# Rishipal Singh & Ors v. Balram Singh & Anr

- **Citation:** (2020) 8 ILRA 356
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-09
- **Case number:** Second Appeal No. 1039 of 2007
- **Bench:** Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rishipal-singh-ors-v-balram-singh-anr-46046
- **Pages:** 28

## Headnote

A. Civil Law - Code of Civil Procedure,
1908 - Sections 4(1) and 11 - Principle of
Res Judicata - Application - Finding of
Consolidation court regarding lunacy, idiocy
or mental unsoundness - Held, finding given
in the consolidation case will not operate as
res judicata to the suit for Cancellation of
Sale-deed. (Para 28 and 31)
A. Civil Law - Code of Civil Procedure,
1908 - Order XXXII Rule 1 to 15 -
Enquiry regarding incapability of plaintiff -
Duty of the Trial Court - Interest of the next
friend, plaintiff-respondent no. 2, was adverse
to the interest of plaintiff-respondent no. 1,
who is alleged to be incapable - By reason of
such adverse interest, prejudice has been
caused to the interest of plaintiff-respondent
no. 1 - In view of the averment that the
plaintiff-respondent no. 2 was not competent
to maintain the suit on behalf of the plaintiffrespondent no. 1, it was bounded duty of the
court to undertake an enquiry contemplated
under Order 32 Rule 15 CPC and record a
finding - Lack of a proper enquiry and a
finding of the court thereon, as envisaged in
Order 32 Rule 15 CPC has led to a situation
that is not comprehended by law - Held, the
suit was not maintainable and the courts
below were not justified in decreeing the suit.
(Para 47, 52, 53, 59 and 60)

Appeal allowed (E-1)

Cases relied on :-

## Text

_Characters 0–39,968 of 93,498. This is a partial read: ask again with offset=39968 for what follows._

356 INDIAN LAW REPORTS ALLAHABAD SERIES
satisfying the claim based on adverse
possession:

"5.
The
appellants
claimed
adverse
possession.
The
burden
undoubtedly lies on them to plead and prove
that they remained in possession in their own
right adverse to the respondents. ....
Possession is prima facie evidence of title.
Party claiming adverse possession must
prove that his possession mast be "nee vi nee
clam nee precario" i.e. peaceful, open and
continuous.
The
possession
must
be
adequate, in continuity, in publicity and in
extent to show that their possession is
adverse to the true owner."

48. In the present case appellant clearly
pleaded its own title. He pleaded that none
else was owner. That being so the plea of
adverse possession was impermissible in this
case. Trial Court failed to examine the legal
aspect and exposition of law, hence LAC has
rightly reversed the judgment.

49. In absence of anything to show
before this Court that appellant in any
manner adduced any evidence to prove his
title, while plaintiff's title was clearly shown,
I have no option but to answer the above
substantial question of law against him.

50. Appeal lacks merit and
dismissed accordingly. Costs throughout.
----------
(2020)08ILR A356
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.06.2020

BEFORE

THE HON'BLE JAYANT BANERJI, J.

Second Appeal No. 1039 of 2007

Rishipal Singh & Ors. ...Appellants
Versus
Balram Singh & Anr. ...Respondents

Counsel for the Appellants:
Sri K.M. Garg

Counsel for the Respondents:
Sri Anil Sharma, Sri Arvind Srivastava, Sri
Shodan Singh

A. Civil Law - Code of Civil Procedure,
1908 - Sections 4(1) and 11 - Principle of
Res Judicata - Application - Finding of
Consolidation court regarding lunacy, idiocy
or mental unsoundness - Held, finding given
in the consolidation case will not operate as
res judicata to the suit for Cancellation of
Sale-deed. (Para 28 and 31)
A. Civil Law - Code of Civil Procedure,
1908 - Order XXXII Rule 1 to 15 -
Enquiry regarding incapability of plaintiff -
Duty of the Trial Court - Interest of the next
friend, plaintiff-respondent no. 2, was adverse
to the interest of plaintiff-respondent no. 1,
who is alleged to be incapable - By reason of
such adverse interest, prejudice has been
caused to the interest of plaintiff-respondent
no. 1 - In view of the averment that the
plaintiff-respondent no. 2 was not competent
to maintain the suit on behalf of the plaintiffrespondent no. 1, it was bounded duty of the
court to undertake an enquiry contemplated
under Order 32 Rule 15 CPC and record a
finding - Lack of a proper enquiry and a
finding of the court thereon, as envisaged in
Order 32 Rule 15 CPC has led to a situation
that is not comprehended by law - Held, the
suit was not maintainable and the courts
below were not justified in decreeing the suit.
(Para 47, 52, 53, 59 and 60)

Appeal allowed (E-1)

Cases relied on :-

1. Sajjadanashin Sayed Md. B.E. EDR Vs Musa
Dadabhai Ummer & ors. (2000) 3 SCC 350
8 All. Rishipal Singh & Ors. Vs. Balram Singh & Anr.
357
2. Civil Appeal No. 9918 of 2011 - Nand Ram
Vs Jagdish Prasad; decided on 19 March 2020
3.
Prabhat
Sharma
Vs
Hari
Shankar
Srivastava; (1988) ALJ 436
4. Keshav Deo Tulshan Vs Jagadish Prasad Tulshan
1971 SCC OnLine Cal 100 : AIR 1973 Cal 83
5. Ram Chandra Arya Vs Man Singh AIR 1968
SC 954
6. Nagaiah & anr. Vs Chowdamma (2018) 2 SCC 504
7. Somnath Vs Tipanna Ramchandra Jannu
AIR 1973 Bombay 276

(Delivered by Hon'ble Jayant Banerji, J.)

