# Ishlam v. State of U.P. & Ors

- **Citation:** (2023) 1 ILRA 1079
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-02
- **Case number:** Second Appeal No. 172 of 2021
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ishlam-v-state-of-u-p-ors-49568
- **Pages:** 21

## Headnote

Civil Law- Civil Procedure Code, 1908 -
Sections 100 & 331 - Order VII Rules 11, -
UP Panchayat Raj Act,1947 - Section 106,
- Wakf Act, 1995 - Sections 85 & 85-A, -
Constitution of India, 1950 -Articles 226
& 227 - UP Zamindari Abolition and Land
Reforms Act,1950 - Sections 122-B, 122B(3), 122-B(4-A), 122-B (4-D), 122-B(4E), 122-B(4-F), 229-B(1), 229-B(2) &
229-B(3)- Second Appeal - arising out of a
suit for declaration and permanent injunction -
jurisdiction - held, if the court below finds that it
has no jurisdiction to try the suit and the suit as
framed can be tried by the court of competent
jurisdiction, which is a Revenue Court, the Civil
Court ought not to dismissed the suit in fact,
issues on the merits of a party's case may not at
all be gone into if the Civil Court thinks that the
suit is not cognizable by it, but by the Revenue
Court in view of the provisions of Section 331 of
1080 INDIAN LAW REPORTS ALLAHABAD SERIES
the Act - Appeal allowed in part- directions,
accordingly. (Para - 57, 59)

Second Appeal Allowed in part. (E-11)

List of Cases cited:

## Text

_Characters 0–39,929 of 74,252. This is a partial read: ask again with offset=39929 for what follows._

1 All. Ishlam Vs. State of U.P. & Ors.
1079

33. In another judgement of the Apex
Court relied upon by the learned counsel
for the appellants in Civil Appeal No.500
of 2022 decided on 20.09.2022, the Apex
Court was considering a case where the
original plaintiff/respondent instituted a suit
for a decree of cancellation of the
registered sale deed executed by the
original plaintiff. The suit has been
instituted in the year 2015/2016 i.e., after
about a period of 10 years from the date of
execution of the registered sale deed. The
suit was instituted on the ground that the
sale deed has been got executed by fraud
and misrepresentation and the plaintiffs
signed the said documents believing or
treating it as a joint venture agreement and
the plaintiffs did not go through the
contents of the said documents and as in
the year 2015, they came to know about
such fraud and obtaining the documents of
the
sale
deed
by
misrepresentation,
therefore, considering Section 17 of the
Act, the said suit cannot be said to be
barred by limitation. In the said case, the
Apex Court while considering the import of
the pleading in the plaint of the suit found
that only bald averments have been made
with regard to the fraud and in such factual
backdrop, the Apex Court held that mere
stating in the plaint that fraud has been
played is not enough and the allegation of
fraud must be specifically averred in the
plain, otherwise merely by using the word
'fraud', the plaintiffs would try to get the
suits within the limitation, which otherwise
may be barred by limitation. So, this
judgment is also distinguishable on facts
and law enunciated in the said judgement in
the said judgment is not applicable in the
present case. Therefore, this judgment also
does not come in aid to the appellant.

34. Thus, for the reasons given above,
this Court does not find any illegality in the
order passed by the lower appellate court in
setting aside the order passed by the trial
Court rejecting the plaint on the ground of
limitation.

35. Accordingly, the appeal lacks
merit and is hereby dismissed with no order
as to costs.
----------
(2023) 1 ILRA 1079
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.01.2023

BEFORE

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

Second Appeal No. 172 of 2021

Ishlam ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Ramendra Asthana, Sri Vijay Kumar Ojha

Counsel for the Respondents:
Sri Devendra Dahma, Sri Girijesh Tripathi (S.C.)

Civil Law- Civil Procedure Code, 1908 -
Sections 100 & 331 - Order VII Rules 11, -
UP Panchayat Raj Act,1947 - Section 106,
- Wakf Act, 1995 - Sections 85 & 85-A, -
Constitution of India, 1950 -Articles 226
& 227 - UP Zamindari Abolition and Land
Reforms Act,1950 - Sections 122-B, 122B(3), 122-B(4-A), 122-B (4-D), 122-B(4E), 122-B(4-F), 229-B(1), 229-B(2) &
229-B(3)- Second Appeal - arising out of a
suit for declaration and permanent injunction -
jurisdiction - held, if the court below finds that it
has no jurisdiction to try the suit and the suit as
framed can be tried by the court of competent
jurisdiction, which is a Revenue Court, the Civil
Court ought not to dismissed the suit in fact,
issues on the merits of a party's case may not at
all be gone into if the Civil Court thinks that the
suit is not cognizable by it, but by the Revenue
Court in view of the provisions of Section 331 of
1080 INDIAN LAW REPORTS ALLAHABAD SERIES
the Act - Appeal allowed in part- directions,
accordingly. (Para - 57, 59)

