# Badri & Ors v. Jata Shankar & Anr

- **Citation:** (2020) 2 ILRA 938
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-03
- **Case number:** Second Appeal No. 162 of 2011
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/badri-ors-v-jata-shankar-anr-45741
- **Pages:** 11

## Headnote

A. Civil Law-U.P. Zamindari Abolition and
Land Reforms Act (1 of 1951) - S. 172 -
Suit for permanent injunction - Plaintiff
failed to establish his possession -
Injunction cannot be granted in favour of
plaintiff

One Jagesar entrusted his property to plaintiffs
with condition that they had no right to sell the
property & that they will serve his wife Smt.
Raji who was issueless - Suit for permanent
injunction filed by appellant/plaintiffs with the
allegation that Smt. Raji performed customary
marriage with defendant after the death of
Jagesar, therefore, they had become the owner
of her property in view of Section 172 of the
U.P.Z.A.& L.R. Act - Held - Plaintiff-appellants
failed to prove the re-marriage of Smt. Raji and
possession over the property as no Khasra was
filed showing the possession of the plaintiffs. -
Injunction granted in favour of plaintiff, not
proper suit dismissed (Para 42)

B. Hindu Law - Customary marriage -
Proof - Custom not pleaded - In absence
of 'Saptpadi' merely living together as
husband and wife - cannot serve as proof
of a valid marriage

Held - No plea that marriage was solemnized in
accordance with the customary rites and
usage, which do not include 'Saptpadi' - In
absence of 'Saptpadi' and without plea of
customary marriage and without proof of
existence of any such custom, merely on the
basis of statement of witnesses of plaintiffs
cannot be treated as re-marriage (Para 26)

C. Civil Procedure Code (5 of 1908) - O.41
R.31 - Contents of judgment - Points for
determination - judgment of appellate
court
shall
state
the
points
for
determination - if points of determination
not specifically stated - judgment may
not vitiate - if there is substantial
compliance with Order 41 Rule 31 CPC &
the higher appellate court is able to
ascertain the findings of the lower
appellate court

Lower appellate court not formulated points of
determination - Held - Judgment passed after
considering the submissions of the parties,
evidence
&
specifically
considering
the
pleadings and evidence in regard to issues on
which the arguments were advanced - there is
substantial compliance of Order 41 Rule 31 CPC
and the judgment does not vitiate (Para 40,
41)

D. Procedure - Pleadings & Proof -
statement of witnesses in absence of
pleading is nothing but stray statement
which is not binding (Para 24)

Second Appeal dismissed. (E-5)

List of cases cited :-

## Text

938 INDIAN LAW REPORTS ALLAHABAD SERIES
marriage cannot be lived at the whims one
of the annoying spouses".

47. Argument of the counsel for
respondent-husband, that this Court does
not have any jurisdiction to grant decree of
divorce on the ground of irretrievable
break down of marriage under Section 13
has no force, as the appellant had filed
petition for divorce on the ground of
cruelty and the Apex Court while dealing
in case of Vishnu Datt Sharma (supra) and
Darshan Gupta (supra) had held that
irretrievable break down of marriage is not
a ground under Section 13, but the Apex
Court in case of Samar Ghosh (supra) and
Naveen Kohli (supra) while dealing with
the similar situation in which divorce was
sought on the ground of mental cruelty.
The Court went further and held that
where one of the parties, who was
subjected to mental cruelty and the
marriage cannot be sustained any more
having been broken down, came up with
the concept of irretrievable break down of
marriage. In the present case also the
appellant, who has been subjected to
mental cruelty by the respondent-husband
is also entitled for a decree of divorce as
her marriage has completely broken down
and no chance of survival remains.

48. As far as the second objection of the
counsel for the respondent-husband, that subSection (1) (i-b) of Section 13 of the Act
debars the parties from presenting petition
within two years in case of desertion, but in the
present case, the appellant had moved the
petition seeking annulment of marriage on the
ground of mental cruelty. The argument made
has no force and the said provision is not
applicable in the present case.

49. Thus there is no use of keeping the
appellant and the respondent tied by
matrimonial relationship when they cannot live
peacefully, since parties are living separately
after marriage, appellant has lived for a few
months in her matrimonial house, she having
made allegation of cruelty and desertion
against husband and husband having made
counter allegations against her the marriage
has irretrievably broken down.

50. As, no application for permanent
alimony has been filed by the appellant, nor
any oral prayer was made during the course
of argument, or at the time of reconciliation
held in Chamber, the appellant is not granted
any permanent alimony from the respondent.

