ORDER K.N. Misra, J. - This writ petition is directed against the order dated 20th March, 1976 passed by the District Judge, Ghazipur in revision under S. 115, Code of Civil Procedure arising out of proceedings in a suit for injunction filed by the petitioner. 2. Briefly, stated, the facts of the case are as follows: - Petitioner filed suit for injunction in the civil court (Suit No. 53 of 1973) with the allegations that she had purchased the land in question from one Ragghu who was allotted this land in his chak during consolidation operations and he was bhumidhar of the same. It was further alleged that on the basis of the sale deed dated 10-8-1967 petitioner's name was mutated in proceedings under S. 10 of the U.P. Consolidation of Holdings Act (hereinafter referred to as `the Act'), by an order passed by the Consolidation Officer, but against that order opposite parties 4 to 6 namely, Ram Ashish, Shridhar, Ramdeo, who claimed to be heirs and successors of Ragghu and in possession over the land in suit, filed an appeal which was allowed by the Settlement Officer Consolidation and the case was remanded to the Consolidation Officer for decision afresh on merits. It is not disputed that the said case is still pending before the Consolidation Officer. In the present suit petitioner filed an application for temporary injunction for restraining the opposite parties 4 to 6 from interfering in her possession over the land in dispute. This application was rejected by the trial court on 7-5-1973. Petitioner filed appeal against that order which was allowed by 1st Temporary Civil & Sessions Judge, Ghazipur by order dated 17th December, 1973 and an order of temporary injunction was passed restraining the opposite parties from interfering in possession of the petitioner over the land in dispute. Aggrieved by that order opposite parties 4 too filed revision under S. 115 C.P.C. which was allowed by the District Judge, Gazipur by the order dated 20th March, 1976 and the application for temporary injunction was rejected. Learned District Judge observed that prima facie the suit filed by the plaintiff-respondent was barred under S. 49 of the U.P. Consolidation of Holdings Act and the lower appellate court irregularly exercised jurisdiction by ignoring the said fact.
Learned District Judge observed that prima facie the suit filed by the plaintiff-respondent was barred under S. 49 of the U.P. Consolidation of Holdings Act and the lower appellate court irregularly exercised jurisdiction by ignoring the said fact. In other words, learned District Judge found that when the suit itself was prima-facie barred under S. 49 of the Act, the temporary injunction could not be granted. Aggrieved by the said order petitioner filed revision in this court which was rejected on 29th July, 1979 holding that a second revision was not maintainable against the order passed in revision. Petitioner thereupon preferred this writ petition. 3. Learned counsel for the petitioner Sri Sankatha Rai urged that the suit for injunction filed by the petitioner was maintainable even during the pendency of the consolidation proceedings and the learned District Judge took erroneous view in holding that the suit was prima facie barred under S. 49 of Act. I am unable to agree with this contention. It is not disputed that the proceedings under S. 12 of the Act are still pending before the consolidation Officer in which the question of title between the parties in respect of the land in dispute is to be gone into on merits. It is well settled that when a village is brought under consolidation operation, then all the questions regarding declaration and adjudication of rights of tenure-holder in respect of the land lying in the area for which notification has been issued under sub-section (2) of Section 4 of the Act, have to be decided by the consolidation authorities in accordance with the provisions of the Act and no civil or revenue court shall entertain any suit or proceedings with respect to the rights in such land or with respect to any other matter for which a proceeding could or ought to have been taken under the said Act. It cannot be urged to have been taken that on the basis of the alleged transfer of land by Ragghu, petitioner could not seek remedy for getting her name recorded in place of Ragghu by taking recourse to proceedings under the provisions of the U.P. Consolidation of Holdings Act. 4.
It cannot be urged to have been taken that on the basis of the alleged transfer of land by Ragghu, petitioner could not seek remedy for getting her name recorded in place of Ragghu by taking recourse to proceedings under the provisions of the U.P. Consolidation of Holdings Act. 4. S. 12 of the Act specifically provides that all matters relating to changes and transfers affecting any of the rights or interests recorded in the revised records published under sub-s. (1) of S. 10 for which a cause of action had not arisen when proceedings under Sections 7 to 9 were started or were in progress, may be raised before the Assistant Consolidation Officer as and when they arise, but not later than the date of notification under S. 52 or under sub- section (1) of Section 6. 5. In view of this specific provision I find that the petitioner's application under S. 12 of the Act was competent and the same is still pending before the Consolidation Officer abating its disposal on merits. The opposite parties 4 to 7 have asserted that Ragghu has not executed any sale deed and that they are heris and in possession over the land in dispute. Thus the title of the petitioner, which is based on the aforesaid sale deed, will be gone into on merits by the consolidation authorities in proceedings under S. 12 of the Act, which will be decided in accordance with the provisions of Sections 7 to 11, which mutatis mutandis apply to the hearing and decision of the matter raised in sub-section (1) of S. 12 of the Act. In this view of the matter I find that the suit filed by the petitioner was not entertainable by the civil court because it would involve adjudication of rights of a tenure-holder in respect of the land lying in an area for which admittedly notification under sub-section (2) of Section 4 of the Act has already. been made. When suit itself was not maintainable, no injunction order could be passed against the defendants. A suit for injunction impliedly involves a declaration of title which is denied by the defendant in the suit, and it is not necessary for the plaintiff to have a formal prayer for declaration of his rights as a prayer for an injunction itself involves declaration of title.
