Allahabad High Court
Ram Lal vs Jokhan Prasad And Others on 13 July, 2018
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 04.05.2018 Delivered on 13.07.2018 Court No. - 34 Case :- SECOND APPEAL No. - 3594 of 1964 Appellant :- Ram Lal (since deceased and substituted by legal heirs) Respondent :- Jokhan Prasad and others Counsel for Appellant :- K.D.Pandey, A.K. Pandey, H.N.Shukla, Prem Shanker Mishra, R.R. Shukla Counsel for Respondent :- B.N.Upadhyay, A.N.Pandey, Anand Kapoor Pandey, Jag Narayan, K.M. Mishra, K.M.Sinha, R.K.Misra Hon'ble Sudhir Agarwal,J.
1. This is defendant's appeal under Section 100 of Code of Civil Procedure (hereinafter referred to as "CPC") arising from judgment dated 09.05.1964 passed by Sri M. Murtuza Husain, Temporary Civil and Sessions Judge, Jaunpur in Civil Appeal No. 281 of 1963 dismissing defendant's appeal and confirming judgment of Trial Court dated 06.05.1963 passed by Sri Gauri Shankar Nath Tripathi, City Munsif, Jaunpur in Original Suit No. 532 of 1956 whereby Trial Court decreed suit of permanent injunction and restrained defendant-appellant from interfering with the possession of plaintiff-respondents in respect of property in dispute.
2. Five plaintiffs, Jay Karan, son of Mata Badal, Bodhai, son of Kamta Upadhyay, Ram Awadh, son of Shiv Balak Mishra, Thakur Prasad, son of Baijnath Dubey and Hari Shankar, son of Ram Sumer Upadhyay instituted Original Suit No. 532 of 1956 in the Court of Munsif City, Jaunpur against defendants Ram Lal and Raja Ram, sons of Mata Bhikh Upadhyay, Ram Kripal son of Ram Dular Upadhyay, Dharm Dev son of Raja Ram Upadhyay, Rajji, widow of Ram Sunder Upadhyay. During pendency of suit, Rajji, widow of Ram Sunder Upadhyay was deleted from array of parties and Sri Mata Prasad, son of Sukh Nandan Upadhyay, Ram Baran, son of Lakshmi Dutt Upadhyay and Nand Kishore, son of Ahibaran were impleaded as defendants-5, 6 and 7.
3. Plaintiffs sought permanent injunction restraining defendants from interfering with the possession of plaintiffs over property in dispute being Arazi No. 765, area 8-11, situate at Mauza Bhagwanpur and Arazi No. 349, area 9-86, situate at Mauza Fattupur, Pergana Gadhwara, District Jaunpur. They also sought a permanent injunction restraining defendants from changing nature of property in dispute, alienating the same or otherwise creating any damage to the same.
4. Plaint case set up by plaintiffs is that the aforesaid property is a 'Grove' and from 01.07.1952 it has become Bhumidhari of plaintiffs, continued to be owned by plaintiffs since their ancestors. In the aforesaid ancestral Grove, plot of plaintiffs, a number of trees are standing since the time of settlement. In plot no. 765, plaintiffs have also raised some construction and there exist houses belong to them. Plaintiff-3 cultivates 4 decimal area of plot no. 765 alongwith adjoining plots 778 and 779. Defendants have no concern with the aforesaid land but in collusion with Patwari, they have got certain false entries made in Revenue record and pursuant thereto are threatening to interfere in the possession of plaintiffs, giving rise to suit in question.
5. Defendant-1, i.e. appellant, Ram Lal, contested the suit by filing Written Statement dated 16.02.1957, denying allegations made in the Plaint and stated in Additional Pleas that plot no. 349 was Parti (barren) land of Zamindar till 02.11.1946. Defendant-1/appellant obtained it from Zamindar through a lease-deed and has acquired 'Sirdari rights' therein under U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act, No. 1 of 1951) (hereinafter referred to as "Act, 1950"). Mata Prasad and Ram Baran were also tenants in five acres area of Plot No. 349. Plot No. 765 was also Parti of Zamindar and never a Grove. Defendants used part of this plot for various purposes connected with Abadi for the last more than 20 years and also cultivate 40 decimal of this plot. Zamindar executed a lease-deed in favour of defendants on 01.06.1942 and they paid Land Revenue thereon. Defendant-1/appellant became Sirdar of area 3-40 and now after depositing ten times of Land Revenue has acquired Bhumidhari rights. Plaintiffs never had possession over disputed property at any point of time. By way of an amendment in written statement, it was clarified that in Arazi No. 349, area 4-86 and Arazi No. 765, area 0.40, defendants-1 and 2 are Sirdar and in Arazi No. 765, area 3 acres, they are Bhumidhar. Defendants-1 and 2 are in actual possession of aforesaid Arazi and also recorded 'Occupants' in Revenue record of 1356 Fasali and 1359 Fasali, therefore, in any case are Sirdar.
6. Mata Prasad Upadhyay also filed a written statement dated 08.07.1956 wherein he denied plaint averments and in Additional Pleas, contended, that plot 349, area 9-86 was owned and possessed by Zamindar. Defendant, Ram Baran, got possession of about 5-0 area of Arazi No. 349 and started cultivation which was recognized by Zamindar also and he realized Land Revenue from Mata Prasad Upadhyay. Therefore, defendant, Mata Prasad, was 'Cultivator' in possession of Arazi No. 349 area 5-0 till enforcement of Act, 1950 and thereafter he has acquired 'Sirdari rights' thereon. Plaintiffs had no possession or otherwise interest in Plot No. 349 and were never in possession for the last 12 years since defendant, Mata Prasad Upadhyay, had been in possession for the last more than 12 years.
