Allahabad High Court
Shiv Narain And Others vs Kallu And Others on 4 March, 2024
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Neutral Citation No. - 2024:AHC:38396 Court No. - 65 1. Case :- SECOND APPEAL No. - 906 of 1986 Appellant :- Shiv Narain And Others Respondent :- Kallu And Others Counsel for Appellant :- B.K. Srivastava,Dheeraj Srivastava Counsel for Respondent :- Radhey Shyam,Akhilesh Tripathi,Ashish Kumar Yadav,Ashutosh Srivastava,I. N. Singh,J.C. Dwivedi,Rajesh Dwivedi,S.C.Dwivedi,Suresh Chandra Varma With 2. Case :- WRIT - B No. - 611 of 1996 Petitioner :- Sukhram And Others Respondent :- D.D.C. And Others Counsel for Petitioner :- Bk Srivastava,Dheeraj Srivastava Counsel for Respondent :- Radhey Shyam,Akhilesh Tripathi,Ashish Kumar Yadav,Ashutosh Srivastava,I. N. Singh,S.C.,Satyendra Nath Srivastava With 3. Case :- WRIT - B No. - 23691 of 1987 Petitioner :- Jag Nandan Respondent :- D.D.C. Counsel for Petitioner :- B.K. Srivastava,Dheeraj Srivastava Counsel for Respondent :- S.C.,A.K. Srivastava,Akhilesh Tripathi,Ashish Kumar Yadav,Ashutosh Srivastava,I. N. Singh,K.P. Srivastava,R. Shyam,Satyendra Nath Srivastava With 4. Case :- WRIT - B No. - 1135 of 1988 Petitioner :- Raghu Nandan And Others Respondent :- D.D.C. And Others Counsel for Petitioner :- B.K. Srivastava,Dheeraj Srivastava Counsel for Respondent :- S.C.,Akhilesh Tripathi,Ashish Kumar Yadav,Ashutosh Srivastava,I. N. Singh,K.P. Srivastava,Radhey Shyam,Satyendra Nath Srivastava Hon'ble Raj Beer Singh,J.
1. All the above-referred four cases are connected with each other and thus, the same are being decided by this common judgment.
2. The Second Appeal No. 906 of 1986 (Shiv Narain & Ors. v. Kallu & Ors.) has been preferred against the judgement and decree dated 05.03.1986 passed by the 4th Additional District Judge, Allahabad in Civil Appeal No. 573 of 1982 and civil appeal No. 890 of 1983, whereby, the appeal No. 573/1982 filed defendant / respondent No. 1 Kallu, was allowed reversing the judgement and decree dated 04.08.1982 passed by 1st Additional Munsif Magistrate, Allahabad in suit No. 184 of 1982, decreeing the plaintiffs-appellants suit for declaration. The appeal No. 890 of 1983 filed by the plaintiffs was dismissed.
3. Writ-B No. 611 of 1996 (Sukhram & Ors. Vs. D.D.C. & Ors.) has been filed for quashing of order dated 27.09.1995, passed the Deputy Director of Consolidation, Allahabad (Respondent No. 1).
4. Writ-B No. 23691 of 1987 (Jag Nandan Vs. D.D.C.) has been filed preferred by Jag Nandan for quashing of orders dated 02.12.1987 and 29.08.1987 passed by Respondent No. 1 and respondent No. 2 respectively.
5. Writ-B No. 1135 of 1988 (Raghu Nandan & Ors. Vs. D.D.C. & Ors.) has been preferred by Raghu Nandan and others for quashing of order dated 28.08.1973 and 05.01.1988, passed by the D.D.C., Allahabad.
6. Perusal of record shows that dispute is regarding the property left by one Mata Badal situated at village Malakamai Bhaisahi. The pedigree of the parties show that one Sheo Lal was the common ancestor of the appellants and the respondents. Property in dispute was acquired by Sheo Lal and he was survived by his three sons namely Bhawan, Bachai and Sadhan. Bhawan was survived by his son Mata Badal. Ram Dhan son of Bachai died issueless. Sadhan was survived by his son Jagannath. In accordance with the provisions of U.P. Tenancy Act, Jagannath, who was co-sharing with Ram Dhan, had succeeded the interest of Ram Dhan in preference to the sons of Mata Badal, who was remote in degree. In view of these facts the share of Jagannath and his descendents in the property in dispute had become 2/3rd and the share of the sons of Mata Badal had become 1/3rd only. The appellants as well as the respondent No.1 namely Kallu belong to the branch of Mata Badal S/o Bhawan and other respondents belong to the branch of Jagannath S/o Sadhan. After his death, Mata Badal was survived by his his three sons, namely Ram Harakh, Ram Autar and Ramanand. Ramanand died issueless and thus, his share had been vested in Ram Autar and Ram Harakh. Ram Autar died in the year 1975 and he was survived by a daughter. As per the appellants, after death of Ramanand, Ram Autar and Ram Harak, mutation was made in the name of Badri and Shi Narayan (appellants). During consolidation operation the shares of the appellants and the respondent (except respondent No. 1 Kallu) were determined as ½ and ½ in the disputed property. The respondent No. 1 Kallu has filed a suit for declaration claiming himself son of the daughter of Ram Autar but while the matter was pending before this court in appeal, the proceedings were abated due to consolidation operation.
7. The respondent No. 1 Kallu filed objections under section 9-A (2) of U.P. Consolidation of Holdings Act (hereinafter referred as C.H. Act) claiming himself to be son of the daughter of Ram Autar and also claimed a Will in his favour but his claim was rejected by the Consolidation Officer and the appellants were held entitled for ½ share. The respondent Kallu filed an appeal before the Settlement Officer, which was allowed by the ex-party order dated 10.01.1969. Appellant Shiv Narayan and others filed an application for recalling of said ex-party order and for hearing of appeal on merits but it was rejected vide order dated 09.05.1969. Appellant Shiv Narayan and others filed revision No. 697 against ex-party order dated 10.01.1969 and another revision No. 698 against order dated 09.05.1969 but both the revision were dismissed by the Deputy Director of Consolidation (hereinafter referred as DDC) by a common order dated 04.11.1969. Against said order dated 04.11.1969, the appellant Shiv Narain and others have filed a writ petition No. 924/1970 before this court, which was also dismissed vide order dated 25.02.1970.
8. In view of above referred sequence of events, the plaintiffs / appellants Shiv Narain and others have filed the Civil Suit No. 184 of 1972 against the respondent No. 1 Kallu, for declaration to the effect that the order dated 10.01.1969, the order dated 09.05.1969 passed by the Settlement Officer and the order dated 04.11.1969 passed by the DDC be declared null and void and also to pass prohibitory decree for non-interference in the disputed property. In the plaint, the plaintiffs have inter- alia alleged that originally the owner of the disputed property was Mata Badal, who died leaving his three sons, namely Ram Harakh, Ram Autar and Ramanand. As Ram Autar was working as 'Karta' of the family, thus, his name was entered into the record regarding the disputed property. Ramanand was issueless and he died intestate and thus, his share was vested in Ram Autar and Ram Harakh. Ram Autar died in the year 1975 and his share was inherited by his legal heirs/plaintiffs and their names were entered into the revenue record. The respondent / defendant Kallu claimed himself to be son of the daughter of Ramanand. As Ramanand has died during the life time of his brothers, namely Ram Harakh and Ram Autar, thus, the respondent Kallu has no right in the property left by Ramanand. The respondent / defendant Kallu has filed a suit claiming right over the property of Ram Autar but while the matter was pending before the High court, the consolidation proceedings were initiated and the said proceedings were abated. The respondent/ defendant Kallu has filed objections before Consolidation Court claiming himself as son of the daughter of Ram Autar but same were rejected. The respondent / defendant Kallu has filed an appeal against that order before the Settlement Officer and in that appeal on 27.12.1968 the next date was fixed as 24.01.1969 but the respondent and the reader of Settlement officer's court, kept the plaintiffs in dark and the appeal was heard on 09.01.1969 and thereafter it was allowed by the ex-parte order dated 10.01.1969. The plaintiffs came to know about that fact on 24.01.1969 and they filed an application for restoration and hearing of the said appeal on merits but it was rejected vide order dated 09.05.1969. The plaintiffs have filed two separate revisions against the order dated 10.01.1969 and 09.05.1969, before the DDC, which were dismissed by common order dated 04.11.1969. The plaintiffs preferred a writ petition before the High Court but it was also dismissed. It was further alleged by the plaintiffs that the order dated 10.01.1969 was obtained by playing fraud and conspiracy and it was passed by violating the principles of natural justice. It was further alleged by the plaintiffs that on the basis of said orders the defendant has threatened to interfere in the peaceful possession of the plaintiffs and use of the disputed property and thus, the civil suit was filed.
