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2007 DIGILAW 141 (UTT)

Mohan Singh and others v. Sant Ram

2007-03-28

RAJESH TANDON

body2007
Judgment Heard Shri Sharad Sharma, Counsel for the defendants-appellants and Shri S.C.Bhatt, counsel for the respondent. 2. By the present second appeal, the defendants have prayed for setting aside the order dated 21-7-1977 by which the appeal of the plaintiff has been allowed with costs and the decree passed by the Munsif dated 25-2-1977 has been set aside. 3. Following substantial questions of law were framed at the time of admission of the appeal. 1 . Whether the appellants who are in adverse possession over the land in dispute more than 20 years oil the date of suit, can be evicted by way of injunction suit? 2. Whether any cause of action has arisen to the respondent to file an injunction suit against the appellant? 3. Whether any injunction can be granted in favour of such a person who is not in possession over the disputed properties as per law? 4. Briefly stated, a suit was filed by the plaintiff Shri Sant Ram being suit No. 209/ 1974 claiming for the relief of permanent injunction restraining the defendants from interfering with the land and crops of the plaintiff situate at village Kumrah, Tehsil-Khatima, District-Nainital. 5. According to the plaintiff he is a Bhumidhar of Khasra No. 243, area 4, bigha,17 biswa, Khasra No. 244/1, area 2 bigha, 4 biswa, Khasra No. 272/1 area 3 bigha, 3 biswa, Khasra No. 273/1 area 3 bigha, 4 biswa, Khasra No. 274/1 area 3 bigha, Khasra No. 287 area 5 bigha, 4 biswa, Khasra No. 288 area 5 bigha, 14 biswa, Khasra No. 295/1 area 12 bigha, Khasra No. 296 area 9 bigha, 4 biswa, Khasra No. 297/1 area 9 bigha, 16 biswa, Khasra No. 599/1 area 9 bigha, Khasra No. 499/2, area 7 bigha, Khasra No. 500 area 2 bigha, 11 biswa, Khasra No. 502/1 area 3 bigha, Khasra No. 502/2 area 1 bigha, 13 biswa and Khasra No. 298 area 14 bigha (total 52 bigha 15 biswa) at village- Kumrah, Pargana - Bilheri, Tehsil- Khatima, District - Udham Singh Nagar. In paragraph 2 of the plaint he has stated that by virtue of sale deed executed in his favour on 20-3-1974 for a sum of Rs. 25,000/- by one Bhajji Ram, who was the bhumidhar, he obtained the possession of the land. 6. In paragraph 2 of the plaint he has stated that by virtue of sale deed executed in his favour on 20-3-1974 for a sum of Rs. 25,000/- by one Bhajji Ram, who was the bhumidhar, he obtained the possession of the land. 6. The grievance of the plaintiff by way of suit was that the defendants were interfering with the harvesting of the land when in point of fact, they have no right to interfere in the possession of or harvesting of the crop by the plaintiff. Further, the defendants on 19-10-1974 came on the site and wanted to interfere with the possession and harvesting of the crops of the plaintiff and, hence, the cause of action arose for filing the suit on account of unauthorized interference by the plaintiff. 7. The written statement was filed by the defendants praying to the following effect: 8. On behalf of the plaintiff, Shri Sant Ram was examined on oath, who has stated that he has purchased the land on a sum of Rs. 25,000/- and the defendants are interfering in his possession as well as harvesting the crop. His statement is quoted below : 9. PW-2 Bhajji Ram was also examined, who has stated that he has executed a sale deed in favour of plaintiff. His statement is quoted below : 10. On behalf of defendants Baljeet, DW-1, was examined, who has deposed that Bhajji Ram is not residing in the village. 11. Before the trial court on behalf of the plaintiff it has come on record that after purchasing the land he was recorded in the revenue records. The trial court has dismissed the suit. However an appeal was preferred, which was allowed. 12. The Appellate Court after considering the entire evidence on the record has come to the conclusion that from the order passed by the S.D.O. Khatima the mutation application was dismissed vide its order dated 14-04-1981 and on appeal the Appellate Court has recorded the finding that he is bhumidhar in possession of the land. The Appellate Court has also considered that a bhumidhar has a right to file the suit for injunction as the mutation was recorded in his favour. The Appellate Court has also recorded the finding that there was a recital in the sale deed for a sum of Rs. 25,000/-. The Appellate Court has also considered that a bhumidhar has a right to file the suit for injunction as the mutation was recorded in his favour. The Appellate Court has also recorded the finding that there was a recital in the sale deed for a sum of Rs. 25,000/-. It was also held that the mutation was also made in pursuance of the sale deed executed in favour of the plaintiff-appellant. 