# Gaya Din & Anr v. Dy. Director of Consolidation & Anr

- **Citation:** (2022) 10 ILRA 1034
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-29
- **Case number:** Writ-B No. 3822 of 1985
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gaya-din-anr-v-dy-director-of-consolidation-anr-47663
- **Pages:** 11

## Headnote

A. Civil Law - U.P Consolidation of
Holdings Act, 1953 - Section 9A - Resjudicata - decree of Civil Court passed in
injunction suit in respect of agricultural
land will not operate as res-judicata in the
title objection under Section 9A (2) of the
U.P.C.H. Act (Para 13)

B. Civil Law - U.P Consolidation of
Holdings Act, 1953 - Section 9A - Indian
Evidence Act, 1872 - Section 64, 65 & 90 -
if certified copy has not been placed on
record after satisfying the requirements of
Section 64/65 of the Indian Evidence Act,
1872, the mere fact that it was a certified
copy
by
itself,
would
not
make
it
admissible
in
evidence
since
it
is
secondary evidence and can be adduced in
evidence only as provided in statute and
not otherwise (Para 15)

Petitioners' father was recorded over disputed
plots till the basic year of consolidation -
respondent no.2 (Jairaji) claimed that Gift deed
was executed in her favour as such, she is the
sole-bhumidhar - Respondent no.2 although was
not recorded in the revenue records filed a civil
suit for injunction in respect of Bhumidari
disputed plots which was decreed in her favour
which attained finality by dismissal of civil
appeal filed by petitioners' father - On the basis
of civil Court's injunction decree, respondent
no.2 initiated proceedings for recording her
name over disputed Khata - Against the Basic
Year Entry objection was filed by respondent
no.2 for recording her name after expunging the
name of petitioners' father Kashi Ram - Original
copy of gift deed was not filed before
Consolidation Court rather certified copy was
filed before Consolidation Officer without any
explanation about the original Gift deed -
Consolidation Officer, dismissed the objection of
respondent no.2 and maintained the Basic Year
Entry and held that original of the Gift deed has
not been filed which goes against respondent
no.2 & further held that judgment of civil Court
passed in injunction suit will not operate as resjudicata in the proceeding initiated under
Section 9A (2) of U.P.C.H. Act - Appeal filed by
respondent no. 2 dismissed - Revisional Court
directed to record the name of respondent no.2
over the disputed plots after expunging the
name of petitioners - Revisional order passed on
the ground that certified Gift deed is more than
20 years old as such, in view of the provisions
contained under Section 90A of the Evidence
Act, the Gift deed will be presumed to be
executed genuine & on the basis of certified
copy of Gift deed, right can be given to opposite
party no.2 - Held - Revisional Court failed to
notice about the original Gift deed and that
10 All. Gaya Din & Anr. Vs. Dy. Director of Consolidation & Anr.
1035
there was no explanation or pleading about the
non filing of original Gift deed either in the
courts below or before High Court - revisional
order passed on the second ground that Gift
deed is more than 20 year old, as such, on the
basis of certified copy of Gift deed, right can be
given to opposite party no.2 without examining
anything cannot be sustained - injunction
decree cannot operate as resjudicata in the
proceedings arising out of Section 9A (2) of
U.P.C.H. Act but revisional Court has illegally
held that injunction decree passed by civil Court
will operate as res - judicata - Impugned
revisional orders passed by Deputy Director of
Consolidation, Jaunpur quashed - order passed
by consolidation office & order passed by
Settlement
Officer
of
Consolidation
are
maintained (Para 16, 18, 19, 20)

Allowed. (E-5)

List of Cases cited:

## Text

1034 INDIAN LAW REPORTS ALLAHABAD SERIES
him due to the order under challenge. There is
no illegality, perversity and ambiguity in the
order under challenge which may warrant
indulgence of this Court in exercise of its extra
ordinary jurisdiction under Article 226 of the
Constitution of India. Even otherwise there is
no justification to review the intent of
legislation promulgated under Section 4-A of
the U.P.C.H. Act.

23. Resultantly, instant writ petition,
being misconceived and devoid of merits, is
dismissed with no order as to costs.
----------
(2022) 10 ILRA 1034
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.08.2022

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ-B No. 3822 of 1985

Gaya Din & Anr. ...Petitioners
Versus
Dy. Director of Consolidation & Anr.
 ...Respondents

Counsel for the Petitioners:
Sri Yogesh Agarwal, Sri Sanjay Singh, Mrs.
Vatsala, Sri Ravi Kant

Counsel for the Respondents:
Sri A.N. Bhargawa, Sri Ashutosh Kumar
Tiwari

A. Civil Law - U.P Consolidation of
Holdings Act, 1953 - Section 9A - Resjudicata - decree of Civil Court passed in
injunction suit in respect of agricultural
land will not operate as res-judicata in the
title objection under Section 9A (2) of the
U.P.C.H. Act (Para 13)