1. This second appeal has been filed by
the
defendant-appellants
against
the
judgement and decree dated 11.7.2007 and
24.7.2007
respectively
passed
by
the
Additional District Judge, Court No. 2,
Bijnor dismissing the Civil Appeal No. 96 of
2006 filed by the appellants whereby the
judgement and decree dated 30.11.2006
passed by the Additional Civil Judge (Junior
Division), Court No. 3, Bijnor in Original
Suit No. 72 of 1995, was affirmed.

2.

The
following
substantial
question of law was framed by the Court
on 11.10.2007:

"(i) Whether the finding given in
the Consolidation Suit regarding Balram
Singh will operate as res judicata in the
subsequent suit as the said finding is a nullity
in view of the decision of this Court in
Prabhat Sharma and another Vs. Hari
Shankar Srivastava and others 1988 ALJ 436
which has relied upon the decision of the
Supreme Court in Ram Chandra Arya Vs.
Man Singh AIR 1968 SC 954?"

Two other substantial questions
of law were framed by the Court on
24.7.2019:

"ii) Whether the courts below
were justified in decreeing the suit
without
appointing
the
plaintiffrespondent no.2 as the guardian of the
plaintiff-respondent no.1 in view of the
provisions of Sections 4 and 6 of the
Hindu Minority and Guardianship Act,
1956 and the provisions of Order 32 Rule
3 read with Rule 15 of the CPC?

iii) Whether the failure of the
trial court to conduct an enquiry as
envisaged in Order 32 Rule 15 of the
CPC
in
respect
of
the
plaintiffrespondent no.1 had rendered the suit not
maintainable on behalf of the plaintiffrespondent no.1?"

3. The suit was purportedly filed by
the plaintiff-respondent No.1 through the
plaintiff-respondent no.2, seeking relief
of cancellation of a sale deed dated
23.9.1994 executed by the plaintiff no. 1,
Balram
Singh,
in
favour
of
the
defendant-respondents in respect of a
plot of land. Balram Singh, the plaintiff
no. 1 was described in the plaint as of
unsound mind. The plaintiff-respondent
no. 2, Raghunath Singh, who verified and
signed the plaint on behalf of the
plaintiff-respondent no.1, stated in the
plaint that the plaintiff no. 1 is of
unsound mind (mad) since the beginning
and he is totally unable to think for
himself.
It
is
stated
that
during
consolidation proceedings under the U.P.
Consolidation of Holdings Act, 19531, it
was held by the Consolidation Officer
that the plaintiff no. 1 was an idiot ('Jad
Buddhi') and that his guardian was
required to be appointed. The mother of
the plaintiff no. 1 was appointed as his
guardian, and the plaintiff-respondent no.
2 and late Ram Nath (father of the
defendant-appellants) were parties and as
such the order of the Consolidation
358 INDIAN LAW REPORTS ALLAHABAD SERIES
Officer operates as res judicata. It is
stated that after the death of the mother
of the plaintiff no. 1, Ram Nath became
the guardian of the plaintiff no. 1 and
after his death, the plaintiff-respondent
no. 2 came to be the guardian of the
plaintiff no. 1. The defendants are
brothers and they are the sons of late
Ram Nath and had full knowledge of the
unsound mind of the plaintiff no. 1,
Balram Singh. The defendants illegally
got executed an agreement to sell and got
the plaintiff no. 1 to put his thumb
impression
on
that
document
by
exercising undue influence. Fraud was
alleged. That document was registered
and no money was paid to the plaintiff
no. 1. Thereafter the defendants got
executed a forged and fabricated sale
deed dated 23.8.1994 and by exercising
undue influence on the plaintiff no. 1
obtained his signature on that document.
It is alleged that that forged and
fabricated
sale
deed
was
a
void
document. No money was paid to the
plaintiff no. 1, the sale deed was not
executed by the plaintiff no. 1 in a fit
state of mind and that no permission was
taken from the District Judge, Bijnor for
execution of the agreement to sell and the
sale deed. That on coming to know of a
rumour about the fabricated and forged
sale deed, the plaintiff-respondent no. 2
obtained a copy of the same from the
office of the Sub-Registrar, Bijnor and so
in January 1995 for the first time he came
to know of that sale deed. Since the
plaintiff-respondent no. 2 is the real
brother of the plaintiff-respondent no. 1,
he is his guardian and therefore he has a
right to file the suit on behalf of the
plaintiff-respondent no. 1.

