# Jai Prakash v. Board of Revenue & Ors

- **Citation:** (2019) 2 ILRA 683
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-01
- **Case number:** Writ-B No. 11311 of 1995
- **Bench:** Salil Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jai-prakash-v-board-of-revenue-ors-44730
- **Pages:** 10

## Headnote

S.C., Alka Srivastava, Sri Anuj Kumar
Sharma, Sri Ashok Kumar, Sri Avadhesh
Kumar Upadhyay, Sri G.C. Sharma, Sri
Kumar Anish, Sri Pradeep Chandra, Sri
Radha Upadhyay, Sri Rohit Upadhyay, Sri
Sankatha
Rai,
Sri
Santosh
Kumar
Srivastava, Sri Syed Wajid Ali, Sri Rohit
Kumar Upadhyay, Sri Pranshu Kaushal, Sri
Jitendra Mohan Sharma
A. Uttar Pradesh Zamindari Abolition &
Land Reforms Act, 1950 - Section 229 B -
evidence relied by BOR-not relevant to decide
title of parties-findings of first appellate court
could not be set aside-on ground that said
evidence is not considered-BOR exceeded its
jurisdiction u/s. 331(4) r/w s.100 CPC.

Held: - There was no perversity in the
findings
of
the
first
appellate
court
empowering the Board of Revenue to interfere
in the said findings exercising its powers under
Section 331(4) of the Act, 1950 read with
Section 100 CPC.

Writ Petition allowed (E-8)

## Text

2 All. Jai Prakash Vs Board of Revenue & Ors.
683
allotted on his original holding, does not
figure in the adjustment chart.

19. In the result, the Writ Petition
succeeds and is allowed in part only to the
extent that the adjustment chart enclosed
to the impugned order dated 14.01.1976
shall be appropriately corrected to bring it
in accord with the order under reference
and include the area of the petitioner's
holding in plot no.1460, as directed in the
substantive part of the order. To this
extent,
the
impugned
order
dated
14.01.1976 stands modified. Costs easy.
----------

(2019)10ILR A 683

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.10.2019

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.

Writ-B No. 11311 of 1995

Jai Prakash ...Petitioner
Versus
Board of Revenue & Ors. ...Respondents

Counsel for the Petitioner:
Sri G.N. Verma, Sri A.B. Paul, Sri A.N. Verma,
Sri A.P. Paul, Sri Anuj Kumar Sharma, Sri
Ashutosh Pandey, Sri B.B. Paul, Dr. H. N.
Tripathi, Sri H.O.K. Srivastava

Counsel for the Respondents:
S.C., Alka Srivastava, Sri Anuj Kumar
Sharma, Sri Ashok Kumar, Sri Avadhesh
Kumar Upadhyay, Sri G.C. Sharma, Sri
Kumar Anish, Sri Pradeep Chandra, Sri
Radha Upadhyay, Sri Rohit Upadhyay, Sri
Sankatha
Rai,
Sri
Santosh
Kumar
Srivastava, Sri Syed Wajid Ali, Sri Rohit
Kumar Upadhyay, Sri Pranshu Kaushal, Sri
Jitendra Mohan Sharma
A. Uttar Pradesh Zamindari Abolition &
Land Reforms Act, 1950 - Section 229 B -
evidence relied by BOR-not relevant to decide
title of parties-findings of first appellate court
could not be set aside-on ground that said
evidence is not considered-BOR exceeded its
jurisdiction u/s. 331(4) r/w s.100 CPC.

Held: - There was no perversity in the
findings
of
the
first
appellate
court
empowering the Board of Revenue to interfere
in the said findings exercising its powers under
Section 331(4) of the Act, 1950 read with
Section 100 CPC.

Writ Petition allowed (E-8)

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

The application was filed in the
Court on 3.4.2019 and was taken on
record.

Office is directed to grant regular
number to the application.

The application has been filed to
record the word 'deceased' before the name
of Smt. Santosh Sharma referred as
petitioner no. 2/1 in the application and the
wife of the deceased petitioner no. 2 - Mr.
Manjul Kumar Sharma and also to record
the fact that Sri Manish Sharma, the son of
deceased petitioner no. 2 referred as
petitioner no. 2/2 in the application is the
heir and legal representative of Smt.
Santosh Sharma and is already on record.
The array of parties in the memorandum of
writ petition reveals that Smt. Santosh
Sharma was not substituted in place of
deceased petitioner no. 2 and only Sri
Manish Sharma, i.e., the son of petitioner
no. 2 was substituted in his place as
petitioner no. 2/1.

