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2024 DIGILAW 2424 (ALL)

Hukam Chand v. State of U. P.

2024-11-27

SAURABH SHYAM SHAMSHERY

body2024
JUDGMENT : Saurabh Shyam Shamshery, J. 1. Heard Sri Abhitab Kumar Tiwari, learned counsel for petitioners and Sri Rahul Kumar Tyagi, learned counsel for contesting respondents. 2. There are multiple proceedings between the parties. The first proceeding was commenced when one Rajveer Singh filed a suit under Section 176 of U.P. Z.A. & L.R. Act, which was decided and Khurras were prepared with consent of parties, purportedly on basis of a memorandum of family settlement reduced in writing on 12.04.2003 and accordingly a final decree was proposed, however, thereafter the parties remained silent for about a decade. 3. In the year 2013, when Smt. Laxmi Devi died issueless then respondent/plaintiff filed a suit under Section 176 //182 of U.P. Z.A. & L.R. Act, which commenced the second litigation between parties. It was claimed that in plaint the fact of family settlement was not disclosed. The suit was contested and finally claim of respondent No.6 was rejected and counter claim of petitioners was allowed by order dated 27.02.2019 and accordingly, a preliminary decree was prepared on 05.03.2019. 4. The aforesaid referred judgment and preliminary decree were challenged by plaintiff/respondent by way of a First Appeal before the Commissioner, Meerut. 5. During pendency of the appeal, an application under Order 41 Rule 27 C.P.C. was filed but it was never allowed, still additional evidence was considered and the First Appellate Court by an order dated 20.02.2020 has set aside the judgment and preliminary decree passed by Trial Court and allowed the suit of respondent No.6. The relevant part thereof is mentioned hereinafter:- 6. In the aforesaid circumstances, a Second Appeal was filed by the petitioners, wherein substantial questions of law was proposed as well as several grounds were also taken. For reference, the substantial questions of law proposed in memo of Second Appeal are reproduced hereinafter :- "A. Whether, lower appellate court erred in law by allowing the appeal without set asiding the finding of trial court recorded on issues and without discussing about the issues framed and decided by trial court and without recording his own finding on issues. For reference, the substantial questions of law proposed in memo of Second Appeal are reproduced hereinafter :- "A. Whether, lower appellate court erred in law by allowing the appeal without set asiding the finding of trial court recorded on issues and without discussing about the issues framed and decided by trial court and without recording his own finding on issues. B. Whether, lower appellate court erred in law in treating a memorandum of family settlement as compromise deed and allowing the appeal on the ground that it is not a registered documents without proper consideration of document and without reading it in whole and without recording finding that whether this document is memorandum of family settlement or family settlement of compromise deed, especially when this document is not giving any new right to the parties but it is only settlement of cultivation of lands by parties, which registration is not required. C. Whether, lower appellate court erred in law to ignoring the fact that family settlement regarding cultivating the land was accepted by plaintiff/respondent and parties are in possession and peacefully cultivating over their land according to compromise since a long time hence claim of plaintiff/respondent is barred by principal of Estoppel. D. Whether, lower appellate court erred in law in relying upon the documents which was first time filed in appellate court without allowing the application under Order 41 Rule 27 of C.P.C. E. Whether, judgment and degree of lower appellate court suffers from misreading, misinterpretation and ignorance of laws and evidences." 7. The Second Appeal was heard, however, it was dismissed by an order dated 08.03.2022 at the stage of admission, taking a view that no question of law involved in the case since the family settlement could not be considered as an evidence as it was not registered. For reference, relevant part thereof is mentioned hereinafter:- 8. The aforesaid order is impugned in writ No.1462 of 2022. During pendency of above referred litigation a third round of litigation commenced and despite challenge to first preliminary decree was pending before this Court, the Trial Court proceeded to prepare the final decree, therefore, an objection was filed by the petitioners but it was rejected by order dated 28.02.2024. A revision thereof was also filed. 9. During pendency of above referred litigation a third round of litigation commenced and despite challenge to first preliminary decree was pending before this Court, the Trial Court proceeded to prepare the final decree, therefore, an objection was filed by the petitioners but it was rejected by order dated 28.02.2024. A revision thereof was also filed. 