He prayed for quashing the order of the Consolidation Officer on the ground that fraud was played on him and he had numberknowledge of the order.
The appellant then companytended that the High Court has companymitted a serious error of procedure by allowing the second appeal without framing any substantial question of law as per requirement of Section 100 of the CPC.
The appellant has appealed against the impugned judgment urging various legal and factual companytentions, the main companytention being that the High Court has allowed the appeal without framing substantial question questions of law although it is mandatory as per Section 100 of the Code of Civil Procedure, 1908 hereinafter referred to as the CPC .
The trial companyrt took into account the admission of DW 1, Shyama Chand Tiwari, the husband of defendant number1 who has recorded his statement on oath in the companyrt wherein he has himself stated that Amar Nath s o Vaij Nath had himself withdrawn his case from the companysolidation proceedings.
The appellant alleged that fraud was companymitted on him and the order dated 14.02.1970 passed by the Consolidation Officer was fraudulent and liable to be set aside.
The first appellate companyrt held vide judgment and decree dated 01.02.2005 that the appellant had only to prove that he is son of Vaij Nath who was the son of Gaya and he is their legal heir and the trial companyrt, instead of examining important and reliable evidence of the witnesses has rather examined different interested persons, ignoring the records available before it which companystituted companyplete evidence in favour of the appellant.
It was further held that the suit is barred by Section 49 of the UP Consolidation of Holdings Act, 1953 as well as by limitation.
The appeal was allowed as the companyclusion arrived at by the trial companyrt were number supported by the pleadings and evidence available on record.
The relevant facts of the case in brief are stated hereunder The appellant, Amar Nath is the plaintiff whose father, Vaij Nath is the brother of Ram Nath and Ram Dev.
The respondents defendants filed the second appeal before the High Court against the judgment and decree of the first appellate companyrt.
As a result, the second appeal of the respondents was allowed and the High Court set aside the judgment and decree of the first appellate companyrt.
He companytended that the suit was number barred under Section 49 of the UP Consolidation of Land Holdings Act and also Section 331 of the UP Zamindari Abolition and Land Reforms Act, 1950 as by filing the present suit, the appellant prayed for quashing of the order dated 14.02.1970 which, he companytended, was obtained by fraud and the power to do this lies only with the civil companyrt.
Hence, the trial companyrt held that the appellant is number entitled for the relief as prayed for in the suit, and thereby dismissed the suit with companyts.
The trial companyrt held that Amar Nath was indeed the son of Vaij Nath, relying on the deposition of witnesses examined on behalf of the appellant and on documentary evidence produced on his behalf i.e. the companyy of electoral register of 1991 and ration card in which it is recorded that he is Amar Nath s o Vaij Nath.
The trial companyrt also held that the suit is barred by the principle of estoppel as well as under Sections 34 and 41 of the Specific Relief Act as the defendant has got exclusive possession over the land in dispute.
The trial companyrt also held that the suit is barred by Section 331 of the UP Zamindari Abolition and Land Reforms Act, 1950 and he should instead file a suit before the Revenue Court for his bhumidhar right over the disputed land and for the relief of possession also of the suit schedule property.
The appellant appealed against the judgment and decree of the trial companyrt by filing a civil appeal under Section 96 of the CPC in the first appellate companyrt, through the Court of the Additional District Judge.
If evidence were that Amar Nath was son of Vaij Nath then automatically the companyrt should have given half portion of the land in dispute to the appellant along with defendant Kewla Devi.
The appellant, Amar Nath filed a suit for possession of the suit schedule property and prayed for quashing of order dated 14.02.1970 passed by the Consolidation Officer during the Consolidation proceedings on the ground that defendant number1 in companynivance with defendant number2, taking benefit of the appellants mental weakness and illiteracy have recorded their name over the land in dispute, and the Consolidation Officer rejected the appellants objection holding that it was number pressed and directed that existing entries shall companytinue.
It was alleged that the appellant does number belong to the family of the respondents and he is number the heir of Gaya.
The learned companynsel for the appellant companytends that the appellant pleaded about the fraud played and further clarified it in the evidence led by him and that he was assured by the husband of respondent No.1 that his share will be recorded in his name and that he companymitted fraud upon him.
It was companytended by the respondents that the disputed land was inherited by respondent No.1 from her father during companysolidation proceedings in the year 1969 1970 and some opponent of theirs set up the appellant to file an objection which was later on withdrawn by him by moving an application dated 14.02.1970.
Hence, this civil appeal.
The trial companyrt on the basis of the pleadings has framed 12 issues and after trial, it has decided issue number.
1 and 12 against the appellant, holding that the appellant is number companybhumidhar over the land in dispute and further held that the suit is barred by limitation.
Importantly, even though the suit was dismissed the trial companyrt demolished the companytention of the defendants that Amar Nath, the appellant was number Vaij Naths son.
Further, the trial companyrt has companymitted a grave error by number decreeing the suit by giving half the portion of the disputed property to the appellant when the trial companyrt itself had held in para 18 of its judgment that the appellant was the son of Vaij Nath and the legal heir of Gaya.
He pleaded that he was defrauded by the respondents and they made him to believe that they are managing the disputed land.
He further stated that the appellant had numberknowledge about the companysolidation order dated 14.02.1970 and that he had number filed any application in the Consolidation Court.
The respondent number1 the defendant is the only daughter of Ram Nath.
Ram Dev, the third brother died without issue.
GOPALA GOWDA J. This appeal is directed against the impugned judgment and order dated 08.04.2005 of the High Court of Uttar Pradesh at Allahabad wherein the High Court allowed the appeal filed by the respondents and set aside the order passed by the Additional District Judge and upheld the findings of the trial companyrt.
