Research › Browse › Judgment

Allahabad High Court · body

1970 DIGILAW 111 (ALL)

Parsottam v. Narottam

1970-03-11

R.L.GULATI, R.S.PATHAK

body1970
JUDGMENT R.L. Gulati, J. - This is a Plaintiff's first appeal from order which has been referred to a Division Bench by C.B. Capoor, J. by his order dated 20-1-1967 as in his opinion the decision of a learned single Judge in Rameshwar v. Ram Asrey 1965 AWR 367 requires reconsideration. 2. The Plaintiff filed a suit in the court of the City Munsif Varanasi in respect of an agricultural plot of land for a permanent injunction restraining the Defendants: (i) from cutting the crops standing over the plots in suit; (ii) from interfering with the Plaintiff cultivating the plot in suit and enjoying the fruits of it; and (iii) from interfering with the Plaintiff in his possession over the plot in suit. 3. The Plaintiff's case as disclosed in the plaint was that the plot in suit was under his tenancy and occupation since 1356 F., that originally he was the sub-tenant of the plot but after the abolition of zamindari he became its adhivasi and later he became sirdar and after paying ten times, the rent to the Government he acquired the status of a bhumidhar. He further alleged that the Defendants had no Concern with the plot but they were interfering in his cutting the crop which he had sown and had threatened that they would not allow the Plaintiff to cultivate the land in suit. 4. The Defendants contested the suit on the ground that the land in dispute belonged to a joint family of which the Defendants and the Plaintiff were the members and that the compensation for acquiring bhumidhari rights had been paid to the government out of the joint family fund but the name of the Plaintiff alone had been entered in the revenue papers because he was the karta of the family. 5. The trial court rejected this plea of the Defendants and held that the Plaintiff was the sole bhumidhar. One of the questions that was raised before the trial court was as to whether the suit was cognizable by the civil court in view of the provisions contained in Section 331 of the UP ZA and LR Act. This issue was also decided by the trial court against the Defendants. The Defendants then went up in appeal and the Third Addl. Civil Judge, Varanasi allowed the appeal on 19-10-1956. This issue was also decided by the trial court against the Defendants. The Defendants then went up in appeal and the Third Addl. Civil Judge, Varanasi allowed the appeal on 19-10-1956. The appeal was allowed on the preliminary ground that the suit was not triable by the Civil Court and was barred by Section 331 of the UP ZA and LR Act. This contention prevailed with the appellate court because in its view the suit was covered by Section 229-B of the UP ZA and LR Act and was not triable by a civil court. He, accordingly, ordered that the plaint be returned to the Plaintiff to be presented before a revenue court. The present appeal is directed against that order of the learned Third Addl. Civil Judge, Varanasi. 6. The short question that falls for our consideration is as to whether the appellate court was right in holding that the suit was not cognizable by a civil court and was barred by Section 331 of the UP ZA and LR Act. 7. The suit was filed in 1963 after the amendment of Section 331 in 1961. The material portion of that section after the amendment in 1961 reads as below: 331 (1) Except as provided by or under this Act no court other than a court mentioned in col. 4 of Schedule 2 shall, notwithstanding any thing contained in the CPC 1908, take cognizance of any suit, application or proceedings mentioned in col. 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) (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). A reading of the above provision shows, no doubt, that the intention of the Legislature was to confer exclusive jurisdiction on revenue courts with regard to suits or application or proceedings mentioned in col. 3 of Schedule II and also in respect of suits, application or proceedings which are based on a cause of action in respect of which relief could be obtained from a revenue court. 8. Section 229B is one of the sections mentioned in col. 3 of Schedule II and also in respect of suits, application or proceedings which are based on a cause of action in respect of which relief could be obtained from a revenue court. 