Gorakh Rai vs The Civil Judge and Others

Bharati Sapru, J.—This petition has been filed by the petitioner against an order dated 10.8.84 filed in Civil Appeal No. 69 of 1982 on an application moved by the petitioner- the defendant appellant for abatement of the appeal u/s 5(2)(a) of the U.P. Consolidation of Holdings Act, 1953.

The facts of the case are that the plaintiff respondents filed original suit No. 148 of 1976 seeking a permanent injunction to restrain the defendant- the present petitioner from raising any construction in bhumidhari plot No. 720 and 721 situated in village Muzaffarpur, District Azamgarh.

During the pendency of the suit, the present petitioner raised some constructions in the land in suit and the plaintiff, i.e., the respondents in the present case, amended the plaint and prayed for relief of demolition as well as construction and also claimed damages.

At that stage, the petitioners in the present case, also admitted this fact that in fact, the plaintiff respondents were cosharers of the land in suit which was under the establishment of the grove. The present respondents also admitted that the present petitioner was the owner of the property in the suit and the matter of title of the said grove was not disputed. The present petitioner made a specific statement in the W.S. about the share as shown in the plaint and in paragraph-5 of the W.S. he alleged that about 5 or 6 biswas of land was in his share and, therefore, dispute with regard to this was to be decided by the Revenue Court. Such, being the case, the petitioner moved an application u/s 5(2)(a) that the appeal be abated. The petitioner has stated that a notification has been issued u/s 4 of the Consolidation of Holdings Act, with respect to the said land. This fact is also stated in paragraph-6 of the writ petition that consolidation proceedings have started in the village u/s 4-A of the Act of 1953.

A counter affidavit has been filed by the respondents No. 3 to 13 who stated in paragraph-7 of the writ petition that the contents of paragraph-6 of the writ petition are admitted.

Therefore, on facts, there is no doubt that Section 4 of notification had been issued and consolidation proceedings were going in respect of bhumidhari plot No. 720 and 721, which were the plots in dispute.

Learned counsel for the petitioner has argued that the impugned order dated 10th of August, 1984 dismissing his '' application u/s 5(2)(a) of the U.P. Consolidation of Holdings Act 1953 contains an error of law, which is apparent on the facts of the record, and is, therefore, liable to be set aside by this Hon''ble Court.

Learned counsel for the petitioner has argued that the title of the plaintiff to the land in dispute was challenged by the petitioner as it was the petitioner''s contention that the plaintiff respondents have lost their right, as a result of transfer and on the other hand, the title of the land in dispute had matured in favour of the present petitioner by way of adverse possession.

Learned counsel for the petitioner has also argued that the facts as noted in the impugned order are wrong and it is wrongly been stated in the impugned order that the title of the plaintiff to the land in dispute of the grove had been admitted by the petitioner. On the other hand, the present petitioner states that he had categorically denied the title of the plaintiff and had claimed the title of the plot in dispute through adverse possession.

Learned counsel for the petitioner has argued that even If the Court below came to the conclusion that the property was jointly held by both parties, relief could have been granted only by the consolidation authorities as the consolidation authorities alone are entitled to decide the dispute with regard to the partition of such properties and for this reason, jurisdiction of the Civil Court would be ousted.

In support of his submissions, learned counsel for the petitioner has relied upon a decision of this Hon''ble Court in the case of Jagardeo Shukla and Ors. v. Chandradeo Singh as reported in 1981 ALJ 936 wherein the Allahabad High Court while considering the case on similar facts where injunction was sought restraining the defendants from taking an electrical line across the plot of the plaintiff who claimed to be bhumidar of such plot would have been decided only by the Revenue Court.

The Allahabad High Court held that the question of granting relief would only arise after determining as to who were the bhumidar of the plot in dispute. Such a question would have been determined only by the Revenue Court and, therefore, the case before the Civil Court would stand abated u/s 5(2)(a) of the U.P. Consolidation of Holdings Act, 1953. Section 5(2)(a) of the Act is quoted herein below. :--

5(2)(a): Every proceeding for the correction of records and every suit and proceeding in respect of declaration of rights or interest in any land lying in the area, or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any Court or authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the Court or authority before whom such suit or proceeding is pending, stand abated:

Provided that no such order shall be passed without giving to the parties notice by post or in any other manner and after giving them an opportunity of being heard :

Provided further that on the issue of a notification under Sub-section (1) of Section 6 in respect, of the said area or part thereof, every such order in relation to the land lying in such area or part as the case may be, shall stand vacated.

