Radhey Shyam v. First Additional District Judge — 1985 DIGILAW 213 (ALL)

JUDGMENT : KAMLESHWAR NATH, J. 1. The only question of involved is whether the Civil Court had jurisdiction to try the case. According to the plaint, copy Annexure-3, the Plaintiff claimed to be the Bhumidhar in-possession of the land in dispute and the trees thereon, and alleged that the Defendants, having cut away one of the trees, were threatening to dispossess him, A relief of permanent injunction to restrain the Defendant-Petitioners from interfering with the Plaintiffs possession over the land in dispute and the trees thereon, in addition to a decree for Rs. 200/- by way of damages, was claimed. 2. On a preliminary issue framed, regarding jurisdiction of the Civil Court both the courts below upheld the jurisdiction of the Civil Court. 3. Learned Counsel for the Petitioners simply says that since the property, in respect of which the suit was filed, was an agricultural land, in which the Plaintiff claimed Bhumidhari rights, the suit could only be filed in a revenue court in view of the provisions of Section 331 of UP ZA & LR Act. He has referred to a number of decisions, but none of them except one relates exclusively to a suit for injunction. In the case of Vijai Singh v. 2nd Additional District and Sessions Judge, Bulandshahr 1982 ALJ 725 the suit in the Civil Court was for a declaration of rights in respect of certain agricultural land and for cancellation of the sale deed on the ground that it was forged and fictitious. There was also an additional relief of injunction to restrain the Defendants from interfering with the Plaintiff's possession. In the case of Mewa and Others Vs. Baldeo, AIR 1967 All 358 the suit was for cancellation of a sale deed on the ground of fraud and also for possession in case the Plaintiff be not found in possession. In the case of Bankey Singh v. Ram Sabad Singh, 1965 AWR 474 the suit was for a permanent injunction to re; train the Defendant from interfering with the peaceful possession of the Plaintiff and in the alternative for delivery of possession. It may also be mentioned that on the evidence on record, it was found that the Plaintiff was not in possession of the property in dispute. 4. It may also be mentioned that on the evidence on record, it was found that the Plaintiff was not in possession of the property in dispute. 4. The case of Himmat Singh v. Channoo Lal 1964 AWR 283 is of no assistance to the Petitioners because there the jurisdiction of the civil court was beheld in a case where declaration of Sirdari rights and permanent injunction to restrain the Defendant from interfering with the possession of the Plaintiffs over the standing crop, was sought. The principle on which the learned Counsel for Petitioners seeks to rely is that it is not the nature of relief, but nature of the cause of action which determines the forum. That is the true position and in this case the cause of action is one for which claim could be made before the Civil Court. 5. In the case of Chandrika Misir v. Bhaiya Lal 1973 RD 365 (SC) the suit was filed in the civil court not only for a permanent injunction but in the alternative also for possession. The Supreme Court observed that the suit had been filed for possession and that it had been held that the Defendant bad been retaining possession of the land contrary to law, being a trespasser. It was further held that since the land was Bhumidhari land, the suit fell within the description falling u/s 209 UP ZA & LR Act and was outside the cognizance of the Civil Court u/s 331 of that Act. In the present case, the stage for recording any finding as to which of the party was in actual possession of the property in dispute has not arrived the case is still at the preliminary stage and the jurisdiction has to be determined on the allegations contained in the plaint, where it is said that the Plaintiff continues to be in possession of the property in dispute. 6. In the case Dr. Ayodhla Prasad v. Gangtori Devi 1981 AWC 469 the suit had been instituted in the Civil Court bearing multiple cause of action. A declaration of Sirdari rights and a decree for possession, in case the Plaintiff was not in possession was sought and further it was prayed that certain sale deed be cancelled and the Defendant be restrained from interfering with the Plaintiff's possession by means of an injunction. A declaration of Sirdari rights and a decree for possession, in case the Plaintiff was not in possession was sought and further it was prayed that certain sale deed be cancelled and the Defendant be restrained from interfering with the Plaintiff's possession by means of an injunction. It was held that merely because a relief for injunction had been sought, the jurisdiction of revenue court could not be ousted. The true nature of the relief claimed was to obtain a declaration of the right and, if necessary, possession over land in dispute. That was certainly within the jurisdiction of the revenue court. That is not the position in the present case. 7. In the case of Baiju v. Shambhu Saran 1963 AWR 781 the suit was for injunction and in the alternative also for possession and it was observed (vide Para 15) that the question which fell to be decided in the case was whether the Plaintiff had title to the plots in suit and, therefore, arose a cause of action in respect of which a relief could have been claimed in a revenue court. It was then held that the Civil Court did not have jurisdiction, In the present case, as shall presently appear, the Plaintiff had no necessity to obtain a declaration of his Bhumidhari rights in the property in dispute. The plaint proceeds on the basis that the Plaintiff is Bhumidhar-in-possession of the property for which the Defendants are to be restrained. 