# Rukan Singh v. Mahendra Singh & Ors

- **Citation:** (2022) 11 ILRA 43
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-19
- **Case number:** Matters U/A 227 No. 324 of 2007
- **Bench:** Siddhartha Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rukan-singh-v-mahendra-singh-ors-47835
- **Pages:** 7

## Headnote

A. Civil Law - Constitution of India-Article
227-Cutting of trees from the land of
plaintiff-Plaintiff claimed for compensationdefendants admitted that they had cut away
the trees but denied the ownership of
plaintiff-Inevitable conclusion drawn by
Trial court was that the trees of defendants
were existing in their land-Appellate Court
has erred in interfering with the findings of
the Trial court which was in favour of
plaintiff-trial court rightly observed that plot
no. 1136 and 1139 had been converted to
plot no. 159 which was clear from the C.H.
Form 41-the finding was absolutely correct
that the trees of the plaintiff alone had been
cut away- If there was in any manner a slip
in the drafting of the plaint and plot no. 159
was not mentioned in the pleading it did not
mean
that
the
Trial
court
erred
in
considering the evidence which was
produced with regard to plot no. 159-Thus,
The appellate court judgment and decree is
set aside.(Para 1 to 29)

The writ petition is allowed. (E-6)

List of Cases cited:

## Text

11 All. Rukan Singh Vs. Mahendra Singh & Ors.
43
undergone. Accordingly, the appellant is
held guilty under Section 304B I.P.C. and is
sentenced to rigorous imprisonment for a
period of 10 years but the fine and default
sentence are maintained.

38. Accordingly, the appeal is partly
allowed with the modification of the
sentence and punishing section as above.
Record and proceedings be sent back to the
Court below forthwith.

39. A copy of this order be sent to the
jail authorities for following this order and
doing the needful.

40. We are thankful to Rajrshi Gupta,
learned counsel for the appellant, Sri
Nagendra
Kumar
Srivastava,
learned
A.G.A. and Mr. Mohd. Furkan Khan, Law
Clerk (Trainee), for ably assisting the
Court.
----------
(2022) 11 ILRA 43
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.09.2022

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.

Matters U/A 227 No. 324 of 2007

Rukan Singh ...Petitioner
Versus
Mahendra Singh & Ors. ...Respondents

Counsel for the Petitioner:
Sri K.M. Garg

Counsel for the Respondents:
SC, Sri Raj Mohan Saggi, Sri Anil Sharma

A. Civil Law - Constitution of India-Article
227-Cutting of trees from the land of
plaintiff-Plaintiff claimed for compensationdefendants admitted that they had cut away
the trees but denied the ownership of
plaintiff-Inevitable conclusion drawn by
Trial court was that the trees of defendants
were existing in their land-Appellate Court
has erred in interfering with the findings of
the Trial court which was in favour of
plaintiff-trial court rightly observed that plot
no. 1136 and 1139 had been converted to
plot no. 159 which was clear from the C.H.
Form 41-the finding was absolutely correct
that the trees of the plaintiff alone had been
cut away- If there was in any manner a slip
in the drafting of the plaint and plot no. 159
was not mentioned in the pleading it did not
mean
that
the
Trial
court
erred
in
considering the evidence which was
produced with regard to plot no. 159-Thus,
The appellate court judgment and decree is
set aside.(Para 1 to 29)

The writ petition is allowed. (E-6)

List of Cases cited:
1. Satyadhyan Ghosal & ors. Vs Smt. Deorjin
Debi & anr. (1960) AIR SC 941

2. Md. Inam Vs Sanjay Kumar Singhal & ors.
(2020) 7 SCC 327

3. Sumesh Singh Vs Phoolan Devi & ors. (2009)
12 SCC 689

4. Shreepat Vs Rajendra Prasad & ors. (2000) 7
JT 379

5. Gajraj & ors. Vs Ramadhar & ors. (1975) AIR
Alld 406

6. Ram Sarup Gupta(dead) by L.Rs. Vs Bishun
Narain Inter College & ors. (1987) AIR SC 1242

7. Nagubai Ammal & ors. Vs B. Shama Rao &
ors. (1956) SC 593

8. Katikara Chintamani Dora & ors. Vs Guatreddi
Annamanaidu & ors. (1974) AIR SC 1069

9. Smt. Manjushri Raha & ors. etc Vs B.L Gupta
& ors. etc (1977) AIR SC 1158

10. Joseph Peter Sandy Vs Veronica Thomas
Rajkumar & anr. (2013) 3 SCC 801
44 INDIAN LAW REPORTS ALLAHABAD SERIES
11. Makhan Lal Bangal Vs Manas Bhunia & ors.
(2001) JT 1 252

12. Raj. St. TPT Corp. & anr.. Vs Bajranj Lal
(2014) AIR SCW 2058

13. Saurashtra Chemicals Vs Collector of
Customs (1998) 8 JT 39

(Delivered by Hon'ble Siddhartha Varma, J.)

