Sanjay Misra, J. - (1.) THESE are two connected second appeals which have been heard today and are being decided together finally today itself.
(2.) THESE two second appeals have been filed against the judgment and decree dated 15.12.2007 passed by the Additional Civil Judge (Junior Division) Court No. 3, Pilibhit in Original Suit No. 45 of 1985 filed by Kunwar Vishwanath (now deceased) against Laxman Singh (now deceased) and others and the judgment and decree dated 1.12.2008 passed by the Additional District Judge/Special Judge (SC/ST Act) (Atrocities Prevention) Act, Pilibhit in Civil Appeal No. 10/2008 filed by Laxman Singh (now deceased) and others v. Kunwar Vishwanath Chandra (now deceased) and others. Heard Dr. R.G. Padia learned Senior Counsel assisted by Sri Prakash Padia learned Counsel for the defendant-appellant and Sri Ravi Kant learned senior Counsel assisted by Sri Anupam Kulshrestha who have put in appearance on behalf of plaintiff-respondent No. 1/1 and 1/2. Respondent No. 2 is the Union of India, Ministry of Law and Central Affairs, Gov ernment of India through its Secretary. Re spondents No. 3/1 to 3/5 in Appeal No. 117 of 2009 are appellants of Appeal No. 116 of 2009 are the heirs and legal represen tatives of deceased Laxman Singh who was the retail outlet dealer of the defendant-appellant Bharat Petroleum Corporation Ltd. Mumbai. The dispute between the parties in the suit was between plaintiff-respondent No. 1/1 and 1/2 and the Bharat Petroleum Corporation Ltd., Mumbai as also the retail outlet dealer of Bharat Petro leum Corporation Ltd., Mumbai. Dr. Padia learned senior Counsel for the defendant-appellant has submitted that the judgments of the Courts below re quire to be set aside primarily for the rea son that they are vitiated on account of set tled law mat a contract being void ab initio under section 23 of the Contract Act could not form the basis for the plaintiff-respondent 1/1 and 1/2 to claim that they could evict the defendant-appellant from the land in question by claiming title there upon, particularly when under the U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956 (hereinafter re ferred to as the 'Act of 1956') a notification under section 8 had been issued on 1.7.1961 whereby the right and title of the and in question vested in the State of U.P. and hence the estoppel under section 116 of the Evidence Act could not operate against the defendant-appellant who had in the writ ten statement categorically taken the plea regarding the notification dated 1.7.1961. Secondly, he has submitted that the boundaries of the land as given in the plaint did not identify the land in question since they differed from the sale deed ob- tained by the predecessor-in-interest of plaintiff-respondent No. 1/1 and 1/2 and hence also when the land was not identifi able, the defendant-appellant could not be ejected from the same. The third submis sion is that there can be no estoppel against the statute.
(3.) ACCORDING to Dr. Padia a rent deed was executed between Late Sri Harish Chandra and Burmah-Shell, the predeces sor-in-interest of the defendant-appellant, on 7.5.1962 for a rent of Rs. 50/- p.m. for a period of 10 years for setting up a petro leum retail outlet. He submits that the de fendant-appellant, became successor-in-interest of Burmah-Shell by Act No. 2 of 1976 and Burmah-Shell paid the rent up to 1972 and although no fresh agreement was entered after expiry of period of 10 years, Burmah-Shell continued to pay the rent up to 31.3.1975 whereafter, the suit was filed in the year 1985 after Sri Harish Chandra had died on 1.1.1985. He states that the plaintiff-respondents had abandoned their claim of rent prior to 1982 by saying that they have only claimed rent for the past three years w.e.f. the date of filing of the suit in 1985. In support of his first argument Dr. Padia submits that the Trial Court Ille gally found the land in question was not an agricultural land and it did not vest in the State of U.P. by the notification dated 1.7.1961, He submits that the Lower Appel late Court has recorded that such finding of the Trial Court is erroneous and has held that the land is agricultural land, but has confirmed the finding of the Trial Court on the question that the land in question did not vest in the State of U.P. He states that admittedly the State of U.P. has not been made a party in the suit and the plaintiff has not made any averments with respect to the vesting of right, title and interest in the land in question upon State of U.P. and therefore, the suit ought to have been thrown out in the very first instance in view of the pleading set up by the defendant-appellant regarding extinguishment of right of the plaintiff-respondents over the property in question by virtue of the notification under section 8 of the 1956 Act and hence, the Courts below have erred in shifting the burden of proof/onus to prove the averments made in the written state ment upon the defendant-appellant whereas when there was a denial of title of the plaintiff-respondent, the onus in law shifted upon the plaintiff-respondent to prove his title.;