Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1918 OF 2007

AMAR NATH ……… APPELLANT

Vs.

KEWLA DEVI & ANR. ………RESPONDENTS

J U D G M E N T

V.GOPALA GOWDA J.

This appeal is directed against the impugned

judgment and order dated 08.04.2005 of the High

Court of Uttar Pradesh at Allahabad wherein the High

Court allowed the appeal filed by the respondents

Page 2 C.A. No. 1918 of 2007

and set aside the order passed by the Additional

District Judge and upheld the findings of the trial

court. The appellant has appealed against the

impugned judgment urging various legal and factual

contentions, the main contention being that the High

Court has allowed the appeal without framing

substantial question/questions of law although it is

mandatory as per Section 100 of the Code of Civil

Procedure, 1908 (hereinafter referred to as the

‘CPC’).

2. The relevant facts of the case in brief are

stated hereunder:

The appellant, Amar Nath is the plaintiff whose

father, Vaij Nath is the brother of Ram Nath and Ram

Dev. The respondent no.1 - the defendant is the only

daughter of Ram Nath. Ram Dev, the third brother

died without issue. The appellant, Amar Nath filed a

suit for possession of the suit schedule property

and prayed for quashing of order dated 14.02.1970

passed by the Consolidation Officer during the

2

Page 3 C.A. No. 1918 of 2007

Consolidation proceedings on the ground that

defendant no.1 in connivance with defendant no.2,

taking benefit of the appellant’s mental weakness

and illiteracy have recorded their name over the

land in dispute, and the Consolidation Officer

rejected the appellant’s objection holding that it

was not pressed and directed that existing entries

shall continue. He prayed for quashing the order of

the Consolidation Officer on the ground that fraud

was played on him and he had no knowledge of the

order. The trial court on the basis of the pleadings

has framed 12 issues and after trial, it has decided

issue nos. 1 and 12 against the appellant, holding

that the appellant is not co-bhumidhar over the land

in dispute and further held that the suit is barred

by limitation. The trial court also held that the

suit is barred by Section 331 of the UP Zamindari

Abolition and Land Reforms Act, 1950 and he should

instead file a suit before the Revenue Court for his

bhumidhar right over the disputed land and for the

relief of possession also of the suit schedule

3

Page 4 C.A. No. 1918 of 2007

property. It was further held that the suit is

barred by Section 49 of the UP Consolidation of

Holdings Act, 1953 as well as by limitation. The

trial court also held that the suit is barred by the

principle of estoppel as well as under Sections 34

and 41 of the Specific Relief Act as the defendant

has got exclusive possession over the land in

dispute. Although the trial court held that the

appellant had cause of action to file the suit, it

went on to hold that as the appellant did not press

the objection filed by him in the consolidation

proceedings and he entered into a compromise with

the defendant, handing over his share in favour of

the defendant which is not based on fraud, coercion

or undue pressure and no allegation of the same has

been mentioned in the suit, and no evidence either

was placed on record. Hence, the trial court held

that the appellant is not entitled for the relief as

prayed for in the suit, and thereby dismissed the

suit with costs. Importantly, even though the suit

was dismissed the trial court demolished the

4

Page 5 C.A. No. 1918 of 2007

contention of the defendants that Amar Nath, the

appellant was not Vaij Nath’s son. The trial court

held that Amar Nath was indeed the son of Vaij Nath,

relying on the deposition of witnesses examined on

behalf of the appellant and on documentary evidence

produced on his behalf i.e. the copy of electoral

register of 1991 and ration card in which it is

recorded that he is Amar Nath s/o Vaij Nath. The

trial court took into account the admission of DW-1,

Shyama Chand Tiwari, the husband of defendant no.1

who has recorded his statement on oath in the court

wherein he has himself stated that ‘Amar Nath s/o

Vaij Nath had himself withdrawn his case from the

consolidation proceedings’.

3. The appellant appealed against the judgment and

decree of the trial court by filing a civil appeal

under Section 96 of the CPC in the first appellate

court, through the Court of the Additional District

Judge. The first appellate court held vide judgment

and decree dated 01.02.2005 that the appellant had

5

Page 6 C.A. No. 1918 of 2007

only to prove that he is son of Vaij Nath who was

the son of Gaya and he is their legal heir and the

trial court, instead of examining important and

reliable evidence of the witnesses has rather

examined different interested persons, ignoring the

records available before it which constituted

complete evidence in favour of the appellant. If

evidence were that Amar Nath was son of Vaij Nath

then automatically the court should have given half

portion of the land in dispute to the appellant

along with defendant Kewla Devi. The appeal was

allowed as the conclusion arrived at by the trial

court were not supported by the pleadings and

evidence available on record.

