
Applicability of Act of 1950 - Consequence
of
declaration
u/s
143
-
Held,
a
declaration under Section 143(1) does not
place the land, otherwise governed by the
Act of 1950, completely out of its regime.
It continues to be governed by the
provisions of the Act of 1950 except that
the provisions of Chapter VIII of the said
Act
become
inapplicable
in
relation
thereto - Its devolution is then governed
by personal laws and not the Act of 1950.
(Para 50 and 51)

C. Civil Law - UP Zamindari Abolition and
Land Reforms Act, 1950 - S. 143 - No
declaration of suit property u/s 143 could
be made - Effect - How far, Civil Court has
jurisdiction - Held, we endorse the Lower
Appellate Court's opinion that the Civil
Court had no jurisdiction to try the suit for
eviction. A fortiori, it had to be filed before
the
Revenue
Court
of
competent
jurisdiction as Chapter VIII of the Act of
1950 would apply - High Court directed
return of the plaint to the plaintiff for
presentation to the Court of competent
jurisdiction under Order VII Rule 10 of the
Code. (Para 60, 61 and 68)
Appeal allowed. (E-1)

List of cases cited :-

## Text

_Characters 0–39,909 of 90,789. This is a partial read: ask again with offset=39909 for what follows._

314 INDIAN LAW REPORTS ALLAHABAD SERIES
obtained in accordance with the Hindu
Marriage Act. Unless the decree is granted,
the lis remains binding and continues to
subsist.
The
marriage
performed
in
contravention of Clauses (i), (iv) and (v) of
Section 5 of the Act is void and incapable
of being cured or ratified whereas in a case
of voidable marriage, a declaration is
necessary, otherwise the marriage continues
to remain is regarded as marriage and
continues to subsist.

12. In the present case, we have
noticed the fact that the appellant-plaintiff
herein was working as Executive Officer,
Nagar Panchayat, Manjhanpur, District
Kaushambi and she is, thus, a welleducated
service
class
lady
holding
important post and, therefore, presumably,
she must be having sufficient financial
means as well. Therefore, it is unbelievable
that any kind of fraud or use of force could
have been used on her for making
signatures for the registration of marriage
and that too when signatures were
admittedly made by her and are reflected
from the certificate of registration of
marriage at page 25 of the paper book.
Therefore, a bald oral assertion in absence
of any cogent evidence cannot be accepted
and, therefore, in our opinion, has rightly
been rejected by the Family Court. The
Family Court has also rightly taken into
account Section 8 of the Act, which
provides for registration of marriages. The
certificate of registration duly signed by the
appellant
herein
clearly
carries
a
declaration that marriage was solemnized
on 14.2.2017 at Kamleshwaram Guest
House, Chhapeda Pulia, Kakadev, Kanpur,
Kanpur Nagar, Uttar Pradesh. There is no
reason to disbelieve this documentary
evidence
of
marriage
and
clear-cut
declaration therein. In this background,
even though no final finding is being
recorded but we have reservation if the
petition even if filed under Section 12 of
the Act could have succeeded.

13. In such view of the matter, we do
not find any legal infirmity in the order
impugned herein. As only legal question
about availability of grounds under Section
11 is involved, which, as conceded by the
learned counsel for the appellant are not
available, therefore, we are not inclined to
admit the present appeal.

14. Therefore, we do not find an merit
in the present appeal and no fruitful
purpose would be served by admitting the
appeal or even keeping this appeal pending.

15. Present appeal is, accordingly,
dismissed at the admission stage itself.
----------
(2024) 3 ILRA 314
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.02.2024

BEFORE

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

Second Appeal No. 1623 of 1992

Mahesh Chand ...Appellant
Versus
Brijesh Kumar & Anr. ...Respondents

Counsel for the Appellant:
Mr. Kunal Shah, Advocate

Counsel for the Respondents:
Mr. Ravi Kant, Sr. Advocate assisted by Mr.
I.N. Singh, Mr. Gajendra Pratap, Sr.
Advocate assisted by Mr. Abhishek Kumar,
Advocate

A. Civil Law - Civil Procedure Code, 1908 -
Section 100 - Substantial question of law
3 All. Mahesh Chand Vs. Brijesh Kumar & Anr.
315
-
UP
Zamindari
Abolition
and
Land
Reforms Act, 1950 - S. 229-B - Non
concurrent finding - Suit for ejectment,
recovery of arrears of rent and mesne
profits - Suit property was earlier situated
in a Gram Sabha, but subsequently
included within the local limits of the town
area - Applicability of Act of 1950 - Held,
the provisions of the Act of 1950 would
apply to agricultural land located in an
area that has fallen within the limits of a
town
area
upon
extension
of
its
boundaries after the date of vesting; more
specifically, after 07.07.1949. (Para 31
and 32)

