Jai Prakash And Others vs Board Of Revenue And Others
2023 Latest Caselaw 5168 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 

 
Court No. - 4
 

 
Case :- WRIT - B No. - 5323 of 1980
 

 
Petitioner :- Jai Prakash And Others
 
Respondent :- Board Of Revenue And Others
 
Counsel for Petitioner :- Y.S.Bohra,N.S. Singhal,Pooja Agarwal
 
Counsel for Respondent :- M.K.Rajvansi,N.C. Rajvanshi,Raj Kumar Dhama,Rakesh Tripathi,S.C.
 

 

 
Hon'ble Jayant Banerji, J.

1. Heard Ms. Pooja Agarwal, learned counsel for the petitioners. Learned Standing Counsel appears for the respondent nos.1, 2, 3 and 6. No one appears for the private respondents despite the case being called up in the revised list.

2. Supplementary affidavit filed today on behalf of the petitioners is taken on record.

3. This writ petition, which is filed by the plaintiff-appellant, questions the legality of the order dated 13.02.1980 passed by the Board of Revenue, Allahabad, respondent no.1, in Second Appeal No.489 of 1972-73/Meerut (Jai Prakash vs. Sri Dharmi & Ors.); the order dated 02.06.1973 passed by the Additional Commissioner, Meerut Division, Meerut in Revenue Appeal No.96 of 1970-Meerut, U.P. (Jai Prakash vs. Sri Dharmi) as well as the order dated 18.11.1970 passed by a Judicial Officer (Revenue), Meerut in Suit No.127 of 1969-70 pertaining to Village-Sunehra, Pargana Baghpat, Tehsil Baghpat, under the provisions of Section 229-B/209 of the U.P. Zamindari Abolition and Land Reforms Act, 19501.

4. It appears from the record of the writ petition that the petitioners filed a suit under Section 229-B read with Section 209 of the Act for declaration that they were the sole bhumidhar in possession, and that the entry in favour of the defendant-respondent no.4, Dharmi, is wrong. Further relief was sought for possession after eviction of the defendant-respondent no.4 and for actual physical possession being granted after preparation of 'kurra'. The case of the petitioners is that Baldeo Singh was the sirdar of the land in dispute, who deposited 20 times the rent and became bhumidhar of the plots in dispute. Baldeo Singh thereafter executed a sale-deed in favour of the plaintiff-petitioners on 11.07.1969 and delivered possession to them. The name of the petitioners were mutated in the revenue records. It is stated that the defendant-respondent no.4, Dharmi, who also wanted to purchase the plot in dispute, in collusion with the Lekhpal, got his name entered in the village records, and tried to take forcible possession from the plaintiff-petitioners. The defendant-respondent no.4 contested the suit. After framing of issues, evidence was led. The case was heard and the suit was dismissed. The plaintiff-petitioners preferred Appeal No.96 of 1970 in the court of Commissioner, Meerut Division, Meerut, which also came to be dismissed. The second appeal was dismissed by the respondent no.1, Board of Revenue, by the order dated 13.02.1980.

5. The contention of the learned counsel for the petitioners that the revenue court is not competent to go into the question of genuineness or validity of the sale-deed on the basis of which instrument the plaintiff-petitioners had preferred the suit under Section 229-B of the Act. It is stated that the sale deed in question was proved by the attesting witnesses and so there was a presumption that the sale-deed was executed by Baldeo Singh, who had also appeared in the mutation case. It is stated that the defendant-respondent no.4 had filed a complaint under Sections 466 and 467 of the Indian Penal Code against the plaintiff-petitioners and also against the witnesses of the sale-deed in question. It is stated that in the complaint case, the Additional Sessions Judge held that the person, Baldeo Singh, who was produced in court was not that Baldeo Singh who the vendor of the sale-deed and the prosecution evidence was not correct. The Additional Sessions Judge allowed the appeal and acquitted the petitioner-appellants. It is stated that mutation proceedings took place after due proclamation and service of proclamation was affected on the Pradhan himself and no one filed any objection that the sale-deed was not executed by the real Baldeo Singh.

