# Indra Bahadur Yadav v. Harkhas And Aam And Anr

- **Citation:** (2024) 2 ILRA 632
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-21
- **Case number:** First Appeal From Order No. 52 of 2024
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/indra-bahadur-yadav-v-harkhas-and-aam-and-anr-51452
- **Pages:** 4

## Headnote

Civil Law - Indian Succession Act, 1925 -
Code of Civil Procedure,1908-Petition filed
u/s 278 of the Act-amendment applicationdismissed-impugned-challenged in Appeal-on
combine reading of Sectiontions 299 and 278 of
the Act, 1925- it is clear that contentious
proceeding u/s 278 of the Act, 1925 will proceed
as regular suit -appeal against any order,
2 All. Indra Bahadur Yadav Vs. Harkhas And Aam And Anr.
633
passed during the proceeding u/s 278 of the
Act, 1925, will be in accordance with the C.P.C.-
appeal u/s 299 of the Act, 1925 will lie only
against those orders that are appealable as per
Order 43 Rule 1 C.P.C.- rejection of the
amendment application under Order 6 Rule 17
C.P.C. does not find place in Order 43 Rule 1
C.P.C.-
Appeal
not
maintainable-Appeal
dismissed with liberty. (E-9)

## Text

632 INDIAN LAW REPORTS ALLAHABAD SERIES
the amendment had been written into
principle act unless that leads to any
inconsistency. Therefore, on deletion of
Section 168-A of the Act, 2004 by the
amendment Act 27 of 2004, embargo
imposed under Section 168-A of the Act,
1950 on execution of a sale deed of
fragment of a land has been removed.
Therefore, sale deed in pursuance of
agreement to sell executed prior to deletion
of Section 168-A of the Act, 1950 can be
validly executed after deletion of Section
168-A of the Act, 1950, without any legal
impediment.

12. Based on the above analysis, this
Court holds that even if the agreement to
sell is executed regarding a fragment of
land in any consolidated area even then the
same will not be hit by Section 168-A of
the Act, 1950 because the agreement to sell
does not transfer the land but it is simply
the agreement between the parties to
transfer the same in future through
execution of sale deed. Though, Section
168-A of the Act, 1950 was deleted from
the Act, 1950, therefore, till the deletion of
this Section in 2004, no sale deed was
executed in pursuance of an agreement to
sell dated 22.07.1986. Now, if the direction
is made to execute the sale deed
considering the present law, there will be
no legal impediment based on deleted
Section 168-A of the Act, 1950. Even the
U.P. Act No.27 of 2004, by which Section
168-A of the Act 1950 was deleted from
the statute itself, permits regularising the
sale deed executed within a particular time
even before the deletion of Section 168-A
of the Act, 1950. Therefore, this Court
decides the substantial question of law
framed in this appeal in favour of the
appellant by holding that the appellate
Court has committed a manifest error of
law by applying Section 168-A of the Act,
1950 to the agreement to sell to transfer the
fragment of land in Khasra No.671.

13. Therefore, the judgement of the
first
appellate
Court
is
absolutely
erroneous, being contrary to the aforesaid
legal position. Hence, the order of the first
appellate Court dated 13.10.1992 is hereby
set aside, and the present appeal is allowed.
The order of the Munsif Hawali, Lucknow,
passed in Suit No.284 of 1988 is hereby
confirmed. Both the respondents are
directed to execute the sale deed in favour
of the appellant in pursuance of the
agreement to sell dated 22.07.1986 within a
period of one month, failing which the
appellant will be free to execute the sale
deed through the concerned Civil Judge.
----------
(2024) 2 ILRA 632
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.02.2024

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

First Appeal From Order No. 52 of 2024

Indra Bahadur Yadav ...Appellant
Versus
Harkhas And Aam And Anr. ...Respondent

Counsel for the Appellant:
Ram Milan Yadav, Om Prakash Yadav

Counsel for the Respondents:

Civil Law - Indian Succession Act, 1925 -
Code of Civil Procedure,1908-Petition filed
u/s 278 of the Act-amendment applicationdismissed-impugned-challenged in Appeal-on
combine reading of Sectiontions 299 and 278 of
the Act, 1925- it is clear that contentious
proceeding u/s 278 of the Act, 1925 will proceed
as regular suit -appeal against any order,
2 All. Indra Bahadur Yadav Vs. Harkhas And Aam And Anr.
633
passed during the proceeding u/s 278 of the
Act, 1925, will be in accordance with the C.P.C.-
appeal u/s 299 of the Act, 1925 will lie only
against those orders that are appealable as per
Order 43 Rule 1 C.P.C.- rejection of the
amendment application under Order 6 Rule 17
C.P.C. does not find place in Order 43 Rule 1
C.P.C.-
Appeal
not
maintainable-Appeal
dismissed with liberty. (E-9)

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard learned counsel for the
appellant.

