Rajendra Dutt Kuthari (Dead) Through Lrs. vs Nathi Prasad Kuthari and others

Rajesh Tandon, J.—Heard Shri S.K. Jain, Counsel for the appellants and Shri Ramji Srivastava, Counsel for the respondents.

By the present second appeal filed under section 100 of Code of Civil Procedure, the appellants have prayed for setting aside the judgment and decree dated 15.10.2003 passed by the Additional District Judge, Dehradun in Civil Appeal No. 6 of 1998.

Second appeal was admitted on the following substantial questions of law:

Whether Court has got jurisdiction to declare the validity of the decree passed in suit No. 377 of 1953 Kundan Lal v. Rajendra Dutt and others after a long period of 41 years and whether the above decree is beyond jurisdiction.

Whether the present suit is barred by section 41 (a) and (h) of the Specific Relief Act?

Whether the plaintiffs have got any cause of action to file the present suit?

Whether the plaintiffs have got any share in the property in question?

Whether the finding of the first appellate Court that in case the entries of defendant No. 1 in the revenue records against the decree passed in suit No. 377 of 1953 is illegal, void and ineffective, is wholly perverse and illegal?

Briefly stated, a suit being suit No. 54 of 1994 was filed for permanent injunction restraining the defendant from selling any portion of the land which has been given to the plaintiffs in the decree of suit No. 377 of 1953. According to the plaint averments, the plaintiffs No. 1 and 2 are the sons of (late) Shri Kundan Lal, and the plaintiff No. 3 is the widow of (late) Shri Ravindra Dutt Kuthari. Shri Kundan Lal died on 13.2.1960. The defendant No. 1 Sri Rajendra Dutt Kuthari and late Shri Kundal Lal Kuthari had joint holdings in various villages in Parwadoon including Mauja Dhorankhas. Late Shri Kundan Lal had 2/3 share in the aforesaid holdings and he filed suit No. 377/1953 for partition claiming 2/3rd share in the Court of Munsif, Dehradun which was transferred to the Court of the Additional Civil Judge (2), Dehradun and vide judgment and decree dated 20.5.1969, late Kundan Lal was declared owner of 2/3rd share in the land in suit and Rajendra Dtott Kuthari was declared owner of l/3rd share in the land in suit. It has been stated that the 2/3rd share of the land in suit was finally separated by the Court by passing a final decree whereby kurra No. 2 was given to the plaintiffs and kurra No. 1 was given to the defendant No. 1 Sri Rajendra Dutt. It has been stated that after the partition the plaintiffs and the defendant No. 1 took over the possession of their respective shares of the property. It has been alleged that the defendant No. 1 took advantage of the ignorance of the plaintiffs and made incorrect entries in khatauni in collusion with the lekhpal of the area and got his name recorded with regard to the land of the plaintiffs. In paragraph 12 of the plaint, the plaintiff has stated as under :

"12.That the defendant No. 1 has struck a deal with the defendant No. 2 who is a property dealer, to sell the land of khasra No. 526/1 area 0.65 H (0.16 acre) and khasra No. 528 M area 0.085 H (0.21 acre) in village DhoranKhas in Parwadoon, which land does not belong to him at all nor is he in possession of the same. The defendant No. 1, on 11 November, 1993 has, with a view to sell the land of the plantiffs, given a general power of attorney in favour of the defendant No. 2, authorizing him to sell the land and got the sale deed registered."

The plaintiffs have claimed the following reliefs:

(A) That the defendants be restrained by means of a permanent injunction, directing them, their legal representatives, and assigns from not selling any portion of the land which has been given to the plantiffs in the decree of suit No. 377 of 1953 "Kundan Lal v. Rajendra Prasad and others", in village Dhorankhas, Pargana Parwadoon in District Dehradun and which land has been detailed in para 5 of this plaint. j.

(B) Any other relief as may be considered just and proper by this Hon''ble Court.

(C) Costs of the suit be awarded against the defendants.