A suit for injunction impliedly involves a declaration of title which is denied by the defendant in the suit, and it is not necessary for the plaintiff to have a formal prayer for declaration of his rights as a prayer for an injunction itself involves declaration of title. The plaintiffs right to injunction must be based upon some title, which he must establish to the satisfaction of the court as already observed above, the question of declaration and adjudication of rights of claimants in respect of the land lying in the area for which notification under sub- section (2) of Section 4 of the Act has been made, have got to be raised before the consolidation authorities and the jurisdiction of civil or revenue court will be barred in entertaining a suit during the period till de-notification is made under S. 52 of the Act. 6. Learned counsel, however, urged that if during pendency of consolidation proceeding any person tries to forcibly dispossess a tenure-holder then what would be his remedy. To which court he would approach for redress and for seeking a restrain order against the threatened action of his forcible dispossession by the wrong doer. According to the learned counsel since the consolidation courts cannot grant any temporary injunction order restraining the opposite party from interfering in the possession of the objector tenure-holder in proceedings under Section 9-A (2) or under S. 20 of the U.P. Consolidation of Holdings Act and, as such the filing of suit for injunction in civil court would not be barred and it would be the only appropriate available remedy to the concerned tenure- holder for maintaining his peaceful possession. Learned counsel further urged that an injunction suit cannot be held to be barred merely on the ground that such suit incidentally also involves declaration and adjudication of right, title and interest in the land, which can be determined only by the consolidation courts during the period from the date of notification made under Section 4(2) of the Act till the date of de-notification under Section 52 of the said Act. 7. At the first flash the argument, no doubt, appears to be attractive but on careful consideration it is found to be devoid of merit. 8. A detailed study of various provisions of the J. P. Consolidation of Holdings Act (for short `the Act').
7. At the first flash the argument, no doubt, appears to be attractive but on careful consideration it is found to be devoid of merit. 8. A detailed study of various provisions of the J. P. Consolidation of Holdings Act (for short `the Act'). would reveal that on a notification being made under sub-s. (2) of S. 4 of the Act all disputes in respect of land lying in the area and the declaration and adjudication of rights, title and interest in the land and partition of the holding etc. would be decided only by the consolidation authorities and all pending suits, appeals or revisions, relating to land lying in consolidation area in which a question regarding declaration and adjudication of rights and title is involved shall stand abated as provided under S. 5(2) of the Act. S. 5(2), of the Act operates as a bar to exercising jurisdiction by civil and revenue courts in adjudicating pending cases and those pending suits are to be ordered to abate under S. 5(2) of the Act and the parties are left to seek declaration of, their right and title in respect of land in suit before the consolidation authorities. Thus, when all such pending suits which involve determination of question regarding declaration of right and title in land lying in consolidation-area, are to abate u/s 5(2) of the Act, there appears to be no escape from the conclusion that the notification made u/s 4(2) of the Act would operate to freeze the jurisdiction of civil and revenue court in entertaining any such suit during continuation of consolidation proceedings in the unit till de-notification under S. 52 of the Act. The aforesaid Section 5(2) of the Act operates to freeze the jurisdiction and Section 49 operates to bar the jurisdiction of civil and revenue courts in entertaining any such suit in respect of which the claimant could or ought to have filed the objection before the consolidation authority under the provisions of the Act, seeking declaration and adjudication of right and title in the land.
S. 49 of the Act, therefore, does not only operate as a bar to the jurisdiction of the civil and revenue court from entertaining any suit or proceedings only after de-notification with-regard to the matters for which a proceeding could or ought to have been taken under the Act but it also impliedly bars the jurisdiction of civil and revenue court even during the consolidation proceedings from entertaining any suit or proceedings with regard to rights in land in respect of which the declaration and adjudication of rights of tenure-holders in such land can be made under the provisions of the Act or with respect to any other matter for which a proceeding can be taken under this Act during pendency of the consolidation proceedings in the unit. 9. No doubt, it is correct to say that the consolidation authorities are tribunals of limited jurisdiction and are not civil or revenue courts. The Consolidation of Holdings Act is a self contained Code so far as the consolidation matters are concerned. All pending suits and proceedings before civil or revenue courts are not to abate under Section 5(2)(a) of the Act and the bar of Section 5 will apply only to those cases where the suit involves the question of declaration of title in respect of agricultural land and that matter can be adjudicated upon under the provision of the Act by the consolidation authorities. No suit or proceeding is to abate u/s 5(2)(a) if consolidation authorities would be incompetent to decide the real controversy between the parties. For determining it the form of relief sought would not be material. If the consolidation authorities can adjudicate and grant the real, or in other words the main relief, involved in the suit or proceedings etc., the provisions of Section 5(2)(a) would apply although the consolidation authorities may not be able to grant other reliefs claimed in that suit.
