# Amar Singh v. Ranpal Singh & Ors

- **Citation:** (2021) 9 ILRA 687
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-03
- **Case number:** First Appeal No. 428 of 2019
- **Bench:** Siddharth
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amar-singh-v-ranpal-singh-ors-47463
- **Pages:** 17

## Headnote

A. Civil Law -Code of Civil Procedure,
1908-Section 96-land dispute-appellant
failed to adduce Allotment Certificate and
could not prove the factum of grant of
Lease/Allotment in his favour- if the
receipt for premium is taken to be the
Allotment Certificate itself, in absence of
previous
approval
of
the
Assistant
Collector the same is void ab initio-finally,
the document dated 11.05.1974 was not a
lease,
hence,
it
never
required
cancellation or declaration as a void
document from revenue court.(Para 1 to
66)

The appeal is dismissed. (E-6)

List of Cases cited:
688 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

_Characters 0–39,999 of 51,961. This is a partial read: ask again with offset=39999 for what follows._

9 All Amar Singh Vs. Ranpal Singh & Ors.
687
the land in question and thus, the
submission of learned counsel for the
applicants that identity of land was not
disputed by the applicants is incorrect on
the face of the record.

44. Now, so far as the submission of
learned counsel for the applicants that
Court did not frame any substantial
question of law of remand, it is pertinent to
note that no ground has been taken by the
applicants in the memo of review petition
that no substantial question of law of
remand was framed, accordingly, the
judgment under review is not sustainable.
As no such ground has been taken by the
applicants for reviewing the judgment of
this Court, therefore, this submission
cannot be advanced during the argument.

45. It is worth mentioning that the
Court ought to have framed any issue of
remand or not can be adjudicated only after
hearing the applicants on merit inasmuch as
to ascertain this question, the first question
that would arise for adjudication is whether
the Second Appellate Court on finding that
the judgment of the lower court is not
sustainable in law is devoid of the power to
remand the matter directing the court below
to decide the suit afresh without framing
the issue of remand. To adjudicate the said
question, this Court has to re-hear the
appeal which is beyond the scope of the
Court in the exercise of the power of
review under Order 47 Rule 1 of C.P.C.
Thus, the judgments cited on the point that
no issue of remand was framed therefore
the
judgment
under
review
is
not
sustainable are not applicable in the facts of
the present case.

46. The contention of learned counsel
for the applicants that no opportunity of
hearing was given is also misconceived as
the Court in its judgment has noted the
submissions advanced by the learned
counsel for the applicants, and accordingly,
the said submission is also misconceived

47. Thus, for the reasons given above,
the review application being misconceived
is dismissed with no order as to cost.
----------
(2021)09ILR A687
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.09.2021

BEFORE

THE HON'BLE SIDDHARTH, J.

First Appeal No. 428 of 2019

Amar Singh ...Appellant
Versus
Ranpal Singh & Ors. ...Respondents

Counsel for the Appellant:
Sri Purnendu Prakash Pandey, Sri Chandra
Kumar Rai

Counsel for the Respondents:
Himadari Batra, Sri Kunal Shah, Sri Manoj
Kumar Dhuriya, Sri Syed Fahim Ahmed

A. Civil Law -Code of Civil Procedure,
1908-Section 96-land dispute-appellant
failed to adduce Allotment Certificate and
could not prove the factum of grant of
Lease/Allotment in his favour- if the
receipt for premium is taken to be the
Allotment Certificate itself, in absence of
previous
approval
of
the
Assistant
Collector the same is void ab initio-finally,
the document dated 11.05.1974 was not a
lease,
hence,
it
never
required
cancellation or declaration as a void
document from revenue court.(Para 1 to
66)

The appeal is dismissed. (E-6)

List of Cases cited:
688 INDIAN LAW REPORTS ALLAHABAD SERIES
1. U.O.I .Vs Ibrahim Uddin (2012) 5 AWC 5003
SC

2. Similesh Kumar Vs Gaon Sabha, Uskar,
Ghazipur & ors. (1977) AIR All 360

3. H . Siddiqui Vs A. Ramalingam, (2011) AIR SC
1492

4. Munshi Ram Vs Balkar Singh (2016) SCC
Online P&H 11166

5. Lal Bhadur Vs Addl. Commr. Writ C No 30114
of 2016

6. Lal Bhadur Vs Additional Commissioner, Writ
C No 30114 of 2016

7. Abdul Rauf Khan Vs Abdul Samad, (1999) 2
AWC 939

8. Dhurandar Prasad Singh Vs Jai Prakash
University, (2001) AIR SC 2552

9. Prem Singh Vs Birbal Singh (2006) 5 SCC 353

10. Rajasthan State Industrial Development and
Investment Corporation Vs Subhash Sindhi Cooperative Housing Society Jaipur (2013) 5 SCC
427

11. In Kalawati Vs Bisheshwar (1968) AIR SC
261

12. St. of Ker. Vs. M.K Kunhikannan Nambiar
Manjeri Manikoth , Naduvil(dead) & ors. (1996)
AIR SC 906

(Delivered by Hon'ble Siddharth, J.)

