Allahabad High Court
Jiya Lal S/O Ram Prasad Dead And Others vs Chhotey Singh And Another on 17 October, 2025
Author: Dinesh Pathak
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment Reserved on 24.9.2025 Judgment Delivered on 17.10.2025 HIGH COURT OF JUDICATURE AT ALLAHABAD SECOND APPEAL No. - 867 OF 2013 Jiya Lal S/o Ram Prasad Dead and others ..Petitioners(s) Versus Chhotey Singh and another ..Respondents(s) Counsel for Petitioners(s) : In Person, Jagdev Singh, Kailash Nath Kesarwani, Rakesh Kumar Shukla Counsel for Respondent(s) : Onkar Nath Vishwakarma, Praveen Kumar Court No. - 37 HONBLE DINESH PATHAK, J.
1. Heard Plaintiff-appellant no.1/2 Santosh Kumar (in person) and Shri Pradeep Kumar (Senior Counsel), assisted by Shri Onkarnath Vishwakarma, learned counsel for the heirs and legal representatives of deceased defendant-respondent No.1 and subsequently impleaded respondent no.3 (Baba Lal Ji/Yogi Raj). Defendant-respondent No.2 died issueless, as per order of this court dated 17.05.2022.
2. It is apposite to mention that, by separate order dated 17.05.2022, instant second appeal was ordered to be clubbed with Writ-B No. 55684 of 2017. Having considered the status of both the matter being clubbed together, which belongs to different rosters of this court, Honble the Chief Justice, vide order dated 10.02.2025, has directed both the aforesaid matters to be placed before this Court. Thus, both the matters are heard and decided by separate orders.
3. Plantiff-appellant has preferred the instant second appeal assailing the judgment and decree dated 06.09.2005 passed by Additional District and Sessions Judge, Fast Track Court No.1, Etawah in Civil Appeal No. 34 of 1998 (Jiyalal and Others Vs. Chhotey Singh and Another), affirming the judgment and decree dated 27.02.1998 passed by First Addl. Civil Judge (J.D.) Etawah in Original Suit No. 335 of 1987, Jiyalal (plaintiff) Vs. Chhotey Singh and Others (defendants). Both the courts below have concurrently dismissed the suit filed on behalf of plaintiff-appellant.
4. Plaintiff-appellant has filed a suit for permanent prohibitory injunction, being O.S. No. 335 of 1987, to restrain the defendants from forcibly interfering, without any legal right, with the plaintiff's peaceful ownership and possession over Plot No. 2338. The plaintiff further seeks to refrain the defendants from raising any construction and digging soil, or dispossessing the plaintiff from the chak or its partial area, and to allow the plaintiff to remain in the possession of the chak in question. During the pendency of the suit, the plaintiff has filed amendment application, seeking additional relief for the demolition of the construction made on plot in question during the pendency of the suit, remove the debris there from, and delivery of possession thereof to the plaintiff. Plaintiff has also sought ancillary relief including costs and any other appropriate relief to which plaintiff is entitled.
Plaint Case
5. Pleading made by the plaintiff is as follows:
(I) That the plaintiff, a permanent resident of Mauja Kamet, Pargana and District Etawah, possesses a very small holding of agricultural land, now numbered Arazi No. 2338, situated in the said Mauja Kamet, Pargana and District Etawah. Within this holding, there are numbers 3016 (area 2 dismil), 3019 (area 2 dismil), and 3015 (area 82 dismil) a total of 3 numbers, which in the government records have been shown as 4 numbered plots, comprising a total area of 86 dismil. The plaintiff has been the exclusive owner and in lawful possession of the said land since purchase, and this has been recorded in the government revenue records.
ii. That the aforesaid land, now Arazi No. 2338, is bounded on all four sides by kutcha medh (raw boundary) and the plaintiff has been cultivating the same and deriving benefit therefrom continuously.
iii. That approximately 10 years ago, chakbandi (consolidation proceedings) took place in the said Mauja, and the plaintiff was allotted Chak No. 256, comprising 86 dismil, by the Assistant Consolidation Officer. The plaintiff was given possession of the said chak and the same was also approved by the S.O.C. (Settlement Officer, Consolidation). However, subsequently, the D.D.C. (Deputy Director of Consolidation) changed the plaintiff's chak in variance with the earlier determination. Against this order, the plaintiff filed Writ Petition No. 3992 of 1980, Jiya Lal vs. Joint Director, Consolidation & Others, before the Hon'ble High Court, Allahabad, which is still pending adjudication.
iv. That in the said writ petition, by order dated 02.05.1980, the Hon'ble High Court stayed the operation of the D.D.C.'s order, and the said stay remains effective to this day.
v. That the plaintiff continues to be in lawful possession of the land allotted to him as Chak No. 256, situated in Mauja Kamet, Pargana and District Etawah, and no other person has ever been granted possession of any part of this chak by any authority. Further, the plaintiff has never been dispossessed from Chak No. 256 by any consolidation authority or any competent court.
vi. That the defendants are not original residents of Mauja Kamet. They are outsiders who, for some time, have started residing at Udi Morh. The defendants, in collusion with persons holding enmity with the plaintiff, have declared openly that they will forcibly dispossess the plaintiff and take illegal possession of his land, now Arazi No. 2338.
vii. That recently, the defendants attempted to forcibly occupy the plaintiff's chak. When the plaintiff resisted their illegal actions, proceedings under Sections 107/117 Cr.P.C. were initiated by the local police against the defendants. However, if the defendants again attempt to interfere using force and muscle power, there is a likelihood of a serious criminal incident, and hence the plaintiff seeks appropriate legal action.
vii-A. That after filing of the present suit, the defendants, without any right, title, or authority, have illegally constructed a basement on the disputed land during the pendency of the suit. It is necessary that this unauthorized construction be measured, recorded, and restored to the previous status of the land.
viii. That in 1987, at the time of filing this suit, there was litigation between the plaintiff and Gyan Singh regarding Chak No. 256. After the conclusion of the proceedings, the plaintiff was finally allotted Arazi No. 2338, measuring 90 dismil, out of which 86 dismil came to the plaintiff and 4 dismil went to Gyan Singh. A settlement was reached between the plaintiff and Gyan Singh, and the Joint Director, Consolidation passed a final order accordingly. The defendants, however, have illegally constructed structures on a part of Arazi No. 2338. The plaintiff is therefore entitled to obtain complete relief and protection in respect of Arazi No. 2338, as during the pendency of the case, Chak No. 256 has been replaced by Arazi No. 2338.
ix. That the defendants have no right, title, interest, or concern with the disputed property or any portion thereof, but they are attempting to interfere unlawfully in the plaintiff's peaceful possession. Without a permanent injunction, the defendants will not desist from their illegal intentions, compelling the plaintiff to file the present suit.
x. That the cause of action for this suit arose on 03.07.1987, when the defendants, with mala fide intention, attempted to interfere with the plaintiff's possession at Mauja Kamet, Pargana and District Etawah, which falls within the territorial jurisdiction of this Hon'ble Court.
xi. That the value of the present suit, for purposes of jurisdiction, is ₹307.20, calculated as 30 times the annual land revenue of ₹10.24, and court fees of ₹102.40 (one-fifth thereof) are paid towards the relief of permanent injunction. Additionally, the cost of the unauthorized construction is valued at ₹1,000, and court fees amounting to ₹200 (one-fifth thereof) are paid for the relief of removal of construction.
Written Statement (W.S.)
6. Defendant No.1 has filed written statement denying the pleadings of the plaint and taken the following additional plea as below:
(i). That no cause of action has arisen against the defendant on behalf of the plaintiff. The plaintiff is not competent to file this suit, nor is the plaintiff entitled to obtain any consequential relief.
(ii). That the map attached below the plaint is entirely incorrect and contrary to the actual site. The plaintiff has submitted it arbitrarily for his own personal benefit.
