# Smt. Shanti Devi v. District Judge, Gonda & Ors

- **Citation:** (2024) 7 ILRA 688
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-01
- **Case number:** Writ C No. 1002401 of 1985
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shanti-devi-v-district-judge-gonda-ors-52271
- **Pages:** 25

## Headnote

A. Civil Law-Constitution of India, 1950Article
226-Indian
Forest
Act,
1927Section 4-Lease dispute-the petitioner
claimed
leasehold
rights
over
approximately 123 acres of land based on
the lease deed executed in 1951 by the
Ex-Zamindar
Rani
Kaneez
Bakar-the
disputed land was declared banjar under
UPZA & LR Act-the court ruled that nonappearance by the petitioner to prove her
case allowed the assumption that the
claim
was
not
genuine-despite
the
petitioner's name being recorded in the
revenue records, the court found that
these
entries
were
made
without
following proper legal procedures and
thus did not confer any rights to the
petitioner-The court upheld the validity of
the forest land notification issued by the
State under the Forest Act, 1927-The
petitioner's claims to the land based on
the
lease
deed
were
found
to
be
invalid.(Para 1 to 77)

The petition is dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,758 of 83,964. This is a partial read: ask again with offset=39758 for what follows._

688 INDIAN LAW REPORTS ALLAHABAD SERIES
Society
immediately
after
appropriate
orders are passed under Section 4-B of the
Act, 1860.

25. It is clarified that the order dated
28.6.2023
passed
by
the
Assistant
Registrar, Firms, Societies and Chits,
Azamgarh Region, Azamgarh so far as it
rejects the claim of petitioner no. 2 based
on the elections dated 20.10.2022 is not
being interfered with through the present
order.

26. With the aforesaid observations
and directions, Writ - C No. 30624 of 2023
is dismissed and Writ - C No. 23066 of
2023 is allowed.
----------
(2024) 7 ILRA 688
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.07.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ C No. 1002401 of 1985

Smt. Shanti Devi ...Petitioner
Versus
District Judge, Gonda & Ors.
 ...Respondents

Counsel for the Petitioner:
Pramod Kumar, S.K. Srivastava, U.S. Sahai

Counsel for the Respondents:
C.S.C., Pradeep Agrawal

A. Civil Law-Constitution of India, 1950Article
226-Indian
Forest
Act,
1927Section 4-Lease dispute-the petitioner
claimed
leasehold
rights
over
approximately 123 acres of land based on
the lease deed executed in 1951 by the
Ex-Zamindar
Rani
Kaneez
Bakar-the
disputed land was declared banjar under
UPZA & LR Act-the court ruled that nonappearance by the petitioner to prove her
case allowed the assumption that the
claim
was
not
genuine-despite
the
petitioner's name being recorded in the
revenue records, the court found that
these
entries
were
made
without
following proper legal procedures and
thus did not confer any rights to the
petitioner-The court upheld the validity of
the forest land notification issued by the
State under the Forest Act, 1927-The
petitioner's claims to the land based on
the
lease
deed
were
found
to
be
invalid.(Para 1 to 77)

The petition is dismissed. (E-6)

List of Cases cited:

1. C/M Vs Dy Dir. of Edu. (2006) LCD 1328

2. Jyoti Bhushan Mishra & anr. Vs. D. F.O.
Gonda North Gonda & anr. (2006) LCD 989

3. Raghunath Singh Vs. St. of U.P. (1966) RD
337

4. Mahendra Lal Jaini Vs St. of U.P. (1962) SCC
OnLine SC 55

5. St. of U.P. Vs IV A.D.J. (2012) SCC OnLine All
709

6. St. of U.P. Vs Kamal Jeet Singh (2017) SCC
OnLine All 4733

7. Wali Mohd. Vs Ram Surat (1989) 4 SCC 574

8. Vishwa Vijay Bharati Vs Fakhrul Hassan
(1976) 3 SCC 642

9. Ram Awadh Vs DDC (1985) RD 363 = 1985
SCC Online All 430

10. Gurmukh Singh & ors. Vs DDC/A.D.M. (F &
R). & ors.. (1997) RD 276

11. Ram Awadh Vs Collector/ DDC (2011) 113
RD 712 = 2011 SCC OnLine All 2641

12. S. Saktivel Vs M. Venugopal Pillai (2000) 7
SCC 104
7 All. Smt. Shanti Devi Vs. District Judge, Gonda & Ors.
689
13. Vidhyadhar Vs Manikrao (1999) 3 SCC 573.

14. Shantabai Vs St. of Bom. (1958) AIR SC
532= 1958 SCC Online SC 20

15. Sawarni Vs Inder Kaur (1996) 6 SCC 223

16. Bhimabai Mahadeo Kambekar Vs Arthur I &
E Co. (2019) 3 SCC 191

17. Dhirajlal Girdharlal Vs CIT (1954) SCC
Online SC 46

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Mohd. Arif Khan Senior
Advocate assisted by Sri U. S. Sahai
Advocate, the learned counsel for the
petitioner and Sri Kuldeep Pati Tripathi, the
learned
Additional
Advocate
General
assisted by Sri Arya Shreshtha Tiwari, the
learned Additional Chief Standing Counsel.