8. Section 229B is one of the sections mentioned in col. 3 of the second schedule, the material portion of which, as it stood prior to its amendment by Act No. 12 of 1965, reads as under: 229B(1) Any person claiming to be an asami of a holding whether exclusively or jointly with any other person may sue the landholder (a) for a declaration that he is an asami of the holding; (b) for a declaration of his share therein. (2) In any suit Under Sub-section (1) any person claiming to hold as asami under the landholder shall be impleaded as a Defendant. (3) The provisions of Sub-sections (1) and (2) shall mutatis mutandis apply to a suit by a person claiming to be a bhumidhar or sirdar as the case may be with the amendment that for the word "landholder" the words "the State Government and Gaon Sabha" are substituted therein. Before deciding the question which arises in this case it will be pertinent to keep in mind the well settled position that civil courts have the jurisdiction to entertain suits of all kinds unless their jurisdiction is taken away under some enactment. Any prohibition contained in any enactment against the jurisdiction of civil courts has to be by a clear and unambiguous provision and such a prohibition cannot be assumed. Moreover any provision taking away the jurisdiction of the civil courts has to be strictly construed and it is not permissible to assume that the intention of the (Legislature was something beyond that indicated by the provision creating the bar against the jurisdiction of the civil courts. 9. Section 229-B of the UP ZA and LR Act is the only section which deals with declaratory suits relating to agricultural land. The question arises as to whether this section covers declaratory suits of all kinds or is limited only to suits of a particular category. 9. Section 229-B of the UP ZA and LR Act is the only section which deals with declaratory suits relating to agricultural land. The question arises as to whether this section covers declaratory suits of all kinds or is limited only to suits of a particular category. Sub-section (1) of Section 229-B provides for a suit for declaration by an Asami against the land holder and says in Sub-section (2) that in such a suit any other person claiming asami rights in the land in suit shall be impleaded as a Defendant, Sub-section (3) of that section makes the provision of Sub-sections (1) and (2) applicable mutatis mutandis to a suit by a bhumidhar or sirdar with the amendment that instead of the land holder "State Government and Gaon Sabha" shall be substituted. In other words a suit for the declaration of bhumidhari or sirdari rights is to be filed against the State Government and the Gaon Sabha and any other person who claims bhumidhari or sirdari rights in such land has also to be impleaded as a party. The suit contemplated by the provisions of Section 229-B is directed primarily against the State Government and the Gaon Sabha. Now such a suit would be necessary only if the State Government or the Gaon Sabha disputes the Plaintiff's title as a bhumidhar or sirdar. If the 'State Government or the Gaon Sabha does not dispute the claim of the Plaintiff such a suit would not lie u/s 229-B of the Act merely because some other person disputes the Plaintiff's claim. 10. In the instant case the Plaintiff had acquired the bhumidhari sanad u/s 137 of the Act after payment of the requisite amount of compensation to the Government and the entry in the revenue papers supports his claim. In such a situation one fails to see as to why the Plaintiff should have filed a suit against the State Government or the Gaon Sabha. The entries in the revenue records being in favour of the Plaintiff, he was entitled to assume that the Government or the Gaon Sabha was not opposed to his claim nor is there anything on the record to show that the State Government or the Gaon Sabha wanted to contest the Plaintiff's claim. The only persons who disputed the Plaintiff's claim were the Defendant?. The only persons who disputed the Plaintiff's claim were the Defendant?. The Plaintiff was, therefore, perfectly justified in filing the suit against the Defendants and not against the State Govt, or the Gaon Sabha. A suit of this nature is obviously not covered by Section 229B of the Act and would be cognizable by a civil court because the civil court had the jurisdiction to entertain all kinds of suits between the litigating parties. 11. An identical question came up for consideration before D.S. Mathur, J. in Rameshwar v. Ram Asrey 1965 AWR 367 and it has been rightly pointed out by the learned Judge and we say so with great respect, "a perusal of Section 229B of the UP ZA 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 words "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 (1) 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 landholdar 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 a suit against the landholder or the State Government and the Gaori Samaj as the case may be and it is in this connection that it has been enacted in Sub-section (2) that any other person claiming to hold through the landholder or the State Government and the Gaon Samaj, shall also be impleaded as Defendant. It is thus a declaratory suit against the landholder of the State Government and the Gaon Samaj, which has been taken away from the jurisdiction of the civil court and not every suit for declaration." We are of the opinion that the law laid down by D.S. Mathur, J. in Rameshwar v. Ram Asrey (supra) is correct and does not require reconsideration. 