Basanti Devi And Others vs Sunita Rani

Sharad Kumar Sharma, J

The present Second Appeal has been preferred by the defendants/appellants, being aggrieved against the judgement and order dated 24th July 2019, as rendered by the Court of Additional District Judge, Ramnagar, District Nainital in Civil Appeal No. 2 of 2019, Sunita Rani v. Basanti Devi and others, whereby the Trial Court's judgement and decree dated 22nd February 2019, as rendered by the Court of Civil Judge (Junior Division), Ramnagar, District Nainital, dismissing Civil Suit No. 15 of 2013, Smt. Sunita Rani v. Smt. Basanti Devi and others, dismissing the suit of plaintiff/respondent was set aside by the appellate Court, and the Suit of the plaintiff /respondent for the following relief was decreed for decree of permanent injunction and a decree of eviction by way of mandatory injunction of defendants/appellants was decreed.

"अपीलार्थी द्वारा प्रस्तुत अपील सं0 02 सन 2019 श्रीमती सुनीता रानी बनाम श्रीमती बसन्ती देवी आदि स्वीकार की जाती है। विद्वान अवर न्यायालय द्वारा दीवानी वाद सं0 15 सन 2013 श्रीमती सुनीता रानी बनाम श्रीमती बसन्ती देवी आदि में पारित/ आदेश दिनांक-22-02-2019 अपास्त किया जाता है। वादी का दीवानी वाद सं0 सन 2013 श्रीमती सुनीता रानी बनाम श्रीमती बसन्ती देवी आदि वास्ते स्थाई निषेधाज्ञा एवं बेदखली विवादित आराजी हेतु डिक्री किया जाता है। प्रतिवादीगण/प्रत्यार्थीगण को आदेशित किया जाता है कि वह विवादित आराजी पर वादी के कब्जे व दखल में किसी प्रकार हस्तक्षेप न करें तथा वाद पत्र के साथ सलंग्न नक्शे में दर्शित 'एच' स्थान पर बने मकान को खाली कर उसका कब्जा इस निर्णय की तिथि से वादिनी को तीस दिन के अन्दर सौंप दें।"

The defendants/appellants before this Court are the defendants in a suit for the grant of a decree of permanent injunction, as instituted by the plaintiff (respondent herein) on 22nd March 2013, in relation to the property, which has been more particularly, described in para 1 and 2 of the plaint, which is quoted hereunder:-

यह कि, वादनी ने आराजी खसरा नं 363/7 रकबा 0.193 है., 365/2 रकबा 0.010है., कुल रकबा 0.203है. स्थित ग्राम-भवानीपुर खुल्बे, तहसील-रामनगर जरिये बैनामा रजिस्ट्रीशुदा प्रतिवादनी नं 1 से दिनांक 21.03.2003 को उसकी पूर्ण कीमत अदा करके खरीदी और कब्जा प्राप्त किया। बैनामें के आधार पर वादनी का नाम दर्ज अभिलेख हुआ।

यह कि, उसके बाद प्रतिवादनी नं 1 ने अपनी अन्य भूमि खसरा नं. 304/1 रकबा 0.016है, 365/3 रकबा 0.022है, 368/2 रकबा0.032है. कुल रकबा 0.080है. स्थित ग्राम-भवानीपुर खुल्बे, तह-रामनगर जरिये बैनामा रजिस्ट्रीशुदा दिनांक 23.01.2004 को वादनी का बेची और कब्जा दिया। इस बैनामे के आधार पर भी वादनी का नाम दर्ज अभिलेख हो गया और प्रतिवादनी नं. 1 या उसके वारिसान से कोई सम्बन्ध नही रहा।"

The suit instituted by plaintiff/respondent thus registered and numbered as Suit number 15 of 2013, Smt. Sunita Rani v. Smt. Basanti Devi and others. As far as the defendants/appellants are concerned, it is not in dispute and that it is at the behest of the defendants/appellants themselves, which is admitted that the plaintiff/respondent was the purchaser of the property, more particularly, described as khasra number 363/7, having an area of 0.193 hectares, khasra number 365/2, having an area of 0.010 hectares, total land measuring 0.203 hectares, situated at village Bhawanipur Khulbe, Tehsil Ramnagar, District Nainital which has been sold to the plaintiff/respondent by defendant/appellant by registered sale deed dated 21st March 2003 (herein to be referred as "disputed land").

