# Ram Manorath and others v. Surya Pal and others

- **Citation:** (2007) 2 ILRA 398
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-03-20
- **Case number:** Civil Misc. Review Application No.247459 of 2006
- **Bench:** S.N. Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-manorath-and-others-v-surya-pal-and-others-40921
- **Pages:** 8

## Headnote

Sri K.G. Srivastava
Sri Sankatha Rai
Sri Vinod Kumar Rai
Sri Vijay Kumar Rai
Sri Sumiti Sachan
Sri Ashok Pandey
Sri L.K. Tripathi

Order 47 Rule I-Review ApplicationSecope thereof-explained-second Appeal
decided on consideration the sale deed
executed
in
violation
of
provisions
section 5 C(11_ of Consolidation of
Holdings Act-Review on the ground the
land in question being abadi landexcluded from consideration operation
burning example of apparent error on
the fact of record-held-good ground for
Review.

Held: Para 15

In view of above, in the present case, it
is an error apparent on the face of the
record which could not be noticed at the
time of hearing which also goes to the
root of the matter and this important
question of law in the undisputed fact
was not brought to the notice of the
Court at the time when hearing of the
Second Appeal took place, this Court
considers
it
a
sufficient
reason
to
entertain Review Application.
Case law discussed:
AIR 1971 Alld-87

## Text

398 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Allahabad is directed to pay the same to
the petitioner by a bank draft payable in
favour of the petitioner. Such bank draft
shall be sent to the petitioner through the
College from where she appeared in the
High School Examination, 2006 within
three weeks from today. It is further
directed that the petitioner shall be
permitted to appear in the Intermediate
Examination 2007-2008 and her form be
accepted even if the last date has expired.

7. Accordingly, this writ petition
stands allowed with costs. It is, however,
provided that the respondent-Board shall
be
at
liberty
to
recover
the
costs/compensation
amount
of
Rs.20,000/- from erring officers.

8. A certified copy of this order may
be given to the learned counsel for the
parties within three days on payment of
usual charges. Petition allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.03.2007

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Review Application No.247459
of 2006
IN
Second Appeal No. 1540 of 1982

Ram Manorath and others ...Appellants
Versus
Surya Pal and others
 ...Respondents

Counsel for the Appellants:
Sri Satish Chandra Srivastava
Sri Radhey Shyam
Sri K.S. Misra
Sri Rajesh Dwivedi

Counsel for the Respondents:
Sri K.G. Srivastava
Sri Sankatha Rai
Sri Vinod Kumar Rai
Sri Vijay Kumar Rai
Sri Sumiti Sachan
Sri Ashok Pandey
Sri L.K. Tripathi

Order 47 Rule I-Review ApplicationSecope thereof-explained-second Appeal
decided on consideration the sale deed
executed
in
violation
of
provisions
section 5 C(11_ of Consolidation of
Holdings Act-Review on the ground the
land in question being abadi landexcluded from consideration operation
burning example of apparent error on
the fact of record-held-good ground for
Review.

Held: Para 15

In view of above, in the present case, it
is an error apparent on the face of the
record which could not be noticed at the
time of hearing which also goes to the
root of the matter and this important
question of law in the undisputed fact
was not brought to the notice of the
Court at the time when hearing of the
Second Appeal took place, this Court
considers
it
a
sufficient
reason
to
entertain Review Application.
Case law discussed:
AIR 1971 Alld-87

(Delivered by Hon'ble S.N. Srivastava, J.)

1. This Review Application has been
filed to review my judgment dated
8.12.2004
on
the
ground
that
no
permission
of
Settlement
Officer,
Consolidation was necessary to execute
sale deed in respect of a land which was
already excluded from the consolidation
scheme at the initial sage of consolidation
as is clear from Exhibit 27-C and further
that the execution of a sale deed of entire
2 All] Ram Manorath and others V. Surya Pal and others
399
share of a co-tenure holder in a land not in
the consolidation scheme did not hit by
Section 5(c)(ii) of the U.P. Consolidation
of Holdings Act on the date of execution
of sale deed and could not be declared
invalid under Section 45(2) of the U.P.
Consolidation of Holdings Act.

