# Sant Lal & Anr v. Chhakauri Ram Gupta

- **Citation:** (2016) 5 ILRA 1155
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-20
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sant-lal-anr-v-chhakauri-ram-gupta-43749
- **Pages:** 13

## Headnote

Civil Procedure Code, 1908 - Section 100 - Second appeal - Substantial question of law.
Suit for mandatory injunction and recovery of possession - Co-sharers - Sale of undivided share - Proof of
title and possession - Partition by metes and bounds not established - Vague pleading regarding
dispossession - Amendment of plaint during pendency of suit - Effect - Advocate Commissioner's report -
Evidentiary value - Possession found with defendants - Revenue entries (Khasra) - Not conclusive proof of
title or possession - Additional evidence produced for first time in appeal - Admission without opportunity of
rebuttal - Illegality - Lower appellate court misreading oral and documentary evidence - Ignoring material
evidence - Findings on title, possession, location and identity of land held perverse - Interference in second
appeal justified.
1156 INDIAN LAW REPORTS ALLAHABAD SERIES
Co-sharers - Sale of undivided share - Validity - Effect - Sale deeds specifying only quantum of share
without boundaries - No proof of title or possession over specific portion - Partition by metes and bounds
not proved - Oral evidence incapable of improving documentary title.

Lower appellate court reversing trial court without proper appreciation of sale deeds relating to undivided
shares - Boundaries not specified - Oral evidence incapable of improving documentary title - Advocate
Commissioner's report and Court Amin's map wrongly construed - Khasra entries relied upon without
summoning original records or granting opportunity of rebuttal - Procedure adopted contrary to law -
Substantial questions of law answered in favour of defendants.

Revenue records - Khasra entries - Evidentiary value - Not conclusive proof of title or possession -
Entry relating to different arazi number - Reliance without summoning original records - Illegality.
Additional evidence - Appellate stage - Admission of documents - Mandatory requirement of opportunity of
rebuttal - Failure to afford opportunity - Procedure contrary to law - Findings vitiated.

Result - Second appeal allowed - Judgment and decree of lower appellate court set aside - Matter
remanded for fresh decision in accordance with law and in light of observations made by High Court.

## Text

5 All. Sant Lal & Anr. Vs Chhakauri Ram Gupta

1155
23. It is apparent that the impugned order does not suffer from any factual or legal
infirmity. The Court below was obliged to pass order on basis of available material before it; and it
had passed such order following the due procedure of law. No illegality, jurisdictional error appears
to have been committed by learned Civil Judge, which may attract interference of revisional Court
in the matter. There is no justification for substituting the factual findings of court below that
appears to be reasonable, and can be one of the conclusions on basis of available facts.

24. It is within jurisdiction of trial court to allow or reject the application under Section 47
CPC. In present matter the trial court had exercised its jurisdiction after appreciating the available
facts and circumstances. The reasoning given by lower court, on which the finding is based, are
factual, which are apparently acceptable and correct. There appears no factual, legal or
jurisdictional error in passing of the impugned judgment. Therefore, this revision is dismissed.

25. Let e copy of this order be communicated to lower Court immediately with direction to
expedite the proceedings of old execution case.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.05.2016

BEFORE

 THE HON'BLE SUDHIR AGARWAL, J.

Second Appeal No.- 1719 Of 1999

Sant Lal & Anr. ...Appellants
Versus
Chhakauri Ram Gupta ...Respondent

Counsel for the Appellants:
Satyendra

Counsel for the Respondent:
R.K. Chaubey, Anil Kumar, Anil Kumar Agrahari, Anil Sharma, Anupam Kulshreshtha, Ashok Kumar Jaiswal,
D.K. Thakar, Rajdeo Singh, Ravindra Prasad, Siddhartha Jaiswal

