# Sanjay Kumar Tripathi & Anr v. Smt. Suryakali Tripathi

- **Citation:** (2024) 8 ILRA 6
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-05
- **Case number:** Matters Under Article 227 No. 1015 of 2024
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjay-kumar-tripathi-anr-v-smt-suryakali-tripathi-52412
- **Pages:** 7

## Headnote

Sri Manu Srivastava, Sri Vivek Kumar
Srivastava,
Sri
Abhishek
Tandon,
Sri
Anurag Singh

Civil Law - Uttar Pradesh Revenue Code,
2006 - Sections 4 (14), 116 & 206 (2)
r/w Item No.16 of Second Schedule -
Specific Relief Act, 1963 - Section 34 -
Property in dispute, i.e the suit property,
is agricultural land, wherein both the
petitioners and respondent (mother) hold
shares as they claim - Suit property is
admittedly undivided - Respondent under
influence of her daughter has transferred
an area of 155.33 square yards vide
registered sale deed in favour of two
persons
-
Petitioners
plead
that
respondent has no right to transfer her
share
in
suit
property,
which
is
unpartitioned, unless it is partitioned in
accordance with law - Application for
temporary injunction by petitioners -
Trial Court ordered to maintain status quo
- Appeal by respondent - District Judge
set aside the ad interim injunction -
Impugned order challenged - Held, in the
nature of remedy open to a co-sharer,
division of holdings, as it is called u/s 116
of the Revenue Code, partition is the only
remedy that is permitted by law - Until
partition takes place by metes and
bounds with the passing of a final decree,
none of co-sharers can forbear the other
from transferring his/ her undivided or
unpartitioned interest in suit property in
favour of a third party - Suit property is
revenue paying land, relief which the
petitioners
seek,
is
governed
by
provisions of Section 206 - Impugned
order was rightly set aside. (Para 2, 4, 5,
6, 14, 16, 19)

Petition Dismissed. (E-13)

## Text

6 INDIAN LAW REPORTS ALLAHABAD SERIES
(2024) 8 ILRA 6
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.08.2024

BEFORE

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

Matters Under Article 227 No. 1015 of 2024
(Civil)

Sanjay Kumar Tripathi & Anr. ...Petitioners
Versus
Smt. Suryakali Tripathi ...Respondent

Counsel for the Petitioners:
Sri Anuj Kumar Srivastava, Sri Nisheeth
Yadav

Counsel for the Respondent:
Sri Manu Srivastava, Sri Vivek Kumar
Srivastava,
Sri
Abhishek
Tandon,
Sri
Anurag Singh

Civil Law - Uttar Pradesh Revenue Code,
2006 - Sections 4 (14), 116 & 206 (2)
r/w Item No.16 of Second Schedule -
Specific Relief Act, 1963 - Section 34 -
Property in dispute, i.e the suit property,
is agricultural land, wherein both the
petitioners and respondent (mother) hold
shares as they claim - Suit property is
admittedly undivided - Respondent under
influence of her daughter has transferred
an area of 155.33 square yards vide
registered sale deed in favour of two
persons
-
Petitioners
plead
that
respondent has no right to transfer her
share
in
suit
property,
which
is
unpartitioned, unless it is partitioned in
accordance with law - Application for
temporary injunction by petitioners -
Trial Court ordered to maintain status quo
- Appeal by respondent - District Judge
set aside the ad interim injunction -
Impugned order challenged - Held, in the
nature of remedy open to a co-sharer,
division of holdings, as it is called u/s 116
of the Revenue Code, partition is the only
remedy that is permitted by law - Until
partition takes place by metes and
bounds with the passing of a final decree,
none of co-sharers can forbear the other
from transferring his/ her undivided or
unpartitioned interest in suit property in
favour of a third party - Suit property is
revenue paying land, relief which the
petitioners
seek,
is
governed
by
provisions of Section 206 - Impugned
order was rightly set aside. (Para 2, 4, 5,
6, 14, 16, 19)

Petition Dismissed. (E-13)

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

1. This petition under Article 227 of
the Constitution is directed against an order
passed by Mr. Vinay Singh, Additional
District Judge, Court No.21, Kanpur Nagar,
allowing Misc. Civil Appeal No.103 of
2023 and setting aside the ad interim
injunction dated 19.09.2023, granted by the
learned Additional Civil Judge (Jr. Div.),
Court No.8, Kanpur Nagar in O.S. No.1341
of 2023.