9. During pendency of above referred revision and present writ petition before this Court, the Sub Divisional Officer accepted the Khurra vide order dated 14.03.2024 and passed a final decree on 23.03.2024, which was challenged by petitioners (fourth litigation) before the Appellate Court, but it was dismissed by order dated 28.06.2024. The petitioner thereafter filed a Second Appeal which was also dismissed by order dated 16.07.2024. Petitioner thereafter challenged the orders dated 16.07.2024, 14.03.2024 and decree dated 23.03.2024 in a writ petition bearing No.4401 of 2024, which is connected with this petition. 10. Learned counsel for petitioners in both writ petitions submits that order impugned in Writ-B No.1462 of 2022 is to be considered first since therein preliminary decree is being under challenge. He refers the specific questions of law mentioned in memo of appeal that issue whether memorandum of family settlement was mandatory, required to be registered as a compromise deed was wrongly considered. The recital of deed was not rightly considered in its correct perspective as well as that said family settlement was already accepted and consent was on basis of a family settlement already accepted and acted upon in earlier round of litigation. The family settlement dated 09.04.2003/12.04.2003 was based on earlier family partition took place about 3 decade earlier and it was only reduced to writing. 11. Learned counsel further submits that document for the first time relied by the first Appellate Court without allowing the application filed under Order 41 Rule 27 C.P.C. 12. The aforesaid submissions are opposed by learned counsel for respondent that document relied by first Appellate Court was a judgment, therefore, it could be considered without any application for taking additional evidence on record. The rights are perfected on basis of impugned decree, therefore, it cannot be opened or disputed at this stage, impugned preliminary and final. 13. Learned counsel further submits that the recital of alleged family settlement clearly depicts that it requires registration and, therefore, in absence of its registration the said document was rightly not considered as an evidence. 14. The rights are perfected on basis of impugned decree, therefore, it cannot be opened or disputed at this stage, impugned preliminary and final. 13. Learned counsel further submits that the recital of alleged family settlement clearly depicts that it requires registration and, therefore, in absence of its registration the said document was rightly not considered as an evidence. 14. Heard counsel for parties and perused the record. 15. In the present case, petitioners have filed a Second Appeal raising as many as five questions of law. The most relevant part is being 'whether a document purportedly a settlement was required registration or not for purpose of considering it as an evidence'. 16. The Board of Revenue has decided the second appeal without admitting it on proposed question of law, however, the manner of decision was that rival submissions were considered and an issue whether the said document required registration or not was decided as the question of law No.B was considered and decided, without forming said question of law. 17. The Supreme Court in Hemavathi and Others V. Hombegowda and Another , 2023 SCC OnLine SC 1206 has dealt with procedure for disposal of a Second Appeal. A second appeal can be dismissed if no question of law was found for consideration, however, in Hemavathi and Others (supra) Supreme Court has also taken note that it would be an error if a second appeal is rejected on ground that the case does not involved any substantial question of law, when the case in fact involved substantial question of law. The relevant part of Hemavathi and Others (supra) is reproduced hereinafter :- " 18. In this context, the law on the practice to be followed while considering a regular second appeal, has been re-iterated by this Court in C.A. No. 4935 of 2023 in Bhagyashree Anant Gaonkar v. Narendra @ Nagesh Bharma Holkar dated 07.08.2023, and the relevant extracts in this regard are exposited as under: a) Roop Singh v. Ram Singh, (2000) 3 SCC 708 , as relied upon in C.A. Sulaiman v. State Bank of Travancore, Alwayee, (2006) 6 SCC 392 : “7. It is to be reiterated that under Section 100 CPC jurisdiction of the High Court to entertain a second appeal is confined only to such appeals which involve a substantial question of law and it does not confer any jurisdiction on the High Court to interfere with pure questions of fact while exercising its jurisdiction under Section 100 CPC.” b) State Bank of India v. S.N. Goyal, (2008) 8 SCC 92 : “15. It is a matter of concern that the scope of second appeals and as also the procedural aspects of second appeals are often ignored by the High Courts. Some of the oft-repeated errors are: (a) Admitting a second appeal when it does not give rise to a substantial question of law. (b) Admitting second appeals without formulating substantial question of law. (c) Admitting second appeals by formulating a standard or mechanical question such as “whether on the facts and circumstances the judgment of the first appellate court calls for interference” as the substantial question of law. (d) Failing to consider and formulate relevant and appropriate substantial question(s) of law involved in the second appeal. (e) Rejecting second appeals on the ground that the case does not involve any substantial question of law, when the case in fact involves substantial questions of law. (f) Reformulating the substantial question of law