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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO.     6479  …  .     OF     2012   [Arising out of SLP (Civil) No. 26423 of 2009]

State of Uttarakhand (Previously State of Uttar Pradesh) .. Appellant

Versus

Mohan Singh & Others .. Respondents

WITH

CIVIL     APPEAL     NO.6480  …  .     OF     2012   [Arising out of SLP (Civil) No. 26426 of 2009]

AND CIVIL     APPEAL     NO.     6481  …  .     OF     2012   

[Arising out of SLP (Civil) No. 28585 of 2009]

O     R     D     E     R   

1. Delay condoned.

2. Leave granted.

3. Heard learned counsel on either side.

4. Respondents herein had filed a suit, being Revenue Case No.  

22/45 Year 1989-90, before the Sub Divisional Magistrate/Assistant  

Collector (SDM), under Section 229B of the Uttar Pradesh Zamindari  

Abolition and Land Reforms Act, 1950 (for short ‘U.P. Act’) stating that  

they were in continuous cultivation and in possession of land

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measuring 0.515 hectare in Plot No. 137 of Khata No. 44 in village  

Itawa Tehsil Sitargunj, District Nainital, for over 20 years.  Despite  

having adverse possession, their names had not been recorded as  

Bhumidars in the Revenue Records and hence a declaration was  

sought for to that effect.   

5. The Court of the SDM, however, dismissed the suit vide  

judgment dated 19.03.1991 holding that the respondents could not  

establish adverse and continuous possession over the disputed land  

and that the land in question belonged to Tharu tribe and the  

Bhumidar right could not be obtained by non-Tharu tribe persons.  

Aggrieved by the said judgment, the respondents took up the matter  

in appeal before the Additional Commissioner (Judicial), Kumaon  

Division, Nainital under Section 331 of the U.P. Act.   

  6. The appeal was elaborately considered by the Additional  

Commissioner, on law as well as on facts, and he recorded a finding  

that the land in dispute belonged to original ‘Kashtkar’  (tillers) of the  

land, members of Tharu tribe and on their land the respondents could  

not claim any Bhumidar rights.  Further, it was also held that the  

adverse possession of the respondents for prescribed period before  

3.6.1981 could not be proved.  Holding so, the appeal was dismissed

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vide judgment dated 12.07.1991 and the order of the SDM was  

confirmed.

7. The respondents again took up the matter in two separate  

appeals before the Board of Revenue under Section 331(4) of the U. P.  

Act and both the appeals were heard together.  The respondents  

claimed that their rights had been perfected before the Act 20 of 1982  

came into force by which the provision prohibiting the perfection of  

title on the land belonging to Scheduled Tribe was added.

8. The Board of Revenue took the view that the Lakhpal, examined  

on behalf of the State, had admitted the possession of the  

respondent’s land and they were in continuous possession for over  

twenty years on the date of the institution of the suit and had  

perfected their title under Section 210 of the U.P. Act, before  

incorporation of the proviso by Act No. 20 of 1982.  The Board of  

Revenue, therefore, allowed the appeals and decreed the suit vide its  

order dated 29.1.1992 and set aside the orders passed by the SDM  

and the Additional Commissioner.

9. State of Uttarakhand (previously State of Uttar Pradesh), through  

the District Collector, preferred Writ Petition (M/S) Nos. 4031 of 2001

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and 4034 of 2001 etc., before the High Court of Uttarakhand at  

Nainital.  The High Court dismissed both the writ petitions vide order  

dated 21.11.2008 following its earlier order dated 07.08.2008 passed  

in Writ Petition No. (M/S) 4035 of 2001.  Aggrieved by the same,  

these appeals have been preferred by the State of Uttarakhand.

