Second appeal against reversal of a decree for permanent injunction over disputed sahan/husk land claimed as appurtenant to plaintiff's house under the U.P. Zamindari Abolition Act. The High Court held substantial compliance with Order XLI Rule 31 CPC but found first appellate findings perverse and remanded for fresh decision.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Neutral Citation No. - 2024:AHC-LKO:58701 AFR
Reserved
Court No. - 6
Case :- SECOND APPEAL No. - 392 of 2013
Appellant :- Shyampati Respondent :- Ram Karan Pandey And Ors. Counsel for Appellant :- V.P.Nagaur Counsel for Respondent :- Ram Raj Ojha,Durga Prasad
Hon'ble Rajnish Kumar,J.
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residing in an area of the Gram Sabha is entitled to be registered in the village Register as per U.P.Panchayat Raj (Maintenance of Village Register) Rules 1970 and since the name of the plaintiff-appellant is recorded in the Family Register, her rights on the land in dispute cannot be disputed. He also submitted that all efforts have been made by the defendants-respondents for forceful possession on the land in dispute and making construction. The plaintiff-appellant tried to get it settled before filing the suit but merely on this ground it cannot be said that the land in dispute is not of the plaintiff-appellant. Thus since the plaintiff-appellant is in possession of the land in dispute since prior to abolition of Zamindari and her house is existing adjacent to the land in dispute and the land in dispute is being used for various agricultural and house hold purposes since the time of ancestors of her husband, it is settled with them under Section 7 (aa) and 9 of the U.P.Z.A.&L.R.Act. He also submitted that if there was any dispute in regard to settlement of land in dispute with the parties under Section 9 of the U.P.Z.A.&L.R.Act the issue should have been framed and decided after affording opportunity of evidence to the parties.
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of Zamindari, therefore it is settled with them under Section 9 of the U.P.Z.A.&L.R.Act. The plaintiff-appellant or her husband or his ancestors were never in possession of the land in dispute because the possession was taken by her forcefully through police force after the judgment and decree dated 12.01.2010 passed by the trial court, which is apparent from the information given under Right to Information on 13.04.2010 by the concerned Police Station and filed as Paper No.24Ga/1 before the first appellate court. He further submitted that it is not in dispute that the fire had broken in the village on 02.04.2005, in which some portion of the house of the defendants-respondents was also burnt. He further submitted that the plaintiff-appellant has not produced any witness of the village, in which the land in dispute is situated. The plaintiff-appellant had appeared herself as P.W.1, who could not tell the correct things and P.W.2 was the interested witness as he was brother-in-law of Chandra Pal, the husband of the plaintiffappellant, who lives in another village. He further submitted that the defendant-respondent No.1 had appeared as D.W.1 and deposed that his thatch was burnt in the fire in 2005, for which government aid was given to him and houses of nine others were also burnt, therefore it cannot be said that the land in dispute is not appurtenant land of the defendants-respondents. The plaintiff-appellant had admitted in her evidence that his Pakka house was constructed 30-40 years back and since then she is making Kanda-Uppala on its roof, therefore the contention of the plaintiff-appellant that she is using the land in dispute for the said purposes is misconceived and not tenable,but the trial court recorded the contrary findings on presumption that since there is dispute between the parties in regard to the land in dispute, therefore if the plaintiff-appellant is making Kanda-Uppala on her roof to avoid quarrel and beating, it cannot be said that she is not in possession of the land in dispute. He further submitted that in the commission report, the door of the land in dispute is in front of the
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house of the defendants-respondents and the land in dispute is not connected with the house of the plaintiff-appellant in any manner, which was admitted by the plaintiff-appellant also. He also submitted that plaintiff-appellant has to prove her case and she can not get any benefit of weakness of the defendants-respondents but she has failed to prove her case.
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peaceful possession of the land in dispute marked with read in the map of the plaint and do not forcefully dispossess and make no new construction and demolish the wall of the husk structure (Thatch) thereon. The suit was filed alleging therein that House No.1149 of the plaintiff-appellant was got constructed by her husband and situated since prior to abolition of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (here-in-after referred to as U.P.Z.A.&L.R.Act). It has further been alleged that since the time of construction of her house Sahan, Baithaka, Bhusaila (husk), etc. is situated on the western side. The land in dispute is part of Sahan of plaintiff-appellant, in which there is a Bhusaila (Husk). It has also been alleged that the plaintiff-appellant used to tie her animals, make Kanda-Uppala and all other agricultural and homely works and keeps Bhusa, Puwal, Lakdi, Kanda etc. in the Husk. All these works are being done since the time of her husband like his ancestors and after his death the plaintiff-appellant is doing all such works. Thus the plaintiff-appellant is in possession and the same is settled with the husband of the plaintiff-appellant under Section 9 and Section 7 (aa) of the U.P.Z.A.& L.R.Act and after his death the plaintiff-appellant is owner and in possession of the land in dispute. It has further been alleged that all the four walls of Husk are five fit high on which there is a thatch. It has further been alleged that the defendants-respondents have neither any concern with the land in dispute nor they are in possession of the same. The house of the defendants-respondents is on the northern side of the land in dispute after the path, the Sahan Darwaja of which is on the eastern side. The defendants-respondents on the basis of their muscle power use to harass the plaintiff-appellant. The fire had broken on 02.04.2005 in the village, in which the thatch kept on the husk had fallen and taking the benefit of the same the defendants-respondents tried to make possession on the land in dispute and on being objected they threatened the plaintiff-appellant
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and the defendants-respondents were not ready to settle the dispute (make tafsiya) in any manner, therefore the plaintiff-appellant approached the trial court with the aforesaid prayer.