2. Opposite Parties were directed to
file counter affidavit. After exchange of
Pleadings between the parties, parties
were
also
heard
on
the
Review
Application.

3. The dispute in the present case
relates to Plot no.386 (re-numbered as
Plot
no.348
in
the
consolidation
proceedings). The land was used as Abadi
and was declared Chakout (out of
consolidation
scheme)
after
the
preliminary survey at the initial stage of
consolidation proceeding as mentioned in
C.H.
Form-18,
that
is,
out
of
consolidation
scheme.
Out
of
four
brothers, who were cotenureholders of the
land in dispute, one brother, Indrapal,
executed a sale deed of entire 1/4th share
in
favour
of
Defendant-appellants.
Remaining brothers instituted suit for
permanent injunction against Defendantappellants on the pleading, interalia, that
they are in possession of the land in
dispute and Defendants are going to make
constructions on land in suit and illegally
constructed one Kothari. Defendants filed
their written statement denying the
allegation of making any construction and
pleaded that Defendant no.2 Indrapal was
co-tenure holders to the extent of 1/4th
share, who executed a sale deed of his
entire 1/4th share in favour of Defendants
and Defendants are in possession of the
land in suit accordingly, Consolidation
Officer in Case No. 1171/699, mutated
Defendants' names and they are also in
possession
of
a
constructed
house,
Defendant no.2, Indrapal, also filed a
written statement supporting Defendants
and admitting execution of a sale deed of
his entire 1/4th share in favour of
Defendants-appellants whose names were
recorded as co-tenure holder alongwith
plaintiffs, land in dispute was Chakout
and execution of sale deed did not require
any permission from the Settlement
Officer Consolidation.

4. The Trial court decreed the suit
on the ground that no permission from
Settlement Officer, Consolidation was
required for execution of sale deed of the
land in suit for entire 1/4th share of
Indrapal through the sale deed and the
same is not affected by consequences of
Section 5(c)(ii) of the U.P. Consolidation
of Holdings Act wit a further finding that
Defendants have constructed their houses
and are in actual possession on the entire
land transferred through the sale deed
dated 29th January, 1972.

5. In Appeal preferred against the
judgment and decree of the Trial court
decreeing the Suit, the Appellate Court
held that sale deed in question as a
consequence of violation of Section
5(c)(ii) of the U.P. Consolidation of
Holdings
Act
and
is
inoperative,
ineffective and thereby does not confer
any title to Defendants.

6. The Second Appeal preferred by
Defendants-appellants was admitted on
two questions, the same are being
reproduced below:-

"(1) Whether, on the facts proved in
the case, permission contemplated by
Sec.5(c) of the U.P. Consolidation of
Holdings Act was necessary for Indrapal
400 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
before selling the disputed Chaks in
favour of the appellants.

(2) Whether the provisions of the
Consolidation of Holdings Act do not
apply in this case for reasons mentioned
in para 12 at page 6 of the Memo of
Appeal."

7.

The
Second
Appeal
was
dismissed
by
my
judgment
dated
8.12.2004. That judgment is sought to be
reviewed
by
the
present
Review
Application on the ground that the sale
deed executed by Indrapal was not hit by
Section 5(c )(ii) read with Section 45A(2) of the U.P. Consolidation of
Holdings Act.

8. On bringing the fact through this
Review Application to the notice of the
Court that the land in dispute was out of
consolidation scheme right from very
beginning and was recorded in C.H.
Form-18 and does not form part of the
consolidation scheme, parties had already
made construction of their residential
houses on the land in dispute which was
not in cultivatory possession of parties,
they were directed to file their respective
replies
to
the
Review
Application.
Pleadings are complete.

Heard learned counsel for the parties.

