Allahabad High Court
Lallan Prasad vs Ram Kishun Prasad And Others on 12 October, 1999
Equivalent citations: 2000(1)AWC382, 2000 ALL. L. J. 340, 2000 A I H C 1441, (1999) 2 ALL RENTCAS 809, 2000 ALL CJ 1 405, (2000) 2 CIVLJ 715, (2000) 1 ALL WC 382, (2000) 38 ALL LR 137
Author: G. P. Mathur
Bench: G.P. Mathur
JUDGMENT G. P. Mathur, J.
1. This is a defendant's appeal against the judgment and decree dated 26.2.1998 of 1st Additional District Judge. Ballia. affirming the judgment and decree dated 24.7.1996 of Civil Judge (Jr. Div.) decreeing the plaintiffs suit for arrears of rent amounting to Rs. 14.800 and for ejectment from the house in dispute.
2. The second appeal was filed in the office on 28.5.1998 but before that the plaintiff-respondents had put in a caveat. After hearing counsel for the parties, a learned single Judge passed an order on 29.5.1998 directing that the appeal be listed for further arguments on 6.7.1998 and till that date the dispossession of the defendant-appellants was stayed. On 6.7.1998 an order was passed to summon the record of the Courts below and the stay order was extended. Subsequently, the appeal was assigned for hearing to me. As the plaintiff-respondents were vehemently opposing the continuance of the stay order in favour of the appellants, it was directed on 18.9.1998 that the appeal itself may be finally heard at the admission stage. After hearing the learned counsel for the appellants, the following substantial questions of law were framed on 27.8.1999 :
"1. Whether the plaintiffs have established their title to the property prior to the date on which they claim to have let out the same to defendant No. 1?
2. Whether the plaintiffs have established that they let out the property to the defendant No. 1 in 1972?
3. Whether the suit as framed is maintainable?"
3. Thereafter learned counsel for the parties made their detailed submissions on the merits of the appeal.
4. The case set up by the plaintiffs in the plaint as filed on 2.12.1987 is as follows : The plaintiffs were owners of the house in dispute which is situate over plot No. 1998 in Bansdih town and Lallan Prasad defendant No. 1 was a tenant of the same. The defendant No. 1 was residing in the house as a tenant thereof for the last 15 years, i.e.. since May. 1972 on a rent of Rs. 400 per month. After paying rent for 5 years, the defendant No. 1 turned dishonest and instituted proceedings in the Tehsil in the year 1977 for getting his own name recorded over the house in dispute and also stopped paying rent. The plaintiffs contested the proceedings instituted by defendant No. 1 and the S.D.O. Bansdih passed an order on 27.3.1982 to the effect that the parties may get their title determined in the civil court. However, before the date of the said order, the defendant had instituted another proceeding on 13.11.1981 in which an ex parte order was passed in his favour on 31.10.1983 but the said ex parte order was recalled at the instance of plaintiffs on 23.2.1984. Another order was passed by the S.D.O.. Bansdih on 16.7.1987 by which 25 decimal area of plot No. 1998 was declared as abadi but the S.D.O. did not give any decision on the title of the parties on the ground of want of jurisdiction. The said order was also challenged by the plaintiffs by filing a revision before the Commissioner of the Division. The defendant No. 1 inducted some sub-tenants in the house and consequently the plaintiffs served a notice under Section 106. T. P. Act and Section 20. U. P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972, upon him. The plaintiffs also sent a notice dated 17.11.1987 under Section 111(g) T. P. Act, which was served by refusal. The case of the plaintiffs further is that an amount of Rs. 48,000 was due as arrears of rent from defendant No. 1 but as the arrears from August, 1977 to August, 1984 had become time barred, they were claiming rent only with effect from November, 1984 amounting to Rs. 14,800. Though the suit was cognizable by the Court of Small Causes but as the defendant had challenged the title of the plaintiffs and also on account of the order passed by the S.D.O.. the suit was being instituted in the civil court. The relief claimed in the suit was that the defendant No. 1 and his subtenants be evicted from house situate over plot No. 1998 in Bansdih town and possession be given to the plaintiffs. A decree for arrears of rent amounting to Rs. 14,800 and damages for use and occupation @ Rs. 400 per month was also claimed.
