Section 49 of the UP Consolidation of Land Holdings Act and Section 331 of the UP Zamindari Abolition and Land Reforms Act, - when sonship was challenged , a civil suit for declaration of his status and cancellation of Revenue records from the date of Knowledge is maintainable and is not barred by limitation - Apex court held that The appellant has contended that he had no idea about the Consolidation order and was made aware of it only when he asked for his
half share of crop which the defendants refused to him, and that he was made to sign an agreement in which he signed over his rights to the property and that he has been taken advantage off due to his illiteracy. We find all this extremely murky and it was incumbent upon the Consolidation Officer to properly enquire into the ownership of the land before recording the defendant’s name in the revenue records. We further hold that the appellant - Amar Nath is entitled to be recorded in the revenue records by the competent authorities as half share owner of the land in dispute, as he has a right to half the share in the property and
crops, as it being the ancestral property of his father – Vaij Nath. It has been proved by examining the evidence on record, such as the election identity card, that Amar Nath is indeed the s/o Vaij Nath thereby it has demolished the contention of the defendants that the appellant is not the s/o Vaij Nath.=
a. Whether the High Court was correct in deciding the appeal
without formulating substantial questions of law and whether the
matter must be remitted back to the High Court?
We do not think it necessary to remit the matter back to the High Court
for fresh consideration. We feel it is sufficient to set aside the impugned
judgment and uphold the well-reasoned judgment of the first appellate court
where it was held that the very fact that the trial court held that it was
proved that Amar Nath was s/o Vaij Nath based on the evidence on record,
then automatically the court should have given half the portion of the
disputed land to the appellant along with defendant no.1, Kewla Devi.
Instead, the trial court as well as the Consolidation Officer have passed
judgments that are bad in law as they have failed to see that the right of
the appellant cannot simply be extinguished because of the defendants’ plea
that he has entered into a compromise. The defendants have taken undue
advantage of the appellant’s illiteracy and the Consolidation Officer has
abdicated his role by allowing the objection of the appellant to be
withdrawn and by not examining whether or not the appellant was indeed the
S/o Vaij Nath who was the S/o Gaya. The order of the Consolidation Officer
is thus bad in law and it has resulted in a grave miscarriage of justice.
We think it fit to restore the judgment and decree passed by the first
appellate court wherein the court declared that the appellant, Amar Nath is
S/o Vaij Nath who was son of Gaya thereby holding that the order passed by
the Consolidation Officer is void and illegal and the trial court was wrong
in not quashing the order of the Consolidation Officer and that nowhere in
the revenue record was his name recorded and fraud was committed against
him as defendant no.1, Kewla Devi has got her name recorded in each and
every revenue record. The judgment of the first appellate court is legal
and valid as it is fair and keeping with the principles of justice. The
trial court in its answer to issue nos. 1 and 10 has rightly held that Amar
Nath is S/o Vaij Nath who was undisputedly the son of Gaya and if that fact
was proved, then we see no reason why it was not directed for the
appellant’s name to be recorded in the revenue records. The right of the
appellant over the suit schedule property cannot be extinguished simply
because objection was withdrawn, over which there is a cloud of doubt
anyway and also, the appellant has pleaded that he had no idea about the
order of the Consolidation Officer in the first place. We find it highly
likely that fraud was committed on him by the defendants as well as the
Consolidation Officer by not recording his name in the revenue records as
the defendants have taken undue advantage of his illiteracy so that the
whole property goes to the defendants.
b. Whether the suit of the appellant was barred by Section 49 of
the UP Consolidation of Land Holdings Act and Section 331 of the
UP Zamindari Abolition and Land Reforms Act?
10. Answer to point no.2:
The question whether the original suit of the appellant was barred under
Section 49 of the UP Consolidation of Land Holdings Act and Section 331 of
the UP Zamindari Abolition and Land Reforms Act, we answer in the negative.
The suit was not barred under the aforesaid provisions as the UP Zamindari
Abolition and Land Reforms Act has no jurisdiction to deal with the subject
matter. On the issue of Section 49 of the UP Consolidation of Land Holdings
Act, we hold that the present case is not barred under this section as it
is a suit for possession of the suit schedule property based on title,
which is not within the jurisdiction of the authorities under the aforesaid
Act. In the case of Suba Singh v. Mahendra Singh & Ors.[5], it was observed
by this Court that Section 49 does not bar jurisdiction of civil courts in
matters of title to the land stating that -
“9. …The result is that the plea of bar of the civil courts’
jurisdiction to investigate and adjudicate upon the title to
the land or the sonship of the plaintiff has no substance….”
Therefore, since the present case too involves a question of ‘sonship’ of
the plaintiff who is the appellant herein, there is no bar to the
jurisdiction of civil courts under Section 49 of the aforesaid Act, in
deciding the question of the appellant’s right to the land he has inherited
from his father.
c. Whether the order passed by the Consolidation Officer dated
14.02.1970 must be declared illegal and void?
d. What order/decree to be passed?
11. Answer to point nos.3 & 4:
The order of the Consolidation Officer dated 14.2.1970 was obtained on
the basis of fraud by the defendants. We feel that the Consolidation
Officer has also committed fraud on the appellant, by accepting withdrawal
of his objection and not going into the issue of whether he is the s/o Vaij
Nath or not, and therefore whether he is the rightful heir, with a right in
half-share of the disputed property. The Consolidation Officer has not
discharged his duties properly and keeping with law has not given details
of the objection or why the objection was not pressed by the appellant in
his order. He has permitted a gross miscarriage of justice to continue by
recording of the name of defendant no.1 as the only rightful heir to the
land in dispute. In the case of S. Partap Singh v. State of Punjab[6],
Ayyangar J. in his portion of the judgment at para 6 has quoted Lord
Denning (in the case Lazarus Estates Ltd. v. Beasley 1956 1 All ER 341 at
p.345) stating:
“No judgment of a Court, no order of a Minister can be
allowed to stand if it has been obtained by fraud.”
