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2024 DIGILAW 2228 (ALL)

Gajendra Kumar Gautam v. State of U. P.

2024-10-18

MANISH KUMAR NIGAM

body2024
JUDGMENT : MANISH KUMAR NIGAM, J. 1. Heard learned counsel for the petitioner, learned counsel for the respondent, learned Standing Counsel and perused the record. 2. This petition has been filed for the following relief: (i) issue a Writ, Order or direction in the nature of Certiorari quashing the impugned ex-parte Order dated 11.12.2023 passed by Respondent no. 2 (Sub Divisional Magistrate/Assistant Collector, Khair, District Aligarh). (Annexure No. 1) to the writ petition. (ii) issue a Writ, Order or direction in the nature of Certiorari quashing the entire proceeding arises out of the Application dated 07.12.2023 of Respondent no. 3 Under Order 39 Rule 1 Read With Section 151 C.P.C. 3. Brief facts of the case are that the contesting respondent filed a suit under Section 116 of U.P. Revenue Code, 2006 for partition of holdings, details of which are given in the plaint itself. Along with the suit, the plaintiff/respondents has filed an application for interim injunction under Order 39 Rule 1 & 2 read with Section 151 C.P.C. The trial court granted ex-parte injunction restraining the defendants in the suit from changing the nature of property in dispute and also restraining them from alienating the property in dispute vide order dated 11.12.2023. Against this order, this petition has been filed. 4. The first contention of the learned counsel for the petitioner is that the suit itself is not maintainable under Section 116 of U.P. Revenue Code, 2006. Learned counsel for the petitioner invited attention of this Court to the provisions of Section 116 of U.P. Revenue Code, 2006. Section 116 of U.P. Revenue Code, 2006 is quoted herein-below: S. 116. Suit for division of holding: (1) A bhumidhar may sue for the division of the holding of which he is a co-sharer. (2) In every such suit, the Court may also divide the trees, wells and other improvements existing on such holding but where such division is not possible, the trees, wells and other improvements aforesaid and valuation thereof shall be divided and adjusted in the manner prescribed. [Substituted by U.P. Act No. 4 of 2016, S. 91] (3) One suit may be instituted for the division of more holdings than one where all the parties to the suit other than the [Gram Panchayat] [Substituted by U.P. Act No. 4 of 2016, S. 2] are jointly interested in each of the holdings. [Substituted by U.P. Act No. 4 of 2016, S. 91] (3) One suit may be instituted for the division of more holdings than one where all the parties to the suit other than the [Gram Panchayat] [Substituted by U.P. Act No. 4 of 2016, S. 2] are jointly interested in each of the holdings. (4) To every suit under this section, the [Gram Panchayat] concerned shall be made a party. 5. Contention of the learned counsel for the petitioner is that the suit is maintainable only for the division of holding and not otherwise. It has also been contended by learned counsel for the petitioner that the petitioner has constructed a house over the property in dispute with mutual consent of the defendant/respondents. This averment made by learned counsel for the petitioner in paragraph no. 7 of the writ petition which is quoted as under: “7. That in this regard it is necessary to brought in the knowledge of this Hon’ble Court that the contesting Respondent no. 3 had already made certain construction over his mutually agreed portion of the Plot and for the same no Respondents have raised objection in this regard, as all the Respondents have made construction over the portion of the Land which they have got on the basis of mutual settlement and only petitioner was deprived to construct his house over the part of the Land which he had on the basis of mutual settlement.” 6. Learned counsel for the petitioner further submitted that since the petitioner has constructed a house over the part of land, therefore, the land ceased to exists as a holding and the remedy of the petitioner is to file a suit before the civil court for partition of his holdings. 7. Contention of learned counsel for the petitioner is wholly misconceived. Mere making construction over a joint bhumidhari land does not change the nature of the holding unless there is a declaration to the effect under Section 80 of the U.P. Revenue Code, 2006 changing the nature of the property, therefore, this contention that suit is to be filed before the civil court is wholly misconceived. 