4. The respondents-defendants filed the second

appeal before the High Court against the judgment

and decree of the first appellate court. It was

contended by the respondents that the disputed land

was inherited by respondent No.1 from her father

during consolidation proceedings in the year 1969-

6

Page 7 C.A. No. 1918 of 2007

1970 and some opponent of theirs set up the

appellant to file an objection which was later on

withdrawn by him by moving an application dated

14.02.1970. It was alleged that the appellant does

not belong to the family of the respondents and he

is not the heir of Gaya. The appellant alleged that

fraud was committed on him and the order dated

14.02.1970 passed by the Consolidation Officer was

fraudulent and liable to be set aside. He pleaded

that he was defrauded by the respondents and they

made him to believe that they are managing the

disputed land. The High Court held that as per Order

6 Rule 4 of the CPC, when fraud, breach of trust

etc. are alleged, particulars of the same must be

stated in the pleading and in the present case, no

particulars of fraud were made as part of the

pleading and in the absence of such pleading no

evidence can be looked into and a finding that the

order has been fraudulently procured cannot be

given. As a result, the second appeal of the

respondents was allowed and the High Court set aside

7

Page 8 C.A. No. 1918 of 2007

the judgment and decree of the first appellate

court. Hence, this civil appeal.

5. The learned counsel for the appellant contends

that the appellant pleaded about the fraud played

and further clarified it in the evidence led by him

and that he was assured by the husband of respondent

No.1 that his share will be recorded in his name and

that he committed fraud upon him. He further stated

that the appellant had no knowledge about the

consolidation order dated 14.02.1970 and that he had

not filed any application in the Consolidation

Court. He contended that the suit was not barred

under Section 49 of the UP Consolidation of Land

Holdings Act and also Section 331 of the UP

Zamindari Abolition and Land Reforms Act, 1950 as by

filing the present suit, the appellant prayed for

quashing of the order dated 14.02.1970 which, he

contended, was obtained by fraud and the power to do

this lies only with the civil court. Further, the

trial court has committed a grave error by not

decreeing the suit by giving half the portion of the

8

Page 9 C.A. No. 1918 of 2007

disputed property to the appellant when the trial

court itself had held in para 18 of its judgment

that the appellant was the son of Vaij Nath and the

legal heir of Gaya. The appellant then contended

that the High Court has committed a serious error of

procedure by allowing the second appeal without

framing any substantial question of law as per

requirement of Section 100 of the CPC.

6. The learned counsel for the respondent has

submitted that the High Court has dealt with the

appeal without framing substantial question of law

which is mandated as per Section 100 of the CPC.

Further, the High Court has not gone into the

question whether the suit was barred by Section 49

of the UP Consolidation of Land Holdings Act and

Section 331 of the UP Zamindari Abolition and Land

Reforms Act. The learned counsel relied on the case

of Madan Mohan Mishra v. Chandrika Pandey (Dead) by

LRs

1

to contend that this Court has clearly held

that the jurisdiction of a civil court is barred in

1

(2009) 3 SCC 720

9

Page 10 C.A. No. 1918 of 2007

respect of agricultural land and in Madan Mohan

Singh & Ors. v. Rajni Kant & Anr.

2

, it was held that

the statutory authorities under the Consolidation of

Holdings Act enjoy the powers of a civil court as

well as a revenue court as all matters pending

before the civil court abate once notification of

initiation of proceedings is issued under the Act.

He stated that the authorities under the

Consolidation Act have been conferred the powers of

a civil court to adjudicate upon any matter of title

or right to inherit property. Therefore, it was

submitted that the matter be remitted to the High

Court for formulating substantial question of law

and then decide the second appeal on its merits or

this Court may be pleased to consider the effect of

Section 49 of the UP Consolidation of Land Holdings

Act and Section 331 of the UP Zamindari Abolition

and Land Reforms Act on merits.

