Brij Kishor vs Rajesh Kumar Gupta
2018 Latest Caselaw 1306 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                       AFR						
 
                                                  Reserved on 15.5.2018              
 
						   Delivered on 2.7.2018              
 

 
Case :- SECOND APPEAL No. - 1087 of 2007
 

 
Appellant :- Brij Kishor
 
Respondent :- Rajesh Kumar Gupta
 
Counsel for Appellant :- V.S. Kushwaha
 
Counsel for Respondent :- Rishikesh Tripathi,Kaushlesh Tripathi
 

 
Hon'ble Siddharth,J.

Heard Sri V.S. Kushwaha, learned Counsel for the appellant and Sri Shashwat Shukla holding brief of Shri Kaushlesh Tripathi, learned Counsel for the defendant- respondents.

This is defendants' second appeal against the judgement and decree dated 25.9.2007 passed by Shri R.K. Mishra, Additional District Judge, Court No.-2, Banda, in Civil Appeal No. 52 of 2006 dismissing the appeal of the defendants and affirming the judgement and decree dated 27.7.2006 passed by Shri Jagdish Kumar, Civil Judge (S.D.), Banda in Original Suit No. 258 of 2001.

The plaintiff instituted an original suit praying for decree of mandatory injunction aginst the defendant for removing their constructions over plot no. 1489, area 2 Bigha, 3 Biswa, 10 Biswansi situated in village Bhawanipurwa Z area Pargana and Tehasil Banda.

Plaint case in short is that plaintiff is Bhumidhar of 1/2 part of plot no. 1489, area 2 Bigha 2 Biswa, 10 Biswansi situated in village Bhawanipurwa Z area Pargana and Tehasil Banda; that remaining 1/2 area of the aforesaid land is owned by defendant no.8 Harish Chandra as Bhumidhar; that defendant no.8 purchased 1/2 area of the aforesaid plot by means of registered sale deed 19.9.1992 from Nand Kishore; that land aforesaid has not been partioned between plaintiff and defendant no.8, therefore, defendant no.8 has no right to sell the same to defendant nos. 1 to 7; that defendant no.1 has purchased a "Khaprail house" area 15 ft. x 62 ft. over one Biswa of the aforesaid land; that defendant no.2 has constructed a boundary over 66 ft. x 77 ft. over 2 Biswa of land; that defendant no.3 has constructed a boundary and room over 48 ft.x 59 ft.;that defendant no.4 has constructed "Khaprail house" of 45ft. x 62ft. over 3 Biswa of land; that defendant no.5 has constructed house of 45 ft. x50 ft. over 3 Biswa of land; that defendant no.6 has constructed boundary of 45 ft.x 62 ft. over 3 Biswa of land ; that defendant no.7 is making construction of 30 ft.x 62 ft. over 2 Biswa of land; that all the constructions of the defendants are illegal; that Manoj son of Ram Swaroop is close relative of defendant nos. 1 to 7 and he has started making construction by digging foundation over 4 biswas of land; that in June 2001 defendants had started their illegal construction which was reported by the plaintiff to the police and proceedings under Section 107/116 of Criminal Procedure Code was taken by the police but they did not stopped their illegal constructions ; that original suit nos. 628 of 1995 and 15 of 1998 are pending between the plaintiff and defendant no.8; that plaintiff has right over every inch of land in dispute; that defendants have illegally opened passages and plaintiff is not able to use his house, hence they are required to be directed by means of decree of mandatory injunction to remove the disputed construction failing which the same should be directed to be removed through court and damages @ Rs. 250 per month may be directed to be paid by defendant no.8 and Rs. 150/- per month to be paid by other defendants.

The defendant no.1, Raj Kumar and defendant no.5 Bhurelal filed their written statements stating that plaintiff is not the Bhumidhar with transferable right of the disputed land and they have purchased the property from defendant no. 8 ; that they belong to scheduled caste; that the plaintiff has no right to dispossess them; that the civil court has no jurisdiction to hear the suit and suit is barred by the principles of estoppel.

