# Chandra Shekhar (Dead) & Ors. Plaintiffs/ v. Shiv Prasad & Ors

- **Citation:** (2019) 3 ILRA 759
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-01
- **Case number:** Second Appeal No. 942 of 2016
- **Bench:** Siddhartha Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-shekhar-dead-ors-plaintiffs-v-shiv-prasad-ors-44786
- **Pages:** 7

## Headnote

A. Land Law-U.P. Zamindari Abolition
and Land Reforms Act, 1951 - Abolition
of zamindari - Joint property - After the
abolition
of
zamindari,
Joint
Hindu
family disintegrated and every individual
member
of
the
joint
hindu
family
became a tenure-holder in his own right
and had to be considered a separate unit
for the exercise of the right of transfer &
could transfer only his share of the
property.
Held:- Father of the plaintiffs namely Lalsa,
alongwith his three sons i.e. the plaintiffs, was
alive on the date when the U.P. Zamindari
Abolition and Land Reforms Act was notified
then as per law, the joint Hindu family
disintegrated after the abolition of zamindari
and every individual became a tenure-holder
in his own right. Therefore, an individual
humidhar could have transferred only his
share of the property. (Para 12)
Second Appeal allowed (E-5)

List of Cases Cited:-
760 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

3 All. Chandra Shekhar (Dead) & Ors. Vs. Shiv Prasad & Ors.
759
using the land leased out to him and there
appears no illegality in the judgments and
decree passed by two courts below.

8. Learned counsel for appellant
contends that the judgments of two courts
below are wrong on facts and law and as
many as 10 substantial questions of law
are involved in the appeal as mentioned in
page 5 & 6 of the memo of appeal. He
pointed out that suit was also barred by
provisions of Section 80 of C.P.C.

9. Upon hearing learned counsel for
appellant and perusal of record, I find that
Section 80(2) provides of exemption by
Legislature from service of notice under
Section 80(1) in cases to obtain an urgent and
immediate relief where due to urgency
purpose of suit will frustrate in serving the
notice. In this case the only Rasta of plaintiff
was allegedly obstructed by defendantappellant so in such case the service of notice
under Section 80(1) C.P.C. was not
mandatory under law as also pleaded by
plaintiff. The findings of two courts below are
concurrent findings of fact based on cogent
reasonings and no illegality or perversity in
above findings could be pointed out by
learned counsel for appellant.

10. In view of discussions made above,
I find that appeal is devoid of merits and for
want of any substantial question of law is
liable to be dismissed in limine.

11. The appeal is dismissed in limine.

12. Interim order, if any, stands
vacated.

13. Let lower court record be sent
back to court below along with a copy of
this order.
----------
(2019)11ILR A759

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.10.2019

BEFORE
THE HON'BLE SIDDHARTHA VARMA, J.

Second Appeal No. 942 of 2016

Chandra Shekhar (Dead) & Ors.
 ...Plaintiffs/Appellants
Versus
Shiv Prasad & Ors.
 ...Defendants/Respondents

Counsel for the Appellants:
Sri Ram Chandra Yadav, Sri Jagdish Lal
Srivastava

Counsel for the Respondents:
Sri Rahul Mishra
A. Land Law-U.P. Zamindari Abolition
and Land Reforms Act, 1951 - Abolition
of zamindari - Joint property - After the
abolition
of
zamindari,
Joint
Hindu
family disintegrated and every individual
member
of
the
joint
hindu
family
became a tenure-holder in his own right
and had to be considered a separate unit
for the exercise of the right of transfer &
could transfer only his share of the
property.
Held:- Father of the plaintiffs namely Lalsa,
alongwith his three sons i.e. the plaintiffs, was
alive on the date when the U.P. Zamindari
Abolition and Land Reforms Act was notified
then as per law, the joint Hindu family
disintegrated after the abolition of zamindari
and every individual became a tenure-holder
in his own right. Therefore, an individual
humidhar could have transferred only his
share of the property. (Para 12)
Second Appeal allowed (E-5)

List of Cases Cited:-
760 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Ram Awalamb Vs Jata Shankar 1968 RD
470.