The said property in dispute was a subject matter of conveyance made by the defendants/appellants themselves was in favour of the plaintiff/respondent, which is a fact, which otherwise stands established and proved by the findings recorded by the learned trial Court on issue Number 1, as framed and decided by the learned trial Court. The second part of the disputed property, which too was conveyed to the plaintiff/respondent by the defendants/appellants was a property, which is lying in Khasra Number 304/1, having an area of 0.016 hectares, khasra number 365/3, having an area of 0.022 hectares, khasra number 365/2, having an area of 0.010 hectares, khasra number 368/2, having an area of 0.032 hectares, that is, in all, having an area of 0.080 hectares, situated in the same village, which too has been conveyed by the defendants/appellants to the plaintiff/respondent by a registered sale deed dated 23rd January 2004. Being the conveyance of title by virtue of the two registered sale deeds dated 21st March 2003 and 23rd January 2004, it would be deemed to be true and valid until and unless proved otherwise on a challenge given to the deeds before the competent Court, and is ultimately set aside.

The case of the plaintiff/respondent in the suit for grant of decree of permanent injunction as instituted in 2013, referred above, it was to the effect that in pursuance to the aforesaid two sale deeds, which admittedly stood executed by the defendants/appellants themselves in favour of the plaintiff/respondent, and the plaintiff/respondent has been placed in possession over the property and is also recorded in the revenue records in relation to the aforesaid disputed properties. The plaintiff/respondent's case is that, when she felt herself aggrieved by an action, taken by the defendants/appellants on 18th March 2013 of forceful interference over the property in question, they had instituted a suit on 22nd March 2013, for the grant of a decree in the nature, as quoted hereunder:-

"10. यह कि वादिनी माननीय न्यायालय से निम्न अनुतोष की प्रार्थिनी है-

अ) यह कि वादनी का वाद निषेधाज्ञा स्थाई खिलाफ प्रतिवादीगण डिक्री फरमाया जावे और प्रतिवादीगण को हर हमेशा के लिए रोक दिया जावे कि वह स्वयं अथवा नौकरों व कारकुनान द्वारा वादनी की उपरोक्त भूमि मुंदर्जा पैरा 1 व 2 पर किसी प्रकार कब्जा न करें न उसमें बने वादनी के मकान भ् को नुकसान पहुंचाये, न वादनी के कब्जे दखल में किसी प्रकार मजाहमत व मदाखलत न करें।

ब) यह कि, वाद का खर्चा वादनी को प्रतिवादीगण से दिलाया जाये।

स) यह कि, अन्य अनुतोष जो लाभकारी वादनी है खिलाफ प्रतिवादीगण से प्रदान कर दिये जाये।"

The suit in question was contested by the defendants-appellants, by filing their written statement as paper No. 9(ka1), denying the fact pertaining to a bonafide execution of two sale deeds, as referred above and also that they have contested the proceedings from the viewpoint as to what would be the implications which would be flowing as a consequence of the village being under consolidation. But, however, this plea regarding the effect of consolidation which has been raised by the defendants/appellants in the Second Appeal with regards to the implications of Section 49 of the Consolidation of Holding Act, over the deeds of conveyance, which has been admittedly executed by the defendants/appellants in favour of the plaintiff/respondent this plea of defendants/appellants was not a bone of contention which was raised before the learned trial Court in the written statement or even before the first appellate Court.

Before venturing further with regards to the rival contentions as raised by the parties to the proceedings before the Court below, it would be relevant to point out that at this stage itself that when the proceedings of the suit was pending consideration before the Court of Civil Judge (Junior Division), Ramnagar, District Nainital, there had been a simultaneous institution of the proceedings, at the behest of the plaintiff/respondent by filing the proceedings by invoking the provisions contained under Section 6 of the Specific Relief Act. In the proceedings, as raised by the plaintiff/respondent under Section 6 of the Specific Relief Act, the same was registered as Civil Case Number 23 of 2014, Smt. Sunita Rani v. Smt. Basanti Devi, and on the initiation of the proceedings on 17th May 2014, the matter was taken up for consideration before the Court of Civil Judge (Junior Division), Ramnagar, District Nainital and on 21st August 2017, the Court of Civil Judge (Junior Division), Ranagar, after considering the rival contentions, particularly, pertaining to the tenability of the proceedings, the learned trial Court has held that the initiation of the proceedings by way of a Civil Case Number 23 of 2014, Smt. Sunita Rani v. Smt. Basanti Devi, under Section 6 of the Specific Relief Act, would be barred in view of the provisions contained under Section 331 to be read with Section 209 of the U.P.Z.A. & L.R. Act of 1950, which read as under:-

