# Plaintiff v. Doodh Nath and others

- **Citation:** (2007) 3 ILRA 881
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-09-07
- **Case number:** Second Appeal No. 955 of 1995
- **Bench:** Mrs. Poonam Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/plaintiff-v-doodh-nath-and-others-41125
- **Pages:** 5

## Headnote

Code of Civil Procedure-Section-100Second
Appeal-suit
for
injunctionconcurrent finding of facts-regarding
possession
of
defendant-unless
declaration sought of title suit before
civil
court
not
maintainable-Held-No
scope for interference under Section 100
required.

Held: Para 9

The findings by the two courts below
that the suit was not maintainable since
the question of title and respective right
was
to
be
determined.
In
the
circumstances, I do not find that the
substantial question of law raised in the
instant appeal worth consideration, the
findings to the contrary by the two
courts below do not call for interference
and can not be interfered in exercise of
jurisdiction under Section 100 C.P.C.
Case law discussed:
AIR 1972 SC-2299
1992 RD-429
1968 RD-410 (FB)

## Text

3 All] Tulsi V. Doodh Nath and others
881
"There is no hard and fast rule that
disciplinary proceedings initiated after a
long time would be per se improper or
illegal merely for the reason that it has
been initiated after long lapse of time but
it
depends
upon
the
facts
and
circumstances of that case. For example,
if the delinquent employee could show
that after long lapse of time he has lost
evidence or has no capacity to defend
himself due to loss of memory etc. then
indulgence can be granted on this ground
but mere delay in the proceedings can not
vitiate the same."

10. However, since disciplinary
proceeding, once initiated, should not be
allowed to continue for long time, in my
view, it would be appropriate to direct the
respondents to complete disciplinary
inquiry against the petitioner within a
period of three months from the date of
production of certified copy of this order.
It is made clear that in case the petitioner
fails to cooperate, it is open to the
authority concerned to proceed and
complete inquiry in accordance with law
without participation of the petitioner.

11. With the aforesaid direction, this
writ petition is dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.09.2007

BEFORE
THE HON'BLE MRS. POONAM SRIVASTAVA, J.

Second Appeal No. 955 of 1995

Tulsi

...Plaintiff-Appellant
Versus
Doodh Nath and others

...Defendant-Respondents

Counsel for the Appellant:
Sri H.C. Saxena
Sri O.P. Pandey

Counsel for the Respondents:
Sri A.K. Mishra

Code of Civil Procedure-Section-100Second
Appeal-suit
for
injunctionconcurrent finding of facts-regarding
possession
of
defendant-unless
declaration sought of title suit before
civil
court
not
maintainable-Held-No
scope for interference under Section 100
required.

Held: Para 9

The findings by the two courts below
that the suit was not maintainable since
the question of title and respective right
was
to
be
determined.
In
the
circumstances, I do not find that the
substantial question of law raised in the
instant appeal worth consideration, the
findings to the contrary by the two
courts below do not call for interference
and can not be interfered in exercise of
jurisdiction under Section 100 C.P.C.
Case law discussed:
AIR 1972 SC-2299
1992 RD-429
1968 RD-410 (FB)

(Delivered by Hon'ble Mrs. Poonam Srivastav, J.)

1. Heard Sri H.C. Saxena and Sri
O.P. Pandey, learned counsels for the
appellant and Sri A.K. Mishra Advocate
for the contesting respondents

2. This is plaintiffs second appeal
against the judgment and decree dated
31.8.1995 passed by the Additional
District Judge, Varanasi, Maharajganh in
Civil Appeal No. 1 of 1994 confirming
the judgment and decree dated 15.12.1993
passed by Munsif Magistrate, Farenda,
882 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
District Mahrajganj in Original Suit No.
280 of 1991.

3. An Original Suit was preferred by
the plaintiff claiming himself to son of
Phaiku and owner in occupation. It was
pleaded that the defendant respondents
have started interfering with the peaceful
possession of the appellant and injunction
suit was instituted in respect of Plot
No.1499 area 749 D situated in Village
Bargahpur, Pargana and Tpsil Farenda,
District Mahrajganj. The claim of the
defendants was on basis of a Will
executed by Phaiku. The defendants were
nephew of Phaiku and it was contended
that he died issueless. The trial court and
lower appellate court were of the view
that
the
dispute
is
in
respect
of
agricultural land and, therefore, the civil
suit is not maintainable and is barred by
Section 331 of U.P. Zamindari Abolition
& Land Reforms, Act. The substantial
questions of law framed in this appeal, on
which the appeal was admitted, are as
under:-

1.
Whether the plaintiff is the son of
Phaiku ?
2.
Whether Phaiku bequeathed the
agricultural land in suit to the defendants
by will as alleged by the defendants?

Therefore, the only question whether
the plaintiffs suit is barred by section 331
of the U.P. Zamindari Abolition & Land
Reforms Act arises for consideration in
this appeal. The first question is factual
and can not be reopened and reassessed in
a second appeal.

