Hon'ble Arvind Kumar Tripathi (II),J.
(Delivered by Hon. Arvind Kumar Tripathi-II,J) This first appeal has been filed by the State of U.P. through Collector and others against the judgement and decree dated 21.03.1996 passed by Civil Judge, Senior Division, Azamgarh in O.S. No. 91 of 1995 by which the suit filed by Ram Prasad Saxena against State of U.P. through Collector, Azamgarh, Chief Revenue Officer, Azamgarh, SDM Sadar, Azamgarh and Tehsildar, Tehsil Sadar, District Azamgarh was decreed and defendants were restrained from interfering in possession of the plaintiff over the plot No. 740 situated in Mauja Narauli, Paragana Nizamabad, Tehsil Sadar, District Azamgarh area 3 acre 590 Kari i.e. 1.453 Hector.
Ram Prasad Saxena, the plaintiff-respondent has filed a suit that his brother Ganga Ram Saxena was the owner and bhumidhar of plot No. 740 area 3 acre 590 kari situated in Mauja Narauli, Tehsil Sadar, District Azamgarh, after death of his brother, plaintiff became bhumidhar of the land being legal heir of his brother. The entire land except certain portion towards west-north has been surrounded by a boundary wall. Several persons have constructed their houses in the west side for which an O.S. No. 44 of 1992 Badri Prasad vs. Ram Prasad and other is pending. The wall is shown in the plaint with letters E, F, G, H, D, I, E. Plaintiff has sold the part of his land through the sale deed to Pramod Kumar. The land abuts the road and now Azamgarh has been declared as a Commissionery. Defendants are adamant to use his land and want to take forcible possession for that purpose. Plaintiff has shown his papers, but despite that defendants are not paying any heed. According to the plaintiff, cause of action arose on 14.04.1995 when defendants threatened to dispossess him by dismantling the boundary wall. Plaintiff, after seeking permission to file a suit without giving notice under section 80 CPC, filed the suit on 15.04.1995. Plaintiff prayed that the defendants be restrained from taking forcible possession of the disputed land plot no. 740, situated in village Narauli, Tehsil Sadar, District Azamgarh.
Defendants except District Magistrate Azamgarh, filed their written statement after taking much time for filing written statement on 30.10.1995 alleging that the revenue entry is forged so they have been cancelled. Plot No. 740 area 3 acre 590 kari, situated Mauja Narauli Tappa Harbanshpur, Paragna Nizamabad, Tehsil Sadar, District Azamgarh has been recorded as Nazul land in revenue records and as such nobody can get any right over that. When the complaint was made by Additional District Government Counsel, (Revenue) Azamgarh, then old records were seen and on inquiry it was found that the plaintiffs name has wrongly been recorded on that land, then District Magistrate Azamgarh, directed on 18.05.1995 for expunging the name of plaintiff over that land and thus the name of the plaintiff has been expunged from the revenue records. Plaintiffs filed an appeal before the Commissioner and the Commissioner has also found the entry in favour of plaintiff forged, but as according to him, no opportunity was given to the plaintiff, hence the matter was remanded back to the District Magistrate to pass orders after hearing the plaintiff. The matter is pending, thus the plaintiff has alternative remedy in competent court. It has also to be noticed that the plaintiff was posted in Z.A.C. as Naib Tehsildar and he has tried to grab the land by creating wrong entry in revenue record in favour of his elder brother Ganga Ram Saxena. The disputed land is a nazul land and nobody can get Bhumidhari right and his name cannot be mutated over that land. The land is old banjar and parti on the spot. Since the plaintiff has filed a suit claiming himself to be bhumidhar of the land, hence the civil court has no right to try the suit. It has also been alleged that the suit is barred by the provisions of Section 34 Specific Relief Act, the suit is barred by Section 80 CPC. Ministry of Defence is also a necessary party in this case so the suit is barred by non-jointer of necessary party.
