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2016 DIGILAW 3493 (ALL)

Rajeshwar Gupta v. Gauri Devi

2016-10-19

ANJANI KUMAR MISHRA

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JUDGMENT Anjani Kumar Mishra, J. – Heard Shri A.C. Tiwari, for the appellant and Shri Manas Bhargava for the plaintiff/respondent no. 1. 2. This First Appeal From Order arises out of a suit for injunction filed by the plaintiff/respondent being suit no. 97 of 2015. In this suit issue no. 8 was framed as to whether the suit was barred by Section 331 of the U.P. Zamindari Abolition and Land Reforms Act. 3. The trial Court finding that the case involved a declaration of the plaintiff's title in the land in question, which was admittedly agricultural land, dismissed the suit holding it to be barred by Section 331 of the U.P. Zamindari Abolition and Land Reforms Act. 4. The consequential appeal filed by the plaintiff/respondent no. 1 has been allowed vide judgment and order dated 21.04.2016, the order of the trial Court has been set aside and the matter had been remanded back for a decision on the merits of the suit. 5. The dispute pertains to plot no. 43 area 0.031 hectares and plot no. 44 area 0.160 hectares situated in Village Dehli Sujanpur, Kanpur Nagar. 6. The case of the plaintiff/respondent in the suit was that she is the daughter-in-law of the recorded tenure holder Vimla Devi. Vimla Devi died on 03.05.2008 having executed a will of the land in question in favour of the plaintiff/respondent. She is therefore, the owner in possession over the land in question. The defendants are wrongly and illegally interfering with her possession and, therefore, the suit for injunction. 7. The case of the appellant, the defendant in the suit was that the plaintiff is not recorded over the land in question and, therefore, any grant of injunction in her favour would necessarily entail a declaration of her title therein. Such a declaration could not be granted by the Civil Court and could be granted only by the revenue Court and, therefore, the suit was barred by Section 331 of the U.P. Zamindari Abolition and Land Reforms Act. 8. The contention of the defendant/appellant was accepted by the trial Court, which held the suit to be barred by Section 331 of the Act. This order has been set aside by the first appellate Court and the ground that the suit was one for injunction simpliciter, wherein no declaration had been sought. 9. 8. The contention of the defendant/appellant was accepted by the trial Court, which held the suit to be barred by Section 331 of the Act. This order has been set aside by the first appellate Court and the ground that the suit was one for injunction simpliciter, wherein no declaration had been sought. 9. Relying upon the various judgments cited in the order itself, it has been held that the Civil Court has jurisdiction over every matter, except, where a declaration, as provided in the schedule II of the U.P. Zamindari Abolition and Land Reforms Act, is necessarily required. 10. Upon hearing learned counsel for the parties and upon a perusal of the record, I do not find any good ground for interference. 11. It is admitted on record that the plaintiff/respondent is not recorded over the plots in question, which are agricultural plots. 12. On a specific query by the Court, learned counsel for the appellant has admitted that he is not recorded over the land in question. He is a purchaser of an adjacent piece of land. 13. It therefore, follows that both the parties to the suit are not recorded over the land in question. The plaintiff/respondent claims to be in possession and the defendant/appellant does not claim title to the land in question. 14. It is settled law that a suit for injunction can be maintained also on the ground of possessory title. A person in possession over some property can defend his possession and claim an injunction for protecting such possession, from the entire world, except the true owner. 15. As already noticed herein above, the defendant/appellant does not set up his title to the land in dispute. The suit therefore, can be decided on the basis of possession alone and no declaration of title is necessarily involved therein. The impugned order of remand, therefore, merits no interference. 16. Before parting with the case, it appears fit and proper to refer to the case law cited by counsel for the appellant, namely. 1. Kamla Prasad And Others v. Kishna Kant Pathak And Others (2007) 4 SCC 213 . 2. Ganga Prasad And Another v. Ram Das @ Pappu And Others, 2014(6) ADJ 677 . 3. Ashik Ali v. Harigen 2016(130) RD 791 . 17. The first two judgments cited relate to suits for cancellation of sale deeds. 1. Kamla Prasad And Others v. Kishna Kant Pathak And Others (2007) 4 SCC 213 . 2. Ganga Prasad And Another v. Ram Das @ Pappu And Others, 2014(6) ADJ 677 . 3. Ashik Ali v. Harigen 2016(130) RD 791 . 17. The first two judgments cited relate to suits for cancellation of sale deeds. The Apex Court in the case of Kamla Prasad (Supra) has held that cases where legality or otherwise of insertion of names of purchasers in the record of rights and deletion of name of the plaintiff from such record requires adjudication, are to be decided by the Revenue Court, since the names of the purchasers had already been entered. In the case at hand, the revenue entries or their deletion or correction is not in issue and, therefore, the appellant is not entitled to any benefit under the said judgment. 18. The second judgment cited deals with void and voidable sale deeds and their cancellation. No cancellation of any sale deed is involved in the case and, therefore, even this judgment has no application to the case at hand. 19. In the case of Ashik Ali (Supra), in paragraph 21A it has observed as follows: - "(a) Where a cloud is raised over plaintiffs title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter." 20. This case, in my opinion, holds against the petitioner. As already noticed, the suit is for injunction simpliciter. 21. In view of the forgoing discussion, the appeal fails and is dismissed. Appeal Dismissed.