Rameshwar v. Ram Asrey — 1965 DIGILAW 41 (ALL)

ORDER D.S. Mathur, J. - This is a revision u/s 115 CPC by Rameshwar, Defendant, against the order dated 15.4.1963 of the Addl. Munsif, Gorakhpur, holding that the present suit for injunction was cognizable by the civil court. 2. Ram Asrey son of Tapesar, Plaintiff opposite party, had instituted the present suit for a perpetual injunction to restrain the Defendant, Rameshwar, from interfering with his possession over plot No. 263/1, area 0.63 acres, of village Kharkharaiva. In the alternative, it was prayed that if the Plaintiff be found not to be in possession of the land, possession be given to him after dispossession of the Defendant. The alternative relief was, however, got deleted at a subsequent stage and the plaint as it at present stands, is for a perpetual injunction to restrain the Defendant from interfering with the possession of the Plaintiff over the agricultural plot in dispute. 3. The suit was instituted on 11.4. 1962 after the amendment of S. 331 of the UPZA and LR Act under UP Act No. XXVIII ;of 1961. As a result of this amendment the civil court cannot take cognizance of a suit, application or proceeding based on a cause of action in respect of which any relief can be obtained by means of any suit or application detailed in column 3 of Schedule IT. It is further made clear in the Explanation to Sub-section (l) of Section 331 that '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 reveune court would have granted " 4. The relief for injunction can be granted to the Plaintiff on his satisfying the court that he was in possession and his title to the property. Injunction cannot thus be granted to a person who is not entitled to a declaratory relief. Consequently, one of the reliefs which can be obtained in a suit based on the same cause of action shall be declaration and the other injunction. The Civil Court, therefore, will not have the jurisdiction to entertain a suit for injunction if it be found that a suit for declaration based on the same cause of action is cognizable by the revenue court. 5. The Civil Court, therefore, will not have the jurisdiction to entertain a suit for injunction if it be found that a suit for declaration based on the same cause of action is cognizable by the revenue court. 5. Ram Asrey Plaintiff has not impleaded the State Government and the Gaon Samaj; the suit is against Rameshwar only. The non impleading of the State Government and the Gaon Samaj shall be of no consequence if they are necessary parties in the sense that no relief for declaration can be granted without their being impleaded in the suit. No one can be permitted to (sic) a court of its jurisdiction confer (sic) it under the law by not implead (sic) party or by using different para (sic) while giving the facts of the (sic) while asking for a relief. The law must have its course. However, the purpose of the suit shall have to be ascertained before deciding who are the necessary parties and whether the suit can be entertained by the court without impleading the necessary Parties and whether after impleading the necessary parties the suit is or not Cognizable by that court. 6. The second point to be kept in mind is that the decision at present is being given at a preliminary stage before the parties have adduced their complete evidence. Consequently, if it be held at this stage that the suit is within the cognizance of the civil court, the matter can be reconsidered, if it be later found that the State Government and the Gaon Samaj were necessary parties and the declaration was, in fact, sought for against them also and not against the Defendant alone. 7. At the stage material on record merely consists of the pleadings of the parties and a few extracts of village records. Any plea raised in the written statement cannot be used against the Plaintiff unless there exists no dispute on facts. Extracts of village records being public documents can however be taken judicial notice of In other words at this stage the plea of jurisdiction shall have to be determined on the basis of the case as put forward by the Plaintiff and the entries existing in the village records, though at a subsequent stage further evidence adduced by the parties can also be considered in determining whether the civil court could have taken cognizance of the suit. 8. 