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1976 DIGILAW 114 (ALL)

BHAGWATI PRASAD v. HAJI RAMZAN ALI

1976-02-21

S.S.AHMED

body1976
JUDGMENT S.S. Ahmed, M. This is a defendants second appeal arising out of the order of Additional Commissioner, Allahabad Division, dated June 15, 1974, allowing the appeal filed by Haji Ramzan Ali against the judgment and decree dated November 29, 1969 passed by an Assistant Collector, 1st Class in a case under Section 229-B of the U.P.Z.A. and L.R. Act. 2. Haji Ramzan Ali filed a suit that he was the Sirdar of the disputed land and that Ghazidin father of defendants 1 and 3 interfered with his possession and hence he filed a suit under Section 209 of the U.P.Z.A. and L.R. Act. The suit was decreed on the basis of that decree possession was delivered to him through a formal Dekhaldehani on August 31, 1969 and that the plaintiff remained in possession of the land in suit. However, in collusion with the Lekhpal the defendants 1 and 2 got their names recorded in the revenue papers and hence the plaintiff had to file the suit for declaration with the alternative plea that if the defendants were found to be in possession they may be ejected from the disputed plots. 3. The defendants 1 and 2 contested the suit on the ground that the plaintiff was not the Sirdar of the land, and that they and before them their father, had been cultivating this land that possession was not delivered to the plaintiff in accordance with law and that the suit was barred by him. The suit was dismissed by the lower court and the plaintiff went up in appeal before the Additional Commissioner who allowed it. The defendant has now come up in second appeal before the Board. 4. I have heard the learned counsels for the parties and have also perused the records of this case. 5. The learned counsel for the appellant has assailed the impugned orders on three main grounds. He has maintained firstly that possession could not have been delivered to Ramzan Ali when a temporary injunction had been issued against him by a civil court restraining the delivery of such possession. For this he has relied on the case Sajjan Singh v. Sajjan Singh, U.J. S.C. 1970 p.75). He has maintained firstly that possession could not have been delivered to Ramzan Ali when a temporary injunction had been issued against him by a civil court restraining the delivery of such possession. For this he has relied on the case Sajjan Singh v. Sajjan Singh, U.J. S.C. 1970 p.75). He has next pointed out that the suit Ramzan Ali v. Nasrat Ali (Decided on February 10, 1951) under Section 59, of the U.P.Tenancy Act, was a case in which decree had been obtained in favour of Ramzan Ali by means of a fraud; and thirdly that the suit under Section 209, decided in favour of Ramzan Ali was barred because Ramzan Ali had no locus standio insofar as he was neither a Bhumidhar nor Sirdar in respect of the land in suit. 6. Countering these arguments the learned counsel for the respondent has pointed out that the appellant Bhagwati was not a party to the suit for injunction and therefore he could not claim any benefits to the effect that Dekhal was given to the respondent while a temporary injunction had been issued restraining the delivery of such a possession. Relying on the case of Lautan v. Ram Nath, (1972 R.D. 456) he has maintained that the principle of res judicata would not be applicable in a case in which the matter in issue was not between the same parties. Again, he has maintained, that the civil court had no right to issue an injunction in respect of the revenue matters because there was an inherent lack of jurisdiction. He has referred to the case of Chandrika Misra v. Bhiaya Lal, 1973 R.D. 365 in which their lordships of the Supreme Court have held that the jurisdiction of civil court was absolutely barred in respect of the case which were to be tried under the U.P. Zamindari Abolition and land Reforms Act. According to them the civil court was inherently lacking in jurisdiction to entertain a suit in which the remedy sought by way of injunction could be obtained through a suit under the U.P. Zamindari Abolition and Land Reforms act. According to them the civil court was inherently lacking in jurisdiction to entertain a suit in which the remedy sought by way of injunction could be obtained through a suit under the U.P. Zamindari Abolition and Land Reforms act. Finally he has urged that by virtue of the admission made in the suit under Section 209 of the U.P.Z.A. and L.R. Act, it could not be said that respondent had no locus statndi because in this suit an admission was made that they were Sirdar of the disputed land. According to him, the respondent claim of being the Sirdar's was perfectly maintainable in accordance with O. XII, Rule 6 of C.P.C.. 7. I have given careful thought to the arguments of both the counsels and I find that there is considerable force in what has been urged on behalf of the respondent. It is an accepted principle of law that res judicata will not apply against a person who was not a party to the previous suit and since Bhagwati had not been impleaded in the suit for injunction order could not be said to have any effect against him. 8. As regard the Dakhaldehani, the learned Additional Commissioner has rightly pointed out that the mere fact that the judgment debtor did not sign the Dekhal papers is hardly any ground for holding that the delivery of possession did informally take place. He has also aptly pointed out that while the suit was decreed on basis of the compromise dated August 15, 1959 the possession was taken only 25 days, after wards. I therefore, fully agree with the Additional Commissioner that the plaintiff got the possession in pursuance of the Dekhalnama and were delivered actual possession of the land in suit. 9. As regards the jurisdiction of civil court to issue an injunction order in respect of a revenue matter, the learned counsel for respondent has produced a ruling of the highest court of justice in the land and I see no reasons why this authoritative pronouncement should not be accepted. Finally I would like to mention that the learned Additional Commissioner has dealt with the evidence on record regarding possession over the disputed land in considerable detail. He has come to the unequivocal finding that the possession of the defendant starting in 1372 Fasli and therefore, they were liable to ejectment. Finally I would like to mention that the learned Additional Commissioner has dealt with the evidence on record regarding possession over the disputed land in considerable detail. He has come to the unequivocal finding that the possession of the defendant starting in 1372 Fasli and therefore, they were liable to ejectment. Being a finding of fact, I see no justification for interfering with it at the stage of second appeal. 10. On account of all these considerations the appeal must fail and is accordingly dismissed. The parties will however, bear their own costs. 11. Judgment dated signed and pronounced in open court.