51. In the interest of justice, the
judgment dated 18.1.2016 and decree dated
30.1.2016 are set aside and Case No.205 of
2011 filed by appellant, under Section 13 of
the Hindu Marriage Act is decreed and the
marriage between the parties stand annulled,
and Case No.94 of 2011 filed by the
respondent under Section 9 of the Hindu
Marriage Act for restitution of conjugal rights
is dismissed.

52. Both the appeals stand allowed.
----------
(2020)02ILR A938

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.02.2020

BEFORE
THE HON'BLE RAJNISH KUMAR, J.

Second Appeal No. 162 of 2011

Badri & Ors. ...Appellants
Versus
Jata Shankar & Anr. ...Respondents

Counsel for the Appellants:
R.R. Upadhyay, Amit Srivastava, Indra P.
Singh
2 All. Badri & Ors. Vs. Jata Shankar & Anr.
939
Counsel for the Respondents:
S.K. Mehrotra, Aditya Mishra, Aditya Nath,
I.D. Shukla, Shobh Nath Pandey, Vipin
Kumar Mishra

A. Civil Law-U.P. Zamindari Abolition and
Land Reforms Act (1 of 1951) - S. 172 -
Suit for permanent injunction - Plaintiff
failed to establish his possession -
Injunction cannot be granted in favour of
plaintiff

One Jagesar entrusted his property to plaintiffs
with condition that they had no right to sell the
property & that they will serve his wife Smt.
Raji who was issueless - Suit for permanent
injunction filed by appellant/plaintiffs with the
allegation that Smt. Raji performed customary
marriage with defendant after the death of
Jagesar, therefore, they had become the owner
of her property in view of Section 172 of the
U.P.Z.A.& L.R. Act - Held - Plaintiff-appellants
failed to prove the re-marriage of Smt. Raji and
possession over the property as no Khasra was
filed showing the possession of the plaintiffs. -
Injunction granted in favour of plaintiff, not
proper suit dismissed (Para 42)

B. Hindu Law - Customary marriage -
Proof - Custom not pleaded - In absence
of 'Saptpadi' merely living together as
husband and wife - cannot serve as proof
of a valid marriage

Held - No plea that marriage was solemnized in
accordance with the customary rites and
usage, which do not include 'Saptpadi' - In
absence of 'Saptpadi' and without plea of
customary marriage and without proof of
existence of any such custom, merely on the
basis of statement of witnesses of plaintiffs
cannot be treated as re-marriage (Para 26)

C. Civil Procedure Code (5 of 1908) - O.41
R.31 - Contents of judgment - Points for
determination - judgment of appellate
court
shall
state
the
points
for
determination - if points of determination
not specifically stated - judgment may
not vitiate - if there is substantial
compliance with Order 41 Rule 31 CPC &
the higher appellate court is able to
ascertain the findings of the lower
appellate court

Lower appellate court not formulated points of
determination - Held - Judgment passed after
considering the submissions of the parties,
evidence
&
specifically
considering
the
pleadings and evidence in regard to issues on
which the arguments were advanced - there is
substantial compliance of Order 41 Rule 31 CPC
and the judgment does not vitiate (Para 40,
41)

D. Procedure - Pleadings & Proof -
statement of witnesses in absence of
pleading is nothing but stray statement
which is not binding (Para 24)

Second Appeal dismissed. (E-5)

List of cases cited :-

1. Ambika Prasad & Anr Vs Sri Harihar Prasad
1985 (3) LCD 266

2. Santi Deb Berma Vs Kanchan Prava Devi
1991 Supp (2) SCC 616

3. Dina Nath Verma & Ors Vs Gokaran & Ors
2003(94) RD 323

4. Hori Lal Vs Babu Ram & Ors 2005
All.C.J.2158

5. Shri Ram & Ors Vs Deputy Director of
Consolidation Alld & Ors 2011 (29) LCD 764

6. Prabhu Dayal Vs Gaon Samaj Tandarpore
1965 ALJ 426

7. Kanchan Kumar Chaudhary Vs District
Judge, Mau & Ors; 1998 (89) RD 610

8. Ratti Pal Vs Additional District Judge, Court
No.6, Pratapgarh & Ors ;2014(124 RD 195

9. Anathula Sudhakar Vs P.Buchi Reddy (dead)
by LRs. and others (2008) 4 SCC 594

10. Jagdish Vs Rajendr AIR 1975 Allahabad 395

11. Meenakshiammal (dead) through LRs & Ors
Vs Chandrasekaran & ors 2006 (24) LCD 1316
940 INDIAN LAW REPORTS ALLAHABAD SERIES
12. K. Laxmanan Vs Thekkayil Padmini & Ors
2009 (27) LCD 1344

13. Kanailal & Vs Ram Chandra Sing & Ors
(2018) 13 SCC 715

14. Raj Kumar & Ors Vs Ashok Kumar
Chaurasia and 3 other 2015 SS Online All 9373

15. G.Amalorpavam &Ors Vs R.C.Diocese of
Madurai & Ors (2006) 3 SCC 224

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard, Shri Amit Srivastava, learned
counsel for the appellants and Shri Shobh Nath
Pandey, learned counsel for the respondents.