1. A Suit being Original Suit No. 28
of 1995 was filed by the applicant against
the respondents and one Jeet Singh. Relief
sought was that the defendants be made to
pay to the plaintiff Rs. 15,000/- as costs of
the trees which were cut away by them
from the plaintiff's plots nos. 1136 and
1139 which were having an area of about
14 bighas. The boundaries of the plots in
question were also given in the plaint. The
defendants filed their written statements
denying the claim of the plaintiff saying
that the plaintiffs were not the owners in
possession of plots nos. 1136 and 1139 and
they also denied the boundaries as were
given in the plaint. However, after the
framing of issues the Suit was decreed on
21.2.2006. While deciding the issue no. 1,
it was categorically found that the plots
nos. 1136 and 1139 were in the ownership
of the plaintiff and that subsequently these
plots were numbered as plot no. 159 after
consolidation which fact was clear from the
C.H. Form - 41 (Form which the
consolidation authorities issue for showing
the changed number of plots).

2. The Trial Court had also concluded
that the fact that from plots nos. 1136 and
1139 (which were subsequently numbered as
plot no. 159) the defendants had cut away the
trees, was also clear as the khasras with
regard to the old plots of the fasli year 1402,
1407 and 1410 had on them trees of Siros,
Eucalyptus, Shisham and Jamun while the
later khasras had no trees on them. This
finding was arrived at despite the fact that the
defendants had come up with a case that the
trees in question were standing on their plots
which were numbered as plot no.169.

3. The Trial Court had decreed the Suit
despite the fact that the defendants had stated
that in Khasras of 1402F to 1410F, the trees
of Shisham, Siras, Jamun and Eucalyptus
were there in their plot.

4. The Trial Court had found that the
trees in question were definitely there on the
plots of the plaintiff and had been cut away
by the defendants because the defendants had
admitted that they had cut away certain trees
and the trees on their plot no.169 were still in
existence.

5. Not satisfied by the Trial Court's
decree, the respondents other than Jeet Singh
who had died during the pendency of the
Suit, filed an Appeal.

6. Before the appellate Court, the
plaintiff filed an application (17ga) on
17.10.2006 for bringing an additional issue
("क्या वििावित पेड़ युकविप्टुस, वसरस, खसरा
न. 159 में स्थित िे")

7. The plaintiff also filed an application for
amending the plaint on 17.10.2006 which was
numbered as 18(ka). In it he had prayed that in
paragraph no. 1 the word, "Chak" be deleted and
the plaintiff be permitted to write "Purana
Khasra" instead. Further prayer was made that in
paragraph no. 1 itself "चकबंिी में पुराने खसरा न.
1136 ि 1139 से चकबंिी तिा अन्य खसरा नम्बर ं
से नया खसरा न. 159 बना है" be added.

8. Still further, an application was
moved on 4.11.2006 for the issuance of a
survey commission.
11 All. Rukan Singh Vs. Mahendra Singh & Ors.
45

9. On 17.10.2006, the application
which is numbered as 17(ga) was rejected.
Thereafter on 2.11.2006, the application no.
18(ga) was also rejected and finally on
6.11.2006 the application for survey
commission being application no. 20(ga)
was also rejected. Thereafter, the appeal
which was filed by the respondents was
decided and allowed on 4.1.2007.

10. The plaintiff-applicant has filed
the instant writ petition against the order
dated 17.10.2006 by which the application
for framing of issues was rejected; the
order dated 2.11.2006 by which the
amendment application was rejected and
the order dated 6.11.2006 by which the
application
for
issuing
the
survey
commission was rejected and also for the
setting aside of the judgement and decree
dated 4.1.2007 by which the Appeal was
allowed.

11. No Second Appeal was filed as by
the amendment of the Civil Procedure
Code, no Second Appeal lay for a Suit
where
recovery
of
money
was
not
exceeding Rs.25,000/-.

12. Learned counsel for the applicant
relied upon the judgements of the Supreme
Court reported in AIR 1960 SC 941
(Satyadhyan Ghosal and others vs. Smt.
Deorjin Debi and another) and (2020) 7
SCC 327 (Mohd. Inam vs. Sanjay Kumar
Singhal and others) and has submitted that
interlocutory orders which could have been
earlier challenged by means of Revision
could very well be challenged before this
Court while challenging the judgement and
decree of the First Appeal dated 4.1.2007.