2. Mahavir Singh & ors. Vs Shri Pal & ors.
1986 RD 161.

3. Ram Padarath & ors. Vs 2nd Additional
District Judge, Sultanpur & ors. 1989 RD 21.

4. Nasiruddin & ors. Vs Ch. Ram Swarup &
ors. 1978 AWC 636.

5. Ram Charan Vs Balchand & ors. 2017 (136)
RD 498.

6. Deokinandan & ors. Vs Surajpal & ors. 1995
(Supp.4) SCC 671.

7. Sarwan Kumar Vs Madan Lal Aggarwal
(2003) 4 SCC 147.

8. Sushil Kumar Mehta Vs Gobind Ram Bohra
(1990) 1 SCC 193.

9. Chandrika Misir Vs Bhaiya Lal (1973) 2 SCC 474.

10. Srimathi Kaushalya Devi Vs K.L. Bansal
(1969) 1 SCC 59

11. Kiran Singh Vs Chaman Paswan 1954 AIR (SC) 340

12. Ram Padarath & ors. Vs 2nd Additional
District Judge, Sultanpur & ors 1989 RD 21.

13. Tara Chand & anr. Vs 12th ADJ, Ghaziabad
& ors. 2010 (7) ADJ 383

(Delivered by Hon'ble Siddhartha Varma, J.)

1. This Second Appeal has been
filed against the judgment and decree of
the First Appellate Court by which the
First Appeal filed by the respondent
nos.1, 2, 3, 4, 5, 6, 7, 8/1 and 8/2 was
allowed and the judgment and decree of
the Trial Court passed in Suit No.282 of
2000 was set-aside and the suit was
dismissed in toto after holding that the
Civil Court had no right to entertain the
suit.

2. The brief facts of the case are that
when the father of the plaintiffs-appellant
nos.1, 2 and 3 late Lalsa began to sell off
certain properties beyond his share then
the plaintiffs-appellants filed a suit being
Original Suit No.282 of 2000. The plaint
allegations were that the plaintiffs who
were the sons of Lalsa were born prior to
abolition of zamindari and, therefore, they
had 3/4th share in the total property
owned by their father and since it was
alleged that the father had only 1/4th
share in the property, the other brothers
namely respondent nos.3, 4, 5, 6 and 7
were, though the sons of their father
Lalsa, (from a different mother) could
claim only the share of their father. The
name of the mother of the plaintiffs was
Reshma whereas the name of the mother
of respondent nos.3 to 7 was Alaina. The
further case taken by the plaintiffs in the
plaint was that when their father had tried
to sell off certain properties, then they had
filed a suit in the Court of Munsif,
Muhammadabad, Azamgarh being Suit
No.630 of 1993 which was decreed on
21.1.1995 and it was held therein that the
plaintiffs were the share-holders of the
3/4 of the entire property. The father of
the plaintiffs had tried to get this decree
recalled but the recall application under
Order IX Rule 13 C.P.C. was dismissed
on 11.7.2001 on the ground that it was
barred by limitation. The appeal filed
against the order dated 11.7.2001 was
also
dismissed
on
10.8.2001.
The
contesting
respondents
filed
a
writ
petition being Writ Petition No.35724 of
2001
against
the
judgment
dated
10.8.2001 but this writ petition was also
dismissed on 9.9.2003 by the High Court
and since the contesting respondents had
not challenged the judgment and order of
the writ Court dated 9.9.2003, the decree
passed
in
the
Suit
on
21.1.1995
3 All. Chandra Shekhar (Dead) & Ors. Vs. Shiv Prasad & Ors.
761
continued. The further case taken in the
plaint was that the plaintiffs were living,
along with their father, in a joint hindu
family and when zamindari was abolished
in the State of Uttar Pradesh, since the
plaintiffs had already taken birth before
the abolition of zamindari, they became
owners of 3/4th share of the property in
dispute.
The
suit
essentially
was,
therefore, filed with a prayer that the sale
deeds dated 18.4.2000, 22.4.2000 and
24.4.2000 executed by the father of the
plaintiffs in excess of his share be setaside and the plaintiffs be allowed to
continue to enjoy the 3/4th share of the
property in question and that their
possession
be
not
disturbed.
The
defendants i.e. the purchasers of the
properties and the father of the plaintiffs
contested the suit and stated that the
written statement which had been filed in
the earlier suit which was alleged to have
been filed by the father was in fact never
filed by the father and, therefore, there
was no admission in the Suit No.630 of
1993 of the respondent-father. The further
case taken in the written statement by the
father was that since the decree was an
ex-parte one, it was not binding either on
him or on his purchasers.