2. Briefly stated, the facts pleaded in
the Writ Petition are that the State
Government had issued a notification dated
19.04.1954 under Section 4 of the Forest
Act, 1927 for constituting certain lands as a
reserved
forest.
The
petitioner
filed
objections before the Forest Officer stating
that he was the Seerdar of the land in
question and the erstwhile Zamindar Rani
Kaneez Bakar had executed a lease-deed in
her favour on 06.05.1951 for cultivation
purpose. Some Mahua trees were existing
on the land in dispute, which had been sold
to the petitioner for a sale consideration of
Rs.2,000/-.

3. The Forest Settlement Officer
passed an order dated 13.04.1957 stating
that the owner of the land had executed a
patta in favour of the petitioner on
06.07.1951, hence the proceedings were
dropped and the land was released in
favour of the lessee.

4. The Forest Department challenged
the order by filing an appeal which was
allowed and the matter was remanded.

5. After remand, the petitioner's
objections were turned down by means of
an order dated 13.05.1959. The petitioner
again filed an appeal, which was dismissed
by means of order dated 26.09.1961. The
petitioner filed a revision before the State
Government, which was referred to the
Tribunal / District Judge, Gonda and was
registered as Civil Revision No. 37 of
1973. The District Judge allowed the
revision by means of an order dated
24.08.1973 and the matter was again
remanded to the Forest Settlement Officer.

6. After remand, the Forest Settlement
Officer passed an order dated 23.06.1982,
whereby the petitioner's objection has been
rejected again. The petitioner filed a Misc.
Revenue Appeal No.11 of 1982 which was
rejected by means of a judgment and order
dated 28.02.1985 passed by the District
Judge, Gonda.

7. The petitioner has filed the instant
Writ Petition seeking quashing of the
judgment and order dated 23.06.1982
passed by the Forest Settlement Officer,
Gonda in Case No.1129 under Section 6 of
the Forest Act and the judgment and order
dated 28.03.1985 passed by the District
Judge, Gonda in Misc. Revenue Appeal
No.11 of 1982.

8. The State has filed a counter
affidavit denying that any lease had
actually been executed in favour of the
petitioner by ex-Zamindar Rani Kaneez
Bakar on 14.07.1951. Sale of Mahua trees
by Rani Kaneez Bakar to the petitioner has
also been denied.
690 INDIAN LAW REPORTS ALLAHABAD SERIES

9. The petitioner has filed a rejoinder
affidavit and a copy of a registered leasedeed
dated
14.07.1951
executed
by
Rajkumari Kaneez Bakar in favour of the
petitioner Smt. Shanti Devi granting leasehold rights in respect of 123.95 acres land
situated in Mauja Pure Datai, Mohal
Birhara, Pargana and District Gonda along
with the trees existing on it on a rental of
Rs.374 and 6 aanna per year with effect
from year 1358 Fasli. It is recorded in the
lease-deed that the possession of the land
was handed over to Smt. Shanti Devi with
effect from 20.01.1951 and mutation of her
name had also been carried out. The leasedeed further states that the Lessee will have
all the rights generation after generation in
respect of the leased land and the trees
existing thereon and that the rent would be
payable in two installments, half after
Kharif crop in the month of Kwaar and half
after Rabi crop in the month of Vaishakh.
This lease-deed was registered in the office
of Sub-Registrar on 07.09.1951.

10. It has further been stated in the
rejoinder affidavit that Smt. Shanti Devi
has paid Rs.240.63 towards lease-rent
through a treasury challan, a copy whereof
has been annexed with the rejoinder
affidavit.

11.

The
State
has
filed
a
supplementary counter affidavit annexing
therewith a copy of the relevant extract of
Khatauni for the year 1356 Fasli (i.e.
01.07.1948
to
30.06.1949,
before
commencement
of
U.P.
Zamindari
Abolition and Land Reforms Act) and a
note is written on it that Zeeman spasht
nahi hai i.e the class of the land is not
clear. Land bearing Gata Nos. 225/22.43,
228/2-11.80 acre, 302/4-37.5 acre, 379/570.40 acre, 940/1-13.10 acre and 980-20.40
acre were recorded in the name of Gram
Panchayat
as
'Banjar
Deegar'.
The
petitioner claims to have obtained leasehold rights in respect of the land in
question through the lease-deed dated
06.07.1951, which was registered on
07.09.1951 and in the Khatauni for the year
1359 Fasli (i.e. 01.07.1951 to 30.06.1952),
land bearing Gata Nos.379/5-44.23 acre,
225/1-23.79 acre, 228/3-11.68 acre and
302-35.85 acre was mentioned as Imaarti
Jungle and it was recorded in the name of
the petitioner - Smt. Shanti Devi. However,
in the revenue records relating to the years
1377-1379 Fasli, Gata Nos.379/5-42.74,
225/1-23.79,
228/3-11.68,
302/1-33.22
acre, 940/1-12.90 and 980-18.50 acre are
recorded as Jungle. The name of Forest
Range Officer is recorded in revenue
records in basic year Khatauni and the
same continued to be recorded even after
consolidation.