8. Learned counsel for the petitioner relied upon the judgment of this Court in case of Smt. Chandra Jota and others v. Deputy Director of Consolidation and others, 2008 (1) AWC 444. Learned counsel for the petitioner relied upon paragraph no. 8. Learned counsel for the petitioner relied upon the judgment of this Court in case of Smt. Chandra Jota and others v. Deputy Director of Consolidation and others, 2008 (1) AWC 444. Learned counsel for the petitioner relied upon paragraph no. 4 of the judgment which is quoted as under: “4. Valuation of land having abadi/commercial potential cannot be determined categorically in accordance with the formula provided therefor under U.P. Imposition of Ceiling on Land Holdings Act and the Rules framed thereunder hence it is always advisable/fairly essential that such type of land shall not be disturbed in consolidation proceedings and it shall be left with the person whose original holding it is and who has got a previous right of holding the same. The purpose of consolidation is to consolidate the agricultural lands and not abadi or commercial lands. If an agricultural land is used for abadi or commercial purposes, a certificate to that effect under Section 143 of U.P.Z.A. & L.R. Act may be obtained by the tenure holder concerned. However, it is not necessary to obtain such certificate. For using the agricultural land for abadi or commercial purposes no prior permission is necessary. Moreover even if a particular piece of land is not actually being used for abadi still it may have abadi potential due to its nearness to abadi. Even if agriculture is being actually done on such land still it will have abadi potential and is likely to fetch at least ten times consideration if sold than an equal area of land which has got only and only agricultural potential.” 9. It is correct that in a Bhumidhari with transferable rights the person has liberty to use the land as per his wish and there is no impediment for him to use the same only for the purposes connected with agriculture. He can make construction over the bhumidhari land as held in case of Smt. Chandra Jota and others (Supra) that no permission is required under Section 143 of U.P.Z.A. & L.R. Act or Section 80 of U.P. Revenue Code, 2006. There is no dispute to the said proposition but mere raising a construction will not change the nature of land. Land holder will be liable to pay to land revenue unless an order has been passed either under Section 143 of U.P.Z.A. & L. R. Act or Section 80 of U.P. Revenue Code, 2006. There is no dispute to the said proposition but mere raising a construction will not change the nature of land. Land holder will be liable to pay to land revenue unless an order has been passed either under Section 143 of U.P.Z.A. & L. R. Act or Section 80 of U.P. Revenue Code, 2006. The judgment in case of Smt. Chandra Jota and others (supra) relates to valuation of the property and does not lay down that suit for partition will not be maintainable before the revenue court once constructions have been raised over part of bhumidhari of the holder. Unless the nature of the land is changed and declaration is obtained either under Section 143 of U.P.Z.A. & L.R. Act or Section 80 of the U.P. Revenue Code, 2006, suit for partition will lie before the revenue court under the relevant provisions of the Code and not before the civil court. 10. It is next contended by learned counsel for the petitioner that while exercising the power under Section 116 of U.P. Revenue Code, 2006, the revenue court has no jurisdiction to grant an interim injunction. In this regard, learned counsel for the petitioner has also referred to the provision of Section 144 and 145 of the Revenue Code, 2006 and has further developed his argument that injunction can only be granted in proceeding under Section 144 and not 116 of the U.P. Revenue Code, 2006. 11. Per contra, learned counsel appearing for respondents invited attention of this Court to provision of Section 214 of the U.P. Revenue Code, 2006 which says that the provisions of Code of Civil Procedure, 1908 and the Limitation Act are applicable to every suit, application or proceedings under the Code unless expressly otherwise provided. Section 214 of the U.P. Revenue Code, 2006, is quoted as under: “214. Applicability of Code of Civil Procedure, 1908 and Limitation Act, 1963: Unless otherwise expressly provided by or under this Code, the provisions of the Code of Civil Procedure, 1908 and the Limitation Act, 1963 shall apply to every suit, application or proceeding under this Code.” 12. Learned counsel for respondents also brought the attention of this Court to Rules 186 & 192 of the U.P. Revenue Code, 2006. Learned counsel for respondents also brought the attention of this Court to Rules 186 & 192 of the U.P. Revenue Code, 2006. Rule 186 of the U.P. Revenue Code, 2006 provides that provisions of Code of Civil Procedure, 1908 shall not be applicable to summary proceedings under the Code or Rules but the principles enshrined in the Code of Civil Procedure, 1908 and the principles of natural justice shall be observed in the disposal of such proceedings. Rule 186 of U.P. Revenue Code, 2006 is quoted as under: “R. 186. Non-applicability of CPC [Section 214] - The provision of the Code of Civil Procedure, 1908 shall not be applicable to the summary proceedings under the Code or these rules, but the principles enshrined in the Code of Civil Procedure, 1908 and the principles of natural justice shall be observed in the disposal of such proceedings.” 13. Sub Rule (2) of Rule 192 of the U.P. Revenue Code, 2006 provides that proceedings mentioned therein are to be treated as summary proceedings. 14. The attention of the Court was drawn by the learned counsel for the respondents that Section 116 is not mentioned in the list appended for Rules 192(2) of U.P. Revenue Code, 2006 and therefore, the provision of C.P.C. will apply. 