# The Catholic Diocese of Gorakhpur v. Bhola & Ors

- **Citation:** (2024) 9 ILRA 1267
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-10
- **Case number:** Second Appeal No. 461 of 2014
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-catholic-diocese-of-gorakhpur-v-bhola-ors-52536
- **Pages:** 20

## Headnote

Sri S.P.K. Tripathi, Sri Arvind Srivastava III, Sri
Ashish Kumar Srivastava, Sri Manish Kumar
Nigam, Sri Pramod Kumar Singh, Sri Praveen
Kumar, Sri Sri Sanjay Goswami, Sri Vinod Kumar
Sahu (Addl. C.S.C.)

Civil Law - Civil Procedure Code, 1908 -
Sections - 9 & 100 - Order 41- Rule 27-
Order 41 - Rule 33 - Order 42 - Rule 1 -
Urban Land Ceiling and Regulations Act,
1976 - Sections 10, 10(3), 10(5), 8(4), 26
& 26(2) - U.P. Zamindari Abolition & Land
Reforms Act, 1950 - Sections 161, 183,
184, 185, 186, 190, 191, 192, 193 & 194 -
Specific Relief Act, 1963 - Sections 41(g)
& 41(i) - Transfer of Property Act, 1882 -
Sections 54 & 118 -

Second appeal, by the defendants - original suit
- dismissed - first appeal - allowed - leading a
1268 INDIAN LAW REPORTS ALLAHABAD SERIES
decree in favour of plaintiff - dispute involving
the Catholic Diocese of Gorakhpur appellantdefendant and plaintiff, concerning a plot of land
(No. 26) in Gorakhpur - Initially, plaintiff suit
was dismissed by the trial court, - but the
appellate court later decreed in his favour,
ordering the Diocese to remove constructions on
the land and declaring the lease deed void - The
Diocese appealed, on the ground that the land
was lawfully leased to them by the St. in
exchange for another plot (No. 197) declared
surplus - court finds that - plaintiff share in plot
No. 197 was never declared surplus, and the
lease deed for plot No. 26 lacked legal sanction
- held, the defendants' actions constituted
unlawful possession and trespass, emphasizing
that the lease deed and the purported transfer
of land were not valid under the law thus, court
U.P.held plaintiff's ownership and dismissed the
Diocese's appeal by imposing a cost of Rs.
10,00,000 on the Diocese and the St. for
trespassing and property grabbing - direction
issued for recovery of cost, - and to pay to
plaintiff for unlawful occU.P.ation of his property,
accordingly.(Para - 40, 41, 42, 43)

Second Appeal Allowed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,890 of 67,708. This is a partial read: ask again with offset=39890 for what follows._

9 All. The Catholic Diocese of Gorakhpur Vs. Bhola & Ors.
1267
her consent in February 2011, at the stage
of oral evidence. Therefore, no consent (to
dissolve the marriage between the parties)
existed on 30.03.2011 - when the learned
court below first relied on the same to
dissolve the marriage between the parties.

36. It requires no elaboration that a
Hindu marriage is not to be dissolved or
terminated as a contract. The sacrament
based Hindu marriage may be dissolved (in
law), in limited circumstances. In the first
place, a Hindu marriage may be declared
void on an allegation of impotency suffered
by either spouse only on the strength of
evidence led. To that extent the learned
court below has completely ignored that
such ground pressed in the plaint, was not
proven.

37. As to the other ground if any,
the learned court below ought to have
examined the matter holistically. The
divorce suit having been instituted in the
year 2008 and it having remained pending
for three years, an over simplistic approach
has been adopted-in relying only on the
bald (first) Written Statement filed by the
appellant,
and
the
consent
dated
28.04.2008, as recorded in the proceedings
before the mediation centre attached to the
learned
court
below
while
ignoring
subsequent
developments
brought
on
record. We may have attempted to help the
parties to resolve their dispute at this stage.
However,
since
respondent
had
not
appeared, that course is not available to us.

38. Seen in that light, the
impugned judgement and order dated
30.03.2011 and the consequential decree
cannot stand. Those are set aside. Matter is
remitted to the learned court below to
proceed in accordance with law. If no
mediation may arise or be successful,
necessarily the appellant may be allowed to
rely on the second Written Statement in
terms of later part of Order VIII Rule 9 of
the C.P.C., with corresponding right to the
respondent to file Replication Statement.
Thus, the present appeal is allowed. No
order as to costs.
----------
(2024) 9 ILRA 1267
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.09.2024

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Second Appeal No. 461 of 2014

The Catholic Diocese of Gorakhpur
 ...Appellant
Versus
Bhola & Ors. ...Respondents

Counsel for the Appellant:
Sri Sanjiv Singh, Sri A.P. Tiwari, Sri Namwar
Singh, Sri S.S. Tripathi, Sri Subhash Ghosh, Sri
Raghvendra Nayar, Ms. Saraswati Yadav, Sri
Navin Sinha (Sr. Adv.)

Counsel for the Respondents:
Sri S.P.K. Tripathi, Sri Arvind Srivastava III, Sri
Ashish Kumar Srivastava, Sri Manish Kumar
Nigam, Sri Pramod Kumar Singh, Sri Praveen
Kumar, Sri Sri Sanjay Goswami, Sri Vinod Kumar
Sahu (Addl. C.S.C.)