12.
A
supplementary
rejoinder
affidavit has been filed by the petitioner
annexing therewith copies of Khataunis for
the year 1359 Fasli and 1362 Fasli in which
the land bearing Gata No.379/5 area 44-23
was recorded in the name of the petitioner
Smt. Shanti Devi.

13. A copy of the statement of Anand
Prakash, husband of the petitioner Smt.
Shanti Devi has also been annexed with the
supplementary rejoinder affidavit, wherein
he stated that her wife Smt. Shanti Devi is
the Seerdar of the land in question, which
she had taken on lease in the year 1950-51
from Zamindar Rani Kaneez Bakar. At that
time he was posted as District Engineer,
Gonda. The leased land measures 150
acres. He stated that he and his wife had
gone to Lucknow to meet the Manager of
the Zamindar for taking this land. The
Zamindar herself had talked to his wife and
had agreed to give the land on lease and
7 All. Smt. Shanti Devi Vs. District Judge, Gonda & Ors.
691
under her orders, the lease-deed was
executed at Gonda and it was signed by the
Zamindar and was accepted by the
petitioner. Thereafter, four leases were
admitted in Tehsil Gonda and a single
document in respect of three leases was
executed. It was done because the revenue
payable in respect of these leases exceeded
Rs.100 and its registration was mandatory.
Therefore, the lease-deed was presented by
the petitioner in the Registrar's Office and
it was executed by the Zamindar's Manager
in the capacity of her power of attorney
holder. Thereafter, the Manager, Ziledar
and Amin demarcated the land in presence
of Patwari and handed over its possession
and since then, he started making efforts to
make
the
land
cultivable.
Under
supervision of his employee Chaudhary
Harbans Singh, who used to manage the
land, the first crop of Arhar was sown in
the year 1360 Fasli and thereafter the
second crop of Lahi was sown. After that,
the Forest Department restrained them and
the petitioner lost possession of the land.

14. The petitioner's husband Anand
Prakash further stated that there were about
43 trees of Mahua on the land, which were
purchased for Rs.2,000/-. This amount was
paid
through
a
cheque,
which
was
encashed. Receipt for the amount was
issued by Manager Atahar Hussain Nakvi.
He further stated that the Tahsildar had
passed an order for mutation and it was
carried out in the Khatauni. He also
stated that he got Rs.1,000/- per year for
two years as value for Mahua crop but
thereafter he was restrained by the Forest
Department and since then he neither got
value of Mahua crop nor possession of the
trees. He stated that value of the trees
would have been approximately Rs.300/- to
Rs.350/- per tree. The witness stated that
his wife (the petitioner) was suffering from
Blood Pressure and Gout and was not in a
position to give her statement. In crossexamination,
the
petitioner's
husband
stated that the petitioner was present at
Gonda and she had gone to manage the
land occasionally. The land was in Mauja
Pure Datai, which was about 20 miles away
from Gonda. The petitioner had gone to the
land with her husband once or twice in the
year 1951-52 but she never went there on
her own. The petitioner did not observe
Parda. He could not tell whether any dense
Jungle was standing on the land in dispute
at the time of making the statement. As far
as he knew, there was no dense forest and
the land was cultivable. The Forest
Department had taken possession from the
petitioner in 1954-55 after issuance of the
notification. A few months after execution
of the lease-deed, a deal for the trees was
entered into separately. This negotiation
was held in April 1951 for the first time.
However, he did not get any of the trees cut
down as he did not need its timber. He
further stated that Arhar and Laahi crops
were sown only once in the year 1360
Fasli. His Manager Harbans Singh used to
keep accounts of expenses incurred in
sowing the crop and as the Manager had
died, he could not get any of the
documents.

15. A copy of the statement of Shri S.
M. Atahar Hussain Nakvi has also been
annexed with the supplementary rejoinder
affidavit. This statement had been recorded
through Commission executed by Sri.
Ravindra
Kumar
Srivastava
Advocate
Commissioner. He stated that Birhara State
was not in District-Gonda but it was in
District Barabanki. No village forming a
part of Birhara State fell in District-Gonda.
Mauja Pure Datai is situated in District
Gonda. Proprietor of this Mauja was Smt.
Rani Kaneez Bakar D/o Raja Abdul Hasan,
692 INDIAN LAW REPORTS ALLAHABAD SERIES
Talukdar
Riyasat
Birhara,
District
Barabanki. Rani Kaneez Bakar had
executed a registered power of attorney
in his favour but he did not have the
original power of attorney because he
had handed over the charge of all the
documents. A copy of the power of
attorney dated 31.05.1976 available on the
paper book was admitted by this witness.
He stated that 3-4 lease-deeds were
executed in favour of the petitioner in
respect of land situated in Pure Datai but he
did not remember as to whether the leasedeeds
had
been
registered
or
not.
Thereafter,
he
said
that
he
was
remembering that out of the lease-deeds,
one lease-deed was registered in the
Registrar's Office. After execution of the
lease-deed, possession was handed over to
the petitioner and lease-rent was taken from
her. Value of the trees existing on land was
also taken. In his cross-examination,
Atahar Hussain Nakvi stated that Rani
Kaneez Bakar was a Parda Nasheen
lady and as per his knowledge, she had
never gone to any Registrar's Office or
to any Court. Power of attorney was
registered in the Registrar's Office at
Lucknow and he himself had taken her to
the Registrar's Office. He did not
remember as to how many sale deeds had
been executed in favour of the petitioner
and he did not remember area of land
leased or the number of trees existing on
the land. The trees were scattered and the
land was vacant. The compensation of
trees was perhaps Rs.2,000/- and receipt
in this regard has been given. Perhaps,
the compensation of trees had been taken
before execution of the lease-deed. No
mention of payment of compensation of
trees was made in the lease-deed.
However, he denied his signatures on the
rent receipt.

