Abhiram Abhiraj vs Board Of Revenue And Others
2022 Latest Caselaw 22176 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 52
 

 
Case :- WRIT - B No. - 56133 of 2004
 

 
Petitioner :- Abhiram Abhiraj
 
Respondent :- Board Of Revenue And Others
 
Counsel for Petitioner :- Radhey Shyam,Rajesh Dwivedi,Shashi Kant Dwivedi
 
Counsel for Respondent :- C.S.C.,Anil Kr.Tiwari,G.D. Mishra,Munna Pandey,V. Singh,V.K. Singh
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Sri Shashi Kant Dwivedi, learned counsel for the petitioner, Sri V. Singh, learned counsel for respondent nos.4, 5 & 6, learned Standing Counsel for the State-respondents, Sri Sudhir Bharti and learned counsel for the respondent- Gaon Sabha.

2. Sri Anil Kumar Tiwari, Advocate appeared and stated before the Court that he has no instruction in the matter. Mr. Munna Pandey, Advocate has also wrote on mention slip that he has no instruction in the matter.

3. Brief facts of the case are that the suit under Section 229B of U.P.Z.A. & L.R. Act was filed by respondent nos.4 & 5 claiming co-bhumidhari right along with the petitioner and respondent no.7 in respect to Plot Nos.255 & 382 (M) situated in Village- Madan Chak, Tappa Haveli, Pargana and Tehsil- Bhatpar Rani, District- Deoria on the ground that land in dispute was acquired from joint family fund in the name of petitioner and respondent no.7. The petitioner who were defendant in the suit claiming exclusive right on the basis of sale deed executed on 4.6.1968 by Smt. Nageshari in favour of the petitioner and respondent no.7. The trial Court without framing issue in the matter has decreed the plaintiff's suit vide judgment dated 21.3.2001 on the ground that defendants have admitted the claim of plaintiff. Against the judgment and decree of the trial Court, an appeal was filed by the petitioner before the Commissioner along with the prayer for condonation of delay and the Additional Commissioner i.e. respondent no.2 dismissed the appeal on the ground of limitation. Against the judgment and decree of the Court of Commissioner, petitioner filed a second appeal before respondent no.1 and the second appeal has been dismissed at the admission stage, hence this writ petition.

4. Learned counsel for the petitioner submitted that the trial Court without framing issue has decreed the plaintiff's suit. He further submitted that the petitioner who was defendant in the suit claimed the exclusive right on the basis of registered sale deed executed on 4.6.1968 in his favour. He further submitted that petitioner never admitted the claim of respondent nos.4 & 5 in suit, appeal or second appeal before courts below, the document / application, if any, is forged and fabricated and reliance cannot be placed upon the same. He further submitted that the suit under Section 229 B of U.P.Z.A. & L.R. Act cannot be decreed without framing issue and without giving opportunity to the party to lead evidence to prove their respective case. Learned counsel for the petitioner placed reliance upon the judgment of this Court reported in 2020 146 (RD) 186, Babu vs. Mahavir and Others. He further submitted that the impugned judgment be set aside and the matter be remanded back to the trial Court to decide the suit afresh in accordance with law.

5. On the other hand, counsel for respondent nos.4, 5 & 6 submitted that petitioner and respondent no.7 have admitted the claim of respondent nos.4 & 5 in suit, as such, there was no necessity to frame issues in the suit and the suit was rightly decreed by trial court on the basis of admission of the defendants of the suit. He further submitted that petitioner filed an appeal before Commissioner against the judgment and decree of trial which was dismissed as not pressed on 22.12.2003 but petitioner again filed appeal which was also dismissed in accordance with law on the ground of limitation and the Board of Revenue has also rightly dismissed the second appeal filed by petitioner. Counsel for the contesting respondents placed reliance upon the judgment of Patna High Court reported in 2015 0 Supreme (Pat) 6, Sri Satyendra Tiwari & Ors., M/s Navyug Homes Pvt. Ltd. Vs. Sri Sarveshwar Tiwary & Ors. Paragraph No.23 of the judgment in particular which is as follows:

"23. It is settled principles of law that the plaintiffs may plead many things in the plaint but he is required to prove those facts which entitles him to get the relief and if he will not be able to prove those facts his case will be dismissed. In the present case, for the relief claimed the plaintiffs are required to prove the fact that the defendant developer entered into agreement and obtained possession of the suit land and constructed multistoried building pursuant to the agreement and that 50% share is of the builder and that builder is liable to deliver possession of 50% share to the land owners but he is refusing to do so. If they prove these facts by adducing evidence, the relief will be granted to the plaintiffs. If all these facts have not been disputed rather admitted by the defendant in the written statement then there is no dispute regarding these issues between the plaintiffs and the defendant developer then what remains to be proved by adducing evidence by the plaintiffs. In my opinion, therefore, since all the facts entitling the plaintiffs to get the relief have been admitted by the defendant in the written statement, there is no controversy between the parties. According to Order 14 Rule 1 C.P.C. issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. The material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. Here, as discussed above, there is no denial at all by the defendant. Therefore, there is no issue between the parties as such no evidence is necessary at all to prove any issue between the parties."