2. The instant Second Appeal under
Section 100 of the Civil Procedure Code is by
the appellants/plaintiffs against the judgment
and order dated 05.03.2011 passed by the
Additional District
Judge, Court No.8,
Faizabad in Civil Appeal No.87 of 2008;Jata
Shankar and another Versus Badri and others,
which
was
preferred
by
the
defendants/respondents for setting aside the
judgment and order dated 29.07.2008, passed
by the 3rd Civil Judge (JD), Faizabad in
Regular Suit No.248 of 1989;Bhagwan Das
and others Versus Smt.Raji and another.

3. The brief facts of the case for
adjudication of the present Second Appeal are
that both the appellants/plaintiffs and the
respondents/defendants are the residents of the
same village and they were the members of
Hindu joint family. Jorai was the owner of the
whole property in dispute. After death of Jorai
it came in the name of Mahangi, the eldest son
of Jorai. After the death of Mahangi it was
mutated in the name of Jagesar. Mahangi,
Dubar, Lahuri and Rohni took over their
possession according to their shares. Lahuri
died issueless, therefore, his share was divided
among all the brothers. Smt. Raji had equal
share in whole property. Jagesar had entrusted
his whole property in his life time to Ram
Sumer, Chhedo, Bhagwan Dass and Ram Lal,
but they had no right to sell the property. It was
ordered by Jagesar that they will serve Smt.
Raji. She was also issueless. As such they were
the heirs of her property, but they had not got
their names recorded in the revenue records.
Smt.Raji was remarried and after her marriage
they had become the owner of her property.
Any how she wanted to grab the property of
deceased Jagesar and transfer the house and
agricultural land to others. After death of
Smt.Raji her servant Bhagauti claimed himself
to be heir through her Will. While she had
never executed any Will and Bhagauti had no
possession and right over the land in dispute.

4. The defendants had filed their written
statement alleging that Smt. Raji was the
owner of the disputed property. She had
written Will dated 21/23.01.1980 of her whole
property in the name of the defendants. After
her death they became owner and bhumidhar
of the disputed land. Plaintiffs had never
served Smt. Raji while the defendants had
served her. There was no relation of wife and
husband between the defendants. Plaintiffs are
not the heirs of Smt.Raji and the suit had been
filed only to grab her property. The suit is not
within time and it has been filed only to harass
the defendants. Bhgauti had filed additional
written statement alleging therein that Smt.
Raji was not remarried. Smt. Raji is the nearest
relative of the defendants. The defendants are
in possession over the land in dispute from the
life time of Smt. Raji and they became owner
on the basis of Will dated 21/23.01.1980.

5. On the basis of the pleadings of the
parties the following issues were framed:-

1. Whether the plaintiff is owner and
in possession over the disputed land?
2 All. Badri & Ors. Vs. Jata Shankar & Anr.
941

2.
Whether
the
suit
is
not
maintainable in absence of possession?

3. Whether the suit is time barred?

4.Whether the suit is undervalued
and the court fee paid is insufficient?

5. Whether the defendants are
entitled to get special cost from plaintiffs under
section 35 C.P.C.?

6. Whether the plaintiff is entitled to
get any relief?

7. Whether Smt. Raji was remarried
with Bhagauti?

6. The plaintiff in addition to
documentary evidence had examined P.W.1
Bahaoo and P.W.2 Chingo. The defendants
had examined D.W.1 Jata Shankar, D.W.2
Ram Lala and D.W. 3 Prabhu Dei and also
filed affidavit of Ram Achal.

7. Learned Trial Court had partly
allowed the suit of the plaintiffs after
considering the arguments of both the parties
and the entire evidence on record by means of
the judgment and order dated 29.07.2008.
Aggrieved with the same the defendants had
filed civil appeal no.87 of 2008(Jata Shankar
and another Versus Badri and others), which
has been allowed by means of judgment and
order dated 05.03.2011 and the judgment and
order dated 29.07.2008 has been set aside and
the suit of the appellants/plaintiffs has been
dismissed. Being aggrieved with the same the
appellants/plaintiffs have filed the present
Second Appeal.

8. The present Second Appeal was
admitted by means of the order dated
29.04.2011 on substantial question of law
framed at Sl.No.1. Subsequently on an
application moved by the appellants
another substantial question of law was
formulated by means of order dated
11.12.2017. Accordingly two substantial
questions
of
law
are
involved
for
adjudication, which are reproduced as
under:-

1. Whether the trial court having
recorded a finding that the property in
dispute
is
ancestral
and
the
plaintiffs/appellants are in possession over
their share, has the lower appellate court
erred in law in setting aside the findings of
the trial court without any evidence on
record?