2. The petitioners are the plaintiffs of
O.S. No.1341 of 2023, whereas the sole
defendant-respondent to this petition is
their mother. The property in dispute, that
is the suit property, is agricultural land,
wherein both the plaintiff-petitioners (for
short, 'the plaintiffs') and the defendantrespondent (for short, 'the defendant') hold
shares as they claim. The suit property is
admittedly undivided. The details of this
property are given at the foot of the plaint,
giving rise to the suit, whereas in paragraph
Nos.2 and 3, the plaintiffs disclose their
shares in the suit property and that of the
defendant. The cause of action, which the
plaintiffs set forth in the plaint, is that the
defendant, who is a co-sharer of the
plaintiffs and their mother, under the
influence of the plaintiffs' sister, Anita
Mishra and her husband, with whom, the
8 All. Sanjay Kumar Tripathi & Anr. Vs. Smt. Suryakali Tripathi
7
defendant resides, has transferred an area of
155.33 square yards (125.69 square meters)
of land out of Khasra No.164, Khata
No.00298, admeasuring a total of 0.3160
hectare, situate at Village Hora Bangar,
Tehsil, Pargana and District Kanpur Nagar,
vide registered sale deed dated 17.09.2019
in favour of one Rajesh and another
Deepak. It is also pleaded that the plaintiffs
and the defendant together, out of the same
plot, sold off an area of 75.25 square
meters vide registered sale deed dated
04.07.2017,
but
the
defendant,
in
connivance with the plaintiffs' sister, Anit
Mishra, has misappropriated the sale
consideration. The plaintiffs plead that the
defendant has no right to transfer her share
in the suit property, which is unpartitioned,
unless it is partitioned in accordance with
law with the precise shares of parties
determined.

3. It is also their case that the
defendant has offered for sale the suit
property jointly owned by the plaintiffs and
the defendant, leading to a broker entering
upon the said property and attempting to
lay a foundation thereon. It is the plaintiffs'
case that upon resistance by them, he
picked up an altercation, compelling them
to report the matter to the Police. Saying
that the entire suit property is the joint
holding of the plaintiffs and the defendant,
the plaintiffs' case is that the defendant has
no right to transfer her share without a
partition being effected. It is on the foot of
this case and cause of action that the
plaintiffs have claimed the following reliefs
(translated into English from Hindi):

"A. that by a decree of permanent
injunction in the plaintiffs' favour and
against the defendant, the Court may
restrain the defendant from transferring
land comprising Khata No.00071, Khasra
No.101, admeasuring
0.7270 hectare;
Khata No.00141, Khasra No.59, 0.2030
hectare, situate at Village Hora Bangar,
Tehsil and District Kanpur Nagar; Khata
No.00298, Khasra No.162, 0.3160 hectare,
situate at Village Hora Bangar, Tehsil and
District Kanpur Nagar; Khata No.00072,
Khasra No.99, 0.1020 hectare; Khata
No.00137, Khasra Nos.206, 208, 205, 216,
217, 218, 219, 0.4300 hectare, 0.1230
hectare, 0.4710 hectare, 0.1430 hectare,
0.3280 hectare, 0.2770 hectare, 0.5740
hectare; Khata No.00138, Khasra No.176,
area 0.3940 hectare, situate at Village
Hora Kachhar, Pargana, Tehsil and
District Kanpur Nagar; Khata No.00211,
Khasra No.79, 0.4530 hectare situate at
Village Hora Kachhar, Pargana, Tehsil
and District Kanpur Nagar, as per
boundaries given at the foot of the plaint or
any part thereof in favour of any third
party by way of sale, will, hiba, agreement
etc.

B. The Court, by a declaration,
may declare the plaintiffs' co-sharers in
possession of a 1/4th share in Khata
No.00071, Khasra No.101, admeasuring
0.7270 hectare; Khata No. 00141, Khasra
No.59, 0.2030 hectare, situate at Village
Hora Bangar, Tehsil and District Kanpur
Nagar; Khata No.00298, Khasra No.162,
0.3160 hectare, situate at Village Hora
Bangar, Tehsil and District Kanpur Nagar;
Khata No.00072, Khasra No.99, 0.1020
hectare; Khata No.00137, Khasra No.206,
208, 205, 216, 217, 218, 219, admeasuring
0.4300 hectare, 0.1230 hectare, 0.4710
hectare, 0.1430 hectare, 0.3280 hectare,
0.2770 hectare, 0.5740 hectare; Khata No.
00138, Khasra No.176, 0.3940 hectare,
situate at Village Hora Kachhar, Pargana,
Tehsil and District Kanpur Nagar; and in
the rest of the plots, the plaintiffs be
declared owners of a half share and the
defendant and other co-sharers owners of
8 INDIAN LAW REPORTS ALLAHABAD SERIES
the other half share; and further, in Khata
No.00211, Khasra No.79, admeasuring
0.4530 hectare, situate at Village Hora
Kachhar, Pargana, Tehsil and District
Kanpur Nagar, the plaintiffs and the
defendant be declared owners of a 1/3rd
share each in 1/2 of the said land."