12. 12. To us the legal position appears to be that where a Plaintiff has a grievance against the village records which are maintained by the State Govt and Gaon Sabha the suit will lie in revenue court u/s 229B and any other person who disputes the Plaintiff's title shall also be impleaded as a Defendant but if the village records support the claim of the Plaintiff, the suit will not lie u/s 229B but will be cognizable by a civil court in case the Plaintiff's right is disputed by a third person. The case of Bechu and Anr. v. Board of Revenue 1966 AWR 489 : 1966 ALJ 1063 can be distinguished on that ground. In fact that case indirectly affirms the view taken by Mathur, J. in Rameshwar v. Ram Asrey See page 1067. The observation in that case at page 1066 to the effect that Section 229-B was intended to make a complete provision for declaration of rights of certain classes of tenure-holders must be read in the context of the facts of that case where the revenue records did not support the Plaintiff's claim. On the same ground can be distinguished the case of Baiju v. Shambhu Saran 1963 AWR 781. In that case a Division Bench of this Court of which one of us (Hon. Pathak, J.) was a member, was concerned with the interpretation of Section 242 of the UP Tenancy Act which corresponds to Section 331 of the UP ZA and LR Act. In that case the Plaintiff had instituted the suit alleging that he was a khudkasht holder of certain plots but the Defendant had in collusion with the patwari got his name entered in the revenue records and on the basis of those entries, was interfering with his possession. Clearly the revenue records did not support the Plaintiff's claim. 13. In Ram Abhilakh v. Raja Ram 1966 RD 86 it was held that as long the Gaon Samaj and the State of Uttar Pradesh were impleaded as Defendants in a suit and the declaration was sought against them also, the suit was cognizable by the revenue court even though the declaration was sought against others also. The case of Bankey Singh v. Dharam Deo Singh 1967 RD 144 is also distinguishable for the same reason. There also the entries in the revenue records were not in favour of the Plaintiff. The case of Bankey Singh v. Dharam Deo Singh 1967 RD 144 is also distinguishable for the same reason. There also the entries in the revenue records were not in favour of the Plaintiff. In Yar Mohd. and Anr. v. Lakshmi Das and Ors. 1958 AWR 703 a Full Bench of this Court held that the Legislature did not intend to provide in Section 242 of the UP Tenancy Act that suit of every kind relating to agricultural land irrespective of its nature and scope was to be triable by the revenue court alone and could not be filed in the civil court. That case supports the view that we are taking. 14. Learned Counsel for the Respondents strenuously argued that the nature of the suit could not be judged merely on the basis of the plaint but the evidence led by the parties should also be taken into consideration. In the instant case, the Defendants set up the plea that the land was a joint family property. On the evidence led on that issue the trial court has rejected that plea. The appellate court has made certain observations with regard to the correctness of the decision of the trial court on that issue but those observations, in our opinion, arc obiter because the appeal was allowed on the preliminary ground that the civil court had no jurisdiction to entertain the suit. The appellate court did not finally adjudicate upon the various issues involved. Moreover, so long as the entries in the revenue papers supported the claim of the Plaintiff and there was no contest from the State Government or the Gaon Sabha, the suit was cognizable by the civil court which was competent to entertain and to adjudicate upon all the pleas raised including the plea that the land was a joint family property. The crux of the matter is that if the Plaintiff had claimed any relief against the Gaon Sabha or the State Government or he ought to have done so having regard to the facts of the case, the suit would lie within the exclusive jurisdiction of the revenue court. In the instant case the Plaintiff had claimed no relief against the Gaon Sabha or the State Government and in our opinion, he was not obliged to do so because of the entries being in his favour. In the instant case the Plaintiff had claimed no relief against the Gaon Sabha or the State Government and in our opinion, he was not obliged to do so because of the entries being in his favour. We see no reason why the suit could not be tried by the civil court. 15. For the reasons stated above, we are unable to support the view taken by the Third Additional Civil Judge, Varanasi. We, accordingly, set aside his order of 20-10-1966 and remand the appeal for a fresh decision on merits in accordance with law and in the light of the observations made above.