4. In the written statement filed on
behalf of the defendant-appellants, the
contents of the plaint were not admitted.
It
was
denied
that
the
plaintiffrespondent no. 1, Balram Singh, was a
person of unsound mind since the
beginning. It was denied that the
Consolidation Officer had declared the
plaintiff-respondent no. 1, Balram Singh,
as a person of unsound mind and had
appointed a guardian for him. It was also
denied that the father of the defendantappellants - Ram Nath was a party to the
proceedings before the Consolidation
Officer. It was stated that the plaintiffrespondent no. 1, Balram Singh, was a
person of healthy mind and capable of
looking after himself and the agreement
to sell and sale deed were executed by
the plaintiff-respondent no. 1, Balram
Singh, after obtaining appropriate sale
price for the property and after fully
reading and understanding the contents
of the same. It was stated that since the
plaintiff-respondent no. 1 was a normal
and
capable
person,
therefore,
no
permission for executing the agreement
to sell or sale deed was required from the
District Judge.

5. On 06.08.1997 a statement of the
plaintiff-respondent no. 1, Balram Singh,
was recorded by the trial court (Paper
No. 43A) purportedly under Order 10
Rule 1 of the CPC.

6. During pendency of the suit, the
plaintiff no. 1 died on 25.7.1998
whereafter an amendment application
(Paper No. 69 A) was filed by the
plaintiff-respondent
no.
2.
After
considering the objections, the trial court
allowed the application by an order dated
18.9.1999. By means of the amendment,
the plaintiff-respondent no. 2 stated, inter
alia, that after the death of plaintiff no. 1,
he is the sole heir of the plaintiff no. 1. It
8 All. Rishipal Singh & Ors. Vs. Balram Singh & Anr.
359
was further stated that since plaintiff no.
1 was kept by the defendant-appellants in
their custody therefore if any forged or
fabricated will deed was got executed by
the defendant-appellants in their favour
from the plaintiff no. 1 then no rights
thereunder
would
accrue
to
the
defendant-appellants.

However,
no
amendment
was
sought in the relief clause of the plaint.

7. In the additional written
statement
filed
by
the
defendantappellant
it
was
stated
that
the
consolidation court has no authority to
declare a person as a lunatic but the
District Judge was entitled to appoint a
person as his guardian. That Balram
Singh (plaintiff-respondent no. 1) had
instituted a Suit No. 553 of 1994 in the
Court of Munsif, Bijnor (Balram Singh
Vs. Jagdish and others) in which he had
testified and which was decreed on
30.01.1995.
That
by
means
of
a
registered will dated 05.06.1998, the
plaintiff-respondent no.1 had bequeathed
his movable and immovable properties in
favour of the defendant-appellant no.1,
Rishi Pal Singh. That the deceased
Balram Singh used to love the defendantappellant no. 1 a lot. The defendantappellant no. 1 served and looked after
the plaintiff-respondent no. 1 till the end
and also performed his funeral and last
rites.

8. The trial court, initially, framed 5
issues as follows:

"1- D;k cSukek fnukad 23-9-94 cgd
izfroknhx.k ,d tkyh QthZ o 'kwU; nLrkost
gS\

2- D;k oknh ua-&1 tMcqf) o
cqf)ghu O;fDr gS vkSj viuk vPNk cqjk le>us
esa vleFkZ gS\

3- D;k oknhx.k us okn dk ewY;kadu
de fd;k gS vkSj vnk fd;k x;k U;k;'kqYd
vi;kZIr gS\

4- D;k oknhx.k dk okn /kkjk 331
;w0ih0tSM0,0,y0vkj0 ,DV ds izkfo/kkuksa ls
ckf/kr gS\

5- D;k oknhx.k fdlh vuqrks"k dks
;fn gkW rks izHkko\

Subsequently, after amendment
of the plaint and filing of an additional
written statement, two other issues were
framed on 17.04.2001:-

6- D;k oknh ua-&2 j?kqukFk oknh ua-
&1 cyjke e`rd dk okfjl gS\

7- D;k e`rd cyjke flag us fnukad
5-6-98 dks viuh py o vpy lEifRr dh
olh;r izfroknh _f"kiky flag ds gd esa
fu"ikfnr dh tSlk fd izfroknx.k dk dFku
gS\**

1. Whether the sale deed dated
23.9.94 in favour of the defendants is a
forged, fraudulent and void document?

2. Whether the plaintiff no. 1 is
an idiot and a person of unsound mind
and is incapable to understand his
interest?

3. Whether the plaintiffs have
undervalued the suit and the court fees
deposited is insufficient?

4. Whether the suit of the
plaintiffs is barred by the provisions of
Section 331 of the U.P.Z.A.L.R. Act?

5. Whether the plaintiffs are
entitled to any relief, if yes, its effect?

6.
Whether
plaintiff
no.2
Raghunath is the heir of the deceased
plaintiff no. 1, Balram?

7.
Whether
the
deceased
Balram Singh had executed a will on
5.6.98 of his movable and immovable
properties in favour of the defendant
Rishipal Singh, as is stated by the
defendants?
(English translation of the issues by
court)
360 INDIAN LAW REPORTS ALLAHABAD SERIES

