Research › Search › Judgment

Allahabad High Court · body

2007 DIGILAW 357 (ALL)

Lakhan Singh v. Tanak Pal Singh

2007-02-14

UMESHWAR PANDEY

body2007
JUDGMENT : Umeshwar Pandey, J. List revised. 2. Mr. Saiyad Ahmad Jamal holding brief of Mr. S. Mirza is present on behalf of the Appellant. No one is present on behalf of the Respondent. 3. The learned Counsel for the Appellant has submitted that both the courts below have recorded concurrent findings on the point that the suit with regard to the property in question, which consists of agricultural plots, is not cognizable by the civil court. The question involved in this case is declaration of title in the said properties. The learned Counsel while submitting this proposition about the non-cognizability of the suit by civil Court, has tried to emphasise that if this is a state of affairs, there was no occasion for the courts below to have dismissed the suit itself by recording findings on its merits. The only option open to it, was to pass an order for return of plaint for its proper presentation under Order VII, Rule 10, Code of CPC The learned Counsel in this context has placed reliance upon the case of Ram Swaroop v. Kali Charan and Anr. 1995 (13) LCD 603: 1995 (1) AWC 287 . 4. The Appellant-Plaintiff filed a suit for relief of permanent injunction in respect of several agricultural plots of Appellant's Khata Nos. 127Aa, 135 and 136 on the basis of title acquired through a Will executed in his favour by the original tenure holder-Mulayam Singh. The Defendant-Respondent contested the suit stating that after the death of Mulayam Singh on 19.9.1980, he being his legal heir acquired the title in the entire property left by him (Mulayam Singh) and his name was also duly mutated over the property. The Plaintiff did not have any right in the said property as to entitle him to get the relief of permanent injunction from the Court. It is further stated that since the property consisted of agricultural plots, no relief of permanent injunction involving decision of title in the said property could be granted by a civil court. The suit was not cognizable by the civil court and instead a suit for declaration of title in the disputed plots should have been filed in the revenue court. 5. The suit was not cognizable by the civil court and instead a suit for declaration of title in the disputed plots should have been filed in the revenue court. 5. On the pleadings of the parties and other materials available on the record, the trial court has recorded its findings holding that the suit was not cognizable by the civil court and it was barred under the provisions of Section 331 of U. P. Zamindari Abolition and Land Reforms Act. The suit was accordingly dismissed. The Plaintiff's appeal against this judgment was also heard and decided by the lower appellate court holding that it was not cognizable by the civil court and the findings recorded by the trial court were affirmed and the appeal was dismissed. 6. In the light of the aforesaid submissions of the learned Counsel for the Appellant, if the case is considered in its whole perspective, it is found that since the property regarding which the suit has been filed, is nothing but consists of agricultural plots, the jurisdiction for such a suit involving declaration of right was available only with the revenue court and no decision on the other points was actually permissible under law by the civil court. The concurrent findings of both the courts below are that the suit was cognizable by the revenue court. The counsel appearing for the Appellant-Plaintiff also does not have any objection against such findings. It is in this view of the matter that following substitution question of law has been formulated for decision : Whether the suit giving rise to the present appeal was maintainable in civil court? If not, Whether the plaint of the Plaintiff-Appellant should have been returned for presentation before a proper Court. Obviously, from the aforesaid facts, it is not disputable that the matter of declaration of title in agriculture plots is a subject to which the jurisdiction of the revenue court alone is available to the party seeking redressal of his grievance in the present matter. The subject-matter of dispute consists of only agricultural plots. Thus, this proposition is not disputable that the declaration of title in those agricultural plots is not to be done by the civil court but is possible only in a suit u/s 229B of the U.P. Zamindari Abolition and Land Reforms Act, before the Collector. The subject-matter of dispute consists of only agricultural plots. Thus, this proposition is not disputable that the declaration of title in those agricultural plots is not to be done by the civil court but is possible only in a suit u/s 229B of the U.P. Zamindari Abolition and Land Reforms Act, before the Collector. Thus, if it was such state of affairs available to both the courts below, any other decision given by them on merits while answering different issues shall have to be treated as adjudication given without jurisdiction and it is nothing but nullity. The case law of Ramswaroop (supra), is very much clear on this point. The Hon'ble Judge while giving decision in this case has placed reliance upon the case law of Apex Court being R.S.D.V. Finance Co. Pvt. Ltd. Vs. Shree Valllabh Glass Works Ltd., (1993) 2 SCC 130 In this case the Hon'ble Supreme Court has propounded the law with following observations : The Division Bench was totally wrong in passing an order of dismissal of suit itself when it had arrived at the conclusion that the Bombay High Court had no jurisdiction to try the suit. The only course to be adopted in such circumstances was to return the plaint for presentation to the proper Court and not to dismiss the suit. 7. In the aforesaid view of the matter, what was required for the court below, was to take recourse to the procedure, as provided under Order VII, Rule 10 of Code of CPC which gives power to the Court for return the plaint for proper presentation. If the suit was wrongly filed before the civil court, the correct procedure was only to have returned the plaint under the aforesaid Rule 10 of Order VII, Code of CPC for its proper presentation before the revenue court. The dismissal of the suit, as such was hardly a requirement of law in the present context. Accordingly, it is just and proper that the present appeal should be allowed and after setting aside the judgment of the lower appellate court a direction should be given for return of plaint for proper presentation. 8. In result, the appeal is allowed with no order as to costs. The judgment and decree of the lower appellate court dated 18.5.1983 is therefore, set aside. 8. In result, the appeal is allowed with no order as to costs. The judgment and decree of the lower appellate court dated 18.5.1983 is therefore, set aside. The plaint of the suit is directed to be returned for its proper presentation before a revenue court of competent jurisdiction.