16. The petitioner has annexed with
the supplementary rejoinder affidavit a
copy of a letter dated 21.07.1952 sent by
the Manager of the Lessor to the
petitioner's
husband
Anand
Prakash,
stating that he had received a cheque of
Rs.280/- from the petitioner's husband,
which was being returned because it was a
crossed cheque and he did not have an
account in Imperial Bank and secondly, the
Lessee was liable to pay Rs.560/- for the
year 1359 Fasli and there was no use in
paying only a part of the rent. It is written
in
that
letter
that
Pure
Datai
and
Kunderkala are owned by two different
proprietors. Pure Datai belongs to Rani
Kaneez Bakar and her account is in Central
Bank, Gonda. Kunderkala belongs to Rani
Kaneez Ali and her account is in Imperial
Bank, Gonda.

17. The Manager of the Zamindar
sent another letter to the petitioner's
husband stating that he had received a
cheque of Imperial Bank in the name of
Rani Kaneez Ali and it was a crossed
cheque while the bank account was in the
Imperial Bank and it was in the name of
Mohd. Ameer Haider Khan Maharaj,
Kumar of Mahmoodabad. The Manager
demanded a crossed cheque in the name of
Maharaj Kumar Mohd. Ameer Haider
Khan.

18. The petitioner further claims that
she had paid Rs.2,000/- to Rajkumari
Kaneez Bakar towards price of unspecified
number of existing upon land bearing Gata
Nos.375, 940, 980, 302 and 228, along with
204 Mahua trees existing on plot No.225
on 21.06.1951 through a cheque dated
19.06.1951 drawn on Imperial Bank.

19. The petitioner has annexed a copy
of a Treasury challan dated 18.03.1954
7 All. Smt. Shanti Devi Vs. District Judge, Gonda & Ors.
693
regarding payment of Rs.399.03 towards
land revenue for the year 1361 Fasli for
lands
situated
in
Village
Kashhra,
Kunderkala and Pure Datai. The challan
mentions that the petitioner had paid 88
Rupees 8 annas for village Kashhra, 55
Rupees 2 annas for Village Kunderkala and
255 Rupees 6 annas and 03 paisa for
Village Pure Datai.

20. Sri Mohamad Arif Khan Senior
Advocate , the learned Counsel for the
petitioner, has submitted that the lease-deed
was executed on 06.07.1951 and it was
registered on 07.09.1951 for the reason that
the three lease-deeds executed earlier had
not been registered. As the lease-deeds had
been executed prior to enactment of U.P.
Zamindari Abolition and Land Reforms
Act (hereinafter referred to as 'The
U.P.Z.A.L.R. Act'), the petitioner became a
Seerdar of the leased land under Section 19
(iv) of the U.P. Z.A.L.R. Act. The trees
existing on the land were cut down and the
land became cultivable. The petitioner had
paid rent to the proprietor/Government.

21. Learned counsel for the petitioner
has further submitted that the land was
recorded as 'Banjar Deegar' and it did not
vest in the State upon abolition of
Zamindari. Therefore, Section 3 of the
Forest Act will not apply to this land.

22. The learned counsel for the
petitioner also submitted that while passing
the impugned order, the Forest Settlement
Officer has not followed directions issued
by the District Judge in the remand order.

23. In support of his submissions,
the learned Counsel for the petitioner has
relied upon the judgments in the cases of
Committee of Management Versus
Deputy Direction of Education: 2006
LCD 1328, Jyoti Bhushan Mishra and
another
Versus
Divisional
Forest
Officer, Gonda North, Gonda and
another:
(2006)
LCD
989
and
Raghunath Singh Versus State of U.P.:
1966 RD 337.