5. Lallan Prasad, defendant No. 1 atone contested the suit and the case set up by him in the written statement is as follows : The averments made in paragraphs 1 to 12 of the plaint are incorrect hence denied except for the fact that the defendant No. 1 had inducted defendant Nos. 2 to 8 as tenants in the house in dispute. The plaintiffs were never and are not the owners of the plot over which the disputed house stands and the same belongs to defendant No. 1. The defendant No. 1 was never the tenant of the plaintiffs nor any occasion for payment of rent by him arose. The defendant No. 1 had never moved any application for expunging the name of the plaintiffs nor there was any occasion for him to move any such application or to obtain any order from S.D.O., Bansdih. The land in dispute was owned by Late Basdeo Pandey. who being happy and pleased with the services rendered by the father of defendant No. 1 gave the land to them. The defendant No. 1 and his father started making construction over 48 decimal area of plot No. 1998 in the year 1965 A.D. As 48 decimal area of plot No. 1998 had lost its character as an agricultural land, an application was given to declare it as abadi, which was allowed by the competent authority. The name of Basdeo Pandey was expunged and the name of defendant No. 1 was recorded. The defendants had not received any notice alleged to have been sent by the plaintiffs. Defendant No. 1 had let out a portion of the house to Government Women's Hospital on 24.4.1973 and subsequently to Bhumi Vikas Bank (Land Development Bank) on 1.4.1977 and then to Forest Department on 1.4.1983. It was also pleaded that defendant No. 1 and his father had constructed the house and the name of Ram Kripal (father of defendant No. 1) was also engraved over the house in the year 1965. No rent was due to the plaintiffs from defendant No. 1 as he was residing in the house in dispute as owner thereof. No notice was ever served upon the defendant No. 1 nor he refused to accept any notice.
6. On the pleadings of the parties, several issues were framed, issue No. 1 was whether plaintiffs were owners of the disputed house and the defendant was in possession as a tenant thereof whose tenancy had been determined and whether he was liable, to be evicted. It is this issue which is of prime importance in the cases and the fate of the appeal depends upon the decision of this issue. The decision on other issues, some of which were decided in favour of plaintiffs, has not been challenged by the learned counsel for the appellants.
7. The plaintiffs examined three witnesses and filed some documentary evidence while defendants examined two witnesses and filed some documentary evidence in the trial court. The trial court recorded a finding that it is undisputed that the land in dispute belonged to Basdeo Pandey. It also recorded a finding that Sukhnandan Zamindar had let out the land in dispute to the father of plaintiffs in 1937 A.D. The lower appellate court has dealt with issue Nos. 1 and 2 in paragraph 8 of the judgment, which is a very long paragraph. The findings recorded in the said paragraph, which have a bearing on the controversy involved, are reproduced below :
".....the admitted position, which the parties to this appeal directly and indirectly almost concede, is that the subject-matter of the suit neither is ancestral property of the appellant nor that of respondent 1 set, but admittedly it was the joint property of Basudeo Pandey and Sita Ram Pandey to the extent of half and half respectively. The parties to this appeal, both the appellant, as defendant i set and respondents, as plaintiffs, have tried to derive their title from these two persons namely Basudeo Pandey and Sita Ram Pandey. The actual situation of the right, title and interest in respect of the subject-matter of the suit, therefore, is but bound to be scrutinised from the real and admitted owners Basudeo Pandey and Sita Ram Pandey....."
A similar finding which has been recorded later on reads as under :
.....Admittedly plot No. 1998, total area was not restricted to 45 decimals, but it was 96 decimals and initially it was owned by Basudeo Pandey and Sita Ram Pandey jointly. The appellant claimed in the Court below that 48 decimal portion, held by Basudeo Pandey, was given to the father of appellant by Basudeo Pandey and the appellant claimed in the Court below to have raised the constructions over there under the permission of Basudeo Pandey....."
