# Banshraj v. Ram Naresh & Anr

- **Citation:** Second Appeal No. 171 of 2010
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-06
- **Case number:** Second Appeal No. 171 of 2010
- **Bench:** Virendra Kumar-Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/banshraj-v-ram-naresh-anr-46334
- **Pages:** 28

## Headnote

A. Civil law-Civil Procedure Code - Section
11 - U.P. Panchayat Raj Act, 1957 -
3-5 All. Banshraj Vs. Ram Naresh & Anr.
1389
Section 52 and 64 - Binding effect of the
order of Nyaya Panchayat - Nyaya Panchayat
was not having jurisdiction to decide the dispute
of civil nature of shares - Judgment of Nyaya
Panchayat was not binding on the respondent
on the basis of principle of res-judicata - The
suit was not barred by provisions of Section 11
of the C.P.C. (Para 31, 32 and 48)
B. . Civil law- Civil Procedure Code - Order
XLI, Rule 1 - Reasons for the Decision -
Judgment of the appellate court has to state the
reasons for the decision - 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.
(Para 65 and 67)
C. Civil law- Civil Procedure Code -
Section 96 - Concurrent Finding and Reversing
Finding - Duty of the first appellate court -
Appellate court has the jurisdiction to appreciate
the evidence de novo while hearing the first
appeal and either affirm the finding of the trial
court or reverse it - If the appellate court
affirms the finding, it is called 'concurrent
finding of fact' whereas if the finding is
reversed, it is called 'reversing finding' - Where
the judgment of the lower appellate court is a
judgment of reversal it is primary duty of the
appellate court to consider the reasons given by
the trial court and those reasons must also be
reversed. (Para 75 and 78)
D. . Civil law-Civil Procedure Code -
Section 100 and 103 - Second Appeal -
Substantial Question of Law - Interference in
question of fact - It is the intention of the
legislature to limit the scope of second appeal
only when a substantial question of law is
involved. It never wanted the High Court to be a
fact-finding court - However, it is not an
absolute rule that the High Court cannot
interfere in a second appeal on a question of
fact - Section 103 CPC enables the High Court
to consider the evidence when the same has
been wrongly determined by the courts below
on which a substantial question of law arises as
referred to in Section 100 - When appreciation
of evidence suffers from material irregularities
and when there is perversity in the findings of
the court which are not based on any material,
the court is empowered to interfere on a
question of fact as well - Held, unless and until
there is absolute perversity, it would not be
appropriate for the High Courts to interfere in a
question of fact. (Para 83)
Appeal dismissed (E-1)
Cases relied on :-

## Text

_Characters 0–39,947 of 94,081. This is a partial read: ask again with offset=39947 for what follows._

1388 INDIAN LAW REPORTS ALLAHABAD SERIES
Court of Nagpur is too wide. The proper
test for determining whether a question of
law raised in the case is substantial would,
in our opinion, be whether it is of general
public importance or whether it directly
and substantially affects the rights of the
parties and if so whether it is either an open
question in the sense that it is not finally
settled by this Court or by the Privy
Council or by the Federal Court or is not
free from difficulty or calls for discussion
of alternative views. If the question is
settled by the highest Court or the general
principles to be applied in determining the
question are well settled and there is a mere
question of applying those principles or
that the plea raised is palpably absurd the
question would not be a substantial
question of law."(emphasis supplied)

23. Therefore, it is clear that merely
because in the substantial question of law
so framed in the memo of appeal involving
interpretation of any particular provision of
the law by itself could not be a substantial
question of law.

24. In the present case, definition of
the word "public premises" itseld would
make it abundantly clear that in absence of
any pleading or evidence on record to the
effect that the defendant society was a
society covered under Clause (iv) of
Section 2(e) of the Act of 1972, the suit
cannot be said to be barred by Section 15 of
the Act of 1972.

25. In the opinion of this Court it is
not a substantial question of law, which
requires any interpretation by this Court in
view of the law laid down by Hon'ble Apex
Court in Sir Chunilal V. Mehta and sons
Ltd (supra) the question framed above,
even if it is treated to be a question of law,
it is not open to interpretation.

26.

Insofar
as
the
substantial
questions of law as framed in the memo of
appeal regarding applicability of the
Provincial Small Causes Court Act are
concerned, it is clear that both the suits
filed as regular original suits and were
decided on regular civil side and not by the
court as Judge, Small Causes, therefore,
first appeal is maintainable under Section
96 of C.P.C. Hence, no substantial question
requiring interpretation of or applicability
of Provincial Small Causes Court Act, 1887
is involved in the present appeal in this
regard is involved. His position has also
been admitted by learned counsel for the
appellant during course of arguments.

27. This Court is of the opinion that
no substantial question of law is involved
in the present case.

28. Both the appeals are devoid of
merits and are accordingly dismissed.
----------
(2020)03-05ILR A1388
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.03.2020

BEFORE

THE HON'BLE VIRENDRA KUMAR-II, J.

