Bhola Nath v. Baba Damodar Das — 1981 DIGILAW 777 (ALL)

JUDGMENT V.K. Mehrotra, J. - This is a plaintiff's second appeal. 2. The plaintiffs went to court primarily with the allegation that they were recorded bhumidhars of the suit land which formed part of Khata No. 53, having purchased it through a registered sale-deed dated Dec. 23, 1965 from Satyavrat Rai, the bhumidhar. The defendant, according to the plaintiffs allegation, had nothing to do with the suit land. He was interfering with the plaintiffs possession. The relief that was sought in the suit, initially, was that the defendant be restrained by an injunction from interfering with the plaintiffs possession. The plaintiffs subsequently sought an amendment in the plaint by alleging that the defendant had demolished a part of his boundary wall which enclosed the suit land and encroached upon a portion of the suit land by raising some construction thereon. The plaintiffs, consequently, sought relief of possession over the portion of his land so encroached upon. 3. The main plea that the defendant took was that the plaintiffs were not the bhumidahrs of the area in dispute and that it was the defendant who was in cultivatory possession thereof for a long time. He was, therefore, its sirdar. The plaintiffs were not entitled to the reliefs claimed. 4. On the aforesaid basic pleas, the trial court framed as many as seven issues. The first of these issues was whether the plaintiffs were bhumidhars in possession of the land in suit forming part of plot 53. This issue, on consideration of the evidence led by the parties, was answered in favour of the plaintiffs. It was held that the plaintiffs were the bhumidhars in possession of the land in suit and were rightly recorded as such. 5. The plea of the defendant, claiming sirdari rights, led to issue 5 being framed in the case to the effect whether he was a sirdar of the land in suit. This issue was answered against the defendant. It was held by the trial court, on the basis of the evidence on record, that the defendant had raised the disputed construction during the pendency of the suit. He was not, according to the trial court, in adverse possession as claimed by him. 6. The defendant had also pleaded that the suit was not cognizable by the civil court. It was held by the trial court, on the basis of the evidence on record, that the defendant had raised the disputed construction during the pendency of the suit. He was not, according to the trial court, in adverse possession as claimed by him. 6. The defendant had also pleaded that the suit was not cognizable by the civil court. Issue 6 in this respect was "whether the suit is cognizable by this court?" The trial court held that since the main relief was for permanent injunction, the suit was cognizable by the Civil Court. It followed the decision of a Full Bench of this court in the case of Ram Awalamb v. Jata Shanker (1968 All L J 1108). The suit was decreed by the trial court both for the relief- of permanent injunction restraining the defendant from interfering with the plaintiffs possession as well as for recovery of possession over the encroached portion. Feeling aggrieved. the defendant appealed. 7. The lower appellate court posed the first point for determination by it in the appeal to be whether the suit was cognizable by the Civil Court or should it have been filed in the revenue court under S. 209 of U. P. Act No. I of 1951. It felt that having regard to the fact that relief of possession had also been sought in the suit which was obtainable by the plaintiff before the revenue court by recourse to a suit under S. 209 of U. P. Act No. I of 1951. the suit would be cognizable by the revenue court. It relied upon the decision of the Supreme Court in Chandrika Misir v. Bhaiyalal (AIR 1973 S C 2391). On its view in this regard, the lower appellate court felt that the plaintiffs case deserved to be dismissed on this ground alone. Reversing the trial court decree, it dismissed the plaintiffs suit. The plaintiffs have now approached this court in the present second appeal. 8. The submission of Sri Sankatha Rai, appearing for the plaintiffs-appellants is that the view of the lower appellate court that the suit was cognizable by the revenue court was not correct and that the decree of that court deserved to be reversed. The submission is that the suit was cognizable by the civil court and the lower appellate court ought to have decided it on merits. 9. The submission is that the suit was cognizable by the civil court and the lower appellate court ought to have decided it on merits. 