# Prem Kumar & Ors v. Subhash Chand & Ors

- **Citation:** (2024) 12 ILRA 85
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-11
- **Case number:** Second Appeal No. 512 of 2000
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-kumar-ors-v-subhash-chand-ors-51362
- **Pages:** 27

## Headnote

A. Tenancy Law - Eviction - Uttar Pradesh
Consolidation of Holdings Act, 1953 - Section
49 - Uttar Pradesh Zamindari Abolition and
Land Reforms Act, 1950 - Section 331 - Specific
Relief Act, 1963 - Section 34 - Civil Procedure
Code, 1908 - Order XXXIX Rule 2-A.

Bar under Section 34 of S.R. Act - The bar u/s
34 of the Act comes into play when declaration
is claimed by the plaintiff as regards any legal
character or to any right as to the property and
he omits to claim further relief than a mere
declaration of title.

Whether in the face of the admitted position of
plaintiffs' ouster since prior to the suit and the
rejection of plaintiffs' application for amendment
by addition of a prayer for possession of the
disputed land on the ground of the plea being
barred by limitation, the suit is barred by section
34 of Specific Relief Act and the finding of the
lower appellate court to the contrary is illegal and
untenable?

Section 34 finds place in Chapter VI of the Act titled as
"DECLARATORY
DECREES"
whereas
Chapter
V
contains
provisions
for
"CANCELLATION
OF
INSTRUMENTS" and Section 31 is placed under this
Chapter. It is a provision which is invoked by any
person against whom a written instrument is void or
voidable and he has a reasonable apprehension that
such instrument, if left outstanding, may cause him
serious injury. The authorities cited on behalf of rival
sides on this aspect, when carefully appreciated, the
court finds that the suit in question, being a
simplicitor suit for cancellation of sale deed and
no relief of declaratory rights u/s 34 having
been claimed, the suit squarely falls under
Chapter V of the Act and has no concern with
Chapter VI thereof. Hence, irrespective of rejection
of amendment application at appellate stage in 1998,
whereby the plaintiff was precluded from amending
his plaint by incorporating relief of possession, the suit
was very much maintainable u/s 31 of the Act.
Therefore, first question is answered in favour of the
respondents in the manner that the suit was not
barred by Section 34 of S.R. Act. (Para 37)

B. Bar u/s 49 of the U.P. CH. Act - (1) Oral
St.ment of a witness cannot replace the
statutory
requirement
of
issuance
of
notification, either in relation to initiation of
consolidation operations or their closure.

Whether in the face of the fact that Jethanand alone was
recorded as the Bhumidhar of the land during
consolidation operations and the name of the second
appellant as Vendee of Jethanand under the sale-deed
dated 23.8.1968 was also mutated during those
operations under orders of consolidation authorities, the
plaintiff's claim to be co-bhumidhars with Jethanand is
barred by Section 49 Consolidation of Holdings Act?

U.P. C.H. Act being the Statute governing all the
aspects
qua
consolidation,
recognizes
both
commencement
and
closure
of
consolidation
operations by issuance

## Text

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12 All. Prem Kumar & Ors. Vs. Subhash Chand & Ors.
85
----------
(2024) 12 ILRA 85
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.12.2024

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Second Appeal No. 512 of 2000

Prem Kumar & Ors. ...Appellants
Versus
Subhash Chand & Ors. ...Respondents

Counsel for the Appellants:
K.P. Upadhyay, Amitabh Agarwal, Ayush Jain,
B.N.Agrawal, K.S.Chauhan, Madan Lal Rai, Manish
Kumar
Nigam,
Munna Pandey, Murlidhar,
N.C.Tripathi, P.K. Jain, P.K.Srivastava, R.P. Singh,
Rahul Sahai, Ram Prakash Srivastava, S.K.
Srivastava, Sanjay Agrawal, Srijan Mehrotra

Counsel for the Respondents:
Manish Goyal, Archit Mehrotra, Devansh Misra,
M.K. Sharma, Nalin Kumar Sharma, R.P. Singh,
S.C., S.K. Singh, Saumitra Dwivedi

A. Tenancy Law - Eviction - Uttar Pradesh
Consolidation of Holdings Act, 1953 - Section
49 - Uttar Pradesh Zamindari Abolition and
Land Reforms Act, 1950 - Section 331 - Specific
Relief Act, 1963 - Section 34 - Civil Procedure
Code, 1908 - Order XXXIX Rule 2-A.

Bar under Section 34 of S.R. Act - The bar u/s
34 of the Act comes into play when declaration
is claimed by the plaintiff as regards any legal
character or to any right as to the property and
he omits to claim further relief than a mere
declaration of title.

Whether in the face of the admitted position of
plaintiffs' ouster since prior to the suit and the
rejection of plaintiffs' application for amendment
by addition of a prayer for possession of the
disputed land on the ground of the plea being
barred by limitation, the suit is barred by section
34 of Specific Relief Act and the finding of the
lower appellate court to the contrary is illegal and
untenable?

