Citation Codes

Equivalent Citations

citation codes

Case Number

Civ. Rev. No. 528 of 1963

Judges

D.S Mathur, J.

Acts

Sec. 331 of the U.P Zamindari Abolition and Land Reforms Act under U.P Act No. XXVIII of 1961.
suit.8. Sec. 229-B and 229-C of the U.P Zamindari Abolition and Land Reforms Act
Secs. 167 and 168 of the U.P Zamindari Abolition and Land Reforms Act. Sec. 167
sirdar.15. Sec. 156 of the U.P Zamindari Abolition and Land Reforms Act
Sec. 229-B of the U.P Zamindari Abolition and Land Reforms Act
Sec. 210 of the U.P Zamindari Abolition and Land Reforms Act
U.P Zamindari Abolition and Land Reforms Act.11. Sec. 229-C

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Smart Summary

Synopsis of the Opinion (Mathur, J.)

Factual and Procedural Background

This is a revision under Section 115 of the Civil Procedure Code by Rameshwar (defendant) challenging the order dated 15-4-1963 of the Additional Munsif, Gorakhpur, which held that the plaintiff's suit for injunction was cognizable by the civil court.

Ram Asrey (plaintiff) instituted the suit on 11-4-1962 seeking a perpetual injunction restraining Rameshwar (defendant) from interfering with his possession of plot No. 263/1 (0.63 acres) in village Kharkharaiya. An alternative relief for possession was originally claimed but later deleted; the plaint as it stood sought only a perpetual injunction.

The suit was instituted after amendment of Section 331 of the U.P. Zamindari Abolition and Land Reforms Act (U.P. Act No. XXVIII of 1961), which, by its terms and an accompanying Explanation, affects the civil court's jurisdiction where revenue courts can grant relief for the same cause of action.

Legal Issues Presented

Whether, in view of the amendment to Section 331 of the U.P. Zamindari Abolition and Land Reforms Act, the civil court had jurisdiction to entertain the plaintiff's suit for injunction based on the present cause of action.
Whether Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act removes from civil courts all declaratory suits or only declaratory suits that are, in substance, against the landholder (in the present context, the State Government and the Gaon Samaj) and therefore require their impleading.
Whether non-impleading of the State Government and the Gaon Samaj by the plaintiff is material to the question of jurisdiction (i.e., whether they are necessary parties in the sense that no relief for declaration can be granted without their impleading).
On the material then on record (pleadings and extracts of village records), whether the plaintiff could be regarded as a sirdar such that he need not sue the State Government and the Gaon Samaj and could maintain an injunction suit in the civil court against the defendant alone.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court's reasoning proceeds step-by-step from statutory text, the nature of the relief sought, and the limited materials on record (pleadings and extracts of village records):

