ivil Appeal No 3154 of 1982
From the Judgment and Order dated 2891981 of the Allahabad High Court in SA No 1874 of 1970
Satish Chandra SN Singh TN Singh HL Srivastava and Sudama Ojha for the Appellants
UR Lalit and RD Upadhyaya for the Respondents
The Judgment of the Court was delivered by FATHIMA BEEVI J
This appeal is directed against the judgment dated 28 9 1981 of the High Court of Allahabad in Second Appeal No 1874 of 1970
167 The plaintiff respondent filed the suit alleging inter alia that before enforcement of the UP Zamindari Abolition and Land Reforms Act 1950 hereinafter referred to as Zamindari Abolition Act defendants Nos 3 to 25 were the tenants in chief of the plots in suit and his father Munni Lal was their sub tenant that Munni Lal died in 1951 leav ing behind four sons including the plaintiff respondent that remaining three brothers of the plaintiff had separated and consequently the plaintiff became sole tenant that Munni Lal was recorded occupant in Khasra 1356 Fasli and in cultivatory possession in Khasra 1359 Fasli and consequen tially he acquired adhivasi rights and then sirdari rights the rights of defendants 3 to 25 extinguished under section 240 A of the Zamindari Abolition Act that in 1968 however defendants Nos 1 and 2 obtained fictitious sale deed from defendants Nos 3 to 25 in respect of the plots in suit
They had started interfering with the plaintiff s possession and hence the plaintiff respondent filed the suit for permanent injunction
Defendants Nos 1 to 3 5 to 7 13 and 14 contested the suit
They denied the plaintiff s claim and disputed that the plaintiff s father Munni Lal was the sub tenant or that he acquired adhivasi rights or sirdari rights
It was further pleaded that the plaintiff or his father was never in possession of the plots in suit
The suit for permanent injunction was dismissed
Against the judgment of the trial court the plaintiff respondent preferred Appeal No 321 of 1969 which was dis missed by the first appellate court
The Second Appeal No 1874 of 1970 filed before the High Court of Allahabad against the judgment of the first appellate court was allowed on 28 9 1981
The respondent based his title on three grounds namely i that his father Munni Lal was recorded occupant in Khasra 1356 Fasli be ginning from 171948 and ending with 3061949 and became adhivas under section 20bi of the Zamindari Abolition Act 2 that his father Munni Lal was in cultivatory possession of the disputed land it Khasra 1359 Fasli beginning from 171951 and ending with 3061952 and consequently he became adhivasi under section 3 of the UP Land Reforms Supplementary Act UP Act No 31 of 1952and 3 that his father Munni Lal was sub tenant over the disputed land and there fore he became an adhivasi and consequently the sirdar under the provisions of the zamindari Abolition Act
The trial court and the first appellate court recorded finding of 168 facts to the effect that the plaintiff s father Munni Lal was not in cultivatory possession of 1359 Fasli and there fore he could not get adhivasi right under section 3 of the UP Land Reforms Supplementary Act 1952
Both the courts further observed that the plaintiff s father was not a recorded occupant within the meaning of section 20bi of the Zamindari Abolition Act as the entry of his name in column 6 of the Khasra 1356 Fasli was suspicious not being supported by Khatauni entry
It was further held that as his father died in 1951 before the date of vesting ie 171952 when the zamindari was abolished in UP under the provi sions of Zamindari Abolition Act the plaintiff is not entitled to the benefit of becoming adhivasi under section 20bi of the Zamindari Abolition Act
The trial court and the first appellate court also found that no contract or sub tenancy between Munni Lal and the proforma defendants was proved
The High Court held the view that the approach made by the courts below was wrong
The question that arose for decision in the suit was whether the appellant s father was a sub tenant The learned Single Judge noticed that if Munni Lal was a sub tenant his heir being the adhivasi and the appellant must therefore suc ceed
The evidence relating to the sub tenancy and conse quent possession was therefore considered in detail and the learned Judge concluded that Munni Lal was in cultivatory possession of the land in 1356 Fasli as a sub tenant
His rights as sub tenant devolved on the appellant who continued in possession as such and became adhivasi and rights of defendants 3 to 14 were extinguished under the Zamindari Abolition Act and defendants could not interfere with appel lants possession
In this view the appellant was granted a decree reversing the decision of the lower courts
The main contention advanced on behalf of the appellants before us is that the decision having been rendered by the trial court and the first appellate court on the basis of the finding of fact regarding the right claimed and the possession alleged in the absence of any substantial ques tion of law there was no jurisdiction of the High Court under section 100 CPC to disturb the finding of a concur rent nature and upset the decision
