Badalu v. Ram Palat — 1992 DIGILAW 22 (ALL)

JUDGMENT : S.P. Srivastava, J. This second appeal by the Plaintiffs arises out of a suit for a decree of prohibitory injunction restraining the Defendants from interfering in their possession over the land in dispute shown in the map given at the foot of the plaint by letters. ABCEDFG. 2. Plaintiffs assertion in para 4 of the plaint was that the land in dispute fell in plots Nos. 840, 841 and 846. Besides asserting their possession over the land in dispute, Plaintiffs claimed to be the owners thereof. The Defendants denied the plaint allegations and asserted that they were owners in possession of plots Nos. 841 and 846 They further asserted that these plots constituted agricultural holdings which were recorded in revenue records in their names. 3. On the pleadings of the parties, the trial court framed various issues which included an issue as to whether the suit was not cognizable by the civil court and was barred by Section 331 of the UP ZA & LR Act. The trial court upheld the right, title and possession of the Plaintiffs over plot No. 840. However, so far as the plots Nos. 841 and 846 were concerned, the trial court negatived the Plaintiffs claim and held that neither they had any right nor title in these plots nor they were in possession" thereof. It further recorded a rending that considering the frame of the suit it appeared that in effect the Plaintiffs also wanted a declaration of their title in respect of plots Nos. 841 and 846 which stood recorded in the names of the Defendants in revenue records. According to the trial court such a relief could not be granted by the civil court in view of the bar of Section 331 of the UP ZA and LR Act. Consequently, the Plaintiffs suit was decreed in respect of plot No. 840 only and was dismissed so far as plots Nos. 841 and 846 were concerned. 3. Feeling aggrieved by the dismissal of the suit in respect of the land in dispute situate in plots No. 841 and 846 Plaintiffs filed an appeal Before the lower appellate court, the Plaintiffs tried to assail the findings recorded by the trial court, both on the question of title of plots Nos. 841 and 846 on the question of possession over the aforesaid plots. 841 and 846 on the question of possession over the aforesaid plots. The lower appellate court, however, on the appreciation of the evidence on record upheld the findings of the trial court. 4. From a perusal of the judgment passed by the lower appellate court, it appears that in the alternative the Plaintiffs had asserted that they were entitled to a decree of prohibitory injunction even on the strength of their possessory title On the findings arrived at by the lower appellate court on the question of possession, however, the Plaintiffs were not found to be entitled to such a decree and the appeal was, therefore, dismissed. 5. Aggrieved, the Plaintiffs have approached this Court for a relief in the exercise of its jurisdiction u/s 100, Code of Civil procedure. 6. I have heard learned Counsel for the Appellants at some length. On 11-1-91 when the appeal had been taken up for hearing under Order XLI Rule 11 CPC the counsel for the Appellants had confined his challenge to the impugned decree pressing the appeal only on the ground that even if the findings recorded by the courts below were accepted, they were duty bound to return the plaint for presentation before the proper court so far as the plots Nos. 841 and 846 were concerned and the suit should not have been dismissed in respect thereof. 7. Sri Sharad Malviya, Advocate has put in appearance on behalf of the Respondent No. 1 8. Heard Sri Sankatha Rai, learned Counsel for the Appellants and Sri Sharad Malviya, Advocate learned Counsel appearing for Respondents No. 1 and 2. 9. As rightly noticed by the lower appellate court, it is a case where the Plaintiffs had sought the relief of prohibitory injunction only. No relief of recovery of possession was sought by them even in the alternative. This being so on the concurrent finding recorded by the courts below, holding that the Plaintiffs had failed to establish that they were in possession of the plots No. 841 and 846. no decree of prohibitory injunction as claimed could be granted in their favour. No relief of recovery of possession was sought by them even in the alternative. This being so on the concurrent finding recorded by the courts below, holding that the Plaintiffs had failed to establish that they were in possession of the plots No. 841 and 846. no decree of prohibitory injunction as claimed could be granted in their favour. The learned Counsel for the Appellants has rightly not assailed the finding recorded by the courts below on the question of possession which finding is a finding of fact based on appraisal of evidence on the record and is not vitiated in law in any manner so as to call for an interference by this Court. 10. The submission of the learned Counsel for the Appellants that even on the aforesaid finding the courts below were bound to return the plaint for presentation to the proper court appears to be misconceived. The finding recorded by the trial court on issue No. 2 is confined to the question relating to title of plots Nos. 841 and 846. The trial court was of the view that the Plaintiffs could not be granted a declaration of title in respect of the aforesaid plots and it was in this respect only that it has been held that the suit was not cognizable by the civil court and was barred by Section 331 of the UP ZA and LR Act. On the above finding, there was no necessity to go into the question of title in respect of plots Nos. 841 and 846. However, even without going into the question of title, the claim of the Plaintiffs for a prohibitory injunction could under law be adjudicated upon by the civil court. 