8. Later on in paragraph 9 of the Judgment, a different finding has been recorded which reads as follows :
".....Contrary to that, the plaintiff succeeded to establish his title on the basis of the revenue entries. The plaintiff also filed in the Court below paper No. 202/C, the receipt. Issued by the Zamindar together with 1NTKHAB extract 12 years, 1378 fasli to 1390 fasli and those documents go to establish that the subject-matter of the suit and portion of plot No. 1998 was given by Sukh Nandan Zamindar to the father of the plaintiff, namely, Ganga Dayal on Shikmi and thereafter name of the plaintiff was endorsed in khatauni extract 12 years, carved out in pursuance thereof. The khatauni extract 12 yearly 1937 fasli also bears the endorsement of recording of the name and on the basis of that document, it is amply made out that the title already passed away to the plaintiff in respect of subject-matter of the suit....."
(The Year "1937 fasli" appears to be wrongly written for 1937 A.D.J
9. As mentioned earlier, the defendant-appellant specifically took a plea in the written statement filed by him that Basdeo Pandey was . owner of plot No. 1998 and he gave the same to his father. The plaintiffs only made an assertion in the plaint that they were owners of plot No. 1998 without disclosing as to how they became owner there. The names of Basdeo Pandey or Sita Ram Pandey or for that matter Sukh Nandan Zamindar is not at all mentioned in the plaint nor it is stated anywhere that they were owners of the plot. However, for holding that Basdeo Pandey was owner of the plot, the Courts below seem to have relied upon the statement of the plaintiff Radha Kishun Prasad, who examined himself as P.W. 1. In fact, the said statement, which is of some relevance, has been referred to by the learned Civil Judge. (Jr. Div.) while considering issue Nos. 1 and 2 and it is being reproduced below :
^^ ------------------------bl tehu ds lkfcd ekfyd ge yksxksa ds igys oklnso ik.Ms; FksA cklnso ik.Ms; ckalMhg ds FksA cklnso ds firk dk uke jke tru ik.Ms; FkkA fookfnr tehu ij cklnso dk dCtk lu~ 70 rd ns[krs jgsA lu~ 70 ds ckn fQj dgk fd lu~ 70 esa gh edku cukus ds fy;s ;g tehu cklnso ik.Ms; us fd;k ftl ij fookfnr edku gS ftldks ge oknh us cuk;sA cklnso 70 esa xehZ ds eghus esa fn;s-------------------A** Translated into English. It would read as follows :
"Before us Basdeo Pandey was the owner of the land. Basdeo Pandey belonged to Bansdih. The name of father of Basdeo was Ram Jatan Pandey. I used to see the possession of Basdeo over the land in dispute till the year 1970. Basdeo Pandey gave the land for construction of the house after the year 1970. Later on it was said that the land was given in the year 1970. over which we plaintiffs have constructed the house. Basdeo gave the land in the summers of 1970."
10. The lower appellate court has recorded two findings. One finding is that the land in dispute was owned by Basdeo Pandey and his brother Sita Ram Pandey to the extent of half and half and Basdeo gave the land to the plaintiffs. The second finding is that Sukh Nandan Zamindar gave the land in dispute to the father of plaintiffs Ganga Dayal as a sub-tenant and thereafter the name of their Father was recorded in the khatauni. There is not even a slightest whisper in the judgment of the Courts below which may show that Basdeo Pandey had any connection with the Zamindar Sukh Nandan. In fact no such averment has been made in the plaint. The names of Basdeo Pandey or his brother Sita Ram Pandey or the Zamindar Sukh Nandan are nowhere mentioned therein. The name of Sukh Nandan Zamindar is not at all mentioned either in the statement of the plaintiff or in the statement of any other witness examined by him.