 1. Heard Sri Chandra Kumar Rai,
learned counsel for the appellant and Sri
Kunal Shah, learned counsel for the
respondents and perused the record of the
court below.

2. This first appeal has been preferred
by the defendant-appellant against the
judgment and decree dated 13.03.2019
passed by Civil Judge (Senior Division),
Gautambuddh Nagar in Original Suit No.
1334 of 2010 (Ranpal Singh vs. Amar
Singh and Others).

3. Plaintiff/respondent no. 1 instituted
an Original Suit No. 1334 of 2020 praying
for a decree of partition of 1/5 share in
respect of property in dispute shown by
letters A, B, C and D being Khasra No.
120, area 525 square yards. The pedigree
mentioned in the plaint is as follows:-

- Ranpal (plaintiff/respondent no.
1)

- Amar Singh (defendant no.
1/appellant)

Late Shri Ramphal - - Raghubar
(defendant/respondent no. 2)

-
Ram
Niwas
(defendant/respondent no. 3)

-
Smt.
Rameshari
(defendant/respondent no. 4)

It was pleaded in the plaint that
plaintiff/respondent no. 1 and defendants,
who are five in numbers, are real brothers
and sister. Their father died on 29.08.2007
and after his death plaintiff/respondent no.
1 and defendants are entitled to 1/5 share
each in the property in dispute which is
shown by letter A, B, C and D in the plaint
map.

4. Defendant No. 1/appellant filed his
written statement denying the plaint case. In
the additional pleas the defendant no.
1/appellant stated that suit is liable to be
dismissed as 150 square yard area of Khasra
No. 120 was given to defendant no.
1/appellant by lease dated 11.05.1974. The
same is situated in disputed area shown by
9 All Amar Singh Vs. Ranpal Singh & Ors.
689
letter A, B, C and D in the plaint map. The
remaining area of 525 square yard of Khasra
No. 120 belongs to their father Ramphal
Singh in which all the five brothers and sister
will be entitled to equal share. It has been
also stated in the written statement that in the
150 square yard area which belongs to
defendant no. 1/appellant residential house
was constructed by him from his own funds.
The same has no concern with the
plaintiff/respondent
no.
1
and
defendant/respondent nos. 2 to 4.

5. Defendant/respondent nos. 2 and 3
filed their joint written statement admitting
the
plaint
allegations
and
defendant/
respondent no. 4 filed her separate written
statement admitting the plaint allegations.

6. The trial court framed the following
six issues in the plaint:-

(1) Whether the plaintiff is owner
of 1/5 part of disputed property shown in the
plaint map ?

(2) Whether the suit is barred by
provisions of Sections 34, 41 and 49 of
Specific Relief Act ?

(3) Whether the suit is undervalued
?

(4) Whether the court fees paid by
the plaintiff is insufficient ?

(5) Whether the plaintiff is entitled
to partition of his share on the basis of
pleadings in the plaint ? and

(6) Whether the plaintiff is entitled
to any other relief, if yes, then to what effect?

7. On behalf of the plaintiff/
respondent no. 1, Ranpal Singh, was
examined as P.W-1 and documentary
evidences were also filed in support of his
case.

8. On behalf of the defendant no.
1/appellant, Amar Singh, was examined as
D.W-1 and in documentary evidence
original lease receipt (82 Ga-83 Ga), C.H.
Form 45 (84 Ga), C.H. Form 41 (85 Ga),
Khatauni, Revenue map, Electricity Bill
(86 Ga to 91 Ga) were filed in support of
his case.

9. The trial court heard the counsel
for the parties in Original Suit No. 1334
of 2010 and perused the evidence on
record
and
decreed
the
plaintiff/respondent no. 1's Suit No.
1334 of 2010 for 1/5 share in respect of
property in dispute by judgment and
decree dated 13.03.2019.

10. That the trial court decided
issue nos. 1 and 5 together and recorded
the finding that the defendant no.
1/appellant failed to prove that he has
been allotted the land of 150 square yard
in Khasra No. 120 by any lease of land
management committee and held that
since the parties are brothers and sister,
the plaintiff/respondent no. 1 is entitled
to his 1/5 shares in his property. Issue
nos. 3 and 4 regarding valuation and
court fees paid in the suit were decided
in favour of plaintiff/respondent no. 1.
Issue no. 2 was decided holding that the
same was required to be proved by the
defendant no. 1/appellant which he has
failed to prove and therefore it was
decided
against
defendant
no.
1/appellant. Finally, issue no. 6 was
decided holding that the suit is liable to
be decreed and 1/5 share of the
plaintiff/respondent no. 1 was declared
in the suit property.
690 INDIAN LAW REPORTS ALLAHABAD SERIES

11. Learned counsel for the defendant
no.1/appellant has submitted that the trial
court has failed to consider the lease
executed
in
favour
of
the
defendant/appellant
on
11.05.1974
in
accordance
with
law.
Permission
of
Assistant
Collector
/
Sub-Divisional
Officer regarding execution of lease has
came into existence on 01.11,1975 while
lease
in
question
was
executed
on
11.05.1974 when there was no such
provision in the Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950.
Hence, impugned judgment and decree
dated 13.03.2019 passed by the court below
is wholly illegal and manifestly erroneous.

