# Ram Chandra Prasad Srivastava and others v. Kalika and others

- **Citation:** (2008) 1 ILRA 226
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-02-18
- **Case number:** Second Appeal No. 1282 of 1977
- **Bench:** Rajes Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-chandra-prasad-srivastava-and-others-v-kalika-and-others-41018
- **Pages:** 5

## Headnote

Code of Civil Procedure-Section 100Second Appeal-finding of facts, recorded
by Court below-regarding the land on
which house was constructed is not
ancestral property-even no issue framed
except the construction of house-can not
1 All] Ram Chandra Prasad Srivastava and others V. Kalika and others
227
be interfered by the High Court in
Second Appeal.

Held: Para 10

From the perusal of the order of the first
Appellate authority, it reveals that no
argument has been raised that the land
was ancestral property over which the
construction-was-made, The order of the
trial court reveals that the evidences has
been adduced and the statements have
been recorded and on the basis of such
evidences, it has been held that the
plaintiffs have no share in the disputed
premises and that the disputed, house
.was not the ancestral property of the
plaintiffs and was self acquired property
of defendant no.4. It has been observed
that the land over which the Baithaka
has been constructed formerly belonged
to Maharaja Dumraon from whom it was
acquired
by
defendant
no.4,
who
subsequently constructed the house over
the same from his self acquired funds.
Both the authorities below have held
that the plaintiff was never in possession
of the house in dispute. The findings of
both the authorities are finding of fact
which does not require any interference.
The findings are based on the evidences
on record are neither illegal or perverse.
Case law discussed:
2007 (102) RD 311, JT 2003 (10) SC 150, AIR
1964 Supreme Court 538

## Text

226 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
express provision, as inherent in their
constitution, all such powers as are
necessary to do the right and to undo a
wrong in the course of administration of
justice on the principle quando lex aliquid
alicui concedit, concedere videtur id sine
quo res ipse esse non potest (when the law
gives a person anything it gives him that
without which it cannot exist). While
exercising powers under the section, the
Court does not function as a court of
appeal or revision. Inherent jurisdiction
under the section though wide has to be
exercised sparingly, carefully and with
caution and only when such exercise is
justified by the tests specifically laid
down in section itself. It is to be exercised
ex debito justitiae to do read and
substantial justice for the administration
of which alone courts exist. Authority of
the court exists for advancement of justice
and if any attempt is made to abuse that
authority so as to produce injustice, the
court has power to prevent such abuse. It
would be an abuse of process of the court
to allow any action which would result
injustice and prevent promotion of justice.
In exercise of the powers, court would be
justified to quash any proceeding if it
finds that initiation/continuance of it
amounts to abuse of the process of court
or quashing of these proceedings would
otherwise serve the ends of justice. When
no offence is disclosed by the complaint,
the court may examine the question of
fact. When a complaint is sought to be
quashed it is permissible to look into the
materials to assess what the complainant
has alleged and whether any offence is
made out even if the allegations are
accepted in toto."

11. In view of the Apex Court
decision in Adalat Prasad Vs. Rooplal
Jindal-AIR 2004 Supreme Court 4674
the only remedy for challenging the
summoning orders is under Section 482
Cr.P.C.

12. In the wake of foregoing
discussion, the allegations made in the
F.I.R. and the evidence collected in
support thereof taken as a whole do not
constitute the offences under, Sections
406 and 448 I.P.C..

13. With the result the application is
allowed. The entire proceedings of the
above mentioned Criminal case No. 1310
of 2003 including the summoning order
dated 25.1.1999 are quashed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.02.2008

BEFORE
THE HON'BLE RAJES KUMAR, J.

Second Appeal No. 1282 of 1977

Ram Chandra Prasad Srivastava and
others

...Appellants
Versus
Kalika and others
...Respondents

Counsel for the Appellant:
Sri N.K. Saxena
Sri V.P. Mishra
Sri Sankatha Rai
Sri V.K. Rai
Sri Dr. Vinod Kumar Rai

Counsel for the Respondents:
Sri Faujdar Rai
Sri C.K. Rai

Code of Civil Procedure-Section 100Second Appeal-finding of facts, recorded
by Court below-regarding the land on
which house was constructed is not
ancestral property-even no issue framed
except the construction of house-can not
1 All] Ram Chandra Prasad Srivastava and others V. Kalika and others
227
be interfered by the High Court in
Second Appeal.

Held: Para 10

From the perusal of the order of the first
Appellate authority, it reveals that no
argument has been raised that the land
was ancestral property over which the
construction-was-made, The order of the
trial court reveals that the evidences has
been adduced and the statements have
been recorded and on the basis of such
evidences, it has been held that the
plaintiffs have no share in the disputed
premises and that the disputed, house
.was not the ancestral property of the
plaintiffs and was self acquired property
of defendant no.4. It has been observed
that the land over which the Baithaka
has been constructed formerly belonged
to Maharaja Dumraon from whom it was
acquired
by
defendant
no.4,
who
subsequently constructed the house over
the same from his self acquired funds.
Both the authorities below have held
that the plaintiff was never in possession
of the house in dispute. The findings of
both the authorities are finding of fact
which does not require any interference.
The findings are based on the evidences
on record are neither illegal or perverse.
Case law discussed:
2007 (102) RD 311, JT 2003 (10) SC 150, AIR
1964 Supreme Court 538

(Delivered by Hon'ble Rajes Kumar, J.)

