Challenge in this second appeal is to the judgement and decree dated 11.1.90 passed by XVth Additional District Judge, Allahabad in Civil Appeal No. 445 of 87, Jhari versus Badal, by which lower appellate court has affirmed judgement and decree dated 31.7.87 passed by XI Additional Munsif , Allahabad in O.S. No. 268 of 1986 Badal versus Jhari, and thereby both the courts below have decreed plaintiff/ respondent's suit for permanent prohibitary injunction as against appellant/defendant and has affirmed the same.
In short plaintiff's case is that the suit property mentioned at the end of the plaint belonged solely to the plaintiff who is it's Bhumidhar and is in possession. Consolidation proceedings in the village, where suit property is situated has already been concluded and albeit defendants/ appellants have no concern with the said property, yet there are threatening to grab it and harvest the crops. The said threat was given on 9.3.86, which has given rise to cause of action to file suit for permanent prohibitary injunction.
Defendant appellants in their Written Statements denied plaintiff's case and pleaded that defendant no. 1 is the owner in possession over the suit property and rest of the defendants have nothing to do with it. Plaintiff has no concern with the suit property and the crop has also been sown by the defendant no.1. Badal @ Parabhu is the son of Suhan and his name was rightly recorded over suit property. After demise of Suhan name of defendant no. 1 was not mutated by the lekhpal and hence a mutation case was filed by defendant no.1 before Naib Tahsildar, Chayal, who, on 21.12.85, ordered for mutating the name of defendant appellant no.1 and accordingly his name was entered in the revenue records. Plaintiff is son of Hannoo and not Suhan nor his name is entered in revenue records. No question of hurling threats to plaintiff arises and during consolidation proceedings name of father of defendant no.1 [email protected] s/o Suhan was found to have been correctly recorded. No objection or case was filed by the plaintiff during consolidation proceedings and hence suit is liable to be dismissed.
Learned Munsif framed six Issues of which Issue no.1was regarding jurisdiction of the civil court to try the suit, Issue no.2 was as to whether plaintiff was the owner in possession of suit property, Issue no.3 and 4 were as to whether Badal s/o Hannoo and Badal s/o Suhan are the one and same person and if yes then what will be it's effect? Issue No.5 was as to whether defendant no.1 is the owner in possession of suit property and if yes then what will be it's effect?
On Issue no.1, question of jurisdiction, learned Munsif held vide order dated 2.2.87, that since the only relief for permanent prohibitary injunction has been sought in the suit and no relief under UPZA&LRAct has been claimed, therefore civil court has jurisdiction to try the suit, which order has also been affirmed by the lower appellate court in appeal. On Issues no. 3 learned Munsif held, vide judgement and decree dated 31.7.87, that both Badal s/o Hannoo and Badal s/o Suhan are one and the same person. For Issue No.4 it was decided that Badal and Parabhu are different persons and defendants had tried to create misunderstanding by mentioning alias name of their father as Badal and had endeavoured to dislodge plaintiff's case. Issues No. 2 &5 were jointly decided in favour of plaintiff against the defendants and it was held that defendant no.1 was never the owner and in possession over the suit property and in the Khasra name of plaintiff is recorded and he is the owner and in possession over it. Learned Munsif therefore decreed the suit and restrained the defendants appellants from interfering with the possession of the plaintiff over suit property plot no. 41, area 2 bighas,6 biswas, 16 Dhoor village patti Parvejabad, Nazarganj,Pargana & Tahsil Chayal, district Allahabad by issuing permanent prohibitary injunction.