Second Appeal No. 171 of 2010

Banshraj ...Appellant
Versus
Ram Naresh & Anr. ...Respondents

Counsel for the Appellant:
Rajendra Prasad Tripathi

Counsel for the Respondents:
Nishant Srivastava, Dinesh Kr. Shukla

A. Civil law-Civil Procedure Code - Section
11 - U.P. Panchayat Raj Act, 1957 -
3-5 All. Banshraj Vs. Ram Naresh & Anr.
1389
Section 52 and 64 - Binding effect of the
order of Nyaya Panchayat - Nyaya Panchayat
was not having jurisdiction to decide the dispute
of civil nature of shares - Judgment of Nyaya
Panchayat was not binding on the respondent
on the basis of principle of res-judicata - The
suit was not barred by provisions of Section 11
of the C.P.C. (Para 31, 32 and 48)
B. . Civil law- Civil Procedure Code - Order
XLI, Rule 1 - Reasons for the Decision -
Judgment of the appellate court has to state the
reasons for the decision - 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.
(Para 65 and 67)
C. Civil law- Civil Procedure Code -
Section 96 - Concurrent Finding and Reversing
Finding - Duty of the first appellate court -
Appellate court has the jurisdiction to appreciate
the evidence de novo while hearing the first
appeal and either affirm the finding of the trial
court or reverse it - If the appellate court
affirms the finding, it is called 'concurrent
finding of fact' whereas if the finding is
reversed, it is called 'reversing finding' - Where
the judgment of the lower appellate court is a
judgment of reversal it is primary duty of the
appellate court to consider the reasons given by
the trial court and those reasons must also be
reversed. (Para 75 and 78)
D. . Civil law-Civil Procedure Code -
Section 100 and 103 - Second Appeal -
Substantial Question of Law - Interference in
question of fact - It is the intention of the
legislature to limit the scope of second appeal
only when a substantial question of law is
involved. It never wanted the High Court to be a
fact-finding court - However, it is not an
absolute rule that the High Court cannot
interfere in a second appeal on a question of
fact - Section 103 CPC enables the High Court
to consider the evidence when the same has
been wrongly determined by the courts below
on which a substantial question of law arises as
referred to in Section 100 - When appreciation
of evidence suffers from material irregularities
and when there is perversity in the findings of
the court which are not based on any material,
the court is empowered to interfere on a
question of fact as well - Held, unless and until
there is absolute perversity, it would not be
appropriate for the High Courts to interfere in a
question of fact. (Para 83)
Appeal dismissed (E-1)
Cases relied on :-
1. Ambanna Vs. Ghanteappa; AIR 1999
Karnataka 421
2. R.S. Anjayya Gupta Vs. Thippaiah Setty;
(2019) 7 SCC 300
3. Thulasidhara Vs. Narayanappa; (2019) 6
SCC 409
4. Kondiba Dagadu Kadam Vs. Savitribai
Sopan Gujar; (1999) 3 SCC 722]
5. Gurnam Singh Vs. Lehna Singh; (2019) 7
SCC 641
6. St. of M.P. Vs. Dungaji; (2019) 7 SCC
465
7.
Narayana
Gramani
Vs.
Mariammal;
(2018) 18 SCC 645
8.
Arulmighu
Nellukadai
Mariamman
Tirukkoil Vs. Tamilarasi; (2019) 6 SCC 686
9. Chand Kaur Vs. Mehar Kaur; (2019) 12
SCC 202 : 2019 SCC OnLine SC 426
10. Rajasthan Vs. Shiv Dayal, reported in
(2019) 8 SCC 637 : (2019) 4 SCC (Civ) 203
: 2019 SCC OnLine SC 1034 639
11. S.V.R.Mudaliar (Dead) by Lrs. and ors.
Vs. Rajabu F.Buhari (Mrs) (Dead) by Lrs. &
ors., AIR 1995 SC 1607
12. Rani Hemant Kumari Vs. Maharaja
Jagadhindra Nath, 10 CWN 630
13. Smt. Sona Devi Vs. Nagina Singh & ors.,
AIR 1997 Patna 67
14. Jaideo Yadav Vs. Raghunath Yadav &
anr., 2009(3) PLJR 529
15. Doodhnath & anr. Vs. Deonandan AIR
2006 Allahabad 3
1390 INDIAN LAW REPORTS ALLAHABAD SERIES
16. St. of M.P. Vs. Sabal Singh; (2019) 10 SCC
595 : 2019 SCC OnLine SC 1340 at page 605
17. Jagdish Chander Vs. Satish Chander; (2019)
12 SCC 237 : 2019 SCC OnLine SC 283
18. Ramathal Vs. Maruthathal; (2018) 18 SCC
303
(Delivered by Hon'ble Virendra Kumar-II, J.)

1. Heard Mr. Rajendra Kumar
Tripathi, learned counsel for appellant exparte as none is responding on behalf of the
respondents.

2. The present second appeal has been
preferred
by
the
appellant
assailing
impugned judgment and decree dated
26.3.2010 delivered by learned District
Judge, Court No.-2 Gonda in Civil Appeal
No. 135 of 2008 (Ram Naresh Vs. Banshraj
and another) by which learned first
appellate court has set aside the judgment
and decree dated 12.9.2008 delivered by
trial court of learned Additional Civil Judge
(Jr. Div.) III, Gonda in Original Suit No.
253 of 1994 (Ram Naresh Vs. Banshraj and
another).