"331. Cognizance of soils, etc. under this Act - (1) Except as provided by or under this Act no court other than a court mentioned in Column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908 (V of 1908), take cognizance of any suit, application, or proceedings mentioned in Column 3 thereof [,] [or of a suit, application or proceedings based on a cause of action in respect of which any relief could be obtained by means of any such suit or application :]

[Provided that where a declaration has been made under Section 143 in respect or any holding or part thereof, the provisions of Schedule II insofar as they relate to suits, applications or proceedings under Chapter VIII shall not apply to such holding or part thereof.]

[Explanation. - If the cause of action is one in respect of which relief may be granted by the revenue court, it is immaterial that the relief asked for from the civil court may not be identical to that which the revenue court would have granted.]

[(1-A) Notwithstanding anything in sub-section (i), an objection, that a court mentioned in Column 4 of Schedule II, or, as the case may be, a civil court, which had no jurisdiction with respect to the suit, application or, proceeding, exercised jurisdiction with respect thereto shall not be entertained by any appellate or revisional court unless the objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.]

(2) Except as hereinafter provided no appeal shall lie from an order or [decree] passed under any of the proceedings mentioned in Column 3 of the Schedule aforesaid:

[(3) An appeal shall lie from any decree or from an order passed under Section 47 or an order of the nature mentioned in Section 104 of the Code of Civil Procedure, 1908 (V of 1908) or in Order 43, Rule 1 of the First Schedule to that Code passed by a court mentioned in Column No. 4 of Schedule II to this Act in proceedings mentioned in Column 3 thereof to the court or authority mentioned in Column No. 5 thereof.

(4) A second appeal shall lie on any of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 (V of 1908) from the final order or decree, passed in an appeal under sub-section (3), to the authority, if any, mentioned against it in Column 6 of the Schedule aforesaid.]

Ejectment of persons occupying land without title. - [(1)] A person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force; and-

(a) where the land forms part of the holding of a bhumidhar, [Omitted by U.P. Act No. 8 of 1977 (w.e.f. 28.01.1977)] or asami without the consent of such bhumidhar, [Omitted by U.P. Act No.8 of 1977 (w.e.f. 28.01.1977] or asami;

(b) where the land does not form part of the holding of a bhumidhar, [Omitted by U.P. Act No. 8 of 1977 (w.e.f.28.01.1977] or asami without consent of the [Gaon Sabha], shall be liable to ejectment on the suit in cases referred to in Clause (a) above of the bhumidhar, [Omitted by U.P. Act No. 8 of 1977 (w.e.f. 28.01.1977] or asami concerned and in cases referred to in Clause (b) above of the [Gaon Sabha] [Subs. By UP Act No. 33 of 1961] and shall also be liable to pay damages.

[(2) To every suit relating to a land referred to in Clause (a) of sub-section (1) the State Government shall be impleaded as a necessary party.]"

Consequently, the Court of Civil Judge (Junior Division), by an order dated 21st August 2017, has returned the proceedings of Civil Case No. 23 of 2014, Smt. Sunita v. Smt. Basanti, preferred under Section 6 of the Specific Relief Act by the plaintiff/respondent for initiation of an appropriate proceedings before the competent Court. But the fact remains that the Suit, which was instituted by plaintiff/respondent i.e. the Original Suit No. 15 of 2013, Smt. Sunita Rani v. Smt. Basanti Devi and others, for the grant of decree of permanent injunction at the behest of the plaintiff/respondent, it was put to contest and the learned trial Court, after framing the appropriate issues, as per the pleadings, particularly, the issues with which we would be concerned, would be issue Nos. 1, 2 and 5, though, there were number of other issues framed by the learned trial Court for determining the controversy in relation to the relief claimed in the suit. The issues thus framed by the learned trial Court is quoted hereunder:-

"1. क्या पंजीकृत विक्रय-विलेख दिनांकित 21.03.2003 तथा 23.01.2004 के आधार पर वादिनी विवादित सम्पत्ति की स्वामिनी है?

