Uttarakhand High Court
Jagir Singh & Others ... Petitioners vs Smt. Kulwant Kaur on 2 December, 2022
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Writ Petition (M/S) No. 2999 of 2022
Jagir Singh & Others ... Petitioners
Versus
Smt. Kulwant Kaur ... Respondent
Mr. Siddhartha Singh, Advocate, for the petitioners.
Mr. M.S. Tyagi, Senior Advocate, assisted by Mr.
Rajendra Tamta, Advocate for the respondent.
02.12.2022
Hon'ble Manoj Kumar Tiwari, J.
1. This writ petition is directed against the order dated 18.07.2022 passed by 1st Additional Civil Judge, Haridwar in Original Suit No. 177 of 2017 and also the judgment dated 15.02.2022 passed by 3rd Additional District Judge, Haridwar in Revision No. 48 of 2022.
2. By the impugned order, learned trial court held that the suit for permanent injunction filed by respondent before a Civil Court is not barred by Section 331 of Uttar Pradesh Zamidari Abolition and Land Reforms Act, 1950 (from hereinafter referred to as the "Z.A. & L.R. Act"). The view taken by trial court was affirmed by revisional Court.
3. The facts, on which there is no dispute, are that both plaintiff and defendants are recorded as Bhumidhar in respect of agricultural land comprised in Khasra No. 3 M situate in village Peetpur, Pargana Roorkee, District Haridwar, which they purchased from Lakhwinder Singh and Balwinder Singh, by means of separate sale deeds. Petitioners filed a suit for partition of the joint holding before Assistant Collector, Ist Class, 2 Haridwar under Section 176 of Z.A. & L.R. Act, which is pending. Respondent filed a suit for permanent prohibitory injunction in the Court of Civil Judge, Haridwar restraining the petitioners from interfering with her peaceful possession over her land purchased through registered sale deed dated 14.12.2001.
4. In the injunction suit filed by the respondent, petitioners filed written statement contending that, in view of provision contained in Section 331 of Z.A. & L.R. Act, the suit is not maintainable before a Civil Court. Issue no.4 was framed on the question of maintainability of the suit, however, the said issue was decided in favour of the plaintiff (respondent herein) and against the petitioners. Learned trial Court relied upon the judgment rendered by Full Bench of Hon'ble Allahabad High Court in the case of Ram Awalamb and others Vs. Jata Shankar and others, reported in 1968 SCC Online All 178: AIR 1969 All 526 (FB). Petitioners challenged the order passed by trial Court in revision filed under Section 115 C.P.C., which was dismissed by learned 3rd Additional District Judge, Haridwar vide judgment dated 15.10.2022. Thus, feeling aggrieved, petitioners have challenged the order passed by trial Court and also by the Revisional Court.
5. Learned counsel for the petitioners contended that both the learned Courts below have fallen in error by deciding issue no. 4 against the defendants, when admittedly plaintiff is recorded as co-owner with the defendants in respect of the land in question and the co- owner is not entitled to seek injunction against his co- owners, when partition suit is pending adjudication before the competent Revenue Court.
36. Heard learned counsel for the parties and perused the record. Section 331 of Z.A. & L.R. Act is reproduced below for ready reference:
"331. Cognizance of suits, etc. under this Act (1) Except as provided by or under this Act no court other than a court mentioned in column 4 of Schedule 11 shall, notwithstanding anything contained in the Civil Procedure Code, 1908 (V of 1908) take cognizance of any suit, application, or proceedings mentioned in column 3 thereof or of a suit, application, or proceedings bases on a cause of action in respect of which any relief could he obtained by means of any such suit or application:
Provided that where a declaration has been made under Section 143 in respect of any holding or part thereof, the provisions of Schedule 11 in so far as they relate to suits, applications or proceedings under Chapter VIII shall not apply to such holding or part thereof.
Explanation - If the cause of action is one in respect of which relief may be granted by the revenue court, it is immaterial that the relief asked for from the civil court may not be identical to that which the, revenue Court would have granted.
(I-A) Notwithstanding anything in Sub-section (1), an objection that a court mentioned in column 4 of Schedule II, or as the case may be, a civil court, which had no jurisdiction with respect to the suit, application or proceeding, exercised jurisdiction with respect thereto shall not be entertained by any appellate or revisional court unless the objection was taken in the court of first instance at the earlier, possible opportunity and m all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.