No relationship of any kind is, therefore, established between Sukh Nandan Zamindar and Basdeo Pandey and they appear to be wholly independent persons not connected with each other. The findings recorded by the Courts below are. therefore, contradictory in as much as in one place it is said that Basdeo Pandey was the owner of the land who gave it to the plaintiffs and in another place, it is said that Sukh Nandan Zamindar was the owner who gave it to plaintiffs father as subtenant. If Sukh Nandan Zamindar gave the disputed land to the father of the plaintiffs in 1937, then there was no question of Basdeo Pandey remaining in possession thereof upto the year 1970 and his giving it to them in the summers of 1970 as deposed to by Radha Kishun Prasad plaintiff No. 2. In such a situation, it would have been ancestral property in hands of plaintiffs. On the contrary, the finding is that it is not ancestral property. In view of these contradictory findings, the conclusion drawn that plaintiffs are owners of the land in dispute does not logically follow and cannot at all be sustained.
11. The Lower Appellate Court has recorded a clear finding that the subject-matter of suit is not ancestral property of the plaintiffs or of defendant No. 1. The finding is that it was Joint property of Basdeo Pandey and Sita Ram Pandey. The plaintiff No. 2 Hart Kishan Prasad stated in his statement in Court that Basdeo Pandey remained in possession of the land in dispute till the year 1970 and he gave it to them in the summers of 1970 and thereafter the plaintiffs constructed the house. Title to an immovable property like land can be acquired by a person either by inheritance or by transfer like a sale deed or a gift deed or by a Will or by some other mode recognised by law. The finding of the Court below is that the land in dispute is not the ancestral property of the plaintiffs. It is admitted position that the plaintiffs have no relationship of any kind with Basdeo Pandey and in fact they belong to altogether different communities. There is not even a slightest whisper in the Judgment of the Courts below to show as to how the plaintiffs got the disputed land from Basdeo Pandey. It may be reiterated at the risk of repetition that it was nowhere pleaded in the plaint that the plaintiffs got the disputed land from Basdeo Pandey and in fact the name of Basdeo Pandey is nowhere mentioned in the plaint. A sale deed or gift deed of an immovable property can only be executed by a registered instrument. Even a Will has to be executed by means of a written document though it does not require registration. However, the plaintiffs have led absolutely no evidence to show as to how they acquired title to the disputed land, which till the year 1970 belonged to Basdeo Pandey. In this connection, it may be noticed that the defendant No. 1 had set up a case in his written statement that Basdeo Pandey. after having been pleased with the services rendered by him and his father, gave the disputed land to his father Ram Kripal sometimes before 1965. In support of this plea, he relied upon a Power-of-Attorney executed by Basdeo Pandey in favour of Ram Kripal in respect of 48 decimal area of plot No. 1998. The lower appellate court rejected the aforesaid claim put forward by defendant No. 1 with the following observations :
".....First of all, any document of transfer of title or of possession in respect of any immovable property is mandatorily required to be by way of a documentary transfer and that too must be registered document and if the conditions of registration of the documents bear any exception, as contemplated within the provisions of Registration Act, then mandatorily those conditions are required to be proved. A title of any immovable property, which is not ancestral of defendant i set in any circumstances, can be presumed to have been proved by oral averments of person or persons and no amount of oral evidence can prove a title in respect of immovable property....."
12. The view taken by the learned Additional District Judge that title to an immovable properly, which is not ancestral, could only pass through documentary transfer and that too must be a registered document and that no amount of oral evidence can prove title in respect thereof is perfectly correct in law. However, the learned Additional District Judge failed to apply the same principle insofar as the plaintiffs are concerned. Except for the statement in Court of plaintiff No. 2, there is no evidence at all on the record as to how the plaintiffs derived title to the property from Basdeo Pandey. Thus. In absence of any such evidence on record or finding in the judgment of the Courts below, the title of the plaintiffs to the property in dispute is not at all established. The learned Additional District Judge missed to consider the most important question involved in the case in absence of which the finding recorded by him that the plaintiffs are owner of the property and the defendant No. 1 is liable to be evicted cannot be sustained. Since a finding has not been recorded on a most important question involved in the case, the appeal has to be remanded back to the Court of District Judge for a fresh hearing.