4. The findings of the trial court on
issue Nos. 1 and 2 have been emphatically
challenged. The submission is that while
deciding issue no. 2, the trial court
recorded its finding that the suit is barred
is per-se illegal.

5. In the circumstances, the short
question involved in the present second
appeal is, whether the suit was barred or
not Learned counsel for the appellant has
placed the plaint before me in support of
this
contention
that
the
suit
was
simplicitor for relief of injunction and,
therefore, this relief could not be given by
the
revenue
courts
and
the
suit
maintainable.

6. I have perused the findings of the
courts below on issue no. 2. It is evident
that the name of the plaintiff is not
recorded in the revenue records and
therefore, perusal of paper No. Ga/49 and
statement of PW-1, it is evident that the
mutation proceedings are pending before
the revenue courts and the question of
ownership is yet to be decided. Issue No.1
relates to question whether the plaintiff is
owner in occupation of plot No. 1499
(area
749).
Since
the
question
of
injunction can only be considered, if the
plaintiff establishes his title and thereby
consequent possession. Since both the
questions are inter linked, it can not be
said that the suit instituted by the plaintiff
was simplicitor for injunction. In fact the
courts below were required to decide the
question of title and possession on merits.
Though this Court, while admitting the
second appeal, framed question of law
regarding the parentage of plaintiff and
his relation with Faiku. Both the courts
below have come to a definite conclusion
and recorded a finding of fact that on the
basis of documentary proof Paper No.
Ga/15, Extract Khasra Paper No. Ga/16,
Extract Khatauni Paper No. Ga/76 and
Khasra Paper No. Ga/77 by the plaintiff
failed to establish their prima facie right
3 All] Tulsi V. Doodh Nath and others
883
to the disputed property, the defendants
are recorded in the revenue records and if
the plaintiff has any objection, it can only
be challenged before the revenue court by
instituting a suit for declaration. The
name of plaintiff was not recorded in the
revenue records and, therefore, the courts
were of the view that the question as to
whether the plaintiff is son of Faiku or not
is to be decided first before any relief of
injunction could be granted. I am in
agreement with the findings arrived at by
both the courts below that the suit was not
maintainable and barred by Section 331 of
U.P.
Zamindari Abolition & Land Reforms
Act.

7. Counsel for the appellant has
placed three decisions. The first case
relied upon is, M. Kallappa Setty Vs.
M.V. Lakshminarayana Rao, AIR 1972
Supreme Court, 2299. The Apex Court
ruled that the plaintiff, on strength of his
possession
can
very
well
resist
interference from defendant who has no
better title than himself and get injunction
from disturbing his possession. In the
circumstances, the ratio decided by the
Apex Court is that in the event, the
plaintiff is in an admitted possession of
the property and the two courts recorded a
finding conclusively in favour of the
plaintiff that he is in possession then he is
entitled for an injunction. This is not the
position in the instant case. The trial court
relied on the revenue entries while
deciding the question of possession and
has recorded a conclusive finding that
since the entries are in the name of the
defendants and unless and until contrary
is established, the plaintiffs possession is
not established. This finding is confirmed
in the appeal, therefore, there is no
applicability of the decision relied upon
by the counsel for the appellant. There is
no finding whatsoever that the plaintiff is
in possession. No doubt it is settled that
even an unauthorized occupant is found in
possession, he can not be evicted
otherwise than in accordance with law
and is very much entitled for injunction
but the facts, of the present case are
absolutely different and, therefore, I hold
that the question of possession having
been decided against the plaintiff by the
two courts, which is a finding of fact, the
relief of injunction has rightly been
refused by the courts below. The next
decision relied upon by the counsel is,
Badalu and another Vs. Ram Palat and
others, 1992 R.D., 429. This decision
relates to the question of jurisdiction of
the court. The bar of Section 331 of
U.P.Z.A. & L.R. Act was held to be not
applicable if the plaintiff is found in
possession and relief for prohibitory
injunction claimed in the suit. Paragraph
13 of this decision is quoted below:-

"In the present case both the courts
below have found that plaintiff were not
entitled to the decree of prohibitory
injunction since they had not been in
possession over the land in dispute and
their suit for the relief in respect of the
plot Nos. 841 and 846 has been rightly
dismissed. It may, however, be observed
that since the finding on issue No. 2
framed by the trial court had not been
challenged and the civil court had no
jurisdiction
to
decide
the
question
relating to the title in respect of plot Nos.
841 and 846 in dispute, the said question
will remain open to be agitated by the
parties if they so desired in afresh
proceeding and it will not be open to the
defendants or their representatives or
successors to resist any suit of the
plaintiff or their representatives or
884 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
successors which may be brought in
future for possession of the suit property
comprised in plot Nos. 841 and 846 in
dispute on the basis of their title either on
the ground of res-judicata or Order II,
Rule 2, C.P.C. I do not find any such
infirmity in the impugned decree which
may warrant any interference by this
Court in the exercise of its jurisdiction
under Sec. 100, C.P.C.