(iii). That the disputed land, in the present circumstances, is not part of Chak No. 256 at all. Instead, defendant no. 1's land comprises Arazi No. 2337, area 0.09 dismil, and Arazi No. 2338, area 90 dismil, recorded under Khata-Khatauni Nos. 1114 and 1121. Defendant no. 1 has no possession or control over the plaintiff's Chak No. 256.
(iv). That defendant no. 1 has been in possession and occupation of the disputed land for the past approximately 20 years, within which a temple of Shri Hanuman Ji Maharaj exists over Arazi No. 2337, area 9 dismil, constructed much prior to the chakbandi proceedings. In the same land, a platform (chabutra) of Shri Shankar Ji Maharaj exists at the site of an old well, constructed about 20 years ago.
Behind the Shri Hanuman Ji temple, there are two huts on the eastern side, used by defendant no. 1, Baba Chhote Das, for his residence, as well as by visiting saints, disciples, and guests for accommodation. On the south-eastern vacant corner of the said land, a hand pump has been installed by the government for the convenience of saints, monks, and devotees.
(v). That on Arazi No. 2337, area 0.09 dismil, to the west of Shri Shankar Ji Maharaj's platform, there exists an old cave, built many years ago. In front of the Hanuman Ji temple, on the western side near the roadside, there are two trees and one Peepal tree, approximately 15-16 years old, planted by defendant no. 1, Baba Chhote Das.
Further, towards the southern side of Arazi No. 2337, Arazi No. 2338 lies, measuring 0.90 dismil, wherein defendant no. 1, Baba Chhote Das, has constructed a small shrine (mathiya) of Goddess Devi Ji. On the eastern and northern corners of the shrine, defendant no. 1 planted a Belua tree, and towards the north of the shrine, a Peepal tree has also been planted by him.
(vi). Within Arazi No. 2338, four events of Shrimad Bhagwat Katha have already been organized, and accompanying bhandaras (community feasts) have also been held. This land, measuring 0.90 dismil, has been continuously used for religious purposes for about 20 years. Every Tuesday, bhajans and kirtans are performed in the Hanuman Ji temple, and prasadam is distributed, which has been continuing for about 20 years. Saints, monks, and devotees from distant places regularly visit.
(vii). That defendant no. 1 has been in continuous, uninterrupted possession and ownership-like control over the disputed land for the past approximately 20 years without any obstruction, opposition, or objection by anyone. Everyone in the locality has acknowledged and accepted defendant no. 1's possession. Therefore, defendant no. 1's rights and entitlements over the disputed land have already matured by virtue of his long, adverse, and uninterrupted possession.
(viii). That during the proceedings, about 12-13 years ago, the Deputy Director of Consolidation (D.D.C.) found defendant no. 1 to be in possession of the disputed land, whereupon he also observed the existence of a temple and associated structures. Upon oral requests made by defendant no. 1 and other devotees to the D.D.C. for retaining the temple permanently, the D.D.C. designated the disputed land as abadi land for the temple. The plaintiff, however, became aggrieved and started harboring enmity against defendant no. 1, threatening him with legal action and openly declaring his intention to demolish the temple and associated structures by force or otherwise.
(ix). That during the chakbandi proceedings, the D.D.C. carved out Arazi No. 1759, area 0.73 dismil, from the plaintiff's Chak No. 256 and handed over possession to the plaintiff, who continues to cultivate and benefit from this land.
(x). That when the plaintiff, using force and illegal means, attempted to unlawfully dispossess defendant no. 1 from Arazi Nos. 2337 and 2338, defendant no. 1 filed a complaint before the higher authorities, following which the local police challaned the plaintiff. Defendant no. 1 has been in continuous, uninterrupted possession of the disputed land for more than 20 years, and this fact is well-known throughout the locality. The plaintiff has no possession whatsoever over the disputed land. Hence, the question of defendant no. 1 dispossessing the plaintiff does not arise at all, and the plaintiff's statements are entirely false and baseless.
(xi). That the plaintiff has no right, title, share, or interest in the disputed land, nor has he ever had any.
(xii). That the plaintiff has no possession whatsoever over the disputed land, nor has he ever had any.
(xiii). That since the plaintiff has harbored enmity against defendant no. 1 since before the chakbandi proceedings, he has filed the present suit with the sole intention of harassing defendant no. 1 and testing his fortune, by making false and misleading statements before this Hon'ble Court.
(xiv). That for a period of 12 years prior to the filing of the present suit, the plaintiff has never been in possession of Arazi Nos. 2337 and 2338, whereas defendant no. 1 has been in continuous possession of the said land. Therefore, the present suit is barred by limitation.
(xv). That defendant no. 1 has been in possession of the disputed Arazi Nos. 2337 and 2338 for the past more than 20 years, and defendant no. 2 has no concern, relation, or connection whatsoever with this land. Defendant no. 2 is a person of religious inclination and good character, engaged in worship at the temple, and serves defendant no. 1, Baba Chhote Das. Defendant no. 2 has been wrongly impleaded as a party in this suit. Hence, the present suit suffers from misjoinder of parties.
(xvi). That since the plaintiff has no existing possession over the disputed land, the present suit is not legally maintainable and is barred by Section 34 of the Specific Relief Act.
(xvii). That the present suit also suffers from defects under Section 5 of the Chakbandi Act, and as such, the suit stands abated and is not maintainable in law.
7. Defendant No.1 has filed additional written statement (paper No. 132-Ka) showing his possession over the property in question since last 20 years and denied the new construction of ground floor during pendency of the suit. Apart from that, appellant has filed another written statement (papers No. 114-Ka) against the amended plaint with the following pleadings:
i. That the plaintiff had earlier filed a claim regarding Chak No. 256, and in his plaint, he had clearly written that Chak No. 256 comprises land numbers 3015, 3016, and 3019. However, in fact, Chak No. 256 comprises land number 1759. Moreover, defendant no. 1 had clearly stated in his written statement that his adverse possession has been continuously existing over Abadi land numbers 2337 and 2338 since before the chakbandi proceedings, i.e., for approximately 25 years.
ii. That the plaintiff, based on an application for amendment, got his plaint amended to substitute the earlier claim for Chak No. 256 (comprising land no. 1759) with a claim relating to land no. 2338, which is against the law and contrary to the actual facts. Such an amendment ought not to have been allowed.
iii. That the acceptance of the amendment application has caused serious prejudice to the rights of defendant no. 1. Through the amendment, the plaintiff has completely changed the nature of his case and has even resiled from his earlier admissions, which the plaintiff had no right to do.
iv. That the plaintiff, through the amendment application, has also altered and replaced the map attached to his original plaint, which confirms the fact that the plaintiff has changed the disputed property itself through this amendment.
v. That under Section 7(b) of the plaintiff's amendment application, it is stated that during the pendency of the case, the land numbers changed, and that plaintiff has reached a compromise with one Gyan Singh before the Joint Director of Consolidation, Etawah, where, on the basis of that compromise, a decision has already been passed granting the plaintiff 0.86 dismil of land in Arazi No. 2338.
However, such compromise is not legally binding on defendant no. 1, because defendant Mujib was not a party to that compromise. Furthermore, against the order passed on the basis of the said compromise, defendant Mujib filed a Civil Miscellaneous Writ No. NIL of 1989 titled Baba Chhote Das vs. J.D.C. Etawah & Others before the Hon'ble High Court at Allahabad, where the Court has recognized defendant Baba Chhote Das's possession over land no. 2338 and directed that he cannot be dispossessed from land no. 2338 on the basis of any earlier proceedings.
vi. That the statement of the plaintiff, claiming that land no. 2338 came into existence after the filing of the suit, is entirely false.
vii. That the plaintiff's amended claims, arising from the amendment application, are merely afterthoughts, which are completely unacceptable to defendant Mujib.
viii. That on the basis of the above grounds, the amended plaint is entirely wrong, illegal, and liable to be rejected, and the plaintiff's claim is liable to be dismissed with costs.