Second Appeal Allowed in part. (E-11)

List of Cases cited:

1. Rajendra Singh Vs St. of U.P. & ors., 2008 (4)
ADJ 37 (DB),

2. Shiv Ram Vs St. of U.P. & ors., 2016(9) ADJ
366 (FB),

3. Kiran Devi Vs Bihar St. Sunni Wakf Board,
(2021) 153 RD 56,

4. Premlata @ Sunita Vs . Naseeb Bee & ors.,
(2022) 6 SCC 585,

5. Ramesh Gobindram (dead) through LRs Vs
Sugra Humayun Mirza Wakf, (2010) 8 SCC 726,

6. Punjab Wakf Board Vs Sham Singh Harike,
(2019) 4 SCC 698,

7. Sewak Shankar Vs Additional Collector, Agra &
ors., 1985 SCC OnLine All 165,

8. Shankar Saran & ors. Vs St. of UP & ors.
(1987 SCC OnLine All 235),

9. Bansraj & ors. Vs Moti & ors., 2019 SCC
OnLine All 4238.

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

1. This is a plaintiff's second appeal
arising out of a suit for declaration and
permanent
injunction.
The
plaintiffappellant's suit has been dismissed by both
the Courts below.

2. How could a man go without a
remedy against a summary determination
of his right to property, with no Court of
determinative jurisdiction hearing him, is a
question
of
the
most
fundamental
importance. It is this essential issue
involved in the appeal, which led this Court
to admit this appeal to hearing on two
substantial questions of law formulated on
one day and then add one more before
hearing
commenced.
The
following
substantial questions of law are involved in
this appeal:

1. Whether in view of the law laid
down by this Court in Rajendra Singh vs.
State of U.P. and others, 2008 (4) ADJ 37,
holding that the remedy against an order of
eviction under Section 122-B U.P.Z.A.&
L.R. Act is a suit, the present suit is
maintainable before the Civil Court?

2. Whether in a case where the Civil
Court finds that the suit is not cognizable
by
it
but
the
Revenue
Court,
the
appropriate order to make is one for return
of the plaint instead of dismissal of the
suit?

03. Whether in a case where an order
of eviction passed under Section 122-B of
the U.P.Z.A. & L.R. Act is challenged in
revision under Section 122-B(4-A) a suit
before the court of competent jurisdiction
under Section 122-B(4-D) would be barred
under Section 122-B (4-E) of the Act?

3. The facts giving rise to this appeal
are these: On 03.01.1993, according to the
plaintiff-appellant, Ishlam son of Chand
Khan (for short, 'the plaintiff', unless the
context requires a different reference), the
Halqa Lekhpal submitted a bogus report to
the Tehsildar, Bah saying that the plaintiff's
father, Chand Khan (now deceased) had
illegally
occupied
plot
No.
119/1
(Minjumla), admeasuring 1 bigha 10 biswa,
situate at Village Derakh, Pargana Bah,
District Agra. The Tehsildar, Bah drew
proceedings against the plaintiff's father
under Section 122-B of the Uttar Pradesh
Zamindari Abolition and Land Reforms
Act, 1950 (for short, 'the Act') and issued
notice to him on 09.01.1993, asking him to
show cause why an order of eviction etc. be
1 All. Ishlam Vs. State of U.P. & Ors.
1081
not made. The plaintiff's father submitted
his objections before the Tehsildar on
07.01.1994. The defence taken was that the
land aforesaid was his ancestral property, a
bhumidhari that had come to his hands
through his father. The plaintiff was in
possession of the land, subject matter of the
notice, as the bhumidhar thereof and that he
had not encroached any land of the Gaon
Sabha.

4. On 28.08.1995, the Halqa Lekhpal,
who
had
made
the
report
alleging
encroachment of Gaon Sabha land by the
plaintiff's
father,
testified
before
the
Tehsildar,
Bah
in
proceedings under
Section 122-B of the Act. The Tehsildar on
26.06.1997 proceeded to pass an order,
directing eviction of the plaintiff's father
from plot No. 119/2, whereas the notice to
show cause had been issued vis-a-vis plot
No. 119/1. The plaintiff's father challenged
the order of the Tehsildar dated 26.06.1997
in revision carried to the Collector of Agra
under Section 122-B (4-A) of the Act. The
Additional
Collector
(Administration),
Agra, before whom the revision came up,
dismissed it by an order dated 14.06.2001.
According to the plaintiff, the order of
eviction and its affirmation in revision are
absolutely illegal and beyond jurisdiction.
The plaintiff's father never encroached any
land of the Gaon Sabha. The notice under
Section 122-B (2) of the Act was based on
incorrect facts and proceedings drawn on
its basis were void.

