Ram Kumar vs Addl. District Judge Barabanki ...
2012 Latest Caselaw 3640 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

										Reserved
 
										A.F.R.
 

 

 
Court No. - 11
 

 
Case :- Writ Petition No. - 6177 of 2009
 

 
Petitioner :- Ram Kumar
 
Respondent :- Addl. District Judge Barabanki And Ors.
 
Petitioner Counsel :- Hemant Kumar Misra
 
Respondent Counsel :-C.S.C.,Omkar Nath Mishra, Komal Prasad Tiwari
 

 
Hon'ble Vinay Kumar Mathur,J.

The instant writ petition has been filed by the petitioner for quashing the orders dated 15.10.2009 passed by O.P. No. 1 in Misc. Appeal No. 28 of 2009 whereby the appeal of the petitioner was dismissed and also order dated 18.07.2009 passed by O.P. No. 2 in Regular Suit No. 1021 of 2008 rejecting the temporary injunction application of the plaintiff-petitioner. The petitioner has also prayed for a mandate against O.P. Nos. 3 to 5 for restraining them from disposing of or alienating share of the petitioner in the ancestral land and from interfering in the peaceful possession and enjoyment of the petitioner over his share during the pendency of the suit.

Brief facts giving rise to the filing of the instant petition are that the petitioner filed a suit in the Court of Civil Judge (Junior Division), Barabanki contending that defendant No. 1 Sri Ram is his father who is aged about 82 years and due to old age he has lost the capacity of understanding and cannot look after his interest. The plaintiff is the son of the defendant No. 1 (O.P. No.3 herein) from his first wife while defendant Nos. 2 and 3 (O.P. Nos. 4 and 5 herein) are his sons from second wife. The defendant No. 1 is the owner of the agricultural land detailed in Paragraph No. 3 of the plaint situated in various Revenue villages and is the owner of 1/12 share out of the said lands while the plaintiff is in possession over half share out of this land. Further contention is that the agricultural land is ancestral and defendant No. 1 inherited it from his ancestors. The defendants have no concern with the share of the plaintiff and the plaintiff is in exclusive possession. The plaintiff has also stated that defendant Nos. 2 and 3 are misleading defendant No. 1 and he is under their influence and are insisting that defendant No. 1 should dispose of the ancestral land otherwise it will come in the name of the petitioner after his death and in furtherance of the advice defendant No. 1 is disposing of the land including the share of the plaintiff also causing loss to him. The defendant No. 1 has already sold a grove in which the plaintiff also has a share on 01.11.2008 and no money has been paid to the plaintiff. In this backdrop, the plaintiff has filed Suit No. 1021 of 2008 for perpetual injunction against the defendants praying for restraining them from interfering in the possession of the plaintiff and further for prohibiting the defendant No. 1 to alienate the said land. A temporary injunction application 6-C was also moved by the plaintiff under Order 39 Rule 1 C.P.C. supported by an affidavit. The defendants contested the suit and filed written statement and also filed objection against the temporary injunction application. The learned Additional Civil Judge (junior division) vide his order dated 18.07.2009 has rejected plaintiff-petitioner's application 6-C for temporary injunction observing that the plaintiff has not filed Khasara to prove his possession over the disputed land and since defendant No. 1 is Bhumidhar with transferable rights of the disputed lands, therefore, his possession over the said lands will be deemed to be in existence. Further the Court has held that no injunction can be granted against the actual owner.

Aggrieved from the order and its formal order a Misc. Appeal was filed in the Court of District Judge, Barabanki which too was dismissed vide judgment and order of O.P. No. 1 dated 15.10.2009. Aggrieved against both the orders the instant writ petition has been filed on the grounds that the petitioner holds equal share and right over the ancestral land alongwith his O.P. No. 3 and after the death of petitioner's grand father the petitioner's share in the ancestral land was demarcated and the petitioner is in possession of his share. The sale deed executed by O.P. No. 3 on 01.11.2008 was without any necessity of the family members and the petitioner has already challenged the said sale deed by filing regular Suit No. 1059 of 2008 which is pending. It has also been alleged that O.P. No. 3 has gifted ancestral land situated in village Baraiya to his daughter-in-laws (wives of O.P. Nos. 4 & 5) without the consent of the petitioner though petitioner is a co-sharer in the said land. O.P. No. 3 has also executed a sale deed of the ancestral land in which also the petitioner has share without his consent and without any necessity of the family members. Therefore, the petitioner has filed a Suit No. 1095 of 2008 challenging the sale deed which is also pending. It is further stated that O.P. No. 3 has also executed another sale deed on 02.06.2009 of land in which also the petitioner has share and the petitioner has filed R.S.568 of 2009 before Civil Judge (Junior Division), Barabanki which is also pending.