क्या वादिनी विवादित सम्पत्ति पर अध्यासित चली आ रही है?

क्या प्रतिवादी संख्या-01 बसन्ती देवी द्वारा वादिनी के पति श्री सतीश चन्द्र से उधार ली गयी धनराशि के सम्बन्ध में विवादित सम्पत्ति के मूल दस्तावेज वादिनी के पति को बंधक रख दिए गए थे?

क्या वादिनी एवं वादिनी के पति द्वारा बिना प्रतिफल, बिना सहमति छलपूर्वक प्रतिवादी संख्या 01 बसन्ती देवी से उक्त पंजीकृत विक्रय-विलेख अपने पक्ष में निष्पादित करवा लिए हैं?

क्या प्र्रतिवादीगण विवादित सम्पत्ति पर अध्यासित चले आ रहे हैं?

क्या वादिनी द्वारा वाद का उचित मूल्यांकन किया गया हैं?

क्या वादिनी द्वारा उचित न्याय शुल्क अदा किया गया हैं?

क्या प्रतिवादीगण द्वारा वाद का उचित मूल्यांकन किया गया हैं?

क्या प्रतिवादीगण द्वारा उचित न्याय शुल्क अदा किया गया हैं?

वादिनी का अनुतोष यदि कोई हो तो प्राप्त करने का अधिकारी हैं?

वादिनी क्या अनुतोष यदि कोई हो तो प्राप्त करने का अधिकारी हैं?

Later on, when the suit proceeded further, the learned trial Court vide its order dated 21st July 2017, has framed yet other issues i.e. issue Nos. 12 and 13, with regards to as to whether the suit for the grant of a decree of permanent injunction in relation to the property in question, whether it would be barred by the provisions contained under Section 331 of the U.P.Z.A & L.R. Act. The issues thus modulated, were to the following effect:-

क्या वादी का वाद धारा-331 यू.पी.जेड.ए. व एल.आर.ए से बाधित हैं?

क्या वादी द्वारा वाद का मूल्यांकन उचित किया गया हैं?

The plaintiff/respondent before the learned trial Court has, apart from recording her oral testimony as PW1, has also placed on record the documentary evidences i.e. affidavit in examination-in-chief i.e. paper No. 94(ka2), and also the affidavit of PW2, Satish Chandra and PW3 Rohit Kumar in order to substantiate that a valuable right has been created in favour of the plaintiff/respondent on the basis of sale deeds, which was executed by the defendants/appellants herein.

On the contrary, the defendants/appellants before the trial Court has proceeded to adduce the oral statement of DW1, and apart from it, she has also produced paper number 116 (ka) and the statement of DW1, her affidavit in examination in chief as paper number 116 (ka/3), apart from it, she has recorded the statement of DW2 Basanti Devi as DW3 and one Mr. Gopal Singh, and apart from it, she also produced other documentary evidences including the contention with regards to the valid devolvement of right on the basis of two sale deeds which was admittedly executed by the defendants/appellants in favour of the plaintiff/respondent. However, still she had doubted the propriety of the sale deed, executed by the defendant/appellant herself in favour of the plaintiff/respondent.

It will not be out of place to mention that when the proceeding of suit itself was going on, the plaintiff/respondent, in support of her contention and in order to show a valid title having being vested in her, she has placed on record paper number 8(ga/1) to 8(ga/2) i.e. CH23, which is the khatauni, muntakhid issued by the consolidation authorities, when the proceedings of consolidation itself was going on before the Consolidation Authorities over the village in question.