9. The trial court held that the sale
deed dated 23.9.1994 is a void document
as the plaintiff-respondent no. 1, Balram
Singh was a mad person and such a
person had no right to execute the sale
deed or to enter into any contract. It held
that though the plaintiff-respondent no.2
had repeatedly moved applications for
getting the medical examination of the
plaintiff-respondent no.1 done but it was
objected to by the defendant-respondents
which proves that they did not want his
medical examination to be done, which
all reveals that Balram Singh was not
mentally fit. It observed that in this
regard the Consolidation Officer has also
said in his order that Balram Singh
(plaintiff-respondent no.1) was a mad
man. The trial court referred to the
provisions
of
Section
11
and
its
Explanation VIII of the CPC in this
regard.
It
held
that
the
plaintiffrespondent no.1 was a mad person since
birth and a mad person has no right to to
execute a sale deed or any other contract.
It referred to the revenue records
(khatauni) where the plaintiff-respondent
no.1 was recorded as an idiot and held
that the medical report of the plaintiffrespondent no.1 appears to be false and
fabricated. It held that since the PW 1
(plaintiff-respondent no.2) and the PW-2
have both said that the guardian of the
plaintiff-respondent no.1 is the plaintiffrespondent no.2 therefore it has to be
believed that Raghunath Singh is the heir
of Balram Singh. The trial court held that
the plaintiff-respondent no. 1 could not
have executed the will deed dated
5.6.1998 as he was a person of unsound
mind. The suit was decreed and the sale
deed was cancelled.

10. In the appeal filed by the
defendants against the decree of the trial
court, the lower Appellate Court did not
frame any points for determination, but
observed that the issue no.2 (framed by
the trial court) was of paramount
importance which was whether the
deceased, Balram Singh, was a person of
unsound mind. The statement made by the
plaintiff-respondent no.1 bearing Paper
No. 43A, purportedly made under the
provisions of under Order 10 Rule 1 of
Code of Civil Procedure2 was considered
and held that this would not be a statement
under the provisions of Order 10 Rule 1
C.P.C. The court referred to the provisions
of Sections 13, 80 and 114 of the
Evidence
Act
and
held
that
no
presumption can be drawn that the
executor of documents was of normal
mind or a brainless idiot at the time of
execution of the documents. The court
observed that the Consolidation Officer
had held the plaintiff-respondent no.1 as
an idiot which order was never challenged
before any court and held that the decision
of the Consolidation Officer would
operate as res judicata in the present case.
It held that admittedly, at the time of
execution of the sale deed the plaintiffrespondent no.1 was not a person of sound
mind and thus he had no right to execute
the agreement and as such the sale deed
dated 23.09.1994 executed by him is a
fabricated and a void document. It was
also held
that during
consolidation
proceedings the mother of Balram Singh,
who was his natural guardian, was
appointed as his guardian, but she has
died. Under the provisions of Section 171
of the U.P. Zamindari Abolition and Land
Reforms Act, Raghunath Singh (plaintiffrespondent no.2) being the real brother of
the plaintiff-respondent no.1 is his heir
and guardian. Accordingly, the appeal
was dismissed and the judgement and
decree of the trial court were affirmed.
8 All. Rishipal Singh & Ors. Vs. Balram Singh & Anr.
361

Submission of the learned counsel

11. The learned counsel for the
appellants has contended:

(i)
The
decision
of
the
consolidation authority dated 21.10.1981
in Case No. 4147 under Section 9A(2) of
the UPCH Act cannot operate as res
judicata in so far as it declared the
plaintiff-respondent no. 1, Balram Singh,
as a person of unsound mind. The learned
counsel has referred to the provisions of
Rule 14 of the U.P. Consolidation of
Holdings Rules, 19543 to contend that
the Consolidation Officer had no power
to declare the plaintiff-respondent no. 1
as a lunatic and that order of the
Consolidation Officer is a nullity. The
learned counsel referred to the provisions
of Lunacy Act, 19124 to contend that no
power is vested in the consolidation
authorities for conducting an inquisition
as provided under Section 62 of the
Lunacy Act. It is further contended that
since that order dated 21.10.1981 passed
by the Consolidation Officer declaring
the plaintiff-respondent no. 1, Balram
Singh, as a person of unsound mind is
without jurisdiction and is a nullity, it
cannot operate as res judicata. It is
contended that the Consolidation Officer,
while deciding objections under Section
9A(2) of the UPCH Act is not a court as
defined under the C.P.C. While referring
to the Explanation VIII of Section 11
C.P.C. the learned counsel has contended
that the Consolidation Officer is not
competent to decide on the issue of
lunacy/unsoundness of mind of the
plaintiff-respondent no. 1.

