Sheo Pujan Singh vs Pyare Lal

R.P. Sethi J.-Heard learned counsel for the parties.

Aggrieved by the judgment and decree passed by the High Court in second appeal the appellant-defendant has filed this appeal. It is contended that the second appellate court was not justified in holding that Section 168-A of the U.P. Zamindari Abolition and Land Reforms Act, 1950 was not applicable to the facts of this case. It is submitted that, in view of the admission made before the first appellate court, the respondent was estopped from pleading to the contrary, in the second appeal.

After perusal of the record, we find that on the basis of the pleadings of the parties, the trial court had framed the following issues:

(i) Whether the defendant executed any agreement to sell off the disputed land in favour of the plaintiff?

(ii) Whether the suit is barred by time?

(iii) Whether the suit is barred under the provisions of Section 16-C of the Specific Relief Act?

(iv) To what relief, if any, the plaintiff is entitled?

It is apparent that no issue with respect to the applicability of Section 168-A of the U.P. Zamindari Abolition and Land Reforms Act, 1950 was framed, obviously in the absence of any pleading to that effect. Despite such being the position on facts the first appellate court observed that

"this is the admitted case of the parties that neither the plaintiff is the tenure-holder of any agricultural land contiguous to the fragment of agricultural chak in the consolidated area of the defendant nor has the whole chak been transferred by virtue of the said agreement to the plaintiff".

The respondents being aggrieved by the aforesaid observations of the first appellate court preferred the second appeal before the High Court.

While disposing of the second appeal, the High Court recorded that the appellate court had committed an error of law in applying the provisions of Section 168-A of the U.P. Zamindari Abolition and Land Reforms Act, 1950 when no such plea was raised in the written statement, no issue framed to that effect and no arguments raised by the defendant to that effect.

Learned counsel appearing for the appellant has vehemently argued that as the applicability of Section 168-A of the said Act is a question of law, there was no necessity of pleading or framing of any issue in that regard. The arguments though attractive on the face of it, when analysed have no substance.

The question for determination is whether the land, the subject-matter of the sale, was a fragment of agricultural chak or the transfer was in favour of the tenure-holder of a plot contiguous to the fragment or whether the transfer was not in favour of any such tenure-holder. Section 168-A of the Act reads thus:

"168-A. Notwithstanding the provisions of any law for the time being in force, no person shall transfer whether by sale, gift or exchange any fragment situate in a consolidated area except where the transfer is in favour of a tenure-holder who has a plot contiguous to the fragment or where the transfer is not in favour of any such tenure-holder the whole or so much of the plot in which the person has bhumidhari rights, which pertains to the fragment is thereby transferred."

Without there being a basis to admit the facts the aforesaid section could not be applied while deciding the first appeal filed by the respondent. The High Court was, therefore, justified in concluding that in the absence of pleadings or framing of an issue or argument, the first appellate court should not have dismissed the suit filed by the respondent on the ground of applicability of Section 168-A of the said Act.

Mr M.N. Rao, the learned Senior Counsel also contended that as the High Court, while disposing of the second appeal had not framed a substantial question of law within the meaning of Section 100 of the Code of Civil Procedure the impugned judgment was not sustainable. We do not find any substance in this submission as, admittedly, no such plea has been raised in the grounds of appeal filed in this Court. The question as to whether the provisions of Section 168-A of the U.P. Zamindari Abolition and Land Reforms Act were attracted in the case or not, was a substantial question of law between the parties which was required to be adjudicated upon by the High Court. The High Court was justified in setting aside the conclusions arrived at by the first appellate court, admittedly, in the absence of pleadings, issues and arguments with respect to the applicability of the aforesaid section to the facts and circumstances of the case.

We do not find any substance in this appeal which is, accordingly, dismissed but without any order as to costs.