2. Whether the lower appellate
court has failed to make compliance of
Order 41 Rule 31 CPC and has not
formulated points of determination while
deciding the appeal and whether it would
result to non-sustainability of impugned
judgment in the eyes of law?

9. Learned counsel for the appellants
submitted that the suit for permanent
injunction
was
filed
by
the
appellants/plaintiffs against Smt.Raji on
25.05.1989 and Smt. Raji had died on
13.06.1989. Smt. Raji was wife of Jagesar.
Smt. Raji had died issueless. Bhagauti
Kewat
had
filed
an
impleadment
application on the basis of a photocopy of
registered Will dated 21/23.01.1980 in his
favour executed by Smt. Raji, but the
original Will was not filed before the trial
court. The suit was decreed exparte in the
year 1990. The exparte decree was
recalled and set aside in the year 1998.
Smt. Raji had remarried to Bhagauti
Kewat, which is apparent from the family
register of house no.23 and also the
electoral roll, in which he has been shown
as her husband, but the same has wrongly
not been accepted on the ground that it is
not proved that there was 'saptpadi' in the
marriage and mere entry in family register
and electoral roll is not sufficient to prove
the relationship or remarriage while the
'Dharaua' marriage being customary was
942 INDIAN LAW REPORTS ALLAHABAD SERIES
proved. The original Will was neither filed
nor proved before the trial court. Bhagauti
Kewat had transferred the land in dispute
to Bhagwati Prasad and Jata Shankar
through registered Will dated 16.07.2003.
Accordingly they were impleaded in the
suit. Since the original Will dated
21/23.01.1980 was not filed, therefore, the
chain of transfer was not complete.
Therefore the suit was decreed in regard to
the land under U.P.Z.A. & L.R.Act. In the
appellate court the certified copy of the
Will was filed but the same was not
proved in accordance with the Evidence
Act therefore the same could not have
been relied.

10. It has further been contended that the
learned trial court has recorded a categorical
finding that the name of Bhagauti was
recorded in the revenue records by fraud, but
without rebutting the said finding the Will has
been accepted without being proof in
accordance with the Evidence Act, which
could not have been done by the learned
appellate court.

11. He further submitted that an
application for amendment in the written
statement
was
moved
by
the
respondents/defendants in the appellate court
to take the plea of suit being barred by Section
49 of the U.P. Consolidation of Holdings Act,
1953. The said application was rejected by
means of the order dated 08.05.2009, but the
learned appellate court has allowed the appeal
on the ground of bar of Section 49 of the
U.P.C.H.Act without framing any point of
determination on it. In case if the learned
appellate court was of the view that it is the
legal plea which could have been raised at any
stage the matter should have been remitted
back to the learned trial court to decide it after
affording
opportunity
to
the
appellants/plaintiffs.

12. On the basis of above learned
counsel for the appellants submitted that the
lower appellate court has erred in law in
deciding the appeal without formulating the
point of determination therefore it is in
violation of Order 41 Rule 31 of CPC and also
setting aside the findings of the trial court on
the basis of the Will filed at the appellate stage,
which was not proved and no opportunity has
been afforded to the appellants to rebut the
same. Therefore the judgment and order
passed by the learned appellate court is liable
to be set aside.

13. In support of his submissions learned
counsel for the appellants has relied on Jagdish
Versus Rajendr;AIR 1975 Allahabad 395,
K.Laxmanan Versus Thekkayil Padmini and
others;2009 (27) LCD 1344, Kanchan Kumar
Chaudhary Versus District Judge, Mau and
others;RD 1998 (89) 610, Ratti Pal Versus
Additional District Judge, Court No.6,
Pratapgarh and others;2014 (124) RD 195,
Hori Lal Versus Babu Ram and others;2005
All.C.J. 2158, Shri Ram and others Versus
Deputy Director of Consolidation, Allahabad
and others;2011 (29) LCD 764, Kanailal and
others Versus Ram Chandra Singh and
others;(2018) 13 SCC 715, Meenakshiammal
(dead) Through LRs and others versus
Chandrasekaran and Another; 2006 (24) LCD
1316 and Anathula Sudhakar Versus P.Buchi
Reddy (dead) by LRs. and others;(2008) 4
SCC 594.

