HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 19 Case :- SECOND APPEAL No. - 990 of 2015 Appellant :- Parma Chauhan & 3 Others Respondent :- Luxmina & 2 Others Counsel for Appellant :- Awadhesh Kumar Singh Hon'ble Pramod Kumar Srivastava, J.
1. Heard learned counsel for the appellant on the point of admission of second appeal and perused the record.
2. In OS No. 1266/2010, Parma Chauhan and others v. Luxmina and others the case of plaintiffs was that they are co-bhumidhar of disputed agricultural property and are in its possession, but defendant 2nd set (defendant no. 2 & 3) had surreptitiously got their name entered on said land in revenue records and executed the registered sale-deed dated 13-10-2007 in favour of defendant 1st set (defendant no. 1, Luxmina). Therefore, plaintiffs had filed suit for declaring them owner and bhumidhar of disputed agricultural land and for restraining the defendant from interfering in their possession of disputed property, or in any case for recovery of possession of disputed land from defendants; and also for cancellation of registered sale-deed dated 13.7.2010 executed by defendants 2nd set in favour of defendant 1st set. The relief sought in plaint is quoted as under:
"¼v½ ;g fd cvnkyr ?kks"k.kkRed fMdzh cgd oknhx.k f[kykQ izfroknhx.k bl vk'k; dh ikfjr dh tkos fd ge oknhx.k dks vk0ua0 [email protected] o [email protected] ,;j dk Hkwfe/kj ekfyd ?kksf"kr fd;k tkos rFkk dkfUlDosfUl;y fjyhQ esa izfroknhx.k dks ln loZnk ds fy, euk fd;k tkos fd izfroknhx.k oknhx.k ds dCtk n[ky esa fdlh izdkj ls gLr{ksi u djsa cfYd iwoZ dh Hkkafr tksrus cksus jgus ns ;fn nkSjku eqdnek dCtk dj Hkh ys rks iqu% dCtk okil fnyk;k tk;A ¼c½ ;g fd jftLVªh cSukek cgh ua01 ftYn la0 654 ds i`"B [email protected] esa uEcj 906 ij fn0 13&7&10 dks jftLVªhd`r nLrkost cSukek dks fujLr djus ds fy;s lc jftLVªkj esguxj dks vknsf'kr fd;k tkosA ¼l½ ;g fd oknhx.k fdlh vU; vuqrks"k ds vf/kdkjh gks rks mls Hkh fnyk;k tk;A"
3. The trial court had accepted the written statement of defendants, framed issues, accepted the evidence adduced by them and thereafter Additional Civil Judge (JD), Court No.-13, Azamgarh had passed judgment dated 27.11.2013 by which dismissed the suit of the plaintiffs with cost. In this judgment the trial court held that sale-deed of disputed property had been executed in favour of defendant no.-1 by the defendants no. 2 and 3 who were Bhumidhar with transferable rights; and the plaintiffs have failed to prove their case.
4. Against the judgment dated 27.11.2013 of the trial court, Civil Appeal no. 230/2013 Parma Chauhan & others Vs. Luxmina & others was preferred by the plaintiffs. This appeal was heard and dismissed on merits by judgement dated 07.09.2015 of the Additional District Judge, Court No.-5, Azamgarh. By this judgement the first appellate court had affirmed the findings of trial court, and also held that relief sought by plaintiff for declaration of their bhimidhari rights over disputed agricultural land cannot be granted by civil court because the revenue courts has exclusive jurisdiction for the same.
5. Aggrieved by these judgements of two courts below, the present second appeal has been filed by the plaintiffs of the original suit.
6. Counsel for the appellant admitted this legal position that only revenue records and not the civil court has right to declare and determine the ownership or bhumidhari right of agricultural land. But his contention that was main relief in this matter was not of declaration of bhumidhari rights but was of cancellation of sale-deed for which only the civil court has jurisdiction. This contention is totally unacceptable from perusal of plaint of appellants in original suit as well as the relief sought by plaintiff-appellants as quoted above.
