# Hari Narain v. IV A.D.J., Azamgarh & others

- **Citation:** High Court of Judicature at Allahabad #39716
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hari-narain-v-iv-a-d-j-azamgarh-others-39716
- **Pages:** 4

## Text

1ALL] Hari Narain V. IV A.D.J., Azamgarh & others. 5
25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$' '(&(0%(5
'$7(' $//$+$%$' '(&(0%(5
%()25(
%()25(
7+( +21·
7+( +21·%/( 6. 3+$8-'$5 -
%/( 6. 3+$8-'$5 -

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

+DUL 1DUDLQ
«3HWLWLRQHU
9HUVXV
,9 $GGLWLRQDO 'LVWULFW -XGJH $]DPJDUK
RWKHUV
5HVSRQGHQWV

&RXQVHO IRU WKH 3HWLWLRQHU
3UDGHHS .XPDU 5DL
&RXQVHO IRU WKH 5HVSRQGHQW
6&

6SHFLILF 5HOLHI $FW 6 UHDGZLWK 83=$
/5
$FW

6V
%
DQG
5HJLVWUDWLRQ $FW 6 MXULVGLFWLRQ RI FLYLO
FRXUW YLV D YLV 5HYHQXH &RXUW ± VXLW IRU
SHUPDQHQW
,QMXQFWLRQ
RQ
EDVLV
RI
XQUHJLVWHUHG
IDPLO\
VHWWOHPHQW
ZLWKRXW
GHFODUDWLRQ RI WLWOH HYHQ
WKRXJK SODLQWLII¶V
ULJKW ZDV QRW DGPLWWHG
+HOG
,W DSSHDUV WKDW LW ZDV QRW WKH DGPLWWHG FDVH
RI WKH WLWOH RI WKH SODLQWLII RYHU WKH VXLW
SURSHUW\ HYHQ DFFRUGLQJ WR WKH PHUH UHDGLQJ
RI
WKH
SODLQWLII
7KXV
WKH
SODLQWLII
ZDV
REOLJHG WR DOOHJH KRZ KH REWDLQHG D ULJKW RQ
WKH VXLW SURSHUW\ RU ZKDW ZDV WKH REOLJDWLRQ
LQ KLV IDYRXU LQ UHVSHFW WKHUHRI EHIRUH KH
FRXOG
PDNH
D
SUD\HU
IRU
D
SHUPDQHQW
LQMXQFWLRQ 7KDW FRXOG KDYH EHHQ HVWDEOLVKHG
E\ D GHFODUDWLRQ RI WKH ULJKW FODLPHG E\ WKH
SODLQWLII
DQG
RQFH
ZH
FRPH
WR
WKLV
FRQFOXVLRQ WKH LUUHVLVWLEOH LQIHUHQFH ZRXOG
EH WKDW WKH VXLW ZDV UHDOO\ LQ WKH QDWXUH RI
RQH VSRNHQ RI XQGHU VHFWLRQ % RI WKH
83=$ /5 $FW DQG ZDV WKXV FRJQL]DEOH
E\ WKH UHYHQXH FRXUW DQG DV VXFK WKH
MXULVGLFWLRQ
RI
WKH
FLYLO
FRXUW
VWRRG
RXVWHGSDUD

&DVH ODZ GLVFXVVHG-
 5'
 $:&
$,5 6&
 $/5
By the Court

1. The petitioner had filed Suit No. 1230
of 1986 for permanent injunction against the
present respondents, Kamala and others. It
was his case that he was the sole owner of
certain agricultural plot and was in possession
thereof. It was stated that previously he was
having only one-third share in the suit
property, a second one-third belonged to one
Rampat Rai and the rest one-third belonged to
the respondent Kamala and his brother
Subedar . The plaintiff purchased the share of
Rampat through a registered instrument and
there had been a family settlement through
which Kamala and Subedar transferred their
share in the suit property in favour of the
petitioner through a written instrument dated
24.12.1971. Subsequently, however, kamala
and Subedar transferred their land to other
defendants on the basis of which they were
trying to interfere in the land in dispute and
that gave the cause of action to the plaintiffpetitioner for permanent injunction. The
petitioner asserted that for the Fasli year 1389
khatauni was prepared in his name for certain
plots and for the Fasli years 1390 and 1395
khatauni was prepared in his name for some
other plots. The defendants, however, denied
that title of the petitioner on the suit property.
The defendant Kamala also contested the suit
and asserted that the plaintiff had not been the
bhumidhar for one -third share in the suit
property and the suit was really one for a
relief for a declaration of his right and title to
the extent of that one-third share and only the
shape of an injunction suit was given although
the real relief was of a declaration of title.

2. The trial judge framed several issues
including one touching the jurisdiction of the
civil court to take up the matter. The issue
was decided by the trial judge on 1.9.1992 in
the affirmative, holding that the civil court
had a jurisdiction to entertain the suit as the
relief sought for was for permanent injunction
that could have been granted only by the civil
court. A revision application, however, was
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
6
preferred and by an order dated 27.5.1999 the
IVth Additional District Judge, Azamgarh,
allowed the revision, set aside the order of the
trial judge dated 1.9.1992 This order has
given rise to the present writ petition.