3. The trial court had dismissed the
suit of plaintiff/respondent no. 1 and first
appellate court has decreed the suit of
plaintiff/respondent no. 1 by setting aside
impugned judgment and decree dated
12.9.2008 and held 1/3 share of plaintiff
and both the defendants. It is directed by
first appellate court to prepare preliminary
decree accordingly.

4. It is pleaded in grounds of appeal
that first appellate court has not appreciated
oral and documentary evidence minutely
and in correct perspective, as it was done
by the trial court. It is also mentioned that
disputed property was comprising of
ancestral property, land purchased by
means of sale deed and new Abadi. It was
not appreciated by first appellate court that
property purchased by means of sale deed
gives rise to only purchaser and none-else.

5. Likewise first appellate court has
not correctly appreciated the provisions of
Uttar Pradesh Panchayat Raj Act, 1947
regarding jurisdiction of Nyay Panchayat.
The findings of the first appellate court is
incorrect that Nyay Panchayat was not
competent to deliver judgment regarding
disputed property. The plaintiff/respondent
no. 1 could participate in proceedings
conducted by Nyay Panchayat, but he had
not opted to participate knowingly. He was
bound by the decision given by Nyay
Panchayat. The provisions of Section 11 of
the C.P.C. applies to the proceedings of
present dispute between the parties.

6. It is further pleaded that since
disputed property also comprised land of
New Abadi, therefore, Gram Sabha was the
necessary party.

7. On the basis of aforesaid pleadings,
the impugned judgment and decree dated
26.3.2010 has been sought to be set aside.

8. On 26.2.2020 present appeal was
heard ex-parte and the following order was
passed:-

"Heard learned counsel for the
appellant
ex-parte,
because
none
is
responding on behalf of respondents.

It was directed vide order dated
05.12.2019 as follows:

"List revised. Learned counsel for
appellant is present. None is responding on
behalf of respondents today.

On 14.11.2019 this Court has
passed the following order:
3-5 All. Banshraj Vs. Ram Naresh & Anr.
1391

"List revised. Case called out
twice.

None is responding on behalf of
the respondents.

Learned counsel for appellant is
present.

In this case record of first
appellate court and trial court has been
received.

In the interest of justice, the case
is adjourned.

List on 05.12.2019.

Learned counsel for respondents
has to appear and argue the case on the next
date of listing, otherwise this case shall be
decided in accordance with law."

Learned counsel for respondents
has to appear and argue the present second
appeal on the next date of listing,
otherwise, it shall be heard exparte.

List on 08.01.2020."

After 05.12.2019, on next date of
listing
i.e.
08.01.2020,
14.01.2020,
17.01.2020, 24.01.2020 and 11.02.2020,
learned counsel for respondents did not
appear for arguments, therefore, today exparte arguments of learned counsel for the
appellant heard and concluded.

Judgment reserved."

9. Learned counsel for respondents
has not appeared during proceedings of
present
appeal
after
19.12.2017.
On
19.12.2017 Mr. Dinesh Kumar Shukla,
Advocate informed his illness on behalf of
the respondents.

10. Notices issued against respondent
nos.
1/1/1
and
1/1/2
were
served
sufficiently. In absence of respondents, the
following substantial questions of law were
formulated on 3.1.2018:-

1- Whether judgment given by
Nayay Panchayat on the same subject
matter between the same parties would
have effect of resjudicata and Section-11
C.P.C is a bar for fresh trial?

2- In any suit for partition
identification for disputed properties as
ancestral is essential or not?

3- Where between the parties it is
admitted that most of the properties have
been divided, the presumption of property
to be joined would not help the person who
is seeking partition of the property in
dispute?

4- Whether non-compliance of
the provisions contained in order 41, Rule
31 by lower appellate court has resulted in
prejudice to the present appellant, if so, its
effect?

Thereafter
the
appeal
was
admitted.

11. Learned counsel for appellants on
the basis of substantial questions of law
formulated by this Court has put forth his
argument on the basis of contentions made
in grounds of appeal. He submitted relying
on decision of this Court dated 1.9.2017
delivered in Second Appeal No. 403 of
2014 (Jagannath Vs. Savitri Devi and
others) that first appellate court has not
framed any point of determination and has
violated the provisions of order XLI, Rule
31 of C.P.C.

12. Likewise, learned counsel for
appellant relying on decision of Karnataka
High Court in the case of Ambanna Vs.
Ghanteappa
reported
in
AIR
1999
Karnataka
421
(Principal
Seat
at
Bengaluru) has submitted that if particulars
of property has not been mentioned in
plaint of suit for partition, then such plaint
is liable to be rejected under Order VII,
Rule 3 of C.P.C. The plaintiff/respondent
no. 1 has not mentioned particulars like
description
of
property
in
correct
1392 INDIAN LAW REPORTS ALLAHABAD SERIES
perspective with correct boundaries. These
particulars has not been proved during
course of trial of original suit. Therefore,
the provisions of Order VII, Rule 3 are
attracted to the contentions of plaint of
present matter. Therefore, plaint instituted
by the plaintiff ought to have been rejected
for violation of aforesaid provisions.