Decision of Trial Court
8. Learned First Additional Civil Judge (J.D.) Etawah, while dismissing the suit of the plaintiff, vide order dated 27.02.1998, has framed as many as eight issues. Issue no.1 pertains to the legal right and ownership of the plaintiff over the plot No. 2338 (area 0.86 dismil). Issue no.2 relates to the alleged construction raised by defendants over plot No. 2338. Issue no.3 was framed as to whether the defendant is bound by the allotment of plot No. 2338 during consolidation operation in favour of the plaintiff. Issue no.4 relates to the adverse possession of the plaintiff over plot No. 23337 and 2338. Issue no.5 was framed as to whether suit is barred by limitation. Issue no.6 is framed as to whether suit is barred under Section 34 of the Specific relief Act. Issue no.7 relates to the impleadment of the unnecessary party, and Issue no.8 relates to entitlement of the plaintiff for any relief.
9. The learned trial court has decided the Issue no.1 against the plaintiff, denying his ownership and possession over plot No. 2338, with an observation that during the consolidation operation, the D.D.C. had allotted and created separate plot No. 1759, with an area 0.73 hectare, under chak no.256, which is in the possession of the plaintiff and he is yielding crops therefrom. The court further observed that dispute with respect to the property in question is still pending adjudication before the consolidation court; therefore, the plaintiff cannot be considered as an owner of plot No. 2338, area 0.86 hectare. Issue no.2 has been decided in favour of the defendant No.1 with an observation that construction exists over the land in dispute since before pendency of the suit. Issue No.3 has been decided in favour of the defendants No.1 as well with an observation that in view of the pending matter before the consolidation court, the allotment of plot No. 2338 in favour of the plaintiff is not binding upon the defendant. Plea of adverse possession taken by the defendant No.1 was negated by the trial court, while deciding issue no.4. Suit filed on behalf of plaintiff was found to have been filed within prescribed period of limitation and was not deemed barred under Section 34 of the Specific Relief Act, as determined while deciding issue nos. 5 and 6 respectively. Issue no.7 has been decided against the plaintiff with an observation that defendant no.2 (Munni Singh) was unnecessarily impleaded in the plaint. Ultimately, while deciding issue No.8, the trial court came to the conclusion that the plaintiff could not prove his legal right and title over the plot in question i.e. plot No. 2338; therefore, he is not entitled to any relief with respect to the suit property.
Decision of First Appellate Court
10. Having been aggrieved, plaintiff has preferred the Civil Appeal No. 34 of 1998. Learned District and Sessions Judge (first appellate court) has dismissed the appeal vide judgment dated 06.09.2005. Learned First Appellate Court did formulate any specific point for determination; however, it has decided the appeal issue wise, as formulated by learned trial court, and affirmed the findings returned by the trial court on all issues.
Substantial Questions of law
11. Instant second appeal has been admitted by order dated 17.09.2024 on the following two substantial questions of law, which are reproduced herein below:
(i) Whether the question of title can be decided by the civil court inspite of the fact that question of title is pending before the consolidation authorities as well as before this Hon'ble Court? The findings of the courts below are liable to be set-aside on this substantial question of law?
(ii) Whether the court below can ignore the pleadings of appellants with regard to subsequent constructions raised by the respondents inspite of the fact that proper pleadings and denial about the same was available on record? The impugned judgment and decree of the courts below are liable to be set aside on this substantial question of law?
12. Upon hearing the learned counsel for the parties on the substantial questions of law formulated by this court, as mentioned above, they have urged reformulation of the substantial questions of law and the framing of an additional substantial question of law relevant for the purposes of deciding the instant second appeal. There are no absolute restrictions on the second appellate court's jurisdiction to reformulate the substantial questions of law formulated at the time of admitting the second appeal, or to formulate a fresh substantial question of law. Section 100(4) and 100(5) of C.P.C. entrust a duty upon the court to formulate substantial questions of law, in case the court is satisfied that such questions are involved in the case to decide the second appeal on its merits. However, an opportunity must be accorded to the parties to address the court on the substantial question of law. Proviso to Section 100(5) C.P.C. empowers the court to frame an additional substantial question of law, not formulated earlier, provided the court is satisfied that such a question is involved in the matter. The only condition for formulating an additional substantial question of law, is that the court must record reasons for doing so. The Honble Supreme Court in its recent judgment dated September 3, 2025, passed in the case of C.P. Francis Vs. C.P. Joseph and Others (2025 0 Supreme (SC) 1298), Civil Appeal No. Nil of 2025 [SLP (C) No. 13348 of 2025] has elucidated the scope and nature of the provisions enunciated under Section 100(5) C.P.C. and summarized the principle for reformulating the substantial question of law or framing new substantial question of law, if required. Relevant paragraph nos. 18 and 19 of C.P. Francis (supra) are reproduced herein below:-
18. In the above background, before we examine the procedure followed by the High Court, a few precedents on the point are noted. The principles emanating from precedents on Section 100(5) of the CPC can be summed up as follows:
18.1 A substantial question of law must be grounded in the parties' pleadings and the findings of lower courts. Thus, it must be exercised if it is so fundamental that it goes to the very root of the matter.1 18.2 The jurisdiction to frame a new question of law is exceptional and should not be exercised routinely unless there is a strong and convincing reason to do so.2 18.3 The proviso allows the court to hear an appeal on "any other substantial question of law," which implies that at least one substantial question of law must have been formulated at the admission stage. The power to reformulate or add a question arises only if a substantial question of law has already been framed.3 18.4 The High Court must be "satisfied" that the new question is a substantial question of law and not a mere legal plea.4 18.5 The court is mandatorily required to record its reasons for framing an additional substantial question of law.5 18.6 The opposite party (the respondent) must be given a fair and proper opportunity to contest the new question. Parties must be put on notice and be allowed to present their arguments on the newly framed question. Framing a question while dictating the judgment without hearing the parties would be improper.6
19. The ratio of the precedents is that the High Court is competent and endowed with discretionary jurisdiction to formulate a substantial question of law not stated when the second appeal was admitted. The High Court is entitled to formulate an additional substantial question of law for reasons to be recorded if the High Court is of the view that the case involves such a question of law. The proviso to sub-section 5 of Section 100 of the CPC comes into operation in exceptional cases, albeit for strong and convincing reasons to be specifically recorded by the High Court. Respondent Nos. 1 to 5 have pleaded a lack of a sound disposing state of mind to late Pius. The pleadings refer to the line of treatment given to the late Pius. The plea needed for invoking Section 67 of the Act, either by choice or inadvertence, is not pleaded by Respondent Nos. 1 to 5. Issue No. 1 deals with whether Exhibit B-3-will is valid and genuine. Mr Mathai does not dispute that the issue ought to have been different, and from the expressions used in the issue, consideration falls under Section 100(5) of the CPC.
13. Upon careful scrutiny of the record, it emerges that the chak allotment proceeding u/s 20(3)/21(1) of U.P.C.H. Act has been finalized by order dated 05.02.1989/06.04.1989, passed by D.D.C., in pursuance of the remand order dated 27.11.1987 passed by this Honble court in Civil Misc. Writ Petition No. 3992 of 1980. Subsequent thereto, a proceeding for execution under Rule 109-A of U.P.C.H. Rules was initiated on the application moved on behalf of plaintiff/appellant, arising out of which Writ-B No. 55684 of 2017 is pending adjudication before this court, and connected with the instant second appeal.
14. Plaintiff-appellant (in person) has emphasized that allotment proceeding concluded in his favour; therefore, his right and title cannot be denied over the new plot in question i.e. Plot No. 2338. Conversely, counsel for defendant/O.P. No.1 has emphasized the concurrent finding of fact returned by the courts below and contended that the second appeallate court should not in ordinary manner interfered with the concurrent findings of fact. He has also emphasized the order dated 17.04.1989 passed in Civil Misc. Writ Petition No. 10031 of 1989 and contended that possession of the contesting defendant (Baba Chhote Das) has been acknowledged by this Court and in compliance with the order dated 27.04.1989, possession of the parties has not been examined till date; therefore, his possession has rightly been decided by the courts below, while deciding the Issue No. 2.
