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Kunj Bihari & Others v. Km. Munoo @ Urmila & Others - SECOND APPEAL No. 136 of 2006 [2006] RD-AH 3355 (14 February 2006)


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Court No. 54

Second Appeal No. 136 of 2006

Kunj Bihari and others Vs. Km. Munoo @ Urmila and others.

Hon. Mrs. Poonam Srivastava, J.

Heard Sri Sanjay Tripathi, learned counsel for the appellants and Sri T.K. Tripathi Advocate for the caveator-respondents.  

This is plaintiffs' second appeal arising out of the judgment and decree dated 22.10.2005 passed by Additional District Judge (Court No. 1), Mahoba in Civil Appeal NO. 29 of 2004-Kunj Bihari and others Vs. Km. Munno @ Urmila and others confirming the judgment and decree dated 6.10.2004 passed by the Civil Judge (Senior Division), Mahoba in Original Suit NO. 96 of 1985.

The suit was instituted claiming the relief of permanent injunction because the proceedings before the consolidation courts were continuing. The Consolidation Officer decided against the plaintiff-appellants but the appeal was preferred before the Settlement Officer Consolidation and the same was pending. It is contended that the appellants are in possession and, therefore, they were entitled for a relief of permanent injunction on the regular side.

A supplementary affidavit has been filed on behalf of the appellants to show that the appeal filed on 20.12.1989 before the Settlement Officer Consolidation was allowed and the case has been remanded to the Consolidation Officer and it is still pending. The courts below declined to pass a decree in favour of the appellants which is challenged in the instant appeal. A number of issues were framed. Issue no. 1 was as to whether the plaintiffs are the owner of the possession of the disputed plot and also issue no. 2 whether the plaintiffs have a right to stall the mutation proceedings. The courts below came to a conclusion that though in the suit the plaintiffs have claimed a decree for permanent injunction but since their claim of title is also in their favour therefore, it is revenue courts alone who can decide the question of title and this relief can not be granted by a civil court. Besides, the trial court also decided issue nos. 1 and 2 against the plaintiffs. The judgment of the appellate court is judgment of conformance and concurrent findings of fact have been recorded by two courts against the plaintiff-appellants. Merely because the title suit is pending before the consolidation courts which can not be said that the plaintiff-appellants are entitled for a decree of permanent injunction. The rights of the respective parties will be decided by a competent court and the civil court was fully justified in not granting relief claimed by the plaintiffs in the instant suit.  On perusal of the two judgments, it is apparent that it does not call for any interference under Section 100 C.P.C. The appellants have not been able to show any substantial question of law worth consideration in this appeal. It lacks merit and is accordingly dismissed. There shall be no order as to costs.




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