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Sahdeo and ors. Vs. Board of Revenue and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 5788 of 1974
Judge
Reported inAIR1980All408
ActsEvidence Act, 1872 - Sections 18; Uttar Pradesh Land Revenue Act, 1901 - Sections 34; Constitution of India - Article 226
AppellantSahdeo and ors.
RespondentBoard of Revenue and ors.
Appellant AdvocateSakha Ram Singh, Adv.
Respondent AdvocateA.N. Mishra, Adv.
DispositionPetition dismissed
Excerpt:
.....- evidence - section 18 of evidence act, 1872 - admission - suit for declaration of title and possession - the order made in correction of paper case - not binding in regular suit - admission made on question of possession - admissible. (ii) board of revenue - article 226 constitution of india - judgment based on findings of lower court - documents not referred - order of board of revenue does not suffer from any error apparent on the face of record. - - i am, therefore, of the opinion that the plaintiffs have failed to prove fraud on the part of the defendant. director of consolidation, (air 1976 all 91(fb)) it has been clearly held that where an appellate or revisional court or the tribunal, while affirming the finding does not refer to some material or some contrary evidence in..........suit in the revenue court giving rise to this writ petition for declaration and possession. the suit filed in the revenue court was challenged by the respondent no. 4 on the ground that the order in the correction case was validly passed by the s. d. o. on 19-6-1956. the petitioners father himself admitted the possession of respondent 4 from 1950 and no fraud was practiced. both the parties adduced oral and documentary evidence in support of their respective cases. the trial court dismissed the suit with the finding that the plaintiffs are not in possession over the land in dispute since at least 1363f. on this finding it was held that the defendant has matured title as the suit was filed after 6 years. from the plaint, it appears that the suit was filed on 21-5-1963 equal to 1370f......
Judgment:
ORDER

R.S. Singh, J.

1. This writ petition is directed against the order of the Board of Revenue dated 11-6-1974 dismissing the petitioner's Second Appeal.

2. The dispute is between Sahdeo and others, the petitioners and Brij Kishore, respondent No. 4 regarding title of the plots of the disputed land. In a correction of paper case moved on behalf of the respondent No. 4, by order of the S. D. O. dated 19-6-1956, the name of respondent No. 4 was re-corded over the disputed land. In that proceeding the father Of the petitioners, who was also a party in that case, filed a written statement admitting petitioners' possession from 1950. A suit for injunction was filed by the petitioners on the allegation that they are in possession challenging the order dated 19-6-1956 passed by the S. D. O. in the correction case on the ground of fraud. The suit was dismissed by the Munsif. The decree of the Munsif was affirmed by the District Judge. The petitioners filed a second appeal in the High Court and by order dated 30-10-1969 of this Court, the suit was dismissed on the ground that the petitioners were not in possession on the date of the suit and other matters regarding the fraudulant nature of the correction case was left open as the petitioners had in the meantime, filed the present suit in the Revenue Court giving rise to this writ petition for declaration and possession. The suit filed in the Revenue Court was challenged by the respondent No. 4 on the ground that the order in the correction case was validly passed by the S. D. O. on 19-6-1956. The petitioners father himself admitted the possession of respondent 4 from 1950 and no fraud was practiced. Both the parties adduced oral and documentary evidence in support of their respective cases. The trial court dismissed the suit with the finding that the plaintiffs are not in possession over the land in dispute since at least 1363F. On this finding it was held that the defendant has matured title as the suit was filed after 6 years. From the plaint, it appears that the suit was filed on 21-5-1963 equal to 1370F. The petitioners preferred an appeal against the order of the trial court, which was dismissed by the Additional Commissioner. The second appeal filed by the petitioners was also dismissed by the Board of Revenue. The petitioners have challenged the aforesaid orders before this Court.

3. It has been contended by the learned counsel for the petitioners that the admission of the petitioners' father made in the correction of paper case was not admissible in the regular suit, but it has been wrongly relied in this case. It was further urged that the lower appellate Court has not considered all the evidence adduced by the parties. Therefore, the finding of the lower appellate Court was vitiated by error of law. The Board of Revenue, without taking into consideration all these facts, illegally dismissed the Second Appeal.

4. The learned counsel for the respondents contended that the admission made by the petitioners' father regarding possession of the respondent is admissible on the question of possession. Further, it has been contended that the judgment of the Additional Commissioner was a judgment of affirmance. He has considered the material evidence and it was not necessary for him to mention each and every piece of evidence in his judgment. The finding of fact recorded by the Additional Commissioner was binding in the Second Appeal. Therefore, the order of the Board of Revenue is correct and needs no interference in writ jurisdiction.

5. The 'correction of paper case is [mainly decided on the basis of possession. The order passed in correction of paper case is certainly not binding in the regular suit. But any admission made in the correction of paper case is admissible on the question of possession as held in Algoo v. Dy. Director of Consolidation, (1979. All WC 299) (DB) and in Rajpati v. Dy. Director of Consolidation (1979 All WC 302): (1979 All LJ 640) wherein it has been held as follows:--

'If in a particular case an admission or consent is in relation to possession at the time of the compromise, that admission or consent is admissible even in the title proceeding. When a regular Court is called upon to decide or adjudicate the title of the parties, it can take into consideration the fact that in mutation proceedings one party had admitted or consented in respect of their possession.'

6. The learned counsel for the petitioners has also challenged the order passed in correction of paper case and the admission of the petitioners' father on the ground of fraud and he contended that the Revenue Courts have taken into consideration the finding recorded by the Civil Court, which was not affirmed by the High Court in Second Appeal. From the perusal of the judgment of the Additional Commissioner, it appears that he has examined this question independent of the finding of the Civil Court and the lower appellate Court has observed:--

'the . plaintiff should have led positive evidence in this case to prove the fact. The thumb impression both on the receipt and the written statement are admitted. The plaintiff should have proved that they were obtained on blank papers and that the documents were written without knowledge of their father. But there is no direct evidence on the record to either effect. I am, therefore, of the opinion that the plaintiffs have failed to prove fraud on the part of the defendant.'

The finding of the Additional Commissioner has been affirmed in Second Appeal by the Board of Revenue. The trial Court has mentioned in his judgment all the oral and documentary evidence adduced on behalf of both the parties. There is no averment in the writ petition that any of the evidence adduced by the petitioners was not considered by the trial Court. The trial Court, after considering all the evidence on record, came to the conclusion that the respondent is in possession and the petitioners are not in possession at least from 1363 F. The lower appellate Court has also applied his mind to the material evidence on record. Merely because he has not mentioned some of the documents in his judgment will not make the order of the lower appellate Court erroneous in law. In Nanha v. Dy. Director of Consolidation, (AIR 1976 All 91(FB)) it has been clearly held that where an appellate or revisional Court or the tribunal, while affirming the finding does not refer to some material or some contrary evidence in its order, it cannot be said that it has been ignored from consideration so as to entitle the High Court to interfere under Article 226 of the Constitution.

7. The learned counsel for the petitioners referred to certain decisions of the High Courts of Mysore, Patna, T. C. and some other decisions which are not necessary to be discussed here in view of the Full Bench decision of this Court.

8. In view of what has been discussed above, I am of the opinion that the order of the Board of Revenue does not suffer from any error apparent on the face of the record.

9. In the result, this writ petition fails and is accordingly dismissed without any order as to costs.


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