The High Court while exercising its power under section 100 CPC has no juris diction to interfere with the finding of fact recorded by the first appellate court
Reliance was placed on V Rarna chandra Ayyar  Anr
vs Ramalingam Chettiar  Anr AIR 1963 SC 302
Section 1001c refers to a substantial error or defect in the procedure
The error or defect in the proce dure to which the clause refers is not an error or defect in the appreciation of 169 evidence adduced by the parties on the merits
Even if the appreciation of evidence made is patently erroneous and the finding of fact recorded in consequence is grossly errone ous that cannot be said to introduce a substantial error or defect in the procedure
If in dealing with a question of fact the lower appellate court has placed the onus on wrong party and its finding of fact is the result substantially of this wrong approach that may be regarded as a defect in procedure
When the first appellate court discarded the evidence as inadmissible and the High Court is satisfied that the evidence was admissible that may introduce an error or defect in procedure
So also in a case where the court below ignored the weight of evidence and allowed the judg ment to be influenced by inconsequential matters the High Court would be justified in reappreciating the evidence and coming to its own independent decision as held in Madan Lal vs Gopi  The substantial issue in the present suit was whether the respondent was in possession of the disputed land
The respondent claimed possession under his father as sub tenant and thereafter as sirdar
In support of his claim respondent relied on the entries in the revenue records and the re ceipts for payment of rent
The effect of these documents had been wholly ignored by the lower courts on the assump tion that these were fabricated
The UP Zamindari Aboli tion Act came into force on July 1 1952
Section 20bi of the Act provided that every person recorded as occupant of a land in the Khasra or Khatauni of 1356 Fasli prepared under sections 28 and 33 of the UP Land Revenue Act 190 1 be called the adhivasi of the land
This Court in Amba Prasad vs Abdul Noor Khan  Ors  examined the scheme of the section and held that the title to posses sion as adhivasi depends on the entry in the Khasra of 1356 Fasli
The section eliminates enquiries into possession in accepting the record in the Khasra
The Court observed at page 808 The word occupant  is not defined in the Act
Since khasra records possession and enjoyment the word occupant  must mean a person holding the land in possession or actual enjoyment
The khasra however ma mention the proprietor the tenant the sub tenant and other person in actual pos session as the case may be
by occupant is meant the person in actual possession it clear that between a proprietor and a tenant the tenant and between a tenant and the sub tenant the latter and 170 between him and a person recorded in the remarks column as Dawedar qabiz the dawedar qabiz are the occupants   In Nath Singh  Ors
vs The Board of Revenue  Ors  in answering the contention that the cor rectness of the entry in the record of Khasra of 1356 Fasli could be gone into and where the respondents are recorded only as sub tenant and not as occupant they could not get the benefit of section 20bi of the Act this Court held as under The record of rights for the year 1356F had not been corrected afterwards
We have to go by the entry in the record of rights and no enquiry need be made as to when the respondents became sub tenants after the decision in favour of the landlord Ram Dhani Singh
The last decision of this Court also shows that as between the tenant and the sub tenant the entry in the record of rights in favour of the sub tenant makes him the occupant entitled to the adhivasi rights under section 20 of the Act
 In this case the Khasra entry for 1356 Fasli Ex 4 showed that the respondent s father Munni Lal was sub tenant
As rightly stated by the High Court it is not for the plain tiff to prove that this entry is correct
It was for the defendants to show that the entry had been introduced sur reptitiously out of ill will or hostility
In the absence of such proof the genuineness has to be presumed and the entry accepted as evidence of the sub tenancy in favour of the respondent s father
The Khasra entry of 1371 Fasli and 1372 show the respondent s name as person in possession
It is clear indication that possession of the subtenant continued with the respondent
The rent receipts of the year 1929 and subsequent years are not required to be proved by the re spondent as pointed out by the learned Judge
These furnish evidence of possession as sub tenant
We agree that the lower appellate court was not justified in ignoring these documents
The High Court was therefore well within its powers in appreciating the evidence and arriving at its own conclusion
The contention that the second appeal abated on account of non filing of substitution application after the death of defendants Nos 6 10 and 11 had been reiterated before us