The Consolidation officer without examining the alleged statement made on
behalf of the appellant and verifying the correctness of the same has
accepted the withdrawal of his objection and has passed the order without
examining the rights of the parties with reference to the documents in
relation to the suit schedule property.
12. We therefore hereby declare the order of the Consolidation Officer to
be null and void on grounds of patent illegality and acting with legal
malice. The appellant has contended that he had no idea about the
Consolidation order and was made aware of it only when he asked for his
half share of crop which the defendants refused to him, and that he was
made to sign an agreement in which he signed over his rights to the
property and that he has been taken advantage off due to his illiteracy.
We find all this extremely murky and it was incumbent upon the
Consolidation Officer to properly enquire into the ownership of the land
before recording the defendant’s name in the revenue records. We further
hold that the appellant - Amar Nath is entitled to be recorded in the
revenue records by the competent authorities as half share owner of the
land in dispute, as he has a right to half the share in the property and
crops, as it being the ancestral property of his father – Vaij Nath. It
has been proved by examining the evidence on record, such as the election
identity card, that Amar Nath is indeed the s/o Vaij Nath thereby it has
demolished the contention of the defendants that the appellant is not the
s/o Vaij Nath.
13. In view of the foregoing reasons, we hold that the appellant is the
half share owner of the land in question and further uphold his right to
the ancestral property. We direct the competent authority to record the
name of the appellant – Amar Nath in the revenue records as half share
owner of the land in dispute. Thus, we hereby set aside the impugned
judgment and decree of the High Court and uphold the judgment of the first
appellate court. The appeal is allowed in the aforesaid terms with no
order as to costs.
2014 ( April.Part ) judis.nic.in/supremecourt/filename=41447
GYAN SUDHA MISRA, V. GOPALA GOWDA
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1918 OF 2007
AMAR NATH ……… APPELLANT
Vs.
KEWLA DEVI & ANR. ………RESPONDENTS
J U D G M E N T
V.GOPALA GOWDA J.
This appeal is directed against the impugned judgment and order dated
08.04.2005 of the High Court of Uttar Pradesh at Allahabad wherein the High
Court allowed the appeal filed by the respondents and set aside the order
passed by the Additional District Judge and upheld the findings of the
trial court. The appellant has appealed against the impugned judgment
urging various legal and factual contentions, the main contention being
that the High Court has allowed the appeal without framing substantial
question/questions of law although it is mandatory as per Section 100 of
the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’).
2. The relevant facts of the case in brief are stated hereunder:
The appellant, Amar Nath is the plaintiff whose father, Vaij Nath is
the brother of Ram Nath and Ram Dev. The respondent no.1 - the defendant is
the only daughter of Ram Nath. Ram Dev, the third brother died without
issue. The appellant, Amar Nath filed a suit for possession of the suit
schedule property and prayed for quashing of order dated 14.02.1970 passed
by the Consolidation Officer during the Consolidation proceedings on the
ground that defendant no.1 in connivance with defendant no.2, taking
benefit of the appellant’s mental weakness and illiteracy have recorded
their name over the land in dispute, and the Consolidation Officer rejected
the appellant’s objection holding that it was not pressed and directed that
existing entries shall continue. He prayed for quashing the order of the
Consolidation Officer on the ground that fraud was played on him and he had
no knowledge of the order. The trial court on the basis of the pleadings
has framed 12 issues and after trial, it has decided issue nos. 1 and 12
against the appellant, holding that the appellant is not co-bhumidhar over
the land in dispute and further held that the suit is barred by limitation.
The trial court also held that the suit is barred by Section 331 of the UP
Zamindari Abolition and Land Reforms Act, 1950 and he should instead file a
suit before the Revenue Court for his bhumidhar right over the disputed
land and for the relief of possession also of the suit schedule property.
It was further held that the suit is barred by Section 49 of the UP
Consolidation of Holdings Act, 1953 as well as by limitation. The trial
court also held that the suit is barred by the principle of estoppel as
well as under Sections 34 and 41 of the Specific Relief Act as the
defendant has got exclusive possession over the land in dispute. Although
the trial court held that the appellant had cause of action to file the
suit, it went on to hold that as the appellant did not press the objection
filed by him in the consolidation proceedings and he entered into a
compromise with the defendant, handing over his share in favour of the
defendant which is not based on fraud, coercion or undue pressure and no
allegation of the same has been mentioned in the suit, and no evidence
either was placed on record. Hence, the trial court held that the appellant
is not entitled for the relief as prayed for in the suit, and thereby
dismissed the suit with costs. Importantly, even though the suit was
dismissed the trial court demolished the contention of the defendants that
Amar Nath, the appellant was not Vaij Nath’s son. The trial court held that
Amar Nath was indeed the son of Vaij Nath, relying on the deposition of
witnesses examined on behalf of the appellant and on documentary evidence
produced on his behalf i.e. the copy of electoral register of 1991 and
ration card in which it is recorded that he is Amar Nath s/o Vaij Nath. The
trial court took into account the admission of DW-1, Shyama Chand Tiwari,
the husband of defendant no.1 who has recorded his statement on oath in the
court wherein he has himself stated that ‘Amar Nath s/o Vaij Nath had
himself withdrawn his case from the consolidation proceedings’.
3. The appellant appealed against the judgment and decree of the trial
court by filing a civil appeal under Section 96 of the CPC in the first
appellate court, through the Court of the Additional District Judge. The
first appellate court held vide judgment and decree dated 01.02.2005 that
the appellant had only to prove that he is son of Vaij Nath who was the son
of Gaya and he is their legal heir and the trial court, instead of
examining important and reliable evidence of the witnesses has rather
examined different interested persons, ignoring the records available
before it which constituted complete evidence in favour of the appellant.