8. Sections 229-B and 229 C of the UPZA and LR Act govern suits for declaration by a bhumidhar, sirdar or an asami. Sub-sections (1) and (2) of Section 229-B relate to a suit for declaration by an asami, but in view of Sub-section (3) thereof Sub-sections (1) and (2), subject to certain modifications apply to declaratory suit by a bhumidhar or sirdar also. Reading all the three Sub-sections together, the provision (sic) so far as a declaratory suit by a sirdar shall be as below: Section 9-B-(1) Any person claiming to be (sic)ar whether exclusively or jointly (sic) any other person may sue the State (sic)ment and the Gaon Samaj (sic) for a declaration that he is a (sic) of the holding, or (sic)(b)for the declaration of his share therein, (2) In any suit under Sub-section (1) any other person claiming to hold under the State Government and the Gaon Samaj shall be impleaded as Defendant The question whether Section 229 B governs all declaratory or merely suits for declaration against the landholder, in the present case Government and Gaon Samaj. Civil courts have the jurisdiction to entertain suits of all kinds unless their jurisdiction has been taken away under some enactment. Prohibitions as to jurisdiction are not to be assumed: there has to be a clear and unambiguous provision in the enactment. Any provision taking away the jurisdiction of the civil court has got to be strictly construed and it cannot be assumed that the intention of the legislature was something beyond that indicated by the provision. In the instant case, we cannot assume that because the legislature wanted certain declaratory suits to he decided by the revenue court, all declaratory suits shall lie in that court and not before the civil court. 9. A perusal of Section 229 B of the UPZA and LR Act makes it clear that it has not been worded generally to cover all suits for declaration. If such were the intention, the word "landholder", and in the case of a bhumidhar or sirdar, the words "State Government and the Gaon Samaj", would not have been added prior to Clause (a) of Sub-section (1) thereof. If such were the intention, the word "landholder", and in the case of a bhumidhar or sirdar, the words "State Government and the Gaon Samaj", would not have been added prior to Clause (a) of Sub-section (1) thereof. The section would have made a provision for a suit for declaration though indicating that in such a suit the landholder, or the State Government and the Gaon Samaj and also anyone claiming through, them, shall be impleaded as Defendant. On the other hand, Section 229 B provides for suit against the landholder, or the State Government and the Gaon and Samaj as the case may be, and it in this connection that it has been enacted in Sub-section (2) that any other person claiming (sic) hold through the landholdar, or the State Government and the Goa(sic) shall also be impleaded as de(sic) It is thus a declaratory suit aga(sic) landholdar, or the State Gove(sic) and the Gaon Samaj, which h(sic) taken away from the jurisdiction of the civil court and not every suit for declaration. To put it differently, if it be found that, in substance declaration is being asked for against the land holder, in the instant case the State Government and the Gaon Samaj, and they are necessary parties to the suit the civil court shall not have the jurisdiction to entertain such a suit for declaration and also a suit in which a relief or injunction with regard to that plot based on the same cause of action has been prayed for. But if the facts indicate that the landholder, or the State Government and the Gaon Samaj, as the case may be, do not challenge the status of the Plaintiff, or on the basis of the entries existing in the village record the Plaintiff continues to enjoy the status claimed by him, the suit for declaration cannot be deemed to be against the landholder, or the State Government and the Gaon Samaj, and consequently shall be cognizable by the civil court on account of its jurisdiction not being taken away by or under the UP ZA and LR Act. 10. Section 229-G governs a suit by a Gaon Samaj or a bhumidhar or sirdar against a p?rson claiming to be an asami for declaration of the latter's right. In the instant case, it is no one's case that the Defendant is an asami. 