# Irshad Ahmad v. State of U.P. & Anr

- **Citation:** (2023) 2 ILRA 421
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-24
- **Case number:** Second Appeal No. 2710 of 1984
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/irshad-ahmad-v-state-of-u-p-anr-49675
- **Pages:** 25

## Headnote

A. Civil Law -Civil Procedure Code,1908Section
11-Res-judicata-Judgment
of
Revenue Court in appeal while remanding
matter to Court of first instance in suit
filed by plaintiff u/s 229-B, operating as
res judicata in present suit for injuction
about nature of land does not ariseJudgment of Addl. Commissioner in
appeal arising from declaratory suit earlier
instituted by plaintiff is res judicata
between plaintiff and defendants on point
422 INDIAN LAW REPORTS ALLAHABAD SERIES
alone that suit property had a pajawa on it
and was, therefore not land within the
meaning of Section 3(5) of Consolidation
Act-It is for this reason that Addl.
Commissioner held that suit would not be
barred by section 49 of Consolidation ActNevertheless,
Additional
Commissioner
remanded suit for trial afresh setting aside
decree of Trial Court, dismissing it on
decision of a preliminary issue about bar
u/s 49-Finding of Addl. Commissioner
recorded in order of remand is only that
land is not one that could be consolidated
in a chak, as it was not cultivable-Addl.
Commissioner did not hold that Pajawa
was a building as envisaged u/s 9 of Act-If
he had done so, he would have dismissed
suit or directed a return of plaint for
presentation to Civil Court-Remand of suit
by Addl. Commissioner shows that though
he found pajawa to be a structure that
rendered suit property not 'land' within
meaning of section 3(5) of C.H. Act so as
to attract bar of Section 49, he still
thought
that
Revenue
court
had
jurisdiction to try plaintiff's suit u/s 229-B
of Act, where plaintiff would have to prove
whether suit property had a building on it
within meaning of Section 9 of Act, so as
to lead to its settlement with him-Upon
remand, plaintiff ought to have pursued
suit before Revenue Court for purpose of
declaration of his title on plea that a
Pajawa was a building, settled with him
under section 9 of the Act on date of
vesting-But, plaintiff upon remand by
Commissioner
to
Assistant
Collector,
apparently
abandoned
cause
before
Revenue Court and instituted present suit
before Civil Court, and that too, for an
injunction
simplicitor-Principle
of
res
judicata will not be applicable.(Para 1 to
66)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,955 of 86,766. This is a partial read: ask again with offset=39955 for what follows._

2 All. Irshad Ahmad Vs. State of U.P. & Anr.
421
sustained grievous injuries in the accident
which led to temporary unemployment.
The injury did not suffer any permanent
disability. The Tribunal has awarded the
compensation
under
various
heads
including
medical
expenses,
grievous
injuries, loss of income, as seen above. The
figures are re-decided in view of the
aforesaid findings. The medical evidences
are corroborated by the records and hence
need no alteration. However the deceased
shall be entitled to the following amounts
under various heads:
Heads
Entitled amount (in
Rupees)
1. Special diet and
nourishment
20,000/-
2. Loss of income
30,000/-
3. Grievous injuries
20,000/-p
4. Interest
7%

The award dated 17.03.2016 which is
the subject matter of FAFO 1824 of 2016 is
modified accordingly.

XIII. Conclusion & Directions:

42. In view of the above, the appeal
filed by the Insurance Company viz. First
Appeal From Order No. - 1824 of 2016 is
dismissed.

43. The appeal filed by Insurance
Company and the claimants viz. First
Appeal From Order No.- 1327 of 2015 and
First Appeal From Order No. 1925 of 2015
are partly allowed to the extent set out in
the judgment.

44. The amount of compensation
which the claimants have been awarded
shall be deposited by the Insurance
Company within a period of three months
before the learned tribunal. Thereafter the
learned tribunal shall release the amount to
the claimants without delay. The amount
already disbursed to the claimants (if any)
shall be adjusted.

45. The amount deposited by the
Insurance Company before this Court shall
be transmitted to the learned tribunal which
shall release the same in favour of the
claimants as part of the compensation
determined in this appeal.
----------
(2023) 2 ILRA 421
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.01.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 2710 of 1984

Irshad Ahmad ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Sri Arpit Agrawal, Sri Ravi Kiran Jain, Sri B.D.
Misra, Sri R.B.D. Mishra, Sri R.G. Prasad, Sri R.S.
Mishra, Sri S. Hasnain

Counsel for the Respondents:
Sri V.K. Nagaich(S.C.), Sri Amit Kumar, Sri R.N.
Singh, Sri R.N. Singh, Sri S.N. Singh