If evidence were that Amar Nath was son of Vaij Nath then automatically the
court should have given half portion of the land in dispute to the
appellant along with defendant Kewla Devi. The appeal was allowed as the
conclusion arrived at by the trial court were not supported by the
pleadings and evidence available on record.
4. The respondents-defendants filed the second appeal before the High Court
against the judgment and decree of the first appellate court. It was
contended by the respondents that the disputed land was inherited by
respondent No.1 from her father during consolidation proceedings in the
year 1969-1970 and some opponent of theirs set up the appellant to file an
objection which was later on withdrawn by him by moving an application
dated 14.02.1970. It was alleged that the appellant does not belong to the
family of the respondents and he is not the heir of Gaya. The appellant
alleged that fraud was committed on him and the order dated 14.02.1970
passed by the Consolidation Officer was fraudulent and liable to be set
aside. He pleaded that he was defrauded by the respondents and they made
him to believe that they are managing the disputed land. The High Court
held that as per Order 6 Rule 4 of the CPC, when fraud, breach of trust
etc. are alleged, particulars of the same must be stated in the pleading
and in the present case, no particulars of fraud were made as part of the
pleading and in the absence of such pleading no evidence can be looked into
and a finding that the order has been fraudulently procured cannot be
given. As a result, the second appeal of the respondents was allowed and
the High Court set aside the judgment and decree of the first appellate
court. Hence, this civil appeal.
5. The learned counsel for the appellant contends that the appellant
pleaded about the fraud played and further clarified it in the evidence led
by him and that he was assured by the husband of respondent No.1 that his
share will be recorded in his name and that he committed fraud upon him. He
further stated that the appellant had no knowledge about the consolidation
order dated 14.02.1970 and that he had not filed any application in the
Consolidation Court. He contended that the suit was not barred under
Section 49 of the UP Consolidation of Land Holdings Act and also Section
331 of the UP Zamindari Abolition and Land Reforms Act, 1950 as by filing
the present suit, the appellant prayed for quashing of the order dated
14.02.1970 which, he contended, was obtained by fraud and the power to do
this lies only with the civil court. Further, the trial court has committed
a grave error by not decreeing the suit by giving half the portion of the
disputed property to the appellant when the trial court itself had held in
para 18 of its judgment that the appellant was the son of Vaij Nath and the
legal heir of Gaya. The appellant then contended that the High Court has
committed a serious error of procedure by allowing the second appeal
without framing any substantial question of law as per requirement of
Section 100 of the CPC.
6. The learned counsel for the respondent has submitted that the High Court
has dealt with the appeal without framing substantial question of law which
is mandated as per Section 100 of the CPC. Further, the High Court has not
gone into the question whether the suit was barred by Section 49 of the UP
Consolidation of Land Holdings Act and Section 331 of the UP Zamindari
Abolition and Land Reforms Act. The learned counsel relied on the case of
Madan Mohan Mishra v. Chandrika Pandey (Dead) by LRs[1] to contend that
this Court has clearly held that the jurisdiction of a civil court is
barred in respect of agricultural land and in Madan Mohan Singh & Ors. v.
Rajni Kant & Anr.[2], it was held that the statutory authorities under the
Consolidation of Holdings Act enjoy the powers of a civil court as well as
a revenue court as all matters pending before the civil court abate once
notification of initiation of proceedings is issued under the Act. He
stated that the authorities under the Consolidation Act have been conferred
the powers of a civil court to adjudicate upon any matter of title or right
to inherit property. Therefore, it was submitted that the matter be
remitted to the High Court for formulating substantial question of law and
then decide the second appeal on its merits or this Court may be pleased to
consider the effect of Section 49 of the UP Consolidation of Land Holdings
Act and Section 331 of the UP Zamindari Abolition and Land Reforms Act on
merits.
7. We have heard the learned counsel for both the parties. The following
questions arise before us:
a. Whether the High Court was correct in deciding the appeal
without formulating substantial questions of law and whether the
matter must be remitted back to the High Court?
b. Whether the suit of the appellant was barred by Section 49 of
the UP Consolidation of Land Holdings Act and Section 331 of the
UP Zamindari Abolition and Land Reforms Act?
c. Whether the order passed by the Consolidation Officer dated
14.02.1970 must be declared illegal and void?
d. What order/decree to be passed?
We will deal with each of these issues separately along with supplementary
issues that would arise out of them.
8. Answer to point no.1:
In our considered viewpoint, the High Court has committed a grave
error in procedure by not framing substantial question of law and setting
aside the judgment and decree of the first appellate court. The finding of
fact recorded by the first appellate court on the contentious issues was
based on re-appreciation of the pleadings and evidence on record and
careful perusal of the law and the High Court has failed to discharge its
duty by not framing the mandatory substantial questions of law in order to
examine the correctness of the judgment and decree passed by the first
appellate court. In the interest of justice, the judgment and decree of the
High Court has to be set aside as it has omitted to frame substantial
questions of law and answer the same and thus has failed to discharge its
duty under S.100 of the CPC. The learned counsel for the respondent has
relied on the cases of Surat Singh v. Hukam Singh Negi[3] and Hardeep Kaur
v. Malkiat Kaur[4] in order to establish that the High Court is bound to
formulate substantial questions of law at the initial stage itself if it
has to satisfy itself that the matter deserves to be admitted and the
second appeal to be heard and decided on such questions and further even at
the time of hearing of the second appeal, it is open to the High Court to
reformulate substantial questions of law. In the judgments relied upon, the
impugned judgments of the High Court were set aside and the matter was
remitted to the High Court for consideration afresh after formulation of
the substantial questions of law. The learned counsel for the respondents
has prayed for the same.
9. We do not think it necessary to remit the matter back to the High Court
for fresh consideration. We feel it is sufficient to set aside the impugned
judgment and uphold the well-reasoned judgment of the first appellate court
where it was held that the very fact that the trial court held that it was
proved that Amar Nath was s/o Vaij Nath based on the evidence on record,
then automatically the court should have given half the portion of the
disputed land to the appellant along with defendant no.1, Kewla Devi.
