Satish Chandra, C.J:— A learned single Judge has referred to a Division the question whether the suit for an injunction and possession in respect of grove land will abate under S. 5 of the U.P Consolidation of Holdings Act.
2. The plaintiff filed a suit on the allegation that he was Bhumidhar of plot No. 79, which was a grove. In a portion thereof the defendant had made forcible encroachment. The relief claimed was for an injunction and possession over the encroached site.
3. The suit was contested, inter alia, on the ground that the suit was not maintainable in Civil Court. This plea was given up. The trial court upheld the plaintiff's claim on merits and decreed the suit.
4. On appeal the plea that the Civil Court had no jurisdiction was pressed. It was accepted by the appellate court. It allowed the appeal and directed the trial court to return the plaint for presentation to the Revenue Court, Aggrieved, the plaintiff came to this Court in appeal, During its pendency a notification under S. 4(2) of the U.P Consolidation of Holdings Act was issued in relation to the village where the plot in dispute was situate.
5. The respondents moved an application that the suit as well as the present appeal be declared to have abated under S. 5 of that Act.
6. Learned counsel for the plaintiff-appellant stated before us and this statement was not disputed by the counsel for the respondents, that in consolidation operations the name of the plaintiff had been entered over the land in dispute as Bhumidhar. The plaintiff had relied upon a decree of the Revenue Court adjudicating his title as against the respondents. It is thus apparent that the plaintiff did not desire adjudication of rights in relation to the grove plot. His charge was of an encroachment by force after final adjudication of title of the parties. The relief in the suit was for injunction. The plaintiff wanted the encroachment to be removed and possession over the site of encroachment restored. This is not a suit for possession simpliciter or of the kind which necessitates adjudication of rights before the relief can lie granted. The suit hence was not liable to abate. The title had already been adjudicated by the Revenue Court as well as Consolidation Authorities. The cause of action for the present suit was the alleged trespass by the defendant; the suit was maintainable in Civil Court and could not be entertained by the Revenue Court either, in Hasrat v. Haridwar (1973 All LJ 278) it was held that a suit of injunction for removal of constructions is not within the purview of Sec. 5 and hence cannot be abated.
7. The decision in Ram Narain v. Bhawani Prasad (1974 Rev Dec 25) is applicable where the dispute in the suit was about the character of the land and title to its possession. It was held that since the land was a grove, the suit was liable to abate because title to even grove land was liable to be adjudicated by the Consolidation Authorities. The decision is correct but is not applicable to a situation where the suit in regular courts is not for adjudication of title to the grove land but is for removal of the trespasser. In our opinion, the present suit was neither liable to be abated nor was entertainable by the Revenue Court.
8. Let the papers be returned to the learned single Judge with this opinion and answer.
9. Order accordingly.