# Ureha v. Bharose & Anr

- **Citation:** (2023) 1 ILRA 1104
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-31
- **Case number:** Second Appeal No. 732 of 2016
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ureha-v-bharose-anr-49301
- **Pages:** 5

## Headnote

Civil Law- Civil Procedure Code, 1908 -
Section 100 - Order 41 Rule 11, 31 - UP
Zamindari
Abolition and
Land
Reforms
Act,1950 - Section - 331: - Plaintiff's Second
Appeal - challenging the Judgment & decree passed
by court below respectively - Suit for permanent
injunction and cancellation of Sale deed - both are
rejected by court below - while examine the
substantial question of law, court finds - on the date
of institution of Civil Suit, neither the name of
plaintiff-appellant was recorded in the revenue
records nor they have possession over the said
property in question - as such, Suit in question is
barred by section 331 of CPC - hence, plaintiffappellant cannot maintain a Civil Suit rather plaintiff
can avail the remedy of Revenue Court for
declaration of their rights and title - second appeal
lacks merit and is dismissed under Order 41 Rules
11 of CPC. Para - 12, 16, 18)
1 All. Ureha Vs. Bharose & Anr.
1105
Second Appeal Dismissed. (E-11)

List of Cases cited:

## Text

1104 INDIAN LAW REPORTS ALLAHABAD SERIES
the appointing authority. Unlike in the
present case where not only the dismissing
officer is different but is junior/subordinate
to the appointing authority.

12. Furthermore, even if the power of
appointment is later extended to subordinate
officers, the constitutional protection to an
employee under Article 311 was operational
right from the date of his appointment. For
finding out the appropriate authority eligible
to pass an order of removal/dismissal, the
state of affairs as they existed on the date of
appointment are relevant. The law in this
regard is settled by the Supreme Court in
Krishna Kumar (supra), in paragraph 6 and
7 it has been held as under,

"6. Besides, delegation of the power to
make a particular appointment does not
enhance or improve the hierarchical status of
the delegate. An Officer subordinate to
another will not become his equal in rank by
reason of his coming to possess some of the
powers of that another. The Divisional
Engineer, in other words, does not cease to be
subordinate in rank to the Chief Electrical
Engineer merely because the latter's power to
make appointments to certain posts has been
delegated to him.

7.
Since
the
appellant
was
appointed by the Chief Electrical Engineer
and has been removed from service by an
order passed by Respondent 1 who, at any
rate, was subordinate in rank to the Chief
Electrical Engineer on the date of appellant's
appointment, it must be held that Respondent
1 had no power to remove the appellant from
service. The order of removal is in patent
violation of the provisions of Article 311(1) of
the Constitution."

13. First Appellate Court was right in
allowing the appeal of plaitiff-respondent.
In its judgment, the First Appellate Court
has rightly applied the protection extended
to an employee inherent in Article 311(1)
and reversed the judgment of the Trial
Court.

14. In light of the above observation
this second appeal is dismissed. Judgment
dated 07.12.1990 by the First Appellate
Court is affirmed.
----------
(2023) 1 ILRA 1104
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.08.2022

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Second Appeal No. 732 of 2016

Ureha ...Appellant
Versus
Bharose & Anr. ...Respondents

Counsel for the Appellant:
Sri Anand Kumar Srivastava

Counsel for the Respondents:
--

Civil Law- Civil Procedure Code, 1908 -
Section 100 - Order 41 Rule 11, 31 - UP
Zamindari
Abolition and
Land
Reforms
Act,1950 - Section - 331: - Plaintiff's Second
Appeal - challenging the Judgment & decree passed
by court below respectively - Suit for permanent
injunction and cancellation of Sale deed - both are
rejected by court below - while examine the
substantial question of law, court finds - on the date
of institution of Civil Suit, neither the name of
plaintiff-appellant was recorded in the revenue
records nor they have possession over the said
property in question - as such, Suit in question is
barred by section 331 of CPC - hence, plaintiffappellant cannot maintain a Civil Suit rather plaintiff
can avail the remedy of Revenue Court for
declaration of their rights and title - second appeal
lacks merit and is dismissed under Order 41 Rules
11 of CPC. Para - 12, 16, 18)
1 All. Ureha Vs. Bharose & Anr.
1105
Second Appeal Dismissed. (E-11)

List of Cases cited:

1. Shri Ram & anr. Vs 1st A.D.J. & ors., JT 2001
(2) SC 573,

2. Azhar Hasan & ors. Vs District Judge,
Saharanpur & ors., (1998) 3 SCC 246,

3. Kamla Vs Smt. Gulabi Devi & anr., (2015) 127
RD 110,

4. Kamla Prasad & ors. Vs Krishnakant Pathak &
ors., 2007 Allahabad Civil Journal 1275.

(Delivered by Hon'ble Chandra Kumar
Rai, J.)