Civil Law - Civil Procedure Code, 1908 -
Sections - 9 & 100 - Order 41- Rule 27-
Order 41 - Rule 33 - Order 42 - Rule 1 -
Urban Land Ceiling and Regulations Act,
1976 - Sections 10, 10(3), 10(5), 8(4), 26
& 26(2) - U.P. Zamindari Abolition & Land
Reforms Act, 1950 - Sections 161, 183,
184, 185, 186, 190, 191, 192, 193 & 194 -
Specific Relief Act, 1963 - Sections 41(g)
& 41(i) - Transfer of Property Act, 1882 -
Sections 54 & 118 -

Second appeal, by the defendants - original suit
- dismissed - first appeal - allowed - leading a
1268 INDIAN LAW REPORTS ALLAHABAD SERIES
decree in favour of plaintiff - dispute involving
the Catholic Diocese of Gorakhpur appellantdefendant and plaintiff, concerning a plot of land
(No. 26) in Gorakhpur - Initially, plaintiff suit
was dismissed by the trial court, - but the
appellate court later decreed in his favour,
ordering the Diocese to remove constructions on
the land and declaring the lease deed void - The
Diocese appealed, on the ground that the land
was lawfully leased to them by the St. in
exchange for another plot (No. 197) declared
surplus - court finds that - plaintiff share in plot
No. 197 was never declared surplus, and the
lease deed for plot No. 26 lacked legal sanction
- held, the defendants' actions constituted
unlawful possession and trespass, emphasizing
that the lease deed and the purported transfer
of land were not valid under the law thus, court
U.P.held plaintiff's ownership and dismissed the
Diocese's appeal by imposing a cost of Rs.
10,00,000 on the Diocese and the St. for
trespassing and property grabbing - direction
issued for recovery of cost, - and to pay to
plaintiff for unlawful occU.P.ation of his property,
accordingly.(Para - 40, 41, 42, 43)

Second Appeal Allowed. (E-11)

List of Cases cited:

1. Nagubai Ammal & ors.Vs B. Shama Rao & ors.,
AIR 1956 SC 593,

2. K. S. Srinivasan Vs U.O.I. - AIR 1958 SC 419,

3. St. of U.P. Vs Hari Ram, 2013 (4) SCC 280.

(Delivered by Hon'ble Kshitij Shailendra, J.)

THE APPEAL

1. This is defendants' second
appeal arising out of non-concurrent
judgments. The Original Suit No. 307 of
2011 (Bhola vs. DIOCESE and another)
was dismissed by the trial court, however,
the Civil Appeal No. 37 of 2011 filed by
the plaintiff-respondents has been allowed
by
the
First
Appellate
Court
and,
consequently, the suit has been decreed.
PLAINT CASE

2. The aforesaid suit was filed
stating that the plaintiff was Bhumidhar in
possession over plot No. 26 measuring 93
decimals
situated
at
Mauza
Jangal
Salikram, District Gorakhpur. A statement
No. 3234 filed by him before the
Competent Authority under Urban Land
(Ceiling and Regulation) Act, 1976 was
pending and when the defendants, 1.5
months prior to institution of suit, started
en-covering
the
land
by
raising
constructions of boundary wall and the
plaintiff
objected
to
the
same,
the
defendants
threatened
him
to
raise
constructions of a hospital over the land. It
was alleged through amendment that a
lease deed was said to have been executed
by defendant No. 2, (State of U.P.) in
favour of defendant No. 1 (appellant
herein), though the State had no right to
execute a lease. Further pleading was that
the land of the plaintiff had not been
declared vacant and, consequently, a decree
was prayed for directing the defendants to
remove constructions raised over the
portion marked by letters "v c l n" in the
plaint map and deliver possession of the
land to the plaintiff and, on their failure to
do so, possession through process of the
Court be delivered and the lease deed be
also cancelled. Further, a decree restraining
the
respondents
from
raising
any
constructions over the land bearing No. 26
measuring 93 decimals was also claimed.

IMPLEADMENT OF PARTIES
AND AMENDMENT IN PLAINT

3. The Original Suit was initially
filed against the DIOCESE of Gorakhpur,
i.e. the present appellant only. The plaint
was, later on, amended and averments were
added based upon the lease deed filed by
9 All. The Catholic Diocese of Gorakhpur Vs. Bhola & Ors.
1269
the defendant-appellant before the trial
court asserting rights in the land in dispute
in its favour. Pursuant to an order dated
19.02.2001, State of U.P. through District
Magistrate, Gorakhpur was impleaded as
defendant No. 2. The relief No. v was
amended
incorporating
a
prayer
for
cancellation of the lease deed too.

DEFENCE IN WRITTEN
STATEMENT

4. The defendant No. 1 (appellant)
filed a written statement taking a stand that
it was a registered Society and under a
proposal to construct Fatima Hospital in
Gorakhpur, land was required by it. On the
request of the said defendant, the State
officials allotted a vacant land to the
appellant under the provisions of Urban
Land (Ceiling and Regulation) Act, 1976
(herein-after referred to as "the Act of
1976") and over the said land, possession
was delivered to appellant. The appellant
also filed additional written statement
stating therein facts regarding execution of
lease in its favour by the State Government.
The State of U.P., (defendant No. 2) also
filed written statement stating that the
plaintiff had submitted an application dated
05.02.1991 alongwith notarized affidavit
dated 21.02.1991 to the effect that he had
sold the entire property covered by land
No. 197, which had been declared as vacant
under section 10(5) of the Act, 1976 and, in
exchange thereof, an area measuring
2805.90 Sq.Mts. covered by land bearing
No. 26 was handed over by the plaintiff to
the District Magistrate, Gorakhpur and, on
the basis of such written consent of the
plaintiff, the State Government had allotted
the land to the appellant. It was further
pleaded that after coming into force of
Repeal Act No. 15 of 1999, the proceedings
under the Act of 1976 had stood abated and
a registered lease deed having already been
executed in favour of appellant, the
construction of boundary wall raised over
the land was lawful.