15. Having considered the rival submissions advanced by learned counsel for the parties, I am of the considered view that substantial questions of law formulated by this Court, vide order dated 17.09.2024, are required to be reformulated and one additional substantial question of law is also required to be formulated in the light of the fact that during pendency of the revision arising out of chak allotment proceeding under Section 21(1) of U.P.C.H. Act, Baba Chhote Das was impleaded in the revision. However, the revision was decided based on the compromise dated 25.02.1989 inked between the parties during pendency of the revision. However, Baba Chhote Das was not the signatory in the said compromise. Having been aggrieved, he has preferred a writ petition, being Civil Misc. Writ Petition No. 10031 of 1989, which was disposed of vide order dated 06.04.1989, later modified by order dated 19.07.1991, with an observation that possessory right of the petitioner shall be considered in ongoing proceedings before the consolidation courts, if any. However, order passed by the D.D.C. in revision, based on the compromise, became final between the parties. Baba Chhote Das has neither contested the title proceedings nor the chak allotment proceeding. Thus, having regard to the submissions advanced by both the parties, I am of the view that following substantial questions of law are involved in order to decide the instant second appeal:
(I) Whether courts below have misunderstood the title proceeding and chak allotment proceeding u/s 9-A and 21(1) of the U.P.C.H. Act respectively, and execution proceeding under Rule 109-A U.P.C.H. Rules; and findings returned by them, denying the plaintiffs right and title over plot no. 2338, allotted in the chak allotment proceedings, are perverse and the result of misreading and misinterpretation of the evidence on record?
(II) Whether, the finding returned by the courts below on Issue No.2, with regard to existence of a structure of temple over plot no. 2338 and its entry as an abadi, is perverse?
(III) Whether, the concurrent findings of fact recorded by the courts below are liable to be interfered with, being perverse, illegal and capricious?
16. Substantial question of law No.1, as mentioned above, has been formulated in the light of the fact that parties have not contested any title proceedings u/s 9-A of the U.P.C.H. Act, and the chak allotment proceedings u/s 21(1) of the U.P.C.H. Act, the provisional consolidation scheme, has been decided finally in favour of the plaintiff/appellant. However, the courts below have misunderstood the proceedings under Rule 109-A of U.P.C.H. Rules as title proceedings and erroneously emphasized the pendency of the writ petition arising from the proceedings under Rule 109-A of U.P.C.H. Rules. Before addressing the substantial question of law, this court would like to refer to the brief background of the litigation as discussed by this court by order of the date i.e. 17.10.2025 passed in connected Writ-B No. 56684 of 2017 (Adesh Singh Bhadauriya and Another Vs. District Deputy Director of Consolidation/ Collector Etawah and 3 Others). For ready reference, paragraph nos.4 and 5 of the aforementioned writ petition are reproduced herein below so far as it is relevant for the purposes of the present second appeal:
"4. The facts giving rise to the instant writ petition are that the village- Kamet, Pargana & Tehsil & District Etawah was brought under the consolidation operations through a notification under Section 4(2) of the U.P.C.H. Act promulgated in August 1976. During the Consolidation operation, Jiya Lal (father of respondent no. 3 and husband of respondent no. 4) had purchased plot no. 1254, area 0.77 acres, through a registered sale deed dated 17.12.1977 executed by Sri Kishun, son of Banbari Lal, with permission of the S.O.C. by order dated 28.04.1977 passed under Section 5(1)(c)(ii) of the U.P.C.H. Act. At the stage of Section 9 of the U.P.C.H. Act, there was no dispute with regard to the right, title and interest of the parties over the plot in question. In the provisional Consolidation Scheme, prepared under Section 19-A and published under Section 20(1) of the U.P.C.H. Act, Jiya Lal had been proposed chak no.256 consisting of plot no.3015, area 0.82 acres, plot no.3016, area 0.02 acres and plot no.3019, area 0.02 acres, a total of three plots measuring area 0.86 acres. However, one Gyan Singh S/o Bhikhari had been proposed chak no.149 consisting of plot no.3015 M area 0.09 acres, 3016 M area 1.20 acres and 3019 M area 0.02 acres, a total of three plots measuring area 1.31 acres. Having been dissatisfied with the proposed chak, Gyan Singh (chak holder no.149) filed an objection under Section 20(3) of the U.P.C.H. Act, being Case No. 483. The Consolidation Officer, vide order dated 26.04.1979 passed under Section 21(1) of the U.P.C.H. Act, has modified the chaks of Gyan Singh and Jiya Lal. Accordingly, Jiya Lal (chak holder no.256) has been proposed chak over plot nos.1254, 1253, 1255/1 and 1257, a total of four plots measuring 0.73 acres. However, chak no.149 of Gyan Singh has been slightly modified and shifted from plot no. 3019 M, area 0.02 acres, and plot no. 3016 M, area 0.60 acres, to plot no. 3015, area 0.52 acres. Having been aggrieved with the order passed by the Consolidation Officer, Jiya Lal has preferred an appeal under Section 21(2) of the U.P.C.H. Act before the S.O.C., being Appeal No. 561. Another appeal no. 553 was preferred by the third person, namely, Phundi Lal (chak No. 439). The appellate court, by a common order dated 28.6.1979 ( Annexure No. C.A.- 7A), has allowed both appeals and reverted the chak of the Jiya Lal (chak no. 256) to the initial stage of the Assistant Consolidation Officer, i.e. plot nos. 315, 316 and 319, totalling three plots measuring area 0.86 acres. Having been aggrieved with the order dated 28.06.1979 passed by the S.O.C., Gyan Singh has preferred revision being Revision No.736/227 under Section 48 of the U.P.C.H. Act. The D.D.C., vide order dated 28.03.1980 (Annexure No. C.A.-7B), has allowed the revision and allotted chak to Jiya Lal at the stage of the Consolidation Officer, i.e. plot nos. 1254, 1253 and 1255/1. Having been aggrieved, Jiya Lal has preferred Writ Petition no. 3992 of 1980. This Court, vide order dated 27.11.1987 (Annexure No. 1 to Supplementary Affidavit dated 07.05.2018), has allowed the writ petition and relegated the parties before the D.D.C. to get the matter decided afresh. It appears that after the remand order had been passed, the predecessor-in-interest of the present petitioners, namely, Baba Chhote Das, had moved an impleadment application during the pendency of revision before the D.D.C. and was ordered to be impleaded vide order dated 19.09.1988 (Annexure No. 5). During the pendency of the revision, Gyan Singh and Jiya Lal arrived at a compromise on 25.02.1989 to the effect that they will abide by the order dated 28.06.1979 passed by the S.O.C. The said compromise was verified by the court of D.D.C. and, subsequently, vide order dated 06.04.1989, the revision was dismissed as not pressed based on the compromise took place between the parties. A copy of compromise application dated 25.02.1989, compromise verification order dated 02.03.1989 and final order dated 06.04.1989 are collectively filed as annexure No. C.A.4B to the counter affidavit. The order passed by the D.D.C. based on a compromise was mentioned in C.H. Form 45 (Annexure No. C.A.4A) aginst the new khata No. 235 of Jiya Lal. It is apposite to mention that the village was de-notified under Section 52 of the U.P.C.H. Act on 24.9.1983, and the plot no. 3015 area 0.82 acres, plot no.3016 area 0.02 acres and plot no.3019 area 0.02 acres, totalling three plots measuring area 0.86 acres, have been allotted a new identity being plot no.2338 M area 0.86 acres. In the meantime, Baba Chhote Das filed a writ petition, being Writ No.10031 of 1989, assailing the order dated 6.4.1989 passed by the D.D.C. This court, vide order dated 27.04.1989, has disposed of the writ petition with a direction that "it is expected that the petitioner shall not be evicted from the land in his occupation unless fresh proceedings are initiated against him either by the contesting respondent nos.3 & 4 or by consolidation authorities".