11. In the Full Bench decision of this Court in the case of Ram Awalamb v. Jata Shankar 1968 ALJ 1108 it has been observed thus. ...The revenue courts have not been empowered to grant the reliefs of injunction and demolition. It has further been observed: ...A civil court will, therefore, have a power to entertain the suit where the main relief sought by the Plaintiff is that of injunction and demolition, a relief which could be granted by the civil court only... It may be noticed that the case of M. Kallappa Setty Vs. It has further been observed: ...A civil court will, therefore, have a power to entertain the suit where the main relief sought by the Plaintiff is that of injunction and demolition, a relief which could be granted by the civil court only... It may be noticed that the case of M. Kallappa Setty Vs. M.V. Lakshminarayana Rao, (1973) 2 SCC 358 , was a case where the Plaintiff had prayed for a decree of permanent injunction besides a decree of declaration about his title to the suit property. The trial court has decreed the suit as prayed for the first appellate court had afirmed the decree of the trial court but in second appeal the High Court had reversed the decree of the courts below and dismissed the Plaintiffs suit primarily on the ground that the Plaintiff had failed to establish satisfactorily his title to the suit property. The Supreme Court however, allowed the appeal in part and decreed the Plaintiffs suit in respect of the relief relating to prohibitory injunction claimed by him and observed that: ...The Plaintiff can on the strength of his possession resist interference from persons who have no better title than himself to the suit property... It was on this basis that while keeping open the question of title to be agitated by the parties, if they so desired in a fresh proceeding, the Supreme Court set aside the decree passed by the High Court and decreed the suit in respect of the second relief relating to the grant of permanent injunction. 12. In the present case both the courts below have found that Plaintiffs were not entitled to the decree of prohibitory injunction since they had not been in possession over the land in dispute and their suit for the relief in respect of the plots Nos. 841 and 846 has been rightly dismissed. It may, however, be observed that since the finding on issue No. 2 framed by the trial court had not been challenged and the civil court had no jurisdiction to decide the question relating to the title in respect of plots Nos. 841 and 846 has been rightly dismissed. It may, however, be observed that since the finding on issue No. 2 framed by the trial court had not been challenged and the civil court had no jurisdiction to decide the question relating to the title in respect of plots Nos. 841 and 846 in dispute, the said question will remain open to be agitated by the parties if they so desired in a fresh proceeding and it will not be open to the Defendants or their representatives or successors to resist any suit of the Plaintiffs or their representatives or successors which may be brought in future for possession of the suit property comprised in plots no 841 and 846 in dispute or the basis of their title either on the ground of resjudicata or order II Rule 2. CPC I do not find any such infirmity in the impugned decree which may warrant any interference by this Court in the exercise of its jurisdiction u/s 100 Code of Civil procedure. 13. The appeal is, therefore, dismissed under order XII Rule 11, Code of Civil procedure. 14. By means of this application, the Plaintiffs Appellants have prayed for permission to amend the plaint and to set aside the decree passed by the courts below in respect of the land situated in plots Nos. 841 and 846 being without jurisdiction. The Plaintiffs want to delete the figures 841 and 846 from para 4 of the plaint and they further want to add in relief Clause (aa) words Naksha Najari Arazi Dewa Ke bad after the words 'Andar Araji No. 840". The aforesaid application has been opposed on various grounds as indicated in the counter-affidavit filed by Ram Palat. 15. Heard learned Counsel for the parties. 16. A certified copy of the plaint has been produced by the Appellant. Having considered the submissions made by the learned Counsel for the Appellants and having perused the plaint, I am of the view that the application is not a bonafide one and the effort of the Plaintiffs appeared to be somehow wriggle out of the effect of the concurrent finding of fact recorded by the courts below on the question of possession over plots Nos. 841 and 846 in dispute. In any view of the matter no ground at all has been made out for allowing the amendments in the plaint at this belated stage. 841 and 846 in dispute. In any view of the matter no ground at all has been made out for allowing the amendments in the plaint at this belated stage. The application is therefore, rejected.