B. Civil Law - UP Zamindari Abolition and
Land Reforms Act, 1950 - Ss. 3(14) and
143 - Land was let out for running a
petrol pump, a non-agricultural activity -
Applicability of Act of 1950 - Consequence
of
declaration
u/s
143
-
Held,
a
declaration under Section 143(1) does not
place the land, otherwise governed by the
Act of 1950, completely out of its regime.
It continues to be governed by the
provisions of the Act of 1950 except that
the provisions of Chapter VIII of the said
Act
become
inapplicable
in
relation
thereto - Its devolution is then governed
by personal laws and not the Act of 1950.
(Para 50 and 51)

C. Civil Law - UP Zamindari Abolition and
Land Reforms Act, 1950 - S. 143 - No
declaration of suit property u/s 143 could
be made - Effect - How far, Civil Court has
jurisdiction - Held, we endorse the Lower
Appellate Court's opinion that the Civil
Court had no jurisdiction to try the suit for
eviction. A fortiori, it had to be filed before
the
Revenue
Court
of
competent
jurisdiction as Chapter VIII of the Act of
1950 would apply - High Court directed
return of the plaint to the plaintiff for
presentation to the Court of competent
jurisdiction under Order VII Rule 10 of the
Code. (Para 60, 61 and 68)
Appeal allowed. (E-1)

List of cases cited :-

1. Narayan Bhagwantrao Gosavi Balajiwale Vs
Gopal Vinayak Gosavi; AIR 1960 SC 100

2. Second Appeal No. 302 of 1953; M/s. Mahabir
Jute Mills Ltd. Vs Gauri Shanker Das & ors.
decided on 7th January, 1964.

3. Review Petition No. 624 of 2014 (arising out
Misc. Single No. 4227 of 2014); Smt. Gomti Devi
Vs District Judge, Unnao & ors. decided on
10.09.2014

4. Commissioner of Income Tax, Madras Vs
Gemini Pictures Circuit Pvt. Ltd.; (1996) 4 SCC
216

5. Ajaz Carpets & ors.Vs Birla International Pvt.
Ltd.; 2013 (4) AWC 4286

6. Alauddin alias Makki Vs Hamid Khan; 1971
RD 160

7. Bhagwati Devi Vs Radhey Shyam & ors.;
(1976) 2 RD 178

8. Magnu Ahir & ors. Vs Mahabir; 1987 RJ 146

9. U.P. St. Sugar Corporation Ltd., Lucknow &
anr. Vs Vinod Chand Gupta & anr.; 2007 (3)
AWC 3058

10. Additional Commissioner, Revenue & ors. Vs
Akhalaq Hussain & anr.; (2020) 4 SCC 507

11. Chandrika Singh & ors.Vs Raja Vishwanath
Pratap Singh & anr.; (1992) 3 SCC 90

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

1. This is a plaintiff's second appeal.
It arises out of a suit for eviction, recovery
of arrears of rent and mesne profits.

2. The plaintiff's suit aforesaid, being
O.S. No.250 of 1974 was decreed by the
Trial Court for eviction, recovery of arrears
of rent from 01.07.1972 to 15.05.1974 and
mesne
profits
from
the
date
of
316 INDIAN LAW REPORTS ALLAHABAD SERIES
determination of tenancy at the rate of
Rs.10/- per day.

3. The defendant-respondent appealed
to the District Judge of Bulandshahr from
the Trial Court's decree, which was
numbered as Civil Appeal No.409 of 1981.
The plaintiff filed a separate appeal from
the
Trial
Court's
decree,
seeking
enhancement of the mesne profits awarded.
This appeal was numbered as Civil Appeal
No.20 of 1982. Both the appeals were
consolidated, heard together and decided
by a common judgment, but separate
decrees passed by the learned Special
Judge/
Additional
District
Judge,
Bulandshahr
dated
27.07.1992.
The
defendant's appeal was allowed whereas
that by the plaintiff dismissed.

4. Aggrieved by the judgment and
decree passed in Civil Appeal No.409 of
1981, the present second appeal has been
preferred. The plaintiff appealed to this
Court from the judgment and decree passed
in Civil Appeal No.20 of 1982 as well,
which was dismissed in default by an order
dated 24.08.2011. Until time that this
appeal was heard by this Court, none of the
parties said that the plaintiff's appeal,
bearing No.1694 of 1992 had been restored
to file. The present appeal alone was,
therefore, heard.

5. The facts giving rise to this appeal
are:

Mahesh Chandra and Ramesh
Chandra, two brothers instituted Original
Suit No.250 of 1974 against Shyam Sundar
Sharma with a case that they are owners of
a part of Plot Nos.2135 and 2136,
admeasuring 0-16-6 and 0-8-2 respectively,
that abut the wall of the police station on
the Jewar side, situate at Jewar, within the
limits of the Town Area Jewar, District
Bulandshahr (it now falls in District
Gautam Buddh Nagar). On the 1st of
January, 1970, Mahesh Chandra and
Ramesh Chandra, the plaintiff-appellants
(for short, 'the plaintiffs') granted lease of a
part out of their holdings in Plot Nos.2135
and 2136 in favour of Shyam Sundar
Sharma, admeasuring 100' along the road
and about 100' on the western side, abutting
the wall of Police Station Jewar. The
demise was made on a rent of Rs.150/- per
month for the purpose of enabling Shyam
Sundar Sharma to establish and carry on
the business of his petrol retail outlet, being
an agency of the Indian Oil Corporation. A
rent note dated 31.07.1970 was executed
between
parties
and
presented
for
registration on the same day. It was
registered on 08.09.1970 as Document
No.2740 in Book No.1, Volume 832 at
Pages
62-67
by
the
Sub-Registrar.
Something described as a 'hand note',
carrying a map of the plot let out to Shyam
Sundar Sharma, also signed by him, was
duly executed by parties.