TRIAL COURT'S JUDGMENT

5. The trial court framed 15 issues
out of which relevant issues relate to right,
title, interest and possession of the
respective parties pursuant to the ceiling
proceedings and also lease deed relied upon
by the defendants. After the parties led
documentary and oral evidence, the trial
court decided issues No. 1, 2, 3, 6, 9 and 13
by observing that since the plaintiff himself
had submitted application 157-A and
affidavit
160-C
before
the
District
Magistrate, Gorakhpur relinquishing his
rights over plot No. 26, over which
possession was delivered to the District
Magistrate and, thereafter, a lease deed was
executed by the State in favour of the
defendant-appellant, the possession based
upon admission and consent would bar the
suit for any relief. Consequently, the trial
court dismissed the suit by judgment and
order dated 22.11.2011 observing that in
view of Sections 41(g) and 41(i) of the
Specific
Relief
Act,
1963,
neither
mandatory nor prohibitory injunction could
be granted in favour of the plaintiff.

APPELLATE COURT'S
JUDGMENT

6.

Aggrieved,
the
plaintiffrespondent No.1 filed Civil Appeal No. 47
of 2011, during the pendency whereof he
died and was substituted by his heirs and
legal representatives. The first Appellate
Court allowed the appeal by judgment and
order dated 13.03.2014 and decreed the suit
directing the defendant-appellant to remove
boundary wall constructed by it over the
1270 INDIAN LAW REPORTS ALLAHABAD SERIES
land shown by letters "v c l n" in the plaint
map within a period of 60 days. A further
decree has been drawn directing the
defendants not to cause any interference in
the plaintiff's possession over the land.
Simultaneously,
lease
deed
dated
13.01.1993 registered before the Sub
Registrar-I, Gorakhpur, to the extent it
relates to plot No. 26, has been declared as
void and ineffective.

FINDINGS RECORDED BY
FIRST APPELLATE COURT

7. The first Appellate Court framed
following points for determination in the
Civil Appeal : -

"1- क्य अिर न्य य लय क यह सनष्किा
सक आर जी िं०197 में अपील थी/ि दी क कोई
सहस् असिसनयम के तहत रप्ल घोसित हुआ थ ,
हस्तिेप योग्य है?
2- क्य अिर न्य य लय क यह सनष्किा
सक कसथत िपथ पत् जो ि दी/अपील थी द्व र
सजल सिक री के मि सदन िंक21.02.1991 को
सदय ज न कह ज त है, े प्रत्यथी/प्रसति दी िं02
को सिि सदत आर जी में कोई स्ित्ि एििं स्ि समत्ि प्र प्त
हुआ, सिसि की दृसि े ही है ?
3- क्य प्रत्यथी िंख्य 2 को प्रत्यथी
 िंख्य 1 के पि में सिि सदत भूसम क कोई पट्ट य
कोई अन्तरण करने क असिक र प्र प्त थ ?
4- क्य 1976 के असिसनयम िंख्य 33
की ि र 4 के तहत यह ि द उपिसमत हो गय थ ?"

8. The first Appellate Court
observed that the plaintiff-Bhola was a cosharer of the land bearing No. 197
alongwith one Lallan and recorded a
finding that share of Lallan alone was
declared as vacant. It also observed that
Statement No. 3234 concerning plaintiffBhola relating to the ceiling proceedings,
despite being available in their office, had
not been brought on record by the
defendants that would lead to adverse
inference against them. The Appellate
Court also observed that since it was not
proved that any share of the plaintiff-Bhola
in plot No. 197 had been declared as
vacant,
any
application
or
affidavit
submitted by him before the District
Magistrate would be deemed to be under
some mistaken belief and not voluntarily
and, even otherwise, the alleged surrender
of land of plot No. 26 in favour of State,
being in teeth of provisions of sections 183,
184, 185, 186, 190, 191, 192, 193 and 194
of the Uttar Pradesh Zamindari Abolition &
Land Reforms Act, 1950, would not be
treated as in accordance with law.

ADMISSION/STAY ORDER IN
THE INSTANT APPEAL

9. In the instant appeal, an interim
order of status quo was passed on
02.05.2014 before admission. It was
extended
from
time
to
time.
On
25.08.2015, parties were in clash before
this Court as regards declaration of land of
plot No. 197 as surplus. This Court,
therefore, deemed it necessary to call upon
the
District
Magistrate
concerned
alongwith relevant records relating to
ceiling proceedings so as to appreciate the
rival contentions. The District Magistrate
appeared alongwith record on 08.09.2015,
on
which
date,
after
noting
down
contentions of both sides, the instant appeal
was admitted on the following substantial
questions of law:-

"(i) Whether the lower
Appellate Court was justified in
decreeing
the
plaintiff's
suit
notwithstanding his admission that
Plot No. 26 is being offered in lieu
of his having sold the entire land of
9 All. The Catholic Diocese of Gorakhpur Vs. Bhola & Ors.
1271
Plot No. 197 including the land,
which had been declared surplus?
(ii) Whether the judgment
and decree of the lower Appellate
Court reversing and invalidating
the
proceedings
under
Urban
Ceiling
Act
are
without
jurisdiction?
(iii) Whether the suit of the
plaintiff-respondent is barred by the
principles
of
estoppel
and
acquiescence, inasmuch as, the
defendant-appellant
has
raised
boundary wall constructed the
Hospital at the disputed plot and
has invested huge amount?"

