Sundar v. Sobhan — 1979 DIGILAW 165 (ALL)

JUDGMENT P.N. Goel, J. - This is an appeal against the judgment dated 22-11-1962, passed by the Additional Civil Judge, Jaunpur. 2. The respondents have not put in appearance in this appeal. 3. Learned counsel for the appellants has been heard. 4. The suit relates to several agricultural plots. The suit was dismissed by the trial Court on 30-3-1961. The plain-tiff-appellants filed an appeal before the District Judge. Appeal was heard by the Additional Civil Judge. The Additional Civil Judge held that the suit was not cognisable by the Civil Court and that it was barred by Section 242 of the U. P. Tenancy Act, 1939. 5. The learned counsel for the appellants raise two points: (1) The Additional Civil Judge was in error in holding that the suit was not cognizable by the civil court and that it was barred by Section 242 of the U. P. Tenancy Act, and (2) In case it was found that the suit was not coginzable by the civil court, the plaint should be returned for presentation to the proper Court. 6. With regard to the first point it has to be remarked that the jurisdiction of a Court to try a suit depends upon the allegations made in the plaint, The allegations of the plaint in the present case show that the tenancy plots in dispute were of the times of Sukh Lal, common ancestor of the parties. Sukh Lal had 5 sons viz., Jatan, Porai, Sahtu, Udayee and Bhikai. The plaintiffs appellants are descendants of Jatan, Porai and Sahtu. The contesting defendants-respondents are descendants of Udayee and Bhikai. Therefore the appellants alleged that they had ?th share in the plots. They further alleged that they were in possession of their ?th share. But their names were not recorded in the revenue papers. On the other hand the names of the defendant-respondents were recorded in the revenue papers. On the basis of wrong entries in the revenue papers, the defendants began to interfere in the share of the appellants. Therefore, the appellants claimed permanent injunction restraining the defendants from interfering with their ?th share in the suit plots. The appellants further claimed possession, if they were not found entitled to the relief or injunction. 7. The learned counsel for the appellants referred to the case of Ram Awalamb v. Jata Shanker, 1968 RD 470 : (1968 All LJ 1108) (FB). The appellants further claimed possession, if they were not found entitled to the relief or injunction. 7. The learned counsel for the appellants referred to the case of Ram Awalamb v. Jata Shanker, 1968 RD 470 : (1968 All LJ 1108) (FB). In this case three cases were decided - (1) Second Appeal No. 282 of 1967. (2) Second Appeal No. 710 of 1967 and. (3) Civil Revision No. 1711 of 1965. 8. In the Second Appeal No. 282 of 1967, cancellation of three sale-deeds was sought. In Second Appeal No. 710 of 1967 permanent injunction restraining, the other co-sharer from making construction on the land in suit and for demolition of the constructions already made were sought for. In Civil Revision No. 1711 of 1965 demolition of the constructions and possession and the closing of a door were sought for. It was held that all these three cases were triable by the Civil Court. 9. The learned counsel for the appellants referred to para 94 of this case which reads as follows (at p. 1125 of All LJ): - "94. 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 disallowd on the ground that in the circumstances of the case it was not 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." 10. 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." 10. In this case it was finally decided that in each and every case the cause of action of the suit would have to be strictly scrutinised to determine whether the suit was solely cognizable by the revenue Court or was impliedly cognizable only by a revenue Court or was cognizable by a Civil Court, that where in a suit, from a perusal only of the reliefs claimed, one or more of them were obstensibly cognizable only by the Civil Court and at least one relief cognizable only by the revenue Court, further questions which arose were whether all the reliefs were based on the same cause of action and if so whether the main relief asked for on the basis of that cause of action was such as could be granted only by the Revenue Court or whether any real or substantial relief could be granted by the Revenue Court and that there would be no doubt that in all such cases the jurisdiction would vest in the Revenue Court and mot in Civil Court and that in all other cases of a civil mature, the jurisdiction would vest in the Civil Court. 11. Keeping in view the above principle and looking to the provisions of Section 242 of U. P. Tenancy Act, 1939, an examination of the plaint in the instant case leaves no room for doubt that the present suit was cognizable by Revenue Court and not by Civil Court. 