(ii) It was incumbent on the
courts below to appoint the plaintiffrespondent no. 2 as the guardian of the
plaintiff-respondent no. 1 in view of the
provisions of the Hindu Minority and
Guardianship
Act,
19655
and
the
provisions of Order 32 Rule 3 read with
Rule 15 of C.P.C. The learned counsel,
while referring to the array of parties in
the plaint, has pointed out that the
plaintiff-respondent no. 1, Balram Singh,
has been described as 'fatrul aqal', that is,
of unsound mind / feeble minded. The
plaintiff-respondent no. 2, Raghunath
Singh, who had signed the plaint is not
shown in the array of parties as the next
friend or guardian of the plaintiffrespondent no. 1, Balram Singh. It is
contended
with
reference
to
the
provisions of Hindu Guardianship Act
and the provisions of the Guardians and
Wards Act, 18906 that the suit is
incompetent
because
the
plaintiffrespondent no. 2, Raghunath Singh, was
never appointed as guardian of the
plaintiff-respondent no. 1. The learned
counsel
has
also
referred
to
the
provisions of Sections 52 and 53 of the
Mental Health Act, 1987 to contend that
it is a special law for the purpose of
appointment of guardian of a mentally ill
person.

(iii)
The
learned
counsel
contends
that
the
suit
was
not
maintainable on behalf of the plaintiffrespondent no. 1 as the trial court had
failed to conduct an enquiry as envisaged
in Order 32 Rule 15 of C.P.C. in respect
of the plaintiff-respondent no. 1.

12. Shri Arvind Srivastava, learned
counsel appearing for the plaintiffrespondent no. 2 has contended that the
documents filed by the defendantappellants,
namely,
the
medical
certificate dated 19.8.1994 (Paper No.
21C) and the documents/pleadings of
Suit No. 553 of 1994 allegedly filed by
the plaintiff-respondent no. 1, Balram
Singh, on which reliance has been placed
362 INDIAN LAW REPORTS ALLAHABAD SERIES
by the learned counsel for the defendantappellants,
would
not
be
of
any
assistance to them. He stated that the
medical certificate affirming the sound
mental
condition
of
the
plaintiffrespondent no. 1 was not duly proved by
the
person
who
had
issued
that
certificate, because a minor employee of
the health department was produced as
defendant
witness
to
prove
that
document. The learned counsel has
referred to the proximity of the date of
the medical certificate and the the
allegedly suit filed by the plaintiffrespondent no. 1, Balram Singh, on
19.8.1994 and 5.9.1994 respectively on
the one hand, with the sale deed dated
23.9.1994 on the other, to contend that
the medical certificate was obtained for a
fraudulent purpose and the suit was
purposely and motivatedly instituted at
the behest of the defendant-appellant
without there being any cogent reason to
do so, only with a view that they could be
used by the defendant-appellants for
purpose of upholding the impugned sale
deed dated 23.9.1994 should it be
challenged in a court of law.

The
learned
counsel
further
contends that a reading of the provisions
of Section 9A(2) of the UPCH Act read
with Rule 14 of the UPCH Rules leave
no room for doubt that the earlier suit
filed before the Consolidation Officer
was relevant to the extent that the order
of the Consolidation Officer dated
21.10.1981 would operate as res judicata
and that the Consolidation Court had
jurisdiction to decide the lunacy of the
plaintiff-respondent no. 1. It has been
urged by the learned counsel that the
issue whether the decision of the
Consolidation Officer is a nullity would
not be a substantial question of law in the
facts of the present case and moreover a
question regarding when would a finding
operate as nullity has already been
answered by this Court in the case of
Prabhat Sharma and another Vs. Hari
Shanker Srivastava reported in 1988 ALJ
436. The learned counsel while referring
to Section 99 of C.P.C. contends that
non-appointment of guardian of the
plaintiff-respondent no. 1 was not a fatal
defect and it can be cured because it does
not affect the merits of the case or the
jurisdiction of the Court. Protection is
given to a minor/lunatic under the
provisions of Order 32 of C.P.C. and he
can be defended by the person having no
adverse interest. The learned counsel has
referred to the judgements reported in
2019 (1) ADJ 246, AIR 1954 Alld 599,
AIR 1994 SC 152, AIR 2000 SC 3335.

Discussion

13. Substantial question of law no.
(i) : Whether the finding given in the
Consolidation Suit regarding Balram
Singh will operate as res judicata in the
subsequent suit as the said finding is a
nullity in view of the decision of this
Court in Prabhat Sharma and another
Vs. Hari Shankar Srivastava and others
1988 ALJ 436 which has relied upon the
decision of the Supreme Court in Ram
Chandra Arya Vs. Man Singh AIR 1968
SC 954?

The provisions of Section 11 of
C.P.C. and its Explanation VIII are as
follows:

"11. Res judicata-- No Court
shall try any suit or issue in which the
matter directly and substantially in issue
has been directly and substantially in
issue in a former suit between the same
parties, or between parties under whom
they or any of them claim, litigating
under the same title, in a Court
competent to try such subsequent suit or
8 All. Rishipal Singh & Ors. Vs. Balram Singh & Anr.
363
the suit in which such issue has been
subsequently raised, and has been heard
and finally decided by such Court.

.................

.................

