# Shyam Singh & Ors v. Sarvadeo Singh & Ors

- **Citation:** (2015) 2 ILRA 915
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-08-24
- **Case number:** Second Appeal No. 700 of 2007
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyam-singh-ors-v-sarvadeo-singh-ors-43239
- **Pages:** 5

## Headnote

C.P.C. Section-100-Second Appeal-substantial
question of law-question of applicability of
Section 49 of C.H. Act-Courts below recorded
findings regarding-non applicability-can not
be disturbed in Second Appeal-no substantial
question of law involved-appeal dismissed.
Held: Para-12
In view of the aforesaid discussions and
findings that there was no adjudication
of
the
defendant-appellant
by
the
consolidation court in respect of the land
in
dispute,
substantial
question
formulated and noticed above would
have no applicability in the facts of the
present case and the suit filed by the
plaintiff-respondent would not be barred
under
Section
49
of
the
U.P.
Consolidation of Holdings Act. This Court
in exercise of jurisdiction under section
100 of the Civil Procedure Code is not
required to re-appraise the evidence,
which has come on record and has
already been noticed above. The finding
that defendant was not recorded over 16
decimal of land in question and that
plaintiff was recorded in the basic year
916
 INDIAN LAW REPORTS ALLAHABAD SERIES
entry, is based upon material, which
cannot be said to be perverse or
erroneous. No substantial question of
law therefore arises for consideration in
the present appeal, which consequently
fails and dismissed.

## Text

2 All] Shyam Singh & Ors. Vs. Sarvadeo Singh & Ors.
915
court has to give due weight to the
presumption of innocence and see that
innocent person is not sentenced, it is
equally the duty of the court to see that the
guilty do not escape punishment. Unless the
appellate court finds the order of acquittal
to be clearly unreasonable and is convinced
that there are substantial and compelling
reasons to interfere with it, it should not
interfere with it."
15. Thus in view of aforesaid
consistent legal position as elaborated
above and also in view of the fact that
learned A.G.A. has failed to point out any
illegality or perversity with the findings
so recorded in the impugned order, no
case for interference has been made out.
16. It is an established position of
law that if the court below has taken a
view which is a possible view in a
reasonable manner, then the same shall
not be interfered with and that too in view
of the fact that more than 25 years have
already elapsed.
17.
Thus, on a bare perusal of the
judgement and order dated 13.11.1986, it
cannot be said that the view taken by the trial
court is not a possible view or a feasible view
that could be taken by a reasonable person.
Moreover as no illegality or perversity has
been pointed out, this Court refuses to grant
any indulgence whatsoever to the appellantState.
18. Another aspect which has to be
appreciated is that a period of almost 25
years have already elapsed and the
incident is allegedly of the year 1983.
19. In view of the aforesaid facts
and circumstance of the case, the appeal is
dismissed.
20. Consequences to follow.
21. Let a copy of this order be
certified to the court concerned.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.08.2015
BEFORE
THE HON'BLE ASHWANI KUMAR MISHRA, J.
Second Appeal No. 700 of 2007
Shyam Singh & Ors.
 ...Appellants
Versus
Sarvadeo Singh & Ors.
...Respondents
Counsel for the Appellants:
Sri Hemant Kumar
Counsel for the Respondents:
Sri Raj Kumar Pandey, Sri P.K. Singh
C.P.C. Section-100-Second Appeal-substantial
question of law-question of applicability of
Section 49 of C.H. Act-Courts below recorded
findings regarding-non applicability-can not
be disturbed in Second Appeal-no substantial
question of law involved-appeal dismissed.
Held: Para-12
In view of the aforesaid discussions and
findings that there was no adjudication
of
the
defendant-appellant
by
the
consolidation court in respect of the land
in
dispute,
substantial
question
formulated and noticed above would
have no applicability in the facts of the
present case and the suit filed by the
plaintiff-respondent would not be barred
under
Section
49
of
the
U.P.
