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IN THE HIGH COURT OF ALLAHABAD
SUDHIR AGARWAL, J.
Ram Harakh And Others - Appellant
Versus
Bhagwati And Others - Respondent
Second Appeal No. 142 of 1977
Decided on : 03-07-2019
U.P. Consolidation of Holdings Act, 1953 – Section 9-A,52 – Civil Procedure Code,1908 – Section 100 – Rule 25-A – Appeal arising from judgment and decree passed by Additional District Judge, whereby it allowed appeal and set aside judgment and decree passed by Original Suit – whether judgment of Court suffers any of such defect pointed out above so as to warrant interference in appeal on merits – Held, It was open to plaintiffs to get thumb impression on compromise document examined by an Expert and place evidence to show that thumb impressions of plaintiffs 2 and 3 were not present on the document. Neither any such report was obtained by plaintiffs on their own nor they requested Court to get document examined by an Expert – Non compliance of Rule 25-A is concerned, in my view, requirement thereof is only to ensure that conciliation arrived at between parties voluntarily – Moreover, there is no such pleading in plaint that at time of execution of compromise, members of Consolidation Committee not present and Rule 25-A was not complied with and no evidence was adduced in this regard. Only on the basis of perusal of order, LAC has made out new case hence also it has committed manifest error since it has traveled beyond pleadings and evidence of parties – Judgment of Trial Court is restored and confirmed Consequently, suit of plaintiffs-respondents stands dismissed – Judgment of LAC is unsustainable is set aside – Appeal allowed. (Para: 20, 22 & 23)
Facts of the case:
Appeal arising from judgment and decree passed by Additional District Judge, whereby it allowed appeal and set aside judgment and decree passed by Original Suit – whether judgment of Court suffers any of such defect pointed out above so as to warrant interference in appeal on merits.
Findings of the court:
It was open to plaintiffs to get thumb impression on compromise document examined by an Expert and place evidence to show that thumb impressions of plaintiffs 2 and 3 were not present on the document. Neither any such report was obtained by plaintiffs on their own nor they requested Court to get document examined by an Expert – Non compliance of Rule 25-A is concerned, in my view, requirement thereof is only to ensure that conciliation arrived at between parties voluntarily – Moreover, there is no such pleading in plaint that at time of execution of compromise, members of Consolidation Committee not present and Rule 25-A was not complied with and no evidence was adduced in this regard. Only on the basis of perusal of order, LAC has made out new case hence also it has committed manifest error since it has traveled beyond pleadings and evidence of parties – Judgment of Trial Court is restored and confirmed Consequently, suit of plaintiffs-respondents stands dismissed – Judgment of LAC is unsustainable is set aside.
Result: Appeal allowed
JUDGMENT :
Sudhir Agarwal, J.
Heard Sri C.K.Rai, learned counsel for petitioners. None appeared on behalf of respondents though the case has been called in revise, hence I proceed to decide this appeal ex parte since it is a very old matter pending since last 41 years.
2. This is defendants' appeal under Section 100 of Code of Civil Procedure, 1908 (hereinafter referred to as "C.P.C.") arising from judgment and decree dated 13.12.1976 passed by Sri P.K.Sarin, IIIrd Additional District Judge, Basti, in Civil Appeal No.41 of 1974 whereby it has allowed appeal and set aside judgment and decree dated 10.01.1974 passed by Sri Prakash Narain Rai, Munsif Khalilabad at Basti in Original Suit No.139 of 1970.
3. The appeal was admitted on 27.01.1977 i.e. before amendment in Section 100 C.P.C., came into force on 01.02.1977 and therefore no substantial question of law was framed since at that time, grounds on which second appeal was entertainable were different.
4. Section 100 C.P.C., as it was prior to 01.02.1977, read as under:
"100. (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court on any of the following grounds, namely:
(a) the decision being contrary to law or to some usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.
(2) An appeal may lie under this Section from an appellate decree passed ex parte." (emphasis added)
5. Thus, if Court below has decided an issue contrary to law, or a material issue of law has not been determined or there is substantial error or defect in procedure provided in C.P.C. or any other law, which has caused error or defect in decision upon merits or decision is ex-parte, this Court can interfere.
6. I proceed to consider arguments raised by learned counsel for appellant to examine whether judgment of Court below suffers any of such defect as pointed out above so as to warrant interference in the appeal on merits.
7. The facts in brief giving rise to this appeal are that, plaintiffs Bhagauati, Rudal, Ghamandi and Baburam, sons of Khelawan instituted Original Suit No.139 of 1970 in the Court of Munsif Khalilabad at Basti impleading Ram Harakh and Rajdei as defendants 1 and 2 (First Set) and Jagram and Smt Shoharta as defendants 3 and 4 (Second Set) for cancellation of order of Assistant Consolidation Officer, Circle No.12 (hereinafter referred to as "ACO") dated 13.12.1963, passed in Case No.169, Ram Harakh vs. Bhagauti.
8. Plaint case set up by plaintiffs shows that plaintiffs and defendants are part of same family tree and to show relationship, pedigree is given as under :
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| Sheo Narain |
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| Gaya |
| Gajadhar |
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| Vishun | Behari | Kalpoo |
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| Lakhai |
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| Khelawan | Karla | Jaikaran | Ram Harakh(deft) |
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| Pyarey | Raj Mani |
| Rajdei(Deft.) | X | Jagram |
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| Shoharata |
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| Ram Nath | Jageshar | Jaishree | Moti | Rama Nand |
| Bhagauati (Plaintiff) | Rudal (Plaintiff) | Ghamandi (Plaintiff) | Baburam (Plaintiff) |
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| Bhagirathi | Dhanpat | Sitaram |
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9. Consolidation operation had already taken place in Village Reksa Dewai, Tappa Ujiyar and notification under Section 52 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as "Act, Act, 1953") had also been published. Land, detailed in list-A, was ho
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