24. Per contra, Sri. Arya Shreshth
Tiwari, the learned Additional Chief
Standing Counsel representing the Forest
Department of the State of U.P., has
submitted that the District Judge had set
aside the earlier order dated 30.05.1959
passed by the Forest Settlement Officer
and the order dated 26.09.1961 passed by
the Additional Commissioner, Faizabad
Division on the ground that both the
authorities were required to answer the
question whether Smt. Shanti Devi had
acquired any Seerdari rights in respect of
four plot Nos.940/1, 980, 379/5 and 302
by virtue of the lease-deed referred to
above and in respect of the other two
plots on account of being in cultivatory
possession thereof since before the
abolition of Zamindari and they had
failed
to
discuss
the
oral
and
documentary
evidence
available
on
record.

25. Sri. Tiwari has submitted that the
petitioner's claim is based on the leasedeeds executed in the year 1951 and entry
of her name in the revenue records. The
petitioner has not produced the original
lease-deed or its certified copy at any stage
of the proceedings. Although it is recorded
in the revisional order dated 24.08.1973
passed by the District Judge that the
revisional Court had seen the original
Pattas, it is also mentioned therein that
none of the four original lease-deeds had
been filed to support the petitioner's
contention. Mere production of the original
lease-deeds for perusal of the revisional
694 INDIAN LAW REPORTS ALLAHABAD SERIES
Court without bringing it on record of the
case will not be sufficient to prove the
claim based on the lease-deeds.

26. Sri. Arya Shreshth Tiwari has
filed elaborate written submissions and the
submissions have been supported by the
judgments in the cases of Mahendra Lal
Jaini Versus State of U.P.: 1962 SCC
OnLine SC 55, State of U.P. Versus IV
Additional District Judge: 2012 SCC
OnLine All 709, State of U.P. Versus
Kamal Jeet Singh: 2017 SCC OnLine All
4733, Wali Mohd. Versus Ram Surat:
(1989) 4 SCC 574, Vishwa Vijay Bharati
Versus Fakhrul Hassan: (1976) 3 SCC
642,
Ram
Awadh
Versus
Deputy
Director of Consolidation: 1985 RD 363
= 1985 SCC OnLine All 430, Gurmukh
Singh and Ors. Versus Dy. Director of
Consolidation/ A.D.M. (F. and R.) and
Ors., 1997 RD 276, Ram Awadh Versus
Collector/District Deputy Director of
Consolidtion: (2011) 113 RD 712 = 2011
SCC OnLine All 2641, S. Saktivel Versus
M. Venugopal Pillai: (2000) 7 SCC 104
and
Vidhyadhar
Versus
Manikrao:
(1999) 3 SCC 573.

27. Now I proceed to adjudicate the
dispute involved in the case in light of the
pleadings and submissions advance on
behalf of the parties, referred to above.

28. The petitioner claims her title on
the
basis
of
the
lease-deed
dated
06.07.1951 executed by Rajkumari Kaneez
Bakar in respect of plot nos. 940 area 1310, Plot no. 980 area 25-50, Plot No. 379/5
area 49-50 and plot no. 302 area 35-85,
totaling to 123 acres 95 decimal situated in
village Poore Datai. A perusal of the leasedeed dated 06.07.1951 shows that it was
presented for registration by the petitioner
on 14.07.1951 and its execution by the
lessor was acknowledged by her power of
attorney holder Sri. Syed Mohd. Atahar
Hussain Naqvi on 06.09.1951. However,
there is no documentary evidence on record
to prove the due execution of a power of
attorney in favour of Sri. Syed Mohd.
Atahar Hussain Naqvi. Sri S. M. Atahar
Hussain Naqvi had stated that Rani Kaneez
Bakar had executed a registered power of
attorney in his favour but he did not have
the original power of attorney because he
had handed over the charge of all the
documents. He further stated that Rani
Kaneez Bakar was a Parda Nasheen lady
and as per his knowledge, she had never
gone to any Registrar's Office or to any
Court. Thus the execution of a power of
attorney by Rani Kaneez Bakar and its
registration could not be proved.

29. The lease-deed dated 06.07.1951
states that the lessor had already given 124
acres 95 decimal land on lease to the
petitioner
in
the
year
1358
Fasli
(01.07.1950 to 30.06.1951), and had
handed over its possession with effect from
20.01.1951, but it makes no mention of the
consideration for the lease granted in the
year 1358 Fasli. There is no evidence
regarding any payment of consideration for
the lease granted in the year 1358 Fasli.
Therefore, the leases allegedly granted in
the year 1358 Fasli were void for want of
consideration. Moreover, no registered
lease-deed
was
executed
prior
to
06.07.1951 and, therefore, the same was
not admissible in evidence.