9. Learned counsel for the Appellant
urged that Section 5(c)(ii) of the U.P.
Consolidation of Holdings Act will not
apply in the facts of the suit as intention
of Legislature while introducing Section
5(c)(ii) of the U.P. Consolidation of
Holdings
Act
by
way
of
U.P.
Consolidation of Holding (Amendment)
Act, 1958 was to protect all the land
which are included in the consolidation
scheme. He further urged that in the
present case as the admitted position at
the time of verification of the spot and
revenue records it was found that the land
in dispute was not connected with
agriculture,
horticulture,
and
animal
husbandry and did not form part of the
land affecting consolidation scheme and,
therefore, Section 5(c)(ii) of the U.P.
Consolidation of Holdings Act would not
affect the impugned sale deed. Thus, the
sale deed executed by Indrapal may not
be declared void which was also not
under challenge in the Civil Court by way
of Suit for cancellation on any ground and
the suit for permanent injunction was not
maintainable
against
a
cotenureholder/co-sharer. Suit was wrongly
decreed. It was prayed that Second
Appeal deserves to be allowed.

10. In reply to the same, learned
counsel for Respondents urged that the
word ''holding' has been defined under
Section 3(4-C) of the U.P. Consolidation
of Holdings Act according to which
''Holding' means a parcel or parcels of
land held under one tenure by a tenureholder singly or jointly with other tenureholders. He further urged that that the
''Land' has also been defined under
Section 3(5) of the U.P. Consolidation of
Holdings Act according to which ''Land'
means land held or occupied for purposes
connected with agriculture, horticulture
and animal husbandry. He further urged
that it includes all land including the land
which is not part of the consolidation
scheme. He further urged that the
judgment and decree passed by this Court
while affirming the judgment of the Trial
Court was rightly passed in accordance
with law. He further urged that the
questions again raised through the Review
2 All] Ram Manorath and others V. Surya Pal and others
401
Application cannot be gone into in
review.

11. Considered the arguments of
learned counsel for the parties and the
relevant provisions of law on the point as
well as relevant materials on record.

12. The first question requires to be
considered is whether Review Application
is maintainable on the grounds mentioned
therein in the present case.

13. For deciding this question, Order
47 Rule 1 (1) of the Code of Civil
Procedure is relevant, the same is being
quoted below for ready reference:-

"1.
Application
for
review
of
judgment-(1) Any person considering
himself aggrieved.-
(a) by a decree or order from which
an appeal is allowed, but from which no
appeal has been preferred,
(b) by a decree or order from which no
appeal is allowed, or
(c) by a decision on a reference from a
Court of Small Causes,
and who, from the discovery of new and
important matter or evidence which, after
the exercise of due diligence, was not
within his knowledge or could not be
produced by him at the time when the
decree was passed or order made, or on
account of some mistake or error apparent
on the face of the record, or for any other
sufficient reason, desires to obtain a
review of the decree passed or order made
against him, may apply for a review of
judgment to the Court which passed the
decree or made the order."

14. Order 47, Rule 1(1) of the Code
of Civil Procedure provides grounds for
review from the discovery of new and
important matter or evidence which, after
the exercise of due diligence, was not
within his knowledge or could not be
produced by him at the time when the
decree was passed or order made, or on
account of some mistake or error apparent
on the face of the record, or for any other
sufficient reason. There is no dispute of
fact and admitted facts which were not
brought to the notice of the Court at the
time of hearing of the Second Appeal that
the land in dispute was not included in
consolidation scheme for allotment of
Chak
proceeding
and
was
out
of
consolidation scheme recorded in U.P.
C.H. Form-18. The Court could not
consider the effect of non-inclusion of the
land in suit in consolidation scheme,
though it was part of consolidation
proceeding on notification under Section
4 of the U.P. Consolidation of Holdings
Act. My view of supported by the
judgment of Apex Court reported in
(1997) 8 SCC 715, Parsion Devi and
others v. Sumitri Devi and others, as this
error is self-evident and does not require a
process of reasoning, but an interpretation
of law.

15. In view of above, in the present
case, it is an error apparent on the face of
the record which could not be noticed at
the time of hearing which also goes to the
root of the matter and this important
question of law in the undisputed fact was
not brought to the notice of the Court at
the time when hearing of the Second
Appeal took place, this Court considers it
a sufficient reason to entertain Review
Application.