The court notes the effect of the amendment to Section 331 (U.P. Zamindari Abolition and Land Reforms Act): where a revenue court can grant relief for a cause of action listed in Schedule II, the civil court is barred from taking cognizance of a suit based on that cause of action. The Explanation to Section 331 makes clear that it is immaterial if the relief sought in the civil court differs from that which the revenue court would grant.
The court explains the intrinsic connection between declaratory relief and injunctive relief: an injunction can be granted only to a person who can obtain a declaration of title or status. Therefore, if a declaratory suit based on the same cause of action is within the cognizance of the revenue court, a civil court cannot entertain a suit for injunction founded on that cause of action.
On necessary parties: non-impleading the State Government and the Gaon Samaj does not automatically oust jurisdiction if they are necessary parties (i.e., if a declaration could not be granted without them). The court must first ascertain the purpose of the suit and who are necessary parties before determining jurisdiction.
The procedural posture matters: the decision is at a preliminary stage with only pleadings and some village record extracts on file. The court therefore determines jurisdiction based on the plaintiff's case as pleaded and the village records; questions that depend on fuller evidence may be reconsidered later.
Analysis of Section 229-B: the court construes that Section 229-B is not a general bar on all declaratory suits being brought in the civil court. Its wording specifically refers to suits by or against the landholder, or in the case of a bhumidhar or sirdar, the words “State Government and the Gaon Samaj” are explicitly added. Thus the legislative scheme indicates that only declaratory suits in substance against the landholder or the State Government and the Gaon Samaj were intended to be removed from civil jurisdiction—not every declaratory suit.
Consequence of that construction: if, in substance, a declaration sought is against the landholder (here, the State Government and the Gaon Samaj) and they are necessary parties, the civil court lacks jurisdiction. Conversely, if the facts (including village record entries) show that the landholder/State/Gaon Samaj do not challenge the plaintiff's status, then the declaratory relief is not in substance against them and the civil court's jurisdiction is not displaced.
Section 229-C is inapplicable because it governs suits by a Gaon Samaj or a bhumidhar or sirdar against a person claiming to be an asami; in this case no one claims the defendant to be an asami.
Consideration of village records and factual position: the extracts show the disputed plot was originally in tenancy of Bhagwat and others who abandoned it in 1355F; the plaintiff's father first appears in 1363F; plaintiff's or his father's entries as sirdar continue thereafter; in 1366F the defendant is shown as Qadiz and from 1368F as sub-tenant, with entries indicating defendant in possession in 1366F. The court treats these entries as public documents of which judicial notice can be taken for the present stage.
On the possibility that the defendant could have become sirdar: by virtue of Section 210 the defendant could become a sirdar if no suit under Section 209 for dispossession is filed within six years from the 1st July following the date of unlawful occupation. The court computes that the limitation period for an ejectment suit would commence from 1st July, 1959, and notes that the prescribed period has not yet expired, so for present purposes the plaintiff may be deemed to continue to enjoy sirdar status.
On alleged sub-lease and its consequences: Section 156 prohibits sub-lease by a bhumidhar, sirdar or asami except as permitted by Section 157; therefore any sub-lease would be void. While the legislature did not expressly state consequences of illegal sub-lease in Section 156, the court refers to Sections 167 and 168 as describing consequences of transfers made in contravention of the Act: a suit under Section 167 (by Gaon Samaj or landholder) can seek ejectment of the transferee and others who obtained possession, and under Section 168 all rights of the sirdar or asami would be extinguished upon ejectment in such a suit.
Because no suit under Section 167 has been instituted by the Gaon Samaj, the plaintiff’s rights as sirdar cannot be deemed extinguished on the basis of the village entry showing sub-tenancy.
Final application of the above to jurisdiction: on the basis of the village extracts then on record, and for the limited purpose of deciding the revision at the preliminary stage, the court assumes the plaintiff enjoyed the status of sirdar. Therefore it was not necessary for the plaintiff to sue the State Government or the Gaon Samaj for a declaration of his rights; he could seek declaratory relief (and an injunction) against the third party (the defendant) alone in the civil court. Consequently the civil court could entertain the suit for injunction at the present stage.
Procedural caveat: the court expressly leaves open the possibility for the trial court (Munsif) to reconsider jurisdiction after the parties have adduced fuller evidence.

Holding and Implications

Revision dismissed.

Direct effects on the parties and the case:

The revision filed by the defendant (Rameshwar) under Section 115 C.P.C. was dismissed; the Additional Munsif's order that the civil court could entertain the plaintiff's suit for injunction stands.
The Munsif is permitted to reconsider the question of jurisdiction after the parties have adduced their evidence.
Costs were awarded on parties (the opinion states "Costs on parties") and the stay order previously in force was vacated.

The opinion does not discuss broader legal implications or purport to lay down a new precedent; it decides the jurisdictional question on the statutory text and the material on record and leaves open further consideration at trial.

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Rameshwar v. Ram Asrey

Mathur, J.:— This is a revision under Sec. 115, C.P.C by Rameshwar, defendant, against the order dated 15-4-1963 of the Additional Munsif, Gorakhpur, holding that the present suit for injunction was cognizable by the civil court.

2. Ram Asrey son of Tapesar, plaintiff opposite party, had instituted the present suit for a perpetual injunction to restrain the defendant, Rameshwar, from interfering with his possession over plot No. 263/1, area 0.63 acres, of village Kharkharaiya. In the alternative, it was prayed that if the plaintiff be found not to be in possession of the land, possession be given to him after dispossession of the defendant. The alternative relief was, however, got deleted at a subsequent stage and the plaint as it at present stands, is for a perpetual injunction to restrain the defendant from interfering with the possession of the plaintiff over the agricultural plot in dispute.

3. The suit was instituted on 11-4-1962 after the amendment of Sec. 331 of the U.P Zamindari Abolition and Land Reforms Act under U.P Act No. XXVIII of 1961. As a result of this amendment the civil court cannot take cognizance of a suit, application or proceeding based on a cause of action in respect of which any relief can be obtained by means of any suit, application detailed in column 3 of Schedule II. It is further made clear in the Explanation to Sub-Sec. (1) of Sec. 331 that “if the cause of action is one in respect of which relief may be granted by the revenue court, it is immaterial that the relief asked for from the civil court may not be identical to that which the revenue court would have granted.”

4. The relief for injunction can be granted to the plaintiff on his satisfying the court that he was in possession and has title to the property. Injunction cannot thus be granted to a person who is not entitled to a declaratory relief. Consequently, one of the reliefs which can be obtained in a suit based on the same cause of action shall be declaration and the other injunction. The Civil Court, therefore, will not have the jurisdiction to entertain a suit for injunction if it be found that a suit for declaration based on the same cause of action is cognizable by the revenue court.