3. The defendants' case was that
when the plaintiffs were not entered in the
revenue records at the time when
zamindari was abolished, it was essential
that they took a declaration of their rights
under
section
229-B
of
the
U.P.
Zamindari Abolition and Land Reforms
Act, 1951. It was also the case of the
defendants that the plaintiffs had not
objected to the entry of the name of the
father namely Lalsa in the consolidation
operation also and, therefore, the suit was
also barred by the provisions of section
49 of the U.P. Consolidation of Holdings
Act. The suit was, after striking of issues,
decreed on 31.8.2012 and thereafter the
respondents who were the buyers of the
property along with the Lalsa filed a First
Appeal being First Appeal No.203 of
2012. The First Appellate Court upon
finding that the father alone was entered
at
the
time
when
zamindari
was
abolished, the plaintiffs ought to have
filed a suit for declaration before getting
the sale deeds cancelled. The appellants
also took a ground in the appeal that since
the plaintiffs were not entered and since
they had not filed any suit for declaration,
the suit itself was not maintainable before
the Civil Court. The First Appellate Court
agreed with the grounds taken by the
defendants and allowed the First Appeal
and held that the Trial Court had
exceeded its jurisdiction in entertaining
the suit and after allowing the First
Appeal dismissed the suit.

4. The instant Second Appeal was
admitted on 9.1.2017 and the following
questions of law were framed :

"i) Whether the judgement of
the Appellate Court is based on the
misreading and mis-appreciation of the
evidence and perverse?

ii)
Whether
father
of
the
plaintiff has a right to execute the sale
deed in respect of the ancestral property
ignoring the injunction granted by the
Trial Court in suit no. 630 of 1993?

iii) Whether injunction issued in
the suit no. 630 of 1993 could have been
ignored by the defendant, Lalsa in respect
respondent nos. 1 to 7 being a nullity."

5. A further question of law which
was framed and argued at the time of
hearing was "whether the trial Court was
right in coming to a conclusion that the
762 INDIAN LAW REPORTS ALLAHABAD SERIES
suit as was filed before the Civil Court
was barred".

6.

Learned
counsel
for
the
appellants and the respondents had filed
their written arguments.

7. Learned counsel appearing for the
plaintiff-appellants chiefly relied upon the
Full Bench decision of this Court in Ram
Awalamb vs. Jata Shankar reported in
1968 RD 470 and relying upon paragraph
44 submitted that, though the property in
question was a joint property between the
plaintiffs and their father before the U.P.
Zamindari Abolition and Land Reforms
Act, 1951 was notified, after the abolition
of zamindari every member of the joint
hindu family had to be considered a
separate unit for the exercise of the right
of transfer and also for the purposes of
devolution of the bhumidhari interest of
any deceased member. Since, learned
counsel for the appellants referred to
paragraph 44 of the judgment in Ram
Awalamb (supra), the same is being
reproduced here as under :-

"44.
Our
conclusions
can,
therefore, be briefly summarised as
follows:--

(1) Where members of a joint
Hindu family hold bhumidhari rights in
any holding, they hold the same as tenants
in common and not as joint tenants. The
notions of Hindu law cannot be invoked
to determine that status.

(2) Where in certain class of
tenancies, such as permanent tenure
holders, the interest of a tenant was both
heritable and transferable in a limited
sense and such a tenancy could, prior to
the enforcement of the Act, be described
as joint family property or coparcenary
property, the position changed after Act I
of 1951 came into force. Thereafter the
interest
of
each
bhumidhar,
being
heritable only according to the order of
succession provided in the Act and
transferable without any restriction other
than mentioned in the Act itself, must be
deemed to be a separate unit.

(3) Each member of a joint
Hindu family must be considered to be
a separate unit for the exercise of the
right of transfer and also for the
purposes of devolution of bhumidhari
interest of the deceased member.

(4) The right of transfer of each
member of the joint Hindu family of his
interest in bhumidhari land is controlled
only by Section 152 of the Act and by no
other restriction. The provisions of Hindu
law relating to restriction on transfer of
coparcenary land, e. g., existence of legal
necessity, do not apply."

(emphasis supplied)

8.

Learned
counsel
for
the
appellants also relied upon a judgment of
this Court in Mahavir Singh & Ors. vs.
Shri Pal & Ors. reported in 1986 RD
161 and submitted that the respondents'
father namely Lalsa could not have had
more than 1/4th share in the property and,
therefore, he could not sell the 3/4th share
of the complete property. Learned counsel
for the appellants also relied upon a Full
Bench decision of this Court in Ram
Padarath & Ors. vs. 2nd Additional
District Judge, Sultanpur & Ors.
reported in 1989 RD 21 and submitted
that for the cancellation of a sale deed
whereby
regarding
the
share
no
declaration was required, a suit would lie
in a Civil Court alone.

9.