6. On the basis of submission counsel for contesting respondents submitted that writ petition filed by petitioners is liable to be dismissed.

7. I have considered the argument advanced by learned counsel for the petitioner and perused the record.

8. There is no dispute about the fact that the suit under Section 229B of U.P.Z.A. & L.R. Act filed by the contesting respondents has been decreed without framing issues. Judgment of the trial Court was challenged in appeal which was dismissed on the ground of limitation and the second appeal filed by the petitioner was also dismissed.

9. Since the suit under Section 229B of U.P.Z.A. & L.R. Act is suit of special nature, as such, without framing issue and without giving opportunity to the parties to lead evidence according to the issues, the suit cannot be decided.

10. In Babu (supra), this Court has held that the suit under Section 229 B of U.P.Z.A. & L.R. Act cannot be decided without framing issue. Paragraph Nos.4, 5 & 6 of the judgment are relevant, which are as follows:

"The manner in which the suit instituted by the respondent no.1 under Section 229-B of U.P. Z.A. & L.R.Act has been decided by the impugned order dated 28.01.2019 cannot be appreciated. The trial court has neither framed issues nor has provided any opportunity of leading evidence to the parties to prove their respective cases. The provisions contained in Code of Civil Procedure has been given a go bye.

As already observed above by the Court in its order dated 21.02.2019, the proceedings under Section 229-B of U.P.Z.A & L.R Act are regular proceedings where declaration of rights in a holding is decided on the basis of evidence.

Learned counsel for respondent no.1 has also not been able to defend the impugned order; rather he appears to agree that the matter ought to have been remanded to the Sub-Divisional Officer concerned"

11. This Court in a case reported in AIR 1983 Allahabad 450 Smt. Kaniz Fatima and another vs. Shah Naim Ashraf has held that if no issue has been framed on a question which arise out of the pleadings of the parties, the Court cannot proceed to record a finding on that point. Paragraph nos. 19 & 20 of the judgment are quoted hereunder:-

"19. There is no dispute with the proposition of law laid down in the aforesaid decision but the true scope of the said rule would be that where the parties have led their entire evidence on all the pleas raised by them, they cannot be permitted to urge at the conclusion of the proceedings or in appeal that they were taken by surprise by non-framing of an issue on that particular point on which they have already exhausted their evidence. In such a case it cannot be said that the parties are prejudiced in any manner whatsoever by non-framing of an issue. But the said rule cannot be construed to cover those cases as well where the evidence was led on issues on which the parties actually went, to trial because it is well settled that the evidence adduced on any particular issue by the parties cannot be made foundation for decision of any other and different plea on which no issue has been framed, because in the absence of an issue on the point they cannot be said to have an opportunity of adducing evidence in support of it or in rebuttal of it. It cannot be assumed that the parties have exhaustively led evidence on all the pleas raised in the pleadings. A party is supposed to lead evidence only on the issues framed in the suit. The other party can object and the Court can always refuse to record evidence which does not relate to the issues framed in the suit. Even if evidence has been led and brought on record, the court will not be justified to look into that evidence for deciding a point not covered by the issues. Thus, it cannot be said that it the parties had led evidence in the case it should be construed to cover all the pleas raised in the pleadings although no issue has been framed on that point.

20. The object of framing the issue is to direct that attention of the parties to lead evidence on that specific issue frame and if no evidence is led (one line obliterated. Ed.) drawn against the concerned parties for holding that it has no evidence to support or to rebut the plea covered by the issue in question. But in the absence of the proper issues covering all the pleas raised in pleadings it cannot be said that the parties have exhausted all their evidence or all the pleas raised by them although the same are not covered by the issues framed. In the view of the matter, we find that in the present case since proper issues have not been framed, which arise out of the pleadings of the parties as well as in the statement of the case recorded under Order 10 Rule 2 of the Code, it cannot be said that the defendants have led all their evidence which they would have led in support of the pleas, which are not covered by the issued framed in the suit. The decision recorded by court below, therefore, cannot be sustained on the said ground urged by learned counsel of the plaintiff. The case, therefore, deserves to be remanded to the trial court for decision afresh after framing proper additional issues in the suit and giving full opportunity to the parties to lead their evidence which they may like to produce in support of their case. Learned court below will carefully scrutinize pleadings and frame necessary additional issues."