14. Per contra, learned counsel for
the
respondents
submitted
that
the
appellants/plaintiffs
had
filed
the
injunction suit but they have failed to
prove their title and possession over the
land in dispute. The learned Trial Court
had decreed the suit partly only in regard
to the land covered under the U.P.Z.A.&
L.R. Act, but no relief was granted in
regard to the land of abadi and no appeal
2 All. Badri & Ors. Vs. Jata Shankar & Anr.
943
was filed by the appellants-plaintiffs
against the said part of the judgment and
the same was accepted. The name of late
Smt. Raji was recorded in the first
consolidation of 1962 and thereafter again
in the 2nd consolidation which took place
in 1980. Both consolidations took place in
the life time of Smt. Raji, but no objection
was raised or claim was made by the
plaintiffs-appellants during her life time
and it was only just before her death the
suit for permanent injunction was filed.

15. The land in dispute was transferred in
the name of respondents-defendants on the
basis of a registered Will executed by Smt.Raji
in favour of Bhagauti Kewat and thereafter the
registered Will executed by Bhagauti Kewat in
favour of the respondents-defendants. The
Wills were never challenged by the appellantsplaintiffs
and
the
names
of
respondent/defendants
was
mutated
in
accordance with law on the basis of Will.
Therefore, they are not entitled for any relief.
Learned counsel for the respondents further
submitted that the suit filed by the appellantsplaintiffs was not maintainable and the first
appellate court has rightly held that the suit is
barred by Section 331 of the U.P.Z.A. & L.R.
Act and Section 49 of the U.P. Consolidation
of Holdings Act.

16. Lastly he submitted that the
appellants-plaintiffs and the respondentsdefendants were already separated and had
separate 'Pariwar' Register, which were filed
before the learned trial court. Therefore, the
appellants cannot claim the land devolved on
late Smt.Raji, which has come in the name of
the respondents-defendants on the basis of
registered Will.

17. On the basis of above learned
counsel for the respondents submitted that the
learned trial court had wrongly and illegally
partly allowed the suit filed by the appellantsplaintiffs which has rightly been set aside and
the suit for permanent injunction of the
appellants-plaintiffs
has
rightly
been
dismissed. The present appeal has been filed
on misconceived and baseless grounds which
is liable to be dismissed with costs.

18. In support of his submissions learned
counsel for the respondents has relied on Dina
Nath Verma and others Versus Gokaran and
others;2003 (94) RD 323 and Prabhu Dayal
Versus Gaon Samaj, Tandarpore;1965 ALJ
426.

19.

I
have
considered
the
submissions of learned counsels of the
parties and perused the record.

20. The facts which are not in dispute
are that Jorai was the owner of the whole
property in dispute. After his death it came
in the name of Mahangi, Dubar, Lahuri
and
Rohini.
They
took
over
their
possession according to their share. Lahuri
died issueless, therefore his share was
divided among all the brothers. Thereafter
the property in dispute came in the name
of Jagesar. Smt. Raji being wife of Jagesar
had equal share in whole property after his
death. Jagesar had entrusted his property
to Ram Sumer, Chhedi, Bhagwan Dass
and Ram Lal, but they had no right to sell
the property as it was provided by Jagesar
that they will look after Smt. Raji as she
was issueless.

21. The appellant/plaintiffs had filed
Suit for permanent injunction alleging
therein that Smt. Raji had re-married after
the death of Jagesar. Therefore they had
become the owner of her property in view
of Section 172 of the U.P.Z.A.& L.R.Act.
The Suit was filed during life time of Smt.
Raji on 25.05.1989 and Smt. Raji died on
944 INDIAN LAW REPORTS ALLAHABAD SERIES
13.06.1989
without
filing
written
statement. Bhagauti had got himself
impleaded on the basis of a registered Will
deed in his favour executed by Smt.Raji on
21/23.01.1980.
The
plea
of
the
appellants/plaintiffs is that Smt. Raji had
re-married with Bhagauti, therefore, the
property was reverted to the family of
Jagesar and the appellants had become
owner and in possession of the property in
dispute.

22. Learned Trial court on the basis
of evidence and findings recorded in
regard to issues no.1 and 7 came to the
conclusion that the appellants have not
produced any Khasra by which the
possession of the plaintiffs could be
proved, but since Smt. Raji had re-married
and the plaintiffs are owner and in
possession under the U.P.Z.A.& L.R.Act,
therefore, the said issues are decided in
favour of the plaintiffs and against the
defendants.

