Allahabad High Court
Dayaram & Another vs Sukhram on 22 May, 2017
Bench: B. Amit Sthalekar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 5
Case :- SECOND APPEAL No. - 596 of 2017
Appellant :- Dayaram & Another
Respondent :- Sukhram
Counsel for Appellant :- Lal Mani Tripathi,Ashok Kumar Singh
Counsel for Respondent :- Rajeev Upadhyay
Hon'ble B. Amit Sthalekar,J.
Heard Sri Ashok Kumar Singh, learned counsel for the appellants and Sri Awadhesh Singh holding brief of Sri Rajeev Upadhyay, learned counsel for the respondents.
This is the plaintiffs' second appeal.
The plaintiffs filed suit for permanent injunction restraining the defendants from interfering with the suit property which according to them is agricultural land. The trial court framed issues. Issue no.6 was as to whether the civil court has jurisdiction in the matter. The trial court held that since land in question was agricultural land, therefore, the civil court had no jurisdiction to hear the matter.
Learned counsel for the appellants has placed reliance upon the judgement of the Supreme Court reported in 1990 ACJ 275, Hira Lal and others vs. Gajjan and others wherein the Court has held that objection to the jurisdiction of the civil court to try the suit on the ground that revenue court had exclusive jurisdiction is not sustainable the suit being one for permanent injunction and the question of title arises only incidentally.
Relevant para 13 of the judgment reads as under:-
"13. The contention that the second appeal abated on account of non-filing of substitution application after the death of defendants Nos. 6, 10 and 11 had been reiterated before us. These respondents were only proforma parties and the High Court was right in holding that appeal did not abate. We may refer to The State of Punjab v. Nathu Ram, (1962) 2 SCR 639, where it is held "that ordinarily the consideration which weigh with the Court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court." The Civil Court had jurisdiction to try the suit for injunction when the question of title arose only incidentally. The objection to jurisdiction of the Civil Court to try the suit on the ground that revenue court had exclusive jurisdiction is not sustainable the suit being one for permanent injunction and the question of title arises only incidentally."
The contention of the appellants is that in the present suit question of title is only incidental and not direct.
In my opinion, this is not correct. Issue no.1 was as to whether the plaintiffs are bhumidhar and in possession of the plot no.12 area 977 kari. The contention of the plaintiffs was that in the chakbandi proceedings they were held to be in possession over the land in question and since no suit was filed by the defendants under Section 209 U.P. Z.A. & L.R. Act,1950, therefore, by virtue of adverse possession they were held to be owner and in possession of the land in question. Akarpatra 22 Ga was filed in which objection filed by the plaintiffs-appellants before the consolidation proceedings was set aside and the land in question was recorded in the name of the defendants. Document khasra-khatauni filed by the plaintiffs shows that this land was never recorded in the name of the plaintiffs and instead the name of the defendant was recorded. In the ancestral property 2/3 is shown in the name of the defendants and 1/3 is shown in the name of plaintiffs. In this regard the plaintiffs' objection was rejected and against the order of the Consolidation Officer plaintiffs did not file any appeal. Therefore the order has become final. The Consolidation Officer in his final order has held the defendants to be title holder in respect of the entire property
On behalf of the plaintiffs one Harilal was examined as witness but the trial court has recorded a finding that this witness Harilal does not belong to the same village as the plaintiffs nor was he able to prove the plaintiffs' possession over the land in dispute. The plaintiffs also failed to produce any witness belonging to the same village to prove the possession of the plaintiff, therefore, the court has held that even the plaintiffs were claiming ownership by virtue of adverse possession and burden was upon them to prove their possession but they failed to produce any document or any witness to prove their possession over the suit property i.e. property in dispute.
The appellate court has referred to document 29.Ga 1 to 22 Ga1, Akarpatra 23, khatauni 23Ga1, 24Ga1 and 25Ga1 and has held that these documents do not pertain to village Kudaran Tiwari Tappa Haveli, Pargana & Tahsil Saggari whereas the defendants have filed document 35 Ga1 which is the same village as well as the khatauni 34 Ga 1 which clearly mentions that the name of Sukhram, the defendant has been recorded in the revenue record as Bhumidhar with transferable rights.
The appellants have filed paper 77 Ga, decree of suit 374 of 2001, deceased Chaurangi and others vs. Sukhram and others. It has rightly been held by the appellate court that this decree cannot be read as evidence in the present proceedings. If the plaintiffs are claiming adverse possession against the real owner, they can not claim their bhumidhari right over the land in dispute at the same time. On the other hand the plaintiffs in their plaint are themselves claiming to be bhumidhar over the disputed land but at the same time they are also claiming adverse possession. Therefore the two different stands set up by the plaintiffs are self contradictory. Considering this fact the plaintiffs' appeal has also been dismissed by the lower appellate court.
I have considered the judgements of the courts below. I do not find the dispute in the case to be one of the title directly but one simply of injunction where the question of title is only incidental as held by the Supreme Court in the case of Hira Lal (supra).
In my opinion, the findings recorded by the courts below are pure findings of fact which show no perversity. No substantial question of law has been made out by the plaintiffs-appellants in the second appeal.
The second appeal lacks merit and is accordingly dismissed.
Order Date :- 22.5.2017
Asha