7. Nand Kishore, defendant-7, also filed his written statement dated 02.01.1961 giving family tree as under:
Mata Badal ___________________I__________________ I I Jay Karan Ahibaran I Nand Kishore
8. He stated that Jay karan had died during pendency of suit without leaving any issue since he was unmarried and, therefore, now Nand Kishore has become owner of disputed property belong to Jay karan.
9. Trial Court formulated 14 issues. Suit came to be decided by Sri Darshan Lal Soni, Additional Munsif, Jaunpur. Trial Court found that Issues-2, 3, 4, 10, 11, 12 and 13 are in the jurisdiction of Revenue Court and, therefore, referred the same for adjudication to Revenue Court. Revenue Court returned its finding on the aforesaid issues vide order dated 09.10.1961 holding that defendants-1 and 2 are Sirdar of Plot No. 349/1, area 4.86 and plot no. 765, area 0.40. It further held that defendants-5 and 6 are Sirdar of Plot No. 349/2, area 5 acres. Trial Court decided the suit vide judgment dated 05.02.1962 and made judgment of Revenue Court as part of its judgment on Issues-2, 3, 4, 10, 11, 12 and 13. Thereafter, it proceeded to decide Issues-1 and 5 and held that Plaintiffs are Bhumidhar of Plot No. 765 area 7.71 and Defendants are not owner of any portion thereof. Findings recorded by Trial Court on Issues-1 and 5, which is relevant for the purpose of present appeal, are reproduced as under:
"These issues are interlinked and are thus taken together. The plaintiffs claimed as groveholders, i.e. bhumidhar of plot no. 349/9.86 and 765/8.11. The Revenue Court found that defendants 1 and 2 are sirdar of plot no. 349/1/4.86 and plot no. 765/1/0.40. It also found that defendants 5 and 6 are sirdars of plot no. 349/2/5.00. In view of these findings, the plaintiffs cannot be held as bhumidhars of plots no. 349/9.86 and 40 decimal area of plot no. 765 of their rights, if any, in the area shall be deemed to have been vested in State Government. The dispute therefore centers round to plot no. 765 area 7.71 acres. The defendants claimed 3 acre area of this plot as their sirdari land but were not held as such by the learned Revenue Court. The alleged ownership in the remaining portion of this plot. The plaintiffs claims as bhumidhars of this area.
Sri Bahadur Lal, Expert Survey Commissioner visited the spot. His report and maps (70A2 and 71A2) form part of this record subject to evidence. According to his report many trees exist in plot no. 765 and only 40 decimal area towards west is under cultivation. This land was never cultivated on the spot and was always recorded as parti land. The learned Commissioner reports the ages of trees as under:
"Trees 1 and 10 appear to be of the time of settlement or near about it. Trees 11 to 25 appear to 50 to 60 years in age and the rest of the trees appear to be 30 or 40 years in age.
The defendants claim possession and title in this land only from the last 16 years and as such it cannot be believed that these trees were planted by them. As regards the abadi traces towards south west corner of this plot, the learned Commissioner reports that four Cattle Troughs and disputed Dalan appeared to be quite new and recent constructions. The ghoor appeared to be a new pit in which some rubbish and cow dunk was recently thrown. The admitted Well of the defendants lies outside the disputed plot and disputed constructions in the corner of this plot are only recently built constructions. One old Dalan of the plaintiffs also exist adjacent to these recent constructions. The plaintiffs' title to this old Dalan was admitted in para-16 of the W.S. If plaintiffs had no concern with this plot, as alleged, their old Dalan could not have had existed in the same. Trees belonging to ancestors of the plaintiffs stood in this plot in the recent settlement year. The plaintiffs have adduced convincing evidence to prove their bhumidhari rights in plot no. 765/7.71. The evidence adduced on behalf of defendants does not inspire confidence and they were also not held Sirdars of 3 acres area claimed by them. They are not owners of that abadi in land in suit.
On consideration of entire evidence, oral and documentary, I find that plaintiffs are bhumidhars of plot no. 765/7.71 and that the defendants are not owners of its any portion. Issues are answered accordingly."
10. Thereafter, Issues-14 and 15 were taken together and answered in favour of plaintiffs. Answering Issue-6, Trial Court held that since plots 349, area 9.86 and 765, area 0.40 is proved to be that of defendants with Sirdari rights, therefore, to that extent suit is barred by Sections 54 and 56 of Specific Relief Act, 1877 (hereinafter referred to as "Act, 1877"), but in respect of rest of the land in dispute, suit was not barred. Issues-7 and 8 were not pressed by parties, therefore, answered in negative. Issue-9, consequently, was decided by decreeing suit in part and operative part of judgment dated 05.02.1962 of Trial Court reads as under:
"The defendants are hereby perpetually restrained from interfering, in any manner, with possession of plaintiffs over plot No. 765 area 7.71 acres and trees standing thereon as shown in map paper No. 71-A2. Suit for rest of the claim is dismissed. Cost on parties. Map (71-A2) shall form part of the decree."
11. Ram Lal, defendant-appellant, preferred Appeal No. 166 of 1962 and Nand Kishore filed cross objection in the Court of District Judge, Jaunpur.
12. Another appeal, i.e., Civil Appeal No. 195 of 1962 was filed by Sri Jokhan, Moti, Ram Achal, Bodhai, Ram Awadh, Thakur Prasad and Hari Shankar, i.e., all the plaintiffs against judgment dated 05.02.1962 in the Court of District Judge, Jaunpur. It was admitted on 06.04.1962.