Civil Procedure Code, 1908 - Section 100 - Second appeal - Substantial question of law.
Suit for mandatory injunction and recovery of possession - Co-sharers - Sale of undivided share - Proof of
title and possession - Partition by metes and bounds not established - Vague pleading regarding
dispossession - Amendment of plaint during pendency of suit - Effect - Advocate Commissioner's report -
Evidentiary value - Possession found with defendants - Revenue entries (Khasra) - Not conclusive proof of
title or possession - Additional evidence produced for first time in appeal - Admission without opportunity of
rebuttal - Illegality - Lower appellate court misreading oral and documentary evidence - Ignoring material
evidence - Findings on title, possession, location and identity of land held perverse - Interference in second
appeal justified.
1156 INDIAN LAW REPORTS ALLAHABAD SERIES
Co-sharers - Sale of undivided share - Validity - Effect - Sale deeds specifying only quantum of share
without boundaries - No proof of title or possession over specific portion - Partition by metes and bounds
not proved - Oral evidence incapable of improving documentary title.

Lower appellate court reversing trial court without proper appreciation of sale deeds relating to undivided
shares - Boundaries not specified - Oral evidence incapable of improving documentary title - Advocate
Commissioner's report and Court Amin's map wrongly construed - Khasra entries relied upon without
summoning original records or granting opportunity of rebuttal - Procedure adopted contrary to law -
Substantial questions of law answered in favour of defendants.

Revenue records - Khasra entries - Evidentiary value - Not conclusive proof of title or possession -
Entry relating to different arazi number - Reliance without summoning original records - Illegality.
Additional evidence - Appellate stage - Admission of documents - Mandatory requirement of opportunity of
rebuttal - Failure to afford opportunity - Procedure contrary to law - Findings vitiated.

Result - Second appeal allowed - Judgment and decree of lower appellate court set aside - Matter
remanded for fresh decision in accordance with law and in light of observations made by High Court.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Satyendra, Advocate, for appellants and Sri Anil Sharma, Advocate, for
respondents.

2. This is defendants' appeal under Section 100 of Code of Civil Procedure (hereinafter
referred to as "CPC") arising from judgment and decree dated 18.09.1999 and 25.09.1999
respectively passed by Sri R.P. Mishra, Judge, Small Causes/ Civil Judge (Senior Division),
Gorakhpur in Civil Appeal No. 202 of 1991 whereby Lower Appellate Court (hereinafter referred
to as "LAC") has allowed plaintiff respondent's appeal, set aside Trial Court's judgment dated
23.10.1991 and decreed the suit by directing defendants-appellants to remove construction shown
in Amin's report 78Ga and Map 79Ga with alphabets ''अ ब स द''within three months and hand
over possession of land to plaintiff-respondent failing which plaintiff shall be entitled for delivery
of possession through Court.

3. Plaintiff, Chhakauri Ram Gupta, son of Ram Lal Gupta instituted Original Suit No. 507
of 1983 vide plaint dated 16.03.1983 in the Court of Additional Munsif'-I, Gorakhpur, praying for
grant of mandatory injunction directing defendants-appellants not to interfere in the possession of
plaintiff on the disputed land, shown in the map, at the bottom of plaint, as ''अ ब स द''and also
refrain them from dispossessing plaintiff from the said land.

4. The facts pleaded in the aforesaid plaint, as filed initially, are that plaintiff is owner of
Arazi Bhumidhari No. 125, area one acre 26 dismal, situate at Mauza Mudila Urf Mundera, Tappa
Khuthan, Pergana Haveli, Tehsil Sadar, District Gorakhpur along with Munni Lal, Govardhan and
Jitai and in possession thereof as bhumidhar. Govardhan and Jitai transferred their entire share, and,
Munni Lal some part of his share to plaintiff vide sale-deed dated 26.05.1970. Munni Lal also
subsequently transferred his entire share of disputed property in favour of plaintiff vide sale-deed
5 All. Sant Lal & Anr. Vs Chhakauri Ram Gupta

1157
dated 14.06.1971. In the revenue record, disputed land was registered in the name of plaintiff
bearing no. 125/1-183. Petitioner got land surrounded by a brick boundary and also raised
temporary construction, i.e. Marai.