(2) Except as hereinafter provided no appeal shall lie from an order or [decree] passed under any of the proceedings mentioned in Column 3 of the Schedule aforesaid:
(3) An appeal shall lie from any decree or from an order passed under Section 47 or an order of the nature mentioned in Section 104 of the Code of Civil Procedure, 1908 (V of 1908) or in Order 43, Rule 1 of the First Schedule to that Code passed by a court mentioned in Column No. 4 of Schedule II to this Act in proceedings mentioned in Column 3 thereof to the court or authority mentioned in Column No. 5 thereof.4
(4) A second appeal shall lie on any of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 (V of 1908) from the final order or decree, passed in an appeal under sub-section (3), to the authority, if any, mentioned against it in Column 6 of the Schedule aforesaid."
7. Learned counsel for the petitioners contends that the Civil Court cannot entertain a suit in respect of agricultural land in view of express bar contained in Section 331 of Z.A. & L.R. Act read with Schedule II. Thus, he submits that the only remedy available to the respondent was to approach the forum provided in Schedule II of the said Act.
8. Z.A. & L.R. Act is a complete code in itself. The said Act, more particularly Schedule II, enumerates the suits, applications etc., cognizance whereof has to be taken by the Revenue Court.
9. A conjoint reading of Section 331 of Z.A. & L.R. Act with Schedule II reveals that suit for ejectment of Assami or a suit for ejectment of person occupying land without title has to be filed before Assistant Collector, Ist Class. Similarly, suit for declaration of rights in respect of agricultural land can only be filed before Assistant Collector, Ist Class. However, Schedule II of the Act does not provide any forum for claiming relief of permanent prohibitory injunction. In fact, the expression 'injunction' is used only in Entry 23 to Schedule II, which refers to Section 208 and provides that suit for compensation or for repair of the waste or damage can be filed before the Assistant Collector, Ist Class, however, the relief sought by the respondent does not fall within the ambit of Section 208. For ready 5 reference, Section 208 of Z.A. & L.R. Act is extracted below:
"208. Suit for compensation and repair of the waste or damage - Notwithstanding anything in Section 206, the Gaon Sabha or the land holder may, in lieu of suing for ejectment, sue-
(a) for injunction with or without compensation;
or
(b) for the repair of the waste or damage, caused to the holding."
10. A Full Bench of Hon'ble Allahabad High Court in the case of Ram Awalamb and others Vs. Jata Shankar and others, reported in 1968 SCC Online All 178, while considering the bar of jurisdiction under Section 331 of Z.A. & L.R. Act in respect of certain classes of cases relating to agricultural land, held that a Civil Court have the power to entertain the suit in respect of agricultural land, where the main relief sought by the plaintiff is that of injunction and demolition, a relief which could be granted by the Civil Court only. It was further held that where the main relief is cognizable by the Civil Court, the suit would be cognizable by the Civil Court only and the ancillary reliefs, which could be granted by the Revenue Court, may also be granted by the Civil Court. However, where the main relief is cognizable by the Revenue Court, the suit would be cognizable by the Revenue Court only and the fact that the ancillary reliefs claimed are cognizable by Civil Court would be immaterial for determining the proper forum for the suit. Relevant extract of the said judgment is reproduced below:
"80. The main point for consideration in all cases where on a definite cause of action two reliefs can be claimed is which of the two reliefs is the main relief and which relief or other reliefs are ancillary reliefs. Where from facts and circumstances of the case the relief for demolition and injunction is the main relief 6 there could be no reason why the jurisdiction of the Civil Court should be barred. On the other hand, if it could be said that the main relief, that is to say, the real and substantial relief, could not that cause of action be of possession only then the suit will definitely lie in the revenue court. In our opinion it is difficult to lay down any hard and fast rule that where the suit is brought against a trespasser the only relief which the plaintiff should claim as an effective relief is that of possession and he need not try to obtain an Injunction order and get the constructions made by the trespasser demolished. The revenue courts have not been empowered to grant the reliefs of injunction and demolition and in case the defendant refuses to take away the materials from the land in dispute after the decree for possession has been passed against him the main object of the plaintiff would be frustrated. A civil Court will, therefore, have the power to entertain the suit where the main relief sought by the plaintiff is that of injunction and demolition, a relief which could be granted by the Civil Court only. The relief of possession will be merely ancillary relief which the Civil Court could giant after having taken cognizance of the suit for injunction and demolition. We respectfully agree with the view expressed by Dayal and Seth, JJ. in the case of Mewa v. Baldeo [1966 A.L.J. 1084.] that once the suit is maintainable for the main relief in the civil court then there is no bar for the civil court to grant all possible reliefs flowing from the same cause of action. We, however, with great respect, differ from the view taken by the Division Bench in the case of Mukteshwari Prasad Tewari v. Ram Wali [1965 A.L.J. 1137.] that whenever a suit is for demolition and possession against a trespasser it must always be held that the main relief was that of possession. We are of the view that the determination of the question as to which out of the several reliefs arising from the same cause of action is the main relief will depend on the facts and circumstances of each case.