1. Present second appeal is against
the order- of the IInd Additional District
Judge, Ballia dated 30th March, 1977
arising from the suit no.331 of 1969.

2. Plaintiffs-appellants filed the suit
for permanent injunction restraining the
defendants-respondents from causing any
interference in the plaintiffs possession
over the disputed house. It was claimed
that the house was ancestral property and
was in possession of the plaintiffs and
without
the
partition,
defendantsrespondents were raising the construction.
The Trial Court vide order dated 13th
March, 1976 dismissed the suit with costs.
It has been held that the plaintiffs have no
share in the disputed premises and the
disputed house was not the ancestral
property of the plaintiffs and it was the
self acquired property of defendant no.4
only. It was also observed that the land
over which the baithaka which is in
dispute has been constructed formerly
belonged to Maharaja Dumraon from
whom it was acquired by defendant no.4,
who subsequently constructed the house
over the same from his self acquired
funds. It has been observed that the plea
of the defendant was supported by the
statements of the witnesses and also by
the evidences. The plaintiffs-appellants
filed Civil Appeal no.130 of 1976, which
has been dismissed with costs. The
appellant authority recorded the following
findings.

"The
documentary
evidence
available on the record also speaks of
the exclusive possession of deceased
defendant no. 4 and is descendants over
the house in suit. The extract of
Kutumb register (Ex. A-1) shows that
the defendant no.4 was residing in
house no.49 exclusively belonging to
him. He had been paying the Panchayat
taxes. The electoral rolls prepared in
the year 1960 and 1973 respectively
(Exts. A-4 & A-5) also go to show that
the defendant no.4 was residing in
house no.49 whereas the plaintiffs
Raghunath
in
house
no.45
and
Bindhyachal Prasad in house no.46
separately. No doubt, the name of the
father of the defendant no. 4 has been
wrongly written in the electoral rolls
which is nothing but a clerical error,
228 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Sri Dharmnath (P.W.2) stated that
defendant
no.4
was
in
exclusive
possession of an area of 1 1/2 or 2
bighas of land. Thus, the documents on
record also suggest the inference that
the house was exclusively owned and
resided by the house was exclusively
owned and resided by the deceased
defendant no.4.
Sri Param Hans Rai (P.W.3) hails
from a different village. He states that
he was pasted as a Primary School
teacher in the village during the period
1963-1968. Admittedly, the house in
question
was
constructed
decades
before the year 1963. His testimony is
of no avail. Sri Bindhyachal Prasad
(P.W.l) and Dharm Nath (P.W.2) are
the claimants of the share in the house
in question and are the interested
persons. Their so object seems to be to
snatch whatever they can afford from
the vendees in a bargain for their own
gain. The learned trial court has
considered in detail that the land was
acquired by the defendant no.4 and
constructed the house in question. His
findings are well considered and well
appreciated. There does not appear to
be any scope for disagreeing with the
findings recorded by him. As a result of
what has been observed above, the
appeal does not admit of any scope for
interference with the judgment and
decree in question, and it should be
dismissed."

3. The present appeal has been
admitted on substantial question of law
arises from ground nos. 2, 3 and 5 which
reads as follows.

"Because the Courts below did not
even
enter
the
question
of
the
ownership of the land on which the
disputed house was constructed.
Because the Courts below failed to
decide whether the house in dispute
was
constructed
prior
to
private
partition of the family or after it.
Because there having been no
partition in the residential house mere
exclusive possession of defendant no.4
could not apprise of his share of the
house as the possession by one cosharer as the possession by all cosharers."

4. From the aforesaid grounds, the
substantial question of law which arises is
that whether the Court below without
entering into the question of ownership of
the land on which the disputed house was
constructed, prior to private partition of
the family has rejected the claim and
dismissed the suit.

5. Heard Sri Sankatha Rai, learned
Senior Advocate appearing on behalf of
the appellants and Sri C.K. Rai, learned
counsel appearing on behalf of the
respondents.

6. Learned counsel for the appellants
submitted that without entering into the
question of ownership of the land on
which the disputed house was constructed
both the court bellows have held that the
house in question was not the ancestral
property and was self acquired property of
defendant no.4. He submitted that burden
lies upon the person to prove his claim
who alleges that he earned property from
his own sources. In support of the
contention he relied upon the decision of
Lucknow Bench of this Court in the case
of Shyam Lal and others Versus
Assistant Director of Consolidation,
Gonda, reported in [2007 (102) RD
1 All] Ram Chandra Prasad Srivastava and others V. Kalika and others
229
311]. He further submitted that under
Section 100 of the C.P.C. this Court has
jurisdiction
to
interfere
with
the
concurrent findings of courts below if
there is wrong appreciation of evidence
and wrong placement of onus of proof. In
support of his contention he relied upon
the decision of the Apex Court in the case
of Krishna Mohan @ Nani Charan Kul
and Anr. V. Pratima Maity and Ors.,
reported in JT 2003 (10) SC 150. He
further submitted that the vague denial of
the facts in the written statement may
amount to have acceptance of the fact. In
support of his submission relied upon the
decision of the Apex Court in the case of
Badat and Co., Bombay V. East India
Trading Co., reported in AIR 1964
Supreme Court 538.

