Judgment:
Sanjay Misra, J.
1. Heard Sri K.M. Garg learned Counsel for the plaintiff-appellant and Sri Anupam Kumar learned Counsel of the defendant-respondent. Point Nos. 7 and 8 framed in the Memorandum of Appeal are the substantial questions of law required to be considered. Learned Counsel for the parties agree that this second appeal be decided today itself.
2. According to Sri K.M. Garg, the plaintiff is the grandfather of Sachin and Smt. Sarla Devi is the grandmother of Sachin. Admittedly, Sachin has already died. Smt. Sarla Devi had purchased the property in question from one Sri Shyam Lal by a registered sale deed dated 14.6.1989 in the name of Sachin (minor) described as son of late Sunil Kumar. Since Sunil Kumar had predeceased Sachin, a dispute arose after the death of Sachin relating to the succession of the plot in question. It is admitted between the parties that half portion of the plot in question was purchased by Naresh Kumar who was son of the plaintiff-appellant and brother of late Sunil Kumar. The other half portion was purchased in the name of Sachin (minor) as already indicated above. After the death of Sachin, it appears that Naresh Kumar got his name mutated in the Revenue Records and therefore, claimed to be the owner of the entire plot and he executed a registered sale deed dated 4.2.2004 in favour of the defendant-respondent. The plaintiff who was the grandfather of Sachin filed the suit for cancellation of the sale deed dated 4.2.2004. According to Sri Garg, the trial court upon perusal of the evidence believed the description of parentage of Sachin given in the registered sale deed dated 14.6.1989 and disbelieved the entry of Naresh Kumar as father of Sachin made in the revenue records after the death of Sachin on the ground that there was no order or reasons shown as to how such an entry of Naresh Kumar has been made alleging him to be the father of Sachin when in the registered sale deed dated 14.6.1989, late Sunil Kumar was described as father of Sachin. The trial court therefore, found that the sale deed dated 4.2.2004 insofar as it related to the half share in the plot in question belonging to Sachin required to be set aside/cancelled since Naresh Kumar was not competent to alienate the share of Sachin.
3. According to Sri Garg, the first appellate court has allowed the appeal of the defendant-respondent, set aside the judgment of the trial court and dismissed the suit of the plaintiff-appellant illegally. His argument is that the lower appellate court has wrongly hold that Naresh Kumar was the father of Sachin. According to him, the evidence and the reasoning given by the trial court to hold that Naresh Kumar was not the fathe of Sachin could not be set aside by the first appellate court only on the basis of a revenue entry obtained by Naresh Kumar after the death of Sachin sometime in the year 1991. He submits that the parentage of Sachin was clearly described in the sale deed of 14.6.1989 which was got executed by Smt. Sarla Devi in the name of Sachin (minor) and Smt. Sarla Devi was the grandmother of Sachin and wife of the plaintiff herein. He further states that the conclusion of the first appellate court that the plaintiff has no a cause of action under Order VII, Rule 11, C.P.C. is erroneous inasmuch as in view of the provisions of Section 171 read with Section 172 of the U.P.Z.A. and L.R. Act when Sunil Kumar had admittedly predeceased Sachin and the mother of Sachin namely Rajni had absconded and in effect abandoned/surrendered her share in the property in question, it was the plaintiff alone in view of Sub-clause (g) of Section 171 of the U.P.Z.A. and L.R. Act who would inherit the share of Sachin by succession. He therefore, submits that the impugned order of the first appellate court requires to be set aside also on the ground that possession is admittedly with the plaintiff-appellant.
4. Sri Anupam Kumar who has put in appearance on behalf of both the defendant-respondents by caveat has raised a preliminary objection to state that the sale deed dated 4.2.2004 was executed by Naresh Kumar and Naresh Kumar was not made a party in the suit and hence the suit was bad for non-joinder of necessary party. He has supported the findings recorded by the first appellate court on the issue of Order VII, Rule 11, C.P.C. and that Naresh Kumar was the father of Sachin in view of the revenue entry made in his favour after the death of Sachin.
5. In view of the aforesaid submissions, it will be seen that the trial court had decreed the suit of the plaintiff-appellant. The lower appellate court has non-suited the plaintiff-appellant mainly on two grounds. The first is that the plaintiff-appellant should get his right, title and interest in the property adjudicated from the revenue courts and only then he could maintain the present suit for cancellation of the sale deed dated 4.2.2004. The second ground is that it has held that Naresh Kumar was the father of Sachin and hence, the sale deed dated 4.2.2004 could not be set aside for half of the property since the first half belonged to Naresh Kumar and the second half belonged to late Sachin who was the son of Naresh Kumar and hence Naresh Kumar became the owner of the entire property. It will be seen from the judgment of the court below that the pleading is that Sunil Kumar was described as the father of Sachin in the sale deed of 14.6.1989 whereby the land in question was purchased. This sale deed was got executed in the name of Sachin under the guardianship of his grandmother Smt. Sarla Devi, the wife of the plaintiff-appellant. The name of Naresh Kumar came in the revenue records after the death of Sachin in the year 1991. There is nothing on record to indicate as to how the name of Naresh Kumar was mutated in the revenue records as the father of Sachin when the revenue entries relating to the said plot were existing on the basis of the sale deed dated 14.6.1989 whereby Sachin had right, title and interest over the plot in question. Consequently, it appears that the finding of the trial court on this issue was in accordance with law and the lower appellate court appears to have misled itself in relying upon a revenue entry, the basis of which was not available on record. For the aforesaid reason, the finding that Naresh Kumar was recorded in the revenue record as the father of Sachin and hence was competent to execute the sale deed cannot be upheld and it is accordingly set aside.