A. Civil Law -Civil Procedure Code,1908Section
11-Res-judicata-Judgment
of
Revenue Court in appeal while remanding
matter to Court of first instance in suit
filed by plaintiff u/s 229-B, operating as
res judicata in present suit for injuction
about nature of land does not ariseJudgment of Addl. Commissioner in
appeal arising from declaratory suit earlier
instituted by plaintiff is res judicata
between plaintiff and defendants on point
422 INDIAN LAW REPORTS ALLAHABAD SERIES
alone that suit property had a pajawa on it
and was, therefore not land within the
meaning of Section 3(5) of Consolidation
Act-It is for this reason that Addl.
Commissioner held that suit would not be
barred by section 49 of Consolidation ActNevertheless,
Additional
Commissioner
remanded suit for trial afresh setting aside
decree of Trial Court, dismissing it on
decision of a preliminary issue about bar
u/s 49-Finding of Addl. Commissioner
recorded in order of remand is only that
land is not one that could be consolidated
in a chak, as it was not cultivable-Addl.
Commissioner did not hold that Pajawa
was a building as envisaged u/s 9 of Act-If
he had done so, he would have dismissed
suit or directed a return of plaint for
presentation to Civil Court-Remand of suit
by Addl. Commissioner shows that though
he found pajawa to be a structure that
rendered suit property not 'land' within
meaning of section 3(5) of C.H. Act so as
to attract bar of Section 49, he still
thought
that
Revenue
court
had
jurisdiction to try plaintiff's suit u/s 229-B
of Act, where plaintiff would have to prove
whether suit property had a building on it
within meaning of Section 9 of Act, so as
to lead to its settlement with him-Upon
remand, plaintiff ought to have pursued
suit before Revenue Court for purpose of
declaration of his title on plea that a
Pajawa was a building, settled with him
under section 9 of the Act on date of
vesting-But, plaintiff upon remand by
Commissioner
to
Assistant
Collector,
apparently
abandoned
cause
before
Revenue Court and instituted present suit
before Civil Court, and that too, for an
injunction
simplicitor-Principle
of
res
judicata will not be applicable.(Para 1 to
66)

The appeal is dismissed. (E-6)

List of Cases cited:
1. Jharkhand St. Housing Board Vs Didar Singh
& ors. (2019) 17 SCC 692

2. Anathula Sudhakar Vs P. Buchi Reddy (Dead)
by LRs & ors. (2008) 4 SCC 594
3.
Kayalulla
ParambathMoidu
Haji
Vs
NamboodiyilVinodan (2021) 6 AWC 5651 (SC).

4. T.V Ramakrishna Reddy Vs M. Mallappa &
anr. (2021) AIR SC 4293

5. Triloki Nath Vs Ram Gopal & ors. 1974 RD 5

6. Ghanshiam Das Vs Dabi Prasad & anr. (1966)
SC 1998

7. Nawand Ram & anr. Vs Gaon Samaj Rura &
anr. (1961) ALJ 910

8. Devi Prasad Vs Ghanshiam Dass& anr. (1960)
SCC OnLine All 150

9. Ghanshiam Das Vs Debi Prasad

(Delivered by Hon'ble J.J. Munir, J.)

This is a plaintiff's appeal arising out
of a suit for permanent prohibitory
injunction.

2. Original Suit No. 441 of 1979 was
instituted by Irshad Ahmad against the
State of U.P., represented by the Collector,
Muzaffar Nagar and the Town Area
Committee, Burhana, District Muzaffar
Nagar, represented by its Secretary, praying
for a permanent injunction to the effect that
the
defendants
be
forbidden
from
interfering with the plaintiff's peaceful
possession in the suit property perpetually.

3. The facts giving rise to the appeal
are these:

Irshad Ahmad (for short, 'the plaintiff')
instituted a suit before the Munsif of
Muzaffar Nagar with a case that he had his
Pajawa (an indigenous brick-kiln), located
in Khasra No. 3299, admeasuring 1 bigha 8
biswa and Khasra No. 3300, admeasuring
10 biswa, situate in the Town and Tehsil
Burhana, District Muzaffar Nagar. The said
land was the plaintiff's ancestral property,
2 All. Irshad Ahmad Vs. State of U.P. & Anr.
423
that was included in Khewat No. 19, Mahal
Abdul Alam. The said property shall
hereinafter be called 'the suit property'. It is
the plaintiff's case that the Pajawa is situate
in the suit property since a very long time,
and, is recorded as such, in the revenue
records. In Khasra No. 3299, the plaintiff's
great grandfather had got a pucca well
sunk, that bears a stone engraving of his
name. The suit property does not fall within
the definition of land envisaged under
Section 3(14) of the Uttar Pradesh
Zamindari Abolition and Land Reforms
Act, 1950 (for short, 'the Act').

4. In the days gone by, land of Khasra
No. 3299 was cultivated and in order to
irrigate the land, the well last mentioned
was sunk. The State of U.P., represented by
the Collector, Muzaffar Nagar and the
Town
Area
Committee,
Burhana,
hereinafter referred to as 'defendant Nos. 1
and 2, respectively, have neither title nor
possession to the suit property and it is the
plaintiff, who is in possession of the same.
It is the plaintiff's case that without any
right, defendant Nos. 1 and 2 want to
interfere with the plaintiff's peaceful
possession in the suit property. The plaintiff
instituted a declaratory suit under Section
229-B of the Act, but the suit property
being not land within the definition of
Section 3(14) of the Act, the suit was
dismissed.

