Abdul Sattar v. Mohammad Saeed — 1982 DIGILAW 280 (ALL)

JUDGMENT T.S. Misra, J. - This appeal arises in the following circumstances. The plaintiff-respondent filed the suit alleging that Abdul Hamid was formerly a Sirdar of the land in dispute. Later on he required Bhumidhari rights in the said land and sold it to the plaintiff per sale-deed dated 5.2.1971 for a consideration of Rs. 9,500/- and put the plaintiff to possession of the same. At the time of the execution of the sale-deed it transpired to the plaintiff that the defendant No. 2 had set up some other person posing as Abdul Hamid and got a fictitious power of attorney executed from that impersonator and then executed a sale deed in favour of his own son-in-law the defendant No. 1. The plaintiff, therefore, contended that the said sale deed executed by the defendant no. 2 in favour of the defendant No. 1 is a void, fraudulent and fictitious document. The defendants then wanted to take possession of the said land and with a view to avoid dispute the plaintiff initiated proceedings under section 145 Cr.P.C. and the land was attached in those proceedings. The said proceedings, however, were decided against the plaintiff and the defendants then attempted to take possession of the land. Consequently the plaintiff filed the suit which has given rise to this appeal. He claimed in the suit a declaration that the sale deed dated 5.2.1971 executed by the defendant No. 2 in favour of the defendant No. 1 was void, illegal, fictitious and fraudulent. He also claimed permanent injunction restraining the defendants from taking possession of the said land. The suit was resisted by the defendants. The trial court on a consideration of the evidence on record found merits in the claim of the plaintiff and decreed the suit. The defendants had, inter alia, challenged the jurisdiction of the civil Court to try the suit. That plea was repelled. The matter was then taken to the appellate court below but the appeal failed and the judgment and decree pas-ed by the trial court were maintained. The defendants have now come up to this court on second appeal. 2. For the appellants it was urged at the outset that they should be permitted to file additional evidence in the case. I shall deal with those applications at the appropriate stage. 3. The defendants have now come up to this court on second appeal. 2. For the appellants it was urged at the outset that they should be permitted to file additional evidence in the case. I shall deal with those applications at the appropriate stage. 3. The learned counsel for the appellants strenuously argued that the trial court had no jurisdiction to try the suit and the matter was cognisable only by the revenue court. The submission was that the criminal court in the proceedings under section 145 Cr.P.C. had found that the defendants were in possession of the land in dispute on the date of the preliminary order and two months thereto hence the plaintiff in view of this finding should have filed a suit under section 229-B read with section 209 of the U.P. Zamindari Abolition and Land Reforms Act, in the appropriate revenue court. Further to strengthen this argument it was submitted that according to the plaintiff himself the document executed by the defendant No. 2 in favour of the defendant No. 1 was void. That being the position the suit was not cognisable by the Civil Court because the revenue court could always ignore that document and grant appropriate relief under section 229-B read with section 209 of the U.P. Zamindari Abolition and Laud Reforms Act. The learned Counsel for the respondent however urged that both the courts below were justified in holding that the suit was cognisable by the Civil Court inasmuch the main reliefs sought for in the suit were the declaration that the sale deed executed by the defendant No. 2 in favour of the defendant No. 1 was illegal and void and that the defendants should be restrained from taking possession of the land in dispute. Such relief could, according to the learned counsel for the plaintiff-respondent, be granted only by the Civil Court and not by the revenue court. 4. In support of their respective contentions the learned counsel for the parties have placed reliance on the Full Bench decision of this Court reported in Ram Awalamb and others v. Jata Shanker and others, 1968 R.D. 470. The learned counsel for the appellants also placed reliance on the case reported in Gorakh Nath Dube v. Hari Narain Singh and others, A.I.R. 1973 S.C. 2451 and Jai Singh v. Hanumant Singh and others, 1979 A.L.R. 3. The learned counsel for the appellants also placed reliance on the case reported in Gorakh Nath Dube v. Hari Narain Singh and others, A.I.R. 1973 S.C. 2451 and Jai Singh v. Hanumant Singh and others, 1979 A.L.R. 3. On the other hand the learned counsel for the plaintiff-respondent relied on the cases reported in Parsottam v. Narottam and another, 1970 A.L.J. 505. Mst. Umrai v. Ram Niranjan and others, 1980 All. L.J. 431. and Kishori Lal v. Shambhoo Nath and others, 1979 R.D. 37. 