16. The facts that the land in dispute
was not being used for the purposes
connected with agriculture, horticulture
and animal husbandry and was excluded
402 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
from the consolidation scheme at the time
of spot verification for proposed inclusion
of the land in scheme for consolidation
and was recorded in C.H. Form-18 and
the construction also existed on a part of
the land in suit shown in the consolidation
records
published
in
Village
under
Section 9 of the U.P. Consolidation of
Holdings Act are not disputed. It was not
brought to the notice of the Court by Sri
Radhey
Shyam,
learned
Counsel
appearing for Defendant-appellants at the
time of hearing of Second Appeal. It was
brought to the notice of this Court by the
Review Application. In such a situation,
the important question of law arises to be
considered in undisputed fact is whether
Section 5(c)(ii) of the U.P. Consolidation
of Holdings Act while enacting U.P.
Consolidation of Holdings (Amendment)
Act, 1958 (U.P. Act No. XXXVIII of
1958) is applicable in the facts like in the
present case. For ready reference Section
5(c) of the U.P. Consolidation of
Holdings Act introduced by U.P. Act No.
XXXVIII of 1968 is being reproduced
below:-

"5(c)
notwithstanding
anything
contained in the U.P. Zamindari Abolition
and Land Reforms Act, 1950 (U.P. Act of
1951), no tenure-holder, except with the
permission in writing of the Settlement
Officer,
Consolidation,
previously
obtained shall-

(i) use his holding or any part thereof
for purposes not connected with
agriculture, horticulture or animal
husbandry including, pisciculture and
poultry farming; or
(ii) transfer by way of sale, gift or
exchange any part of his holding in
the consolidation area

provided
that
a
tenure-holder
may
continue to use his holding, or any part
thereof, for any purpose for which it was
in use prior to the date specified in the
notification issued under Section 4."

17. This very amendment also
defines consolidation under Section 3(2)
of the U.P. Consolidation of Holdings Act
which means rearrangement of holdings
in a unit amongst several tenure-holders
in such a way as to make their respective
holdings more compact. In explanation
there are seven exception by which it has
been provided that the land falling in
these exception will not be included in the
consolidation scheme. It is borne out from
the record that the land in dispute was not
used for the purposes connected with
agriculture,
horticulture
and
animal
husbandry on the date on which the
notification under Section 4 of the U.P.
Consolidation of Holdings Act was issued
and was not included in the consolidation
scheme as it was exclusively used as
Abadi land consisting old constructions.

18. The purpose for which U.P.
Consolidation
of
Holding
Act
was
enacted as mentioned in the Preamble is
to provide consolidation of agricultural
holdings
in Uttar Pradesh for the
development of agriculture. The purpose
of consolidation as defined under Section
3(2) of the U.P. Consolidation of
Holdings
Act
is
rearrangement
of
holdings in a unit amongst several tenureholders in such a way as to make their
respective
holdings
more
compact.
Section 3(4-C) of the U.P. Consolidation
of
Holdings
Act
defines
holding
according to which ''Holding' means a
parcel or parcels of land held under one
tenure by a tenure-holder singly or jointly
with other tenure-holder.
2 All] Ram Manorath and others V. Surya Pal and others
403
19. In this regard a Full Bench
decision of Lucknow Bench of this Court
reported in AIR 1971 Allahabad 87 (V 58
C18), Smt. Asharfunisa Begum v. Dy.
Director of Consolidation, Camp at
Hardoi and others is very relevant,
Paragraphs 18, 19 and 21 of the judgment
are being reproduced below:-