Defendant no.2, Brij Kishore and defendant no.6, Ram Khelawan, have also filed their written statements stating that defendant no.2 has purchased the land by means of notarial agreement to sale dated 20.12.1993 and has constructed four rooms, court yard and latrine and is residing therein; that the defendant no.6 has also purchased the land from defendant no.8 on 12.4.1993 for Rs. 27,000/- and has constructed two rooms; that the plaintiff has filed the suit only to blackmail the defendants and the suit is barred by section 34 of Specific Relief Act.

Defendant no.3, Bhiyalal, claims that he has purchased the land from the defendant no.8 on 18.10.1993 and plaintiff has no right to evict him and the suit is barred by provisions of U.P. Z.A. & L.R. Act.

Defendant no.4, Tejwa Kori, has filed his written statement stating that he purchased the land from defendant no.8 and plaintiff has no right to remove him. Defendant no.7 filed his written statement claiming purchase of the property from defendant no.8 on 8.11.1996 for Rs. 11,000/- by way of notarial agreement and further stated that the suit is not maintainable.

Defendant nos. 8 and 9 did not file any written statements and suit proceeded against them ex-parte.

On the basis of the pleadings of the parties, trial court framed the following issues:-

1) Whether plaintiff is the owner of the land whereon the defendants have forcibly made construction, if yes, then its effect?

2) Whether the suit is under valued and court fees paid is insufficient?

3) Whether the plaintiff is entitled to get any damages, mentioned in the plaint from the defendants ?

4) Whether the suit of the plaintiff is beyond jurisdiction of this court?

5) Whether the suit of the plaintiff is barred by principles of estoppel ?

6) Whether the suit of the plaintiff is barred by provisions of U.P. Z.A. & L.R. Act ?

7) To what relief is the plaintiff, if any, entitled to?

The trial court decided the issue no.1 in favour of the plaintiff holding that he is owner of the disputed arazi and defendants have forcibly made constructions thereon.

The issue no.2 was decided in favour of the plaintiff holding that suit is neither under valued nor court fees paid is insufficient.

The issue no.3 was decided in favour of plaintiff holding that defendant no.8 has illegally sold the land to other defendants and, therefore, plaintiff is entitled to special damages from the defendants.

The issue no.4 was decided holding that civil court has jurisdiction to decide the suit.

The issue no. 5 was decided holding that plaintiff never acquiesced to the possession of defendants and has approached the police and has also filed the suit for partition of the property, therefore, suit is not barred by principles of estoppel.

The issue no.6 was decided holding that relief of permanent injunction can only be granted by civil court and, therefore, suit is cognizable by civil court.

The issue no.7 was decided in favour of the plaintiff and suit was decreed in his favour by trial court.

The defendants preferred a Civil Appeal no. 52 of 2006 wherein lower appellate court did not framed any point of determination and decided the appeal dealing with the arguments of the counsel for the appellants point wise.

The first argument raised on behalf of defendants before the lower appellate court was that suit against the co-sharer for taking possession of the land in their possession, inspite of being illegal, cannot be instituted. The lower appellate court recorded finding that plaintiff has only prayed for removal of unauthorised construction over the land in dispute and not for their dispossession and, therefore, the arguments cannot be accepted.

The second argument raised on behalf of the defendants was that names of all the defendants and other co-shares is mentioned in Khatauni of land in dispute being plot no.1489(M), but other co-owners of the land have not been made party. The trial court held that defendant no,8 has been made party in the suit and other defendants are also party therein, therefore, there is no defect in plaint. The suit is filed for a decree of mandatory injunction.

The third point discussed and decided by the lower appellate court was that defendants claimed to have purchased the land from the plaintiff by means of notarial affidavit and such documents do not confer any title. The sale of any property above value of Rs.100/- cannot be affected without execution of the registered sale deed. Therefore, these documents may have effect of estoppel against the defendant no.8 but not against the plaintiff. The defendant nos. 1 to 7 have made constructions over the plot in dispute forcibly inspite of complaint to the police made by the plaintiff against them and all the constructions are on the land whereon they have no title.