7. We have heard the learned counsel for both the

parties. The following questions arise before us:

2

(2010) 9 SCC 209

10

Page 11 C.A. No. 1918 of 2007

a.Whether the High Court was correct in

deciding the appeal without formulating

substantial questions of law and whether

the matter must be remitted back to the

High Court?

b.Whether the suit of the appellant was

barred by Section 49 of the UP

Consolidation of Land Holdings Act and

Section 331 of the UP Zamindari

Abolition and Land Reforms Act?

c.Whether the order passed by the

Consolidation Officer dated 14.02.1970

must be declared illegal and void?

d.What order/decree to be passed?

We will deal with each of these issues separately

along with supplementary issues that would arise out

of them.

8. Answer to point no.1:

In our considered viewpoint, the High Court has

committed a grave error in procedure by not framing

substantial question of law and setting aside the

judgment and decree of the first appellate court.

The finding of fact recorded by the first appellate

court on the contentious issues was based on re-

11

Page 12 C.A. No. 1918 of 2007

appreciation of the pleadings and evidence on record

and careful perusal of the law and the High Court

has failed to discharge its duty by not framing the

mandatory substantial questions of law in order to

examine the correctness of the judgment and decree

passed by the first appellate court. In the interest

of justice, the judgment and decree of the High

Court has to be set aside as it has omitted to frame

substantial questions of law and answer the same and

thus has failed to discharge its duty under S.100 of

the CPC. The learned counsel for the respondent has

relied on the cases of Surat Singh v. Hukam Singh

Negi

3

and Hardeep Kaur v. Malkiat Kaur

4

in order to

establish that the High Court is bound to formulate

substantial questions of law at the initial stage

itself if it has to satisfy itself that the matter

deserves to be admitted and the second appeal to be

heard and decided on such questions and further even

at the time of hearing of the second appeal, it is

open to the High Court to reformulate substantial

3

(2010) 15 SCC 525

4

(2012) 4 SCC 344

12

Page 13 C.A. No. 1918 of 2007

questions of law. In the judgments relied upon, the

impugned judgments of the High Court were set aside

and the matter was remitted to the High Court for

consideration afresh after formulation of the

substantial questions of law. The learned counsel

for the respondents has prayed for the same.

9. We do not think it necessary to remit the matter

back to the High Court for fresh consideration. We

feel it is sufficient to set aside the impugned

judgment and uphold the well-reasoned judgment of

the first appellate court where it was held that the

very fact that the trial court held that it was

proved that Amar Nath was s/o Vaij Nath based on the

evidence on record, then automatically the court

should have given half the portion of the disputed

land to the appellant along with defendant no.1,

Kewla Devi. Instead, the trial court as well as the

Consolidation Officer have passed judgments that are

bad in law as they have failed to see that the right

of the appellant cannot simply be extinguished

13

Page 14 C.A. No. 1918 of 2007

because of the defendants’ plea that he has entered

into a compromise. The defendants have taken undue

advantage of the appellant’s illiteracy and the

Consolidation Officer has abdicated his role by

allowing the objection of the appellant to be

withdrawn and by not examining whether or not the

appellant was indeed the S/o Vaij Nath who was the

S/o Gaya. The order of the Consolidation Officer is

thus bad in law and it has resulted in a grave

miscarriage of justice. We think it fit to restore

the judgment and decree passed by the first

appellate court wherein the court declared that the

appellant, Amar Nath is S/o Vaij Nath who was son of

Gaya thereby holding that the order passed by the

Consolidation Officer is void and illegal and the

trial court was wrong in not quashing the order of

the Consolidation Officer and that nowhere in the

revenue record was his name recorded and fraud was

committed against him as defendant no.1, Kewla Devi

has got her name recorded in each and every revenue

record. The judgment of the first appellate court

14

Page 15 C.A. No. 1918 of 2007

is legal and valid as it is fair and keeping with

the principles of justice. The trial court in its

answer to issue nos. 1 and 10 has rightly held that

Amar Nath is S/o Vaij Nath who was undisputedly the

son of Gaya and if that fact was proved, then we see

no reason why it was not directed for the

appellant’s name to be recorded in the revenue

records. The right of the appellant over the suit

schedule property cannot be extinguished simply

because objection was withdrawn, over which there is

a cloud of doubt anyway and also, the appellant has

pleaded that he had no idea about the order of the

Consolidation Officer in the first place. We find it

highly likely that fraud was committed on him by the

defendants as well as the Consolidation Officer by

not recording his name in the revenue records as the

defendants have taken undue advantage of his

illiteracy so that the whole property goes to the

defendants.