10. Smt. Rachana Srivastava, learned counsel appearing for the  

State of Uttarakhand, submitted that the High Court and the Board of  

Revenue have committed an error in reversing the well considered  

judgments of the SDM and the Additional Commissioner.  Learned  

counsel pointed out that they had come to the definite conclusion on  

facts that the respondents had not established any right under Section  

210 of the U.P. Act.  The Revenue record produced would clearly  

establish that the respondents had not perfected their title by adverse  

possession or otherwise.  Further, it was also pointed that the Board of  

Revenue had failed to frame any substantial question of law as per  

Section 331(4) of the U. P. Act and under Section 100 C.P.C. as  

amended, consequently, committed a grave error in reversing the  

concurrent findings rendered by the SDM and the Additional  

Commissioner.

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11. Shri Somnath Padhan, learned counsel appearing for the  

respondents, on the other hand, contended that the Board of Revenue  

had come to the right conclusion that the respondents had perfected  

their title over the disputed land, since the documents produced by  

them had established that they were in possession for more than 20  

years, but their names were not recorded in the Revenue records as  

Bhumidars.  Further, it was also stated that the appeals filed by the  

respondents before the Board of Revenue were not properly contested  

by the defendants.  Learned counsel also pointed out that Lakhpal,  

who was examined on behalf of the State, had also admitted the  

possession of the respondents and that the respondents had perfected  

their title under Section 210 of the U.P. Act before the incorporation of  

the proviso by Act 20 of 1982.  Learned counsel also pointed out that  

the High Court has, therefore, rightly dismissed the writ petitions filed  

by the State.

12. Let us first examine whether the Board of Revenue has correctly  

appreciated the nature and scope of its power while entertaining a  

second appeal under Section 331(4) of the U. P. Act.  Learned counsel  

appearing for the State, as already indicated, submitted that the Board  

of Revenue ought to have framed questions of law, if it was satisfied

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that the case involved substantial questions of law.  Since the Board of  

Revenue failed to frame any substantial question of law, as per Section  

100(4) C.P.C., the order passed by the Board of Revenue was illegal,  

consequently, the writ petitions filed by the State should have been  

allowed.  Learned counsel appearing for the respondents submitted  

that though the Board of Revenue did not frame any question of law as  

such, it had considered all aspects of the matter and came to the  

correct conclusion that the respondents had proved their possession  

for more than 20 years and, therefore, entitled to get the benefit of  

Section 210 of the U.P. Act.

13. In order to examine the contentions raised by the counsel on  

either side, it is necessary to first examine the scope of Section 331  

(3) and (4) and those provisions are extracted below for our easy  

reference:

“331.  Cognizance of suits, etc. under this Act.-  

xxx xxx xxx xxx xxx xxx

(3) An appeal shall lie from any decree or from an order  passed under Section 47 of an order of the nature  mentioned in Section 104 of the Code of Civil Procedure,  1908 (V of 1908) or in Order XLIII, Rule 1 of the First  Schedule to that Code passed by a court mentioned in

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column No. 4 of Schedule II to this Act in proceedings  mentioned in column No. 3 thereof to the court or authority  mentioned in column No. 5 thereof.

(4) A second appeal shall lie on any of the grounds specified  in Section 100 of the Code of  Civil Procedure, 1908 (V of  1908) from the final order or decree, passed in an appeal  under sub-section (3), to the authority, if any, mentioned  against it in Column 6 of the Scheduled aforesaid.”

14. Sub-section (4) of Section 331 also refers to Column 6 of  

Schedule II.  Hence, the relevant portion of the Schedule is also  

extracted hereunder:

“SCHEDULE II (Section 331)

Serial  No.

Section Description of  proceedings

Court of original  jurisdiction

Court     of   First           Second Appeal        Appeal

1 2 3 4    5                 6 xxx xxx xxx xxx   xxx             xxx

34. 229, 229- B, 229-C

Suit for  declaration of  rights

Assistant Collector,  1st Class

Commissioner  Board

15. Sub-section (4) of Section 331 of U.P. Act states that a second  

appeal shall lie on “any of the grounds” specified in Section 100 C.P.C.,  

1908.

Section 100 C.P.C., as it stood prior to 1.2.1977, reads as  

follows:

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“(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.”