The last point considered by the lower appellant court was that suit for partition of disputed land is pending before the competent Revenue Court and without separation of his share by means of decree of partition the defendant no.8 cannot transfer any specific part of the land to any third party and, therefore, he cannot give possession to the defendant nos. 1 to 7 on specific part of plot no.1489(M). The lower appellate court found the judgement of the trial court to be correct and dismissed the civil appeal preferred by the defendants.

This appeal is being heard for admission under Order 41 Rule 11 C.P.C. and record of the court below has also been summoned, which is also before the Court.

Learned counsel for the appellant has relied upon the judgment in the case of Chandrika Misir Vs. Bhaiyalal, 1973 Law Suit (SC) 220, this judgment is overruled by judgment in Faqir Vs. Kishori, 1995 Law Suit (SC) 556. In Faqir Vs. Kishori (supra) Hon'ble Apex Court considered the question of jurisdiction of civil court which was questioned regarding suit for permanent injunction or for the alternative relief of possession over the agricultural land. The Apex Court in the case Faqir Vs. Kishori (supra) held that suit for ejectment of person occuping land without title should be filed in the court of Assistant Collector, 1st Class as per Section 331 of U.P.Z.A. & L.R. Act with effect from 28.5.1956 when Schedule II to the Act was amended by amending Act No. 18 of 1956.

Learned counsel for the respondents has relied upon the judgment in the case of Vishwanath Vs. Sultan, Laws (Alld.) 2007-12-56 wherein dispute was regarding overriding effect of Section 123 (2) of U.P.Z.A. & L.R. Act over valid decree passed by the Court. This judgment has no application to the facts of the present case. Similar reliance on the judgment of Majid Vs. Rahmat Ullah, Laws (Alld.) 2006-11-234 has been made which does not addresses the issue involved in this appeal. However, judgment in case of Shri Ved Prakash Maheswari Vs. Vimla Devi of the Uttranchal High Court passed on 09.4.2007 is helpful for plaintiff/respondent, it has been decided in this case that where the plaintiff is recorded as Bhumidhar of the land in suit in land records, he can institute suit before the civil court and such a suit was maintainable before the civil court and not barred by the provisions of U.P.Z.A. & L.R. Act. It was held that suit of recorded tenure holder for injunction is maintainable before the civil court.

Heard learned counsel for the parties,

The plaintiff, namely, Rajesh Kumar Gupta, filed a suit No. 258 of 2001 before the Civil Judge (SD), Banda with a prayer that the land in question was purchased by him alongwith the defendant no.8, namely, Harish Chandra, jointly and the property in question is joint holding of the plaintiff and defendant no.8 as such without partition, the defendant no.8 had no right to sell the same but he sold the same and new purchasers (Unauthorized Occupants), defendant nos. 1 to 7 started construction of their houses over the land in question since June 2001; that the plaintiff has already filed an Injunction Suit No. 628 of 1995 against his co-tenure holder, namely, Harish Chandra, defendant no.8, before the Civil Judge (JD), Banda wherein injunction was granted in favour of the Respondent No.1; that he also instituted as well as Partition Suit No. 15 of 1998 before the Civil Judge (SD), Banda and Suit No. 32/159/95 under Section 176 U.P.Z.A. & L.R. Act was pending for adjudication; by means of present suit he sought mandatory injunction against the defendants and prayed for ejectment of unauthorized occupants from the land in question and further prayed for compensation/damages from the defendants/ unauthorized occupants including the defendant no.8, namely, Harish Chandra as well for wrongful use and occupation.

That after issuing notices to the defendants, the defendant no. 8, namely, Harish Chandra neither filed his written statement. All the other defendants filed their written statements mentioning therein that they purchased the land in question through "Notary Affidavit" from the Defendant No.8 and that the case of the plaintiff is barred under the provisions of U.P.Z.A. and L.R. Act of which no provision was disclosed.