6. In the supplementary affidavit filed today, the petitioners have enclosed a copy of the plaint filed by them as well as a copy of the sale-deed dated 11.07.1969. A copy of the written statement filed by the defendant-respondent no.4 has been enclosed as Annexure SA-3 to the supplementary affidavit. Annexure SA-4 to the supplementary affidavit is a judgment dated 11.12.1975 passed by the IVth Additional Sessions Judge, Meerut in Criminal Appeal No.214 of 1975. Annexure SA-5 to the supplementary affidavit includes copies of Khasra and Khatauni. The Khatauni are for the Fasli Years 1420-1425 and 1426-1431 in which the names of the petitioners appear as bhumidhar with transferrable rights in respect of plots bearing numbers 116 and 193M. Learned counsel for the petitioners, in support of her contention that the revenue court was not competent to go into the validity of the sale-deed, has relied upon two judgments of this Court. One being in the matter of Smt. Rasheedan vs. Amar Singh & Ors.2 (Paragraph 8), and the other is in the case of Bharat Prasad & Ors. vs. D.D.C. & Ors.3 (Paragraphs 13 and 15). In the case of Smt. Rasheedan, it was held that if the deed is void on the face of it, it requires no cancellation or declaration as being void and the revenue court in such a case could proceed to examine the rights of the parties. But where a deed becomes void only on proof of certain facts, the declaration of its being void could only be made by the civil court. Learned counsel has also referred to the definition of "face of instrument" appearing in Black's Law Dictionary (4th Revised Edition, 1968), which is as under:-:

"FACE OF INSTRUMENT. That which is shown by the language employed, without any explanation, modification, or addition from extrinsic facts or evidence. ................. Thus, if the express terms of the paper disclose a fatal legal defect, it is said to be "void on its face". ...................

7. Learned Standing Counsel appearing for the State-respondents has urged that given the averment of the defendant-respondent no.4 made in the written statement that the sale-deed was fraudulent inasmuch as the finger print impressions of Baldeo Singh were forged, it was incumbent on the plaintiff-petitioners to prove their case by best evidence by producing Baldeo Singh as a witness which they failed to do.

8. A counter affidavit is on record in which, apart from denial of the allegations made in the writ petition, it has been urged that the sale deed in question was a void document and therefore the revenue court could safely ignore it and that as the deed was void, it was not necessary for Baldeo Singh (vendor) to file any suit declaring it so.

9. A perusal of the copy of the judgment dated 18.11.1970 passed by the trial court in the suit that is enclosed as Annexure 1 to the writ petition, reveals that 7 issues were framed, which are as follows:-

"1. whether the plaintiffs are the bhumidars of the land in dispute?

2. whether the defendant Dhrma is sirdar of the land in dispute?

3. whether the suit u/s. 209 is time barred?

4. whether the plaintiffs have got a forged or genuine sale deed executed by Baldeo Singh?

5. whether the suit is defective as Baldeo was not impleaded as party?

6. whether the plot no.193 is abadi?

7. To what relief, if any, the plaintiffs are entitled?"

10. A finding was recorded by the trial court that the sale-deed filed by the plaintiffs is not a genuine one. This finding was based on the fact that a person was produced by the defendant as Baldeo Singh who had given evidence to prove that he is the real Baldeo Singh and he stated that he had not executed any sale-deed in favour of the petitioners. The two witnesses of the sale-deed, apparently, had not identified Baldeo Singh, whereas on behalf of the defendant, the Pradhan of the village and the son of the sister of Baldeo Singh were examined to prove that the real Baldeo Singh had not executed the sale-deed in favour of the plaintiff-petitioners.

11. The first appellate court passed a cryptic order, only a typed copy whereof is enclosed as Annexure-2 to the writ petition, which is as follows:-

"This is an appeal filed by Jai Prakash, son of Hariram, minor under the guardianship of Hariram, father 2. Shiam singh, 3. Omsingh, and 4. Jai Bhagwan, sons of Risal singh, all minors, under the guardianship of Srimati Shama kaur mother all residents of village Sunehra, parg. Baghpat, teh. Baghpat, distt. Meerut plaintiff appellants versus 1. Sri Dharami son of Manphool resident of village as mentioned above. 2 Gaon sabha village Sunehra, parg. and teh. Baghpat, district Meerut through its pradhan and 3. U.P. State through Collector, Meerut, deft-respondents under section 331 U.P.Z.A. and L.R.Act I of 1951 against the decree and order dated Nov.18, 1970 of Sri G.A.Farooqi, Judicial Officer, (R) Meerut, dismissing the suit of the plaintiff under sections 229B/209 of the said Act in regard to the land in suit.