13. Learned counsel for appellant has
further submitted that the disputed property
comprises ancestral property, the property
purchased by respondent/appellant Banshraj by
means of sale deed and some portion of
disputed property was allotted by Gram Sabha
to him. Therefore, the Land Management
Committee of Village Dixit Purwa, Mauza
Semara Shekhpur, Tehsil Tarabganj, District
Gonda was the necessary party of present suit.

14. It is further submitted that the trial
court and first appellate court has not
considered and recorded the findings on issue
no. 5 in correct perspective, rather both the
learned courts below have not considered the
issue no. 5 on the basis of contentions of written
statement filed by appellant Banshraj.

15. It is also submitted that likewise,
judgment delivered by Nyay Panchayat was
operative as res-judicata according to provisions
of Section 11 of C.P.C. The principle of res
judicata was not complied with by the first
appellate court and argument of learned defence
counsel was discarded on this score illegally.

16. I have perused record of Original Suit
No. 253 of 1994 (Ram Naresh Vs. Banshraj
and another) and impugned judgment and order
dated 26.3.2010 delivered by first appellate
court in Civil Appeal No. 135 of 2008.

Factual matrix

17. The plaintiff/respondent no. 1 Ram
Naresh instituted suit for partition before the
trial court. He has contended that ancestral
house is marked as v c l n in plaint map and
Abadi land is marked by c l ; j y, which is
situated as courtyard for keeping debris,
Kundaur and Khalihan. On this land trees of
Eucalyptus, Mango, Neem, Mahua, Shisham
and Imli are standing.

18. The plaintiff and defendants are
real brothers and the disputed property is
their joint property. They are living
separately
from
15
years
ago
and
agricultural land was divided 10-12 years
ago. The land of Abadi could not be
divided. Now there was extension in family
of plaintiff and there is paucity of
accommodation, he is having 1/3 share in
the disputed property and wants to
construct separate house for his family. He
requested the defendants to divide the
disputed property and give him 1/3 share,
but defendants refused for partition on
20.5.1994. Therefore, suit was instituted by
the plaintiff.

19. Respondent no. 2 Hansraj filed his
written statement 25 Ka before the trial
court and pleaded that there is Kachcha
house in dilapidated condition, which is
inhabitant. He constructed Pakka Dalan. He
has corroborated this fact that trees of aged
20 years are standing in the disputed
property. Ghari, Madwa, place for debris,
and Kandaur are also situated on this land.
The plaintiff and defendants are having
equal share in the disputed property,
whereas
defendants
Banshraj
took
possession of Abadi land greater than his
share. The plaintiff and defendants are
residing in the disputed property from the
period of their ancestors.

20. The defendant Banshraj filed his
written statement Ka-15. He has pleaded
that disputed property is not identifiable
3-5 All. Banshraj Vs. Ram Naresh & Anr.
1393
and plaint map is incorrect. He has further
pleaded that only property marked by v c
l n is ancestral property. He purchased
property marked with c l ; j y o by
means of sale deed dated 8.7.1965 executed
by Smt. Ram Dulari widow of Bindeshwari
Prasad and this land is in his possession.

21. He has further pleaded that land
marked with n j y o is new Abadi, which
was obtained by him on Patta executed by
Land Management Committee regarding
Khasra No. 1015. He has mentioned in
paragraph no. 13 and 14 that trees are
standing on land marked by n j y o and c
l ; j. He has further mentioned that
Hansraj purchased land, which was situated
on east and northern side of their ancestral
house and constructed his house. The
plaintiff did not purchase any land or
property. He has disclosed the entire
property as ancestral property incorrectly.

22. The defendant Banshraj has also
relied upon decision delivered by Nyay
Panchayat in the year 1980 and contended that
1/3 share was given to him in ancestral house.
The remaining property was decided as his self
acquired property. He has claimed that entire
property was partitioned 32-35 years between
the plaintiff and defendants. He has accepted
that the plaintiff and defendant are real brothers.
In paragraph no. 9, he has mentioned his
pedigree.

23. On the basis of pleadings of both the
parties, the trial court framed the following
issues:-

1- D;k fookfnr lEifRr i{kdkjksa dh iSr`d
lEifRr gS\

2- D;k fookfnr lEifRr esa lHkh
i{kdkjksa dk 1@3 Hkkx gS\

3- D;k fookfnr Hkwfe vifjP;kRed gS\

4- D;k okn vewY;kafdr gS ,oa U;k;'kqYd
de vnk fd;k x;k gS\

5- D;k fookfnr lEifRr xkWo lHkk dh Hkwfe
gS ,oa mls vko';d i{kdkj u cuk;s tkus ds dkj.k
okn fujLr gksus ;ksX; gS\

6- oknh fdl vuqrks"k dks ikus dk
vf/kdkjh gS\

(i) Whether the disputed property is
ancestral property of both the parties?

(ii) Whether both the parties are
having 1/3 share in the disputed property?

(iii) Whether the disputed property is
not identifiable?

(iv) Whether the suit is under valued
and court fee paid is deficient?

