# Ors v. Birbal and Ors."

- **Citation:** (2021) 11 ILRA 649
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-26
- **Bench:** Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ors-v-birbal-and-ors-46601
- **Pages:** 6

## Headnote

650 INDIAN LAW REPORTS ALLAHABAD SERIES
Eeppak Jaiswal, Azad Khan, B.N. Rai, L.M. Singh,
Manas Bhargava, Manoj, Manoj Srivastava, P.K. Jain,
Pankaj Agarwal, Sufia Saba

A. Civil Law - Code of Civil Procedure, 1908 -
Order 41 - Rule 31 - Point of determination -
Necessity in passing the judgment - Held, the
appellate Court has appreciated and discussed
all the evidence on record and has considered
the
relevant
points
which
arose
for
adjudication. Although, no specific point has
been framed by the appellate Court but there is
substantial compliance of the Provisions of
Order 41 Rule 31 C.P.C. and there is no
necessity or sufficient ground to remand the
matter. (Para 3)
B. Code of Civil Procedure, 1908 - Section 100
- Second Appeal - Substantial question of law
- Disputed plot was an agricultural land -
Plaintiff's name was mutated in the revenue
record on the basis of will deed - Appellate
court reversed the finding of trial court on the
issue of plaintiff's ownership - Held, the
learned appellate court has rightly held that
plaintiff is owner of the disputed property as he
is recorded tenure holder and there is no
illegality or perversity in the aforesaid finding -
Respondent-plaintiff is recorded tenure holder
in possession of the disputed property. The
appellant/defendant has failed to prove that
disputed land was acquired by him - Held
further, the findings recorded by the learned
appellate court are according to evidence and
just and proper. (Para 7 and 11)
Appeal dismissed. (E-1)

## Text

11 All. Kanpur Development Authority Kanpur Vs. Gafar & Anr.
649
registered document, therefore, prima facie
would be valid in law. The onus of proof, thus,
would be on a person who leads evidence to
rebut the presumption. In the instant case,
Respondent 1 has not been able to rebut the said
presumption."

36. The judgment in the case of Prem Singh
(supra) has been followed in the recent judgment in
the case of Rattan Singh (supra), which reads as
under:-

"32. To appreciate the findings arrived at
by the Courts below, we must first see on whom the
onus of proof lies. The record reveals that the
disputed documents are registered. We are,
therefore, guided by the settled legal principle that a
document is presumed to be genuine if the same is
registered, as held by this Court in Prem Singh and
Ors. v. Birbal and Ors."

37. Though this Court is not required to go into
the factual issues, but this Court while deciding the
present appeal, has carefully gone through the
pleadings as well as the judgment of the Trial Court
as well as that of the Appellate Court. The plaintiffappellant has alleged that he is an illiterate person and
he is not in a position to make his signatures. The
Trial Court as well as the lower appellate court have
dealt with the said issue and in paragraph-12 of the
judgment and decree of the lower Appellate Court,
the following has been observed:

"oknh@vihykFkhZ }kjk viuh izfrijh{kk esa ;g Lohdkj
fd;k gS fd mlus rglhy esa tkdj cSukek dh fy[kk i<+h djokbZ
Fkh rFkk dkxtksa ij viuk vWaxwBk yxk;k FkkA dsnkj flag ,MoksdsV
us rglhy fdjkoyh us cSukek fy[kk FkkA oknh }kjk ;g Hkh Lohdkj
fd;k x;k gS fd mlus jftLV~zkj ds ;gkWa Hkh vWaxwBk yxk;k Fkk rFkk
vWxwBk yxk;k FkkA oknh }kjk ;g Hkh Lohdkj fd;k x;k gS fd
cSukeas okys fnu og viuh ethZ ls rglhy vdsyk x;k Fkk rFkk
dksbZ u'kk ughsa djrk gSA rglhy esa og iw.kZ gks'k gok'k esa FkkAß

38. So far as, the issue in relation to the
payment of Rs.1,20,000/- is concerned, the lower
Appellate Court in its judgment and decree dated
25.2.2017 has recorded a clear cut finding as under: -