After Section 100 was substituted by the Act 104 of 1976 with  

effect from 1.2.1977, it reads as follows:

“100. Second appeal.-(1) Save as 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 the High Court, if the High Court is  satisfied that the case involves a substantial question of  law.   

(2) An appeal may lie under this section from an  appellate decree passed ex-parte.

 (3) In an appeal under this section, the memorandum  

of appeal shall precisely state the substantial question of  law involved in the appeal.

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 (4) Where the High Court is satisfied that a substantial  

question of law is involved in any case, it shall formulate  that question.

 (5) The appeal shall be heard on the question so  

formulated and the respondent shall, at the hearing of the  appeal, be allowed to argue that the case does not involve  such question:   

Provided that nothing in this sub-section shall be  deemed to take away or abridge the power of the Court to  hear, for reasons to be recorded, the appeal on any other  substantial question of law, not formulated by it, if it is  satisfied that the case involves such question.”

16. U.P. Act received the assent of the President on 24.1.1951.  It  

was published in the U.P. Gazette (Extraordinary) dated 26.1.1951.  

Sub-section (4) of Section 331 has incorporated the unamended  

Section 100 C.P.C.  The question that calls for consideration is whether  

sub-section (4) of Section 331 carries with it the amended Section 100  

C.P.C. as well, consequently, making it obligatory for the Board of  

Revenue to frame substantial questions of law.

17. The question, therefore, calls for consideration is whether  

reference to Section 100 in sub-section (4) of Section 331 is by way of  

referential legislation or legislation by incorporation.  A subsequent  

legislation often makes a reference to earlier legislation so as to make

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the provisions of the earlier legislation applicable to matters covered  

by later legislation.  Such a legislation may either be (i) a referential  

legislation which merely contains a reference to or the citation of the  

provisions of the earlier statute; or (ii) a legislation by incorporation  

whereunder the provisions of the earlier legislation to which reference  

is made are incorporated into the later legislation by reference.   

18. The question how the above two principles operate came up for  

consideration in U.P. Avas Evam Vikas Parishad v. Jainul Islam  

and Another (1998) 2 SCC 467  before a three-judge Bench of this  

Court and it was held as follows:

“17. A subsequent legislation often makes a reference  to an earlier legislation so as to make the provisions of the  earlier legislation applicable to matters covered by the later  legislation. Such a legislation may either be (i), a referential  legislation which merely contains a reference to or the  citation of the provisions of the earlier statute; or (ii) a  legislation by incorporation whereunder the provisions of  the earlier legislation to which reference is made are  incorporated into the later legislation by reference. If it is a  referential legislation the provisions of the earlier legislation  to which reference is made in the subsequent legislation  would be applicable as it stands on the date of application  of such earlier legislation to matters referred to in the  subsequent legislation. In other words, any amendment  made in the earlier legislation after the date of enactment  of the subsequent legislation would also be applicable. But  if it is a legislation by incorporation the rule of construction  is that repeal of the earlier statute which is incorporated  does not affect operation of the subsequent statute in which

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it has been incorporated. So also any amendment in the  statue which has been so incorporated that is made after  the date of incorporation of such statute does not affect the  subsequent statute in which it is incorporated and the  provisions of the statue which have been incorporated  would remain the same as they were at the time of  incorporation and the subsequent amendments are not to  be read in the subsequent legislation. In the words of Lord  Esher, M.R., the legal effect of such incorporation by  reference "is to write those sections into the new Act just as  if they had been actually written in it with the pen or  printed in it, and, the moment you have those clauses in  the later Act, you have no occasion to refer to the former  Act at all." [See: Wood's Estate, Re, Ch D at 615.] As to  whether a particular legislation falls in the category of  referential legislation or legislation by incorporation  depends upon the language used in the statute in which  reference is made to the earlier legislation and other  relevant circumstances. The legal position has been thus  summed up by this Court in State of Madhya Pradesh v. M.  V. Narasimhan: (SCR p. 14 : SCC p. 385, para 15)

"where a subsequent Act incorporates provisions of a  previous Act then the borrowed provisions become an  integral and independent part of the subsequent Act  and are totally unaffected by any repeal or  amendment in the previous Act. This principle,  however, will not apply in the following cases:

(a) Where the subsequent Act and the previous  Act are supplemental to each other,

(b) where the two Acts are in pari materia;

(c) where the amendment in the previous Act, if  not imported into the subsequent Act also, would  render the subsequent Act wholly unworkable and  ineffectual; and

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(d) where the amendment of the previous Act,  either expressly or by necessary intendment,  applies the said provisions to the subsequent Act."  