13. The Appellate Court, on the basis of these documents, which were available on the record, has recorded the finding that the plaintiff-appellant has been able to prove his possession and is entitled for the decree claimed by him. 14.• The learned counsel for the appellants has submitted that the plaintiff should have filed the suit under Section 209 and without filing the suit under Section 209 U.P.Z.A & LR, the title has vested with the defendant under Section 210 of U.P. Z.A. & L.R. 15. Section 209 of U.P.Z.A & L.R relates to the ejectment of the persons keeping the land without title. The same is quoted as below :(1) A person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force, and (a) where the land forms part of the holding of a bhumidhar, or asami without the consent of such bhumidhar, or asami; (b) where the land does not form part of the holding of a bhumidhar or asami without consent of the [Gaon Sabha] shall be liable to ejectment, on the suit in cases referred to in clause (a) above, of the bhumidhar, or asami concerned, and in cases referred to in clause (b) above, of the [Gaon Sabha] and shall also be liable to pay damages. 2. To every suit relating to a land referred to in clause (a) of sub-section (1), the State Government shall be impleaded as a necessary party.] 16. Section 210 deals with the consequences of failure to file suit under Section 209. 2. To every suit relating to a land referred to in clause (a) of sub-section (1), the State Government shall be impleaded as a necessary party.] 16. Section 210 deals with the consequences of failure to file suit under Section 209. The same is quoted as below : "If a suit for eviction from any land under section 209 is not instituted by a bhumidhar or asami, or a decree for eviction obtained in any such suit is not executed within the period of limitation provided for institution of such suit or the execution of such decree, as the case may be, the person taking or retaining possession shall (a) where the land forms part of the holding of a bhumidhar with transferable rights, become a bhumidhar with transferable rights of such land and the right, title and interest of an asami, if any, in such land shall be extinguished; (b) where the land forms part of the holding of a bhumidhar with non-transferable rights, become a bhumidhar with non-transferable rights and the right, title and interest of an asami, if any, in such land shall be extinguished; (c) where the land forms part of the holding of an asami on behalf of the Gaon Sabha, become an asami of the holding from year to year.] [provided that the consequences mentioned in clauses (a) to (c) shall not ensue in respect of any land held by a bhumidhar or asami belonging to a Scheduled Tribe.] 17. The grievance of the plaintiff in the present case is that he continued to be in possession and has been recorded as bhumidhar and also mutation has been made in his favour. The plaintiff has not claimed any declaration of his rights by way of suit but has only filed the suit in respect of unauthorized interference by the defendant which has been rightly allowed by the Appellate Court. 18. The question of jurisdiction also came up before the Apex Court in JT 2007 (3) 282 (5. C.) Kamla Prasad & Ors. V. Sri Krishna Kant Pathak & Ors., where the Apex Court has observed relying upon the judgment of Sriram & Anr. v. 1st Addl. Distt. 18. The question of jurisdiction also came up before the Apex Court in JT 2007 (3) 282 (5. C.) Kamla Prasad & Ors. V. Sri Krishna Kant Pathak & Ors., where the Apex Court has observed relying upon the judgment of Sriram & Anr. v. 1st Addl. Distt. Judge & Ors., JT 2001 (2) SC 573, that where a recorded tenure holder having a title and in possession of property files a suit in Civil Court for cancellation of sale deed obtained byfraud or impersonation could not be directed to institute such suit for declaration in Revenue Court, the reason being that in such a case, prima facie, the title of the recorded tenure holder is not under cloud. He does not require declaration of his title to the land. The position will be different as appended by the Apex Court in paragraph 15. The same is quoted below :"The position would be different where a person not being a recorded tenure holder seeks cancellation of sale deed by filing a suit in the civil court on the ground of fraud or impersonation. There necessarily the plaintiff is required to seek a declaration of his title and, therefore, he may be directed to approach the revenue court, as the sale deed being void has to be ignored for giving him relief for declaration and possession." 