6. Shyam Sundar Sharma died
pending suit and was substituted by his
heirs and LRs, to wit, Smt. Nirmala Devi,
his widow, Brijesh Kumar, a minor aged 3
years and Rajesh Kumar, a minor aged one
year, both sons of Shyam Sundar Sharma
through their next friend Jayanti Prasad
Sharma, their grandfather. These LRs
continued to represent the interest of the
late Shyam Sundar Sharma in the suit and
in appeal before the Lower Appellate
Court. Here also, all the three heirs and
LRs were made parties, but at a subsequent
stage, under orders of this Court dated
06.01.2004, the name of Smt. Nirmla Devi,
Shyam Sundar Sharma's widow was
deleted and in this appeal, Shyam Sundar
Sharma's interest is represented by Brijesh
3 All. Mahesh Chand Vs. Brijesh Kumar & Anr.
317
Kumar and Rajesh Kumar, his sons.
Hereinafter, the original defendant Shyam
Sundar Sharma, represented by his heirs
and LRs Brijesh Kumar and Rajesh Kumar,
shall be referred to as 'the defendant'. The
Indian Oil Corporation was impleaded in
the suit as defendant No.2 and to this appeal
as defendant-respondent No.2. No relief has
been claimed against the Indian Oil
Corporation and they are admittedly what is
called a proforma defendant.

7. To revert to facts, it is the plaintiffs' case
that the defendant fell in arrears of rent w.e.f.
01.07.1972. This led the plaintiffs to serve a
notice dated 08.04.1974 upon the defendant
to quit and pay arrears of rent. By the said
notice,
the
defendant's
tenancy
was
determined and he was asked to deliver
vacant possession of the suit property on
15.04.1974. It is the plaintiffs' further case
that the defendant is in arrears of rent from
01.07.1972 to 15.05.1974, that worked out to
a figure of Rs.3375/-. It is pleaded that the
suit property can easily fetch a sum of Rs.25/-
per day in damages for use and occupation
and the plaintiffs have been deprived of the
said damages, amounting to Rs.325/-. The
cause of action was said to arise on everyday
that the defendant remained in possession of
the suit property after the period of notice
expired on 16.05.1974. A decree for
ejectment against the defendant and also
against the proforma defendant, if they
object, was claimed, besides one for recovery
of a sum of Rs.3375/- as mesne profits at the
rate of Rs.25/- per day with pendente lite and
future interest. A further decree for mesne
profits was sought pending suit until delivery
of possession to the plaintiffs at the rate of
Rs.25/- day, upon payment of court-fees in
the Execution Department.

8. The defendant filed a written
statement generally denying the plaint
allegations. In the additional pleas, the
defendant came up with a case that the
plaintiffs were not the exclusive owners of
Plot Nos.1235/1 and 1236/2. These plots
were held in the share of one-third each by
the plaintiffs, one Fakira and another Krishna.
The plaintiffs, representing themselves to be
the exclusive owners, demised the suit
property for a year, executing the registered
rent note. The plaintiffs have realized from
the defendant rent up to 30.06.1973. It is the
defendant's case that the two other coowners Fakira and Krishna insisted that the
plaintiffs alone did not have right to let out
the suit property nor do they have the
exclusive right to realize rent. After the said
insistence by Fakira and Krishna, it was
decided amongst the three of them, to wit,
the defendant, Fakira and Krishna that the
defendant would pay rent to Fakira and
Krishna and none of it would be paid to the
plaintiffs until such time that their share of
the rent was evenly received with the
plaintiffs. The defendant paid rent from
01.07.1972 to 30.06.1973 to Fakira and
secured a receipt. Likewise, the defendant
paid rent from 01.07.1973 to February,
1974 to Krishna and obtained a receipt
thereof from him as well. Later on, Krishna
and Fakira executed sale deeds of their
share in the two plots in favour of the
defendant on 16.03.1974 and 26.03.1974,
respectively.
The
defendant
is,
in
consequence, the owner of a two-third
share in the suit property. The suit property
and the remainder part of the two plots in
question is a bhumidhari, which has not yet
been partitioned by any Court. The
defendant's petrol pump is located in a onethird part of the land comprising the two
plots, but the plaintiffs are beneficially
holding more than a one-third share therein.
Therefore, the plaintiffs have no right to
claim anything against the defendant,
including rent or mesne profits. In addition,
318 INDIAN LAW REPORTS ALLAHABAD SERIES
the defendant is co-sharer and in possession
in his own right. He is not the tenant. The
notice to quit etc. served upon the
defendant is against the law and it has been
already answered detailing correct facts.
There cannot be any determination of the
defendant's tenancy since he is not a tenant.
He is co-sharer. The plaintiffs are not
entitled to any mesne profits. The rent note
is against the law and, therefore, it does not
entitle the plaintiffs to recover any damages
etc. Through an amended plea carried in
Paragraph
No.16-A
of
the
written
statement, introduced vide order dated
15.02.1986, it is pleaded that since the rent
note is illegal and void under Section 156
of the U.P. Z.A. & L.R. Act, the defendant
by virtue of Section 165 of the Act last
mentioned has acquired sirdari rights, and,
later on, a bhumidhari, because combining
the area of the suit property to that already
available with him and his family members,
the total does not exceed twelve and a half
acres. The defendant is, therefore, not liable
to eviction. The further plea raised is that
no cause of action has arisen to the plaintiff
to institute the present suit, which is not
maintainable. The plaintiffs have no right to
sue. The Civil Court has no jurisdiction to
try the suit. The suit is also pleaded to be
barred by estoppel and acquiescence.