5. Defendants' father Badri was also co-sharer in disputed arazi but had no interest in the
land marked as ''अ ब स द''in the map. He (Sri Badri) had constructed a house about 7-8 years
back which is shown in the map as ''य र ल व''

6. The map placed at bottom of plaint read as under:

7.There was another co-sharer Hari Lal whose part of share in the aforesaid arazi is shown
in map as ''प फ ब द" Sri Hari Lal sold his share in the aforesaid property, i.e., ''प फ ब द" to
defendants on 02.08.1977.
1158 INDIAN LAW REPORTS ALLAHABAD SERIES
8.With the passage of time, there was large scale development in nearby area of disputed
land as a result whereof defendants with intention to encroach over disputed land belong to
plaintiff, made several attempts to take possession thereof but having failed to do so, they got a suit
filed by former co-sharer Munni Lal, numbered as 129 of 1982, for cancellation of sale-deed. An
injunction application was also filed but Court rejected the same on 15.02.1983. Thereafter
defendants in furtherance of their misdeed of encroaching upon the land of plaintiff, visited the
premises along with several unsocial elements on 15.03.1983 but due to village people having
collected and opposed them, could not succeed in their attempt but threatened plaintiff that very
soon they would occupy the disputed land. It is in these circumstances, aforesaid suit seeking a
decree of injunction was filed.

9. Defendants filed a collective written statement dated 02.02.1983 stating that Arazi No.
125 area 1.26 dismal was in the co tenancy of several persons including Munni Lal, Govardhan,
Jitai and Hari Lal. To the knowledge of defendants, Munni Lal, Govardhan and Jitai did not
execute any sale-deed in favour of plaintiff. The temporary construction of Marai was not raised by
plaintiff, but it belong to defendants. Claim of ownership and possession of plaintiff was seriously
disputed. The map given at the bottom of plaint was also denied and allegations that defendants got
a suit filed through Munni Lal or made illegal attempt to occupy disputed land are denied.

10. Plaintiff subsequently got plaint amended vide Trial Court's order dated 24.09.1986
stating that during pendency of suit, he has been dispossessed and defendants have raised certain
construction thereon. Consequently, earlier prayer and map in the plaint were all deleted and
substituted by a different map and a different prayer which read as under:

''अ- बसदूर डिग्री हक वादी खिलाफ प्रडतवादीगण डववाडदत जमीि मुन्दजां िक्शा हरूफ अ, ब, स, द पर
प्रडतवादीगण को यह हक देते हये डक वे अपिी समस्त तामीरात डिजाई से भी वरवफ्त डदहािी पाई जावे स्वयं हर्ा ले जावे और हम
वादी को कब्जा दिल डववाडदत जमीि हरूफ अ, ब, स, द पर व बेदिली प्रडतवादीगण डदलवा डदया जावे।"

"A. That a decree against the defendants and in favour of the plaintiff may kindly
be issued directing the former to remove, on their own, all the constructions in question from the
disputed land shown by letters A, B, C & D in the sitemap and the plaintiff to be given possession
and occupancy over the said land by way of evicting the defendants?"

(English Translation by Court)
5 All. Sant Lal & Anr. Vs Chhakauri Ram Gupta

1159

11. Trial Court formulated following nine issues:

"1.क्ा वादी वाद पत्र के कथिािुसार डववाडदत भूडम का माडलक व काडबज है?"
"1. Whether the plaintiff is owner having possession over the disputed land as
alleged in the plaint?"

 "2.क्ा वाद का मूल्ांकि कम डकया गया है तथा न्याय शुल्क कम डदया गया है?"
"2. Whether the suit is undervalued and the court fee paid is insufficient?"

 "3.क्ा वाद में डवबंिि एवं मौि सहमडत की बािा है?"
 "3. Whether the suit is barred by the principles of estoppel and acquiescence?"

 "4. क्ा वाद में दफा 34 डवडशष्ट अिुतोष अडिडियम की बािा है?"
1160 INDIAN LAW REPORTS ALLAHABAD SERIES
 "4. Whether the suit is barred by Section 34 of the Specific Relief Act?"

 "5. क्ा वाद में दफा 168ए जमी0डविाश अडिडियम की बािा है?"
 "5. Whether the suit is barred by Section 168A of the Zamindari Abolition Act?"

 "6. वादी डकस अिुतोष को पािे का अडिकारी है?"
 "6. What relief the petitioner is entitled to get?"