12. So far as the dismissal of appeal by the Additional Commissioner on the ground of limitation is concerned, Hon'ble Apex Court in the case reported in AIR 1987 SC 1353, Collector, Land Acquisition Anantnag and Another vs. Mst. Kantiji & Others has held that controversy should be adjudicated on merit and liberal view should be taken in delay condonation matter.

13. So far as admission of petitioner in the suit is concerned, the grounds which were taken in appeal before Commissioner will be relevant which are as follows:-

"आधार अपील

1. यह कि माननीय निम्न न्यायालय का आदेश व डिक्री खिलाफ कानून एवं तथ्यों के विपरीत है इसलिए निरस्त होने योग्य है।

2. यह कि मा० निम्न न्यायालय के समक्ष धारा 229बी उ०प्र०ज०वि०अ० का दावा जो रेस्पा० ने प्रस्तुत किया था वह पोषणीय नहीं है।

3. यह कि दावा दाखिल करने के पूर्व 80सी०पी०सी० तथा 106 पंचायत राज अधिनियम की नोटिस नहीं दिया गया।

4. यह कि विवादित आराजी का हम अपीलांट ने बैनामा लिया था और बैनामा के आधार पर काबिज दाखिल चले आ रहे हैं। विवादित आराजी से रेस्पा० से कोई वास्ता सरोकार नहीं है और न रेस्पा० का कब्जा दखल है। विवादित आराजी संयुक्त परिवार की भी नहीं है।

5. यह कि हम अपीलाण्ट की कोई नोटिस सम्मन नहीं मिला और न ही वाद की किसी प्रकार की जानकारी हो पायी कथित इकबाल दावा जाली व फर्जी है। अपीलार्थी के स्थान पर किसी दीगर व्यक्ति द्वारा प्रस्तुत किया गया है।

6. यह कि माननीय निम्न न्यायालय के गलत एवं अवैधानिक रूप से रेस्पा० द्वारा प्रस्तुत किया गया दावा को प्रश्नगत आदेश द्वारा स्वीकार किया गया है जो निरस्त होने योग्य है।

7. यह कि अपीलार्थी अभिराज बाहर नौकरी करते हैं। किसी प्रकार की कोई नोटिस सम्मन नहीं मिला न ही वाद की जानकारी होने पायी। सारी कार्यवाही फर्जी रूप से करके प्रश्नगत आदेश पारित करवाया गया है जो त्रुटिपूर्ण है तथा निरस्त होने योग्य है।

8. यह कि हम अपीलार्थी को साक्ष्य एवं सुनवाई का पर्याप्त अवसर नहीं प्रदान किया गया बाद में कोई वाद बिन्दु भी नहीं बनाया गया।

9. यह कि माननीय निम्न न्यायालय ने प्रश्नगत आदेश व डिक्री पारित करने में जो प्रक्रिया अपनायी है वह गलत है डिक्री की नकल नहीं मिल पायी है, मिलने पर दाखिल की जायेगी।

10. यह कि हम अपीलार्थी जब बाहर से आये तो उक्त आदेश की जानकारी हुई और जानकारी होने के बाद बिना विलम्ब किये ही कायमी प्रार्थना पत्र प्रस्तुत किया। जिसको अधिवक्ता ने मिलाकर दिनांक 28.02.2002 को खारिज कर दिया।

11. यह कि दि० 28.02.2002 के विरुद्ध पुनः कायमी प्रार्थना पत्र दिया और कायमी देने के बाद अपने अधिवक्ता को कहकर नौकरी पर चले गये लेकिन अधिवक्ता ने कोई सूचना नहीं दिया और विपक्षी की साजिश में आकर कायमी अदम पैरवी में खारिज प्रश्नगत आदेश दिनांक 22.11.2002 द्वारा करा दिया।

12. यह कि नौकरी से बाहर आने के बाद अपने अधिवक्ता से मिला तो उक्त आदेश की जानकारी हुई उसी दिन दि० 21.08.2003 को नकल की दरख्वास्त दिया जो दि० 04.09.2003 को नोटिस हुआ और दि० 06.09.2003 को प्राप्त हो गया। रुपये पैसे का इंतजाम करके बिना विलम्ब किये अपील प्रस्तुत कर रहा हूँ यदि श्रीमान किसी दशा में विलम्ब पाते हो तो दफा 5 मियाद कानून का लाभ देते हुए अपील का निस्तारण किया जाये।

13. यह कि माननीय निम्न न्यायालय ने प्रश्नगत आदेश पारित करने में घोर अनियमितता एवं अवैधानिकता बरती है।"

14. The grounds taken in appeal as quoted above demonstrate that defendants were not given opportunity before trial court.