5. The plaintiff asserted that his father
and his co-sharers were in possession of the
land, subject matter of the eviction
proceedings. The Lekhpal's report is not
proved by the evidence on record and the
order of the Tehsildar/ Assistant Collector,
Bah, District Agra, ordering the plaintiff's
eviction
and
obliging
him
to
pay
compensation is manifestly illegal and
without
basis.
The
plaintiff's
father
challenged the orders of eviction and its
affirmation in revision by the Collector by
means of Civil Misc. Writ Petition No.
37440 of 2001 before this Court. Pending
the writ petition, the plaintiff's father
passed away. The plaintiff then prosecuted
the writ petition. This Court dismissed the
writ petition on ground that the plaintiff
had an alternative remedy of filing a suit.
Accordingly, the plaintiff has proceeded to
institute the present suit. Pending suit, the
Gram Panchayat Derakh, Pargana Bah,
District Agra has proceeded to allot the
land, subject matter of proceedings, under
Section 122-B of the Act (for short, 'the suit
property') in favour of one Chhotey Khan
and another Munney Khan, both sons of
Shaukat Ali. These allottees were arrayed
as defendant Nos. 5 and 6 to the suit.

6. It was pleaded that the orders of the
Tehsildar/ Assistant
Collector
and
the
Additional Collector dated 26.06.1997 and
14.06.2001, respectively, were void. These
were made ex parte without affording any
opportunity of hearing. The suit was
instituted after service of notice under Section
80 CPC and Section 106 of the U.P.
Panchayat Raj Act, 1947, claiming a
declaration to the effect that the order dated
26.06.1997 passed by the Tehsildar/ Assistant
Collector and the order dated 14.06.2001
passed by the Additional Collector are null
and void and not binding upon the plaintiff. A
consequential relief by way of a permanent
injunction was claimed, restraining the
defendants from interfering in the plaintiff's
peaceful possession in the suit property or
forcibly dispossessing him in any manner
whatsoever

7. Two written statements were filed
in the suit. One was a joint written
1082 INDIAN LAW REPORTS ALLAHABAD SERIES
statement by defendant Nos. 1, 2 and 3,
who are respondent Nos. 1, 2 and 3 to this
appeal and the other by defendant Nos. 5
and 6, who are respondent Nos. 5 and 6
here. The Gaon Sabha who were arrayed as
defendant No. 4 to the suit and are
respondent No. 4 here, represented by the
Pradhan, do not appear to have filed a
written
statement.
The
defendantrespondents aforesaid shall hereinafter be
referred to as 'the defendants' according to
their position in the array of parties in the
plaint giving rise to the suit.

8. Defendant Nos. 1, 2 and 3 in their
written
statement
denied
the
plaint
allegations and asserted that the Lekhpal's
report of 3rd January, 1993 was one made
after doing a survey of plot Nos. 119/1 and
119/2 with reference to the measurement of
each of these. The Tehsildar had taken
proceedings under Section 122-B of the Act
strictly in accordance with law after issuing
notice to the plaintiff. The plaintiff's father
did not hold title to the suit property and
assertions to the contrary are incorrect. The
plaintiff's father had encroached upon plot
Nos. 119/1 and 119/2. The Tehsildar,
finding it to be a case of unauthorized
occupation, ordered the plaintiff's eviction.

9. It is further asserted that plot No.
119 of Village Derakh, Pargana Bah,
District Agra has a total area of 3 bigha.
There is no subdivision of plot No. 119 or a
partition thereof. Out of plot No. 119, an
area 1 bigha 10 biswa had been allotted to
defendant No. 5 and an identical area to
defendant No. 6. It is for the felicity of
demarcation of parts of the land of plot No.
119 between defendant Nos. 5 and 6, after
allotment in their favour, that there is a
mention made of plot Nos. 119/1 and
119/2. It is emphasized that formally and in
accordance with law, no subdivision or
partition of plot No. 119 has ever taken
place. It is the case of these defendants that
the plaintiff's father having been found to
be an unlawful occupant, had been
dispossessed and actual physical possession
delivered to defendant Nos. 5 and 6, who
are allottees of their respective parts of land
in plot No. 119. It is also the defendants'
case that the plaintiff's father or the other
co-sharers mentioned in plot No. 119 do
not have their lands near or adjoining the
said plot. According to the defendants, the
plaintiff incorrectly asserts that his father
was not given opportunity of hearing or to
lead evidence before the Tehsildar. The
defendants say that the plaintiff has
deliberately not shown the plot number of
his ancestral property in the plaint nor
annexed a plaint map, which may facilitate
identification of the land that the plaintiff
claims
to
be
his
ancestral
holding.
Defendant Nos. 5 and 6 have been allotted
land in plot No. 119, which is government
land under the management of the Land
Management Committee of Village Derakh.
The plaintiff or his co-sharers have no
right, title or interest in the suit property.
There is further detail carried in the written
statement jointly filed on behalf of
defendant Nos. 1, 2 and 3, but those may
not be very material.

