# Sheo Badan Defendant/ v. Prithvi Pati & Ors

- **Citation:** (2022) 11 ILRA 246
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-11
- **Case number:** Second Appeal No. 1180 of 1983
- **Bench:** Siddhartha Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sheo-badan-defendant-v-prithvi-pati-ors-47809
- **Pages:** 5

## Headnote

A. Civil Law - Code of Civil Procedure,1908
- Order VII Rule 3 C.P.C. - Identity of
Property - Order XXVI Rule 9 C.P.C.,
Commissions to make local investigations
- Transfer of Property Act, 1872 - Section
118 - Exchange - Plaintiff established that
he
had
given
his
plot
no.2573/1
measuring 11 decimals in exchange of plot
no.2143
which
was
subsequently
converted to plot no.2826/10 and then
later on to 2826/11, at the time of
consolidation and, therefore, he had a
right over the same - As per section 118 of
the Transfer of Property Act, 1872 there
was a proper exchange of plot no.2573/1
(of the plaintiff) with plot no.2143 (of
Ganga and Harivansh) and since at the
time when the exchange had taken place
i.e. in the year 1950, the plots were valued
not more than Rs.100/-, there was no
requirement of a written document -
Lower appellate Court committed no error
in law in not getting the plot in dispute
demarcated by preparing a survey map
and not getting the identity of the plots
established - Court found that in fact
there was no dispute with regard to plot
11 All. Sheo Badan Vs. Prithvi Pati & Ors.
247
no.2826 as the document 23-Ga definitely
showed
that
plot
no.2826/10,
now
numbered as 2826/11, had gone to the
plaintiff after an exchange with the
plaintiff's plot no.2573/1 then there was
absolutely no dispute with regard to the
identity of the plot - the only dispute
which the defendants were raising was
that the plot no.2826/11 was earlier plot
no.2143/1
and
this
the
defendant/
appellant could not prove (Para 10)

B. Civil Law - U.P. Tenancy Act, 1939 -
Section 53
-
Exchange
of
land
for
consolidation of cultivated area - As per
the provisions of section 53 of the U.P.
Tenancy Act, 1939, an agricultural land
could be exchanged by an agricultural
land - In the instant case, the Court found
that earlier the land i.e. plot no.2573/1
though was entered as abadi, it was
subsequently,
by
the
order
of
the
Consolidation
Court,
changed
into
agricultural land therefore there was no
infringement of any provision of the U.P.
Tenancy Act, 1939 (Para 11)

Dismissed. (E-5)

List of Cases cited:

## Text

246 INDIAN LAW REPORTS ALLAHABAD SERIES
not prove that the plaintiff was in any
manner ill on the date of the execution of
the sale deed. The Doctors who had given
the prescriptions were never produced. The
prescriptions themselves told a story which
was different from the case which the
plaintiff was taking and also the Trial Court
rightly concluded from the facts which the
defendants had brought on record and had
not been denied by the plaintiff that none of
the other brothers of the plaintiff had come
in the witness box to allege that the
defendants' father had exercised undue
influence. Even the nephew who was much
loved by the plaintiff and whose name
found place on the top of the house never
came in the witness box. What is more the
Court finds that, in fact, the plaintiff has
not been able to prove as to from where the
amount which he had deposited in the fixed
deposit was earned by him. This also shows
that
the
plaintiffs
had
taken
the
consideration and had also converted the
consideration money into a fixed deposit. It
appears that the plaintiff had filed a suit as
an afterthought.

16. Under such circumstances, it is
abundantly proved that the First Appellate
Court wrongly shifted the burden on the
defendants to prove that the plaintiff was
not under any undue influence of the
defendant's father. All the evidence which
was there before the Trial Court was
correctly analysed in a balanced manner by
it. The First Appellate Court wrongly
shifted the burden on the defendants. The
Second Appeal, therefore, is allowed. The
judgement and decree of the First Appellate
Court dated 17.12.1994 passed by the VIth
Additional District Judge, Azamgarh, is set
aside. The Suit stands dismissed.
----------
(2022) 11 ILRA 246
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.10.2022

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.

