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JAWAHAR AND ANOTHER versus THE D.J., SIDDHARTHNAGAR AND OTHERS

High Court of Judicature at Allahabad

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Jawahar And Another v. The D.J., Siddharthnagar And Others - WRIT - C No. 21584 of 1995 [2004] RD-AH 231 (28 April 2004)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc. Writ Petition No.21584 of  1995

Jawahar and another v. District Judge,

Siddharth Nagar and others

Hon'ble R.K.Agrawal, J.

By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioners seek a writ, order or direction in the nature of  certiorari quashing the order dated 5th May 1995 passed by the District Judge, Siddharth Nagar, respondent no.1, filed as Annexure 3 to the writ petition and the order dated 14th September 1993 passed by the learned Civil Judge, Siddharth Nagar, respondent no.2, filed as Annexure 2 to the writ petition, and other consequential reliefs.

Briefly stated, the facts giving rise to the present writ petition are as follows:-

According to the petitioners, the respondent no.3 filed a suit for ejectment of the petitioners and for injunction restraining them from running the cinema situate over plot no.106/2 area 7 biswas on the ground that the plaintiff (respondent no.3) alongwith the respondent nos.8 and 9 who were the defendants in the suit, are Bhumidhars of the land in dispute and in a portion thereof, the petitioners were permitted to run a touring cinema. The possession of the petitioners has now become that of the trespassers and they are not  vacating the premises in dispute. The petitioners filed their written statement denying the right, title and interest of the plaintiff. They claimed that the land in dispute is situate in plot no.106/2 and is recorded as agricultural plot, i.e., Bhumidhari with transferable rights. In the Khatauni for the year 1356 F. in the column of the chief tenant, the name of Mst. Jadui was recorded. Thereafter, by way of an overwriting the name of Hira Lal, the father of the plaintiff respondent no.3was recorded. No declaration in respect of the land in dispute, as required under Section 143 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as "the Act") was made and, therefore, assuming that the land has been put to use for the purposes not connected with agriculture, horticulture and pisciculture etc. the land would still be governed by the provisions of the Act and, therefore, the suit is cognizable only by the Revenue Court as provided under Section 331 of the Act.  It is the further case of the petitioners that the respondent no.3 wanted ejectment of the petitioners and, therefore, the proper remedy for him was to file a suit under Section 229-B of the Act and the present suit which had been filed before the Civil Court, was not maintainable and the relief for injunction in respect of the plot recorded in the revenue record could also be granted by the Revenue Court under Section 229-D of the Act.  On the objections raised by the petitioners, issues were framed. One such issue framed was, "Whether the suit was barred by Section 331 of the Act". Another issue framed was, "whether the suit is barred by Section 143 of the Act". These two issues were treated to be the preliminary issues and the learned Civil Judge, vide order dated 14th September 1993, decided both the issues in negative by holding that the suit is maintainable. Feeling aggrieved, the petitioners preferred a revision before the learned District Judge who, vide judgment and order dated 5th May 1995, has dismissed the revision. Both the orders are under challenge in the present writ petition.

I have heard the learned counsel for the parties.

The learned counsel for the petitioners submitted that the land in dispute is admittedly recorded as Bhumidhari in the revenue record. The Deputy Director of Consolidation, vide his order dated 5th November 1981, had non-suited the claim of the respondent no.3 holding that the revenue entries made in favour of the plaintiff's father as forged and the matter had been sent back to the Consolidation Officer. Thus, he submitted that the respondent no.3 cannot be treated as a recorded tenure-holder. He further submitted that under Section 123 of the Act, the site of a house is to be held by the owner of the house on certain terms and conditions. Since the petitioners are the owners of the building in question, the site over which the building has been constructed, will be deemed to be held by them as owners. He further submitted that under Section 143 of the Act, a declaration is required to be made where a Bhumidhar with transferable right uses his holding or part thereof not connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming. Likewise, under Section 144 of the Act, a declaration is required to be issued in respect of a land held by a Bhumidhar, which is not used for the purpose connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming. According to the learned counsel for the petitioners, in the absence of any declaration the provisions of the Act will be applicable. He relied upon a decision of this Court in the case of Alauddin alias Makki v. Hamid Khan, 1971 RD 160. He further submitted that since the land in dispute is governed by the provisions of the Act, the suit is maintainable only before the Revenue Court and not before the Civil Court as provided under Section 331 of the Act. He relied upon a decision of the Hon'ble Supreme Court in the case of Chandrika Misir and others v. Bhaiya Lal, 1973 RD 365 (SC).