Explanation
VIII.--An
issue
heard and finally decided by a Court of
limited jurisdiction, competent to decide
such issue, shall operate as res judicata in
a subsequent suit, notwithstanding that
such court of limited jurisdiction was not
competent to try such subsequent suit or
the suit in which such issue has been
subsequently raised."

14. As far as the proceedings of the
consolidation case are concerned, apart
from a certified copy of the order dated
21.10.1981 passed by the consolidation
officer in Case No. 4147 under Section
9A(2) of the UPCH Act, no other
document has been filed by the plaintiffrespondent no. 2. The pleadings /
applications / objections could have
revealed whether the matter in the
present suit was directly and substantially
in
issue
in
the
case
before
the
Consolidation Officer, and, whether the
same parties, or, the parties under whom
they or any of them claim litigating under
the same title in the present suit were
there before the Consolidation Officer
and, whether the Consolidation Officer
was competent to try the present case.

15. The proceedings under Section
9A(2) of the UPCH Act stood concluded by
means of the aforesaid order passed by the
Consolidation Officer dated 21.10.1981.

16. Before considering the order
dated
21.10.1981
passed
by
the
Consolidation Officer, it is pertinent to
refer to the provisions of Section 9A of
the UPCH Act which are as follows:

"9A. Disposal of cases relating to
claims to land and partition of joint
holdings.--(1)
The
Assistant
Consolidation Officer shall :

(i) Where objections in respect
of claims to land or partition of joint
holdings are filed, after hearing the
parties concerned ; and

(ii) Where no objections are
filed, making such enquiry as he may
deem necessary

settle the disputes, correct the
mistakes and effect partition as far as
may be by consolidation between the
parties appearing before him and pass
orders on the basis of conciliation.

(2) All cases which are not
disposed of by the Assistant Consolidation
Officer under sub-section (1), all cases
relating to valuation of plots and all cases
relating to valuation of trees, wells or other
improvements, for calculating compensation
therefor, and its apportionment amongst coowners, if there be more owners than one,
shall be forwarded by the Assistant
Consolidation Officer to the Consolidation
Officer, who shall dispose of the same in the
manner prescribed.

(3) The Assistant Consolidation
Officer, while acting under Sub-section
(1) and the Consolidation Officer, while
acting under Sub-section (2), shall be
deemed to be a court of competent
jurisdiction, anything to the contrary
contained in any other law for the time
being in force notwithstanding."

17. Rule 14 of the UPCH Rules
reads as follows:

"14. [Section 54(1)]. - (1) The
Assistant Consolidation Officer shall, in
consultation
with
the
Consolidation
Committee,
appoint
guardians,
for
purposes of proceedings under the Act,
364 INDIAN LAW REPORTS ALLAHABAD SERIES
of such tenure-holders who are minors,
idiots or lunatics unless such guardians
have been already appointed by order of
a competent Court.

(2) The guardian appointed for
a minor, idiot or lunatic under sub-rule
(1) shall be his natural guardian unless
the natural guardian possesses, an interest
adverse to the interest of the minor, the
idiot or the lunatic. If the natural
guardian is not so appointed, the
Assistant Consolidation Officer shall
record reasons therefor and shall then
appoint the nearest male relative of the
minor, the idiot or the lunatic, not
possessing an interest adverse to him, as
his guardian.

(3) A list of all such guardians
together with the names of their wards
shall be published in the village and any
person interested in the ward may file an
objection
against
such
appointment
before the Consolidation Officer within
fifteen days of such publication, whose
orders shall, subject to the modification,
if any, made by orders passed under
Section 48, be final."

18. The UPCH Act was enacted to
provide
for
the
consolidation
of
agricultural holdings in State of Uttar
Pradesh
for
the
development
of
agriculture. Chapter II of the UPCH Act
deals with the revision and correction of
maps and records. Section 4 to Section
12D
constitute
Chapter
II.
The
Consolidation Officer while acting under
the provisions of sub-section 2 of Section
9A of the UPCH Act is deemed to be a
Court
of
competent
jurisdiction
notwithstanding anything to the contrary
contained in any other law for the time
being in force with respect to all rights
and claims of tenure-holders as reflected
in Section 9A. Section 11A of the UPCH
Act bars questions in respect of claims to
land, partition of joint holdings and
valuation of plots, trees, wells and other
improvements, relating to consolidation
area, to be raised or heard at any
subsequent
stage
of
consolidation
proceedings. Rule 14 of the UPCH Rules
confers a limited jurisdiction upon the
Consolidation Officer for appointment of
guardians,
for
the
purposes
of
proceedings under the UPCH Act, of
such tenure holders who are minors,
idiots or lunatics unless such guardians
have been already appointed by order of
the competent court.

19. The present suit is for
cancellation of a sale deed executed by
Balram Singh, plaintiff-respondent no. 1
in favour of the defendant-appellant nos.
1 to 3. The sale deed was executed on
23.9.1994.

