Allahabad High Court
Jagdish Kumar And Another vs Addl. District Judge/ Special Judge ... on 6 July, 2010
Author: Rajiv Sharma
Bench: Rajiv Sharma
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Court No. 24
Writ Petition No. 831 of 2009
Jagdish Kumar and another ...Petitioner
Versus
Additional District Judge & others ...Respondents.
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Hon'ble Rajiv Sharma, J.
Heard Counsel for the parties.
Counsel for the petitioner submits that Trial Court committed a grave error in law entertaining the suit for permanent injunction and rejecting the objections filed by the petitioners against maintainability of the suit by means of the impugned order dated 28.2.2008. The Revisional Court also erred in approving the aforesaid order. Both the courts below overlooked the fact that the issue in question cannot be adjudicated by the Civil Court as it relates to agricultural land and it is only the Revenue Court which is vested with the jurisdiction to entertain and adjudicate the issue. The law is also well settled that if the land in question is agricultural, then the only remedy lies before the Revenue Court constituted under the provisions of U.P.ZA& LR Act.
To give strength to his arguments that both the courts below committed an error in entertaining the suit, has placed reliance on 2007 AIOL 116 SC; Kamla Prasad & others vs. Sri Krishna Kant Pathak and others wherein it has been observed that civil court had no jurisdiction to decide the question with regard to ownership of agricultural land and the only Court which could decide such question is Revenue Court.
On the other hand, Counsel for the contesting respondents submit that the suit filed by the answering respondents is maintainable in the Civil Court as they are recorded tenure holder and they are not seeking any declaration against the entry in Revenue Record and as such the suit for permanent injunction filed by them is maintainable. Both the courts have rightly come to the conclusion that the suit is maintainable before the Civil Court and 2 had passed equitable and justified order after considering all the facts and records of the case. Moreover, Section 143 and 144 of the U.P.ZA & LR Act have nothing to do with the present controversy because by a mutual family settlement Gata No. 136 and 137 were partitioned and the petitioner have sold out their share to the different persons and they are residing over the plots sold by the petitioners. The disputed plots are situated in abadi, nevertheless, the petitioners are estopped in view of Section 115 of the Indian Evident Act to raise such plea as they themselves have changed the nature of their land without complying with the provisions of Section 143 and 144 of the Act. It has further been submitted that apprehending that they would be evicted illegally by the petitioner, they filed a suit seeking the remedy of permanent injunction.
A copy of the plaint preferred by the answering respondents has been brought on record. The caption of the plaint is "Suit for permanent injunction". In paragraph 9 of the plaint it has been alleged that the respondents to the suit are threatening to sell the property after cutting the trees and are tying to take forceful possession of the property. Therefore, it has been prayed that a decree may be issued restraining the respondents from interfering in the peaceful possession over the property of which description has been given in the plaint. Thus, the assertion of the petitioner that the contesting respondents has sought a relief of declaration and as such it is not maintainable before the Civil Court is not correct. The Trial Court after considering the material on record, came to the conclusion that the suit is not barred by the provisions of Section 331 of the U.P.Z.A. & LR Act. The Revisional Court has observed that the property has been divided and all the persons were given possession over their respective shares but Petitioners have sold their share to other persons. The contesting respondents have filed a suit for permanent injunction in order to restrain the petitioners from interfering in peaceful possession over the property, for which the jurisdiction lies in Civil Court. This view of the Revisional Court is perfectly justified and does not suffer from any legal infirmities.
It may be noted that in Kamla Prasad & others (supra) One 3 Krishna Kant Pathak filed a suit against Kamla Prasad and others wherein the relief sought for was for cancellation of agreement to sale and the sale deed being illegal and without authority of law as they were also the co-bhumidhars of the disputed land and had right in the disputed property. Here, the controversy is altogether different as in the instant case the petitioners have filed the suit for permanent injunction on the threat and apprehending dis-possession over the property in question. Therefore, the case of Kamla Prasad and others vs. Sri Krishna Kant Pathak (supra) is of no assistance to the petitioners in view of the aforesaid facts and the decisions rendered in writ petition no. 14770 of 1986 decided on 16th February, 1987, Ram Bahadur vs. First Addl.Civil Judge, Radhey Shyam and others vs. Ist Addl. D.J.Gonda and others; 1985(3)387 In view of the above, the impression given by the petitioners that though relief was in the nature of permanent injunction incidentally to give that relief, the Court is to go to decide the title and as such it was the Revenue Court which should have the jurisdiction to try that matter and in view of Section 331 of U.P. Zamindari Abolition and Land Reforms Act the suit was barred, is misconceived and is hereby rejected.
It may be mentioned that reliefs claimed and the cause of action should be taken together to see whether the civil court has jurisdiction and in the instant case the cause of action was threat and taking forcible possession of the property which is in possession of the petitioners. The Trial Court, as averred above, decided the issue in favour of the contesting respondents which has been affirmed by the Revisional Court holding that the suit is purely a suit for injunction and is cognizable by the Civil Court.
In view of such materials and in view of concurrent findings of both the Courts below which are based on reasonings, I do not find anything to disturb the judgment as passed by the learned Trial Court and the Revisional Court. Consequently, the writ petition is dismissed.
6.7.2010 HM/-
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