Learned
counsel
for
the
appellants further relying upon a decision
3 All. Chandra Shekhar (Dead) & Ors. Vs. Shiv Prasad & Ors.
763
of this Court in Nasiruddin & Ors. Vs.
Ch. Ram Swarup & Ors. reported in
1978 AWC 636 submitted that even if the
question of jurisdiction was raised at the
first instance, though the defendant could
raise the same before the appellate Court
if the plea was rejected by the Trial Court
but the appellant had to show before the
Court that the Trial Court had no
jurisdiction to try the suit and the wrong
decision on the question of jurisdiction
had also occasioned in the failure of
justice. Learned counsel further submitted
that when before the First Appellate Court
no ground was taken as to what failure of
justice had occurred if the Trial Court had
entertained the suit even if it had no
jurisdiction to try the suit, then it cannot
be said that the decree was bad in law.
Since learned counsel for the appellants
has referred to paragraph nos.20, 21 and
22 of the judgment in the case of
Nasiruddin
(supra),
the
same
are
reproduced here as under :-

"20. We are accordingly of
opinion that notwithstanding the fact that
the suit giving rise to the appeal was filed
and decided before coming into force of
U.P. Act No. 19 of 1969 it is open to a
Respondent in a second appeal coming up
for hearing after the coming into force of
the aforesaid amendment Act, to raise a
plea on the basis of Sub-section (1-A) as
introduced in Section 331 of U.P.
Zamindari Abolition and Land Reforms
Act.

21. As stated earlier, Subsection (1-A) of Section 331 merely
inhibits the Appellant from contending
before the appellate or the revisional court
that the trial court had no jurisdiction to
try the suit unless he can show that such a
plea was raised before the court of first
instance at the earliest stage and in any
case prior to the framing of the issues and
that the wrong decision on the question
of jurisdiction had occasioned a failure
of justice. Before the inhibition contained
in the notion with regard to entertainment
of an objection on the question of trial
court's jurisdiction to try the suit is
removed, the objector has to show that
both the conditions mentioned above i.e.
the objection was raised at the earliest and
that the trial by the court of first instance
has resulted in failure of justice, co-exist.
In the instant case, in view of the fact that
an issue had been framed by the trial
court on the question of its jurisdiction to
try the suit, it may be taken that the
Appellant has succeeded in establishing
that he had raised the objection with
regard to trial court's jurisdiction to try
the suit before framing of issues and that
the first condition, enabling him to raise
such an objection before the appellate and
revisional court has been made out.
However, before the Appellant can be
heard on the point he has still to show that
the other condition viz. that a wrong
decision by the trial court on the question
of jurisdiction has occasioned a failure of
justice.

22. Apart from contending that
a failure of justice has been occasioned
because the suit was in fact not triable by
the civil court, learned counsel for the
Appellant was not able to bring anything
to our notice to show that trial of the suit
by the civil court has resulted in injustice.
It is significant that the Appellant who
was also an Appellant in the lower
appellate court did not press his objection
with regard to trial court's jurisdiction to
try the suit. When the Appellant himself
did not press this plea before the lower
appellate court, it meant that he was not
aggrieved by the decision of the trial
court on that point and that the trial of the
764 INDIAN LAW REPORTS ALLAHABAD SERIES
suit by the civil court has not occasioned
any injustice to him. As the Appellant has
failed to show that one of the necessary
conditions for removing the inhibition
contained in Sub-section (1-A) of Section
331 of the U.P. Zamindari Abolition and
Land Reforms Act exists, he cannot be
permitted to press the second appeal on
the ground that the suit giving rise to this
appeal was wrongly instituted before the
trial court."

10. Learned counsel for the appellants
further submitted that the judgment and
decree passed in Suit No.630 of 1993,
definitely was in favour of the plaintiffs and,
therefore, nothing further was required to be
decided by any court, be it the Civil Court or
the Revenue Court.

11. Learned counsel for the
respondents, however, in reply submitted
that when the plaintiffs were not entered
in the revenue records at the time when
zamindari was abolished, then before
filing the suit for the cancellation of sale
deeds the plaintiffs had to file a suit for
declaration in the Revenue Court. In the
absence of a declaratory decree, the suit
for the cancellation of the sale deeds was
not maintainable. Learned counsel for the
respondents submitted that when there
was
a
definite
submission
of
the
respondents that their father Lalsa had
never filed a written statement then an
issue ought to have been struck between
the parties as to whether Lalsa had in fact
filed the written statement or not. Learned
counsel to bolster his submissions with
regard to the fact that the jurisdiction of
the Civil Court was not there, relied upon
:

i. 2017 (136) RD 498 : Ram
Charan vs. Balchand & Ors.

ii. 1995 (Supp.4) SCC 671 :
Deokinandan & Ors. vs. Surajpal & Ors.