20. The certified copy of the order
dated
21.10.1981
passed
by
the
Consolidation Officer, Najibabad Camp,
Bijnor pertains to Case No. 4147 under
Section 9A(2) of the UPCH Act in
respect of Villages Mohd. Alipur Tara
and Maheshwari, Pargana Mandawar,
Tehsil & District Bijnor. The parties
mentioned therein are Ram Singh and
others Vs. State. The opening paragraph
of that order states that since the Case
No. 4147 to 4154 and Case No. 4521 are
related
to
each
other,
they
are
consolidated and Case No. 4147 would
be the main case. The second paragraph
of the judgement reads that the present
case pertains to Khata Nos. 17, 14, 19,
32, 21, 20, 31, 18. It is mentioned that
partition has to be affected between the
recorded tenure holders of the aforesaid
Khatas. It is further mentioned in the
order that there is no objection with
8 All. Rishipal Singh & Ors. Vs. Balram Singh & Anr.
365
regard to the proposed portions as
appearing in C.H. Form No. 5.

The order further reads that the dispute
is that in all the aforesaid Khatas the name
of Balram Singh, unsound mind, guardian
Raghunath Singh, brother appears. During
preparation of 'tasdik' khatauni, Balram
Singh was not shown as of unsound mind
and the name of his guardian has also been
deleted. The order further reads that
Raghunath Singh has objected that Balram
Singh be recorded as of unsound mind and
his own name be recorded as his guardian as
it previously appeared and that by means of
an application, Raghunath Singh has prayed
that Balram Singh, unsound mind, and his
guardian Raghunath Singh, be allotted a
single Khata number. The order states that
Balram Singh on the other hand moved a
separate application that against his name
the word unsound mind be removed and his
1/3rd share be separated and a separate chak
be made. An issue was framed that whether
Balram Singh is not of unsound mind. It
was held that Balram Singh was an idiot
('jad'). After considering the facts and the
record, the Consolidation Officer recorded
that Balram Singh stays with his mother and
he does not appear to be a stable minded
person and, therefore, held that the natural
guardian of Balram Singh would be his
mother, Bhagwan Dei and thus, in place of
Raghunath Singh, the name of Bhagwan
Dei, the mother of Balram Singh would be
recorded as guardian. The order finally
passed by the Consolidation Officer was one
of recording of the partition between each
tenure-holder,
including
the
plaintiffrespondent no.1, Balram Singh,
and
direction was passed for the entries in the
revenue records to be made accordingly.

21. In the aforesaid matter before
the Consolidation Officer, it is nobody's
case that there existed any dispute
between the plaintiffs and the defendants
who are arrayed in the present case.
There is no document on record that
shows
that
the
plaintiffs
and
the
defendants of the present suit were
arrayed as opposite parties in all or any
of the cases before the Consolidation
Officer.
No
copy
of
any
plaint,
application, written statement pertaining
to
the
proceedings
before
the
Consolidation Officer were brought on
record. The matter under Section 9A(2)
of
the
UPCH
Act
before
the
Consolidation
Officer
was
one
of
partition which was to be effected
between the recorded tenure holders of
the relevant Khatas. There was no
objection to the proposed portions
mentioned in C.H. Form No. 5. There
was, thus, no dispute with regard to the
share of Balram Singh, the plaintiffrespondent no.1. Only one incidental
dispute was raised by the plaintiffrespondent no. 2- Raghunath Singh, that
was whether he was entitled to be
recorded as the guardian of plaintiffrespondent no. 1- Balram Singh. For
decision of this dispute the aforesaid
issue was framed by the Consolidation
Officer.
The
Consolidation
Court
negatived the contention of Raghunath
Singh, holding that the mother of Balram
Singh, Bhagwan Dei, would be his
guardian which was to be recorded in the
revenue records. There is no material to
demonstrate that the proceedings before
the Consolidation Officer were between
the same parties, or between parties
under whom they or any of them claim,
litigating under the same title.

22. The matter directly and
substantially
in
issue
before
the
Consolidation
Officer
was
one
of
partition of the holdings in which a
366 INDIAN LAW REPORTS ALLAHABAD SERIES
dispute was raised by Raghunath Singh
regarding guardianship and an issue was
framed by the court that whether Balram
Singh is not of unsound mind. The issue
of
appointment
of
guardian
and
unsoundness of mind of Balram Singh
was thus, not an issue directly or
substantially
in
issue
before
the
consolidation court but, rather, it was a
collaterally or incidentally in issue.