Instead, the trial court as well as the Consolidation Officer have passed
judgments that are bad in law as they have failed to see that the right of
the appellant cannot simply be extinguished because of the defendants’ plea
that he has entered into a compromise. The defendants have taken undue
advantage of the appellant’s illiteracy and the Consolidation Officer has
abdicated his role by allowing the objection of the appellant to be
withdrawn and by not examining whether or not the appellant was indeed the
S/o Vaij Nath who was the S/o Gaya. The order of the Consolidation Officer
is thus bad in law and it has resulted in a grave miscarriage of justice.
We think it fit to restore the judgment and decree passed by the first
appellate court wherein the court declared that the appellant, Amar Nath is
S/o Vaij Nath who was son of Gaya thereby holding that the order passed by
the Consolidation Officer is void and illegal and the trial court was wrong
in not quashing the order of the Consolidation Officer and that nowhere in
the revenue record was his name recorded and fraud was committed against
him as defendant no.1, Kewla Devi has got her name recorded in each and
every revenue record. The judgment of the first appellate court is legal
and valid as it is fair and keeping with the principles of justice. The
trial court in its answer to issue nos. 1 and 10 has rightly held that Amar
Nath is S/o Vaij Nath who was undisputedly the son of Gaya and if that fact
was proved, then we see no reason why it was not directed for the
appellant’s name to be recorded in the revenue records. The right of the
appellant over the suit schedule property cannot be extinguished simply
because objection was withdrawn, over which there is a cloud of doubt
anyway and also, the appellant has pleaded that he had no idea about the
order of the Consolidation Officer in the first place. We find it highly
likely that fraud was committed on him by the defendants as well as the
Consolidation Officer by not recording his name in the revenue records as
the defendants have taken undue advantage of his illiteracy so that the
whole property goes to the defendants.
10. Answer to point no.2:
The question whether the original suit of the appellant was barred under
Section 49 of the UP Consolidation of Land Holdings Act and Section 331 of
the UP Zamindari Abolition and Land Reforms Act, we answer in the negative.
The suit was not barred under the aforesaid provisions as the UP Zamindari
Abolition and Land Reforms Act has no jurisdiction to deal with the subject
matter. On the issue of Section 49 of the UP Consolidation of Land Holdings
Act, we hold that the present case is not barred under this section as it
is a suit for possession of the suit schedule property based on title,
which is not within the jurisdiction of the authorities under the aforesaid
Act. In the case of Suba Singh v. Mahendra Singh & Ors.[5], it was observed
by this Court that Section 49 does not bar jurisdiction of civil courts in
matters of title to the land stating that -
“9. …The result is that the plea of bar of the civil courts’
jurisdiction to investigate and adjudicate upon the title to
the land or the sonship of the plaintiff has no substance….”
Therefore, since the present case too involves a question of ‘sonship’ of
the plaintiff who is the appellant herein, there is no bar to the
jurisdiction of civil courts under Section 49 of the aforesaid Act, in
deciding the question of the appellant’s right to the land he has inherited
from his father.
11. Answer to point nos.3 & 4:
The order of the Consolidation Officer dated 14.2.1970 was obtained on
the basis of fraud by the defendants. We feel that the Consolidation
Officer has also committed fraud on the appellant, by accepting withdrawal
of his objection and not going into the issue of whether he is the s/o Vaij
Nath or not, and therefore whether he is the rightful heir, with a right in
half-share of the disputed property. The Consolidation Officer has not
discharged his duties properly and keeping with law has not given details
of the objection or why the objection was not pressed by the appellant in
his order. He has permitted a gross miscarriage of justice to continue by
recording of the name of defendant no.1 as the only rightful heir to the
land in dispute. In the case of S. Partap Singh v. State of Punjab[6],
Ayyangar J. in his portion of the judgment at para 6 has quoted Lord
Denning (in the case Lazarus Estates Ltd. v. Beasley 1956 1 All ER 341 at
p.345) stating:
“No judgment of a Court, no order of a Minister can be
allowed to stand if it has been obtained by fraud.”
The Consolidation officer without examining the alleged statement made on
behalf of the appellant and verifying the correctness of the same has
accepted the withdrawal of his objection and has passed the order without
examining the rights of the parties with reference to the documents in
relation to the suit schedule property.
12. We therefore hereby declare the order of the Consolidation Officer to
be null and void on grounds of patent illegality and acting with legal
malice. The appellant has contended that he had no idea about the
Consolidation order and was made aware of it only when he asked for his
half share of crop which the defendants refused to him, and that he was
made to sign an agreement in which he signed over his rights to the
property and that he has been taken advantage off due to his illiteracy.
We find all this extremely murky and it was incumbent upon the
Consolidation Officer to properly enquire into the ownership of the land
before recording the defendant’s name in the revenue records. We further
hold that the appellant - Amar Nath is entitled to be recorded in the
revenue records by the competent authorities as half share owner of the
land in dispute, as he has a right to half the share in the property and
crops, as it being the ancestral property of his father – Vaij Nath. It
has been proved by examining the evidence on record, such as the election
identity card, that Amar Nath is indeed the s/o Vaij Nath thereby it has
demolished the contention of the defendants that the appellant is not the
s/o Vaij Nath.
13. In view of the foregoing reasons, we hold that the appellant is the
half share owner of the land in question and further uphold his right to
the ancestral property. We direct the competent authority to record the
name of the appellant – Amar Nath in the revenue records as half share
owner of the land in dispute. Thus, we hereby set aside the impugned
judgment and decree of the High Court and uphold the judgment of the first
appellate court. The appeal is allowed in the aforesaid terms with no
order as to costs.
………………………………………………………………………J.
[GYAN SUDHA MISRA]
………………………………………………………………………J.