10. Defendant Nos. 5 and 6 in their
joint written statement have denied the
plaintiff's allegations and asserted that the
plaintiff's father was an encroacher and in
unlawful occupation of the suit property.
He filed objections to the proceedings
under Section 122-B of the Act to protect
his unlawful possession. When land carved
out of plot No. 119 was allotted to
defendant Nos. 5 and 6, the two plots were
assigned plot Nos. 119/ 1 and 119/2.
Earlier, the plot bore a single number. The
plaintiff's father was never the recorded
1 All. Ishlam Vs. State of U.P. & Ors.
1083
tenure holder of the suit property and it is
not his ancestral holding. Rather, the
plaintiff's father had encroached upon Gaon
Sabha land and was in occupation thereof.
It is on this account that his eviction has
been ordered. The plaintiff's father was
given full opportunity of hearing. There is a
plea that this Court by virtue of order made
in the writ petition under reference had
never permitted or asked the plaintiff to file
a civil suit. The plaintiff has not instituted
the suit before the Court of competent
jurisdiction. Defendant Nos. 5 and 6 are in
possession of the suit property and, as such,
the plaintiff cannot be granted a permanent
prohibitory injunction. The jurisdiction of
the Civil Court to try the suit was
questioned and it was pleaded on behalf of
defendant Nos. 5 and 6 that the suit is
barred under Section 331 of the Act.

11. On the pleadings of parties, the
following issues were framed (translated
into English from Hindi):

"1.
Whether
the
order
dated
26.06.1997 passed by defendant No.3 and
the order dated 14.06.2001 passed by
defendant No.2 are void and illegal? If yes,
its effect?

2. Whether the suit is barred by the
principle of res judicata?

3. Whether the Court has jurisdiction
to try this suit?

4. Whether the suit is barred by the
provisions of Section 331 of the Uttar
Pradesh Zamindari Abolition Act?

5. Whether the suit is undervalued and
the court-fee paid insufficient?

6. To what relief is the plaintiff
entitled?"

12. On behalf of the plaintiff, the
plaintiff
examined himself
as PW-1,
besides another Natthi Lal, who testified as
PW-2. The defendants in their oral
evidence examined Vishambhar as DW-1.
On behalf of defendant Nos. 5 and 6,
defendant No. 5 testified as DW-2 and
another Dharam Singh as DW-3.

13. The documentary evidence filed
through a list, bearing paper No. 11-Ga, on
behalf of the plaintiff, carries a copy of the
notice, registered postal receipts and a
photostat copy of this Court's order dated
09.09.2008. These were numbered as paper
Nos. 12-Ga/1 to 12-Ga/8. On behalf of the
defendants through a list, bearing paper
paper No. 21-Ga, a notice, paper No. 22Ga, an application, paper No. 23-Ga, copy
of an order, paper Nos. 24-Ga to 26-Ga,
copy of the khatauni, bearing paper No. 27Ga and 28-Ga, were filed. No documentary
evidence was produced on behalf of
defendant Nos. 5 and 6.

14. The Trial Court held in favour of
the defendants on Issue No. 1. Issue No. 2,
which is a defendants' issue, was not
pressed. Issues Nos. 3 and 4, which were
dealt with together, led the Trial Court to
the conclusion that the suit is barred by
Section 331 of the Act and the Civil Court
has no jurisdiction to try it. Issue No. 5
appears to have been disposed of as a
preliminary much earlier and there was no
controversy surviving about it by the time
the Trial Court rendered judgment. On
Issue No. 6, it was held that in view of the
findings on Issue No. 1, the orders dated
26.06.1997 and 14.06.2001 were valid. It
was further held that the Civil Court had no
jurisdiction to try the suit. It is on these
findings that the learned Trial Judge
ordered the suit to be dismissed.

15. The plaintiff appealed the Trial
Judge's judgment to the District Judge of
Agra, where his appeal was number as
1084 INDIAN LAW REPORTS ALLAHABAD SERIES
Civil Appeal No. 25 of 2017. It came up for
determination before the Additional District
Judge, Court No. 6, Agra on 10.02.2021,
who dismissed the appeal and affirmed the
Trial Court.

16. Dissatisfied, the plaintiff has
preferred the present appeal from the
appellate decree.

17. Heard Mr. Ramendra Asthana,
learned Counsel for the plaintiff in support
of this appeal, Mr. Girijesh Kumar Tripathi,
learned Standing Counsel appearing on
behalf of defendant Nos.1, 2 and 3 and Mr.
Devendra
Dahma,
learned
Counsel
appearing for defendant Nos. 5 and 6. No
one appears on behalf of defendant No.4.

