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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

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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  

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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  

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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  

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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  

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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-

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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  

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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  

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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  

LRs1 to  contend that  this Court  has clearly  held  

that the jurisdiction of a civil court is barred in  1 (2009) 3 SCC 720

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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  

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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-

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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  

Negi3 and Hardeep Kaur v. Malkiat Kaur4  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

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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  

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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  

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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.

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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  

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“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.  

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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  Punjab6,  

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

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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,  

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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

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