5. Having been dissatisfied with the order dated 27.04.1989 passed by this Court, Jiya Lal had preferred a review petition, which was disposed of, vide order dated 19.07.1991, whereby previous order dated 27.04.1989 was clarified to the extent that the consolidation authorities can proceed with the proceedings if they can deal with the claim of the petitioner also in that proceeding otherwise, reasonable opportunity to the petitioner is but essential before evicting him from the land in his occupation. Photostat copy of Review Application and order dated 19.07.1991 passed on it, appended with the record of Writ Petition No. 10039 of 1989, are supplied by counsel for the petitioners, in court room. For ready reference order dated 19.07.1991 is quoted herein below :
"Heard the counsel for the parties and perused the affidavit filed in support of the application dated 16.8.90. The order dated 16.7.90 is hereby recalled. But, the learned counsel for the applicant has not been able to satisfy me that the order dated 27.4.89 suffers from any patent error. Therefore, the application for reviewing the aforesaid order stands rejected even today.
The contention of the learned counsel for the applicant is to the effect that due to the observation in the order dated 27.4.89 the whole proceedings stand stayed. If the consolidation authorities can grant relief to the applicant after hearing the writ petitioner and dealing with his claim they can proceed strictly in accordance with law. However, it is again emphasised that the petitioner may not be evicted from the land in his occupation without giving him reasonable opportunity to substantitate his claim. The applicant prays for a direction to go on with the allotment of chaks proceedings. It is sufficient to observe that the consolidation authorities can proceed with the proceedings if they can deal with the claim of the petitioner also in that proceeding otherwise reasonable opportunity to the petitioner is but essential before evicting the petitioner from the land in his occupation.
With the above clarification the application moved by the opposite party no.3 is hereby disposed of.
A certified copy of this order may be given to the counsel for the parties within twenty-four hours on payment of usual charges."
(emphasis supplied by the court)
16.(I) Needless to say that object of the U.P.C.H. Act is to provide for consolidation of agricultural holding for the development of agriculture. It is a complete code which contains provisions for redressal of grievance of tenure holders relating to their right, title and interest over the holding as well as grievances in relation to the chak allotment, its valuation and area, etc. While enforcing the object of U.P.C.H. Act to consolidate the holding and avoid fragmentation or scattered holding, consolidation authorities are also authorised to examine the revenue entries made in favour of the tenure holders. For this purpose, Section 8A provides preparation of statement of principles, stating forthwith the principle to be followed in carrying out consolidation operation in the unit. In Section 9, provision is made for issuing notice to the statement of principle prepared under Sections 8 and 8 A of the U.P.C.H. Act to tenure holders concerned and to persons interested calling upon them to file objection before him, if any, disputing the correctness or nature of entry in the extract and pointing out of any omission therefrom. Section 10 provides that annual register shall be revised on the basis of the order passed by the Consolidation Officer. Section 19 onwards, Sections 20 and 21 are relating to the Provisional Consolidation Scheme (Chak allotment proceedings). Thus, there is a provision under the U.P.C.H. Act to examine the right, title and interest of the tenure holders, while examining the correctness of entries. However, intending to discourage the multiplicity of proceedings, legislation has forbidden the jurisdiction of Civil and Revenue Court, under Section 49 of the U.P.C.H. Act. For ready reference, provisions relating to title proceeding under Section 9-A of U.P.C.H. Act, chak allotment proceeding under Section 20(3) and 21(1) & (2) of U.P.C.H. Act, and Rule 109-A of U.P.C.H. Rules, respectively are quoted herein below:-
Section 9-A "[9-A. Disposal of Cases relating to claims to land and partition of joint holdings.-(1) The Assistant Consolidation Officer shall-
(i) where objections in respect of claims to land or partition of joint holdings are filed, after hearing the parties concerned, and
(ii) where no objections are filed after making such enquiry as he may deem necessary, settle the disputes, correct the mistakes and effect partition as or as may be by conciliation between the parties appearing before him and pass orders on the basis of such conciliation:
[Provided that where the Assistant Consolidation Officer, after making such enquiry as he may deem necessary, is satisfied that a case of succession is undisputed, he shall dispose of the case on the basis of such enquiry.] (2) All cases which are not disposed of by the Assistant Consolidation Officer under sub-section (1), all cases relating to valuation of plots and all cases relating to valuation of trees, wells or other improvements, for calculating compensation therefor, and its apportionment amongst co-owners, if there be more owners than one, shall be forwarded by the Assistant Consolidation Officer to the Consolidation Officer, who shall dispose of the same in the manner prescribed.
(3) The Assistant Consolidation Officer, while acting under sub-section (1) and the Consolidation Officer, while acting under sub-section (2), shall be deemed to be a Court of competent jurisdiction, anything to the contrary contained in any other law for the time being in force notwithstanding."
20. Publication of the provisional Consolidation Scheme and receipt of objections thereon.-(1) .......................................................................... (2) ................................................................................ (3) Any person affected, or any person having any interest or right, in addition to the right of public highway, in or over any public land, or having other interest or right which is substantially prejudiced by the declaration made under sub-section (2) of Section 19-A, may within fifteen days after the publication of the provisional Consolidation Scheme, file an objection before the Assistant Consolidation Officer or the Consolidation Officer stating the nature of such interest or right.] Section 21(1) & (2)
21. Disposal of objection on the statement.- [(1) All objections received by the Assistant Consolidation Officer shall, as soon as may be, after the expiry of the period of limitation prescribed therefor, be submitted by him to the Consolidation Officer, who shall dispose of the same, as also the objections received by him, in the manner hereinafter provided after notice to the parties concerned and the Consolidation Committee.
2) Any person aggrieved by the order of the Consolidation Officer under sub-section (1) may within [15] days of the date of the order, file an appeal before the Settlement Officer, Consolidation whose decision shall, except as otherwise provided by or under this Act, be final.
3). .............................................................................
4). .............................................................................
Rule 109-A 109-A. Section 52 (2).-(1) Orders passed in cases covered by sub-section (2) of Section 52 shall be given effect to by the Consolidation Authorities, authorised in this behalf under sub-section (2) of Section 42. In case there be no such authority the Assistant Collector, incharge of the sub-division, the Tahsildar, the Naib-Tahsildar, the Supervisor kanungo, and the Lekhpal of the area to which the case relates shall, respectively, perform the functions and discharge the duties of the Settlement Officer, Consolidation, Consolidation Officer, the Assistant Consolidation Officer, the Consolidator and the Consolidation Lekhpal respectively for the purpose of giving effect to the orders aforesaid.
(2) If for the purpose of giving effect to any order referred to in sub-rule (1) it becomes necessary to reallocate affected chaks, necessary orders may be passed by the Consolidation Officer, or the Tahsildar, as the case may be, after affording proper opportunity of hearing to the parties concerned.
(3) Any person aggrieved by the order of the Consolidation Officer, or the Tahsildar, as the case may be, may, within 15 days of the order passed under sub-rule (2), file an appeal before the Settlement Officer, Consolidation, or the Assistant Collector incharge of the sub-division, as the case may be, who shall decide the appeal after affording reasonable opportunity of being heard to the parties concerned, which shall be final.
(4) In case delivery of possession becomes necessary as a result of orders passed under sub-rule (2) or sub-rule (3), as the case may be, the provisions of Rules 55 and 56 shall, mutatis mutandis, be followed.]
