# Radha Krishna and others v. Sri Brij Kishore & others

- **Citation:** (2004) 2 ILRA 628
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-05-13
- **Case number:** Civil Misc. Writ Petition No. 2948 of 2004
- **Bench:** Krishna Murari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radha-krishna-and-others-v-sri-brij-kishore-others-40285
- **Pages:** 5

## Headnote

U.P. Consolidation of Holding Act 1953Section 5 (3) Abetment of Suit-suit for
permanent injunction-During pendancy
of suit the village in question brought
under
Consolidation
Proceeding-only
relief for Injunction-No declaration of
title on right claimed-held not liable to
abate.

The findings recorded by revisional court
that suit filed by the plaintiff was only
for relief of injunction and did not
involve any declaration of the rights and
title and hence not liable to be abated,
does not suffer from any infirmity and
are hereby affirmed.

Para 18
Case law discussed:
1984 ACJ 490
1999 (1) AWC 152
AIR 1966 SC 1718
1990 RE 466

## Text

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7. The respondent in this appeal
(writ petitioner) was purely temporary
appointee and hence had no right to the
post, as held by the Supreme Court in
Kaushal Kishore vs. State of U.P., (1991)
SCC 691, Commissioner, Food and Civil
Supllies vs. Prakash Chandra Saxena,
(1994) 5 SCC 177, Triveni Shanker
Saxena vs. State of U.P., AIR 1992 SC
496, Madhya Pradesh Hasta Shilpa Vikas
Nigam Ltd. vs. Devendra Kumar Jain,
(1995) 1 SCC 638, Dr. Chanchal Goyal
vs. State of Rajasthan (2003) 3 SCC 485,
Shailaja Shivajirao Patil vs. President, JT
2002 (1) SC 431, Secretary, Ministry of
Works and Housing Government of India
vs. Mohinder Singh Jagdev, JT 1996 (8)
SC 46, etc. These decisions have been
followed by a Division Bench of this
Court
in
Mathura
Vrindavan
Development Authority, Mathura vs.
State Public Services Tribunal and others,
Civil Misc. Writ Petition No. 4002
decided on 25.11.2003.

8. For the reasons given above we
are of the opinion that this appeal
deserves to be allowed. The impugned
judgment of the learned Single Judge
dated 13.5.2004 is set aside and the writ
petition stands dismissed.
Appeal Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.07.2004

BEFORE
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Writ Petition No. 2948 of 2004

Radha Krishna and others ...Petitioners
Versus
Sri Brij Kishore & others ...Respondents

Counsel for the Petitioners:
Sri Ajit Kumar
Sri Mohit Kumar

Counsel for the Respondents:
Sri Tripathi B.G. Bhai
C.S.C.

U.P. Consolidation of Holding Act 1953Section 5 (3) Abetment of Suit-suit for
permanent injunction-During pendancy
of suit the village in question brought
under
Consolidation
Proceeding-only
relief for Injunction-No declaration of
title on right claimed-held not liable to
abate.

The findings recorded by revisional court
that suit filed by the plaintiff was only
for relief of injunction and did not
involve any declaration of the rights and
title and hence not liable to be abated,
does not suffer from any infirmity and
are hereby affirmed.

Para 18
Case law discussed:
1984 ACJ 490
1999 (1) AWC 152
AIR 1966 SC 1718
1990 RE 466

(Delivered by Hon'ble Krishna Murari, J.)

1. The short question which arises
for consideration, in this case, is whether,
a suit where only a relief for permanent
injunction has been claimed is liable to be
abated by reason of Section-5 (2) of U.P.
Consolidation of Holdings Act 1953
(hereinafter referred to as the Act).