13. Sri V. K. S. Chaudhary, learned senior advocate for the appellants has vehemently urged that the finding recorded by the learned Additional District Judge that Sukh Nandan Zamindar gave the disputed land to Ganga Dayal (father of plaintiffs) as sub-tenant in 1937 A.D. and thus, the title passed to the plaintiffs has been arrived at in a manner contrary to the settled position of law. It is urged that the plaintiffs had never set up a case in the plaint that Sukh Nandan Zamindar had given the land to the plaintiffs father as sub-tenant in 1937 A.D. and in absence of such a pleading, no amount of evidence could be looked into to support such a plea. In support of this proposition, the learned counsel has placed reliance on Siddik Mohammad v. Mt. Saran, AIR 1930 PC 57 ; Bhagat Singh v. Jaswant Singh. AIR 1966 SC 1861 : M. M. B. Catholics v. T. Polou Avira, AIR 1959 SC 31 and Nagur Palika, Jind v. Jagat Singh, (1995) 3 SCC 426. Shri Sidheshwari Prasad, learned senior advocate for the respondents has submitted that the issues framed by the trial court were wide and parties understood the scope thereof and adduced such evidence as they wanted to and as such no prejudice has been caused to the defendants and in such a situation the contention regarding absence of a detailed pleading cannot be accepted. In support of his submission, he has placed reliance upon Union of india v. United india insurance Company, (1997) 8 SCC 683. The authority relied upon by the learned counsel for the respondents relate to a claim of compensation before Motor Accident Claims Tribunal. The proceeding before the Claims Tribunal are summary in nature and are governed by Motor Vehicles Act and the detailed procedure prescribed by the Code of Civil Procedure is not applicable there. The case in hand was instituted in the civil court and is governed by the provisions of C.P.C. In such a case, it is not possible to permit the plaintiff to go outside the pleadings and set up a new case at the stage of evidence. The defendant-appellant had no notice that he had to meet a case that the Zamindar Sukh Nandan had inducted the plaintiffs father as a sub-tenant in 1937 A.D. and through him the plaintiffs derived title. That apart, such a case is also contradictory to the own statement of plaintiff No. 2 that Basdeo Pandey was owner and in possession of the disputed land till 1970 and that it was Basdeo Pandey who gave the land to the plaintiffs.
14. Shri Chaudhary has next urged that not only the evidence adduced by the plaintiffs on the point that Sukh Nandan Zamindar inducted their father as a sub-tenant in 1937 A.D. was brought on record in an illegal manner and had not been legally proved but was also a forged document. The order sheet of the trial court shows that the cross-examination of the last witness of the plaintiffs, namely, P.W. 3 was completed on 23.2.1995 and thereafter 6.3.1995 was fixed for defendants evidence. The cross-
examination of the defendants' witnesses was completed on 30.3.1995. On 17.4.1995, the defendant filed an application praying permission of the Court to file a document, which was allowed, and the plaintiff was given time upto 24.4.1995 to file any documentary evidence in rebuttal. On 24.4.1995 no document was filed by the plaintiffs and arguments on their behalf were heard. Thereafter the arguments were again heard on 25.4.1995 and on 26.4.1995, the plaintiffs moved an application 201-GA (201-C). Along with the application two receipts purporting to have been executed by Sukh Nandan Zamindar in favour of Ganga Dayal (father of the plaintiffs) and copy of khasra of 1378 to 1390 fasti was filed. It is noteworthy that no exhibit mark was put on either of these documents. There is one thumb impression on each receipt and then it is mentioned that the same was that of Sukh Nandan. The receipts are private documents. The plaintiffs made no effort to prove the aforesaid receipts to show that they were in fact executed by Sukh Nandan. In the statement of the witnesses examined on behalf of the plaintiffs, there is no reference of these receipts at all. The receipts have been filed at the stage of arguments and no attempt has been made to prove the same by examining any witness or by leading some other evidence and they remained wholly unproved. Order XIII. Rule 1, C.P.C.. lays down that the parties shall produce at or before the settlement of issues all the documentary evidence of every description on which they intend to rely. The receipts were filed at the stage of argument contrary to the aforesaid provision. Shri Chaudhary has also drawn attention of the Court to certain inherent features, which show that they are forged documents. The receipts are in a printed proforma in Hindi language and towards the bottom of the receipt, there is a note to the following effect :
^^,sDV dCtk vkjkth la;qä izkUr dh nQk 133 dks blls gj yxku ;k l;kj dks vnk;xh dh ckcr vyx&vyx jlhnsa nsuh pkfg;sA**
