# Moti Lal v. D.D.C. Jhansi & Ors

- **Citation:** (2015) 2 ILRA 1021
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-07-10
- **Case number:** C.M.W.P. No. 9826 of 1979
- **Bench:** Anjani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/moti-lal-v-d-d-c-jhansi-ors-43222
- **Pages:** 4

## Headnote

U.P.Z.A. & L.R. Act-1955-Section 155 and
164-mortgage with possession-amounts
to
sale-transfer
of
possession
not
actually done-contrary to contents of
deed-can not be considered-in terms of
Section 92 of Evidence Act.
Held: Para-20 & 21
1022
 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

2 All] Moti Lal Vs. D.D.C. Jhanshi & Ors.
1021
order is aware of the fact that he is actually in
custody; (2) if he has reason to believe on the
basis of reliable material placed before him(a)
that there is real possibility of his being
released on bail, and(b) that on being so
released he would in all probability indulge in
prejudicial activity; and (3) if it is felt essential
to detain him to prevent him from so doing. If
the authority passes an order after recording
his satisfaction in his behalf, such an order can
not be struck down on the ground that the
proper course for the authority was to oppose
the bail and if bail is granted notwithstanding
such opposition to question if before a higher
court."
The above mention conditions should be
satisfied for the above valid detention or
against the person in custody, one of the
condition is that there should be real
possibility of the person being released on
bail."
11.
Learned AGA and Sri Brij Lal,
learned counsel for the Union of India
despite making elaborate submissions failed
to demonstrate that the detaining authority
had recorded his satisfaction in the impugned
order that the petitioner who was in prison
had moved a bail application for his released
and there was strong possibility of his being
released on bail.
12. Learned counsel for the respondents
have further failed to draw our attention to any
material which was placed by the sponsoring
authority before the detaining authority
respondent no.3 for recording his satisfaction
that there was every likelihood of the petitioner
being released on bail and even the fleeting
reference made in the impugned order that the
petitioner was trying to obtain bail does not
appear to be based on any material whatsoever.
13.
For the aforesaid reasons and
keeping in view the settled law on the issue,
we are of the view that the impugned order
cannot be sustained and is liable to be
quashed.
14. The writ petition is allowed. The
impugned order dated 28.10.2014 passed
by the respondent no.3 Annexure -1 to the
writ petition is hereby quashed. The
petitioner shall be released forthwith if he
is not wanted in any other case.
15. There shall however be no order
as to costs.
16. The Registrar General of this
Court is directed to communicate this
order to Superintendent of Police, Ballia
for necessary follow up action.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.07.2015
BEFORE
THE HON'BLE ANJANI KUMAR MISHRA, J.
C.M.W.P. No. 9826 of 1979
Moti Lal
 ...Petitioner
Versus
D.D.C. Jhansi & Ors.
...Respondents
Counsel for the Petitioner:
Sri D.P. Singh, Sri Haider Husain, Sri R.P.
Srivastava, Sri S.P. Sharma
Counsel for the Respondents:
S.C., Sri N.B. Nigam, Sri Y.K. Sinha, Sri
Shyam Kumar Srivastava
U.P.Z.A. & L.R. Act-1955-Section 155 and
164-mortgage with possession-amounts
to
sale-transfer
of
possession
not
actually done-contrary to contents of
deed-can not be considered-in terms of
Section 92 of Evidence Act.
Held: Para-20 & 21
1022
 INDIAN LAW REPORTS ALLAHABAD SERIES
20.
Under the circumstances, therefore, it
would not be open for the petitioner to
contend with the conditions enumerated in
the document were either varied, added to,
or subtracted from. It must therefore,
necessarily be held that the parties are
bound by the recitals contained in the
document and they cannot adduce evidence
to show that the terms and conditions in the
document in question, had been varied.
21.
In such view of the matter, the
contention
of
learned counsel for
the
petitioner that possession was never handed
over to the respondents mortgagee or that
contrary to the terms of the deed itself, only
the crops were given to him in lieu of a loan,
cannot be accepted being contrary to the
terms of the agreement itself.
Case Law discussed:
AIR 2008 SC 2015; AIR 1958 SC 448.
(Delivered by Hon'ble Anjani Kumar
Mishra, J.)
1. Heard Sri D.P. Singh learned
Senior Counsel for the petitioner and Sri
Shyam Kumar Srivastava holding brief of
Sri N.B. Nigam learned counsel for the
respondents.
2. The instant petition arises out of an
objection under Section 9-A (2) of the U.P.
Consolidation of Holdings Act and is
directed against the orders passed by the
three courts below namely the Consolidation
Officer, Settlement Officer Consolidation
and Deputy Director of Consolidation.;
3. The dispute relates to Plot no. 232
which in the basic year was recorded in the
name of the petitioner Moti Lal. The
objection of the respondent no. 4 Harkishun
was that the petitioner had executed a
registered mortgage deed with possession of
the plot in question in his favour on
26.02.1975
and
therefore,
the
same
amounted to a sale in view of Section 164 of
the U.P. Zamindari Abolition & Land
Reforms Act and the objector was therefore,
liable to be recorded as its bhumidhar.
4.
The petitioner contested the
objection alleging that possession of the land
was never transferred and that he had only
transferred the crops in lieu thereof. It was
stated in the mortgage deed that in case the
petitioner returns the money within four
years the land would be reconveyed.
5.
It has been contended by learned
counsel for the petitioner that in support of his
contentions the petitioner had adduced
documentary evidence in the form of Khasras
of 1382 and 1383 Fasli corresponding to the
years 1975-76. In these documents the
petitioner was recorded in possession over the
land in question. It has further been submitted
that the contesting respondent in his crossexamination had admitted the fact that if the
money was returned within a period of four
years the mortgage would be redeemed. It is
therefore, his contention that mere recital of
delivery of possession in the mortgage deed did
not amount to actual transfer of possession. The
benefit of Section 164 of the U.P.Z.A. & L.R.
Act could have been given to the objector only
when he proved that he was in possession over
the land in question.
6. It has lastly been submitted that
the condition of re-conveyance within
four years specified in the mortgage deed
itself, was binding upon the parties. This
period had not elapsed. This aspects have
not been considered by the courts below.
7.