5. The plaintiff questioned the Trial
Court's judgment vide Appeal No. 303 of
1978 preferred to the Commissioner of the
Division. The Commissioner by his order
dated 27.04.1979 remanded the suit for
trial. It was held that the suit property was
not land under Section 3(5) of the Uttar
Pradesh Consolidation of Holdings Act,
1953 (for short, ''the Consolidation Act'),
and, therefore, the provisions of the said
Act, are not attracted, including those of
Section 49. It is in these circumstances, the
plaintiff says that he instituted a suit for
injunction before the Civil Court. It is also
the plaintiff's case that he served two
notices dated 09.05.1979 upon defendant
Nos. 1 and 2 and these were served on
15.05.1979.

6. About defendant Nos. 3 to 10 to the
suit, who are not parties to this appeal, for
reasons that will shortly be indicated, it was
averred that the said defendants have no
right in the suit property. It was also
averred that defendant Nos. 3 to 10 have
executed a conveyance of sorts, called a
dastbardari of their share in the plaintiff's
favour, who are now owners of the entire
suit property. It may be remarked that there
is no relief by way of injunction claimed
against defendant Nos. 3 to 10. It is lastly
averred by the plaintiff that defendant Nos.
1 and 2 are, despite the plaintiff's asking,
persistent in their endeavour to take
forcible possession of the suit property and
interfering with his peaceful possession.

7. Defendant Nos. 1 and 2 have filed a
joint written statement. It is their case that
the plaintiff has instituted the suit stating
incorrect
facts.
According
to
these
defendants, the suit property is vacant for
the last 30 years and banjar in character.
Neither the plaintiff nor anyone else has a
Pajawa located there. The suit property is
not in the plaintiff's possession. It is the
defendants' case that there was no Pajawa
situate in the suit property, either on the
date of vesting under the Act or thereafter.
The suit property was vacant and barren
(banjar), and, therefore, under the law,
defendant Nos. 1 and 2 are owners thereof.
It is the defendants' objection that the
plaintiff has not pleaded as to how he got
title to the suit property. Therefore, the suit
424 INDIAN LAW REPORTS ALLAHABAD SERIES
is not maintainable. The plaintiff is not in
possession of the suit property. As such, the
suit is barred by Sections 34, 38 and 41 of
the Specific Relief Act, 1963. The Civil
Court has no jurisdiction to try the suit.
Defendant Nos. 1 and 2 have prayed that
the suit be dismissed with special costs.

8. Defendant Nos. 1 and 2 have filed
an additional written statement, where they
have come up with a case that neither the
plaintiff nor defendant Nos. 3 to 10 have
any right in the suit property nor have they
been holders of its title ever in the past. It is
averred that the suit property is recorded in
the revenue records as Pajawa and banjar.
Defendant Nos. 1 and 2 are owners in
possession of the suit property. At the time
of abolition of zamindari, there was no
Pajawa and on the date of vesting, the said
property was vacant and barren (banjar).
The defendants have, therefore, urged that
the suit be dismissed with costs.

9. A separate written statement was
put in on behalf of defendant Nos. 3 to 10,
bearing paper No. 83-Ka. It is the said
defendants' case that the suit property was
originally owned by one Noor Mohammad,
a common ancestor of the plaintiff and
defendant Nos. 3 to 10. As such, defendant
Nos. 3 to 10 are co-sharers and co-owners
in possession of the suit property along
with the plaintiff. These defendants have
taken a stand that they have never executed
any kind of a conveyance of their share in
the plaintiff's favour. They are, therefore,
entitled to their share in the suit property in
accordance with law. In the year 1974, the
plaintiff asked defendant Nos. 3 to 10 to
institute a suit regarding the suit property.
For the purpose, the plaintiff came over to
the said defendants and obtained their
signatures on some papers. He secured their
signatures on a blank paper as well. It was
represented that the signatures of defendant
Nos. 3 to 10 were required for the purpose
of instituting a suit to secure the parties'
rights in the suit property. It is also the case
of defendant Nos. 3 to 10 that a later
inspection of the record revealed that the
plaintiff had defrauded them. Behind their
back, the plaintiff has got his exclusive
rights recorded in the suit property.

10. On the pleadings of parties, the
Trial Court framed the following issues
(translated into English from Hindi):

"1. Whether the plaintiff is the owner
in possession of the property in dispute? If
yes, its effect?

2. Whether the provisions of the U.P.
Z.A. & L.R. Act apply to the property in
dispute as described in the plaint? If not, its
effect?