2. I have gone through the file and heard arguments on both sides.

3. It was alleged by the plaintiffs that one Baldeo singh was the bhumidar of the land in suit and he had executed a sale deed in their favour on July 11,1969. The mutation had been effected in their favour but they wanted to be declared bhumidars and in the alternative, ejectment of defendants from the plots in suit. Baldeo singh himself is said to be a sans and while one person of this name was produced before the learned lower court, defts. denied that he was the real Baldeo singh. Plff's could not produce Baldeo singh and they have said he has been kidnapped by the defendants. I agree with the view taken by the learned lower court that the entire case hinges on whether the sale deed was genuine or otherwise. From the evidence on record, it is clear that plaintiffs could not prove conclusively that the sale dead has been executed by the real Baldeo singh. In these meters the balance of evidence is to be accepted and I agree with the learned lower court that plaintiffs have been unable to prove the genuineness of the sale deed on which they rely. The suit of the plaintiffs was rightly dismissed.

4. The appeal is dismissed.

Pronounced and signed in open court."

12. In the case of State of Rajasthan v. Harphool Singh4, the Supreme Court observed as follows:

"5. Aggrieved, the State pursued the matter in appeal before the first appellate court but we find on a close scrutiny of the judgment that there was no due or proper application of mind or any critical analysis or objective consideration of the matter made, despite the same being the first appellate court. On the other hand, by merely reproducing the findings of the nature adverted to by us, a mechanical affirmation seems to have been made of them without any reference to the principles of law or the criteria to be satisfied before the claim of the plaintiff of perfection of title by adverse possession could be sustained, involving correspondingly destruction of title of the State in respect of a public property. The first appellate court further chose to reject the appeal on the ground that the same has not been presented within time even without properly noticing the details as to when the Court closed for summer vacation and when the same was reopened, on some strange method of reasoning."

13. In the case of U. Manjunath Rao v. U. Chandrashekar5, the Supreme Court, while explaining its judgement in Santosh Hazari v. Purushottam Tiwari6, opined:

"7. It is well settled in law that the reason is the life of law. It is that filament that injects soul to the judgment. Absence of analysis not only evinces non-application of mind but mummifies the core spirit of the judgment. A Judge has to constantly remind himself that absence of reason in the process of adjudication makes the ultimate decision pregnable. While dealing with the first appeal preferred under Section 96 CPC, the Court in State of Rajasthan v. Harphool Singh [(2000) 5 SCC 652] took note of the exception to the judgment passed by the first appellate court by observing that there was no due or proper application of mind or any critical analysis or objective consideration of the matter, despite the same being the first appellate court.

8. A three-Judge Bench in Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179] , while discussing about power of the first appellate court, has opined that it is the final court of facts and, therefore, pure findings of fact remain immune from challenge before the High Court in second appeal. It is necessary to note that the Court had also held thus: (SCC p. 188, para 15)

"15. ... The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (see Girijanandini Devi v. Bijendra Narain Choudhary [AIR 1967 SC 1124] ). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it."

(emphasis supplied)

9. The aforesaid passage has to be appositely understood. While reversing the finding and conclusions of the trial court, the duty of the first appellate court is different than while affirming a judgment. Be it stated, the court has also held that it is a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law is a substantial one. In the said case, the Court, after referring to the decision in Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh [1950 SCC 714 : AIR 1951 SC 120] , has further opined that: (Santosh Hazari case SCC p. 189, para 15)

"15. ... while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code."

The purpose of referring to the said decision is to highlight the responsibility cast on the first appellate court or a court hearing the first appeal.

11. In H.K.N. Swami v. Irshad Basith [(2005) 10 SCC 243] , the two-Judge Bench ruled: (SCC p. 244, para 3)

"3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title. The order of the High Court is cryptic and the same is without assigning any reason."

The said principle has been reiterated in SBI v. Emmsons International Ltd. [(2011) 12 SCC 174] Thus, in the first appeal the parties have the right to be heard both on the questions of facts as well as on law and the first appellate court is required to address itself to all the aspects and decide the case by ascribing reasons.

12. In this context, we may usefully refer to Order 41 Rule 31 CPC which reads as follows:

"Order 41

Appeals From Original Decrees

***

31. Contents, date and signature of judgment.--The judgment of the appellate court shall be in writing and shall state--

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled,

and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."