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(I) Whether the plaintiff is owner and in possession of the land in question? (ii) Whether suit is under valued and court fee paid thereon is insufficient? (iii) Whether the suit is barred by section 34/41 of Specific Relief Act?
(iv) Whether the suit is barred by Limitation Act?
(v) The plaintiff is entitled to get which relief?
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“(1) Whether the lower appellate court has committed manifest illegality in not complying with the provision of Order XLI Rule 31 CPC and thereby not formulating the points of determination?
(2) Whether the non compliance of provision of Order XLI Rule 31 CPC would make the impugned judgment and order unsustainable in the eyes of law?
(3) Whether the findings recorded by the lower appellate court are totally perverse and based on conjecture and surmises?”
"107. Powers of Appellate Court.— (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power—
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be
taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein."
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the same powers and duties as are conferred and imposed on the courts of original jurisdiction of suits instituted therein. Thus, the first appellate court has all the powers of the trial court while deciding the appeal, therefore the appellate court is required to consider all the pleadings of the parties, evidence and material available on records while deciding the appeal. The appellate court is required to pass judgment in appeal in accordance with the provisions of Order 41 Rule 31 CPC, which is extracted here-in-below:-
“31. Contents, date and signature of judgment.— The judgment of the Appellate Court shall be in writing and shall state—
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.
Allahabad._ At the end of the rule, substitute a semi-colon for the full stop and add the following:
"Provided that where that presiding Judge pronounces his judgment by dictation to a shorthand-writer in open court, the transcript of the judgment so pronounced shall, after such revision as may be deemed necessary, be signed by the Judge and shall bear the date of its pronouncement."
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on record as a trial court. It is for the reason that if any plea or evidence has been left to be considered by the trial court, it can appropriately be considered by the first appellate court to avoid injustice to either of the parties. Thus the first appeal is in continuation of trial and if all the issues framed by the trial court are considered by the first appellate court in accordance with law after considering the pleadings, evidence and material on record and dealing them appropriately and no new issue is raised at the appellate stage, this court is of the view that the judgment passed by the first appellate court may not be said to be vitiated and liable to be set aside only on this ground as there would be substantial compliance of Order 41 Rule 31 CPC.
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framed by the trial court in the body of the judgment and was, therefore, fully conscious of all the points that it had to consider in the appeal and no issue was left to be considered while adjudicating the appeal, therefore there is no merit in the contention that impugned judgment is liable to be set aside on this issue. The Relevant paragraphs 27 to 31 are extracted here-in-below:-
“ 27. This being the legal position vis-à-vis the Act of 1976, it was contended before us by the plaintiffs that the impugned judgment of the High Court is liable to be set aside on the short ground that no points for determination were framed therein, as required by Order 41 Rule 31 CPC. Reliance was placed on Malluru Mallappa (Dead) through Lrs. v. Kuruvathappa 5, wherein this Court observed that the first appellate Court is required to set out the points for determination, record the decision thereon and give its own reasoning. It was further observed that, even when the said Court affirms the judgment of the Trial Court, it has to comply with the requirements of Order 41 Rule 31 CPC as non-observance thereof would lead to an infirmity in its judgment. However, it may be noted that no absolute proposition was laid down therein to the effect that failure to frame points for determination, in itself, would render the first appellate Court's judgment invalid on that ground.
28. Reference was also made to Santosh Hazari v. Purushottam Tiwari (Deceased) by LRs 6, wherein this Court held that a first appeal is a valuable right and unless restricted by law, the whole case would be open for rehearing before it, both on questions of fact and law, and, therefore, the judgment of the first appellate Court must reflect conscious application of mind and it must record findings supported by reasons on all the issues arising, along with the contentions put forth and pressed by the parties for decision of the said Court. It was further observed that, while reversing a finding of fact, the first appellate Court must come into close quarters with the reasoning of the Trial Court and then assign its own reasons for arriving at a different finding. This, per this Court, would satisfy the requirement of Order 41 Rule 31 CPC.