Consolidation of Holdings Act. This Court
in exercise of jurisdiction under section
100 of the Civil Procedure Code is not
required to re-appraise the evidence,
which has come on record and has
already been noticed above. The finding
that defendant was not recorded over 16
decimal of land in question and that
plaintiff was recorded in the basic year
916
 INDIAN LAW REPORTS ALLAHABAD SERIES
entry, is based upon material, which
cannot be said to be perverse or
erroneous. No substantial question of
law therefore arises for consideration in
the present appeal, which consequently
fails and dismissed.
(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)
1.
Plaintiff-respondent filed a suit
for permanent injunction in respect of 16
decimal land of plot No. 420 against the
defendant with the allegation that plaintiff
is recorded over the land and the
defendant without any legal authority is
attempting to interfere. Defendant, who is
the appellant before this Court, contested
the suit by saying that plot No. 420
corresponds to previous plot No. 617, in
respect of which the dispute between the
parties had traveled upto the Court of
Deputy Director of Consolidation, and the
rights of the defendant over 16 decimal
land of plot No. 617 had been recognized.
It was therefore submitted that once the
issue stands resolved by the consolidation
court, thereafter the original suit was not
maintainable before the civil court as the
bar of section 49 of U.P. Consolidation of
Holdings Act ( hereinafter referred to as
the 'Act') would operate and the suit as
such be dismissed.
2. On the basis of respective pleas
set up by the parties in the pleadings, trial
court proceeded to frame as many as 9
issues.
Parties
led
their
oral
and
documentary evidence in support of their
respective cases. Plaintiff filed Khatauni
i.e. the record of right, in respect of the
land in order to contend that in the basic
year entry as well as in all subsequent
entries the plaintiffs were recorded over
the disputed plot as such the bar of section
49 would not operate. It was also stated
that the decision of Deputy Director of
Consolidation
relied
upon
by
the
defendant would otherwise not come to
their rescue as the Deputy Director of
Consolidation had merely allowed the
revision filed by the plaintiff in respect of
other part of Khasra No. 617, and there
was no adjudication in respect of 16
decimal land of suit.
3. Trial court on the basis of oral and
documentary
evidence
proceeded
to
decree the plaintiffs' suit by holding that
the plaintiffs were recorded in the basic
year entry and through-out thereafter over
the suit property measuring 16 decimal
land and the defendants had no right over
suit property. The decree of the trial court
was assailed by the defendants in appeal.
Appellate court considered the grounds
urged before it in appeal and came to a
conclusion that suit was rightly decreed
on the basis of evidence brought on
record. Aggrieved by the judgment and
decree of the courts below, defendant
appellant has filed the instant second
appeal under Sec. 100 of Civil Procedure
Code.
4. Learned counsel for the appellant
submits that in view of the order passed
by the Deputy Director of Consolidation
in revision No. 1153 dated 21.1.1964, the
defendants were recognized as owners of
plot No. 617, area 16 decimal, and
contrary view taken by the civil court is
impermissible. It is also stated that the
suit itself was barred under Section 49 of
the Act and the decree of the courts below
is without jurisdiction.
5. Learned counsel for the plaintiffsrespondents defends the judgment and
decree of the courts below on the ground
that the Deputy Director of Consolidation
2 All] Shyam Singh & Ors. Vs. Sarvadeo Singh & Ors.
917
had not adjudicated rights of the parties in
respect of suit property and decree of the
civil court is not in conflict with the
judgment of the Deputy Director of
Consolidation dated 21.1.1964. It is also
contended that the findings returned by
the civil court that the defendant in the
suit was not recorded in the basic year is a
finding based on perusal of evidence and
records, which is not
liable to be
reappraised in the present appeal. Learned
counsel also submits that in case what is
contended by defendants-appellants is
true, then the defendant ought to have
applied for correction/mutation of his
name in the records maintained by the
consolidation authority, but no such
action having been taken by the defendant
for nearly 20 years clearly shows that
defendant in fact was not recorded in the
basic year entry.
