Sardar Jasbir Singh and Others vs IVth Additional District Judge and Others

Sudhir Agarwal, J.—Heard Sri. G.S. Nigam, learned counsel for the petitioner and perused the record. The respondent No. 2 instituted a suit u/s 229B of U.P. Zamindari Abolition & Land Reforms Act, 1951 (hereinafter referred to as "Act, 1951") impleading Gaon Sabha, Mahinaura and State of Uttar Pradesh seeking declaration that disputed plot No. 1259 area 10 bigha 7 biswa is his bhumidhari land with transferable rights. A notification u/s 4 of Consolidation of Holdings Act, 1953 (hereinafter referred to as "Act, 1953") was issued and thereafter aforesaid suit stood abated on 17th February, 1992 u/s 5(2) of Act, 1953.

Thereafter aforesaid respondent No. 2 instituted another suit in the Court of Munsiff, North, Unnao against petitioners seeking an injunction restraining petitioners from forcibly interfering in peaceful enjoyment and possession of respondent No. 2 upon the land No. 1259 (old No. 1477) measuring 10 bigha 7 biswa situated in Gram Mahnaura, Pargana Gosinda Parsandan, Tehsil Hasanganj, District Unnao.

The petitioners put in appearance and filed their objections stating that dispute relates to a property which is actually owned by petitioners and since there is a tide dispute, suit is not maintainable and must be held to be abated u/s 5(2) of the Act, 1953. The objection raised by petitioners found favour with Trial Court and it passed order dated 21st May, 1994 abating the suit u/s 5(2) of Act, 1953. But the aforesaid decision has been reversed by lower Appellate Court by allowing civil appeal No. 72 of 1994 filed by respondent No. 2.

Learned counsel for the petitioners submitted that in the present case unless dispute/issue of title is decided, no injunction can be; granted and therefore judgment of Trial Court abating suit was perfectly right but lower Appellate Court has committed error in taking a view otherwise. He placed reliance on Apex Court''s decision in Ram Adhar Singh Vs. Ramroop Singh and Others, and this Court''s decisions in Zor Singh & Ors. v. Hukum Singh & Anr., 1971 RD 331, Ram Lakhan and Others Vs. Gaon Sabha and Others, and Smt. Barsatiya v. District Judge, Ghazipur, 1984 RD 156 : (1984 All LJ 490) and contended that in view of aforesaid authoritative pronouncement of Apex Court and this Court, judgment of lower Appellate Court is liable to be set aside.

The only issue up for consideration, whether suit in question would stand abated by Section 5(2) of Act, 1953.

Section 5(2)(a) of Act, 1953, relevant for our purpose of Act, 1953, reads as under.-

(2) Upon the said publication the notification under sub-section (2) of Section 4, the following further consequences shall ensure in the area to which the notification relates, namely:--

(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.

A perusal of above shows that upon publication of notification u/s 4(2) of Act, 1953, suit and proceedings of specified nature pending before any Court or authority shall abate. The kinds of cases which would stand abated by virtue of Section 5(2) upon publication of notification issued u/s 4(2) of Act, 1953 are:--

(I) Proceedings for correction of records,

(II) Suits or proceedings in respect of declaration of rights or interest in any land.

(III) Suits or proceedings for declaration or adjudication of any other right in regard to which proceeding can or ought to be taken under this Act.

Exposition of law is well settled that a statute ousting the jurisdiction of a Court must be construed strictly. (See Abdul Waheed Khan Vs. Bhawani and Others, ). Thus the jurisdiction of Court or authority, as the case may be, which would stand affected by virtue of Section 5(2), have to be seen strictly whether they are within the ambit of aforesaid provision or not.

This Court in Radha Krishna and Others Vs. Brij Kishore and Others, said:--

The section being exhaustive will only apply to suits or proceedings specified therein, and no other. It cannot be stretched to bring within its ambit the suit or proceedings which the Legislature did not intend to abate on the onset of consolidation operations. Thus, unless the suit or proceedings fall within three abovementioned categories, the jurisdiction of the Court or authority, otherwise, empowered to decide the same cannot be excluded or ousted.

In Ram Adhar Singh Vs. Ramroop Singh and Others, , the Court construed Section 5(2) as amended by U.P. Act 21 of 1966 and said that a suit filed for recovery of possession of a property on the ground that the opposite party is a trespasser and has no right to remain in possession of property ex facie would include a dispute relating to title. Therefore, the expression ''every suit and proceedings in respect of declaration of rights or interest in any land'', is comprehensive enough to take in suits for possession of land, because, before a claim for recovery of possession is accepted, the Court will have necessarily to adjudicate upon the right or interest of the plaintiff, in respect to the disputed property, taking into account the claim of opposite party and such a suit would hit by Section 5(2) of Act, 1953.

Therein the Court had no occasion to consider whether a suit for mere injunction would also come within the ambit of Section 5(2) of Act, 1953.

This issue came up for consideration in Zor Singh & Ors. (supra) but the facts of the case show that though the suit was filed for permanent injunction, but plaintiff himself admitted that defendant had dispossessed him and therefore the Court took a view that if that being so, no suit for mere injunction was maintainable and the suit should have been for possession. Once a suit for possession has to be filed, a dispute with regard to title over the land has to be decided by the Court and in such circumstances the suit would be covered by Section 5(2) of Act, 1953 after a notification has been issued u/s 4(2) of the Act, 1953.

