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1972 DIGILAW 148 (ALL)

Chhabinath Singh v. Bhagwati Singh

1972-03-27

H.N.SETH

body1972
ORDER H.N. Seth, J. - This is Defendants second appeal. Plaintiff-Respondent Bhagwati Singh brought in suit for injunction restraining the Defendant-Appellants from interfering with his possession over certain agricultural plots. He alleged that he, Chhabinath Singh and Har Singh were real brothers. They owned certain plots detailed at the foot of the plaint as their Sir and Khudkasht. By means of a private arrangement, the three brothers divided the holding equally and started cultivating is separately. The land which fell in the Plaintiff's share and was being cultivated by him has been shown in red colour in the site plan attached to the plaint. Subsequently, Plaintiffs proprietary interest in the land was sold in execution of decree passed against him and was purchased by one Smt. Shahzad Kunwar. However, he continued to retain possession over the plots and continued to cultivate them. The rights purchased by Smt. Shahzad Kunwar ultimately devolved on one Maharajdin, who on 14-4-56 relinquished the same in Plaintiff's favour. Defendants Chhabinath Singh and Harnath Kunwar, wife of Har Singh, filed a suit against the present Plaintiff which was dismissed. Having failed to obtain relief from a court of law Chhabinath Singh and Harnath Kunwar, with the help of their friends, who Slave been arrayed as Defendants Nos. 3 to 6 in the suit, threatened to forcibly dispossess the Plaintiff from the land in suit. The Plaintiff, filed the suit, from which this appeal arises, praying for a decree for permanent injunction restraining' the Defendants from interfering with the Plaintiff's possession over the plots in dispute. 2. The suit was contested by Chhabinath Singh and Smt. Harnath Kunwar, Defendants Nos. 1 and 2. They asserted that the Plaintiff had no light or title in any portion of the land in suit. Plaintiff did not remain in possession over any portion of the land in f suit after his Interest in the property was sold in execution of decree anal was purchased by Shahzad Kunwar. If Was denied that any private partition as alleged by the Plaintiff ever took place. Bhagwati Singh did not claim ex-proprietary rights within time, as such the Defendants became sole sir-holder of the plots in dispute after Plaintiff's proprietary interest was sold and purchased by Shahzad Kunwar. Alleged relinquishment of title by Mahrajdin was invalid and the Plaintiff never acquired sirdari rights in these plots. 3. Bhagwati Singh did not claim ex-proprietary rights within time, as such the Defendants became sole sir-holder of the plots in dispute after Plaintiff's proprietary interest was sold and purchased by Shahzad Kunwar. Alleged relinquishment of title by Mahrajdin was invalid and the Plaintiff never acquired sirdari rights in these plots. 3. Trial court found that although the evidence produced on behalf of the parties indicated that there was a partition of Sir arid Khudkasht holding but the partition could not be accepted as no formal proceedings in this regard, through court, were taken arid the same was not recorded in any revenue paper. Contract, if any, to this respect was contrary to law and could not be accepted. So far as the deed of relinquishment was concerned it was found that on the date Maharajdin executed it, he did, not possess any rights in the land hence the Plaintiff could riot rely upon if in support of his Base. As the Plaintiff did not claim ex-proprietary rights within six months, Defendants Nos. 1 and 2 became exclusive sir-holders of the land including that which is in dispute in these proceedings. The trial court further found that the Plaintiff was out of possession and was not entitled to any relief. In the result Plaintiff's suit was dismissed. 4. In appeal, the lower appellate court affirmed the finding that the deed of relinquishment executed by Maharajdin was not valid and that it did not confer any rights on the Plaintiff. However, relying upon certain decisions of this Court, it held that, it was open to the parties to partition their sir holdings on the basis of mutual agreement. Such an agreement was arrived at in this case. The parties acting upon that agreement started cultivating their plots separately. It also held that in a case where after proprietary interest of a sir-holder is transferred and he continues to remain in possession of the land, ex-proprietary rights accrue by operation of law and it is not necessary for him to institute demarcation proceedings within a period of six months for claiming the same. It found as a fact that after sale of his proprietary interest in favour of Shahzad Kunwar, the Plaintiff had been in possession of the land in suit throughout, He was entitled to retain possession of the plots as ex-proprietary tenant. It found as a fact that after sale of his proprietary interest in favour of Shahzad Kunwar, the Plaintiff had been in possession of the land in suit throughout, He was entitled to retain possession of the plots as ex-proprietary tenant. Plaintiff was accordingly entitled to the relief claimed by him. In the result, judgment and decree passed by the trial court were set aside and Plaintiff's suit was decreed. 