 "7. क्ा वाद का मूल्ांकि अब भी कम है, तथा प्रदि न्याय शुल्क अपयागप्त है?''
 "7. Whether the suit is still undervalued and the court fee is underpaid?"

 "8. क्ा प्रडतवादीगण क्रय के डदि से डववाडदत भूडम पर अध्याडसत हैं?''
 "8. Whether the defendants have been occupying the disputed land since the date
of its purchase?"

 "9. क्ा डवर्ारािीि वाद की अवडि में प्रडतवादीगण द्वारा डववाडदत भूडम पर डकये गये डिमागण के उन्मूलि के
पश्चात उक्त भूडम पर वादी पुिः आडिपत्य प्राप्त करिे का अडिकारी है? यडद हाॅ तो प्रभाव?"
 "9. Whether during pendency of the suit, the plaintiff is, after removal of the
construction carried out by the defendant on the disputed land, entitled to get occupation over the
said land again? If so, its effect?"

(English Translation by Court)

12. Issue 2 relating to valuation and Court fee was considered as a preliminary issue and
vide order dated 02.04.1986 answered in favour of plaintiff. After amendment, issue 7 which was
again in respect to valuation and Court fee was considered as preliminary issue and answered in
favour of plaintiff vide order dated 12.12.1990. Thereafter issues 1, 8 and 9 were taken together
and Court held that plaintiff has failed to prove his ownership or possession over disputed property,
hence was not entitled to claim possession in any manner. Issues 1 and 9 were answered against
plaintiff and issue 8 was answered in affirmence, i.e., in favour of defendants. Issues 4 and 5 were
not pressed by defendants hence answered against them in negative. Issue 3 was answered in
favour of defendants and consequently Issue 6 was answered against plaintiff as a result whereof
Sri Devendra Kumar Mishra, Additional Munsif-First, Gorakhpur dismissed Original Suit No. 507
of 1983 vide judgment dated 23.10.1991.

13. Plaintiff then preferred Civil Appeal No. 202 of 1991 in the Court of Civil Judge
(Senior Division), Gorakhpur. For the purpose of appeal, LAC considered, whether issues 1, 8 and
9 have been rightly decided by Trial Court or not. It held that Trial Court has erred in appreciating
evidence and accordingly reversed findings in respect to Issue 1 and answered the same in favour
of plaintiff. Issue 8 was also answered in favour of plaintiff and against the defendants and
similarly issue 9 was also answered in favour of plaintiff. The findings of Trial Court in respect to
Issue 2, 4, 5 and 7 were upheld but in respect to issue 3 also, findings of Trial Court were reversed
and it was held that suit was not barred by waiver and acquiescence. In view of findings recorded
5 All. Sant Lal & Anr. Vs Chhakauri Ram Gupta

1161
on issue 1, 8, 9 and 3, LAC reversed judgment passed by Trial Court, allowed the appeal and
passed a decree of mandatory injunction as prayed for by plaintiff in the amended plaint. Hence,
this appeal.

14.This Court admitted the appeal vide order dated 22.12.199 on the following substantial
question of law:

"(1) Whether Court below has completely misread and misconstrued oral evidence
led by the defendants."

15. Subsequently, following substantial questions of law were also allowed to be raised by
way of allowing amendment application vide order dated 08.08.2014:

"(2) Whether in view of the clear cut stipulation in the two sale deeds dated
26.05.1970 and 14.06.1971 regarding the area sold in favour of plaintiff read with the statement of
plaintiff himself could prove the title and possession of the plaintiff over the area of 18 decimal
alleged by him as the disputed plot.

(3) Whether in the absence of the observance of the provisions contained in
Chapter A-V of the land records manual the Khasra entries of 1385 fasli filed by the plaintiff for
the first time in appeal could have been relied upon so as to hold the title and possession of
plaintiff especially when neither any opportunity to rebut the same was afforded to the appellants
nor the records were summoned from the S.D.M. Court for verifying the correctness and
genuineness of the said Khasra entries and the objections raised in this regard by the appellants
were never considered.

(4) Whether the court below has erred in law in omitting to consider the effect of
the entries in CH- Forms-5 prepared in 17.3.1979.