1.

Heard
Sri
Anand
Kumar
Srivastava,
learned
counsel
for
the
appellants.

2. This second appeal has been filed
on behalf of the plaintiffs under Section
100 of the Code of Civil Procedure, against
the judgment and decree dated 7.4.2016
and 16.4.2016 respectively, passed by the
Additional District Judge, Court No.4,
Basti, dismissing the Civil Appeal No.70 of
2013,
arising
out
of
Original
Suit
No.571/1988, wherein the trial court vide
judgment and decree dated 28.10.2013 and
9.11.2013
respectively,
dismissed
the
plaintiff's suit for permanent injunction and
cancellation of sale deed.

3. The appellants have formulated the
following substantial questions of law in
the memorandum of the second appeal:-

(a) Whether the ancestral property
inherited by the defendant no.1 can be disposed
of by sale deed to his in-laws son in the life time
of his wife (plaintiff)?

(b) Whether the issue nos. 1, 10 and 12
have wrongly been decided by the courts below
against the weight on the evidence on the
record?

(c) Whether the will dated 10.2.1994 once
decided by the trial court valid, after examining
the evidence of the parties and no appeal was
preferred by the defendants against the same,
therefore, the findings of the court that on the
will the evidence is required by the parties?

4. Plaint case in brief is that plaintiff
(Ureha) is wife of defendant no.1 (Bharose).
There was no male issue from the wedlock of
plaintiff and defendant no.1 rather 3 daughters
from their wedlock who are married and are
residing along with their family in their in-law's
house. It has been further mentioned in the
plaint that defendant no.2 has fraudulently got
executed the sale deed from defendant no.1 in
respect to disputed land, accordingly, suit for
injunction
was
filed
by
plaintiff
and
subsequently the relief for cancellation of sale
deed was also added in the plaint.

5. In the written statement, defendants
denied the plaint allegations and in their
additional statement, it has been mentioned that
plaintiff has no cause of action to file the suit. It
has been further mentioned that sale deed was
rightly executed by defendant no.1 in favour of
defendant no.2 as he was in the need of money.
On the basis of the execution of registered sale
deed, defendant no.2 is in possession of the
disputed property, as such, the prayer was made
that suit is liable to be dismissed.

6. In the suit, the following issues were
framed before the trial court:-

1- क्या वाकदनी प्रकतवादीगण िो वाद
पत्र में कलखखत िथनोों िे आधार पर
कववाकदत सोंपकत्त बेचने से मना िरवा पाने िी
अकधिारी है?

2- क्या वाकदनी िो वाद दायर िरने िा
अकधिार नही है?
1106 INDIAN LAW REPORTS ALLAHABAD SERIES

3- क्या इस न्यायालय िो प्रस्तुत वाद
देखने िा क्षेत्राकधिार प्राप्त नही है?

4- क्या वाद धारा 331 उ०प्र० जमीोंदारी
कवनाश एवों भूकम सुधार अकधकनयम से बाकधत
है?

5- क्या वाद मौन स्वीिृकत व कवबोंधन िे
कसद्धान्त से बाकधत है?

6- क्या वाद अल्पमूल्ाोंकित है?

7- क्या प्रदत्त न्याय शुल्क अपयााप्त है?

8- क्या वाद धारा 34 कवकशष्ट अनुतोष
अकधकनय से बाकधत है?

9- क्या वाकदनी किसी अन्य अनुतोष
प्राप्त िरने िी अकधिाररणी है?

10- क्या रामदेव िे पक्ष में किया गया
बैनामा कदनाोंि- 21.5.88 मोंसूख किये जाने
योग्य है? 11- क्या प्रस्तुत वाद धारा 41
कवकशष्ट अनुतोष अकधकनयम से बाकधत है?