COUNSEL HEARD

10. Heard at length Shri Navin
Sinha, learned Senior Advocate assisted by
Shri Subhash Ghosh, Shri Raghvendra
Nayar and Ms. Saraswati Yadav, learned
counsel for the appellant as well as Shri
Sanjay Goswami, learned counsel assisted
by Shri Pramod Kumar Singh, learned
counsel for the plaintiff-respondents and
Shri Vinod Kumar Sahu, learned Additional
Chief Standing Counsel for respondent
No.2 (State of U.P.).

SUBMISSIONS ON BEHALF OF
THE APPELLANT

11. Shri Navin Sinha, learned senior
counsel argued with vehemence that the
proceedings under the Act of 1976 for
declaration of land of plot No. 197 as surplus
or vacant had been undertaken and once the
plaintiff himself admitted that the entire land
of plot No. 197 that was declared surplus, had
been sold by him and once he had given
written consent in the form of application
157-ka alongwith affidavit 160-C before the
District Magistrate relinquishing his rights in
his other holding covered by plot No. 26, i.e.
the subject land, and handed over its
possession
to
the
District
Magistrate,
consequential lease deed executed by the
State in favour of the appellant would be
valid for all purposes and title once vested in
the said manner, neither the registered lease
deed could be declared as null and void nor
could a decree for injunction be drawn in
favour of the plaintiff-respondents and,
therefore, the first Appellate Court has
grossly erred in reversing the decision of the
trial court. Shri Sinha referred to the lease
deed dated 11.01.1991, which was executed
by the Governor of the State in favour of the
appellant and by referring to the schedule of
property attached to the deed, it was
contended that the land of plot No. 26 was
given in lieu of plot No. 197 under Order No.
1611 dated 13.03.1991 (a date subsequent to
preparation of lease deed) passed by the
District Magistrate, Gorakhpur and for the
purpose of maintenance by the allottee
Society, i.e. the present appellant. Shri Sinha
also referred to an order dated 10.11.1980
annexed as Annexure CA-1 to the counter
affidavit filed on behalf of State of U.P. The
said order, apart from containing various
recitals, mentions that 4354.76 Sq. Mts. of
land covered by plot No. 197 was treated as
surplus land. The entire thrust of Shri Sinha
is, therefore, to the effect that the plaintiff had
voluntarily surrendered his right, title, interest
and possession qua plot No. 26 in favour of
the State in exchange of his holdings covered
by plot No. 197 that was declared
vacant/surplus but illegally sold by the
plaintiff to third parties.

SUBMISSIONS ON BEHALF OF
THE PLAINTIFF-RESPONDENTS

12. Per contra, Shri Sanjay
Goswami, learned counsel for the plaintiffrespondents vehemently submits that the
1272 INDIAN LAW REPORTS ALLAHABAD SERIES
plaintiff's share in plot No. 197 was never
declared surplus and whatever proceedings
were held, the same related to Lallan, the
other co-sharer and, therefore, no question
of alleged exchange of other holdings of
the plaintiff, could arise. It is contended
that the plaintiff-Bhola was the original
owner of plot No. 26, area 93 decimals and
had half share in plot No. 197 (area 2.64
acres) with 1.32 acres in his share.
Remaining 1.32 acres of plot No. 197
belonged
to
one
Lallan.
After
the
commencement of Act of 1976, both Bhola
and Lallan submitted separate returns under
Section 6(1) of the Act. The return
submitted by Bhola was numbered as 3234,
whereas the return submitted by Lallan was
numbered
as
3235.
The
Competent
Authority under the said Act prepared a
draft statement on the basis of return No.
3234 and issued a notice under Section 8(3)
of Act to plaintiff-Bhola, who filed his
objections to the draft statement, mainly on
the ground that most of his land was
agricultural in nature and that area of the
vacant land in other plot was less than the
ceiling limit. The Competent Authority
allowed the objections vide his order dated
18.12.1980 under Section 8(4) of the Act
and cancelled the draft statement holding
that returnee held the land within his
ceiling limits. However, a direction was
issued by the Competent Authority to his
office to find out the land use of the land in
the master plan and, in case any land was
found in excess of the ceiling limit, a notice
be issued to the returnee to submit
statement. He submits that nothing was
done after the draft statement was cancelled
by
order
dated
18.12.1980
and
no
proceedings were held against the plaintiffBhola under the Act of 1976 and, therefore,
he continued to hold the land in his own
rights. Further submission is that the
Competent Authority proceeded against
Lallan and declared 1.08 acres land in plot
No. 197 from his share and that, at the
most, State could exercise its rights only in
respect of part of the land to the extent of
share of Lallan alone and had no right over
the share of plaintiff-Bhola against whom
notice/draft
statement
was
cancelled.
Khatauni pertaining to 1416 F to 1420 F
annexed alongwith counter affidavit was
referred demonstrating that the Competent
Authority directed recording the name of
State of U.P. over plot No. 197 area 1.08
acres in the revenue records and the same
still continues therein and, hence, once it is
established that land of Bhola covered by
plot
No.
197
was
not
declared
surplus/vacant and the land did not vest in
the State, the plea of exchange of land of
plot No. 26 at the strength of a bare
application
and
affidavit
allegedly
submitted by plaintiff-Bhola before the
District Magistrate and consequential grant
of lease by the State in favour of appellant
would be a mode of grabbing the property
of the tenure holder without any mode of
transfer recognized under the law of either
transfer of property or vesting of the same
in the State under the Act of 1976.