30. The lease-deed dated 06.07.1951
mentions the consideration to be rent
amounting to Rs.374 and 6 annas per year,
which was payable in two installments, half
(i.e.187 Rupees and 3 annas) after Kharif
crop in the month of Kwaar and half after
Rabi crop in the month of Vaishakh. The
7 All. Smt. Shanti Devi Vs. District Judge, Gonda & Ors.
695
petitioner claims to have paid Rs.240.63
towards rent of the leased land through a
treasury challan dated 13.07.1953. A copy
of the challan has been filed with the
rejoinder affidavit and it shown that in the
column titled "Full particulars of the
remittance and of authority (if any)", it
mentions - "L.R. of 13607 of V. Pure Datai
Distt Gonda". The column titled "Head of
account" mentions "L.R. of Distt. Gonda".
The treasury challan does not make a
mention of any plot number and the
quantum of the amount paid through it does
not correspond to the amount payable as
lease-rent under the lease-deed dated
06.07.1951 - either annually or sixmonthly. Therefore, the entries made in this
treasury challan dated 13.07.1953 do not
correspond
to
the
lease-deed
dated
06.07.1951 and it does not prove that the
petitioner had paid any rent to the owner of
the land Rajkumari Kaneez Bakar.

31. The petitioner has annexed with
the supplementary rejoinder affidavit a
copy of a letter dated 21.07.1952 sent by
the Manager of the Lessor to the
petitioner's
husband
Anand
Prakash,
stating that he had received a cheque for
Rs.280/- from the petitioner's husband,
which was being returned because it was a
crossed cheque and he did not have an
account in Imperial Bank and secondly, the
Lessee was liable to pay Rs.560/- for the
year 1359 Fasli and there was no use in
paying only a part of the rent. It is written
in
that
letter
that
Pure
Datai
and
Kunderkala are owned by two different
proprietors. Pure Datai belongs to Rani
Kaneez Bakar and her account was in
Central Bank, Gonda. Kunderkala belongs
to Rani Kaneez Ali and her account was in
Imperial Bank, Gonda. This letter does not
mention the plot numbers in respect of
which the lease-rent was demanded and it
is not a proof of payment of lease-rent by
the
petitioner.
The
amount
of
rent
mentioned in this letter also does not
correspond to the lease-rent mentioned in
the lease-deed dated 06.07.1951.

32. The Manager of the Zamindar had
sent another letter to the petitioner's
husband stating that he had received a
cheque of Imperial Bank in the name of
Rani Kaneez Ali and it was a crossed
cheque while the bank account was in the
Imperial Bank and it was in the name of
Mohd. Ameer Haider Khan Maharaj
Kumar of Mahmoodabad. The Manager
demanded a crossed cheque in the name of
Maharaj Kumar Mohd. Ameer Haider
Khan. However, there is nothing on record
to establish that Rani Kaneez Bakar had
demanded any rent from the petitioner or
that the petitioner had paid any rent to the
Rani Kaneez Bakar.

33. In absence of proof of payment of
any consideration under the lease-deed
dated 06.07.1951, the petitioner cannot
claim any right on the basis of the leasedeed.

34. The petitioner has annexed a copy
of a challan dated 18.03.1954 regarding
payment
of
Rs.399.03
towards
land
revenue for the year 1361 Fasli for lands
situated in Village Kashhra, Kunderkala
and Pure Datai. The challan mentions that
the petitioner had paid 88 Rupees 8 annas
for village Kashhra, 55 Rupees 2 annas for
Village Kunderkala and 255 Rupees 6
annas and 03 paisa for Village Pure Datai.
The challan does not mention any plot
numbers in village Pure Datai in respect of
which the lease-rent was paid and the
amount of 255 Rupees 6 annas and 03 paisa
does not correspond to the lease-rent
mentioned
in
the
lease-deed
dated
696 INDIAN LAW REPORTS ALLAHABAD SERIES
06.07.1951. Thus this copy of challan dated
18.03.1954 does not establish payment of
lease-rent under the lease-deed dated
06.07.1951.

35. The petitioner Smt. Shanti Devi
did not appear as a witness to prove her
own case. As she did not get herself
examined, there was no occasion for her
cross-examination.
The
petitioner's
husband Anand Prakash had stated in his
statement that she was not a Parda Nasheen
lady. She did not come forward to get her
statement recorded merely because she was
suffering from Blood Pressure and Gout.
This was no reason for the petitioner not
coming forward to get her statement
recorded and, in any case, her statement
could have been recorded on commission
like another witness S.M. Atahar Hussain
Nakvi.

36. Both the learned Courts below
have drawn an adverse inference from the
petitioner's abstaining from appearing as a
witness to prove her case. In this regard, it
will be relevant to refer to the provision
contained in Section 114 of the Evidence
Act, 1872 and illustration (g) appended
thereto, which provides as follows: -

"114.
Court
may
presume
existence of certain facts.-The Court may
presume the existence of any fact which it
thinks likely to have happened, regard
being had to the common course of natural
events, human conduct and public and
private business, in their relation to the
facts of the particular case.

Illustrations

The Court may presume-
* * *

(g) that evidence which could be
and is not produced would, if produced, be
unfavourable to the person who withholds
it;
* * *"

37.

In
Vidhyadhar
versus
Manikrao: (1999) 3 SCC 573, the Hon'ble
Supreme Court held that: -

"17. Where a party to the suit
does not appear in the witness-box and
states his own case on oath and does not
offer himself to be cross-examined by the
other side, a presumption would arise that
the case set up by him is not correct as has
been held in a series of decisions passed by
various High Courts and the Privy
Council...."