23. Learned Appellate court while
considering the findings recorded in regard
to the issues no.1 and 7 and the evidence
found that P.W.1 has stated that Smt.Raji
had done 'Dharauwa' marriage with
Bhagauti and at the time of marriage he
was 25 years of age. P.W.2 Ram Achal has
also stated that Smt.Raji had done
'Dharauwa' marriage with Bhagauti and he
was 10 to 20 years old. They live like
husband and wife. The marriage of
Bhagauti and Smt. Raji took place
according to 'Hindu' customs. About 50
members were gathered. Pandit Ji had not
come.
The
marriage
was
done
by
'Biradari'. D.W.1-Jata Shanker, D.W.2Rampal and D.W.3-Prabhu Dei have
denied any 'Dharauwa' marriage between
Smt. Raji and Bhagauti or any relation of
husband and wife between them. Though
it was stated by D.W.2 that Bhagauti was
living in the house of Smt.Raji. As per the
pleadings and evidence Smt. Raji remarried with Bhagauti prior to 36 years
ago and due to re-marriage she lost her
title as stated in the plaint. While Jagesar
had died in 1959. Therefore, on the basis
of versions of the witnesses, the learned
appellate court found that Smt. Raji should
have married in 1953, which is self
contradictory because it is not the case of
the plaintiffs that Smt.Raji married in the
life time of Jagesar. While in view of
above Smt. Raji should have married
during life time of Jagesar.

24. In paragraph 8 of the plaint it has
been mentioned that after the death of Smt.
Raji the said servant Bhagauti showed
himself as the legal heir of Smt.Raji on the
basis of Will executed by her. Smt. Raji
had
not
executed
any
Will
deed.
Therefore, there is an admission by the
appellant/plaintiffs that Bhaguati was the
servant of Smt. Raji. 'Dharauwa' marriage
deposed by the P.W.1 and P.W.2 has not
been pleaded in the plaint. It is not proved
by the evidence on record that there was
'Saptpadi' in the marriage of Smt. Raji and
Bhagauti. 'Dharauwa' marriage has been
deposed as a custom in the family but the
plaintiffs have even not proved that there
was any such custom in the family. The
statement of witnesses in absence of
pleading is nothing but stray statement
which is not binding as held by this court
in Ambika Prasad and another Versus
Sri Harihar Prasad;1985 (3) LCD 266.

25. In the Will deed dated
21/23.01.1980 filed as Paper No.152 C/2
to 5, Smt. Raji widow of Jagesar and
Bhagauti as 'Mausiyat Dewar' has been
mentioned. It is also mentioned that he
was living with her for the last 18-20 years
2 All. Badri & Ors. Vs. Jata Shankar & Anr.
945
and serving her and managing her farming
etc. It is also apparent from Paper
No.152C/19, the order passed on mutation
case, that the name of Bhagauti was
recorded on the basis of Will, after proving
in accordance with law.

26. In absence of 'Saptpadi' and
without plea of customary marriage as
'Dharauwa' and without proof of existence
of any such custom, merely on the basis of
statement of witnesses of plaintiffs and
living of Bhagauti with Smt. Raji to serve
her and manage her farming cannot be
treated as re-marriage in absence of any
cogent evidence and the rights of Smt.
Raji, a widow, would not be extinguished
under Section 172 of U.P.Z.A.& L.R. Act.
The findings recorded by the learned trial
court that Smt. Raji had re-married with
Bhgauti is without any cogent evidence
and the learned appellate court has rightly
recorded that it is not proved by the
cogent,
reliable
and
corroborative
evidence and the finding of the trial court
is not based on the evidence on record.

27. The Hon'ble Apex Court in the
case of Santi Deb Berma Versus
Kanchan Prava Devi; 1991 Supp (2)
SCC 616 held that living together as
husband and wife cannot in any way serve
as proof of a valid marriage as per the Act,
especially when there is no plea that the
marriage was solemnized in accordance
with the customary rites and usage, which
do not include 'Saptpadi'.

28. This Court in the case of Dina
Nath
Verma
and
others
Versus
Gokaran and others;2003(94) RD 323
does not find "Ghar Baitha" as legal
marriage and held that since no objection
was raised in consolidation proceedings
therefore the allegations are only an after
thought and the allegation of re-marriage
can not be accepted. The relevant
paragraphs 11 to 13 are extracted below:-

"11. Now coming to the other
questions firstly, I consider whether Smt.
Lakhraji re-married to Phagoo. Oral
evidence has been produced regarding remarriage. However, the same does not
appear to convincting. There is absolutely
no evidence to show that the marriage
took place. On the other hand, only to is
alleged that it was "Ghar Baitha"; that
sagai took place and thereafter Smt.
Lakhraji and Phagoo started living as
husband and wife. It does not show that it
was a legal marriage. It is not alleged in
the plaint that "sapta-pati" took place and
therefore,
this
marriage
cannot
be
recognised and Smt. Lakhraji cannot be
divested from the property.

