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1980 DIGILAW 221 (ALL)

Umrai v. Ram Niranjan

1980-02-18

S.D.AGARWALA

body1980
JUDGMENT S.D. Agarwala, J. -This is a defendants second appeal. The relevant facts which have given rise to the present appeal are as follows: One Mahadeo Singh was the owner in possession of the property in suit described at the foot of the plaint which consists of agricultural plots. On 1st March 1948 the property was gifted to Shambhu Singh by means of a registered gift deed. Shambhu Singh is the son-in-law of Mahadeo Singh, After the abolition of zamindari in the year 1951 Shambhu Singh became the bhumidhar of the plots in dispute. On 9-9-1960 Shambhu Singh executed a sale deed in favour of Lal Behari Singh and Bodhan Singh. Lal Behari Singh was the original plaintiff. Bodhan Singh was defendant No. 4 in the suit. Lal Behari Singh died during the pendency of the suit and in his place Ram Niranjan, son of Lal Behari Singh, was substituted. 2. The case of the plaintiff respondent was that after the execution of the sale deed dated 9th September 1960 the vendees were put in possession of the disputed property and since then they are Bhumidhars in possession of the property. It was further alleged that Smt. Umrai, who was the appellant before this Court, (who died during the pendency of this appeal in this Court and Fateh Bahadur Singh has been substituted in her place) was the widow of Mahadeo Singh. She in collusion with Shambhu Singh, the vendor, instituted Suit No. 87 of 1961 under Section 9 of the Specific Relief Act against the vendees and obtained a decree dated 6-12-1961 in her favour. The suit was filed for a permanent injunction restraining Smt. Umarai and Shambhu Singh from interfering with the plaintiff respondents possession of the disputed plots, as Smt. Umrai and Shambhu Singh intended to take unlawful possession of the property by virtue of the decree having been obtained by them under Section 9 of the Specific Relief Act. 3. The suit was contested by the appellate Smt. Umrai. She alleged that Mahadeo Singh was in possession of the disputed plots during his lifetime and after his death she succeeded as his widow and entered into possession. 3. The suit was contested by the appellate Smt. Umrai. She alleged that Mahadeo Singh was in possession of the disputed plots during his lifetime and after his death she succeeded as his widow and entered into possession. It was further alleged that Shambhu Singh nor the vendees of Shambhu Singh had any concern with these plots and that since she was forcibly dispossessed by vendees she was compelled to file the suit under Section 9 of the Specific Relief Act. The validity of the gift deed dated 1st March 1948 in favour of Shambhu Singh was also challenged on the ground that it was void because it was a fraud on registration. 4. The suit was dismissed by the trial court by its judgment dated 25th May, 1966. Against the judgment dated 25 May, 1966, an appeal was filed by the plaintiff-respondent. The appeal was allowed by the lower appellate court by its judgment dated 23rd May 1967 and the suit for injunction was decreed against the appellant. Against this judgment the present appeal has been filed ,in this court. 5. Learned counsel for the appellant has raised the following contentions. 1. the Civil Court had no jurisdiction to entertain the suit, the suit was entertain able by a revenue court, 2. the sale deed dated 9-9-1960 is void in law as it was a fraud on registration. 3. Mahadeo Singh could not transfer the plots in dispute of which Mahadeo Singh was the ex-proprietary tenant, 4. the appellant having taken possession of the property in pursuance of the decree passed in her favour under Section 9 of the Specific Relief Act the suit for mere injunction was not maintainable and 5. the State of U. P. and the Gaon Sabha were necessary parties to the suit and in their absence the suit could not have been decreed. This contention is in fact based on the first contention, namely, that the suit being for declaration under Section 229B of the U. P. Zamindari Abolition and Land Reforms Act, 1951, the State of U. P. and the Goan Sabha were necessary parties. 6. I will consider the first and the fifth contentions together as both these contentions depend upon the question as to whether the civil court had jurisdiction to try the suit. 6. I will consider the first and the fifth contentions together as both these contentions depend upon the question as to whether the civil court had jurisdiction to try the suit. In Ram Awalamb v. Jata Shankar, 1968 All LJ 1108, a Full Bench of this Court had considered the question as to under which circumstances the civil court or the revenue court will have jurisdiction. The principle laid down by the Full Bench was that: "Where on the basis of a cause of action- (a) the main relief is cognisable by a revenue court the suit would be cognisable by the revenue court only. The fact that the ancillary reliefs claimed are cognisable by civil court would be immaterial for determining the proper forum for the suit; (b) the main relief is cognisable by the civil court the suit would be cognisable by the civil court only and the ancillary reliefs, which could be granted by the revenue court may also be granted by the civil court." 