13. Appeal No. 166 of 1962 and cross-objection filed by Nand Kishore came to be considered by Sri S.L. Tripathi, Additional Civil Judge, Jaunpur who vide judgment and decree dated 25.10.1962 and 09.11.1962 respectively allowed the appeal and judgment and decree of Trial Court in respect of plot no. 765 was set aside. Cross objection of Nand Kishroe was rejected. Subsequently it was noticed that another appeal No. 195 of 1962 filed by all the plaintiffs was pending, therefore, judgment dated 25.10.1962, it appears, was recalled and thereafter Civil Appeal No. 195 of 1962 as well as 166 of 1962 both came to be considered by Sri M. Murtuza Husain, Temporary Sessions Judge, Jaunpur and vide judgment dated 14.03.1963 both appeals were allowed and judgment and decree of Trial Court was set aside. Lower Appellate Court held that it was not open to Trial Court to refer certain issues to be decided by Revenue Court since all those issues could have been decided by Trial Court itself in view of Amending Act No. 37 of 1958. Operative part of judgment dated 14.03.1963 reads as under:
"Both these appeals are allowed and the judgment and decree under appeal are set aside. The record of the suit under appeal is sent back to the learned munsif with the direction to register it to its original number and to decide it afresh in accordance with law. The learned Munsif is directed not to remit issues of Sirdari and Adhivasi rights involved in the suit to the revenue court. He should give his own findings on those issues as well as on other issues framed in the case. The evidence already recorded by the learned Munsif shall be deemed to be the evidence in the case for the purpose of retrial. It will, however, be open to the parties to lead such further evidence in the case as they propose to adduce. Costs of these two appeals shall abide by the result of the suit after retrial. The suit under appeal being very old, the learned Munsif is expected to give all reasonable priority to its disposal. Parties are directed to appear in the court of the learned Munsif on 2.4.63.
This judgment will govern C.A. No. 166 of 1962 and 195 of 1962. Let a copy of this judgment be placed on the file of C.A. no. 195 of 1962."
14. After remand, Sri Gauri Shankar Nath Tripathi, City Munsif, Jaunpur decided Original Suit No. 532 of 1956 vide judgment dated 06.05.1963. While deciding the suit, it considered 14 issues earlier framed and one issue was added and following 15 issues were adjudicated:
"(1) Whether the plaintiffs are Bhumidhar of the plots in suit?
(2) Whether the defendant no. 1 is Sirdr of plot no. 349 to the extent of 4.86 acres towards the east?
(3) Whether defendant no. 5 is Sirdar of plot no. 349 area 5 acres towards the west?
(4) Whether the defendant no. 1 is Sirdar of the plot no. 765 area 40 decimals in the middle and of 3.40 decimal taken on patta as alleged?
(5) Whether the remaining portion of plot no. 765 is the abadi and Bhumidhari of defendant no. 1?
(6) Is the suit barred by Section 54 and 56 of S.R. Act?
(7) Is the suit barred by order 2 rule 2 C.P.C.?
(8) Is the suit barred by estoppel?
(9) Relief?
(10) Whether the defendants 1 and 2 were Adhivasi on the date immediately preceding the appointed date of plot no. 349/1/4.86, 765/1/.40 acre and 765/3/ 3 acres?
(11) Whether the defendant nos. 1 and 2 are Sirdars of plot nos. 349/1, 765/1 and 765/3?
(12) Whether Mata Prasad defendant no. 5 was Adhivasi of plot no. 349/2 on the date immediately preceding the appointed date?
(13) Whether Mata Prasad is Sirdar of the plot no. 349/2?
(14) Whether Thakur Prasad, Jokhan Prasad, Moti Lal and Ram Bachan Plaintiffs or Nand Kishore are heir of Jai Karan deceased?"
(15) Whether the deed of will dated 26.6.44 is valid?
15. It considered issues 1 to 5 and 10 to 13 together. Except Issue-1, it returned all other issues in negative but Issue-1 was answered in affirmance.
16. Thereafter while answering Issue-14, it held that Mata Prasad has no concern with the disputed plot and Will dated 26.06.1944 is valid. Answering Issues-6 to 8, it has held that suit is not barred by Sections 54 and 56 of Specific Relief Act or by estoppel. Issue-7 was not pressed before it. Consequently, while answering Issue-9, Trial Court vide judgment dated 06.05.1963 has decreed the suit and operative part of judgment reads as under:
"The suit of the plaintiffs is decreed with cost. The defendants are permanently restrained from interfering with the possession of the plaintiffs. Map 71A2 shall form part of the decree."
17. Two appeals were filed, one Civil Appeal No. 281 of 1963 by Ram Lal and another Civil Appeal No. 296 of 1963 by Nand Kishore. One cross-objection was also filed by Mata Prasad in Civil Appeal No. 281 of 1963. Both the appeals and cross objection were dismissed by Sri M. Murtuza Husain, Temporary Civil Judge, Jaunpur vide judgment and decree dated 09.05.1964 and 27.05.1964 respectively.
18. Both the Courts below have relied on the fact that defendants specifically pleaded that land in dispute is not 'Grove' while Satya Narain, DW-1, himself supported the case of plaintiffs that 10, 15 and 50 years old trees are standing on the disputed land of Bhagwanpur. Regarding Fattupur, DW-1 said that only 10 or 15 biswa land was agricultural and rest was uncultivated. Thus, Courts below found that defendant-witness largely supported the case set up by plaintiffs and in any case contradicted own pleadings of defendants. The statement of Mohammad Qadir, another defendant witness was not found reliable. Courts below also relied on three Commissions' report which clearly indicated that both the plots in dispute were having 'Groves' since a large number of planted and fruits bearing trees, some of which were very old were standing. Lower Appellate Court also referred to the fact that there are large number of documents on record demonstrating that disputed plots are 'Groves' of plaintiffs and their ancestors and since plaintiffs were found in possession of disputed property, therefore, Trial Court has rightly decreed the suit for permanent injunction.
19. Against the above judgment and decree, this Second Appeal was heard and decided by this Court vide judgment dated 05.12.1979 and matter was remanded. Thereafter a Review Application No. 155 of 1980 was filed stating that respondents 3, 5, 7, 8, 11, 12, 13 had already expired and their heirs were not substituted, hence appeal had abated but without noticing this fact, appeal was decided meaning thereby it was decided against dead persons. This Review Application was allowed vide judgment dated 24.05.1984 passed by Hon'ble A. Banerji, J. and judgment dated 05.12.1979 passed by this Court was reviewed and set aside.