12- क्या उरेहा ने ईश्वर देई िे हि में
वसीयतनामा कदनाोंकित- 10.02.94 िो कलखा
है, यकद हॉ तो प्रभाव?

13- क्या प्रस्तुत वाद प्रापली प्रजेन्टेि व
बेरीफाइि है?

14- क्या दावा वादी सोंशोधन िे बाद
अल्पमूल्ाोंकित है तथा प्रदत्त न्यायशुल्क
अपयााप्त है?

15- क्या दावा, वादी िाल बाकधत है?

16- क्या प्रकतवाकदनी धारा 35 (अ) सी०
पी०
सी०
स्पेशल
िास्ट
पाने
िी
अकधिाररणी है?

7. Both parties adduced oral and
documentary evidence in support of their
cases. On behalf of the defendants', the
revenue entries in form of documentary
evidence
were
filed
in
order
to
demonstrate
that
plaintiff
was
not
recorded in the revenue records rather
defendant no.1 was recorded in the
revenue records, as such, the suit for
injunction and cancellation of sale deed
at the instance of defendant no.1 was not
maintainable. Trial court while deciding
the issue no.1, has recorded finding of
fact that plaintiff was recorded in the
revenue records as owner of the disputed
plot, as such, plaintiff was fully entitled
to execute the sale deed of the plot in
dispute. Trial court while deciding issue
no.10, has recorded finding of fact that
sale deed executed by defendant no.1 in
favour of defendant no.2 on 21.5.1988 is
not liable to be cancelled as at the time of
execution of the alleged sale deed,
defendant no.1 was in a healthy mental
condition. The trial court while deciding
issue nos. 3 & 4, has recorded clear
finding of fact that issues nos. 3 and 4 are
decided in favour of the plaintiff as
plaintiff was not recorded in the revenue
record nor plaintiff is in possession of the
disputed property, as such, the suit is
barred by Section 331 of the U.P. Z.A. &
L.R. Act. The other issues were also
decided accordingly and the trial court
vide
judgment
and
decree
dated
28.10.2013 dismissed the plaintiff's suit.

8. Against the judgment and decree
of the trial court, plaintiff filed Civil
Appeal No.70/2013 in which the lower
appellate court has formulated the point
of determination as provided under
Order 41 Rule 31 of the C.P.C. and
while
deciding
the
point
of
determination no.5, the lower appellate
court has held that civil court has no
jurisdiction to adjudicate the issue as
plaintiff is not recorded in the revenue
records nor there is any illegality in the
execution of sale deed rather the sale
deed is a mental act of defendant no.1.
The civil appeal was dismissed by the
lower appellate court vide judgment and
decree dated 7.4.2016.
1 All. Ureha Vs. Bharose & Anr.
1107

9. Counsel for the appellant submitted
that property in dispute is ancestral
property which is inherited by defendant
no.1, as scuh, he cannot execute the sale
deed in favour of his son-in-law without
making any provision for the plaintiff who
is wife of defendant no.1. He further
submitted that issue nos.1, 10 & 12 have
been wrongly decided by the trial court, the
evidence of the plaintiff has not been taken
into consideration while deciding issue nos.
1, 10 & 12, as such, the impugned
judgment and decree is vitiated by error of
law. He also submitted that once the will
deed dated 10.2.1994 has been found to be
valid by the trial court, the suit filed by
plaintiff cannot be dismissed but the courts
below
have
not
considered
the
aforementioned aspect of the matter and
dismissed the plaintiff's suit.

10. I have considered the arguments
advanced by the learned counsel for the
appellants as well as perused the records.

11. The substantial questions of law
which have been framed by the learned
counsel
for
the
appellants
in
his
memorandum of appeal as quoted above,
has also been examined by this Court.

