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IN THE HIGH COURT OF ALLAHABAD
SIDDHARTH, J.
Amar Singh – Appellant
Versus
Ranpal Singh and Others – Respondents
First Appeal No. 428 of 2019
Decided On : 03-09-2021
Civil Procedure Code,1950 - Order XI - U.P. Zamindari and Abolition and Land Reforms Act, 1950 - Sections 9,13,14,163,186,211,122-B,122-C,194,195, 197,198,331 - Rule 115N, 115-L,115-T - Evidence Act ,1872 – Section 103 ,62,63,64,65, 74, 77,114,114(g) - Specific Relief Act - United Provinces Panchayat Raj Act, 1947 - Sections 4, 15, 16, 28-B and 34 - Suit for Land Possession - Grant of lease - Partition - Public documents - Whether defendant no. 1/appellant has proved disputed area of about 150 square yard in plot no. 120 to be his exclusive property on the basis of residential lease - Whether prior to 01.11.1975 permission of Assistant Collector/Sub- Divisional Officer was required for execution of lease and the trial court has ignored the evidence produced before it by the defendant no. 1/appellant without considering the correct legal position - Whether till the lease in question is cancelled by competent revenue court in accordance with law, it is binding on Civil Court and cannot be ignored by it?
Finding of the court: It is also fairly settled in law that if a transaction is void ab initio, for avoiding the same no declaration or cancellation is required, as law does not take notice of the same and it can be disregarded in collateral proceedings - Section 122-C of the UPZALR Act was inserted for the first time, vide Uttar Pradesh Land (Laws) Amendment Act, 1971 which was published in the Official Gazette. Sub-Section 2 of Section 122-C which was inserted vide the aforesaid amendment specifically required obtaining of previous approval of the Assistant Collector before making allotment - Provisions of Section 65 of Act 1872 provide for permitting parties to adduce secondary evidence - However, such a course is subject to a large number of limitations - In a case where original documents are not produced at any time nor any factual foundation has been led for giving secondary evidence it is not permissible for the court to allow a party to adduce secondary evidence – Thus secondary evidence relating to contents of a document is inadmissible until non production of original is accounted for so as to bring it within one or other of cases provided for in section - Secondary evidence must be authenticated by foundational evidence that alleged copy is in fact a true copy of original - Mere admission of a document in evidence does not amount to its proof - Therefore documentary evidence is required to be proved in accordance with law - Court has an obligation to decide question of admissibility of a document in secondary evidence before making endorsement thereon - 103. Burden of proof as to particular fact - Burden of proof as to any particular fact lies on that person who wishes Court to believe in its existence unless it is provided by any law that proof of that fact shall lie on any particular person - This court finds that defendant no. 1/appellant in his Written Statement as well as in his examination in chief had taken only one ground to resist claim of partition viz. a portion of suit propertywhich lies on western side of suit property as exclusive property which he had acquired by means of a residential lease and thus same could not form a part of subject matter of partition - Section 64 of Evidence Act provides that documents must be proved by primary evidence which as per Section 62 of Evidence Act means document itself - No allotment certificate or any such document was produced by defendant no. 1/appellant
Result: Appeal dismissed
JUDGMENT :
SIDDHARTH, J.
1. Heard Sri. Chandra Kumar Rai, learned counsel for the appellant and Sri. Kunal Shah, learned counsel for the respondents and perused the record of the court below.
2. This first appeal has been preferred by the defendant-appellant against the judgment and decree dated 13.03.2019 passed by Civil Judge (Senior Division), Gautambuddh Nagar in Original Suit No. 1334 of 2010 (Ranpal Singh vs. Amar Singh and Others).
3. Plaintiff/respondent no. 1 instituted an Original Suit No. 1334 of 2020 praying for a decree of partition of 1/5 share in respect of property in dispute shown by letters A, B, C and D being Khasra No. 120, area 525 square yards. The pedigree mentioned in the plaint is as follows:-
Amar Singh (defendant no. 1/appellant)
Late Shri Ramphal
Raghubar (defendant/respondent no. 2)
Ram Niwas (defendant/respondent no. 3)
Smt. Rameshari (defendant/respondent no. 4)
It was pleaded in the plaint that plaintiff/respondent no. 1 and defendants, who are five in numbers, are real brothers and sister. Their father died on 29.08.2007 and after his death plaintiff/respondent no. 1 and defendants are entitled to 1/5 share each in the property in dispute which is shown by letter A, B, C and D in the plaint map.
4. Defendant No. 1/appellant filed his written statement denying the plaint case. In the additional pleas the defendant no. 1/appellant stated that suit is liable to be dismissed as 150 square yard area of Khasra No. 120 was given to defendant no. 1/appellant by lease dated 11.05.1974. The same is situated in disputed area shown by letter A, B, C and D in the plaint map. The remaining area of 525 square yard of Khasra No. 120 belongs to their father Ramphal Singh in which all the five brothers and sister will be entitled to equal share. It has been also stated in the written statement that in the 150 square yard area which belongs to defendant no. 1/appellant residential house was constructed by him from his own funds. The same has no concern with the plaintiff/respondent no. 1 and defendant/ respondent nos. 2 to 4.
5. Defendant/respondent nos. 2 and 3 filed their joint written statement admitting the plaint allegations and defendant/respondent no. 4 filed her separate written statement admitting the plaint allegations.
6. The trial court framed the following six issues in the plaint:-
(2) Whether the suit is barred by provisions of Sections 34, 41 and 49 of Specific Relief Act?
(3) Whether the suit is undervalued?
(4) Whether the court fees paid by the plaintiff is insufficient?
(5) Whether the plaintiff is entitled to partition of his share on the basis of pleadings in the plaint?
(6) Whether the plaintiff is entitled to any other relief, if yes, then to what effect?
7. On behalf of the plaintiff/respondent no. 1, Ranpal Singh, was examined as PW-1 and documentary evidences were also filed in support of his case.
8. On behalf of the defendant no. 1/appellant, Amar Singh, was examined as D.W-1 and in documentary evidence original lease receipt (82 Ga-83 Ga), C.H. Form 45 (84 Ga), C.H. Form 41 (85 Ga), Khatauni, Revenue map, Electricity Bill (86 Ga to 91 Ga) were filed in support of his case.
9. The trial court heard the counsel for the parties in Original Suit No. 1334 of 2010 and perused the evidence on record and decreed the plaintiff/respondent no. 1's Suit No. 1334 of 2010 for 1/5 share in respect of property in dispute by judgment and decree dated 13.03.2019.
10. That the trial court decided issue nos. 1 and 5 together and recorded the finding that the defendant no. 1/appellant failed to prove that he has been allotted the land of 150 square yard in Khasra No. 120 by any lease of land management committee and held that since the parties are brothers and sister, the plaintiff/respondent no. 1 is entitled to his 1/5 shares in his property. Issue nos. 3 and 4 regarding valuation and court fees pai
The word “void” is used in the sense of incapable of ratification. A thing which is found non-est and not required to be set aside though, it is sometimes convenient to do so. There would be no need ....
Mandatory prior approval from the Assistant Collector is essential for land allotments under Section 122-C of the U.P. Zamindari Abolition and Land Reforms Act, making unauthorized claims invalid.
Eligibility for dealership depends on submitting all co-owners' lease deeds as per Brochure Clause; a preliminary decree is insufficient without a final decree.
The court ruled that an unregistered lease does not confer rights, and amendments changing the nature of a petition are impermissible if no enforceable rights exist.
The principle of limitation is fundamental in administrative proceedings, and actions taken after substantial delays are unsustainable under law.
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