In view of the aforesaid, the application
is misconceived and is dismissed.
684 INDIAN LAW REPORTS ALLAHABAD SERIES

1. The present writ petition arises
out of proceedings registered under
Section 229-B of the Uttar Pradesh
Zamindari Abolition & Land Reforms
Act, 1950 (hereinafter referred to as, 'Act,
1950').

2. The dispute between the parties
relates to Khata No. 1430 which included
Plot Nos. 3655, 3656, 3664, 3667, 3668,
3670 and 3671 (hereinafter referred to as,
'Suit Property'). It is admitted between the
parties that one Durga Prasad had two
sons, namely, Ram Swarup and Bal
Mukund. Ram Swarup died in 1932 and
his widow Sukhdei died in 1935. Bal
Mukund died in 1960. From his first wife,
Bal Mukund had one son, namely, Sagar
Dutt and from his second wife, Bal
Mukund had two sons, namely, Shyam
Lal and Jai Prakash. Shyam Lal died in
1978. Sagar Dutt died during the
pendency of the case in the courts below.
The respondent nos. 2 to 7 are the legal
heirs of Sagar Dutt and respondent nos. 8
to 11 are the legal heirs of Shyam Lal. Jai
Prakash is the petitioner in the present
writ petition. During his life time, Ram
Swarup was recorded as the tenure holder
of the suit property. It appears that after
1932, i.e., after the death of Ram Swarup,
Sagar Dutt was recorded as the tenure
holder of the suit property and continued
to be so recorded in 1359 Fasli and in the
subsequent revenue records prepared
under the Uttar Pradesh Land Revenue
Act, 1901. In 1983, the petitioner
instituted a suit under Section 229-B of
the Act, 1950 impleading Sagar Dutt and
the descendants of Shyam Lal as
defendants and prayed for a decree
declaring him to be a co-tenure holder of
the suit property having 1/3 share in the
same and for a partition of the suit
property. It appears from the records that
the said case was re-numbered as Case
No. 10 of 1994 and shall be referred as
such in the present order. Case No. 10 of
1994 was filed by the petitioner alleging
that Bal Mukund and Ram Swarup
constituted a Hindu undivided family and
the suit property was purchased by Ram
Swarup from the joint family fund and
Ram Swarup, being the 'head' of the
family, was recorded in the revenue
records as tenant of the suit property. It
was stated in the plaint that the petitioner
and the respondents are members of a
Hindu undivided family and there had
been no partition either between Ram
Swarup and Bal Mukund or between the
petitioner and the respondents. It was
alleged that the suit property was part of
the hindu joint family property and,
therefore, the petitioner along with the
respondents was a co-tenure holder of the
suit property having 1/3 share and entitled
to seek partition of the suit property.

3. Sagar Dutt contested Case No. 10
of 1994 and filed his written statement
denying the averments made in the plaint
that there was no partition between Ram
Swarup and Bal Mukund. In his written
statement, Sagar Dutt stated that the suit
property was the self acquired property of
Ram Swarup who purchased it from his
independent income. It was stated in the
written statement that after the death of
Ram Swarup, Sagar Dutt became the sole
tenure holder of the suit property on the
basis of a family settlement and was
recorded as such in the revenue records. It
was further stated in the written statement
that the defendant was in exclusive
possession of the suit property since 1932
without any obstruction either by Bal
Mukund or the petitioner and respondent
nos. 8 to 11 and no objections were filed
either by the petitioner or by Bal Mukund
2 All. Jai Prakash Vs Board of Revenue & Ors.
685
after the enforcement of the Act, 1950 or
during the different settlements made
before the enforcement of the Act, 1950
and, therefore, the claim of the petitioner
was barred by limitation as well as by the
principle of estoppel and acquiescence.

