Sri Ram Maurya {At:12:05 P.M.} vs Ixth Additional District Judge ...
2019 Latest Caselaw 5436 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
										AFR
 
Court No. - 24                                        [Reserved]
 
										
 
Case :- MISC. SINGLE No. - 4188 of 2005
 

 
Petitioner :- Sri Ram Maurya
 
Respondent :- Ixth Additional District Judge Faizabad And 2 Others
 
Counsel for Petitioner :- Kapil Muni Dubey
 
Counsel for Respondent :- C.S.C.,Rajendra Pratap Singh
 

 
Hon'ble Irshad Ali,J.

1. Heard Sri Kapil Muni Debey, learned counsel for the petitioner and Sri Rajendra Pratap Singh, learned counsel for the respondents.

2. Facts, in brief, is that the property in suit is landed property which belongs to the petitioner. When the petitioner was minor and during his study period, the land in question was given to opposite party no.3 for the purpose of kast on batai and as soon as the petitioner became major and completed his study, he tried to obtain the land from opposite party no.3. Opposite party no.3 entered his name in class IX and denied to leave his possession on the basis of entry made in class IX. Thereafter, the petitioner filed a suit for ejectment under Section 202 of the U.P.Z.A. & L.R. Act which was decreed, against which an appeal was filed and was dismissed. Feeling aggrieved, a writ petition was filed which was also dismissed vide judgment and order dated 28.11.1994. When the petitioner was under the preparation to file a suit for declaration, the opposite party no.3 filed a case under Section 33/39 of the Land Revenue Act for entering his name in the revenue record in the main column on the basis of judgment and order passed in the proceeding under Section 202 of the U.P.Z.A. & L.R. Act, which was rejected with the finding that the right and title had not been ascertained in the proceeding, as such no entry is required on the basis of the judgment and order passed in proceeding under Section 202 of the U.P.Z.A. & L.R. Act. Thereafter, opposite party no.3 filed regular suit under Section 229B of the U.P.Z.A.& L.R. Act for declaration of right and title. The suit was dismissed in default and after lapse of long spell of time, a restoration application was moved which was rejected on 12.8.1996. Thereafter, an appeal was preferred by the opposite parties which was allowed and remanded the matter on 13.2.1998. Thereafter, the suit was again decided ex parte and was dismissed on merit on 12.6.1998. The petitioner, being aggrieved, preferred revision bearing Revision No.25 of 1998-99 before the Board of Revenue, Allahabad which is said to be pending consideration. In view of the above facts, the right and title of the opposite party is still sub judice before the competent court and the opposite party no.3 may seek of such remedy which he wants in the revision filed before the Board of Revenue. Opposite party no.3, knowing this fact, filed a regular suit for permanent injunction before the Civil Court ignoring the proceeding pending before the competent revenue court. After service of summons, the petitioner appeared before the court below and filed his written statement taking specific plea regarding jurisdiction of entertaining the suit while pending the proceeding before the revenue court. Issue was framed as issue no.5 that whether the suit is barred under Section 331 of the U.P.Z.A.& L.R. Act and while considering the issue no.5, IInd Additional Civil Judge, Junior Division, Faizabad decided the issue holding that the suit is maintainable and is not barred by Section 331 of the U.P.Z.A. & L.R. Act on the ground that the name of the petitioner was entered into clause 9ga of the revenue record. Revision was filed against the order deciding the issue no.5 by the Civil Judge, Junior Division, wherein the order was affirmed.

3. The petitioner, being aggrieved by the both the orders, has filed the present writ petition on the ground that the right and title of opposite party no.3 is still sub-judice before the competent court of law, therefore, a remedy which he wants to obtain from the civil court, is not available to him. He next submitted that the proceeding initiated by way of suit is barred by principle of res judicata. He further submitted that opposite party no.3 has already taken this plea in the earlier proceeding which was decided against him, thus the present suit is barred by principle of estoppal.

