1. This is an appeal by special leave from a judgment of the Allahabad High Court arising out of a suit for a declaration that the plaintiff, now represented by his legal representatives who are the appellants before us, was the Bhumidar of certain plots of land in village Sarkaripura in Varanasi district and that he was entitled to get possession of those plots as Bhumidar with which defendant No. 1 (respondent No. 1 herein) had no concern. The Trial Court dismissed the suit but the first appellate court decreed the same. The High Court on appeal restored the decree of the Trial Court.
2. The facts lie within a narrow compass. One Jhuru father of defendant No. 2 (respondent No. 2 herein) Smt. Sundariya was the original tenant of the plots in dispute. He died when Mst. Sundariya was still a child. She was brought up by Chhannu respondent No. 1 During her minority he managed the property left by Jhuru including the plots in question. Mst. Sundariya was married when she came of age. It appears that Mst. Sundariya prior to December 1965 obtained Bhumidari right in the plots by depositing ten times the rent. On December 19, 1957 she sold these plots to the plaintiff for Rs. 1,500/-. It was alleged in the plaint that the plaintiff came into possession after the sale deed has been executed and registered. According to the revenue entries defendant No. 1 was shown as guardian of Mst. Sundariya. For that reason he kept on making attempts to interfere with the possession of the plaintiff. There were proceedings under Section 145 of the Criminal Procedure Code which ended against the plaintiff in September 1957. That led to the filing of the suit.
3. Mst. Sundariya admitted the case of the plaintiff but the suit was contested by Chhannu. According to him the rights of Mst. Sundariya got extinguished on her marriage and thereafter he continued to remain in possession as owner, his possession being adverse. It was pleaded that the entries in the revenue papers could not affect his rights. The Trial Court referred the issue about Sirdari rights claim by defendant No. 1 to the revenue court for a finding. The revenue court held that chhannu was the sirdar. On that finding the trial court dismissed the suit.
4. Before the first appellate court only the one point appears to have been the subject matter of discussion and decision. That court was of the view that possession of Chhannu over the plots in dispute commenced in his capacity as the de facto guardian of Mst. Sundariya. The revenue entries were also to that effect. The marriage of Mst. Sundariya undoubtedly led to extinguishment of her rights but no heir entitled under the law came forward to claim or take possession. Consequently Mst. Sundariya continued to be in possession through her de facto guardian. Mst. Sundariya even after termination of her legal rights as her of Jhuru thus continued to remain in possession and Chhannu defendant No. 1 was shown at all times in the relevant revenue records as her representative when Mst. Sundariya took proceedings to obtain Bhumidari certificate no objection was taken by Chhannu to that certificate being granted. In this view of the matter the first appellate court came to the conclusion that Chhannu did not have any rights and the plaintiff was entitled to a decree in his favour.
5. The High Court reversed the finding of the first appellate court on the short ground that when Mst. Sundariya's title got extinguished on her marriage the possession of Chhannu could not be on her behalf in the eye of law. In the opinion of the High Court the fact that Sundariya continued to be shown as a tenant could not make her a tenant and since she had lost all rights the plaintiff could not succeed in his suit. It has been urged on behalf of the appellants before us that the High Court was in error in reversing the finding of fact given by the first appellate court that the possession of Chhannu was only on behalf of Mst. Sundariya and not in his own right or in assertion of hostile title against her. Our attention has been invited to Section 182(2) of the U.P. Tenancy Act 1939 by which it is provided that if no suit is brought under this section or if a decree obtained is not executed the person in possession shall become hereditary tenant of such plot. According to Sub-section (1) of Section 180 the person taking or retaining possession of a plot of land without the consent of the person entitled to admit him to occupy such plot shall be liable to ejectment on the suit of the person so entitled. It has been submitted that it was open to the person who was entitled to evict Mst. Sundariya on the extinction of her rights on her marriage in the tenancy but since no action was taken by him and she continued to remain in possession through Chhannu she became the hereditary tenant of those plots and it was wholly immaterial whether she had lost her right by reason of her marriage. In this connection reference may also be made to Section 36 of the Tenancy Act which provided inter alia that if a female tenant who is the daughter of the last male holder gets married the holding shall devolve in accordance with the order of succession laid down in Section 35 on the heir of the last male tenant. It was never the case of Chhannu that he was the heir of the last male tenant who was entitled to succeed under Section 35 on the extinction of rights of the female tenant Mst. Sundariya on her marriage. It was next been contended that even assuming that Chhanoo was a Sirdar he made no attempt at any stage to get the entries in the revenue records corrected nor did he raise any objection to the Bhumidar Sanad being granted to Mst. Sundariya which could be done only on her having satisfied the authorities with regard to her right to obtain the Bhumidari Sanad. The acquisition of Bhumidari rights is dealt with by Section 134 of the U.P. Zamindari Abolition and Land Reforms Act 1950. The certificate is granted under Section 137 on the satisfaction of the Assistant Collector that the applicant is entitled to a declaration with regard to Bhumidari rights. Such a declaration was admittedly obtained by Mst. Sundariya and no attempt was made to get that certificate cancelled which could be done under Section 137-A of the aforesaid Act by Chhannu if he wanted to establish that he had the rights of a Sirdar and that the certificate had been obtained either fraudulantly or by concealment of true facts from the Assistant Collector. The purchase of the plots was made by the plaintiff after the certificate had been granted in favour of Mst. Sundariya. It was sought to be established by the counsel for the appellants from all the above facts and circumstances as also the legal provisions that Chhannu had no rights whatsoever and the High Court was wholly in error in interfering with the finding given by the first appellate court.
6. Mr. J.P. Goyal who appears for respondent No. 1 Chhannu has not been able to effectively meet the above submissions of the counsel for the appellants. He has tried to emphasise mainly the position which was canvassed and was accepted by the High Court that on the extinction of the rights of Mst. Sundariya, Chhannu took into possession all the plots in dispute and by virtue of his possession he became entitled to all the rights under the law of a Sirdar etc. In our judgment the entire material on the record including the revenue entries showed that Chhannu was never in possession in his own light and even if he was in actual physical possession that possession was only as an agent or representative of Mst. Sundariya who after her marriage was living in a different village and was only expected to manage the properties of which she was in possession through some one, that being Chhannu. Neither the necessary facts nor the material evidence on the question of acquisition of any title by Chhannu by way of adverse possession was relied on in the courts below or before us. The conduct of Chhannu throughout showed that she never claimed or asserted before the present litigation that he took possession even as a trespasser after the marriage of Mst. Sundariya. He made no attempt at any stage to have the revenue entries corrected. According to those entries he was shown in possession on behalf of Mst. Sundariya. If he had taken possession even as a tresspasser the entries would have been of a different nature and would not have continued to show Mst. Sundariya in possession through her quondam de facto guardian. It is difficult to accept that Chhannu remained totally ignorant about the steps taken by Mst. Sundariya for obtaining Bhumidari rights. Even after she had obtained a certificate under Section 137 of the U.P. Zamindari Abolition & Land Reforms Act with regard to her Bhumidari rights Chhannu did not take any action to get the certificate cancelled which he could have got done if his case was true under the provisions of Section 137-A of that Act. All these facts and circumstances support the conclusion arrived at by the first appellate court that the possession of Chhannu was always as a representative or de facto guardian of Mst Sundariya. We see no reason or justification on the part of the High Court for reversing that finding.
7. This appeal, therefore, must succeed. The order of the High Court is hereby set aside and that of the first appellate court restored with costs.