3. It was contended on behalf of the
petitioner that the jurisdiction of a court is to
be determined from the allegations made in
the plaint and from the relief's claimed
therein. When it was a suit for a permanent
injunction, none but the civil court could have
taken cognizance of the suit. Moreover, the
cause of action had arisen only on account of
attempts on the part of the defendants to
interfere in the possession of the plaintiff over
the suit property. It was submitted that the
revisional
court
had
gone
beyond
its
jurisdiction to take up the question of
registration or absence of registration of the
alleged family settlement.

4. The U.P. Zamindari Abolition and Land
Reforms Act, 1950 ( in short, the ZA & L.R.
Act)
makes
certain
provision
for
entertainment of suits by revenue courts to the
exclusion of the jurisdiction of the civil court.
Section 331 of this Act states that except as
provided by or under this Act no court other
than a court mentioned in column 4 of
schedule 2 shall, notwithstanding anything
contained in the CPC, take cognizance of any
suit, application or proceedings mentioned in
column II thereof or of a suit, application or
proceedings based on a cause of action in
respect of which any relief would be obtained
by means of any suit or application. It further
provides that where a declaration has been
made under Section 143 in respect of any
holding or a part thereof, the provisions of
schedule 2 in so far as they relate to suits
under chapter 8 shall not apply to such
holding of part thereof. Chapter 8 of this Act
deals with tenure. Section 331 furthers gives
an explanation 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.

5. Schedule 2 as spoken of in Section 331
of this Act gives a table of the nature of the
proceedings, the name of the court of first
instance and the names of the courts of first
and second appeal (where lies). In item no. 34
.it speaks of a suit for declaration of rights
under Section 229-229-B and 229C of the Act
and the proper forum for a suit is the court of
Assistant Collector first Class. Section 229-B
deals with declaratory suits by persons
claiming to be asami of a holding or a part
thereof. Any person claiming to be a asami of
a holding or any part thereof whether
exclusively or jointly with any other party,
may sue the land-lord for a declaration of his
rights as asami in such holding or the part as
the case may be, and any other person
claiming to hold as asami is to be impleaded
as a defendant. These provisions would apply
mutatis mutandis to a suit by a person
claiming to be a bhumidhar and in such a suit
the word land-holder would mean the State
Government and the Gaon Sabha Section.
229-D of the Act also provides for injunction
under certain circumstances in suits filed
under Section 229-B,

6. Permanent injunctions are relief's
thought of under the Specific Relief Act and
perpetual injunctions have been dealt with in
chapter 8 of this Act. Section 38 speaks that a
perpetual injunction may be granted to the
plaintiff to prevent a breach of an obligation
existing in his favour, whether expressly or by
implication, and when a defendant invades or
threatens to invade the plaintiffs right to or
enjoyment of a property the court may grant a
perpetual injunction where the invasion is
such that a compensation in money would not
afford an adequate relief or where injunction
was necessary to prevent a multiplicity of
judicial proceeding. It is, thus clear that a
permanent injunction in the nature of a
perpetual restraint on the defendant from
doing anything could be issued in favour of
1ALL] Hari Narain V. IV A.D.J., Azamgarh & others. 7
the plaintiff only if there is an obligation
existing in his favour in respect of the suit
property of if there is a threatened invasion to
the plaintiffs right to or enjoyment of a
property. Thus there cannot be a mere
injunction suit as there is always a built-in
implication of an obligation existing in his
favour or his right to or enjoyment of a
property. Before making a claim for an
injunction of a permanent nature the plaintiff
must have that obligation or right in his
favour.

7. Admittedly, in the instant case the
plaintiff claims that obligation in his favour or
the right to the suit property by dint of a
family settlement and the only question that
arises for determination is whether in reality
he sought a relief of a declaration of a right
over one-third of the suit property by way of
family settlement.

8. The plaintiff relied on a decision of the
Allahabad High Court in the case of Mangal
Lal Chaturvedi, as reported in 1998(89) RD
467. The Hon'ble Single judge held in this
case that when it was a suit simply for an
injunction and possession, foundation of
which was on the transfer by the defendant to
the plaintiff it was not a suit involving an
adjudication of right title or interest between
the parties and the suit did not come within
the ambit of Section 331 and the relief lay
before the civil court only. On fact it was held
that foundation of the suit was laid on the
basis of a sale -deed executed by the
defendant-petitioner
for
the
purpose
of
construction of a house and possession thereof
was
delivered
to
the
plaintiff.
But
,
subsequently, the defendant had illegally
constructed a wall on a part of the land and
entered into possession thereof . No question
of title was involved in the matter and, as
such, there was no question of proving the
obligation in favour of the plaintiff or his right
to the plaintiff as required under Section 38
and, as such, no adjudication was necessary
on
those
points.
Only
under
these
circumstances the above decision was given .
But the facts in the instant case are not
parallel as the one-third share was claimed on
the basis of a family settlement which was not
registered.