12. In the present case, it is
admitted position that the name of Smt.
Lakhraji was recorded over the land on
which dispute houses exist in CH Form
No. 23. Smt. Lakhraji was declared as
exclusive owner of the land and chack was
carved out in her name. Smt. Yashoda
Devi and respondent Nos. 2 and 3 did not
raised any objection in the consolidation
proceedings. They have not stated that
Smt. Lakhraji has been divested from the
land because she had re-married with
Phagoo. Therefore, the allegations made
in the suit is only a after thought and the
allegation that Smt. Lakhraji has remarried cannot be accepted.

13. The Apex Court in the case
of Surjit Kaur v. Garja Singh [ A.I.R. 1994
SCC 135.] , has held that where customary
marriage is pleaded but the custom is not
pleaded and there is no evidence of the
nature of the ceremonies performed in
marriage in such a case from the evidence
that the parties were living together as
946 INDIAN LAW REPORTS ALLAHABAD SERIES
husband and wife does not itself show that
it would confer status of husband and
wife."

29. The judgment passed in the case
of Hori Lal Versus Babu Ram and
others;2005 All.C.J.2158, Shri Ram and
others
versus
Deputy
Director
of
Consolidation,
Allahabad
and
others;2011 (29) LCD 764 are of no
assistance to the case of the appellants.

30. This Court in the case of Prabhu
Dayal Versus Gaon Samaj Tandarpore
;1965 ALJ 426 has held that in a Suit for
injunction the plaintiff's right to an
injunction is based upon some title which
he must establish to the satisfaction of the
Court. But the appellant/plaintiffs have
failed to establish.

31. This Court in the case of
Kanchan Kumar Chaudhary Versus
District Judge, Mau and others;1998
(89) RD 610 has held that in a suit for
permanent injunction the question of title
arises only incidentally. Similar view has
been taken by this court in the case of
Ratti Pal Versus Additional District
Judge, Court No.6, Pratapgarh and
others;2014(124) RD 195.

32. The Hon'ble Apex Court in the
case of Anathula Sudhakar Versus
P.Buchi Reddy (dead) by LRs. and
others;(2008) 4 SCC 594 has referred the
general principles as to when a mere suit
for permanent injunction will lie, and
when it is necessary to file a suit for
declaration
and/or
possession
with
injunction as a consequential relief. The
relevant paragraph 13 is extracted below:-

"13. The general principles as to
when a mere suit for permanent injunction
will lie, and when it is necessary to file a
suit for declaration and/or possession with
injunction as a consequential relief, are
well settled. We may refer to them briefly.

13.1. Where a plaintiff is in
lawful or peaceful possession of a property
and such possession is interfered or
threatened by the defendant, a suit for an
injunction simpliciter will lie. A person
has a right to protect his possession
against any person who does not prove a
better title by seeking a prohibitory
injunction. But a person in wrongful
possession is not entitled to an injunction
against the rightful owner.

13.2. Where the title of the
plaintiff is not disputed, but he is not in
possession, his remedy is to file a suit for
possession and seek in addition, if
necessary, an injunction. A person out of
possession, cannot seek the relief of
injunction simpliciter, without claiming
the relief of possession.

13.3. Where the plaintiff is in
possession, but his title to the property is
in dispute, or under a cloud, or where the
defendant asserts title thereto and there is
also a threat of dispossession from the
defendant, the plaintiff will have to sue for
declaration of title and the consequential
relief of injunction. Where the title of the
plaintiff is under a cloud or in dispute and
he is not in possession or not able to
establish
possession,
necessarily
the
plaintiff will have to file a suit for
declaration, possession and injunction."

33. So far as the proof of Will deed
executed by Smt. Raji is concerned the
same was acted upon after proving before
the Tehsildar. It is also apparent from
report of Police Station 172c and Paper
No.162c/7 Khasra, 162c/8 Khatauni etc.
that the disputed land was in possession of
Jagesar-Smt.Raji-Bhagauti-Jata Shanker-
2 All. Badri & Ors. Vs. Jata Shankar & Anr.
947
Bhagwati. The disputed house is locked.
Therefore the judgments cited by the
learned counsel for the appellants in the
case of Jagdish Versus Rajendr;AIR
1975 Allahabad 395, Meenakshiammal
(dead) through LRs and others Versus
Chandrasekaran and another; 2006 (24)
LCD 1316 and K. Laxmanan Versus
Thekkayil Padmini and others; 2009
(27) LCD 1344 are not applicable on the
facts and circumstances of the present case
and of no assistance to the case of the
appellants.

34. In view of above this court is of
the considered opinion that the findings
recorded by the learned Trial court in
regard to reversion of the land in dispute
and possession of the appellants on
account of alleged re-marriage of Smt.
Raji was perverse and not tenable because
no Khasra was also filed showing the
possession of the plaintiffs. Therefore, the
learned appellate court has rightly set aside
the findings of the trial court in regard to
possession. This court does not find any
illegality or error in it.