4. On the pleadings of the parties,
the trial court, i.e., the Assistant Collector
/ Additional City Magistrate, District
Meerut framed eight issues. The issues
framed by the trial court and relevant for a
decision of the present writ petition were
as to whether the plaintiff, i.e., the
petitioner was a co-tenure holder of the
suit property along with the defendant
nos. 1 to 5, i.e., Sagar Dutt and
respondent nos. 8 to 11, whether the suit
property was self acquired property of
Ram Swarup which Sagar Dutt got in a
family settlement and whether the suit
was barred by the principle of estoppel
and acquiescence. During the proceedings
in Case No. 10 of 1994, the petitioner
filed different revenue records to show
that there had been no partition between
Bal Mukund and Ram Swarup and the
mutation order dated 18.10.1932 to prove
that Bal Mukund was the legal heir of
Ram Swarup. Apart from the aforesaid,
certain electricity bills and receipts of
house tax as well as the voter list were
filed by the petitioner to show that the
sons of Bal Mukund, which included
Sagar Dutt, were part of a Hindu
undivided family and there had been no
partition between them and Sagar Dutt
was the head of the family. The petitioner
also filed documents to show that in 1953,
Bal Mukund installed a tube-well in the
suit property and after the death of Bal
Mukund, the tube-well was registered in
the name of the three sons of Bal
Mukund, i.e., the petitioner, Sagar Dutt
and Shyam Lal who jointly paid its bill. In
the trial court, respondents also filed
revenue records to show that Sagar Dutt
had been consistently recorded as the sole
tenure holder of the suit property since
1932. The respondents also filed the
statement of Bal Mukund recorded in
Case No. 179-1366 registered under the
Large Land Holdings Tax Act (hereinafter
referred to as, 'LLHT Act') in which,
according to the defendant Sagar Dutt,
Bal Mukund had admitted that as a result
of a family settlement Sagar Dutt became
the sole tenure holder of the suit property
after the death of Ram Swarup. It appears
from the records filed before this Court
that in his statement recorded by the trial
court under Order X, Civil Procedure
Code, 1908, Sagar Dutt stated that he
became the sole tenant of the suit property
as a result of a family settlement between
Sukhdei (the widow of Ram Swarup), Bal
Mukund and himself. The statement under
Order X CPC is annexed as Annexure No.
RA-1 to the rejoinder affidavit.

5. The trial court vide its judgment
and order dated 16.3.1994 dismissed Case
No. 10 of 1994. In its judgment dated
16.3.1994, the trial court held that the suit
property was the self acquired property of
Ram Swarup and was not purchased from
the joint family fund. Relying on the
statement of Bal Mukund recorded in
proceedings under LLHT Act, the trial
court held that Sagar Dutt was recorded as
the sole tenure holder of the suit property
as a result of a family settlement which
was accepted by all members of the family
and no objections were raised by any
member of the family including Bal
Mukund. On the basis of its aforesaid
findings, the trial court held that the
petitioner was not a co-tenure holder of the
suit property and the suit was barred by the
principle of estoppel and acquiescence.
686 INDIAN LAW REPORTS ALLAHABAD SERIES

6. Aggrieved by the judgment and
decree dated 16.3.1994, the petitioner
filed Appeal No. 104 of 1993-94 before
the Additional Commissioner (Judicial),
Meerut and the Additional Commissioner
vide his judgment and decree dated
27.7.1994 allowed the appeal and decreed
Case No. 10 of 1994. Relying on the
receipts and bills relating to different
municipal taxes and charges and the
entries in the voter list, the first appellate
court held that the petitioner, Sagar Dutt
and Shyam Lal were part of a Hindu joint
family. In its judgment and order dated
27.7.1994, the first appellate court also
held that Ram Swarup and Bal Mukund
constituted a Hindu joint family and it
was not proved that the suit property was
the self acquired property of Ram Swarup
or that there was any partition between
Ram Swarup and Bal Mukund. Relying
on the document which showed that Bal
Mukund installed the tube-well existing
on the suit property and after the death of
Bal Mukund, the said tube-well was
registered in the name of the three sons of
Bal Mukund who jointly paid its bill, the
first appellate court held that the suit
property was joint family property and the
petitioner, Sagar Dutt and Shyam Lal and
consequently their descendants were cotenure holders of the suit property and the
petitioner had 1/3 share in it. The first
appellate court also reversed the findings
of the trial court that the suit was barred
by limitation and by the principle of
estoppel and acquiescence.