Section 34 finds place in Chapter VI of the Act titled as
"DECLARATORY
DECREES"
whereas
Chapter
V
contains
provisions
for
"CANCELLATION
OF
INSTRUMENTS" and Section 31 is placed under this
Chapter. It is a provision which is invoked by any
person against whom a written instrument is void or
voidable and he has a reasonable apprehension that
such instrument, if left outstanding, may cause him
serious injury. The authorities cited on behalf of rival
sides on this aspect, when carefully appreciated, the
court finds that the suit in question, being a
simplicitor suit for cancellation of sale deed and
no relief of declaratory rights u/s 34 having
been claimed, the suit squarely falls under
Chapter V of the Act and has no concern with
Chapter VI thereof. Hence, irrespective of rejection
of amendment application at appellate stage in 1998,
whereby the plaintiff was precluded from amending
his plaint by incorporating relief of possession, the suit
was very much maintainable u/s 31 of the Act.
Therefore, first question is answered in favour of the
respondents in the manner that the suit was not
barred by Section 34 of S.R. Act. (Para 37)

B. Bar u/s 49 of the U.P. CH. Act - (1) Oral
St.ment of a witness cannot replace the
statutory
requirement
of
issuance
of
notification, either in relation to initiation of
consolidation operations or their closure.

Whether in the face of the fact that Jethanand alone was
recorded as the Bhumidhar of the land during
consolidation operations and the name of the second
appellant as Vendee of Jethanand under the sale-deed
dated 23.8.1968 was also mutated during those
operations under orders of consolidation authorities, the
plaintiff's claim to be co-bhumidhars with Jethanand is
barred by Section 49 Consolidation of Holdings Act?

U.P. C.H. Act being the Statute governing all the
aspects
qua
consolidation,
recognizes
both
commencement
and
closure
of
consolidation
operations by issuance of notifications respectively
u/Ss 4 and 52 thereof and their publication in the
official gazette and by no other manner. One may
visualize that in case valuable property rights involving
these aspects are decided merely on the basis of oral
testimony of witnesses, it would play a havoc and
statutory requirements would be thrown into air.
Therefore, unless there are statutory notifications
published in official gazettes as required under the
afore-quoted provisions, no presumption can be
drawn either qua commencement or closure of
consolidation operations. (Para 24)

(2) Section 49 of the U.P.C.H. Act is a provision
for transitory suspension of jurisdiction of civil
and revenue court only during the period when
consolidation proceedings are pending. The suit
86 INDIAN LAW REPORTS ALLAHABAD SERIES
in question having been filed during consolidation
operations and there being no oral or documentary
evidence on record that at any stage of proceedings
u/s 12 or otherwise, any objections were raised by the
plaintiffs against the claim raised by the appellants,
the suit was clearly barred u/s 49 of the U.P.C.H. Act.
In view of the above, second question is answered in
favour of the appellants holding that the suit was
barred by Section 49 of the U.P. C.H. Act. (Para 36)

C. Bar u/s 331 of the U.P.Z.A. & L.R. Act - Suit
for cancellation of sale deed is covered by
Section 31 of the S.R. Act and is unaffected by
the bar u/s 331 of the U.P. Z.A. & L.R. Act.

Whether the pith and substance of plaintiffs' suit being
a declaration of their co-Bhumidhar rights in the
disputed land, the suit is exclusively cognizable by
Revenue court in view of Section 331 Z.A. and L.R.
Act and the fact that cancellation of the sale deed as
prayed for does not make any difference to this
position?

Therefore, the third question is answered in favour of
the respondents holding that the suit was not barred
by Section 331 of the U.P. Z.A. & L.R. Act. (Para 38)

D. HUF/Joint Hindu Family property - (1) When
a joint family is found to be in possession of
nucleus sufficient to make the impugned
acquisitions, then a presumption arises that the
acquisitions standing in the names of the
persons who were in the management of the
family properties are family acquisitions. (Para
39)

Whether the finding regarding the funds for the sale
deed dated 6.6.1953 being joint family fund provided
by the grand father Jhanda Ram is arbitrary and
legally perverse and whether even assuming this to be
so, this cannot in the circumstances of this case
legally suffice for the conclusion that Jethanand's sons
were co- bhumidhars with him?

Where it is established or admitted that the
family which possessed joint property which
from its nature and relative value may have
formed sufficient nucleus from which the
property in question may have been acquired,
the presumption arises that it was the joint
property and the burden shifts to the party
alleging
self-acquisition
to
establish
affirmatively that the property was acquired
without the aid of the joint family funds. (Para
40, 41)

There is an essential distinction between
burden of proof and onus of proof: burden of
proof lies upon the person who has to prove a
fact and it never shifts, but the onus of proof
shifts. The circumstances do not alter the
incidence of the burden of proof but having
regard to the circumstances of a particular
case, the onus of proof may be shifted. Such a
shifting of onus is a continuous process in the
evaluation of evidence. (Para 42)

In the present case, the Court is not in a position to
accept the bare plaint version in absence of any
cogent evidence regarding formation of Joint Hindu
Family or acquisition of property therefrom. Therefore,
findings recorded by the courts below to the effect
that funds in the sale deed dated 06.06.1953 were
Joint Hindu Family fund provided by JR are perverse
and, consequently, the conclusion drawn by the courts
that sons of JN were co-bhumidhars with him is wholly
unsustainable. (Para 45)
(2) For a question of law to be involved in the
case, its foundation has to be laid in the
pleadings and the question should emerge from
the sustainable findings of fact arrived at by the
Court of fact.