Defendants/appellants unsuccessfully challenged said judgement and decree dated 31.7.87 in Civil Appeal No. 445 of 1987, Jhari versus Badal, and their first appeal was also dismissed by learned XVth Additional District Judge, Allahabad vide impugned judgment and decree dated 11.1.90. On the question of jurisdiction, Issue No.1, lower appellate court held that defendant appellant had not challenged order dated 2.2.87 deciding that Issue against them and hence that order attained finality and learned Munsif has not committed any illegality in deciding that Issue in as much as only relief of permanent prohibitary injunction was prayed for by the plaintiff and neither Gaon Sabha nor State of U.P. were made defendants nor any relief was sought against them and hence in such a case only principle civil court had the jurisdiction. Lower appellate court relied up Purshottam versus Narottam: 1970 RD 216 to countenance it's opinion. On other Issues also lower appellate court concurred and affirmed the findings recorded by learned Munsif that Badal s/o Hannoo and Badal s/o Suhan are one and the same person and Parabhu and Badal are different persons and therefore Learned Munsif has not erred in deciding both the Issues. Learned lower appellate court returned a verdict of affirmance of judgement and decree by the learned Munsif and dismissed defendants appeal. Hence this second appeal by defendants appellants.
Heard Sri M. Islam, learned counsel for the appellants/defendants and perused the record.
Assailing impugned judgement and decree, learned counsel for the appellants urged incisively that civil court lacked inherent jurisdiction to try the suit and impugned judgement and decree suffers from the vice of lack of jurisdiction. He further submits that while challenging final decree appellants could challenge order dated 2.2.87 with the aid of Order XLIII Rule 1A CPC and hence question of law regarding jurisdiction arises for consideration in this appeal. For other findings Sri Islam could not emphasis much being fully aware that they are concluded by concurrent findings of facts and are questions purely based on appreciation of oral and documentary evidences and therefore did not harp much on those Issues.
Having heard Sri Islam and having vetted through both the impugned judgements, I don't find any merit in the debut contention harangued him regarding jurisdiction of the civil court to try the suit for too many reasons. Firstly, exclusion of civil court jurisdiction cannot be readily inferred. There is always a presumption that civil court possesses jurisdiction to decide all disputes of civil nature rather than exclusion of it, which has to be in specific terms by a statute. Such exclusion of jurisdiction has to be explicitly expressed or clearly implied. On this aspect reliance can be had to the apex court decisions in Abdul Waheed Khan v. Bhawani: AIR 1966 SC 1718 wherein it has been held by the apex court:-
"9. Under S. 9 of the Code of Civil Procedure, a civil Court can entertain a suit of a civil nature except a suit of which its cognizance is either expressly or impliedly barred.It is settled principle that it is for the party who seeks to oust the jurisdiction of civil Court to establish his contention. It is also equally well settled that a statute ousting the jurisdiction of a civil Court must be strictly constructed."
In Musamia Imam Haider Bax Razvi versus Rabari Govindbhai Ratnabhai and others:AIR 1969 SC 439 it has been laid down by the apex court:-
"7. We are accordingly of the opinion that S. 85 read with S. 70 of the Act does not bar the jurisdiction of the Civil Court to examine and decide the question whether the defendants had acquired the title of statutory owners to the disputed lands under the new Act. In this context it is necessary to bear in mind the important principle of construction which is that if a statute purports to exclude the ordinary jurisdiction of a Civil Court it must do so either by express terms or by the use of such terms as would necessarily lead to the inference of such exclusion. As the Judicial Committee observed in Secretary of State v. Mask and Co., 67 Ind App. 222 at p. 236 = (AIR 1940 PC 105 at p. 110):
"It is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied."
Ouster of civil court's jurisdiction for agricultural holdings is provided under section 331 of UPZA & LR Act and reading that section vis-a-vis with Schedule II make it clear that civil court's jurisdiction to entertain a suit for permanent prohibitary injunction is not explicitly or impliedly barred. Learned counsel for the appellants/defendants has failed to convey such an exclusion and his entire submissions fell within the ambit of appreciation of facts. Moreover it is not disputed that only relief claimed in the suit was for permanent prohibitary injunction and no relief under UPZA&LRAct was claimed by the plaintiff and only a principle civil court would have jurisdiction to decide the relief claimed. It is too well settled by trite law that question of jurisdiction has to be primarily decided on the plaintiffs pleadings and in this regard reliance can be had to the decisions of this court Municipal Board Faizabad versus Edward Medical Hall:AIR 1976 All 349. Apex court in the decision of Abdulla Bin Ali and others versus Galappa and others: AIR 1985 SC 577 has held as under:-
"5.There is no denying the fact that the allegations made in the plaint decide the forum. The jurisdiction does not depend upon the defence taken by the defendants in the written statement."