13. On a perusal of the said Rule, it is quite clear that the judgment of the appellate court has to state the reasons for the decision. It is necessary to make it clear that the approach of the first appellate court while affirming the judgment of the trial court and reversing the same is founded on different parameters as per the judgments of this Court. In Girijanandini Devi [AIR 1967 SC 1124] , the Court ruled that while agreeing with the view of the trial court on the evidence, it is not necessary to restate the effect of the evidence or reiterate the reasons given by the trial court. Expression of general agreement with reasons given in the trial court judgment which is under appeal should ordinarily suffice. The same has been accepted by another three-Judge Bench in Santosh Hazari [ (2001) 3 SCC 179] . However, while stating the law, the Court has opined that expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage to be adopted by the appellate court for shirking the duty cast on it. We are disposed to think, the expression of the said opinion has to be understood in proper perspective. By no stretch of imagination it can be stated that the first appellate court can quote passages from the trial court judgment and thereafter pen few lines and express the view that there is no reason to differ with the trial court judgment. That is not the statement of law expressed by the Court. The statement of law made in Santosh Hazari [ (2001) 3 SCC 179] has to be borne in mind.

14. In this regard, a three-Judge Bench decision in Asha Devi v. Dukhi Sao [(1974) 2 SCC 492 : AIR 1974 SC 2048] is worthy of noticing, although the context was different. In the said case, the question arose with regard to power of the Division Bench hearing a letters patent appeal from the judgment of the Single Judge in a first appeal. The Court held that the letters patent appeal lies both on questions of fact and law. The purpose of referring to the said decision is only to show that when the letters patent appeal did lie, it was not restricted to the questions of law. The appellant could raise issues pertaining to facts and appreciation of evidence. This is indicative of the fact that the first appellate court has a defined role and its judgment should show application of mind and reflect the reasons on the basis of which it agrees with the trial court. There has to be an "expression of opinion" in the proper sense of the said phrase. It cannot be said that mere concurrence meets the requirement of law. Needless to say, it is one thing to state that the appeal is without any substance and it is another thing to elucidate, analyse and arrive at the conclusion that the appeal is devoid of merit."

14. In its judgement in the case of Murthy v. C. Saradambal7, the Supreme Court observed as follows:

"60. Before parting with this case, we would like to reiterate that in this case, the High Court has dealt with the judgment of the learned trial Judge in a shortcut method, bereft of all reasoning while reversing the judgment of the trial court both on facts as well as law. It is trite that the appellate court has jurisdiction to reverse, affirm or modify the findings and the judgment of the trial court. However, while reversing or modifying the judgment of a trial court, it is the duty of the appellate court to reflect in its judgment, conscious application of mind on the findings recorded supported by reasons, on all issues dealt with, as well as the contentions put forth, and pressed by the parties for decision of the appellate court. No doubt, when the appellate court affirms the judgment of a trial court, the reasoning need not to be elaborate although reappreciation of the evidence and reconsideration of the judgment of the trial court are necessary concomitants. But while reversing a judgment of a trial court, the appellate court must be more conscious of its duty in assigning the reasons for doing so."

(emphasis supplied)

15. It is evident from a bare perusal of the judgment of the appellate court that it has not considered the evidence afresh after independently considering the evidence on record. No points for determination were framed. The appellate court has, after very briefly recording some facts, proceeded to observe that it agreed with the view taken by the trial court and that the suit of the plaintiff-petitioners was rightly dismissed. The first appellate court, therefore, lost sight of the fact that it was the last court of fact and therefore, even while affirming the judgment of the trial court, it ought to have considered the pleadings, evidence and the arguments advanced by the learned counsel for the parties, and should have decided the appeal with reasons. The first appellate court is under mandate to heed the observation of the Supreme Court in Santosh Hazari (supra) that 'expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it'. As such, in the instant case, the first appellate court has abdicated its role as a last court of fact. This requires correction.

16. The argument raised by the learned counsel for the petitioner on the aspect of lack of competence of the revenue court of first instance to decide on the genuineness of the deed in view of the deed not being void on its face, is a matter to be considered by a court of fact and not in writ petition. Of course, whether the bar of objecting to jurisdiction provided under Section 331 (1-A) of the Act would apply in the case of plaintiff-petitioner, or whether such objection was duly raised, is a matter best left open for the statutory courts to decide.

17. Even in second appeal, the Board of Revenue did not frame any question of law and stated that the appeal did not involve any substantial question of law and that concurrent finding of facts recorded by both the courts were being challenged in the second appeal.

18. Under the facts and circumstances of the case, the impugned order dated 02.06.1973 passed in Revenue Appeal No.96 of 1970-Meerut, U.P. as well as the order dated 13.02.1980 passed in Second Appeal No.489 of 1972-73/Meerut are hereby set aside and the matter is remanded to the court having jurisdiction to consider the first appeal expeditiously and in accordance with law.

19. With the aforesaid observations and direction, the writ petition is disposed of.

Date 16.02.2023

SK

(Jayant Banerji, J.)