7.

Learned
counsel
for
the
respondents submitted that the dispute
before the courts below was about the
disputed house. No issue was framed
relating to the land. He submitted that
both the courts below have considered the
evidences adduced and the statements of
the various persons and have recorded the
findings of fact that the house in dispute
was not ancestral property of the plaintiff
and was the self acquired property of the
defendant no. 4. He further submitted that
on the basis of the evidences adduced the
courts below observed that the land over
which the Baithaka was constructed
formerly belonged to Maharaja Dumraon
from whom it was acquired by defendant
no. 4. He subsequently constructed the
house over the same from his self
acquired fund. Therefore, the plea of the
plaintiff that the land over which the
construction was made was an ancestral
property is absolutely incorrect and has no
leg to stand.

8. I do not see any substance in the
argument of the learned counsel for the
appellants. The issues which have been
framed were as follows.

"1. Whether the plaintiffs have any
share in the disputed premises?
2. Whether tile disputed house is
ancestral property of plaintiffs and
defendant no.4, or the defendant no.4 is in
exclusive acquisition and is self acquired
property?"

9. The issue was, therefore, relating
to the disputed house and no issue was
framed raising the claim that the land was
the ancestral property over which the
construction was made.

10. From the perusal of the order of
the first Appellate authority, it reveals that
no argument has been raised that the land
was ancestral property over which the
construction-was-made, The order of the
trial court reveals that the evidences has
been adduced and the statements have
been recorded and on the basis of such
evidences, it has been held that the
plaintiffs have no share in the disputed
premises and that the disputed, house .was
not the ancestral property of the plaintiffs
and was self acquired property of
defendant no.4. It has been observed that
the land over which the Baithaka has been
constructed
formerly
belonged
to
Maharaja Dumraon from whom it was
acquired
by
defendant
no.4,
who
subsequently constructed the house over
the same from his self acquired funds.
Both the authorities below have held that
the plaintiff was never in possession of
the house in dispute. The findings of both
the authorities are finding of fact which
does not require any interference. The
230 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
findings are based on the evidences on
record are neither illegal or perverse.

11. In my view the decisions cited
by the learned counsel for the appellants
referred herein above are not applicable to
the present case on the facts and
circumstances stated above and are
clearly distinguishable on facts.

12. In view of the above, the appeal
has
no merit and is, accordingly,
dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.02.2008

BEFORE
THE HON'BLE RAVINDRA SINGH, J.

Criminal Misc. Bail Application No. 1421 of
2008

Om Pal

...Applicant (In Jail)
Versus
State of U.P.
...Opposite Party

Counsel for the Applicant:
Sri Arun Kumar Singh

Counsel for the Opposite Party:
A.G.A.

Code of Criminal Procedure-439-Bailoffence under Section 148, 149, 452,
307-applicant murdered the deceased
who was an eye witness-refused to
compromise-active role-causing injury
assigned to the applicant-not entitled for
bail-Rejected.

Held: Para 7

Considering the facts and circumstances
of the case and submissions made by the
learned counsel for the applicant and the
learned
A.G.A.
and
considering
the
gravity of the offence which is too much,
because in this case the witness in the
earlier murder case has been murdered
by the applicant and other co-accused
person, active role of causing injury is
assigned to the applicant. The case of
the applicant is distinguishable with the
case of Har Pal, Dharam Pal and Hema,
who have been released on bail, by
another bench of this court and without
expressing any merits of the case, the
applicant is not entitled for bail, the
prayer for bail is refused.

(Delivered by Hon'ble Ravindra Singh, J.)

1. This application has been filed by
the applicant Om Pal with a prayer that he
may be released on bail in case crime no.
2107
of
2006
under
sections
147,148,149,452,307 and 302 I.P.C. P.S.
Kotwali City district Bijnor.

2. The fact of the case in brief are
that the F.I.R. of this case has been lodged
by Ved Pal Singh on 8.9.2006 at 4.00 a.m.
in respect of the incident which had
occurred in the night of 7/8.9.2006 at
about 3.30 a.m., distance of the police
station was about 8 km from the alleged
place of occurrence, the applicant and
seven other co-accused persons are named
in the F.I.R.. It is alleged that prior the
alleged incident one Tej Pal Singh alias
Roshan was murdered by the co-accused
Rupesh, co-accused Sonu, co-accused
Dinesh and co-accused Som Pal, they
were pressurizing the deceased to settle
the dispute by way of a compromise but
the same was refused by the deceased, in
the night of 7/8.9.2006 at about 3.30 a.m.,
the
applicant and other co-accused
persons armed with sword and country
made pistol came at the roof of the
deceased Tejpal where Updesh and
Ganeshi were also sleeping and caused
injury by using country made pistol, gun
and
sword
and
other
weapons