20. In the meantime, it further appears that pursuant to judgment dated 05.12.1979, since matter was remanded, it was seized with Court below again. Since consolidation proceeding in the meantime had commenced, by order dated 16.07.1981 passed in Civil Appeal No. 281 of 1963, Lower Appellate Court held that appeal has abated under Section 5 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as "Act, 1953"). Again a Review Application No. 82 of 1981 was filed in the Court of Civil Judge, Jaunpur where it was also noticed that judgment dated 05.12.1979 was already reviewed by High Court, hence Sri Dheerendra Pal Varshni, Civil Judge, Jaunpur vide judgment dated 28.05.1982 allowed Review Application and the order dated 16.07.1981 was recalled.
21. These facts I have noticed to place entire factual retrospect of the matter straight.
22. I have heard Sri H.N. Shukla, Advocate, for appellant and Sri B.N. Upadhyay, Advocate, for respondents.
23. This is an appeal filed in 1964 and Section 100 CPC, as it then was, reads as under:
"100. (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court on any of the following grounds, namely:
(a) the decision being contrary to law or to some usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.
(2) An appeal may lie under this Section from an appellate decree passed ex parte."
24. Therefore, scope of examination by this Court in an appeal under Section 100 CPC in 1964 is, whether:
(1) decision of Court below is contrary to law or to some usage having force of law;
(2) a material issue of law or usage having force of law has not been determined by Court below;
(3) there is substantial error or defect in the procedure provided in the Code or by any other law which has caused error or defect in decision upon the merits;
(4) the decision is ex-parte.
25. The questions raised by learned counsel for appellant for adjudication of this appeal are:
(1) The judgment of Court below is not in conformity with the Order 41 Rule 31 CPC inasmuch a number of issues have been decided together.
(2) Since in the Khatauni, defendant-appellant was recorded, Trial Court could not have passed a judgment contrary to aforesaid factum of Revenue record and no injunction could have been granted.
(3) Since land was agricultural, plaintiffs-respondents could not have declared Bhumidhar of disputed land as this could have been done only by Revenue Court in view of Section 331 of Act, 1950.
(4) Burden to prove their case was upon plaintiffs while Court below has shifted burden on defendants and, therefore, has recorded finding illegally and this is also contrary to Section 101 of Evidence Act, 1872 (hereinafter referred to as "Act, 1872").
26. Learned counsel for respondents, on the contrary, submitted that since plaintiffs-respondents were continuously in possession of disputed land since the time of their ancestors, they have rightly been allowed relief of permanent injunction by Court below and suit for injunction was maintainable since Revenue Court could not have granted injunction, hence this appeal deserves to be dismissed.
27. The questions raised by learned counsel for appellant basically raise the question whether suit in question was maintainable in Civil Court or looking to the pleadings and cause of action, it was entertainable only by Revenue Court and, therefore, judgments in question are wholly without jurisdiction.
28. The second submission is that Court below has ignored oral deposition and recorded its findings mainly on the documentary evidence, therefore, has erred in law and it is against the law.
29. I proceed to examine both these aspects in detail.
30. The first question is whether suit in question was maintainable in Civil Court or cognizable by Revenue Court, hence judgment of Courts below are wholly without jurisdiction.
31. Plaintiffs admittedly pleaded that land in dispute is 'Grove' since the time of their ancestors and the then Zamindar also recognized plaintiffs' ancestors as holders of 'Grove' in respect of disputed land. The averments contained in para 1 to 6 are reproduced as under:
^^nQk 1& ;g fd vkjkth ua0 765@ 8&11 okdk ekStk Hkxokuiqj o vkjkth ua0 349@ 9&86 okdk ekStk QRrwiqj ijxuk xM+okjk ftyk tkSuiqj dh uob;r ckx gS vkSj rkjh[k 1 tqykbZ lu~ 1952 bZ0 ls mldh uob;r Hkwfe/kkjh gks xbZ gSA^^ "Para 1. That the nature of plot no. 765/8-11 situate at village Bhagwanpur and plot no. 349/9-86 situate at village Fattupur, Pergana Garwara, District Jaunpur, is Grove, and w.e.f. 1st July, 1952, the nature of the same has become Bhumidhari."
^^nQk 2&;g fd ;g ckxkr etdwj ekS:lh o eqLrjdk fefYd;r eqn~nb;ku dh gS tks fd eqn~nb;ku ds [kkUnku esa muds ewfjlku ds tekus ls pyh tkrh gSA^^ "Para 2. That the aforesaid Groves are under the joint property of the plaintiffs-in succession, which has been continuing with the family of the plaintiffs since the times of their ancestors."
^^nQk 3& ;g fd ewfjlku eqn~nb;ku] ekrk Hkh[k o pkfudk o folqu o esM+k o rqylh jke mik/;k; o dqcsj o iyVu nqcs ds nj[rku eq[rfyQ volke ds ckxkr etdwj esa muds tekus ds dk;e gSA tks fd cUnkscLrh nj[rku gS vkSj ckngw ewfjlku eqn~nb;ku o eqn~nb;ku esa cgqr ls nj[rku ckxkr etdwj es eq[rfyQ teeuk es ulc fd;k gS vkSj ckx ua- 765 esa eqn~nb;ku ds edkukr Hkh gSaA^^ "Para 3. That the trees in the Groves have had been existing since the times of ancestors of plaintiffs, Mata Bhikh, Chanika, Visun, Medha, Tulsiram Upadhyay, Kuber and Paltan Dubey, and those are the trees mentioned in settlement and after the ancestors of plaintiffs, many trees in Grove are shown in main settlements and there exist houses of plaintiffs too in Grove No. 765."
