Shri Ved Prakash Maheswari vs Vimla Devi

Rajesh Tandon, J.—Heard Shri V.K. Bisht assisted by Shri Virendra Kumar, counsel for the appellant and Shri B.D. Upadhyaya, counsel for the respondent.

The plaintiff has filed the present second appeal u/s 100 of CPC and has prayed for setting aside the judgment and decree in Civil Appeal No. 12 of 1995 dated 21.11.1997 and 12.12.1997 respectively passed by the District and Sessions Judge, Pauri Garhwal, by which the appeals have been allowed and the suit has been directed to be Instituted before the competent revenue court.

Briefly stated, a suit was filed by the plaintiff praying for the eviction of the defendant from the premises situated in khatauni No. 122 and khet No. 98 of which the plaintiff is recorded as bhumidhar in the revenue records.

Plaintiff-appellant has submitted that in the year 1975 in order to look after the land husband of defendant namely late Shri Lal Bahadur was employed as a chowkidar and he was permitted to live in the premises. Shri Lal Bahadur expired in the year 1996 and on the request of the defendant, the widow of Shri Lal Bahadur was permitted to live in the premises. According to the plaintiff, he has sent a notice on 3.6.1882 for vacating the premises by the defendant. The notice was duly served upon the defendant on 4.6.1992 but inspite of the service of the notice she has not vacated the premises. Hence, the plaintiff has filed the present suit for eviction of the defendant.

A written statement was filed by the defendant and amongst other pleas, the defendant has alleged that the suit is barred by the provisions of the U.P. Z.A. & L.R. Act and is not maintainable before the Civil Court.

So far as the paragraph No. 1 of the plaint, the defendant has admitted that the plaintiff was recorded in revenue record as bhumidhar of the land in dispute. Thus, there was no denial that the plaintiff is not a recorded tenure holder and there is admission on the part of the defendant to that effect.

The trial court has framed as many as 5 issues. Issue No. 3 was with regard to the jurisdiction of the Court and the same was decided by the order dated 15.09.1994. The issue was decided to the effect that it is a case where the plaintiff has filed the suit praying for the eviction of the defendant from his premises which was let out to the defendant. The order dated 15.09.1994 has become final and, thereafter, the suit was decreed in favour of the plaintiff.

An appeal was preferred by the defendant being appeal No. 12 of 1995 which was allowed on the ground that since the land is the revenue paying land and the provisions of U.P. Z.A & L.R. Act shall apply to the land.

After considering the arguments of Shri V.K. Bisht assisted by Shri Virendra Kumar, following substantial questions of law arise for the decision of the present second appeal:

(1) Whether the plaintiff having recorded in the revenue records as bhumidhar and, therefore, the suit is maintainable before the Civil Court.

(2) Whether the suit is barred by the provision of U.P. Z.A. & L.R. Act.

In order to answer the aforesaid controversy, reference is made to the Full Bench of Allahabad High Court reported in 1968 RD 470 Ram Avalambh v. Jata Shankar and Ors. It has been clarified by the Allahabad High Court that where the plaintiff is not a recorded tenure holder and seeks relief of injunction, it can be said that he is seeking declaration of title but where he is a recorded tenure holder, it cannot be said that the suit is not within the jurisdiction of civil court for granting relief of injunction in respect of agricultural land.

From a perusal of the record, it is evident that the plaintiff is recorded in the revenue records. He has not prayed for any declaration of his rights, therefore, the suit is maintainable before the Civil Court.

The Apex Court in Kamla Prasad and Others Vs. Sri Krishna Kant Pathak and Others, . has observed that where the recorded tenure holder files the suit for injunction, Civil Court has jurisdiction to try the suit. Paragraphs 14, 15 and 17 are relevant and the same are quoted below:

In this connection, the learned Counsel for the appellant rightly relied upon a decision of this Court in Shri Ram and Anr. v. 1st Adl. Distt. Judge and Ors. In Shri Ram, A, the original owner of the land sold it to B by a registered sale deed and also delivered possession and the name of the purchaser was entered into Revenue Records after mutation. According to the plaintiff, sale deed was forged and was liable to be cancelled, In the light of the above fact, this Court held that it was only a Civil Court which could entertain, try and decide such suit. The court, after considering relevant case law on the point, held that where a recorded tenure holder having a title and in possession of property files a suit in Civil court for cancellation of sale deed obtained by fraud or impersonation could not be directed to institute such suit for declaration in Revenue Court, the reason being that in such a case, prima facie, the title of the recorded tenure holder is not under cloud. He does not require declaration of his title to the land.

The Court, however, proceeded to observe:

the position would be different where a person not being a recorded tenure holder seeks cancellation of sale deed by filling a suit in the civil court on the ground of fraud or impersonation. There necessarily the plaintiff is required to seek a declaration of his title and, therefore, he may be directed to approach the revenue court, as the sale deed being void has to be ignored for giving him relief for declaration and possession.