"18. The Statement of Objects and
Reasons of the Act reads thus:-

"After the enforcement of the U.P.
Zamindari Abolition and Land Reforms
Act, 1950, there was naturally a pressing
demand for the consolidation of holdings
in the State. Since the complicated and
numerous
types
of
tenures,
both
proprietary and cultivatory, the greatest
stumbling block in the way of successful
consolidation of holdings, have been
abolished it is an opportune time to start
this work. The advantages of having in
compact blocks all the land farmed by one
family need only be briefly mentioned.
Boundary lines should be reduced in
"number and extent, saving land and
diminishing boundary disputes, larger
fields would be possible and time saved in
making trips to the fields. Further, if land
were all in one piece barriers, such as
fences, hedges or ditches could be erected
to obtain privacy and prevent trespassing,
thieving and gleening. The control of
irrigation and drainage water would be
easier control of pests, insects and disease
would also be difficult."
19. Referring to the object of the Act,
in Attar Singh v. State of U.P., AIR 1959
SC 564, the Supreme Court made the
following observations:-
"The object of the Act is to allot a
compact area in lieu of scattered plots to
tenure-holders
so
that
large
scale
cultivation may be possible with all its
attendant
advantages.
Thus
by
the
reduction of boundary-lines saving of
land takes place and the number of
boundary disputes is reduced. There is
saving of time in the management of
fields inasmuch as the farmer is saved
from traveling from field to field, which
may be at considerable distance from each
other. Proper barriers such as fences,
hedges and ditches can be erected around
a compact area to prevent trespassing and
thieving. It would further be easier to
control irrigation and drainage and
disputes over water would be reduced
considerably where compact area are
allotted to tenure-holders. Lastly, the
control of pests, insects and plant-disease
is made easier where farmers have
compact areas under cultivation. There
advantages resulting from consolidation
of holdings are intended to encourage the
development of agriculture and larger
production of food grains, which is the
necessity of the day."
The preamble of the Act reads:-
"An
Act
to
provide
for
the
consolidation of agricultural holdings in
Uttar Pradesh for the development of
agriculture.
Whereas it is expedient to provide
for the consolidation of agricultural
holding
in
Uttar
Pradesh
for
the
development of agriculture."
21. The preamble of a Statute is a
key to the understanding of it. Jagdish
Sahai, J. observed in Sobha v. State, AIR
1963, All 29, that a preamble is a key to
the interpretation of an Act and can be
used to know the aims and objects of the
legislation. The Statement of Objects and
Reasons can be referred to for the limited
purpose of ascertaining the conditions
prevailing at the time which actuated an
Act to be passed and the extent and
urgency of the evil which it sought to
404 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
remedy. A perusal of the Statement of
Objects and Reasons and the preamble
will clearly establish that the intention of
the Legislature was to provide for
consolidation of agricultural holdings for
the development of agriculture. If an
agricultural holding is used for purposes
not
connected
with
agriculture,
development
will
be
retarded
and
similarly is a farmer is to travel from
place to place to look to his scattered
fields,
again
development
will
be
retarded. The prohibition under sub-cl.(ii)
is to avoid fragmentation by sale, gift or
exchange. It appears to me that it is
because of this that while under subclause(i), the prohibition applies to the
entire as well as to the part of a holding;
under sub-clause (ii) it extends to a party
only, because if the whole holding is
transferred, there can be no fragmentation
and the only effect will be the substitution
of the transferee in place of the transferor.
Sub-clause (i) and (ii) of the Clause (c),
therefore, were purposely enacted to
subserve the purposes of the legislation
and to avoid the existing evil.