^^nQk 4& ;g fd eqn~nb;ku gj nks ckxkr eq~fQlyk tSy vthZ ukfy'k e; tqfeyk nj[krku o tehu okdk ckxkr~ etdwj ds ekfyd o dkfct o Hkwfe/kj gS vkSj ,d tqtks jdck -40 tkfuc if'pe feutqfeyk vkjkth ua0 765 ds jkevo/k eqnbZ ua 3 dqN tekuk ls viuh vkjkth 'kjgeksvb;u ua0 778 o 779 esa 'kkfey djds dk'r fd;k gS ofd;k dqy jdck uEcjku etdwj c'kDy ckx gS ftldk dksbZ tqt dHkh u rksM+k x;k u dk'r gqvkA "Para 4. That the plaintiffs are owners-in-possession and Bhumidhar of the aforesaid Groves detailed in the suit including all the trees and land thereat. Plaintiff no. 3 Ram Awadh has included an area measuring 40 situate towards west and a part of plot no. 765, for some time, to his property no. 778 and 779, and has cultivated the same. Remaining area of the aforesaid property in fact is in the shape of a Grove any part of which was never taken away nor cultivated."
nQk 5& ;g fd tehunkj nsgk us ewfjlku eqn~nb;ku o eqn~nb;ku dks cjkcj vius Qsy o vius rdZ Qsy ls vkjkth futkbZ dks ckxnkj rlyhe fd;k gSA^^ "Para 5. That the Zamindar Deha, by his act and conduct, admitted plaintiffs' ancestors and the plaintiffs to be owners of disputed plot in the nature of Grove."
^^nQk 6& ;g fd eqn~nkysgqe eqdnek gktk dks ckxkr~ futkbZ e; tehu ;k nj[rku ckxkr~ futkbZ esa dksbZ gd u gkfly Fkk vkSj u gS vkSj u mudk dHkh fdlh tqt ij dCtk Fkk u gSA** "Para 6. That the defendants of the instant case had no right over the Grove in question or the land or trees therein, nor have any right thereon, nor they had or have possession over any part of it." (English Translation by Court)
32. These facts were disputed by defendant-appellant, Ram Lal, in its written statement. He pleaded that Arazi No. 349, area 9-46 was parti. It was in the possession of Smt. Nalini Kumri, the then Zamindar who granted lease vide lease deed dated 03.11.1946 to defendants 1 and 2 on area 4-86. Since then land in dispute is in cultivation of defendants. Remaining 5 acres land of Arazi No. 349 was leased out by Zamindar to Mata Prasad, Ram Baran Upadhyay. He specifically pleaded in para 11 that Arazi No. 349 area 9-46 was never a 'Grove' and, in fact, it is in the nature of Bhumidhari of defendants.
33. Similarly, in respect of Arazi No. 765, he (Appellant) has pleaded in para 13 of written statement that this land is Parti, in possession of Zamindar and there were only 3 trees standing which have already fallen and the said land has no connection with plaintiffs at all. On the aforesaid Arazi, there is construction of defendants and some part is being cultivated by defendants. Vide lease-deed dated 01.06.1942, 0-40 decimal land was taken from Zamindar by defendants on lease and after paying ten times land revenue, after abolition of Zamindari, defendants have become Bhumidhar. There was no 'Grove' of plaintiffs on Arazi No. 765, area 8-11. This is a specific pleading in Para 16 of written statement of defendant-appellant, which reads as under:
^^nQk 16- ua0 765@ 8-11 dHkh eqn~nb;ku [okg ewfjl eqn~nb;ku dk ckx ugha Fkk vkSj u dHkh cUnkscLr ls vkt rd dksbZ nj[r ulc fd;k vkSj u budk dksbZ edku gS vycRrk uEcj etdwj ds dksus ij ,d NksVk lk nkyku cks/kbZ mik/;k; dk gS exj bldk otg ls eqn~nbZ;ku dks uEcj futkbZ esa dksbZ gd gkfly ugha gksrkA** "Para 16. The property number 765/8-11 was never Grove of plaintiffs or their ancestors, nor any tree or house was found since the time of settlement till date. However, at the corner of the property, there is a small inner verandah (Dalan) of Bodhai Upadhyay, but on this count the plaintiffs do not get any right in the disputed (plot) number." (English Translation by Court)
34. Mata Prasad Upadhyay had also pleaded in para-4 and 7 of his written statement that Plot No. 349 was never a 'Grove' of plaintiffs or their ancestors. The said paragraphs read as under:
^^4- ;g fd vkjkth futkbZ ua- 349@9-86 okdk ekStk Qr~rwiqj dh lkfcd uob;r irhZ dnhe Fkh ftl ij dCtk n[ky ekfydkuk tehankj dk Fkk exj ge eqn~nysg us feUtqfeyk vkjkth ua- 349 ds cjdck 5-0 ij vjlk gqvk fd xkflokuk dCtk djds dk'r djus yxs vkSj okgwn tehankj bgks ys ge eqn~nkysg dh vkjkth ua- 349@2@ 5-0 dk dk'rdkj rLyhe fd;k vkSj ge eqn~nkysg ls yxku olwy djrk jgk pqukups ge eqn~nkysg vkjkth ua0 349@2@ 5-0 ds dk'rdkj ekS:lh cvnk; yxku tehankj dCy uQkt tehnkjh mUewyu dkuwu jgsA vkSj okn uQkt tehnkjh mUewyu dkuwu mlds lhjnkj gks x;s gSa vkSj ekyxqtkjh ljdkjh vnk djrs gSaA^^ "Para 4. That the previous nature of disputed Plot no. 349/9-86 situated at Village Fattupur was Parti Kadeem since ancient times; on which the possession, occupation and ownership was of the Zamindar but we, the defendants, after taking possession over 5-0 acre of property no. 349 started cultivation over there since long time, and the Zamindar Iho accepted the defendants to be cultivators of property no. 349/2, 5.0 and kept on recovering rent from us. We the defendants have been the cultivators by virtue of succession over property no. 349/2, 5-0 on payment of rent to Zamindar prior to enforcement of Zamindari Abolition Act; and after Zamindari Abolition Act, became Sirdar of the said property, and have been paying land rent to the government."
