# Hardwari Lal and others v. Dal Singh and others

- **Citation:** (2012) 2 ILRA 576
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-10
- **Bench:** Sibghat Ullah Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hardwari-lal-and-others-v-dal-singh-and-others-42305
- **Pages:** 3

## Headnote

Code of Civil Procedure-Section 100Second Appeal-suit dismissed by courty
below
as
plot
not
identified-Lower
Appellate Court rejected the application
for Survey Commissioner being highly
belated stage-whether Appellate Court
right in rejecting such application-held-
'No' even Supreme Court had allowed
such application -High Court cannot
ignore the same-Appeal allowed matter
remanded back for fresh decision by
identifying the plot in question through
Survey Commissioner.

Held: Para 10

Accordingly, second appeal is allowed.
Substantial question of law is decided in
favour of the appellants. Judgment and
decree passed by the lower appellate
court is set aside. Matter is remanded to
the lower appellate court to decide the
appeal afresh after providing opportunity
2 All] Hardwari Lal and others V. Dal Singh and others
577
to the plaintiffs appellants to get the
property
surveyed
through
survey
commissioner.
Both
the
parties
are
directed to appear before the lower
appellate court on 18.07.2012.
Case law discussed:
AIR 1975 All 406; JT 2000 (7) SC 379

## Text

576 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Thus in our opinion the family pension
being drawn by the widow of the
deceased is not liable to be deducted
from
the
amount
of
compensation
awarded to the claimants.

7. As regards the addition of 30
percent for future prospects of the
deceased the Tribunal has placed reliance
on the case of Sunil Sharma (supra).
Learned counsel for the appellant has
tried to distinguish this case on the
premise that in the case before the Apex
Court the deceased was aged about 45
years and was a Class-III employee, so
there is no parity of this case with the
instant one. No doubt in the present case
the deceased was Khalasi (Class-IV
employee of N.E. Railway Gorakhpur)
and was aged between 45-50 years but in
our opinion the addition of 30 percent
pay for calculating the amount of
compensation as future prospects of the
deceased is not excessive at all. The
deceased was having 12 years of service
and during this period his pay would
have revised at least once apart from hike
in D.A. every year which on average is
10 percent or more. It is noteworthy that
in the case of Sarla Verma vs. Delhi
Road Transport Corporation, reported
in 2009(2)TAC 699 (SC) the Apex Court
has laid down as a 'rule of thumb' with
respect to addition in income due to
future prospects observing that addition
should be only 30 percent if the age of
the deceased was 40-50 years. As such
we find that learned Tribunal has not
committed any illegality in adding 30
percent in income due to future prospects
of the deceased for calculating just and
reasonable compensation.

8. In view of what has been said
and done above, we do not find any merit
in the appeal which is accordingly
dismissed. The statutory deposit of Rs.
25,000/- made before this Court be
remitted back to the concerned Tribunal
as expeditiously as possible.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.05.2012

BEFORE
THE HON'BLE SIBGHAT ULLAH KHAN, J.

Second Appeal No. - 2206 of 1985

Hardwari Lal and others
 ...Petitioner
Versus
Dal Singh and others
 ...Respondents

Counsel for the Petitioner:
Sri R.K. Jain
Sri R.G. Prasad

Counsel for the Respondents:
Sri S.R. Singh
Sri Ram Avtar Verma

Code of Civil Procedure-Section 100Second Appeal-suit dismissed by courty
below
as
plot
not
identified-Lower
Appellate Court rejected the application
for Survey Commissioner being highly
belated stage-whether Appellate Court
right in rejecting such application-held-
'No' even Supreme Court had allowed
such application -High Court cannot
ignore the same-Appeal allowed matter
remanded back for fresh decision by
identifying the plot in question through
Survey Commissioner.

Held: Para 10

Accordingly, second appeal is allowed.
Substantial question of law is decided in
favour of the appellants. Judgment and
decree passed by the lower appellate
court is set aside. Matter is remanded to
the lower appellate court to decide the
appeal afresh after providing opportunity
2 All] Hardwari Lal and others V. Dal Singh and others
577
to the plaintiffs appellants to get the
property
surveyed
through
survey
commissioner.
Both
the
parties
are
directed to appear before the lower
appellate court on 18.07.2012.
Case law discussed:
AIR 1975 All 406; JT 2000 (7) SC 379

(Delivered by Hon'ble Sibghat Ullah Khan, J.)

1. Heard learned counsel for the
parties.

2. This second appeal was
admitted
on
13.12.1985
by
the
following order:

"Admit. Issue notice.