The plaintiff/respondent in support of her case has also produced the paper number 25(ga/1) to 25(ga/2) i.e. chakbandi khasras in order to show that her name stand recorded in the revenue records even on the culmination of the consolidation proceedings in the village on the basis of the two sale deeds i.e. dated 23rd January 2004 and 21st March 2003, and hence a valid right and title has been vested with the plaintiff/respondent. What is important to be remarked here at this stage is that, if at all the defendants/appellants' case as of now, which they have contended now at this stage before the second appellate Court with regards to the bar being created in the initiation of the proceedings of the civil suit at the behest of the plaintiff/respondent, as a consequence of the village being under consolidation is a fact, which was never pleaded, proved or sought a question to be formulated as a question of determination by way of an issue before the learned trial Court nor it shows that the defendants/appellants when she had slightest notion with regards to the effect of consolidation on the civil suit, having any effect on a suit for injunction she has ever at the stage of suit sought to invoke the provisions contained under Order 14 Rule 5 for getting an appropriate issue formulated for determination of the implications of the village being under consolidation and its resultant effect on the tenability of the proceedings of the suit.

This enforcement of a particular issue touching the issue of maintainability of suit, also becomes necessary for determination because the plaintiff/respondent herself in support of her contention once when she has placed reliance on CH23 i.e. khatauni muntakhid, which has been placed on record to be read during the suit as evidence and also the jot chakbandi khasras, by placing those documents on record, at least the information was conveyed to the defendants/appellants by the pleadings and evidence, that the plaintiff/respondent was deriving the rights on the basis of the document of title prepared by the consolidation Courts during the consolidation proceedings. But, still the said issue was never sought as an issue which was pressed or sought to be adjudicated by the defendants/appellants before the Court below as a preliminary issue under Order 14 of C.P.C. and accordingly if we scrutinized the judgement dated 24th July 2019, and the Judgement dated 21st August 2017, there is no such issue framed in that regard or was ever sought to be framed at the behest of defendant/appellant.

Another important aspect, which is to be taken into consideration is that as far as the issue No. 12, which was framed on 21st July 2017, it came up for determination before the trial Court and the learned trial Court, by an order dated 21st August 2017, has held out that the suit for the relief claimed therein would not be barred by the provisions contained under Section 331 of the U.P.Z.A. & L.R. Act, and consequently, it has proceeded to decide the suit on its own merit. This finding and reasoning on issue No. 12 as recorded by the learned trial Court has attained finality as no civil revision was filed by the defendant/appellant against the said decision, deciding an issue of jurisdiction of the proceedings.

This Court, on scrutinizing the rival evidences as produced by the parties and in particular, the finding which has been recorded on issue No. 1, and after hearing the respective counsels at length, it was to the effect that the learned trial Court has held that as far as the deeds of conveyance, as executed by the defendants/appellants themselves in favour of the plaintiff/respondent on 21st March 2003 and 23rd January 2004, and in particular, in relation to the khasras, which has been sold, which has been placed on record, the fact of a valid conveyance which was made in favour of the plaintiff/respondent it was a fact, which was determined and settled by the learned trial Court in favour of the plaintiff/respondent and as against the defendants/appellants. The only issue, which troubled the trial Court in its determination, resulting to dismissing the Suit was from the prospect that the finding of determination as recorded on issue Nos. 2 and 5, pertaining to possession, the learned trial Court has held that as far as the establishment of fact of being in possession of the property in question, was not being established by the plaintiff/respondent and consequently, based on the said finding on the said issues, the Court has held that the plaintiff/respondent since she has failed to prove to be in an exclusive possession on the basis of evidence on record has dismissed the suit by the judgement of the trial Court dated 22nd February, 2019. However, the fining on the issue of title of the plaintiff/respondent was decided in favour of plaintiff/respondent, holding her to be bonafide and true title holder of the property in dispute.

On scrutiny of the finding, which has been recorded by the learned trial Court pertaining to the issue No. 2 with regards to the establishment of the fact of possession in relation to the disputed property, which was more particularly, described in the plaint as figure 'a', 'b', 'c' and 'd'. The Court has considered the aspect confined to the fact that as far as the naksha nazri paper number 41(ka/5) is concerned, on which the reliance was placed by the defendants/appellants, it was exclusively confined to in relation to the property, shown by figure 'h' in the map, which was in relation to the construction raised by the plaintiff/respondent over which the possession of the property was taken over by the defendants/appellants. Hence, on the said premise only, the suit was dismissed. But the learned trial Court has not considered the legal effect of chakbandi khasra (paper No. 8ga/4 and Paper No. 8ga/2) which is allegedly recognized document to show possession over a land, which has been recorded during the consolidation proceedings after the culmination of proceedings of partal held during it.