The Supreme Court condemning the approach of the
High Court in considering the question which was not
supported by pleadings or evidence on record has
held that such an approach was contrary to the
principles governing second appellate jurisdiction u/s
100 CPC. Therefore, this Court refrains itself from
examining the validity of sale on that pretext, also for
the reason that it is not covered by questions framed
in the appeal nor does this Court feel it appropriate to
frame any additional question of law in this regard in
absence of necessary material on record. (Para 46)

E. Section 144 CPC incorporates only a part of
the general law of restitution. It is not
exhaustive. The jurisdiction to make restitution
is inherent in every Court and will be exercised
whenever the justice of the case demands. (Para
55)

Since, this Court is reversing the decree impugned
herein holding that cancellation of sale deed was not
according to law and the appellants having been
dispossessed on that basis, the application u/s 144
CPC stands allowed. (Para 56)

The trial court as well as the first appellate court have
grossly erred in presuming that the property in dispute
had been purchased by JR in the year 1953 from joint
family fund and that members of the HUF were
tenants in common. The judgments impugned are
based upon misreading of the pleadings and lack of
proper scrutiny of evidence on record as well as
misinterpretation of the law applicable to the concept
of jointness of a Hindu family and acquisition of
property. Findings that even if the property was
12 All. Prem Kumar & Ors. Vs. Subhash Chand & Ors.
87
recorded in the name of one person only, the other
members would be deemed to have coparcenary
rights intact or that these rights could be conferred on
individuals who were or could be deemed to be actual
tillers of the soil are not according to the facts and the
law governing the case. The Courts have cursorily
decided the issues of jointness vis-à-vis bar u/s
49 of the U.P. C.H. Act without meticulously
examining
the
pleadings
and
oral
and
documentary evidence on record. (Para 47)

Second appeal allowed. Original suit dismissed.
(E-4)

Precedent followed:

1.
Rameshwar
&
ors.
Vs
Deputy
Director
Consolidation, Azamgarh & ors., 2012 (115) R.D.
541 (Para 15)

2. Makhan Singh (D) by Lrs. Vs Kulwant Singh,
(2007) 10 SCC 602 (Para 15)

3. Audhar & ors. Vs Chandrapati & ors., (2003)
11 SCC 458 (Para 15)

4.
D.S.
Lakshmaiah
&
anr.
Vs
L.
Balasubramanyam & anr., (2003) 10 SCC 310
(Para 15)

5. Madan Mohan Mishra Vs Chandrika Pandey
(Dead) by Lrs., (2009) 3 SCC 720 (Para 15)

6. Nagendra Pal Singh Vs Bhadrapal Singh,
2013(7) ADJ 682 (Para 15)

7. U.O.I. Vs Ibrahim Uddin, (2012) 8 SCC 148
(Para 15)

8. Venkataraja Vs Vidyane Doureradjaperumal,
(2014) 14 SCC 502 (Para 15)

9. Ram Balak Singh Vs St. of Bihar & anr., 2024
(4) AWC 3233 (SC) (Para 15)

10. Section 81 of the Indian Evidence Act, 1872
(Para 17)

11. Section 5(c)(ii) of the U.P. C.H. Act read with
Section 45-A (Para 19)

12. Smt. Sitabai & anr. Vs Ramchandra, (1969) 2
SCC 544 (Para 20)

13. T. Ravi & anr. Vs B. Chinna Narasimha & ors.,
(2017) 7 SCC 342 (Para 20)

14. Kiran Devi Vs Bihar St. Sunni Waqf Board &
ors., (2021) 15 SCC 15 (Para 20)
15. Shankar & ors. Vs Surendra Singh Rawat
(dead) through Lrs. & anr., (2021) 20 SCC 425
(Para 20)

16. Smt. Bhuriya & ors. Vs Board of Revenue at
Allahabad & ors., 1970 RD 466 (Para 20)

17. Ram Audh Singh & ors. Vs St. of U.P. & ors.,
1969 ALJ 748 (FB) (Para 20)

18. Suba Singh Vs Mahendra Singh & ors.,
(1974) 1 SCC 418 (Para 20)

19. Karbalai Begum Vs Mohd. Sayeed & anr.,
(1980) 4 SCC 396 (Para 20)

20. Prashant Singh & ors. Vs Meena & ors.,
(2024) 6 SCC 818 (Para 20)

21.
Bhagwan
Dayal
(Since
Deceased)
and
thereafter his heirs and legal representatives
Bansgoal Dubey and anr., Vs Mst. Reoti Devi
(Deceased) and after her death, Mst Dayavati,
her daughter, AIR 1962 SC 287 (Para 20)

22. The St. Bank of Travancore Vs Aravindan
Kunju Panicker & ors., (1972) 4 SCC 274 (Para
20)

23. Ram Awalamb & ors. Vs Jata Shankar & ors.,
1968 SCC Online All 178 (Para 20)

24. Patram Singh (deceased by L.R's.) Vs
Bahadur Singh, AIR 1983 ALL 348 (Para 20)

25. Mata Badal Pandey & anr. Vs The Board of
Revenue & ors., AIR 1976 Allahabad 420 (Para
20)

26. Smt. Ram Rati Vs Gram Samaj Jehwa, AIR
1974 ALL 106 (FB) (Para 21)

27. The Displaced Persons (Claims) Act, 1950
(Act No.44 of 1950) and The Displaced Persons
(Compensation and Rehabilitation) Act, 1954
(Act No.44 of 1954) (Para 22)