15. So far as judgment of Patna High Court as cited by counsel for the contesting respondent is concerned, the judgment of Apex Court reported in AIR 1999 Supreme Court 3381, Balraj Taneja and another versus Sunil Madan and another will be relevant, the Paragraph Nos. 28, 29, 40 & 43 of the judgment rendered in Balraj Taneja (Supra) are as follows:

"28. Having regard to the provisions of Order 12 Rule 6, Order 5 Rule 8, specially the proviso thereto, as also Section 58 of the Evidence Act, this Court in Razia Begum case [AIR 1958 SC 886 : 1959 SCR 1111] observed as under:

"In this connection, our attention was called to the provisions of Rule 6 of Order 12 of the Code of Civil Procedure, which lays down that, upon such admissions as have been made by the Prince in this case, the Court would give judgment for the plaintiff. These provisions have got to be read along with Rule 5 of Order 8 of the Code with particular reference to the proviso which is in these terms:

'Provided that the court may in its discretion require any fact so admitted to be proved otherwise than by such admission.'

The proviso quoted above, is identical with the proviso to Section 58 of the Evidence Act, which lays down that facts admitted need not be proved. Reading all these provisions together, it is manifest that the Court is not bound to grant the declarations prayed for, even though the facts alleged in the plaint, may have been admitted."

The Court further observed:

"Hence, if the court, in all the circumstances of a particular case, takes the view that it would insist upon the burden of the issue being fully discharged, and if the court, in pursuance of the terms of Section 42 of the Specific Relief Act, decides, in a given case, to insist upon clear proof of even admitted facts, the court could not be said to have exceeded its judicial powers."

29. As pointed out earlier, the court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor should the court proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the court. In a case, specially where a written statement has not been filed by the defendant, the court should be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of the court's satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression "the court may, in its discretion, require any such fact to be proved" used in sub-rule (2) of Rule 5 of Order 8, or the expression "may make such order in relation to the suit as it thinks fit" used in Rule 10 of Order 8.

41. There is yet another infirmity in the case which relates to the "judgment" passed by the Single Judge and upheld by the Division Bench.

43. In an old case, namely, Nanhe v. Saiyad Tasadduq Husain [(1912) 15 Oudh Cases 78] it was held that passing of a mere decree was a material irregularity within the meaning of Section 115 of the Code and that even if the judgment was passed on the basis of the admission made by the defendant, other requirements which go to constitute "judgment" should be complied with."

16. The ratio of the above mentioned judgment of Apex Court in Balraj Taneja (supra) demonstrate that even in the case of admission court should pass the judgment which go to constitute "Judgment".

17. In the present case trial court has decreed the plaintiff's suit on 21.3.2001 under Section 229B of U.P.Z.A. and L.R. Act without framing issues in the suit by which co-bhumidhari rights has been given to plaintiffs although defendants were recorded in the revenue records on the basis of registered sale executed in their favour in the year 1968, the case of admission by defendants in suit has been denied when they came to know about the judgment of trial Court, as such, interest of justice requires that suit under Section 229 B of U.P.Z.A. & L.R. Act be decided afresh on merit.

18. Considering the entire facts and circumstances of the case as well as ratio of law laid down in Babu (supra), Kaniz Fatima (supra) & Bajraj Taneja (supra), the impugned judgments dated 27.9.2004 passed by respondent no.1, 11.5.2004 passed by respondent no.2 and 21.3.2001 passed by respondent no.3 are liable to be set aside and the same are hereby set aside.

19. The writ petition stands allowed and the matter is remitted back before the trial Court to decide the suit afresh on merit after framing issue and giving opportunity to the parties to lead evidence. The trial Court shall decide the suit in accordance with law expeditiously preferably within a period of six months from the date of production of certified copy of this order.

20. No order as to costs.

Order Date :- 21.12.2022

Rameez