9. The defendant Kallu (respondent No.1 in this appeal) has filed written statement alleging that the property situated at Paradi was acquired by deceased Ram Autar separately. The defendant is son of the daughter of Ram Autar and thus, he was sole legal heir of the property left by Ram Autar and he is in possession of the said property. The orders of the Settlement officer and the DDC are legal and valid. The order of Consolidation Court has already been upheld by the High Court. Both the parties have already contested the matter before the civil court and the consolidation courts and that the defendant was found sole legal heir of deceased Ram Autar. It was alleged that in proceedings under Section 145 Cr.P.C. also the possession of defendant was found. The order of consolidation court has become final and the same cannot be disputed.
10. The trial court has framed following five issues:-
(I). Whether the disputed orders dated 10.01.1969, 09.05.1969 and 04.11.1969 are illegal, void and ineffective.
(II). Whether the valuation of the suit is less and the court fee paid was insufficient.
(III). Whether the court has no jurisdiction to decide the suit.
(IV). Whether the suit is barred by Section 49 of the Consolidation Act.
(V). Whether the plaintiffs are owner and in possession of the disputed property.
11. After hearing, regarding issue No. 4 the trial court has held that the relief of injunction is barred by the provisions of Section 49 of the C.H. Act but relief sought for declaration was not barred. Regarding issue No. 5 the trial court has held that in view of the facts and circumstances of the case, this issue was useless and thus, there was no necessity for deciding the same. Regarding issue No. 1 the trial court came to the conclusion that the orders dated 10.01.1969 and 09.05.1969 passed by the Settlement Officer, Consolidation and the order dated 04.11.1969 passed by the DDC are void and ineffective and that the order passed by the High Court is not based on merits. On the basis of these conclusions, the trial court has decreed the civil suit filed by the plaintiffs in respect of declaration and the above-referred impugned orders dated 10.01.1969, 09.05.1969 and 04.11.1969 were declared illegal, void and ineffective vide judgment and order dated 04.08.1982., however regarding relief of injunction, the suit was dismissed.
12. The respondent / defendant Kallu challenged the said judgment and decree dated 04.08.1982 by filing civil appeal No. 573 of 1982. The plaintiffs have also filed a civil appeal (No. 890 of 1983) against the part of same judgement against rejection of the relief of injunction. Both the appeals were decided by the first appellate court by the common judgment and decree dated 05.03.1986 passed by the IVth Additional District Judge, Allahabad. The appellate court has observed that the main point to be decided in the appeal is whether any fraud has been played by defendant Kallu on the plaintiffs during the appeal pending before the Settlement Officer, Consolidation. After hearing and considering the evidence of both the parties, the appellate court concluded that no fraud or manipulation has been proved by the plaintiffs and the learned Munsif has given erroneous conclusion that there was fraud played by the defendant Kallu on the plaintiffs. The appellate court held that the findings of learned Munsif are against the evidence on record. On the basis of these conclusions, the civil appeal No. 573 of 1982 filed by the defendant Kallu was allowed and the civil appeal No. 890 of 1989 filed by the plaintiffs was dismissed vide judgment and order dated 05.03.1986.
13. Being aggrieved, the plaintiffs Shiv Narain and others have filed the present second appeal No. 906 of 1986 against the aforesaid judgement and decree dated 05.03.1986 passed by the first appellate Court/ 4th Additional District Judge, Allahabad in civil appeal No. 573 of 1982.
14. Heard learned counsel for the appellants, learned counsel for the respondent No. 1 and learned counsel for the respondents No. 2 to 8 and perused the record.
15. During pendency of this appeal, several appellants and defendants have passed away and their legal heirs were substituted.
16. While admitting the second appeal, following substantial question of law was formulated by this court:
''Whether the lower appellate Court is justified in observing that the particulars of fraud were not pleaded specifically in view of allegations in para No. 7 of the plaint.''
17. Learned counsel for the appellants submitted that impugned judgement is against facts and law and thus, liable to be set aside. The appellate Court below did not analyse the evidence in correct perspective and findings of the trial court based on evidence were reversed without assigning proper reasons. The respondent No. 1 Kallu has wrongly claimed himself as son of the daughter of Ram Autar. He has filed a suit for declaration of this effect but while the matter was pending before this court in second appeal, the case was abated due to consolidation operation in the village and thus, the judgment rendered in suit and first appeal became non-existent. During consolidation operation, the shares of appellants and the respondents (except respondent No. 1 Kallu) were ½ and ½ in the disputed property. The respondent No. 3 Kallu filed objection under section 9-A (2) of C.H. Act claiming himself to be son of the daughter of Ram Autar and also claimed a will in his favour but his claim was rejected by the Consolidation Officer and the appellants were held entitled for ½ share. The respondent Kallu filed an appeal before the Settlement Officer against the aforesaid order of the Consolidation officer. In the plaint there were clear averments that the appeal was fixed for 27.12.1968 but it was not taken up for hearing and that the defendant practised fraud and manipulated things in a manner that the reader of the court informed the plaintiff that the next date is 24.01.1969 but later on the appeal was allowed by the ex-parte order dated 10.01.1969. It was submitted that there are specific averments in the plaint as to how the respondent / defendant has played fraud through the reader of the said court by informing a false date of hearing. It was submitted that in view of specific pleadings, the first appellate court was not justified in observing that the particulars of fraud were not pleaded specifically in view of allegations in para No. 7 of the plaint. Learned counsel for the appellants has placed reliance upon the case of Ladli Prashad Jaiswal v. The Karnal Distillery Co. Ltd., Karnal & Ors., AIR 1963 SC 1279, Gaya Prasad & Ors. v. Laxmi Narayan, 2019(7) ADJ 821, Bishudeo Narain Vs Seogeni Rai AIR (38) 1951 SC 280, Malluru Mallappa Vs Kuruvathappa 2020 (4) SCC 313, Arumugham Vs Sundarambal 1999(5) Supreme 44 and Varanasaya Sanskrit Vishwavidyalaya & Anr. v. Rajkishore Tripathi & Anr., AIR 1977 SC 615 .
18. Learned counsel for respondent No. 1 has submitted that there is no illegality or perversity in the impugned judgment. Mere general allegations of fraud have been pleaded by the appellants / plaintiffs that in connivance with the respondent No. 3 / defendant, the reader of the court of Settlement Officer has told wrong date of hearing. It was not specified as to how the alleged fraud was played. Such general and vague averments are insufficient to be considered as specific averment of fraud. Learned counsel has placed reliance upon the case of General Manager, Electrical Rengali Hydro Electric Project, Orissa & Ors. v. Giridhari Sahu & Ors., (2019)10 SCC 695 and Malluru Mallappa(D) Thr. LRS. v. Kuruvathappa & Ors., [ Civil Appeal No 1485 of 2020], decided on 12.02.2020.