15. Learned counsel for the petitioner could not show any provision which expressly bars the application of C.P.C. 16. Since the provisions of C.P.C. are applicable, therefore, the provisions of Order XXXIX Rule 1 & 2 as well as Section 151 of C.P.C. will also apply to a partition suit. Therefore, the contention of the learned counsel for the petitioner that the revenue court while considering a suit under Section 116 has no jurisdiction to grant an interim injunction is also misconceived. With the aid of Order XXXIX Rule 1 & 2 read with Section 151 C.P.C. the court has all powers to consider and grant interim injunction. 17. It has been next contended by learned counsel for the petitioner that the provisions of Section 151 C.P.C. cannot be apply by the revenue court and it can only be applicable to the civil court. The contention is equally misconceived. Every court or tribunal has inherent powers to do the justice between the parties. 18. 17. It has been next contended by learned counsel for the petitioner that the provisions of Section 151 C.P.C. cannot be apply by the revenue court and it can only be applicable to the civil court. The contention is equally misconceived. Every court or tribunal has inherent powers to do the justice between the parties. 18. It further contended by learned counsel for the petitioner that in a partition suit under any circumstance, no injunction can be granted by any court as the property is joint and every joint holder will be presumed to have share as well as constructive possession over the property and therefore, no injunction can be granted. In this connection, learned counsel for the petitioner relied upon the law laid down by Supreme Court in case of Neelavathi and others v. N. Natarajan and others, AIR 1980 SC 691 . In paragraph no. 8 of the judgment, the Supreme Court held as under: “The general principle of law is that in the case of co-owners, the possession of one is in law possession of all, unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession.” 19. This judgment is of no avail to the petitioner as admittedly both the parties are co-sharer and this fact was not been denied by the petitioner. It is next contended by learned counsel for the petitioner that he has not filed objection to injunction application or written statement in the suit. In case of Neelavathi and others v. N. Natarajan and others (supra) the Supreme Court has laid down that in case there is an ouster or exclusion of a joint holder, the injunction can be granted. 20. It is next contended by learned counsel for the petitioner that this construction has been raised with the consent of the parties. This Court cannot examine this fact at this stage whether the construction was raised with the consent of the parties. 20. It is next contended by learned counsel for the petitioner that this construction has been raised with the consent of the parties. This Court cannot examine this fact at this stage whether the construction was raised with the consent of the parties. It will subject to the evidence which will be produced during course of the trial. 21. Learned counsel for the petitioner also refers to a judgment of this Court in case of Smt. Shahnaz Begum v. District Judge Sultanpur and 9 others passed in Matters Under Article 227 No. 546 of 2023. In this case, a question no. A was framed by this Court whether temporary injunction could have been granted to the petitioner-plaintiff against co-sharers of the property without any partition thereupon? While answering this question, this Court has relied upon the judgment of Full Bench of this Court in case of Chhedi Lal and another v. Chhotey Lal, AIR 1951 Allahabad 199. Sub-Paragraph no. 25 of the Full Bench judgment of this Court is quoted as under: “25. As a result of the foregoing discussion, it appears to us that the question of the right of co-sharers in respect of joint land should be kept separate and distinct from the question as to what relief should be granted to a co-sharer, whose right in respect of joint land has been invaded by the other co-sharers either by exclusively appropriating and cultivating land or by raising constructions thereon. The conflict in some of the decisions has apparently risen from the confusion of the two distinct matters. While therefore a co-sharer is entitled to object to another co-sharer exclusively appropriating land to himself to the detriment of other co-sharers, the question as to what relief should be granted to the plaintiff in the event of the invasion of his rights will depend upon the circumstances of each case. The right to the relief for demolition and injunction will be granted or withheld by the court according as the circumstances established in the case justify. The court may feel persuaded to grant both the reliefs if the evidence establishes that the plaintiff cannot be adequately compensated at the time of the partition and that greater injury will result to him by the refusal of the relief than by granting it. The court may feel persuaded to grant both the reliefs if the evidence establishes that the plaintiff cannot be adequately compensated at the time of the partition and that greater injury will result to him by the refusal of the relief than by granting it. On the contrary if material and substantial injury will be caused to the defendant by the granting of the relief, the court will no doubt be exercising proper discretion in withholding such relief. As has been pointed out in some of the cases, each