9. Upon the pleadings of parties, the
following issues were struck:

"(1) Whether the defendant No.1
took the land in suit from the plaintiff on a
rent of Rs.150/- per mensum on 1.1.70?

(2) Whether a sum of Rs.3375/-
on account of arrears of rent for the period
from 1.7.72 to 15.5.74 was due against the
defendant no.1?

(3) Whether the defendant no.1
has purchased 2/3rd share of other cosharers of the plaintiff in the land in suit. If
so, its effect?

(4) Whether the court has no
jurisdiction to try the suit?

(5) Whether the tenancy of the
defendant was illegal?

(6) Whether the plaintiffs have
got no right to sue?

(7) Whether the suit is barred by
principles
of
waiver,
estoppel
and
acquiescence?

(8) Whether the defendant is
estopped from denying the title of the
plaintiff?

(9) Whether the plaintiff is
entitled to recover any mesne profits? If so,
its amount?

(10) Whether the notice to quit is
invalid?

(11) Whether the suit as framed is
not maintainable?

(12) Whether the relationship of
the landlord and tenant subsisted between
the parties after the expiry the period of
lease stipulated in the original lease deed?

(13) To what relief if any, the
plaintiff entitled?"

10. The plaintiffs, in support of
their case, examined Mahesh Chand as PW1, Shaukat Ali, PW-2 and a Handwriting
Expert, who testified as PW-3.

11. The defendant examined Jayanti
Prasad, DW-1, Shankar Lal, DW-2, Prabhu
Dayal,
DW-3
and
B.S.
Chaudhary,
Handwriting Expert, DW-4. Documentary
evidence was also produced by both
parties.
So
much
of
this
evidence,
documentary or oral, would alone be
referred to as relevant to the substantial
questions of law, that fall for consideration
in this appeal.

12. The Trial Court answered Issue
No.1 in the plaintiffs' favour and against
3 All. Mahesh Chand Vs. Brijesh Kumar & Anr.
319
the defendant, after the defendant admitted
in his statement under Order X Rule 2 of
the Code of Civil Procedure, 1908 (for
short, 'the Code') that he had been demised
the suit property on a monthly rent of
Rs.150/-, in terms of the rent note executed
in the defendant's favour.

13. Issue Nos.2 and 3 were decided
together. The learned Trial Judge held that
on a perusal of the judgment passed by the
Assistant Collector, Bulandshahr dated
06.10.1970 in a suit titled, Chhiddan v.
Missi, it is evident that co-sharer Krishna
had a share of 1/24 in the suit property,
which Krishna sold to a man called Ram
Chandra on 11.11.1963. The relative sale
deed was noticed to be on record, bearing
Paper
No.64-A.
This
document
was
produced by the plaintiffs. Ram Chandra's
name was mutated in the revenue records
on the basis of the sale deed, Paper No.64A, and to this end, Khatauni for the year
1371 fasli, bearing Paper No.118-C has
been taken note of. It was, therefore,
concluded that Krishna had no share in the
suit property, which he could transfer to the
defendant by way of sale. So far as the
other co-sharer Fakira is concerned, the
plaintiffs' case was that they had purchased
Fakira's share. In support, the plaintiffs
produced a sale deed dated 09.07.1965.
This sale deed was executed much earlier
than the sale deed said to be executed in the
defendant's favour by Fakira. It was,
therefore, concluded by the learned Trial
Judge that Fakira had nothing to transfer in
the defendant's favour as his share in the
suit property. The Trial Court has also
remarked that if for some reason, Fakira's
name had continued to be recorded in the
revenue records, the inference cannot be
that Fakira continued to be owner of his
share, which he could again transfer to
another. The Trial Court has also noticed
Paper No.65-C, a Khatauni, which shows
that on 10.07.1974, the revenue record, that
was inaccurate about mentioning Fakira's
name, too was corrected. The learned Trial
Judge has also remarked that neither Fakira
nor Krishna were produced by the
defendant in the witness box, depriving the
plaintiffs of the opportunity of crossexamining them about their right to
transfer. The case, therefore, set up by the
defendant
that
from
01.07.1972
to
30.06.1973, he paid rent to Fakira and from
01.03.1973 to February, 1974 to Krishna,
regarding which he had produced rent
receipts, is of no consequence. The
defendant's
case
that
there
was
an
agreement
between
him,
Fakira
and
Krishna, when those two had obstructed the
use of the suit property, to pay them rent,
was discarded by the Trial Court, because
no document to establish the fact could be
produced by the defendant. To the contrary,
the lease deed executed by the plaintiffs
was a registered document and according to
it, the defendant was obliged to pay the
plaintiffs due rent. It was also observed by
the Trial Court that if there had to be any
change of the terms of tenancy, it had to be
done through a registered instrument. Thus,
Issue No.2 was answered in the manner
that the defendant was in arrears of rent
payable to the plaintiffs for the period
01.07.1972 to 15.05.1974 to the tune of
Rs.3375/-. Issue No.3 was answered in the
manner that the defendant was not a cosharer with the plaintiffs to the extent of a
two-third share in the suit property.