19. Learned counsel for the remaining respondents submitted that the this Second Appeal has nothing to do with the claim of the respondents No.2 to 8, as in the appeal dispute only between the appellants and the respondent No.1 Kallu is to be decided. It was stated that neither the respondent No. 2 to 8 were made party before the trial Court in the suit nor before the first appellate court and no relief was sought against them. Now for the first time they have been made party in the Second Appeal before this Court even without seeking any relief against them. It was submitted that it is settled principle of law that in Second Appeal the questions decided by the trial Court in the suit and by the first appellate Court in appeal, between the plaintiffs and defendants, are only to be decided and not otherwise and thus, no adverse order could be passed against the respondent No. 2 to 8 in this appeal. On merits it was submitted order dated 10.01.1969 passed by the Settlement Officer has been upheld by the DDC as well as by this court. After losing the case upto this Court, plaintiff Shiv Narain filed Civil Suit for declaration. For the first time plaintiff Shiv Narain in this suit has levelled allegation of fraud and misrepresentation against defendant Kallu and that too even without disclosing the necessary particulars of that fraud and misrepresentation in the plaint, as required under the provisions of order 6 Rule 4 of C.P.C. It was stated that the plaintiff-appellant was called upon to specify clearly the particulars of the fraud and misrepresentation of defendant Kallu as required under the provisions of Order 6 Rule 4 of C.P.C. but the plaintiff-appellant have not specified the particulars of fraud and misrepresentation against defendant Kallu before the Courts below. The allegations made in para 7 and 14 of the plaint regarding alleged fraud and misrepresentation practiced by defendant Kallu are vague and do not satisfy the requirement of the provisions of Order 6 Rule 4 of C.P.C. It was further submitted that fraud is not a matter of presumption rather it must be specifically pleaded and proved on the basis of evidence. Full particulars of fraud and misrepresentation, as alleged to be committed by defendant Kallu, must be specifically pleaded and proved by the plaintiff. The learned Appellate Court below has passed the impugned Judgment and order dated 05.03.1986, after considering the entire material and evidence available on record and recorded specific finding that fraud or misrepresentation by defendant Kalloo has not been proved by the plaintiff-appellant and findings given by the learned Trial Court in this regard were against evidence on record. Learned counsel for the respondents has referred following case law:-
i. V. Ramachandra Ayyar & Anr. v. Ramalingam Chettiar & Anr., AIR 1963 SC 302 ii. Raj Dutt & Ors. v. Nageshwar & Ors., 2019(9) ADJ 252 (LB) iii. G. Amalorpavam & Ors. v. R.C. Diocese of Madurai & Ors., (2006) 3 SCC 224 iv. Asghar Ali & Ors. v. Chidda, AIR 1982 Allahabad 186 v. vii. Zafar Khan & Ors. v. Board of Revenue, UP & Ors., [Civil Appeal No. 1514 of 1970], decided on 31.07.1984 vi. Sita Ram v. Chhota Bhondey & Ors., [Civil Appeal No. 1811 of 1976], decided on 09.10.1990 vii. General Manager, Electrical Rengali Hydro Electric Project, Orissa & Ors. v. Giridhari Sahu & Ors., (2019)10 SCC 695.
20. I have considered rival submissions and perused the record.
21. The provisions of Order VI Rule 4 CPC envisage that in all cases in which the party pleading rely on misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading. In case of Bishunedeo Narain v. Seogeni Rai,1951 SCC 447, the Supreme Court held that general allegations of fraud and misrepresentation are insufficient to be considered as specific averment of fraud. The parties are required to provide full particulars and the case can only be decided on the particulars as laid. The Supreme Court in Ramesh B. Desai Vs. Bipin Vadilal Mehta (2006) 5 SCC 638 has reiterated that Order 6 Rule 4 CPC requires that complete particulars of fraud shall be stated in the pleadings. The particulars of alleged fraud, which are required to be stated in the plaint, will depend upon the facts of each particular case and no abstract principle can be laid down in this regard. In Ladli Prashad Jaiswal V Karnal Distillery Co. Ltd (supra), the Apex Court observed that a litigant who prefers allegation of fraud or other improper misconduct must place on record precise and specific details of these charges. In this connection reference may be made to case of Canara Bank v. P. Selathal, (2020) 13 SCC 143; H.S. Goutham v. Rama Murthy, (2021) 5 SCC 241; Ram Singh v. Gram Panchayat Mehal Kalan, (1986) 4 SCC 364; Union of India v. K.C. Sharma & Co., (2020) 15 SCC 209].
22. In case of General Manager, Electrical Rengali Hydro Electric Project, Orissa & Ors. (supra), the Hon'ble Apex Court has referred the definition of Fraud, Misrepresentation, Undue Influence and in para no. 43 has held as under:
"43. A perusal of the definition of the word "fraud", as defined in Section 17 of the Contract Act, would reveal that the concept of fraud is very wide. It includes any suggestion, as a fact, of that which is not true, by a person who does or does not believe it to be true. It may be contrasted with Section 18(1) of the Contract Act which, inter alia, defines "misrepresentation". It provides that it is misrepresentation if a positive assertion is made by a person of that which is not true in a manner which is not warranted by the information which he has. This is despite the fact that he may believe it to be true. In other words, in fraud, the person who makes an untruthful suggestion, does not himself believe it to be true. He knows it to be not true, yet he makes a suggestion of the fact as if it were true. In misrepresentation, on the other hand, the person making misrepresentation believes it to be true. But the law declares it to be misrepresentation on the basis of information which he had and what he believed to be true was not true. Therefore, the representation made by him becomes a misrepresentation as it is a statement which is found to be untrue. Fraud is committed if a person actively conceals a fact, who either knows about the fact or believes in the existence of the fact. The concealment must be active. It is here that mere silence has been explained in the Exception which would affect the decision of a person who enters into a contract to be not fraud unless the circumstances are such that it becomes his duty to speak. His silence itself may amount to speech. A person may make a promise without having any intention to perform it. It is fraud. The law further declares that any other act fitted to deceive, is fraud. So also, any act or omission, which the law declares to be fraudulent, amounts to fraud. Running as a golden trend however and as a requirement of law through the various limbs of Section 17 of the Contract Act, is the element of deceit. A person who stands accused of fraud be it in a civil or criminal action, must entertain an intention to commit deception. Deception can embrace various forms and it is a matter to be judged on the facts of each case. It is, apparently, on account of these serious circumstances that fraud has on a legal relationship or a purported legal relationship that the particulars and details of fraud is required if pleaded in a civil suit or a proceeding to which the CPC applies."