Neither the Gaon Sabha was made a party nor defendants filed any application for dismissal of suit for non-joinder of necessary parties. Admittedly consolidation proceedings were over and appellants/defendants have failed to bring on record any documents prepared during consolidation proceedings giving him possession over suit property. Without prolixity, question of civil court's jurisdiction has been dealt with by a full bench of this court in Ram Awalamb and others versus Jata Shankar and others :AIR 1969 All 526, wherein a Full Bench of this court held as under:-
"68. Where the suit was for injunction only, as a suit for declaration filed under Section 63 of the U. P. Tenancy Act in a revenue court was stayed, it was held by a Division Bench of this Court that the suit was cognizable by a civil court vide Khaderu Mal v. Ram Karan Ahir, 1961 All LJ 854."
Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx "82. It appears from the judgment of the learned Munsif that the real and substantial relief sought in the suit was that of injunction and demolition and the relief of possession was merely an ancillary relief. The learned Munsif rightly held that where the revenue court was not competent to grant all the reliefs arising out of one and the same cause of action and the main relief was that of injunction and demolition the suit would lie in the civil court."
Benefittingly, on the said Issue decision of this court in Ramzani and another versus Anant Ram and another:1958 AWR 64, wherein this court has held (i) that question of jurisdiction of civil court has to be determined on the pleadings made in the plaint and it cannot remain in suspense till filing of written statement and if according to the plaint case civil court has the jurisdiction then it does not lose it on account of any plea taken in the written statement and (ii) suit relating to cutting of a tree standing on an agricultural land is cognizable only by a civil court whose jurisdiction to try the suit is not ousted can also be relied upon. Further in the decision of Purshottam(Supra) it has been held that where name of plaintiff's is recorded in revenue records and no relief is claimed against Gaon Sabha or State Governments, the suit will be cognizable by the civil court.
Now coming to the next urged submission that under Order XLIII Rule 1A appellant can challenge the jurisdiction of the court albeit he has not challenged it on an earlier occasion. The said argument is facetious and should not vex the mind at all. In civil appeal filed by the present appellants before the lower appellate court, the appellants/ defendants did challenge order dated 2.2.87 deciding question of jurisdiction unsuccessfully and even lower appellate court rejected their objection by concurring with the findings of the learned Munsif that since it was a suit for permanent prohibitary injunction only, therefore civil court alone has the jurisdiction. Appellants counsel could not contend that such a finding recorded by both the courts below are either contrary to law or there was inherent lack of jurisdiction with the Munsif to try the suit. No relief was claimed by the plaintiff that fell within the exclusive domain of the revenue court ousting jurisdiction of the principle civil court. Once the appellants have lost from both the courts below by recording concurrent findings affirmatively against them of civil court having jurisdiction to try the suit and when appellants fails to submit that the finding so recorded were illegal, then he cannot be permitted to rake up the same Issue time and again especially in a second appeal which has to be admitted and decided only on substantial questions of law. Attour, no attempt was made by the appellant/ defendants to challenge the order dated 2.2.87 in any revision and they contested the suit till the end conceding to the jurisdiction of the Munsif to try the suit and therefore it is now too late a stage to accept their sniping. Appellants/ defendants are also guilty of prevarication and hence are not entitled to any relief. No substantial question of law arises for determination in this Second appeal which is concluded by recording concurrent findings of fact and resultantly this second appeal, being bereft of any merit, is dismissed at the admission stage itself under Order XLI Rule 11 CPC.
Second appeal dismissed.
Dt.12.2.2014 Arvind/-14.2.2014