3. Whether the suit is barred by
Section 80 CPC and Section 106 of the
Transfer of Property Act?

4.
Whether
the
suit
has
been
undervalued
and
the
court-fee
paid
insufficient?

5. Whether the Court has jurisdiction
to try the suit?

6. Whether the suit is barred by
Sections 34, 38 and 41 of the Specific
Relief Act?

7. To what relief is the plaintiff
entitled?

8. Whether defendant Nos. 3 to 10
hold title to the suit property? If yes, its
effect?"

11. The Trial Court found for the
plaintiff on Issues Nos. 1 and 2. Issue No. 3
was not pressed on behalf of defendant
Nos. 1 and 2, and, therefore, decided in the
plaintiff's favour. Issue No. 4, which relates
to valuation and the proper court-fee
payable, was disposed of vide order dated
2 All. Irshad Ahmad Vs. State of U.P. & Anr.
425
25.04.1980, that was made part of the
judgment. There is nothing decided against
the plaintiff by the Trial Court in answering
the said issue. Issue No. 5 also appears to
have been decided earlier, and apparently,
in the plaintiff's favour. So far as Issue No.
6 is concerned, the defendants did not
address the Court on it and it was,
therefore, decided against them. So far as
Issue No. 8 is concerned, it was decided in
favour of defendant Nos. 3 to 10 and
against the plaintiff holding that they were
co-sharers in the suit property and also
managing the Pajawa therein. The suit
property was held to be ancestral and
inherited by all.

12. On these findings, the Trial
Court decreed the suit against defendant
Nos. 1 and 2, injuncting them from
interfering with the peaceful possession
of the plaintiff and defendant Nos. 3 to 10
in the suit property.

13. The Trial Court's decree was
appealed by defendant Nos. 1 and 2 vide
Civil Appeal No. 81 of 1981. The
plaintiff also appealed the Trial Court's
decree vide Civil Appeal No. 70 of 1981,
assailing the findings recorded on Issue
No. 8 inter se the plaintiff and defendant
Nos. 3 to 10.

14. It appears that the two civil
appeals
were
assigned
to
the
8th
Additional
District
Judge,
Muzaffar
Nagar. So far as Civil Appeal No. 70 of
1981
is
concerned,
there
was
a
compromise between the plaintiff and
defendant Nos. 3 to 10, with the said
defendants acknowledging the plaintiff's
possession in the suit property. A formal
compromise was filed and verified. Civil
Appeal No. 81 of 1981 was, however,
heard and determined on merits.

15. The Lower Appellate Court
decided both the appeals by a common
judgment but separate decrees dated
21.09.1984, whereby Civil Appeal No. 70
of 1981 preferred by the plaintiff was
disposed of in terms of the compromise,
whereas Civil Appeal No. 81 of 1981
preferred by defendant Nos. 1 and 2 was
allowed, the Trial Court's judgment set
aside and the suit dismissed.

16. Aggrieved, the plaintiff has
instituted the present second appeal.

17. The appeal was admitted to
hearing on 31.10.1984 by this Court by a
reference made to Substantial Questions of
Law Nos. 2, 5 and 6, as mentioned in the
memo of appeal. These questions were not
formulated.
This
Court
before
commencement
of
hearing,
however,
recorded the aforesaid questions in the
order dated 22.04.2022, whereon the appeal
was admitted. It must be clarified here that
in the order dated 22.04.2022, the questions
mentioned at serial No. 4 was not one of
the questions on which the appeal was
admitted vide order dated 31.10.1984. To
that extent, the order dated 22.04.2022
must be taken to be corrected. This Court
must record that before proceeding with the
hearing on 22.04.2022, we formulated
another three substantial questions of law,
numbered as 5, 6 and 7. If the seriatim of
these questions were corrected, considering
that Question No. 4 mentioned in the order
dated 22.04.2022 was never regarded as
one of the substantial questions of law
involved, there would be a reduction in
serial number of questions after Substantial
Question Law No. 3 by one. However, for
the ease of reference, substantial questions
of law would be dealt with going by the
serial
number
in
the
order
dated
22.04.2022. Of course, Question No. 4
426 INDIAN LAW REPORTS ALLAHABAD SERIES
would not at all be referred to or set out in
this judgment.

18. It is also imperative to notice that
after the hearing had proceeded on
22.04.2022 and 29.04.2022, and resumed
on 05.05.2022, it was found by this Court
that one more substantial question of law
was required to be formulated. It was,
accordingly, formulated and recorded in the
order dated 05.05.2022.

19.

The
following
substantial
questions of law were formulated in this
appeal:

1. Whether the land in dispute being
entered as Pajawa in the revenue records of
1359 Fasli and much before that, a fact
proved by documentary evidence of the
appellant as also the admission made by the
respondents, the property in dispute could be
said to be "land" within the meaning of
Section 3(4) of U.P. Act 1 of 1951?

2. Whether the lower appellate court
committed an error apparent in making an
observation that in the suit under Section
229-B of the Act, the Town Area Committee
was not a party?

3. Whether the judgment rendered in
Suit no.6 under Section 229-B U.P.Z.A &
L.R. Act, would operate as res judicata so
far as the question of the nature of property
in dispute is concerned.?