(v)
Whether
disputed
property
belongs to Land Management Committee and it
is necessary party of the suit and it should be
dismissed because the Land Management
Committee was not arrayed as party?

(vi) To what relief plaintiff is
entitled?

Substantial question of Law No. 1

24. Learned counsel for appellant has
relied upon paper no. 211/53/1 (complaint),
211/53/2 (agreement), 211/54/1, 211/54/2
report
submitted
before
the
Nyay
Panchayat
211-211/55/1
to
211/55/4
judgment delivered by Nyay Panchayat,
which is available on record of trial court.
The learned first appellate court has
considered the provisions of Uttar Pradesh
Panchayat Raj Act and these documents
relied upon by learned defence counsel
before the trial court.

25. On perusal of these documents, it
reveal
that
Banshraj
defendant
no.
2/appellant submitted a complaint on
5.6.1980 for offence punishable under
Section 448, 504 and 323 IPC regarding
incident dated 5.6.1980 committed by
Hansraj-respondent no. 2 and his wife Smt.
1394 INDIAN LAW REPORTS ALLAHABAD SERIES
Savita Devi. He apprised the Nyay
Panchayat that Hansraj Mishra has taken
forcible possession over the Dalan and
assaulted his two daughters. The plaintiff
Ram Naresh/respondent no. 1 was not party
to the proceedings conducted by Nyay
Panchayat. On 28.6.1980 Banshraj and
Hansraj executed agreement to authorize
Nyay Panchayat to decide dispute between
them.

26. It is relevant to mention here that
DW-3 Agnu was examined on behalf of
appellant as defence witness. The evidence of
DW-3 was appreciated by learned first
appellate court and found that he could not
disclose the nature of proceedings conducted by
Nyay Panchayat. He has denied that these
proceedings were conducted for criminal
offence, but stated that this proceeding was
related to civil dispute. He was the Punch of
Nyay Panchayat, even then he could not
disclose the details of disputed property,
regarding which, Nyay Panchayat delivered its
judgment. He could not disclose this fact also
that when disputed land was inspected by Nyay
Panchayat. He stated this fact incorrectly, as
Bashraj himself filed complaint against Hansraj
and his wife. Therefore, the evidence of DW-3
was discarded by first appellate court.

27. It is relevant to mention here that
learned trial court has also appreciated the
evidence of DW-3 Agnu and found that he
stated before the trial court that Ram Naresh
instituted a case of civil nature against Banshraj
before the Nyay Panchayat. He stated this fact
incorrectly as Banshraj himself filed complaint
against Hansraj and his wife. He has
specifically stated that he was unable to disclose
the details of disputed property.

28. The trial court has not recorded any
specific
finding
about
the
proceedings
conducted by Nyay Panchayat. Therefore, first
appellate court has rightly observed that the
proceedings instituted by Banshraj before the
Nyay Panchayat was mainly of criminal nature
and Nyay Panchayat decided the civil dispute
also by composite judgment regarding criminal
and civil dispute. Therefore, the details of
property d [k x ?k mentioned in inspection
report does not extend any benefit to the
appellant that the disputed property d was
ancestral property. [k was property purchased
by Banshraj by means of sale deed and x
property
was
given
by
Pradhan
and
Consolidation Officer to him of Patta being
Abadi of Gram Samaj and property ?k Ghari
was a joint property of plaintiff and defendants.

29. It is pertinent to mention here that
neither the sale deed nor the Patta was
produced during proceedings conducted by
Nyay Panchayat by Banshraj. Appellant-
Banshraj and respondent no. 2- Hansraj
only
participated
before
the
Nyay
Panchayat. Complainant/respondent no. 1Ram Naresh was not summoned by Nyay
Panchayat nor any allegation is levelled by
Banshraj against him in his complaint
submitted on 5.6.1980. The statement of
complainant
Banshraj
and
witnesses
Ramesh Pratap Singh and Paras Nath
Pandey were examined by Nyay Panchayat
regarding the incident of assault and
Hansraj was also examined.

30. It is mentioned in the judgment
dated
10.8.1980
delivered
by
Nyay
Panchayat that at the point of time of
inspection of disputed property, the persons
present on the spot had apprised; the Nyay
Panchayat that Consolidation Officer and
Village Head gave disputed property x on
Patta to complainant Banshraj. There was
no request in complaint of Banshraj that
Nyay Panchayat should also decide the
shares of the parties. Therefore, Nyay
Panchayat could not decide the shares of
3-5 All. Banshraj Vs. Ram Naresh & Anr.
1395
complainant-defendant
regarding
the
disputed property mentioned in map
prepared at the point of time of inspection.

31. In these circumstances, the Nyay
Panchayat was not having jurisdiction to
decide the dispute of civil nature of shares
of complainant and defendants, because
complainant Ram Naresh/respondent no. 1
was not participating during aforesaid
period.
Therefore,
judgment
dated
10.8.1980 relied upon by learned counsel
for
appellant
was
not
binding
on
respondent no. 1/Ram Naresh on the basis
of provisions of Section 11 of i.e. principle
of res-judicata.