7. The sale-deed in question was not challenged on the ground that it was not executed by defendant 2nd set in favour of defendant 1st set, but it was challenged on the ground that defendant 2nd set had got their name wrongly recorded in revenue records over disputed agricultural property and thereafter sold it to defendant 1st set. In plaint plaintiffs have claimed themselves to be co-bhumidhar of the land in suit over which their name could not be recorded in revenue records. So they have sought relief for declaration of the bhumidhari rights. Therefore 1st relief sought in plaint as above was the main relief, and on the basis of this alleged bhumidhari rights plaintiff-appellants have sought another ancillary relief of cancellation of sale-deed. Therefore, the main relief sought in this case is that of declaration of bhumidhari rights of plaintiff-appellants, and the main relief is the one which determines the competent court to grant it and the ancillary relief.
8. Section- 331 of U.P. Zamindari Abolition & Land Reforms Act, 1950 reads as under:
"331. Cognizance of suits, 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 an~hing contained in the Civil Procedure Code, 1908, (5 of 1908) take cognizance of any 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 of any holding or part thereof, the provisions of Schedule II in so far as they relate to suit, application 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."
9. This section provides that no court other than court mentioned in Column 4 of Schedule II shall, notwithstanding anything contained in C.P.C., take cognizance of any suit, application or proceedings, mentioned in Column 3 thereof, or of a suit, application or proceedings based on cause of action in respect of which any relief could be obtained by means of any such suit or application. In Schedule II of this Act at serial number 34 Column 3 deals with ''Suit for declaration of rights'; and in front of it in column 4 name of court of original jurisdiction is given as ''Assistant Collector, 1st Class'. Present suit of the plaintiff-appellants is based on the claim that appellants are owner of disputed land.
10. The present case of plaintiff appellants is based on claim that they are owner and bhumidhar of disputed land. Admittedly the name of defendant-respondent are recorded as bhumidhar on disputed land i.e. agricultural land as defined in UPZA & LR Act. Even the alleged, relief of cancellation of sale-deed and permanent injunction regarding disputed land is also based on the relief of declaration of title of disputed agricultural land. Therefore, it is explicitly clear that only the court of Assistant Collector has jurisdiction to grant these reliefs and civil court has no jurisdiction to decide the suit or other proceeding based on cause of action for declaration of ownership rights of such agricultural land. Therefore this finding of first appellate court is perfectly correct and is being upheld that plaintiff is not entitled for the relief of declaration of bhumidhari rights which is within exclusive jurisdiction of revenue courts. As discussed above this legal position was not denied. But from above discussion it is clear and proved that main relief sought by plaintiff-appellants are based on declaration of their alleged right of bhumidhari over disputed agricultural land but it cannot be granted to the appellants.
11. So far as other facts relating to relief of cancellation of deed is concern, there has been specific and concurrent finding of fact that plaintiff-appellant have failed to prove their case. Such finding given by the trial court and affirmed by first appellate court, is given after appreciation of evidences available before the two lower courts which are apparently correct and acceptable. Therefore such finding cannot be interfered in second appeal by re-appreciation of evidences.
12. On examination of the reasoning recorded by the two courts below, I am of of he view that there is no error or illegality in the judgements under challenge. No perversity or infirmity is found in concurrent findings of acts recorded by the two courts below that may require interference in second appeal.
13. Counsel for the appellant contended that the direction may be given to the appellant in moving the revenue court. No such direction can be given since revenue court had exclusive jurisdiction for the actual relief sought in the plaint which is for the exercise of ownership and bhumidhari rights over disputed agricultural land, therefore appellants are at liberty to approach the competent court in accordance with law. None of contention of the counsel for the appellant-plaintiff can be sustained.
14. In view of the above, this court finds that no substantial question of law arise in this appeal which may be determined by this court. Therefore the second appeal is dismissed.
15. Let a copy of this order be sent to the court concerned.
Order Date :- 20.11.2015 SKS