2. The facts relevant for the purpose
of
the
case
are
that
the
plaintiff/respondent filed original suit no.
342/90 in the Court of Civil Judge,
Mathura, seeking a relief for permanent
injunction
to
restrain
the
defendant/petitioner from interfering in
his possession or from taking possession
forcibly and raising any construction over
the land in dispute. During the pendency
of the proceedings an application no. 24-
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2 All] Radha Krishna and others V. Sri Brij Kishore and others
629
ka was moved by defendant/petitioner no.
1 with a prayer that suit is liable to be
abated under Section 5 (2) of the Act as
the village where the land in dispute is
situate has been notified for consolidation
operations.

3. The trial court, vide order dated
21.4.1993, allowed the application and
abated the suit. The plaintiff/respondents
filed a revision challenging the said order.
The revisional court allowed the revision
and set aside the order passed by the trial
court which is under challenge in the
present petition.

4. I have heard Sri Mohit Kumar
holding brief of Sri Ajit Kumar, learned
counsel for the petitioner and Sri Tripathi
B.G. Bhai, appearing for the contesting
respondent.

5. Sri Mohit Kumar, learned counsel
for the petitioner has submitted that since
a relief for injunction is based on title and
for the purpose of granting such a relief
the court has necessarily to go into the
question o title and interest of the plaintiff
in the land in dispute, as such the suit is
liable to be abated under the provision of
Section 5 (2) of the Act. In support of the
contention, he placed reliance on the
following Single Judge decisions of this
court. Smt. Barsatia Vs. District Judge,
Ghazipur and others, 1984 ALJ 490,
Narendra Pratap Saini Vs. Indra Mishra
and others 1989 Revenue Decisions 406
and Bachchu Lal Vs. Ram Sajivan 1993
ACJ 863.

6.

Learned
counsel
for
the
contesting respondent, on the order hand,
contended that in any suit for injunction,
simplicitor, where no relief, with regard to
declaration of title has been sought, any
finding, with regard to right, title or
interest in the land is only incidental for
the purpose of granting injunction. On the
basis of allegations in the plaint and relief
claim therein, it has been vehemently
urged by the learned counsel for the
respondent that no relief with regard to
declaration of title or interest in the suit
property has been claimed, as such the
provision of Section 5 (2) of the Act are
not attracted in any manner. In support of
his arguments, learned counsel for the
respondent has placed reliance on the
following decisions. Banwari Lal Vs.
Tulsiram 1979 Revenue Decisions 136,
Smt. Krishna Kumari Vs. Shiv Kumar
1987
Revenue
Decisions,
399
and
Kanchan Kumari Chawdhary Vs. District
Judge Mau 1999 (1) AWC 152.

7.

Relying
on
the
aforesaid
decisions, it has further, been urged by the
learned counsel for the respondents that
even if, the question of title in the suit
property comes up for consideration
before the Civil Court, it is only incidental
for the purpose of granting injunction to
the plaintiff and does not involve any
adjudication of the title of the plaintiff.
The moment, it becomes essential to
adjudicate the right or title of the plaintiff
on the basis of defence set up by the
defendant, the suit would fail for want of
relief of declaration. It has further, been
argued that since, in the present case, the
plaintiff has not claimed any adjudication
or relief regarding his title over the land in
dispute and as such the order passed by
the revisional court, dismissing the
application for abatement of the suit under
Section 5 (2) of the Act is perfectly
justified.

Section 5 (2) of the Act relevant for
the purpose reads as under.

2)
"Upon the said publication the
notification under sub Section (2) of
Section-4,
the
following
further
consequences shall ensue in the area to
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
630
which the notification relates, namely-

a)
every
proceeding
for
the
correction of record and every suit and
proceeding in respect of declaration or
rights or interest in any land lying in the
area, or for declaration or adjudication of
any other right in regard to which
proceedings can ought to be taken under
this Act, pending before any court or
authority whether of the first instance or
of appeal, reference or revision, shall, on
an order being passed in that behalf by
the court or authority before whom such
suit or proceeding is pending stand
abated:"

Provided.....
Provided....

8. This provision of the Act provides
that upon publication of notification under
section 4 (2) of the Act certain type of
suits or proceedings pending before any
court or authority shall abate.