12. Trial court has failed to consider
that unless lease in question is cancelled by
Revenue Court in accordance with law; the
Civil Court cannot ignore it, as such
impugned judgment and decree dated
13.03.2019
is
illegal
and
manifestly
erroneous.

13.

Counsel
for
the
plaintiff/respondent no. 1 has submitted
that defendant no. 1/appellant claimed that
he is exclusive owner of part of the suit
property, area about 150 square yard and
therefore as per Section 103 of the
Evidence Act he was required to prove the
ownership of the aforesaid area of land on
the
basis
of
residential
lease
dated
11.05.1974. He only filed a receipt of
premium in evidence and not the lease
granted in his favour. The trial court has
rightly not accepted the receipt of premium
as reliable evidence regarding the claim of
defendant no. 1/appellant. At the relevant
time the substantive provision for grant of
lease was contained in Sections 122-C,
195, 197 and 198 of U.P. Zamindari and
Abolition and Land Reforms Act, 1950 and
also the procedural aspect of grant of lease
by Rule 115-L to Rule 115-T of the U.P.
Zamindari Abolition and Land Reforms
Rules,
1952
was
incorporated
on
25.03.1972 by way of 9th amendment.
Clause 3 of Rule 115-N of the then existing
rules provided that allottee of a housing site
shall be given a certificate to allotment in
Z.A. Form 49-F in two parts. Main
certificate is to be given to the allottee and
its counterpart shall remain with land
management
committee.
No
such
certificate was produced in evidence by the
defendant no. 1/appellant.

14. Section 64 of the Evidence Act
provides that documents must be proved by
primary evidence which as per Section 62
of the Evidence Act means the document
itself. No allotment certificate or any such
document was produced by the defendant
no. 1/appellant.

15. Non-production of original lease /
allotment certificate by the defendant
no.1/appellant despite objection of the
plaintiff/respondent no. 1 would lead to
drawing of adverse interference against
him. The plaintiff/respondent no. 1 had
moved an application dated 25.04.2011,
exhibit- 22 Ga 2, before the trial court
asking the defendant no. 1/appellant to
produce the original copy of the lease /
allotment certificate but it was not
produced before the Court. He has relied
upon the judgment of the Apex Court in the
case of Union of India vs. Ibrahim Uddin,
2012 (5) AWC 5003 SC, in this regard.
During
the
pendency
of
suit
the
plaintiff/respondent no. 1 vide letter dated
26.03.2012 sought information from the
office of Assistant Collector, Tehsil Dadri
whether any lease / allotment certificate
was issued in the name of defendant no.
1/appellant, Amar Singh and by letter dated
03.04.2012 it was informed that no record
9 All Amar Singh Vs. Ranpal Singh & Ors.
691
with respect to allotment of residential
leases for the year 1974 exists in his office.
This information was never disputed by the
defendant no.1/appellant. In his crossexamination, defendant no. 1/appellant
admitted that no possession certificate was
issued in his favour.

16.

After
hearing
the
rival
contentions, this court finds that the
following points of determination are
involved in this appeal:-

(1) Whether the defendant no. 1
/ appellant has proved the disputed area
of about 150 square yard in plot no. 120
to be his exclusive property on the basis
of residential lease dated 11.05.1974 ?

(2) Whether prior to 01.11.1975
permission of Assistant Collector / SubDivisional Officer was required for
execution of lease and the trial court has
ignored the evidence produced before it
by the defendant no. 1/appellant without
considering the correct legal position ?

(3) Whether till the lease in
question is cancelled by competent
revenue court in accordance with law, it
is binding on Civil Court and cannot be
ignored by it ?

17. All the points of determination are
being considered and decided together.

18. The pleadings of the defendant no.
1/appellant is that on the basis of lease
receipt, paper no. 82-Ga and 83-Ga, he is in
possession of 150 square yards of land and
he has constructed his house over the same
after grant of lease to him on 11.05.1974.
He claims that this area of 150 square yard
of land is not the part of the property
inherited from his father and therefore,
after excluding this land 1/5 share of the
plaintiff/respondent no. 1 and each of the
defendants should be declared. The case of
the plaintiff/respondent no. 1 is that the
receipt produced by the defendant no.
1/appellant to prove grant of lease by land
management committee in his favour is
only a receipt of premium and not the copy
of lease / allotment certificate itself,
therefore, in the absence of the copy of the
lease / allotment certificate no rights can
accrue to the defendant no. 1/appellant. The
submission is that the burden of proving the
due allotment and execution of lease of 150
square yards of land in favour of defendant
no. 1/appellant was on him and in case he
failed to prove the same by way of primary
evidence he cannot be granted any rights on
its basis.