18. The Lower Appellate Court has
remarked that this Court while dismissing
Civil Misc. Writ Petition No. 37440 of
2001 has done so on the ground of
availability of an alternative remedy and
refused to entertain the writ petition
following the decision of the Division
Bench in Rajendra Singh v. State of U.P.
and others, 2008(4) ADJ 37 (DB). It is
further remarked by the Lower Appellate
Court that this Court while dismissing the
writ petition on the ground of alternative
remedy had never said that the orders
passed by the Authorities under Section
122-B of the Act could be challenged by
the plaintiff before the Civil Court in a suit.
The Lower Appellate Court has concluded
in its reasoning on point of determination
No. 1 that it found the orders passed by the
Tehsildar and the Additional Collector not
void or illegal. It is further held by the
Lower Appellate Court in the next breath
that the Civil Court had no jurisdiction to
examine the legality of the orders passed by
the Authorities of competent jurisdiction,
bearing obvious reference to the Tehsildar
and Additional Collector, exercising powers
under Section 122-B of the Act. It has also
been opined that it is for the plaintiff to
institute a suit in the Court of competent
jurisdiction to establish his rights.

19. Mr. Ramendra Asthana, learned
Counsel for the plaintiff has drawn the
attention of this Court to the fact that the
plaintiff's writ petition was dismissed by
this Court on the ground of availability of
an
alternative
remedy
following
the
Division Bench decision in Rajendra
Singh (supra), which held that Section
122-B of the Act afforded the person
aggrieved a remedy against an order of
eviction by way of a revision, and failing
there, by suit before the Court of competent
jurisdiction. The said Division Bench had
held that a writ petition would not lie
challenging orders of eviction passed by
the Authorities under Section 122-B. Mr.
Asthana points out that after the plaintiff's
writ petition was dismissed by the learned
Single Judge vide order dated 09.09.2008,
following the Division Bench in Rajendra
Singh. The correctness of the decision was
doubted by another Single Judge of this
Court, who made a reference of the matter
to a Larger Bench, framing three questions
of law for consideration. The Full Bench,
that was constituted, held in Shiv Ram vs.
State of U.P. and others, 2016(9) ADJ 366
(FB) in answer to Question Nos. 1 and 2,
that the jurisdiction of this Court under
Articles 226 and 227 of the Constitution
cannot be taken away by legislation and it
is open to this Court to examine the validity
of orders to which finality is attached under
the Statute.

20. Mr. Asthana submits that the
decision in Rajendra Singh was, therefore,
held not good law without expressly using
those words. Since in the interregnum, that
1 All. Ishlam Vs. State of U.P. & Ors.
1085
is to say, between the decision of the
Division Bench in Rajendra Singh on
18.03.2008 and the decision of the Full
Bench in Shiv Ram (supra), the plaintiff's
writ petition was dismissed by the learned
Single Judge on 09.09.2008 following the
decision
of
the
Division
Bench
in
Rajendra Singh, the plaintiff instituted the
present suit before the Civil Court,
questioning the orders of the Statutory
Authorities, ordering his eviction.

21. It is argued by Mr. Asthana that
the plaintiff's writ petition was dismissed
against the defendants upon objections by
them that it was not maintainable in view
of the holding in Rajendra Singh and that
the plaintiff's remedy is by way of suit. It is
submitted that once the defendants, who are
respondents to the plaintiff's writ petition
before this Court, had objected to this
Court's jurisdiction to entertain the writ
petition against the orders of the Statutory
Authorities, saying that the plaintiff's
remedy was by way of a suit, the plea was
no longer open to the defendants that the
suit before the Civil Court instituted by the
plaintiff is not maintainable. Learned
Counsel for the plaintiff urges that the
principle is well acknowledged in law that
if a party objects to the jurisdiction of one
Court and says that the party applying has
remedy before another Court, in a different
jurisdiction, it is not open to the objecting
party to question the proceedings before the
other Court or Forum, where the party has
been forced to go at the objecting party's
instance. The other Court too cannot
adversely
hold
on
the
question
of
jurisdiction for a party, who has been
shunted out of another Forum to the Court
of alternate resort.

22. It is urged that the aforesaid salutary
principle has been devised to prevent a party
being rendered remediless. In this connection,
Mr. Asthana has drawn the Court's attention
to each of the substantial questions of law,
regarding which he has advanced his
submissions together, the questions being
ones involving common and overlapping
propositions of the law. Mr. Asthana has
drawn the Court's attention to the decision of
the Supreme Court in Kiran Devi v. Bihar
State Sunni Wakf Board, (2021) 153 RD 56
and a later decision in Premlata alias Sunita
v. Naseeb Bee and others, (2022) 6 SCC
585. It is pointed out by the learned Counsel
for the plaintiff that both these decisions hold
that the parties cannot be permitted to
approbate or reprobate about the jurisdiction
of Courts. Once one party forces the other to
go to another Court on the question of
jurisdiction, the objecting party in the other
Court cannot be heard to say that the latter
Court too does not have jurisdiction. It must
be remarked here that these decisions have
bearing on Substantial Question of Law No. 1
and would be considered during the course of
this judgment.