15. If the note is translated into English, it would mean that in accordance with Section 133 United Provinces Act separate receipts regarding payment of rent or sayar should be given. Sub-section (1) of Section 133 of U. P. Tenancy Act, 1939, lays down that every tenant. lessee or licensee who makes a direct payment on account of rent or sayar shall be entitled to obtain forthwith from the land-holder a written receipt for the amount so paid, signed by the land-holder. Sub-section (2) of this section provides that the land-holder shall, from a book printed under the provisions of Section 136, give a separate receipt for each sum paid on account of rent or sayar. Section 136 of the same Act provides that the State Government shall cause to be printed and kept for sale to land holders books of receipts in the form prescribed by Schedule V. The language of the note printed at the bottom of the receipt makes a reference of Section 133 of U. P. Tenancy Act, 1939 and indeed the receipt purports to have been given in compliance of Section 133. This Act received the assent of the Governor on December 6, 1939, was published in Gazette on December 16, 1939 and it came into force on 1.1.1940. The first receipt filed by the plaintiffs bears the date "19.3.1937". On the said date i.e., on 19.3.1937, the U. P. Tenancy Act had not even seen the light of the day as the same came into existence much later. On the date when the receipt was issued, it was the Agra Tenancy Act, 1926. which was in force which does not contain any provision similar to Sections 133 or 136. The receipt has been issued on a printed form which came into existence after the enforcement of U. P. Tenancy Act. 1939. Thus, there is a great substance in the submission of the learned counsel for the appellant that the receipt dated 19.3.1937 filed by the plaintiffs is a forged document and had been prepared much later. However, these are all questions of fact and it will not be within the realm of a second appeal to go into all these questions. It is for the Court of fact to consider whether the documents filed by the plaintiffs are forged or genuine and also whether they have been legally proved. Since 1 am remanding the appeal for a fresh hearing it will be open to the lower appellate court to examine the contentions raised by the defendant-appellants in this regard.
16. Issue No. 1 also comprises within its ambit the question as to whether the defendant was a tenant of the house in dispute. Lallan Prasad, defendant No. 1 denied that he was inducted as a tenant or that he was in occupation of the building as a tenant thereof. On the contrary, he set up a plea that he was owner of the building. This was an important point for consideration in the case. Learned Civil Judge (Jr. Div.) has merely observed that the plaintiffs version finds corroboration from Paper No. 165-Ga and 162-Ga and the factum of letting out is established from oral evidence. Thereafter it is observed that defendant is found to be a tenant of the house in dispute. Paper No. 165-Ga is an application dated 8.8.1980 moved by defendant-appellant Lallan Prasad before Sub-Divisional Officer. Bansdih, under Section 122 (c) of U. P. Z. A. and L. R. Act, wherein, a prayer is made that as his house is situate over 0.25 acre area of plot No. 1998 the same may be recorded as abadi. Paper No. 162C is a certified copy of the application given by the defendant Lallan Prasad before Tehsildar, Bansdih, on 13.11.1981 stating that his house is stating over 25 decimal area of plot No. 1998 for the last 20 years but the said plot was continuing in the name of Uma Nath Pandey. It was prayed that the name of Uma Nath Pandey be expunged and the plot be recorded as abadi under clause 6 iD. It is not at all understandable as to how the aforesaid two applications moved by the defendant establish the plaintiffs case that the house in dispute was let out by him to Lallan Prasad, defendant No. 1. In appeal, the learned Additional District Judge did not at all go into this question and did not consider the evidence on record to find out whether the defendant No. 1 had been let out the house in dispute by the plaintiffs. Shri Sidesnwari Prasad, learned counsel for the plaintiff-respondents has submitted that as the Lower Appellate Court was affirming the judgment of the trial court, it was not obligatory upon it to consider the evidence in meticulous detail and the finding recorded by it shows that it was in agreement with the findings of the trial court. It is true that if an appellate court is affirming the judgment of the trial court, it is not necessary for it to meticulously consider the entire evidence which has been adduced by the parties and an agreement with the reasonings and findings recorded by the trial court may be enough. However, in the present case. I find that the learned Additional District Judge did not at all advert his mind to the question, which is an important one in the case, namely, whether the house had been let out to defendant No. 1 and he was in occupation thereof in the capacity of a tenant. The lower appellate court being the last Court of fact, a duty is cast upon it to examine the evidence and record a finding on all the relevant points. In the case in hand, the learned Additional District Judge has not at all adverted his mind to the evidence adduced by the parties on the question of letting. The observations made by him in paragraph 11 of the judgment are absolutely general in nature and cannot be interpreted to mean that he has expressed his agreement with the finding of the trial court on the point of letting. Such type of observation can be made without looking into the record and in any kind of litigation be it a suit for recovery of money or for specific performance of agreement or for cancellation of document. Since the case is being remanded for rehearing of the appeal, the lower appellate court will apply its mind to the controversy raised and record a finding after considering the evidence adduced by the parties.