23. In case of Varanasaya Sanskrit Vishwavidyalaya & Anr. (supra), the Hon'ble Apex Court has observed that it is not enough to state in general terms that there was "collusion" without more particulars. General allegations are insufficient even to amount an averment of fraud of which any court ought to take notice, however, strong the language in which they are couched may be, and the same applies to undue influence and coercion. Similar position was reiterated in case of Bishundeo Narayan (supra) and it was held that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on particulars as laid. There can be departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice. In case of Asghar Ali & Ors. (supra), in para No. 9 the Court has held as under:
"9. Rule 4 of Order 6 of the Civil P. C. is based on the principle that a charge of fraud, undue influence etc. is a charge of a quasi criminal nature. Whenever, it is alleged that a transaction is vitiated on account of fraud or undue influence, an insidious and unworthy conduct Is attributed to the person who is said to be guilty of fraud and undue influence. The policy of law, therefore is that the person charged with a fraud or undue influence etc. should be apprised of its particulars so that the said party may be in a position to rebut those particulars. If no particulars are furnished to the party charged with such conduct, he is put at a disadvange and is unable to meet the case sought to be established by the party making the charge. In the case of Bharat Dharma Syndicate Ltd. v. Harish Chandra, AIR 1937 PC 146. It was observed :--
"Before parting with this case their Lordships desire to call attention to the great difficulty which is occasioned both to person charged with fraud or other improper conduct, and to the tribunals which are called upon to decide such issues, if the litigant who prefers the charges is not compelled to place on record precise and specific details of those charges. In the present case the petitioner ought not to have been allowed to proceed with his petition and seek to prove fraud, unless and until he had, upon such terms as the Court thought :ii to impose, amended his petition by including therein full particulars of the allegations which he intended to prove. Such cases as the present will be much simplified if this practice is strictly observed and insisted upon by the court, even if as in the present case, no objection is taken on behalf of the parties who are interested in disproving the accusations".
24. Regarding jurisdiction and powers of appellate court in appeal against original decree, in case of Gaya Prasad & Ors. (supra), in para no. 14, the Court has held as under:
"14. Learned Senior Counsel has further relied in support of his contention about the obligations of an Appellate Court while writing a judgment, particularly of reversal, upon a decision of the Supreme Court in Laliteshwar Prasad Singh and others v. S.P. Srivastava (Dead) through Legal Representatives2. He has drawn the attention of the Court to paragraph 14 of the report, where their Lordships have held thus:
"14. The points which arise for determination by a court of first appeal must cover all important questions involved in the case and they should not be general and vague. Even though the appellate court would be justified in taking a different view on question of fact that should be done after adverting to the reasons given by the trial Judge in arriving at the finding in question. When the appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by the trial court; expression of general agreement with reasons given by the trial court would ordinarily suffice. However, when the first appellate court reverses the findings of the trial court, it must record the findings in clear terms explaining how the reasonings of the trial court are erroneous."
25. In case of Arumugham (Dead) By Lrs. & Ors. (supra), in para no. 14, the Hon'ble Apex Court has held:
"14. From the aforesaid judgment of the three judges bench in Ramachandra Ayyar's case, it is clear that this Court held that second appellate court cannot interfere with the judgment of the first appellate court on the ground that the first appellate court had not come to close grips with the reasoning of the trial court. It is open to the first appellate court to consider the evidence adduced by the parties and give its own reasons for accepting the evidence on one side or rejecting the evidence on other side. It is not permissible for the second appellate court to interfere with such findings of the first appellate court only on the ground that the first appellate court had riot come to grips with reasoning given by the appellate trial court. The aforesaid judgment of this Court in Ramachandra Ayyer's case specifically distinguished Rani Hemanta Kumari Debi v. Maharaja Jagadindra Nath Ray Bahadur, 16 MLJ 272 (PC) rendered by the Privcy Council on the ground that that was a case wherein the High Court was dealing with a first appeal. The observations made by the Privy Council in that context would not be applicable to cases where the second appellate court was dealing with the correctness of the judgment of the first appellate court which reversed the trial court."
26. Thus, it is quite manifest from aforesaid case laws that provisions of order 6 rule 4 CPC require that complete particulars of fraud must be stated in the pleadings. Thus, a litigant who prefers allegation of fraud or other improper misconduct must place on record precise and specific details of these charges. In the instant matter, facts show that after the objection of the respondent No. 1 Kallu, where he claimed to be son of daughter of Ram Autar, was rejected by the Consolidation officer, he has filed an appeal before the Settlement Officer, which was allowed by the ex-party order dated 10.01.1969. The appellants / plaintiffs have filed an application for restoration and recalling of said ex-party order but the same was rejected vide order dated 09.05.1969. The plaintiffs have filed two separate revisions against the order dated 10.01.1969 and 09.05.1969 before the DDC, which were dismissed vide order dated 04.11.1969. The plaintiffs preferred a writ petition before the High Court but it was dismissed vide order dated 25.02.1970. Thus, the finding of the revenue Court in favour of the respondent No. 1 Kallu has become final. After that the appellants/ plaintiffs have filed the suit for declaration to the effect that said orders are as null and void. It was alleged that in the appeal before court Settlement Officer, date 27.12.1968 was fixed for hearing but on that date case was not taken up and the respondent No. 1/ defendant practised fraud and manipulated things in a manner that the reader of the court informed the plaintiff that the next date of hearing is 24.01.1969 but later on appeal was heard on 09.01.1969 and it was decided by the ex-party judgment dated 10.01.1069. As referred above, the question of law framed in this appeal is whether the lower appellate Court was justified in observing that the particulars of fraud were not pleaded specifically in view of allegations in para No. 7 of the plaint. The averments of the para No. 7 of the plaint are reproduced as under:
''That the defendant preferred appeal from the aforesaid order of the consolidation officer. It was fixed for hearing on 27.12.1968, plaintiff No. 1 and son of plaintiff No. 2 were present on that date. The appeal was not taken up for hearing. The defendant practised fraud and manipulated things in a manner that the reader of the court informed that the next date would be 24.01.1969 plaintiff No. 1 and the son of plaintiff No. 2 went out of the court under the impression that the next was 24.01.1969.''
27. Thus, it may be seen that in the plaint merely a vague allegation has been made that in the appeal before the Settlement Officer, on 27.12.1968 the defendant practised fraud and manipulated things in a manner that the Reader of the court informed that the next date would be 24.01.1969 and thus plaintiff went away from the court under the impression that the next was 24.01.1969. Except the fact that the Reader has told a false date, no specific details of alleged fraud have been averred in the plaint of the suit. The word "fraud", as defined in Section 17 of the Contract Act, show that it includes any suggestion, as a fact, of that which is not true, by a person who does or does not believe it to be true. In fraud, the person who makes an untruthful suggestion, does not himself believe it to be true and that he knows it to be not true, yet he makes a suggestion of the fact as if it were true. Here it would be pertinent to mention that there is no such allegation that the defendant Kallu has made any untruthful statement to the plaintiff regarding date in the said appeal. The allegation that the defendant Kallu manipulated things in such manner that the Reader of the court has told a false date to the appellant / plaintiff, has no basis at all. The said averment is too general in nature to take cognizance. The said allegation not only lacks cogency but hardly fulfils the ingredients of fraud. Except the mere allegation that by telling false date through the Reader of the Court, the respondent No. 3 has played fraud, there were no particulars as required to be given under the provisions of Order VI Rule 4 of the CPC. It is well settled that fraud is not a matter of presumption rather it must be specifically pleaded and proved on the basis of evidence. The said averments are quite general, vague and lacks cogency. At this stage it would be pertinent to mention that while challenging the ex-party order dated 10.01.1969 and the order dated 09.05.1069 in revision, the appellants / plaintiffs have never raised the plea that the respondent / defendant Kallu has played fraud by telling a false date in appeal through the reader of the Court. Similarly the plea of fraud was not taken before this court while filing petition against order dated 04.11.1969 passed by the DDC, rejecting the said revisions. After the order dated 10.01.1969 passed by the Settlement Officer has become final, the appellants/ plaintiff filed civil suit with general and vague pleading that the respondent / defendant Kallu has played fraud by telling a false date in appeal through the reader of the Court. The pleadings in the plaint fall short of the legal requirements and thus the question of law framed in the appeal has to be decided against the appellants/ plaintiffs. Thus, the first appellate Court was correct and justified in observing that the particulars of fraud were not pleaded specifically in the plaint.