[V. GOPALA GOWDA]
New Delhi, April 22, 2014
-----------------------
[1] (2009) 3 SCC 720
[2] (2010) 9 SCC 209
[3] (2010) 15 SCC 525
[4] (2012) 4 SCC 344
[5] (1974) 1 SCC 418
[6] AIR 1964 SC 72
half share of crop which the defendants refused to him, and that he was made to sign an agreement in which he signed over his rights to the property and that he has been taken advantage off due to his illiteracy. We find all this extremely murky and it was incumbent upon the Consolidation Officer to properly enquire into the ownership of the land before recording the defendant’s name in the revenue records. We further hold that the appellant - Amar Nath is entitled to be recorded in the revenue records by the competent authorities as half share owner of the land in dispute, as he has a right to half the share in the property and
crops, as it being the ancestral property of his father – Vaij Nath. It has been proved by examining the evidence on record, such as the election identity card, that Amar Nath is indeed the s/o Vaij Nath thereby it has demolished the contention of the defendants that the appellant is not the s/o Vaij Nath.=
a. Whether the High Court was correct in deciding the appeal
without formulating substantial questions of law and whether the
matter must be remitted back to the High Court?
We do not think it necessary to remit the matter back to the High Court
for fresh consideration. We feel it is sufficient to set aside the impugned
judgment and uphold the well-reasoned judgment of the first appellate court
where it was held that the very fact that the trial court held that it was
proved that Amar Nath was s/o Vaij Nath based on the evidence on record,
then automatically the court should have given half the portion of the
disputed land to the appellant along with defendant no.1, Kewla Devi.
Instead, the trial court as well as the Consolidation Officer have passed
judgments that are bad in law as they have failed to see that the right of
the appellant cannot simply be extinguished because of the defendants’ plea
that he has entered into a compromise. The defendants have taken undue
advantage of the appellant’s illiteracy and the Consolidation Officer has
abdicated his role by allowing the objection of the appellant to be
withdrawn and by not examining whether or not the appellant was indeed the
S/o Vaij Nath who was the S/o Gaya. The order of the Consolidation Officer
is thus bad in law and it has resulted in a grave miscarriage of justice.
We think it fit to restore the judgment and decree passed by the first
appellate court wherein the court declared that the appellant, Amar Nath is
S/o Vaij Nath who was son of Gaya thereby holding that the order passed by
the Consolidation Officer is void and illegal and the trial court was wrong
in not quashing the order of the Consolidation Officer and that nowhere in
the revenue record was his name recorded and fraud was committed against
him as defendant no.1, Kewla Devi has got her name recorded in each and
every revenue record. The judgment of the first appellate court is legal
and valid as it is fair and keeping with the principles of justice. The
trial court in its answer to issue nos. 1 and 10 has rightly held that Amar
Nath is S/o Vaij Nath who was undisputedly the son of Gaya and if that fact
was proved, then we see no reason why it was not directed for the
appellant’s name to be recorded in the revenue records. The right of the
appellant over the suit schedule property cannot be extinguished simply
because objection was withdrawn, over which there is a cloud of doubt
anyway and also, the appellant has pleaded that he had no idea about the
order of the Consolidation Officer in the first place. We find it highly
likely that fraud was committed on him by the defendants as well as the
Consolidation Officer by not recording his name in the revenue records as
the defendants have taken undue advantage of his illiteracy so that the
whole property goes to the defendants.
b. Whether the suit of the appellant was barred by Section 49 of
the UP Consolidation of Land Holdings Act and Section 331 of the
UP Zamindari Abolition and Land Reforms Act?
10. Answer to point no.2:
The question whether the original suit of the appellant was barred under
Section 49 of the UP Consolidation of Land Holdings Act and Section 331 of
the UP Zamindari Abolition and Land Reforms Act, we answer in the negative.
The suit was not barred under the aforesaid provisions as the UP Zamindari
Abolition and Land Reforms Act has no jurisdiction to deal with the subject
matter. On the issue of Section 49 of the UP Consolidation of Land Holdings
Act, we hold that the present case is not barred under this section as it
is a suit for possession of the suit schedule property based on title,
which is not within the jurisdiction of the authorities under the aforesaid
Act. In the case of Suba Singh v. Mahendra Singh & Ors.[5], it was observed
by this Court that Section 49 does not bar jurisdiction of civil courts in
matters of title to the land stating that -
“9. …The result is that the plea of bar of the civil courts’
jurisdiction to investigate and adjudicate upon the title to
the land or the sonship of the plaintiff has no substance….”
Therefore, since the present case too involves a question of ‘sonship’ of
the plaintiff who is the appellant herein, there is no bar to the
jurisdiction of civil courts under Section 49 of the aforesaid Act, in
deciding the question of the appellant’s right to the land he has inherited
from his father.
c. Whether the order passed by the Consolidation Officer dated
14.02.1970 must be declared illegal and void?
d. What order/decree to be passed?
11. Answer to point nos.3 & 4:
The order of the Consolidation Officer dated 14.2.1970 was obtained on
the basis of fraud by the defendants. We feel that the Consolidation
Officer has also committed fraud on the appellant, by accepting withdrawal
of his objection and not going into the issue of whether he is the s/o Vaij
Nath or not, and therefore whether he is the rightful heir, with a right in
half-share of the disputed property. The Consolidation Officer has not
discharged his duties properly and keeping with law has not given details
of the objection or why the objection was not pressed by the appellant in
his order. He has permitted a gross miscarriage of justice to continue by
recording of the name of defendant no.1 as the only rightful heir to the
land in dispute. In the case of S. Partap Singh v. State of Punjab[6],
Ayyangar J. in his portion of the judgment at para 6 has quoted Lord
Denning (in the case Lazarus Estates Ltd. v. Beasley 1956 1 All ER 341 at
p.345) stating:
“No judgment of a Court, no order of a Minister can be
allowed to stand if it has been obtained by fraud.”
The Consolidation officer without examining the alleged statement made on
behalf of the appellant and verifying the correctness of the same has
accepted the withdrawal of his objection and has passed the order without
examining the rights of the parties with reference to the documents in
relation to the suit schedule property.
