Iqbal Ahmad vs Mohiyuddin
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Allahabad High Court

Iqbal Ahmad vs Mohiyuddin on 1 September, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:153209
 

 
 A.F.R. 
 
HIGH COURT OF JUDICATURE AT ALLAHABAD 
 
FIRST APPEAL No. - 641 of 2025   
 
   Iqbal Ahmad    
 
  .....Appellant(s)   
 
 Versus  
 
   Mohiyuddin    
 
  .....Respondent(s)       
 
   
 
  
 
Counsel for Appellant(s)   
 
:   
 
V.K. Agnihotri   
 
  
 
Counsel for Respondent(s)   
 
:   
 
Mohd. Arif   
 
     
 
 Court No. - 35
 
   
 
 HON'BLE SANDEEP JAIN, J.      

1. Heard learned counsel for the plaintiff-appellant and defendant-respondent.

2. Appeal is admitted.

3. The instant first appeal under Section 96 C.P.C. has been filed by the plaintiff-appellant against the judgment and decree dated 13.02.2023 passed by the Court of Additional Civil Judge (Senior Division), Nagina Bijnor in Original Suit No.801 of 2007 (Iqbal Ahmad vs. Mohiyuddin), whereby the plaintiff's suit for the relief of permanent injunction and declaration has been rejected.

4. Factual matrix is that the plaintiff filed O.S. No.801 of 2007 against the defendant in the lower court with the averments that as per khewat no.11, there is an orchard in khasra no.165, current no.165(b) area 1-13-0 in Mauja Rashidpur Satidas falling within the boundaries of Nagar Palika Parishad, Nagina, which is currently known as Mohalla Pahadi Darwaja, Nagina, in which Rahmat-ul-nisha (plaintiff's paternal grand mother), Nazar Ahmad, Umar, Saeed Ahmad (plaintiff's father), Batul, Zafar Ali, Mariyam, Akhtari, Mohd. Mehendi, Mohd. Aslam, Aamna, Kudasia, Umatul Aziza and Ruqayya were the owners in possession alongwith defendants' predecessor Zafaryab Hussain.

5. It is the case of the plaintiff that except Zafaryab Hussain, all other above named persons, had executed an oral gift (hiba) at some point, in favour of his father Saeed Ahmad, which was accepted by him, alongwith the possession of the gifted property.

6. According to the plaintiff, after the acceptance of the above oral gift (hiba), his father became owner of the 99% of the above named property, situated in khewat no.11. It is the case of the plaintiff that his father had orally gifted (hiba), the above property to him, about 25 years back and he had accepted the gift, alongwith the possession of the gifted property.

7. It is the case of the plaintiff that since some share in the disputed property belonged to the predecessor of the defendant Zafaryab Hussain, who with the connivance of the revenue officers had got mutated his name fraudulently in the revenue records, whereas, the name of his predecessors was deliberately left out, which should have been entered in the revenue records. The plaintiff has further averred that on the basis of the above illegal revenue entry, the predecessor of the defendant, as well as the defendant, had illegally tried to usurp the disputed land. The plaintiff has further averred that the Khatauni submitted by the defendant, paper no. 47C in the trial court, is fraudulent and illegal, because it has been prepared in collusion and connivance with the revenue officials, which needs to be corrected by the Court.

8. When the defendant refused to get corrected the relevant Khatauni entries, then the plaintiff has filed the suit in the lower court with the following reliefs:-

(i) That by decree of permanent injunction granted in favour of the plaintiff against the defendant, the defendant be restrained from interfering in the 99% share of the plaintiff in Khasara no. 165, current no. 165 (b) area 1?3?0 Mauja Rashidpur, Satidas.

(ii) That by decree of the court, it be declared that the Khatauni paper no.C-47, C-48 and C-49 are fraudulent and incorrect, and consequently, the revenue authorities be directed to correct the above revenue entries by recording the ownership of the plaintiff in 99% of the disputed property on the basis of oral gift (hiba) made in his favour by his predecessors.