6. The appeal at the time of initial
hearing was admitted on the following
substantial questions of law:-
"(1) Whether the court below have
committed an error of law in not
accepting right and title of the defendant -
appellant which have been settled about
20 years prior to the filing of the suit by
the Consolidation Court in favour of the
defendant - appellant in respect of the
land in dispute ?
(2) Whether the suit filed by plaintiffrespondent is barred by section 49 of U.P.
Consolidation of Holdings Act?"
7.

Parties
have
made
their
submissions
essentially
based
upon
import of the order passed by the Deputy
Director of Consolidation and, therefore,
it would be relevant to examine the same.
It transpires from the order of the Deputy
Director of Consolidation that plot No.
617 consisted of two parts i.e. plot Nos.
617/1 and 617/2. Plot No. 617/1 consisted
of an area of 16 decimal whereas the other
part i.e. 617/2 was of 12.03 acers. While
noticing the facts of the case, Deputy
Director of Consolidation in his order
observed that defendant-appellant was
recorded in the basic year entry upon 16
decimal land of plot No. 617/1, whereas,
the revisionist (plaintiff-respondent in the
present appeal) were recorded over plot
No.
617/2.
The
defendant-appellant,
therefore, filed an objection under Section
9 of the Act, claiming exclusive tenancy
right on the whole of plot No. 617 by way
of adverse possession. Objection of the
defendant-appellant was rejected by the
consolidation officer on the ground that
there was no evidence of his possession.
Appeal, however, filed by the defendantappellant was allowed and the claim was
decreed in appeal. A revision was,
therefore,
filed
by
the
plaintiffrespondent, which was allowed by the
Deputy Director of Consolidation under
Section 48 of the Act vide his order dated
21.1.1964. The Deputy Director of
Consolidation held that there was no
justification to dispute the basic year
entries as it stood recorded, and the claim
of the defendant-appellant was repelled.
The operative portion of the order of the
Deputy Director of Consolidation merely
rejects the revision filed by the defendantappellant and there is no adjudication in
respect of 16 decimal land of plot No.
617/1 therein. The operative portion of
the order of the Deputy Director of
Consolidation reads as Under:-
"for the reasons given above, the
order of the learned ASOC is set aside
and the revision is allowed. The entries in
the basic year records will continue".
918
 INDIAN LAW REPORTS ALLAHABAD SERIES
8. It is settled that only the operative
portion of the order constitutes decree
which alone binds the parties. There is,
thus, no adjudication of claim in respect
of plot No.617/1 in the order of the
Deputy Director of Consolidation.
9. From the perusal of the order of
the Deputy Director of Consolidation, it
does appear that the defendant-appellant
was recorded in the basic year entry over
16 decimal land, but a deeper examination
of the order of the Deputy Director of
Consolidation would reveal that such
recital made in the order was by way of
noticing facts of the case only. The
Deputy Director of Consolidation in its
operative portion merely directed the
basic year entries to be maintained. The
original entries of the basic year have not
been brought on record and are reported
to be not available. The records consists
of the certified copy of the basic year
entries, in which the defendant is not
recorded. The findings therefore returned
by the civil court that the defendant was
not recorded over 16 decimal land is
based upon the materials available before
it and the same cannot be said to be
perverse or erroneous.
10. While admitting the appeal, lower
court record had been summoned. Parties
are not at issue that only the certified copy
of the basic year entry is available on record
being Paper No. 27-C according to which,
the plaintiffs-respondents were recorded
over 16 decimal land of plot No. 617/1.
Appellate court, in its order under
challenge, has noticed that certified copy of
the basic year entry of 16 decimal land of
plot No. 617/1 had been filed by the
plaintiffs according to which plaintiffs were
recorded. An endorsement, however, was
made that original entry is not traceable. It
was for this reason that the appellate court
on a previous occasion remitted the matter
for adducing further evidence by the parties
in this regard. The trial court, pursuant to
such remand, summoned the original
records from the record room maintained in
the collectorate. The appellate court, in this
order has recorded that paper No.27-C was
produced as being the basic year entry
before the Civil Court and as the records
were apparently very old, no exception was
taken to the original not being available.