38. Non-appearance of the petitioner
to prove her case and to offer her to be
cross-examined
raises
a
presumption
against the genuineness of the case set up
by her.

39. As the petitioner has failed to
establish due execution of the lease-deed
dated
06.07.1951
and
payment
of
consideration under the lease-deed dated
06.07.1951, she cannot claim any rights on
the basis of this lease-deed.

40. The petitioner did not lead any
evidence in respect of her claim of being in
cultivatory possession of two other plots
since before the abolition of Zamindari and
no evidence in this regard has been placed
even before this Court. Therefore, this plea
cannot be accepted.

41. The petitioner further claims that
she had paid Rs.2,000/- to Rajkumari
Kaneez Bakar towards price of the trees
existing upon land bearing Gata Nos.375,
940, 980, 302 and 228 along with 204
Mahua trees existing on plot No.225 on
7 All. Smt. Shanti Devi Vs. District Judge, Gonda & Ors.
697
21.06.1951
through
a
cheque
dated
19.06.1951 drawn on Imperial Bank. The
petitioner claims to have acquired rights in
respect of the land in question through a
registered lease-deed dated 06.07.1951 for
an agreed consideration of rent amount to
Rs. Rs.374 and 6 aanna per year but she
claims to have purchased the trees existing
on the land for a sale consideration of
Rs.2,000/- through an oral arrangement,
without execution of any deed of sale. In
this regard, it would be appropriate to refer
to Section 92 of the Evidence Act, 1872,
which reads as thus: -

"92. Exclusion of evidence of
oral agreement.-When the terms of any
such contract, grant or other disposition of
property, or any matter required by law to
be reduced to the form of a document, have
been proved according to the last section,
no evidence of any oral agreement or
statement shall be admitted, as between the
parties to any such instrument or their
representatives in interest, for the purpose
of contradicting, varying, adding to, or
subtracting from, its terms:
***

Proviso (4).-The existence of
any distinct subsequent oral agreement to
rescind or modify any such contract, grant
or disposition of property, may be proved,
except in cases in which such contract,
grant or disposition of property is by law
required to be in writing, or has been
registered according to the law in force for
the time being as to the registration of
documents."

42. The learned Additional Chief
Standing Counsel has placed before this
Court a judgment of the Hon'ble Supreme
Court in the case of S. Saktivel versus M.
Venugopal Pillai: (2000) 7 SCC 104,
wherein it was held that: -

"5...A perusal of the aforesaid
provision shows that what Section 92
provides is that when the terms of any
contract, grant or other disposition of
property, or any matter required by law to
be reduced in the form of a document, have
been proved, no evidence of any oral
agreement or statement is permissible for
the purpose of contradicting, varying,
adding or subtracting from the said written
document. However this provision is
subject to provisos (1) to (6) but we are not
concerned with other provisos except
proviso (4), which is relevant in the present
case. The question then is whether the
defendant-appellant can derive any benefit
out of proviso (4) to Section 92 for setting
up oral arrangement arrived at in the year
1941 which has the effect of modifying the
written and registered disposition. Proviso
(4) to Section 92 contemplates three
situations, whereby:

(i) The existence of any distinct
subsequent oral agreement to rescind or
modify any earlier contract, grant or
disposition of property can be proved.

(ii)
However,
this
is
not
permissible where the contract, grant or
disposition of property is by law required
to be in writing.

(iii) No parol evidence can be let
in to substantiate any subsequent oral
arrangement which has the effect of
rescinding a contract or disposition of
property which is registered according to
the law in force for the time being as to the
registration of documents.

6. In sum and substance what
proviso (4) to Section 92 provides is that
where a contract or disposition, not
required by law to be in writing, has been
arrived at orally then subsequent oral
agreement modifying or rescinding the said
contract or disposition can be substantiated
698 INDIAN LAW REPORTS ALLAHABAD SERIES
by parol evidence and such evidence is
admissible. Thus if a party has entered into
a contract which is not required to be
reduced in writing but such a contract has
been reduced in writing, or it is oral, in
such situations it is always open to the
parties to the contract to modify its terms
and even substitute by a new oral contract
and it can be substantiated by parol
evidence. In such kind of cases the oral
evidence can be let in to prove that the
earlier contract or agreement has been
modified or substituted by a new oral
agreement. Where under law a contract
or disposition is required to be in writing
and the same has been reduced to
writing, its terms cannot be modified or
altered or substituted by oral contract or
disposition. No parol evidence will be
admissible to substantiate such an oral
contract or disposition. A document for
its validity or effectiveness is required by
law to be in writing and, therefore, no
modification
or
alteration
or
substitution of such written document is
permissible by parol evidence and it is
only by another written document the
terms of earlier written document can be
altered, rescinded or substituted. There
is another reason why the defendantappellant cannot be permitted to let in
parol
evidence
to
substantiate
the
subsequent oral arrangement. The reason
being that the settlement deed is a
registered document. The second part of
proviso (4) to Section 92 does not permit
leading of parol evidence for proving a
subsequent oral agreement modifying or
rescinding the registered instrument. The
terms of registered document can be
altered, rescinded or varied only by
subsequent registered document and not
otherwise. If the oral arrangement as
pleaded by the appellant, is allowed to be
substantiated by parol evidence, it would
mean
rewriting
of
Ext.
A-1
and,
therefore,
no
parol
evidence
is
permissible.