While deciding the question involved in this matter, the learned trial court framed as many as 7 issues of facts in which Issue No.1, 4 and 6 are relevant.

By deciding the Issue No.1, the trial court relied upon the Paper No. 120-C (Copy of Khatauni) produced by the plaintiff wherein it was clearly mentioned that the plaintiff is the co-owner of Plot No. 1489. The defendants also produced their evidence such as Paper No. 48-C (Notary of Bhaiyalal), Paper 49-C & 50-C (Plaint of OS No. 628 of 1995) Paper No. 51-C (WS against the OS No. 628/95), Paper No. 52-C (Affidavit of Harish Chandra) Paper No.53-Ka (Plaint of OS No. 15/98) Paper No. 54-C (Affidavit of Plaintiff in OS No. 15/98) Papper No. 55-C (Statement of OS No, 15/98), Paper No. 61-C (plaint of Suit No. 32/1995 Assistant Collector, First Class) Paper No. 66-C (Notary of Defendant Rajendra Kumar), Paper No. 71-C (Notary of Ram Kumar) Paper No. 80-C(Notary of Defendant Tejwa). The trial court categorically decided the issue no.1 and opined that under the provisions of Transfer of Property Act, the transfer of immovable property can only be done by way of registration before the concerned registrar office and in this case the sale of the land has been made through "Notary Affidavit" which is not a valid document for transfer of immovable property under the said Act nor any owner ship rights have been transferred in favour of the defendants and hence this issue was decided against the defendants and trial court declared that the plaintiff, namely, Rajesh Kumar Gupta is the owner of the land in question and the defendants forcibly constructed their houses.

While deciding issue no.6 trial court has given a clear finding that plaintiff claimed mandatory injunction for ejectment of unauthorised occupants/defendants over the land in question who have no bhumindhari rights nor any title through valid registration, whereas the plaintiff is recorded tenure holder in revenue records and it is the defendant no.8, who illegally transferred his bhumidhari rights on the basis of illegal documents and thus except civil court no other court, especially revenue court have jurisdiction to pass an order of ejectment against the unauthorised occupants by means of issuing mandatory injunction.

In Full Bench of Allahabad High Court reported in 1968 RD page no. 470, Ram Avalambh Vs. Jatashanker & Ors, it has been clarified by this court that where the plaintiff is not a recorded tenure holder and seeks relief of injunction, it can be said that he is seeking declaration of title but where he is a recorded tenure holder, it cannot be said that the suit is not within the jurisdiction of civil court for granting relief of injunction in respect of agricultural land.

The Apex Court in Civil Appeal No. 3659 of 2003, Kamla Prasad & others Vs. Sri Krishna Kant Pathak & others has observed that where the recorded tenure holder files the suit for injunction, Civil Court has jurisdiction to try the suit.

From the perusal of the record as well as judgments of both the courts, it is evident that the plaintiff is recorded in the revenue records and he has not prayed for any declaration of his title because the co-tenure holder never objected to the averment and the unauthorized occupants admitted this fact that there is no partition between them and co-tenure holder is recorded bhumidhar in revenue records as well,therefore, the suit is maintainable before the Civil Court.

In Case of Ram Pratap Dubey Vs. Harish Chandra 2016, LCD 34 , 133 it has been held:-

"15. Normally, Section 331 of U.P. Z.A. & L.R. Act is attracted in such cases where a declaration of right or status of a tenure holder is necessarily needed. A recorded tenure holder or a person having possession over the land in question being Bhoomidhar cannot be denied the relief by civil court on the ground of non-maintainability of suit in view of Section 331 of U.P. Z.A. & L.R. Act."