6. Insofar as the conclusion of the first appellate court that the plaintiff-appellant had no cause of action and the suit was barred under Order VII, Rule 11, C.P.C. is concerned, the pleadings of the parties as recited by both the courts below is that the plaintiff-appellant is the grandfather of Sachin. The property in question was purchased in the name of Sachin under the guardianship of his grandmother Smt. Sarla Devi who is the wife of plaintiff-appellant. The said deed described late Sunil Kumar as the father of Sachin. The revenue entries over the plot in question came to be by virtue of the sale deed of 14.6.1989 wherein late Sunil Kumar was described as the father of Sachin by the grandmother. It was after the death of Sachin that sometime in the year 1991 Naresh Kumar another son of the plaintiff-appellant got his name entered in the revenue record over the plot in question as the father of Sachin. The trial court has found that there was no basis for such an entry being made in the revenue record which otherwise was on the basis of the registered sale deed dated 14.6.1989 where late Sunil Kumar was described as the father of Sachin which sale deed was the primary document giving title to Sachin over the plot in question. The first appellate court has disagreed with the trial court. It has ignored the sale deed and the description of parentage of Sachin given in the sale deed. It has recorded that since after the death of Sachin, Naresh Kumar has been recorded in the revenue record as the father of Sachin, therefore, Naresh Kumar would be the father of Sachin. This finding recorded by the first appellate court is not based on any evidence inasmuch as the finding of the trial court could only be set aside by the first appellate court if it had found the name of Naresh Kumar as father of Sachin in the revenue record was on the basis of some order or adjudication done by the revenue authorities. Manipulation of name in the revenue record even otherwise does not give any right, title or interest to a person on the basis of such a revenue entry not backed by any adjudication or order of the competent authority. Therefore, the finding of the first appellate court appears to suffer from illegality and cannot be upheld.
7. Further, it will be seen that the first appellate court has considered the submission of the plaintiff-appellant regarding his right, title and interest over the property in question by virtue of Section 171 of the U.P.Z.A. and L.R. Act but had not adjudicated such plea raised by the plaintiff-appellant and after mentioning the same has ignored it. According to Sri Garg, late Sunil Kumar was the father of Sachin and had pre-deceased Sachin. The plaintiff-appellant is the grandfather and the mother of Sachin namely Smt. Rajni after the death of Sunil Kumar had abandoned Sachin to Sachin's grandmother and left the family. After 1986, she did not come back to the family or even to enquire about Sachin and hence it was a clear case of surrender/abandonment of rights by Smt. Rajni who even otherwise has not come forward in spite of pendency of the suit since the year 2004. Therefore, it appears that after 1986 up to date, Smt. Rajni is not to be found nor has she come forward. If this be the circumstance, Sunil Kumar having pre-deceased Sachin and Smt. Rajni is the mother who has absconded, abandoned and surrendered her rights in the property in question, the property of Sachin would go by the order of succession provided under Section 171 of U.P.Z.A. and L.R. Act read with Section 172 of the Act. Section 171(g) clearly provides father of the father, i.e., the grandfather. Section 171(g) is quoted hereunder:
171. General order of succession.--(1) Subject to the provisions of Section 169, when a bhumidhar or asami, being male dies, his interest in his holding shall devolve upon his heirs being the relatives specified in Sub-section (2) in accordance with the following principles, namely....
(g) father's mother and father's father.
The plaintiff is grandfather of Sachin and, therefore, he had right over the property of Sachin by succession under Section 171(g) of the U.P.Z.A. and L.R. Act.
8. Under Section 172 of the Act, succession in case of a woman holding an interest as a widow, mother, daughter, etc. is provided. Smt. Rajni could inherit the property as mother of Sachin. But the record indicates that she has absconded and is untraceable. Once the successor under Section 172 of the Act has absconded or surrendered her rights by absconding, the line of succession under Section 171 would open since those mentioned therein are in the General Order of Succession.
9. Therefore, the finding of the first appellate court that the suit is barred by Order VII, Rule 11, C.P.C. cannot be upheld and is accordingly set aside. Insofar as impleadment of Naresh Kumar in the suit is concerned, the submission is that he was necessary party being vendor of the sale deed dated 4.2.2004. It has been informed at the Bar that the impleadment application for Naresh Kumar was rejected by the Court. In view of the finding of fact recorded by the trial court, he has no right, title or interest in the property of Sachin and hence he could not alienate the share of Sachin. The vendees have contested the suit as defendants. Therefore, the submission of learned Counsel for the respondent is not correct.
10. The substantial questions of law framed in the memorandum of appeal are answered accordingly. The impugned judgment of the first appellate court is accordingly set aside. The judgment and decree of the trial court are affirmed. The second appeal stands allowed.
No order is passed as to costs.