# Barkai and Others v. Mahmood Khan & Ors

- **Citation:** (2014) 2 ILRA 545
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-05-09
- **Case number:** Second Appeal No. 940 of 1978
- **Bench:** Anil Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/barkai-and-others-v-mahmood-khan-ors-42795
- **Pages:** 5

## Headnote

(A)C.P.C.-Section-100- Second Appealsubstantial question of law?-explainedmust be debatable-not settled by law of
land-apart from having material bearing.

Held: Para-18
In the case of Santosh Hazari V. Purshottam
Tiwari reported in 2001 (92) RD 336 (SC)
had held that a point of law which admits of
no two opinions may be preposition of law
but cannot be a substantial question of law.
To be 'substantial' a question of law must
be debatable, not previously settled by law
of the land or a binding precedent, and
must have a material bearing on the
decision of the case, if answered either
way, in so far as the rights of the parties
before it are concerned. If will, therefore,
depend on the facts and circumstances of
the each case whether a question of law is
substantial one and involved in the case or
not. The same view has been expressed
again by the Apex Court in the case of
Govinda Raju Vs. Marriamman 2005 (98)
RD 731.

(B)U.P.Z.A. & L R Act-Section-9- person
found possession on date of vesting can
claim benefit of presumption-admittedly
purchase
of
land
n
question
from
zamindar after date vesting-can not get
any benefit-court below rightly not given
any benefit-can not be interfered under
second appeal-in absence of substantial
question of law.

Held: Para-12
In addition to the above said facts, the
trial court has also given a finding that
the allegation that defendant-appellant
became owner of the land in dispute u/s
9 of U.P.Z.A.&L.R. Act is also not proved
because
defendants-appellants
have
failed in proving that they were in
possession of the disputed land on the
date when U.P.Z.A.&L.R. Act came into
force. Therefore, defendants-appellants
could not get any title over the land in
dispute u/s. 9 of U.P. Z. A. & L. R. Act, so
the
argument
advanced
by
learned
counsel for the appellant has no forced
and rejected.

## Text

2 All] Barkai and Others Vs. Mahmood Khan & Ors.
545
the services of the petitioner were alleged to
have been regularized, is of no consequence.
For all practical purposes, the appointment of
the petitioner under the Dying in Harness
Rules has to be treated to be a permanent
appointment.

15. In view of the discussion made
above, the writ petition is allowed with
cost quantified at Rs 3000. The petitioner
is held entitled to the grant of pension
with effect from October, 2005. The
opposite parties are directed to compute
and pay to the petitioner, her outstanding
retiral dues including pension, to which
she is entitled under law, treating the
petitioner to have been substantially
appointed w.e.f. 05.09.1985, the date of
her initial appointment. The petitioner
shall also be entitled to interest @ 8% per
annum on the arrears from October, 2005
till the time of its actual payment. The
payment shall be made within a maximum
period of three months from the date of
receipt of a certified copy of this order.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.05.2014

BEFORE
THE HON'BLE ANIL KUMAR, J.

Second Appeal No. 940 of 1978

Barkai and Others......... Petitioners
Versus
Mahmood Khan & Ors. ... Respondents

Counsel for the Petitioners:
Sri H.S. Sahai, Sri U.S. Sahai

Counsel for the Respondents:
B.K. Srivastava

(A)C.P.C.-Section-100- Second Appealsubstantial question of law?-explainedmust be debatable-not settled by law of
land-apart from having material bearing.

Held: Para-18
In the case of Santosh Hazari V. Purshottam
Tiwari reported in 2001 (92) RD 336 (SC)
had held that a point of law which admits of
no two opinions may be preposition of law
but cannot be a substantial question of law.
To be 'substantial' a question of law must
be debatable, not previously settled by law
of the land or a binding precedent, and
must have a material bearing on the
decision of the case, if answered either
way, in so far as the rights of the parties
before it are concerned. If will, therefore,
depend on the facts and circumstances of
the each case whether a question of law is
substantial one and involved in the case or
not. The same view has been expressed
again by the Apex Court in the case of
Govinda Raju Vs. Marriamman 2005 (98)
RD 731.