2. The instant appeal has been filed to
set aside the impugned judgement and
order
dated
22.12.2023
passed
by
Additional District Judge, Court No.3,
Pratapgarh, in M.N.R./203/2014 (Indra
Bahadur Yadav vs. Harkhas Aam & others)
whereby the amendment application of the
appellant was dismissed.

3. The contention of learned counsel
for the appellant is that the appellant had
filed a petition u/s 278 of the Indian
Succession Act, 1925 (hereinafter referred
to as "Act, 1925") for grant of letters of
administration and during its pendency, he
filed an amendment application which was
rejected by the impugned order. It is further
submitted that the impugned order is
absolutely erroneous as if the amendment
was allowed that would not change the
nature of the suit as he simply wanted to
add the date of the will dated 4.6.1996 in
the plaint.

4. After considering the aforesaid
submission, a question arises as to whether
against the rejection of an amendment
application under Order 6 Rule 17 of
C.P.C. by the District Judge, while hearing
the suit u/s 278 of the Act, 1925, an appeal
lies under Section 299 of the Act, 1925.

5. On that issue, learned counsel for
the appellant submits that as per Section
299 of the Act, 1925, every order passed by
the District Judge in the proceeding under
Section 278 of the Act, 1925, is appealable.

6. From perusal of Section 299 of
the Act, 1925, it appears that under this
Section only those orders are appealable
which were passed by the District Judge in
exercise of power, conferred upon him
under the Act and same will be in
accordance with the provision of CPC. For
reference Section 299 of the Act, 1925 is
quoted as under:-

"299. Appeals from orders of
District Judge.?Every order made by a
District Judge by virtue of the powers
hereby conferred upon him shall be subject
to appeal to the High. Court in accordance
with the provisions of the Code of Civil
Procedure, 1908 (5 of 1908), applicable to
appeals."

7. The provision of appeal against an
order is provided under Order 43 Rule 1 of
C.P.C. For reference the Order 43 Rule 1 of
C.P.C. is quoted as under:-

"1. Appeal from orders.- An
appeal shall lie from the following orders
under the provisions of section 104, namely
:-

(a) an order under rule 10 of
Order VII returning a plaint to be
presented to the proper Court 1[except
where the procedure specified in rule 10A
of Order VII has been followed];

(b) [***]

(c) an order under rule 9 of
Order IX rejecting an application (in a
634 INDIAN LAW REPORTS ALLAHABAD SERIES
case open to appeal) for an order to set
aside the dismissal of a suit;

(d) an order under rule 13 of
Order IX rejecting an application (in a
case open to appeal) for an order to set
aside a decree passed ex parte;

(e) [***]

(f) an order under rule 21 of
Order XI;

(g) [***]

(h) [***]

(i) an order under rule 34 of
Order XXI on an objection to the draft of a
document or of an endorsement;

(j) an order under rule 72 or rule
92 of Order XXI setting aside or refusing to
set aside a sale;

[(ja) an order rejecting an
application made under sub-rule (1) of rule
106 of Order XXI, provided that an order
on the original application, that is to say,
the application referred to in sub-rule (1)
of rule 105 of that Order is appealable;]

(k) an order under rule 9 of
Order XXII refusing to set aside the
abatement or dismissal of a suit;

(l) an order under rule 10 of
Order XXII giving or refusing to give
leave;
 (m) [***]

(n) an Order under rule 2 of
Order XXV rejecting an application (in a
case open to appeal) for an order to set
aside the dismissal of a suit;

(na) an order under rule 5 or rule
7 of Order XXXIII rejecting an application
for permission to sue as an indigent person
;

(o) [***]

(p) orders in interpleader-suits
under rule 3, rule 4 or rule 6 of Order
XXXV;

(q) an order under rule 2, rule 3
or rule 6 of Order XXXVIII;

(r) an order under rule 1, rule 2,
[rule 2A], rule 4 or rule 10 of Order
XXXIX;

(s) an order under rule 1 or rule
4 of Order XL;

(t) an order of refusal under rule
19 of Order XLI to re-admit, or under rule
21 of Order XLI to re-hear, an appeal;

(u) an order under rule 23 1b[or
rule 23A] or Order XLI remanding a case,
where an appeal would lie from the decree
of the Appellate Court ;

(v) [***]

(w) an order under rule 4 of
Order XLVII granting an application for
review."