Learned court below after perusing the pleading of the parties framed following issue:-
1. Whether the plaintiff is in possession of the disputed land as owner?. If yes, its effect.
2. Whether the suit is beyond jurisdiction of this Court.
3. Whether the suit is barred by Section 34 Specific Relief Act.
4. Whether the suit is barred by provisions of Section 80 CPC.
5. Whether the suit is barred by non-joinder necessary party.
6. To what relief if the plaintiff entitled.
In order to prove their case, plaintiff examined himself as P.W. 1 and defendant has examined Durgadhar Dubey, Lekhpal, area Narauli, Tehsil Sadar, District Azamgarh. No other witness was examined by either of the parties. Parties have also filed several papers which shall be dealt later on at appropriate places.
After hearing the parties and going through the evidence and pleadings the trial court decided issue no. 1 in favour of plaintiff, issue no. 2, 3, 4 and 5 against the defendants and on the basis of disposal of issue no. 1 to 5 decided issue no. 6 in favour of plaintiff and decreed the suit in favour of the plaintiff. Feeling aggrieved, this appeal has been filed.
We have heard learned Standing Counsel for the State and counsel for the respondent and perused the record.
It was argued by the Standing Counsel that the land in question was recorded as nazul land in the revenue record so nobody can acquire sirdari and bhumidhari right over the land. The name of the plaintiff respondent was fraudulently entered in the revenue records which was deleted vide order dated 18.05.1995 passed by District Magistrate Azamgarh on the complaint of A.D.G.C.(Revenue). The land in question was recorded in the name of State Government in 1361 Fasli. The suit was not maintainable, because of the court had no jurisdiction to try the suit and suit was also not maintainable due to non-joinder of necessary party and the finding recorded by the court in this regard by bad in law.
Learned counsel for the respondent has argued that the land was leased to Sri Ganga Ram Saxena by registered deed dated 13th August, 1947, executed by the Collector Azamgarh on behalf of Secretary of the State for India and Ganga Ram Saxena became sirdar of this land after passage of time and then he deposited the requisite fee, equal to ten times of the rent and obtained bhumidhari right for that land on 16.01.1965 and thus, after death of Ganga Ram Saxena, plaintiff is the owner/ bhumadher by land in dispute being legal heir of Ganga Ram Saxena. It was argued that the order by which his name was deleted from the revenue record was cancelled and the District Magistrate was directed to decide the matter after giving opportunity of hearing to the parties and collector has also been directed to decide the matter after hearing plaintiff and if any manner, matter regarding title is being agitated then he be directed to approach the competent court. It was also argued that when this order was placed before the District Magistrate, he dropped the proceedings under section 33/39 of land revenue Act and as O.S. No. 91 of 1995 was decided in favour of plaintiff by Civil Judge Senior Division Azamgarh, vide order dated 21.03.1996 Collector has held that the matter is pending in the High Court so he will abide by the decision of Hon'ble High Court.
After going through the arguments of the parties, we are of the opinion that following points are to be determined:-
1. Whether the plaintiff/respondent has become sirdar and after- ward bhumidhar of the disputed land on the basis of registered deed, if any executed by the the collector Azamg
2. Whether Civil Court has jurisdiction to try the suit?
We have perused the lower court record. It has not been challenged by the appellant-respondent that initially the land was a government land. The State has filed paper No. 37 C1 filed by DGC Revenue in the trial court, which is khatauni of 1349 fasali. The entry in this khatauni is Banjar kabil jarayat बंजर काबिल जरायत . Ex. Ka 7 is khatauni for 1359 fasali in which plot no. 740 is recorded in the name of GANGA RAM, WALD JAMUNA PRASAD, KAUM KAYASTH and the proprietor as per khewat No. 9 is Sarkar Bahadur Qaisar Hind. 1359 fasali corresponds to year 1952-53. Ex. 4 is the registered lease of Nazul land for agricultural purpose in favour of Ganga Ram Saxena, executed by Collector Azamgarh dated 13.11.1947. Accordingly Ganga Ram Saxena became non occupancy tenant as per section 31 of U.P. Tenancy Act 1939. The alleged deed was executed on behalf of Secretary of State for India in council under the provisions of Crown Grants Act. It is clear that Ganga Ram continued to be recorded as non occupancy tenant in the khatauni year after year. The provision of Crown Grants Act was amended as Government Grants Act 1895 and it was adopted by Union Government with certain amendments and substitution.