B. Civil Law - U.P Consolidation of
Holdings Act, 1953 - Section 9A - Indian
Evidence Act, 1872 - Section 64, 65 & 90 -
if certified copy has not been placed on
record after satisfying the requirements of
Section 64/65 of the Indian Evidence Act,
1872, the mere fact that it was a certified
copy
by
itself,
would
not
make
it
admissible
in
evidence
since
it
is
secondary evidence and can be adduced in
evidence only as provided in statute and
not otherwise (Para 15)

Petitioners' father was recorded over disputed
plots till the basic year of consolidation -
respondent no.2 (Jairaji) claimed that Gift deed
was executed in her favour as such, she is the
sole-bhumidhar - Respondent no.2 although was
not recorded in the revenue records filed a civil
suit for injunction in respect of Bhumidari
disputed plots which was decreed in her favour
which attained finality by dismissal of civil
appeal filed by petitioners' father - On the basis
of civil Court's injunction decree, respondent
no.2 initiated proceedings for recording her
name over disputed Khata - Against the Basic
Year Entry objection was filed by respondent
no.2 for recording her name after expunging the
name of petitioners' father Kashi Ram - Original
copy of gift deed was not filed before
Consolidation Court rather certified copy was
filed before Consolidation Officer without any
explanation about the original Gift deed -
Consolidation Officer, dismissed the objection of
respondent no.2 and maintained the Basic Year
Entry and held that original of the Gift deed has
not been filed which goes against respondent
no.2 & further held that judgment of civil Court
passed in injunction suit will not operate as resjudicata in the proceeding initiated under
Section 9A (2) of U.P.C.H. Act - Appeal filed by
respondent no. 2 dismissed - Revisional Court
directed to record the name of respondent no.2
over the disputed plots after expunging the
name of petitioners - Revisional order passed on
the ground that certified Gift deed is more than
20 years old as such, in view of the provisions
contained under Section 90A of the Evidence
Act, the Gift deed will be presumed to be
executed genuine & on the basis of certified
copy of Gift deed, right can be given to opposite
party no.2 - Held - Revisional Court failed to
notice about the original Gift deed and that
10 All. Gaya Din & Anr. Vs. Dy. Director of Consolidation & Anr.
1035
there was no explanation or pleading about the
non filing of original Gift deed either in the
courts below or before High Court - revisional
order passed on the second ground that Gift
deed is more than 20 year old, as such, on the
basis of certified copy of Gift deed, right can be
given to opposite party no.2 without examining
anything cannot be sustained - injunction
decree cannot operate as resjudicata in the
proceedings arising out of Section 9A (2) of
U.P.C.H. Act but revisional Court has illegally
held that injunction decree passed by civil Court
will operate as res - judicata - Impugned
revisional orders passed by Deputy Director of
Consolidation, Jaunpur quashed - order passed
by consolidation office & order passed by
Settlement
Officer
of
Consolidation
are
maintained (Para 16, 18, 19, 20)

Allowed. (E-5)

List of Cases cited:

1. Dr. Jeevan Bahadur Samaddar Vs Govind
Charan Samaddar & ors. 2013 (120) RD 717

2. Nathu Ram & ors. Vs Deputy Director of
Consolidation Varanasi & ors. 2017 (136) RD 480

3.
Ram
Dular
Vs
Deputy
Director
of
Consolidation Jaunpur & ors. 1994 RD 290 (SC),

4. Sheshmani & anr. Vs Deputy Director of
Consolidation District- Basti U.P. & ors. 2001 RD
210 (SC)

5. Sri Jagdamba Prasad (dead) through LRs &
ors. Vs Kripa Shankar (dead) through LRs & ors.
2014 (124) RD 1 (SC)

(Delivered by Hon'ble Chandra Kumar
Rai, J.)

1. Brief facts of the case are that Khata
No.116 situated in Village- Sultanpur Khas,
Pargana-Garwara, Tehsil- Machhali Shahar,
District- Jaunpur was recorded in the name of
petitioners' father, Kashi Ram son of Ram
Tahal. Against the Basic Year Entry, one
objection under Section 9A (2) of the
U.P.C.H. Act was filed by Shri Ram and
Others in respect of Plot No.728 area 38
decimal of Khata No.161 that Kashi Ram is
wrongly recorded over the same so his name
be recorded after expunging the name of the
Kashi Ram. Another objection against the
Basic Year Entry was filed by respondent
no.2, Smt. Jairagi daughter of Smt. Mangri in
respect of Plot Nos.663, 664, 686, 687 and
695 of Khata No.161 to record her name
exclusively after expunging the name of
Kashi Ram. Respondent no.2 has placed
following pedigree in support of her case:-

Ram Lal

 |

___________________|___________

|

 |

 |
Sukhiya

Dukhiya
 Mangari (daughter)
(daughter)
(daughter)

|

Jairaji (daughter) wife of Shiv Narayan

2. The basis of the claim of respondent
no.2 (Jairaji) was that Ram Lal has executed
Gift deed on 14.4.1950 in favour of his three
daughters, namely, Sukhiya, Dukhiya and
Mangri, who have died, as such, she is the
sole-bhumidhar being daughter's daughter of
disputed plots.