28. Learned counsel for the appellants further submitted that the first appellate court did not formulate any point of determination. In first appeal the appellate court has to record findings supported by reasons on all the issues and it was the duty of the first appellate Court to deal with all the issues and the evidence led by the parties before recording its findings. It was submitted that while reversing the findings of the trial court, the first appellate court did not consider evidence and not assigned proper reasons for discarding the findings of the Trial Court. It was submitted that the provisions of Order 41 rule 31 CPC have not been complied with and thus, on this ground the impugned judgment and order is liable to be set aside.
29. Learned counsel for the respondents have argued that the first appellate court has considered entire evidence and observed that the main point to be decided in the appeal is whether any fraud has been played by defendant Kallu on the plaintiffs during the appeal pending before the Settlement Officer, consolidation. It was submitted that in view of said observation of the first appellate court, it could not be said that no point of determination was formulated by the appellate court below. It was submitted that requirement of the provisions of order 41 rule 31 CPC has been complied with.
30. So far the question of alleged non-compliance of provisions of order 41 rule 31 CPC is concerned, no substantial question of law was formulated by this court regarding that point, however I have considered the issue regarding alleged non-compliance of said provisions. The provisions of order 41 rule 31 CPC mandate that the judgment of the Appellate Court shall state the points for determination; the decision thereon; the reasons for the decision; and where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. In case of G. Amalorpavam & Ors. Ors. (supra), Hon'ble Apex Court held:
"The question whether in a particular case there has been a substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate Court is in a position to ascertain the findings of the lower appellate Court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate Court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the Rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the Court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of Second Appeal conferred by Section 100 CPC."
31. In case of Raj Dutt & Ors. (supra), in para Nos. 26 and 27 the Court has held as under:
"26. It is settled rule of law that an appellate court is the final court of facts and, therefore, the first appellate court shall state the points of determination, the decision thereon and the reasons for decision. It is also settled law that mere omission to frame points of determination does not vitiate the judgment if the first appellate court record its reason based on the evidence. The object behind Rule 31 of Order XLI of C.P.C. appears to focus on the contention of the parties and the appellate court in understanding in adjudicating the rival claims.
27. The law relating to powers and duties of first appellate court is well fortified by the legal provisions and judicial pronouncements. The Hon'ble Supreme Court in the case of 'Vinod Kumar vs. Gangadhar', (2015) 1 SCC 391 considered the nature and scope of duty of the first appellate court and it was held as under:-
"12. In Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179 : (2001) 1 SCR 948] , this Court held as under: (SCC pp. 188-89, para 15) "15. ... The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. ... while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it."
32. The above view has been followed by a three-Judge Bench decision of the Apex Court in Madhukar v. Sangram AIR 2001 SC 2171, wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.
33. In H.K.N. Swami v. Irshad Basith [(2005) 10 SCC 243] , the Court stated as under: (SCC p. 244, para 3) "3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title."
34. In Jagannath v. Arulappa [(2005) 12 SCC 303], while considering the scope of Section 96 of the CPC, it was held that a court of first appeal can re-appreciate the entire evidence and come to a different conclusion. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy [(2010) 13 SCC 530, the Court taking note of all the earlier judgments of the Apex Court reiterated the aforementioned principle with these words: (SCC pp. 530-31, paras 3-5) "3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.
4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179 : (2001) 1 SCR 948] , SCC p. 188, para 15 and Madhukar v. Sangram [(2001) 4 SCC 756 : AIR 2001 SC 2171] SCC p. 758, para 5.
5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law."
35. Thus, it is apparent that while deciding the first appeal against original decree, the law mandates that the appellate court shall state: (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. It is trite that the appellate court has jurisdiction to reverse or affirm the findings of the trial court and the whole case is to be considered both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Law imposes upon the Court of appeal an imperative duty and obligation of giving an adequate and satisfactory judgment as is required by law and it is the duty of the Court to explain its reasons for so doing, more especially when the court of first instance has gone go fully into the facts and the reasons for the conclusions arrived at.
36. In the instant case it may be seen that the sole ground on which the trial court granted declaratory decree is that in the appeal pending before the Settlement officer, fraud has played upon the plaintiffs / appellants by the respondent No. 1 / defendant Kallu. In the impugned judgment, the first appellate court observed that the main point to be decided in the appeal is whether any fraud has been played by defendant Kallu on the plaintiffs during the appeal pending before the court of Settlement Officer. Thus, the pivotal question involved in the appeal was whether there has been any fraud on the part of the respondent / defendant in the proceedings of said appeal before the court of Settlement officer. Therefore, the above observation of the first appellate court that the main point to be decided in the appeal is whether any fraud has been played by defendant Kallu on the plaintiffs during the appeal pending before the Settlement Officer, amounts to formulation of point for determination. Regarding this point of determination, the appellate court has considered the evidence of both the parties and the finding rendered by the trial court were reversed by assigning proper reasons. In the case of H. Siddiqui (Dead) by Lrs. vs. A. Ramalingam (2011) 4 SCC 240, while interpreting the Order 41 Rule 31 CPC, Hon'ble the Apex Court has held that said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance of the said provisions if the appellate court's judgment is based on the independent assessment of the relevant evidence on all important aspect of the matter and the findings of the appellate court are well founded and quite convincing. It is trite that the appellate Court has jurisdiction to reverse the findings of the trial Court, however, such judgment of the appellate Court must reflect its conscious application of mind and record findings supported by reasons. In the instant matter, the appellate court below considered evidence of the parties and by adverting to evidence rendered finding that no fraud could be established and the findings of the trial court are not based on evidence. No material illegality or perversity could be shown in the findings rendered by the first appellate court while setting the decree passed by the trial court. It is correct that High Court can interfere with the conclusion of fact recorded by the lower appellate Court if the said conclusion is not supported by any evidence as held in case of V. Ramachandra Ayyar (supra) but in the instant matter no such case is made out. In the instant matter finding of fact recorded by the trial court that in appeal before the Settlement officer, the defendant has played fraud upon the plaintiffs was not supported by any credible evidence. Considering entire material on record and position of law, the contention of learned counsel for the appellants that the first appellate court did consider the matter in accordance with the provisions of order 41 rule 31 CPC, can not be accepted. That apart, the learned counsel for the appellant could not point out the specific issue which, had been left to be addressed by the first appellate court. Thus, no ground is made out to interfere with the impugned judgement and order on the ground of alleged non-compliance of the provisions of order 41 rule 31 CPC.
37. It would also be pertinent to mention that the basis of the case of appellants / plaintiffs is that the respondent No. 1 Kallu filed objection under section 9-A (2) of C.H. Act claiming himself to be son of the daughter of Ram Autar but his claim was rejected by the Consolidation Officer and against that order, the respondent Kallu filed an appeal before the Settlement Officer. As per the plaintiffs, said appeal was fixed for 27.12.1968 but it was not taken up for hearing and that the defendant practised fraud and the reader of the court informed the plaintiff that the next date is 24.01.1969 but the appeal was allowed by the ex-party order dated 10.01.1969. The appellants / plaintiffs have already challenged the order dated 10.01.1069 in revision and another revision was filed against the order dated 09.05.1969, by which the restoration application was rejected, but in said revisions, no such specific plea was taken that the respondent Kallu has played any fraud in proceedings of appeal before the Settlement officer. In the said revision the appellants/ plaintiffs were provided proper opportunity of hearing and thus, their grievance that in appeal before the Settlement officer they were not provided opportunity of hearing loses its significance. Both the revisions were dismissed by the DDC vide order dated 04.11.1969. The petition filed against the order dated 04.11.1969 was also dismissed by this court vide order dated 25.02.1970. Thus, when the order dated 10.01.1969 was upheld by the revisional as well as by this this court, such orders can not be declared null and void on such general and vague allegations that in proceedings of appeal before the Settlement officer, defendant / respondent has played fraud through the reader of the court, who has told false date of hearing and thereby the order dated 10.01.1969 has been obtained by fraud. In my view regarding proceedings of a court, the presumption is that the same have been conducted in accordance with law and rules and to rebut such presumption strong and cogent reasons must be shown. Such presumption can not be rebutted by making bald allegation that the opposite party has committed fraud in proceedings. Considering entire facts and evidence, the first appellate court was justified in reversing the findings of the trial court and setting the decree of trial court.