32. Learned first appellate court has
considered Section 64, 52/1A of U.P.
Panchayat Raj Act, 1957. Section 52 and
64 provides as follows:-

52.
Offences
cognizable
by
Nyaya Panchayats - [(1) The following
offences as well as abetments of and
attempts to commit such offices, if
committed within the jurisdiction of a
Nyaya Panchayat shall be cognizable by
such Nyaya Panchayat] :

(a) offences under sections 140,
160, 172, 174, 179, 269, 277, 283, 285,
289, 290, 294, 324, 334, 341, 352, 357,
358, 374, 379, 403, 411, (where the value
of the stolen or misappropriated property in
cases under Sections 379, 403 and 411 does
not exceed fifty rupees), 426, 428, 430,
431, 447, 448, 504, 506, 509, and 510 of
the Indian Penal Code, 1860;

(b) offences under sections 24
and 26 of the Cattle Trespass Act, 1871;

(c) offences under sub-section (1)
of Section 10 of the United Provinces
District Board Primary Education Act,
1926;

(d) offences under Sections 3, 4,
7 and 13 of the Public Gambling Act, 1867;

(e) any other offence under
aforesaid
enactments
or
any
other
enactment as may, by notification in the
official Gazette, be declared by the State
Government to be cognizable by a Nyaya
Panchayat; and

(f) any offence under this Act or
any rule made there-under.

(1-A) The State Government may
by order published in the Official Gazette
empower any Nyaya Panchayat to take
cognizance of offences under Sections 279,
286, 336 and 356 of the Indian Penal Code,
1860 and may likewise withdraw any
offence referred to in clauses (a) to (d) of
sub-section (1) from the cognizance of
Nyaya Panchayats generally or such Nyaya
Panchayats as may be specified. (2) Any
criminal case relating to an offence under
Section 143, 145, 151 or 153 of the Indian
Penal Code, 1860, pending before any
court may be transferred for trial to the
Nyaya Panchayat if in the opinion of such
court the offence is not serious.

64. Extent of jurisdiction in
civil cases - (1) Subject to the provisions of
Section 66 a Nyaya Panchayat may take
cognizance of any civil case of the
following description if its value does not
exceed one hundred rupees -

(a) a civil case for money due on
contract other than a contract in respect of
immovable property;

(b) a civil case for the recovery of
movable property or for the value thereof;

(c) a civil case for compensation
for wrongfully taking or injuring a movable
property; and

(d) a civil case for damages
caused by cattle trespass.

(2) The State Government may,
by notification in the official Gazette, direct
that
the
jurisdiction
of
any
Nyaya
1396 INDIAN LAW REPORTS ALLAHABAD SERIES
Panchayat shall extend to all such civil
cases of the value not exceeding five
hundred rupees."

33. Learned counsel for appellant has
argued before first appellate court that
according to Section 64 of Nyay Panchayat,
Nyay Panchayat was competent to decide
civil dispute of property of costs less than
Rs.100/-

34. Appellant Banshraj relied upon
sale
deed,
which
was
of
Rs.100/-.
Therefore, first appellate court has held that
Nyay
Panchayat
was
not
having
jurisdiction to decide civil dispute also.

35. According to Section 64 of U.P.
Panchayat Raj Act, 1947, Nyay Panchayat
is not competent to hear and decide the suit
for partition of immovable and civil case of
property valued Rs.100/- or its value,
which exceed Rs.100/-. The category of
cases within jurisdiction of Nyay Panchayat
has been enumerated in Section 64 and
civil dispute of partition of property
between the parties was not entertainable
by Nyay Panchayat. The Nyay Panchayat
was not having jurisdiction to decide suit
for partition.

36. Likewise, no notification issued
by the State Government of U.P. enhancing
pecuniary jurisdiction upto Rs.500/- was
not produced before the trial court. The
present suit was valued at Rs.3,600/-.

37. Therefore, Nyay Panchayat was not
having pecuniary jurisdiction to entertain the
present dispute. The Nyay Panchayat was not
having jurisdiction to take cognizance of
offence under Sections 379, 403 and 411 IPC,
where
the
value
of
the
stolen
or
misappropriated case property exceeded Rs.50/-
. According to Section 52/1A of U.P. Panchayat
Raj Act, 1957 provides also that Nyay
Panchayat was not competent to decide
disputed property of costs above Rs.50/-.

38. Likewise, the first appellate court has
considered criminal proceedings also in light of
provisions of Section 52 of U.P. Panchayat Raj
Act.

39. Learned first appellate court has also
recorded finding regarding sale deed dated
8.7.1965 relied upon by the appellant in light of
provisions of Section 54 of Transfer of Property
Act, which provides that transaction/transfer of
property of costs of Rs.100/- or above could be
made only by means of registered document,
but sale deed paper no. Ka/52 has not been
registered, therefore, no rights could be
transferred by Ram Dulari wife of Bindeshwari
Prasad on the basis of sale deed dated 8.7.1965
in favour of appellant Banshraj.