^^7- ua- 349@9-86 ls eqn~nb;ku [okg ewfjlku eqn~nb;ku ls dksbZ okLrk o ljksdkj ugha Fkk vkSj u bl oDr gS vkSj u mudk o muds ewfjlku dk dHkh dksbZ nj[r Fkk vkSj u uEcj etdwj dhs uoS;r dHkh ckx Fkh u bl oDr gS c;ku eqn~n;ku fd mldh uoS;r ckx gS ljksgh >wB gSA** "Para 7. The plaintiffs and their ancestors had no connection with property no. 349/9-86 nor have they any connection at present; nor had they or their ancestors any tree over there; nor ever the nature of the said property was of Grove; nor is it now. The statements of the plaintiffs that the nature of the said property is Grove is absolutely false."
(English Translation by Court)
35. It is in the context of above pleadings, matter has been examined by Courts below. Exhibit-8 is Khasra of 1287 Fasali (1877-78 A.D.) relating to Plot No. 765 of Bhagwanpur and Exhibit-9 is Khasra of 1287 Fasali (1877-78 A.D.) of plot no. 349/2 and both show that there existed fruits bearing trees and possessed by plaintiff's ancestors and this was mentioned in remark column. Khasra of 1309 Fasali (1899-1900 A.D.) is also Exhibit showing in Remark column that trees standing thereon were possessed by plaintiffs' ancestors. Courts below have also referred to Commission' report for arriving at the conclusion that land in dispute is 'Grove' and in possession of plaintiffs-respondents. However, I find that two documents, i.e., Khasra of 1287 Fasali (1877-78 A.D.) and 1309 Fasali (1899-1900 A.D.) are of very old period, but subsequent Revenue record show otherwise and that support the case of appellant but those revenue record has been disbelieved and ignored by Courts below on the ground that same are unreliable. The findings recorded by Courts below is reproduced as under:
"It is a definite case of the defendants including defendant no. 7 Nand Kishore that the disputed land was never Grove. It is cultivated. Ex. A24 and A45 are the pattas for this land. Defendant no. 6 Ram Baran stated in the Revenue case that the disputed land is always cultivated and it is not a grove. He has further stated that there is no tree in the disputed land. Again he stated that excepting a few Dhak trees, there is no other three in the disputed land. Although there was a half hearted attempt to put into the mouth of certain witnesses that the trees were planted by defendants but that it not open to defendants, as the case of the grove was not pleaded in WS. It was observed by their Lordships of the Privy Council in Ruling reported in 1930 PC 57 Atta Mohammad Vs. Emperor as follows:
"Where a claim has been never made in the defence presented, no amount of evidence can be looked into upon a plea which was never put forward."
Thus the case of the defendants shall be judged for their basic stand in the WS. Apart from the evidence of the plaintiffs, even DW-1, Satya Narain, admitted on 24.1.62 in the Civil Court that excepting a small portion which is cultivated, the rest of the disputed land is not cultivated. It is grove. The land is uneven. He has further admitted that this is the nature of the land in both the villages. It was observed by Their Lordships of the Supreme Court in a case reported in AIR 1960 SC 100 Narayan Vs. Gopal as follows:
"Admission is the best evidence which the opposing party can adduce and though not decisive is conclusive of the matter, unless successfully withdrawn are proved erroneous."
Although this admission merely is sufficient to cut at the root of the defence case but there is also other evidence on the record which is helpful in denying the case set up by the defence and proving the case set up by the plaintiffs. PW-1 Ram Anuj Pratap Singh has proved the receipts in favour of the plaintiffs. PW-2, Jagat Narain has deposed that the land in suit was never cultivated. It has all along been a grove. Thakur Prasad plaintiff was examined in the Revenue Court. He too has deposed that the disputed land was never cultivated.
In this case three Commissions were issued. The earliest report is dated 19.11.56 by Sri S.D. Singh. The relevant portion of the report is incorporated as under:
"The plot no. 765/8-11 is completely barren with Mahuwa, Neem and Mango trees. Two Mahuwa trees seem to be of settlement period. The age of other trees ranges from 40 to 60 years. The plot is in the shape of a grove, neither it was ever cultivated nor is cultivated at present. A portion of the plot towards the west measuring 10 biswas is under cultivation and crop was standing there. .... The number of trees in the abovementioned plot is 48 including Mahuwa, Neem and Mango. The plot no. 349/9-86 in village Fattupur has also been never cultivated. The surface is very irregular. There are 43 Mahuwa, 3 Mango, 2 Jamun and 3 Neem trees. Apart from these trees hundreds of scattered self grown Dhak, Chilbil, Perewa and Sihore trees are found. The trees of this plot are also considerably old. This plot is also in the shape of grove. There is a map attached to this report, which also shows that the entire land in dispute has been covered with trees. This report was made within a month of the institution of the suit. The second report is dated 15-1-58 given by Sri Bahadur Lal Vakil Commissioner. He has given a still more forceful report. His words regarding plot no. 349 are very important and I therefore incorporate it as under:
"The plot in dispute is almost a Jungle containing some bruit bearing trees. The rest of the land ... is all full of wild bermis, Dhak Plants, Babul tress and other self grown trees." He has further reported that there are stray plants of Bajri, urd, Moths etc. but that is not sufficient to constitute it a cultivated land. Sri Bahadur Lal is a senior Commissioner and is above board. His report carries a considerable weight. He has opined regarding the age of the trees which shows that they are of a very long time. The third report is dated 30-5-59 by Sri Prabhunath Commissioner. He too has given a similar report. In view of these consistent reports, it is abundantly clear that the disputed land is a grove and is not cultivated.