case will be decided upon its own peculiar facts and it will be left to the court to exercise its discretion upon proof of circumstances showing which side the balance of convenience lies. That the court in the exercise of its discretion will be guided by considerations of justice, equity and good conscience cannot be overlooked and it is not possible for the court to lay down an inflexible rule as to the circumstances in which the relief for demolition and injunction should be granted or refused.” The aforesaid Full Bench judgment was followed in case of Devendra Kumar Trikha v. The District Judge, Lucknow and others, 1983 (1) Lucknow Civil Decision 1. This Court while answering the question held that upon consideration of Full Bench Decision, it is apparent that the Full Bench has answered the question that right of co-sharers in respect of joint land is required to be kept separate and distinct from the question as to what relief should be granted to a co-sharer particularly when his share has been invaded by other co-sharers either by exclusively appropriating and cultivating land or by raising constructions thereon. The Full Bench has clearly held that it would only be in case where the rights of co-sharer have been exclusively appropriated by other co-sharers that a suit for injunction would be maintainable against co-sharers. 22. Learned counsel for the petitioner also relied upon the judgment of the Apex Court in case of T. Ramalingeswara Rao (Dead) through Legal Representatives and another v. N. Madhava Rao and others, (2019) 4 SCC 608 . Learned counsel for the petitioner has referred paragraph no. 22. Learned counsel for the petitioner also relied upon the judgment of the Apex Court in case of T. Ramalingeswara Rao (Dead) through Legal Representatives and another v. N. Madhava Rao and others, (2019) 4 SCC 608 . Learned counsel for the petitioner has referred paragraph no. 16 of the said judgment where it has been held that “it is a settled principle of law that the possession of one co-sharer is possession of all co-sharers, it cannot be adverse to them, unless there is a denial of their right to their knowledge by the person in possession. This case also does not help the petitioner. The Apex Court has clearly held that if there is a denial of right by the person in possession then suit for injunction is maintainable. 23. There is no dispute to the proposition of law that possession of one co-sharer is the possession of all co-sharer. In the cases relied upon by the petitioner, nowhere it is held that under any circumstance, an injunction cannot be granted against a co-sharer. There are certain exceptions under which an injunction can be granted which has already been mentioned in the judgments relied upon by the learned counsel for the petitioner. 24. Learned counsel for the petitioner also relied upon the judgment of Apex Court in case of Ramdas v. Sitabai and others, JT 2009 (8) SC 224. Learned counsel for the petitioner has relied upon paragraph no. 15 of the judgment which is quoted as under: “15. Without there being any physical formal partition of an undivided landed property, a co-sharer cannot put a vendee in possession although such a co-sharer may have a right to transfer his undivided share. Reliance in this regard may be placed to a decision of this Court in M.V.S. Manikayala Rao v. M. Narasimhaswami & Ors. AIR 1966 SC 470 , wherein this Court stated as follows: “Now, it is well settled that the purchaser of a co-parcener’s undivided interest in the joint family property is not entitled to possession of what he had purchased. His only right is to sue for partition of the property and ask for allotment to him of that which, on partition, might be found to fall to the share of the co-parcener whose share he had purchased.” 25. In paragraph no. His only right is to sue for partition of the property and ask for allotment to him of that which, on partition, might be found to fall to the share of the co-parcener whose share he had purchased.” 25. In paragraph no. 15 of the judgment quoted above, it has been held by the Apex Court that co-sharer cannot put a vendee in possession, however, co-sharer may have a right to transfer his undivided share. There is no dispute to this proposition of law. Further, the principle of law laid down in the aforesaid judgment is regarding purchaser that he cannot be put in possession and he has to file a suit for partition as well as for possession. This judgment also does not help the petitioner. 26. Since, against an order granting ex-parte temporary injunction, the petitioner has an efficacious alternative remedy of filing objection as well as application for vacation of interim injunction, I do not find it a fit case to interfere with the order impugned, in exercise of powers under Article 226 of Constitution of India. 27. Accordingly, the instant writ petition is disposed of with liberty to the petitioner to move an appropriate application along with his objection for vacating the interim injunction granted by the trial court. 28. In case, such an application is moved, the same shall be considered and decided after hearing all the parties and considering the material on record in accordance with law, without being influenced by any of the observation made in the instant order of this Court.