10. Section 229-G governs a suit by a Gaon Samaj or a bhumidhar or sirdar against a p?rson claiming to be an asami for declaration of the latter's right. In the instant case, it is no one's case that the Defendant is an asami. When the Defendant does not claim to be an asami, and instead claims to be a sirdar, no declaration could be sought for u/s 229-C. 11. Coming to the facts of the instant case, it shall appear from the village extracts on the file that the disputed plot was originally in the tenancy of Bhagwat and others who abandoned the holding in 1355F. The name of the Plaintiff's father, Tapesar was shown in the khara for the first time in 1363F. During the earlier years the names of Bhagwat and others had continued to be recorded even though they appear to have abandoned the holding. Entries in favour of the Plaintiff's father, or of the Plaintiff, as sirdar continued thereafter though in the remarks column of the khasra of 1366F (sic) Defendant was show as qabiz and (sic) 4368F he was recorded as sub-(sic) Consequently, unless the state (sic)ment or the Gaon Samaj chal. (sic) e status of the Plaintiff as sirdar it can be assumed that they were regarding him to be sirdar, though not in possession after 1365F. 12. The matter can be considered in the alternative as if the Defendant is a sub-tenant or is a mere trespasser. The Plaintiff's case is that the Defendant is not in possession though he is trying to interfere with the Plaintiff's possession. The entries in the village papers, on the other hand, show the Defendant as sub tenant from 1368F and in possession in 1366F; and the maintainability of the suit before the Civil Court shall at this stage have to be determined keeping these entries in mind. 13. In view of his possession from 1366F the Defendant could become a sirdar by virtue of Section 210 of the UPZA and LR Act if no suit u/s 209 for his dispossession is filed within the prescribed period, which is six years from the 1st of July following the date of unlawful occupation. The limitation for a suit for ejectment of the Defendant would commence from 17, 1959, and admittedly the prescribed period of limitation for such a suit has not vet expired. The limitation for a suit for ejectment of the Defendant would commence from 17, 1959, and admittedly the prescribed period of limitation for such a suit has not vet expired. In the circumstances, the Plaintiff can, on the bnsis of the entries, and lor purposes of the present revision, be deemed to still enjoy the status of a sirdar. 14. Section 156 of the UPZA and LR Act prohibits the sub-lease of any part of the holding by a bhumidhar, sirdar or asami except in the cases provided for in Section 157 or to a recognized educational institution for a purpose connected with instruction in agriculture, horticultare or animal husbandary. The Plaintiff does not fall in any of the categories detailed in Section 157 and, consequently cannot let out any part of his holding. Sub lease, if any, shall thus be against the law and hence void. 15. The legislature has however not made any provision as to the consequences of an illegal sublease but considering that lease is one form of transfer it can be said that the consequences of a void sub lease shall be as detailed in Sections. 167 and 168 of the UPZA and LR Act. Section 167 makes a provision for ejectment of the transferee and of every person who thereby obtained possession of the whole or part of the holding, and also of the Sirdar or asami making the transfer in contravention of the provisions of the Act. Such dispossession is, however, possible on the suit of the Gaon Samaj or the landholder, as the case may. Section 168 further provides that: Upon ejectment in a suit u/s 167, all the rights and interest of the sirdar or asami in the holding or part thereof shall be extinguished. The Gaon Samaj has not yet instituted a suit for the ejectment of the Defendant and also of the plaintjtf and, consequently, the Plaintiff's rjeht as sirdar cannot be deemed to have been extinguished as a result of the entry of sub tenancy being made in the village record. 16. The Gaon Samaj has not yet instituted a suit for the ejectment of the Defendant and also of the plaintjtf and, consequently, the Plaintiff's rjeht as sirdar cannot be deemed to have been extinguished as a result of the entry of sub tenancy being made in the village record. 16. On the basis of the extracts of village papers at present on the record it could be assumed, for purposes of the decision of the question of jurisdiction at the present stage that the Plaintiff enjoyed the status of a sirdar and consequently it was not necessary for him to sue the State Government and the Gaon Samaj for a declaration of his rights as such. When it was not necessary for the Plaintiff to sue the State Government or the Gaon Samaj, he could ask for a declaration against a third party without impleading them, and such a declaratory suit could be taken cognizance of by the civil Court. In the circumstances, the civil court could entertain a suit for injunction against the third party alone, based on the same cause of action. 17. The revision has thus no force and it is hereby dismissed, though it shall be open to the Munsif to reconsider the question of jurisdiction after the parties have adduced their evidence. Costs on parties. Stay order is vacated.