Second Appeal No. 1180 of 1983

Sheo Badan ...Defendant/Appellant
Versus
Prithvi Pati & Ors.
 ...Plaintiffs/Respondents

Counsel for the Appellant:
Sri V.B. Khare, Sri Ashok Kumar Shukla, Sri
L.P. Tiwari

Counsel for the Respondents:
Sri H.R. Mishra, Sri A.K. Mishra, Sri A.P.N.
Giri, Sri Arvind Prabodh Dubey, Sri P.K.
Mishra, Sri R.S. Mishra, Sri Ashok Kumar
Giri

A. Civil Law - Code of Civil Procedure,1908
- Order VII Rule 3 C.P.C. - Identity of
Property - Order XXVI Rule 9 C.P.C.,
Commissions to make local investigations
- Transfer of Property Act, 1872 - Section
118 - Exchange - Plaintiff established that
he
had
given
his
plot
no.2573/1
measuring 11 decimals in exchange of plot
no.2143
which
was
subsequently
converted to plot no.2826/10 and then
later on to 2826/11, at the time of
consolidation and, therefore, he had a
right over the same - As per section 118 of
the Transfer of Property Act, 1872 there
was a proper exchange of plot no.2573/1
(of the plaintiff) with plot no.2143 (of
Ganga and Harivansh) and since at the
time when the exchange had taken place
i.e. in the year 1950, the plots were valued
not more than Rs.100/-, there was no
requirement of a written document -
Lower appellate Court committed no error
in law in not getting the plot in dispute
demarcated by preparing a survey map
and not getting the identity of the plots
established - Court found that in fact
there was no dispute with regard to plot
11 All. Sheo Badan Vs. Prithvi Pati & Ors.
247
no.2826 as the document 23-Ga definitely
showed
that
plot
no.2826/10,
now
numbered as 2826/11, had gone to the
plaintiff after an exchange with the
plaintiff's plot no.2573/1 then there was
absolutely no dispute with regard to the
identity of the plot - the only dispute
which the defendants were raising was
that the plot no.2826/11 was earlier plot
no.2143/1
and
this
the
defendant/
appellant could not prove (Para 10)

B. Civil Law - U.P. Tenancy Act, 1939 -
Section 53
-
Exchange
of
land
for
consolidation of cultivated area - As per
the provisions of section 53 of the U.P.
Tenancy Act, 1939, an agricultural land
could be exchanged by an agricultural
land - In the instant case, the Court found
that earlier the land i.e. plot no.2573/1
though was entered as abadi, it was
subsequently,
by
the
order
of
the
Consolidation
Court,
changed
into
agricultural land therefore there was no
infringement of any provision of the U.P.
Tenancy Act, 1939 (Para 11)

Dismissed. (E-5)

List of Cases cited:

1. Harnam Singh Vs Bhikimbar Singh & ors.
reported in AIR 1980 Allahabad 50

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

1. This Second Appeal has been filed
against the judgment and decree dated
20.1.1983 passed by the Civil Judge, First,
Gorakhpur in Civil Appeal No.200 of 1982.

2. The plaintiff aggrieved by the
disturbance which was being caused by the
defendant in his plot no.2826/11, had filed a
suit being Original Suit No.53 of 1978. When
the suit was dismissed, the First Appeal being
Appeal No.200 of 1982 was filed. When the
First Appeal was allowed, the defendants
filed the instant Second Appeal.

3. Plaintiff's case was that he was in
possession over 11 decimals of plot
no.2826/11 which he had got in exchange
from Ganga and Harivansh after he had
surrendered his plot no.2573/1 to them. In
effect, the case was that the plaintiff had
got plot no.2826/11 (earlier 2826/10) in
exchange of his plot no.2573/1. Both the
plots were having areas of 11 decimals.
This exchange, as per the plaintiff, had
taken place in the year 1950. When on
13.4.1976, the defendants had without any
authority encroached upon the land of the
plaintiff, he had on various occasions
written to the police and when nothing
happened, the plaintiff filed the suit.

4. The plaintiff's suit was dismissed
on the ground that the Trial Court found
that the plaintiff had not been able to prove
his case. However, the First Appellate
Court had decreed the suit on the ground
that the plaintiff had been able to establish
that he had given his plot no.2573/1
measuring 11 decimals in exchange of plot
no.2143 which was subsequently converted
to plot no.2826/10 and then later on to
2826/11 and, therefore, he had a right over
the same. The First Appellate Court had
also found that the defendants could not
prove their case as they were in effect
mentioning about a plot being plot
no.2143/1 which was theirs and which in
no manner was the same as plot no.2143.

5.

The
Appellate
Court
had
formulated three questions which were to
the following effect and were to be
answered by it :-

(1) Was the plaintiff bhumidhar
of the plot in question ?

(2) Was the plaintiff entitled for
any damages ?
248 INDIAN LAW REPORTS ALLAHABAD SERIES

(3) Whether the suit was barred
by limitation ?