5. Defendants have now come up in second appeal before this Court. learned Counsel appearing for them argued that civil courts have no jurisdiction to entertain suits for injunction in respect of agricultural plots and the decree passed by the lower appellate court is liable to be set aside. He contends that a suit for injunction in respect of agricultural plots could be filed u/s 208 of the UP ZA and LR Act and as provided in Section 331 of the Act no court other than that of an Assistant Collector 1st Class has jurisdiction to try it. Section 208 of the UP ZA and Lk Act reads as follows: 208, Not withstanding anything in Section 206, the Gaon Samaj or the landholder 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. 6. This section provides that notwithstanding anything contained in Section 206, the Gaon Samaj or the landholder may in lieu of suing for ejectment, file a suit for injunction. It follows that where in respect of a cause of action it is open to the Plaintiff to file a suit for Defendants ejectment under some provisions of UP ZA and LR Act, he may in lieu of filing a suit for ejectment claim an injunction for preventing the Defendants from committing breach of his obligations. In my opinion, this section has no application to a case where the Plaintiff landholder has no cause of action for filing a suit for Defendants ejectment. 7. In the case before me, the Plaintiff claimed that he was in possession of the land in suit. The Defendants were trying to interfere with his possession without any right. Of this allegation, there was absolutely no question of claiming a relief for the ejectment of the Defendants. 7. In the case before me, the Plaintiff claimed that he was in possession of the land in suit. The Defendants were trying to interfere with his possession without any right. Of this allegation, there was absolutely no question of claiming a relief for the ejectment of the Defendants. Cause of action as set out in the plaint of the present suit, therefore, did not enable the Plaintiff to claim a relief for Defendants ejectment under the provisions of ZA and LR Act. It cannot, therefore, be said that the suit from which this appeal arises was a suit in lieu of a suit for ejectment, as contemplated by Section 208 of the Act. In my opinion, the argument of the learned Counsel, based on Section 208 of the UP ZA and LR Act, is misconceived. No other provision in the UP ZA and LR Act has been brought to my notice according to which a suit for injunction, in a case similar to the one before me, could be filed in a revenue court. Section 331 of the Act, therefore, does not bar the jurisdiction of civil court to try this suit. Lower appellate court was right in holding that the civil court had jurisdiction to try the suit. 8. learned Counsel for the Appellant relied on a decision of a Division Bench of this Court in Balbodh and Ors. v. Mahabir 1970 AWR 695 . In that case a suit had been filed, in the year 1954, in civil court for declaration that the Plaintiffs were the Sirdars of agricultural plots in dispute, for possession over them and for recovery of damages. At the time when the suit was entertained the civil court had jurisdiction to try it. During pendency of tile suit, an amendment was made in the UP ZA and LR Act, as a result of which civil court lost jurisdiction to try that suit. This Court held that if during the pendency of a suit, power of civil court to take its (sic) is take away and vested in, revenue courts the Civil Court is debarred from continuing in hearing and determining the same. In the case before me the question that at any stage after entertaining the suit, the Civil Court lost its jurisdiction does not arise for consideration. In the case before me the question that at any stage after entertaining the suit, the Civil Court lost its jurisdiction does not arise for consideration. The case cited by the learned Counsel, therefore, has no application to the (sic) of the case before me. 9. learned Counsel for the Appellant them tried to (sic) that the finding recorded by the (sic) appellate court to the effect that the Plaintiffs were in possession of the plots in dispute is wrong. This, however is a finding which has been recorded by the lower appellate court after the appraisement of oral and other evidence on the record. It is not open to this Court to go behind this, finding in a second appeal. 10. I find no substance in either of the two contentions of the learned Counsel for the Appellant. The appeal accordingly fails and is dismissed with costs.