The learned counsel for the contesting respondents, however, submitted that the writ petition filed under Article 226 of the Constitution of India is not maintainable as the writ jurisdiction cannot be converted in a Civil Court. He relied upon a decision of the Hon'ble Supreme Court in the case of Swetambar Sthanakwasi Jain Samiti and another v. The alleged Committee of Management Sri R.J.I. College, Agra and others, JT 1996 (3) SC 21.  He further submitted that a suit under Section 229-B of the Act is maintainable only in respect of land. In the present case there is no dispute regarding construction of the building and the ejectment is being sought from the building. A declaration under Sections 143 and 144 of the Act is not required. So far as the order of the Deputy Director of Consolidation is concerned, he submitted that the Deputy Director of Consolidation has not held that the name of the father of the respondent no.3 has been illegally recorded in the revenue records. He, thus, submitted that the orders passed by the learned District Judge upholding the jurisdiction of the Civil Court should not be interfered with.

Having heard the learned counsel for the parties, I find that in the plaint it has been specifically stated that the plaintiff (respondent no.3) is the Bhumidhar-in -possession of Plot No.106/2. There is a house of the plaintiff constructed on the west side of the plot which has been given to the petitioners for running the touring cinema. The reliefs claimed in the plaint was for restraining the petitioners from running their touring cinema and to hand over the possession and for damages. The reliefs are reproduced below :-

"(AA) JARIYE HUKM IMTANAI DAWAMI PRATIWADI AWWAL WO SOYAM KO PRATIWADI NO.10 KO MANA KAR DIYA JAWE KI WAH VIVDIT MAKAN JUDGMENT AND ORDER DATED AARAZI NO.106/2 ME STHIT HAI USME CINEMA DIKHANE KA KAROBAR NA KARE AUR WADI KO ANDER MIYAD NIRDHARIT NYAYALAYA KABJA DAKHAL KO DILA DEWE AUR BASURAT RAHNE KASIR TAMILA DEGREE UPER PRATIWADI MAJKOOR JARIYE ADALAT AAMEEN KAR DIYA JAWE.

(BA) JARIYE DEGREE BAHAK WADI KHILAF PRATIWADI AWWAL TA SOYAM WADI KO MU.1,500/- MAWAJA PRATIWADI MAZKOOR SE MAYA SUD 12/- RUPIYA PRATI SAIKARA SALANA DAURAN MUKDAMA WO AAINDA WAJOM WASULI DILAYA JAWE.

(SA) KHARCHA MUKDAMA WO MEHANTANA WAKIL WADI KO PRATIWADIGAN AWWAL TA SOYAM WO NO.10 SE DILAYA JAWE.

(DA) ALAWA WA BAJAY YADI WADI KISI ANYA DIGAR DADARSI KA MUSTHAK KARA PAYA JAYE TO USKI BHI DEGREE PRATIWADI SE DILAYA JAWE."

So far as the entries in the revenue record is concerned, the name of the father of the respondent no.3 was entered in the revenue record. As to whether the name of the father of the respondent no.3 was entered by way of forgery or not, the Deputy Director of Consolidation had left the matter open and he did not record any finding. There is nothing to show that a declaration under Section 143 or 144 of the Act has not been issued in respect of non-agriculture use of the land in dispute. Therefore, the land would be governed by the provisions of the Act as held by this Court in the case of Alauddin alias Makki (supra).  However, in the present case, I find that the suit has been filed for ejectment of the petitioners from a portion of the house which has been given to them on rent for running a touring cinema. Such a suit is maintainable only before the Civil Court and not before the Revenue Court. In the case of Chandrika Misir and another (supra), the Hon'ble Supreme Court has held that if the defendants have been retaining possession of the land contrary to law being the trespassers and the land is Bhumidhari land and the plaintiff are the Bhumidhars, the suit was of the description falling under Section 209 of the Act and, therefore, in view of Section 331(1) of the Act, the suit is cognizable by a special Court, i.e., the Court of Assistant Collector I Class and could not have been filed in a Civil Court. In the present case, I find that both the Courts below have recorded a finding that the suit has been filed for ejectment and damages from the house/building in question and it is not in respect of a land. The Hon'ble Supreme Court in the case of Ramaswamy (dead) by LRs. V. M. Lobo (dead) by LRs., (2001) 10 SCC 176, where the dispute was not in respect of a land but a house, while dismissing the appeal  had not accepted the contention that the land being an agricultural land, the suit filed by the respondent in the Civil Court was not maintainable. The decision of the Hon'ble Supreme Court in the case of Swetambar Sthanakwasi Jain Samiti and another (supra) would not be applicable in the present case in as much as the question regarding the jurisdiction of the Civil Court can be raised at any stage and even in the execution proceedings.

In view of the foregoing discussions, I do not find any merit in this petition. The writ petition lacks merit and is dismissed.

28.4.2004

vkp


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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