(B)U.P.Z.A. & L R Act-Section-9- person
found possession on date of vesting can
claim benefit of presumption-admittedly
purchase
of
land
n
question
from
zamindar after date vesting-can not get
any benefit-court below rightly not given
any benefit-can not be interfered under
second appeal-in absence of substantial
question of law.

Held: Para-12
In addition to the above said facts, the
trial court has also given a finding that
the allegation that defendant-appellant
became owner of the land in dispute u/s
9 of U.P.Z.A.&L.R. Act is also not proved
because
defendants-appellants
have
failed in proving that they were in
possession of the disputed land on the
date when U.P.Z.A.&L.R. Act came into
force. Therefore, defendants-appellants
could not get any title over the land in
dispute u/s. 9 of U.P. Z. A. & L. R. Act, so
the
argument
advanced
by
learned
counsel for the appellant has no forced
and rejected.

(Delivered by Hon'ble Anil Kumar, J.)
546 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard Shri U. S. Sahai, learned
counsel for the appellants and perused the
record.

2. Facts in brief of the present case
are that the plaintiffs-respondents filed a
suit for demolition of structures and also
for possession over the land in dispute
recorded as abadi plot no.3545 in which
there is a dilapidated house over the land
on the ground that the same has been
purchased from Baleshwar who is tenureholder, by way of sale deed dated
14.10.1965.

3. In the plaint, the plaintiffs had
pleaded that the house has fallen down
and the defendants have dispossessed the
plaintiffs and raised structures and hence
the suit for demolition and possession.
Accordingly, the suit was registered
having Regular Suit No.462 of 1996.
Thereafter, the trial court by judgment
and order dated 24.04.1971 has decreed
the suit for possession in respect of the
land in dispute. In this regard, both the
courts below have given a concurrent
finding which is based on the material on
record.

4. The suit was resisted by the
defendants-appellants on the ground that
the land is suit is Sahan land of the
defendants-appellants having their Ghari,
Charni, pegs and Khalian and other
agricultural structures/equipment etc. on
it.

5.

Aggrieved
by
the
said
observations made in the trial ocurt,
plaintiffs filed an appeal bearing Civil
Appeal No.73 of 1971 "Mahmood Khan
vs. Barkayi & Ors.", allowed by judgment
and decree dated 04.05.1972 and the
matter was remanded back to the trial
court with a direction that it shall register
the suit at its original number. The trial
court was further directed to frame
additional
issues
in
the
light
of
observations made in the body of
appellate
judgment
after
giving
opportunity to the parties concerned to
issue commission for determination as to
whether the land in dispute falls part of
plot no.3545 or not and shall decide the
case in accordance with law.

6. In view of the factual background,
the matter again built up before the trial
court. The trial court in order to decide
the controversy involved in the present
case has framed the following issues :-

"Whether the land in suit belongs to
the plaintiffs ?

Whether the alleged construction and
Khutas, as alleged in the plaint are new or
old ? In either case its effect ?

Whether there existed any house
belonging to one Baleshwar over the land
in suit ?

Whether the suit is within time ?"

7. After considering the material on
record (oral and documentary evidence)
as well as commission report, the trial
court by judgment and decree dated
29.08.1977 had decreed the suit of the
plaintiffs challenged by filing an appeal
bearing Civil Appeal No.118 of 77 "Sri
Barkayee & 3 Ors. vs. Sri Mahmood
Khan & 3 Ors.", dismissed by judgment
and decree dated 8.8.1978.

8. In view of the above said facts,
the present second appeal has been filed
by the defendants-appellants (During the
2 All] Barkai and Others Vs. Mahmood Khan & Ors.
547
pendency of the present appeal, appellant
nos.1, 2 and 4 as well as respondent no.1
have died and substituted by their legal
representatives).

9. Shri U. S. Sahai, learned counsel
for the appellants has pressed the second
appeal on the following questions of law
:-

"Whether the land of abadi after the
date of vesting having been vested in the
State can be transferred by the Exzamindar and the transferre can have any
title or right over the land so transferred ?

Whether a transfer of abadi land after
the enforcement of U.P. Act No,1 of 1951
of abadi land is void and can create any
right on the transferre ?