23. In this regard it is pertinent to
refer to the following two judgements of
the Supreme Court.

The Supreme Court in the case
of Sajjadanashin Sayed Md. B.E. EDR
v. Musa Dadabhai Ummer & others7
observed that difficulty has been felt in
various jurisdictions in distinguishing
whether a matter was directly in issue or
collaterally or incidentally in issue and
test have been laid down in various
courts. It was observed as follows:-

"18.
In
India,
Mulla
has
referred to similar tests (Mulla, 15th
Edn., p. 104). The learned author says: a
matter in respect of which relief is
claimed in an earlier suit can be said to
be generally a matter "directly and
substantially" in issue but it does not
mean that if the matter is one in respect
of which no relief is sought it is not
directly or substantially in issue. It may
or may not be. It is possible that it was
"directly and substantially" in issue and it
may also be possible that it was only
collaterally or incidentally in issue,
depending upon the facts of the case. The
question arises as to what is the test for
deciding into which category a case falls?
One test is that if the issue was
"necessary"
to
be
decided
for
adjudicating on the principal issue and
was decided, it would have to be treated
as "directly and substantially" in issue
and if it is clear that the judgment was in
fact based upon that decision, then it
would be res judicata in a latter case
(Mulla, p. 104). One has to examine the
plaint, the written statement, the issues
and the judgment to find out if the
matter was directly and substantially
in issue (Ishwer Singh v. Sarwan Singh
[AIR 1965 SC 948] and Syed Mohd.
Salie Labbai v. Mohd. Hanifa [(1976) 4
SCC 780 : AIR 1976 SC 1569] ). We are
of the view that the above summary in
Mulla is a correct statement of the law.

19. We have here to advert to
another principle of caution referred to
by Mulla (p. 105):

"It is not to be assumed that
matters in respect of which issues have
been framed are all of them directly and
substantially in issue. Nor is there any
special significance to be attached to the
fact that a particular issue is the first in
the list of issues. Which of the matters
are
directly
in
issue
and
which
collaterally or incidentally, must be
determined on the facts of each case. A
material test to be applied is whether the
court considers the adjudication of the
issue material and essential for its
decision."
(emphasis by Court)

The Supreme Court referred to
three cases relating to instances where in
spite of a specific issue and an adverse
finding in an earlier suit, the finding was
treated as not res judicata as it was purely
incidental or auxiliary or collateral to the
main issue in each of those cases, and not
necessary for the earlier case nor its
foundation.

24. In a case before the Supreme
Court (Civil Appeal No. 9918 of 2011 -
Nand Ram v. Jagdish Prasad - decided
8 All. Rishipal Singh & Ors. Vs. Balram Singh & Anr.
367
on 19 March 2020), the judgment and
order passed by the High Court in a
Second Appeal filed by the defendant
was challenged, whereby the appeal was
allowed and the suit for possession of
land comprising in Khasra No. 9/19
measuring 3 Bighas 11 Biswas was
dismissed. The plaintiffs filed a suit for
possession asserting that they were
owners in possession of two plots of land
bearing two khasra numbers. Portions of
the two plots of land were taken on lease
for 20 years till 22nd September, 1974 on
annual rent by the defendant. It was
agreed between the parties that it will not
be open to the plaintiff-lessor to seek
ejectment of the defendant-lessee from
the leased premises, however, if the rent
for one year remained in arrear, then the
lessor would have the right to eject the
lessee. The entire leased land was
acquired pursuant to the notification
dated 24th August 1959 under Section 4
of the Land Acquisition Act, 1894. The
Land Acquisition Collector determined
the market value of the land acquired
including the super structure upon it. A
dispute
arose
with
regard
to
apportionment of compensation and the
same was referred to the Reference
Court. The defendant-respondent claimed
apportionment of compensation in lieu of
his lease-hold rights on the ground that
they were deprived of the right to retain
possession of that land for the unexpired
period of 14 years of the lease in their
favour, which was for 20 years in total.
In its award, the reference court held that
the respondent had not paid rent for more
than 12 months and, thus, in accordance
with clause 9 of the lease deed, the lease
had come to an end. Therefore, the
defendant had no right to claim a share in
the compensation payable for the land
leased to them. A part of the land
acquired, comprising in one of the plots
of land, was de-notified under Section
48(1) of the Act. Such land, measuring 1
Bigha 19 Biswas continued to be in
possession
of
the
defendant-lessee.
Thereafter, the suit was filed. In the
written statement it was asserted that the
land which was in possession of the
defendant did not form a part of the
alleged lease deed and that the defendant
was in possession of this land in his own
legal right. The defendant contended that
if the plaintiffs had any right in the land
in possession of the defendant, then the
defendant had become the owner of the
land in question by adverse possession.
The trial court decreed the suit after
evidence was led by the parties. The First
Appellate Court affirmed the findings
recorded by the trial court. In the Second
Appeal, the High Court framed two
substantial questions of law, the first of
them being:

"Whether
the
judgment
rendered by the Land Acquisition Court
on 21st August, 1961 (Ex.PW-1/12)
operates as res judicata between the
parties as regards the title of the suit
property?"

The High Court allowed the
Second Appeal holding that the finding
recorded in the award that upon nonpayment of rent for 12 months, the lease
had come to an end, had attained finality,
and therefore, such finding would operate
as res judicata. The Supreme Court
disagreed with that and held as follows:-

"27. Thus, the finding returned
in the award of the Reference Court (Ex.
PW1/12) that the lease stood determined
on account of non- payment of rent was a
finding made by the reference Court for a
limited purpose i.e. not to accept the
defendant's claim for compensation. Such
finding cannot be binding on the parties
368 INDIAN LAW REPORTS ALLAHABAD SERIES
in a suit for possession based on title or
as a lessor against a lessee.