23. It is next submitted by Mr. Asthana
that if the Courts below were of opinion that
the suit was not maintainable before the Trial
Court, they ought not to have entered into the
merits of the parties' case and dismissed the
suit. Instead, the option available to them was
to direct return of the plaint for presentation
to the Court of competent jurisdiction. Mr.
Asthana says that this course of action was
pre-eminently advisable because of the
remarks of the Lower Appellate Court that
the remedy of the plaintiff was to establish
his rights by suit before a Court of competent
jurisdiction.

24. As regards the last question, Mr.
Asthana submits that a suit to question the
orders of Statutory Authorities under
Section 122-B after the revisional order
1086 INDIAN LAW REPORTS ALLAHABAD SERIES
would be barred under Section 122-B (4-E)
of the Act, in view of the holding of the
Full Bench in Shiv Ram. But, that would
not prevent the Court to independently
judge the rights of a party to the land that
he claims and decided against him in
summary proceedings by the Statutory
Authorities under Section 122-B.

25. Mr. Devendra Dahma, learned
Counsel appearing for defendant Nos. 5
and 6, on the other, has come up with a
short submission that he says is a complete
answer to all the questions. It is submitted
that a reading of the provisions of Sections
122-B (4-D) and 122-B (4-E) conjointly,
leads one to the inevitable conclusion that it
is open to a party after an order of eviction
is passed by the Tehsildar/ Assistant
Collector to institute a suit in the Court of
competent jurisdiction to establish his right
that he claims, which the Assistant
Collector has negatived in the statutory
proceedings. But, a person aggrieved by the
order of the Assistant Collector under subSection (3) of Section 122-B, that is to say,
an order of eviction etc., who elects to
prefer a revision to the Collector against
that order under sub-Section (4-A) of
Section 122-B, loses the right under subSection (4-D) of Section 122-B to institute
a suit, envisaged therein, against the
Assistant
Collector's
summary
determination.

26. According to Mr. Dahma, once the
person ordered to be evicted by the
Assistant Collector in proceedings under
Section 122-B, chooses to pursue his
remedy of revision before the Collector
where he fails, the order of eviction passed
against him is rendered immune from
challenge by way of a suit to establish his
rights before the Court of competent
jurisdiction. It is argued by Mr. Dahma that
it is for the said reason that the Full Bench
in Shiv Ram has held an order of eviction
passed by the Assistant Collector, affirmed
by the Collector in revision, open to
challenge before this Court in a petition
under
Article
226
or
227
of
the
Constitution, overruling the contrary view
of the Division Bench in Rajendra Singh.

27. Learned Counsel for the defendant
Nos. 5 and 6 submits that the plaintiff
having chosen to apply in revision to the
Collector against the order of eviction
passed by the Tehsildar, he cannot question
the order or establish his rights to the
contrary by a suit before the Court of
competent jurisdiction.

28. Mr. Girijesh Tripathi, learned
Standing Counsel appearing for defendant
Nos. 1, 2 and 3, adding to the submissions
of Mr. Dahma, says that a civil suit, in any
case to establish a right to a bhumidhari,
would not lie before the Civil Court in view
of the bar under Section 331 of the Act.

29. Notwithstanding the very alluring
proposition by Mr. Asthana that the
substantial questions of law involved in this
appeal being interconnected, may be dealt
with all at once, this Court thinks that it
would be more orderly to consider and
answer each question separately.

30. So far as the first question is
concerned, it is true indeed that the plaintiff
was the victim of a warp in the law on
account of the decision of the Division
Bench in Rajendra Singh, that came to be
overruled later by the Full Bench in Shiv
Ram. The Division Bench in Rajendra
Singh held:

"19. Therefore, according to us,
having alternative and efficacious remedy
1 All. Ishlam Vs. State of U.P. & Ors.
1087
of suit under Section 122-B of the Act of
1950, there is no scope for the aggrieved
person to invoke the writ jurisdiction of the
Court either from the order of the Assistant
Collector or from the order of the Collector.
It is clarified hereunder that a self
corrective process to invoke the jurisdiction
of the Assistant Collector, then by way of
revision before the Collector and thereafter
by filing suit before the Court, is the
integral part of the Act, which cannot be
avoided. Thus, in our considered opinion,
contentions of the writ petitioners, cannot
be held to be sustainable, consequently, all
the aforesaid writ petitions are dismissed
without imposing any cost. Interim order, if
any, stands vacated. However, aggrieved
persons are at liberty to file civil suit for
appropriate relief in accordance with law, if
they are so advised.

20. So far as the conflicting judgments
of learned single Judge in Sewak Shankar
(supra) and in Shankar Saran (supra) are
concerned, we find that the earlier says if
revision is filed, suit cannot be filed, when
the later says that the remedy of revision
before the Collector would not deprive the
remedy of suit, with a recommendation to
the Legislature to make the necessary
amendments. In our view, amendment or no
amendment, the law is very clear from its
plain reading. In case a revision from an
order of Assistant Collector is filed before
the Collector, it will not stand in the way of
an aggrieved of a revisional order to file a
suit before the Court. Incidentally later
view is more acceptable. Hence, the
conflict stands resolved by the view taken
and interpretation of the Act given by us as
above keeping in mind the intention of the
Legislature."