40. Learned first appellate court has
appreciated and analysed the evidence of both
the parties and found that in the year 1965
appellant and respondent were living jointly and
there was no partition of agricultural land or
Abadi land in the year 1965. The present
original suit no. 253 of 1984 (Ram Naresh Vs.
Banshraj and another) was instituted on
27.5.1994. It is pleaded in the plaint that
plaintiff and defendant were living separately
from 15 years ago and agricultural land was
divided 10-12 years ago.

41. Therefore, the appellant was
obliged to prove this fact that consideration
of alleged sale deed dated 8.7.1965 was
paid by his source of income and it was his
self acquired property. The consideration of
sale deed was not paid by the income/joint
fund of both the parties.

42. Learned first appellate court has
also tallied the boundaries mentioned in the
3-5 All. Banshraj Vs. Ram Naresh & Anr.
1397
sale deed with the disputed property
mentioned in map of plaint and found that
there was no mention of fact that on
western side, property of appellant Ram
Naresh was situated and ancestral property
of parties was situated.

43. I have also tallied the boundaries
mentioned in sale deed dated 8.7.1965 and
boundaries mentioned in map of plaint and
in map prepared by Amin paper no. 24/2 x.
On eastern side of sold property way along
with house of Ram Deen was existed as per
sale deed. On western side Ghari has been
shown. On southern side Aaraji Majruba.
On north side, house of Mustari was
mentioned.

44. Learned first appellate court has
observed that in map of plaint, the place
marked c l ; j was bounded. On western
side of house of appellant Ram Naresh and
main door of his house was opened towards
eastern side i.e. towards disputed property
marked with c l ; j. Therefore, learned
first appellate court has observed on the
basis of boundaries mentioned in plaint
map and sale deed dated 8.7.1965 that it
could not be proved that disputed property
marked with c l ; j was the same
property, which was sold by Ram Dulari
widow of Bindeshwari Prasad.

45. It is relevant to mention here that
the trial court has not tried to consider the
identity of disputed property mentioned in
plaint map on the basis of inspection report
24 x@1 and map 24 x@2 prepared by
Amin under orders of trial court in correct
perspective, before holding that disputed
property was not identifiable. It is relevant
to
mention
here
that
complainant/respondent no. 1 has appended
plaint map Ka15/6 of disputed property and
facts
mentioned
in
plaint
map
are
corroborated by map 24 x@2 prepared by
Amin.

46. Therefore, finding of trial court
regarding issue no. 3 that disputed
property was not capable of identification
was incorrect. Moreover, the trial court
was obliged to appreciate the evidence of
plaintiff/respondent
no.
1,
appellant/defendant
DW-1
and
respondent no. 2 DW-4 in light of map
prepared by Amin 24 x@2 and facts
mentioned in plaint map. The sufficient
material was available on record for
consideration of trial court regarding
identification of disputed property in this
regard.

47. Learned first appellate court has
mentioned in judgment and order dated
26.4.2010 that none of the parties argued
on issue no. 3 and 4, which were framed
by trial court regarding identification of
disputed property and deficiency of
violation of the suit and court fees. The
finding recorded by the trial court on
issue no. 3 is liable to be set aside as it is
not recorded on the basis of material
available on record.

48. On the basis of appreciation of
evidence available on record, learned first
appellate court has rightly recorded the
finding in correct perspective regarding
sale deed dated 8.7.1965 and documents
relating to Nyay Panchayat relied upon
by appellant Banshraj. The suit of
plaintiff/respondent no. 1 was not barred
by provisions of Section 11 of the C.P.C.

49. The substantial question of law
no. 1 is decided against the appellant.

Substantial question of law no. 2
and 3:-
1398 INDIAN LAW REPORTS ALLAHABAD SERIES

50. These substantial question of law
are formulated on the basis of grounds of
appeal regarding identification of disputed
properties and joint property. Where
between the parties, it is admitted that most
of the properties have already been divided,
then the presumption of property to be joint
would not help the person, who is seeking
partition of the property dispute?

51. The trial court after appreciation
of evidence of both parties has recorded
finding that disputed property was not
identifiable and the plaintiff could not
prove the details of disputed property,
according to him, which was subject of
partition.

52. On perusal of impugned judgment
delivered by learned trial court, it reveal
that trial court has only considered the
plaint map and it has not considered map
24 x@2 prepared by Amin of civil court.
The every minute details, i.e. measurement
and boundaries of disputed property has
been mentioned in this map, which could
be relied upon by the trial court.

53. The appellant Banshraj has
specifically contended in his written
statement that the disputed property marked
with n j y o related to Nai Abadi and it
was
given
by
Land
Management
Committee to him, by executing Patta of
Khasra No. 1015. The appellant has not
produced any Patta given by Consolidation
Officer and Village Head to him of this
property, before the proceedings conducted
by Nyay Panchayat.

54. The appellant was also present on
spot, when Amin inspected the disputed
property under order of the trial court.
Amin has submitted his report 24 x along
with map of disputed property 24 x@2.
The appellant had not stated before Amin
as per report 24 x that the property was
obtained by him by means of Patta, which
was included in the disputed property.

55. During course of trial also, the
appellant was not able to prove his specific
contention mentioned in written statement
that disputed property n j y o was part of
Nai Abadi and he took it on Patta from
Land Management Committee of Khasra
No. 1015. No Patta was produced before
the trial court also.