3. Another Pedigree has been mentioned
in Para No.4 of the order of Revisional Court
dated 11.8.1982 which is mentioned as
undisputed, the same is as follows:-

Parson

 |

____________|________________________

|

 |
Ram Tahal

 Jokhu

| |
Kashi Ram (petitioners' father)

 |

 Ram Lal

|
___________________________________________
|

 |

|
Sukhiya

Dukhiya Mangari (daughter)
(daughter)
(daughter) |

 Jairaji(respondent no.2)
1036 INDIAN LAW REPORTS ALLAHABAD SERIES

4. Before Consolidation Officer
following three issues were framed:-

(i)
Whether
Shri
Ram
is
bhumidhar of Plot No.728 area 38 decimal.

(ii) Whether Smt. Jairaji daughter
of Mangri is exclusive owner of plots in
dispute as given in her objection.

(iii) Whether name of Kashi Ram
is wrongly recorded over disputed plots.

5. Issue no.1 was decided in favour of
objector Shri Ram as the same was wrongly
recorded in 1360 fasli in the name of Ram
Lal without any basis while earlier it was
recorded in the name of ancestor of Shri
Ram.

6. With respect to issue Nos.2 and 3
petitioners'
father
Kashi
Ram
and
respondent no.2, Smt. Jairaji adduced oral
and documentary evidences in support of
their cases.

7. According to Kashi Ram his father
Ram Tahal and father of deceased Ram Lal
were real brothers, as such, Ram Lal was
cousin of Kashi Ram. He further alleged
that Smt. Mangari died first in the three
daughters, Sukhiya died after Mangari and
Dukhiya died after Sukhiya, all the three
daughters were married in the life time of
their father Ram Lal and all of them were
residing in their in-laws house (Sasural).

8. From the side of respondent no.2,
judgment of civil Court passed in Suit
No.435 of 1959 (Sukhiya and Others Vs.
Kashi Ram) was filed, the suit was for
injunction,
which
was
decreed
on
10.11.1960 in favour of plaintiffs and Civil
Appeal No.148 of 961 filed by Kashi Ram
was dismissed. From the side of petitioners'
father Kashi Ram, order dated 26.7.1957
passed by Naib Teshildar in Case No.3488
was filed before Consolidation Officer by
which name of Kashi Ram was ordered to
be recorded after expunging the name of
Ram Lal. Smt. Jairaji filed a case in
revenue Court on the basis of civil Court
decree for injunction was dismissed by
Assistant
Collector
by
order
dated
28.5.1962 and further the case under
Section 33/39 of U.P. Land Revenue Act
filed by respondent no.2 was also dismissed
by Sub-Divisional Officer which proves
that petitioners' father remained recorded
over disputed plots in pursuance of the
order dated 26.7.1957 till the basic year of
consolidation. Operation, objection and
appeal against the Basic Year Entry were
dismissed by Consolidation Courts. Both
parties filed revenue entries in support of
their
cases.
Consolidation
Officer
considered
the
oral
evidences
and
documentary evidence adduced by both
parties. Consolidation Officer noticed the
fact that Sukhiya, Dukhiya and Mangri in
whose favour Gift deed is alleged to be
executed on 10.5.1950 had not filed an
objection
before
Consolidation
Court,
respondent no.2 claimed right on the basis
of alleged Gift deed which was not proved
even before Civil Court as mentioned in the
judgment of civil Court. Consolidation
Officer further held that judgment of civil
Court passed in injunction suit will not
operate as res-judicata in the proceeding
initiated under Section 9A (2) of U.P.C.H.
Act. Consolidation Officer further held that
original of the Gift deed has not been filed
which
goes
against
respondent
no.2
accordingly, Consolidation Officer vide
order dated 24.11.1976 dismissed the
objection
of
respondent
no.2
and
maintained the Basic Year Entry, the
objection of one Shri Ram in respect to one
Plot no.728 was allowed. Appeal filed by
respondent no.2 under Section 11 of
U.P.C.H.
Act
against
the
order
of
10 All. Gaya Din & Anr. Vs. Dy. Director of Consolidation & Anr.
1037
Consolidation Officer dated 24.11.1976
was dismissed vide order dated 13.12.1977.
Respondent no.2 challenged the orders of
Courts below before revisional Court under
Section 48 of U.P.C.H. Act in which
petitioners have put in appearance but on
the date of hearing petitioners could not
appear and the revision was allowed exparte vide order dated 11.8.1982 by which
order
of
Consolidation
Officer
and
Settlement Officer of Consolidation were
set aside and further direction was issued to
record the name of respondent no.2 over
the disputed plots after expunging the name
of petitioners. When petitioners came to
know about the revisional order dated
11.8.1982, an application for setting aside
the ex-parte order dated 11.8.1982 was
filed on 21.8.1982, the same was dismissed
by revisional Court vide order dated
22.2.1985 holding that earlier order dated
11.8.1982 was passed on merit hence this
writ petition on behalf of petitioners
challenging both the orders dated 11.8.1982
and 22.2.1985.