(5) Whether the findings of the court below regarding title, possession, location
and identity of the land in dispute is perverse."

16. It is admitted to all the parties that Arazi No. 125 has a total area of one acre 26 dismal.
The defendants-appellants relied on the sale-deed dated 02.08.1977 registered on the same date
executed by Hari Lal whereby he transferred his 1/16 share in the aforesaid Arazi to defendants
Nand lal and Sant Lal, sons of Badri which comes to .078 acre. In the sale-deed, boundary of
property sold by Hari Lal is mentioned as under:

East:
Land of Chhakauri
West:
Road Government
North:
House Gabbu
South:
House Triloki
1162 INDIAN LAW REPORTS ALLAHABAD SERIES
17. Chhakauri, son of Ram Lal, has deposed his statement as PW-1 stating that Govardhan
and Jitai had share of 10 dismal and Munni Lal had share of 8 dismal. Both sold their share to
plaintiff.

18.I propose to consider first the questions 1, 2 and 5 together. It is not in dispute that Arazi
No. 125, total area 1 acre 26 dismal, had a large number of co-sharers including Munni Lal,
Govardhan, Jitai, Sukhdev, Dwarika, Chhotu and Hari Lal. Plaintiff claimed to have purchased
total share of 10 dismal of Govardhan and Jitai and 8 dismal of Munni Lal vide sale deeds dated
28.05.1970 and 14.06.1971. Similarly, defendants-appellants purchased 1/6 share of Hari Lal vide
sale-deed dated 02.08.1977. Therefore, four persons, namely, Munni Lal, Govardhan, Jitai and Hari
Lal ceased to have any share in disputed land. All the share holders in the land in dispute had their
own land demarcated after partition by metes and bounds is not the case set up by any of parties.
LAC, however, has observed that both the parties have admitted that except Govardhan, Munni
Lal, Jitai and Hari Lal, all other co-sharers have got their land demarcated in view of mutual
settlement/ partition and were in possession of such ascertained land. Plaintiff, PW-1, in his oral
deposition has said that Kashi, Sukhdev, Dwarika, Chhotu were bhumidhar and there was a
partition amongst them. In cross-examination also, he has said:

''जब दावा डकया, तब डहस्सेदारों में बंर्वारा हो र्ुका था, डजसिे डलिा था। यह जो दावे में डलिा है डक सब लोग
एक ही साथ प्लार् िं0 125 में काडबज थें, तथा सब का कब्जा संयुक्त था यह बात गलत है।"

"When claim was filed it was mentioned therein that partition among shareholders
had taken place. The claim that all the persons were occupying Plot No. 125 together and had joint
possession over it, is incorrect."

(English Translation by Court)

19. PW-2, Uma Lal, in his cross-examination said:

''प्लार् िं0 125 के डहस्सेदारों में बंर्वारा मेरे सामिे िहीं बखल्क बहत पहले से था।"

"The partition of Plot No. 125 among shareholders did not take place before me,
rather it had occurred earlier."

(English Translation by Court)

20. In what manner partition actually took place and how the land was assigned to different
co-shares has not come on record. Trial Court appointed an Advocate Commissioner vide order
dated 22.03.1983 for submitting a site report and map which was submitted by Advocate
Commissioner on 18.05.1983. Map of disputed land shown by Advocate Commissioner is as under:
5 All. Sant Lal & Anr. Vs Chhakauri Ram Gupta

1163

21.The report in respect to possession of parties submitted by Advocate Commissioner
reads as under:

''उपरोक्त मुकदमा में न्यायालय के आदेश के अिुसार डदिांक 23-03-1983 को मौके पर डिरीक्षण हेतु गया।
वादी मुकदमा डमला तथा सन्त लाल व िन्द लाल प्रडतवादीगण की तलाश डकया डमले। उिको न्यायालय के आदेश से अवगत कराया।
िोडर्स का अिकर्ा व मुसन्ना डदया। िोडर्स का अिकर्ा लेकर िोडर्स के पुष्ट पर प्रडतवादीगण अपिा अपिा दस्तित बिाये। तत्पश्चात
मैिे डववाडदत जमीि का डिरीक्षण दोिो पक्षों की मौजूदगी में डकया तथा दावे की र्ैहद्दी से डमलाि डकया। डववाडदत तामीर अ, ब, स, द
दो भागों मे ॅं बंर्ा हआ पाया गया जो िक्शा िजरी में क, स, द, ि, व क, ि, अ, ब से दशागया गया है। दौराि उपखस्थत लोगों से पूछ
ताछ करिे पर स्थाि क, स, द, ि परती जमीि पर वादी मुकदमा का कब्जा पाया गया जो र्ारो तरफ से ईर्े ॅं की र्हारडदवारी से
डघरा हआ था। इस स्थाि से सर्े पडश्चम तरफ स्थाि क, ि, अ, ब पर सन्त लाल बवैरह प्रडतवादीगण का कब्जा पाया गया इसी स्थाि पर
क, ि, अ, ब के पडश्चमी डहस्से मे ॅं एक मिई उिर दडक्षण की लम्बाई मे ॅं बिी हई है जो िक्शा िजरी में अ, ब, घ, ग से दशागया गया है
डजसका छाजि र्ीि व फूस का है तथा इस मिई का डिकास पूरब पडश्चम दोिों तरफ हे जो िक्शा िजरी में ''िी स्थाि पर दशागया गया
है। इस मिई पर प्रडतवादीगण सन्तलाल वगैरह का कब्जा पाया गया मिई के पडश्चम तरफ पक्की सड़क है जो गोरिपुर से
महाराजगंज को जाती है तथा मिई के पूरब तरफ कुछ परती जमीि प्रडतवादीगण की है उसके सर्े पूरब वादी मुकदमा का ही िाली
जमीि स्थाि क, स, द, ि है इस िाली जमीि के पूरब तरफ पराग वगैरह का िेत है। मिई के उिर तरफ गब्बू के मकाि की
बुडियाद स्थाि र्, छ, ज, ब पर बिी हई है। मिई के सर्े दडक्षण तरफ स्थाि अ, य, र, ल पर डत्रलोकी का पक्का मकाि है डजसका
डिकास पडश्चम तरफ है डत्रलोकी के मकाि से सर्े दडक्षण तरफ बदरी का पक्का मकाि है डजसका भी डिकास पडश्चम तरफ है।"

"In compliance of Court's order in the aforesaid case, I on 23.03.1983 went to site
for inspection. I met plaintiff of the case and tried to locate defendants Sant Lal and Nand Lal and
met them. They had been apprised of the court's order. I handed over counter foil and copy of the
1164 INDIAN LAW REPORTS ALLAHABAD SERIES
notice. Receiving the counter foil of the notice, the defendants put their signatures on the back of
the notice. Thereafter, I inspected the disputed land in presence of both the parties and compared
the claimed one with the boundaries. The disputed structure aa, ba, sa, da was found divided in two
parts which are shown as 'ka, sa, da, kha' and 'ka, kha, aa, ba' in the site map. On inquiries from
the people present there, the parti (fallow) land marked as ka, sa, da, kha was found in possession
of the plaintiff of the case, which was enclosed by a brick wall. Adjacent to this place, the westward
place ka, kha, aa, ba was found in possession of Sant Lal and other defendants. At this very place,
in the western part of ka, kha, aa, ba; there stands a hut lying north to south shown as aa, ba, gha,
ga in the map and roofed with tin and grass and having exits on both sides i.e. east and west shown
to be at 'D' in the map. This hut was found in possession of Sant Lal and other defendants. To the
west of the hut, there is a concrete road leading to Mahrajganj from Gorakhpur. To its east lies
some parti (fallow) land of defendants. Adjacent to and east of it there lies vacant space ka, sa, da,
kha of the plaintiff of the case. To the west of this vacant space, there are fields of Parag and
others. To the north of the hut is laid the foundation of Gabbu's house at the place marked as cha,
chha, ja, ba. Adjacent to and south of the hut, there lies Triloki's metalled house at aa, ya, ra, la
whose exit is on the west. Adjacent to and south of Triloki's house, there lies Badri's house, whose
exit is on the west."