28. Narendra Singh & ors. Vs Jai Bhagwan &
ors., 2006 (100) RD 69 (Para 28)

29. Madan Mohan Mishra Vs Chandrika Pandey
(Dead) by Legal Heirs, 2009 (107) RD 2 Supreme
Court (Para 28)

30. Audhar & ors. Vs Chandrapati & ors., (2003)
11 SCC 458 (Para 28)

31. Narender Singh & ors. Vs Jai Bhagwan &
ors., 2005 (9) SCC 157 (Para 28)
88 INDIAN LAW REPORTS ALLAHABAD SERIES
32. Malkhan Singh Vs Sohan Singh & ors.,
AIR 1986 SC 500 (Para 30)

33. Surendra Singh Vs Board of Revenue,
U.P., Agra & ors., 2015 (127) RD 694 (Para
30)

34. Hakam Ali and anr. Vs St. of U.P. & ors.,
2014 (122) RD 463 (Para 30)

35. Smt. Bhagwan Dei (Dead) Through Lrs.
Vs Board of Revenue, U.P. Allahabad & ors.,
2010 (110) RD 747 (Para 30)

36. Ram Audh Singh & ors. Vs St. of U.P. &
ors., 1969 SCC Online All 110 (Para 33)

37. Mangoo Singh & ors. Vs Ram Autar,
2024(9) ADJ 351 (Para 39)

38. Baikuntha Nath Paramanik (dead) by his
L.Rs. & heirs Vs Sashi Bhusan Pramanik
(dead) by his L.Rs. & ors. (1973) 2 SCC 334
(Para 40)

39. Surendra Kumar Vs Phoolchand (dead)
through Lrs. & anr. (1996) 2 SCC 491 (Para
41)

40. Appalaswami Vs Survanarayanamurti, AIR
1947 PC 189 (Para 42)

41. Ratnagiri Nagar Parishad Vs Gangaram
Narayan Ambekar & ors., (2020) 7 SCC 275
(Para 43)

42.
Addagada
Raghavamma
&
anr.
Vs
Addagada Chenchamma & anr., AIR 1964 SC
136 (Para 43)

43. The Displaced Persons (Compensation and
Rehabilitation) Act, 1954 (Act No.44 of 1954)
(Para 46)

44. Govindaraju Vs Mariamman, JT 2005 (2) SC
107 (Para 47)

45. Santosh Hazari
Vs Purushottam Tiwari
(Deceased) By LRs., JT 2001 (2) SC 407 (Para
47)

46. Panchugopal Barua & ors. Vs Umesh
Chandra Goswami & ors., AIR 1997 SC 1041
(Para 47)

47. Mrs. Kavita Trehan & anr. Vs Balsara
Hygiene Products Ltd., (1994) 5 SCC 380 (Para
56)
(Delivered by Hon'ble Kshitij Shailendra, J.)

The Appeal

1. This is defendants' second appeal
arising out of concurrent judgments passed
by the civil court and the first appellate
court whereby Original Suit No.625 of
1971 (Shri Subhash Chand and others vs.
Shri Jetha Nand and others) claiming a
decree for cancellation of a registered sale
deed dated 23.08.1968 (hereinafter referred
to as 'the sale deed') has been decreed and
the Civil Appeal No.641 of 1979 (Shri Shiv
Charan Das and others vs. Shri Subhash
Chand & others) arising therefrom has been
dismissed.

BRIEF FACTS AND PLAINT CASE

2. One Jhanda Ram (in short 'JR')
had four sons namely Ram Chandra
(non-party),
Pyare
Lal
(defendant
No.3) (in short 'PL'), Khanda Ram
(non-party) and Jetha Nand (in short
'JN')
(defendant
No.1).
JN
was
married to Smt. Dhanwanti Devi (in
short 'DD') (defendant No.2). JR died
in the year 1959, PL died in the year
1973 and JN died in the year 1993. PL
had six sons, out of whom, reference of
only three is relevant. These are Prem
Kumar
(Defendant
No.4),
Navin
Kumar (defendant No.5) and Shyam
Kumar.
JN
(since
deceased)
is
succeeded by his five sons Subhash
Chandra and four others who are
respondent Nos.1 to 5 in the instant
second appeal whereas wife and two
sons of late PL are appellants herein.

3. The suit was instituted stating that
plaintiffs were living as members of Joint
Hindu Family (in short 'HUF') with
12 All. Prem Kumar & Ors. Vs. Subhash Chand & Ors.
89
defendant Nos. 1 and 2 and JR was Karta
of the HUF; the said HUF being in
existence since 1947. JR, the grandfather of
plaintiffs, purchased an agricultural land in
district Meerut from HUF funds in the
name of defendant No.1-JN in the year
1953 and also purchased some landed
property separately in the names of his
other sons (non-parties) in the same year.
After the death of JR, defendant No.1-JN
who was subsequently transposed as
plaintiff
No.6
pursuant
to
various
proceedings
referred
to
hereinlater,
managed the land for a couple of years as
Karta of HUF. JN had to go out of Meerut
for business purposes in 1963 and, while
his sons were minors, JN entrusted
management of the said HUF in the hands
of defendant No.3-PL. The village and land
in question came under consolidation
operations in the year 1966, a separate chak
was allotted in the name of JN and PL
continued to supervise cultivation activities
but withheld rabi crops of 1378 Fasli and,
on asking, he denied plaintiffs' entitlement
to the crops stating that the same belonged
to defendants No.4 and 5. The plaintiffs
came to know in May 1971 that HUF land
had been transferred by PL to defendant
Nos.4 and 5 on 23.08.1968 at the strength
of a power of attorney executed by JN.
Assailing the sale deed, it was alleged that
JN had no right to execute the power of
attorney dated 19.06.1963 in favour of PL
in respect of HUF property, the sale was
based upon malafides, collusion, for an
inadequate consideration and was a sham
transaction. Accordingly, a decree for
cancellation of the sale deed was claimed.

