Rakesh Tiwari - (1.) -Heard the learned counsel for the parities and perused the records.
(2.) THIS second appeal is directed against the judgment and decree dated 30.5.1988 passed by the IIIrd Additional District Judge, Deoria in Civil Appeal No. 209 of 1983 arising out of Original Suit No. 568 of 1972 decided on 29.7.1983. The suit was decided against the appellants on 29.7.1983. Aggrieved by the impugned judgment and decree dated 29.7.1983 passed in O.S. No. 562 of 1972, the appellants filed Civil Appeal No. 209 of 1983, which was allowed cancelling the gift deed dated 10.3.1967 to this extent that the plaintiff would get 2/3rd share in the agricultural property and 5/6 share in the dwelling house. The court below has erred in law passing the decree beyond the pleadings of the parties. The following substantial questions of law arise for consideration in the present second appeal : (i) Whether the lower appellate court has erred in law in modifying the decree of the trial court in part giving 2/3 share to Smt. Champa Devi? (ii) Whether the lower appellate court has committed an error of law in giving 2/3 share in the agricultural property and 5/6 share in the dwelling house? (iii) Whether the court below has erred in law in passing the decree beyond pleading of the plaintiff? (iv) Whether there could be any variance between the pleading and proof? (v) Whether by the lower appellate court, after recording the finding that the gift deed was valid, the suit could have been dismissed? (vi) Whether the civil court had usufruct the jurisdiction of the revenue court in passing a decree for partition of shares which was not pleaded? (vii) Whether granting relief to the plaintiff with regard to agricultural land was beyond the jurisdiction of the civil court? (viii) Whether the court below once having found that the gift deed was valid, it has no jurisdiction to decide the question of share? (ix) Whether even if the question of share was to be determined, that could have been done only on the basis of shares mentioned in the gift deed? (x) Whether the claim of the plaintiff-respondent was barred with regard to the agricultural land under Section 49 of Consolidation of Holdings Act, which has been decided between the parties and it has become final? (xi) Whether the compromise entered into between the parties before the consolidation court has been completely ignored by the lower appellate court, which forms part of the record? (xii) Whether in the absence of any plea and evidence the lower appellate court could have gone into the question whether the property in dispute was ancestral or self-acquired property?
(3.) THE court below held that property in dispute was ancestral property and on this supposition, it must have come from the ancestors of the appellants, allowed the appeal and modified the judgment and decree of the court below to the extent that the share of plaintiff Champa Devi is 2/3 in the agricultural property and 5/6 share in the dwelling house. THE gift deed was cancelled and to this extent, the order of the learned trial court should be set aside. THE appellate court further held that the respondents shall get 3/4th of the costs throughout, the appeal was dismissed with the aforesaid modification. The lower appellate court recorded the following findings : "The gift deed dated 10.3.1967 was valid to the extent of 2/3rd share of Smt. Champa Devi in the agricultural land and 5/6 share in the dwelling house and was liable to be cancelled to that extent. The restrictions and conditions imposed by the gift deed dated 10.3.1967 were void and liable to be ignored. The dwelling house in dispute was ancestral property of Triveni and his daughter-in-law had 5/6 share in it and the remaining 1/6 share jointly held by the defendant-appellants." ;