14. Issue No.4 was decided against
the
defendant
as
a
preliminary
on
14.05.1976, holding that the Civil Court
had jurisdiction. The said issue appears to
have been re-agitated when the suit was
finally heard, but the Trial Court did not
disturb the earlier determination of the
320 INDIAN LAW REPORTS ALLAHABAD SERIES
issue with the remark that there was no
such change in circumstances, warranting a
review of the finding on Issue No.4.

15. In deciding Issue No.5, the Trial
Court reasoned that the suit property was
not leased out for agricultural purposes.
The documentary evidence showed that the
suit property was situate in Town Area
Jewar within the local limits of Nagar
Palika. It has been declared to be an abadi.
In the circumstances, it was opined that on
the execution and registration of the lease
deed, there has been no violation of the law
and the defendant's tenancy was not
unlawful.

16. Issue No.7 was decided in the
plaintiffs' favour and against the defendant
holding that the suit was not barred by
estoppel or acquiescence.

17. Issues Nos.6, 8 and 11 were dealt
with together, where Issue No.6 was
answered in the negative and in the
plaintiffs' favour, holding that looking to
the terms of the lease deed, it could not be
said that the plaintiffs had no right to
institute the suit. Issue No.8 was decided in
the affirmative and in the plaintiffs' favour,
holding that going by the terms of the lease
deed, there was relationship of 'landlord'
and 'tenant' between the plaintiffs and the
defendant, on account of which he could
not deny the plaintiffs' title. Issue No.11
was decided in the negative holding the suit
maintainable.

18. Issue No.10 was also decided in
the negative and in the plaintiffs' favour
holding that the notice to quit was valid.
The next that was determined by the Trial
Court was Issue No.12. This issue was
answered again in the plaintiffs' favour,
holding that there was relationship of
landlord and tenant, post expiry of the term
of the lease. Issue No.13 was also answered
in the plaintiffs' favour and against the
defendant, which was an issue about the
relief to which the plaintiffs were entitled.

19. The suit was decreed with costs
for eviction and recovery of rent from
01.07.1972 to 15.05.1974, being a sum of
Rs.3375/-. The said decree of the Trial
Court was passed on 30.11.1981. It was
further decreed that post determination of
the lease, the plaintiffs would be entitled to
mesne profits at the rate of Rs.10/- per day.

20. The Trial Court's decree was
appealed by the defendant to the District
Judge of Bulandshahr. The defendant's
appeal was registered on the file of the
District Judge as Civil Appeal No.409 of
1981. The appeal aforesaid came up for
hearing before the learned Special Judge/
Additional District Judge, Bulandshahr on
27th July, 1992, when it was allowed, the
decree of the Trial Court reversed and the
plaintiffs' suit for ejectment, recovery of
arrears of rent and mesne profits dismissed.

21. Aggrieved, the present second
appeal has been preferred by the plaintiffs.

22. This appeal was admitted to
hearing on 04.12.1992. The substantial
questions of law involved were those
carried in Ground Nos.1 to 9. No
substantial
questions
of
law
were
formulated by the Court. When this matter
came up before this Court for hearing on
20.02.2020,
the
following
substantial
questions of law were formulated:

"1. Whether the provisions of
U.P.Z.A.&L.R. Act, 1950 would apply to the
(sic) land let out for non agricultural
purposes?
3 All. Mahesh Chand Vs. Brijesh Kumar & Anr.
321
2. Whether the provisions of U.P.Z.A.&L.R.
Act, 1950 would apply to the (sic)
agricultural land located in an area that
has fallen within the limits of a town area
upon extension of boundaries after the date
of vesting?