Learned
counsel
for
the
respondent, rebutting the submissions
made by learned counsel for the petitioner
has placed reliance on two judgments of
the Apex Court namely Smt. Rama Devi
2 All] Moti Lal Vs. D.D.C. Jhanshi & Ors.
1023
Vs Dilip Singh1 and Bai Hira Devi and
others Vs Official Assignee of Bombay2.
8. I have considered the submissions
made by learned counsel for the parties
and have perused the record.
9.
All the courts below have decided
against the petitioner holding that the document
in
question
categorically
recorded
that
possession was transferred and therefore in view
of Section 164, the same would amount to a sale.
10. In view of the submissions made
the only point that arises for consideration is
as to whether in view of the categorical
recital contained in the mortgage deed that
possession was being delivered to the
mortgagee, whether any evidence could be
led, and if led whether the same was liable to
be considered, to show that in fact possession
was never delivered to the mortgagee.
11. In the first case cited on behalf of
the respondents it has been held that even if a
transaction is alleged to be mortgage with
conditional sale and there is refusal for retransfer of land, the same, in view of the
deeming provisions of Section 164, would be
deemed to be sale and the mortgagor upon
execution of the same would loose all his
rights in the land in question.
12. Section 155 of the U.P.Z.A. &
L.R. Act is absolutely categorical and
reads as follows:-
'Mortgage of land by a bhumidhar- No
bhumidhar shall have the right to mortgage
any land belonging to him as such where
possession of the mortgaged land is
transferred or is agreed to be transferred in
future to the mortgagee as security for the
money advanced or to be advanced.'
13. The consequence of a mortgage
with possession is to be found in Section
164 which is extracted below:-
"Transfer with possession by a
bhumidhar to be deemed a sale:- Any
transfer of any holding or part thereof
made by a bhumidhar by payment of
money advanced or to be advanced by
way of loan and existing or future debt or
the performance of an engagement which
may give rise to a pecuniary liability,
shall, notwithstanding anything contained
in the document of transfer or any law for
the time being in force, be deemed at all
times and for all purposes to be a sale to
the transferee and to every such sale the
provisions of Sections 154 and 163 shall
apply."
14. The Apex Court, upon a
consideration of Section 164 held that a
mortgage with possession "would be
deemed at all times and for all purposes to
be sale to the transferee" and therefore,
the statutory right of redemption under
Section 60 of the Transfer of Property Act
would not be available to the mortgagor
in view of Section 164.
15. In view of the aforesaid decision
as also Section 164 itself, it must
necessarily be held that the deed in
question was a transfer or sale.
16. The only point which now
requires consideration is the contention of
learned counsel for the petitioner that
possession was never actually transferred
to the respondents. In this context, it has
been submitted that the khasras filed
before but the courts below have not been
referred
to
and
possession
of
the
respondents has been assumed merely on
1024
 INDIAN LAW REPORTS ALLAHABAD SERIES
the basis of the recital contained in the
mortgage deed itself.
17. In my considered opinion the
judgment cited by the respondents namely
the case of Bai Hira Devi provides a
complete answer to the submissions made
on behalf of the petitioner. In this
judgment the Apex Court has upon a
consideration of Section 91, 92 and 99 of
the Indian Evidence Act, held that Section
91 provides that where the terms of the
contract or any other disposition of
property, specially in any matter required
by law to be reduced in the form of a
document, no evidence shall be given in
proof of the terms of such contract except
the document itself. The document in
question in the instant case is a registered
agreement reduced to writing and duly
registered. The same has been filed on
record. Therefore, the contents of the
document stands proved in view of
Section 91.
18. Section 92, on the other hand,
excludes any evidence of an oral
agreement
for
the
purpose
of
contradicting, varying, adding to, or
subtracting from the terms of the contract
in writing. Therefore, in view of Section
92 the oral testimony of the parties on the
question of possession over the land in
dispute stood categorically excluded.
19. Section 99 provides as to who is
entitled to give evidence of an agreement
varying the terms of a document. It
provides that persons who are parties to a
document, or their representatives in
interest may not give evidence on a fact
which amounts to varying the terms of the
document. Such evidence may be lead
only by one who is not a party to the
document or is not a representative in
interest of the parties to the document. It
therefore, necessarily follows that parties
to a document cannot give evidence to
show
a
contemporaneous
agreement
varying the terms of the document. The
parties in the instant case are parties to the
document in question.
20. Under the circumstances,
therefore, it would not be open for the
petitioner to contend with the conditions
enumerated in the document were either
varied, added to, or subtracted from. It
must therefore, necessarily be held that
the parties are bound by the recitals
contained in the document and they
cannot adduce evidence to show that the
terms and conditions in the document in
question, had been varied.
21. In such view of the matter, the
contention of learned counsel for the
petitioner that possession was never
handed over to the respondents mortgagee
or that contrary to the terms of the deed
itself, only the crops were given to him in
lieu of a loan, cannot be accepted being
contrary to the terms of the agreement
itself.
22. The submissions of learned
counsel for the petitioner therefore, are
liable to be and are repelled.
23. Accordingly and in view of the
discussion above, the writ petition fails
and is dismissed.
--------