8. In the case of Rajmangal Singh v. Bindhyachal Singh 1964 AWR 560 the relief sought was for declaration that the Plaintiff was a fixed rate tenant and, therefore, a Bhumidhar, that the Defendant be restrained from interfering with the Plaintiff's possession, and that in case the Plaintiff was found not to be in possession, possession may be delivered to him. It may be mentioned that in case the jurisdiction of the Civil Court was upheld having regard to the applicable law at the particular moment of time when the suit was filed, followed by subsequent amendments in the UP ZA & LR Act. It may be mentioned that in case the jurisdiction of the Civil Court was upheld having regard to the applicable law at the particular moment of time when the suit was filed, followed by subsequent amendments in the UP ZA & LR Act. Learned Counsel for the Petitioners relies upon an observation, contained at page 862, where it is stated that in view of the amendment made to Section 331 of UP ZA & LR Act, the jurisdiction of the revenue court could not be ousted by asking for an additional relief which that court could not grant and therefore, the suit for permanent injunction, with regard to the agricultural land, could no longer lie before the Civil Court and had to be instituted before the revenue court. That observation has to be read in the light of the decision as a whole and could not be divorced from the fact that there was also a prayer for possession in case the Plaintiff was found to be out of possession, besides declaration of tenure-holder's rights. Where a person is not in possession, the prayer for injunction is misconceived and such a misconceived relief or improper cause of action could not divest the true forum of decision. 9. Lastly, reliance is placed on the case of Mohd. Umar Khan Vs. Idris Mohd. Ghani and Others, AIR 1980 All 89 where the only prayer was for a decree of mandatory injunction to restrain the Defendants from interfering with the Plaintiff's possession over the groves in dispute. It was held that on cause of action, stated in the plaint, the jurisdiction vested in the revenue court and not civil court. The important feature of the statement of cause of action in the plaint is that the Defendants were co-sharers in the disputed groves with the Plaintiff, and while initially the grove stood recorded in the revenue records in the name of both the parties, the Defendants arranged to have the records manipulated in such a way that the name of the Plaintiff was expunged from the revenue records and that of the Defendants alone stood recorded. It was then said that the groves had been in joint possession of both the parties, but on account of manipulation in the revenue entries the Defendants were asserting that the Plaintiff had no right, title or interest in the groves and, therefore, it was apprehended that the Defendants would not permit the Plaintiff to exercise the right of his joint possession over the groves and prevent him from gathering fruits. On a consideration of the entire statement of these facts, the High Court came to the conclusion that, in substance, the allegation of the Plaintiff was that the name of the Plaintiff having been expunged from the revenue records, the Defendants were denying his status as joint grove-holder and on the basis of such denial were likely to interfere with his joint possession. This, it was ruled, indicated that the Plaintiff could maintain action for declaration of title u/s 229-B of UP ZA & LR Act which, in the opinion of the Court, was an adequate and sufficient relief in the circumstance of the case. It was held that the pith and substance of the allegations made in the plaint constituted the cause of action in respect of which adequate relief could be granted by the revenue court and, therefore, the suit would have been cognizable by the revenue court and not Civil Court. It was further observed that the claim of injunction certainly depended upon a declaration of Plaintiff's title as a joint grove-holder of the groves in dispute and, therefore, the civil Court had no jurisdiction. 10. In the present case, the contest put forward by the Defendants to the Plaintiff's case, as stated in the plaint, is not on the basis of any failure of revenue entries in favour of the Plaintiff. The Plaintiff's case is that the land in dispute, plot No. 574/2, measuring 39 Acres, has been carved out, after consolidation proceedings, of 6 sub-plots of plots No. 578 (578/1 to 578/6) whose total area was 68 Acres. The Plaintiff's case is that the land in dispute, plot No. 574/2, measuring 39 Acres, has been carved out, after consolidation proceedings, of 6 sub-plots of plots No. 578 (578/1 to 578/6) whose total area was 68 Acres. It was stated that in the newly carved out area, 39 Acres, constituting plot No. 574/2, there were certain trees (namely trees in dispute), on account of which that plot was excluded from consolidation proceedings and the property continued to be owned by the Plaintiff, it was stated that the remaining area (i.e. 29 Acres) was recorded as Parti of Gram Samaj in respect of which compensation was given to the Plaintiff. It was said that thus the Plaintiff continued to be owner-in-possession of the disputed land since before the consolidation proceedings with which the Defendants had nothing to do, but had wrongfully cut away one