7. Sagar Dutt died during the
pendency
of
the
first
appeal
and,
therefore, aggrieved by the judgment and
order dated 27.7.1994 passed by the first
appellate court, respondent nos. 2 to 7
filed Second Appeal No. 124 of 1993-94
under Section 331(4) of the Act, 1950
before the Board of Revenue, Uttar
Pradesh
at
Allahabad.
Through
its
judgment and order dated 4.4.1995, the
Board of Revenue, Uttar Pradesh at
Allahabad allowed the second appeal and
restored the order passed by the trial
court. In its judgment and order dated
4.4.1995, the Board of Revenue held that
the suit property was purchased by Ram
Swarup from his independent income and
relying on the admission of Bal Mukund,
the Board held that Sagar Dutt was the
sole tenant of the suit property and the
petitioner had no share in it. The Board
also held that as Sagar Dutt was recorded
in the revenue records since 1932 and was
in continuous possession, therefore, the
claim of the petitioner was barred by
limitation. In its order dated 4.4.1995, the
Board of Revenue also took note of the
different sales and purchases separately
made by the parties. The judgment and
order dated 4.4.1995 passed by the Board
of Revenue has been challenged in the
present writ petition.

8. Challenging the judgment and
order dated 4.4.1995 passed by the Board
of Revenue, the counsel for the petitioner
has argued that the different revenue
records filed by the petitioner before the
trial court proved that Bal Mukund and
Ram Swarup constituted a Hindu joint
family and there was no partition either
between Ram Swarup and Bal Mukund or
after the death of Bal Mukund, between
his sons and Sagar Dutt was the head of
the family and the suit property was a
joint family property and the petitioner
had 1/3 share in it. It was argued that the
findings recorded by the Board of
Revenue that the claim of the petitioner
was barred by limitation and by estoppel
and acquiescence was contrary to law. It
was further argued that the family
2 All. Jai Prakash Vs Board of Revenue & Ors.
687
settlement pleaded by Sagar Dutt in his
favour was not proved by the evidence on
record. It was argued that the Board of
Revenue had exceeded its jurisdiction in
allowing the appeal without framing any
substantial question of law which was
mandatory under Section 331(4) of the
Act, 1950 read with Section 100 of the
Code of Civil Procedure, 1908 (as
amended in 1976) and in reversing the
findings of the first appellate court even
though the findings of the first appellate
court were based on evidence on record. It
was argued that for the aforesaid reasons,
the order dated 4.4.1995 passed by the
Board of Revenue is contrary to law and
is liable to be set-aside. In support of his
arguments, the counsel for the petitioner
has relied on the judgment of the Supreme
Court
in
Sita
Ram
Bhama
Vs.
Ramvatar Bhama 2018 (15) SCC 130.

9. Rebutting the arguments of the
counsel for the petitioner, the counsel for the
respondents has argued that an oral family
settlement is recognized under the law. It was
argued that the family settlement pleaded by
Sagar Dutt had been acted upon and neither
the widow of Ram Swarup nor the father of
Sagar Dutt, i.e., Bal Mukund ever objected to
it. It was argued that the plaintiff/petitioner
could not show the existence of any nucleus
or source of income of the joint hindu family
to prove that the suit property was purchased
from the joint family fund. It was argued that
from the evidence on record especially, the
sale deed dated 31.8.1922, it was proved that
Ram Swarup and Bal Mukund were living
separately. It was further argued that Sagar
Dutt was recorded as the sole tenure holder
of the suit property even in 1342 Fasli, i.e.,
during the settlement of Mr. Waugh and was
recorded as Sirdaar of the suit property under
Section 18 of the Act, 1950. It was argued
that under the Act, 1950, Sagar Dutt acquired
new rights which had attained finality. It was
also argued that from the admission of Bal
Mukund, it was evident that Bal Mukund
had no concern with the suit property and the
said admission was binding on the petitioner
who claimed through Bal Mukund. It was
argued that the claim of the petitioner was
barred by the principle of estoppel and
acquiescence and the suit was barred by
limitation. It was argued by the counsel for
the
respondents
that
there
was
no
jurisdictional error in the order passed by the
Board of Revenue because under Section
331(4) of the Act, 1950, the Board of
Revenue was not required to frame any
substantial
question
of
law
as
the
amendments in 1976 in Section 100 were not
applicable while the Board of Revenue
exercised its power as a second appellate
court under Section 331(4) of the Act, 1950
and the powers of the Board under Section
331(4) of the Act, 1950 were governed by
Section 100 CPC as it existed prior to the
amendment. It was further argued that it was
not a fit case for interference under Article
227 of the Constitution of India. In support
of his arguments, the counsel for the
respondents has relied upon the judgments of
the Supreme Court in Kale and Ors. Vs.
Deputy Director of Consolidation and
Ors. 1976 (3) SCC 119; Shalini Shyam
Shetty and Anr. Vs. Rajendra Shankar
Patil 2010 (8) SCC 329; State of
Uttarakhand Vs. Mohan Singh and Ors.
2012 (13) SCC 281 and Marabasappa
(Dead) by Lrs. and Ors. Vs. Ningappa
(Dead) by Lrs. and Ors. 2011 (9) SCC 451.

