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Harish Chandra v. I A.D.J. - WRIT - C No. 8691 of 1986 [2006] RD-AH 12026 (24 July 2006)


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(Court No. 51)

Civil Misc. Writ Petition No. 8691 of 1986

Harish Chandra Versus I Additional District Judge, Azamgarh and others.

Hon'ble S.U.KHAN J

Heard Sri R.G.Prasad holding brief of Sri Ravi Kiran Jain learned counsel for the petitioner.

This is plaintiff's writ petition. Plaintiff instituted O.S No.643 of 1982 against respondent No.3 Rameshwar, which was pending before Vth Additional Munsif, Azamgarh at the relevant time. Copy of the plaint is annexure 3 to the writ petition. Relief claimed in the plaint is to the effect that it may be declared that sale deed dated 18.9.1981 alleged to have been executed by plaintiff petitioner in favour of defendant respondent No.3 is utterly void, illegal, fictitious and fraudulent. Relief for permanent injunction was also sought seeking to restrain the defendant from interfering in possession of the plaintiff. Defendant raised the objections that the suit was not maintainable before the Civil Court. Trial court / V Additional Munsif Azamgarh decided the question against the defendant and held the suit to be maintainable. Against the said judgment and order defendant filed Civil Revision No. 58 of 1984. I Additional District Judge, Azamgarh through judgment and order dated 17.3.1986, allowed the revision, set-aside the order of trial court and held that suit was not maintainable before Civil Court. It was directed that the plaint should be returned to the plaintiff for presentation before the proper court. The said order of the revisional court is under challenge through this writ petition.

The jurisdiction is to be determined on the basis of allegations in the plaint. The allegations of the plaint if found proved clearly render the sale deed utterly void. The suit was therefore not maintainable before the Civil Court.

An argument was raised before the courts below that as mutation matter was still pending hence suit before revenue court was not maintainable. This argument was not tenable. Despite pendency of mutation proceedings regular suit under section 229-B U.P.Z.A.L.R Act is quite maintainable. The only restriction as provided under section 34(5) of U.P. L.R Act is that unless application for mutation is filed suit before revenue court is not maintainable on behalf of a person who is not recorded tenure holder. In the plaint, itself it is mentioned that on the basis of an earlier sale deed plaintiff got his name mutated in revenue records in case No. 477 under section 34 Land Revenue Act and thereafter review / recall was filed in the said mutation case by the defendant.

Accordingly in my opinion, the suit as filed was not maintainable before the Civil Court. There is absolutely no error in the judgment and order passed by the revisional court.

Writ petition is therefore dismissed.




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