19. This court finds that the defendant
no. 1/appellant in his Written Statement as
well as in his examination in chief, had
taken only one ground to resist the claim of
partition viz., a portion of suit property,
(about 150 square yards), which lies on the
western side of the suit property as
exclusive property which he had acquired
by means of a residential lease dated
11.05.1974, and thus the same could not
form a part of the subject matter of
partition.

20. Section 103 of the Indian
Evidence Act, 1872 provides that the
burden of proof of any particular fact lies
on the party who alleges it and who wishes
the Court to believe in its existence.
Section 103 of the Evidence Act is
reproduced
herein
below
for
ready
reference of this Hon'ble Court:

103. Burden of proof as to
particular fact.--The burden of proof as to
any particular fact lies on that person who
692 INDIAN LAW REPORTS ALLAHABAD SERIES
wishes the Court to believe in its existence,
unless it is provided by any law that the
proof of that fact shall lie on any particular
person.

21. In Woodroffe & Amir Ali: Law of
Evidence (21st Edition), the relevant law is
stated thus:-

"When,
however,
the
defendant, or either litigant party,
instead of denying what is alleged
against him, relies on some new matter
which if true, is an answer to it, the
burden of proof changes sides; and he, in
his turn, is bound to show a prima facie
case at least and, if he leaves it imperfect,
the court will not assist him, Reus
excipendo fit actor"

22. Since, the defendant no.
1/appellant had asserted the fact of sole
ownership of a portion of suit property on
the basis of a lease, Section 103 of the
Evidence Act casted an obligation upon the
defendant no. 1/appellant to prove the
particular fact about grant of lease. The
documentary
evidence
filed
by
the
defendant no. 1/appellant in support of
claim of grant of lease, was not the
lease/Allotment Certificate itself but a
receipt of premium.

23. This court finds that a receipt of
premium was produced before the trial
Court and the trial Court has not ascribed
any value to the receipt of premium, and
has returned the finding that the defendant
no. 1/appellant has not been able to prove
the fact of issuance of grant of lease in his
favour. Another important fact of the
matter which is based purely on law is that
the receipt of premium, which has been
filed by the defendant no. 1/appellant is not
the same as Lease/Allotment Certificate
and on its basis the exclusive rights claimed
by defendant no. 1/appellant cannot be
sustained and court below has rightly held
so.

24. The case of the defendant /
appellant that prior to 1.11.1975 permission
of Assistant Collector / Sub-Divisional
Officer was not required for execution of
lease such an amendment came into force
on 01.11.1975 when the lease was granted
to the defendant/appellant on 11.05.1974.
He has relied upon the notification no. 605/
Rajaswa 1-2 (8) - 75 dated 01.11.1975
which shows that Rule 115-N of U.P.
Zamindari Abolition and Land Reforms
Rules,
1952
was
incorporated
on
01.11.1975 in the rules. The case of the
plaintiff/respondent no. 1 is that the civil
court cannot ignore the lease executed in
favour of the defendant/appellant since as
per Full Bench judgment of the court in the
case of Similesh Kumar vs. Gaon Sabha,
Uskar, Ghazipur and Others, AIR 1977
All 360, the lease granted by land
management committee / gaon sabha can
only be cancelled by Revenue Court cannot
even consolidation authorities have no
jurisdiction to cancel the same. On the
contrary,
the
case
of
the
plaintiff/respondent no. 1 is that the
substantive provision for grant of lease is
contained in Sections 122-C(2), 195, 197,
198 of U.P. Zamindari Abolition and Land
Reforms
Act
and
in
the
aforesaid
provisions there is requirement of previous
approval of lease by Assistant Collector
much prior in time than 11.05.1974.
Section 122-C(2) was inserted in the act
aforesaid on 22.07.1971 and it provides for
obtaining
previous
approval
of
the
Assistant
Collector
before
making
allotment. The relevant part of the U.P.
Land Laws (Amendment) Act, 1971, is
being quoted below:-
9 All Amar Singh Vs. Ranpal Singh & Ors.
693

In pursuance of the provisions of
clause (3) of Article 348 of the Constitution of
India, the Governor is pleased to order the
publication of the following English translation
of
the
Uttar
Pradesh
Bhoomi-Vidhi
(Sanshodhan) Adhiniyam, 1971 (Uttar Pradesh
Adhiniyam Sankhya 21 of 1971) as passed by
the Uttar Pradesh Legislature and assented to
by the President on August 22, 1971.

UTTAR PRADESH LAND LAWS
(AMENDMENT) ACT, 1971

(U.P. Act No. 21 of 1971)

(As passed by the Uttar Pradesh Legislature)

An

Act

further to amend the Uttar Pradesh
Zamindari Abolition and Land Reforms Act,
1950 and the Uttar Pradesh Urban Areas
Zamindari Abolition and Land Reforms Act,
1956.

It is hereby enacted in the TwentySecond Year of the Republic of India as
follows:-

CHAPTER I

Preliminary

1. ..................