17. Sri Chaudhary.-- learned counsel for the appellants has next urged that the Courts below have erred in relying upon the entry made in khasra and khatauni of 1395 fasli wherein over an area of 45 decimal of plot No. 1998 the name of the plaintiffs have been recorded as the said entry has been made on the basis of an ex parte order and the defendant had already applied for setting aside of the said ex parte order. It is urged that the year 1395 Jasli corresponds to 1987 A.D. and the plaint was filed on 2.12.1987 after the entry had been made in favour of the plaintiffs. In paragraph 2 of the plaint it is stated that the defendant No. 1 had been let out the house in dispute in the year 1972. it is thus urged that an entry made in the year 1987 could not be relied upon to hold that the plaintiffs are the owners of the property. in my opinion, the contention raised relates to appreciation of evidence, which cannot be done in the present second appeal. Learned counsel has also urged that the inference derived from the judgment rendered in O.S. No, 184 of 1990, Lallan Prasad v. Radha Kishun are wholly erroneous as the said suit related to a different property and Second Appeal No. 891 of 1992 had been filed by Lallan Prasad against the decree passed in the aforesaid suit in the High Court, which is still pending, though the same has not been admitted so far. The aforesaid case was a suit for injunction filed by Lallan Prasad and it was with regard to another portion of plot No. 1998, which was adjoining to the land and building which is subject-matter of dispute in the present appeal. It appears that plot No. 1998 is a big plot of which 0.48 acres (48 decimal) is subject-matter of dispute in the present case while 0.23 acres (23 decimal) was subject-matter of dispute in O.S. No. 184 of 1990. The Judgment of the District Judge given in appeal against the decree passed in O.S. No. 184 of 1990 shows that a finding was recorded that the suit had to be abated under Section 5 of U. P. Consolidation and Holdings Act but in the operative portion, it was mentioned that the appeal is dismissed. Again what weight has to be attached to the findings recorded in the other suit being O.S. No. 184 of 1990 is to be considered by a Court of fact and not by this Court.
18. Shri SIdeshwari Prasad, learned counsel for the plaintiff-respondents has strenuously urged that after amendment to Section 100, C.P.C. In the year 1976, a second appeal lies only on a substantial question of law and the points raised by the learned counsel for the appellants are not substantial question of law, which may justify interference by this Court. In support of his submission, learned counsel has placed reliance on Panchugopal Barua v. Umesh Chandra Goswami, (1997) 4 SCC 713 ; Kshitish Chandra Purkait v. Santosh Kumar Purkait and others. JT 1997 (5) SC 202 and Sheel Chand v. Prakash Chand, 1998 (2) ACJ 1595 (SC). Learned counsel for the appellants has on the other hand contended that the points raised have a serious bearing on the decision of the suit and, therefore, they are substantial questions of law justifying interference in a second appeal. He has also urged that it is not necessary that the questions of law should be of general importance and it is enough if the decision on the questions of law raised in the appeal entails a reversal of the decree passed by the Court below. The words "substantial questions of law" have not been defined in the Code. Section 110 of the old C.P.C. provided for an appeal to Privy Council on some "substantial question of law" in certain circumstances. While considering the scope of the aforesaid provisions, the Privy Council in Raghunath Prasad Singh v. Deputy Commissioner, AIR 1927 PC 110, observed as follows :
"A substantial question of law does not mean a question of general importance but the words "substantial question of law" mean a substantial question of law as between the parties in the case involved."
