K.P. Singh, J.
1. This is a plaintiff's writ petition arising out of a suit Under Section 138/176, U. P. Zamindari Abolition and Land Reforms Act. The plaintiff's father had claimed half share in the disputed property.
2. It had been alleged that the plaintiff had contributed to the extent of half the consideration of sale deed to his uncle Surajmal and he had been in possession over his half share and the defendants had denied the claim of the plaintiff on the basis of the recital in the sale deed indicating 1/21 share of the plaintiff in the disputed property, hence the suit.
3. The defence in the suit was the denial of the plaintiff's share in the disputed property and it was alleged that the plaintiff's name was mentioned in the sale deed to the extent of 1/21 share on the request of the plaintiff and that the plaintiff had not contributed towards sale consideration and that the property belonged to the defendants' father Surajmal and various other pleas were taken.
4. The trial court and the appellate court substantially accepted the contentions of the plaintiff that he had contributed in the sale consideration to the extent of half share and that he was entitled to half share in the disputed property, hence the plaintiff's suit was decreed by them. In second appeal by the defendants the plaintiff's claim has been negatived and the plaintiff has been given a decree only to the extent of 1/21 share in the disputed property on the basis of the recitals in the title deed of the parties. Aggrieved by the judgment of the second appellate court the plaintiff-petitioner has approached this Court under Article 226 of the Constitution.
5. The learned counsel for the petitioner has contended before me that in view of the provisions of Section 45 T. P. Act, the plaintiff is entitled to half-share in the disputed property on the finding recorded by the first two courts that the plaintiff contributed in the sale consideration to the extent of half share, Secondly it was contended that the second appellate court has patently erred in relying upon the recitals in the sale deed indicating the share of the plaintiff while determining his share in the disputed property.
6. The learned counsel for the con-testing opposite parties has submitted in reply that the judgment of the appellate court did not suffer from any patent error of law as the terms of the sale deed could not be varied in view of the provisions of Section 92, Evidence Act, Since the share of the plaintiff was indicated in the title deed as 1/21, the second appellate court was fully justified in setting aside the judgments of the first two courts and declaring the share of the plaintiff as 1/21. Secondly it was contended that on the basis of estoppel the plaintiff could not claim more than 1/21 share. Thirdly the revenue court could not vary the terms of the sale deed unless the sale deed was got set aside by the plaintiff. Fourthly it was submitted that declaration of the plaintiff's title was involved in the circumstances of the present case, hence the State of U. P. should have been impleaded in the suit and in the absence of necessary party the plaintiff could not get the decree and it is not a fit case where interference should be made with the impugned judgment of the second appellate court especially when it has granted a share to the plaintiff.
7. I have examined the contentions raised on behalf of the parties.
8. The second appellate court has dealt with the claims of the parties in paras 8 and 9 of its judgment. It appears that the second appellate court has mainly relied upon the recitals of the sale deed indicating the share of the plaintiff. According to the second appellate court if the plaintiff had contributed in sale consideration to the extent of half share he had remedy only in criminal court or civil court. The second appellate court has made the following observation in para 8 of its judgment.-
'No law has, however, been cited in respect of the second point. The contribution of a particular vendee towards the purchase price of a property cannot be held legally to determine his share is against specific recital in a sale deed. So far as revenue court is concerned, it is bound to accept the respective share holdings of the parties as they are mentioned in the sale deed.'
9. Here it would be proper to mention the provisions of Section 45, T. P. Act, which read as below:--
'Where immovable property is transferred for consideration to two or more persons, and such consideration is paid out of a fund belonging to them in common they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical, as nearly as may be with the interest to which they were respectively entitled in the fund; and, where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of contract to the contrary, respectively entitled to the interests in such property in proportion to the shares of the consideration which they respectively advanced.'
10. On the finding of fact recorded by the first two courts that the plaintiff had contributed to the extent of Rs. 1,000/- in the sale consideration, it appears that he is entitled to half share in the disputed property in view of the underlined portion of the provisions of Section 45, T. P. Act. The second appellate court appears to have failed to notice the aforesaid provision, hence it is necessary that its judgment should he quashed and the second appellatecourt should be asked to re-examine the claims of the parties.