5. Ram Asrey plaintiff has not impleaded the State Government and the Gaon Samaj, the suit is against Rameshwar only. The non-impleading of the State Government and the Gaon Samaj shall be of no consequence if they are necessary parties in the sense that no relief for declaration can be granted without their being impleaded in the suit. No one can be permitted to oust a court of its jurisdiction conferred on it under the law by not impleading one party or by using different phraseology while giving the facts of the case or while asking for a relief. The law must have its course. However, the purpose of the suit shall have to be ascertained before deciding who are the necessary parties and whether the suit can be entertained by the court without impleading the necessary parties and whether after impleading the necessary parties the suit is or not cognizable by that court.

6. The second point to be kept in mind is that the decision at present is being given at a preliminary stage before the parties have adduced their complete evidence. Consequently, if it be held at this stage that the suit is within the cognizance of the civil court, the matter can be reconsidered, if it be later found that the State Government and the Gaon Samaj were necessary parties and the declaration was, in fact, sought for against them also and not against the defendant alone.

7. At the stage material on record merely consists of the pleadings of the parties and a few extracts of village records. Any plea raised in the written statement cannot be used against the plaintiff unless there exists no dispute on facts. Extracts of village records being public documents can however be taken judicial notice of. In other words at this stage the plea of jurisdiction shall have to be determined on the basis of the case as put forward by the plaintiff and the entries existing in the village records, though at a subsequent stage further evidence adduced by the parties can also be considered in determining whether the civil court could have taken cognizance of the suit.

8. Sec. 229-B and 229-C of the U.P Zamindari Abolition and Land Reforms Act govern suits for declaration by a bhumidhar, sirdar or an asami. Sub-Secs. (1) and (2) of Sec. 229-B relate to a suit for declaration by an asami, but in view of sub-Sec. (3) thereof sub-Secs. (1) and (2), subject to certain modifications apply to declaratory suit by a bhumidhar or sirdar also. Reading all the three sub-Sections together the provisions so far as a declaratory suit by a sirdar shall be as below:

“229-B. (1) Any person claiming to be a sirdar—whether exclusively or jointly with any other person may sue the State Government and the Gaon Samaj

(a) for a declaration that he is a sirdar of the holding, or

(b) for the declaration of his share therein,

(2) In any suit under sub-Sec. (1) any other person claiming to hold under the State Government and the Gaon Samaj shall be impleaded as defendant. . . . .”

9. The question arises whether Sec. 229-B governs all declaratory suits or merely suits for declaration against the landholder, in the present case, State Government and Gaon Samaj. Civil courts have the jurisdiction to entertain suits of all kinds unless their jurisdiction has been taken away under some enactment. Prohibitions as to jurisdiction are not to be assumed: there has to be a clear and unambiguous provision in the enactment. Any provision taking away the jurisdiction of the civil court has got to be strictly construed and it cannot be assumed that the intention of the legislature was something beyond that indicated by the provision. In the instant case, we cannot assume that because the legislature wanted certain declaratory suits to be decided by the revenue court, all declaratory suits shall lie in that court and not before the civil court.

10. A perusal of Sec. 229-B of the U.P Zamindari Abolition and Land Reforms Act makes it clear that it has not been worded generally to cover all suits for declaration. If such were the intention, the word “landholder”, and in the case of a bhumidhar or sirdar the words “State Government and the Gaon Samaj,” would not have been added prior to Cl. (a) of sub-Sec. (1) thereof. The section would have made a provision for a suit for declaration though indicating that in such a suit the land-holder, or the State Government and the Gaon Samaj and also anyone claiming through them, shall be impleaded as defendant. On the other hand, Sec. 229-B provides for a suit against the landholder, or the State Government and the Gaon Samaj as the case may be, and it is in this connection that it has been enacted in sub-Sec. (2) that any other person claiming to hold through the landholder, or the State Government and the Gaon Samaj, shall also be impleaded as defendant. It is thus a declaratory suit against the land-holder, or the State Government and the Gaon Samaj, which has been taken away from the jurisdiction of the civil court and not every suit for declaration. To put it differently, if it be found that, in substance, declaration is being asked for against the land-holder, in the instant case the State Government and the Gaon Samaj, and they are necessary parties to the suit, the civil court shall not have: the jurisdiction to entertain such a suit for declaration and also a suit in which a relief for injunction with regard to that plot based on the same cause of action has been prayed for. But if the facts indicate that the land-holder, or the State Government and the Gaon Samaj, as the case may be do not challenge the status of the plaintiff, or on the basis of the entries existing in the village record the plaintiff continues to enjoy the status claimed by him, the suit for declaration cannot be deemed to be against the land-holder, or the State Government and the Gaon Samaj, and consequently shall be congnizable by the civil court on account of its jurisdiction not being taken away by or under the U.P Zamindari Abolition and Land Reforms Act.