Being aggrieved against the said judgement and order dated 22nd February 2019, as rendered in Original Suit No. 15 of 2013, Smt. Sunita Rani v. Smt. Basanti Devi and others, the plaintiff/respondent herein had filed a Civil Appeal being Civil Appeal No. 2 of 2019, Smt. Sunita Rani v. Basanti Devi and others, and the appellate Court, by its judgement dated 24th July 2019, while reversing the judgement and the finding recorded by the learned trial Court vide its judgement dated 22nd February 2019, has reversed the finding, pertaining to the possession, as it has been recorded by the learned trial Court while deciding issue No. 2 by the learned trial Court and ultimately, the appellate Court after framing the point of determination as contemplated under Order 41 Rule 31 of the Code of Civil Procedure to the following effect:-

''8. उभय पक्ष के उपरोक्त तर्कों को सूने जाने के उपरांत अपील के निस्तारण हेतु निम्नलिखित अवधार्य बिन्दु विरचित किया जाता है।

क्या अपीलार्थी/वादिनी विवादित सम्पत्ति जो कि वाद पत्र के साथ संलग्न नक्शे में शब्द ए.बी.सी.डी से दर्शित की गई है, में 'एच' स्थान वाले भाग को छोड़कर सम्पूर्ण सम्पत्ति पर काबिज है तथा वाद पत्र के साथ संलग्न नक्शेमें दर्शित एच स्थान पर दौरान वाद प्रतिवादीगण द्वारा कब्जा कर लिया गया है, जिस कारण अपीलार्थी/वादिनी स्थाई निषेधाज्ञा व प्रतिवादीगण के विरूद्व बेदखली का अनुतोष प्राप्त करने की अधिकारी है?''

The learned Appellate Court has held out that as far as the property in dispute, which was the subject matter of the suit, the revenue records of CH23 and muntakhid khatauni and khasra as prepared under Section Rule 45 and 46 of Consolidation of Holdings Rules, which is a special statute and which was placed on record by the plaintiff/respondent, had rather gone to substantiate the case of the plaintiff/respondent that as per the admitted deed of conveyance, which has been established and proved before the Courts below, the effective possession was proved to be taken by the plaintiff/respondent and consequently, the learned appellate Court, by the judgement impugned in the present Second Appeal has reversed the judgement of the learned trial Court dated 22nd February 2019 and allowed the Appeal by the impugned judgement dated 24th July 2019, against which the present defendants/appellants have preferred the present Second Appeal.

The prime and substantial question of law, on which the learned counsel for the defendants/appellants has placed reliance is with regards to the implications and to the effect as to whether the suit which was instituted by the plaintiff/ respondent would be barred by the provisions contained under Section 49 of the U.P. Consolidation of Holdings Act, 1953, which is quoted hereunder:-

"49. Bar to civil Courts jurisdiction. - Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of right of tenure-holder in respect of land lying in an area, for which a [notification] has been issued [under sub-section (2) of Section 4] or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under this Act, shall be done in accordance with the provisions of this Act and no Civil or Revenue Court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act.

[Provided that nothing in this section shall preclude the Assistant Collector from initiating proceedings under Section 122-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 in respect of any land, possession over which has been delivered or deemed to be delivered to a Gaon Sabha under or in accordance with the provisions of this Act.]"

An another substantial question of law, which was formulated for consideration by defendant/appellant was with regards to the impact of the provisions contained under Section 58 (1)(c) of the Registration Act, vis-a-vis two sales deeds, which were executed in favour of the plaintiff/respondent and its impact with regards to the endorsements made in the deeds which were a registered document and lastly the defendants/appellants has made a reference to the provisions contained under Section 25 of the Indian Contract Act, 1872, that as to whether merely on the basis of an oral agreement for sale, what rights would be flowing and whether such a document can be treated as to be a document which vests a valid right in favour of a person, to whom the deeds have been executed.