56. The complainant Ram Naresh
PW-1 and his witnesses PW-2 Anirudh,
PW-3 Kubernath and DW-5 Hansraj
defendant/respondent no. 2 has proved this
fact that sale deed dated 8.7.1965 relied
upon by appellant Banshraj is fictitious and
his contention that land of Nai Abadi on
Kharsa No. 1015 was included in the
disputed property, was incorrect, which
was obtained by him on Patta from Land
Management Committee.

57. The appellant DW-1 Banshraj was
unable to prove the fact of Patta obtained
by him of Khasra No. 1015 by producing it
before the trial court. His witnesses DW-2
Triyugi Narain, DW-3 Agnu, DW-4 Dharm
Baksh Singh also were unable to prove the
identification of property obtained by
Banshraj on Patta.

58. On perusal of map 24 x@2
prepared by Amin discloses this fact that all
the properties sought to be partitioned in
this matter is situated in the same campus.
PW-1 Ram Naresh, and DW-5 Hansraj are
co-sharer and real brothers of appellant
Banshraj. They have proved that disputed
property mentioned in plaint map is their
3-5 All. Banshraj Vs. Ram Naresh & Anr.
1399
joint property of Abadi and it was not ever
partitioned.

59. Learned first appellate court has
appreciated the evidence of both the parties
and observed that issue no. 1 and 2 framed
by trial court was liable to be decided in
positive in favour of plaintiff and both the
defendant and plaintiff Ram Naresh were
having 1/3 share in the disputed property
and entire property was ancestral property
of them.

60. The learned defence counsel on
behalf of the appellant has not pressed issue
no. 5 even before the trial court regarding
necessity of Land Management Committee
ought to have been arrayed in the original
suit.

61. It is pertinent to mention here that
when issue no. 5 was not pressed, even
before the trial court and alleged Patta
given by Land Management Committee
was not produced by appellant Banshraj
before the trial court, therefore, it cannot be
said that Land Management Committee
was the necessary party of the original suit.

62. Learned first appellate court has
observed in the impugned order dated
26.4.2010 that appellant Banshraj had not
produced any evidence before the trial
court. Therefore, the trial court has decided
issue no. 5 in negative against the
appellant.

63. Therefore, the learned first
appellate court has rightly recorded finding
that
complainant
Ram
Naresh
and
defendant-appellant Banshraj and Harsraj-
respondent no. 2 are having 1/3-1/3 share
in the disputed property and rightly decreed
suit of the plaintiff and a direction has been
given for preparation of preliminary decree.
The impugned judgment and order dated
12.9.2008 has been set aside in correct
perspective after due appreciation of
evidence of both the parties. Therefore,
substantial question of law no. 2 and 3
are hereby decided against the appellant.

64. The impugned judgment and order
dated 26.4.2010 is modified that map 24
x@2 prepared by Amin of civil court shall
be considered while preliminary decree
would be prepared by the trial court.

Substantial question of law no. 4:-

65. Learned counsel for appellant has
argued that learned first appellate court has
not complied with provisions of Order XLI,
Rule 31 of C.P.C., which resulted in
prejudice to the appellant, if so affect?

66. On perusal of impugned judgment
and order dated 26.3.2010, it reveal that
first appellate court has addressed the
dispute by analyzing and evaluating the
evidence adduced by both the parties
before the trial court on the basis of issue
framed by trial court and substantially
complied with provisions of Order XLI,
Rule 31 C.P.C. On the point of compliance
of Order XLI, Rule 31 C.P.C., the
following exposition of law is relevant:-

67. Hon'ble the Apex Court in the
case of R.S. Anjayya Gupta v. Thippaiah
Setty, reported in (2019) 7 SCC 300 has
held as under:-

17. In a recent decision of this
Court in U. Manjunath Rao [U. Manjunath
Rao v. U. Chandrashekar, (2017) 15 SCC
309 : (2018) 2 SCC (Civ) 682] , the Court
after adverting toSantosh Hazari [Santosh
Hazari v. Purushottam Tiwari, (2001) 3
SCC 179, para 15], Sarju Pershad Ramdeo
1400 INDIAN LAW REPORTS ALLAHABAD SERIES
Sahu v. Jwaleshwari Pratap Narain Singh
[Sarju
Pershad
Ramdeo
Sahu
v.Jwaleshwari Pratap Narain Singh, AIR
1951 SC 120, para 15],
Madhukar
[Madhukar v.Sangram, (2001) 4 SCC 756,
para 5], H.K.N. Swami v. Irshad Basith
[H.K.N. Swami v. Irshad Basith, (2005) 10
SCC 243, para 3] and SBI v. Emmsons
International
Ltd.
[SBI
v.Emmsons
International Ltd., (2011) 12 SCC 174 :
(2012) 2 SCC (Civ) 289] went on to
observe thus: (U. Manjunath Rao case [U.
Manjunath Rao v. U. Chandrashekar,
(2017) 15 SCC 309 : (2018) 2 SCC (Civ)
682] , SCC pp. 313-15, paras 11-14)

"11. ... ''3. ... 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.