CHAPTER II

2. ..................

3. After section 122-B of the
principal Act, the following sections shall be
inserted, namely ;

"122-C,
(1)
The
Assistant
Collector In-charge of the sub- division, of
his own motion or on the resolution of the
Land Management Committee, may earmark any of the following classes of land
for the provision of abadi sites for the
members of the Scheduled Castes and the
Scheduled
Tribes
and
agricultural
labourers allotment of land for housing
sites for members of Scheduled Castes,
agricultural labourers, etc., and village
artisans -

(a) lands referred to in clause (i)
of sub-section (I) of section 117 and vested
in the Gaon Sabha under that section ;

(b) lands coming into possession
of the Land Management Committee under
Section 194 or under any other provision of
this Act;

(c) any other land which is
deemed to be or becomes vacant under
section 13, section 14, section 163, section
186 or section 211;

(d) where the land ear-marked
for the extension of abadi and reserved as
abadi site for Harijans under the U.P.
Consolidation of Holdings Act, 1953, is
considered by him to be insufficient and
land ear-marked for other public purpose
under that Act is available, then any part of
the land so available.

(2) Notwithstanding anything in
sections 122-A, 195, 196, 197 and 198 of
this Act, or in Section 4, 15, 16, 28-B and
34 of the United Provinces Panchayat Raj
Act,
1947,
the
Land
Management
Committee may with the previous approval
of the Assistant Collector In-charge of the
sub-division, allot, for the purpose of
694 INDIAN LAW REPORTS ALLAHABAD SERIES
building of houses, to persons referred to in
sub-section (3) -

(a) any land ear-marked under
sub-section (1);

(b) any land ear-marked for the
extension of abadi sites for Harijans under
the provisions of the U.P. Consolidation of
Holdings Act, 1953;

(c) any abadi site referred to in
clause (vi) of section (i) of section 117 and
vested in the Gaon Sabha;

(d) any land acquired for the said
purpose under the Land Acquisition Act,
1894.

25. The defendant no. 1/appellant in
Paragraph 20 of his Written Statement had
averred that the Lease/Allotment Certificate
had been granted to him on 11.05.1974. At
the relevant point in time, i.e. on 11.05.1974,
the substantive provision for grant of lease
was contained in Section 122-C, 195, 197
and 198 of the UP Zamindari Abolition and
Land Reforms Act, 1950 (hereinafter referred
to as "U.P.Z.A & L.R Act"). The aforesaid
provisions provided for grant of lease "with
the previous approval of the Assistant
Collector".

26. The procedural aspect of grant of
Lease/Allotment Certificate is governed by
Rule 115-L to Rule 115-T of the Zamindari
Abolition and Land Reform Rules, 1952.

27. Vide Uttar Pradesh Zamindari
Abolition and Land Reforms (Ninth
Amendment) Rules, 1972, published in the
Official
Gazette
on
25.03.1972,
the
previous existing Rules 115-L to Rule 115R were amended and were substituted by
Rule 115-L to Rule 115-T. The aforesaid
amendment
remained
in
vogue
till
01.11.1975 when further amendment was
carried out in the said Rules. As the date of
grant
of
alleged
Lease/Allotment
Certificate is 11.05.1974, the Rules 115-L
to Rule 115-T as introduced by Uttar
Pradesh Zamindari Abolition and Land
Reforms (Ninth Amendment) Rules, 1972,
is the relevant Rules on the basis of which
the validity of the argument of the
plaintiff/respondent No. 1 is to be tested.

28. Rule 115 N of the UPZALR Rules
as it existed then is reproduced herein
below:

115N (1) Whenever the Land
Management Committee proceeds to allot
housing sites under Rule 115-L or 115-M it
shall announce by beat of drum in the
village the exact location of the sites to be
allotted, the time, the date and venue of
allotment.

(2) All documents shall be made
by the Land Management Committee in a
meeting held for the purpose on the date
announced under the preceding sub-rule.
Where more than one person belonging to
the same order of preference express their
desire to be allotted a particular site, the
said committee shall draw of lots to
determine the person to whom the site
should be allotted.

(3) The allottee of the housing
site shall be given receipt for the premium,
if any, paid by him to the Land
Management Committee and a certificate
of allotment. The certificate shall be in
Z.A. Form, 49-F which shall be prepared
in two parts, the main certificate being
given to the allottee and its counter-part
remaining with the Land Management
Committee for record.
9 All Amar Singh Vs. Ranpal Singh & Ors.
695

29. A bare perusal of Clause 3 of Rule
115-N of the then existing Rules reveals
that the receipt for premium has no
semblance to the Allotment Certificate and
is not the same as the Allotment Certificate
itself.

30. Moreover, Clause 3 of Rule 15-N
of the then existing Rules makes it evident
that the allottee of the housing site shall be
given a certificate of allotment which shall
be in Z.A. Form, 49-F and which shall be
prepared in two parts, the main certificate
being given to the allottee and its counterpart remaining with the Land Management
Committee for record.

