Allahabad High Court
Jalaluddin vs Jahid Ali And Others on 20 May, 2022
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 19 Case :- WRIT - C No. - 1000275 of 2002 Petitioner :- Jalaluddin Respondent :- Jahid Ali And Others Counsel for Petitioner :- S.P. Shukla,M.A.Khan Hon'ble Pankaj Bhatia,J.
Heard learned counsel for the petitioner and learned Additional Chief Standing Counsel.
No one appears on behalf of the other respondents despite notice.
The present petition has been filed challenging an order dated 25.09.2001 whereby the revision filed challenging the order dated 23.10.1998 was allowed and the matter was remanded for consideration before the Civil Judge.
The facts, in brief, are that respondent nos.1 to 6 filed a suit for permanent injunction being Suit No.682 of 1998 against the petitioner herein. The relief claimed in the said suit was to restrain the defendant by means of a permanent injunction not to interfere with the crops of the plaintiff and not to disturb the possession of the plaintiff in any manner. A copy of the plaint is on record as Annexure - 3. The petitioner herein filed his written statement and alongwith the other pleas took a specific plea that he was the owner of the property in question by virtue of the sale deed executed in his favour and he further argued that as there was no challenge to the deed executed in favour of the petitioner, for the relief prayed in the plaint, the suit is specifically barred by virtue of the mandate of Section 331 of UPZA & LR Act.
On the pleadings in between the parties, the trial Court framed an issue with regard to maintainability of the suit and decided the same by means of an order dated 23.10.1998 holding that the suit was barred before Civil Court in view of the bar created by Section 331 of UPZA & LR Act and relegated the parties to avail their remedies before the proper Court and returned the plaint for it being presented before proper Court.
Aggrieved against the said order, the plaintiff in the suit filed revision under Section 115 CPC, which has been disposed off by means of an order dated 25.09.2001, which is impugned in the present writ petition.
Learned counsel for the petitioner argues that the revisional Court has erred in setting aside the order passed by the Civil Judge on an issue framed in view of the specific bar created by Section 331 of UPZA & LR Act. He has further drawn my attention to the reasoning given by the revisional Court while passing the impugned order wherein the revisional Court was of the view that as in the suit, only a prayer for grant of permanent injunction was made, the suit could not be held to be cognizable before the revenue Court. In support of the said reasoning, the revisional Court relied upon the judgment of the Hon'ble Supreme Court in the case of Azhar Hasan & Ors. v. District Judge, Saharanpur and Ors. - 1998 (89) RD 493.
Learned counsel for the petitioner further argues that law with regard to the cases which are cognizable before the revenue Court is reasonably and fairly well settled and in this regard, he relies upon the judgment of this Court in the case of Jairam Singh and Anr. v. Ist Addl. District Judge, Bijnor and Ors. - 2007 (102) RD 332 and also places reliance on the Full Bench judgment of this Court in the case of Ram Padarth v. IInd Addl. District Judge, Sultanpur and Ors. - 1989 RD 21. He argues that reliance on the judgment in the case of Azhar Hasan (supra) is wrong inasmuch as the issue, which arises in the present cases, was neither considered nor decided by the Hon'ble Supreme Court in the case of Azhar Hasan (supra).
Learned counsel for the petitioner further argues that it is well settled that the relief of permanent injunction cannot be claimed without claiming relief of declaration and in the event the plaintiff had filed a suit including the relief of declaration, automatically it would be cognizable before the revenue Court. He has taken extensive support to the mandate of Section 331 of UPZA & LR Act, extract whereof is quoted hereinbelow:
"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 II 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 based on a cause of action in respect of which any relief could be obtained by means of any such suit or application :
[Provided that where a declaration has been made under Section 143 in respect or any holding or part thereof, the provisions of Schedule II insofar 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.] [(1-A) Notwithstanding anything in sub-section (i), 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 earliest possible opportunity and in 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) 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."
He further argues that it is well settled that in a suit of permanent injunction, relief for declaration is implied as without there being a prima-facie case in the form of declaration, the relief of injunction cannot be granted. He has also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Chandrika Misir and Ors. v. Bhaiya Lal - 1973 RD 365.
In the light of the said, he argues that the order impugned being contrary to the law is liable to be set aside and the writ petition is liable to be allowed.
After hearing the counsel for the petitioner it is important to peruse the contents of the plaint which is annexed as Annexure - 3.