DEFENCE

4. Defendants No.1 and 2 (JN and
DD), in their joint written statement,
admitted execution of the sale deed as well
as power of attorney. They denied the
allegations that JN had no right to execute
power of attorney, however, they pleaded
existence of HUF and JR being its Karta
since partition of India and stated that HUF
had a joint fund and the property had been
purchased in the year 1953 by JN, who
executed a power of attorney in favour of
his elder brother PL for the purposes of
looking after the litigation and cultivation
but PL broke the confidence by executing
sale deed in favour of his sons. Seller and
purchaser, i.e PL and his son Navin Kumar,
filed joint written statement denying
constitution of a Joint Hindu Family stating
that JR was a person of ordinary means and
status; his sons, after attaining majority,
separated themselves and used to earn their
own livelihood; PL was separated in 1927;
he plied a taxi for sometime and, thereafter,
got employment in different firms; he then
became a working partner in 1939 in M/s
D.M. Gopi Chand and sons in business of
Canteen; PL started contract of military
canteen at different places; he was assessed
to income tax as an individual; he had
never been a member of a Joint Hindu
Family, nor were his savings sufficient to
purchase the property of HUF; JN was in
service since 1939 to 1947 with M/s DM
Gopi Chand and sons in New Delhi and
then in Bareilly; PL kept JN in his
employment and paid salary to him and in
order to improve financial status of JN, he
sublet the business to him. Since a sum of
Rs.20,000/- was invested by PL in the
business, it was treated as a loan to JN
which was repaid by him to PL during
course of time; PL improved his financial
position
and
decided
to
carry
out
agricultural farming; he purchased the land
in dispute with other lands in 1953 with his
own money and it was not an HUF
property nor was any money paid by JR
towards sale consideration. Since PL could
90 INDIAN LAW REPORTS ALLAHABAD SERIES
not purchase beyond permissible limits, he
purchased the same in the name of his
brother, nephews and sons as benami by
investing his own funds. Real ownership in
the property was pleaded in PL stating that
it was in the name of JN as benami and the
same was never his personal property nor
did it belong to HUF. As regards JR, it was
pleaded that financial condition of JR was
not sound and when he came from Pakistan
to India after partition; he got only two
acres of land in district Gurgaon and a sum
of Rs.1000/- for his property in district
Gurgaon. This land was gifted by JR to the
wives of this three sons. He left nothing on
his death, there was neither HUF nor any
HUF property; JR was living in upper
portion of PL's house No.102, Ghori
Mohalla, Lal Kurti, Meerut Cantt until his
death; JN had no ancestral money nor any
such property which could form nucleus for
the purchase of land. Neither JR nor JN
ever managed the land and it was PL alone
who was continuing in possession of the
land and managing the same making huge
investments
making
the
land
worth
cultivation.

5. After filing of the written statement
by defendants No.3 to 5, the defendants
No.1 and 2 amended their written statement
stating that property was purchased by JR
with the money that he had received as
compensation, also from the income of the
land situated in district Gurgaon and the
money/gold ornaments which he had
brought from Pakistan. After the death of
PL, his legal representatives filed a written
statement taking the same stand and
defended the transaction of disputed sale. It
is quite significant that plaintiffs also
moved an application seeking transposition
of JN (defendant No.1) as plaintiff No.6.
The application was rejected by the trial
court.

TRIAL COURT'S JUDGMENT

6. The trial court framed issues as
regards
cancellation
of
sale
deed,
maintainability of suit and bar of Section
49 of Uttar Pradesh Consolidation of
Holdings Act, 1953 (in short 'the U.P.C.H.
Act') apart from other issues on some
compromise etc. By judgment and order
dated 19.12.1979, it held the property as
belonging to HUF holding that members of
HUF would become and would acquire the
land as tenants in common and inspite of
the fact that their names were not recorded
as co-tenants in the land records, they
would be deemed to be co-tenants. The trial
court arrived at a conclusion that JR had
purchased the land as a Karta of Joint
Hindu Family and acquisition by him was
not as an individual as the land had been
purchased from HUF funds. It decided the
bar under Section 49 of the U.P.C.H. Act
against the defendants and decreed the suit
in part to the extent of 5/6th share of the
plaintiffs
and
1/6th
share
of
JN.
Consequently, the sale deed was cancelled
to the extent of 5/6th share holding the
plaintiffs
as
co-owners
alongwith
defendants No.4 and 5 to the extent of their
5/6th share in the property.