3. Whether the land situate in an
urban area utilized for to (sic) a non
agricultural
purposes
would
still
be
deemed to an agricultural land in the
absence of a declaration under Section 143
U.P.Z.A.&L.R. Act?

4. Whether a tenant is estopped
from disputing the nature of the land
demised after utilizing the same for non
agricultural purposes?

5. Whether the provisions of
Section 165 U.P.Z.A.&L.R. Act would be
attracted either in its amended form or unamended, to land that has been found to be
utilized for non agricultural purposes post
letting?"

23. Heard Mr. Kunal Shah, learned
Counsel for the plaintiffs, Mr. Ravi Kant,
learned Senior Advocate assisted by Mr.
I.N. Singh and Mr. Gajendra Pratap,
learned Senior Advocate assisted by Mr.
Abhishek
Kumar,
learned
Counsel
appearing for the defendant.

24. It would be convenient in the
logical sequence of things to answer
substantial questions breaking seriatim and
determining the questions in an order that
eschews examining matters, without going
into which the appeal can still be
effectively decided.

25. This Court proposes to examine
Substantial Question of Law No.2 for a
first.

26. It was urged on behalf of the
plaintiffs on the second substantial question
that the suit property falls within the Town
Area Jewar and the provisions of the Uttar
Pradesh Zamindari Abolition and Land
Reforms Act, 1950 (for short, 'the Act of
1950') do not apply to it at all. It is pointed
out that in Paragraph No.1 of the plaint, it
is pleaded that the suit property is located
within the town area aforesaid. The remark
in the judgment of the Lower Appellate
Court that Chapter VIII of the Act of 1950
applies to land falling within a town area is
erroneous. The remark of the Lower
Appellate Court is said to be erroneous
because under the provisions of Section 64
of the U.P. Urban Areas Zamindari
Abolition and Land Reforms Act, 1956 (for
short, 'the Act of 1956'), a land falling
within the limits of a town area becomes
amenable to the Act of 1950 if the land is
an agricultural area, acquired and notified
as such by the State Government. The term
'agricultural area' has been defined under
Section 2(1) of the Act of 1956. It is said
that a perusal of the provisions of the Act of
1956 shows that facts are to be proved for
showing an area to be an agricultural area
within
the
limits
ZamindariZamindariZamindarizamindariz
amindariZamindarizamindarizamindariZa
mindariZamindarizamindariZamindari of a
town by virtue of the Act of 1956. It is
pointed out on behalf of the plaintiffs that
the defendant in his written statement has
not alleged that the suit property was ever
included in an agricultural area under the
Act of 1956, to which a fortiori the
provisions of the Act of 1950 became
applicable under Section 64 of the Act of
1956. There was much contention on behalf
of the plaintiffs as to the manner of
notification and demarcation of agricultural
area under the Act of 1956, within the
322 INDIAN LAW REPORTS ALLAHABAD SERIES
limits of a town, in order to make it
amenable to the Act of 1950.

27. The learned Counsel appearing for
the defendant, Mr. Ravi Kant submitted
that it is not the position of the law that if
agricultural land is included within the
limits of a municipality or town area, it is
ipso facto excluded from the purview of the
Act of 1950. It is argued by the learned
Senior Advocate that under Section 1(2) of
the Act of 1950, any area which is included
within the limits of a municipality or a
town area on 07.07.1949, is excluded from
the operation of the last mentioned Act. It is
emphasized that the date of vesting under
the Act of 1950, which is 01.07.1952, has
no relevance to the applicability of the said
Act to land located within the local limits
of a town area or municipality. It is,
particularly, emphasized that there is no
pleading on behalf of the plaintiffs that the
suit property was included in the town area
on or before 07.07.1949. There is no
evidence produced by the plaintiffs either
that it was so included, on or before the
date aforesaid. It is, therefore, submitted
that the provisions of the Act of 1950
would continue to apply to the suit
property. It is further on submitted that it is
the plaintiffs' admission in their dock
evidence
that
the
suit
property
is
bhumidhari. The learned Senior Advocate
for the defendant has drawn this Court's
attention to the following testimony of the
plaintiff recorded on 10.04.1979, when he
appeared in the dock as PW-1:

"........ इन खेिों पर काश्िकारी 1968-1969
से नहीं हो रही है। इन खेिों के बावि गजट नही िावखल वकया है।
यह खेि भूवमिरी के थे। अब 2-3 साल से भूवमिरी नही हैं।"

28. It is also pointed that the plaintiff
further said in his testimony on 21.07.1987:

"............. यह बाि सही है और अब भी
वववाविि जमीन को खेविहर जमीन ही मानिा ह ाँ।
...........वववाविि भूवम से पविम व िवक्षण िरफ जो भूवम है उसकी
बेिखली का मुकिमा माल की अिालि में वकया है वजसका खसरा
नम्बर 2135 व 2136 है। और वववाविि जमीन का भी नम्बर
2135 व 2136 है।"