13. Learned counsel for the petitioner
further submitted that if the applications
(17ga), 18(ka) and 20(ga) were allowed
then the confusion which was there in the
mind of the Appellate Court with regard to
the number of plot would have been cleared
and
he
therefore
submits
that
the
amendment application ought to have been
allowed. The survey commission would
also have cleared all doubts.

14. Learned counsel for the petitioner
further submitted that the Appeal was a
continuation of a Suit and, therefore, the
amendment application by which no
admission was being withdrawn or by
which no right which had accrued to the
defendant was being challenged ought to
have been allowed. He further submitted
that since the amendment application was
in a Suit which was filed prior to the
amendment which was brought in the Code
of Civil Procedure on 1.7.2002 the
amendment application ought to have been
allowed as had been held in (2009) 12 SCC
689 (Sumesh Singh vs. Phoolan Devi and
others). The amendment application was
thus not barred by the proviso to Order VI
Rule 17 and that the same ought to have
been allowed.

15. Learned counsel for the petitionerapplicant further submitted that issuance of
the survey commission was also important
as that would have cleared the cob-web in
the mind of the Appellate Court and for this
purpose, he relied upon the judgement
reported in 2000 (7) JT 379 (Shreepat v.
Rajendra Prasad & Ors.). He also relied
upon a judgement of the Allahabad High
Court
reported
in
AIR
1975
ALLAHABAD 406 (Gajraj and others
vs. Ramadhar and others).

16. Further, it is the case of the
applicant-petitioner that if the case of the
plaintiff was clear from the pleading which
was to the effect that from plots nos. 1136
46 INDIAN LAW REPORTS ALLAHABAD SERIES
and 1139, the boundaries of which were
given, then it mattered little that the
changed plot no. 159 was not given in the
plaint.

17. Learned counsel for the petitioner
further submitted that when the C.H. Form
41 was present as an evidence before the
Court then it was evident that the two plots
numbered as 1136 and 1139 were converted
to plot no. 159. He further submitted that
the defendants always stated that plot no.
169 was their plot and on their plot trees
which found place in the khasras of the
years 1402 to 1410F were very much
standing and in face of the admission of the
defendants that they had cut away the trees
it was only very evident that they had cut
them away from the plaintiffs plots.
Therefore, he submits that no interference
ought to have been made by the Appellate
Court.

18. Learned counsel for the plaintiffapplicant relied upon AIR 1987 SC 1242
(Ram Sarup Gupta(dead) by L.Rs. vs.
Bishun Narain Inter College and others)
and submitted that it was not desirable to
place undue emphasis on form; instead he
submitted that substance of pleadings
should have been considered.

19. Since the learned counsel for the
petitioner relied upon the paragraph no. 6
of the judgement the same is being
reproduced here as under:-

"The question which falls for
consideration is whether the respondents in
their written statement have raised the
necessary pleading that the license was
irrevocable as contemplated by Section
60(b) of the Act and, if so, is there any
evidence on record to support that plea. It is
well settled that in the absence of pleading,
evidence, if any, produced by the parties
cannot be considered. It is also equally
settled that no party should be permitted to
travel beyond its pleading and that all
necessary and material facts should be
pleaded by the party in support of the case
set up by it. The object and purpose of
pleading is to enable the adversary party to
know the case it has to meet. In order to
have a fair trial it is imperative that the
party should state the essential material
facts so that other party may not be taken
by surprise. The pleadings however
should receive a liberal construction, no
pedantic approach should be adopted to
defeat
justice
on
hair
splitting
technicalities. Sometimes, pleadings are
expressed in words which may not
expressly make out a case in accordance
with strict interpretation of law, in such a
case it is the duty of the Court to ascertain
the substance of the pleadings to determine
the question. It is not desirable to place
undue emphasis on form, instead the
substance of the pleadings should be
considered. Whenever the question about
lack of pleading is raised the enquiry
should not be so much about the form of
the pleadings, instead; the court must
find out whether in substance the parties
knew the case and the issues upon which
they went to trial. Once it is found that in
spite of deficiency in the pleadings parties
knew the case and they proceeded to trial
on those issues by producing evidence, in
that event it would not be open to a party to
raise the question of absence of pleadings
in appeal. In Bhagwati Prasad v. Shri
Chandramaul, (1966) 2 SCR 286 : (AIR
1966 SC 735) a Constitution Bench of this
Court considering this question observed:

"If a plea is not specifically
made and yet it is covered by an issue by
implication, and the parties knew that the
said plea was involved in the trial, then
11 All. Rukan Singh Vs. Mahendra Singh & Ors.
47
the mere fact that the plea was not
expressly taken in the pleadings would
not necessarily disentitle a party from
relying upon if it is satisfactorily proved
by evidence. The general rule no doubt is
that the relief should be founded on
pleadings made by the parties. But where
the substantial matters relating to the title
of both parties to the suit are touched,
though indirectly or even obscurely in the
issues, and evidence has been led about
them, then the argument that a particular
matter was not expressly taken in the
pleadings would be purely formal and
technical and cannot succeed in every
case. What the Court has to consider in
dealing with such an objection is : did the
parties know that the matter in question
was involved in the trial, and did they
lead evidence about it ? If it appears that
the parties did not know that the matter
was in issue at the trial and one of them
has had no opportunity to lead evidence
in respect of it, that undoubtedly would
be a different matter. To allow one party
to reply upon a matter in respect of which
the other party did not lead evidence and
has had no opportunity to lead evidence,
would
introduce
considerations
of
prejudice, and in doing justice to one
party, the Court cannot do injustice to
another.""

20. He further relied upon a
judgement of the Supreme Court reported
in 1956 SC 593 (Nagubai Ammal and
others vs. B.Shama Rao and others).

21. Learned counsel for the petitioner
heavily relied upon another judgement of
the Supreme Court reported in AIR 1974
SC 1069 (Katikara Chintamani Dora
and others v. Guatreddi Annamanaidu
and others). The relevant portion of
paragraph no. 55 which the learned counsel
relied upon is being reproduced here as
under :-

"We think, with all respect, that
such an assumption was contrary to the
well-established principle that in construing
a pleading or a like petition, in this country,
the court should not look merely to its
form, or pick out from it isolated words or
sentences; it must read the petition as a
whole, gather the real intention of the party
and reach at the substance of the matter."

22. A similar view which was taken in
AIR 1977 SC 1158 (Smt. Manjushri
Raha and others etc. v. B.L. Gupta and
others etc.) and which was cited before me
also states that "pleadings have to be
interpreted not with formalistic rigour but
with latitude or awareness of low legal
literacy of poor people."

23. Learned counsel for the petitioner
also relied upon (2013) 3 SCC 801 (Joseph
Peter
Sandy
vs.
Veronica
Thomas
Rajkumar and another) and submitted
that lack of details in the pleadings cannot
be a ground to reject a case for the reason
that it can be supplemented through
evidence by the parties.

24. Learned Senior Counsel appearing
for the respondents Sri Anil Sharma
assisted by Sri Raj Mohan Saggi, however,
submitted that the Trial Court had exceeded
its jurisdiction by concluding that plot no.
1136 and 1139 were now plot no. 159
despite the fact that there was no pleading.
Learned counsel for the respondents relied
upon 2001 JT (1) 252 (Makhan Lal
Bangal v. Manas Bhunia & Ors) and
submitted that there is a method by which
issues have to be framed and when that is
not followed the Court errs. He further
relied upon a judgement of the Supreme
48 INDIAN LAW REPORTS ALLAHABAD SERIES
Court reported in 2014 AIR SCW 2058
(Rajasthan State TPT Corporation and
another vs. Bajranj Lal) and submitted
that finding given in the absence of
necessary
pleadings
and
supporting
evidence cannot be sustained in the eyes of
law and he, therefore, submitted that when
in the plaint there was no averment with
regard to the fact that trees were standing
on plot no. 159, the Appellate Court rightly
allowed the Appeal and dismissed the Suit.

25. On the same issue, learned
counsel for the respondents has relied upon
1998 (8) JT 39 (Saurashtra Chemicals v.
Collector of Customs) and argued that in
the absence of pleadings and evidence, if
any, the case could not be considered by the
authorities.

26. Having heard the learned counsel
for the parties and having gone through the
judgements which have been cited by them,
this Court is of the view that the Appellate
Court
erred
in
interfering
with
the
judgement and decree of the Trial Court.
The Trial Court had conclusively given a
finding that plot no. 1136 and 1139 the
boundaries of which were given had been
converted to plot no. 159 and this was also
clear from the C.H. Form 41. If there was
in any manner a slip in the drafting of the
plaint and plot no. 159 was not mentioned
then it did not mean that the Trial Court
erred in considering the evidence which
was produced with regard to plot no. 159.