FIRST APPELLATE COURT'S
JUDGMENT

7. Defendants assailed the judgment of
the trial court before the District Judge by
filing Civil Appeal No.641 of 1979, in
which, the plaintiffs filed cross-objections
praying for modification of the decree
requesting for decreeing the suit in toto.
The first appellate court, during the course
of hearing the civil appeal, allowed an
application
on
30.11.1983
seeking
transposition of defendant No.1 (JN) as
plaintiff No.6, also allowed the civil appeal
12 All. Prem Kumar & Ors. Vs. Subhash Chand & Ors.
91
setting aside the trial court's judgment and
remanded the matter for fresh decision by
the trial court. Defendants challenged the
order of remand by filing F.A.F.O. No.92
of 1984 which was allowed by this Court
setting aside the remand order dated
30.11.1983 with the observation that the
first appellate court could have allowed the
application for transposition and have
proceeded with the case itself and, if
necessary, it could remand the relevant
issue to the trial court but should not have
reopened the entire case.

8. After remand by the High Court, an
application for transposition of defendant
No.1-JN as plaintiff No.6 was allowed by
the first appellate court. An additional
written statement was filed by the legal
representatives of deceased PL pleading
that the land was not the acquisition of
HUF on or before the commencement of
consolidation operations; the land in
dispute was recorded in the name of JN as
the sole bhumidhar; no objection was filed
by the plaintiffs for co-bhumidhari rights
during consolidation operations; chak was
carved out in the name of JN as a sole
bhumidhar; Power of Attorney as well as
sale deed was validly executed for adequate
consideration;
plaintiffs
are
not
the
recorded tenure holders and, therefore, they
could not get the relief of cancellation of
sale deed until they were declared as cobhumidhars with JN; since the relief
claimed involves declaration of bhumidhari
rights, the suit was barred by Section 331
of Uttar Pradesh Zamindari Abolition and
Land Reforms Act, 1950 (hereinafter
referred to as 'the U.P. Z.A. & L.R. Act');
plaintiffs Madan Lal and Hira Lal were not
even born in the year 1953 and, hence, they
could not be members of the alleged HUF.
Bar of Section 49 of U.P.C.H. Act was also
pleaded stating that at the time of
notification of the village for consolidation,
JN alone was recorded as sole bhumidhar,
chak was carved out in his own name and
no objection having been filed by the
plaintiffs and the statements published at
the stage of sections 9 and 10 of the Act
having become final, no one had proceeded
to question the entries; proceedings for
recording of names on the basis of the
disputed sale deed were also undertaken by
the consolidation authorities and there
being no objection in the proceedings under
Section 12 of the Act, the civil suit was
barred. Additionally a plea regarding bar of
Section 34 of the Specific Relief Act, 1963
(hereinafter referred to as 'the S.R. Act')
was also taken.

9. The first appellate court framed two
additional points/issues. First, as to whether
the suit was barred by Section 331 of the
U.P. Z.A. & L.R. Act and the court had
jurisdiction to try the suit and, secondly, as
to whether the suit was barred by Section
34 of the S.R. Act. The first appellate court
dismissed Civil Appeal No.641 of 1979 by
the judgment and decree dated 25.03.2000
confirming the decision of the trial court. It
also allowed the cross objections and
decreed the suit in toto cancelling the entire
sale deed.

ADMISSION ORDER IN THE
INSTANT SECOND APPEAL

10. The instant second appeal was
admitted in the year 2000 by a Co-ordinate
Bench of this Court on the following
substantial questions of law:-

"1. Whether in the face of the
admitted position of plaintiffs' ouster since
prior to the suit and the rejection of
plaintiffs' application for amendment by
addition of a prayer for possession of the
92 INDIAN LAW REPORTS ALLAHABAD SERIES
disputed land on the ground of the plea
being barred by limitation, the suit is barred
by section 34 of Specific Relief Act and the
finding of the lower appellate court to the
contrary is illegal and untenable?

2. Whether in the face of the fact
that Jethanand alone was recorded as the
Bhumidhar of the land during consolidation
operations and the name of the second
appellant as Vendee of Jethanand under the
sale-deed dated 23.8.1968 was also mutated
during those operations under orders of
consolidation authorities, the plaintiff's
claim to be co-bhumidhars with Jethanand
is barred by Section 49 Consolidation of
Holdings Act?

3. Whether the pith and substance
of plaintiffs' suit being a declaration of
their co-Bhumidhar rights in the disputed
land, the suit is exclusively cognizable by
Revenue court in view of Section 331 Z.A.
and L.R. Act and the fact that cancellation
of the sale deed as prayed for does not
make any difference to this position?

4.
Whether
the
finding
regarding the funds for the sale deed
dated 6.6.1953 being joint family fund
provided by the grand father Jhanda Ram
is arbitrary and legally perverse and
whether even assuming this to be so, this
can not in the circumstances of this case
legally suffice for the conclusion that
Jethanand's sons were co- bhumidhars
with him? "

LEARNED COUNSEL HEARD

11. I have extensively heard on many
dates Shri Pramod Jain, learned Senior
Counsel assisted by Shri Sanjay Agrawal
for the appellants and Shri Manish Goyal,
learned Senior Counsel assisted by Shri
Archit Mehrotra for the respondents and
perused the original record of courts below.
SUBMISSIONS OF THE
APPELLANTS