9. It is apparent that the plaintiff has filed the suit claiming to be the owner of 99% of the disputed property on the basis of oral gift (hiba), executed in his favour, by his predecessors. It is also apparent that the plaintiff is not the recorded tenure holder, but he is seeking permanent injunction, which cannot be granted without seeking any relief of declaration of title, which can only be granted by the revenue court.

10. In the trial court, the defendant resisted the claim of the plaintiff on the ground that he is the recorded tenure holder in khewat No. 11 for the last 50 years, which conclusively proved his title in the disputed property. It was further averred by him that the plaintiff has failed to prove when the disputed property was orally gifted(hiba), in accordance with law, to his predecessors. The defendant also averred that the plaintiff has not been able to prove that the revenue entries are fraudulent.

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

(i) Whether the plaintiff is entitled to get the relief on the basis of plaint averments?

(ii) Whether the plaintiff has got any cause of action against the defendant?

(iii) Whether the suit is under valued?

(iii) Whether the court fees paid is insufficient?

(iv) Whether the plaintiff is entitled to get any relief?

12. In the trial court, the plaintiff Iqbal Ahmad examined himself as PW1, Abdul Wahab as PW-2, the defendant Mohiyuddin examined himself as DW-1. Besides the above oral evidence, documentary evidence of certified copies of khewat, khatauni etc. were also filed.

13. The trial court after examining the case on merits, recorded a specific finding that the plaintiff has failed to prove, when the disputed property was orally gifted (hiba) to his predecessors. The trial court also concluded that the defendant?s name is entered in the revenue records for sufficiently long duration, which raised a presumption of correctness of the revenue entries, which has not been rebutted by the plaintiff. The trial court also concluded that plaintiff has failed to adduce any evidence, to prove that the above revenue entries were fraudulent. The trial court also concluded that since the matter relates to correction of revenue entries, which cannot be granted by the civil court, as such, the plaintiff?s suit is barred by Section 331 of the U.P.Z.A. & L.R. Act, 1950.

14. In view of the above conclusions arrived at by the trial court, the plaintiff?s suit was dismissed vide impugned judgment and decree dated 13.02.2023, aggrieved against which the plaintiff-appellant is in appeal before this Court.

15. Learned counsel for the plaintiff-appellant submitted that since the trial court has concluded that the civil court had no jurisdiction to decide the suit, which is barred under Section 331 of the U.P.Z.A. & L.R. Act, 1950, as such, the trial court should not have examined the matter on merits and should have returned the plaint for presentation to the competent court of jurisdiction, instead of dismissing the suit on merits. Learned counsel further submitted that the appeal be allowed and the plaint be returned to the plaintiff, for presentation to the competent court of jurisdiction.

16. Learned counsel for the defendant-respondent submitted that the judgment of the trial court is perfectly legal, the jurisdiction for correction of revenue entries lies with the revenue court, as such, the plaintiff?s suit was not legally maintainable. With these submissions, it was submitted that this appeal has no merits and is liable to be dismissed.

17. I have considered the submissions made by learned counsel for the parties and perused the record.

18. It is apparent that the plaintiff has sought the relief of permanent injunction, but his name is not recorded as a tenure holder in the revenue records. The plaintiff has claimed that the defendant and his predecessors have illegally got recorded their name in the revenue records, whereas, his and his predecessors name, should have been recorded in the relevant revenue record. It is apparent that the plaintiff has to seek declaration of his title in the disputed land, from the revenue court and without getting any declaration, the relief of injunction cannot be granted to the plaintiff. It is also apparent that without correction of relevant revenue entries, the plaintiff cannot be granted any relief and the jurisdiction of correction of revenue entries lies with the revenue court, as such, the trial court has not committed any illegality in holding that the plaintiff?s suit is barred by Section 331 of the U.P.Z.A. & L.R. Act, 1950, but definitely the trial court has committed legal error in examining the case on merits. The trial court should not have examined the case on merits and simply should have decided the case on the jurisdictional issue. Since the trial court had no jurisdiction to decide the suit, as such, it was also not vested with legal jurisdiction to examine the merits of the case. To this extent, the trial court has legally erred in deciding the suit.