9. Thus, it excludes the jurisdiction
of the court or authority which are
otherwise, empowered to decide the said
suit or proceedings. It is well settled that a
statute ousting the jurisdiction of a court
must be strictly construed as observed by
the Apex Court, in the case of Abdul
Wahid Khan Vs. Bhawani and others
reported in AIR 1966 SC 1718.

A bare reading of Section 5 (2) of the
Act indicates that kinds of cases liable to
be abated upon publication of notification
under Section 4 (2) of the Act are clearly
specified viz.

I)
Proceedings for correction of
records.

II) Suits or proceedings in respect
of declaration of rights or interest in any
land.

III) Suits
or
proceedings
for
declaration or adjudication of any other
right in regard to which proceeding can or
ought to be taken under this Act.

10. The Section being exhaustive
will only apply to suits or proceedings
specified therein, and no other. It can not
be stretched to bring within its ambit the
suit or proceedings which the legislature
did not intend to abate on the on set of
Consolidation operations. Thus, unless the
suit or proceedings fall within three above
mentioned categories the jurisdiction of
the
court
or
authority,
otherwise,
empowered to decide the same cannot be
excluded or ousted.

11. In the back ground of the above,
a careful examination of the allegations
and relief claimed in the plaint (filed as
annexure-3 to the petition) makes it clear
that only relief claimed is that of a
permanent injunction to restrain the
defendants
from
interfering
in
the
peaceful possession of the plaintiff over
the suit property and or to take forcible
possession of the plaintiff over the suit
property and or to take forcible possession
and raise any construction thereon.

12. Thus, suit as it stands, neither
seeks any correction of record nor any
declaration of rights or interest in the
land,
has
been
claimed.
Suit
for
declaration of rights and interest in any
land necessarily implies relief by way of
declaration of the said rights in the land
and unless a relief is claimed, the suit
cannot be said to be one for declaration of
rights or interest in the land. No such
relief having been claimed in the suit it
cannot be termed to be a suit in respect of
declaration of rights or interest in the
land. Further, under the scheme of the
Act, since the authorities are not vested
with any power to grant injunction, the
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2 All] Radha Krishna and others V. Sri Brij Kishore and others
631
suit cannot be termed as one for
declaration or adjudication of any such
rights in regard to which proceedings can
or ought to be taken under this Act.

13. In the present case, the plaint as
it stands, does not fit in any of the three
classes of suits or proceedings specified
under Section 5 (2) of the Act which the
legislature intended to abate on the on set
of Consolidation operation. Any finding
with regard to title or interest of the
plaintiff in the property in such a suit for
injunction will only be incidental for the
purpose of granting injunction without
any declaration of such rights of plaintiff
in the land, and hence not liable to be
abated.

14. The Apex Court, in the case of
Heera Lal and another Vs. Garjan Singh
and others reported in 1990 (1) CRC 466
while
considering
the
question
of
jurisdiction of civil court and revenue
court has held that in a suit for permanent
injunction the question of title arises only
incidentally, and it is the civil court which
has exclusive jurisdiction to try such suits.

15. Now coming to the various
decisions cited at the bare by counsel for
the both the parties in support of their
contentions, reference may be made to the
Division Bench Judgment of this court in
the case of Banwari Lal (Supra) wherein
it was held that in a suit where plaintiff
does not desire adjudication of his rights
and the only relief claimed is that of
injunction, and the suit is not of a kind
which necessitates adjudication of rights
before relief could be granted. Such a suit
is not liable to abate. In the present case,
also, no adjudication of right or title in the
land has been claimed. The only relief
claimed is that of a permanent injunction.
Further, the case of Narendra Pratap Saini
(Supra) relied upon by the learned counsel
for
the
petitioners
is
clearly
distinguishable on facts as in the said case
along with injunction a declaration was
also sought with regard to mortgage deed
of certain bhumidhari plots as void and
not binding. The suit being one for
declaration
was
covered
under
the
provision of Section 5 (2) of the Act.