"izfrokfnuh ds ifr us oknh ds lkFk dkbZ /kks[kk/kM+h
ugha dhA oknh us cSukek ls igys ?kj ij dqy jde cSukek le{k
xokgku gkfl;k xokg pUnzHkku mQZ lksyqvk ds gkFk ls
1]20]000@:i;s 'kkUrh Lo:i iq= Jh ckcw yky ;knjke v/;kid
ds lkeus izkIr fd;s FksA oknh ds dgus ij gh cSukek ds dkxt
rS;kj fd;s x;s vkSj oknh us le{k xokgku cSukek ds dkxtkr ij
vius vWaxwBk fu'kkuh fd;s FksA lc jftLV~zkj fdjkoyh }kjk oknh ds
dkxtkr ij vius vWaxwBk fu'kkuh fd;s FksA lc jftLV~zkj fdjkoyh
}kjk oknh dks cSukek i<+dj lquk;k Fkk vkSj izfrQy izkIr djus dh
ckor~ iwNk Fkk rc oknh us fodzhr jde 1]20]000@& :i;s izkIr
gksus dh LohdkjksfDr dh] mlds ckn lc jftLV~zkj egksn; fdjkoyh
}kjk cSukek iathd`r fd;k x;kA"

39. After going through the pleadings set forth
in the present appeal, as well as the arguments so
advanced by the learned counsel for the plaintiffappellant, this Court finds that no substantial question
of law is involved in the present appeal purported to
be under Section 100 of CPC, 1908 and thus, the
present appeal is liable to be dismissed at the stage of
admission under Order 41 Rule 11 of CPC, 1908.

40. Accordingly, the present second appeal
under Order 41 Rule 11 of CPC is dismissed at the
admission stage.

41. Cost made easy.
----------
(2021)12ILR A649
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.11.2021

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Second Appeal No.862 of 2001

Kanpur Development Authority Kanpur
 ...Appellant
Versus
Gafar & Anr. ...Respondents

Counsel for the Appellant:
Man Mohan Das Agarwal, Deepak Jaiswal, Shashi
Shekhar Mishra

Counsel for the Respondents:
650 INDIAN LAW REPORTS ALLAHABAD SERIES
Eeppak Jaiswal, Azad Khan, B.N. Rai, L.M. Singh,
Manas Bhargava, Manoj, Manoj Srivastava, P.K. Jain,
Pankaj Agarwal, Sufia Saba

A. Civil Law - Code of Civil Procedure, 1908 -
Order 41 - Rule 31 - Point of determination -
Necessity in passing the judgment - Held, the
appellate Court has appreciated and discussed
all the evidence on record and has considered
the
relevant
points
which
arose
for
adjudication. Although, no specific point has
been framed by the appellate Court but there is
substantial compliance of the Provisions of
Order 41 Rule 31 C.P.C. and there is no
necessity or sufficient ground to remand the
matter. (Para 3)
B. Code of Civil Procedure, 1908 - Section 100
- Second Appeal - Substantial question of law
- Disputed plot was an agricultural land -
Plaintiff's name was mutated in the revenue
record on the basis of will deed - Appellate
court reversed the finding of trial court on the
issue of plaintiff's ownership - Held, the
learned appellate court has rightly held that
plaintiff is owner of the disputed property as he
is recorded tenure holder and there is no
illegality or perversity in the aforesaid finding -
Respondent-plaintiff is recorded tenure holder
in possession of the disputed property. The
appellant/defendant has failed to prove that
disputed land was acquired by him - Held
further, the findings recorded by the learned
appellate court are according to evidence and
just and proper. (Para 7 and 11)
Appeal dismissed. (E-1)
(Delivered by Hon'ble Syed Aftab Husain Rizvi, J.)

1. This second appeal is directed against
the judgment and decree dated 9.1.2001 passed
by 17th Additional District Judge, Kanpur in
Civil Appeal No. 376 of 1998 Gaffar Vs.
Kanpur Development Authority and another. By
the impugned judgment the first appellate court
has allowed the appeal and set-aside the
judgment and decree of trial court in O.S. No.
1552 of 1989 Gaffar Vs. Kanpur Development
Authority and has decreed the original suit and
restrained the respondents (defendants) from
interfering in the peaceful possession of the
appellant-plaintiff on the disputed property.