12. There is no dispute about the fact
that on the date of institution of the civil
suit, the plaintiff was not recorded in the
revenue records rather defendant no.1 was
recorded in the revenue records. The law
on this point is well settled that if plaintiff
is not recorded in the revenue record, he
cannot maintain a civil suit rather plaintiff
can avail the remedy of Revenue Court for
declaration of their rights and title. The
Apex Court in the case of Shri Ram and
Another vs. 1st Addl. District Judge and
Ors., JT 2001(2) SC 573, has held that
recorded tenure holder, having prima facie
title
and
possession,
filing
suit
of
cancellation of sale deed executed in favour
of respondent can be decreed by the trial
court but position would be different if the
person is not recorded tenure holder. The
paragraph no.7 of the judgment is as
follows:-

"On analysis of the decisions cited
above, we are of the opinion that where a
recorded tenure holder having a prima
facie title and in possession files suit in
the civil court for cancellation of sale
deed having obtained on the ground of
fraud
or
impersonation
cannot
be
directed to file a suit for declaration in
the revenue court reason being that in
such a case, prima facie, the title of the
recorded tenure holder is not under
cloud. He does not require declaration of
his title to the land. The position would
be different where a person not being a
recorded
tenure
holder
seeks
cancellation of sale deed by filing a suit
in the civil court on the ground of fraud
or impersonation. There necessarily the
plaintiff is required to seek a declaration
of his title and, therefore, he may be
directed to approach the revenue court,
as the sale deed being void has to be
ignored
for
giving
him
relief
for
declaration and possession."

13. The Apex Court in the case of
Azhar Hasan and Others vs. District
Judge, Saharanpur and Others, (1998) 3
SCC 246 has held that civil court has no
jurisdiction to entertain a suit where the
plaintiff is not recorded in the revenue
record.

14. This court in the case of Kamla
vs. Smt. Gulabi Devi and Another, (2015)
127 RD 110 has held that civil court has no
jurisdiction in a case where plaintiff is not
1108 INDIAN LAW REPORTS ALLAHABAD SERIES
recorded in the revenue records and files a
suit for permanent injunction.

15. The lower appellate court has also
considered the case reported in 2007
Allahabad Civil Journal page 1275
(Kamla
Prasad
and
Others
vs.
Krishnakant Pathak and Others) where
the Apex Court has held that suit in respect
of
abadi
and
agricultural
land
for
cancellation of sale deed will lie in revenue
court as plaintiff was not found to be
recorded in the revenue records.

16. The trial court as well as lower
appellate
courts
have
thoroughly
considered the evidence relied upon by the
parties by deciding the issues and point of
determination and have recorded finding of
fact that plaintiff was not recorded in the
revenue record, as such, the civil suit for
permanent injunction and possession is
barred by Section 331 of the U.P. Z.A. &
L.R, Act. The courts below have also
recorded finding of fact that plaintiff is not
in possession of the disputed plot and the
sale deed executed by defendant no.1
(recorded tenure holder) in favour of
defendant no.2, was the healthy mental act
of defendant no.1, as such, the suit and civil
appeal filed by plaintiff was dismissed
concurrently by the courts below.

17. After considering the findings
recorded by the trial court on each and
every issue as well as by the lower
appellate court on each and every point of
determination, no substantial questions of
law as framed in the memorandum of
appeal by the appellants as well as argued
by him, are arises in the second appeal.

16. The second appeal lacks merit and
the same is hereby dismissed under Order
41 Rule 11 C.P.C.
----------
(2023) 1 ILRA 1108
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.12.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE SAURABH SRIVASTAVA, J.

Writ-A No. 8161 of 2022

Union of India & Ors. ...Petitioners
Versus
Central Admin. Tribunal, Lucknow & Anr.
 ...Respondents

Counsel for the Petitioners:
Sudhanshu Chauhan

Counsel for the Respondents:
Praveen Kumar

A. Service Law - Transfer - Scope of
Interference u/Article 226 - It is well
settled principle of law that any State
action has to be free of arbitrariness and it
should conform to the principles of
fairness. The concept of fairness or nonarbitrariness in the administrative action
is well recognized. (Para 16, 17)

Transfer is an exigency of service and it is
the prerogative and the right of the
employer, in this case is the railways, to
transfer its employees or officers to any place
on various grounds including the ground of
public interest and administrative exigencies.
The scope of judicial scrutiny by this Court
u/Article 226 of the Constitution of India
in a matter relating to transfer of an
employee is very limited. Unless the court
finds the transfer order having been effected on
account of the malice or mala fide or if it is
found to be infested with arbitrariness, Court
would normally not interfere in the transfer
order. (Para 15)

B. Circular dated 12.12.2018: Addendum
to the Comprehensive Transfer Policy