6. With regard to the first question,
the First Appellate Court had, after dealing
with all the relevant evidence before it
come to a conclusion that plot no.2573/1
which belonged to the plaintiff was in fact
given in exchange of plot no.2143 to Ganga
and Harivansh. While arriving at this
finding, the First Appellate Court had
concluded on the basis of various evidence.
It had found that earlier the plaintiff was
the owner of plot no.2573/1 area 11
decimals. This plot, according to the First
Appellate Court, was an agricultural plot
and it was exchanged by plot 2143 area 11
decimals
which
was
subsequently
numbered as 2826/10 and later on was
numbered as 2826/11 at the time of
consolidation. It was shown that this plot
had abadi but upon objections being made
by Ganga and Harivansh, it was again
recorded as agricultural.

7. The First Appellate Court, while
dealing with the case of the defendants, had
categorically held that the defendant when
was mentioning about the plot, being plot
no.2143/1 which in the year 1905 was
divided into sub-plots numbered as 112 to
117 as being of the defendant then he was
mentioning about a totally different plot.
The First Appellate Court categorically
held that plot no.2143/1 was never
numbered as 2826/10. It has stated that the
"Fard Mutabik" (exchange form) which
was numbered as Paper No.68-Ga, had no
mention about plot no.2143/1. The First
Appellate Court also found that the
defendants had no right because they had
althrough stated that they were always in
possession over plot no.2143/1 and that
they had also by means of a sale deed
purchased the same on 17.12.1977 from
Ganga and Harivansh. The First Appellate
Court also concluded that when the
defendants althrough were in possession
over the plot in question then what was the
necessity of purchasing the same on
17.12.1977. The First Appellate Court,
therefore, concluded that as per section 118
of the Transfer of Property Act, 1872 there
was a proper exchange of plot no.2573/1
(of the plaintiff) with plot no.2143 (of
Ganga and Harivansh) and since at the time
when the exchange had taken place i.e. in
the year 1950, the plots were valued not
more
than
Rs.100/-,
there
was
no
requirement of a written document. It had
also found that a zamindar was not barred
by the requirements of the U.P. Tenancy
Act, 1939.

8. While dealing with the defendants'
case with regard to the document no.58-Ga,
which was placed on record as evidence
and which was the khatauni for the years
1333 Fasli and 1334 Fasli, it held that the
document
only
evidenced
that
the
Zamindar of the village was Ram Chandra
Tiwari. The First Appellate Court had
concluded that in 1950, when the exchange
had taken place as per the document which
was numbered as 23-Ga, it was clear that
Ganga and Harivansh were owners of plot
no.2573/1 whereas the plaintiffs were
entered over plot no.2826/10. It has also
been found that on this paper the factum of
transfer is mentioned. With regard to
document nos.36-Ga and 37-Ga which the
defendants had placed on record, the Court
categorically had given a finding that they
were with regard to plot no.2143/1 and the
defendant could not get any advantage
from this paper. The Court below also had
concluded that since the plaintiff and
defendants were not at quarrel with regard
to the fact that the land in question was not
numbered as 2143/1, there was no question
11 All. Sheo Badan Vs. Prithvi Pati & Ors.
249
of getting any survey done. It further
concluded that since the defendants were
althrough wanting to establish that plot
no.2826/11 was a plot which had got
converted from plot no.2143/1 and this fact
the defendants could not establish, the
defendants had no case.

9. Assailing the judgment and decree
of the First Appellate Court, Sri Ashok
Kumar Shukla, learned counsel for the
appellant/defendant argued on the three
questions of law which are as follows and
which were formulated at the time of
admission :-

1. whether the lower appellate
Court had erred in law in not getting the
plot in dispute demarcated by preparing a
survey map and not getting the identity of
the plots established as is a requirement
under Order VII Rule 3 C.P.C. and under
Order XXVI Rule 9 C.P.C.?

2. whether the exchange in favour
of the plaintiff was legal ?

3. whether the land in dispute was
a land appurtenant to the house of the
defendant ?

10. Learned counsel for the appellant
vehemently argued that when there was a
question involved as to whether plot
no.2826/11 was originally plot no.2143 and
the defendants were coming up with
various documents that the plot n o.2826/11
was earlier plot no.2143/1 which had been
partitioned into plot nos.112 to 117, then
survey ought to have been done. He relied
upon a judgment of the Supreme Court in
the case of Sreepat vs. Rajendra Prasad
& Ors. reported in JT 2000 (7) SC 379
and submitted that when there was a
dispute with regard to the identity with
regard to a plot then a survey was a must.
Since upon a bare perusal of the order of
the First Appellate Court this Court finds
that in fact there was no dispute with regard
to plot no.2826 as the document 23-Ga
definitely showed that plot no.2826/10,
now numbered as 2826/11, had gone to the
plaintiff after an exchange with the
plaintiff's plot no.2573/1 then there was
absolutely no dispute with regard to the
identity of the plot. In fact the only dispute
which the defendants were raising was that
the plot no.2826/11 was earlier plot
no.2143/1 and this the defendant-appellant
could not prove. The document which they
had relied upon i.e. paper no.68-Ga had not
mentioned about the plot no.2143 at all.
Hence, the Court finds that there was no
error committed by the First Appellate
Court in not getting a survey conducted.