16. (II) During the pendency of the revision arising out of chak allotment proceeding, impleadment application of the defendant-respondent no. 1 has been allowed under the presumption that he is also one of the chak holder, who could be affected due to any change in the chaks of the parties. The institution of the present civil suit (O.S. No. 355 of 1987) against him had also influenced the mind of the D.D.C. Revision was decided based on compromise. As per compromise dated 25.02.1989, both the parties, namely, Jiya Lal and Gyan Singh were agreed to abide by the order dated 28.06.1979 passed by S.O.C. It is pertinent to note that order of D.D.C. based on compromise dated 25.02.1989/06.04.1989 was not quashed and same became final between the parties. Thereafter, plaintiff has initiated a proceeding under Rule 109-A of U.P.C.H. Rules in compliance with the order dated 25.02.1989/06.04.1989, passed by D.D.C. Thus, it is apparent from the evidence available on the record that the chak allotment proceedings under Sections 21(1) of U.P.C.H. Act has been finally decided in favour of the plaintiff-appellant. Accordingly, old plot No. 3015 area 0.82 acres, plot no. 3016 area 0.02 acres and plot no. 3019 area 0.02 acres, totalling three plots measuring area 0.86 acres were allotted to the chak no. 256 belongs to the plaintiff, and after de-notification it has come with the new identity, being plot no. 2338 measuring 0.86 acres. Writ No. 10031 of 1989, filed on behalf of Baba Chhote Das (contesting respondent) assailing the order dated 25.02.1989/06.04.1989 passed by D.D.C. was finally disposed of, vide order dated 27.04.1989, with the direction that petitioner shall not be evicted from the land in his occupation unless fresh proceedings are not initiated against him, either by the contesting respondent, viz; Jiya Lal and Gyan Singh or by consolidation authorities. However, order dated 27.04.1989 passed by this court was subsequently modified by order dated 19.07.1991, upon review application being filed, on behalf of the plaintiff/appellant granting liberty to the consolidation officers to consider the case of Baba Chhote Das (petitioner in the writ petition) before his eviction in ongoing consolidation proceedings. Needless to say that this court has passed the order dated 27.04.1989 at admission stage itself without any notice to the other side. Admittedly, at the time of the order dated 27.04.1989 passed by this court, neither the title proceeding under Section 9(A)2 of U.P.C.H. Act nor the chak allotment proceedings u/s 21(2) of U.P.C.H. Act were pending adjudication before the court competent; instead, the proceedings under Rule 109-A of U.P.C.H. Rules, being in the nature of execution proceedings, was pending consideration before the court competent.
16. (III) Issue Nos. 1, 3 and 4, decided by the courts below in favour of the defendants relates to the right and title of the plaintiff over the new plot no. 2338. Plaintiff has filed suit on 04.07.1987 with respect to the plot nos. 3016, 3019 and 3015 which was allotted in his Chak No. 265. While the new identity has been given to the aforesaid plots, plaintiff has moved an amendment application to plead the new plot no. 2338 in place of Chak No. 265. The amendment application was allowed by the courts below. While deciding the Issue No. 1, the courts below have illegally influenced with the allotment of plot nos. 1253, 1254 and 1255 in chak no. 265 in pursuance of order dated 28.3.1980 passed by the D.D.C., which has been subsequently given new identity as plot no. 1759. Courts below have lost sight of the factor that S.O.C., vide order dated 28.06.1979, has allotted plot nos. 3015, 3016 and 3019 to the chak of the plaintiff/appellant; however, same has been reversed by the D.D.C. vide order dated 28.03.1980. Plaintiff-appellant, having been aggrieved, has filed Writ Petition No. 3992 of 1980. This Court has granted interim order in his favour. Aforesaid writ petition was finally allowed and remanded by order dated 27.11.1987. During this period, a civil suit dated 04.07.1987 was filed with the specific plea in paragraph no.4 of the plaint that order passed by the D.D.C. has been stayed by order dated 02.05.1980 passed by Honble High Court in Writ Petition No. 3992 of 1980. Both the courts below have miserably failed to consider the interim order dated 02.05.1980 passed by the High Court in favour of the plaintiff and illegally given weightage to the consequential effect of order dated 28.03.1980 passed by D.D.C., whereby plot no. 1253, 1254 and 1255 (new plot no. 1759) was allotted in favour of the plaintiff-appellant. The trial court as well as the appellate court have denied the right, title and interest of the plaintiff over plot no. 2338 measuring area 0.86 acre on the ground of pendency of the title proceeding before the consolidation courts; however, failed to appreciate the fact that neither the title proceeding under Section 9A(2) of U.P.C.H. Act nor the chak allotment proceeding u/s 21(1) of U.P.C.H. Act were pending adjudication at the time of deciding the suit vide judgment and decree dated 28.02.1998. Copy of CH-Form 23, copy of CH-Form 41, copy of CH-Form 45, copy of the compromise application dated 25.02.1989 order of the same date passed on the aforesaid compromise application and copy of the order dated 06.04.1989 passed by D.D.C. were filed appended with the list of documentary evidence (Paper No. 117(c)). Assuming arguedo that name of the plaintiff was recorded over new plot no. 1759 in persuance of order dated 28.03.1980 passed by D.D.C., as emphasized by courts below in their judgments, said entry, subsequently, pale into insignificance in the light of the order dated 27.11.1987 passed by this court in Writ Petition No. 3992 of 1980 whereby order dated 28.03.1980 passed by D.D.C. has been quashed and parties were relegated before the revisional court. Thus, there is no justification to rely upon the entries of plot no. 1759 area 0.73 acre in favour of the plaintiff. In pursuance of the remand order dated 27.11.1987, revision was finally decided by order dated 06.04.1989. Needless to say that revisional order passed on compromise dated 25.02.1989 remained stand in favour of the plaintiff and same has not been quashed by any court competent. Although, order dated 25.02.1989/06.04.1989, based on compromise, passed by the revisional court was assailed in Writ No. 10039 of 1989; this court has disposed of the aforesaid writ petition with a direction that an opportunity should be accorded to the petitioner (contesting defendant/opposite party) before its dispossession. Pendency of the consolidation proceedings under Rule 109-A of U.P.C.H. Rules has no bearing upon the right, title and interest of the plaintiff over plot nos. 3015, 3016 and 3019 (new plot No. 2338). Courts below have misread and misinterpreted the pleading of the parties and the documentary evidence available on record while coming to conclusion that plaintiff has no legal right, title and interest over plot no. 2338 on account of pendency of the proceeding going on before the consolidation courts and new plot no. 1759 is already recorded in the name of plaintiff. Interim order dated 02.05.1980 passed by this court in Writ No. 3992 of 1980, as pleaded in paragraph no.4 of the plaint and final judgment dated 27.11.1987 passed in the aforesaid writ petition has illegally been ignored.
16. (IV) Admittedly, the contesting defendant (Baba Chhote Das) claimed his right and title over the property in question based on adverse possession since last more than over 20 years. However, he has neither adduced any documentary evidence to prove his legal right and title over the property in question nor has ever filed any objection to contest the title proceeding u/s 9A(2) of the U.P.C.H. Act. Both the courts below, while deciding the Issue No. 4, have negated the plea of adverse possession put forward on behalf of contesting defendant. Thus, he has no legal claim over plot no. 2338.
16. (V) Courts below, while deciding the Issue No. 3, have illegally come to conclusion that allotment of new plot no. 2338 in favour of the plaintiff has no binding upon the defendants. They emphasized the revenue entry made in favour of the plaintiff over plot no. 1759 and concluded that he has already conferred with right and title over plot no. 1759; therefore, subsequent allotment of plot no. 2338 in his favour is not binding upon the contesting defendant. As discussed in preceding paragraphs, this court has granted interim order dated 02.05.1980 passed in Writ No. 3992 of 1980 in favour of the plaintiff and, subsequently, order dated 28.03.1980 passed by D.D.C. was quashed by this court vide order dated 27.11.1989. Thus, the old plot nos. 1253, 1254, 1255 (new plot nos. 1759) cannot be considered to be allotted in favour of the plaintiff. Based on compromise dated 25.02.1989, order of S.O.C. dated 28.06.1979 came into force, whereby plot nos. 3015, 3016 and 3019, (new plot no. 2338) have finally been allotted in favour of plaintiff, which became final between the parties.