38. In view aforesaid, the question of law formulated for hearing in the appeal is answered in affirmative and decided against the appellants. In view of aforementioned discussion, the appeal has no substance and thus, liable to be dismissed.
W.P. No. 1135/198839. The writ petition No. 1135 / 1988 has been preferred against the order dated 28.04.1973 and 05.01.1988, passed by the D.D.C.. By order dated 05.01.1988, the DDC has rejected the restoration application of petitioners against order dated 28.04.1973.
40. It has been argued by learned counsel for the petitioners that the impugned orders are against facts and law and thus, liable to be set aside. It was stated that in case the aforesaid second appeal is allowed and the ex-parte order dated 10.01.1969, passed by the Settlement Officer, Consolidation and the order dated 04.11.1969 passed by the D.D.C. are set aside, the revenue authorities have to decide the case and shares of the parties on the merits and thus, unless and until the second appeal is decided neither reference can be preferred nor any altercation in the chaks of the parties can be permitted under the law. It was submitted that by order dated 04.11.1969, passed by the respondent No.1, the respondent No. 3 Kallu was given 1/6th share from the total land 18 bigha situated in village Malakamai Bhainsahi, whereas he was not entitled for any share. The said order dated 04.11.1969 was given effect to in revenue record and thereafter, respondent No.4 to 13 moved a review application against order dated 04.11.1969, passed by the D.D.C., which was rejected vide order dated 30.06.1971. The respondent No.4 to 13 have moved a second review application and that too was rejected on 30.11.1972. The third review application was entertained and allowed vide order dated 28.04.1973 granting relief to respondent No.4 to 13 without issuing notice to the petitioners. Learned counsel submitted that the said ex-parte order dated 28.04.1973 has been obtained by the respondent No.4 to 13 without any notice to the petitioners by which the petitioners' share has been reduced the from 7- 3/4 bigha to only 6 bigha. After obtaining ex-parte order dated 28.04.1973, the respondent No.4 to 13 did not seek any reference on the basis of said order for a period of nine years. After expiry of about nine years on 07.08.1982 the respondent No.4 to 13 have moved an application before respondent No.2 requesting that chaks to be carved out on the basis of order dated 28.04.1973 and revenue record be corrected. On said application, the Assistant Consolidation Officer passed order dated 28.04.1984 stating that compliance of ex-parte order dated 28.04.1973 is necessary. It was submitted that the respondent No.2, without considering objections filed by the petitioners, passed an order dated 29.08.1987 without jurisdiction, directing the Assistant Consolidation officer to prepare reference in accordance with order dated 28.04.1973. The petitioners have preferred a revision before the respondent No.1 by taking a ground that de-notification was done on 23.01.1979 and on that date neither any appeal nor revision or any other proceeding was arising out of C.H. Act and thus, order dated 28.04.1973, which was passed before the date of de-notification, could not be given effect under provisions of C.H. Act. Learned counsel for the petitioners submitted that the respondent No.1, without deciding the questions of jurisdiction, passed a cryptic order dated 02.012.1987 holding that revision is not maintainable. The respondent No.4 to 13 have filed the copy of order dated 28.04.1973 before the respondent No.2 and thereafter, petitioners came to know about the ex-parte order dated 28.04.1973. Thereafter, petitioners have moved a restoration application in revision No.798 stating that order dated 28.04.1973 is ex-parte and liable to be set aside, however, since the application was time barred thus, an application under section 5 Limitation Act was also filed but the said restoration application was rejected vide order dated 05.01.1988 by an unreasoned and sketchy order. Referring to these facts it was submitted that both the impugned orders are liable to be set aside.
41. Learned counsel for the contesting respondents submitted that there is no illegality or perversity in the impugned orders. In proceedings under Section 49 of the U.P. Tenancy Act, the shares of the parties had already been decided by the competent court. By Judgment and decree dated 23.08.1946 the ancestors of the respondents No.4 to 13 had been given 2/3rd share in the property in dispute while descendants of Mata Badal were given only 1/3rd share. The Judgment and decree dated 23.08.1946 was affirmed in Appeal and in Second Appeal. It is settled principle of law that Judgments and decree deciding the dispute between the parties finally by the revenue Court, unless set aside by a competent Court of law, are binding upon the parties as well as upon the Consolidation Courts. The legal heirs and representatives, like the petitioners, can not set up a new case and they are bound by the pleadings of their predecessors. In earlier proceedings in which they had been given 1/3rd share in the property in dispute, hence now they cannot claim more than that. It was submitted that admittedly the order dated 28.04.1973 was passed by the DDC much prior to the alleged date of de-notification dated 23.01.1979 under Section 52 of the C.H. Act hence that order is to be given effect to by the Consolidation authorities even after de-notification under Section 52 of the C.H.Act. For that purpose Consolidation would not be deemed to be closed even after de-notification under Section 52 of the Act. In support of this submission, the answering respondents have relied upon a decision of this Hon'ble Court as reported in 2002 (93) R.D. 884 Ram Raj Vs. Deputy Director of Consolidation and others. In paragraph 5 and 6 of the supplementary affidavit and annexure No.SA-1 as filed by petitioner in writ petition No.1135 of 1988, it is admitted by the petitioners that Revision No.697 and 698 were filed by Shiv Narain jointly with respondents No.4 to 13, in which the order dated 04.11.1969 was passed by the DDC. Before the Consolidation Courts, Shiv Narain was doing pairvi of the case on behalf of the respondents also and since he was not satisfied by the order dated 04.11.1969, hence he on behalf of respondents No.4 to 13 has got moved successive applications for getting clarification about the share of the parties. Since Shiv Narain was himself doing pairvi of the case before the DDC hence, now it is not open for him to say that he was not given notice and opportunity of hearing prior to passing the order dated 28.04.1973. It was further submitted that order dated 28.04.1973 as passed by the DDC is not an order of review rather it is explanatory in nature regarding the earlier order dated 04.11.1969. Earlier order dated 30.01.1972 as passed by DDC would not come in the way of respondents in any manner and the petitioners application for recalling the order dated 28.04.1973 was rightly rejected by the DDC vide order dated 05.01.1988. It was stated that the pendency of the Second Appeal No.906 of 1986 has nothing to do with the claim of the respondents No.4 to 13 because in that Second Appeal dispute only between Shiv Narain (now petitioners) and respondent No.3 Kallu is to be decided. Neither the respondents no.4 to 13 were even made party/respondents before the trial Court in the suit nor any relief was sought against them. Now for the first time they have been made party in the Second Appeal before this Court even without seeking any relief against them. It was submitted that the petition has no force and thus, liable to be set aside.