2. The brief facts are that respondent filed
Original Suit No. 1552 of 1989 Gaffar Vs.
Chairman, Kanpur Develpment Authority and
another for permanent injunction. In the plaint it
was alleged that plaintiff is absolute owner and
landlord of field no. 797 ad-measuring 6 bigha
13 biswa situated in village Chandari, Kanpur
Nagar, in pursuance of a will deed duly
registered and the name of the plaintiff has been
duly mutated in the revenue records of Khatauni
for 1391 Fasli to 1396 Fasli as per order of
Tehsildar dated 14.9.1987. The plaintiff is in
peaceful possession upon the said land and has
got his Pakka house therein which is inexistence for last more than forty years besides
well, tomb and garden. The defendant no. 2
being a Cooperative Housing Society is not at all
the owner and landlord of the disputed land. The
defendant no. 2 by executing a fictitious sale
deed is now approaching the field owned and
possessed by the plaintiff to deliver the
possession of the land of the plaintiff forcibly
and illegally and for that purpose defendant no.
2 is making survey of the land owned and
possessed by the plaintiff. Defendant no. 1
through his employees is also making survey.
The defendants have no right, title or interest
upon the land owned and possessed by the
plaintiff and plaintiff is in lawful possession
since long back and prior to that the
predecessors in interest of the plaintiff were in
peaceful possession without interruption.

The defendant no. 1 filed written
statements in which it denied the plaint
allegations and further pleaded that Arazi No.
797 ad-measuring 17 bigha and 9 biswa situated
in Chandari area was acquired vide award no. 38
of 25-3-1963 and possession of the acquired
land was obtained on 20.8.1963. The defendant
has a plan/scheme over the disputed land for
11 All. Kanpur Development Authority Kanpur Vs. Gafar & Anr.
651
Basic Primary School. The plaintiff has
trespassed
over
the
disputed
land
and
constructed a Pakka house and a kitchen with
boundary wall without any authority/permission,
right, title or interest. The said construction is
without any approved map and no duly
sanctioned plan has been obtained by the
plaintiff for construction from the map section.
The construction erected on the plot can be
demolished as unauthorized construction and is
liable to be demolished under the Provisions of
Nagar Mahapalika Act, 1959. The acquired land
has already been developed and an impediment
is caused due to unauthorized construction. The
trial court framed following 8 issues:

1. Whether suit is under valued and
court fees paid is insufficient ?

2. Whether the plaintiff is owner in
possession of Khasra No. 797 area 6 bigha 13
biswa village Chandari, Tehsil and District Kanpur
and in possession and his forty years old
construction are situated on it ?

3. Whether defendant no. 2 has any right
to transfer the disputed property ?

4. Whether the disputed property has
been validly acquired by the defendant no. 1 ? If
yes, then how in which manner.

5. Whether any valid notice under
section 4 of Land Acquisition Act has been issued
under Land Acquisition Act ? If yes, then its effect.

6. Whether Nagar Mahapalika has given
any notice in relation to construction ? If yes, then
its effect.

7. Whether construction of plaintiff is
illegal ?

8. Whether plaintiff is entitled to any
relief ?

After taking evidence the learned trial
court decided issue nos. 2, 3 and 4 against the
plaintiff and on that basis dismissed the suit vide
judgment and decree dated 6.11.1998. Aggrieved
by it the plaintiff preferred Civil Appeal No. 376
of 1989. The first appellate court by the impugned
judgement and decree dated 9.1.2001 allowed the
appeal, set-aside the judgment and decree of trial
court and decreed the original suit of appellantplaintiff and passed an injunction decree in favour
of plaintiff restraining the defendants not to
interfere in the possession of the plaintiff upon
disputed property.

3. Learned counsel for the appellant
raised a preliminary argument that the
judgment of appellate court is not consistent
with the Provision of Order 41 Rule 31 C.P.C.
No point for determination has been framed,
hence, judgment is not valid judgment under
the Provision of Order 41 Rule 31 C.P.C.
Learned counsel on the aforesaid point cited
Bhagirath Vs. Ram Chandra and others
Second Appeal No. 43 of 1996 decided on
11.4.2019, and prayed that on the aforesaid
ground the judgment and decree passed by the
appellate court be set-aside and the matter be
remanded back to the first appellate court for a
fresh decision.

In para 3 of the aforesaid judgment
this Court has observed that :

"How the regular first appeal is to be
disposed of by the appellate Court/High Court
has been considered by this Court in various
decisions. Order 41 C.P.C. deals with appeals
from original decrees. Among the various
rules, Rule 31 mandates that the judgment of
the appellate Court shall state:

(a) the points for determination;

(b) the decision thereon;
652 INDIAN LAW REPORTS ALLAHABAD SERIES

(c) the reasons for the decision; and

(d) where the decree appealed from is
reversed or varied, the relief to which the
appellant is entitled."