19. Now a question arises if the trial court had no jurisdiction to hear and decide the suit, then what was the correct legal option available to it?

20. Order 7 Rule 10 C.P.C., reads as follows:-

"10. Return of plaint- (1) Subject to the provisions of rule 10A, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.

Explanation- For the removal of doubts, it is hereby declared that a Court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint under this sub-rule.

(2) Procedure on returning plaint- On returning a plaint, the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it."

21. The Apex Court in the case of EXL Careers & Another vs. Frankfinn Aviation Services Private Limited, (2020) 12 SCC 667 ( By 3 Judges) held as under:-

"15.Modern Construction [ONGC v. Modern Construction & Co., (2014) 1 SCC 648], referred to the consistent position in law by reference to Ramdutt Ramkissen Dass v. E.D. Sassoon & Co.[ 1929 SCC OnLine PC 3 : (1928-29) 56 IA 128 : AIR 1929 PC 103] , Amar Chand Inani v. Union of India (1973)1SCC115, Hanamanthappa v. Chandrashekharappa (1997) 9 SCC 688, Harshad Chimanlal Modi [Harshad Chimanlal Modi (2) v. DLF Universal Ltd., (2006) 1 SCC 364] and after also noticing Joginder Tuli [Joginder Tuli v. S.L. Bhatia, (1997) 1 SCC 502], arrived at the conclusion as follows: (Modern Construction case , SCC p. 654, para 17)

?17. Thus, in view of the above, the law on the issue can be summarised to the effect that if the court where the suit is instituted, is of the view that it has no jurisdiction, the plaint is to be returned in view of the provisions of Order 7 Rule 10 CPC and the plaintiff can present it before the court having competent jurisdiction. In such a factual matrix, the plaintiff is entitled to exclude the period during which he prosecuted the case before the court having no jurisdiction in view of the provisions of Section 14 of the Limitation Act, and may also seek adjustment of court fee paid in that court. However, after presentation before the court of competent jurisdiction, the plaint is to be considered as a fresh plaint and the trial is to be conducted de novo even if it stood concluded before the court having no competence to try the same?

?Joginder Tuli [Joginder Tuli v. S.L. Bhatia, (1997) 1 SCC 502] was also noticed in Harshad Chimanlal Modi (2) [Harshad Chimanlal Modi (2) v. DLF Universal Ltd., (2006) 1 SCC 364] but distinguished on its own facts."

22. It is apparent from the law laid down by the Apex Court in EXL Careers & Another(supra) that where the court has no jurisdiction, then plaint has to be returned in view of the provisions of Order 7 Rule 10 CPC to enable the plaintiff to present it before the court having competent jurisdiction. It is also apparent that the court of appeal or revision may also direct, after setting aside the decree passed in a suit, the return of the plaint for presenting it before the court of competent jurisdiction. It is clear that the trial court has committed legal error in dismissing the suit for want of jurisdiction and not returning the plaint to the plaintiff, to enable him to present it before the court of competent jurisdiction.

23. In view of these facts, it will be appropriate that after setting aside the impugned judgment and decree, the plaint is returned to the plaintiff to enable him to present it before the court of competent jurisdiction.

24. Accordingly, the appeal is allowed and the impugned judgment and decree of the trial court in O.S No.801 of 2007 dated 13.02.2023, is set aside.

25. The trial court is directed to return the original plaint to the plaintiff, in accordance with law. The parties shall bear their respective costs.

(Sandeep Jain,J.)

September 1, 2025

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