5. Whether the lower appellate Court
entered into an irrelevant issue as to the
nature of the land subsequent to the
enforcement of U.P. Act 1 of 1951?

6. Whether the lower appellate Court
has ignored the material part of the
testimony of the plaintiff appellant that
Pajawa was different from a brick kiln
which did not oblige him by law to take out
a licence from Zila Parishad to establish
and run it?

7. Whether a suit for permanent
injunction forbearing the defendant from
interfering with the plaintiff's possession
can be decided without framing an issue
regarding actual physical possession of
parties?

8. Whether in a case where the
plaintiff's title is under a cloud, it is
imperative to sue for declaration and a suit
for injunction simplicitor would not be
maintainable?

20. At the hearing of this appeal, that
has continued across a number of days, the
parties have advanced their submissions on
Substantial Questions of Law Nos. 2, 3 and
8, and not on the others. This appeal was,
accordingly,
heard
on
the
aforesaid
substantial questions of law. It must also be
recorded that pending this appeal, the
plaintiff passed away and his heirs and
LRs, who are appellant Nos. 1/1, 1/2, 1/3
and 1/4 to the appeal, were substituted in
accordance
with
the
order
dated
06.02.2014. These heirs and LRs of the
plaintiff too shall be referred to in this
judgment as 'the plaintiff'.

21. Heard Mr. Arpit Agrawal, learned
Counsel appearing on behalf of the
plaintiff,
Mr.
V.K.
Nagaich,
learned
Standing Counsel appearing on behalf of
defendant No.1 and Mr. Amit Kumar,
learned Counsel appearing on behalf of
defendant No.2.

Findings of the Trial Court

22. The findings of the Trial Court on
which the event turned are those recorded
on Issues Nos. 1 and 2. The Trial Court
considered the evidence of PW-2 and PW-3
to hold that these persons had spoken
convincingly in their testimony that there
was a Pajawa on the suit property. It has
2 All. Irshad Ahmad Vs. State of U.P. & Anr.
427
been remarked that PW-2 has testified to
the effect that he had bought bricks made in
the plaintiff's Pajawa, and further, that the
witness had personal knowledge about the
existence of this Pajawa for the past 50
years that he had seen being worked by the
plaintiff's ancestors. PW-2's testimony was
also noticed about the existence of the well
in Khasra No. 3299, part of the suit
property with the name of the plaintiff's
ancestors engraved thereon. The testimony
of PW-2 has also been noticed as one
supporting the plaintiff's stand, crediting
the witness with impartiality, because he
belonged to a different village. The Trial
Court also took into consideration Ex. 4 - a
copy of the Khatauni for the Fasli Years
1383-1386 and another document, Ex. 5,
being a Khasra for the Fasli Year 1357.
Another document considered was Ex. 6,
being a copy of the Khasra for the Fasli
Year 1325. Still another document that was
considered is a copy of the Khasra for the
Fasli Year 1357. This document does not
appear to have been exhibited. There is a
reference to paper Nos. 56-C to 66-C
without any reference being there in the
Trial
Court's
judgment
about
the
description or the character of these
documents and how they precisely bear on
the issue.

23. From all this evidence -
documentary and oral, the Trial Court drew
an inference that the suit property has been
utilized as a Pajawa since long. The Trial
Court also took note of the fact that despite
denial by defendant Nos. 1 and 2, the
Additional Collector, in proceedings for
correction of records, had directed the
nature of the plot on the basis of reports of
the Lekhpal and the Supervisor Kanoongo
to be recorded as Pajawa. The Trial Court
has observed that the revenue entry, which
was made under the Additional Collector's
orders, may not be conclusive about the
nature of the land, but it was weighty
evidence, which could be dislodged if the
defendants produced evidence in rebuttal.

24. The Trial Court noted that
defendant Nos. 1 and 2 did not produce any
convincing evidence to displace what the
Additional Collector had directed to be
recorded. There is also a remark by the
Trial Court that considering the statements
of the defendants' witness, Prem Chand, it
appears that he had never seen the suit
property. The witness was a Secretary of
the Town Area Committee, who held the
post since the year 1980. The Trial Court
opined that it is for the said reason that the
witness had deficient knowledge about the
suit property. The other witness examined
on behalf of the defendants, Ram Chand
was an employee of the Town Area
Committee and has said that he had seen
one Devi Sahai work a Pajawa on the suit
property. The Trial Court has remarked that
there is no such case, about which the
witness has spoken. In these circumstances,
the Trial Court answered Issue No. 1 in the
plaintiff's favour.

25. Regarding Issue No 2, the Trial
Court for the most part examined whether a
Pajawa would fall in the definition of a
''building', so that upon enforcement of the
Act, the building vested in the erstwhile
Zamindar, that is to say, the plaintiff's
ancestor. The Trial Court looked into the
law relied upon by defendants Nos. 1 and 2
to say that Pajawa would not be a building
unless there is a boundary wall on all sides,
covered by a roof. The Trial Court held that
the decision relied upon by defendant No. 1
reported in 1966 RD 310 did not help the
said defendant's case, because it only
defined a building and never dealt with the
case of a Pajawa. In the opinion of the
428 INDIAN LAW REPORTS ALLAHABAD SERIES
Trial Court, the site of the Pajawa would
not vest in the State, but settle with the
Zamindar, to wit, the plaintiff's ancestor.