42. I have considered rival submissions and perused the record.
43. It could not be disputed that by the judgment and decree dated 23.08.1946 the ancestors of the respondents No.4 to 13 were given 2/3rd share in the disputed property while descendants of Mata Badal were given only 1/3rd share. The Judgment and decree dated 23.08.1946 was affirmed in appeal as well as in second appeal and thus, it has attained finality and thus, same is binding upon the revenue courts. In this connection reference may be made to case of Smt Manraji V DDC & Ors. 2005(1) AWC 704 and Gorakhnath Vs DDC & Ors [2012(116) RD 234. The order dated 28.04.1973 was passed by the DDC much prior to the date of de-notification under Section 52 of the C.H. Act and by that order the DDC has clarified order dated 04.11.1969 regarding shares of the parties. Hence that order may be given effect to by the Consolidation authorities even after de-notification under Section 52 of the Act. It was also shown that Revision No.697 and 698 were filed by Shiv Narain jointly with respondents No.4 to 13, in which the order dated 04.11.1969 was passed by the DDC and thus, now it can not be said that he has no knowledge about hearing and the order dated 28.04.1973. Merely because the respondent No.4 to 13 have moved an application before respondent No.2 on 07.08.1982 after 9 years praying that chaks to be carved out on the basis of order dated 28.04.1973 and revenue record be corrected, it can not be made basis to interfere with the impugned orders. As the order dated 28.04.1973 stands valid and effective, thus, on application, the Assistant Consolidation Officer has rightly passed order dated 28.04.1984 stating that compliance of ex-parte order dated 28.04.1973 is necessary. The petitioners have preferred a revision before the respondent No.1 against the order dated 28.04.1973, which was dismissed by the DDC vide order dated 02.12.1987 as not maintainable. The petitioners have moved a restoration application in revision No.798 stating that order dated 28.04.1973 along with an application under section 5 Limitation Act but the said restoration application was rejected vide order dated 05.01.1988. Thus, once the order dated 28.04.1973 was upheld in revision, there was no basis to recall the order 28.04.1973. The contention of the learned counsel for the petitioners that after de-notification on 23.01.1979 under Section 52 of the C.H. Act, the order dated 28.04.1973 passed by the DDC can not be given effect, is not acceptable. The order dated 28.04.1973 was passed by the DDC much prior to the alleged date of de-notification, hence that order may be given effect to by the Consolidation authorities even after de-notification under Section 52 of the C.H. Act. The contention of learned counsel for the contesting respondents that for that purpose Consolidation would not be deemed to be closed even after de-notification under Section 52 of C.H. Act has substance and this view is supported by the law laid down in Ram Raj Vs. Deputy Director of Consolidation and others (supra). As stated above the afore-mentioned second appeal is being dismissed by this court and thus, considering aforesaid facts of the matter, it could not be said that the impugned orders are suffering any material illegality or perversity. The writ petition is liable to be dismissed.
Writ petition no. 23691 of 1987.
44. In this writ petition the order dated 29.08.1987, passed by the respondent No. 2/ Consolidation Officer, directing the Assistant Consolidation Officer for compliance of the order dated 28.04.1973, as well as another order dated 02.12.1987 are being challenged.
45. In backdrop of aforesaid facts, learned counsel for the appellants has reiterated submissions as made in earlier writ petition and submitted the order dated 29.08.1987, passed by the Consolidation Officer was not warranted. Similarly, the order dated 02.12..1987 is against facts and law and thus, both the impugned orders are liable to be set aside.
46. Perusal of record shows that in chronology of above referred events, by order dated 29.08.1987, the Consolidation officer has directed the Assistant Consolidation officer to make reference in accordance with order dated 28.04.1973 and by order dated 02.12.1987 the revision against order dated 28.04.1973 was dismissed by the DDC. As referred above by the judgment and decree dated 23.08.1946 the shares of the parties have already been decided finally. The contention of the learned counsel for the petitioners that after de-notification on 23.01.1979 under Section 52 of the C.H. Act, the order dated 28.04.1973 passed by the DDC can not be given effect, is not found acceptable. The challenge to order dated 28.04.1973 remained unsuccessful and thus, it stood legal and valid and therefore executable. In view of these facts the Consolidation officer has not committed any illegality or perversity by directing the Assistant Consolidation officer to make reference in accordance with order dated 28.04.1973. The order dated 29.08.1973 is an interlocutory order, hence no fault can be found with order dated 02.12.1987, by which revision against order dated 28.04.1973 was dismissed. The above referred second appeal is being dismissed by this court. Considering all relevant facts, no case for interference in the impugned order dated 29.08.1987 and 02.12.1987 is made out. The writ petition has no force, hence liable to be dismissed.
W.P. No. 611 of 199647. This writ petition No. 611 / 1996 has been preferred against the order dated 27.09.1995, passed by the ADM (Nazul) / D.D.C., Allahabad in revision No. 52, Ramkhelawan and Ors. V Sukhram and Ors., whereby the order dated 24.09.1990 passed by the Consolidation officer has been set aside and the matter is remitted back to the Consolidation Officer for deciding the shares of the parties.
48. The facts of the petition show that private respondents have filed an appeal against order dated 30.09.1967 and the respondent No. 2/ Settlement Officer found that the entries made in the C.H. Form No. 11 are forged one hence, the said entries were expunged vide order dated 24.09.1990. Being aggrieved, the contesting respondents have filed a revision before the DDC, which was allowed vide order dated 27.09.1995 and thereby the order dated 24.09.1990 was set aside. The said order dated 27.09.1995 is being impugned in this writ petition.
49. It was contended by the learned counsel for the petitioners that the objections of respondent No. 4 Kallu were dismissed by the Consolidation officer vide order dated 30.06.1967 and entries were made in the revenue record accordingly in the name of the petitioners and other co-share holders. The appeal against order dated 30.09.1967 was filed by the contesting respondents after 19 years with prayer that shares of the parties be determined afresh in khata No. 189 as per 'amaldramad' made in khata No. 188. The appeal was highly time barred and that after de-notification on 23.01.1979, appeal was not maintainable nor the entries could be disturbed by the consolidation authorities, as no case was pending on date of the de-notification. Referring to these facts, it was submitted that the appeal was wrongly allowed by the Settlement Officer vide order dated 25.04.1990. It was further stated that the revision filed by the petitioners was allowed by the DDC vide order dated 27.09.1995 and matter was remanded back to the Consolidation officer for determining the shares afresh, though shares have already been decided by the consolidation officer on 30.06.1967. Referring to the facts of the matter, it was submitted that the impugned order is against facts and law and thus, liable to be set aside.