(English Translation by Court)

22. Plaintiff disputed the sale-deed executed by Hari Lal in favour of defendants while
defendants disputed the sale-deeds executed by Govardhan, Jitai and Munni Lal in favour of
plaintiff. However, concerned parties, who actually executed sale-deeds neither challenged the said
sale-deeds nor the said sale-deeds have been cancelled by any competent Court of law in a dispute
raised by concerned parties. Therefore, aforesaid sale-deeds and their consequence cannot be
allowed to be disputed by parties for the purpose of suit in question. The suit was filed by plaintiff
vide plaint dated 16.03.1983 and he sought amendment in the plaint which was allowed by Court
vide order dated 24.09.1986 in which it was said that during the pendency of suit, plaintiff was
dispossessed from land in dispute on which he was in possession but it was not mentioned in the
newly added paragraph as to on which date and in what manner plaintiff was actually dispossessed.
A vague statement has been made that aforesaid possession has been taken by defendants on land
on which plaintiff was in possession. Obviously, this amendment has come after Advocate
Commissioner's report dated 18.05.1983 in which he confirmed possession of defendants over land
upon which plaintiff was claiming his possession. In the entire plaint, I find no assertion made by
plaintiff that co-shares have got their land partitioned at any point of time. On the contrary, in para
1 plaintiff simply said that amongst several other owners, Munni Lal, Govardhan and Jitai are also
bhumidhar in possession and owner of disputed land. In the sale-deeds executed by Govardhan,
Jitai and Munni Lal, it is admitted case that they have not demarcated the land which they were
transferring to plaintiff. This is admitted by LAC also in the impugned judgment. LAC has further
observed in the impugned judgment that neither plaintiff nor defendants produced evidence of
concerned parties, namely, Munni Lal, Govardhan, Jitai and Hari Lal to prove that they were in
possession over particular portion of land when they executed sale-deeds. The findings in this
regard recorded by LAC read as under:
5 All. Sant Lal & Anr. Vs Chhakauri Ram Gupta

1165
''इस तरह ि तो वादीगण की ओर से मुन्नी लाल, गोविगि, जीतई िे इस संबंि में साक्ष्य प्रस्तुत की है डक आपसी
बंर्वारे के उपरान्त आराजी सं0 125 में डकस भाग पर उिका कब्जा था और ि ही हरीलाल िे इस संबंि में प्रडतवादीगण की ओर से
आकर यह प्रमाडणत डकया है डक आराजी सं0 125 में वे डववाडदत भाग पर काडबज
थे डजसका उन्होिे बैिामा डकया।"

"In this way, neither on behalf of the plaintiffs Munnilal, Govardhan and Jeetai
have adduced evidence showing which part of Plot No. 125 was in their possession after the mutual
partition, nor on behalf of the defendants Harilal has certified that they had been occupying the
disputed part of Plot No. 125 the bainama of which they executed."

(English Translation by Court)

23. Court below has misread statement of DW-1, Sant Lal that Govardhan, Jitai and Munni
Lal transferred by sale their entire share constituting 18 dismal to plaintiff by sale-deeds by reading
it as if DW-1 Sant Lal has admitted that aforesaid vendors have given possession to plaintiff over
particular part of land shown as ABCD in the plaint. Plaintiff stated that he raised a boundary wall
but adduced no evidence to prove it. After filing of plaint, the very first document which has come
on record is Advocate Commissioner's report in which land mentioned as ABCD in the plaint was
found in possession of defendants. Trial Court has founded its finding thereafter with regard to
possession of plaintiff on the basis of Paper No. 24-C, Khasra of 1385 fasali, which is marked as
Ex.-2 showing that an order was passed that in Arazi No. 125/1/18 tenure holder Chhakauri has
raised a boundary wall on 14 dismal.