iii. 2003 (4) SCC 147 : Sarwan
Kumar vs. Madan Lal Aggarwal

iv. 1990 (1) SCC 193 : Sushil
Kumar Mehta vs. Gobind Ram Bohra

v.
1973
(2)
SCC
474
:
Chandrika Misir vs. Bhaiya Lal

vi. 1969 (1) SCC 59 : Srimathi
Kaushalya Devi vs. K.L. Bansal

vii. 1954 AIR (SC) 340 : Kiran
Singh vs. Chaman Paswan

viii. 1989 RD 21 : Ram
Padarath & Ors. vs. 2nd Additional
District Judge, Sultanpur & Ors.

ix. 2010 (7) ADJ 383 : Tara
Chand & Anr. Vs. 12th ADJ, Ghaziabad
& Ors.

12. Having heard learned counsel
for the parties, this Court is of the view
that the Trial Court had rightly entertained
the suit and when it was of the view that
as per law the defendant Lalsa, the father,
had sold more property than was there in
his share, then a further declaration was
not required and it had a right to cancel
the sale deeds. The jurisdiction with the
Civil Court was definitely available. A
suit for cancellation for the sale deeds,
therefore, was definitely maintainable
before the Civil Court. The substantial
question of law as had been framed at the
time of hearing the instant Second
Appeal, therefore, gets answered. With
regard to the substantial questions of law
no.1, 2 and 3, however, it is stated that
since it was evident that the father of the
plaintiffs namely Lalsa, alongwith his
three sons i.e. the plaintiffs, was alive on
the date when the U.P. Zamindari
Abolition and Land Reforms Act was
notified then as per law, the joint Hindu
family disintegrated after the abolition of
zamindari and every individual became a
3 All. M/s Laxmi Bricks Ujrai, Agra & Ors. Vs. Sri Dariyab Singh
765
tenure-holder in his own right. Therefore,
an individual bhumidhar could have
transferred only his share of the property.
The question of there being any joint
Hindu family did not arise.

13. The question of law which had
been framed at the time of hearing of this
case which was "whether the trial Court
was right in coming to a conclusion that
the suit as was filed before the Civil Court
was barred" is also answered by holding
that the Civil Court definitely had the
jurisdiction to entertain the suit and,
therefore,
the
Trial
Court
rightly
entertained the suit and thereafter decreed
the same.

14. Under such circumstances, the
judgment and decree dated 12.8.2016
passed by the First Appellate Court is setaside and the suit is decreed in toto.

15. The Second Appeal stands
allowed.
----------

(2019)11ILR A765

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.09.2019

BEFORE
THE HON'BLE SIDDHARTHA VARMA, J.

Second Appeal No. 943 of 2017

M/s Laxmi Bricks Ujrai, Agra & Ors.
 ...Defendants/Appellants
Versus
Sri Dariyab Singh ...Plaintiff/Respondent

Counsel for the Appellants:
Sri Ajay Kumar Mishra, Sri Sanjay Agarwal

Counsel for the Respondent:
Sri Tripathi B.G. Bhai, Sri Anil Kumar
Pandey, Anita Tripathi
A. Land Law-U.P. Zamindari Abolition
and Land Reforms Act, 1950 - an
agricultural land upon the enactment of
the U.P. Zamindari Abolition and Land
Reforms Act, 1951 vested in the State of
Uttar Pradesh and thereafter individually
all tenure holders became bhumidhars in
their own rights.
B. Land Law-U.P. Zamindari Abolition and
Land Reforms Act, 1950 - Concept of
personal law had not been adopted by the
Zamindari Abolition Act - Concept of Hindu
Undivided Family (HUF) do not govern the
inheritance
or
ownership
under
the
Zamindari Abolition Act.
C.
Civil
Law-Hindu
Minority
and
Guardianship Act, 1956 - Section 12 -
Sale of the property of a minor - a
guardian ought to be appointed - Since
no guardian had been appointed, the
sale of the portion of the property
belonging to the plaintiff was bad in law.

Second Appeal dismissed (E-5)

List of Cases Cited: -

1 Smt. Ramwati & ors. Vs Dharmdas 2013 RD
(120) 842.

2 Ram Awalamb & ors. Vs Jata Shankar & ors.
1968 RD 470

(Delivered by Hon'ble Siddhartha Varma, J.)

1. A suit being Original Suit
No.1064 of 1993 was filed by the
plaintiff-appellant
for
the
relief
of
cancellation
of
a
sale
deed
dated
27.6.1984. Alongwith the prayer for
cancellation of the sale deed, a permanent
injunction for restraining the defendants
from interfering with the plaintiff's
possession over the suit property and also