10. I have considered the rival
submissions of the counsel for the parties.

11. It is not disputed that the suit
property was purchased in the name of
Ram Swarup through a sale deed executed
by one Amba Prasad. It is also not
688 INDIAN LAW REPORTS ALLAHABAD SERIES
disputed that Ram Swarup died issueless
leaving behind his widow Sukhdei. The
issue whether Ram Swarup and Bal
Mukund had separated or whether the suit
property was purchased from the joint
family fund or from the independent
income of Ram Swarup is not relevant to
decide the dispute between the parties and
the present writ petition. The claim of
Sagar Dutt is not dependent on a decision
on the issue as to whether the suit
property was a joint family property or
the separate property of Ram Swarup. It is
not the case of respondent nos. 2 to 7 that,
through any recognised mode of transfer,
Ram Swarup, during his lifetime, had
transferred the suit property to Sagar Dutt
or had executed any Will in favour of
Sagar Dutt. Thus, after the death of Ram
Swarup, by virtue of Section 24 of Agra
Tenancy Act, 1926, the suit property
devolved on Sukhdei, the widow of Ram
Swarup and after the death of Sukhdei,
the estate would have devolved on Bal
Mukund, the brother of Ram Swarup.
After the death of Bal Mukund, under
Section 171 of the Act, 1950, the estate
would devolve on his three sons. If
Section 24 of Agra Tenancy Act, 1926
and Section 171 of the Act, 1950 operate,
Sagar Dutt had no rights in the suit
property during the lifetime of Sukhdei
and Bal Mukund and was only a co-tenure
holder of the suit property along with his
brothers
including
the
petitioner
irrespective of whether the suit property
was joint family property or self acquired
property of Ram Swarup purchased by his
independent income. In order to succeed
in their case that Sagar Dutt was the sole
tenant of the suit property, the respondent
nos. 2 to 7 had to prove some event which
excluded the operation of Section 24 of
Agra Tenancy Act, 1926 or Section 171
of the Act, 1950. The said was necessary
because when one co-heir is found to be
in possession of the properties it is
presumed to be on the basis of a joint title.
(See P. Lakshmi Reddy Vs. L. Lakshmi
Reddy AIR 1957 SC 314).

12. The case of respondent nos. 2 to
7 is that after the death of Ram Swarup,
Sagar Dutt became the sole tenant of the
suit property through a family settlement
between Sukhdei, Bal Mukund and Sagar
Dutt. Apparently, the case of respondent
nos. 2 to 7 was that Bal Mukund or his
other two sons never acquired any
tenancy rights in the suit property. If the
case of family settlement as pleaded by
respondent nos. 2 to 7 is believed,
Sukhdei relinquished her rights, title and
interest in the suit property in favour of
Sagar Dutt even though Sagar Dutt had no
antecedent title in the property. In view of
the law laid down by the Supreme Court
in Kale and Ors. Vs. Deputy Director of
Consolidation and Ors. 1976 (3) SCC
119, such a family settlement would be
valid even if Ram Swarup had separated
from Bal Mukund and was the sole tenure
holder of the suit property and also even if
the suit property was a joint family
property and Ram Swarup was recorded
as the tenure holder of the suit property
only as the 'Karta' of the family and all the
members of the family had not entered
into the arrangement. At this stage, the
observations of the Supreme Court in
Paragraph No. 17 of Kale (supra) are
reproduced below:

"In
Krishna
Beharilal
v.
Gulabchand, it was pointed out that the
word
"family"
had
a
very
wide
connotation and could not be confined
only to a group of persons who were
recognised by law as having a right of
succession or claiming to have a share.
2 All. Jai Prakash Vs Board of Revenue & Ors.
689
The Court then observed: [SCC p. 843,
paras 7-8]

"To consider a settlement as a family
arrangement, it is not necessary that the
parties to the compromise should all
belong to one family. As observed by this
Court
in
Ram
Charan
Das
v.
Girjanandini Devi - the word "family" in
the context of a family arrangement is not
to be understood in a narrow sense of
being a group of persons who are
recognised in law as having a right of
succession or having a claim to a share in
the property in dispute. If the dispute
which is settled is one between near
relations then the settlement of such a
dispute can be considered as a family
arrangement - see Ramcharan Das case.

The courts lean strongly in favour of
family arrangements to bring about
harmony in a family and do justice to its
various
members
and
avoid
in
anticipation future disputes which might
ruin them all."

13. The issue in the present case is
whether the family settlement was proved
by respondent nos. 2 to 7 and whether the
findings recorded by the first appellate
court accepting the case of the petitioner
were based on evidence on record and
further whether, under Section 331(4) of
the Act, 1950 read with Section 100 of the
Code of Civil Procedure, 1908, the Board
of Revenue had exceeded its jurisdiction
in reversing the findings of the first
appellate court and record its own
findings rejecting the claim of the
petitioner.

14. The family settlement was set-up
by respondent nos. 2 to 7 and, therefore,
the burden was on respondent nos. 2 to 7
to prove the family settlement. To prove
the family settlement, the respondent nos.
2 to 7 relied on the alleged admission of
Bal Mukund made in proceedings under
the LLHT Act and on the conduct of the
petitioner and Bal Mukund in not filing
any objections against the entries in the
revenue records showing Sagar Dutt to be
the sole tenant of the suit property. In this
context, the respondent nos. 2 to 7 also
argued that the claim of the petitioner was
barred by the principle of estoppel and
acquiescence. So far as the plea of
respondent nos. 2 to 7 that the claim of
the petitioner was barred by the principle
of estoppel, it is sufficient to note that
mere long standing revenue entries
without any legal sanction or authority of
law confer no right on the recorded
person. A Division Bench of this Court in
Shri Ram and Ors. Vs. Deputy Director
of Consolidation, Allahabad and Ors.
2011 (4) ADJ 289 (DB) held, in the
context of Section 49 of the Uttar Pradesh
Consolidation of Holdings Act, 1953, that
there was no public policy which
prohibited a person to seek reversal of
state of affairs continuing for scores of
years if he had a right to do so. It was held
that a person can claim his right to a
property even after a lapse of considerable
period, which right he had neither
abandoned nor relinquished, provided the
claim is not barred by any law of
limitation.

15. The counsel for the respondents
has not brought to the notice of the Court
any statutory provision attaching finality
to the settlement of Mr. Waugh in 1942 or
entries in the revenue records as a result
of Section 18 of the Act, 1950. The claim
of the petitioner was also not barred by
any law of limitation as it is not the case
of respondent nos. 2 to 7 that Sagar Dutt
had matured his rights by adverse
possession.
690 INDIAN LAW REPORTS ALLAHABAD SERIES