(Emphasis added)

43. In this regard, it would be relevant
to refer to the definition of 'immovable
property' contained in Section 2(6) of the
Registration Act, 1908, which is as follows:
-

"(6)
"immovable
property"
includes
land,
buildings,
hereditary
allowances, rights to ways, lights, ferries,
fisheries or any other benefit to arise out of
land, and things attached to the earth, or
permanently fastened to anything which is
attached to the earth, but not standing
timber, growing crops nor grass;

44. A Constitution Bench judgment of
the Hon'ble Supreme Court in Shantabai
versus State of Bombay: AIR 1958 SC 532
= 1958 SCC OnLine SC 20, held that: -

"23. Now it will be observed that
"trees" are regarded as immoveable
property because they are attached to or
rooted in the earth. Section 2(6) of the
Registration Act expressly says so and,
though the Transfer of Property Act does
not define immoveable property beyond
saying that it does not include "standing
timber growing crops or grass", trees
attached to earth (except standing timber)
are immoveable property, even under the
Transfer of Property Act, because of
Section 3(26) of the General Clauses Act.
In the absence of a special definition, the
general definition must prevail. Therefore,
trees
(except
standing
timber)
are
immoveable property."

24. Now, what is the difference
between standing timber and a tree? It is
clear that there must be a distinction
7 All. Smt. Shanti Devi Vs. District Judge, Gonda & Ors.
699
because the Transfer of Property Act draws
one in the definitions of "immoveable
property" and "attached to the earth"; and
it seems to me that the distinction must lie
in the difference between a tree and timber.
It is to be noted that the exclusion is only of
"standing timber" and not of "timber
trees".

Timber is well enough known to
be-

"wood
suitable
for
building
houses, bridges, ships etc., whether on the
tree or cut and seasoned." (Webster's
Collegiate Dictionary).

Therefore,
"standing
timber"
must be a tree that is in a state fit for these
purposes and, further, a tree that is meant
to be converted into timber go shortly that
it can already be looked upon as timber for
all practical purposes even though it is still
standing. If not, it is still a tree because,
unlike timber, it will continue to draw
sustenance from the soil."

45. It is relevant to note that the
petitioner's husband Anand Prakash had
stated that he got Rs.1,000/- per year for
two years as value for Mahua crop, which
establishes that the trees standing on the
land were fruit bearing trees and were not
standing timber.

46. As the land had allegedly been
transferred to the petitioner through a
registered lease-deed and trees existing
on the land, which were also immovable
property,
had
not
been
transferred
through that registered lease-deed, the
subsequent transfer of the trees existing
on the land amounts to variance of the
terms of the registered lease-deed dated
06.07.1951 and this could only be made
through another registered transfer deed
and it could not be done orally.

47. The petitioner claims that she had
paid Rs.2,000/- to Rajkumari Kaneez Bakar
towards price of the trees existing upon
land bearing Gata Nos.375, 940, 980, 302
and 228 along with 204 Mahua trees
existing on plot No.225 on 21.06.1951
through a cheque dated 19.06.1951 drawn
on Imperial Bank, but there is no proof that
this amount had actually been credited to
the bank account of Rajkumari Kaneez
Bakar.
Therefore,
the
petitioner's
contention
regarding
payment
of
consideration for the trees existing on the
land in dispute could not be established.

48. So far as the claim of the
petitioner based on revenue entries is
concerned, firstly, it is well settled law that
the revenue entries do not confer any title.
In Sawarni versus Inder Kaur, (1996) 6
SCC 223, the Hon'ble Supreme Court was
pleased to lay down that: -

"Mutation of a property in the
revenue
record
does
not
create
or
extinguish title nor has it any presumptive
value on title. It only enables the person in
whose favour mutation is ordered to pay
the land revenue in question."

49. The aforesaid principle was
reiterated by the Hon'ble Supreme Court in
Bhimabai Mahadeo Kambekar versus
Arthur Import & Export Co., (2019) 3
SCC 191 in the following words: -

"6. This Court has consistently
held that mutation of a land in the revenue
records does not create or extinguish the
title over such land nor has it any
presumptive value on the title. It only
enables the person in whose favour
mutation is ordered to pay the land revenue
in question. (See Sawarni v. Inder Kaur
(1996) 6 SCC 223, Balwant Singh v. Daulat
700 INDIAN LAW REPORTS ALLAHABAD SERIES
Singh (1997) 7 SCC 137 and Narasamma
v. State of Karnataka (2009) 5 SCC 591.

50. As the petitioner could not
establish the due execution of the leasedeed dated 06.07.1951, the mere mutation
of her name in the revenue records will not
confer any rights upon her in respect of the
land in dispute.

51.