7. In the instant case Shambhu Singh, the vendor of the plaintiff respondent was the bhumidhar of the plots in dispute. The plots in dispute were transferred in favour of the plaintiff respondent and he was put in possession of the property. From a reading of the plaint it is clear that the cause of action for the filing of the suit was the interference caused by the appellant in regard to the possession of the property. The other cause of action which has been alleged is the fact that a decree had been obtained against the plaintiff-respondent under Section 9 of the Specific Relief Act. The only relief, therefore, which was sought in the plaint, was a perpetual injunction restraining the appellant from interfering with the possession of the plaintiff respondent. This relief of injunction could only be granted by the civil court. The revenue court has not been empowered to grant the relief of injunction. In the circumstances the main relief in the instant case was the relief of injunction. In view of this factual position the principle laid down in (b) mentioned above by the Full Bench of this Court fully applied and as such the suit would be cognisable by the civil court. 8. There is another aspect of this matter. In the circumstances the main relief in the instant case was the relief of injunction. In view of this factual position the principle laid down in (b) mentioned above by the Full Bench of this Court fully applied and as such the suit would be cognisable by the civil court. 8. There is another aspect of this matter. Section 229B of the U. P. Zamindari Abolition and Land Reforms Act when the suit was filed was as follows: "(1) Any person claiming to be an assami whether exclusively or jointly with any other person may sue the landholder- (a) for a declaration that he is an as-sami of the holding or (b) for a declaration of his share therein. (2) In any suit under sub-section (1) any other person claiming to hold as asami under the land-holder shall be impleaded as 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 'land-holder the words 'the State Government and the Gaon Samaj are substituted therein." 9. This section came up for interpretation before a Division Bench of this Court in Parsottam v. Narottam 1970 All LJ 505. It was held that the suit contemplated by the provisions of Section 229B is directed primarily against the State Government and the Goan Sabha. Such a suit would be necessary only if the State Government or the Gaon Sabha disputed the title of the plaintiff as a bhumidhar or a sirdar. If the State Government or the Gaon Sabha does not dispute the claim of the plaintiff such a suit would not lie under Section 229B merely because some other person disputes the plaintiffs claim. In the instant case neither the State Government nor the Gaon Sabha are disputing the plaintiff respondents claim. The lower appellate court has further recorded a finding that admittedly Shambhu Singhs name was recorded in the revenue records. He became a bhumidhar by virtue of the bhumidari sanad dated 9-9-1960. Thereafter from the extract of khasra of 1368-F it is clear that Lal Behari Singhs name was entered in the remarks column. The lower appellate court has further recorded a finding that admittedly Shambhu Singhs name was recorded in the revenue records. He became a bhumidhar by virtue of the bhumidari sanad dated 9-9-1960. Thereafter from the extract of khasra of 1368-F it is clear that Lal Behari Singhs name was entered in the remarks column. The khasra extracts of the subsequent period have not been filed by any of the parties-The position, therefore, is that on the record there is no entry against the plaintiff respondent requiring the plaintiff respondent to file a suit for a declaration under Section 229B against the State Government or the Gaon Sabha. The suit under Section 229B would be required only where the plaintiff has a grievance against the village records which are maintained by the State Government and the Gaon Sabha but if the village record supports the claim of the plaintiff respondent it was not necessary for him to file a suit under Section 229B. In this view of the matter the case of Parsottam (Supra) does not in fact assist the appellant but supports the respondent and in view of the circumstances mentioned above, in my opinion, it was not necessary for the plaintiff respondent to have impleaded the State of U. P. and the Gaon Sabha as parties to the suit. In view of the above I am of the opinion that the first and fifth submission made by the learned counsel do not have substance. 