Ex Ka 3 is the khatauni of 1360 fasali of khewat 9. Ganga Ram's name is entered in that khatauni. Ex Ka 4 is khatauni of 1361 fasli having the same entry.Ex ka 5, Ex ka 6 are khatauni's of 1362 fasli and 1372 fasli and have the same entry. Ex ka7 is the khatauni of basic year 1359 fasli. Ganga ram's name finds place in that khatauni also. Ex ka8 is khatauni of 1360 fasli. Ex ka9 is khatauni of 1356 fasli which corresponds to year 1947. Ganga Ram's name has been entered as asami on plot 740. This concludes that on the basis of registered lease deed executed by Collector Azamgarh, Gangaram's name was entered in khatauni as Asami. It is not disputed that land previously belonged to Sarkar Bahadur Qaisar Hind.
The State Government issued a notification No. 1780/1-C-277-C-1953 dated March 31, 1953 in the name of Governor, whereby Zamindari Abolition and Land Reforms Act, with certain amendments, addition, substitution and deletion were made applicable for specified area of 32 districts including Azamgarh and thus the lease of the Government Grants Act 1895 became sirdari under the substituted section 131 (a) (v) of the Act.
The Government Gazette dated March 31, 1955 is hereby reproduced:-
GOVERNMENT GAZETTE of Uttar Pradesh PUBLISHED BY AUTHORITY E X T R A O R D I N A R Y LUCKNOW, THURSDAY, MARCH 31, 1955 GOVERNMENT OF UTTAR PRADESH REVENUE ( C) DEPARTMENT ___________ No. 1780/1-c--277-C 1953
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Dated Lucknow, March 31, 1955 _________________ NOTIFICATIONS In exercise of the powers conferred by clause (b) of sub-section (1) of section 2 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act I of 1951), the Governor, Uttar Pradesh, is pleased to direct that the said Act shall, with effect from April 1, 1955, apply to estates or parts thereof which are owned by the State Government and administered as State property under the control of the Land Reforms Commissioner or which are nazul and are under the management of a collector and are situate in the districts specified in Schedule I, subject, in the case of estates or parts thereof in which an intermediary, as defined in clause (12 of section 3 of the said Act, has no right, title or interest, to the modifications and amendments specified in Schedule II.
2. The Governor has been farther pleased to order, under sub-section (3) of section 1 of the said Act, that the said Act shall come into force in the aforesaid relates with effect from the aforesaid date.
SCHEDULE I
1. Agra 12. Faizabad 23. Meerut
2. Aligarh 13. Fatehpur 24. Mirzapur
3. Allahabad 14. Ghazipur 25. Moradabad
4. Azamgarh 15. Gorakhpur 26. Muzaffarnagar
5. Bahraich 16. Hamirpur 27. Pratapgarh
6. Banda 17. Hardoi 28. Rae-Bareli
7. Bara Banki 18. Jalaun 29. Saharanpur
8. Dehra Dun 19. Jaunpur 30. Shahjahanpur
9. Deoria 20. Kanpur 31. Sitapur
10. Etah 21. Lucknow 32. Sultanpur
11. Etawah 22. Mathura ...........................
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..........................
7. 131 For the existing section 131 the following shall be substituted:-
Sirdar " 131. Every person belonging to any of following classes shall be called a sirdar and shall have all the rights and be subject to all the liabilities conferred or imposed upon sirdars by or under this Act; namely-
D.W. 1 Durgadhar Dubey is lekhpal of the locality. He has stated on oath that plot no-740 area 3.390 acre land is nazul land. Ram Prasad has no concern with it. On complaint of A.D.G.C. Revenue Azamgarh, an enquiry was conducted and it was revealed that the entry is forged. Then satisfied with the enquiry D.M. cancelled the revenue entry. It was admitted by him that the land was leased to Ganga Ram Saxena for agricultural purposes. The land was not to be used for any other purpose. Hence the rights of plaintiff automatically extinguished. There was no lease in favour of plaintiff but he inherited the land after death of Ganga Ram, being his brother.