4. His next submission is that the property in dispute is landed property and the title involves in deciding the suit on merits, thus the suit is barred by Section 331 of the U.P.Z.A. & L.R. Act. He next submitted that the law in this regard has been settled by this Court as well as by the Hon'ble Apex Court that the injunction suit involves declaration of title and the civil court has no jurisdiction to declare the title as sirdar new Bhumidhari. In support of his submission, learned counsel for the petitioner relied upon the judgment passed by this Court in the case Smt. Sumita Devi v. Arjun and others reported in 1982 ALL.L.J. 109.

5. On the other hand, learned counsel for the opposite party no.3 submitted that the trial court as well as the revisional court has committed no error in deciding the issue no.5 to the effect that the suit for grant of permanent injunction on the basis of possession of opposite party on the land is maintainable.

In support of his submission, he placed reliance upon the judgment of Hon'ble Supreme Court in the case of Rame Gowda (D) by L.Rs. v. M. Varadappa Naidu (D) by L.Rs and another reported in AIR 2004 Supreme Court 4609 paragraph 9.

6. I have considered the rival submissions advanced by learned counsel for the parties and the law-reports relied upon by learned counsel for the parties.

7. In the earlier proceedings, opposite party filed a suit under Section 2025 U.P.Z.A.& L.R. Act which was decreed on 16.5.1971, against which second appeal was filed before this Court and after second appeal was decided, the writ petition no.6678 of 1996 was filed which was decided finally by judgment and order dated 18.11.1994, wherein it has finally been decided that opposite party no.3 is in possession over the land in dispute as Assami since Zamadari Abolition and the suit has been filed for grant of permanent injunction and also to restrain the opposite party no.3 not to evict the petitioner from the land in dispute, therefore, by recording finding that on the basis of entry in the revenue record under clause 9ga, the petitioner is in possession.

8. In the case of Smt. Sumitra Devi (supra) relied upon by learned counsel for the petitioner, following has been held in paragraphs 4, 5 and 6 of the judgment:

"4. It appears that the plaintiffs had earlier filed a suit for an injunction against some other persons in respect of the some plots of land. That suit was decreed and the decree became final in that suit. It was held that the plaintiffs have become owners of the plots in dispute. It also appears that the plaintiffs filed an application for cancellation of the order of allotment granted in favour of the defendant-applicant by the Gaon Sabha. That application failed. It further appears that on the basis of the order of allotment passed by the Gaon Sabha, the defendants applied for mutation. The plaintiffs objected to it. The objection was rejected. The plaintiffs then went up in revision to the Additional Commissioner. The Additional Commissioner held that the Gaon Sabha does not appear to be the owner of the land. It had no jurisdiction to allot the land to any one. He recommended to the Board of Revenue that the allotment order be quashed. I am informed that the Board of Revenue has not yet disposed of the matter. The learned I Additional Civil Judge has also mentioned in his judgment that paper No.11C-2 is a copy of the Khasra in which Arjun, Nank and Baroo (some of the plaintiffs) are shown in possession of the land. Learned counsel for the applicant points out that in this Khasra the three of the plaintiffs have been recorded as trespassers in column 9 over two out of the seven plots in dispute.

5. The position is that the plaintiffs claim to be the sirdars. This claim has not yet been accepted either by the State or by the Gaon Sabha. Inasmuch as the revenue papers do not indicate that the plaintiffs have ever been recorded as sirdars. The copy of the Khasra filed by the plaintiffs only show that they have been recorded in possession as trespassers over two of the plots. That is no recognition by the revenue authorities of the claim of title of the plaintiffs. Insofar as the allotment of the land in favour of the defendant is concerned, the proceedings are still pending. The allotment order has not yet been quashed. So long as it is not quashed or set aside, it will remain in operation whereunder the defendant can legitimately claim som title. The plaintiffs' claim of title is neither settled nor recognised. They have to obtain a declaration of their title. Declaration of title as sirdars can be made only by the revenue courts. The civil courts have no jurisdiction to grant that kind of declaration.