16. In order to prove family
settlement, the respondent nos. 2 to 7
have relied on the alleged admission of
Bal Mukund. The statement of Bal
Mukund has been annexed with the writ
petition and I have perused the same.
Interestingly,
the
statement
of
Bal
Mukund was disbelieved by the Assessing
Officer and the Appellate Authority in
proceedings under the LLHT Act on the
ground that Bal Mukund had not been
able to establish any severance of joint
family status between himself and Sagar
Dutt. A perusal of the statement of Bal
Mukund does not show that there was any
admission by Bal Mukund of any family
settlement between Bal Mukund, Sukhdei
and Sagar Dutt. In his statement given in
proceedings under the LLHT Act, Bal
Mukund had stated that the suit property
belonged exclusively to Sagar Dutt and
was given to him by Ram Swarup. The
said statement is not an admission of a
family settlement as set-up by the
respondent. An admission has to be clear
and unambiguous and adverse to the
interest of the maker. The proceedings
under the LLHT Act were not between
Sagar Dutt and Bal Mukund and the
statement of Bal Mukund did not
adversely affect his interest in the said
proceedings.
The
statement
of
Bal
Mukund only leads to the inference that
the suit property was gifted or in any way
transferred by Ram Swarup to Sagar Dutt.
It is not the case of respondent nos. 2 to 7
that Sagar Dutt got the suit property
directly from Ram Swarup either as gift
or through any other mode of transfer.
The
statement
of
Bal
Mukund
in
proceedings under the LLHT Act cannot
be characterized as admission of a family
settlement between himself, Bal Mukund
and Sukhdei, i.e., the widow of Ram
Swarup. Evidently, the statement of Bal
Mukund in proceedings under LLHT Act did
not prove the family settlement set-up by
respondent nos. 2 to 7. Further, the statement
of Bal Mukund cannot act as estoppel against
the petitioner as there is nothing on record to
show and there are no findings by the courts
below that Sagar Dutt acted upon the said
statement to his detriment.

17. The first appellate court, relying
on the bills and the receipts relating to the
municipal taxes and the electricity bills
which showed that the bills were jointly
paid by the three sons of Bal Mukund,
held that there was no severance of joint
family status between the three sons of
Bal Mukund and their descendants. The
first appellate court while accepting the
case of the petitioner also took note of the
fact that the tube-well installed on the suit
property was initially registered in the
name of Bal Mukund and after the death
of Bal Mukund, the said tube-well was
registered in the name of the three sons of
Bal Mukund and the different charges
relating to the said tube-well were jointly
paid by the three sons of Bal Mukund and
their descendants. The first appellate
court, after considering the aforesaid
evidence, held that the petitioner was a
co-tenure holder of the suit property along
with the respondents having 1/3 share in
it. The aforesaid evidence does indicate
that there was no ouster of Bal Mukund or
the petitioner from the suit property. The
findings of the first appellate court are
supported by the evidence on record. It is
true that while recording its finding, the
first appellate court did not consider the
alleged
admission
of
Bal
Mukund.
However, as held earlier, the statement of
Bal Mukund was not an admission of any
family settlement and did not prove the
family settlement set-up by respondent
nos. 2 to 7.
2 All. Jai Prakash Vs Board of Revenue & Ors.
691

18. The findings of the first
appellate court were findings of facts and
did not give rise to any question of law.
The weight to be put on a particular piece
of evidence is in the realm of appreciation
of evidence and does not give rise to any
question of law. Even under Section 100
CPC, as it existed prior to the amendment
of
1976,
a
second
appeal
was
maintainable only on a question of law. In
Sree Meenakshi Mills, Madurai Vs.
Commissioner of Income Tax, Madras
(AIR 1957 SC 49), the Supreme Court
referred, with approval, the decision of
Privy Council in Wadi Mohammed Vs.
Mohd. Baksh AIR 1930 PC 1 wherein it
was held that there is no jurisdiction to
entertain a second appeal on ground of
erroneous findings of facts, however,
gross the error may seem to be and the
question whether a fact has been proved
when evidence for and against has been
properly admitted is necessarily a pure
question of fact (Para 21). A reading of
the impugned order dated 4.4.1995 passed
by the Board of Revenue shows that the
Board of Revenue has substituted its own
findings after reversing the findings
recorded by the first appellate court which
the Board of Revenue could not have
done even under Section 100 CPC as it
existed before the Amendment Act, 1976.

