- (1.)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 court. The appellant has appealed against the impugned judgment urging various legal and factual contentions, the main contention 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').
(2.)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 respondent no.1 - the defendant is the only daughter of Ram Nath. Ram Dev, the third brother died without issue. 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 no.1 in connivance with defendant no.2, taking benefit of the appellant's mental weakness and illiteracy have recorded their name over the land in dispute, and the Consolidation Officer rejected the appellant's objection holding that it was not pressed and directed that existing entries shall continue. He prayed for quashing the order of the Consolidation Officer on the ground that fraud was played on him and he had no knowledge of the order. The trial court on the basis of the pleadings has framed 12 issues and after trial, it has decided issue nos. 1 and 12 against the appellant, holding that the appellant is not co-bhumidhar over the land in dispute and further held that the suit is barred by limitation. The trial court 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.

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 trial court 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. Although the trial court held that the appellant had cause of action to file the suit, it went on to hold that as the appellant did not press the objection filed by him in the consolidation proceedings and he entered into a compromise with the defendant, handing over his share in favour of the defendant which is not based on fraud, coercion or undue pressure and no allegation of the same has been mentioned in the suit, and no evidence either was placed on record. Hence, the trial court held that the appellant is not entitled for the relief as prayed for in the suit, and thereby dismissed the suit with costs. Importantly, even though the suit was dismissed the trial court demolished the contention of the defendants that Amar Nath, the appellant was not Vaij Nath's son. The trial court 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 copy of electoral register of 1991 and ration card in which it is recorded that he is Amar Nath s/o Vaij Nath. The trial court took into account the admission of DW-1, Shyama Chand Tiwari, the husband of defendant no.1 who has recorded his statement on oath in the court wherein he has himself stated that 'Amar Nath s/o Vaij Nath had himself withdrawn his case from the consolidation proceedings'.

(3.)The appellant appealed against the judgment and decree of the trial court by filing a civil appeal under Section 96 of the CPC in the first appellate court, through the Court of the Additional District Judge. The first appellate court 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 court, instead of examining important and reliable evidence of the witnesses has rather examined different interested persons, ignoring the records available before it which constituted complete evidence in favour of the appellant. If evidence were that Amar Nath was son of Vaij Nath then automatically the court should have given half portion of the land in dispute to the appellant along with defendant Kewla Devi. The appeal was allowed as the conclusion arrived at by the trial court were not supported by the pleadings and evidence available on record.