29. However, in Laliteshwar Prasad Singh v. S.P. Srivastava (Dead) thru. Lrs. 7, this Court, while affirming the aforestated principles, observed that it is well settled that the mere omission to frame the points for determination would not vitiate the judgment of the first appellate Court, provided that the first appellate Court recorded its reasons based on the evidence adduced by both parties.
30. Thus, even if the first appellate Court does not separately frame the points for determination arising in the first appeal, it would not prove fatal as long as that Court deals with all the issues that actually arise for deliberation in the said appeal. Substantial compliance with the mandate of Order 41 Rule 31 CPC in that regard is sufficient. In this regard, useful reference may be made to G. Amalorpavam v. R.C. Diocese of Madurai 8, wherein this Court held as under:—
‘9. The question whether in a particular case there has been substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Noncompliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with
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it and the second appellate court is in a position to ascertain the findings of the lower appellate court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of second appeal conferred by Section 100 CPC.’
31. As already noted hereinabove, the High Court did set out all the issues framed by the Trial Court in the body of the judgment and was, therefore, fully conscious of all the points that it had to consider in the appeal. Further, we do not find that any particular issue that was considered by the Trial Court was left out by the High Court while adjudicating the appeal. In effect, we do not find merit in the contention that the impugned judgment is liable to be set aside on this preliminary ground, warranting reconsideration of the first appeal by the High Court afresh.”
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appellate court has a defined role and its judgment should show application of mind and reflect the reasons on the basis of which it agrees with the trial court. There has to be an “expression of opinion” in the proper sense of the said phrase. Needless to say, it is one thing to state that the appeal is without any substance and it is another thing to elucidate, analyze and arrive at the conclusion that the appeal is devoid of merit and the appellate court has to keep in view the language employed in Order 41 Rule 31 CPC. Similar view has been taken by the Hon’ble Supreme Court in the case of B.V.Nagesh and another Versus H.V.Sreenivasa Murthy (Supra) .
“इस न्यायालय के समक्ष उभय पक्ष की ओर से किकसी नवीन वाद किवन्दु के किनर्ध ा �रण के सम्बन्र्धा में कोई कथन नहीं किकया गया, इसलिलए अर्धाीनस्थ न्यायालय द्वारा किवरचि*त किकये गये वाद किवन्दु की ही समीक्षा इस किनण�य में की जायेगी।”
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recorded a finding that the trial court though mentioned all the facts mentioned in the plaint, but has not based his judgment on the evaluation of the evidence of the plaintiff-appellant and P.W.2 and only the evidence of the defendants-respondents have been referred and the suit has been decreed, whereas the plaintiff-appellant had to prove her case on the basis of her evidence and the Suit could not have been decreed on the basis of evidence of the defendantsrespondents, but failed to disclose as to how the plaintiff-appellant has failed to prove her case and as to why the reference of evidence of the plaintiff-appellant and P.W.2 was not sufficient for deciding the issue no.1 in her favour.
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therefore the necessity of filing of suit arose. Thus on the basis of a sentence in a paragraph without considering the other averments made in the plaint and further averment in the said paragraph and the evidence adduced before the trial court, the presumption has been drawn by the appellate court that the plaintiff-appellant was not confirmed about her ownership on land in dispute, which could not have been done.
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ago. Her statement has been recorded on 13.07.2007. Zamindari was abolished in 1952, therefor, certainly the said house would not have been constructed prior to abolition of Zamindari, even then the trial court has recorded a finding that the house of the plaintiff-appellant was on the land in dispute since prior to Zamindari abolition, but failed to consider as to whether there was any house or not at the time of abolition of Zamindari and even if the Kachcha house was there, it cannot be said that there was no house.
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sahan darwaza or land appurtenant to such house as may be necessary for agricultural or domestic purposes.
27. "Appurtenance', in relation to a dwelling, or to a school, college .... includes all land occupied therewith and used for the purpose thereof (Words and Phrases Legally Defined--Butterworths, 2nd edn).
"The word 'appurtenances' has a distinct and definite meaning ....Prima facie it imports nothing more than what is strictly appertaining to the subject-matter of the devise or grant, and which would, in truth, pass without being specially mentioned:Ordinarily, what is necessary for the enjoyment and has been used for the purpose of the building, such as easements, alone will be appurtenant. Therefore, what is necessary for the enjoy- ment of the building is alone covered by the expression 'appurtenance'. If some other purpose was being fulfilled by the building and the lands, it is not possible to contend that those lands are covered by the expression 'appurtenances'. Indeed 'it is settled by the earliest authority, repeated without contradiction to the latest, that land cannot be appurtenant to land.