These defendants were only proforma parties and the High Court was right in holding hat appeal did not abate
We may refer to The State of Punjab vs 171 Nathu Ram  where it is held that ordinari ly the considerations which weigh with the Court in deciding upon this question are whether the appeal between the appel lants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court
 The Civil Court had jurisdiction to try the suit for injunction when the question of title arose only incidentally
The objection to jurisdiction of the Civil Court to try the suit on the ground that revenue court had exclusive jurisdiction is not sustainable the suit being one for permanent injunction and the question of title arises only incidentally
We find no merit in the appeal which is accordingly dismissed
No order as to costs
GN Appeal dis missed


Summary:
One Motilal who owned Goyal Talkies entered into a partnership with respondent Ratanlal representing the joint family firm of Ms Ratanlal Damdoolal and Bros for the purpose of running the cinema business
Later the said Motilal together with his wife and children filed a civil suit for dissolution of partnership rendition of accounts etc against respondent Ratanlal as defendant No 1 the firm Ms Damdoolal and Bros as defendant No 2 and one Puranmal as defendant No 3
Motilal subsequently filed an application for correction of the description of defendant No 2 firm which was allowed
The suit was compromised
According to one of the terms of the compromise plaintiff was to pay to defendant Nos1 and 2 a sum of Rs15700 in full satisfaction of their claim subject to final accounting
The plaintiff paid this sum within the specified period and thereupon the receiver gave possession
Subsequently the Court passed a final decree dated 16111959 stating that the partnership stood dissolved and directing defendant Nos 1 and 2 to refund to the plaintiff the amount of Rs5470 which was the excess amount paid by the plaintiff to them
Defendant Nos 1 and 2 filed an appeal against the final decree which was dis missed and their second appeal in the High Court was also dismissed on 2121972
Thereafter Civil Suit No 1699 of 1980 was filed by Ratanlal respondent herein against the appellants who are the legal representatives of Motilal assailing the consent decree after taking the entire benefit thereunder
The reliefs claimed were for a declaration that the final decree dated 16111959 was a nullity and for possession of Goyal Talkies etc
The appellants resisted the suit inter alia on the ground that it was barred by res judicata and further that the suit was also barred by virtue of Rule 3A Order 23 CPC The Trial Court framed a 173 preliminary issue regarding maintainability and held the suit to be maintainable
The High Court dismissed the civil revision against that order
Before this Court it was contended on behalf of the appellant that the suit was barred by virtue of Rule 3A of Order 23 and even otherwise tile plaint averments did not disclose any cause of action in order to raise a triable issue
In reply it was contended that Rule 3A of Order CPC had no application since the decree assailed in the suit was a date much prior to insertion of Rule 3A by amend ment with effect from 121977 and that the question of examining the frame of the suit to determine its maintain ability on any other ground did not arise since the appel lant s case was based on the bar under Order 23 Rule 3A and no specific objection for rejection of the plaint under order 7 Rule 1 t CPC was taken earlier
During the course of hearing of the appeal the respond ent filed an application for amendment of the plaint
Allowing the appeal this Court HELD 1 On the admitted facts appearing from the record itself counsel for the respondent was unable to show that all or any of the averments in the plaint disclose a cause of action giving rise to a triable issue
179F Since the plaint suffers from this fatal defect the mere issuance of summons by the Trial Court does not require that the trial should proceed even when no triable issue is shown to arise
Permitting the continuance of such a suit is tantamount to licensing frivolous and vexatious litigation
This can not be done
179G H 3 It being beyond dispute that the plaint averments do not disclose a cause of action the plaint is liable to be rejected under Order 7 Rule i 1 CPC without going into the applicability of Order 23 Rule 3A CPC to the present suit
180A There is no ground to allow the application for amend ment of the plaint which apart from being highly belated is clearly an afterthought fur the obvious purpose of averting the inevitable consequence of rejection of the plaint on the ground that it does not disclose any cause of action or raise any triable issue
Moreover the proposed amendments in the plaint are to raise two grounds which are concluded 174 by the earlier adjudication ending with dismissal of Ratan lal s Second Appeal against the impugned decree
177E F