Referring to the Apex Court''s decision in Ram Adhar Singh Vs. Ramroop Singh and Others, , the Court also observed, where right or title to the land is not involved, a suit for injunction would fall outside the provision of Section 5(2) of Act, 1953. The relevant observations are:--

...Even a suit for an injunction implies a declaration of right or title to hold land. In my opinion, even a suit for an injunction, which involves a declaration of title or right or interest in land, would be struck by Section 5 of the U.P. Consolidation of Holdings Act. A suit for an injunction which does not involve such a declaration, but is based on an alleged right of easement may fall outside the provisions of Section 5.

(Emphasis added)

The issue, however, has been settled by a Division Bench of this Court in Banwari Lal and Others Vs. Tulsi Ram and Others, wherein it was held that in a suit where plaintiff does not desire adjudication of his rights and the only relief claimed is that of permanent injunction, and the suit is not of a kind which necessitates adjudication of rights before relief could be granted, such a suit would not abate by virtue of Section 5(2) of Act, 1953.

In the context of Civil Court and Revenue Court''s jurisdiction, Apex Court has also held in Heera Lal & Anr. v. Carjan Singh & Ors., 1990 (1) CRC 466 that in a suit for permanent injunction the question of title arises only incidentally, and it is the civil court which has exclusive jurisdiction to try such suits.

If the suit, in the present case, is looked into in view of above exposition of law, this Court finds that plaintiff has set up a case that he is in possession of 10 bigha 7 biswa land of plot No. 1259 (old No. 1477) situated at Gram Mahnaura, Pargana Gosinda Parsandan, Tehsil Hasanganj, District Unnao and is continuously cultivating the land. His crop is standing thereon but the defendants are trying to cut his crop by threats etc. and therefore, they should be restrained from taking forceful possession of property in dispute and should not damage standing crop and peaceful enjoyment and possession of plaintiff. The defendants though disputed the claim set up by plaintiff, but, admits in written statement that there are entries in revenue records which are in the name of plaintiff and plot No. 1259 is a very big plot of which 133 bigha and 18 biswa was registered in the name of a agricultural society and defendants are cultivating thereupon. The entry in revenue records in respect to plaintiff is not disputed but it is challenged alleging that it is a forged entry.

Looking to the nature of allegations contained in the plaint and relief sought by plaintiff, in my view, the suit as it stands neither seeks any correction of record nor any declaration of rights or interest in the land. Suit for declaration of rights and interest in any land necessarily implies relief by way of declaration of rights in the said land and unless a relief is claimed, the suit cannot be said to be one for declaration of rights or interest in the land.

When a suit for recovery is filed, interest in the land is claimed and that is how it has been held to be covered by Section 5(2), which is not the case here. No such relief in the present case has been sought by plaintiff. It thus cannot be termed to be a suit in respect to declaration of rights or interest in the land.

In respect to injunction suit in Radha Krishna and Others Vs. Brij Kishore and Others, this Court further said:--

Further, under the scheme of the Act, since the authorities are not vested with any power to grant injunction, the suit cannot be termed as one for declaration or adjudication of any such rights in regard to which proceedings can or ought to be taken under this Act.

In the present case, the plaint as it stands does not fit in any of the three classes of suits or proceedings specified u/s 5(2) of the Act, 1953 which the Legislature intended to abate on the on set of consolidation operation. Any finding with regard to title or interest of the plaintiff in the property in such a suit for injunction will only be incidental for the purpose of granting injunction without any declaration of such rights of plaintiff in the land, and hence not liable to be abated.

Considering the authorities cited at the Bar, I find that in Ram Lakhan & Ors. (supra), the Court simply held the suit stand abated u/s 5(2) of the Act, 1953 on the ground that land in question is covered by definition of ''land'' under Act, 1953 but it has not noticed Division Bench judgment in Banwari Lal and Others Vs. Tulsi Ram and Others, rendered earlier and the same being a judgment of Larger Bench, binding on this Court.

The decision in Smt. Barsatiya (1984 All LJ 490) (supra) has followed dictum laid down in Zor Singh & others (supra) where this Court has held that a suit for injunction, which involves a declaration of title or right or interest in land, would stand abated u/s 5(2) of Act, 1953; but it has clearly said that suit for injunction, which does not involve a declaration of title or right etc., but is based on an alleged right of easement, may fall outside the provision of Section 5(2) of the Act, 1953.

The decision in Banwari Lal and Others Vs. Tulsi Ram and Others, has also been followed by this Court in Kanchan Kumar Chaudhary Vs. District Judge, Mau and others, .

In view of Division Bench judgment in Banwari Lal and Others Vs. Tulsi Ram and Others, and the two single Judge authority of this Court, following aforesaid Division Bench judgment in Kanchan Kumar Chaudhary Vs. District Judge, Mau and others, and Radha Krishna and Others Vs. Brij Kishore and Others, , I am clearly of the view that suit in question is simply a suit for permanent injunction and would not stand abated by Section 5(2) of Act, 1953.

The writ petition is, therefore, dismissed. Interim order, if any, stands vacated.