35. Learned Appellate court after
examining the evidence found that house
No.23, Gata No.190-A area 0-0-17, 190-B
area 1-2-2, 309 area 3-6-12 and 161 Ka
area 0-8-5 given in the bottom of the plaint
were recorded in the name of Smt. Raji in
the first consolidation and continued in the
second consolidation and respondents had
not made any objection before the
consolidation authorities. However, the
matter regarding adjudication of title is
pending
before
the
consolidation
authorities and thus the suit of plaintiffs
was also barred by Section 49 of
Consolidation of Holdings Act. Even
otherwise the plaintiff/appellants have
failed to prove their case as discussed
above. In view of no objection raised by
the
appellant/plaintiffs
in
both
the
consolidations during the life time of
Smt.Raji, their allegations are only after
thought and could not be proved by cogent
and reliable
evidence, therefore not
acceptable in view of judgment in the case
of Dina Nath Verma and others Versus
Gokaran and others (Supra) also.

36. Adverting to the second
question of law Order 41 Rule 31 of
the CPC provides that the judgment of
the appellate court shall be in writing
and
shall
state
the
points
for
determination, the decision thereon,
the reasons for the decision and where
the decree appealed from is reversed or
varied, the relief to which the appellant
is entitled.

37. The Hon'ble Apex Court in
the case of Kanailal and others
Versus Ram Chandra Singh and
others; (2018) 13 SCC 715 has
observed in paragraph 12 that it is
clear from mere reading of Rules 31(a)
to (d) that it makes legally obligatory
upon the appellate court (both first and
second appellate court) as to what
should the judgment of the appellate
court contain.

38. This court in the case of Raj
Kumar
and others
Versus
Ashok
Kumar Chaurasia and 3 other;2015 SS
Online All.9373 has held that where
parties have led the evidence and said
evidence
has
been
considered
for
recording finding and if controversy is
discernible from the judgment, then nonframing of points for determination does
not vitiate the judgment and same will be
treated to be substantial compliance of
Order 41 Rule 31 CPC.
948 INDIAN LAW REPORTS ALLAHABAD SERIES

39. The Hon'ble Apex Court in the
case of G.Amalorpavam and others
Versus R.C.Diocese of Madurai and
others; (2006) 3 SCC 224 has held that
non-compliance with the provisions may
not vitiate the judgment and make it
wholly void, and may be ignored if there
has been substantial compliance with it
and the second appellate court is in a
position to ascertain the findings of the
lower appellate court.

40. In view of above merely because
the points of determination have not
specifically been stated, the judgment may
not vitiate because it can be ignored if
there has been substantial compliance with
the provisions i.e. Order 41 Rule 31 CPC
and the higher appellate court is able to
ascertain the findings of the lower
appellate court.

41. Learned counsel for the appellant had
also failed to disclose as to which issue has not
been framed and evidence has not been
considered and only submitted that the points
of determination have not been framed while
the judgment has been passed after considering
the submissions of the parties and the evidence
and also the case laws specifically considering
the pleadings and evidence in regard to issues
on which the arguments were advanced.
Therefore, this court is of the view that there is
substantial compliance of Order 41 Rule 31
CPC and the judgment does not vitiate on this
ground.

42. In the present case the suit for
permanent injunction was filed by the
appellant/plaintiffs with the allegation that
Smt. Raji had re-married after the death of
jagesar, therefore, they had become the owner
of her property in view of Section 172 of the
U.P.Z.A.& L.R.Act. As discussed above the
plaintiff-appellants have failed to prove the remarriage of Smt. Raji and possesson over the
property, therefore, the decree passed by the
learned trial court has rightly been set aside
and suit has been dismissed in accordance with
law.

43. In view of above this court is of the
considered opinion that there is no illegality or
error in the judgment and order dated
05.03.2011 passed by the First Appellate
Court. The substantial questions of law framed
by this court are accordingly decided against
the appellants.

44. This second appeal is hereby
dismissed. No order as to costs.

45. The lower Court record shall be
remitted to the concerned court forthwith.
----------
(2020)02ILR A948

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.09.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

First Appeal No. 448 of 2015

Girish Chandra Srivastava ...Appellant
Versus
Smt. Reeta Srivastava ...Respondent

Counsel for the Appellant:
Sri Sriprakash Dwivedi

Counsel for the Respondent:
Sri Ratnesh Khare

A. Civil Law-Hindu Marriage Act (25 of
1955) - S.12(2)(a)(i) - Marriage - Fraud -
Consent obtained by fraud - Annulment of
marriage - no petition for annulling a
marriage on the ground of fraud shall be
entertained if the petition is presented