26. It is primarily on these findings
that the Trial Court decreed the suit.

Findings of the Lower Appellate
Court

27. The Lower Appellate Court in
writing its judgment of reversal has also
dealt with Issue Nos. 1 and 2 albeit without
formally framing points for determination.
Virtually, the Lower Appellate Court has
treated the issues as points to be dealt with.
The case of parties has been substantially
considered by the Lower Appellate Court
while reversing the findings of the Trial
Court.

28. The Lower Appellate Court after
noticing the Trial Court's findings has
looked into the documentary evidence. It
has been remarked that Khasra No. 3300
was earlier numbered as 3776 and Khasra
No. 3299 was formerly 3797. In 1295 Fasli,
the Khasra shows that in Plot No. 3300 (as
currently numbered) Pajawa is recorded
and likewise in 1325 Fasli in the Khasra
relating to Plot No. 3300, the entry showing
Pajawa is there. Again in Fasli Year 1325,
in the copy of the Khasra bearing paper No.
30-Ga, the same entry is shown. The last
document noticed is the Khasra of Plot No.
3300 for the Fasli Years 1383-1386, where
too Pajawa is shown. It is remarked that
either in 1295 Fasli or 1325 Fasli, nowhere
in Naksha Aabpashi (record of irrigation)
and in the Khasra for the year 1386 Fasli,
paper No. 78-Ga, Pajawa is recorded.
Instead, the Lower Appellate Court has
remarked that in Khasra No. 3299, banjar is
recorded, which supports the stand of
defendant No. 1.

29. The Lower Appellate Court has
then gone on to remark that in Khasra No.
3300, the Trial Court has accepted the
existence of Pajawa going by documentary
evidence alone, and, therefore, the oral
evidence on the point is also required to be
considered. What a Pajawa is, has also been
commented upon by the Lower Appellate
Court to opine that it is a place, where
bricks are moulded. It has been held by the
Lower Appellate Court that it is incorrect to
say, therefore, that the plaintiff was
carrying on the work of a brick-kiln.

30. The Lower Appellate Court has
considered the testimony of the plaintiff in
the witness-box, where he testified as PW1. It is noted that this witness has said that
there was a brick-kiln in the suit property
for the past 30 years. It is also remarked
that PW-1 has also testified that those
running a Pajawa or brick-kiln had to take
out licences from the Zila Parishad, which
is an annual licence issued on deposit of a
fee. The plaintiff, however, has not brought
on record any licence relating to the
Pajawa. There is also a reference to the
plaintiff's testimony, where he said that
some 6-7 years ago, a licence was taken out
on payment of Rs. 10/- in fee to the Zila
Parishad, but no receipt or a copy of the
licence was issued. A copy of the licence as
aforesaid, the witness admitted, was not
produced in evidence.

31. The Lower Appellate Court has
observed that the above evidence shows
that for establishing and running a Pajawa
or any kind of brick manufacturing work, a
licence has to be taken out, granted by the
Zila Parishad, but no such licence has been
produced by the plaintiff. It is also
remarked that the evidence of the plaintiff,
where he says that he paid the requisite
licence fee, cannot be believed in the
2 All. Irshad Ahmad Vs. State of U.P. & Anr.
429
absence of a receipt. The Lower Appellate
Court
has
disbelieved
the
plaintiff's
explanation about non-production of the
receipt holding that what the plaintiff said
on the issue is unbelievable. The plaintiff's
explanation for non-production of the
receipt was that no receipt was issued by
the Zila Parishad. This explanation was not
accepted by the Lower Appellate Court.

32. The Lower Appellate Court has
also frowned upon the fact that the plaintiff
did not produce a copy of the annual
licence for running the Pajawa, a fact about
which it is remarked that the licence would,
if produced, establish the plaintiff's case
about the suit property being used as a
Pajawa. The Lower Appellate Court has
then reasoned further that if for argument's
sake it be accepted that the plaintiff was
running a brick-kiln, its registration with
the Sales Tax Department is imperative;
and for the purpose, a definitive procedure
is there. The plaintiff has not produced any
registration with the Sale Tax Department
or other document that may substantiate the
existence of a Pajawa in the suit property.

33. The oral evidence of the other
witnesses has also been commented upon by
the Lower Appellate Court to opine that they
have given different lengths of time, during
which the Pajawa was functional. Their
testimony has been found to be contradictory
and irreconcilable; and for the said reason not
worth credence. The Lower Appellate Court
has observed that the testimony does not
show the establishment or existence of the
Pajawa and if that is the case, the suit
property would be vacant land. In the Khasra
for the Fasli Years 1383-1386, paper No. 28Ga, Khasra No. 3299 has been recorded as
banjar, which supports the case of defendant
Nos. 1 and 2 in the opinion of the Lower
Appellate Court.