29. It is argued that the suit property
is, therefore, bhumidhari as the fact is
admitted to the plaintiffs. It is urged that
admission is the best piece of evidence
unless it is withdrawn or proved erroneous.
In support of this contention of his, the
learned
Senior Advocate
has
placed
reliance upon the authority of the Supreme
Court in Narayan Bhagwantrao Gosavi
Balajiwale v. Gopal Vinayak Gosavi, AIR
1960 SC 100. The learned Senior Advocate
for the defendant, in particular, drew the
attention of the Court to the following
remarks in Narayan Bhagwantrao Gosavi
Balajiwale (supra):

"11. In the present case, the
burden of proof need not detain us for
another reason. It has been proved that the
appellant and his predecessors in the title
which
he
claims,
had
admitted
on
numerous occasions that the public had a
right to worship the deity, and that the
properties were held as Devasthan inams.
To the same effect are the records of the
revenue authorities, where these grants
have been described as Devasthan, except
in a few cases, to which reference will be
made subsequently. In view of all these
admissions and the revenue records, it was
necessary for the appellant to prove that the
admissions were erroneous, and did not
bind him. An admission is the best
evidence that an opposing party can rely
upon, and though not conclusive, is
decisive of the matter, unless successfully
withdrawn or proved erroneous. We shall
3 All. Mahesh Chand Vs. Brijesh Kumar & Anr.
323
now examine these admissions in brief and
the extent to which they went and the
number of times they were repeated."

30. We do not think that admission on
a question, such as the one present, can be
of much use to the other side, because it is
essentially a matter of the law, going by the
date of inclusion of the suit property within
the town area if the Act of 1950 would
apply to it. There is on record a copy of the
notification issued under Section 3 of the
U.P. Town Areas Act, 1914, which shows
that a portion of the Gaon Sabha Jewar,
which includes the suit property, came to be
notified and included within the town area
with effect from the said date. Section 1 of
the Act of 1950 reads:

"1. Short title, extent and
commencement.- (1) This Act may be
called
the
Uttar
Pradesh
Zamindari
Abolition and Land Reforms Act, 1950.

(2) It extends to the whole of the
Uttar Pradesh except the areas which, on
the 7th day of July, 1949, were included in
a municipality or a notified area under the
provisions
of
the
United
Provinces
Municipalities Act, 1916 or a Cantonment
under the provisions of the Cantonment
Act, 1924 or a town area under the
provisions of the United Provinces Town
Areas Act, 1914:

Provided that in relation to areas
included in the Rampur Municipality, this
sub-section shall have effect as if for the
words and figures '7th day of July, 1949'
the words and figures '3lst day of July,
1949', were substituted therein:

Provided further that where any
area which on July 7, 1949 was included in
a Municipality, Notified Area, Cantonment
or Town Area, cease to be so included
therein at any time after that date and no
notification has been made in respect
thereof under Section 8 of the Uttar
Pradesh Urban Areas Zamindari Abolition
and Land Reforms Act, 1956-

(i) in case it has ceased to be so
included at any time before June 29, 1971,
this Act shall extend to such area from June
29, 1971; and

(ii) in any other case, this Act
shall extend to such area from the date on
which the area ceases to be so included.

(3) It shall come into force at
once except in the areas mentioned in
Clauses (a) to (f) of sub-section (1) of
Section 2 where it shall, subject to any
exception or modification under subsection (1) of Section 2, come into force on
such date as the State Government may by
notification in the Gazette appoint and
different dates may be appointed for
different areas and different provisions of
this Act."
(emphasis by Court)

31. A perusal of the said provision
makes it explicit that the Act of 1950
applies to the whole of Uttar Pradesh, save
for areas which on the 7th day of July, 1949
were included in a municipality, a notified
area, a cantonment or a town area under the
specified statutes. It is, therefore, trite to
say that the date for the purpose of
excluding an area from the operation of the
Act on account of that area being situate
within the local limits of a municipality or
a town area etc. is quite distinct and
different from the date of vesting to be
notified under Section 4 of the Act of 1950
by the State Government and published
under Section 5 thereof. The date of vesting
is 01.07.1952 and the relevant date for any
area to be excluded from the operation of
the Act on account of it being included in
the local limits of a municipality, town area
etc. is 07.07.1949. Here, admittedly, the
area which includes the suit property was a
324 INDIAN LAW REPORTS ALLAHABAD SERIES
part of Gaon Sabha Jewar on 07.07.1949
and came to be included in the Town Area
Jewar by a notification, as already
mentioned, issued under Section 3 of the
Uttar Pradesh Town Areas Act, 1914 w.e.f.
31.12.1956. For the said reason, the Act of
1950 would continue to apply to the suit
property, notwithstanding its inclusion
within the local limits of the town area.

32. This question is answered in the
terms that the provisions of the Act of 1950
would apply to agricultural land located in
an area that has fallen within the limits of a
town area upon extension of its boundaries
after the date of vesting; more specifically,
after 07.07.1949.

33. This would take us to answering
Substantial Question of Law No.1. This
question is cast in the terms, whether the
provisions of the Act of 1950 would apply
to land let out for non-agricultural
purposes.