5. The question as to whether the civil court or the revenue court would have jurisdiction to entertain a particular suit has always been a vexed one and despite the decision of a Full Bench of this Court in Ram Awalamb and others v. Jata Shanker and others(supra) the plea of jurisdiction has always been raised for decision whenever any occasion arose for it. In Ram Awalamb's case (supra) various principles were succinctly Laid down for determination as to whether civil court or revenue court would have jurisdiction. The Full Bench noticed that it was difficult to lay down any hard and fast rule that where the suit brought against a trespasser the only relief which the plaintiff should claim as an effective relief is that of possession and he need not try to obtain any injunction order. The Full Bench, therefore, endorsed the view expressed by a Division Bench in the case of Mewa and others v. Baldeo, 1966 R.D. 392 that once the suit is maintainable for the main relief in the civil court then there is no bar for the civil Court to grant all possible reliefs flowing from the same cause of action. It Laid down that there 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. But where 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. But where 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. It was held that to have a document judged void or voidable could not be considered to be altogether unnecessary because after a lapse of several years the unchallenged existence of such documents can cause serious difficulty to the plaintiff in establishing his title to the land of his share. The plaintiff was, therefore, not bound to ask for a mere declaration of his title in respect of the land when he could pray for cancellation of the entire sale deed or at least a part of it, and that the reliefs for declaration and partition could not be said to be effective alternative relief for the cancellation of the sale deed in respect of the whole or part of the joint property. So the pith and substance of the relief and not its form should be looked into. If the cause of action is one in which the revenue court can have no jurisdiction then the suit would lie in the civil court. But if the cause of action is one where the main relief is cognisable by a revenue court the suit would be cognisable by the revenue court. In Smt. Sonawaii and others v. Sri Rant and another, 1968 R.D. 151 the land was at the date of the suit under attachment under section 145 Cr.P.C. and the Magistrate had directed the parties to establish their possession or right to possession in a competent civil court. A suit for declaration and injunction in that state of affairs was held to have been properly filed. It was, however noticed in that case that pursuant to the order of the First Appellate Court, the defendant obtained possession from the Criminal court and thereafter the plaintiffs amended the plaint with the leave of the High Court and a decree for possession was claimed. It was, however noticed in that case that pursuant to the order of the First Appellate Court, the defendant obtained possession from the Criminal court and thereafter the plaintiffs amended the plaint with the leave of the High Court and a decree for possession was claimed. The Supreme Court held on these facts that "when the High Court held in favour of the plaintiffs and rejected the claim made by the defendant, the High Court was justified and indeed bound to avoid giving a fresh lease of life to this litigation, to make an order consistently with the rights declared by it, since the defendant had during the pendency of the suit managed to obtain possession of the land from the Court Officer who was in possession of the land. A party who is defeated on the merits of the dispute may not be securing an order from another Court during the pendency of a suit be permitted to displace the jurisdiction of the Court to try the suit which was within its competence when the suit was filed. "In Mirza Mohd. Aziz v. Safdar Husain and another, A.I.R. 1962 All. 68. it was held that "where a party against whom an order has been passed in a case under Section 145, files a suit in a competent civil court for the decision of the dispute and the civil court issues a temporary injunction stopping the other party from taking possession of the property in dispute according to the order of the Magistrate, the order of the Criminal Court although valid cannot be enforced so long as the injunction is in force." 6. In Pursottam v. Narottam and another (supra) the plaintiff filed a suit for permanent injunction restraining the defendants from cutting the crops standing over the plot in suit from interfering with the plaintiff' cultivating the plot in suit and enjoying the fruits of it and from interfering with the plaintiff in his possession over the plot in suit. It was held that so long as the entries in the revenue papers supported the claim of the plaintiff, and there was no contest from the state Government or the Gaon Sabha, the suit was cognisable by the civil Court which was competent to entertain and to adjudicate upon all the pleas raised including the plea that the land was a joint family property. The crux of the matter is that if the plaintiff had claimed any relief against the Gaon Sabha or the State Government or he ought to have done so having regard to the facts of the case, the suit would lie within the exclusive jurisdiction of the revenue court. In that the plaintiff had claimed no relief against the Gaon Sabha or the State Government it was held that because of the entries in his favour there was no reason why the suit could not be tried by the civil court. This decision of the Division Bench was followed recently by a learned Single Judge in the case of Mst. Umrai v. Ram Niranjan and others (supra) In that case it was also held that the relief of injunction could only be granted by the civil Court. The Revenue Court has not been empowered to grant the relief of injunction, and where the cause of action for filing of the suit was the interference caused by the defendant in regard to the possession of the property and only relief, therefore, sought to the plaint was a perpetual injunction restraining the defendant from interfering with the possession of the plaintiff, the suit would be cognisable by the Civil Court. Support for this view was taken from the decision of the Full Bench in Ram Awalamb's case (supra). 