13. Shri Goswami seriously
disputes the validity of the lease deed by
contending that though the deed was
executed on 11.01.1991, it was signed by
the witnesses and executants on 28.12.1992
and
30.12.1992
and
the
same
was
registered in the office of Sub-Registrar in
the year 1993. The lease deed runs and
ends in twelve pages, however, a letter
dated 29.10.1991 sent by the District
Magistrate to the Deputy Secretary, Awas
Anubhag-6, U.P. Government, Lucknow
through special messenger is attached to it.
Just below this letter, a table finds place in
which various plots have been shown, but
there is no mention of plot No. 197 or plot
9 All. The Catholic Diocese of Gorakhpur Vs. Bhola & Ors.
1273
No. 26. After the table, a Note signed by
three
persons,
i.e.
Surveyor,
Junior
Engineer
and Assistant
Engineer
on
24.05.1991 is found mentioning that plot
No. 26 was given in lieu of plot No. 197
under Order No. 1611 dated 13.03.1991
passed
by
the
District
Magistrate,
Gorakhpur
and
for
the
purpose
of
maintenance by the allottee-Society, i.e. the
present appellant. Submission is that the
Act of 1976 does not contemplate any such
provision, by which such a transfer of land
or handing over possession thereof is
permissible. He submits that section 26 of
the Act being a provision as regards
transfer of vacant land within the ceiling
limit, even no such procedure was followed
and though submission of the application
157-A or the affidavit forming part thereto
was not proved by cogent oral and
documentary evidence, even if the same are
treated to have been submitted on behalf of
plaintiff or other co-sharers, the same
would be in teeth of any recognized mode
of transfer of immovable property and
contrary to the provisions of the Act of
1976 and, hence, no rights in the property
would vest either in the State Government
or in the appellant. He also submits that
once the State of U.P. being defendant No.
2 in the suit, respondent No. 2 in the Civil
Appeal as well as in the instant second
appeal, has accepted the appellate judgment
by not assailing it by filing its own second
appeal, the alleged rights of the present
appellant being subservient to the alleged
rights,
if
any,
held
by
the
State
Government,
the
same
would
stand
nullified in absence of a challenge.

SUBMISSIONS ON BEHALF OF
THE STATE-RESPONDENT

14. Learned Additional Chief
Standing Counsel submits that the State has
not filed appeal against judgment of the
First Appellate Court as the main decree
has been drawn against the appellant and,
further, the District Magistrate was earlier
summoned by this Court alongwith record
of ceiling proceedings and he has already
passed an order dated 27.07.2022 by which
allotment of disputed plot No. 26 in favour
of the appellant for maintenance purposes
has been recalled subject to the final
decision in the present second appeal.

ANALYSIS
OF
RIVAL
CONTENTIONS IN THE LIGHT OF
RECORD
OF
PROCEEDINGS AND
SUBSTANTIAL QUESTIONS OF LAW
FRAMED

15. Having heard learned counsel
for both sides, what the Court notices from
record is that a counter affidavit has been
filed by the then Tehsildar (Judicial), Sadar
Gorakhpur in the instant second appeal and
in paragraph No. 13 thereof, it is stated that
the plaintiff had submitted a return No.
3234 before the Competent Authority in
respect of plot No. 197 stating that he was
the owner of half share of the said plot and
Lallan was owner of rest half share. Further
statement is that Lallan had also filed return
No. 3235 before the Competent Authority,
whereafter the Authority passed an order
dated 10.11.1980 in respect of certain area
of plot Nos. 24, 25 and 197 declaring the
same as surplus. It is further stated that plot
No. 197 measuring 1 acre and 8 decimal
vested with the State Government, but the
plaintiff-respondent and Lallan, being joint
owners of the said plot, sold the land that
was declared surplus and also the land that
was not declared surplus and when this fact
came to the knowledge of the District
Magistrate, Gorakhpur, he took cognizance
against the plaintiff and heirs of Lallan for
illegal transfer of the Government land. At
1274 INDIAN LAW REPORTS ALLAHABAD SERIES
the same time, land owners and other
persons filed affidavit before the District
Magistrate in respect of plot No. 26 to be
declared as State land in place of plot No.
197, whereafter possession of plot No. 26
had been taken by the District Magistrate as
surplus land and the same stood vested in
the State Government and possession
thereof had also been handed over to the
State Government.

16. In the supplementary counter
affidavit filed on behalf of plaintiffrespondent, it is stated that the land of
Bhola covered by plot No. 197 was never
declared surplus in ceiling proceedings. As
a matter of fact, the proceedings registered
as return No. 3234 were dropped by order
dated 18.12.1980 filed as Annexure CA-1
to the counter affidavit. The Competent
Authority
proceeded
against
co-share
holder Lallan and declared 1.08 acres of
land in plot No. 197 from his share as
surplus. As regards the order dated
18.12.1980, it is stated in the affidavit that
the said order was filed by the plaintiff
alongwith an application 38-C under Order
XLI Rule 27 of Code of Civil Procedure
before the first Appellate Court. The said
application was allowed by the Appellate
Court by order dated 08.11.2013, which has
attained finality. The same order is also
annexed as Annexure No. 12 to the
affidavit filed alongwith stay application by
the appellant himself as paper No. 42-C/2.
The entire order is reproduced as under:-

