Ram Naresh vs Bachchi Singh And Others
2015 Latest Caselaw 5600 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 19
 
Case :- 	SECOND APPEAL No. - 112 of 1991
 
Appellant :- 	Ram Naresh
 
Respondent :- 	Bachchi Singh And Others
 
Counsel for Appellant :- P.C. Mishra,N.S. Chaudhary,R.K. Saxena,V.C.Mishra
 
Counsel for Respondent :- N.K. Srivastava, A.K.Gupta, A.R.Gupta,K.S. Chaudhary, K.S.Chauhan, Kesh Ram, Keshao Ram, N.K. Sharma, V.C. Srivastava, V.K.Srivastava
 
In Re: Restoration  application No. 360156 of 2015.
 
Hon'ble Pramod Kumar Srivastava, J.

1. Heard learned counsel for the parties and perused the records.

2. In original suit no. 64/1987 Ram Naresh v. Bachchi Singh & others, plaint case was that Hukum Singh was earlier owner in possession, cultivator and bhumdhar of disputed plots no. 628, 864, 868, 870, 944, 869 and 819 situated in village Dhumri and is. He had executed the will of said land in favour of plaintiff Ram Naresh (present appellant), who came in its possession as Bhumidhar. After the death of Hukum Singh, the plaintiff's name was mutated over this property. During proceedings under Section-145 Cr.P.C., the said land was attached and then released in favour of plaintiff. Defendants have no right title or interest in this property, but they are attempting to take unauthorized possession of it, therefore, the plaintiff had filed suit for permanent injunction.

3. In their written statements, defendants had denied the plaint case and pleaded that earlier owner of disputed property Hukum Singh had executed his last will dated 23.04.1971 in favour of his wife Smt. Ramlali who became owner and possession of disputed property after his death. On 20.11.1975 Smt. Ramlali had executed will of her whole property in favour of her sister Prema Devi, defendant no. 1. Then after the death of Ramlali, the defendant no. 1 Prema Devi came in possession of this property as owner. The plaintiff Ram Naresh has no concerned with this property, but after death of Hukum singh he had prepared a forged will on behalf of Hukum singh and got his name mutated by order of Tehsildar, but litigation had gone upto Board of Revenue where order of Tehslidar and Sub Divisional Officer were quashed and it was declared that plaintiff is not owner or bhumidhar of disputed agricultural land. Original suit is barred by Section-331 of U.P.Z.A. & L.R. Act and provisions of Section-34 of the Specific Relief Act and is liable to be dismissed.

4. The trial court has framed issues, accepted adduced evidences and thereafter Civil Judge, Etah had passed the judgment dated 08.12.1989 by which original suit no. 64/1987 was dismissed.

5. Against the judgment of trial court, Civil Appeal no. 10/1990 (Ram Naresh v. Bachchi Singh & others) was preferred which was heard and dismissed by the judgment dated 1.12.1990 of the Court of 5th Additional District Judge, Etah. In this judgment, the first appellate court had also held that claim of plaintiff/ appellant is based on alleged will in his favour but the said will was not proved. Apart from it, the litigation of bhumidhari rights had gone upto the Board of Revenue and then in High Court, where judgments were given against plaintiff/appellant. By the judgments of revenue court and the High Court, the name of defendant no.-1 Prema Devi had been entered in revenue records (khatauni) over disputed property, and this has been finally decided that plaintiff has no ownership or bhumidhari rights over this property. The first appellate court had specifically held that from the oral and documentary evidences, it is proved that plaintiff is not owner of disputed property, and it is also proved that defendant Prema Devi is owner of whole disputed property. The first appellate court had also held that although property was released in favour of plaintiff/appellant after the proceedings under Section-145 Cr.P.C., but the case of plaintiff/appellant regarding any right or ownership of disputed property is proved. Therefore the suit of plaintiff is liable to be dismissed. On these grounds the first appellate court had dismissed the appeal and confirmed the judgment and decree dated 08.12.1989 of trial court. Aggrieved by the judgment of trial court as well as first appellate court, present second appeal was preferred before the High Court.