9. Learned counsel for the petitioners
Shri Ravi Kant holding the brief of Mrs.
Vatsala submitted that revisional Court has
not afforded opportunity of hearing to the
petitioners, as such, revisional order will be
treated exparte against the petitioners. He
further submitted that revisional Court has
exceeded his jurisdiction while allowing
the revision and expunging the Basic Year
Entry which was continuing much before
the basic year of consolidation operation.
He further submitted that entire evidences
(oral and documentary) as considered by
Consolidation
Officer
and
Settlement
Officer of Consolidation have not been
considered at all by revisional Court and
the judgment of reversal has been passed.
He next submitted that decree of Civil
Court passed in injunction suit in respect of
agricultural land will not operate as resjudicata in the title objection under Section
9A (2) of the U.P.C.H. Act, Consolidation
Officer
and
Settlement
Officer
of
Consolidation have rightly held that decree
of injunction suit passed by Civil Court will
not
operate
as
res-judicata
in
the
proceeding arising out of Section 9A (2) of
U.P.C.H. Act but revisional Court has
arbitrarily held that decree of Civil Court
relating to injunction suit will operate as
res-judicata in the title objection before
Consolidation Court. He next submitted
that original copy of gift deed dated
14.4.1950 has not been filed at all before
Consolidation Court rather certified copy of
the will-deed dated 10.5.1950 has been
filed before Consolidation Officer without
any explanation about the original Gift
deed and the revisional Court arbitrarily
relying upon Section 90 A of the Indian
Evidence Act presumed its execution. He
further submitted that oral evidences which
were considered by Consolidation officer
has not been taken into consideration and
revision was outrightly allowed. He placed
reliance upon AIR 1954 S.C. 340, Kiran
Singh Vs. Chaman Paswan in which it is
held that if the order and decree is ab initio
void no reliance can be placed upon it at
any stage, subsequently, counsel for the
petitioner submitted written argument also
in which it is mentioned that respondent
no.1
mistakenly
appreciated
that
unregistered Gift deed can be read as
admissible evidence without considering
the provisions contained under Section 17
(1) (a) of the Registration Act 1908. In
point no.7 of the written argument, it is
mentioned that respondent no.1 mistakenly
appreciated that Section 90A of the
Evidence Act does apply on the contrary
certified copy of the Gift deed does not
fulfil the ingredients of Section 74 and 76
of the Indian Evidence Act thus cannot be
1038 INDIAN LAW REPORTS ALLAHABAD SERIES
read as secondary evidence when there is
no pleading or explanation about the
original Gift deed.

10. On the other hand, learned
counsel for respondent no.2 Shri Ashutosh
Kumar Tiwari submitted that revisional
order dated 11.8.1982 was passed on merit
and the Consolidation Court have no power
of review in view of law laid down by full
Bench of this Court reported in 1997 R.D.
562, Smt. Shivraji and Others Vs. D.D.C.
Allahabad
and
Others.
He
further
submitted that Civil Court has decided the
injunction suit in favour of respondent no.2
as such the same will operate as resjudicata
in
consolidation
proceeding
relating to title matter. He further submitted
that Ram Lal had full and absolute right to
transfer his agricultural land through Gift
deed to his daughter as the disputed plots
were the Sharamuian Abog before the date
of vesting. He next submitted that Gift deed
has been rightly believed to be a genuine
document by revisional Court as provided
under Sections 61, 63, 65 and 74 of the
Evidence
Act.
Learned
counsel
for
respondent no.2 has also submitted written
argument which has been perused by me in
which the above mentioned points have
been taken. He finally submitted that
revisional jurisdiction has been rightly
exercised in view of provisions contained
under
Section
48
Explanation-3
of
U.P.C.H. Act as such, no interference in
required against the impugned revisional
orders and writ petition is liable to be
dismissed.

