Allahabad High Court
Ved Prakash And Others vs Jadav Ram And Others on 21 October, 2022
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
Court No.40
Case :- SECOND APPEAL No. - 3216 of 1980
Appellant :- Ved Prakash And Others
Respondent :- Jadav Ram And Others
Counsel for Appellant :- Virendra Singh,B.Dayal,V. Sahai
Counsel for Respondent :- K.A. Ansari,A.P. Tiwari,B.D. Tripathi,M.K. Tripathhi
Hon'ble Siddhartha Varma, J.
This is a defendants' Second Appeal. A suit was filed by the plaintiffs praying that the sale which had been executed in favour of defendant nos.1 and 2 on 2.4.1976 be set-aside to the extent of 3/4th area by which plot no.1332 area 13 biswa village Bastam, Pargana Nagal, Tehsil Deoband, District Saharanpur had been sold to defendant nos.1 and 2 and also the defendant nos.1 and 2 may not disturb the plaintiffs' possession over the plot in question.
In brief, the facts of the case, as per the plaintiffs, were that out of 13 biswa of plot no.1332 situate in village Bastam, Rahmat Ullah; Buddhu; Rajan and Lotan sons of Mohd. Umar had 1/4th share whereas Kalu son of Umar Daraj; Maqsood and Asgar sons of Rashid and Sadiq son of Ali Mohammad had 3/4th share. All of them were co-bhumidhars of plot no.1332. As per the plaintiffs, in the ownership of Rahmat Ullah, Buddhu, Rajan and Lotan all sons of Mohd. Umar the share was to the extent of 1/4th share only whereas Kalu, Maqsood and Asgar had 3/4th share and when Kalu, Maqsood and Asgar had sold their entire share to the plaintiffs and defendant no.3 by a sale deed dated 2.4.1976 and the plaintiffs were also given possession over the same, the defendant nos.1 and 2 could not have purchased the very same property from Rahmat Ullah on 2.4.1976 despite the fact that Rahmat Ullah was the owner of 1/4th share of the property only. Since as per the plaintiff, 3/4th property sold by Rahmat Ullah could not have been sold by him, he being the owner of only 1/4th of the property, it was prayed in the suit that the 3/4th share as had been sold, be declared as void. The defendants had contested the suit and had stated that Rahmat Ullah was the owner of the entire plot no.1332 of village Bastam.
The Trial Court upon the exchange of pleadings had struck three issues which are being reproduced here as under :-
"1- D;k oknhx.k lgLokeh gS vkSj okafNr O;kns'k ikus ds vf/kdkjh gS \
2- D;k cSukek fnukafdr 2-4-76 okni= esa of.kZr vk/kkjksa ij [k.Muh; gSA
3- oknhx.k fdl vuqrks"k dks ikus ds vf/kdkjh gS \"
The Trial Court thereafter upon finding that Rahmat Ullah had sold more than his share, had decreed the suit on 30.11.1978 to the extent that the sale deed of 3/4th portion of the plot in question was declared null and void. The defendant nos.1 and 2 filed a First Appeal being Civil Appeal No.303 of 1978 and when the First Appellate Court also was dismissed on 14.8.1980, the instant Second Appeal was filed. The Second Appeal was admitted on the following substantial questions of law :-
"(i) whether the sale-deed relied upon by the plaintiff-respondents was void in view of the provisions of Section 168(A) of the U.P. Zamindari Abolition and Land Reforms Act as the area of plot no.1332 is only 13 biswas and the plaintiff-respondents have no plot contiguous to plot no.1332.
(ii) whether the lower appellate Court has clearly erred in law in not allowing the application for amendment when they raised the question of law of inherent jurisdiction in the Civil Court."
No one had appeared for the respondents even in the revised call.
When the Second Appeal was being argued by Sri B.Dayal, learned Senior Counsel assisted by Sri Ramesh Kumar Singh, he did not press the substantial questions of law as were framed at the time of admission of the Second Appeal but prayed that the appeal be heard on the substantial question of law, "whether the judgment and decree of the First Appellate Court had become erroneous on account of the fact that the First Appellate Court had not formed the points for determination". Learned counsel for the appellant submitted that since no point for determination had been framed, the judgment and decree of the First Appellate Court was erroneous and had to be set-aside. In support of his argument, learned counsel for the appellants relied upon a judgment of the Supreme Court in the case of Manjula & Ors. vs. Shyamsundar & Ors. reported in (2022) 3 SCC 90. Learned counsel for the appellants stressed that under section 100(5) of the Code of Civil Procedure at the time of hearing of the Second Appeal, the Court had the power to frame any new substantial question of law which had not been formulated by the Court at the time of admission of the Second Appeal if the High Court had found that the case involved such a question.
However, upon the perusal of the judgment, the Court found that the First Appellate Court had framed a point for determination which is to be found in paragraph 9 of the judgment which starts with the following words :-
"The question primarily is whether Kalu and others had 3/4th share as co-bhumidhar or as to whether Rahmat Ullah and his brother (predecessor in interest of the appellants) were the sole Bhumidhars of plot no.1332."
Having heard learned counsel for the appellants, the Court finds that the Second Appeal is concluded by finding of facts. The question of law which the learned counsel for the appellant has argued at the time of hearing of the Second Appeal also has no force as definitely the First Appellate Court had framed a point for determination and had thereafter decided the First Appeal.
The Second Appeal has no force. It is, accordingly, dismissed.
Order Date :- 21.10.2022
GS
(Siddhartha Varma, J.)