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The word 'appurtenances' includes all the incorporeal hereditaments attached to the land granted or demised, such as rights of way, of common ...but it does not include lands in addition to that granted'. (Words and Phrase, supra).
28. In short, the touchstone of 'appurtenance' is dependence of the building on what appertains to it for its use as a building. Obviously, the hat, bazar or mela is not an appurtenance to the building. The law thus leads to the clear conclusion that even if the buildings were used and enjoyed in the past with the whole stretch of vacant space for a hat or mela, the land is not appurtenant to the prin- cipal subject granted by s. 9, viz., buildings. This conclustion is inevitable, although the contrary argument may be ingenious. What the High Court has grant- ed, viz., 5 yards of surrounding space, is sound in law although based on guess-work in fact. The appeal fails and is dismissed but, in the circumstances, without costs.
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of the instant suit were not parties and the same was also not proved in this case in accordance with law. The Hon’ble Supreme Court, in the case of Smriti Debbarma (Dead) through Legal Representative Versus Prabha Ranjan Debbarma (Supra), has held that the burden to prove facts rests with party who substantially asserts in the affirmative and not on the party which is denying it and if the parties fail to adduce evidence the suit must fail. The burden of proof and establish the title lies upon the plaintiff and onus of proof shifts and shifting is a continuous process in the evaluation of process. A Coordinate Bench of this Court in the case of Habibullah and others Versus Yasin and another (Supra) has held that a suit can be allowed on the strength of the evidence of the plaintiff and not on the weakness of the respondents. A Co-ordinate Bench of this court after considering the judgments of the Hon’ble Supreme Court in the case of Baij Nath Ram (Dead) and others Versus Smt.Sonmati and others (Supra) has held that where two contesting parties have led evidence, the burden of proof looses it’s imporance and it would assume secondary importance. Thus when both the parties have led evidence, the same are to be considered in accordance with law and if on the evaluating the evidence of the parties, it is found that the strength of the evidence of the plaintiff is sufficient to prove his case in comparison to the defendant the suit can be allowed.
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the brothers of her husband, but failed to consider her evidence as discussed above.
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whereas the Suit was filed alleging therein that the plaintiff-appellant is owner and in possession of the land in dispute and defendantsrespondents have neither any concern with the land in dispute nor in possession of the same. The interim injunction for maintaining the status quo by the parties was granted on 06.05.2005 in Civil Revision filed by the plaintiff-appellant before the Court of District Judge, Sultanpur and application for interim injunction was allowed by means of order dated 06.12.2006 by the trial court, therefore the First Appellate Court while considering the case and evaluating the evidence and material on record should also have considered it.
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...........(Rajnish Kumar, J.)
Order Date :- 29.08.2024 Banswar
Digitally signed by :- RAM NARESH BANSWAR High Court of Judicature at Allahabad, Lucknow Bench
2 issues framed by the court
Whether the first appellate court's judgment was vitiated by non-compliance with Order XLI Rule 31 CPC in not framing points for determination?
Whether the first appellate court's findings on possession and settlement of the disputed land were perverse?
Colour shows how this judgement treated each authority
Maharaj Singh Versus State of U.P. and othersRelied on¶29
(1976) 1 SCC 155 · Who else cites this
G. Amalorpavam and others Versus R.C. Diocese of Madurai and othersRelied on¶17
(2006) 3 SCC 224 · Who else cites this
Mrugendra Indravadan Mehta and others Versus Ahmadabad Municipal CorporationRelied on¶18
2024 Live Law (SC) 369
U.Manjunath Rao Versus U.Chandrashekar and anotherRelied on¶19
(2017) 15 SCC 309 · Who else cites this
Bala Devi (Smt.) Versus Mukhtyar SinghDistinguished¶21
2017 (2) ARC 363
Bhudan Singh and another Versus Nabi Bux and anotherRelied on¶30
(1969) 2 SCC 481 · Who else cites this
Smriti Debbarma (dead) through Legal Representative Versus Prabha Ranjan DebbarmaRelied on¶31
AIR 2023 SC (Civil) 472 · Who else cites this
Baij Nath Ram (Dead) and others Versus Smt. Sonmati and othersRelied on¶31
2008 (4) ADJ 708(DB)
Habibullah and others Versus Mohd.Yasin and anotherRelied on¶31
1995 (13) LCD 1073
B.V.Nagesh and another Versus H.V.Sreenivasa MurthyReferred¶19
(2010) 13 SCC 530 · Who else cites this
6 provisions across 3 enactments
Shyampati
Ram Karan Pandey
Respondent No.2 (died, not substituted)
Respondent No.3
Rajnish Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