after the conclusion of the hearing, while preparing the judgment, thereby denying an opportunity to the parties to make submissions on the reformulated substantial question of law. (g) Deciding second appeals by reappreciating evidence and interfering with findings of fact, ignoring the questions of law. These lapses or technical errors lead to injustice and also give rise to avoidable further appeals to this Court and remands by this Court, thereby prolonging the period of litigation. Care should be taken to ensure that the cases not involving substantial questions of law are not entertained, and at the same time ensure that cases involving substantial questions of law are not rejected as not involving substantial questions of law.” c) Municipal Committee, Hoshiarpur v. Punjab SEB, (2010) 13 SCC 216 : “16 A second appeal cannot be decided merely on equitable grounds as it lies only on a substantial question of law, which is something distinct from a substantial question of fact. The court cannot entertain a second appeal unless a substantial question of law is involved, as the second appeal does not lie on the ground of erroneous findings of fact based on an appreciation of the relevant evidence. The existence of a substantial question of law is a condition precedent for entertaining the second appeal; on failure to do so, the judgment cannot be maintained. The existence of a substantial question of law is a sine qua non for the exercise of jurisdiction under the provisions of Section 100 CPC. It is the obligation on the court to further clear the intent of the legislature and not to frustrate it by ignoring the same.” d) Umerkhan v. Bismillabi, (2011) 9 SCC 684 : “11. In our view, the very jurisdiction of the High Court in hearing a second appeal is founded on the formulation of a substantial question of law. The judgment of the High Court is rendered patently illegal, if a second appeal is heard and judgment and decree appealed against is reversed without formulating a substantial question of law. The second appellate jurisdiction of the High Court under Section 100 is not akin to the appellate jurisdiction under Section 96 of the Code; it is restricted to such substantial question or questions of law that may arise from the judgment and decree appealed against. As a matter of law, a second appeal is entertainable by the High Court only upon its satisfaction that a substantial question of law is involved in the matter and its formulation thereof. Section 100 of the Code provides that the second appeal shall be heard on the question so formulated. It is, however, open to the High Court to reframe substantial question of law or frame substantial question of law afresh or hold that no substantial question of law is involved at the time of hearing the second appeal but reversal of the judgment and decree passed in appeal by a court subordinate to it in exercise of jurisdiction under Section 100 of the Code is impermissible without formulating substantial question of law and a decision on such question.” e) Raghavendra Swamy Mutt v. Uttaradi Mutt, (2016) 11 SCC 235 “18. In the instant case, the High Court has not yet admitted the matter. In the instant case, the High Court has not yet admitted the matter. It is not in dispute that no substantial question of law has been formulated as it could not have been when the appeal has not been admitted. We say so, as appeal under Section 100 CPC is required to be admitted only on substantial question/questions of law. It cannot be formal admission like an appeal under Section 96 CPC. That is the fundamental imperative. It is peremptory in character, and that makes the principle absolutely cardinal.” 18. In order to consider whether the findings returned by Board of Revenue in regard to document i.e. a family settlement that it does not require registration since its contents do not indicate that a partition already taken was reduced in writing. I have carefully perused the contents of said family settlement. 19. In the said document it is specifically stated that family settlement has already taken place about 30 years ago and parties are in possession of their respective shares decided by settlement and it was only reduced in writing on 09.04.2003/12.04.2003. The parties have also written on said document that partition was already taken place about 30 years ago. Therefore, finding returned by Second Appellate Court/ Board of Revenue appears to be perverse that it was not in regard to Jayram and his legal heirs, which is the present dispute, whereas father of Jayram was a party to family settlement and therefore, share of Jayram was finalized as such, as it has bearing in present case also, therefore, it cannot be said that no substantial question involved in present case. 20. The Board of Revenue has dealt with extensively the above issue and returned a finding that said document required a registration, therefore, Court is of considered opinion that the Second Appeal involves at least proposed question of law No.(B). 21. In aforesaid circumstances, taking note of Hemavathi and Others (supra) also, the impugned order is set aside and matter is remitted back to Board of Revenue to reconsider questions of law proposed in memo of appeal. 22. Accordingly, this writ petition is disposed of with aforesaid observation.