"न्य य लय
 िम
प्र सिक री/ िंयुि
सनदेिक,नगर भूसम ीम रोपम, गोरखपुर
अन्तगात ि र 8(4)- नगर भूसम
(असिकतम ीम एििं सिसनयमन) असिसनयम,1976
1. नगर भूसम (असिकतम ीम एििं
सिसनयमन) असिसनयम, 1976 की ि र 6(1) के
अन्तगात भोल पुत् श्य मल ल ने सििरणी िंख्य
3234 प्रस्तुत सकय सज में उन्होने जिंगल सलक र म
के ख र -नम्बर 26(0-92-0), 172(0-71-0)
पूर , 18(1-81-0), 81(0-23-0), 141(208-0), 197(2-64-0) में आि , 62(0-160), 63(0-60-0), 67(0-32-0), 77(008-0),
79(0-04-0),
82(0-09-0),
83(0-13-0), 85(0-06-0), 89(0-03-0),
158(0-04-0) में 1/8 भ ग कह और यह भी
कह सक उनके प आि ीय भिन सहत भूसम भी है।
प्र रूसपक सििरणी 20-11-78 को ज री की गई
सज के सिरुद्ध आपसत्त प्र प्त हुई। आपसत्त के मथान में
इिंतख ब खतौनी 1383 े 85ि, उद्धरण ख र
1382, 1383, 1386 और 1387ि प्रस्तुत
सकय गय । मैने असििि को ुन और पत् िली क
अिलोकन सकय ।
2. पत् िली पर उपलब्ि इिंतख ब खतौनी
1383 े 85ि ख त िंख्य 242,258,263/5
के अिलोकन े स्पि होत है सक सििरणी में सजन ग टों
में जो-जो सििरण सलख गय है िह ही है। इ के
असतररि जिंगल सलकर म के ख र नम्बर 58सम(067-0) में सििरणी प्रस्तुतकत ा क सहस् आि है।
इ ग टे को सििरण मे नही सदख य गय है। पत् िली
पर उपलब्ि उद्धरण ख र 1382, 1383, 1386
और 1387ि को देखने े स्पि होत है सक ख र
नम्बर 81(0-23-0) में े 0-17-0 1382 और
83ि में आब दी सकन्तु 86 और 87ि में पूर 023-0 आब दी सलख गय है, ख र नम्बर 82(009-0),
83(0-13-0),
85(0-06-0),
158(0-08-0) लग त र आब दी 1382, 1383,
1386 और 1387ि अिंसकत सकय गय है और िेि
भूखण्डों पर ि लें, मक्क , ि न अथि ब ग को
प्रसिसि 28-1-76 े पूिा तथ क ल न्तर में की गई है।
अतएि सििरणी में आये हुए भूखण्डों में े केिल
ख र नम्बर 81(0-23-0) क आि अथ ात 011-5, 82, 83, 85 और 158 के कुल िेत्िल
0-32-0 क 1/8 अथ ात 0-04-0 य नी कुल 015-5 ररि भूसम के रूप में है और िेि भूखण्ड कृसि
भूसम के अन्तगात है। सििरणी मे आि ीय भिन सहत
भूसम 315.07 िगामीटर है। इ में ररि भूसम 0-15-5
अथ ात 627.28 िगा मीटर िोडने पर ररि भूसम क
9 All. The Catholic Diocese of Gorakhpur Vs. Bhola & Ors.
1275
सिस्त र 2000 िगा मीटर े कम होत है। अतः
सििरणी मे ीम े असिक ररि भूसम नही है। ज री की
गई प्र रूसपक सििरणी सनरस्त की ज ती है।
3. गोरखपुर की मह योजन 27-11-80
 े प्रभ ि में आ गई है। मह योजन में जिंगल सलकर म
के ख र नम्बर 18, 141, 197, 26, 172,
58, 62, 63, 67, 77, 79 और 89 क भू-
उपयोग ज्ञ त सकय ज य और यसद भूि रक के प
 ीम े असिक भूसम हो तो सििरणी प्रस्तुतकत ा को
नोसट ज री की ज य सक सििरणी प्रस्तुत करें।
सदन िंकः सद म्बर 18,1980"
(emphasis supplied)

17. Annexure CA-1 forming part
of the counter affidavit filed on behalf of
respondent No. 2 State of U.P., being order
dated 10.11.1980, as referred to by Shri
Navin
Sinha
during
the
course
of
arguments, does not find place on original
record of proceedings and, therefore, the
same cannot be read while deciding the
second appeal. It was neither on record of
the trial court nor was even admitted in
additional evidence at the first appellate
stage.
Even
otherwise,
in
view
of
subsequent
order
dated
18.12.1980
cancelling the statement of vacant land, the
said order, if at all had been in existence,
would be deemed to have been nullified so
as to conclude that plaintiff's share in plot
No. 197 was never declared surplus under
the proceedings of the Act of 1976. The
order dated 18.12.1980 would, thereafter,
attach finality to the ceiling proceedings by
which only this much was observed
regarding plot No. 197 that since master
plan of Gorakhpur had come into force
w.e.f. 27.11.1980, the land use of various
Khasra numbers including Khasra No. 197
be determined and, in case the land holder
was having land in excess, notice be issued
to him for submitting statement. It is,
therefore, established on record that the
proceedings, initiated against plaintiffBhola were dropped by the ceiling
authorities vide order dated 18.12.1980
under Section 8(4) of the Act of 1976 and
the share of Lallan in plot No. 197, which
was declared vacant stood vested in State
and also recorded as such in the name of
State of U.P. in the revenue records. It is
also established that plot No.26 was never
subject matter of ceiling proceedings and
by mere application or affidavit alleged to
have been submitted by plaintiff-Bhola,
land in dispute covered by plot No. 26
cannot be deemed to have vested in favour
of State especially when no share of
plaintiff-Bhola in plot No. 197 was ever
declared surplus. Hence, the lease deed
dated 11.01.1991 registered on 13.01.1993,
would not confer any right upon the
defendant-appellant. Further, the lease deed
was executed in pursuance of Government
Order dated 29.04.1989, which mentioned
plot Nos. 189, 190, 207, 208, 198, 117, 110,
107, 103 and 121. Neither plot No. 197 nor
plot No. 26 was included in the aforesaid
Government Order.