tree and were threatening to cut away the remaining trees and dispossess him from the property. The judgment of the lower appellate court mentions that in the Khatauni of 1387F to 1392F, the name of the Plaintiff had been recorded on plot No. 574, measuring 39 Acres. The suit was filed in 1388F. The court then went on to observe that since the Plaintiff's name was entered in the revenue papers against the plot in question, the relief of permanent injunction could be had from the Civil Court. On the facts as they presently appear in the plaint and also apparent from the judgment of the lower appellate court the disputed plot No. 574/2, measuring 39 Acres, stood recorded in the name of the Plaintiff. It does not appear to be necessary in any manner for the Plaintiff to obtain declaration of his rights in the facts and circumstances of the present case. The decision in the case of Mohd. Umar Khan v. Idris Mohd. Chani (Supra) is thus of no assistance to the Petitioners. On the contrary, the case lies within the scope of the decision in the case of Raj Bahadur Singh v. Smt. Gaure alias Ram Piari 1977 RD 165 and, therefore, within the jurisdiction of the Civil Court. 11. The mere fact that the Revenue Court can grant a declaration u/s 229-B (3) of the UP ZA & LR Act that the Plaintiff is a Bhumidhar of the land does not oblige him to avail that remedy. 11. The mere fact that the Revenue Court can grant a declaration u/s 229-B (3) of the UP ZA & LR Act that the Plaintiff is a Bhumidhar of the land does not oblige him to avail that remedy. A mere declaration of title is no substitute for a permanent injunction to restrain invasion of right. A mere declaratory decree is not executable, and it is no consolation for a person to hold a mere declaratory decree which is not capable of being executed. Frivolous and vexatious defiance of well known rights Is not unknown to the luxury of litigation in our country-thanks to the multi-tier system of adjudication known to our procedures. A person, possessed of a mere declaratory decree, may still have to face the revages inflicted by an intruder who threatens to occupy without denying the title of the decree-holder, for after all, our law does recognise acquisition of title by adverse possession. The only true and effective remedy in such cases would lie in a decree for permanent injunction which is an executable decree so much so that the party in breach thereof may be detained in Civil prison (Vide Order 21 Rule 32 Code of Civil Procedure), 12. It is beyond controversy that for every right there is a remedy. As owner of property is entitled to a variety of reliefs depending upon nature of the apprehended invasion of his rights. There is no reason why the owner, who can have his rights protected adequately by a decree of injunction, should be forced to seek a declaration of his rights merely because the Explanation to Section 331(1) of the UP ZA & LR Act protects the jurisdiction of the Revenue Court if any relief could be sought from it. After all, the provisions relating to injunctions, contained in the Specific Relief Act, cannot be given a go bye simply because a relief of possession or declaration can be had from the Revenue Court under Sections 209 or 229-B of UP ZA & LR Act. 13. It is noticeable in this connection that while the Legislature conferred powers on the Revenue courts to grant a temporary injunction pendente lite, u/s 229-B of the Act, it chose not to confer powers to grant a permanent injunction In the form of a decree. 13. It is noticeable in this connection that while the Legislature conferred powers on the Revenue courts to grant a temporary injunction pendente lite, u/s 229-B of the Act, it chose not to confer powers to grant a permanent injunction In the form of a decree. This legislative intendment cannot be whittled down by reading an intention in the Explanation to Section 331(1) of the Act that where a suit in the nature of the one cognizable by a Revenue Court could be filed, the aggrieved party is not entitled to Institute a suit of a different nature beyond the competence of the Revenue Court to seek a relief which it really needs. A mere suit for a Permanent Injunction by a person who is in possession and who does not need to have his title declared as one being recorded in the relevant revenue papers should certainly be conceivable in all fairness and justice and for that purpose approach the Civil Court. To confine the remedy in such a case to a Revenue Court is to force the person to go through a double ordeal, viz., in the first instance to have title adjudicated by the multitier system of Revenue Courts and thereafter to approach the Civil Court for the relief of Permanent Injunction to make the Revenue Court adjudication effective. This situation cannot be fairly read in the provisions of Section 331 of the UP ZA & LR Act 14. The view of the courts below that the Civil Court had jurisdiction in the case is correct and the writ petition does not deserve to be admitted. It may be mentioned that Sri K.N. Jaiswal, learned Counsel for the Petitioners, has taken considerable pains to put the entire field of law on the subject before this Court, including the case of Mohd. Umar Khan v. Idris Mohd. Chani (Supra), but this case is not analogous to Mohd. Umar Khan's case; rather it is answered by the case of Raj Bahadur Singh v. Smt Oaura alias RamPiari (Supra.). 15. For reasons indicated above, this writ petition in dismissed in limine. 16. The stay order is vacated, the court concerned below will proceed to decide the case on merits.