6. The previous suit referred to by the Court below was a suit in the civil Court. In that case some finding about the ownership of the plaintiffs is recorded. As noticed above, the civil Court has no jurisdiction to grant a declaration as sirdar of agricultural plots of land. That finding hence cannot be used to hold that the plaintiffs have been declared to be sirdars of the land by any competent Court."

9. On its perusal, it is evident that the suit in regard to deciding the title and possession is barred by Section 331 of the U.P.Z.A. & L.R. Act. Opposite party no.3 has filed the suit for permanent injunction. In the order of the trial court while deciding the issue no.5, it has been recorded that the name of the petitioner was entered in the revenue record and on the said basis, he is in possession over the land in dispute and the suit has not been filed for declaration of title, thus it is not barred by Section 331 of the U.P.Z.A. & L.R. Act. In this view of the matter, the ratio of judgment relied upon by learned counsel for the petitioner [Smt. Sumitra Devi (supra)] is not applicable to the present facts and circumstances of the case.

10. Learned counsel for the opposite party no.3 placed reliance upon a judgment rendered by Hon'ble Apex Court in the case of Rame Gowda (supra), wherein following has been held in paragraph 9 of the judgment.

"9. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram and Ors. v. Delhi Administration, (1968)2 SCR 455, Puran Singh and Ors. v. The State of Punjab, (1975)4 SCC 518 and Ram Rattan and Ors. v. State of Uttar Pradesh, (1977) 1 SCC 188. The authorities need not be multiplied. In Munshi Ram and Ors.'s case (supra), it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stay or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the right owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and re-instate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh and Ors.'s case (supra), the Court clarified that it is difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into settled possession. The ''settled possession' must be (I) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt and concealment by the trespasser. The phrase settled possession does not carry any special charm of magic in it, nor is it a ritualistic formula which can be confined in a strait-jacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The Court laid down the following tests which may be adopted as a working rule for determine the attributes of ''settled possession':

(i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;

(ii) that the possession must be to the knowledge (either express of implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would however, be a matter to be decided on the facts and circumstances of each case.

(iii)the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and

(iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession."

11. Hon'ble Supreme Court while dealing with the matter has considered that without declaration of title and on dealing with the several decided cases that whether suit for declaration of title and injunction is filed and the title is not clear, the question of title will have to be kept upon without denying the plaintiff's case for injunction in view of fact that the plaintiff has been in possession and there is nothing to show that the plaintiff has gained possession by unfair means which is contrary to the suit. While deciding the issue for the person claiming injunction to prove his title to the suit, it would suffice if he proves that he was in lawful possession of the same and that his possession was invaded or threatened to be invaded by a person who has no title thereof, Hon'ble Supreme Court decided that the High Court has committed no error that each of two contending parties would be at liberty to plead all the relevant facts directed towards establishing their title has respectively claimed, and proving the same in duly constituted legal proceedings and clarified that the impugned judgment shall not be taken to have decided the question of title to the suit property for or against any of the contending parties.

Here in the present case, the trial court while specifically noticing that the suit is for grant of permanent injunction on the basis of entry made in the revenue record and not for deciding the title of the parties, has held that the suit is maintainable and is not barred by Section 331 of the U.P.Z.& L.R. Act.

12. In the opinion of the court, both the courts below have committed no error in law in deciding the issue no.5 in regard to maintainability of the suit. Both the courts below have recorded reason in deciding the issue no.5, therefore no interference is called for.

13. The writ petition lacks merits and is accordingly dismissed with the observation that both the parties may approach the appropriate Forum seeking declaration of their title in duly constituted legal proceeding.

14. It is however, directed that Civil Judge, Junior Divison, Raibareli shall expedite the suit no.547 of 1998 and decide the same expeditiously and preferably within a period of one year from the date of production of a certified copy of this order.

 
Order Date :- 3/7/2019
 
GK Sinha								  [Irshad Ali, J.]