Uttarakhand High Court
Kanwal Singh And Ors vs Sudhu Ram And Ors on 4 August, 2017
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (M/S) No. 1516 of 2006
Kanwal Singh and others .....Petitioners
Versus
Sadhu Ram and others ...Respondents
Mr. Tapan Singh, Advocate for the petitioners.
Dated: 4th August, 2017
Hon'ble Sharad Kumar Sharma, J.
In this writ petition, there are as many as six private respondents. At the time, when the writ petition was entertained, on 29.09.2006, notices were issued to the respondents. Vide Office Report dated 19.11.2007, it has been reported that respondent nos. 1, 3, 5 & 6 would be deemed to have been served. Thereafter, once again, the Court issued notices to the unserved i.e. respondent nos. 2 & 4. The steps were taken by the petitioners for serving the unserved respondent nos. 2 & 4 and, by the Office Report dated 12.05.2008, it has been reported that respondent nos. 2 & 4 would be deemed to be sufficiently served.
2. In view of two Office Reports, this Court holds that respondents have been duly served and, hence, in absence of their appearance, controverting the plea raised by the petitioners, I proceed to hear the writ petition in their absence.
3. The petitioners have filed a suit for the following reliefs:-
2"v- ;g fd fMdzh LFkkbZ fu"ks/kkKk cgd oknhx.k ij f[kykQ izfroknhx.k bl vk'k; dh rkfnj QjekbZ tkos fd izfroknhx.k lEifRr fuEuof.kZr ds fo'ks"k Hkw Hkkx ij vius fgLls ls vf/kd Hkwfe ij rdlhe djk;s vkSj dksbZ fuekZ.k u djs u djk;saA c- ;g fd gtkZ o [kpkZ eqdnek e; Qhl vf/koDrk oknhx.k dks ifroknhx.k ls fnykbZ tkosA l- ;g fd vU; vuqrks"k tks jk; vnkyr es oknhx.k ikus ds vf/kdkj gks oknhx.k dks izfroknhx.k ls fnyk;k tkosA"
4. On reading of the relief clause, the relief, which has been sought, is a simpliciter injunction as to restrain the respondents form interfering in the property in dispute. At the initial stage, the suit was accompanying with an application filed under Order 39 Rule 1 & 2 C.P.C. and the learned trial Court granted them an injunction on 22.08.2006; but, this is not the subject matter in controversy. At a later stage, when the respondents put in appearance, they filed an application, on 17.07.2006, contending that the proceedings of the suit are barred by Section 49 read with Section 5 (2) of the Consolidation of Holding Act. Their application was rejected by the learned trial Court on 25.07.2006, against which, the respondents preferred a revision, being Civil Revision No. 48 of 2006, which has been allowed and the suit has been dismissed, holding thereof that suit is barred by Section 49 read with Section 5 (2) of the Consolidation of Holding Act.
35. The Consolidation of Holding Act is a self contained Act. It, itself, contemplates procedure to be adopted by the Court created under the said Act and their action cannot be extended beyond the powers conferred on the Court created therein. It has been held that since consolidation Courts have right to declare title, they are taken as to be judicial Courts and, once, they are exercising their judicial powers, they will have to restrict themselves within the limits of powers conferred to them under the Act. The Consolidation of Holding Act, nowhere, grants the power to the consolidation authorities to grant an injunction, because under the law, granting of injunction is the power, which is always conferred to a Court by a statute. Once a statute itself is silent and is not conferring the power to grant injunction to the Consolidation Courts, the petitioners' suit would not be barred by Section 49 read with Section 5 (2) of the Act.
6. There is another aspect of the matter. Once the petitioners have filed a suit for simpliciter injunction, without having any element of declaration, the grant of an injunction would not, in any manner, prejudice the regular proceedings under the Consolidation of Holding Act, because the findings of title, recorded in the suit for injunction, are incidental in nature and they do not determine the right and title of the plaintiffs in the suit.
7. The Hon'ble Allahabad High Court in its Full Bench Judgment reported in AIR 1969 Allahabad Page 526 in the case of Ram Awalamb and others Vs. Jata Shankar and others, was dealing with the issue vis-à-vis the declaration of rates under the U.P. Zamindari 4 Abolition and Land Reforms Act alongwith proceedings under Section 9 of the Code of Civil Procedure and the restrictions imposed about the maintainability of proceedings under Section 331 of the Act. The Full Bench has held that the statutes outside the jurisdiction of civil court creates bar in relation to a particular class of cases relating to agricultural land as provided under Section 331 of U.P. Zamindari Abolition and Land Reforms Act. But the said judgment, where the suit, on perusal of the relief claimed is ostensibly cognizable by the civil court, is cognizable by the Revenue Court. The prime issue for consideration would be a cause of action.
Paragraph No. 95 of the judgment reads as under:-
"95. The view taken in some of the cases was that as between co-sharers the relief of partition may be an effective relief and, therefore, the relief for injunction, demolition and joint possession may not be granted. It is not at all necessary to consider that point in detail because where a discretionary relief is disallowed on the ground that in the circumstances of the case it was not a proper relief (vide Section 39, Specific Relief Act) it could not be said that the civil court had no jurisdiction to entertain the suit as originally brought before it. The civil court, and no other court, had the power to grant the relief for injunction, demolition and joint possession provided the same was considered to be an equitable relief. Where it could not be considered to be an equitable relief the suit would fall not because the civil court had no jurisdiction to entertain it but because it did not consider that the relief prayed for was an equitable relief."
8. Almost identical view has been reiterated by another Full Bench Judgment of the Hon'ble Allahabad High Court (Lucknow Bench) in the case of Ram 5 Padarath and others Vs. Second Addl. District Judge, Sultanpur and others, reported in AWC 1989, page 290, whereby in the civil suit declaration is not required. The bar will not come into play. Paragraph No. 41 of the judgment reads as under.
"41. We are of the view that the case of Indra Deo v. Smt. Ram Piari,1982 (8) ALR 517 has been correctly decided and the said decision requires no consideration, while the Division Bench case, Dr. Ayodhya Prasad v. Gangotri 1981 AWC 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 of a tenure-holder is necessarily needed in which event relief for cancellation will be surplusage 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."
9. Thus, in view of the above, since the Consolidation Courts have no power of granting an interim injunction and the petitioners, on interference, of attempts to encroach would not be having any remedy, their recourse is only to avail the proceedings under Section 9 of the Code of Civil Procedure, by way of filing a regular Civil Suit. Thus, the petitioners have rightly filed a suit, in which, injunction has been granted, which is pending consideration.
610. In view of what has been stated above, the Revisional Court's order is absolutely erroneous and perverse. The same is quashed and the writ petition stands allowed.
(Sharad Kumar Sharma, J.) 04.08.2017 Jitendra