31. The decision in Rajendra Singh
is no longer good law in view of the
decision of the Full Bench in Shiv Ram on
the point that a writ petition against orders
of eviction passed by the Statutory
Authorities under Section 122-B of the Act
can be challenged before this Court in a
writ petition. A writ petition under Article
226 or a petition under Article 227 of the
Constitution would lie to this Court in view
of the decision in Shiv Ram against orders
passed by the Statutory Authorities under
Section 122-B. In Shiv Ram, the learned
Single Judge, who doubted correctness of
the holding by the Division Bench in
Rajendra Singh, referred the following
questions for consideration by a Larger
Bench:

"(i) Whether the Division Bench in the
case of Rajendra Singh (supra) is correct in
holding that writ petition challenging the
orders passed in proceedings under Section
122-B of the U.P. Zamindari Abolition &
Land
Reforms
Act
would
not
be
maintainable in view of alternative remedy
of suit provided by the Statute itself,
against the orders passed by the Assistant
Collector or the Collector in the said
proceedings?

(ii) Whether the view expressed by the
Division Bench in the case of Rajendra
Singh (supra) that since a remedy by way
of suit has been provided in sub Section (4D) of Section 122-B, the writ petition
challenging the order passed in proceedings
under Section 122-B would be barred by
principles of existence of alternative
remedy requires reconsideration in view of
Division
Benches
of
co-ordinate
jurisdiction in the case of K.H. Panjani v.
State of U.P., AIR 1959 All. 26 (DB); Smt.
Shanti Devi v. State of U.P., 1978 AWC
189 and Satyapal Singh Chauhan v.
Chairman-cum-chief
Executive
Officer,
1984 UPLBEC 587 (DB) as well as Full
Bench decisions in the case of Buddhu v.
Municipal Board, AIR 1952 All 753 (FB)
1088 INDIAN LAW REPORTS ALLAHABAD SERIES
and Bijli Cotton Mills Pvt. Ltd., Hathras v.
Estate Officer/Secretary, National Textile
Corporation, U.P. and others, 1977 AWC
191 (SB)?

(iii) Whether the Division Bench
judgment in the case of Rajendra Singh
(supra) holding that ''civil suit' is the
appropriate remedy to resolve every dispute
under Section 122-B of U.P.Z.A. & L.R.
Act, lays down the correct law, even though
the legislature has used the words ''suit in a
Court of competent jurisdiction in sub
Section ''4-D', and Section 331 of the
U.P.Z.A. & L.R. Act specifically bars the
jurisdiction of civil Court, in respect of any
suit, application or proceedings based on a
cause of action in respect of which relief
could be granted by Revenue Courts?"

32. Their Lordships of the Full Bench
in Shiv Ram answered the questions
referred to them, in Paragraph No. 17 of the
report, thus:

"17.
In
view
of
the
aforesaid
discussions, we answer the questions
referred to us as follows :

(i) Answer to question (i) is in
negative. The jurisdiction of High Court
under Article 226 and 227 of the
Constitution are basic structure of the
Constitution, it can neither be taken away
nor be limited either by Constitutional
amendments or by other

(ii) Answer to question (ii) is in
negative. Finality attached to the orders
passed by Statutory authority under the Act,
also does not affect the jurisdiction of High
Court under Article 226 and 227 of the
Constitution to examine its illegality,
irrationality and procedural impropriety.

(iii) Answer to question (iii) is in
negative. In view of Proviso to Section
229-D of the Act, the suit before Revenue
Court may not be efficacious alternative
remedy in a given case. The suit in Civil
Court may not be maintainable in every
case in view of Section 331 of the Act. In
the cases, where the Statutory Authority has
not acted in accordance with the provisions
of the enactment in question, or in defiance
of the fundamental principles of judicial
procedure, or has resorted to invoke the
provisions, which are repealed, or when an
order has been passed in total violation of
the principles of natural justice, writ
petition can be entertained.

The reference to the larger Bench
stands answered accordingly. The writ
petitions shall now be placed before
Hon'ble Single Judge for disposal in the
light of this judgment."

