Research › Search › Judgment

Allahabad High Court · body

2017 DIGILAW 508 (ALL)

Satish Chandra Shukla v. State of U. P.

2017-02-10

ANJANI KUMAR MISHRA

body2017
JUDGMENT Anjani Kumar Mishra,J. Heard Shri Krishnaji Khare, learned counsel for the petitioners and learned Standing Counsel for the State-respondents. 2. Although, the Gaon Sabha has not been impleaded as a party, as respondent no.21 in the writ petition, it appears, that a notice, which was mandatorily required to be served upon the Gaon Sabha, has not been served. 3. The writ petition arises out of a suit for declaration under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, filed by Pancham and Pratap sons of Bachcha. 4. The suit was filed against Musai, the father of respondent no.8/1 and 8/2 claiming co-tenancy in the disputed land. The case of the plaintiffs was that the plaintiffs and the defendant, Musai were the sons of Bachcha from the same mother, Sumaria and therefore all had equal share in the land in question. 5. The case of the defendant, Musai was that the plaintiffs though the sons of Bachcha, where from his second wife, Dhiraji. The land in question was inherited by Sumaria from her father, Shiv Ratan and therefore, the plaintiffs who were not the sons of Bachcha from Smt. Sumaria, had no share in the disputed land. 6. The Trial Court dismissed the suit. The judgment and decree was affirmed by the first appellate Court.The consequential second appeal filed by the plaintiff, has been allowed, the judgments and decrees passed by the trial Court as also the first appellate Court have been set aside and the matter has been remanded back for a fresh decision, vide order dated, 26.09.2006. It is this order, which is impugned in this writ petition. 7. The contention of learned counsel for the petitioner is that the second appellate Court has appreciated the evidence available on record and on its basis, set aside the concurrent judgment of the two Courts below and remanded the matter back for fresh consideration. This approach of the Second Appellate Court is contrary to the scope of a Second Appeal. 8. He has placed reliance upon a decision of the Apex Court in Arumugham and others Vs. Sundarambal and another, AIR 1999 Supreme Court 2216. In the judgment cited, the controversy was as to whether, the High Court was right in interfering with the findings of fact arrived at by the lower Court. 8. He has placed reliance upon a decision of the Apex Court in Arumugham and others Vs. Sundarambal and another, AIR 1999 Supreme Court 2216. In the judgment cited, the controversy was as to whether, the High Court was right in interfering with the findings of fact arrived at by the lower Court. The interference by the High Court was on the ground that the appellate Court had not adverted to the various reasons given by the trial Court. 9. The Apex Court held that the second appellate Court cannot interfere with the judgment of the first appellate Court on the ground that the first appellate Court had not come to close grips with the reasoning of the trial Court. It has held that it is open for the first appellate Court to consider and accept the evidence of one side while rejecting the evidence of the other side. 10. I have considered the submission made by learned counsel for the petitioner and have perused the orders passed by the Trial Court, the first Appellate Court as also the Second Appellate Court. 11. The Board of Revenue found that the core question for consideration in the suit was whether the plaintiffs were the sons of Bachcha from Sumaria or were the sons of Bachcha from his second wife. 12. Upon a consideration of the evidence, especially, the oral evidence available on record adduced by the parties, the Court found that the evidence on the core question noticed above, was relied upon to decide, in favour of the defendants. However, the various contradictions in the statement of the plaintiffs witnesses as well as the defendant-witnesses, had not been adverted to, while discarding the case of the plaintiffs. 13. It therefore, came to the conclusion that the judgments of the Trial Court as also the Appellate Court were vitiated, as the entire evidence had not been considered by the two Courts below. On this reasoning, the judgments were set aside and the matter was remanded back for a fresh consideration. 14. The second appellate Court has also observed that even the first Appellate Court has not adverted to the contradictions, in the statement of both the plaintiff and defendant-witnesses, while affirming the order of the trial Court. 15. On this reasoning, the judgments were set aside and the matter was remanded back for a fresh consideration. 14. The second appellate Court has also observed that even the first Appellate Court has not adverted to the contradictions, in the statement of both the plaintiff and defendant-witnesses, while affirming the order of the trial Court. 15. It has additionally observed that the finding of the Trial Court that the suit, which was based on succession was wrongly held to be barred by Section 34(5) of the U.P. Land Revenue Act. 16. The contention of learned counsel for the petitioner is that the trial Court and the first Appellate Court had considered the oral evidence threadbare and the observations made to the contrary by the second appellate Court are factually incorrect. 17. In the context of the submissions made, I have perused the judgment of the trial Court as also the first Appellate Court and I do not find any consideration on the various contradictions referred to in the order of the second appellate Court. These contradictions have not been adverted to by the trial Court or the first Appellate Court. 18. Under the circumstances, the submission of counsel for the petitioner, cannot be accepted. 19. Even the case law cited by the learned counsel for the petitioner is not attracted in the facts and circumstances of the instant case. 20. As already noticed above, the order of remand has been passed by the second Appellate Court on the ground that the material evidence on record has not been adverted to in its entirety and that only a portion of the oral evidence has been considered by the Courts below. Such was not the situation in the case cited by counsel for the petitioner and for this reason, the judgment cited does not help the petitioners. 21. There is yet another aspect of the matter, which requires mention. 22. As many as 13 issues have been framed by the trial Court. The trial Court has decided only issues No.2,7,12,6, 3 and 4. The remaining issues out of 13, have not been decided. The judgment of the trial Court, therefore, in any case, was not in accordance with Order 14 Rule 1 CPC. 23. Accordingly and in view of the above discussion, the impugned order of remand, calls for no interference. 24. The trial Court has decided only issues No.2,7,12,6, 3 and 4. The remaining issues out of 13, have not been decided. The judgment of the trial Court, therefore, in any case, was not in accordance with Order 14 Rule 1 CPC. 23. Accordingly and in view of the above discussion, the impugned order of remand, calls for no interference. 24. The writ petition is devoid of merits and is accordingly dismissed.