81. Further we are of the view that where, on the basis of a cause of action--
(a) the main relief is cognizable by a revenue court the suit would be cognizable by the revenue court only. The fact that the ancillary reliefs claimed are cognizable by civil court would be immaterial for determining the proper forum for the suit;
(b) the main relief is cognizable by the civil court the suit would be cognizable by the Civil Court only and the ancillary reliefs, which could be granted by the revenue court may also be granted by the civil Court.
82. We are also of the view that the above principle will apply also to a suit for injunction and demolition relating to agricultural land and brought against a 7 trespasser. With great respect to the Hon'ble Judges who took a different view it is not possible for us to arrive at the conclusion that as against trespassers the main relief must always be that of possession only. The argument that the definition of the land has slightly changed and, therefore, the old case-law on the point cannot be at all accepted as good law has not appealed to us. It has to be remembered that so far as the plaintiff is concerned he never intended to make any construction on his land and wants to get back its vacant possession. Therefore, the slight change in the definition of land (so as to exclude the land built upon) can hardly affect the question of jurisdiction."
11. Another Full Bench of Hon'ble Allahabad High Court in the case of Ram Padarath & others Vs. Second Additional District Judge, Sultanpur & others, reported in (1989) 1 AWC 290 (FB), considered the bar created by Section 331 of Z.A. & L.R. Act to the jurisdiction of Civil Court and held that 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 his 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. Relevant extract of the said judgment is reproduced below:
"40. 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 8 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.
41. In the case of void document said to have been executed by a plaintiff during his disability or by some one impersonating him or said to have been executed by his predecessor whom he succeeds, the relief of cancellation of the document is more appropriate relief for clearing the deck of title and burying deep any dispute or controversy on its basis in presenti or which may take place in future. The document after its cancellation would bear such an endorsement in Sub- Registrar's register and would be the basis for correction of any paper and revenue record including record of register. Section 31 of the Specific Relief Act itself prescribes as to who can seek relief of cancellation. A third person cannot file a suit for cancellation of a void document. If in fact no decree for cancellation was needed and real and effective relief could be granted by the revenue court only, the civil court decree would even then be valid and not void if no objection to the same was taken before the trial court. If such an objection was taken before the trial court before framing of issues and objection continued to be taken before appellate and revisional court and there has been failure of justice because of change of forum then the civil court decree could be said to be without jurisdiction."
12. Similarly, in the case of Shri Ram & another Vs. Ist Additional District Judge & others, reported in (2001) 3 SCC 24, Hon'ble Supreme Court, while considering the bar of Section 331 and Schedule II of Z.A. & L.R. Act against jurisdiction of Civil Court, held that a recorded tenure holder, having a prima facie title in his favour and being in possession, can file a suit for cancellation of sale deed before a Civil Court and he cannot be directed to file a suit for declaration in the Revenue Court. Paragraph no. 7 of the said judgment is reproduced below:
"7. On analysis of the decisions cited above, we are of the opinion that where a recorded tenure-holder having a prima facie title and in possession files suit in 9 the civil court for cancellation of sale deed having been obtained on the ground of fraud or impersonation cannot be directed to file a suit for declaration in the Revenue Court, the reason being that in such a case, prima facie, the title of the recorded tenure-holder is not under cloud. He does not require declaration of his title to the land. The position would be different where a person not being a recorded tenure-holder seeks cancellation of sale deed by filing a suit in the civil court on the ground of fraud or impersonation. There necessarily the plaintiff is required to seek a declaration of his title and, therefore, he may be directed to approach the Revenue Court, as the sale deed being void has to be ignored for giving him relief for declaration and possession."