11. I have considered the argument
advanced by learned counsel for the
respective parties and perused the records.

12. There is no dispute about the fact
that Ram Lal was real nephew of
petitioners' father and respondent no.2 was
daughter of married daughter of Ram Lal,
petitioners' father Kashi Ram was recorded
in revenue record since 1957 by the order
of Naib Tehsildar in respect of plots of
Khata No.71 and the name of recorded
tenure holder Ram Lal was expunged from
the
revenue
records.
The
name
of
petitioners' father continued over the
disputed Khata No.71 even in the Basic
Year
of
the
consolidation operation.
Respondent no.2 although was not recorded
in the revenue records filed a civil suit in
the year 1959 for injunction in respect of
Bhumidari disputed plots which was
decreed in her favour by judgment and
decree dated 10.11.1960 which attained
finality by dismissal of civil appeal filed by
petitioners' father by judgment and decree
dated 6.7.1961. On the basis of civil Court's
injunction decree, respondent no.2 initiated
two revenue proceedings for recording her
name over disputed Khata but both the
revenue proceedings were decided against
the respondent no.2 in the year 1962.
Against the Basic Year Entry objection was
filed by respondent no.2 for recording her
name after expunging the name of
petitioners' father Kashi Ram. Objection
under Section 9A (2) of U.P.C.H. Act was
dismissed by Consolidation Officer and
appeal filed by respondent no.2 under
Section 11 of U.P.C.H. Act was also
dismissed
by
Settlement
Officer
Consolidation. Revisional Court allowed
the revision filed by respondent no.2 under
Section 48 of U.P.C.H. Act setting aside
the order of Consolidation Officer and
Settlement Officer of Consolidation, the
Basic Year Entry was expunged and name
of respondent no.2 was ordered to be
recorded over disputed plots. This Court
while admitting the writ petition stayed the
operation of the revisional order dated
11.8.1982 and 22.2.1985 vide order dated
10 All. Gaya Din & Anr. Vs. Dy. Director of Consolidation & Anr.
1039
20.3.85. On the stay vacation application
filed by respondent no.2 interim order
dated 20.3.1985 was confirmed with further
direction that whichever party is in
possession of the disputed land shall not be
dispossessed till further orders.

13. Since the civil suit filed by
respondent
no.2
was
for
decree
of
injunction although respondent no.2 was
not recorded in the revenue record, the
injunction
decree
cannot
operate
as
resjudicata in the proceedings arising out of
Section 9A (2) of U.P.C.H. Act but
revisional Court has illegally held that
injunction decree passed by civil Court will
operate as res judicata. The case law of
Apex Court cited by counsel for the
petitioners in Kiran Singh (supra) will be
relevant on this issue. The revisional order
passed on the first ground that injunction
decree of Civil Court will operate as resjudicata
in
title
proceeding
before
Consolidation Court cannot be sustained.

14. Revisional order passed on the
second ground that certified Gift deed
dated 14.4.1950 is more than 20 years old
as such, in view of the provisions contained
under Section 90A of the Evidence Act, the
Gift deed will be presumed to be executed
genuine. Revisional Court has failed to
consider the oral evidence adduced by the
parties before the Consolidation Officer
which were taken into consideration while
rejecting the objection under Section 9A
(2) of U.P.C.H. Act filed by respondent
no.2. Revisional Court has also failed to
notice about the original Gift deed and
there is no explanation or pleading about
the non filing of original Gift deed either in
the courts below or before this Court.
Perusal of Section 64, 65, 74, 76 and 90 of
the Indian Evidence Act, 1872 will be
necessary to consider the arguments of
respective
counsel
on
the
point
of
production of certified copy of Gift deed.
Section 64, 65, 74, 76 and 90 of Indian
Evidence Act, 1872 are as follows:

"64. Proof of documents by
primary evidence.--Documents must be
proved by primary evidence except in the
cases hereinafter mentioned.

65. Cases in which secondary
evidence relating to documents may be
given.--Secondary evidence may be given
of the existence, condition, or contents of a
document in the following cases:--

(a) When the original is shown or
appears to be in the possession or power--
of the person against whom the document is
sought to be proved, or of any person out of
reach of, or not subject to, the process of
the Court, or of any person legally bound
to produce it, and when, after the notice
mentioned in section 66, such person does
not produce it;

(b) when the existence, condition
or contents of the original have been
proved to be admitted in writing by the
person against whom it is proved or by his
representative in interest;

(c) when the original has been
destroyed or lost, or when the party
offering evidence of its contents cannot, for
any other reason not arising from his own
default or neglect, produce it in reasonable
time;

(d) when the original is of such a
nature as not to be easily movable;

(e) when the original is a public
document within the meaning of section 74;

(f) when the original is a
document of which a certified copy is
permitted by this Act, or by any other law
in force in [India] to be given in evidence;
[India] to be given in evidence;"

(g) when the originals consists of
numerous accounts or other documents
1040 INDIAN LAW REPORTS ALLAHABAD SERIES
which cannot conveniently be examined in
Court, and the fact to be proved is the
general result of the whole collection. In
cases (a), (c) and (d), any secondary
evidence of the contents of the document is
admissible. In case (b), the written
admission is admissible. In case (e) or (f), a
certified copy of the document, but no other
kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the
general result of the documents by any
person who has examined them, and who is
skilled
in
the
examination
of
such
documents.