Relying upon the statement of the
concerned clerk of the record room of
collectorate, the lower appellate court has
returned a categorical finding that as per the
records available, it was the plaintiff who
was recorded in the revenue records. In
view of the finding returned by the civil
court, based upon the perusal of the record
that plaintiff-respondent was, in fact,
recorded in the basic year entry over the suit
property the conclusion drawn by the civil
court cannot be said to be vitiated by any
error of law.
11. One of the other important
aspect, which arises for consideration in
the present appeal is that in case the
contention of the defendant-appellant
based upon the interpretation of the order
of the Deputy Director of Consolidation is
taken to be correct then there was
apparently
no
justification
for
the
defendant not to have got himself
recorded in the consolidation records over
16 decimal of land in question. Nearly 20
years had intervened between the order of
Deputy Director of consolidation and the
filing of the suit. It was open for the
defendants
to
have
got
themselves
recorded in the consolidation records, but
no such endeavor at any point of time was
apparently made. Learned counsel for the
appellant merely states that some note
2 All] Mahendra Kumar Gaud Vs. State of U.P. & Anr.
919
was prepared by the Tehsildar for
correction stating that the entries as had
existed were incorrect, but no order based
upon such note was actually passed by the
revenue
authorities,
rather
the
Sub
Divisional Magistrate rejected the note
prepared by the Tehsildar by observing
that such long entry are not required to be
corrected.
In
such
factual
scenario
whatever doubts were generated on the
strength of the interpretation of the order
of the Deputy Director of Consolidation
stands clarified by the orders passed by
the trial court as well as the lower
appellate
court,
while
returning
a
categorical finding that the defendant was
not recorded in the basic year entry.
12. In view of the aforesaid
discussions and findings that there was no
adjudication of the defendant-appellant by
the consolidation court in respect of the
land in dispute, substantial question
formulated and noticed above would have
no applicability in the facts of the present
case and the suit filed by the plaintiffrespondent would not be barred under
Section 49 of the U.P. Consolidation of
Holdings Act. This Court in exercise of
jurisdiction under section 100 of the Civil
Procedure Code is not required to reappraise the evidence, which has come on
record and has already been noticed
above. The finding that defendant was not
recorded over 16 decimal of land in
question and that plaintiff was recorded in
the basic year entry, is based upon
material, which cannot be said to be
perverse or erroneous. No substantial
question of law therefore arises for
consideration in the present appeal, which
consequently fails and dismissed.
13. No order as to costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.07.2015
BEFORE
THE HON'BLE RAJES KUMAR, J.
THE HON'BLE SHAMSHER BAHADUR
SINGH, J.
Special Appeal No. 1905 of 2010
Mahendra Kumar Gaud
 ...Appellant
Versus
State of U.P. & Anr.
...Respondents
Counsel for the Appellant:
Sri O.P. Singh, Sri S.K. Rao, Sri Awadh
Narayan Rai
Counsel for the Respondents:
C.S.C.
U.P.Police Officers of the subordinate
ranks (Punishment & Appeal) Rule 1991Rule
8(2)-Dismissal
from
serviceconsidering
conduct
of
employee-on
conviction-after stay and suspension of
conviction
in criminal appeal-can be
basis for review by decision making
authority-but reinstatement can be only
after
acquittal
in
Appeal-held-Single
Judge rightly dismissed the petition.
Held: Para-9(16)
In the circumstances, it cannot be held
that the respondents could not have
taken recourse to regulation 39(4) of
regulation
of
1956
considering
the
conduct led to conviction of a criminal
charge. The submission of the learned
counsel for the petitioner, therefore, is
rejected.
(Delivered by Hon'ble Rajes Kumar, J.)
1. Heard Sri O.P. Singh, Senior
Advocate, assisted by Sri S.K. Rao,
learned counsel for the appellant and
learned
Standing
Counsel
for
the
respondents.