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2016 DIGILAW 988 (ALL)

Prem Shankar Singh v. Krishna Dev Singh

2016-03-17

PRAMOD KUMAR SRIVASTAVA

body2016
JUDGMENT Pramod Kumar Srivastava, J. Heard learned counsel for the appellant on point of admission of second appeal and perused the records. 2. In Original Suit No. 216/2000, Smt. Suraj Kumari Vs. Sri Krishna Dev Singh and Anr., plaint averment was that father of plaintiff Bhagwat Prasad Singh was owner of disputed agricultural property, who had executed unregistered will deed dated 16.11.1936 regarding property mentioned in plaint in favour of plaintiff and handed over said will deed to step mother of plaintiff (defendant no. 2). After death of Bhagwat Prasad Singh, relation of plaintiff and her step mother defendant no. 2 were cordial and good. Defendant no. -2 handed over will deed to plaintiff very late, but on 23.9.1999 defendant no. 2 had executed registered sale deed dated 23.9.1999 in favour of defendant no. 1. Therefore, plaintiff had filed suit for cancellation of said sale deed and for permanent injunction on streagth of ownership of disputed agricultural property. 3. After affording opportunity of hearing to parties, the 4th Additional Civil Judge (Junior Division), Mirzapur had dismissed the original suit by its judgment dated 30.1.2015. 4. Against the judgment of trial court, Civil Appeal No. 19/2015 was preferred, which was heard and dismissed by the judgment dated 15.12.2015 of Additional District Judge, Court No. 6, Mirzapur. Against the judgment of trial court as well as lower appellate court, present second appeal has been preferred by the plaintiff of the original suit. 5. Learned counsel for the appellant contended that finding of fact was given by trial court in favour of plaintiff regarding possession etc. of disputed land, but his suit was erroneously dismissed. He also contended that said findings were not challenged by defendants nor any cross objection was filed by him in first appeal, but lower appellate court had also erroneously dismissed the appeal on the ground that suit is barred by Section 331 of U.P. Z.A. & L.R. Act and Section 49 of Consolidation of Holdings Act. He also contended that such was not findings of trial court, therefore, lower appellate court had passed erroneous judgment. In these circumstances, appeal should be admitted for being allowed. 6. Admittedly, disputed property is agricultural property, over which provisions of U.P. Z.A. & L.R. Act are applicable. The pith and substance of the dispute between the parties is ownership right of disputed agricultural land. In these circumstances, appeal should be admitted for being allowed. 6. Admittedly, disputed property is agricultural property, over which provisions of U.P. Z.A. & L.R. Act are applicable. The pith and substance of the dispute between the parties is ownership right of disputed agricultural land. On the basis of this alleged ownership right of such land, plaintiff-appellant had instituted original suit. It is admitted legal position that such main relief relating to ownership right can be decided only by revenue court and not by civil court. For decreeing the suit of plaintiff her claim of ownership and bhumidhari right has to be recognized and declared by the court. Such declaration cannot be made by civil court, therefore, lower appellate court's finding regarding original suit being barred by Section 331 of U.P. Z.A. & L.R. Act are not erroneous and is hereby confirmed. 7. It is also admitted fact that after coming into force of U.P. Z.A. & L.R. Act, the village relating to disputed agricultural property had undergone consolidation proceedings, which has been completed. When consolidation courts have declared and recognized ownership right of defendant no. 2 (mother of plaintiff-appellant) as bhumidhar of disputed land, then such findings cannot be indirectly challenged in civil court in garb of title of disputed land on the basis of alleged will deed. Therefore, finding of lower appellate court regarding suit being barred by provisions of Consolidation of Holdings Act is also found correct and is hereby confirmed. In these circumstances, judgment of lower court dismissing the claim of plaintiff-appellant is found correct and is hereby confirmed. 8. Learned counsel for the appellant had apprehension that any finding of civil court, especially lower appellate court may unnecessarily prejudice the right of appellant, if he approaches the revenue court or consolidation court. This apprehension is unfounded. When it has been held that civil court, trial court or lower appellate court or this court has jurisdiction to decide the matter, then any finding of fact either by trial court or by appellate court on merit of title of ownership of disputed land is without jurisdiction and unwarranted. Such finding of fact will not adversely affect the right of any party pursuing his rights in court of competent jurisdiction. 9. For the reasons discussed above, and in absence of any substantial question of law, this second appeal is hereby dismissed.