11. Sec. 229-C governs a suit by a Gaon Samaj or a bhumidhar or sirdar against a person claiming to be an asami for declaration of the latter's right. In the instant case, it is no one's case that the defendant is an asami. When the defendant does not claim to be an asami, and instead claims to be a sirdar, no declaration could be sought for under Sec. 229-C.

12. Coming to the facts of the instant case, it shall appear from the village extracts on the file that the disputed plot was originally in the tenancy of Bhagwat and others who abandoned the holding in 1355F. The name of the plaintiff's father, Tapesar was shown in the khasra for the first time in 1363F. During the earlier years the names of Bhagwat and others had continued to be recorded even though they appear to have abandoned the holding. Entries in favour of the plaintiff's father, or of the plaintiff, as sirdar continued thereafter though in the remarks column of the khasra of 1366F. the defendant was shown as Qadiz and from 1368F. he was recorded as sub-tenant. Consequently, unless the State Government or the Gaon Samaj challenge the status of the plaintiff as sirdar, it can be assumed that they were regarding him to be sirdar, though not in possession after 1365F.

13. The matter can be considered in the alternative as if the defendant is a sub-tenant or is a mere trespasser. The plaintiff's case is that the defendant is not in possession though he is trying to interfere with the plaintiff's possession. The entries in the village papers, on the other hand, show the defendant as sub-tenant from 1368F. and in possession in 1366F.; and the maintainability of the suit before the Civil Court shall at this stage have to be determined keeping these entries in mind.

14. In view of his possession from 1366F. the defendant could become a sirdar by virtue of Sec. 210 of the U.P Zamindari Abolition and Land Reforms Act if no suit under Sec. 209 for his dispossession is filed within the prescribed period, which is six years from the Ist of July following the date of unlawful occupation. The limitation for a suit for ejectment of the defendant would commence from the Ist of July, 1959, and admittedly the prescribed period of limitation for such a suit has not yet expired. In the circumstances, the plaintiff can, on the basis of the entries, and for purposes of the present revision, be deemed to still enjoy the status of a sirdar.

15. Sec. 156 of the U.P Zamindari Abolition and Land Reforms Act prohibits the sub-lease of any part of the holding by a bhumidhar, sirdar or asami except in the cases provided for in Sec. 157 or to a recognized educational institution for a purpose connected with instruction in agriculture, horticulture or animal husbandry. The plaintiff does not fall in any of the categories detailed in Sec. 157 and, consequently cannot let out any part of his holding. Sub-lease, if any shall thus be against the law and hence void.

16. The legislature has however not made any provision as to the consequences of an illegal sub-lease but considering that lease is one form of transfer it can be said that the consequences of a void sub-lease shall be as detailed in Secs. 167 and 168 of the U.P Zamindari Abolition and Land Reforms Act. Sec. 167 makes a provision for ejectment of the transferee and of every person who thereby obtained possession of the whole or part of the holding, and also of the sirdar or asami making the transfer in contravention of the provisions of the Act. Such dispossession is, however, possible on the suit of the Gaon Samaj or the landholder, as the case may be. Sec. 168 further provides that:

“Upon ejectment in a suit under Sec. 167, all the rights and interest of the sirdar or asami in the holding or part thereof. . . . . shall be extinguished.”

17. The Gaon Samaj has not yet instituted a suit for the ejectment of the defendant and also of the plaintiff and, consequently, the plaintiff's right as sirdar cannot be deemed to have been extinguished as a result of the entry of sub-tenancy being made in the village record.

18. On the basis of the extracts of village papers at present on the record it could be assumed, for purposes of the decision of the question of jurisdiction at the present stage that the plaintiff enjoyed the status of a sirdar and consequently it was not necessary for him to sue the State Government and the Gaon Samaj for a declaration of his rights as such. When it was not necessary for the plaintiff to sue the State Government or the Gaon Samaj, he could ask for a declaration against a third party without impleading them, and such a declaratory suit could be taken cognizance of by the civil Court. In the circumstances, the civil court could entertain a suit for injunction against the third party alone, based on the same cause of action.

19. The revision has thus no force and it is hereby dismissed, though it shall be open to the Munsif to reconsider the question of jurisdiction after the parties have adduced their evidence. Costs on parties. Stay order is vacated.

Revision dismissed.

Rameshwar v. Ram Asrey

Synopsis of the Opinion (Mathur, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Rameshwar v. Ram Asrey

Comments