19. Law is, therefore, clear that a distinction has to be drawn  

between a mere reference or citation of one statute into another and  

incorporation.  In the case of mere reference of citation, a  

modification, repeal or re-enactment of the statute that is referred will  

also have effect for the statute in which it is referred; but in the latter  

case any change in the incorporated statute by way of amendment or  

repeal has no repercussion on the incorporating statute.   

20. We need not further elaborate this point, since almost identical  

question came up for consideration before a three-judge Bench of this  

Court in Mahindra and Mahindra Ltd. v. Union of India and  

Another (1979) 2 SCC 529, wherein this Court dealt with the scope of  

Section 55 of the Monopolies and Restrictive Trade Practices Act, 1969  

read with Section 100 C.P.C., which reads as follows:

“55. Appeals.-  Any person aggrieved by any decision  on any question referred to in clause (a), clause (b) or  clause (c) of section 2A, or any order made by the Central  Government under Chapter III or Chapter IV, or, as the  case may be, or the Commission under section 12A or  section 13 or section 36D or section 37, may, within sixty  days from the date of the order, prefer an appeal to the

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Supreme Court on one or more of the grounds specified in  section 100 of the Code of Civil Procedure, 1908 (5 of  1908).”

21. This Court in the above mentioned case examined the scope of  

Section 55 read with Section 100 CPC, both amended and unamended.  

Section 55 provides inter alia that any person aggrieved by an order  

made by the Commissioner under Section 13 may prefer an appeal to  

this Court on “one or more of the grounds”  specified in Section 100  

C.P.C., 1908.  When Section 55 was enacted, namely, 27.12.1969,  

being the day of coming into force of the Act, Section 100 C.P.C.  

specified three grounds on which a second appeal could be brought to  

the High  Court on one of those grounds was that the decision  

appealed against was contrary to law.  Therefore, if the reference in  

Section 55 was to the grounds set out in the then existing Section 100,  

there can be no doubt that an appeal would lie to this Court under  

Section 55 on a question of law. The above aspects have been  

elaborately dealt with in Mahindra and Mahindra (supra).  The  

relevant portion of the judgment is as follows:

“8.  ……. It was sufficient under Section 100 as it stood  then that there should be a question of law in order to attract  the jurisdiction of the High Court in second appeal and,  therefore, if the reference in Section 55 were to the grounds set  out in the then existing Section 100, there can be no doubt that

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an appeal would lie to this Court under Section 55 on a question  of law. But subsequent to the enactment of Section 55,  Section 100 of the Code of Civil Procedure was substituted by a  new section by Section 37 of the Code of Civil Procedure  (Amendment) Act, 1976 with effect from 1st February, 1977 and  the new Section 100 provided that a second appeal shall lie to  the High Court only if the High Court is satisfied that the case  involves a substantial question of law. The three grounds on  which a second appeal could lie under the former  Section 100 were abrogated and in their place only one ground  was substituted which was a highly stringent ground, namely,  that there should be a substantial question of law. This was the  new Section 100 which was in force on the date when the  present appeal was preferred by the appellant and the argument  of the respondents was that the maintainability of the appeal  was, therefore, required to be judged by reference to the ground  specified in the new Section 100 and the appeal could be  entertained only if there was a substantial question of law. The  respondents leaned heavily on Section 8(1) of the General  Clauses Act, 1897 which provides:

Where this Act, or any Central Act or Regulation  made after the commencement of this Act, repeals  and re-enacts, with or without modification, any  provision of a former enactment, then references in  any other enactment or in any instrument to the  provision so repealed shall, unless a different intention  appears, be construed as references to the provision  so re-enacted.

and contended that the substitution of the new  Section 100 amounted to repeal and re-enactment of the former  Section 100 and, therefore, on an application of the rule of  interpretation enacted in Section 8(1), the reference in  Section 55 to Section 100 must be construed as reference to the  new Section 100 and the appeal could be maintained only on  ground specified in the new Section 100, that is, on a substantial  question of law. We do not think this contention is well founded.  It ignores the distinction between a mere reference to or citation  of one statute in another and an incorporation which in effect  means bodily letting a provision of one enactment and making it  a part of another. Where there is mere reference to or citation of  one enactment in another without incorporation,

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Section 8(1) applies and the repeal and re-enactment of the  provision referred to or cited has the effect set out in that  section and the reference to the provision repealed is required to  be construed as reference to the provision as re-enacted. Such  was the case in the Collector of Customs, Madras v. Nathella  Sampathu Chetty (1962) 3 SCR 786 and the New Central Jute  Mills Co. Ltd. v. The Assistant Collector of Central Excise and  Ors. (1970) 2 SCC 820. But where a provision of one statute is  incorporated in another, the repeal or amendment of the former  does not affect the latter. The effect of incorporation is as if the  provision incorporated were written out in the incorporating  statute and were a part of it. Legislation by incorporation is a  common legislative device employed by the legislature, where  the legislature for convenience of drafting incorporates  provisions from an existing statute by reference to that statute  instead of setting out for itself at length the provisions which it  desires to adopt. Once the incorporation is made, the provision  incorporated becomes an integral part of the statute in which it  is transposed and thereafter there is no need to refer to the  statute from which the incorporation is made and any  subsequent amendment made in it has no effect on the  incorporating statute. Lord Esher, M.R., while dealing with  legislation in incorporation in In re. Wood's Estate (1886) 31  Ch.D. 607 pointed out at page 615 :

If a subsequent Act brings into itself by reference  some of the clauses of a former Act, the legal effect of  that, as has often been held, is to write those sections  into the new Act just as if they had been actually  written in it with the pen, or printed in it, and, the  moment you have those clauses in the later Act, you  have no occasion to refer to the former Act at all.

Lord Justice Brett, also observed to the same effect in Clark v.  Bradlaugh (1881) 8 Q.B.D. 63, 69 :

...there is a rule of construction that, where a  statute is incorporated by reference into a second  statute, the repeal of the first statute by a third  statute does not affect the second.

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22. The Judicial Committee of the Privy Council in Secretary of  

State for India in Council v. Hindustan Co-operative Insurance  

Society Ltd. 58 I.A. 259 also applied the same rule. The Judicial  

Committee pointed out that the provisions of the Land Acquisition Act,  

1894 having been incorporated in the Calcutta Improvement Trust  

Act, 1911 and become an integral part of it, the subsequent  

amendment of the Land Acquisition Act, 1894 by the addition of Sub-

section (2) in Section 26 had no effect on the Calcutta Land  

Improvement Trust Act, 1911 and could not be read into it. Sir  

George Lowndes delivering the opinion of the Judicial Committee  

observed at page 267:

In this country it is accepted that where a  statute is incorporated by reference into a second  statute, the repeal of the first statute does not affect  the second : see the cases collected in Craies on  Statute Law, 3rd edn. pp. 349, 350.  ……. The  independent existence of the two Acts is, therefore,  recognized; despite the death of the parent Act, its  offspring survives in the incorporating Act. x x x

It seems to be no less logical to hold that where  certain provisions from an existing Act have been  incorporated into a subsequent Act, no addition to the  former Act, which is not expressly made applicable to  the subsequent Act, can be deemed to be incorporated  in it, at all events if it is possible for the subsequent  Act to function effectually without the addition.