In his cross examination he has admitted that he is posted in that area for last four years. So he can tell only the facts for last four years. The land is surrounded by boundary wall. Boundary wall was erected by Ram Prasad. At that time his name was entered in revenue records. He has not seen the lease deed till today. When A.D.G.C. Revenue made a complaint he was aware of the lease deed. Enquiry was conducted by S.D.M and Chief Revenue officer. His statement was not recorded in the enquiry. A perusal of papers reveal that Ganga Ram's name was entered in revenue records even before Zamindari Abolition. The status of land was Banzar, Zaman-14. Later on the land was recorded in the name of Ganga Ram as sirdar by the orders of Tehsildar. Later on ten times of rent was deposited and Ganga Ram became bhumidhar.
He has further stated that amaldaramad of orders expunging name of Plaintiff was done by him on the orders of District Magistrate, but amaldaramad of Commissioner's order has not been incorporated in Khatuni. It should have been incorporated in khatauni.
It is noteworthy that the documents regarding enquiry have not been filed. The best evidence could have been provided by S.D.M and Chief Revenue Officer to show that what was the basis of conclusion of the entry being forged particularly in the light of revenue papers and registered lease deed. In the absence of best available evidence which was available with defendants, presumption goes against them.
From the above discussion of the papers available on record, and pleading of the parties it is amply clear that defendants have not denied the execution of lease deed and its registration and have not lead any evidence against it so in the wake of notification above plaintiff-respondent became sirdar of the disputed land and later on after depositing 10 times of rent he became bhumidhar of the disputed land. Bhumadhari Sanad has also been issued in his favour, which is on record.
Paper number 53C1 is copy of U.P. Gazette dated 18th April 1992 in which reads as follows-
"Where as a notice inviting objections and suggestions with respect to the following amendments in the Master Plan of Azamgarh was published in the news papers, namely Dainik Ranturya, dated March 6, 1991, And whereas no objection and suggestions were received within the time specified in the aforesaid notice;
AND WHEREAS the state Government has approved the propose amendment vide G.O. No. 4363/9-A-3-90-50-LUG-89, dated January 22, 1991.
NOW THEREFORE, in pursuance of the provisions of sub-para (1) of para 10-B directions, 1960, issued in exercise of the powers under section 14 of the Uttar Pradesh (Regulation of Building Operations) Act 1958 (U.P. Act no. 34 of 1958), the amendment in the Master Plan of Azamgarh as approved by the State Government are published in the Gazette. Copy of the said amendments in the Master Plan can be inspected in the office of the Collector, Azamgarh on any working day during office hours.
Amendments Place and Khasra Area of Existing Amendment name of No. land in land use land use district acre 1. 2 3 4 5 Village 740 3,590 Forest Residential Naroli, district Azamgarh By order N.K. SRIVASTAVA Deputy Secretary.
The plaintiff respondent has claimed the title through the registered lease deed dated 13th of August, 1947 executed by collector, Azamgarh on behalf of Secretary of State for India in favour of Ganga Ram Saxena, the brother of the plaintiff. The defendant-appellant at no stage of proceeding challenged the legality and validity of the said lease deed. There is voluminous evidence on record to show that the said lease deed was acted upon by recording the name of Ganga Ram Saxena in the revenue record. Thereafter, he obtained Bhumidhari Sanad etc. without there being any objection by the defendant-appellant. The lease deed being a registered document there is a presumption of its due execution and such a document cannot be ignored lightly. The defendant-appellant except alleging that the revenue entries are fabricated, could not produce any evidence to show as to how the revenue entries are fabricated. It may be noticed that the case of plaintiff is that the defendant-appellants who were responsible for maintaining the proper and correct revenue entries at the instance of the complainant made false and fabricated entry in the revenue record. The defendant-appellant could not produce any material either before the trial Court or before us to show as to how the revenue entries are forged entries. It is an acknowledged legal position that the long standing revenue entries cannot be ignored. The long standing entries particularly in the present case cannot be said to be forged entry when they are backed by a valid registered document, the execution of which has not been disputed by the defendant-appellant.