Whether assuming that the plaintiff
taking a transfer of land from ex-zamindar
of land appurtenant to the defendant's
appellant's house and the land in suit
being
sahan
darwaza
land
of
the
defendant-appellant the plaintiff can have
any right over such a land having been
vested under section 9 of U.P. Act No.1
of 1951 and settled with the defendantappellant. ?

Whether non-framing of a vital issue
with respect to the fact that whether
Baleshwar had transferable rights over the
land in dispute basically connected with
the plaintiff's title and resulting the
serious prejudice to the defendant's case
results in vitiating the findings of the
courts below in the absence of an
important and basic issue having been
framed and tried by the courts below ?"

10. I have heard learned counsel for
the appellants and perused the record.

11. The main question involved in
the present case is whether the land in
dispute
was
originally
owned
by
Baleshwar or it was Sahan land of
defendants. On the basis of survey map,
the
land
in
dispute
lies
in
plot
no.3545/0.10 and both the courts below
have given a finding that the allegation of
defendant nos.1 to 4 that the land in suit
does not lie in plot no.3545/0.10, is
incorrect or wrong and Baleshwar's father
Hira Lal was Zamindar of this village and
his sir was in this village. Copy of
Khatauni 1359 f. Ex.1 is on record which
shows that 3545/0.10 is recorded in the
name of Hir Lal. There is another
document, namely, Khatauni of 1356 f.
Ex.2 and Ex.4 (revenue record) from
which it is clearly established that the
land in dispute is recorded in favour of
Hira Lal, the father of Baleshwar from
whom plaintiffs have purchased a land in
question.

12. In addition to the above said
facts, the trial court has also given a
finding that the allegation that defendantappellant became owner of the land in
dispute u/s 9 of U.P.Z.A.&L.R. Act is
also not proved because defendantsappellants have failed in proving that they
were in possession of the disputed land on
the date when U.P.Z.A.&L.R. Act came
into
force.
Therefore,
defendantsappellants could not get any title over the
land in dispute u/s. 9 of U.P. Z. A. & L.
R. Act, so the argument advanced by
learned counsel for the appellant has no
forced and rejected.

13. Further, P.W.1-Baleshwar has
stated that he transferred the land in suit
to the plaintiffs-respondents. The sale
deed is on record which is paper no.30ka.1, therefore from these documents as
548 INDIAN LAW REPORTS ALLAHABAD SERIES
well as from the documents and statement
referred above. It is proved that plaintiffrespondent became owner of the disputed
land as alleged in the plaint. So, the
finding given by both the courts below are
based on the basis of documentary and
oral evidence are perfectly valid.

14. It is well settled proposition of law
as laid down by Hon'ble Supreme Court and
by this Court that while adjudicating the
dispute in the second appeal the finding of
fact, which is recorded by the Court below
can only be set aside if the same is contrary
to the facts and perverse in nature. However,
in the present case, the learned counsel for
the appellant fails to point out that under
what circumstances the findings which are
recorded in this regard by the court below are
contrary to the records and perverse in nature
thus the submission made in this regard by
the learned counsel for the appellant that the
civil court has got no jurisdiction to entertain
the suit and the jurisdiction lies under section
41 of the Land Revenue Act, has got no force
accordingly the same is rejected.

15. In view of the above said facts,
findings recorded by the Courts below
cannot be set aside on flimsy arguments
advanced on behalf of the appellants and
without there being any question of law.
In the instant case, arguments of the
counsel for the appellants are factual in
nature and by no stretch of imagination
can constitute substantial questions of
law. Re-appraisal of evidence is not
permissible. Interference of the facts from
recital or content of the document or after
shifting oral evidence does not leave any
scope of re-appraisal in exercise of
jurisdiction under section 100 C.P.C.

16. It is well settled by a long series
of decisions of the Judicial Committee of
the Privy Council and of this Court, that a
High Court, in second appeal, cannot go
into questions of fact, however, erroneous
the findings of fact recorded by the courts
of fact may be, the learned counsel for the
appellant did not and could not contend
that the High Court was competent to go
behind the findings of fact concurrently
recorded by the two courts of fact. (See
Mustafa Vs. Vakil @ Iqbal and another
2008 (105) RD 392).