16. (VI) In this conspectus, as above, I am of the considered view that the finding returned by the courts below denying the plaintiffs right and title over plot no. 2338 on account of pendency of consolidation proceeding and allotment of new plot no. 1759 is perverse and the result of misreading and misinterpretation of the evidence on record. Prima facie, it appears that court below have misunderstood the provisions enunciated under Section 9A and 20/21 of the U.P.C.H. Act and Rule 109-A of U.P.C.H. Rules. Accordingly, substantial question of law no.1 is decided.
17. Second substantial question of law has been formulated with respect to the existence of structure of temple over plot no. 2338, based on finding returned by the courts below, while deciding the Issue No.2. Having been aggrieved with the illegal encroachment and raising construction during pendency of the suit, plaintiff has moved an amendment application to amend the pleading in this regard and sought for a relief for demolition and dispossession. In paragraph no. 7(A) of the plaint plaintiff has taken specific plea that defendant has illegally raised construction over the plot in question during pendency of the suit. He has also pleaded that out of measuring area 90 dismil of plot no. 2338, plaintiff has been allotted 86 dismil and his opponent in the consolidation proceeding, namely, Gyan Singh has been allotted 4 dismil. Defendant No.1 has illegally encroached upon the partial area of plot no. 2338 during pendency of the suit. Contesting defendant No.1 came with the specific plea that he is in the possession thereof since last twenty years and he has no concern with chak no. 256 belongs to the plaintiff. Defendant has admitted that structure of temple of Lord Hanuman Ji is constructed over plot no. 2337. In paragraph no. 17 of the written statement he came with the plea that plot no. 2338 area 0.090 dismil is being used for religious purposes since last twenty years. It is further pleaded that plot no. 2338 is situated towards the South of plot no. 2337, wherein defendant no.1 has constructed a small shrine of Goddess (Devi Ji). Courts below, while deciding the Issue No. 2, has discarded the plea of the plaintiff with regard to illegal encroachment made by defendant no.1 and raising construction over there, considering it to be an afterthought.
17. (I) Assuming arguendo that defendant no.1 was in possession over the plot No.2338 since before the filing of the suit and structure of temple exist over there, the plea in this regard would pale into insignificance in the light of the facts that in chak allotment proceeding under Section 21(1) of U.P.C.H. Act, plaintiff-appellant has been allotted plot no. 3015, 3016 and 3019, new plot no. 2338, which became final between the parties. It is apposite to mention that during the consolidation operation, to wit, after notification u/s 4(2) of U.P.C.H. Act and before de-notification of Section 52 of U.P.C.H. Act, the contesting defendant/respondent has not taken any appropriate steps either under Section 9(A)2 of U.P.C.H. Act against the entry made in the statement of principals to get his right and title declared over the plot in question or u/s 20(1) of U.P.C.H Act to allot the plot in question in his alleged chak. There is nothing on the record as to what chak number had been allotted in favour of defendant no.1 during the provisional consolidation scheme which was expected to be affected due to the order passed by D.D.C. in the revision arising out of proceeding u/s 20(1) of the U.P.C.H. Act, or proceeding under Rule 109-A of U.P.C.H. Rules. While implementing the order passed under the Consolidation Act and rules made thereunder, there is a provision for demarcation of chak and delivery of possession in favour of chak holders under Section 28 of U.P.C.H. Act and its consequence follows under Section 30 of the U.P.C.H. Act. Needless to say that Section 23 of the U.P.C.H. Act pertains to the confirmation of provisional consolidation scheme and issue of allotment orders. Chapter IV of the U.P.C.H. Act denotes the provisions about the Enforcement of the scheme which consists of Section 24 to 33. Thus, possession of defendant no.1, if any, over the new plot no. 2338 is of no avail and he is liable to be disposed therefrom as per provisions enunciated under Chapter IV of the U.P.C.H. Act.
17. (II) The courts below have illegally emphasized the existence of temple of Lord Hanuman Ji over plot no. 2338, whereas in his pleading, defendant No.1 came with the specific plea that temple of Lord Hanuman Ji exist over plot no. 2337 measuring area 9 dismil. In the light of the amendment made by the plaintiff in his plaint, which has been substantiated by the evidence, it would be difficult to infer that the construction allegedly raised by defendant No.1 over plot No.2338 was existing since last twenty years. The courts below have misread and misinterpreted the pleading of the parties and evidence on record in favour of defendant No.1. The findings returned by learned courts below with regard to the period of existence of the structure over the disputed plot No.2338 is not based on any evidence except the alleged admission made by the plaintiff by way of amendment application. Old plot no. 3008, area 0.09 dismil (new plot no. 2337) still recorded in the name of Abadi/Gaon Sabha and the plaintiff-appellant has no concern with it, which is in the possession of defendant no.1.
17. (III) After de-notification dated 24.09.1983 under Section 52 of the U.P.C.H. Act, the land revenue records were prepared as per order dated 28.03.1980 passed by the D.D.C. which has illegally been emphasized by the courts below. They failed to acknowledge the subsequent order dated 27.11.1987 passed by this court in Writ Petition No. 3992 of 1980, whereby order of D.D.C. dated 28.03.1980 has been quashed and matter has been remitted back to the D.D.C. for fresh adjudication. Subsequently, the revision was decided based on the compromise, and concerned Consolidation Officer has proposed amendment draft as per the compromise order passed by D.D.C. in revision.
17. (IV) In this conspectus, as above, I am of the considered view that plot no 2338, measuring area 0.86 dismil consist of plot no. 3015 area 0.82 acre, plot no. 3016 area 0.02 acres and plot no. 3019, area 0.02 acre were allotted in favour of the plaintiff and, during pendency of the civil suit, defendant no.1 has illegally encroached upon the partial area of aforesaid plot pretending it to be part and parcel of the temple. As per own admission of defendant no.1, structure of the temple exist over plot no. 2337 measuring area 0.09 dismil. Thus, prima facie, courts below have misread and misinterpreted the pleadings made by the parties and evidence on the record, and have given perverse finding, while deciding the issue No.2. Substantial question of law no.2 is answered accordingly.
18. Substantial question of law no.3 has been formulated on the contentions raised by learned counsel for the contesting defendant/respondent, as to whether concurrent finding of fact recorded by the courts below are liable to be interfered with, being perverse, illegal and capricious. As per discussion made by this court in preceding paragraphs, courts below have recorded perverse findings qua right and title of the plaintiff/appellant over the plot No.2338. They have misread and misinterpreted the pleading of the parties and the documentary evidence available on the record. Courts below have illegally, in ignorance of the provisions of the U.P.C.H. Act and Rules made there under, concluded that plaintiff is not entitled for any relief. They have illegally influenced with the land revenue entries which were prepared after de-notification u/s 52 of U.P.C.H. Act based on order dated 28.03.1980 passed by D.D.C. However, failed to consider the subsequent orders passed by Honble High Court in Writ Petition No. 3992 of 1980 and compromise order dated 26.02.1989/06.04.1989 passed by D.D.C. I constraint myself to repeat the facts and observations made by this Court in preceding paragraphs.
18. (I) This is no more res integra that jurisdiction of the High Court as a second appellate court under Section 100 of the CPC is limited to cases involving substantial question of law. Generally, it cannot interfere with concurrent finding of the fact recorded by the trial court and the first appellate court unless those findings are perverse, based on no evidence, ignore the material evidence, or result from a misapplication of law. Legislation is intended to prevent second appeal from becoming de facto third trial on the facts and to ensure finality in the litigation. Full Bench of Hon'ble Supreme Court in the matter of Divyagnakumari Harisinh Parmar and others vs. Union of India and others, Civil Appeal No. 1479 of 2006, reported in 2025 SCC OnLine SC 2064 has elucidated the scope of interference by the High Court in concurrent findings of fact recorded by the courts below. The relevant paragraph No. 39 to 43 are quoted hereinbelow:-
"39. The Appellants have further assuaged that the jurisdiction of the High Court in a second appeal under Section 100 of the CPC is narrowly circumscribed, and that it was not open to the High Court to interfere with concurrent findings of fact recorded by the Trial Court and the First Appellate Court. On this basis, the Appellants have sought that the High Court's findings be set aside.
