Heard Sri Savita Jain, learned counsel for petitioners, Sri S.P. Singh, learned counsel appearing on behalf of contesting respondent and perused the record.
Facts of the present case are that petitioner-plaintiff/Ratti Pal has filed a suit for permanent injunction registered as Regular Suit No. 218 of 2010 with the following main prayer :-
" (अ) वादी व प्रतिवादी ४ ता ६ के पक्ष मे विरुद्ध प्रतिवादी १ ता ३ डिग्री स्थायी निषेधाज्ञा पारित करते हुए वादी व प्रतिवादी ४ ता ६ के वादग्रस्त भूमि पर शांतिपूर्ण कब्ज़ा दखल व उपभोगाधिकार मे हस्तक्षेप करने से उस पर कब्ज़ा व निर्माण करने से प्रतिवादी १ ता ३ को सदा सर्वदा के लिये मना किया जावे । "
Further, in the said suit, an application for grant of temporary injunction under order 39 Rule 1 CPC has been moved. By an order dated 05.02.2010, Civil Judge (Jr. Div.) Sadar, Pratapgarh, has granted ex-parte temporary injunction in favour of the plaintiff. Thereafter, the defendant has put appearance in the matter in question and after hearing the parties concerned by order dated 05.10.2010, Additional Civil Judge (Jr. Div.) Court No. 10, Pratapgarh has rejected the temporary injunction granted in favour of the plaintiff.
Aggrieved by the order dated 05.10.2010 passed by trial court, , the plaintiff filed an appeal ( Misc. Civil Appeal No. 116 of 2010), by order dated 20.03.2012, the appellate court had rejected the petitioner's appeal on the ground that as a notification under the relevant provision of U.P. Consolidation Act, 1953 (hereinafter referred to as the Act) has been issued, hence the suit filed by the petitioner is not maintainable.
In view of the abovesaid factual background, present writ petition has been filed by the petitioner.
After hearing learned counsel for parties and going through the record, the core question which is to be decided in the present case is whether the suit filed by the plaintiff for permanent injunction thereby restraining the defendants from interfering in the peaceful possession of the plaintiff-petitioner on the land in dispute is maintainable or not in view of the relevant notification issued under the provisions of Act , 1953.
Section 5 (2) of the Act relevant for the purpose reads as under :
"(2) Upon the said publication the notification under Sub-section (2) of Section 4, the following further consequences shall ensue in the area to which the notification relates, namely :
(a) every proceedings for the correction of record and every suit and proceeding in respect of declaration or rights or interest in any land lying in the area, or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any Court or , authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the Court or authority before whom such suit or proceeding is pending stand abated."
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This provision of the Act provides that upon publication of notification under Section 4 (2) of the Act certain type of suits or proceedings pending before any Court or authority shall abate.
Thus, it excludes the jurisdiction of the Court or authority which are otherwise, empowered to decide the said suit or proceedings. It is well-settled that a statute ousting the jurisdiction of a Court must be strictly construed as observed by the Apex Court, in the case of Abdul Wahid Khan Vs. Bhawani and Ors., AIR 1966 SC 1718.
A bare reading of Section 5 (2) of the Act indicates that kinds of cases liable to be abated upon publication of notification under Section 4 (2) of the Act are clearly specified, viz. ;
"(I) Proceedings for correction of records, (II) Suits or proceedings in respect of declaration of rights or interest in any land.
(III) Suits or proceedings for declaration or adjudication of any other right in regard to which proceeding can or ought to be taken under this Act."
The section being exhaustive will only apply to suits or proceedings specified therein, and no other. It cannot be stretched to bring within its ambit the suit or proceedings which the Legislature did not intend to abate on the on set of consolidation operations. Thus, unless the suit or proceedings fall within three above-mentioned categories, the jurisdiction of the Court or authority, otherwise, empowered to decide the same cannot be excluded or ousted.
In the background of the above, a careful examination of the allegations and relief claimed in the plaint makes it clear that only relief claimed is that of a permanent injunction to restrain the defendants from interfering in the peaceful possession of the plaintiff over the suit property and or to take forcible.
Further, in the instant matter, the suit as it stands, neither seeks any correction of record nor any declaration of rights or interest in the land, has been claimed. Suit for declaration of rights and interest in any land necessarily implies relief by way of declaration of the said rights in the land and unless a relief is claimed, the suit cannot be said to be one for declaration of rights or interest in the land. No such relief having been claimed in the suit, it cannot be termed to be a suit in respect of declaration of rights or interest in the land. Further, under the scheme of the Act, since the authorities are not vested with any power to grant injunction, the suit cannot be termed as one for declaration or adjudication of any such rights in regard to which proceedings can or ought to be taken under this Act.
In the present case, the plaint as it stands does not fit in any of the three classes of suits or proceedings specified under Section 5 (2) of the Act which the Legislature intended to abate on the on set of consolidation operation. Any finding with regard to title or interest of the plaintiff in the property in such a suit for injunction will only be incidental for the purpose of granting injunction without any declaration of such rights of plaintiff in the land, and hence not liable to be abated.
The Apex Court in the case of Heera Lal and Anr. v. Carjan Singh and Ors., 1990 (1) CRC 466, while considering the question of jurisdiction of civil court and revenue court has held that in a suit for permanent injunction the question of title arises only incidentally, and it is the civil court which has exclusive jurisdiction to try such suits. (See also Smt. Krishna Kumari and others Vs. Shiv Kumar Singh and others 1987 RD 399, Kaushal Kumar Chaudhari Vs. District Judge, Mau and others, 1998 (89) RD 610).
Thus, keeping in view the abovesaid facts as well as the relief claimed by the petitioner-plaintiff in a suit filed by him for permanent injunction as well as an examination of the scheme of the Act reveals that though it provides various provisions for adjudication of different kinds of disputes or objection in respect of consolidation by an before various authorities together with provision of appeal and revision, but nowhere it has provided for any authority or procedure for the purpose of enforcing enjoyment of the right with the aid of injunction without seeking any adjudication of any right as contemplated in clause (a). It is also doubtful to my mind that the authorities mentioned in the said Act relating to various proceedings contemplated therein, has any jurisdiction or authority to grant injunction. Though in respect of appeals, it has been provided that the authority deciding such appeal under Section 12 of the Act deemed to be Court of the competent jurisdiction. So far as the procedure is concerned as is specified under Section 40, the same may be a judicial proceedings for such other purposes as provided therein, and in respect of limited provisions with regard to application of ensuring attendance of the witnesses, production of documents and certain other ancillary matters as have been provided for, but to my mind it does not appear that any of the authorities under the said Act have been empowered to grant injunction in respect of a proceeding which do not involve any adjudication which ought to have been taken within the ambit of the said Act, (See. Bachchu Lal Vs. Ram Sajiwan, 1993 RD 393).
For the foregoing reasons, the writ petition is allowed, the orders dated 05.10.2010 passed by Additional Civil Judge (Jr. Div.) Court No. 10, Pratapgarh and order dated 20.03.2012 passed by appellate authority are set aside and the matter is remanded back to the trial court with a direction to decide the matter in question (Regular Suit No. 218 of 2010) expeditiously, say, within a period of one year from the date of receiving certified copy of this order.
Till the decision is taken by the trial court, parties are directed to maintain status quo as exists today in the property in dispute.
Order Date :- 7.5.2014 Ravi/