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1992 DIGILAW 339 (ALL)

Bhagwan Das v. Ram Sahai

1992-03-13

BRIJESH KUMAR

body1992
JUDGMENT Brijesh Kumar, Member - This is defendant's second appeal against the judgment and decree dated 25.11.1988 passed by Shri Misri Lal, Additional Commissioner, Jhansi Division, Jhansi in Appeal No. 78/37 of 1987-88 confirming the order dated 4.4.87 passed by the trial court in a suit u/Sec. 229-B of the U.P. Zamindari Abolition and Land Reforms Act. 2. The facts of the case are that Ram Sahai s/o Bhagwan Das filed a suit u/s 229-B of the Act. During the course of the proceedings Ram Sahai moved an application u/s 229-D of the Act with the allegation that the defendant Bhagwan Das was selling the land during the pendency of the suit and making the constructions over the land in dispute through one Nihal Jain. By means of this application, a prayer was made to restrain the defendant from transferring the land and making any construction thereon. On this application, the learned trial court passed the order on 10.12.86 to maintain status quo till appearance of the defendant in the court. The defendant appeared before the trial court on 22.12.86 and filed objection on 18.1.1987. After hearing the parties, the learned trial court rejected the application of the plaintiff Ram Sahai on 27.3.87. On 2.4.87, the plaintiff Ram Sahai again moved an application u/s 229-D of the Act with the contention that his application was rejected on the ground that there was no prima facie evidence to restrain the defendant from transferring the land and making constructions. It was further contended that he could not adduce any evidence in support of his contention because he could not get copies of the documents and if no injunction order was passed, the plaintiff would suffer irreparable loss. The learned trial court passed the following orders on 4.4.87 on the application of Ram Sahai: "Prastut. Nirdharit tithi se purva apatti, yadi koi ho to prastut ki jai tatha agali sunvai ki tithi tak yathaisthiti kayam ki jai." Aggrieved by the above order, the defendant Bhagwan Das preferred an appeal before the Divisional Commissioner. The learned Additional Commissioner heard the parties on 26.10.88 and fixed 16.11.88 for orders. On 16.11.88, Bhagwan Das moved an application with the prayer to withdraw the appeal because the learned trial court had passed the stay order for certain period which had already expired and that there was no point to persue with the appeal. The learned Additional Commissioner heard the parties on 26.10.88 and fixed 16.11.88 for orders. On 16.11.88, Bhagwan Das moved an application with the prayer to withdraw the appeal because the learned trial court had passed the stay order for certain period which had already expired and that there was no point to persue with the appeal. The learned Additional Commissioner dismissed the appeal as not maintainable and rejected the appellant's application for withdrawal of the appeal. 3. I have heard the learned counsel for the parties. Sri S.K.Chaturvedi, learned counsel for the appellant has contended that since the trial court had already dismissed the application u/s 229-D of the Act on 27.3.87 and the second application had been made on the same grounds, the trial court had no jurisdiction to pass the impugned order dated 4.4.87 and the order dated 27.3.87 would operate as res-judicata. Reliance has been placed on AIR 1960 Patna 167. His second contention is that the learned Additional Commissioner has wrongly dismissed the appeal which was maintainable under Order XLIII Rule 1 (3) C.P.C. Relying on 1984 AWC 90 (Rev), the learned counsel has contended that if the appeal does not lie, the court may treat it as a revision. His last submission is that the relief of injunction is granted on the ground of prima facie case, balance of convenience and irreparable loss. The respondent being a third party and nowhere recorded was not entitled to any relief. Reliance had been placed on 1988 AWC 1485 and 1991 AWC 301 . Sri R.K. Srivastava, learned counsel for the respondent has contended that the - appeal is not maintainable under Order XLIII Rule 1 (r) C.P.C. because no appeal lies against an order passed u/s 229-D of the Act. 4. I have carefully considered the arguments advanced before me and has also perused the records. The first question for determination is whether this second appeal is maintainable. The learned Additional Commissioner has held that there is no provision for an appeal against an order passed u/s 229-D of the Act in Schedule II of the Act. He has relied on 1968 RD 212 and 1988 AL.R 303. The view of the court below is legally sound. A perusal of Section 331 read with schedule II of the Act clearly shows that no appeal lies against an order passed u/s 229-D of the Act. He has relied on 1968 RD 212 and 1988 AL.R 303. The view of the court below is legally sound. A perusal of Section 331 read with schedule II of the Act clearly shows that no appeal lies against an order passed u/s 229-D of the Act. This view has also been taken by the Board in Munna v. Abdul Hamid 1980 AWC 37 (Rev). I do not find any force in the contention of the learned counsel for the appellant that the appeal lies under Order XLIII Rule 1 (r) C.P.C. Where there is a particular and definite provisions under the U.P. Z.A. & L.R. Act, the C.P.C. will not be applicable. There is no provision in the schedule II for an appeal against an order passed u/s 229-D of the Act. I, therefore, do not find any illegality in the order of the learned Additional Commissioner so far as the maintainability and non-maintainability is concerned. 5. I also do not find any force in the contention that the court below could treat the appeal as a revision. The facts of the case merited no such consideration. The plaintiff Ram Sahai claims to be the son of the defendant Bhagwan Das. He claims to be the co-tenant along with the defendant Bhagwan Das. He moved for restraining the defendant from selling the land in dispute and making constructions. The learned trial court found no prima facie evidence in his favour and rejected the application on 27.3.87. Subsequently on an application moved on 2.4.87, the learned trial court ordered to maintain status quo till the next date of hearing i.e. 21.4.87. On 21.4.87 the learned trial court allowed two days time to Bhagwan Das to file objections and adjourned the case to 1.3.87. But Bhagwan Das, instead of filing objection, preferred an appeal. It appears from the facts of the case that the learned trial court did not pass any final order on the second application of the plaintiff respondent Ram Sahai. The question of res-judicata, there does not arise and the appeal preferred by him is premature. 6. As regards merits, the plaintiff though not recorded but seeing the son of the defendant Bhagwan Das has interest in the land in dispute and was fully entitled to make an application u/s 229-D of the Act. The question of res-judicata, there does not arise and the appeal preferred by him is premature. 6. As regards merits, the plaintiff though not recorded but seeing the son of the defendant Bhagwan Das has interest in the land in dispute and was fully entitled to make an application u/s 229-D of the Act. If the suit filed is decreed and he wins the case at all stages, he will get nothing to receive if the land has already been sold or is covered under construction. 7. In view of the discussions made above, I find no merits in this appeal. In the result, this appeal is dismissed. Let the record be returned to the courts concerned without delay.