12. By referring to the pleadings of the
respective parties as well as statements of
witnesses, it has been vehemently argued
by Shri Pramod Jain, learned Senior
Counsel that the plaintiffs had utterly failed
to
plead
and
prove
formation/creation/existence of a Joint
Hindu Family or HUF. Contention is that
JR was a person of ordinary means and
status and he did not receive any
compensation in lieu of his land. JN stated
in his cross-examination that he had never
been a Karta of Joint Hindu Family and he
deposited tax in his individual capacity. As
regards bar of Section 49 of U.P. C.H. Act,
it has been argued that notification under
Section 4 of the U.P. C.H. Act was issued
in the year 1966 and notification under
Section 52 on 01.09.1973 and, therefore,
the suit instituted in the year 1971 during
the subsistence of consolidation operations
was not maintainable before the civil court
and both the courts have wrongly decided
the said aspect. Further submission is that
at the strength of disputed sale deed, when
proceedings for recording the names of the
transferees (appellants) were initiated and
decided,
no
objections
having
been
preferred by the plaintiff-respondents, the
issues could not be decided by the civil
court as all matters relating to changes and
transfer and rights and interest, for which,
cause of action had not arisen when the
proceedings under Sections 7 to 9 of the
U.P.C.H. Act had started or were in
progress, could only be decided by the
consolidation authorities and not by any
other court including the civil court.
Submission is that CH Forms 5 and 23
were issued in the name of JN as sole
bhumidhar and pursuant to proceedings
under Section 12, CH Form-45 was issued
12 All. Prem Kumar & Ors. Vs. Subhash Chand & Ors.
93
in
appellants'
name.
Pendency
of
consolidation operations was admitted by
JN in the written statement and also in the
cross-examination
of
PW-1
Harish
Sachdeva; neither any son of JN nor
anyone else filed any objections before any
consolidation authorities and possession
was delivered to the appellants after
adjudication of their rights; proceedings
under Section 12 not being summary in
nature in view of the language incorporated
in the provision, finality was attached to
such adjudication and civil court could not,
directly or indirectly, nullify the orders
passed by the consolidation court.

13. As regards bar of Section 34 of the
S.R. Act, submission is that except relief of
cancellation of the sale deed, since no relief
of delivery of possession was claimed by
the plaintiffs, the suit was barred under
Section 34, particularly, in view of the fact
that plaintiffs, at the first appellate stage,
made an attempt to incorporate relief of
possession
by
filling
an
amendment
application,
however,
the
same
was
rejected by the first appellate court on
19.01.1998 which order having attained
finality, the suit was not maintainable. As
regards the bar of Section 331 of U.P. Z.A.
& L.R. Act, learned Senior Counsel very
fairly concedes that such bar would not
come in the way of deciding civil suit for
cancellation of sale deed, however, he
submits that merely because bar under
Section 331 is not strictly attracted, the
same would not mean that bar of other
provisions i.e. Section 34 of the S.R. Act or
Section 49 of U.P. C.H. Act would not
apply.

14. It is further urged that an interim
order was passed by this Court in the instant
second
appeal
on
18.04.2000
staying
execution proceedings and another order of
status quo was passed on 10.04.2003,
however, the second appeal was dismissed
for want on prosecution on 06.09.2007, on
which date, the stay order was also vacated
but, soon thereafter, the order of dismissal
was recalled on 27.09.2007, the appeal was
restored and interim order was revived.
Despite the fact that intimation regarding
restoration of appeal and revival of the
interim order was duly served upon
administrative authorities and all concerned
and the same was in the knowledge of the
respondents, the District Magistrate, in a very
high-handed manner, delivered possession of
the property in dispute to the respondents.
Submission
is
that
the
administrative
authorities had no role in delivering
possession and they had no competence in
that regard, inasmuch as, any decree could be
executed by the executing court only and,
therefore, without there being any order of
executing
court,
dispossession
of
the
appellants despite an interim order of this
Court being in existence, was wholly
uncalled for. Learned Senior Counsel not
only pressed his application under Order
XXXIX Rule 2-A of Civil Procedure Code,
1908 (hereinafter referred to as 'C.P.C.') filed
in the instant appeal but also an application
under Section 144 C.P.C. dated 29.10.2007
requesting delivery of possession to the
appellants.

JUDICIAL PRECEDENTS CITED

15. In support of his submissions, Shri
Jain has placed reliance on the following
authorities:-

(i). Rameshwar and others vs.
Deputy
Director
Consolidation,
Azamgarh and others, 2012 (115) R.D.
541;

(ii). Makhan Singh (D) by Lrs.
vs. Kulwant Singh, (2007) 10 SCC 602;
94 INDIAN LAW REPORTS ALLAHABAD SERIES

(iii). Audhar and others vs.
Chandrapati and others, (2003) 11 SCC
458;

(iv). D.S. Lakshmaiah & Anr.
vs. L. Balasubramanyam & Anr., (2003)
10 SCC 310;

(v). Madan Mohan Mishra vs.
Chandrika Pandey (Dead) by Lrs.,
(2009) 3 SCC 720;

(vi). Nagendra Pal Singh vs.
Bhadrapal Singh, 2013(7) ADJ 682;

(vii). Union of India vs. Ibrahim
Uddin, (2012) 8 SCC 148;

(viii). Venkataraja vs. Vidyane
Doureradjaperumal, (2014) 14 SCC 502;

(ix) Ram Balak Singh v. State
of Bihar and another, 2024 (4) AWC
3233 (SC).