8. From perusal of the Order 43 Rule
1 of C.P.C., it is clear that against the
rejection of an amendment application
under Order 6 Rule 17, no appeal lies.
Appeal is creation of statute which cannot
be inferred without statutory provision.
Section 295 of the Act provides that if the
proceeding u/s 278 of the Act, 1925 is
contentious, the same will proceed in the
form of regular suit, according to the
provision of C.P.C. Section 295 of the Act,
1925 is quoted as under:-

"295. Procedure in contentious
cases.?In any case before the District
Judge in which there is contention, the
proceedings shall take, as nearly as may
be, the form of a regular suit, according to
the provisions of the Code of Civil
Procedure, 1908 (5 of 1908) in which the
petitioner for probate
or letters
of
administration, as the case may be, shall be
the plaintiff, and the person who has
appeared to oppose the grant shall be the
defendant."

9. On combine reading of Sections
299 and 278 of the Act, 1925, it is clear
2 All. State of U.P. Vs.Smt. Phoolan Devi @ Phoolmati
635
that contentious proceeding u/s 278 of the
Act, 1925 will proceed as regular suit and
appeal against any order, passed during the
proceeding u/s 278 of the Act, 1925, will be in
accordance with the C.P.C. Therefore, this
Court holds that the appeal u/s 299 of the Act,
1925 will lie only against those orders that are
appealable as per Order 43 Rule 1 C.P.C. and
rejection of the amendment application under
Order 6 Rule 17 C.P.C. does not find place in
Order 43 Rule 1 C.P.C.

10. In view of the above analysis, this
Court is of the view that against the rejection of
amendment application under Order 6 Rule 17
C.P.C. during the proceeding of Section 278 of
Indian Succession Act, 1925, no appeal lies u/s
299 of the Act, 1925 and the same can be
challenged by the appellant either in revision u/s
115 C.P.C. or under the supervisory jurisdiction
of the High Court, under Article 227 of
Constitution of India.

11. Accordingly, the present appeal is dismissed
with a liberty to the appellant to challenge the impugned
order in appropriate proceeding.
----------
(2024) 2 ILRA 635
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.02.2024

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA,
J.
THE HON'BLE AJAI KUMAR SRIVASTAVA-I,
J.

Government Appeal No. 1000144 of 2013

State of U.P. ...Appellant
Versus
Smt. Phoolan Devi @ Phoolmati
 ...Respondent

Counsel for the Appellant:
Govt. Advocate

Counsel for the Respondents:

Criminal
Law
-
Indian
Penal
CodeSectiontion302-Acquittal-Accused/
respondent acquitted of the offence u/s 302
IPC-cause of death of the deceased/ infant/
child is reported to be asphyxia as a result of
ante mortem strangulation-co-accused, Hori Lal
is the husband of the accused- respondent-he is
convicted-even if acquittal is recorded in respect
of some of the co-accused- yet conviction can
be recorded in respect of the other accused-
Respondent acquitted -based on proper analysis
of evidence available on record- possible view of
the matter on the basis of evidence adducedAppeal dismissed. (E-9)

Cases cited:

1. Balraje alias Trimbak Vs St. of Maha., (2010)
6 SCC 673

2. Ramesh & ors. Vs St. of Har., (2017) 1 SCC
529

3. Anwar Ali & anr.Vs St. of H.P., (2020) 10 SCC
166

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.
&
Hon'ble Ajai Kumar Srivastava-I, J.)

(Oral)

1. By means of the present
application under Section 378(3) of the
Code of Criminal Procedure1, the State has
sought leave to appeal to challenge the
judgment and order dated 16.05.2013
passed by the then Special/ Additional
Sessions Judge, Lakhimpur Kheri in
Sessions Trial No.52 of 2007 titled as State
of U.P. vs. Hori Lal and another arising out
of Case Crime No.77 of 2006, under
Section 302 of the Indian Penal Code2,
Police Station Pasgawan, District Kheri,