After having heard the learned counsel for the parties on various issues at length, and particularly, the argument which has been ultimately confined at the behest of the counsel for the defendants/appellants it is with regards to the effect of Section 49 of the U.P. Consolidation of Holdings Act, 1953, on the proceedings subsequently initiated for the suit for injunction by the plaintiff/respondent. This Court is constrained to observe that in order to substantiate the argument raised by the learned counsel for the defendants/appellants, pertaining to the implications of Section 49 of the U.P. Consolidation of Holdings Act, 1953, is concerned, that would have had a bearing only if the material was placed by the defendants/ appellants before the Court below for its judicial scrutiny, who wanted to take shelter to the said argument after getting an issue formulated, an issue on that regard and enabling the adversary to the proceedings to substantiate his case with regards to the bar of Section 49 of the U.P. Consolidation of Holdings Act, 1953, and since it was not the case developed, pleaded or pressed by defendant/appellant before Courts below, or which was rather developed or sought to be pressed into before the trial Court by getting a specific issue framed by invoking the provisions contained Order 14 Rule 5 of CPC, the bar at this stage which is being sought to be derived by Section 49 of the U.P. Consolidation of Holdings Act, 1953, and too at the second appellate stage, cannot be permitted to be agitated, more particularly, when the defendants/appellants have not invoked the provisions of Order 14 Rule 5 before the trial Court itself, she cannot be permitted to take the liberty to raise it for the first time before the appellate Court.

This contention with regards to the bar of raising an issue of Section 49 of the U.P. Consolidation of Holdings Act, 1953 for the first time before the Second Appellate Court will also be of a consideration in view of the fact that the effect of the village being under consolidation, the effect of the deed executed in favour of the plaintiff/respondent on the basis of which she stands recorded in the revenue records on the culmination of the proceedings under Section 12, it would be having a far reaching effect, because on the basis of proceedings under Section 12 of Consolidation of Holdings Act, based on the sale deeds dated 21st March 2003 and 23rd January 2004, when the plaintiff/respondent whether she has been rightly or wrongly recorded in the revenue records, at that stage itself, the defendants/appellants, in view of the provisions contained under sub Section (2) of Section 12 of the Act, which makes the provisions of Appeal under Section 11 of the Act, as applicable, it ought to have questioned the veracity of the recording of the name of the plaintiff/respondent by preferring of a statutory appeal under Section 11 of the U.P. Consolidation of Holdings Act, which is a special Act. Once she has not done so, in that eventuality, the recording in the entry of the name of the plaintiff/respondent in the revenue records would amount to create a bar in challenging the title of plaintiff/respondent as against the defendants/appellants in view of the provisions contained under Section 44 of the U.P. Land Revenue Act, 1901, which contemplates that until and unless an entry made in the revenue records on culmination of judicial proceedings, determining the prima facie title of a person concerned, and until and unless the said entries are put to challenge or it is set aside by the competent Court, the entry made in the muntakhib khatauni or chakbandi khasra during the consolidation proceedings in favour of the plaintiff/ respondent based on the two sale deeds referred above, executed by the defendants/appellants, it would be treated as to have conferred a valid right in favour of the plaintiff/respondent in view of the provisions contained under Section 44, which is quoted hereunder:-

"[44. Presumption as to entries in the annual register. - All entries in the annual register shall, until contrary is proved, be presumed to be true]"

Hence, it is no more open for the defendants/appellants to contend that no valid title was vested with the plaintiff/respondent. Apart from it, the finding on issue No. 2, which has been recorded by the Court below with regards to the possession over the property in question can also be treated as to be perverse, because the Court have not specifically recorded finding with regards to the fact of entries of the CH23 and the entries made in the muntakhib khatauni and chakbandi khasra prepared during the consolidation proceedings.

In such an eventuality, the judgement impugned dated 24.07.2019 in the present Second Appeal, reversing the finding of the learned trial Court judgement dated 22.02.2019 rendered in Suit No.15 of 2013, Sunita Rani Vs. Smt. Basanti Devi, and allowing the Appeal of the plaintiff/respondent and as a consequence thereto, decreeing the suit for permanent injunction in favour of the plaintiff/respondent, do not suffer from any apparent error on the face of it, which could call for interference by this Court in the exercise of its jurisdiction under Section 100 of the Code of Civil Procedure.

Consequently, there is no such substantial question of law involved to be answered by this Court, which has been pressed by the defendants/appellants. Consequently, this Court holds that the Second Appeal lacks merit and the same is accordingly dismissed.