16. The case of Smt. Barsatia
(Supra), Narendra Pratap Saini (Supra)
and Bachchu Lal (Supra) relied upon by
the learned counsel for the petitioner has
failed to consider the earlier Division
Bench Judgment in the case of Banwari
Lal which was rendered in 1979. In any
view of the matter, the ratio of the
Division Bench Judgment is binding on
Single Judge. In an identical controversy
same view has been taken by another
Single Judge, in the case of Kanchan
Kumar Chaudhary Vs. District Judge,
Mau, reported in 1990 (1) AWC 152.

17. From the foregoing discussions,
it is clear that a suit for permanent
injunction filed by plaintiff/respondents is
not covered under any of the three classes
specified by Section 5 (2) and hence, is
not liable to be abated.

18. The findings recorded by
revisional court that suit filed by the
plaintiff was only for relief of injunction
and did not involve any declaration of the
rights and title and hence not liable to be
abated, does not suffer from any infirmity
and are hereby affirmed.

In the result, the writ petition fails
and is dismissed.

However,
in
the
facts
and
circumstances of the case, there shall be
no order as to costs.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.07.2004

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No. 26885 of 2000

Vegraj

...Petitioner
Versus
The Deputy Director of Consolidation/
Additional Collector, Bareilly and others

 ...Respondents

Counsel for the Petitioner:
Sri Sankatha Rai

Counsel for the Respondents:
Sri V.C. Katiyar
Sri A.K. Sachan
S.C.

U.P. Consolidation of Holdings Act-S-9-AObjection
under
S.
9-A
by
widow
claiming one half share-opposed on
ground of remarriage-Rejection by C.O.
and S.O.C.-D.D.C. revered findings-Writ
against-Held, judgments of C.O. and
S.O.C.
based
on
inadmissible
documentary
evidence-D.D.C.
fully
competent
to
interfere
with
such
findings-Writ dismissed.

The judgments of Consolidation Officer
and Settlement Officer, Consolidation
were also based on some irrelevant and
inadmissible documentary evidence, filed
by petitioner, pertaining to the period
during
pendency
of
the
litigation.
Deputy Director of Consolidation is fully
competent to interfere with the findings
arrived at by subordinate consolidation
authorities relying upon such evidence.

Para 9

(Delivered by Hon'ble S.N. Srivastava, J.)

1. This writ petition is directed
against the judgment passed by Deputy
Director of Consolidation dated 10th May,
2000 allowing the revision filed by Opp.
Party no.2.

2. The dispute relates to one half
share of Kunwar Sen who died leaving his
widow Mst. Tarawati-Opp. Party no.2.
On publication of records in village an
objection under Section-9-A of U.P.
Consolidation of Holdings Act was filed
by Mst. Tarawati claiming one half share
in the land in dispute. Said objection of
Mst. Tarawati was opposed by petitioner
on the ground that Mst. Tarawati
remarried with one Siya Ram and
whatever rights she inherited being
widow of Kunwar Sen came to an end.

3.

Consolidation
Officer
and
Settlement Officer, Consolidation rejected
objection of Opp. Party no.2, but Deputy
Director
of
Consolidation
allowed
revision and reversed findings and order
of authorities below. Deputy Director of
Consolidation recorded a clear cut finding
that remarriage has not taken place and
Mst. Tarawati is still continuing as widow
of Kunwar Sen.

4. Heard learned counsel for the
parties.

5. Learned counsel for petitioner
urged that finding of Consolidation
Officer
and
Settlement
Officer,
Consolidation
on
the
question
of
remarriage was not considered by the
Deputy Director of Consolidation while
reversing the orders. It was further urged
that Deputy Director of Consolidation
cannot interfere with the findings of fact
recorded by Consolidation Officer and
Settlement Officer, Consolidation and as
such order passed by Deputy Director of
Consolidation is liable to be quashed.

6. I considered arguments of learned