12. Section 242 of the U. P. Tenancy Act clearly lays down that the suits specified in the 4th Schedule shall be heard and determined by a Revenue Court and no Court other than a Revenue Court shall take cognizance of any such suit. The explanation added to this general provision is that if the cause of action is one in respect of which relief might be granted by the Revenue Court, it is immaterial that relief asked for from the Civil Court may not be identical with that which the Revenue Court could have granted. The explanation added to this general provision is that if the cause of action is one in respect of which relief might be granted by the Revenue Court, it is immaterial that relief asked for from the Civil Court may not be identical with that which the Revenue Court could have granted. Suits for division of a holding or for a declaration of right as tenant or for a share in joint holding are covered by Sections 49 and 59 which occur in Sch. 4. 13. In the present case the plaintiffs claimed to be co-tenants to the extent of ?th in the suit plots, because these plots originally belonged to their ancestor, Sukh Lal. It has clearly been alleged in the plaint that the names of the plaintiffs-appellamts were not recorded in the revenue papers and that the names of the defendants-respondents were recorded in the revenue papers. On the basis of the wrong entry in the revenue papers the defendants began to interfere with the rights of the plaintiff-appellants. On these allegations the plaintiffs could easily sue in the Revenue Court for declaration of their share in. the holding. In case they wanted separate possession they could sue for partition. Thus the appellants could (have) easily filed suit for declaration of their right and for partition in the Revenue Court. It will be noticed that in (this case no relief for demolition of any building was sought and no relief for cancellation of any sale-deed or transfer deed was sought. Therefore, the present case is quite different from the cases which were under consideration by the Full Bench in the case of Ram Awalamb, (1968 All LJ 1108) cited above. Therefore, the Full Bench decision is of no help to the appellants. The lower appellate Court was justified in holding that the suit as framed was not maintainable in the Civil Court. 14. With regard to the second contention the learned counsel for the appellant has relied on two cases: - (1) Kallu v. Phundan, AIR 1946 All 488 : (1946 All LJ 211.) and (2) Smt. Marjadi v. Umapati, 1971 RD 145. 15. In the first case it was observed that where civil court held .that the suit was triable by a revenue court, the proper course was not to dismiss the suit but to return the plaint for presentation to the proper court. 15. In the first case it was observed that where civil court held .that the suit was triable by a revenue court, the proper course was not to dismiss the suit but to return the plaint for presentation to the proper court. In the second case of Smt. Marjadi it was held that the suit was cognizable by the civil Court. Thereafter it was observed that if the lower appellate court found that the suit was instituted in the wrong court, the proper course was to return the plaint for presentation to the proper court under Order 7, Rule 10 C. P. C. In this case, this observation is in the nature of orbiter dicta and not in the nature of ratio decidendi. It is obvious that both these cases are based on the provisions of Order 7, Rule 10 C.P.C. This rule lays down that the plaint shall at any stage of the suit be returned to be presented to the court in which the suit should have been instituted. This rule as the language itself shows is not imperative. It is in the nature of a directory rule. In the present case the appellants brought two suits in the revenue court, one for declaration and another for partition. The appellants withdrew the first suit and the second suit was dismissed. After having seen the fate of their two cases in the revenue court, the appellants inten-, tionally filed suit in the civil court for injunction and alternatively for possession. It means that the appellants had already tried their luck in the revenue court. ]n this circumstance it would not at all be proper that the plaint should be returned for presentation to the proper revenue court. On the facts of the present case, the proper decree to be passed by the court below is that of the dismissal of the suit. No person can claim benefit of Rule 10 of Order 7 who deliberately files a suit in a court which has no jurisdiction to try it. In view of this the contention of the appellants counsel does not carry force. The lower appellate court was justified in dismissing the suit. 16. No other point was raised against the decree of the lower appellate court. 17. Appeal is without merit and is dismissed. In view of this the contention of the appellants counsel does not carry force. The lower appellate court was justified in dismissing the suit. 16. No other point was raised against the decree of the lower appellate court. 17. Appeal is without merit and is dismissed. No order as to costs incurred in this Court is made as the respondents did not put in appearance.