31. Thus it becomes evident that the
factum of grant of lease can be proved by
adducing the allotment certificate which
shall be in Z.A. Form 49-F and not by
adducing receipt of premium, which at best
can prove the payment of some premium to
the Land Management Committee but
cannot establish the factum of grant of
Lease/Allotment Certificate.

32. Further the particulars of
Allotment Certificate, Z.A. Form 49-F ,
clearly reveals that it must apart from the
Signature
of
Chairman
of
Land
Management Committee also bear the
signatures of Assistant Collector-in-charge
of Sub-Division. However the document
that had been filed before the trial court by
the defendant no. 1/appellant, cannot by
any stretch of imagination be said to be an
allotment certificate which is required to be
issued in Z.A. Form 49-F.

33. Document filed by the defendant
no. 1/ appellant in support of his claim that
he has been granted a Lease/Allotment
Certificate does not classify as a Allotment
Certificate contemplated in Section 122-C
of the U.P.Z.A.L.R Act read with Rule
115-N of the Rules in vogue then.

34. Moreover, Section 64 of the
Evidence Act provides that documents
must be proved by primary evidence, which
as per Section 62 of the Evidence Act
means the document itself. Thus, for
proving
the
factum
of
grant
of
Lease/Allotment Certificate, the statutory
requirement as per Section 64 read with
Section 62 of the Evidence Act was of
adducing of Allotment Certificate and not
any other document.

35. Further, as the defendant no.
1/appellant has not laid any foundational
basis for proving the factum of grant of
Lease / Allotment Certificate by way of
secondary evidence, no secondary evidence
can be lead to prove the same.

36. It is trite law that secondary
evidence is inadmissible until the non
production of the original is accounted for
so as to bring it within one or other of the
cases provided for in Section 65 of the
Evidence Act. The Hon'ble Supreme Court
in H. Siddiqui v. A . Ramalingam, AIR
2011 SC 1492 held thus:

10. Provisions of Section 65 of
the Act 1872 provide for permitting the
parties to adduce secondary evidence.
However, such a course is subject to a
large number of limitations. In a case
where
original
documents
are
not
produced at any time, nor, any factual
foundation has been led for giving
secondary evidence, it is not permissible
for the court to allow a party to adduce
secondary evidence. Thus, secondary
evidence relating to the contents of a
document is inadmissible, until the non
production of the original is accounted
696 INDIAN LAW REPORTS ALLAHABAD SERIES
for, so as to bring it within one or other
of the cases provided for in the section.
The
secondary
evidence
must
be
authenticated by foundational evidence
that the alleged copy is in fact a true
copy of the original. Mere admission of a
document in evidence does not amount
to its proof. Therefore, the documentary
evidence is required to be proved in
accordance with law. The court has an
obligation to decide the question of
admissibility of a document in secondary
evidence before making endorsement
thereon.

37. As the defendant no. 1/appellant
could not adduce the copy of Allotment
Certificate, which alone could have proved
the fact of grant of lease in his favour, the
necessary corollary is that the defendant no.
1/appellant failed to prove his special
pleaded fact.

38. The plaintiff/respondent No.1 had
moved an Application dated 25.04.2011
before the Trial Court, which is marked as
Exhibit 22 Ga 2 and is also available on
Trial Court's record, asking the defendant/
appellant to produce the Original Copy of
the Lease/Allotment Certificate. However,
despite the demand of production of
Original
Copy
of
Lease/Allotment
Certificate the defendant/appellant did not
produce the same, but filed a photo-copy of
receipt of premium.

39. The aforesaid action of the
defendant
no.
1/
appellant
warrants
drawing an adverse inference against the
defendant/appellant as per Clause g of
Section 114 of the Evidence Act.

40. Reliance in the aforesaid regard
can be placed upon the dictum of the
Hon'ble Supreme Court in Union of India
v. Ibrahim Uddin, 2012 (5) AWC 5003
(SC). The relevant extract of the judgment
of the Hon'ble Supreme Court in Union of
India v. Ibrahim Uddin, 2012 (5) AWC
5003 (SC), is reproduced herein below,

6. Generally, it is the duty of
the party to lead the best evidence in his
possession, which could throw light on
the issue in controversy and in case such
material evidence is withheld, the Court
may draw adverse inference under
Section 114(g) of the Evidence Act
notwithstanding, that the onus of proof
did not lie on such party and it was not
called upon to produce the said evidence.

.16. Thus, in view of the above,
the law on the issue can be summarised to
the effect that, issue of drawing adverse
inference is required to be decided by the
court
taking
into
consideration
the
pleadings of the parties and by deciding
whether any document/evidence, withheld,
has any relevance at all or omission of its
production would directly establish the case
of the other side. The court cannot loose
sight of the fact that burden of proof is on
the party which makes a factual averment.
The court has to consider further as to
whether
the
other
side
could
file
interrogatories or apply for inspection and
production of the documents etc. as is
required under Order XI CPC. Conduct and
diligence of the other party is also of
paramount importance. Presumption or
adverse inference for non-production of
evidence is always optional and a relevant
factor to be considered in the background
of facts involved in the case. Existence of
some other circumstances may justify nonproduction of such documents on some
reasonable grounds. In case one party has
asked the court to direct the other side to
produce the document and other side
9 All Amar Singh Vs. Ranpal Singh & Ors.
697
failed to comply with the court's order,
the court may be justified in drawing the
adverse inference. All the pros and cons
must be examined before the adverse
inference is drawn. Such presumption is
permissible, if other larger evidence is
shown to the contrary.