The only substantial question which
arises for consideration in this appeal is
whether the lower appellate court has
declined to issue a Survey Commission
sought by the appellants by means of an
application dated September 5, 1985
(Paper No.30C) on legally permissible
grounds."

3. This is plaintiffs' second appeal
arising out of O.S. No.34 of 1981,
which was dismissed on 24.08.1982 by
Munsif, Court No.7, Shahjahanpur.
Against the said decree, plaintiffs filed
Civil Appeal No.106 of 1982, which
was
dismissed
by
IV
A.D.J.,
Shahjahanpur on 10.09.1985, hence this
second appeal.

4. Defendant respondent No.4,
Abhivaran
Singh
was
owner/
bhoomidhar of some land. First, he sold
a part of his land to the plaintiffs on
09.05.1978, which was comprised in
Plot No.272, area 0.35 acres. Thereafter
he sold some property on 21.08.1979 to
defendants No.1 to 3, which according
to the plaintiffs included part of the land
which had earlier been sold to the
plaintiffs and which was comprised in
Plot No.272.

5. The trial court held that the
plaintiffs could not prove that land
purchased by defendants No.1 to 3 was
part of Plot No.272, which had been
sold to them.

6. The lower appellate court held
that the trial court was wrong in holding
that the suit was barred by Section 34 of
Specific Relief Act as prayer for
possession in the alternative had also
been made in the plaint. However, lower
appellate court held that on the said
basis the decree of the trial court could
not be reversed.

7. Before the lower appellate court
plaintiffs appellants filed an application
on 05.09.1985 for survey of the property
in
dispute
through
a
Survey
Commissioner. Lower appellate court in
its judgment held that the said prayer
could not accepted as it was made at a
very late stage.

8. Lower appellate court held that
plaintiffs did not file their sale deed.
However, plaintiffs' sale deed was not
questioned by any one. They had
asserted that they purchased property of
Plot No.272. Defendants No.1 to 3
categorically stated that the property
which they purchased in 1979 did not
include any part of Plot No.272.
Accordingly,
the
only
dispute
in
between the parties was as to whether
property in dispute was part of Plot
No.272 or not? As far as the question of
delay in applying for getting the
property surveyed is concerned, in this
578 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
regard learned counsel for the appellants
has cited an authority of this court
reported in Gajraj and others Vs.
Ramadhar and others, AIR 1975 All
406 and an authority of the Supreme
Court reported in Sripat Vs. Rajendra
Prasad, JT 2000 (7) SC 379. In the
latter authority, Supreme Court held that
trial court should have got the property
surveyed
when
the
dispute
was
regarding identity of the property.
Supreme Court allowed the appeal, set
aside the decrees and orders passed by
trial court, lower appellate court as well
as High Court and remanded the matter
to the trial court.

9. In the High Court authority it
has been held that appellate court can
also issue Commission for survey.

10. Accordingly, second appeal is
allowed. Substantial question of law is
decided in favour of the appellants.
Judgment and decree passed by the
lower appellate court is set aside. Matter
is remanded to the lower appellate court
to decide the appeal afresh after
providing opportunity to the plaintiffs
appellants to get the property surveyed
through survey commissioner. Both the
parties are directed to appear before the
lower appellate court on 18.07.2012.
---------

ORIGINAL JURISDICTION
SIDE SIDE
DATED: LUCKNOW 03.05.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

SERVICE SINGLE No. - 2450 of 2009

Sabhapati Pathak S/O Late Indar Pal
Pathak

 ...Petitioner
Versus
State of U.P. Thru Prin. Secy. Irrigation
and others

 ...Respondents

Counsel for the Petitioner:
Sri S.C. Yadava
Sri Vishal Kumar Upadhyay

Counsel for the Respondent:
C.S.C.

Constitution
of
India,
Article
226transfer by way of punishment-based
upon
inquiry
report-allegation
of
misleading higher authorities failed to
discharge
his
duties-held-illegal
quashed.

Held: Para 8

The impugned order, in this case, clearly
show that after receiving enquiry report
and founded thereon the petitioner is
being transferred. Thus the power of
transfer has not been exercised by the
transferring authority independently by
his own application of mind but the
impugned order of transfer is founded on
the enquiry report. Fortunately, the
enquiry report is part of the record which
shows that enquiry officer has made
recommendation for transfer besides
above. The apex court while repeatedly
observing that normally interference in
an order of transfer should not be made
but simultaneously it has also said that if
an order of transfer is made as a
punishment, the same cannot sustain
unless permitted under the Rules. The
reference is made to the Apex Court