50. Learned counsel for the private respondents submitted that by order dated 29.09.1967 the objections filed by respondent No.4 Kallu were rejected by the Consolidation Officer but a forged and factious 'Amaldaramad' of said order was made in CH Form-11 on 30.09.1967 by which shares of the parties have been illegally shown as determined in the Khata No.189. On coming to know the said forged entry in C.H. Form 11, the answering respondents No.4 to 13 have filed appeal before the Settlement Officer. It is settled principle of law that appeal or revision or application for recalling the orders passed by the Consolidation authorities can be filed before the appropriate Consolidation authorities by the aggrieved parties along with sufficient cause for condonation of delay even after de-notification under Section 52 of the C.H. Act. Learned counsel has referred case of Tara Chand Vs. Deputy Director of Consolidation and Ors 2004 (96) R.D. 193, wherein it was held that once an appeal is filed before Settlement Officer of Consolidation against any order passed by Consolidation Officer even after de-notification under Section 52 of the C.H. Act and the Settlement Officer condones the delay in filing the said Appeal then the said Appeal shall be deemed to have been filed within time and shall be deemed to be pending on the date of de-notification for all the purposes. It is further submitted that the Settlement Officer and the DDC have every jurisdiction to decide the questions of shares of the parties in view of earlier Judgments passed by the Revenue Courts in earlier proceedings between the same parties. It was stated that by the order dated 24.09.1990 the Settlement Officer has condoned the delay in filing the appeal and allowed the said appeal. The petitioners have not challenged the said order either in revision or before this Court as such the said order has become final against them. Now it is not open for them to say that appeal filed by the contesting respondents was not maintainable and the Settlement Officer of Consolidation has no jurisdiction to entertain the same and pass the order dated 24.09.1990 after de-notification under Section 52 of the U.P. C.H. Act. It was submitted that the share of the parties have never been determined finally and correctly vide order dated 28.04.1973. It was pointed out that at one place petitioners are saying that shares of the parties have been finally decided by order dated 28.04.1973 and on the other hand they themselves have challenged the order dated 28.04.1973 by means of Writ Petition No.23691 of 1987 (Jagnandan and others Vs. Deputy Director of Consolidation and others) before this Court. It is not open for the petitioners to blow hot and cold both simultaneously. It is further submitted that the question of share is a legal question and that has to be decided between the parties on the basis of pedigree of the parties as well as in view of the earlier judgments of the Revenue Courts as passed in earlier litigation between the parties and not on the basis of alleged admission of the parties since no estoppel operates in such matter. There is no admission of respondents No.5 to 14 admitting their share as 1/2 in civil suit and in consolidation proceedings. In fact they have filed written statement in which they have inadvertently and incorrectly mentioned their share as 1/2 and the said written statement was subsequently amended and in the said suit also they have claimed 2/3rd share and also before the Consolidation Courts on the basis of final Judgments and decree passed by the Revenue Court between the parties. It is further submitted that Judgments and orders passed by the Revenue Courts in the matter can neither nullified by the Consolidation Courts nor it is within their competence
51. It was further submitted that it is settled principle of law, as held by this Hon'ble Court in the case of Ram Lakhan Vs. Deputy Director of Consolidation and others 1983 (1) R.D. 218, that incorrect statement about their shares made by opposite parties in Consolidation Courts regarding their shares in Khata in dispute cannot be made basis to deprive of their legal share. The incorrect entries made in C.H. Form 5 and C.H. Form 11 were challenged by respondents No. 5 to 14 by way of appeal and revision before the Settlement Officer of Consolidation and the DDC, in which they have rightly passed orders dated 24.09.1990 and 27.09.1995 respectively. It is misconceived to suggest that the claim of answering respondents was barred by the provisions of Section 11-A of the C.H. Act. The Judgments and orders passed by the Revenue Courts determining the correct share of opposite parties No.5 to 14 were filed by them before the Settlement Officer of Consolidation and the DDC in Appeal and Revision and those authorities have rightly taken the notice of those Judgments while passing the orders dated 24.09.1990 and 27.09.1995 respectively. The writ petition and Second Appeal before this Hon'ble Court have nothing to do in determining the correct shares of opposite parties No. 5 to 14 in pursuance of final Judgments passed by revenue Courts because their shares were never determined in accordance with those judgments finally by the Consolidation Courts at any point of time. The DDC has rightly passed the order dated 27.09.1995 allowing the revision of answering opposite parties and remanding the matter to Consolidation Officer to decide the question of shares of the parties as fresh in view of the earlier Judgments and orders passed by the Revenue Courts. The Judgment and order dated 27.09.1995 passed by the DDC is just and proper and both the parties would get opportunity to prove their claim before Consolidation Officer, hence in view of this fact no interference is called for by invoking jurisdiction under article 226 of the Constitution of India.
52. I have considered rival submissions and perused the record.
53. Perusal of record shows that by order dated 29.09.1967 the Consolidation Officer has rejected objections of the respondent No. 4 Kallu regarding claim of co-ownership in the disputed property. In appeal against that order, the Settlement officer found that except the rejection of the objections of the respondent Kallu, no other order was passed but the entry of 'amaldaramad' is different from the consequence of that order, hence the 'amaldaramad' made in pursuance of said order in C.H. Form -11 in khata No. 189 was expunged vide order dated 24.09.90 passed in appeal No. 14/11/8. The contesting respondents have preferred a revision before the respondent No. 1, which has been allowed vide impugned order dated 27.09.1995 passed by the ADM (Nazul)/ DDC. So far the question of delay in filing the appeal is concerned, it appears that appeal or revision or application for recalling the orders passed by the Consolidation authorities can be filed before the appropriate consolidation authorities by the aggrieved parties along with sufficient cause for condonation of delay even after de-notification under Section 52 of the C.H. Act. Thus, once an appeal is filed before Settlement Officer of Consolidation against any order passed by Consolidation Officer even after de-notification under Section 52 of the C.H. Act and the Settlement Officer condones the delay in filing the said appeal, then the said appeal shall be deemed to have been filed within time and shall be deemed to be pending on the date of de-notification. This view is supported by law laid down in case of Tarachand Vs DDC (supra). It can not be disputed that the Settlement Officer and the DDC have jurisdiction to decide the questions of shares of the parties in view of earlier Judgments passed by the Revenue Courts in earlier proceedings between the same parties. Thus, in the instant matter once by the order dated 24.09.1990 the Settlement Officer has condoned the delay in filing the appeal, the appeal has to be decided on merits, hence the ground of delay in filing the appeal does not provide any help to the petitioners. The contention that the appeal filed by the contesting respondents was not maintainable and the Settlement Officer of Consolidation has no jurisdiction to entertain the same and pass the order dated 24.09.1990 after de-notification under Section 52 of the U.P. C.H. Act, has no force. It was pointed out that at one place petitioners are claiming that shares of the parties have been finally decided by order dated 28.04.1973 and on the other hand they themselves have challenged the order dated 28.04.1973 by means of writ petition No.23691 of 1987 (Jagnandan and others Vs. Deputy Director of Consolidation and others) before this Court. In view these facts, it could not be said that the shares of the parties were finally decided by order dated 28.04.1973. It was rightly contended on behalf of the contesting respondents that the question of share is a legal question and it has to be decided between the parties on the basis of pedigree of the parties as per law and in view of the earlier judgments of the Revenue Courts passed between the parties and not on the basis of alleged admission of the parties as no estoppel would operate in such matter. Further, regarding alleged admission of the respondents No.5 to 14 admitting their share as 1/2 in civil suit and in consolidation proceedings, it was shown that the written statement, in which they have mentioned their share as ½, was subsequently amended and in the said suit also they have claimed 2/3rd share. The contesting respondents are claiming their share on the basis of judgments and orders passed by the competent Revenue Courts, which have attained finality and the same could not be nullified by the Consolidation Courts. Further, in case of Ram Lakhan Vs. Deputy Director of Consolidation and others (supra), it was observed that incorrect statement about their shares made by opposite parties in Consolidation Courts regarding their shares in Khata in dispute cannot be made basis to deprive of their legal share. In view of aforesaid facts, it can not be said that the claim of answering respondents was barred by the provisions of Section 11-A of the C.H. Act. The Judgments and orders passed by the Revenue Courts determining the correct share of respondents No. No.5 to 14 were filed by them before the Settlement Officer of Consolidation and the DDC in Appeal and Revision and those authorities have rightly taken the notice of those Judgments while passing the orders dated 24.09.1990 and 27.09.1995 respectively. The DDC has rightly passed the order dated 27.09.1995 allowing the revision of the private respondents and remanding the matter to Consolidation Officer to decide the question of shares of the parties as fresh in view of the earlier Judgments and orders passed by the Revenue Courts. The order dated 27.09.1995 passed by the DDC is just and proper and both the parties would get opportunity to prove their claims before Consolidation Officer. Considering entire facts, no case for interference in impugned order is made out and the writ petition is liable to be dismissed.
54. In view of aforesaid the second appeal and all the three writ petitions are dismissed. Interim order, if any, stands vacated.
55. The parties shall bear their own costs.
Order Date :-04.03.2024 Anand