In the light of the above facts, in our opinion, the courts below were wholly right in reaching the conclusion that such a suit could be entertained only by a Revenue Court and Civil Court had no jurisdiction. The High Court by reversing those orders had committed an error of law and of jurisdiction which deserves interference by this Court.

Counsel for the respondent has referred the judgment of the Division Bench of the Uttaranchal High Court in 2006 (1) U.D. 658 Kulwant Kaur Sidhu v. Smt. Rahiman Bai Guddi (deceased), through LRs. In paragraph 7 to 11 it has been observed as under:

In Ram Avalambh v. Jata Shankar and Ors. 1968 R D 470 (Full Bench), it has been clarified by the Allahabad High Court that where the plaintiff is not a recorded tenure holder and seeks relief of injunction, it can be said that he is seeking declaration of title but where he is a recorded tenure holder, it cannot be said that the suit is not within the jurisdiction of civil court for granting relief of injunction in respect of agricultural land.

On behalf of the appellant, it is contended that the defendant is also recorded tenure holder in respect of the land khasra Nos. - 180 and 181, with one Ved Prakash. It is further submitted that the defendant/applicant is recorded tenure holder in respect of plot No. 184 also. Perusal of the written statement, shows that it has no where been pleaded by the defendant that the land in suit lies over Khasara No. 180, 181 or 184. It is not disputed that the defendant''s land lies in the east of the plaintiff''s land. The question involved in the suit is whether defendant by opening her door towards west of her plot, has started using the disputed strip of land, shown as ''alleged raasta'' towards highway shown in the plaint map- on west land- ''Aa''Ba'' ''Sa'' ''Da'') and is the plaintiff entitled to the injunction against the defendant. In the above facts and circumstance, no remedy of injunction could have been sought by the plaintiff in the revenue court. As such, since the plaintiff has come up with a case that the defendant is attempting to use a part of the land of which plaintiff is the recorded tenure holder and in possession, it cannot be said that the suit is barred by Section 331 of U.P. Zamindari Abolition and Land Reforms Act, 1950.

Shri Sudhanshu Dhulia, Senior Advocate, learned Counsel for the appellant, drew attention of this Court to the principle of law laid down in Shri Chandrika Singh and others Vs. Raja Vishwanath Pratap Singh and another, and argued that revenue court has jurisdiction in respect of the controversy as to the use of the land whether it is an agricultural land or not? We have gone through said case law. We are of the view that it is not applicable to the present case for the reason that in said case of Chandrika Singh (supra), defendant was a recorded tenure holder over the land in suit as such, the Apex Court rightly held that the controversy as to the user could have been determined by the revenue court. In the present case, it is the plaintiff who has pleaded an established that she is a recorded tenure holder as well as in possession of the land in suit.

Our attention has also been drawn to the case law reported in Kamla Shankar v. IIIrd Additional District Judge 1998 (89) R.D. . 484. In said case also, the defendant was a recorded tenure holder of the land in suit in respect of which the plaintiff has sought the relief. As such, the principle of law laid down in said case cannot be applied to the present case. Similarly in Sayed Muhammed Mashur Kunhi Koya Thangal Vs. Badagara Jumayath Palli Dharas Committee and Others, , relied on behalf of the defendant/appellant also does not help him as unlike in said case, the plaintiff has been successful in the present case, in proving her case at her own strength and not on the weakness found in the defendant''s case.

Lastly, on behalf of the appellant, our attention was drawn to National Insurance Co. Ltd. Vs. Manjula Ben and Others, , in which it has been held that revenue court could have, issued the injunction. On going through said case law, we found that it pertains to civil suit of 1973 of land situated in Gyanpur to which Banaras Tenancy Act, 1949, was applicable. And u/s 153 of Banaras Tenancy Act, it was found that the revenue court could have issued the injunction. In the present case, the land is not covered by Banaras Tenancy Act, 1949, nor is there any parallel provision in U.P. Zamindari Abolition and Land Reforms Act, 1950.

Counsel for respondent, Shri B.D. Upadhyaya has placed reliance on the Judgment of 1992 A.L.L. L.J. 535 (SC) Shri Chandrika Singh and Ors. v. Raja Vishwanath Pratap Singh and Anr.

In the aforesaid judgment of the Apex Court, the question was as to whether the suit land is not used for purposes connected with the agriculture, horticulture, and animal husbandry. The Apex Court has observed that the determination has to be made in accordance with the provisions of Section 143 of the Act. The Apex Court in that case has also directed the Civil Court to frame the issue in this regard and the matter has been sent back to the Civil Court.

In the present case, controversy remained only to the effect that admittedly the husband of defendant was employed as a chowkidar and the plaintiff has sought the eviction of the defendant on the ground that the plaintiff is recorded in the revenue records and the defendant has no right to remain in possession after the service of notice upon him and, therefore, the title of the plaintiff was not in cloud.

In view of the aforesaid, I find that the substantial questions of law are fully covered by the judgment of the Apex Court and the Full Bench of Allahabad High Court and, therefore, the same is decide in favour of the plaintiff.

Consequently, the second appeal is allowed. The matter is sent back for deciding afresh in the light of the observations made above for deciding the same on merit.