JAG SINGHversusSTATE OF U.P. AND 5 OTHERS

            HIGH COURT OF JUDICATURE AT ALLAHABAD
                      WRIT - B No. - 4095 of 2026

Jag Singh
                                                           …..Petitioner(s)

                                Versus

State of U.P. and 5 others
                                                         …..Respondent(s)


Counsel for Petitioner(s)          : Anshu Chaudhary, Sunil Verma
Counsel for Respondent(s)          : C.S.C., Nitin Srivastava, Sunil
                                     Kumar Singh


Court No. - 51

             HON'BLE ARUN KUMAR, J.

1.    Heard Sri Anshu Chaudhary, learned counsel for the petitioner,
learned Standing Counsel for respondent nos. 1 to 4, Sri Rohit Yadav,
Advocate holding brief for Sri Sunil Kumar Singh, learned counsel for
respondent no. 5, and Sri Madhu Ranjan Pandey, Advocate holding brief
for Sri Nitin Srivastava, learned counsel for respondent no. 6.

2.    The present petition has been filed challenging the final decree
dated 17.6.2014, the orders passed by respondent nos. 3 and 2 dated
6.2.2024 and 21.8.2026, respectively, and the order passed by respondent
no. 4 dated 13.6.2023, rejecting the recall application, arising out of
proceedings under Section 176 of the U.P. Zamindari Abolition and Land
Reforms Act, 1950.
                                    2
                                                    WRIB No. - 4095 of 2026

3.    It is contended by the learned counsel for the petitioner that the
petitioner and respondent no. 6 are co-tenure holders of the plot in
question, which was jointly purchased by them through a registered sale
deed dated 1.2.1999. The names of the vendees were mutated in the
revenue records and, on the basis of a mutual agreement, the petitioner
entered into possession of the eastern side and respondent no. 6 of the
western side.

4.    Counsel for the petitioner states that in the year 2022, it was
discovered that a partition suit had been filed under his signature, in
which a final decree had been passed on 17.6.2014, and the lots had been
prepared with the consent of the parties. The petitioner had been allotted
a share on the western side and respondent no. 6 on the eastern side. He
immediately moved a recall application before respondent no. 4 for
setting aside the preliminary and final decrees on the sole ground that the
suit itself had not been filed by the petitioner, nor had he put his
signatures on the Vakalatnama, plaint, compromise and qurras submitted
in his name.

5.    Respondent no. 4, by the order dated 13.6.2023, rejected the
application on the ground that the delay had not been satisfactorily
explained and that no interference was warranted, as the entire
proceedings had been undertaken with the consent of the parties.

6.    Counsel for the petitioner contended that the allegation of the
petitioner that the records of the plaint and the compromise did not bear
his signatures was not investigated to determine the veracity of the
signatures on the plaint and the compromise. It is submitted that
respondent nos. 3 and 2 erred in upholding the order passed by
respondent no. 4 rejecting the recall application filed by the petitioner
and upholding the preliminary and final decrees without considering the
claim of the petitioner, who had raised specific grounds disputing his
signatures on the memo of the plaint, the compromise and the qurras
allegedly submitted by the parties. It is further submitted that the
concurrent findings recorded by respondent nos. 2 and 3 that no
                                     3
                                                    WRIB No. - 4095 of 2026

interference was warranted, as the orders had been passed with the
mutual consent of the parties, are erroneous, in view of the fact that the
filing of the suit itself was denied by the petitioner. It is contended that
the rejection of the second appeal on the ground that no substantial
question of law was framed in the memo of appeal was a curable defect,
which could have been removed by affording an opportunity to cure the
defect before dismissing the second appeal on the said ground.

7.    Per contra, the counsel for respondent no. 6 has tried to defend the
orders passed by respondent nos. 2, 3 and 4 and contended that the suit
was filed by the petitioner and the record bears his original signature. He
has further tried to justify the orders passed by respondent nos. 2 and 3,
holding that the first appeal filed by the petitioner was not maintainable
against the decree passed by the trial court and that the second appellate
court was justified in dismissing the second appeal, as no substantial
question of law was framed in the memo of appeal.

8.    The counsel for respondent no. 6 has admitted the fact that the
order of respondent no. 4 rejecting the recall application does not record
any finding on the question of the veracity of the signatures of the
petitioner on the plaint, Vakalatnama and consented qurras filed by the
parties, as the application itself was rejected on the ground of being
barred by time. However, the learned counsel for respondent no. 6 has
agreed that, if the Court considers it proper, the matter may be relegated
back for the limited purpose of verification of the signatures of the
petitioner on the plaint, Vakalatnama and qurras submitted by the parties
before respondent no. 4, and for fresh consideration of the recall
application filed by the petitioner. The learned counsel for respondent
no. 6 has relied upon a judgment of the Hon'ble Supreme Court in the
case of Kishun @ Ram Kishun Vs. Behari, (2005) 6 SCC 300, where the
Court, under similar circumstances, after setting aside the orders
impugned therein, directed the Trial Court to make an enquiry regarding
the genuineness of the compromise on the record.
                                      4
                                                      WRIB No. - 4095 of 2026

9.    I have considered the submissions made by learned counsel for the
parties and perused the record.

10.   It is not in dispute that the recall application filed by the petitioner
was based on the ground that the suit for division of holding had not
been filed by the petitioner, nor had he submitted any qurra bearing his
signature before the Trial Court, respondent no. 4. The explanation for
the lack of knowledge of the decree dated 17.6.2014 given by the
petitioner was that only when he approached the Bank for the purpose of
obtaining a loan did he come to know about the existence of the decrees
passed in the suit for partition. Respondent no. 4, while rejecting the
recall application filed by the petitioner, has not recorded any finding
disbelieving the aforesaid explanation for the delay in moving the recall
application, but has rejected it on the ground of delay, holding that the
preliminary and final decrees, having been passed on the basis of the
consent of the parties, could not be recalled after eight years. The said
finding appears to be unsustainable in view of the fact that the petitioner
had denied the very filing of the suit and had also disputed his signatures
on the Vakalatnama and the joint qurra submitted by the parties in the
subsequent proceedings.