In the aforesaid judgment itself in para
no. 32 this Court has relied on the judgment of
Supreme Court in the case of H. Siddiqui V. A.
Ramalingam 2011 (4) SCC 240 and has quoted
para 21 of the aforesaid judgment which is as
follows:

"The
said
provisions
provide
guidelines for the appellate Court as to how the
Court has to proceed and decide the case. The
provisions should be read in such a way as to
require that the various particulars mentioned
therein should be taken into consideration. Thus,
it must be evident from the judgment of the
appellate Court that the Court has properly
appreciated the facts/evidence, applied its mind
and decided the case considering the material on
record.
It
would
amount
to
substantial
compliance of the said provisions if the appellate
Court's judgment is based on the independent
assessment of the relevant evidence on all
important aspect of the matter and the findings
of the appellate Court are well founded and quite
convincing. It is mandatory for the appellate
Court to independently assess the evidence of
the parties and consider the relevant points
which arise for adjudication and the bearing of
the evidence on those points."

From the perusal of the judgment of
the appellate Court it is clear that the appellate
Court has appreciated and discussed all the
evidence on record and has considered the
relevant points which arose for adjudication.
Although, no specific point has been framed by
the appellate Court but there is substantial
compliance of the Provisions of Order 41 Rule
31 C.P.C. and there is no necessity or sufficient
ground to remand the matter.

4. Following are substantial questions of
law for disposal of this second appeal:

(i) Whether the first appellate court
misinterpreted and misconstrued the evidence
led by the parties and has relied on any
inadmissible evidence and has ignored any
admissible evidence ?

(ii) Whether the findings recorded by
the first appellate court are perverse and based
on conjuncture and surmises ?

5. Learned counsel for the appellant firstly
contended that respondent/plaintiff has filed the
original suit on the basis of will deed but the
said document in original was never produced
and duly proved before the trial court. The trial
court has given the finding in this respect against
the plaintiff but the first appellate court without
any good reason has set-aside the aforesaid
finding. Learned counsel also contended that
there is no documentary evidence on record
about the title of the plaintiff. The title of
plaintiff was not proved with any cogent
evidence but the learned appellate court has
given the finding that plaintiff is owner in
possession of the disputed property. The finding
of the appellate court is perverse and illegal.

6. Learned counsel for the respondents on
the other hand contended that will in favour of
plaintiff is a registered document which was
filed in other case. Plaintiff has filed its certified
copy. Learned counsel also contended that
plaintiff is recorded tenure holder of disputed
Khasra no. 797 area 6 bigha 13 biswa and has
filed Khatauni which is the document of title, so
the title of the plaintiff is duly proved.

7. From the material on record it appears
that disputed plot was an agricultural plot and
recorded in the name of legal representative of
its previous owner Suleman. On the basis of
registered will plaintiff got his name mutated in
11 All. Kanpur Development Authority Kanpur Vs. Gafar & Anr.
653
the revenue records and plaintiff has filed the
extract of the Khatauni in which the order of
mutation is recorded in his favour. Plaintiff has
also filed the copy of the order of Naib Tehsildar
passed in mutation proceeding on the basis of
which his name has been mutated in the revenue
records.
The
validity
of
this
document
(Khatauni) has not been challenged at any stage
by the defendants or any other person. So from
the evidence on record it is clear that plaintiff is
recorded tenure holder and his name is duly
recorded in the revenue record (Khatauni) which
is a document of title. It is also well settled that
civil court can not decide the question of title
regarding agricultural plot and that is sole
jurisdiction of revenue courts. There was no
necessity to file original will deed or got it
proved before the trial court. The said
proceeding has been duly conducted before the
competent court of Naib Tehsildar and on its
basis the name of plaintiff is entered in the
revenue records. It appears that learned trial
court has lost the aforesaid legal aspect and has
observed that plaintiff has not filed the original
will and has not got it proved before the trial
court and on this basis has rejected his claim of
ownership. The aforesaid finding of the trial
court was illegal. The learned appellate court has
rightly held that plaintiff is owner of the
disputed property as he is recorded tenure holder
and there is no illegality or perversity in the
aforesaid finding. The learned trial court has
also held that plaintiff is not in possession of
disputed property observing that he has not
disclosed the duration of his construction on the
disputed property. The learned trial court has
also disbelieved the other evidence produced by
the plaintiff regarding possession. This finding
of the learned trial court is also bad in law. The
defendant no. 1 in his written statement has
admitted the constructions of the plaintiff. So
from the admission of the defendant no. 1 the
possession of the plaintiff on the disputed
property stands proved and no other evidence at
all was required. The finding in this regard
recorded by the appellate court thus is according
to material on record and proper and legal.