24. Revenue record is not a conclusive evidence of title or possession unless it is shown
that entry made therein was after hearing all the parties. I find that entry is not in respect to Arazi
No. 125. A new number was given as Arazi No. 125/1, area 0-18, and therein entry was made. The
Advocate Commissioner's report is dated 18.05.1983 and it is also a piece of evidence showing on
the spot facts otherwise. It does not appear from record that the said report was objected by any of
the parties. Trial Court in its order dated 14.12.1983 while rejecting ad-interim injunction
application has observed that Advocate Commissioner's report appears to be reliable, particularly
when it has not been seriously objected by plaintiff. This also shows that ad-interim injunction
which was granted initially on 16.03.1983 directing parties to maintain status quo was vacated on
14.12.1983, and, in the meantime, disputed land was found in possession of defendants-appellants.
Hence, plea of plaintiff by way of amendment made subsequently in the plaint that after vacation of
interim injunction, he has been dispossessed by defendants was clearly contrary to record and this
aspect has been completely ignored by LAC.

25. It further appears that subsequently Court Amin was appointed to prepare site map
pursuant whereto Amin visited the premises on 26.12.1988 and he surveyed the land and after
measurement submitted report. This report and map submitted by Amin was accepted by Trial
Court by order dated 22.11.1990. LAC has read the aforesaid evidence of Advocate Commissioner
and Court Amin, observing that there existed a boundary wall shown in the Court Amin's report,
but there is no mention of any permanent construction raised on the disputed land which shows that
1166 INDIAN LAW REPORTS ALLAHABAD SERIES
some construction was raised during pendency of suit, but it has completely misread Court Amin's
report wherein he has said that disputed land was also divided in two parts, i.e. क स द ि and क स
द िIn the map submitted by Court Amin also, existence of boundary wall is mentioned therein.
The relevant extract of map is as under:

26. Thus findings of LAC in this regard are clearly perverse. Thus, Question-1 is answered
in favour of defendants-appellants.

27. Now coming to Question-2, I find that details of area mentioned in two sale-deeds
dated 26.05.1970 and 14.06.1971 is not clear and specific. Area which form share of respective
vendors, who were co sharers in disputed land is clearly mentioned, but boundaries are not
specified to ascertain as to which part of land was sought to be transferred. It is always open to a
co-owner to sell his undivided share. When something was transferred by way of a document, the
facts could not have been improved by oral evidence of plaintiff and with regard to possession, I
have already given my findings while answering Question-1 which is against plaintiff-respondent.
Question 2 is, therefore, answered against plaintiff-respondent.
5 All. Zamadar Vs Kali Charan

1167
28. Now coming to Question-3, it goes without saying that an additional document, if is
admitted in evidence at appellate stage, it is obligatory upon Appellate Court to give opportunity to
other side to lay its evidence, if any, in rebuttal and if such opportunity is not granted, the document
admitted in evidence per se, if relied, would be illegal. Such procedure adopted by Appellate Court
is apparently contrary to law and would vitiate further proceedings as also the findings recorded
relying on such additional evidence.

29. Question-3, therefore, is also answered in favour of appellants.

30. Once the document is on record, it ought to have been considered by Court below and
if such document is not considered, particularly when it is relevant to the issue considered by Court
below, it goes without saying that omission of such evidence is illegal and vitiates the findings
recorded by Court below. Question-4 is, accordingly, answered in favour of appellants.

31. In view of the answers given to Questions- 1 to 4, I have no manner of doubt that
Question-5, without any further discussion, has to be answered necessarily in favour of appellants
and is returned accordingly.

32. In the result, the appeal is allowed. Impugned judgment and decree dated 18.09.1999
and 25.09.1999 respectively passed by Lower Appellate Court is hereby set aside.

33. Matter is remanded to Court below to re-consider the appeal and pass a fresh order in
accordance with law and in the light of observations made above.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.05.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Second Appeal No.- 30 Of 2016

Zamadar ...Appellant
Versus
Kali Charan ...Respondent

Counsel for the Appellant:
Prem Sagar Gupta

Specific Relief Act, 1963 - S. 20 - Discretion to decree specific performance - Agreement to sell -
Registered agreement - Admission of execution - Plea of fraud - Burden of proof - Failure to prove fraud
- Readiness and willingness - Payment of substantial consideration - Concurrent findings of fact - Second
appeal - Substantial question of law - Interference - Refusal Civil Procedure Code, 1908 - S. 100 -
Second appeal - Scope - Concurrent findings - No perversity - No substantial question of law.