41. The plaintiff/respondent no. 1 had
vide Letter dated 26.03.2012, under the
provisions of Right to Information Act,
2005 (hereinafter referred to as "RTI Act")
sought information from the Office of
Assistant Collector, Tehsil Dadri, on the
point as to whether any Lease/ Allotment
Certificate was issued in the name of some
Shri Amar Singh son of Shri Ramphal
Singh.

42. Vide letter dated 03.04.2012 the
Tehsildar,
Dadri,
pursuant
to
the
information
sought
by
the
plaintiff/respondent
No.
1
under
the
provisions of Right to Information Act,
informed the plaintiff/respondent No. 1 that
there exists no record in the Office with
respect to allotment of residential lease for
the year 1974.

43. It is also notable that the response
by the Public Information Officer under the
provisions of RTI Act is a public
document. Reliance in this regard is placed
upon Section 74 of the Evidence Act.
Section 74 of the Evidence Act is
reproduced hereinbelow:

74.
Public
documents.--The
following
documents
are
public
documents :--

(1) Documents forming the acts,
or records of the acts-- =

(i) of the sovereign authority,

(ii)
of
official
bodies
and
tribunals, and

(iii)
of
public
officers,
legislative, judicial and executive, of any
part of India or of the Commonwealth,
or of a foreign country;

(2) Public records kept in any
State of private documents.

44. Amongst others, Sub-clause (iii)
of Sub-Section 1 of Section 74 of the
Evidence Act provides that documents
forming the acts or records of acts of public
officers, legislative, judicial, or executive
are considered public documents.

45.

The
definition
of
public
documents under Section 74 does not
specify the form of the document. It merely
states that any document which forms an
act or a record of an act of a ''public
officer',
whether
of
the
executive,
legislature, or judiciary, must be considered
a public document.

46. It is undeniable that a Public
Information Officer is a ''public officer' as
per Clause 17 of Section 2 of C.P.C. The
response letters, moreover, are issued under
a statutory duty. The response of a Public
Information Officer issued in the course of
his duty under, the RTI Act on a bare
perusal falls within the ambit of a
document forming an act of a public officer
and thus is a public document, which could
be proved either by adducing the original
copy of the same as per Section 64 of the
Evidence Act, or by filing a certified copy
of the same as per Section 77 of the
Evidence Act.

47. The Hon'ble Punjab and Haryana
High Court in Munshi Ram v. Balkar
698 INDIAN LAW REPORTS ALLAHABAD SERIES
Singh, 2016 SCC Online P&H 11166 held
thus:

8. .................................. At the
Appellate Court, the owner has filed an
application under Order 41 Rule 27 CPC
that has elicited through RTI a response
to say the license number had been
wrongly given as 18690/Ag/2003 when it
was actually 16690/Ag/2003 and that it
had been issued in the name of Balkar
Singh. A response through RTI is of a
public officer and it is a public
document
and
would
require
no
further corroboration in the manner
contemplated under Section 77 of the
Evidence Act. The document must be
taken to be true of what its recitals
state.

48. In the Cross-Examination the
defendant no. 1/appellant has stated that
he has no knowledge about the existence
of records in the Office of the Revenue
Authorities pertaining to allotment of
lease in his favour.

49. The defendant no.1/appellant has
very categorically admitted that (i) a
possession certificate has never been
issued in his favour (ii) he never got the
lease registered (iii) the receipt of lease
does not specify the duration for which
the lease has been granted.

50. The defendant/appellant has
further stated in his cross examination that
he is not aware about the fact as to whether
any previous approval of the Assistant
Collector was taken or not before grant of
lease.

51. The relevant extract of the Cross
Examination of the defendant / appellant is
reproduced hereinbelow:-

Cross Examination of defendant
no. 1/defendant-Witness No. 1

चूिंनक मेरे पास इस पट्टे की रसीद है
इसनलये
मुझे
तहसील
दादरी
तहसील
नसकन्दाबाद अथवा राजस्व ररकाडा बुलन्दशहर,
गानजयाबाद अथवा गौतमबुद्ध नगर में यह
मालूम करने की आवश्यकता नहीिं थी क्योिंनक
इस पट्टे की आविंटन पत्रावली व सिंबिंनधत ररकाडा
आनद उपलब्ध हैया नहीिं। [Page 39, 2nd Para
of Appellants Paper Book]