9. A reference may also be made in this
regard to a Division Bench decision of the
Lucknow Bench of the Allahabad High Court
in the case of Dr. Ayodhya Prasad, as reported
in 1981 AWC 469. Here was a suit filed
before the civil court for a relief of certain
declarations and possession as also for a relief
for cancellation of a sale-deed touching the
suit property, and also for an injunction. It
was held by the Division Bench that the suit
was cognisable by the revenue court and not
by the civil court. The plaintiff had alleged in
the suit that he was the son of the deceased
land-holder. There had been a deed of transfer
of the widow of the land holder, although
under Section 171 of the ZA & L.R. Act the
son was a preferential heir and his widowed
mother was down in the list of heirs. The
transfer made by the widow was alleged to be
void and as such, it required no cancellation
through a decree of the civil court. The High
Court found the revenue court to be the proper
forum as even the relief for injunction could
have been given by the revenue court under
the effective relief of a declaration.

10. The Supreme Court had in the case of
Abdul Wahid Khan, as reported in AIR 1966
SC 1718 had a question before it regarding
ouster of the jurisdiction of a civil court under
the provisions of the Bhopal State Land
Revenue Act. It was held that a statute ousting
a jurisdiction of a civil court must be strictly
construed. The court had dealt with different
provisions of the concerned state Act of
Madhya Pradesh and upon such analysis came
to the conclusion that the civil court's
jurisdiction had not been ousted for a
declaration of title and possession of a
khatedar against a trespasser. The provisions
of the U.P.Z.A. & L.R. Act have already been
indicated and the instant suit is admittedly
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
8
against a co-sharer and/or his transferees and
a right has been claimed through a family
settlement which had never been registered.
Thus even with a strict interpretation of
Sections 229-B and 331 of the Z.A. & L.R
Act read with Section 38 of the Specific
Relief Act the relief prayed for is one covered
by the provisions of the Z,A & L.R. Act.

11. The learned counsel for the petitioner
further relied on another decision of the
Allahabad High Court (Lucknow Bench) in
the case of Indra Deo Vs. Ram Pyari, as
reported in 1982 (8) Alld. Law Reports 517. It
was a suit for cancellation of a sale-deed in
respect of an agricultural bhumidhari and the
civil court had returned the plaint for its
presentation before the revenue court. The
order was set aside in first appeal. Patently,
the facts of this case are not at all parallel to
the instant matter. It was a mere suit for
cancellation of a sale-deed and the civil
court's jurisdiction was certainly not ousted
under the different provisions of the U.P. Z.A.
& L.R. Act.

12. An objection was taken by the
petitioner that the appellate court had wrongly
given a finding about the requirement of
registration of the family settlement by which
the plaintiff had allegedly acquired the one
third share of the defendant no.1 Provisions of
Section 17 of the Registration Act are clear on
this point. This section speaks of documents
for which registration is compulsory. Under
this section a document must be registered if
it is a non-testamentary one and purports or
operates to create, assign, limit or extinguish
right on an immovable property whether
vested or contingent, of the value of Rs. 100.
Through the family settlement claimed by the
petitioner, the plaintiff-petitioner certainly
proposed to extinguish the title of defendant
no.1 and to create a title in his favour. Thus, it
was necessary to get that alleged family
settlement registered. The court below had not
acted wrongly in opining that the so-called
family settlement required registration.

13. From what has been discussed above,
it appears that it was not the admitted case of
the title of the plaintiff over the suit property,
even according to mere reading of the
plaintiff. Thus, the plaintiff was obliged to
allege how he obtained a right on the suit
property or what was the obligation in his
favour in respect thereof before he could
make a prayer for a permanent injunction.
That could have been established by a
declaration of the right claimed by the
plaintiff and once we come to this conclusion,
the irresistible inference would be that the suit
was really in the nature of one spoken of
under section 229 -B of the U.P.Z.A. & L.R.
Act and was, thus cognizable by the revenue
court and as such, the jurisdiction of the civil
court stood ousted.

In view of the above there is no reason to
interfere with the order impugned, and the
writ petition, accordingly, stands dismissed
---------
25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$'
%()25(
%()25(
7+( +21·%/( 68'+,5 1$5$,1 -
7+( +21·%/( 68'+,5 1$5$,1 -

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

3UDPRG .XPDU 9HUPD
«3HWLWLRQHU
9HUVXV
9,WK $GGLWLRQDO 'LVWULFW
-XGJH %LMQRU
DQG
RWKHUV
5HVSRQGHQWV

&RXQVHO IRU WKH 3HWLWLRQHU
6KUL 61 6LQJK
6KUL $. 5DL
&RXQVHO IRU WKH 5HVSRQGHQWV:
6&
83 8UEDQ %XLOGLQJV 5HJXODWLRQ RI OHWWLQJ
5HQW DQG (YLFWLRQ $FW 6HF D
/DQGORUG¶V UHOHDVH DSSOLFDWLRQ IRU LQGHSHQW
EXVLQHVV E\ KLV VHFRQG VRQ DOORZHG E\ ERWK
WKH FRXUW¶V EHORZ/DQGORUG¶V QHHG IRXQG WR