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23. This Court in Ramswarup v. Munshi and Others  (1963) 3  

SCR 858 , held that since the definition of "agricultural land' in the  

Punjab Alienation of Land Act, 1900 was bodily incorporated in the  

Punjab Pre-emption Act, 1913, the repeal of the former Act had no  

effect on the continued operation of the latter. Rajagopala Ayyangar,  

J., speaking for the Court observed at pages 868-869 of the Report:

Where the provisions of an Act are incorporated by  reference in a later Act the repeal of the earlier Act  has, in general, no effect upon the construction or  effect of the Act in which its provisions have been  incorporated.

In the circumstances, therefore, the repeal of the  Punjab Alienation of Land Act of 1900 has no effect on  the continued operation of the Pre-emption Act and  the expression 'agricultural land' in the latter Act has  to be read as if the definition in the Alienation of Land  Act had been bodily transposed into it.

24. In Bolani Ores Ltd. v. State of Orissa (1974) 2 SCC 777,  

this Court proceeded on the same principle. There the question  

arose in regard to the interpretation of Section 2(c) of the Bihar  

and Orissa Motor Vehicles Taxation Act, 1930 (hereinafter  

referred to as the Taxation Act). This section when enacted  

adopted the definition of 'motor vehicle' contained in Section  

2(18) of the Motor Vehicles Act, 1939. Subsequently, Section

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2(18) was amended by Act 100 of 1956 but no corresponding  

amendment was made in the definition contained in Section 2(c)  

of the Taxation Act. The argument advanced before the Court  

was that the definition in Section 2(c) of the Taxation Act was not  

a definition by incorporation but only a definition by reference  

and the meaning of 'motor vehicle' in Section 2(c) must,  

therefore, be taken to be the same as defined from time to time  

in Section 2(18) of the Motor Vehicles Act, 1939. This argument  

was negatived by the Court and it was held that this was a case  

of incorporation and not reference and the definition in Section  

2(18) of the Motor Vehicles Act, 1939 as then existing was  

incorporation in Section 2(c) of the Taxation Act and neither  

repeal of the Motor Vehicles Act, 1939 nor any amendment in it  

would affect the definition of 'motor vehicle' in Section 2(c) of the  

Taxation Act. It is, therefore, clear that if there is mere reference  

to a provision of one statute in another without incorporation,  

then, unless a different intention clearly appears,  

Section 8(1) would apply and the reference would be construed  

as a reference to the provision as may be in force from time to  

time in the former statute. But if a provision of one statute is  

incorporated in another, any subsequent amendment in the

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former statute or even its total repeal would not effect the  

provision as incorporated in the latter statute. The question is to  

which category the present case belongs.

25. In Mahindra and Mahindra (supra), after referring to the  

above mentioned judgment, this Court held as follows:

“We have no doubt that Section 55 is an instance of  legislation by incorporation and not legislation by reference.  Section 55 provides for an appeal to this Court on "one or more  of the grounds specified in Section 100". It is obvious that the  legislature did not want to confer an unlimited right of appeal,  but wanted to restrict it and turning to Section 100, it found that  the grounds there set out were appropriate for restricting the  right of appeal and hence it incorporated them in Section 55.  The right of appeal was clearly intended to be limited to the  grounds set out in the existing Section 100. Those were the  grounds which were before the Legislature and to which the  Legislature could have applied its mind and it is reasonable to  assume that it was with reference to those specific and known  grounds that the Legislature intended to restrict the right of  appeal. The Legislature could never have intended to limit the  right of appeal to any ground or grounds which might from time  to time find place in Section 100 without knowing what those  grounds were. The grounds specified in Section 100 might be  changed from time to time having regard to the legislative policy  relating to second appeals and it is difficult to see any valid  reason why the Legislature should have thought it necessary  that these changes should also be reflected in Section 55 which  deals with the right of appeal in a totally different context. We  fail to appreciate what relevance the legislative policy in regard  to second appeals has to the right of appeal under Section 55 so  that Section 55 should be inseparably linked or yoked to  Section 100 and whatever changes take place in Section 100  must be automatically read into Section 55. It must be  remembered that the Act is a self-contained Code dealing with  monopolies and restrictive trade practices and it is not possible  to believe that the Legislature could have made the right of