18. Now carefully examining the
lease deed executed by the State of U.P. in
favour of the appellant, being paper No. 41C/2 it is found that though the deed was
executed/prepared on 11.01.1991, it was
signed by the witnesses and executants on
28.12.1992 and 30.12.1992 and was
registered in the office of Sub-Registrar on
13.01.1993. The lease deed runs and ends
in twelve (12) pages, however, alongwith
the same, a letter dated 29.10.1991 sent by
the District Magistrate to the Deputy
Secretary,
Awas
Anubhag-6,
U.P.
Government, Lucknow through special
messenger is attached. The letter reads as
under:

"egksn;]
1276 INDIAN LAW REPORTS ALLAHABAD SERIES
d`i;k miZ;qDr fo"k;d 'kklu ds vkns'k i=
la0 1947@9&o0Hkw0 91&385 ;w0lh0@86 fnuk¡d 17
flrEcj 1991 dk lUnHkZ xzg.k djsaA dSFkksfyd
Mk;ksfll vkWQ xksj[kiqj dks vkfoaVr Hkwfe rFkk ekSds
ij okLrfod dCts okyh Hkwfe dk fooj.k pkVZ ds :i
esa layXu djrs gq, vuqjks/k gS fd okLrfod dcts
okyh Hkwfe ds lEcU/k esa iV~Vk vfHkys[k dk fu"iknu
djkus dk d"V djsaA"
(emphasis supplied)
Just below this letter, a table is
attached, which is titled as "dSFkksfyd Mk;ksfll
vkWQ xksj[kiqj dks vkoafVr Hkwfe] tks mUgsa okLrfod
:i esa ekSds ij izkIr gS dk fooj.k:-" In it, various
plots have been shown, but there is no
mention of plot No. 197 or plot No. 26.
Below the table, a NOTE signed by three
persons, i.e. Surveyor, Junior Engineer and
Assistant Engineer on 24.05.1991 is
contained. The NOTE reads as under:

"uksV%& 1& vkjkt+h la[;k 24] 25 o x 28
lhekf/kD;
?kksf"kr rFkk jkT; ljdkj esa fufgr Hkwfe gSA

2& vkjkt+h la[;k 26 ftykf/kdkjh] xksj[kiqj
ds vkns'k la[;k 1611 fnuk¡d 13-3-91 }kjk vkjkt+h
la[;k 197 ds LFkku ij fy;k x;k gS tks vkoaVh laLFkk
ds dCts esa j[k j[kko gsrq fn;k x;k gSA
3& vk0 la0 128 fLFkr ekStk f'koiqj vk0
la0 121 ds LFkku ij ftykf/kdkjh ds vkns'k fnuk¡d
13-3-91 }kjk fy;k x;k gSA"
 (emphasis supplied)

19. The lease deed was signed by
Shri Subhash Chandra Bankhandi, Joint
Secretary, Government of U.P., Awas
Anubhag
on
behalf
of
the
State
Government. The aforequoted 2 pages
added to the deed do not bear signatures of
Shri Bankhandi. The letter appended to the
deed recites that plot No. 26 has been taken
in pursuance of letter of the District
Magistrate dated 13.03.1991 in exchange of
plot No. 197 and its possession has been
handed over to the appellant for its
maintenance (RAKH RAKHAO). The said
letter cannot be termed as "lease" or "part
of lease deed", which was only in respect
of land detailed in the Government Order
dated 29.04.1989 as recited in the lease
deed. The Court also finds that when the
certified copy of the lease deed was issued
from the office of Sub Registrar, the
aforesaid letter dated 29.10.1991 and chart
dated 24.03.1991 were also surprisingly
made part of the lease deed, but, in view of
the fact that plot No. 26 did not find
mention in the table/chart, mere mention of
plots No. 197 and 26 in Note No. 2 written
at the bottom of the table/chart, would not
mean that the land stood vested in the State
or that it became part of lease deed.

20. Testing the submission of Shri
Sinha that once the plaintiff-respondent, by
submitting application and affidavit before
the District Magistrate, himself transferred
right, title, interest and possession of his
plot No. 26 to the District Magistrate and,
therefore, he would have no right to
challenge the action of the State or the
lease deed, the same does not hold any
water in it, inasmuch as, title in immovable
property does not vest by mere admission.
Even otherwise, the admission, if any, is
never a conclusive evidence as to the truth
of the matter stated therein and it is only a
piece of evidence, weight to be attached to
which must depend on the circumstances
under which it is made. Admission can also
be shown to be erroneous or untrue, so long
as the person to whom it was made acted
upon it to his detriment. Reference in this
regard can be made to the judgments of the
Supreme Court in the case of Nagubai
Ammal and others vs. B. Shama Rao and
others, AIR 1956 SC 593 and K.S.
Srinivasan vs. Union of India AIR 1958
SC 419. Significantly, plaintiff-Bhola, who
appeared as PW-1 before the trial court,
stated in his cross-examination that he had
9 All. The Catholic Diocese of Gorakhpur Vs. Bhola & Ors.
1277
sold his land covered by plot No. 197 and
that the plot No. 26 being a grove, had been
surrounded by the present appellant.
Raising of boundary wall by the appellant
was also alleged. As regards submitting
application or affidavit before the ceiling
department, when suggestion was put to
PW-1, he stated that-