34. It would be convenient to answer
Substantial Question of Law No.1 together
with Substantial Question of Law No.3
because the issue, subject matter of these
questions, is overlapping, if not the same.

35. Mr. Kunal Shah, learned Counsel
for the plaintiffs submits that the provisions
of the Act of 1950, in particular, Chapter
VIII of the said Act, stand excluded in their
application to such land, which was let out
and is being used for purposes not
connected with agriculture, horticulture or
animal husbandry etc. He has drawn the
Court's attention to the definition of land in
Section 3(14) of the Act of 1950, which
reads:

"3. Definitions.- (1)-(13) x x x

(14) "Land" except in Sections
109, 143 and 144 and Chapter VII means
land held or occupied for purposes
connected with agriculture, horticulture or
animal
husbandry
which
includes
pisciculture and poultry farming;"

36. The submission proceeds that a
bare perusal of Section 3(14) makes it
evident that the legislature in plain and
unambiguous words has provided that
except where the expression 'land' is used
in Sections 109, 143 and 144 and Chapter
VII of the Act of 1950, it has to be ascribed
a uniform meaning throughout the Act,
which is 'land' held or occupied for
purposes connected with agriculture etc. A
fortiori for construing the expression 'land',
occurring in the various provisions under
Chapter VIII of the Act of 1950, the
meaning ascribed to 'land' in Section 3(14)
would apply, inasmuch as Chapter VIII has
not been excluded from the ambit of
Section 3(14). Upon a perusal of Section
3(14) of the Act of 1950, the conclusion is
inescapable that the provisions of Chapter
VIII, dealing with the land, would apply to
such parcels of lands alone, which are 'held'
or 'occupied' for agricultural purposes.

37. The learned Counsel for the
plaintiffs, in order to understand the
expression 'held' employed in Section 3(14)
of the Act of 1950, has drawn on extrinsic
aid in construing it. He has relied on P.
Ramanatha Aiyar's Law Lexicon 5th
Edition, which defines 'held' and 'occupied'
thus:

""Held" or "occupied". The
words "held" or "occupied" carry the same
meaning and there is no manner of doubt
that if the land is in the lawful possession
of the factory and was being used for the
purpose of the factory, the land vested in
the Government as per Section 3 of the
1971 Act. [Gaurav Aseem Avtej v. Sugar
3 All. Mahesh Chand Vs. Brijesh Kumar & Anr.
325
Corporation Limited, (2018) 6 SCC 518,
para 19] [U.P. Undertaking (Acquisition)
Act (23 of 1971), S. 3]."

38. It is mooted that the words 'held'
or 'occupied', occurring in Section 3(14) of
the Act of 1950 have to be understood
according to the dictionary meaning, which
imply land, which is kept in possession or
one that is owned for using it for
agricultural purposes. It is argued by Mr.
Shah that the reason or the purpose for
which land is owned or possessed is then
the determinative factor. On 1st of January,
1970, the plaintiffs were holding and
occupying the suit property not for the
purpose of carrying out any agricultural
activity, but for the purpose of letting it out
to the defendant in order to undertake nonagricultural
activity
thereon
in
consideration of the plaintiffs enjoying rent
payable by the defendant. The purpose of
holding the suit property on 01.01.1970
was to let it out to the defendant for a nonagricultural activity, to wit, for the
installation and running of a petrol retail
outlet. The suit property was leased out for
one year w.e.f. 01.01.1970 to 31.12.1970.
The purpose of letting it out on 01.01.1970
was not to enable or permit the lessee to do
agricultural activity. It was decidedly let
out for the lessee to undertake or
accomplish his commercial pursuits. To
support his submission in this regard,
learned Counsel for the plaintiffs has called
in aid an unreported decision of this Court
in M/s. Mahabir Jute Mills Ltd. v. Gauri
Shanker Das and others, Second Appeal
No.302 of 1953, decided on 7th January,
1964. In M/s. Mahabir Jute Mills Ltd.
(supra), it is pointed out that land, let out
for manufacturing purposes, that is, for
putting up a mill or factory, was held not to
qualify as 'land' within the meaning of the
pari materia provision in the Uttar Pradesh
Agricultural
Tenants
(Acquisition
of
Privileges) Act, 1949. It was held not to
qualify as land within the meaning of the
last mentioned Act as it had been let out for
a
non-agricultural
purpose.
In
M/s.
Mahabir Jute Mills Ltd., it was observed
by S.K. Verma, J. (as the learned Chief
Justice then was):

"The trial court decreed the suit
for recovery of Rs.1800/-. On appeal the
learned
Additional
Civil
Judge
of
Gorakhpur affirmed the decree of the trial
court. The two grounds urged in the courts
below have been urged before me in second
appeal. Before the defendant-appellant can
claim any benefit by virtue of the certificate
under section 7 of the U.P. Agricultural
Tenants Acquisition of Privileges Act (U.P.
Act VII of 1950) the land has to be "land"
as defined in the Act.