11.   In my opinion, while deciding the recall application, the basic
finding required to be recorded by respondent no. 4 was whether the
plaint of the original suit for partition bore the signature of the petitioner
as the plaintiff therein and whether the suit had, in fact, been instituted
by him. Once a finding was recorded on the said issue, the validity of the
signatures appearing on the Vakalatnama, compromise and qurra could
thereafter be considered in accordance with law. Respondent nos. 2 and
3 manifestly erred in upholding the order of respondent no. 4, dated
13.6.2023, rejecting the recall application of the petitioner on the ground
that the parties had submitted the qurras with mutual consent and
respondent no. 6 had accepted the claim of the petitioner in the original
suit. The said finding is erroneous on the ground that the filing of the suit
itself is disputed by the petitioner. Therefore, the observations regarding
the validity of the subsequent proceedings, without first determining
                                     5
                                                     WRIB No. - 4095 of 2026

whether the suit had been instituted by the petitioner, were
unsustainable.

12.   The petitioner having specifically disputed the institution of the
suit as well as his signatures on the relevant documents, the question
whether the decree could be treated as having been passed with his
consent could not have been conclusively determined without first
examining the said dispute. The principle recognised by the Hon'ble
Supreme Court in Kishun @ Ram Kishun v. Behari, (2005) 6 SCC 300,
is that where the existence of a compromise is disputed, the Court is
required to hold an appropriate enquiry into that question before treating
the resulting decree as a decree passed with the consent of the parties.

13.   The respondent no. 2, while dismissing the second appeal on the
ground that no substantial question of law had been framed in the memo
of appeal, also did not consider the grievance raised by the petitioner
regarding the very institution of the suit and the disputed signatures. If
the defect in the memo of appeal was capable of being cured, an
opportunity to cure the defect could have been afforded before dismissal
of the second appeal on that ground. The issue, however, need not be
examined further in view of the fact that the fundamental dispute
regarding the institution of the original suit and the genuineness of the
petitioner's signatures remains to be adjudicated.

14.   As the adjudication of the recall application by respondent no. 4 is
found to be vitiated in the absence of any finding recorded after enquiry
as to whether the original suit for partition had actually been filed by the
petitioner, the order dated 13.6.2023 cannot be sustained. Respondent
nos. 2 and 3 also erred in dismissing the appeals filed by the petitioner
without the real issue regarding the actual filing of the suit by the
petitioner and the genuineness of his signatures on the relevant
documents having been properly adjudicated.

15.   In view of the discussions made above and the principle laid down
in the judgment of Kishun @ Ram Kishun (supra), cited by the counsel
for respondent no. 6, it is proper that the orders impugned in the writ
                                                                      6
                                                                                     WRIB No. - 4095 of 2026

                            petition be set aside and the matter be relegated back to respondent no. 4
                            to decide the recall application filed by the petitioner afresh, after
                            making a proper enquiry as to whether Original Suit No. 106 for division
                            of holding was actually filed by the petitioner and whether the signatures
                            of the petitioner appearing on the plaint, Vakalatnama, compromise and
                            qurra submitted before the Trial Court are genuine.

                            16.         Accordingly, the writ petition is allowed.

                            17.         The orders of respondent nos. 3 and 2, dated 6.2.2024 and
                            21.8.2026, respectively, passed in the appeals filed by the petitioner
                            challenging the preliminary and final decrees, are set aside. The order of
                            the Sub-Divisional Officer, Tehsil Baraut, District Baghpat, respondent
                            no. 4, dated 13.6.2023, rejecting the recall application filed by the
                            petitioner, is also set aside. The recall application is restored to the
                            original case filed before respondent no. 4 for being decided afresh on
                            merits, after due enquiry regarding the genuineness of the signatures of
                            the petitioner appearing on the plaint, Vakalatnama, compromise and
                            qurras of the original suit.

                            18.         Respondent no. 4 shall conduct the aforesaid enquiry in
                            accordance with law and, after recording a finding as to whether
                            Original Suit No. 106 for division of holding was instituted by the
                            petitioner and whether the signatures of the petitioner appearing on the
                            plaint, Vakalatnama, compromise and qurra are genuine, decide the
                            recall application afresh on merits.

                            19.         It is expected that the entire exercise as directed above shall be
                            carried out in accordance with law by respondent no. 4 expeditiously,
                            preferably within a period of six months from the date of production of a
                            certified copy of this order.




                                                                                           (Arun Kumar,J.)

                            September 16, 2026
                            Ranjeet Sahu




Digitally signed by :-
RANJEET SAHU
High Court of Judicature at Allahabad