";g dguk xyr gS fd eSusa lhfyax foHkkx
esa bl vk'k; dk dksbZ 'kiFk i= fn;k Fkk fd esjh
vkjkt+h ua0 197 tks fd eSa csp pqdk Fkk ds cnys esa
26 ua0 ys fy;k tk," (emphasis supplied)

21. Now, to understand the
documents allegedly conferring title
in favour of State qua disputed plot
No. 26, it is noteworthy that the entire
case of both the defendants is based
upon
application
No.
157-क
and
supporting affidavits 158-ग, 159-ग,
160-ग, and 161-ग, by which rights in
disputed plot No. 26 were allegedly
surrendered or relinquished by the
plaintiff in favour of the defendants.
The application 157-क contains thumb
impression of Bhola, Shri Ram and
Smt. Khirni and affidavit 158-x was
sworn by Smt. Khirni, wife of late
Sudama, affidavit 159-ग was sworn by
Mauzam, son of Sudama, affidavit
160-x was sworn by plaintiff-Bhola
and affidavit 161-x was sworn by Shri
Ram, son of Lallan. Except the
plaintiff-Bhola, deponents of all other
affidavits are heirs of late Lallan. In
the cross examination of plaintiffBhola (PW-1) as regards affidavit
158-C, he stated that he could not
identify as to whether it contained
thumb impression of Smt. Khirni, who
was illiterate. Similar was the stand
with respect to other affidavits except
affidavit of Mauzam over which his
signatures were identified by plaintiffBhola. However, since the dispute in
the present case is as to whether any
share of Bhola held in plot No. 197
was or was not declared surplus under
the Act of 1976, only affidavit 160-x
is relevant and there appears to be no
dispute that remaining part of the said
plot No. 197 was declared as surplus,
however, the same related to Lallan
succeeded by his heirs and not to the
plaintiff. As regards affidavit 160-x
plaintiff-Bhola stated that:-

"eq>s ;kn ugha gS fd i=koyh ij
miyC/k dkxt+ la0 160 x 'kiFk i= esjs
}kjk fn;k x;k gS ;k ugha"
(emphasis supplied)

22. From the entire crossexamination of PW-1, it cannot be inferred
that he ever proved the affidavit 160-x as
having
been
submitted
by
him.
Surprisingly, no suggestion was put to him
as regards his thumb impression on
application 157-क. Therefore, in absence of
such suggestion, contents of the application
or his thumb impression over document
No. 157-क, could not be read in evidence
against the plaintiff-respondent.

23. At the appellate stage, pursuant
to an order passed on an application under
Order XLI Rule 27 read with Section 151
of Code of Civil Procedure, various
documents alongwith list Paper No. 40-C
were admitted in additional evidence. A
certified copy of the lease deed being paper
No. 41-C/1 to C/13, letter dated 29.10.1991
being
paper
No.
41-C/14
and
schedule/table being paper No. 41/15 are
included in such documents. The order
dated 18.12.1980 passed by the Competent
Authority establishing that plaintiff's land
covered by plot No. 197 was never
1278 INDIAN LAW REPORTS ALLAHABAD SERIES
declared surplus was also admitted as paper
No. 42-C/2. Paper No. 43-C/2 on record is
a map drawn by the Inspector/Surveyor,
which also shows that 4354.76 Sq. Mts. of
land covered by plot No. 197 was declared
as surplus vide return No. 3235 relating to
Lallan and there is no mention of the land
belonging to plaintiff-Bhola or his share in
plot No. 197. The documentary evidence
produced by the appellant before the courts
below, therefore, reads against the appellant
and cannot infer that the land belonging to
the plaintiff-respondent was ever declared
as vacant/surplus. Therefore, no question,
either factual or legal, as regards exchange
of plot No. 26 corresponding to share of the
plaintiff in plot No. 197 would arise.

24. There is also on record an
information sought from the Assistant
Commissioner
Stamps/Sub
Registrar,
Sadar-I, Gorakhpur under the Right to
Information Act by application dated
03.04.2023, being paper No. 44-C/2 and
44-C/3, by which various objections and
queries were raised as regards issuance of
certified copy of lease deed, which initially
contained 24 pages (both sides), but as to
under what circumstances the remaining
pages not signed by the executants of the
lease deed were made part thereof while
issuing certified copy of the said deed. On
such application, the Sub Registrar-I,
Gorakhpur informed on 20.04.2013 that the
deed contained pages No. 1 to 12 duly
signed by the executants thereof and, due to
clerical error, the Government letter might
have become part of it. As regards issuance
of certified copy, Rule 241 of the
Registration Manual was appended stating
that the typographical error so occurred
would not affect validity of the lease deed
that is a question within jurisdiction of
competent Court. In that connection, a
letter dated 30.04.2013 issued by the
Competent Authority, Urban Land Ceiling,
Gorakhpur also forms part of the record as
paper No. 45-C/1. alongwith which, a three
member report, paper No. 45-C/2 is
attached. These three members were Office
Assistant, Peshkar and Nodal Officer and
they responded to the query raised under
Right to Information Act in the manner that
against every question raised, a remark:
'copy of registered document received in
the office is attached as Annexure No. 1' is
mentioned.