40. At the very outset of our analysis on this issue, it becomes necessary to peruse Section 100 of the CPC, which provides that an appeal would lie before the High Court, from every decree passed in appeal by any court subordinate to the High Court, if it is satisfied that the case involves a 'substantial question of law'. The provision further elucidates that "...nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."
41. The legislative intent underlying Section 100 of the CPC is therefore unambiguous. It demarcates the jurisdiction of the High Court in second appeal to instances where a substantial question of law is involved, thereby precluding interference with concurrent findings of fact recorded by the courts below. This Court has, through a consistent line of authority, clarified that such a restriction is not absolute. The High Court may justifiably exercise its jurisdiction in a second appeal where the findings of the subordinate courts are vitiated by perversity, misreading of evidence, or a manifest disregard of settled legal principles.7
42. In Hero Vinoth v. Seshammal, this Court has eruditely delineated the contours of interference with concurrent findings of fact in the exercise of jurisdiction under Section 100 CPC. It was expounded that where findings of fact are arrived at by ignoring material evidence, by taking into account inadmissible evidence, or where the conclusions are so perverse that no reasonable or prudent person could have reached them, a substantial question of law would arise, thereby warranting interference. This Court held thus:
"19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, the one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.
24. The principles relating to Section 100 CPC relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a document is a question of fact.
But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below.
But it is not an absolute rule. Some of the well-recognised exceptions are where
(i) the courts below have ignored material evidence or acted on no evidence;
(ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or
(iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
[Emphasis Supplied]
43. What thus emerges from the above extracted case law is that, as a general rule, the High Court, while exercising its jurisdiction under Section 100 CPC, would not be justified in interfering with the concurrent findings of fact recorded by the courts below in a civil suit. Such interference is permissible, however, in the exceptional circumstances carved out in Hero Vinoth (supra), including where the findings on material aspects suffer from perversity, are founded on no evidence, or are vitiated by reliance on considerations wholly irrelevant to the matter in issue."
18.(II) In the case of Jaichand (Dead) through Lrs and Others vs. Sahnulal and another, Civil Appeal Nos. 14138-14139 of 2024, reported in 2024 SCC OnLine SC 3864, Hon'ble Supreme Court has explained the scope of second appeal under Section 100 CPC. Relevant paragraph Nos. 23 to 31 are quoted hereinbelow:-
"23. We are thoroughly disappointed with the manner in which the High Court framed the so-called substantial question of law. By any stretch of imagination, it cannot be termed even a question of law far from being a substantial question of law. How many times the Apex Court should keep explaining the scope of a second appeal under Section 100 of the CPC and how a substantial question of law should be framed? We may once again explain the well-settled principles governing the scope of a second appeal under Section 100 of the CPC.
24. In Navaneethammal v. Arjuna Chetty, (1996) 6 SCC 166 : AIR 1996 SC 3521, it was held by this Court that the High Court should not reappreciate the evidence to reach another possible view in order to set aside the findings of fact arrived at by the first appellate Court.
25. In Kshitisn Chandra Purkait v. Santhosh Kumar Purkait, (1997) 5 SCC 438), this Court held that in the Second Appeal, the High Court should be satisfied that the case involves a substantial question of law and not mere question of law.
26. In Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor, (1999) 2 SCC 471, this Court held:-
"Keeping in view the amendment made in 1976, the High Court can exercise its jurisdiction under Section 100, C.P.C. only on the basis of substantial questions of law which are to be framed at the time of admission of the Second Appeal and the Second Appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. A judgment rendered by the High Court under Section 100 C.P.C. without following the aforesaid procedure cannot be sustained."
27. This Court in Kondira Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722 : AIR 1999 SC 2213 held:-
"The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence."
28. It is thus clear that under Section 100, C.P.C., the High Court cannot interfere with the findings of fact arrived at by the first Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence.
29. The High Court in the Second Appeal can interfere with the findings of the trial Court on the ground of failure on the part of the trial as well as the first appellate Court, as the case may be, when such findings are either recorded without proper construction of the documents or failure to follow the decisions of this Court and acted on assumption not supported by evidence. Under Section 103, C.P.C, the High Court has got power to determine the issue of fact. The Section lays down:-
"Power of High Court to determine issue of fact: In any Second Appeal, the High Court may, if the evidence on the record is sufficient to determine any issue necessary for the disposal of the appeal,-
(a) Which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or
(b) Which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100."
30. In Bhagwan Sharma v. Bani Ghosh, 1993 Supp (3) SCC 497 : AIR 1993 SC 398, this Court held:-
"The High Court was certainly entitled to go into the question as to whether the findings of fact recorded by the first appellate court which was the final court of fact were vitiated in the eye of law on account of non-consideration of admissible evidence of vital nature. But, after setting aside the findings of fact on that ground the Court had either to remand the matter to the first appellate Court for a rehearing of the first appeal and decision in accordance with law after taking into consideration the entire relevant evidence on the records, or in the alternative to decide the case finally in accordance with the provisions of Section 103(b). ....... If in an appropriate case the High Court decides to follow the second course, it must hear the parties fully with reference to the entire evidence on the records relevant to the issue in question and this is possible if only a proper paper book is prepared for hearing of facts and notice is given to the parties. The grounds which may be available in support of a plea that the finding of fact by the court below is vitiated in law does not by itself lead to the further conclusion that a contrary finding has to be finally arrived at on the disputed issue. On a reappraisal of the entire evidence the ultimate conclusion may go in favour of either party and it cannot be prejudged."
31. In the case of Hero Vinoth v. Seshammal, (2006) 5 SCC 545 this Court explained the concept in the following words:
"It must be tested whether the question is of general public importance or whether it directly and substantially affects the rights of the parties.
Or whether it is not finally decided, or not free from difficulty or calls for discussion of alternative views.
If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
18. (III) In this conspectus, as above, I am of the considered opinion that the courts below have recorded a perverse finding with regard to the right and title of the plaintiff over the property in question, who is legally entitled to said property in view of the proceedings decided by the consolidation courts under the provisions of the U.P.C.H. Act and Rules made thereunder. Improvement, if any, made over the partial area plot no. 2338 area 0.086 hectare, allotted in favour of the plaintiff-appellant, has no bearing upon the right and title of the plaintiff over the aforesaid plot. He is legally entitled to the same and, accordingly, the suit is liable to be decreed.
Order
19. Instant second appeal succeeds and is allowed. The judgment and decree dated 06.09.2005, passed by Additional District and Sessions Judge, Fast Track Court No.1, Etawah in Civil Appeal No. 34 of 1998 and judgment and decree dated 27.02.1998, passed by First Addl. Civil Judge (J.D.) Etawah in Original Suit No. 335 of 1987, are hereby quashed. The original suit, being O.S. No. 335 of 1987, is decreed in its entirety.
20. Contesting defendant-respondent no.1, succeeded by his heirs and legal representatives, shall be evicted from the plot in question i.e. Plot No. 2338, measuring area 0.86 acre, which was allotted in favour of the plaintiff-appellant in chak allotment proceedings pursuant to the compromise order dated 25.02.1989/06.04.1989 passed by D.D.C. They are restrained from interfering with the plaintiff's peaceful ownership and possession over aforementioned plot. Improvements, if any, made on the aforesaid plot should be removed.
21. It is apposite to mention that this Court, in connected writ petition, Writ B No. 55684 of 2017 (Adesh Singh Bhadoria and another vs. District D.D.C./Collector Etawah and 3 others), has already issued a direction for demarcation and the delivery of possession in favour of the plaintiff-appellant (who is respondent No. 3 in the aforesaid writ petition), after removing the obstacles, if any. Thus, the compliance of the order of the date i.e. 17.10.2025 passed in Writ B No. 55684 of 2017 will suffice to redress the grievance of the plaintiff appellant, as prayed for in the plaint.
(Dinesh Pathak) October 17, 2025 Sumit/VR/Vinay/vkg.