The defendants have filed a written denying the averments made in the plaint. It has been submitted that the father of the plaintiffs namely late Kundan Lal, late Brajlal and father of the defendant No. 1 namely Hansram were the joint bhumidhars of various land including the land in dispute and before the enactment of the U.P.Z.A. and L.R. Act, Kundan Lal was having l/3rd share over the property in dispute and late Brajlal and Late Hansram was having joint ownership over the 2/3rd property of the dispute and all of them were in possession of their respective kurras. After the death of Hansram, the defendant No. 1 became his sole heir. After the death of Brajlal, the defendant No. 1 succeeded the ownership of the property of Hansram and Brajlal. In paragraph 20 of the written statement, the defendants have stated as under :

The defendant No. 1 has submitted that he is the sole owner of the property in dispute and the plaintiffs have no concern over the said property to get the relief of permanent injunction. The suit of the plaintiff is barred by section 41 (h) and (i) of the Specific Relief Act. The suit is also barred by section 233 of U.P. Land Revenue Act and the same is liable to be dismissed.

The defendant No. 2 did not appear before the Trial Court, therefore, exparte proceedings were initiated against him.

On the pleadings of the parties, the Trial Court has framed the following issues :

The plaintiffs have examined Nathi Prasad as P.W. 1, Asgar as P.W. 2 and Naresh Chandra as P.W. 3. The defendants have examined Rajendra Prasad Kuthari as D.w. 1 and Deepak Kapoor as D.W. 2.

While deciding as to whether the plaintiffs are the owners in possession over the property in dispute and further as to whether the decree passed in suit No. 377/53 has no binding over the defendants, the Trial Court has taken into consideration the revenue records and has recorded the finding that as per the final decree made in suit No. 377 of 1953, the name of the plaintiffs could not be recorded in the revenue records and the final decree passed in suit No. 377 of 1953 has no binding effect over the defendants and, as such, the plaintiffs are not the owners in possession over the land in dispute. The findings recorded by the Trial Court are quoted below:

While deciding as to whether the name of the defendant No. 1 has wrongly been recorded in the revenue records with regard to the property in dispute, the Trail Court has recorded the finding that the plaintiffs have to prove their ownership right over their kurras by instituting a regular suit because the names of the plaintiffs have not been recorded in the revenue records as per the final decree passed in suit No. 377 of 1953. The Trial Court, therefore, has recorded the finding that the endorsement of the name of the defendant No. 1 in the revenue records with regard to the property in dispute is not rebut table and the same cannot be held illegal and fake.

While deciding as to whether the Trial Court had no jurisdiction to hear the suit and further, as to whether the suit was barred by section 41 of the Specific Relief Act, the Trial Court has recorded the finding that since the plaintiffs have not been recorded in the revenue records as bhumidhars, therefore, prima facie the status of the plaintiffs are that of unauthorized occupants over the property in dispute. Therefore, the Trial Court has recorded the finding that the suit of the plaintiffs is barred by section 41 of the Specific Relief Act and the Court, therefore, has no right to try the suit.

On the basis of the aforesaid, the Trial Court has dismissed the suit of the plaintiffs.

Aggrieved by the judgment passed by the Trial Court, the plaintiffs went in appeal.

The Appellate Court has relied upon the depositions of P.W. 1 Nathi Prasad and P.W.2 Asgar who have proved that the plaintiffs are in possession over the property in dispute. The Appellate Court has further relied upon the statement of P.W3 Naresh Chand who has deposed that the plaintiffs are in possession over the property in dispute. Further, the Appellate Court has also taken into consideration the admission of the defendant that that plaintiffs are in possession over the land in dispute.

On the basis of the aforesaid, the Appellate Court has allowed the appeal of plaintiffsappellants and passed the judgment and decree for permanent injunction.

Counsel for the appellants have submitted that the suit under section 229B of U.P.Z.A. & L.R. Act for declaration filed by the plaintiffs on the same grounds is pending and the facts of both the cases are the same and, therefore, the subsequent suit for permanent injunction is not maintainable and barred by section 41 (a) and (h) of the Specific Relief Act.

However, without entering into the merits of the case, second appeal is allowed and is remanded back to decide the suit in accordance with the final judgment in the suit under section 229B of U.P.Z.A. & L.R. Act. The operation of the judgment dated 15.10.2003 shall remain stayed till the disposal of the suit finally.