9. It has been noticed earlier that the suit primarily was for the relief of injunction restraining the defendant from interfering with the plaintiffs possession on the assertion that the plaintiffs were the bhumidhars of the plot in suit and were recorded as such. The defendant, according to the plaintiffs case, was interfering with their possession on which account arose the necessity for a suit claiming the relief of injunction. Later, by an amendment, the plaintiff claimed the relief of possession on the ground that the defendant had encroached upon a portion of his property during the pendency of the suit. 10. On the allegations made in the plaint, it is clear that the plaintiffs were seeking to enforce their rights as bhumidhars in respect of the plots in suit over which they were actually recorded as bhumidhar. They were not seeking any declaration about their status as a bhumidhar. On the plea so taken, it is obvious that the relief of injunction could be sought by the plaintiffs only in the civil court. The fact it became necessary for the plaintiffs relief could be granted by the revenue court, could not be held to divert the civil court of its jurisdiction to deal with the case. 11. In Smt. Sonawati v. Sri Ram (AIR 1968 S C 466). it was ruled by the Supreme Court that the jurisdiction of the civil court to try a suit, which was within its competence when filed, could not be diverted by a subsequent event of the necessity for the plaintiff to seek a relief which could also be given to him by the revenue court. In that case, the suit was originally filed in the civil court for the reliefs of declaration and injunction. It was cognizable by the suit court. Subsequently, the defendant obtained possession of the land from the criminal court, under whose custody the land was in proceedings before it. This necessitated the claim for the relief of possession as well at a subsequent stage in the suit. It was cognizable by the suit court. Subsequently, the defendant obtained possession of the land from the criminal court, under whose custody the land was in proceedings before it. This necessitated the claim for the relief of possession as well at a subsequent stage in the suit. The Supreme Court repelled the submission made on behalf of the defendant that on account of the claim for the relief of possession, which the revenue court was competent to give the jurisdiction of the civil court to proceed with the suit came to an end. 12. In Parsottam v. Narottam, 1970 All L J 505) a Division Bench of this court had occasion to deal with the question as to whether the civil court would have jurisdiction to try a suit where the plaintiffs claim was supported by the revenue entries and he was seeking the relief only of an injunction. The Bench observed (in Para 9) as follows :- "In the instant case the plaintiff had acquired the bhumidhari sanad under 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 plaintiffs claim. The only persons who disputed the plaintiffs claim were the defendants. The plaintiff was, therefore, perfectly justified in filing the suit against the defendants and not against the State Government or the Gaon Sabha. The only persons who disputed the plaintiffs claim were the defendants. The plaintiff was, therefore, perfectly justified in filing the suit against the defendants and not against the State Government or the Gaon Sabha. A suit of this nature is obviously not covered by S. 229-B of the Act and would be cognizable the jurisdiction to entertain all kinds of suits between the litigating parties." Later (in para 11) it further observed as follows :- "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 Government and Gaon Sabha the suit will lie in revenue court under S. 229-B and any other person who disputes the plaintiff's title shall also be impleaded as a defendant but if the village record support the claim of the plaintiff, the suit will not lie under S. 229B but will be cognizable by a civil court in case the plaintiffs right is disputed by a third person .............." 13. These observations clearly apply to the facts of the instant case where also the plaintiffs claim is supported by the entries in the revenue records and is being contested only by the defendant. 14. It has been urged on behalf of the defendant-respondent that the suit being for recovery of possession also, over the portion of the property said to have been encroached by the defendant, relief was available to the plaintiff before the revenue court through a suit under S. 209 of U. P. Act No. 1 of 1951. As such, having regard to the Explanation to S. 331 of that Act, the suit was exclusively triable by the revenue court. Reliance was placed by the learned counsel, in support of his submission upon some decisions which may now be noticed. 15. In Smt. Bhagwati Devi v. Radhey Shyam, (1976 All W C 7211: (1977 All L J 74) Satish Chandra, J. (as he then was) held that in a case where the plaintiff claimed that he was bhumidhar of the plot over which constructions stood and had been illegally dispossessed therefrom by the defendant, the suit for possession over the construction and the Sehan land lay before the revenue court and the civil court had no jurisdiction to entertain it. From the report, it does not appear clearly as to whether the plaintiff was also recorded as a bhumidhar in revenue records. Besides. the suit was for possession simpliciter over the area in question which, having regard to the definition of the word `land' contained in S. 3(14) of U. P. Act No. 1 of 1951 was held to be land in respect whereof a suit for possession was cognizable under S. 209 of that Act. Dealing with the submission that the suit did not relate to possession over land but involved the demolition of the constructions as well, the learned judge observed that when the plaintiff was dispossessed from the constructions, he would he deemed to have been dispossessed from their site as well and that relief for possession over the constructions and Sehan could be effectively given only after dispossessing the defendant from the site and then giving possession to the plaintiff over the site along with constructions. According to the learned Judge the suit was in law, for possession over the land with its constructions and, as such, it lay before the revenue court. It is obvious that the suit, even as initially framed, was found to be one for possession over land which relief could be given by the revenue court. 