33. Although, it is settled that an order
of eviction passed under Section 122-B (3)
by the Tehsildar, affirmed in revision by the
Collector under sub-Section (4-A) of
Section 122-B, afford the person liable to
be evicted under orders of the Statutory
Authorities, a remedy to challenge the same
before this Court by a writ petition under
Article 226 or a petition under Article 227
of the Constitution, the Statute still speaks
of the option of filing a suit before the
Court of competent jurisdiction. It requires
to
be
examined
notwithstanding
the
overruling of the decision in Rajendra
Singh on the point of maintainability of a
writ petition against orders of eviction
under Section 122-B, if the person ordered
to be evicted by the Statutory Authorities,
can maintain a suit to establish his right
before the Civil Court. In short, what has to
be examined is whether the Court of
competent jurisdiction, where a person
aggrieved by the order of the Assistant
Collector may file a suit to establish his
right to the property, from which he has
been ordered to be evicted, is the Civil
Court. Or, is it some other Court?
1 All. Ishlam Vs. State of U.P. & Ors.
1089

34. What has to be borne in mind is
that the remedy with the Gaon Sabha or the
State to evict a trespasser under Section
122-B is a summary remedy to rid the
Gaon Sabha or a Local Authority's property
of encroachment or save it from damage at
the hands of a private person, who has
trespassed. Bearing in mind the aforesaid
object, a summary remedy has been
provided. The laudable object of ridding
public property vested in the Gaon Sabha
or a Local Body of encroachment, trespass
or damage by an unauthorized person
cannot be construed in a manner that may
exclude the right of a person, who says he
has title to the property, but is unsuccessful
before the Statutory Authorities to lose that
right to the inherent and perceptible
vagaries of a summary procedure.

35. What sub-Section (4-D) of Section
122-B of the Act, therefore, envisages is not
the judicial review of the order passed by the
Assistant Collector, directing eviction in the
sense of a challenge being laid to it in the suit
envisaged under sub-Section (4-F), but a suit
to establish aliuende the right of the person
ordered to be evicted to that property before a
Court of competent jurisdiction. The said
right or title if established before the Court of
competent jurisdiction in the suit upon a trial
being held, would efface the conclusion of
the Assistant Collector recorded in summary
proceedings. In substance, therefore, what an
ousted person under an order of eviction
passed by the Assistant Collector under subSection (3) of Section 122-B would have to
do is to seek an independent declaration of
his rights to the property, wherefrom he has
been ordered to be evicted by the Authority.

36. The suit property here is claimed to
be bhumidhari and a suit for declaration of
rights in it would be cognizable by the Court
mentioned in Column 4 of Schedule II to the
Act. A suit for declaration of bhumidhari
rights is one that is envisaged under subSection (3) of Section 229-B read with subSections (1) and (2) thereof. A suit for that
relief by virtue of Entry 34 of Schedule II
would lie before the Assistant Collector, First
Class; not before the Civil Court.

37. This Court finds that what subSection (4-D) of Section 122-B allows, is the
right of a person to seek a declaration of his
title
etc.
as
a
bhumidhar
or
asami
notwithstanding a summary order of eviction
passed against him by the Assistant Collector
under Section 122-B (3).

38. In the present case, therefore,
keeping aside the affirmation of the Assistant
Collector's order directing eviction by the
Additional Collector in a revision, if the
plaintiff was non-suited before this Court
because of the prevalent view of the law held
at the time when his writ petition came to be
dismissed,
the
Court
of
competent
jurisdiction that the plaintiff could approach
was the Revenue Court. It was not the Civil
Court.

39. So far as the submission of Mr.
Asthana regarding the principle of approbate
and reprobate is concerned, forbearing the
party defending the proceedings from
objecting to the jurisdiction of the Court in a
case where the party's objections have been
accepted about jurisdiction of the Court,
where the party applying first moved,
preventing
the
objecting
party
from
questioning the jurisdiction of the other Court
also, the decision of the Supreme Court in
Kiran Devi (supra) must be noticed. In Kiran
Devi, it was held by the Supreme Court:

"13. We have heard learned counsel
for the parties and find that it is not open to
the appellant at this stage to dispute the
1090 INDIAN LAW REPORTS ALLAHABAD SERIES
question that the suit filed before the
learned Munsif could not have been
transferred to the Wakf Tribunal. The
plaintiff had invoked the jurisdiction of the
Civil Court in the year 1996. It is the Wakf
Board and the appellant who then filed an
application for transfer of the suit to the
Wakf Tribunal. Though, in terms of
Ramesh Gobindram, the Wakf Tribunal
could not grant declaration as claimed by
the plaintiff, but such objection cannot be
permitted to be raised either by the Wakf
Board or by the appellant as the order was
passed by the Civil Court at their instance
and was also upheld by the High Court.
Such order has thus attained finality interparties. The parties cannot be permitted to
approbate and reprobate in the same breath.
The order that the Wakf Tribunal has the
jurisdiction cannot be permitted to be
disputed as the parties had accepted the
order of the civil court and went to trial
before the Tribunal. It is not a situation
where plaintiff has invoked the jurisdiction
of the Wakf Tribunal.

14. The argument raised by the
learned counsel for the appellant that
there was no estoppel against the statute
as consent could not confer jurisdiction
upon the Authority which did not
originally have jurisdiction. Hence, it was
submitted that the decision of the
Tribunal was without jurisdiction.