यह कहिा सही है धक ग्राम सभा
इटैंडा द्वारा मुझे कोई कब्जा -प्रमाणपत्र जारी
ि धकया गया हो। [Page 39, 5th Para of
Appellants Paper Book]

यह कहना भी सही है नक मैंने इस पट्टे
का रनजस्टरेशन नहीिं कराया है।यह कहना भी
सही है नक इस रसीद में यह नहीिं नलखा है नक
यह पट्टा नकतनी अवनध का है। [Page 39, 6th
Para of Appellants Paper Book]

ग्राम प्रधान ने मुझे मौन्तखक बताया था
नक यह पट्टा हमेशा के नलये है।मुझे नहीिं पता नक
अनसस्टेन्ट कलक्टर कौन होता है। मुझे नहीिं पता
नक अनसस्टेन्ट कलक्टर का इस पट्टे से पूवा
स्वीकृनत ली गयी थी अथवा नहीिं।

मुझे नहीिं पता नक इस आविंटन का
कोई ररकाडा ग्राम सभा इटैडा केपास है अथवा
नहीिं। मेरे गवाह रामवीर मेरे सगे साढूिं है।

52. Though the defendant no.
1/appellant has in evidence filed a receipt
of premium which is not the same as
Allotment Certificate but even if, for the
sake of argument the receipt of premium, is
assumed to be an Allotment Certificate
itself, the same bears no endorsement of
approval of the Assistant Collector much
less previous approval.
9 All Amar Singh Vs. Ranpal Singh & Ors.
699

53. The defendant no. 1/appellant
never asserted that the Assistant Collector
had accorded previous approval to his
lease, but has rather chosen to assert that at
the relevant point in time i.e on 11.05.1974
there was no requirement of seeking prior
approval of the Assistant Collector and that
the said requirement was brought for the
first time on 01.11.1975, when Rule 115-N
of the UPZALR Rules was amended and a
specific provision in this regard was
inserted.

54. Substantive provision for grant of
lease is contained in Section 122-C, 195,
197 and 198 of the U.P.Z.A.L.R Act and
the aforesaid provisions of the Act
contained provision of previous approval of
Assistant Collector much prior in time than
11.05.1974.

55. Section 122-C of the U.P.Z.A.L.R
Act was inserted for the first time, vide
Uttar Pradesh Land (Laws) Amendment
Act, 1971 which was published in the
Official Gazette on 22.08.1971. SubSection 2 of Section 122-C which was
inserted vide the aforesaid amendment
specifically required obtaining of previous
approval of the Assistant Collector before
making allotment.

56. Likewise Section 195, 197 and
198 of the UPZALR Act also much prior to
01.11.1975 contained provision requiring
previous
approval
of
the
Assistant
Collector before grant of lease. Section
195, 197 and 198 of the UPZA & SLR Act
was amended by Uttar Pradesh Zamindari
Abolition and Land Reforms (Amendment)
Act, 1968, and by the aforesaid Act and by
its Sections 6, 7 and 8, the following words
"with the previous approval of the Assistant
Collector-in-charge of the sub division"
were inserted in Section 195, 197 and 198
of UPZALR Act. A Co-ordinate Bench of
this Court in Lal Bhadur v. Additional
Commissioner, Writ C No. 30114 of 2016,
was confronted with an identical argument.
It was contended, as herein contended, that
the procedure for grant of an approval to a
resolution
of
the
Land
Management
Committee by the Assistant Collector was
introduced for the first time on 01.11.1975
and thus prior to this date there was no
requirement of obtaining previous approval
of the Assistant Collector. This Hon'ble
Court rejecting the argument observed thus:

Upon
receipt
of
the
instructions, a supplementary affidavit
has been filed by the petitioner. In
Paragraph No. 2 of this affidavit, it has
been stated that the procedure, for grant
of an approval to a resolution of the
Land Management Committee by the
S.D.O., was introduced by Notification
No. U.O. 605/Rajaswa-1-2(8)-75 dated
November 1, 1975.

This Court is not satisfied that
the provisions for grant of an approval
by the S.D.O., were incorporated from
November, 1975 as is the stand of the
S.D.M., Phoolpur as also the petitioner.
Sections 195, 197 and 198 of the UP ZA
& LR Act, 1950 were amended by
Presidents Act, 17 of 1968 and the Uttar
Pradesh Zamindari Abolition and Land
Reforms (Amendment) Act, 1968. By the
aforesaid Act and by its Sections 6, 7 and
8, the following words "with the previous
approval of the Assistant Collector-incharge of the sub division" were inserted
in each of the aforesaid three sections.

The stand, taken in the letter of
the Sub-Divisional Officer, Phoolpur,
Allahabad, that the previous approval of
the SubDivisional Officer, was required
700 INDIAN LAW REPORTS ALLAHABAD SERIES
only after 1974, therefore, cannot be
accepted.

Even, the contention, raised on
behalf of the petitioner that approval of
the Sub-Divisional Officer, was required
only
after
Notification
No.
U.O.
605/Rajaswa-1-2(8)-75 dated November
1, 1975, is also without substance.