The suit in question was filed alleging that the plaintiff was the bhumidhar of the property in question and was in possession and had obtained the said rights by means of a sale deed whereas the defendant was never in possession of the property in question. It was further claimed that the plaintiff had sown crops of Arhar and Bajra, which were being cut illegally by the defendant, which has resulted into loss and thus, a claim for permanent injunction was made. The petitioner herein filed a written submission and claimed that it was the defendant who was the bhumidhar in possession of the property in question and the plaintiff had never sown the crops of Arhar and Bajra as claimed by them. Specific plea with regard to lack of jurisdiction was raised as a result whereof issue no.4 was framed by the Civil Court with regard to the possession. The Civil Court while deciding the issue no. 4 analysed the different contentions of the parties before it and recorded that by virtue of a sale deed executed in favour of the defendant, the Tahsildar, Pratapgarh in his order dated 12.02.1997 had carried out mutation entries in favour of the defendant. He also recorded that the sale deed in favour of the defendant stood established. He also recorded that the Tahsildar, Pratapgarh had also recorded the mutation in the name of the plaintiff over the property in question vide orders dated 04.10.1997 and 05.10.1997. He further recorded that from the evidence it was established that earlier the property was recorded in the name of the defendant and subsequently in favour of the plaintiff. He further recorded that there was nothing on record to establish that the two sale deeds by virtue whereof the plaintiff and the defendant claimed ownership has been set aside by any Court of law in any proceedings and thus, he was of the opinion that there was a confusion prevailing over the property in question with regard to the ownership and although the suit in question was filed claiming the relief of injunction, however, there was an inherent dispute with regard to ownership over the property in question. He was, thus, of the opinion that in view of the conflicting claims, the issue with regard to the ownership is implicit in the dispute, which can be decided only by Revenue Court, can be relegated to the Revenue Court and thus, held that the jurisdiction with regard to the dispute would be amenable to the jurisdiction of the Revenue Court and thus returned the plaint for it being presented before the Revenue Court having jurisdiction.
The Revisional Court although noticed the dispute, which led to passing of the order, was of the view that the question with regard to the dispute of ownership can be decided based upon the revenue entries and the question of declaration of the title was not implicit and thus held that for the relief claimed, the issue to be decided is as to which of the two sale deeds as claimed by both the parties, was the correct one, which can be decided by a Civil Court.
It is pertinent to notice that there is no suit with regard to cancellation of the sale deeds by either of the parties, thus, to decide the question with regard to the ownership and the relief claimed, it is implicit that the Court comes to a conclusion with regard to the ownership of the property in question.
Admittedly, the land in question is agricultural land. The issue with regard to maintainability of proceedings before the Civil Court or the Revenue Court is an on-going one. In view of the plain language of Section 331 read with Section 229B of UPZA & LR Act, all the disputes as specified in Schedule II are to be tried before the Revenue Court, however, in case the issue arises in respect of a deed, which is voidable at the instance of one of the parties, the Civil Court has the jurisdiction.
Voidable deeds as provided under Section 19 & 19A of the Contract Act related to deeds in which the consent is obtained by coercion, fraud, misrepresentation or undue influence, can be got declared from a competent Court of law being voidable at the instance of the persons seeking such a declaration.
From the judgments as reported, I am of the view that for seeking relief by a person claiming the documents to be voidable and for consequent declaration, the Civil Court would clearly have the jurisdiction.
A reference may be made to the judgments of Hon?ble Supreme Court in the cases of Bismillah v. Janeshwar - AIR 1990 SC 540 and Smt. Dularia Devi v. Janardan Signh - AIR 1990 SC 1173.
At the cost of repetition it is recorded that in view of the conflicting claim of the parties, declaration of the rights over the property in question was implicit and there being no challenge to either of the sale deeds executed in favour of any of the parties, the question of title had to be declared before the relief as prayed for could be granted. The Civil Judge was correct in recording that the said issue can be tried and decided only by a Revenue Court. The Revisional Court committed an error in interfering with the order passed by the Civil Court only by recording that the Court is only to decide which of the two sale deeds is a correct sale deed. As none of the sale deeds was challenged and no relief by either of the parties was claimed in respect of their sale deeds, essentially the decision would hinge upon the declaration of the rights over the property in question. The same being over an agricultural land, the bar of Section 331 of UPZA & LR Act would be clearly attracted and thus, no fault can be found with the Civil Judge returning the plaint for it being presented before the Revenue Court. In view thereof, the Revisional Order dated 25.09.2001 (Annexure - 1) is set aside and the order dated 23.10.1998 passed by the Civil Judge is restored.
The parties would be at liberty to pursue their remedies, if so advised, in accordance with law.
The writ petition is accordingly allowed.
Order Date :- 20.5.2022 nishant