19. In Deputy Commissioner, Hardoi v. Rama Krishna Narayan and others, AIR 1953 SC 521, it was observed that the ground on which the appeal was dismissed by the High Court raised a question of law of importance to the parties and that being so, on that ground alone, the appellant was entitled to a certificate under Section 110, C.P.C. In PankaJ Bhargawa v. Mohinder Nath, AIR 1991 SC 1233, the Court quoted with approval the following statement of law laid down in Sir Chuni Lal V. Mehta and Sons v. Century Spinning, AIR 1962 SC 1314 :
".....The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is 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."
20. In Nagar Palika, Jind v. Jagat Singh, (1995) 3 SCC 426, it was observed as follows :
"The onus to prove title to the property in question was on the plaintiff-respondent. The Court of appeal without considering the question whether the plaintiff-respondent had proved his title to the property in dispute proceeded to examine whether the respondent was in possession thereof. In a suit for ejectment based on title, it was incumbent on the part of this Court of appeal first to record a finding on the claim of title to the suit land made on behalf of the respondent. The Court of appeal never inquired or investigated that question which was at issue saying that the title of the plaintiff-respondent was admitted by the appellant. This was a serious error of record. The title and possession of the respondent had always been disputed by the appellant from the stage of the written statement. In this background, suit of the respondent could not have been decreed merely on the basis of entries in the revenue records during the pendency of the earlier suit filed in the year 1971. A substantial question of law was involved in the second appeal presented before the High Court against the judgment of the Court of appeal and the High Court ought to have interfered and set aside the judgment of the Court of appeal."
21. In my opinion, the principle laid down in the case of Nagar Palika, Jind (supra). Is directly applicable to the case in hand. The Courts below have recorded contradictory findings to the effect that Sukh Nandan Zamlndar inducted the father of the plaintiffs as sub-tenant in 1937 A.D. from whom the plaintiffs inherited the property, that the land was not ancestral in the hands of the plaintiffs and that Basdeo Pandey was the owner in possession of the property who gave it to the plaintiffs in the year 1970 A.D. They have further recorded a finding that Basdeo Pandey was admittedly the owner of the property who gave it to the plaintiffs but failed to consider the question as to how title passed from Basdeo Pandey to the plaintiffs. This question directly and substantially affects the rights of the parties as a decision thereon may result in reversal of the decree passed by the lower appellate court. The question whether Sukh Nandan Zamindar inducted the father of the plaintiffs as a sub-tenant, on the facts and the circumstances pointed out in the judgment also directly and substantially affects the rights of the parties. The third question relating to letting out is also of equal importance. I am, therefore, clearly of the opinion that the points raised by the appellants involve substantial question of law which Justify interference by this Court in a Second Appeal.
22. The appellant filed an application under Order XLI, Rule 27. C.P.C. to file some additional evidence. It is not the function of this Court to appraise evidence in a second appeal. The application is accordingly rejected. One Uma Nath Pandey. son of Tarkeshwar Pandey moved an application under Order i. Rule 10 and Section 151. C.P.C. on 11.1.1999 praying that he may be impleaded as respondent No. 10 to the appeal. Learned counsel who filed the application did not appear in Court on any date when the appeal was being heard. No permission can be granted to implead a party in a second appeal. This application is also rejected.
23. In view of the discussion made above, the second appeal succeeds and is hereby allowed. The Judgment and decree dated 26.2.1998 passed by the 1st Additional District Judge is set aside and the appeal is remanded for a fresh decision. Learned District Judge, Ballia, is directed to hear and decide the Civil Appeal No. 79 of 1996 filed by Lallan Prasad a fresh and in accordance with law. The record of the trial court shall be sent back immediately. The appellant shall be entitled to his costs.