For determining it the form of relief sought would not be material. If the consolidation authorities can adjudicate and grant the real, or in other words the main relief, involved in the suit or proceedings etc., the provisions of Section 5(2)(a) would apply although the consolidation authorities may not be able to grant other reliefs claimed in that suit. If the suit would involve declaration and adjudication of right and title of the plaintiff in respect of agricultural land and plaintiff would not be entitled to get the reliefs claimed in the suit without adjudication of question of title, then such suit would abate under Section 5(2)(a) of the Act because the declaration and adjudication of title in respect of land lying in an area for which notification under sub-section (2) of Section 4 has been made, can be made only by the consolidation authorities and the jurisdiction of civil and revenue court in such matter would be barred. The mere fact that the consolidation authorities cannot grant the relief in the form it is claimed in the suit or in the form in which civil court can grant it, cannot affect the question. If suit involves determination of rights of the tenure-holders in respect of agricultural land in suit lying in consolidation area and without establishing the involved question of title plaintiff would not be entitled to relief claimed, the suit would deserve to abate. 10. A suit for an injunction involves declaration of right and title in land in suit, hence it would be covered by the provision of Section 5(2)(a) and would abate although consequential relief for injunction claimed in the suit cannot be granted by the consolidation authorities in proceedings under the Consolidation of Holdings Act. In a suit for injunction the plaintiff cannot obtain relief sought for unless he establishes his title in respect of land in suit. Therefore, the main relief involved in suit would be the relief for declaration although same might not have been claimed as such, because without establishing title, plaintiff would not be entitled to relief for injunction. In Zor Singh v. Hukum Singh, 1971 Rev Dec. 331.
Therefore, the main relief involved in suit would be the relief for declaration although same might not have been claimed as such, because without establishing title, plaintiff would not be entitled to relief for injunction. In Zor Singh v. Hukum Singh, 1971 Rev Dec. 331. it was held by this Court that a suit for injunction, which involves a declaration of title or right or interest in land, is hit by Section 5 of Consolidation of Holdings Act or of course, a suit for injunction which does not involve such a declaration but is based on an alleged right of easement, may fall outside the provisions of Section 5 of the Act. I respectfully agree with the view taken in said decision. 11. In this view of the matter, I am of opinion that when a pending suit for injunction would merit its abatement under Section 5(2) of the Act, there would be no escape from the conclusion that no such suit can be entertained by the civil court after notification has been issued under Section 4(2) of the Act. The view taken by the District Judge in the present case appears to be quite correct. 12. A suit for injunction which is not entertainable by the civil court for reasons aforesaid would not become maintainable simply because no relief for ad interim injunction order can be granted by the consolidation authorities while deciding objection under Section 9-A or Section 20 of the Act. If a tenant during consolidation proceeding is threatened to be forcibly dispossessed from the land in question, he can appropriately take proceedings under Section 145 Cr. P.C. and if in those proceedings he would be found to be in possession over the land in dispute within two months prior to date of passing of preliminary order, his possession would be maintained and the other party will be forbidden from interfering in his possession. Since in the proceedings under Section 145 Cr. P.C. question of title cannot be gone into, the same would be maintainable even during consolidation proceedings, and the provisions of Section 5(2) would not be attracted to any such pending proceedings on the date of notification under Section 4(2) of the Act or which may be initiated thereafter.
Since in the proceedings under Section 145 Cr. P.C. question of title cannot be gone into, the same would be maintainable even during consolidation proceedings, and the provisions of Section 5(2) would not be attracted to any such pending proceedings on the date of notification under Section 4(2) of the Act or which may be initiated thereafter. In this view of the matter I am unable to agree with the learned counsel for the petitioner that the petitioners' suit would be maintainable on the aforesaid grounds urged by him which, in my opinion, are devoid of merits. 13. In this view of the matter I find that the learned District Judge has correctly held that prima facie the petitioner's suit was barred and not maintainable and the lower appellate court erred in granting the temporary injunction. 14. In the result the writ petition fails and is accordingly dismissed. I, however, direct the parties to bear their own costs. Interim order of stay is hereby vacated.