15

Page 16 C.A. No. 1918 of 2007

10. Answer to point no.2:

The question whether the original suit of the

appellant was barred under Section 49 of the UP

Consolidation of Land Holdings Act and Section 331

of the UP Zamindari Abolition and Land Reforms Act,

we answer in the negative. The suit was not barred

under the aforesaid provisions as the UP Zamindari

Abolition and Land Reforms Act has no jurisdiction

to deal with the subject matter. On the issue of

Section 49 of the UP Consolidation of Land Holdings

Act, we hold that the present case is not barred

under this section as it is a suit for possession of

the suit schedule property based on title, which is

not within the jurisdiction of the authorities under

the aforesaid Act. In the case of Suba Singh v.

Mahendra Singh & Ors.

5

, it was observed by this

Court that Section 49 does not bar jurisdiction of

civil courts in matters of title to the land stating

that -

5

(1974) 1 SCC 418

16

Page 17 C.A. No. 1918 of 2007

“9. …The result is that the

plea of bar of the civil

courts’ jurisdiction to

investigate and adjudicate upon

the title to the land or the

sonship of the plaintiff has no

substance….”

Therefore, since the present case too involves a

question of ‘sonship’ of the plaintiff who is the

appellant herein, there is no bar to the

jurisdiction of civil courts under Section 49 of the

aforesaid Act, in deciding the question of the

appellant’s right to the land he has inherited from

his father.

11. Answer to point nos.3 & 4:

The order of the Consolidation Officer dated

14.2.1970 was obtained on the basis of fraud by the

defendants. We feel that the Consolidation Officer

has also committed fraud on the appellant, by

accepting withdrawal of his objection and not going

into the issue of whether he is the s/o Vaij Nath or

not, and therefore whether he is the rightful heir,

with a right in half-share of the disputed property.

17

Page 18 C.A. No. 1918 of 2007

The Consolidation Officer has not discharged his

duties properly and keeping with law has not given

details of the objection or why the objection was

not pressed by the appellant in his order. He has

permitted a gross miscarriage of justice to continue

by recording of the name of defendant no.1 as the

only rightful heir to the land in dispute. In the

case of S. Partap Singh v. State of Punjab

6

,

Ayyangar J. in his portion of the judgment at para 6

has quoted Lord Denning (in the case Lazarus Estates

Ltd. v. Beasley 1956 1 All ER 341 at p.345) stating:

“No judgment of a Court, no order

of a Minister can be allowed to

stand if it has been obtained by

fraud.”

The Consolidation officer without examining the

alleged statement made on behalf of the appellant

and verifying the correctness of the same has

accepted the withdrawal of his objection and has

passed the order without examining the rights of the

parties with reference to the documents in relation

to the suit schedule property.

6

AIR 1964 SC 72

18

Page 19 C.A. No. 1918 of 2007

12. We therefore hereby declare the order of the

Consolidation Officer to be null and void on grounds

of patent illegality and acting with legal malice.

The appellant has contended that he had no idea about

the Consolidation order and was made aware of it only

when he asked for his half share of crop which the

defendants refused to him, and that he was made to

sign an agreement in which he signed over his rights

to the property and that he has been taken advantage

off due to his illiteracy. We find all this extremely

murky and it was incumbent upon the Consolidation

Officer to properly enquire into the ownership of the

land before recording the defendant’s name in the

revenue records. We further hold that the appellant -

Amar Nath is entitled to be recorded in the revenue

records by the competent authorities as half share

owner of the land in dispute, as he has a right to

half the share in the property and crops, as it being

the ancestral property of his father – Vaij Nath. It

has been proved by examining the evidence on record,

19

Page 20 C.A. No. 1918 of 2007

such as the election identity card, that Amar Nath is

indeed the s/o Vaij Nath thereby it has demolished

the contention of the defendants that the appellant

is not the s/o Vaij Nath.

13. In view of the foregoing reasons, we hold that

the appellant is the half share owner of the land in

question and further uphold his right to the

ancestral property. We direct the competent

authority to record the name of the appellant – Amar

Nath in the revenue records as half share owner of

the land in dispute. Thus, we hereby set aside the

impugned judgment and decree of the High Court and

uphold the judgment of the first appellate court.

The appeal is allowed in the aforesaid terms with no

order as to costs.

……………………………………………………………………… J.

[GYAN SUDHA MISRA]

……………………………………………………………………… J.

[V. GOPALA GOWDA]

New Delhi,

April 22, 2014

20