8. Learned counsel for the appellant further
contended that Kanpur Development Authority
has acquired the disputed Khasra No. 797 in the
year 1967. The defendant has filed the relevant
document in this regard. The learned trial court
on the basis of evidence produced by the
defendants has given the finding that the
disputed land was acquired by the Kanpur
Development Authority in the year 1967, so
plaintiff has no right, title or interest in the
disputed property but the first appellate court has
reversed the finding of the learned trial court
without any sound reasoning. The finding
recorded by the first appellate court in this
regard is also perverse and illegal.

9. Learned counsel for the respondent
submitted that from the document produced by
the defendants it is proved that Kanpur
Development Authority has acquired only 12
bigha 9 biswa area of Khasra no. 797 and
remaining 6 bigha and 13 biswa area was not
acquired. There is no evidence on record to
show that appellant-defendant has acquired the
entire area of Khasri No. 797. Learned counsel
also contended that in possession certificate and
other
documents
related
to
acquisition
proceedings the area acquired of Khasra No. 797
is mentioned as 11 bigha and 9 biswa only. The
plaintiff has also filed a certificate issued by the
officer of appellant/defendant in which it is
specifically mentioned that 6 bigha and 13 biswa
area of Khasra No. 797 has not been acquired by
Kanpur Development Authority. The finding
recorded by the learned trial court in this regard
was against the evidence on record and has
rightly been reversed by the first appellate court.

10. The defendant no. 1 in his written
statement has pleaded that Arazi no. 797 admeasuring 17 bigha and 9 biswa situated in
Chandari area was acquired vide award no. 38 of
654 INDIAN LAW REPORTS ALLAHABAD SERIES
25.3.1963. The possession of the acquired land
was obtained on 20.8.1963. The aforesaid
pleading of defendant no. 1 is not proved by the
documents filed by the defendant no. 1 because
in the possession certificate the acquired area of
Khasra No. 797 Minjumla is recorded as 11
bigha and 9 biswa only. There is no evidence on
record to prove that 17 bigha and 9 biswa area of
Arazi No. 797 was acquired by the Kanpur
Development Authority as pleaded in the written
statement of defendant no. 1. Contrary to it there
is letter no. D/12/AA IPL/87 dated 27.7.1987
issued under the signature of Executive Engineer
(Planning) Kanpur Development Authority,
Kanpur addressed to plaintiff Gaffar in which it
is mentioned that, "you are hereby informed that
Arazi No. 797 village Chandari area 6 bigha and
13 biswa has not been acquired by the Kanpur
Development Authority." The learned trial court
has misread the documentary evidence in this
regard. The observation of the learned trial court
that
plaintiff
himself
has
admitted
the
acquisition of land is also misconstrued because
the plaintiff has stated that Kanpur Development
Authority has acquired only 11 bigha and 9
biswa of Arazi No. 797. There is no admission
of plaintiff that 17 bigha and 9 biswa area of
Arazi No. 797 was acquired by Kanpur
Development Authority or the disputed property
was
acquired
by
Kanpur
Development
Authority. The finding of learned trial court due
to above reason was incorrect and illegal. The
learned appellate court has rightly appreciated
the evidence on this point also and finding
recorded by the learned appellate court that
Kanpur Development Authority has acquired
only 11 bigha and 9 biswa of Arazi No. 797 is
just and proper. There is no illegality or
perversity in the aforesaid finding of the learned
first appellate court.

11. From the evidence on record it is
proved that respondent-plaintiff is recorded
tenure holder in possession of the disputed
property. The appellant/defendant has failed
to prove that disputed land was acquired by
him. The appellant-defendant has further
admitted the possession of the respondentplaintiff on the disputed property. The
learned trial court has failed to properly
appreciate the evidence on record and the
judgment and decree passed by the learned
trial court was erroneous. The findings
recorded by the learned appellate court on
the aforesaid issues
are according to
evidence and just and proper.

12. The learned appellate court has neither
misinterpreted nor misconstrued the evidence
led by the parties and has also not relied on any
inadmissible evidence and has not ignored any
admissible evidence. There is no perversity or
illegality in the findings recorded by the learned
appellate court. Hence, both the question of law
framed are decided against the appellant. This
second appeal has no merit and is liable to be
dismissed.

Accordingly, the second appeal is
dismissed.

Parties shall bear their own cost.
----------
(2021)12ILR A654
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.11.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Government Appeal No. 426 of 2021

State of U.P. ...Appellant
Versus
Dharmendra & Ors. ...Respondents

Counsel for the Appellant:
A.G.A.