11. The next question under consideration is what is the effect of recital in the sale deed indicating plaintiff's share as 1/21st in the disputed property.
12. The learned counsel for the contesting opposite parties has placed reliance upon the rulings reported in : AIR1929All578 ; Ramkrishna v. Anand Krishna AIR 1932 Mad 218, Muthu-kumaraswami Mudaliar v. Govinda Padayachi : AIR1936All157 ; Shib-Charan Das v. (Firm) Gulab Chand Chootey Lal, (1917) ILR 44 Cal 162 : (AIR 1917 Cal 502) Krishnacharan Barman v. Sanat Kumar Das and AIR 1941 Rang 99, Ma Aye Tin v. Daw Thant in support of his contention that the terms of the sale deed could not be varied, and the second appellate court was fully justified in placing reliance upon the recital in the sale deed and giving l/21st share in the disputed property to the plaintiff-petitioner.
13. In the present case the dispute is not between the vendor and vendees. The dispute is really between the vendees inter se, hence in my opinion no question of varying the terms of the contract arises. The vendees have come with different stories in support of their claims and on the basis of the theory set up by the defendants in the present suit, the recital indicating l/21st share to the plaintiff is erroneous hence the second appellate court has patently erred in giving only 1/21st share to the plaintiff petitioner.
14. In : AIR1936All258 , Khuda-wand Karim Khalesan-fi-sabil Allah v. (Babu) Narendra Nath, a Division Bench of this Court has observed as below:--
'The learned Judge mentions two decisions of this Court in (1888) ILR 10 All 421 and (1903) ILR 25 All 337, it was held in the earlier case that the words in Section 92, Evidence Act. 'between the parties to any such instrument'' referred to the persons, who on the one side and the other came together to make the contract of disposition of property, and would not apply to questions raised between the parties on the one side only of a deed regarding their relations to each other under the contract. This decision was followed in the later case.'
15. In the present case since the dispute is between the vendees regarding their share in the disputed property purchased and the recital in the sale deed indicating plaintiff's share is patently erroneous even according to the story narrated by the defendants, it is proper that the second appellate court should be asked to re-examine the claims of the parlies afresh in accordance with the decisions of this Court mentioned above as well as the observation of their Lordships of the Supreme Court in the ruling reported in : 3SCR22 R. Vishwanathan v. Rukn-ul-Mulkh Syed Abdul Wajid, wherein it has been observed as below:
'.........Evidently, the recitals in therelease deed were made for maintaining a record that Devrai and Ramalinga had no interest in the property of Shan-mugan. Admissibilitv of evidence to contradict the recital that there was in fact no property of the joint family is not precluded by Section 92, Evidence Act, as the dispute in this suit does not arise between the parties to the documents, but between persons who claimed under Ramalingam who was the executant of the document.'
16. As regards the other contentions raised on behalf of the contesting opposite parties it is not proper to express any concluded opinion at this stage especially when the judgment of the second appellate court is not based upon the contentions raised before me about the maintainability of the plaintiff's suit. It would be open to the contesting opposite parties to reiterate all the contentions raised before me before the second appellate court which will decide them specifically in accordance with law.
17. Prima facie the plaintiff's suit under Section 138/176, U. P. Zamindari Abolition and Land Reforms Act, does not appear defective in absence of State of U. P. nor the plaintiff's suit appears to be barred on the principle of estoppel nor the cancellation of the sale deed relied upon by the parties in support of their claims requires to be cancelled. In the circumstances of the present case it is to be seen what is evidentiary value of the sale deed relied upon by the parties in support of their contentions. However, the second appellate court shall examine the contentions raised on behalf of the contesting opposite parties in accordance with law and the decisions cited by the learned counsel for the contesting opposite parties in the present writ petition and shall not treat my tentative expression of opinion as final on the questions raised before me.
18. In the result the writ petition succeeds and the impugned judgment of the second appellate court dated 5-a-1977 in Second Appeal No. 243 of 72/73 (Mathura) Ram Murti v. Mohan Lal, is hereby quashed and the second appellate court is directed to re-examine the claims of the parties in the light of the observations made above. Parties are directed to bear their own costs.