34. On a meticulous examination of
oral and documentary evidence, the Lower
Appellate Court has disagreed with the
findings of the Trial Court on Issue No. 1 and
held that the plaintiff is not the owner of the
suit property and there is no Pajawa in
existence there.

35. As regards the findings on Issue No.
2, the Lower Appellate Court has held that
land, that is used for agriculture, horticulture,
animal husbandry or poultry farm, falls
within the definition of land under the Act. It
is remarked that there is no evidence on
record that may suggest that the suit property
was used for agriculture purposes. The
logical inference, according to the Lower
Appellate Court, is that it is banjar and under
the Act would vest in the State. In the opinion
of the Lower Appellate Court, the suit
property has not been used for agriculture
purposes nor was there any house or building
standing thereon. Therefore, the plaintiff is
neither the owner nor the bhumidhar of the
suit property. In the opinion of the Lower
Appellate Court, the suit property would vest
in the State under the Act. The findings of the
Trial Court on Issue No. 2 were, therefore, set
aside and the said issue answered in favour of
defendant Nos. 1 and 2.

36. The Lower Appellate Court, on
the basis of these findings, reversed the
decree passed by the Trial Court.

Substantial
Questions
of
Law
requiring consideration and their order

37.

Before
considering
the
submissions on behalf of the parties by the
learned Counsel, this Court considers it
appropriate to say that though the learned
Counsel for parties have addressed the
Court on three out of the seven substantial
questions of law formulated, to wit,
430 INDIAN LAW REPORTS ALLAHABAD SERIES
Questions Nos. 2, 3 and 8, this Court is of
opinion that it would be convenient and
logical to answer Substantial Question of
Law No. 8 first in order, and then the other
two.

Substantial Question of Law No. 8

38. The learned Counsel for the
plaintiff has submitted that it is not a case
where the suit can be said to be not
maintainable,
because
the
relief
of
declaration has not been sought and instead
an injunction alone claimed. It is argued by
the learned Counsel for the plaintiff that
this is a plea, which had not been taken on
behalf of defendant Nos. 1 and 2 before the
Courts below and raised here for the first
time, and that too at the hearing of the
appeal. It is argued that the decision of the
Supreme Court relied upon on behalf of
defendant Nos. 1 and 2 in Jharkhand
State Housing Board v. Didar Singh and
others, (2019) 17 SCC 692 , would not
apply to the facts of the case here. It is
further argued that the principle laid down
in Anathula Sudhakar v. P. Buchi Reddy
(Dead) by LRs and others, (2008) 4 SCC
594, also relied on behalf of defendant Nos.
1 and 2, provides for an exception to the
Rule about the imperative to seek a
declaration, which is precisely the case
here. Learned Counsel for the plaintiff has
drawn the Court's attention to Paragraph
No. 15 of the report in Anathula
Sudhakar (supra), which reads:

"15. In a suit for permanent injunction
to restrain the defendant from interfering
with the plaintiff's possession, the plaintiff
will have to establish that as on the date of
the suit he was in lawful possession of the
suit property and the defendant tried to
interfere or disturb such lawful possession.
Where the property is a building or
building with appurtenant land, there may
not be much difficulty in establishing
possession.
The
plaintiff
may
prove
physical or lawful possession, either of
himself or by him through his family
members or agents or lessees/licensees.
Even in respect of a land without
structures, as for example an agricultural
land, possession may be established with
reference to the actual use and cultivation.
The question of title is not in issue in such
a suit, though it may arise incidentally or
collaterally."

39. It is next submitted on behalf of
the plaintiff that in Didar Singh (supra),
the Supreme Court carved out an exception
to the Rule about the imperative for seeking
a declaration, holding:

"11. It is well settled by catena of
judgments of this Court that in each and
every case where the defendant disputes the
title of the plaintiff it is not necessary that
in all those cases plaintiff has to seek the
relief of declaration. A suit for mere
injunction does not lie only when the
defendant raises a genuine dispute with
regard to title and when he raises a cloud
over the title of the plaintiff, then
necessarily in those circumstances, plaintiff
cannot maintain a suit for bare injunction."

40. It is submitted by the learned
Counsel for the plaintiff further that on
their pleaded case and the evidence led,
defendant Nos. 1 and 2 could not raise a
cloud
over
the
plaintiff's
otherwise
unimpeachable title and the plaintiff has
also proved his possession along with title
by documentary as well as oral evidence,
that was duly considered by the Trial Court.
However, the Lower Appellate Court
overturned the judgment of the Trial Court
on a perverse reasoning. Further, reliance
2 All. Irshad Ahmad Vs. State of U.P. & Anr.
431
has been placed on behalf of the plaintiff on
the decision of the Supreme Court in
Kayalulla Parambath Moidu Haji v.
Namboodiyil Vinodan, 2021 (6) AWC
5651 (SC), where it has been observed:

"11. The issue is no more res integra.
The position has been crystalised by this
Court in the case of Anathula Sudhakar
(supra) in paragraph 21, which read thus:--

"21. To summarise, the position in
regard to suits for prohibitory injunction
relating to immovable property, is as under:

(a) x x x

(b) As a suit for injunction simpliciter
is
concerned
only
with
possession,
normally the issue of title will not be
directly and substantially in issue. The
prayer for injunction will be decided with
reference to the finding on possession. But
in cases where de jure possession has to be
established on the basis of title to the
property, as in the case of vacant sites, the
issue of title may directly and substantially
arise for consideration, as without a finding
thereon, it will not be possible to decide the
issue of possession.