Since these plots are not cultivated and the trees are recorded in the names of the plaintiff's ancestors in the settlement papers, therefore the natural inference would be that the plaintiffs would have affiliation to it. The plots in dispute are of two villages, Bhagwanpur and Fattupur. Plot no. 365 area 8-11 acres is of village Bhagwanpur and plot no. 349 area 8-96 is of village Fattupur. I shall take the case of Bhagwanpur village first and discuss the relevant papers. Ex. 9 is Khasra for this last settlement in which the general character of the land is Bhita and Usar. But certain trees in the name of the plaintiff's ancestors are recorded. Ex. 44 is Khas. for 1308F. A5 is Khasra for 1309 F. in which the land is recorded as 'Usar'. Trees are not mentioned in it. Ex. A5 Khas. 1356 F. A8 Khas. 1359 F. A9 Khasra 1309 F. A10 Khasra 1363 and 1364 F. Ex. 11 Khas 1363 F. and A42 + 15 Khas. 1365, A43 Khas. 1366 to 1368 F. A6 Khas. 1356 F. Ex. 15 Khas. 1366 F. Ex. A13 Khas. F and other papers which record the land as cultivated are on the face of it wrong and unreliable as the land was never cultivated. The same can be safely ignored.
Similar papers like these relating to village Fattupur A 39 Khas. 1352 to 1363 F., A40 Khas. 1365 F. A41 Khas 1366 to 1368, A42 Khas for 1365, A43 Khas 1366 F. A13 Khat. 1309 F. Ex. 8 and 14 Khas. 1309 F, A1 Khas, 1360 F. A2 Khas 1363 F. A15 Khas 1356 F, A16 Khas. 1359 F., A17 Khas 1359 F., A18 Khasra 1363 to 1364 F. A.19 Khas, 1363 F. which record the disputed land as cultivated cannot be relied upon. Ex. A22, 23, A32 to A38, A40 are the rent receipts."
36. The above findings show that with regard to the nature of land, whether it is 'cultivated' or 'Grove', Courts below have recorded findings in favour of plaintiff-respondents that disputed land, except a small part, are 'Grove' and not cultivated land, but the above findings are founded on the ground that subsequent khasra entries of a long duration, which is just before the enactment of Act, 1950 and subsequent thereto, are otherwise and Courts below have ignored the same by observing that the same are ex-facie wrong, unreliable and can be ignored. Question is whether revenue entries which were in existence on the date on which suite was filed in 1956 that status could have been ignored by Civil Court and whether Courts below have jurisdiction to nullify existing revenue entries observing that the same are unreliable. My answer is "No".
37. The reason being that Revenue record referred to by Courts below in favour of plaintiff-respondents relate to 1287 Fasali (1877-78 A.D.) and 1309 Fasali (1899-1900 A.D.) while it is also evident from the aforesaid findings that in Khasra of period just prior to enactment of Act, 1950 and thereafter, the existing entries show that land in dispute is cultivated. In respect of village Bhagwanpur, Trial Court has referred to Khasra of 1356 Fasali (1946-47 A.D.), 1359 Fasali (1949-50 A.D.), 1363 Fasali (1953-54 A.D.), 1364 Fasali (1954-55 A.D.), 1365 Fasali (1955-56 A.D.), 1366 Fasali (1956-57 A.D.), 1367 Fasali (1957-58 A.D.), and 1368 Fasali (1958-59 A.D.) and then said that Revenue record are wrong, unreliable and can be ignored.
38. Similarly in respect of village Fattupur, it has referred to Revenue entries of Khasra of Fasali 1352 to 1363 (from 1942-43 to 1953-54 A.D.), 1365 to 1368 Fasali (from 1955-56 to 1958-59 A.D.) and 1360 fasali (1950-51 A.D.) etc. and admitted that therein disputed land is shown as cultivated, but then has ignored the same by observing that same cannot be relied upon. This approach and finding of Trial Court has been affirmed by Lower Appellate Court. In effect, both Courts below have virtually nullified Revenue entries of disputed land for the period just preceding enactment of Act, 1950 and thereafter.
39. In order to seek a declaration against entries in Revenue record, remedy was in Revenue Court only and not in Civil Court. A Civil Court could not have declared entries in Revenue record wrong, illegal or unreliable and such a suit is clearly barred by Section 331 of Act, 1950.
40. Section 331 (1) ex facie provides that "no Court other than a court mentioned in Column 4 Schedule II shall take cognizance of any suit, application, or proceedings mentioned in Column 3 thereof, notwithstanding anything contained in Civil Procedure Code or of a suit, application or proceedings based on a cause of action in respect of which any relief can be obtained by means of any suit or such application in such Court. Therefore, first of all, this Court has to refer to Column 3, Schedule II to find out, which kinds of suits, applications or proceedings can be filed in the Court mentioned in Column-IV which are in fact all Revenue Courts. A suit which can be filed under Section 229-B of 1950 Act refers to item 34 of which Column-1 to 4 reads as under:
34229, 229-B 229-C Suit for declaration of rights Assistant Collector Ist Class
41. Now, a suit for declaration of rights under 1950 Act, if filed, the same would lie before the Court of Assistant Collector, Ist Class.
42. This Court has to examine whether the suit in question can be said to be of such kind or not. In order to find out whether Civil Court jurisdiction is barred or not, the Court cannot resolve the dispute merely by perusing the relief claimed in the plaint but would have to consider the nature of allegations constituting cause of action as also other attending circumstances to find out the true and real nature of relief.
43. A Full Bench of this Court in Ram Padarath and others Vs. Second Addl. District Judge, Sultanpur 1989 RD 21 in para 42 and 49 said as under:
"42. 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 winch may crop up in its absence. Section 331 of the 'Act' alone 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 the 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."