27. When the issues were framed
then clearly issue no. 5 was to the effect as
to whether the plaintiff was the owner of
the plots in question. The plots nos. 1136
and 1139 were involved in the case and
C.H. Form No.41 had clearly stated that
plot no. 1136 and 1139 were converted
after consolidation into plot no. 159,
therefore, there was absolutely no question
that the defendants would be taken by
surprise. In fact, the defendants while
answering the plea that they had cut away
the trees from the plaintiffs land had
mentioned that yes they had cut away the
trees but they had cut them away from
their own land which was contained in
plot no. 169. The natural conclusion,
therefore, is that there was cutting of trees
done by the defendants. What is more, the
inevitable conclusion was also that as per
the khasras of the defendants, the trees in
their plots were still standing and,
therefore, the finding was absolutely
correct that the trees of the plaintiff alone
had been cut away.

28. After having concluded that the
Appellate Court had erred in interfering
with the finding of the Trial Court, this
Court is not giving any finding with regard
to the fact as to whether the applications
17(ga), 18(ka) and 20(ga) were rightly or
wrongly rejected. Suffice it to say that the
orders by which these applications were
rejected could have been challenged
before this Court and the applicant
petitioner if has challenged those orders,
he has committed no wrong. However,
since nothing would turn on whether they
were rightly rejected or wrongly rejected,
the impugned orders dated 17.10.2006,
2.11.2006 and 6.11.2006 are not being
adjudicated upon.

29. The judgement and decree dated
4.1.2007 passed by the Additional District
Judge, Court No.2, Bijnor, in Civil Appeal
No. 25 of 2006 by which the first appeal
was allowed deserves to be set aside and,
therefore,
is
being
set
aside.
The
application under Article 227 of the
Constitution of India is, accordingly,
allowed.
11 All. Neel Prasad Vs. Anoop Prasad
49
----------
(2022) 11 ILRA 49
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.09.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Matters U/A 227 No. 860 of 2022 (Civil)

Neel Prasad ...Petitioner
Versus
Anoop Prasad ...Respondent

Counsel for the Petitioner:
Sri Deepak Kumar Srivastava

Counsel for the Respondent:
Sri Manish Goyal (Sr. Advocate), Sri Manish
Goyal A.C., Sri Manish Goyal Amircus
Curiae

A. Civil Law - Indian Trust Act, 1882Section 34 & 1-Constitution of India, 1950Article 227-Public religious trust-petitioner
granted permission to dispose of the
property of the temple for reconstruction -
Trial court rightly rejected the application
holding that the Act 1882 does not apply to
public or private religious or charitable
endowments-Petitioner's cause is noble and
requires urgent relief but the remedy is not
available at all in the present case.(Para 1 to
14)

The writ petition is disposed of. (E-6)
(Delivered by Hon'ble J.J. Munir, J.)

1. Heard Mr. Deepak Kumar
Srivastava,
learned
Counsel
for
the
petitioner and Mr. Manish Goyal, learned
Senior Advocate, who on request of the
Court acted as Amicus Curiae.

2. This petition under Article 227 of
the Constitution arises from proceedings
brought before the District Judge of
Gorakhpur under Section 34 of the Indian
Trusts Act, 1882 (for short, 'the Act of
1882').

3. By an application under Section 34
of the Act of 1882, the petitioner, invoking
the advisory jurisdiction of the Court
regarding the management of trust property
of the temple of Thakur Ji, has come up
with a prayer for the grant of permission to
dispose of the property of the temple, that
is debutter, in order to apply the proceeds
of the sale for restoration of the temple, that
is said to be hundred years old and in a
dilapidated condition.

4. The learned Additional District
Judge, Court No.1, Gorakhpur, before
whom the said application numbered as
Civil Misc. Case No. 171 of 2020 came up,
has rejected the same, holding that the Act
of 1882 does not apply to public or private
religious or charitable endowments.

5. It is against the said order that the
unsuccessful applicant before the District
Judge has petitioned this Court under
Article 227 of the Constitution.

6. Since a purely legal question about
the applicability of the Act of 1882 to a
religious endowment or a trust, governing a
temple, where thousands throng in faith
was involved, this Court requested Mr.
Manish Goyal to assist the Court as Amicus
Curiae. Mr. Goyal readily rendered his
very able assistance.

7. The applicant, Neel Prasad says
that he has been the owner of a one-half
share in the property shown in Schedule A
to the application moved before the District
Judge and has power of disposition over it.
His ancestor, Rai Thakur Dayal Singh was