19. In its order dated 4.4.1995, the
Board of Revenue has held that the first
appellate court had ignored the relevant
evidence and has referred to certain sales
and purchases made separately by the
parties to infer that there was a severance of
joint family status. The counsel for the
respondents has also handed over the
statement given by the petitioner before the
trial court to show that the petitioner had
purchased
certain
properties.
I
have
carefully gone through the order passed by
the trial court and find that the different sale
deeds referred as evidence by the trial court
were executed either before the death of
Ram Swarup or were executed by Bal
Mukund. The sale deeds executed before
the death of Ram Swarup have no
evidentiary value to decide the rights of the
parties regarding the suit property because,
as held earlier, the said sale deeds only
prove that Bal Mukund and Ram Swarup
had separated and there was a severance of
joint family status between Bal Mukund and
Ram Swarup and the issue as to whether
Bal Mukund and Ram Swarup continued as
a hindu undivided family till the death of
Ram Swarup is not relevant for deciding the
dispute between the parties. So far as the
sale deeds executed by Bal Mukund are
concerned, the same also do not help the
respondent nos. 2 to 7 because the said sale
deeds, as evident from the order of the trial
court were executed in 1953 or 1959. Under
the Act, 1950, Bal Mukund had absolute
right over his Bhumidhari plots including
the right to transfer and the sale deeds
would not adversely affect the rights of the
petitioner in relation to the suit property.
The sale deeds allegedly executed by the
petitioner and referred in the statement of
the petitioner handed over to this Court by
the counsel for the respondents show that
the petitioner had purchased certain plots
from his independent income and has stated
that the said plots were purchased by him
and Shyam Lal from their independent
income. A member of a hindu undivided
family is not deprived of his right to
purchase property from his independent
income and in his own name and not mixup the same with the joint family property.

20. In view of the reasons given
above, the evidence relied upon by the
Board of Revenue in its impugned order
were not relevant to decide the title of the
692 INDIAN LAW REPORTS ALLAHABAD SERIES
parties in the suit property and the
findings of the first appellate court could
not have been set-aside on the ground that
the said evidence were not considered by
the first appellate court. There was no
perversity in the findings of the first
appellate court empowering the Board of
Revenue to interfere in the said findings
exercising its powers under Section
331(4) of the Act, 1950 read with Section
100 CPC. Evidently, the Board of
Revenue had exceeded its jurisdiction
under Section 331(4) of the Act, 1950
read with Section 100 CPC by interfering
in the findings of the first appellate court
and the impugned order of the Board of
Revenue is contrary to law.

21. For the aforesaid reasons, the
order dated 4.4.1995 passed by the Board of
Revenue in Second Appeal No. 124 of
1993-94 is liable to be set-aside and is,
hereby, quashed. The order dated 27.7.1994
passed by the first appellate court in Appeal
No. 104 of 1993-94 is restored.

22. The writ petition is allowed.
----------

(2019)10ILR A 692

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.08.2019

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-B No. 4488 of 1987

Ram Dular ...Petitioner
Versus
D.D.C., Jaunpur & Ors. ...Respondents

Counsel for the Petitioner:
Sri C.P. Srivastava, Sri Adarsh Bhushan,
Sri Anil Bhushan

Counsel for the Respondents:
Sri Mahendra Pratap, Sri R.P. Ram, S.C.

A. U.P. Consolidation of Holdings Act, 1953
- Section - 9(A)(2) - W.P.- filed by Ram Dular -
challenging an order of the DDC - restoring an
order of the C.O- on an objection under Section
9A(2) of the U.P. C H Act- setting aside the order
passed by the S.O.C -without considering the
documents and evidences available on record-in
an arbitrary way-remanded back to DDC for
proper consideration.

Held: - petition succeeds in part and is
allowed to the extent that the impugned order
passed by the Deputy Director of Consolidation
is hereby quashed. The matter is remanded to
the Deputy Director of Consolidation where
Revision shall stand restored to the file of the
Deputy Director of Consolidation to be
determined afresh.

Writ Petition allowed in part (E-8)

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition has been filed
originally by one, Ram Dular S/o Bharos a
native of village Akkipur Post Chhatai Kala
(Shahganj), District Jaunpur challenging an
order
of
the
Deputy
Director
of
Consolidation dated 16.02.1987, whereby
he
has
restored
an
order
of
the
Consolidation Officer dated 05.05.1984
made on an objection under Section 9A(2)
of the U.P. Consolidation of Holdings Act
(for short the 'Act'), setting aside the order
dated 21.08.1986, passed by the Settlement
Officer of Consolidation.

2. Heard Sri Neelabh Srivastava,
Advocate holding brief of Sri Adarsh
Bhushan,
learned
counsel
for
the
petitioner and Sri Ram Prakash Ram,
learned counsel appearing on behalf of