12. We therefore hereby declare the order of the Consolidation Officer to
be null and void on grounds of patent illegality and acting with legal
malice. The appellant has contended that he had no idea about the
Consolidation order and was made aware of it only when he asked for his
half share of crop which the defendants refused to him, and that he was
made to sign an agreement in which he signed over his rights to the
property and that he has been taken advantage off due to his illiteracy.
We find all this extremely murky and it was incumbent upon the
Consolidation Officer to properly enquire into the ownership of the land
before recording the defendant’s name in the revenue records. We further
hold that the appellant - Amar Nath is entitled to be recorded in the
revenue records by the competent authorities as half share owner of the
land in dispute, as he has a right to half the share in the property and
crops, as it being the ancestral property of his father – Vaij Nath. It
has been proved by examining the evidence on record, such as the election
identity card, that Amar Nath is indeed the s/o Vaij Nath thereby it has
demolished the contention of the defendants that the appellant is not the
s/o Vaij Nath.
13. In view of the foregoing reasons, we hold that the appellant is the
half share owner of the land in question and further uphold his right to
the ancestral property. We direct the competent authority to record the
name of the appellant – Amar Nath in the revenue records as half share
owner of the land in dispute. Thus, we hereby set aside the impugned
judgment and decree of the High Court and uphold the judgment of the first
appellate court. The appeal is allowed in the aforesaid terms with no
order as to costs.
2014 ( April.Part ) judis.nic.in/supremecourt/filename=41447
GYAN SUDHA MISRA, V. GOPALA GOWDA
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1918 OF 2007
AMAR NATH ……… APPELLANT
Vs.
KEWLA DEVI & ANR. ………RESPONDENTS
J U D G M E N T
V.GOPALA GOWDA J.
This appeal is directed against the impugned judgment and order dated
08.04.2005 of the High Court of Uttar Pradesh at Allahabad wherein the High
Court allowed the appeal filed by the respondents and set aside the order
passed by the Additional District Judge and upheld the findings of the
trial court. The appellant has appealed against the impugned judgment
urging various legal and factual contentions, the main contention being
that the High Court has allowed the appeal without framing substantial
question/questions of law although it is mandatory as per Section 100 of
the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’).
2. The relevant facts of the case in brief are stated hereunder:
The appellant, Amar Nath is the plaintiff whose father, Vaij Nath is
the brother of Ram Nath and Ram Dev. The respondent no.1 - the defendant is
the only daughter of Ram Nath. Ram Dev, the third brother died without
issue. The appellant, Amar Nath filed a suit for possession of the suit
schedule property and prayed for quashing of order dated 14.02.1970 passed
by the Consolidation Officer during the Consolidation proceedings on the
ground that defendant no.1 in connivance with defendant no.2, taking
benefit of the appellant’s mental weakness and illiteracy have recorded
their name over the land in dispute, and the Consolidation Officer rejected
the appellant’s objection holding that it was not pressed and directed that
existing entries shall continue. He prayed for quashing the order of the
Consolidation Officer on the ground that fraud was played on him and he had
no knowledge of the order. The trial court on the basis of the pleadings
has framed 12 issues and after trial, it has decided issue nos. 1 and 12
against the appellant, holding that the appellant is not co-bhumidhar over
the land in dispute and further held that the suit is barred by limitation.
The trial court also held that the suit is barred by Section 331 of the UP
Zamindari Abolition and Land Reforms Act, 1950 and he should instead file a
suit before the Revenue Court for his bhumidhar right over the disputed
land and for the relief of possession also of the suit schedule property.
It was further held that the suit is barred by Section 49 of the UP
Consolidation of Holdings Act, 1953 as well as by limitation. The trial
court also held that the suit is barred by the principle of estoppel as
well as under Sections 34 and 41 of the Specific Relief Act as the
defendant has got exclusive possession over the land in dispute. Although
the trial court held that the appellant had cause of action to file the
suit, it went on to hold that as the appellant did not press the objection
filed by him in the consolidation proceedings and he entered into a
compromise with the defendant, handing over his share in favour of the
defendant which is not based on fraud, coercion or undue pressure and no
allegation of the same has been mentioned in the suit, and no evidence
either was placed on record. Hence, the trial court held that the appellant
is not entitled for the relief as prayed for in the suit, and thereby
dismissed the suit with costs. Importantly, even though the suit was
dismissed the trial court demolished the contention of the defendants that
Amar Nath, the appellant was not Vaij Nath’s son. The trial court held that
Amar Nath was indeed the son of Vaij Nath, relying on the deposition of
witnesses examined on behalf of the appellant and on documentary evidence
produced on his behalf i.e. the copy of electoral register of 1991 and
ration card in which it is recorded that he is Amar Nath s/o Vaij Nath. The
trial court took into account the admission of DW-1, Shyama Chand Tiwari,
the husband of defendant no.1 who has recorded his statement on oath in the
court wherein he has himself stated that ‘Amar Nath s/o Vaij Nath had
himself withdrawn his case from the consolidation proceedings’.
3. The appellant appealed against the judgment and decree of the trial
court by filing a civil appeal under Section 96 of the CPC in the first
appellate court, through the Court of the Additional District Judge. The
first appellate court held vide judgment and decree dated 01.02.2005 that
the appellant had only to prove that he is son of Vaij Nath who was the son
of Gaya and he is their legal heir and the trial court, instead of
examining important and reliable evidence of the witnesses has rather
examined different interested persons, ignoring the records available
before it which constituted complete evidence in favour of the appellant.
If evidence were that Amar Nath was son of Vaij Nath then automatically the
court should have given half portion of the land in dispute to the
appellant along with defendant Kewla Devi. The appeal was allowed as the
conclusion arrived at by the trial court were not supported by the
pleadings and evidence available on record.