17. The Apex Court depreciated the
liberal
construction
and
generous
application of provisions of section 100
C.P.C. Hon'ble Supreme Court was of the
view that only because there is another
view possible on appreciation of evidence
that can not be sufficient for interference
under section 100 C.P.C. For ready
reference, extract of paragraph No.7, of
the vase of Veerayee Ammal V. Seeni
Ammal reported in 2002 (1) SCC
134=2001(45) ALR 691 (SC) is quoted
below:

"7......We have noticed with distress
that despite amendment, the provisions of
section 100 of the Code have been
liberally construed and generously applied
by some judges of the High Courts with
the result that objective intended to be
achieved by the amendment of section
100 appears to have been frustrated. Even
before the amendment of section 100 of
the Code, the concurrent finding of facts
could not be disturbed in the second
appeal."

18. In the case of Santosh Hazari V.
Purshottam Tiwari reported in 2001 (92)
RD 336 (SC) had held that a point of law
which admits of no two opinions may be
preposition of law but cannot be a
substantial question of law. To be
2 All] The Oriental Insurance Co. Ltd. Vs. Smt. Mainaz & Ors.
549
'substantial' a question of law must be
debatable, not previously settled by law of
the land or a binding precedent, and must
have a material bearing on the decision of
the case, if answered either way, in so far
as the rights of the parties before it are
concerned. If will, therefore, depend on
the facts and circumstances of the each
case whether a question of law is
substantial one and involved in the case or
not. The same view has been expressed
again by the Apex Court in the case of
Govinda Raju Vs. Marriamman 2005 (98)
RD 731.

19. For the fore-going reasons, no
substantial question of law involved in
this appeal. The judgment and decree
under challenged in the present case is
perfectly valid and needs no interference.

20. In the result, the second appeal
lacks merit and is dismissed.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.05.2014

BEFORE
THE HON'BLE MANOJ MISRA, J.

First Appeal From Order No. 2541 of 2006

The Oriental Insurance Co. Ltd. Petitioner
Versus
Smt. Mainaz & Ors. ... Respondents

Counsel for the Petitioner:
Sri Arun Kumar Shukla

Counsel for the Respondents:
Sri S.K. Gupta, Sri Sanjeev Kr. Tripathi

Motor Vehicle Act 1988-Section 163-AClaim petition-for murder caused during
traveling in bus-whether can be termed
accidental murder or murder simplicitor?
held-if finding regarding accidental murder
found correct death shall be presumed as
accidental-petition
held-maintainable-not
incumbent
upon
claimants
to
prove
negligence.

Held: Para-13
In view of the above, the finding returned
by the Tribunal that death occurred in an
accident arising out of the use of the motor
vehicle, cannot be faulted in the light of the
decision of the Apex Court in the case of
Rita Devi's case (supra). This court is,
therefore, of the view that the claim was
maintainable under Section 163-A of the
Motor Vehicles Act.

Case Law discussed:
(2000) 5 SCC 113; 1993 Supp. (1) SCC 208;
(1996) 9 SCC 46; (1997) 11 SCC 215.

(Delivered by Hon'ble Manoj Misra, J.)

1. The instant appeal has been filed
against the judgment and award dated
22.07.2006 passed by the Motor Accident
Claims Tribunal/Additional District Judge,
Court No.9, Budaun in M.A.C.P. No. 21 of
2004 by which the claim petition, under
Section 163-A of the Motor Vehicles Act, of
the
claimant-respondents,
who
are
dependents of late Naseem Khan (the
deceased), have been partly allowed thereby
awarding compensation of Rs. 1,79,500/-
plus interest from the date of filing of the
claim petition.

2. The claim case, in short, was that
on 09.04.2003, the husband of the
claimant No.1, namely, Naseem Khan
was traveling in Bus No. UGL 8580 from
Aonla to Budaun when, at about 7:30
P.M., two unknown persons, with intent
to rob the passengers, boarded the bus
near village Parolia and, in the scuffle that
ensued, shot at Naseem Khan thereby
injuring him which resulted in his death,
while taking him to the Hospital. It was
claimed that Naseem Khan had a monthly