7. In Ram Dhani v. Janki Ram Singh and others, A.I.R. 1972 All. 553 it was held that the delivery of possession given to a party under Section 145 Cr.P.C. is subject to a decision by a Court of competent jurisdiction. Therefore, when there is concurrent finding of fact in a civil suit, that the defendant was not the purchaser of the disputed land and that he purchased some other land, the contention that his possession was upheld in Section 145 proceedings, cannot stand. 8. Similarly in Bhinka and others v. Charan Singh, A.I.R. 1959 S.C. 960 it was held that in passing an order under section 145 (6) Cr.P.C. (old), the Magistrate does not purport to decide a party's title or right to possession of the land but expressly reserves that question to be decided in due course of law. 8. Similarly in Bhinka and others v. Charan Singh, A.I.R. 1959 S.C. 960 it was held that in passing an order under section 145 (6) Cr.P.C. (old), the Magistrate does not purport to decide a party's title or right to possession of the land but expressly reserves that question to be decided in due course of law. The foundation of his jurisdiction is an apprehension of the breach of the peace, and, with that object, he makes a temporary order irrespective of the rights of the parties, which will have to be agitated and disposed of in the manner provided by law. The life of the said order is conterminous with the passing of a decree by a Civil Court and the moment a Civil Court makes an order of eviction, it displaces the order of the Criminal Court. The orders are thus merely police orders and decide no question of title. The orders under section 145 Cr.P.C. are merely made to prevent breaches of the peace hence a provisional order of a Magistrate under section 145 Cr.P.C. in regard to possession irrespective of the rights of the parties cannot enable a person to resist the suit of title. 9. Now the facts of the instant case may be examined, with a view to consider the question of Civil Court's jurisdiction. The plaintiff alleged that the sale deed purporting to have been executed by the defendant No. 2 in favour of defendant No. 1 was void, fictitious and fraudulent and as the defendants were threatening to take possession of the land in dispute, after having obtained that document, they be restrained because the plaintiff had already obtained a sale deed in his favour from the erstwhile owner but before he filed the suit he had initiated proceedings under section 145. Cr.P.C. by the very nature of those proceedings under section 145 Cr.P.C. the question of title with respect to the land in dispute could not be decided by the Magistrate. Those proceedings were based on apprehension of breach of peace. The question of title was, in view of the provisions of section 145 Cr.P.C. (old) ultimately to be decided by competent court. Those proceedings were based on apprehension of breach of peace. The question of title was, in view of the provisions of section 145 Cr.P.C. (old) ultimately to be decided by competent court. The plaintiff' filed the suit seeking a declaration that the sale deed executed in favour of the defendant No. 1 was void and fictitious and that the defendants be restrained from interfering with his possession over the land in dispute. He also obtained a temporary injunction against the defendants restraining them from taking possession of the land in dispute on the basis of the order passed under section 145 Cr.P.C. The Supurdar appointed by the Magistrate could not deliver possession of the said land to the defendants. The defendants, however, contested the suit in the Civil Court and pleaded, inter alia, that the suit was not cognisable by the civil Court. As indicated here in above, the learned counsel for the appellants submitted that the provisions of section 229-B read with section 209 of the U.P. Zamindari Abolition and Land Reforms Act could have been invoked by the plaintiff and the suit should have been filed in the Revenue Court for the appropriate relief of declaration and possession. 