4. The respondents-defendants filed the second appeal before the High Court
against the judgment and decree of the first appellate court. It was
contended by the respondents that the disputed land was inherited by
respondent No.1 from her father during consolidation proceedings in the
year 1969-1970 and some opponent of theirs set up the appellant to file an
objection which was later on withdrawn by him by moving an application
dated 14.02.1970. It was alleged that the appellant does not belong to the
family of the respondents and he is not the heir of Gaya. The appellant
alleged that fraud was committed on him and the order dated 14.02.1970
passed by the Consolidation Officer was fraudulent and liable to be set
aside. He pleaded that he was defrauded by the respondents and they made
him to believe that they are managing the disputed land. The High Court
held that as per Order 6 Rule 4 of the CPC, when fraud, breach of trust
etc. are alleged, particulars of the same must be stated in the pleading
and in the present case, no particulars of fraud were made as part of the
pleading and in the absence of such pleading no evidence can be looked into
and a finding that the order has been fraudulently procured cannot be
given. As a result, the second appeal of the respondents was allowed and
the High Court set aside the judgment and decree of the first appellate
court. Hence, this civil appeal.
5. The learned counsel for the appellant contends that the appellant
pleaded about the fraud played and further clarified it in the evidence led
by him and that he was assured by the husband of respondent No.1 that his
share will be recorded in his name and that he committed fraud upon him. He
further stated that the appellant had no knowledge about the consolidation
order dated 14.02.1970 and that he had not filed any application in the
Consolidation Court. He contended that the suit was not barred under
Section 49 of the UP Consolidation of Land Holdings Act and also Section
331 of the UP Zamindari Abolition and Land Reforms Act, 1950 as by filing
the present suit, the appellant prayed for quashing of the order dated
14.02.1970 which, he contended, was obtained by fraud and the power to do
this lies only with the civil court. Further, the trial court has committed
a grave error by not decreeing the suit by giving half the portion of the
disputed property to the appellant when the trial court itself had held in
para 18 of its judgment that the appellant was the son of Vaij Nath and the
legal heir of Gaya. The appellant then contended that the High Court has
committed a serious error of procedure by allowing the second appeal
without framing any substantial question of law as per requirement of
Section 100 of the CPC.
6. The learned counsel for the respondent has submitted that the High Court
has dealt with the appeal without framing substantial question of law which
is mandated as per Section 100 of the CPC. Further, the High Court has not
gone into the question whether the suit was barred by Section 49 of the UP
Consolidation of Land Holdings Act and Section 331 of the UP Zamindari
Abolition and Land Reforms Act. The learned counsel relied on the case of
Madan Mohan Mishra v. Chandrika Pandey (Dead) by LRs[1] to contend that
this Court has clearly held that the jurisdiction of a civil court is
barred in respect of agricultural land and in Madan Mohan Singh & Ors. v.
Rajni Kant & Anr.[2], it was held that the statutory authorities under the
Consolidation of Holdings Act enjoy the powers of a civil court as well as
a revenue court as all matters pending before the civil court abate once
notification of initiation of proceedings is issued under the Act. He
stated that the authorities under the Consolidation Act have been conferred
the powers of a civil court to adjudicate upon any matter of title or right
to inherit property. Therefore, it was submitted that the matter be
remitted to the High Court for formulating substantial question of law and
then decide the second appeal on its merits or this Court may be pleased to
consider the effect of Section 49 of the UP Consolidation of Land Holdings
Act and Section 331 of the UP Zamindari Abolition and Land Reforms Act on
merits.
7. We have heard the learned counsel for both the parties. The following
questions arise before us:
a. Whether the High Court was correct in deciding the appeal
without formulating substantial questions of law and whether the
matter must be remitted back to the High Court?
b. Whether the suit of the appellant was barred by Section 49 of
the UP Consolidation of Land Holdings Act and Section 331 of the
UP Zamindari Abolition and Land Reforms Act?
c. Whether the order passed by the Consolidation Officer dated
14.02.1970 must be declared illegal and void?
d. What order/decree to be passed?
We will deal with each of these issues separately along with supplementary
issues that would arise out of them.
8. Answer to point no.1:
In our considered viewpoint, the High Court has committed a grave
error in procedure by not framing substantial question of law and setting
aside the judgment and decree of the first appellate court. The finding of
fact recorded by the first appellate court on the contentious issues was
based on re-appreciation of the pleadings and evidence on record and
careful perusal of the law and the High Court has failed to discharge its
duty by not framing the mandatory substantial questions of law in order to
examine the correctness of the judgment and decree passed by the first
appellate court. In the interest of justice, the judgment and decree of the
High Court has to be set aside as it has omitted to frame substantial
questions of law and answer the same and thus has failed to discharge its
duty under S.100 of the CPC. The learned counsel for the respondent has
relied on the cases of Surat Singh v. Hukam Singh Negi[3] and Hardeep Kaur
v. Malkiat Kaur[4] in order to establish that the High Court is bound to
formulate substantial questions of law at the initial stage itself if it
has to satisfy itself that the matter deserves to be admitted and the
second appeal to be heard and decided on such questions and further even at
the time of hearing of the second appeal, it is open to the High Court to
reformulate substantial questions of law. In the judgments relied upon, the
impugned judgments of the High Court were set aside and the matter was
remitted to the High Court for consideration afresh after formulation of
the substantial questions of law. The learned counsel for the respondents
has prayed for the same.
9. We do not think it necessary to remit the matter back to the High Court
for fresh consideration. We feel it is sufficient to set aside the impugned
judgment and uphold the well-reasoned judgment of the first appellate court
where it was held that the very fact that the trial court held that it was
proved that Amar Nath was s/o Vaij Nath based on the evidence on record,
then automatically the court should have given half the portion of the
disputed land to the appellant along with defendant no.1, Kewla Devi.