19. Counsel for the respondent has referred the judgment of the Division Bench of the Uttaranchal High Court in Kulwant Kaur Sidhu v. Smt. Rahiman Bai Guddi (deceased), through L.Rs. 2006 (1) Uttaranchal Decisions 658. In paragraph 7 to 11 it has been observed as under:"7. In Ram Avalambh Vs. Jata Shankar & others 1968 Revenue Decisions 470 (Full Bench), it has been clarified by theAliahabad High Court that where the plaintiff is not a recorded tenure holder and seeks relief of injunction, it can be said that he is seeking declaration of title but where he is a recorded tenure holder, it cannot be said that the suit is not within the jurisdiction of civil court for granting relief of injunction in respect of agricultural land." "8. On behalf of the appellant, it is contended that the defendant is also a recorded tenure holder in respect of the land Khasra Nos.- 180 and 181, with one Ved Prakash. On behalf of the appellant, it is contended that the defendant is also a recorded tenure holder in respect of the land Khasra Nos.- 180 and 181, with one Ved Prakash. It is further submitted that the defendant/applicant is recorded tenure holder in respect of plot No. 184 also. Perusal of the written statement, shows that it has no where been pleaded by the defendant that the land in suit lies over Khasara No. 180, 181 or 184. It is not disputed that the defendant's land lies in the east of the plaintiffs land. The question involved in the suit is whether defendant by opening her door towards west of her plot, has started using the disputed strip of land, shown as 'alleged raasta' towards highway (shown in the plaint map- on west land- 'Aa' 'Ba' 'Sa' 'Da') and is the plaintiff entitled to the injunction against the defendant. In the above facts and circumstances, no remedy of injunction could have been sought by the plaintiff in the revenue court. As such, since the plaintiff has come up with a case that the defendant is attempting to use a part of the land of which plaintiff is the recorded tenure holder and in possession, it cannot be said that the suit is barred by Section 331 of U.P. Zamindari Abolition And Land Reforms Act, 1950." "9. Shri Sudhanshu Dhulia, Senior Advocate, learned counsel for the appellant, drew attention of this Court to the principle of law laid down in Chandrika Singh Vs. Raja Vishwanath Pratap Singh (1992) 3 S.C.C. Pg. 90 and argued that revenue court has jurisdiction in respect of the controversy as to the use of the land whether it is an agricultural land or not? We have gone through said case law. We are of the view that it is not applicable to the present case for the reason that in said case of Chandrika Singh (supra), defendant was a recorded tenure holder over the land in suit as such, the Apex Court rightly held that the controversy as to the user could have been determined by the revenue court. In the present case, it is the plaintiff who has pleaded and established that she is a recorded tenure holder as well as in possession of the land in suit." "10. Our attention has also been drawn to the case law reported in Kamla Shankar Vs. In the present case, it is the plaintiff who has pleaded and established that she is a recorded tenure holder as well as in possession of the land in suit." "10. Our attention has also been drawn to the case law reported in Kamla Shankar Vs. IIIrd Additional District Judge, 1998 (89) R.D. Pg. 484. In said case also, the defendant was a recorded tenure holder of the land in suit in respect of which the plaintiff has sought the relief. As such, the principle of law laid down in said case cannot be applied to the present case. Similarly in Sayed Muhammed Mashur Kunhi Vs. Badagara Jumayath Palli (2004) 7 Supreme Court Cases 708, relied on behalf of the defendant/appellant also does not help him as unlike in said case, the plaintiff has been successful in the present case, in proving her case at her own strength and not on the weakness found in the defendant's case." "11. Lastly, on behalf of the appellant, our attention was drawn to Heera Vs. Civil Judge, Gyanpur, Varanasi (1993) Allahabad Civil Journal Pg. 57, in which it has been held that revenue court could have issued the injunction. On going through said case law, we found that it pertains to civil suit of 1973 of land situated in Gyanpur to which Banaras Tenancy Act, 1949, was applicable. And under Section 153 of Banaras Tenancy Act, it was found that the revenue court could have issued the injunction. In the present case, the land is not covered by Banaras Tenancy Act, 1949, nor is there any parallel provision in U.P. Zamindari Abolition and Land Reforms Act, 1950." 20. On account of the interference made by the defendants, the courts below have also recorded the finding that the plaintiff is the owner and in possession of the land in suit. 21. Counsel for the appellants has submitted that revenue suit filed by him is already pending. In view of the above, no interim relief can be granted in the present proceedings. However, if the suit has been filed before the revenue court, the same shall be decided on its own merits. 22. In view of the above, I find no substantial questions of law in the Second Appeal. Appeal is dismissed with costs.