10. Learned counsel for the appellant has argued at length on the interpretation of Section 331 (1-A) of the U. P. Zamindari Abolition and Land Reforms Act but since I have taken the view that the civil court had jurisdiction to entertain the suit it is not necessary for me to go into this question. 11. As regards second contention raised by the learned counsel it has been found by the lower appellate court that part of the property which was sought to be transferred actually existed within the jurisdiction of the registering officer. 11. As regards second contention raised by the learned counsel it has been found by the lower appellate court that part of the property which was sought to be transferred actually existed within the jurisdiction of the registering officer. It has been further found that Shambhu Singh did intend to transfer the said property, in Irshad Ali v. Nadari Begam, AIR 1941 All 179 , it has been held that where the property actually exists within the jurisdiction of the registering officer and the parties intended to transfer it the registration would not be affected merely because the mortgagee or the transferee fails to prove the title of the mortgagor or the transferor. The principle laid down in the case of Irshad Ali (Supra) fully applies to the instant case and I respectfully agree with the same. In the circumstances I do not find any force in the second contention raised by the learned counsel for the appellant. 12. In regard to the third contention raised by the learned counsel for the appellant it is admitted by the parties that the interest of an ex-proprietary tenant was not transferable under Section 33 of the U. P. Tenancy Act, 1939 and as such the gift deed was void in respect of those rights. It has, however, been found by the lower appellate court that Shambhu Singh in whose favour gift deed was executed entered into possession of the disputed plots under this deed and remained in possession until the execution of the sale deed dated 9-9-1960. Learned counsel for the respondent has urged in this connection that if Shambhu Singh entered into possession by virtue of the void sale deed in respect of ex-proprietary rights his possession became adverse to that of Mahadeo Singh and as such he acquired rights by adverse possession in Bharat v. Board of Revenue, 1973 All LJ 29, a Division Bench of or court held as follows:- "In case the sale is found to be invalid for any reason the passing of the title may be frustrated; but nonetheless the transferee claimed to remain in possession in accordance with the terms of the-invalid sale-deed, namely as the full owner of the rights in the plots, which were the subject-matter of sale. It is from this point of view that it has been said that the possession of such a transferee is adverse to the transferor from the very first day when the transferee enters possession of the land. The possession of a transferee in the case of sale is not on behalf of the transferor, because the transferor has purported to part with his entire interests in the property. The transaction did not create or retain any privity between the parties. In such a situation, the transferees possession could not in law, be on behalf of the transferor. The transferee remains in possession in his own claim based on the terms of the sale. If the document of sale is invalid the transferee gets no title under it. His possession will not be referable to any legal title; it would be adverse to the transferor." 13. In view of the above principle laid down in Bharits case (supra) it is clear that the possession of Shambhu Singh qua Mahadeo Singh was clearly adverse possession and as such he acquired rights by adverse possession. The-view in this regard taken by the lower appellate court is, therefore, in accordance with law. 14. In regard to the fourth contention raised by the learned counsel for the appellant the lower appellate court has recorded as categorical finding of fact that after the decree dated 6-12-1961 the appellant obtained a Dakhal dated 3-2-1963. This Dakhal was a purely paper transaction and in fact the plaintiff respondent was in actual possession of the plots in dispute. In view of the finding of fact that the plaintiff respondent is in actual possession of the property in dispute the lower appellate court was. justified in granting the relief of permanent injunction sought for by the plaintiff respondent. I find no illegality in the same. 15. In the result the appeal fails and is accordingly dismissed but in the circumstances of the case I direct the parties to bear their own costs.