Bechan Alias Bechai (Since ... vs Gaon Sabha Mirzapur Jagdishpur
2015 Latest Caselaw 4764 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?In Chamber
 

 
Case :- SECOND APPEAL No. - 978 of 2015
 

 
Appellant :- Bechan Alias Bechai (Since Deceased) & 8 Others
 
Respondent :- Gaon Sabha Mirzapur Jagdishpur
 
Counsel for Appellant :- Dharmendra Kumar Pandey
 

 
Hon'ble Pramod Kumar Srivastava,J.

1.Original Suit No. 221/1985 (Bechan @ Bechai and another v. Gaon Sabha) was instituted for the relief of permanent injunction. Originally, plaintiffs had filed suit against private person but during proceedings of case the original defendant's names was deleted and substituted by Pradhan of Gaon Sabha. The plaint case in brief was that plaintiffs (present appellants) are owner and bhumidhar in possession of plot no. 324, 325 and 326 situated in village Mirzapur. The defendant is threatening to take unlawful forcible possession of said land, therefore, plaintiffs had filed suit for permanent injunction for restraining them in their peaceful possession of plaintiffs.

2.The trial court had accepted written statement, framed issues, accepted the adduced evidences and thereafter Court of 12th Additional Civil Judge (J.D.), Azamgarh had passed the judgment dated 29.07.1998 by which original suit was partly decreed for plots no. 324 and 326 of village Mirzapur.

3.Against the aforesaid judgment of trial court, Civil Appeal no. 226/1998 (Pradhan, Gaon Sabha Mirzapur, Jagdishpur v. Bechan @ Bechai and others) was filed. After hearing Additional District Judge, Court No.-2, Azamgarh had allowed the said appeal by judgment dated 19.09.2015 and dismissed the original suit. Then plaintiffs of original suit had filed this second appeal against the judgment of first appellate court.

4.Learned counsel for the appellants contended that plaintiffs-appellants may be granted relief of injunction on the basis of their possessory title only. He also contended that the matter relating to disputed land is still pending before the revenue court where it will be decided that whether appellants are bhumidhar of disputed property or not, but since possession of appellants are admitted facts, therefore on basis of their possession only they are entitled for the relief of permanent injunction.

5.A perusal of the records reveal that trial court had perused the khatauni of disputed plots and thereafter held that since the name of plaintiffs are there in khatauni over the plots no. 324 and 326, therefore, not only they are owner of this property but entries of khatauni proves their possession also. Thus on the ground of entries of the name of appellants over plot no. 324 and 326, the trial court had treated the title and possession of plaintiff-appellants and decreed the original suit for permanent injunction over those two plots.

6.It is pertinent to mention here that trial court had not given any specific finding of fact regarding actual possession of appellants, but had accepted the possession on the basis of entries of khatauni. This fact was pointed out by the first appellate court in its judgment. First appellate court had framed points of determination on several points including firstly, the possession of plaintiffs over plots no. 324 and 326, and secondly, the bar of suit under Consolidation of Holdings Act. The first appellate court had specifically held that trial court had not considered the fact that village relating to disputed property had undergone the consolidation proceedings and the last records have been prepared in which disputed land is noted as pond (pokhari) and Bhitha. On the basis of these facts, first appellate court had held that original suit of plaintiffs relating to disputed land, title of which was being considered by Consolidation Courts is barred by provisions of Section-49 of the Consolidation of Holdings Act. Learned counsel for the appellants had admitted this finding of the first appellate court that the title of disputed plots are still sub-judice before the revenue court. When an agricultural land had undergone consolidation proceedings then all suits relating to such land would be abated, and jurisdiction to decide all rights, title relating to it would shift to Consolidation Courts only. Admittedly after the completion of consolidation proceedings and preparation of land records the jurisdiction of agricultural land is exclusively vested in revenue records. In present case, consolidation proceedings of disputed land were undergoing during proceedings of the trial court. Therefore, also suit of plaintiffs-appellants could not be heard and decided by the civil court for determining their alleged bhumidhari rights. After consolidation proceedings disputed property was declared pokhari and bhitha the right and title 0f which vests in State. Therefore, bhumidhari rights of plaintiffs-appellants over disputed land cannot be accepted or determined by civil court. Bhumidhari rights can be declared by revenue records only and admittedly appellant's case for such right is pending before the revenue court, therefore, plaintiffs' suit and the relief sought in it, after completion of consolidating proceedings, is barred by Section 331 of U.P. Z.A. & L.R. Act.

7.So far as, alleged possessory title is concerned, in that regard discussion has already been made above and this finding of trial court is not incorrect that there appears no actual proof of possession of appellants over disputed property. Since the basis of suit of plaintiffs-appellants is the exercise of bhumidhari rights over disputed land, therefore in the suit for permanent injunction the main relief relates to declaration of bhumidhari rights, and ancillary relief is regarding injunction. Since the main relief for the suit appears barred earlier by provisions of Consolidation of Holdings Act and thereafter by UPZA & LR Act, therefore plaintiffs appear not entitle for any relief claimed in this matter. There appears no illegality or impropriety in the impugned judgment of first appellate court. The findings given in first appeal are apparently correct and acceptable and there appears no factual or legal error in it.

8.Since the dispute of ownership cannot be decided by the civil court, therefore, matter of consideration before the second appeal is also as to whether plaintiffs-appellants are entitled for the relief of permanent injunction on the basis of their possession over disputed land. This is not a question of law, but is a matter of fact that can be decided on the basis of available evidences. The appellate court had rightly held that suit of plaintiffs is not maintainable. Apart from it on the basis of evidences, first appellate court had held that plaintiffs-appellants are not in possession of disputed property. There appears no error in this finding of the first appellate court. The judgment of first appellate Court are well reasoned and are based upon proper appreciation of the entire evidence on record. No question of law, much less a substantial question of law, was involved in this case before the High Court. No perversity or infirmity is found in the concurrent findings of fact recorded by the first appellate court to warrant interference in this appeal. None of the contentions of the learned counsel for the appellant-plaintiffs can be sustained.

9.In view of the above, this Court finds that no substantial question of law arises in this appeal. Therefore the second appeal is dismissed.

Order Date :- 30.11.2015

Sanjeev