SUBMISSIONS OF THE
RESPONDENTS

16. Shri Manish Goyal, learned Senior
Counsel, has vehemently opposed all the
submissions raised from the appellants'
side. As regards HUF, it is contended that
there is a presumption of jointness of a
hindu family but such a presumption does
not apply in relation to properties which are
distinct. By referring to unamended and
amended pleadings contained in the plaint
and written statements, it has been argued
that when JR purchased landed property
separately in the names of his sons, entire
family was Joint Hindu Family and the
ancestor of the parties namely JR, in order
to
avoid
future
complications,
had
purchased property in separate names, PL
had no authority to transfer the land at the
strength of the power of attorney in favour
of his minor sons; there was a vague denial
of jointness in paragraphs 17 and 24 of the
written statement filed by the defendant
No.3-Prem Kumar; the defence contained
two contradictory versions as regards nonexistence of jointness and also benami
transaction. He further submits that in order
to dislodge the presumption of jointness as
regards the Hindu family, burden lies upon
the person who asserts against jointness
and it was not discharged by the
defendants, either jointly or severely.
Referring to the statement of DW-4 Puran
Chand, it was emphasized that he stated his
birth in 1952 and that consolidation
operations had closed in the village in the
year 1969 whereas chaks had been carved
out in 1967. Submission, therefore, is that
once the consolidation operations were
closed in the year 1969 as per the
defendants themselves, suit instituted after
two years in the year 1971 was not barred
by the provisions of Section 49 of U.P.
C.H. Act.

17.
Vehemently
opposing
the
submissions of the appellants based upon
notification under Section 52 of the U.P.
C.H. Act, it has been argued that no such
notification was brought on record by
either side during the course of trial or
before the first appellate court and it is for
the first time that a photo-stat copy of a
gazette notification dated 01.09.1973 has
been annexed alongwith application under
Order
XLI
Rule
27
C.P.C.
dated
30.06.2022 by the appellants requesting to
admit and read such document as an
'additional evidence'. Shri Goyal submits
that such document is not readable in
evidence and the application under Order
XLI Rule 27 C.P.C. is bound to be rejected
not
only
for
the
reason
that
the
requirements of the said provision are not
fulfilled but also in view of Section 81 of
the Indian Evidence Act, 1872. He submits
that the appellants have failed to establish
as to source wherefrom the said document
has been obtained by them and unless it is
proved beyond doubt that the concerned
12 All. Prem Kumar & Ors. Vs. Subhash Chand & Ors.
95
gazette notification has been produced from
proper custody, presumption under Section
81 of the Indian Evidence Act, 1872 read
with Section 57 thereof would not stand
attracted. He submits that except stating
that gazette notification is a public
document would not suffice allowing the
application for additional evidence at
second appellate stage and that as per subSection (2) of Section 57 of the Evidence
Act, the Court can take judicial notice of all
local and personal Acts of Parliament but
the alleged gazette notification under
Section 52 of the U.P. C.H. Act is not an
Act of Parliament but is an administrative
action, as is apparent from the notification
itself
that
has
been
issued
by
a
consolidation
authority
(Chankbandi
Sanchalak),
namely,
one
Shri
Satya
Prakash Bhatnagar. He further submits that
after all the arguments against admissibility
of the notification were advanced by him
on a particular date during the course of
final hearing of this appeal, the appellants,
in order to improve their case, filed a
supplementary affidavit dated 18.09.2024
without leave of the Court, annexing
therewith another copy of the same
notification stating in the affidavit that due
to inadvertent error of the earlier counsel,
authenticated and attested copy of the
notification of 1973 could not be filed
alongwith
initial
application
dated
30.06.2022 and only a photo-stat copy of
the same was filed. Regarding contents of
the affidavits, it was argued that annexure
to the supplementary affidavit was shown
to have been obtained from government
library- Amar Shaheed Chandra Shekhar
Azad Pustkalaya Nagar Nigam Allahabad
on 22.05.2022. He emphasized on the
discrepancies qua seal affixed at the first
page of the notification forming part of the
application under Order XLI Rule 27
C.P.C. and the one at first page of the same
notification attached to the supplementary
affidavit. Submission is that the document
brought earlier contained no date and the
same was in English language, the
subsequent document contains a blurred
seal but readable to the extent that it is in
Hindi but surprisingly contains a date
22.05.2022. The over all argument is that
the requirements of Order XLI Rule 27
C.P.C. having not been fulfilled coupled
with no clear source as regards "proper
custody" and there being interpolations and
manipulations in the alleged notification,
the same cannot be read in evidence.

18. Necessary consequence, according
to Shri Goyal, therefore, is that once chak
was
carved
out
in
1967
whereas
consolidation operations were closed in
1969, not only suit instituted in 1971 was
maintainable and unaffected by the bar
under Section 49 of the U.P. C.H. Act but
also
there
was
no
requirement
of
adjudication
of
any
rights
by
the
consolidation
authorities
as
nothing
remained to be adjudicated upon by them
after things were settled in 1967 itself. It
was also argued that provision comes into
effect
only
as
a
measure
of
transitory/temporary suspension and does
not create an absolute bar. Regarding
alleged bar of Section 34 of the S.R. Act, it
was argued that irrespective of rejection of
the amendment application by the first
appellate court whereby relief of possession
was not permitted to be incorporated in the
plaint, since the suit in question was a
simplicitor suit for cancellation of the
disputed sale deed as per Section 31 of the
S.R.