11. With regard to the second
question as to whether the exchange in
favour of the plaintiff was legal, the Court
finds that as per the provisions of section
53 of the U.P. Tenancy Act, 1939, an
agricultural
land
could
have
been
exchanged
by
an
agricultural
land.
However, in the instant case, the Court
finds that earlier the land i.e. plot no.2573/1
though was entered as abadi, it was
subsequently,
by
the
order
of
the
Consolidation
Court,
changed
into
agricultural land and, therefore, it can
safely
be
said
that
there
was
no
infringement of any provision of the U.P.
Tenancy Act, 1939.

12. With regard to the third issue as to
whether the disputed land was a land
appurtenant to the house of the defendantappellant, though learned counsel for the
appellant relied upon Harnam Singh vs.
Bhikimbar Singh & Ors. reported in AIR
1980 Allahabad 50, the Court finds that
this judgment would not be of any help to
him as the defendant-appellant had tried to
250 INDIAN LAW REPORTS ALLAHABAD SERIES
establish that the land appurtenant was plot
no.2143/1 while here the land in question
was plot no.2143 (later 2826/11).

13. Learned counsel for the respondents,
however, stated that the substantial questions
of law are not required to be dealt with as the
appeal is concluded by findings of fact.

14. Under such circumstances, no
substantial question of law arises for being
answered in the instant Second Appeal.
However, if the defendant-appellant is of the
view that his plot no.2143/1 ought to be
demarcated, then he shall always be at a liberty
to get the plot no.2143/1 demarcated and
identified.

15. The Court finds that there is no merit in
this second appeal. It is, accordingly, dismissed.
----------
(2022) 11 ILRA 250
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.09.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD. J.

Government Appeal No. 591 of 2022

State of U.P. ...Appellant
Versus
Vakil ...Accused-Respondent

Counsel for the Appellant:
Sri Shiv Kumar Pal, Sri S.A. Murtza, A.G.A.

Counsel for the Respondent:

Criminal Law - The Code of Criminal
Procedure, 1973 - Section 378 (3) - Appeal
in case of acquittal - No appeal under S. 378 (1)
or S. 378 (2) shall be entertained except with
the leave of the High Court - S. 384, Summary
dismissal of appeal - Before dismissing an
appeal under S. 384 CrPC, the Court may call
for the record of the case - Held - It is not
mandatory for the High Court to summon the
lower court record, first, in every case, before
deciding the application for the grant of leave,
filed by the State, to institute an appeal under
Section 378(3) of the Cr.P.C. - Right of the
appellate court to summon the lower court
record in an appropriate matter always subsists
- It is within the purview of the High Court to
determine,
based
on
the
facts
and
circumstances of each case, whether the
application for grant of leave necessitates the
perusal of the lower court records or not -It is
not necessary for this Court to routinely call for
the lower court records for consideration of
applications under Section 378(3) of the Cr.P.C.
in every case (Para 16) (E-5)

List of Cases cited:

1. St. of Mah. Vs Sujay Mangesh Poyarekar
(2008) 9 SCC 475

2. St.of U. P. Vs Anil Kumar @ Badka & ors.
(2018) 9 SCC 492

(Delivered by Hon'ble Ashwani Kumar
Mishra, J. & Hon'ble Shiv Shanker Prasad, J.)

1. A short but interesting question arises
in this appeal as to whether this Court, while
exercising its power to grant leave to the State
to institute appeal under sub-section 3 of
Section 378 Cr.P.C. is required to summon the
lower court record, first, before proceeding to
consider the prayer made for grant of leave?

2. Section 378 Cr.P.C. provides for filing
of appeal in case of acquittal by the State. Subsection 3 of Section 378 Cr.P.C. contemplates
for grant of leave for entertainment of such
appeal. Sub-section 3 of Section 378 Cr.P.C.
reads as under: -

"3. No appeal under Sub-Section
(1) or Sub-Section (2) shall be entertained
except with the leave of the High Court."