In the above judgment, the Hon''ble Judge relied on a case of J.N. Shukla v. S.R. Pande as reported in 1969 ALJ 768 wherein a division Bench of the Allahabad High Court observed that :

The language of the amended Section 5(2) is very wide. It provides for the abatement of suits not only "for declaration of rights or interest in any land" but also for suits in respect of declaration of rights or interests in any land. In consolidation proceedings, the question whether a sale deed is binding or not arises during the course of adjudication upon the rights of parties in the land.

The form of relief, however, is, to our mind, is immaterial, If the consolidation authorities hold that the sale deed has been obtained by fraud etc. and is in operative, the party will get substantially all the reliefs, which he holds. He will be declared to be still tenure holder of the plots and be entitled to chak in lieu of that. Therefore, the mere fact that the consolidation authorities cannot grant the form in which the Civil Court can itself, will not effect the question. The suit remains a suit in respect of the declaration or adjudication of the rights of parties in the land.

The learned Judge also relied up on a decision of the Hon''ble Supreme Court as reported in the case of M.M. Raza v. Hasan Raza in 1978 S.C. 1398 wherein it was held by the Supreme Court that in a suit for recovery of land which comes to be included in an area u/s 4 of the Act, the matter becomes cognizable by the Consolidation Authorities and where the parties of the suit claim rights to it under U.P.Z.A. & L.R. Act, such suit shall stand abated u/s 5(2)(a) of the Act.

The learned Judge also referred to a decision of the Hon''ble Supreme Court in the case of Ram Adhar Singh v. Ramroop Singh and Ors. as reported in 1968 S.C. 714 wherein the Hon''ble Supreme Court held that :--

every suit and proceedings in respect of declaration of rights or interest in any land, are comprehensive enough to take in suits for possession of land, because before a claim for possession is accepted, the Court will have necessarily, to adjudicate upon the right or interest of the plaintiff, in respect of the disputed property taking into account the claim of the opposite party.

Therefore, the Supreme Court opined that the suit instituted by the respondent for possession also be covered by the amended Section 5 of the Act. The permanent injunction was issued for taking possession of the suit in dispute and, thereafter, for demolition. The title was vehemently denied by the present petitioner, who was defendant in the injunction suit. No doubt, in order to pass any injunction, the title of the plaintiff would have been to be established and had to be examined, particularly, when the defendant petitioner disputed it.

I have heard learned counsel for the respondent also who has not been able to deny the above facts in his counter affidavit, he has admitted that the notification u/s 4 of the U.P. Consolidation of Holdings Act had been issued. As stated earlier, this is admitted to him in paragraph-7 of the counter affidavit in reply to paragraph-6 of the writ petition.

In view of the above fact, it becomes abundantly clear that once the Consolidation Proceedings has started, the question of title and any other related question would necessarily have to be determined by the Consolidation Courts and, therefore, the jurisdiction of the Civil Court would be ousted u/s 5(2) (a) of the Act of 1953.

In support of his contentions, the petitioner in reply has relied on a decision of the Hon''ble Supreme Court as reported in Deokinandan and Others Vs. Surajpal and Others, wherein in similar circumstances, the Hon''ble Supreme Court held that :--

Since We Civil Court which entertained the suit suffered from an inherent lack of jurisdiction because of special provisions of the U.P. Zamindari Abolition and Land Reforms Act 1951, the present appeal filed by the appellants had to be dismissed.

In the present case also once a notification was issued u/s 4 of the U.P. Consolidation of Act, 1953, all issues relating to the plot in dispute would necessarily have to be adjudicated under this Act and, therefore, the provisions of Section 5 (2) (a) of the Act, 1953 would also come in to play and the jurisdiction of the Civil Court would obviously be barred under the provisions of Section 5(2)(a) of the Act, 1953.

Such being the case, the submissions as made by the petitioner have force and are accepted by this Court.

The impugned order suffers from manifest error of law. The Court below has wrongly come to the conclusion that the civil suit had been filed by. the plaintiff only for the relief of possession and demolition and did not contain any issue with regard to the title of the property in dispute. Such was not the case during the trial of the case. In the very first instance, the petitioner defendant had taken the plea that it contested the title of the plaintiff. The land in dispute being bhumidhari land, questions with regard to title and all other related questions would necessarily have to be decided by the Consolidation Courts and the jurisdiction of the Civil Courts would stand ousted by virtue of the provisions of Section 5(2)(a) of the U.P. Consolidation of Holdings Act, 1953.

In view of the above discussions, I hold that the impugned order dated 10.8,1984 suffers from a manifest error of law, which is apparent from the face of the record and is wholly vitiated. I quash the order dated 10th of August, 1984. The Civil Suit and the appeal, both shall stand abated in view of the provisions of Section 5(2)(a) of the U.P. Consolidation of Holdings Act, 1953. The writ petition is allowed. There will be no order as to costs.