20. Considering the Preamble,
Object of the Act and other relevant
provisions of U.P. Consolidation of
Holdings Act, this Court is of the view
that intention of introducing Section
5(c)(ii) of the U.P. Consolidation of
Holdings Act was that if the land included
in consolidation proceeding does not
affect allotment of Chak proceeding under
U.P. Consolidation of Holdings Act by
transfer by way of sale, gift or exchange,
no prior written permission of Settlement
Officer, Consolidation as required under
Section 5(c )(ii) of the U.P. Consolidation
of Holdings Act was required. Intention
of Legislature is clear that if any land is
not used for the purposes connected with
agriculture,
horticulture
and
animal
husbandry
and
not
part
of
the
consolidation scheme for allotment of
Chak, any transfer could not be declared
void as it does not affect consolidation
scheme in any way. This Court is of the
firm view that restriction by way of
introducing Section 5(c)(ii) of U.P.
Consolidation of Holdings (Amendment)
Act, 1958 was to affect transfer of the
land included in the consolidation scheme
and not the land which does not affect the
consolidation scheme for allotment of
Chak and excluded from the consolidation
scheme, though it may be in village on
notification under Section 4 of the U.P.
Consolidation of Holdings Act. Therefore,
this Court fully agreeing with the
arguments of learned counsel for the
Defendant-appellants
(Opp.
Parties
herein) is satisfied that the provisions of
Section 5(c) (ii) of U.P. Consolidation of
Holdings Act and its consequences
thereof as contained under Section 45A(2) of the U.P. Consolidation of
Holdings
Act
shall
not
affect
the
impugned sale deed by which a valid title
passed to the Defendant-Appellants.

21. In view of the discussions made
above, my order dated 8.12.2004 requires
to be reviewed.

22. There is another aspect of the
matter. Admittedly the land in dispute
was out of consolidation scheme in which
Indrapal had 1/4th share who executed a
sale deed in favour of DefendantAppellants after taking full consideration
by transferring his entire 1/4th share and
Defendant-transferee would also be cotenureholder for entire 1/4th share of
Indrapal by way of sale.
2 All] Smt. Risalo V. IInd A.D.J. and others
405
23. In view of the above, Substantial
question of law no.1 is decided in
negative as it was held that no prior
permission
of
Settlement
Officer,
Consolidation was necessary as required
under Section 5(c )(ii) of the U.P.
Consolidation of Holdings Act and the
impugned sale deed could not be declared
void.
The
judgment
of
the
lower
Appellate Court is vitiated in law and is
liable to be set aside and the suit is liable
to be decreed. The Substantial question of
law no.2 is answered in affirmative.

24. With the result, Review
Application is allowed. The judgmentdated 8.12.2004 passed in Second Appeal
stands reviewed and the Second Appeal is
allowed. Judgment of Lower Appellate
Court is set aside and the Suit is
dismissed, but no order as to cost.
Review allowed
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.03.2007

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 23289 of 1998

Smt. Risalo

...Petitioner
Versus
IInd A.D.J. and others ...Opposite Parties

Counsel for the Petitioner:
Sri B.D. Mandyan
Sri M.D. Singh
Sri P.R. Ganguly
Sri Ramanuj Pandey
Sri S.D. Kautilya
Sri Anil Kumar
Sri S.C. Mandhyan
Sri Satish Mandhyan

Counsel for the Opposite Parties:
Sri Suneel Rai
S.C.

Limitation Act-Section 5-Application for
condonation
of
delay-in
filling
application under order 9 rule 13 of
C.P.C.-Rejection on the ground of want
of proper explaination-held-view taken
by Trail Court contrary to law.

Held: Para 7

Learned
counsel
for
the
petitioner
submitted that in view of the decision of
the Apex Court, referred to above, is
abundant the view taken by the Courts
below in refusing to condone the delay in
filing the application under Order IX,
Rule 13 is contrary to law. Learned
counsel further submitted that in the
facts
and
circumstances the Courts
below ought to have condone the delay
in filing the application for setting aside
ex-parte decree.
Case law discussed:
AIR 1987 SC-1353
J.T. 2000 (2) SC-569
AIR 1978 486

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

1. By means of present writ petition
under Article 226 of the Constitution of
India, petitioner Smt. Risalo challenges
the order passed by II nd Additional
District Judge, Ghaziabad dated 13th
April, 1998, whereby the appeal filed by
the petitioner against the order dated 24th
January, 1998 has been dismissed. The
order dated 24th January, 1998 was
passed by the trial Court on the
application moved by the petitioner in
original suit no. 181 of 1989. It so happen
that the suit no. 181 of 1989 is decreed
ex-parte on 30th May, 1989. The
petitioner filed application for recall of
the order decreeing the suit no. 181 of
1989 by way of an application under