"49. We are of the view that the case of Indra Dev vs. Smt. Ram Pyari 1982 All L J 1308 has been correctly decided and the said decision requires no consideration, while the Division bench case, Dr. Ayodhya Prasad vs. Gangotri Prasad 1981 All WC 469 is regarding the jurisdiction of consolidation authorities, but so far as it holds that suit in respect of void document will lie in the revenue court it does not lay down a good law. Suit or action for cancellation of void document will generally lie in the civil court and a party cannot be deprived of his right getting this relief permissible under law except when a declaration of right or status as a tenure holder is necessarily needed in which event relief for cancellation will be surpluses and redundant. A recorded tenure holder having prima facie title in his favour can hardly be directed to approach the revenue court in respect of seeking relief for cancellation of a void document which made him to approach the court of law and in such case he can also claim ancillary relief even though the same can be granted by the revenue court."
44. Affirming the Full Bench judgment, Supreme Court in Shri Ram & Anr. Vs. Ist Additional District Judge and others (2001) 3 SCC 24 referring to its earlier judgment in Bismillah Vs. Janeshwar Prasad (1990) 1 SCC 207, wherein Full Bench judgment in Ram Padarath (supra) was affirmed, observed:
"Suit or action for cancellation of void document will generally lie in the civil court and a party cannot be deprived of his right getting this relief permissible under law except when a declaration of right or status and a tenure holder is necessarily needed in which event relief for cancellation will be surpluses and redundant. A recorded tenure holder having prima facie title in his favour can hardly be directed to approach the revenue court in respect of seeking relief for cancellation of a void document which made him to approach the court of law and in such case he can also claim ancillary relief even though the same can be granted by the revenue court."
45. In Gorakh Nath Dube Vs. Hari Narain Singh and others (1973) 2 SCC 535, Court observed that if a person, who is a recorded tenure holder, comes to claim his title, he should approach Revenue Court for declaration and consequential relief, but when a recorded tenure holder having a prima facie title and possession comes to the Court, then an injunction suit in Civil Court would be maintainable.
46. Learned counsel for appellant has relied on a number of authorities to argue that when the disputed land is an agricultural land and relief can be granted by Revenue Court, Suit in Civil Court is barred by virtue of Section 331 of Act, 1950 and further that injunction could not have been granted against admitted owner and the aforesaid authorities are Hanuman Thappa Vs. Muninarayanappa 1997 (88) RD 41 (SC), Haseen Yusuf Khan Vs. Syed Ashiq Ali 1978 ACJ 484, Ram Padarath Vs. Second Addl. District Judge, Sultanpur 1989 RD 21, Kunwar Satya Van Singh and another Vs. Nathuni Misir and others 1978 ACJ 266, Smt. Brijbala Vs. Additional District Judge, Court No. 5, Hathras 2013 (118) RD 819, Babu Ram Vs. District Judge, Varanasi 2013 (118) RD 270, Phool Sakhi Vs. Ram Sakal Singh AIR 2006 All 176, Sopan Sukhdeo Sable Vs. Assistant Charity Commissioner 2004 (3) SCC 137, State Bank of India Vs. Om Narain Agarwal AIR 2011 All. 169 and judgment dated 14.02.2008 passed by this Court in Second Appeal No. 112 of 2008 (Harihar Kripal Vs. Ganga Prasad and others).
47. In the present case, whether defendant-appellant is an admitted owner of land in dispute or not may not require a finding since there is a dispute between parties on this aspect but suffice is to mention that in Revenue record of a long period including the one existing when suit was filed, land in dispute was mentioned "cultivated land" and prima facie claim of defendant-appellant stood supported by said entries. Plaintiffs-respondents tried to escape from these record of Revenue by pleading that those entries have been got prepared with collusion of Lekhpal but fact remains that a number of entries in Revenue record just preceding enactment of Act, 1950 and thereafter as also existing on the date of filing suit were in favour of defendant-appellant, the said entries neither could have been declared wrong or incorrect by Civil Court nor by ignoring the same, plaintiff-respondents could have been declared Bhumidhar. Therefore, I have no hesitation in holding that suit in question, in view of above facts and discussions, was clearly barred in Civil Court and remedy was available only in Revenue Court. Hence, Question-1 is answered in favour of appellant and against the plaintiffs-respondents.
48. The above discussion also leaves no option to this Court but to answer second question in favour of appellant for the reason that when Revenue entries were in favour of defendant-appellant; the burden to prove that they were entered illegally, in collusion of Lekhpal, and there was no appropriate order of competent Revenue Court to make such entries, was on plaintiffs-respondents, and in absence of any discharge of burden on the part of plaintiff-respondents, issue otherwise could not have been decided.
49. Before parting, I may place on record that learned counsels for parties have not disputed that had the land been a 'Grove' on the date of vesting, i.e., 01.07.1952 under Act, 1950, it would have become a Bhumidhari of Intermediary by virtue of Section 18 of Act, 1950, but that question is not to be seen at this stage nor could have been seen by Courts below for the reason that Revenue entries in Khasras were otherwise and in favour of defendant-appellant showing that disputed land was a cultivated land. Revenue entries could not have been examined and declared wrong, illegal or incorrect by Civil Court since such remedy was in the domain of Revenue Court.
50. The appeal is, accordingly, allowed. Judgment dated 06.05.1963 passed by Trial Court in Original Suit No. 532 of 1956 and dated 09.05.1964 passed in Civil Appeal No. 281 of 1963 are hereby set aside. Plaintiffs-respondents' Original Suit No. 532 of 1956 is dismissed as not maintainable in Civil Court.
51. It goes without saying that this judgment shall not be construed as depriving plaintiff-respondents from availing remedy in appropriate Forum in accordance with law.
Dt. 13.07.2018 PS