Instead, the trial court as well as the Consolidation Officer have passed
judgments that are bad in law as they have failed to see that the right of
the appellant cannot simply be extinguished because of the defendants’ plea
that he has entered into a compromise. The defendants have taken undue
advantage of the appellant’s illiteracy and the Consolidation Officer has
abdicated his role by allowing the objection of the appellant to be
withdrawn and by not examining whether or not the appellant was indeed the
S/o Vaij Nath who was the S/o Gaya. The order of the Consolidation Officer
is thus bad in law and it has resulted in a grave miscarriage of justice.
We think it fit to restore the judgment and decree passed by the first
appellate court wherein the court declared that the appellant, Amar Nath is
S/o Vaij Nath who was son of Gaya thereby holding that the order passed by
the Consolidation Officer is void and illegal and the trial court was wrong
in not quashing the order of the Consolidation Officer and that nowhere in
the revenue record was his name recorded and fraud was committed against
him as defendant no.1, Kewla Devi has got her name recorded in each and
every revenue record. The judgment of the first appellate court is legal
and valid as it is fair and keeping with the principles of justice. The
trial court in its answer to issue nos. 1 and 10 has rightly held that Amar
Nath is S/o Vaij Nath who was undisputedly the son of Gaya and if that fact
was proved, then we see no reason why it was not directed for the
appellant’s name to be recorded in the revenue records. The right of the
appellant over the suit schedule property cannot be extinguished simply
because objection was withdrawn, over which there is a cloud of doubt
anyway and also, the appellant has pleaded that he had no idea about the
order of the Consolidation Officer in the first place. We find it highly
likely that fraud was committed on him by the defendants as well as the
Consolidation Officer by not recording his name in the revenue records as
the defendants have taken undue advantage of his illiteracy so that the
whole property goes to the defendants.
10. Answer to point no.2:
The question whether the original suit of the appellant was barred under
Section 49 of the UP Consolidation of Land Holdings Act and Section 331 of
the UP Zamindari Abolition and Land Reforms Act, we answer in the negative.
The suit was not barred under the aforesaid provisions as the UP Zamindari
Abolition and Land Reforms Act has no jurisdiction to deal with the subject
matter. On the issue of Section 49 of the UP Consolidation of Land Holdings
Act, we hold that the present case is not barred under this section as it
is a suit for possession of the suit schedule property based on title,
which is not within the jurisdiction of the authorities under the aforesaid
Act. In the case of Suba Singh v. Mahendra Singh & Ors.[5], it was observed
by this Court that Section 49 does not bar jurisdiction of civil courts in
matters of title to the land stating that -
“9. …The result is that the plea of bar of the civil courts’
jurisdiction to investigate and adjudicate upon the title to
the land or the sonship of the plaintiff has no substance….”
Therefore, since the present case too involves a question of ‘sonship’ of
the plaintiff who is the appellant herein, there is no bar to the
jurisdiction of civil courts under Section 49 of the aforesaid Act, in
deciding the question of the appellant’s right to the land he has inherited
from his father.
11. Answer to point nos.3 & 4:
The order of the Consolidation Officer dated 14.2.1970 was obtained on
the basis of fraud by the defendants. We feel that the Consolidation
Officer has also committed fraud on the appellant, by accepting withdrawal
of his objection and not going into the issue of whether he is the s/o Vaij
Nath or not, and therefore whether he is the rightful heir, with a right in
half-share of the disputed property. The Consolidation Officer has not
discharged his duties properly and keeping with law has not given details
of the objection or why the objection was not pressed by the appellant in
his order. He has permitted a gross miscarriage of justice to continue by
recording of the name of defendant no.1 as the only rightful heir to the
land in dispute. In the case of S. Partap Singh v. State of Punjab[6],
Ayyangar J. in his portion of the judgment at para 6 has quoted Lord
Denning (in the case Lazarus Estates Ltd. v. Beasley 1956 1 All ER 341 at
p.345) stating:
“No judgment of a Court, no order of a Minister can be
allowed to stand if it has been obtained by fraud.”
The Consolidation officer without examining the alleged statement made on
behalf of the appellant and verifying the correctness of the same has
accepted the withdrawal of his objection and has passed the order without
examining the rights of the parties with reference to the documents in
relation to the suit schedule property.
12. We therefore hereby declare the order of the Consolidation Officer to
be null and void on grounds of patent illegality and acting with legal
malice. The appellant has contended that he had no idea about the
Consolidation order and was made aware of it only when he asked for his
half share of crop which the defendants refused to him, and that he was
made to sign an agreement in which he signed over his rights to the
property and that he has been taken advantage off due to his illiteracy.
We find all this extremely murky and it was incumbent upon the
Consolidation Officer to properly enquire into the ownership of the land
before recording the defendant’s name in the revenue records. We further
hold that the appellant - Amar Nath is entitled to be recorded in the
revenue records by the competent authorities as half share owner of the
land in dispute, as he has a right to half the share in the property and
crops, as it being the ancestral property of his father – Vaij Nath. It
has been proved by examining the evidence on record, such as the election
identity card, that Amar Nath is indeed the s/o Vaij Nath thereby it has
demolished the contention of the defendants that the appellant is not the
s/o Vaij Nath.
13. In view of the foregoing reasons, we hold that the appellant is the
half share owner of the land in question and further uphold his right to
the ancestral property. We direct the competent authority to record the
name of the appellant – Amar Nath in the revenue records as half share
owner of the land in dispute. Thus, we hereby set aside the impugned
judgment and decree of the High Court and uphold the judgment of the first
appellate court. The appeal is allowed in the aforesaid terms with no
order as to costs.
………………………………………………………………………J.
[GYAN SUDHA MISRA]
………………………………………………………………………J.
[V. GOPALA GOWDA]
New Delhi, April 22, 2014
-----------------------
[1] (2009) 3 SCC 720
[2] (2010) 9 SCC 209
[3] (2010) 15 SCC 525
[4] (2012) 4 SCC 344
[5] (1974) 1 SCC 418
[6] AIR 1964 SC 72