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

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

(i) of the sovereign authority,

(ii)
of
official
bodies
and
tribunals, and

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

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

76. Certified copies of public
documents.--Every public officer having the
custody of a public document, which any
person has a right to inspect, shall give that
person on demand a copy of it on payment of
the legal fees therefore, together with a
certificate written at the foot of such copy
that it is a true copy of such document or part
thereof, as the case may be, and such
certificate shall be dated and subscribed by
such officer with his name and his official
title, and shall be sealed, whenever such
officer is authorized by law to make use of a
seal; and such copies so certified shall be
called certified copies.

Explanation.--Any officer who, by
the ordinary course of official duty, is
authorized to deliver such copies, shall be
deemed to have the custody of such
documents within the meaning of this
section.

90. Presumption as to documents
thirty years old.--Where any document,
purporting or proved to be thirty years old,
is produced from any custody which the
Court in the particular case considers
proper, the Court may presume that the
signature and every other part of such
document, which purports to be in the
handwriting of any particular person, is in
that person's handwriting, and, in the case
of a document executed or attested, that it
was duly executed and attested by the
persons by whom it purports to be executed
and attested. Explanation.--Documents are
said to be in proper custody if they are in
the place in which, and under the care of
the person with whom, they would naturally
be; but no custody is improper if it is
proved to have had a legitimate origin, or if
the circumstances of the particular case
are such as to render such an origin
probable. This Explanation applies also to
section 81.
STATE AMENDMENTS

Uttar Pradesh.

(a) Renumber section 90 as subsection (1) thereof;

(b) in sub-section (1) as so
renumbered, for the words "thirty years",
substitute the words "twenty years";

(c) after sub-section (1) as so
renumbered, insert the following subsection, namely:--

"(2) Where any such document as
is referred to in sub-section (1) was
registered in accordance with the law
relating to registration of documents and a
duly certified copy thereof is produced, the
court may presume that the signature and
every other part of such document which
purports to be in the handwriting of any
10 All. Gaya Din & Anr. Vs. Dy. Director of Consolidation & Anr.
1041
particular person, it is that person's
handwriting, and in the case of a document
executed or attested, that it was duly
executed and attested by the person by
whom it purports to have been executed or
attested".

(d) After section 90, insert the
following section, namely:--

"90A. (1) Where any registered
document or a duly certified copy thereof
or any certified copy of a document which
is part of the record of a Court of Justice, is
produced from any custody which the
Court in the particular case considers
proper, the Court may presume that the
original was executed by the person by
whom it purports to have been executed.

(2) This presumption shall not be
made in respect of any document which is
the basis of a suit or of defence or is relied
upon in the plaint or written statement."

The Explanation to sub-section
(1) of section 90 will also apply to this
section; [Vide Uttar Pradesh Act 24 of
1954, sec. 2 and Sch. (w.e.f. 30-111954).]"

 15. On the point of Section 90 of
Indian Evidence Act as well as on the point
of proof of Gift deed this Court in a case of
Dr. Jeevan Bahadur Samaddar Vs.
Govind Charan Samaddar and Others
2013 (120) RD 717 has held that if certified
copy has not been placed on record after
satisfying the requirements of Section
64/65 of the Indian Evidence Act, 1872, the
mere fact that it was a certified copy by
itself, would not make it admissible in
evidence since it is secondary evidence and
can be adduced in evidence only as
provided in statute and not otherwise.
Paragraph Nos.36 to 42 of Dr. Jeevan
Bahadur Sammaddar (supra) will be
relevant
to
appreciate
the
present
controvercy which is as follows:

"36. In view of above reasoning
the Court upheld the view taken by High
Court that presumption under Section 90
would not be available on the certified copy
produced by defendants and, hence it was
rightly declined. The Court also said:

"We may also indicate that it is
the discretion of the Court to refuse to give
such presumption in favour of a party, if
otherwise, there is occasion to doubt due
execution of the document in question."

37. The above view however has
to be applied in U.P. with slight variation.
The U.P. Amendment in Section 90(1) has
made difference only of the period from 30
years to 20 years but for all other purposes,
it is the same. A Division Bench of this
Court in Om Prakash Vs. Bhagwan, AIR
1974 All 389 has also said that benefit of
Section 90 of Indian Evidence Act, as it
stood un-amended would not be available
to defendants-appellants as the original
was not produced in evidence. However,
here the legislature has introduced subsection (2) for drawing a presumption in
regard to a 'certified copy'. An argument
was advanced that in that case, by virtue of
sub-section (2), as amended in U.P. the
presumption would be available. This was
also considered by Division Bench in Om
Prakash Vs. Bhagwan (supra) and it said:

". . . . learned counsel relied upon
the amendment made to Section 90 by the
U. P. Civil Laws (Amendment) Act, which
permits a presumption to be drawn when a
certified copy of a document, which has
been registered under the Registration Act,
is produced in evidence. However, the U.
P. Civil Laws (Amendment) Act introduced
Section 90-A also. Sub-section (2) of this
new section lays down that the presumption
shall not be made in respect of any
document which is the basis of a suit or of
a defence and is relied upon in the plaint or
in the written statement. It is not disputed
1042 INDIAN LAW REPORTS ALLAHABAD SERIES
by the learned counsel for the defendantsappellants that the sale deed in question
was the basis of the defence and was relied
upon by the defendants in their written
statement. Nothing therefore, in Section 90
or Section 90-A of the Evidence Act as
amended by the U. P. Civil Laws
(Amendment) Act, 1954 will come to the
assistance of the defendants-appellants and
the
Court
will
not
draw
a
legal
presumption in favour of the defendantsappellants that it was executed by Smt.
Reoti Devi."