16. In Chandrika Nisir v. Bhaiyalal, (AIR 1973 S C 2391) upon which reliance was placed by the lower appellate court, and also by the learned counsel for the defendant- respondent in this court the facts were that the plaintiffs claimed that as next reversioners of the recorded bhumidhars of the plot in suit, they had title to the property. It was alleged by them that the respondent was interfering with their possession so that relief for restraining them from doing so was claimed by way of an injunction. In the alternative, relief of possession was also asked for. The Supreme Court took the view, on these facts, that the plaintiffs having been found to be the bhumidhar of the land in suit of which the defendant had been retaining possession contrary to law, and was thus a trespasser, the suit fell in the category of cases covered by S. 209 U. P. Act I of 1951. The Supreme Court took the view, on these facts, that the plaintiffs having been found to be the bhumidhar of the land in suit of which the defendant had been retaining possession contrary to law, and was thus a trespasser, the suit fell in the category of cases covered by S. 209 U. P. Act I of 1951. The suit for ejectment of persons occupying land without title could only be filed before the revenue court so that the civil Court had inherent lack of jurisdiction to entertain it. It is noticeable that the Supreme Court was not dealing with a case wherein the plaintiff was recorded as a bhumidhar in the revenue records and on that basis the relief of injunction was being sought by him. The Supreme Court proceeded to decide the case on its view that the case was cognizable under section 209 , U. P. Act, l of 1951, and related to recovery of possession from a person who was retaining it contrary to law. 17. In Dr. Ajoydhya Prasad v. Gangotri Prasad, (1981 All L J 647), a Division Bench of this court, following the decision aforesaid of the Supreme Court, held that the civil court had no jurisdiction to entertain the suit with which the Bench was dealing. That was a case wherein the plaintiff had instituted a suit in the Civil Court for the relief of declaration that he was the Sirdar of the land in dispute and for possession in case he was found to be out of possession. He had also claimed the relief of cancellation of a sale deed executed by defendant 1 in favour of the other defendant in respect of the holding in dispute and for an injunction. The Bench observed (in para 7) that "In view of the Explanation to S. 331 even if the relief for injunction was included in the plaint the suit would be cognizable by the revenue court because the revenue court could give an effective relief by way of declaration and, if necessary, by possession over the land in suit." It drew support from the decision of the Supreme Court in Chandrika Misir's case (AIR 1973 S C 2391) for this view. It is clear that where it is necessary for a plaintiff to seek declaration of his rights of an agricultural holding, the revenue court would be the proper court. 18. It is clear that where it is necessary for a plaintiff to seek declaration of his rights of an agricultural holding, the revenue court would be the proper court. 18. The present is a case in which the suit, as originally framed, was cognizable by the civil court for the relief of injunction. The relief of possession had to be sought later on account of the subsequent action of the defendant of encroaching upon a part of the suit land during the pendency of the suit as found by the trial court. On account of this subsequent need for claiming the relief of possession, however, the civil court could not be said to be divested of its jurisdiction to proceed with the matter in view of the law declared by the Supreme Court in Smt. Sonawati v. Sri Ram (AIR 1968 S C 466). In the circumstances, the lower appellate court was not right in taking-the view that the civil court had no jurisdiction to entertain the suit and that the plaintiff was liable to be refused relief on that ground alone. Its decree, dismissing the plaintiffs suit, cannot he upheld. 19. The appeal is allowed. The decree of the lower appellate court is set aside. Since the lower appellate court did not go into the merits of the controversy between the parties of the various issues, arising between them, but declined relief on its view that the suit was not maintainable, it is necessary that the matter should be heard and decided afresh by the lower appellate court on its merits. I direct accordingly. The parties shall, however, bear the costs of this appeal themselves. The record of the case shall be sent down to the court below at an early date.