The main ground which has been taken by the petitioner is that O.P. No. 3 is Karta of HUF and has been executing sale deeds, gift deeds of the ancestral land without any necessity or requirement for the family and without taking any caution and he cannot act against the interest of the family in the capacity of Karta by eliminating the interest of the petitioner who is a co-parcener. In this view of the matter, it was required that the O.P. No.3 ought to have been restrained from disposing of the disputed ancestral land in the capacity of the Karta of co-parcenary and from interfering in the peaceful possession and enjoyment of the plaintiff over his share in the disputed property.

Counter affidavit on behalf of O.P. No. 3 has been filed wherein the orders of both the Courts below have been defended. It has been contended that the name of the petitioner is not recorded in the revenue papers as co-sharer, therefore, the petitioner has no right to claim any title in the disputed land. Copy of Khatauni has been filed as Annexure CA-I to the counter affidavit. It has also been contended that no share in the land in dispute was ever demarcated as has been alleged by the petitioner. The petitioner lives in Lucknow for the past 20 years and is working as Samiksha Adhikari in Civil Secretariat and has no possession or occupation over the disputed land. It has been admitted that the suits challenging the transfer deeds executed by the Opposite Party No. 3 have been filed. However, it is contended that they have been filed on fictitious grounds. To avoid unwanted litigation, the O.P. has disposed of his property according to his own wishes. The grounds of the petitioner are beyond pleadings of original suit and such are not tenable. The petitioner is not a co-parcener of the O.P. No. 3 as alleged and as such has no right in the property in dispute and since the petitioner has no title and possession, therefore, no prima facie case was made out and the balance of convenience was also not in his favour, hence no interim order could have been passed in his favour. Reply by the petitioner has been filed reiterating the averments of the petition.

I have heard learned counsel for the petitioner and learned counsel for Opposite Party No. 3 and have perused the record.

Learned counsel for the petitioner has submitted that the agricultural land is ancestral and since the petitioner is a member of HUF and is a co-parcener and his separate share has been demarcated, therefore, defendant No. 1/O.P. No. 3 has no right to alienate the disputed property to anybody or to dispossess the petitioner from his share. The transfers made by O.P. No. 3 herein under the influence of O.P. Nos. 4 and 5 are illegal and have been challenged through regular civil suits. The O.P. No. 3 under the influence of O.P. No. 4 and 5 further intends to transfer the remaining land in order to deprive the petitioner of his share which is in his possession and the same cannot be legally sold, therefore, the petitioner has a prima facie case and the balance of convenience is also in his favour and he will suffer irreparable injury but the Trial Court as well as the Appellate Court illegally and arbitrarily rejected the temporary injunction application and the appeal which was preferred by the petitioner. Reliance has been placed on a judgment rendered by Hon'ble Supreme Court in Subodh Kumar and others Vs. Bhagwant Nam Dev Rao Mehrahte and others AIR 2007 SC 1324.

Learned counsel for O.P. No. 3 has defended the orders of the Court below and has further submitted that the petitioner is not a recorded tenure holder in any of the khataunis of the disputed lands. No documentary proof of possession such as Khasara has been filed and no proof of his exclusive separate possession, over any land has been filed. The petitioner lives in Lucknow for the past 20 years and is working as Samiksha Adhikari and has no possession or occupation over the disputed lands. The suits for cancellation of sale deeds etc. have been filed on fictitious grounds. It has also been contended that the ground that the properties were not sold for necessity or requirement of the family and that the petitioner is a co-parcenor of the property belonging to HUF were not taken or pleaded by the petitioner either in the Trial Court or in the Appellate Court. The same cannot be raised for the first time in the instant writ petition. Further submission is that the petitioner has no locus standi to file the instant petition and the personal law is not applicable with regard to agricultural land.

No document was filed by the petitioner in the Courts below showing his exclusive possession over any piece of land claimed by him (revenue record) and no proof has been filed in the instant writ petition also wherein the name of the petitioner has been recorded in the Khatauni, Khasara or any other paper in his name or any proof of demarcation of his share separately by merely taking a new case in the writ petition while civil litigation is pending appears to be a device to somehow in keeping O.P.s engaged in litigation.