(c) But a finding on title cannot be
recorded in a suit for injunction, unless
there
are
necessary
pleadings
and
appropriate issue regarding title (either
specific,
or
implied
as
noticed
in
Annaimuthu Thevar [Annaimuthu Thevar
v. Alagammal, (2005) 6 SCC 202]).
Where the averments regarding title are
absent in a plaint and where there is no
issue relating to title, the court will not
investigate or examine or render a finding
on a question of title, in a suit for
injunction.
Even
where
there
are
necessary pleadings and issue, if the
matter involves complicated questions of
fact and law relating to title, the court
will relegate the parties to the remedy by
way
of
comprehensive
suit
for
declaration of title, instead of deciding
the issue in a suit for mere injunction.

(d)
Where
there
are
necessary
pleadings regarding title, and appropriate
issue relating to title on which parties
lead evidence, if the matter involved is
simple and straightforward, the court may
decide upon the issue regarding title,
even in a suit for injunction. But such
cases, are the exception to the normal
rule that question of title will not be
decided in suits for injunction. But
persons having clear title and possession
suing for injunction, should not be driven
to the costlier and more cumbersome
remedy of a suit for declaration, merely
because some meddler vexatiously or
wrongfully makes a claim or tries to
encroach upon his property. The court
should use its discretion carefully to
identify cases where it will enquire into
title and cases where it will refer to the
plaintiff
to
a
more
comprehensive
declaratory suit, depending upon the facts
of the case."

12. It could thus be seen that this
Court in unequivocal terms has held that
where the plaintiff's title is not in dispute or
under a cloud, a suit for injunction could be
decided with reference to the finding on
possession. It has been clearly held that if
the matter involves complicated questions
of fact and law relating to title, the court
will relegate the parties to the remedy by
way of comprehensive suit for declaration
of title, instead of deciding the issue in a
suit for mere injunction.

13. No doubt, this Court has held that
where
there
are
necessary
pleadings
regarding
title
and
appropriate
issue
relating to title on which parties lead
evidence, if the matter involved is simple
and straightforward, the court may decide
upon the issue regarding title, even in a suit
for injunction. However, it has been held
432 INDIAN LAW REPORTS ALLAHABAD SERIES
that such cases are the exception to the
normal rule that question of title will not be
decided in suits for injunction."

41. On the basis of the aforesaid
principles, it is submitted by the learned
Counsel for the plaintiff that the suit
property here is a 'Pajawa' and 'well', that is
a constructed building, and, as such, 'actual
possession' was required to be looked into.
But, the Lower Appellate Court had not
given any finding regarding possession. It
is submitted that the principle in Kayalulla
Parambath Moidu Haji as well as that in
Didar Singh and Anathul Sudhakar
would apply, if it is a case where the
defendants had proved their title or
substantially cast a cloud over the plaintiff's
title. Else, there is absolutely no necessity
of seeking a declaration and the case would
fall in the exception where the relief of
injunction alone would suffice.

42. It is next argued that even if a
question of title is involved, the principle in
Paragraph No. 13 of the report in
Kayalulla Parambath Moidu Haji clearly
shows that where an issue relating to title
has been raised and parties have led
evidence, the Court may decide the issue
about title even in a suit for injunction. It is
submitted by the learned Counsel for the
plaintiff that if nothing else, the principle in
Paragraph No. 13 of the report in
Kayalulla Parambath Moidu Haji would
apply. It is further argued that in this case,
there are sufficient pleadings and evidence
to enable the Court to go into the question
of the plaintiff's title to the suit property,
and the Courts below have recorded finding
regarding title. The case is simple and
straightforward, which can be decided in
this suit without the necessity of a
declaratory relief. It is particularly argued
that documentary evidence in this case was
illegally weeded out in the record room of
the District Court, even though the present
second appeal was pending hearing. The
extract of revenue records filed on behalf of
the plaintiff have also been weeded out and
no revenue records are available as on date.
It is urged that at this distance of time, no
purpose would be served by a remand. It is
also argued that the plaintiff has been
dispossessed by defendant Nos. 1 and 2
without following the procedure prescribed
by law, that is to say, the procedure
envisaged under Section 67 of the U.P.
Revenue Code, 2006 or its corresponding
provision in Section 122-B of the Act. The
unauthorized eviction of the plaintiff is also
patently illegal and unjust.