10. Section 209 deals with ejectment of persons occupying land without title. It says that a person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force shall be liable to ejectment and shall also be liable to pay damages. Section 229-B of the Act provides that any person claiming to be an Asami of a holding or any part thereof, whether exclusively or jointly with any other person may sue the land holder for a declaration of his rights as asami in such holding or part, as the case may be. The provisions of sub-section (I) of section 229-B of the Act apply mutatis mutandis to a suit by a person claiming to be a Bhumidhar. Relying on these two provisions of the U.P. Zamindari Abolition and Land Reforms Act it was submitted on behalf of the appellants that the plaintiffs should have asked for a declaration under section 229-B and should have asked for ejectment of the defendants under section 209 of the Act by filing a suit in the Revenue Court. There is no merit in the contention. There is no merit in the contention. The question of title is not at all decided in the proceedings under section 145 Cr.P.C. when a temporary injunction restraining the other party from taking possession of the property in dispute in accordance with the order of the Magistrate under section 145 Cr.P.C. is issued by a competent court the order of the Criminal Court cannot be enforced so long as the injunction subsists. It was not in dispute before me that the Civil Court had issued a temporary injunction restraining the defendants from taking possession of the land in dispute on the basis of the order passed under section 145 Cr.P.C. So that order could not be enforced so long as the injunction subsisted. Even if the possession had been delivered before the issuance of injunction though this is not a fact in the instant case the delivery of possession would be subject to the decision by a court of competent jurisdiction. As held by the Division Bench in Parsottam's case (supra) the entries in the revenue papers did not support the claim of the defendants. On the date of the institution of the suit the entry in the revenue paper pertaining to the land in dispute stood in the name of the erstwhile tenure holder. Subsequently during the pendency of the suit the entry was made in favour of the plaintiff. Therefore, there was no occasion for the State Government or the Gaon Sabha to contest those entries or even to contest the claim of the plaintiff. The plaintiff however, faced with a document purporting to be a sale deed executed by the defendant No. 2 in favour of the defendant No. 1 pertaining to the same property which he had purchased from Abdul Hamid who was the erstwhile Bhumidhar. That sale-deed executed in favour of the defendant No. 1 unless declared void would always have created a difficulty in the way of the plaintiff. He had, therefore, a cause of action for having that sale-deed declared void. He came with the allegation that his possession over the land in dispute was being threatened by the defendants after the sale deed had been executed. Both the reliefs could obviously be not granted by the revenue court either under section 209 or under section 229-15 of the U.P. Zamindari Abolition and Land Reforms Act. He came with the allegation that his possession over the land in dispute was being threatened by the defendants after the sale deed had been executed. Both the reliefs could obviously be not granted by the revenue court either under section 209 or under section 229-15 of the U.P. Zamindari Abolition and Land Reforms Act. The pith and substance of the plaint clearly made out that the suit was cognisable by the civil Court and not by the revenue court. The contention of the appellants to the contrary is unsustainable. 11. The learned counsel for the appellants submitted that the Supurdar appointed under section 145 Cr.P.C. held that possession of the land in dispute for the benefit of the person who would be ultimately held entitled to possession under section 145 Cr.P.C. Normally, the Supurdar would naturally be directed to deliver possession to one who was found to be in possession on the date of the preliminary order and two months prior thereto of the said property, but before he could deliver possession to that person if the civil court issues a temporary injunction order he would certainly not be liable to deliver possession to any one so long as the injunction order subsisted. That is what exactly happened in this case. Before possession could be actually delivered to the defendants the civil court had issued a temporary injunction order restraining the defendants from taking possession. Ultimately the suit was decreed upholding the title of the plaintiff. The decree passed by the trial court as affirmed by the appellate court below could not hence be said to be bad in law. The learned counsel, however, submitted that in view of certain documents sought to be filed at this stage a different conclusion with regard to the title in the property could be arrived at. I am not impressed by the argument. Both the courts below have upheld the claim of the plaintiff. No justifiable ground has been shown to admit the documents as additional evidence at this stage. In fact that the documents sought to be adduced as evidence with the application filed today came in existence long after the decision by the trial court. So is the case with regard to the documents sought to be filed with Civil Misc. Application No. 3008 of 1979. In fact that the documents sought to be adduced as evidence with the application filed today came in existence long after the decision by the trial court. So is the case with regard to the documents sought to be filed with Civil Misc. Application No. 3008 of 1979. It is not a case where the documents sought to be adduced at this stage were sought to be filed before the trial court and had been refused nor it is a case that the said documents could not be had by the appellants despite due diligence or that they were not within his knowledge. I also do not require these documents to pronounce the judgment in this case. Both the said applications are, therefore, rejected. 12. For the reasons in the foregoing the appeal has to fail it is accordingly dismissed with costs.