From the discussion above we are of the view that firstly Ganga Ram Saxena became sirdar on the basis of registered lease deed in his favour and after depositing requisite fees he became bhumidhar, then after his death ,Ram Prasad saxena inherited the land, being his brother.
POINT NO. 2.
It has been argued by learned Standing Counsel that relief of injunction necessarily involves relief of declaration and since plaintiff's name has been expunged from the revenue records, hence he ought to have sought declaration of his title from revenue Court and thus the suit was not within jurisdiction of the civil court.
Refuting this argument, learned counsel for the respondent argued that the suit was filed on 15.04.1995 and on that date he was entered as bhumidhar in the revenue records. After filing of the suit plaintiff name was expunged on the direction of District Magistrate, Azamgarh on 18.10.1995, hence at the time of filing of the suit plaintiff was bhumidhar and there was no need for declaration of his title, hence the suit was within competence of the civil court.
A perusal of the records reveals that the arguments advanced by the learned counsel for the respondent has force.
On the day of filing of the suit plaintiff was recorded as bhumidhar of the land in dispute, hence on that time there was no need for filing of suit in the revenue court.
The learned court below has while deciding this issue held that the suit has been filed for injunction and under specific relief Act only civil court is empowered to grant injunction.
In the case of Ram Awalamb and others vs. Jata Shanker and others 1968 RD 470. a Full Bench decision of this Court it has been held that:-
" in each and every case, the cause of action of the suit shall have to be strictly scrutinised to determine whether the suit is solely cognizable by a revenue court or is impliedly cognizable only by a revenue court, or is cognizable by a civil court. Where in a suit, from a perusal only of the reliefs claimed, one or more of them are ostensibly one relief is cognizable only by the revenue court, further questions which arise are whether all the reliefs are based on the same cause of action and, if so, (a) whether the main relief asked for on the basis of that cause of action is such as can be granted only by a revenue court, or (b) whether any real or substantial relief (though it may not be identical with that claimed by the plaintiff) could be granted by the revenue court. There can be no doubt that in all cases contemplated under (a) and (b) above the jurisdiction shall vest in the revenue court and not in the civil court. In all other cases of a civil nature the jurisdiction must vest in the civil court.
X x x x x x x x x x The determination of the question as to which out of the several reliefs arising from the same cause of action is the main relief will depend on the facts and circumstances of each case. Where, on the basis of a cause of action----
(a) the main relief is cognizable by a revenue court the suit would be cognizable by the revenue court only. The fact that the ancillary reliefs claimed are cognizable by civil court would be immaterial for determining the proper forum for the suit;
(b) the main relief is cognizable by the civil court the suit would be cognizable by the civil court only and the ancillary reliefs, which could be granted by the revenue court may also be granted by the civil court.
The above principle will apply also to a suit for injunction and demolition relating to agricultural land and brought against a trespasser. 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."
In the instant case only one relief of injunction has been sought so the civil court has jurisdiction to decide the suit.
No other point was pressed by the learned Standing Counsel.
We have discussed above that the lease was registered and the execution of lease and its registration was not disputed in the pleading and evidence by the appellants defend and we have also discussed that the appellants defendants have not adduced the best available evidence with him.
From the above discussion we find no merit in the appeal and also are not inclined to interfere in the judgement delivered by learned civil judge senior division, Azamgarh. There is no merit in the appeal.
Consequently, the appeal is liable to fail and is accordingly dismissed. No orders as to costs.
(Arvind Kumar Tripathi-II,J) (Prakash Krishna,J) Order Date :- 14.08.2012. v.k.updh.