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2013 Supreme(All) 1630
UTTARAKHAND HIGH COURT
Pafulla C.Pant, J.
Surjeet Singh -Appellant
Versus
Shanti Devi and Another -Respondent
S.A. No. 404 of 2001 (Old No. 1299 of 2000)
Decided On : 27-6-2013
The central legal point established in the judgment is the application of Section 49 of the Uttar Pradesh Consolidation and Holdings Act, 1953, to bar the suit for injunction in a property dispute.
Headnote:
Will - Property Dispute - Uttar Pradesh Consolidation and Holdings Act, 1953 - Section 49
Fact of the Case:
The plaintiff filed a suit for injunction against the defendants to restrain them from interfering with her possession of the land based on a registered 'Will' executed in her favor. The defendants contested the suit, claiming ownership and possession of half of the land based on a subsequent 'Will' and raised legal pleas regarding the suit's validity.
Finding of the Court:
The trial court found in favor of the plaintiff, decreeing the suit, which was affirmed by the lower appellate court. The defendant appealed, arguing that the suit was barred under Section 49 of the Uttar Pradesh Consolidation and Holdings Act, 1953.
Issues: The issues included ownership and possession based on conflicting 'Wills', non-joinder of a party, and the suit's validity under relevant land reform acts.
Ratio Decidendi: The court held that the suit was indeed barred under Section 49 of the Act, as the area in question was subject to consolidation operations, and the suit for injunction was not maintainable in the civil court.
Final Decision: The appeal was allowed, and the judgments and decrees of the lower courts were set aside, ruling in favor of the defendant based on the application of Section 49 of the Act.
This appeal, preferred under Section 100 of Code of Civil Procedure, 1908, is directed against judgment and decree dated 05.09.2000, passed by Additional District Judge, Udham Singh Nagar, in Civil Appeal No. 78 of 1999, whereby said court has dismissed the appeal, and affirmed the judgment and decree dated 20.09.1999, passed by the trial court [Civil Judge (Junior Division) Khatima] in Suit No.168 of 1989.
2) Heard learned counsel for the parties, and perused the lower court record.
3) Brief facts of the case are that plaintiff/respondent No.1 instituted Suit No. 168 of 1989, before the Civil Judge (Junior Division) Khatima, for injunction against the defendants restraining them from interfering with possession of the plaintiff over land in suit with the pleadings that plaintiff’s father in law Amar Singh was recorded tenure holder (BHUMIDHAR) of land of Khasra No. 228A of Khata No. 180 measuring 41 Bighas and 12 Biswas and also that of Khasra No. 228B measuring 2 Bighas and 6 Biswas. It is also pleaded that during his life time Amar Singh executed a registered “Will” dated 27.01.1981, in favour of the plaintiff and he died on 07.05.1989, whereafter, the plaintiff became owner in possession of the land in Suit. It is alleged by the plaintiff that the defendants want to interfere in the possession of the plaintiff. Hence, the suit for injunction.
4) Defendants contested the suit and filed their written statements (Defendant No. 3 Manohar Singh died during the pendency of the suit, and his name was later deleted). In the joint written statement filed on behalf of the defendants, it is stated that though registered “Will” dated 27.01.1981 was executed by Amar Singh in favour of the plaintiff, but thereafter, on 09.02.1989, a subsequent “Will” was executed by him, as such, the “Will” dated 27.01.1981 carried no force. It is also pleaded by the defendants that the they are in actual possession of half of the land in suit and are cultivating it. It is also stated that only on remaining half portion of the land in suit, plaintiff Shanti Devi is in possession. It is denied that the defendants have attempted to dispossess the plaintiff from the land in suit in her possession. The defendants also took the legal pleas that the suit is barred by Section 331 of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950. They further pleaded that the suit is barred by Section 49 of Uttar Pradesh Consolidation and Holdings Act, 1953. They also pleaded that the suit is bad for non-joinder of Smt. Harbans Kaur.
5) On the basis of the pleadings of the parties, following issues were framed by the trial court:-
1) Whether the plaintiff is owner in possession of Plot No. 228A and 228B on the basis of “Will” dated 27.01.1981(executed by Amar Singh), if so its effect?
2) Whether the defendants are owner in possession of half of the land in suit on the basis of the “Will” dated 09.02.1989(executed by Amar Singh)?
3) Whether the suit is bad for non-joinder of Smt. Harbans Kaur as a party?
4) Whether the suit is barred by Section 331 of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950?
5) Whether the suit is under valued and court fee paid is insufficient?
6) Whether the suit is bad for mis-joinder of Gurbachan Singh? To what relief, if any, plaintiff is entitled?
6) Apart from above, it appears that the preliminary issue was framed on 31.03.1994, as to whether, the suit is barred under Section 49 of Uttar Pradesh Consolidation and Holdings Act, 1953. Said issue was decided as preliminary against the defendants. On the other issues, the trial court found that the defendants failed to prove the “Will” dated 09.02.1989, relied by them. As against this registered “Will” dated 27.01.1981, was found proved executed in favour of the plaintiff. The other issues were also decided against the defendants and suit was decreed by the trial court, vide its judgment and decree dated 20.09.1999. Aggrieved by said judgment and decree passed i