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appeal under such a code dependent on the vicissitudes through  which a section in another statute might pass from time to time.  The scope and ambit of the appeal could not have been intended  to fluctuate or vary with every change in the grounds set out in  Section 100. Apart from the absence of any rational justification  for doing so, such an indissoluble linking of Section 55 with  Section 100 could conceivably lead to a rather absurd and  startling result. Take for example a situation where  Section 100 might be repealed altogether by the Legislature-a  situation which cannot be regarded as wholly unthinkable. It the  construction contended for on behalf of the respondents were  accepted, Section 55 would in such a case be reduced to futility  and the right of appeal would be wholly gone, because then  there would be no grounds on which an appeal could lie. Could  such a consequence ever have been contemplated by the  Legislature? The Legislature clearly intended that there should  be a right of appeal, though on limited grounds, and it would be  absurd to place on the language of Section 55 an interpretation  which might, in a given situation, result in denial of the right of  appeal altogether and thus defeat the plain object and purpose  of the section. We must, therefore, hold that on a proper  interpretation the grounds specified in the then existing  Section 100 were incorporated in Section 55 and the substitution  of the new Section 100 did not affect or restrict the grounds as  incorporated and since the present appeal admittedly raises  questions of law, it is clearly maintainable under Section 55. We  may point out that even if the right of appeal under Section  55 were restricted to the ground specified in the new  Section 100, the present appeal would still be maintainable,  since it involves a substantial question of law relating to the  interpretation of Section 13(2). …………..…”

26. We are of the view that the principle laid down in Mahindra and  

Mahindra and the judgments referred to earlier clearly apply when we  

interpret sub-section (4) of Section 331 of the U.P. Act.  Sub-section  

(4), as we have already indicated, has used the expression “on any of  

the grounds” specified in Section 100 of the C.P.C.  Consequently, the

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then existing Section 100 (i.e. section 100, as it existed in 1908  

unamended) was incorporated in sub-section (4) of Section 331 and  

substitution of the new Section 100 does not affect or restrict the  

grounds as incorporated.  The right of appeal to the Board of Revenue  

under sub-section (4) of Section 331 clearly intended to be limited to  

the grounds set out in the then existing Section 100, since those were  

the grounds which were before the Legislature and to which the  

Legislature could have applied its mind and it is reasonable to assume  

that it was with reference to those specific and known grounds that the  

Legislature intended to limit the right of appeal.    

27. The appeal before the Board of Revenue would, therefore, lie on  

a question of law.  This legal aspect was not considered properly either  

by the Board of Revenue or by the High Court.  Further, we also notice  

that the Board of Revenue has not examined the provisions of the land  

record and Lekhpal Diary No., date and P.A. 10.   The Additional  

Commissioner had specifically noticed that P.A.10 which had been filed  

pertaining to year 1976 did not bear any signature and the same was  

found to be doubtful, as to whether the original ‘Kashtkar’  (tillers) of  

the land in dispute belonged to Tharu tribe, was also not properly  

examined.  Further, the Board of Revenue also should have examined

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whether the land belonged to Tharu tribe and the plaintiff could claim  

the benefit of Section 210 of the U.P. Act.  All these aspects are very  

vital for a proper and just adjudication of the dispute, which has not  

been done.  

28. In such circumstances, we are inclined to allow the appeals and  

set aside the order passed by the High Court as well as that of the  

Board of Revenue and the matter is remanded to the Board of  

Revenue for fresh consideration, in accordance with law.  However, we  

are not expressing any opinion on the merits of the case, since we are  

remitting the matter to the Board of Revenue.  The Board of Revenue  

will pass the final orders within a period of three months from the date  

of receipt of this order.

……………………..…………….J. (K. S. Radhakrishnan)

…………………………………….J. (Dipak Misra)

New Delhi, September 12, 2012