13. Admittedly, respondent's name is recorded in the revenue records and she is not seeking declaration of her right or status as a tenure holder. A recorded tenure holder, having prima facie title in his favour, cannot be directed to approach the Revenue Court for seeking relief of injunction. The contention raised on behalf of the petitioners that a suit for permanent prohibitory injunction cannot be maintained by one co- owner against other co-owners of a property, also cannot be accepted in view of law laid down by Hon'ble Supreme Court in the case of Gangubai Bablya Chaudhary & others Vs. Sitaram Bhalchandra Sukhtankar & others, reported in AIR 1983 SC 742. In the said judgment, Hon'ble Supreme Court has held that, in appropriate cases, interim injunction can be granted in favour of one co-owner against another co- owner of the property. Para 6 of the said judgment is reproduced below:-
"6. When an interim injunction is sought, the court may have to examine whether the party seeking the assistance of the court was at any time in lawful possession of the property and if it is so established one would prima facie ask the other side contesting the suit to show how the plaintiffs were dispossessed? We pin-pointed this question and heard the submission. We refrain from discussing the evidence and recording our conclusions because evidence is still to be led and the contentions and disputes have to be 10 examined in depth and any expression of opinion by this court may prejudice one or the other party in having a fair trial and uninhibited decision. Having given the matter our anxious consideration, we are satisfied that this is not a case in which interim injunction could be refused. Similarly we are of the opinion that if respondents are allowed to put up construction by the use of the FSI for the whole of the land including the land involved in dispute, the situation may become irreversible by the time the dispute is decided and would preclude fair and just decision of the matter. If on the contrary injunction is granted as prayed for the respondents are not likely to be inconvenienced because they are in possession of about 9000 sq metres of land on which they can put up construction."
14. Learned counsel for the petitioners then submitted that, in a Partition Suit under Section 176 of Z.A. & L.R. Act, Assistant Collector can grant the relief of temporary injunction. In support of this contention, he placed reliance upon a judgment rendered by Hon'ble Allahabad High Court in the case of Smt. Urmila Devi Vs. Pooran Chand Dabar and others, reported in 1999 (1) A.W.C. Paragraph no. 7 of the said judgment, on which reliance has been placed, is extracted below:-
"7. The learned counsel for appellant contended that in a suit for division of holding, no injunction can be issued under Order XXXIX of Code of Civil Procedure in respect of grant of temporary injunction. We are not inclined to accept the said contention in view of Section 341 of the Act, which reads as follows:
"341. Application of certain Acts to the proceedings of this Act.-- Unless otherwise expressly provided by or under this Act, the provisions of the Indian Court Fees Act, 1870 (VII of 1870), the Code of Civil Procedure, 1908 (V of 1908), and the [Limitation Act, 1963 (XXXVI of 1963)], [including Section 5 thereof] shall apply to the proceedings under this Act."
As there is no express provision by or under the Act providing for exclusion of Order XXXIX of Code of Civil Procedure in respect of grant of temporary injunction during pendency of a suit, the said provision is applicable to a suit for division of holding and the Court in which suit under Section 176 of Code of Civil Procedure is pending could have given the relief to the 11 appellant which is being sought in present proceedings. At one stage, the learned counsel for appellant tried to argue that as Section 229D of the Act provides for grant of temporary injunction only in respect of suit for declaration filed under Sections 229B and 229C, the provisions of Order XXXIX of Code of Civil Procedure for temporary injunction impliedly extends excluded. We are not inclined to accept the said contention. The provision under Section 229D is only supplemental to Order XXXIX which permits grant of temporary injunction. By incorporating Section 229D, a temporary injunction can be granted in a suit for declaration though no permanent injunction is being sought which would not have been possible had the specific provision been not there. Thus, the argument that Order XXXIX of Code of Civil Procedure stands excluded in view of Section 229D of the Act is unacceptable to us."
15. In the aforesaid judgment, it was held that, in a Partition Suit filed under Section 176 of Z.A. & L.R. Act, Revenue Court can grant temporary injunction by resorting to Section 341 of Z.A. & L.R. Act. Section 341 provides that the provisions of Code of Civil Procedure, Indian Court Fees Act and Limitation Act, shall apply to the proceedings under Z.A. & L.R. Act. It was further held that Section 229-D, which enables the Revenue Court to grant temporary injunction in a declaratory suit filed under Section 229-B, is only supplemental to Order 39 C.P.C. which permits grant of temporary injunction, however, in the latter part of paragraph no. 7 of the judgment, it was held that "by incorporating Section 229-D, a temporary injunction can be granted in a suit for declaration though no permanent injunction is being sought which would not have been possible had the specific provision been not there." Thus, in a Partition Suit filed under Section 176, in the absence of any enabling provision akin to Section 229-D, the Revenue Court cannot grant temporary injunction, going by what has been observed by Hon'ble Allahabad High Court in the above extracted portion of the judgment.
1216. Both the learned Courts below have recorded concurrent finding that the suit for injunction filed by respondent is maintainable before a Civil Court. Learned counsel for the petitioners has not been able to make out any case for interference with such finding in exercise of supervisory jurisdiction under Article 227 of the Constitution. Thus, this Court does not find any reason to interfere with the order passed by trial Court, as affirmed by Revisional Court.
17. Accordingly, the writ petition fails and is dismissed. There will be no order as to costs.
(Manoj Kumar Tiwari, J.) Pr