In the case of Ram Padarath Vs. ADJ, Sultanpur; 1989 AWC 290 the Full Bench of this court has outlined the scope of Section 331 of U.P. Z.A. & L.R. Act. It has been held that Section 331 of U.P. Z.A. & L.R. Act excludes the jurisdiction of civil court in respect of those matters for which relief can be had from the revenue court by means of a suit, application or proceedings mentioned in Schedule II to the Act. Section 331 of the U.P. Z.A. & L.R. Act alongwith explanation cannot be read so as to oust the jurisdiction of civil court if the primary relief on the same cause of action can be granted by the civil court nothwithstanding the fact that the consequential relief or ancillary relief flowing out of the main relief the grant of which also becomes necessary can be granted by the revenue court alone. The relevant paragraphs 35 and 39 on reproduction read as under :

"35. Section 331 of the U.P. Zamindari Abolition and Land Reforms Act excludes the jurisdiction of civil court in respect of those matters for which relief can be had from the revenue court by means of a suit, application or proceedings mentioned in Schedule II to the 'Act'. Section 331 of the Act, if read without Explanation, does not create any difficulty. Dispute regarding jurisdiction arises when Explanation which is an integral part of the section is interpreted and applied to the facts of a particular case. The object of Explanation to any statutory provision is to understand the Act in the light of the Explanation which ordinarily does not enlarge scope of the original section which it explains, but only makes its meaning clear beyond dispute. The Explanation thus makes the things still more explicit and exists primarily removing doubts and dispute which may crop up in its absence. Section 331 of the 'Act' along with Explanation cannot be read so as to oust the jurisdiction of civil court if the primary relief on the same cause of action can be granted by the civil court notwithstanding the fact that consequential relief or ancillary relief flowing out of the main relief the grant of which also becomes necessary can be granted by revenue court alone."

39. Section 331(1-A)of U.P. Zamindari Abolition and Land Reforms Act is analogous to Section 21 of Code of Civil Procedure Section 21 of the Code of Civil Procedure is also in similar language. Section 331 (J-A) of U.P. Zamindari Abolition and Land Reforms Act, like Section 21 Code of Civil Procedure, requires that all the three conditions must co-exist i.e., objection is raised before the trial court before framing of the issues and that there has been no failure of justice and the appellate court or revisional court cannot entertain such an objection except when it .is established that there has been failure of justice in trial of the proceedings in that court.

In the present case, the learned trial court after considering the evidence on record has come to the conclusion that the land in question is an agricultural land and the plaintiff was having a possession over the land in dispute . It was also held that the defendants have failed to prove their possession over the land in question prior to June 3, 1995 as such they are not entitled to get the benefit of Section 9 of the U.P. Z.A. & LR. Act. Since the land in question is an agricultural land,therefore, the defendants-appellant cannot get the benefit of Section 123 (2) of the U.P. Z.A. & L.R. Act.

The trial court on the basis of evidence on record has come to the conclusion that the plaintiff is owner and in possession being Bhoomidhar of the land in dispute and defendants have failed to prove their possession over the land in question prior to June 3, 1995, and as such, has come to the conclusion that the suit was not barred by the provisions under U.P. Z.A. & L.R. Act and decided the issue No.6.

Normally, Section 331 of the U.P. Z.A. & L.R. Act is attracted in such cases where a declaration of right or status of a tenure holder is necessarily needed. A recorded tenure holder or a person having possession over the land in question being Bhumidhar cannot be denied the relief by civil court on the ground of non-maintainability of suit in view of Section 331 of the U.P. Z.A. & L.R. Act.

The counsel for the appellants raised the applicability of Section 331 of U.P. Z.A. & L.R. Act before this Court while arguing the case whereas neither the said question had arisen before the trial court or before the lower appellate court. Consequently, the judgements cited by the counsel for the appellants, Chandrika Misir 1973 and Faquir Vs. Kishori 1995 (supra) are distinguishable and not applicable to the facts of the case.

This Second Appeal does not involve any substantial question of law and is concluded by concurrent of findings of fact.

This Second Appeal is dismissed under Order 41 Rule 11 C.P.C..

Order Date :- 2.7.2018

Atul k. sri.