8. In the circumstances, the
appellant do not get any help from this
decision as well. The question of
possession having once been decided
against the plaintiff concurrently by the
two courts, the relief for injunction was
rightly refused. There is yet another Full
Bench Decision of this Court which lays
down
clear
guidelines
regarding
determination of jurisdiction of civil and
revenue courts, in the case of Ram
Awalamb and others Vs. Jata Shanker
and others, 1968 R.D. 470 (F.B.). The
extract of the said decision is quoted
below:-
"In each and every case the cause of
action of the suit shall have to be strictly
scrutinized to determine whether the suit
is solely cognizable by a revenue court or
is impliedly cognizable only by a revenue
court, or is cognizable by a civil court.
Where in a suit, from a perusal only of the
reliefs claimed, one or more of them are
ostensibly cognizable only by civil court
and at least one relief is cognizable only
by the revenue court, further questions
which arise are whether all the reliefs are
based on the same cause of action and, if
so, (a) whether the main relief asked for
on the basis of that cause of action is such
as can be granted only by a revenue
court, or (b) whether any real or
substantial relief (though it may not be
identical with that claimed by the
plaintiff) could be granted by the revenue
court. There can be no doubt that in all
cases contemplated under (a) and (b)
above the jurisdiction shall vest in the
revenue court and not in the civil court. In
all other cases of a civil nature the
jurisdiction must vest in the civil court.
The main point for consideration in
all cases where on a definite cause of
action two reliefs can be claimed is which
of the two reliefs is the main relief and
which relief or other reliefs are ancillary
reliefs.
Where
from
facts
and
circumstances of the case the relief for
demolition and injunction is the main
relief there could be no reason why the
jurisdiction of the civil court should be
barred. On the other hand, if it could be
said that the main relief, that is to say, the
real and substantial relief, could on that
cause of action be of possession only then
the suit will definitely lie in the revenue
court.
A civil court will have the power to
entertain the suit where the main relief
sought by the plaintiff is that of injunction
and demolition, a relief which could be
granted by the civil court only. The relief
of possession will be merely ancillary
relief which the civil court could grant
after having taken cognizance of the suit
for inunction and demolition.
The determination of the question as
to which out of the several reliefs arising
from the same cause of action is the main
relief will depend on the facts and
circumstances of each case. Where, on the
basis of a cause of action-
(a) the main relief is cognizable by a
revenue
court
the
suit
would
be
cognizable by the revenue court only. The
fact that the ancillary reliefs claimed are
cognizable by civil court would be
immaterial for determining the proper .to
rum for the suit;
3 All] NOIDA V. Raja Ram Balmiki
885
(b) the main relief is cognizable by the
civil court the suit would be cognizable by
the civil court the suit would be
cognizable by the civil court only and the
ancillary reliefs, which could be granted
by the revenue court may also be granted
by the civil court.
The above principle will apply also
to a suit for injunction and demolition
relating to agricultural land and brought
against a trespasser. Where the revenue
court was not competent to grant all the
reliefs arising out of one and the same
cause of action and the main relief was
that of injunction and demolition the suit
would lie in the civil court.

9. On analysis of Full Bench
guidelines quoted above, it is evident that
the two courts were of consistent view
that the revenue records clearly establish
the right and possession of the defendants
and unless and until the plaintiff's right or
even
possession
is
not
established,
injunction could not be granted, therefore
these questions could be adjudicated only
in a suit for declaration. No doubt the
relief of injunction was claimed in the suit
but the main relief could not be ignored.
In fact the injunction was only an
ancillary relief which could be granted
only by a revenue court. The findings by
the two courts below that the suit was not
maintainable since the question of title
and respective right was to be determined.
In the circumstances, I do not find that the
substantial question of law raised in the
instant appeal worth consideration, the
findings to the contrary by the two courts
below do not call for interference and can
not
be
interfered
in
exercise
of
jurisdiction under Section 100 C.P.C.

The suit instituted for possession was
held not maintainable by the civil court
after recording its conclusion that since
the plaintiff has not been able to establish
possession and there is neither any
document nor any material to hold title in
favour of the plaintiff. These questions
are to be adjudicated by the revenue
courts which in fact is still pending. In
view of what has been stated upon, there
is no substance in the submissions made
by the learned counsel. The appeal lacks
merit and is accordingly dismissed. Cost
on parties.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.09.2007

BEFORE
THE HON'BLE MRS. POONAM SRIVASTAVA, J.

Second Appeal No. 743 of 1997

New
Okhla
Industrial
Development
Authority
 ...Defendant/Appellant
Versus
Raja Ram Balmiki ...Plaintiff/Respondent

Counsel for the Appellant:
Sri. U.S. Awasthi

Counsel for the Respondent:
Sri. B.D. Mandhyan
Sri. S.C. Mandhyan
Sri. A.K. Singh
Sri. Badri Singh
Sri. Satish Mandhyan

Code of Civil Procedure Section 100second appeal-substantial question of
law-scope
thereof
explained-means
debatable question of law-not previously
settled or decided.

Held: Para 7

The question of law must be debatable,
not previously settled by law of the land
or a binding precedent and answer to the
same will have material bearing as to the