6. At the time of admission of second appeal, this Court had admitted it only on one following substantial question of law:

"Whether suit can be decreed on the basis of possession irrespective of title?"

7. The suit of plaintiff/appellant has been based on claim of his ownership and bhumidhari rights over disputed agricultural land, for which the plea of bar of suit under Section 331 of U.P.Z.A. & L.R. Act was taken by defendants in their written statement.

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-appellant 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 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. 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, and therefore, claim of plaintiff/appellant is barred by Section 331 of U.P.Z.A. & L.R. Act, so appellant is not entitled for any relief claim in spite of his possession.

11. The contention of learned counsel for the appellant was that since the appellant had got the possession of disputed property after the direction of Executive Magistrate passed in proceedings under Section-145 Cr.P.C., therefore, his possession is lawful, and on the basis of such lawful entry over disputed land, he is entitled to retain it. This contention is found unacceptable. The proceedings under Section 145 Cr.P.C. are that of summary nature, which are meant for maintaining law and order and preventing the apprehension of breach of peace. The dispute regarding ownership has been finally settled and it has been rightly held that plaintiff/appellant has no right or title over disputed agricultural property and has no legal basis of his possession. When his status over disputed property is not of any owner or tenant or licensee, then undoubtedly his status remains as that of a trespasser, who cannot claim any right over this property against the true owner. The true ownership and title of defendant no.-1 has been proved and finalized, therefore, merely on the basis of alleged possession, he is not entitled for relief of permanent injunction.

12. In "Premji Ratansey v. Union Of India, 1994 SCC (5) 547" Hon'ble Supreme Court held as under:

13. "It is equally settled law that injunction would not be issued against the true owner. Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner."

14. In "Tamil Nadu Housing Board v. A. Viswam (Dead) By Lrs, JT 1996 (2)" Hon'ble Supreme Court held as under:

" Thus considered, the title of the land in Survey No. 140/4 having been vested in the appellant, to whomsoever it belonged earlier, it stood divested from him/them and no one can lay any claim to the said acquired land once over and claim injunction on that basis. The injunction, therefore, cannot be issued against the true owner, namely, the Housing Board in whom the land ultimately stood vested and then stood transferred to Municipal Corporation. A trespasser cannot claim injunction against the owner nor can the court to issue the same."

15. In "Mahadeo Savlaram Shelke And Ors. v. Puna Municipal Corporation, JT 1995 (2) SC 504" Hon'ble Supreme Court held as under:

" It is settled law that no injunction could be granted against the true owner at the instance of persons in unlawful possession."

16. Division bench of Hon'ble Allahabad High Court, which held in ruling "Ashu Sonkar v. Vth Additional District Judge, 1999 (4) AWC 3107" as under:

"There is no doubt that a person having no right to remain on the property, cannot be dispossessed by the owner of the property except the recourse to law. It is one thing to say a person cannot be dispossessed even if he has no right to remain on the property except through recourse to law. It is another thing to say that a trespasser can maintain an injunction against the rightful owner. Even if a person can claim that he cannot be evicted except through law. But still then he cannot maintain an injunction as a trespasser against the rightful owner."

17. On the basis of above discussion, it is explicitly clear that though it is a general rule that no trespasser should be evicted except in accordance with process of law, but there is no doubt that this legal position is also certain that no injunction can be granted against the true owner at the instance of persons in unlawful possession. Since the status of appellant- plaintiff in present case is only that of a trespasser and as an unauthorized occupant, therefore he is not entitled to get injunction against true owner of disputed property. Therefore judgment of Court below to the effect of granting relief of injunction to appellant- plaintiff is legally not erroneous.

18. On the basis of above discussion, substantial question of law framed above is decided in negative and against the appellant, accordingly, this second appeal is dismissed with cost.

Order Date :- 21.12.2015

Sanjeev