38. Here the Court clearly
misconstrued Section 90(2) by reading it
alongwith Section 90-A, though both are
independent.

39. The correctness of aforesaid
decision was doubted. The matter was
considered by a Full Bench in Ram Jas Vs.
Surendra Nath, AIR 1980 All 385. It was
answered by Full Bench by overruling the
decision in Omprakash Vs. Bhagwan
(supra). The Full Bench dealt with Section
90 and 90-A, both at length. The Court
traced the history of amendment made by
U.P. Legislature, felt necessary in view of
decision of Privy Council in Basant Singh
v. Brji Raj Saran Singh (1935) ALJ 847,
whereby certified copies were not held
entitled for presumption under Section 90
in respect of document which is over 30
years when the original are not traceable
or lost. The Court also referred to the
interpretation given to U.P. Amendment in
Dalsingar Vs. Sitaram 1969 All.W.R.(HC)
188 observing that Sections 90 and 90-A
both are independent and not controlled by
each other. Sub-section (2) of Section 90,
therefore, shall not create a bar for raising
a presumption under Section 90. This view
was reiterated in Risal Vs. Deputy Director
of Consolidation, U. P., Lucknow, 1970
All.W.R. (HC) 634 and Deo Chand Vs.
Deputy Director of Consolidation 1971
All.L.J. 992. The Full Bench approving
aforesaid three decisions and overruling
Division Bench judgement said, when law
permits presumption which a Court can
draw under any provision of procedural
law,
in
absence
of
any
controlling
provision
available
otherwise,
such
provision pertaining to presumption cannot
be made inapplicable. The Court said that
if presumption is available or would have
been available under Section 90, it shall
not be defeated by referring to Section 90A, which is independent and does not
control Section 90. The Court also
highlighted distinction between Sections 90
and 90-A. Section 90 deals with documents
which are more than 20 years old. Section
90-A is not confined to the documents
which are more than 20 years old but it
also includes documents from judicial
record. The Court found that aforesaid
provisions occupy different fields, different
circumstances and permits different types
of presumption.

40. Same view was reiterated by
a learned Single Judge (N.N. Mithal, J.) in
Smt. Vidya Devi and others Vs. Nand
Kumar, AIR 1981 All 274 (para 17).

41.Thus
presumption
under
Section 90(1) is attracted in respect of
original document. However, sub-section
(2) is applicable in respect of certified
copies but it would be attracted only when
certified copy has been adduced in
evidence in accordance with procedure
prescribed in law, or after satisfying the
requirement of law, i.e., Sections 64 and 65
of Act, 1872 and not otherwise. Under Act,
1872 certified copy as such is not
admissible in evidence being a secondary
evidence unless the procedural requirement
thereof is satisfied. It is only when a
certified copy has been adduced in
evidence in accordance with requirement of
the statute, the question of presumption
10 All. Gaya Din & Anr. Vs. Dy. Director of Consolidation & Anr.
1043
under Section 90(2) would be attracted and
not otherwise. Section 90(2) cannot be read
in isolation. It has to be read in harmony
with other provisions of the Act, 1872.

42. The above discussion also
leads to the inference that, (1) presumption
under Section 90 is discretionary, though
the
discretion
is
to
be
exercised
judiciously; (2) sub-section (1) of Section
90 (as amended in U.P. or otherwise) is
applicable only in respect to original
document and not copies or certified
copies; (3) the document must be 20/30
years old and must have come from proper
custody; (4) the presumption is in respect
of execution and attestation of document as
also the handwriting of person concerned;
(5) sub-section (2) (as available in U.P.) is
applicable to certified copies when the
same
are
adduced
in
evidence
in
accordance with law, i.e., as per the
requirement of Sections 64 and 65 of Act,
1872. "

16. In view of ratio of law laid down
by this Court in Dr. Jeevan Bahadur
Sammadar (supra) as well as considering
the provisions of Sections 64 and 65 of the
Indian Evidence Act, 1872 as well as
Section 90 and 90A of the Indian Evidence
Act, 1872, the revisional order passed on
the second ground that Gift deed is more
than 20 year old, as such, on the basis of
certified copy of Gift deed, right can be
given to opposite party no.2 without
examining anything cannot be sustained.