From the perusal of the copy of the plaint and the temporary injunction application and memo of appeal. It is evident that the grounds that the agricultural land belongs to HUF and the petitioner is a co-parcener have not been pleaded. It has also not been alleged that O.P. No. 3 was acting as Karta of Hindu undivided family and that the transfers were not made out of any necessity or requirement. All these grounds have been taken for the first time in the writ petition. In Subodh Kumar and others Vs. Bhagwant Nam Dev Rao Mehrate and others AIR 2007 SC 1324 relied upon by the learned counsel for the petitioner it has been held that in that case the land belonged to Hindu undivided family and the Karta executed the conveyance alongwith four sons while the fifth son independently sold land. The question as to whether the alienation was made for legal necessity was also involved. However, all these points were raised from the beginning. Further it appears that in the revenue records the names of the sons of the Karta were also recorded and they also executed the sale deed alongwith Karta. In this backdrop, since it was also alleged that there was no legal necessity for execution of the transfer deed in favour of the plaintiffs this question was also examined by the Hon'ble Apex Court. I am of the view that the judgment cited on behalf of the petitioner is not applicable to the facts and circumstances of the instant matter because firstly, the ground that the property was of HUF and O.P. No. 3 was the Karta and the transactions which were made by O.P. No. 3 were not for legal necessity/requirement have been raised for the first time in the appeal. Thus a new case has been set up by the petitioner which was never pleaded in the pleadings by the petitioner in both the Courts below. Secondly, the judgment of Hon'ble Apex Court was given in appeal in the matter of other State where provisions of U.P.Z.A. & L.R. Act are not applicable whereas, U.P. Zamindari Abolition and Land Reforms Act is a special enactment and in the matter of succession the personal law is not applicable. The provisions of the Act will prevail over the personal law and will have binding effect. It may also be remembered that the agricultural land vests in the State Government and the bhumidhar with transferable rights is only a tenure holder who pays land revenue to the State Government and is thus not absolute owner. In Ram Awalamb and others Vs. Jatashanker and others A.I.R. 1969 Allahabad 526, the Full Bench of this Court has held that members of the joint Hindu Family holding right in any holding, inherits the same as tenants in common and not as joint tenants. The notions of Hindu Law cannot be invoked to determine that status. It was further held that the interest of each Bhumidhar being heritable only according to the order of succession provided in the Act and transferable without any restriction and other than mentioned in the Act itself, must be deemed to be a separate unit for the exercise of the right of transfer and also for the purposes of devolution of Bhumidhari interest of the deceased member. It was further held that provisions of Hindu Law relating to restriction of transfer of co-parcenary land e.g. existence of legal necessity do not apply. In this Full Court judgment the entire developments relating to tenancy rights have been discussed and it has been clearly laid down that the concept of co-parcenary property is not applicable after coming into effect of U.P. Zamindari Abolition Act. Also personal laws have no application in the matter of succession.

In Mahendra Singh Vs. Attar Singh A.I.R. 1969 Allahabad 488 it has been held Sections 152, 161, 169, 171, 172, 173 and 175 of U.P. Z.A. & L.R. Act (Act No. 1 of 1951) are special and new rights solely to be governed by provisions of Act. Principles of co-parcenary property are not applicable to them. Bhumidhar can transfer his interest unrestricted by considerations of legal necessity. Thus the Division Bench has categorically held that principles of co-parcenary property are not applicable to the special and new rights which have been provided under U.P. Z.A. & L.R. Act. In Madhuri Devi and other Vs. Board of Revenue U.P. Allahabad and others 2012 (2) A.W.C. 1135 it has been held that the Courts below had erroneously decided case on the basis of personal law. Therefore, the impugned judgment and order was set aside. It was held that succession in case of agricultural property is governed by U.P.Z.A. & L.R. Act and not by principles of Hindu Law or any personal law.

In view of this legal position, I am of the view that the impugned orders passed by the Trial Court whereby the temporary injunction application of the petitioner was rejected and also the appellate order by which the Misc. Appeal was preferred against the order of the Trial Court was dismissed have been passed in accordance with law and Court below have not committed any material irregularity or error while passing the said orders. The petitioner has not come with clean hands and the petition is devoid of merits as such the same is liable to be dismissed.

The petition is dismissed with costs, stay order, if any, is vacated.

Order Date :- 23.8.2012

Jaswant