Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(All) 430

IN THE HIGH COURT OF ALLAHABAD
SARAL SRIVASTAVA, J.
Vijay Pal And others - Appellants
Versus
Rajendra Kumar - Respondent
Second Appeal No. 542 of 2020
Decided On : 19-04-2021

Advocates Appeared:
For the Appellant :Udayan Nandan, Sr. Advocate (Sri Shashi Nandan).
For the Respondent: Mahesh Sharma, Sharad Sinha.

Point of Law: Civil Suit - Jurisdiction of civil court - By reason of exclusion of civil court provided under S. 331 expressly and suit having been a suit under S. 208 of U U.P.Z.A. & L.R. Act fall within SI. No. 23 of Schedule II providing for relief in respect of cause of action provided in column 3 before revenue court. Jurisdiction of civil court is barred.

Headnote:
Civil Procedure Code, 1908 - Section 100 - U. P. Zamindari Abolition and Land Reforms Act, 1950 - Section 143 and 331 - Possession of plot - Judgment and decree passed by appellate court setting aside judgment passed by the trial court decreeing the original suit – Challenged - Second appeal - Pleaded that name of defendant-respondent has been fraudulently recorded in records. Defendant-respondent being influential persons are trying to interfere in peaceful possession of plaintiff-appellant which gave rise to cause of action for filing present suit - Whether appellate court has erred in law in holding that suit is not maintainable by civil court and is barred by Section 331 of U.P.Z.A. & L.R. Act - When once lower appellate court has found that suit is not maintainable before the civil court, whether it was justified in dismissing suit instead of returning the plaint to the plaintiff-appellants to present it before appropriate court.
Finding of the court: plaintiff-appellants admits in paragraph Nos. 3 & 4 of plaint that Ajeet Singh and others got the aforesaid two suits decreed without informing the plaintiff-appellants. It is further averred in paragraph No. 7 of the plaint that the respondent by playing fraud has got their names recorded in revenue record in respect of the property in question. It is further averred that cause of action for filing the suit arose when the defendant-respondent started illegally interfering in peaceful possession of the plaintiff-appellants - It is clear that true nature of the allegation made in the plaint constituting cause of action must be evaluated to determine whether the plaintiff has any adequate or satisfactory alternative remedy on same cause of action in the revenue court - In respect to orders passed under provisions of Act, 1972, Civil Court in a suit under Section 9 C.P.C., has no jurisdiction to declare orders passed by competent authority under Act, 1972 illegal, it had not authority to proceed to decide other issues on merits.
Result: Second appeal is partly allowed

JUDGMENT :

1. Heard Shri Udayan Nandan, learned counsel for the appellants and Shri Dinesh Rai, Advocate holding brief of Shri Mahesh Sharma, learned counsel for the respondent.

2. The plaintiff-appellants have preferred the present second appeal challenging the judgment and decree dated 2.11.2020 passed by the appellate court setting aside the judgment dated 24.9.2016 passed by the trial court decreeing the original suit No. 217 of 2007 (Vijay Pal and others vs. Rajendra Kumar).

3. The brief facts of the case are that the plaintiff-appellants instituted original suit No. 217 of 2007 praying for a decree of mandatory injunction restraining the defendant-respondent from peaceful interference in his possession over plot No. 387 area 0.265 hectare situated in Village Aurangabad Ahir Pargana Agauta, Tehsil & District Bulandshahr. The plaint case was that Buddhi Singh was the owner of the plot No. 387 area 2 bigha 10 biswa situated in Village Aurangabad Ahir Pargana Agauta, Tehsil & District Bulandshahr. One Ajeet Singh and Virendra Singh son of Risal Singh, Buddhi Singh son of Jagat Singh and Jal Singh son of Meer Singh are the descendants of zamindar Fatah Chandra. They had instituted original suit No. 262 of 1991 praying for decree of declaration that they are the owner and in possession over plot No. 387 (hereinafter referred to as 'property in question). Besides above, Ajeet Singh and another instituted another suit praying that their names be recorded in the records in respect of property in question based on decreed dated 7.9.1993. The plaintiff-appellants claim that they and Ajeet Singh belong to one family but Ajeet Singh without informing the plaintiff-appellants got the aforesaid two suits decreed whereas the plaintiff-appellants are also the owner and in possession of the property in question. It is also pleaded that the name of the defendant-respondent has been fraudulently recorded in the records. The defendant-respondent being influential persons are trying to interfere in the peaceful possession of the plaintiff-appellant which gave rise to the cause of action for filing the present suit.

4. The suit was contested by the defendant-respondent by filing a written statement denying the allegation of the plaint. In the additional plea, the defendant-respondent pleaded that the gata No. 387 is a big plot having an area of 0.632 hectares out of which 0.367 hectares is recorded in the name of Ajeet and the name of the defendant-respondent is recorded with respect to 0.265 hectares of the said gata in khasara and khatauni. The defendant-respondent specifically stated that the name of the plaintiff-appellants is not recorded in any of the revenue records. They also pleaded that the property in question is agricultural land and as there is no declaration under Section 143 of U.P.Z.A. & L.R. Act by the competent authority, consequently, the suit is barred by Section 331 of U.P.Z.A. & L.R. Act. The defendant-respondent also pleaded that the property in question has been allotted to him by Gaon Sabha after following due procedure.

5. The plaintiff-appellants filed a replication stating therein that no declaration under Section 143 of the U.P.Z.A. & L.R. Act is required as the Abadi on the land in question is old. Therefore, the suit is not barred by Section 331 of U.P.Z.A. & L.R.Act.

6. The defendant-appellants filed an additional written statement contending inter-alia that in a suit for injunction, the declaration of rights of the plaintiff-appellants is also involved. It is further pleaded that the name of the plaintiff-appellants is not recorded in the revenue record. Consequently, the suit is not maintainable being barred by Section 331 of the U.P.Z.A. & L.R. Act.

7. On the basis of pleading, the trial court has framed as many as 11 issues which read as under:-

^^1-D;k oknhx.k oknxr lEifRr [ksr l0 387 jdcbZ 0-265 gS0 ds ekfyd] dkfct o nkf[ky gS vkSj mDr Hkwfe ij oknhx.k dh vkcknh ,] ch] lh] Mh dk;e gS \ ;fn gk¡ rks izHkko \

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