17. So far as revisional jurisdiction
under
Section
48
of
Uttar
Pradesh
Consolidation of Holdings Act is concerned
as argued by respective counsel for the
parties, the decision of this Court in a case
of Nathu Ram and Others Vs. Deputy
Director of Consolidation Varanasi and
Others 2017 (136) RD 480 will be relevant
in which this Court after considering the
various amendment made in Section 48 of
U.P.C.H. Act as well as the ratio of law laid
down by Apex Court in Ram Dular Vs.
Deputy Director of Consolidation Jaunpur
and Others 1994 RD 290 (SC), Sheshmani
and Another Vs. Deputy Director of
Consolidation District- Basti U.P. and
Others 2001 RD 210 (SC) and Sri
Jagdamba Prasad (dead) through LRs and
Others Vs. Kripa Shankar (dead) through
LRs and Others 2014 (124) RD 1 (SC), has
held that revisional power is not a power of
first or second appellate Court, the finding
recorded therein would be possible to be
interfered under Section 48 of U.P.C.H.
Act only on the grounds discussed in Ram
Dular (supra), Sheshmani (supra) and
Jagdamba Prasad (supra).

18. Considering the entire facts and
circumstances of the case as well as ratio of
law laid down by this Court, the impugned
revisional orders dated 11.8.1982 and
22.2.1985 passed by Deputy Director of
Consolidation, Jaunpur cannot be sustained
and are liable to be quashed accordingly,
the impugned orders are quashed.

19. The writ petition is allowed.

20. Since order of Consolidation
Officer dated 24.11.1976 was passed after
considering each and every evidence
adduced by the parties on the point of
injunction decree passed by Civil Court and
Gift deed, as such, there is no need to
remand the matter to revisional Court for
any further consideration of fact and law.
The order dated 24.11.1976 passed by
consolidation office and order dated
23.12.1977 passed by Settlement Officer of
Consolidation are hereby maintained.

21. No order as to costs.
1044 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2022) 10 ILRA 1044
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2022

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Second Appeal No. 1284 of 2018

Matashiromani ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Sri Anil Kumar Misra

Counsel for the Respondents:
Sri Jitendra Narayan Rai, Addl. C.S.C., Sri
Pradeep Kumar Tiwari, S.C.

Civil Law - U.P. Consolidation of Holdings
Act, 1953 - Section 49 - Bar to Civil Courts
jurisdiction - disputed Plot recorded as
Navin Parti during consolidation operation
and no proceeding was initiated by
plaintiff during consolidation operation to
get the entry corrected, as such, civil suit
of plaintiff rightly held to the barred by
Section 49 of the U.P.C.H. Act - if no claim
is raised during consolidation operation,
claim
after
close
of
consolidation
operations would be barred by Section 49
of U.P.C.H. Act - civil suit by the plaintiff
who is not recorded in revenue record
cannot be entertained by civil Court - In
respect to Abadi land title cannot be
adjudicated by consolidation Court rather
consolidation Court can only order to
make entry of the nature of land as Abadi
(Para 15, 18, 19)

Dismissed. (E-5)

List of Cases cited:

1. Ramdeo & ors. Vs Deputy Director of
Consolidation & ors. 2007 (207) R.D.
761
2. Ram Prasad & ors. Vs. Deputy Director of
Consolidation Pratapgarh & ors. 2004 (96) R.D.
303

3. Jai Narain & ors. Vs. Deputy Director of
Consolidation Deoria 2004 (97) R.D. 705

4. 2007 (102) R.D. 761

5. Abhairaj & ors. Vs. Gaon Sabha / Gram
Panchayat, LMC & anr. reported in 2017 (136)
R.D. 603

6. Shri Ram Vs. First Additional District Judge &
ors., J.T. 2001 (2) S.C. 573

7. Kamla Prasad & ors. Vs. Krishna Kant Pathak
& ors. (2007) 4 Supreme Court Cases 213

(Delivered by Hon'ble Chandra Kumar
Rai, J. )

1. Heard Mr. Anil Kumar Mishra,
learned counsel for the appellant and Mr.
Jitendra Narayan Rai, learned Additional
Chief Standing Counsel along with Mr.
Pradeep Kumar Tiwari, learned Standing
Counsel for the State.

2. The present second appeal under
Section 100 of Civil Procedure Code has
been filed on behalf of plaintiff against the
judgment and decree dated 30.8.2018 /
5.9.2018 passed by District Judge Bhadohi
Gyanpur in Civil Appeal No.21 of 2018
arising out of Suit No.112 of 2013, the trial
Court vide judgment and decree dated
2.4.2018/13.4.2018 dismissed the plaintiff's
suit for declaration and injunction and the
decree of trial Court has been maintained
by lower Appellate Court.

3. The plaint case as pleaded in brief
is that Plot No.146 area 0.183 hectare
situated in Village- Sherpur Gopalaha,
District Sant Ravidas Nagar Bhadohi is
recorded as Navin Parti in the revenue