4. Along with the suit, the plaintiffs
made
an
application
for
temporary
injunction, expressing an apprehension that
the defendant without a partition was
intending to sell off her undivided share to
third parties, which would prejudice the
plaintiffs' interest and snatch away their
sole source of livelihood, all at the instance
of the plaintiffs' sister and the defendant's
daughter, Anita Mishra. The plaintiffs
claimed a temporary injunction to the effect
that the defendant be restrained from
transferring the suit property or any part
thereof in favour of any third, either by
sale, will, hiba or agreement pending suit.

5. The learned Trial Judge, before
whom the temporary injunction application
came up on 19.09.2023, upon perusing the
plaint, the application for temporary
injunction and the affidavit together with
papers filed in support, found it to be a case
where the interest of the plaintiffs was
required to be protected by an ad interim
injunction and that it would be defeated by
the delay in issuing notice to the other side.
The learned Judge, therefore, issued notice
returnable on 19.10.2023 and ordered both
parties until the said date to maintain status
quo and forbear from transferring the suit
property in favour of any third party.

6. The defendant appealed this order
to the learned District Judge, giving rise to
Misc. Civil Appeal No.103 of 2023 on the
file of the learned District Judge. The Misc.
Appeal came up for determination before
the Additional District Judge, Court No.21,
Kanpur Nagar on 09.01.2024, who by the
order impugned, set aside the ad interim
injunction dated 19.09.2023 passed by the
Trial Judge, leaving him free to decide the
temporary injunction application on merits
within 15 days.

7. Aggrieved by the said order, this
petition
under
Article
227
of
the
Constitution has been instituted by the
plaintiffs.

8. Heard Mr. Nisheeth Yadav, learned
Counsel for the plaintiffs and Mr. Abhishek
Tandon, Advocate holding brief of Mr.
Anurag Singh, learned Counsel appearing
on behalf of the sole defendant.

9. The learned Judge has found the
suit instituted before the Court to be barred
by the provisions of Section 206 (2) read
with Item No.16 of the Second Schedule to
the Uttar Pradesh Revenue Code, 2006 (for
short, 'the Revenue Code'). In addition, the
learned Judge has held that there is no law,
which may give right to a co-sharer to
prevent another co-sharer of his to alienate
his undivided share. The learned Judge in
the Court of appeal has opined that the
plaintiffs acknowledge the defendant's
share in the suit property, and, therefore, if
they had to sue, it had to be for partition.
The learned Judge has found upon the
plaintiffs' case that the relief which they
seek that the defendant may not transfer her
share in the suit property unless partitioned,
is not countenanced by law. It is also
opined by the learned Judge in the Court of
appeal that where the Court has no
jurisdiction
to
grant
a
permanent
injunction, a temporary injunction cannot
be granted. It is on the basis of all this
reasoning that the learned Judge in the
Court of appeal has set aside the order of
8 All. Sanjay Kumar Tripathi & Anr. Vs. Smt. Suryakali Tripathi
9
temporary injunction granted by the Trial
Judge.

10. A bare reading of the plaint, in
particular the relief, shows that the
plaintiffs admit the defendant to be a cosharer in the suit property along with them.
The foremost question, therefore, is if the
plaintiffs
can
seek
any
injunction
forbearing the defendant from transferring
her unpartitioned share in the suit property.
It is on first principle that a co-sharer, who
has an unpartitioned share, is always free to
sell or otherwise assign it to a third party. It
is true that the owner of a share cannot
transfer any particular portion of the
property without a partition by metes and
bounds. It is not the plaintiffs' case that the
defendant has effected a transfer by metes
and bounds of a particular portion of the
suit property commensurate to her share. It
is also not the plaintiffs' case that the
defendant has transferred or is proceeding
to transfer more than her share in the suit
property in favour of third parties. There is
absolutely no right inhering in the co-sharer
of a property to prevent another co-sharer
by the Court's injunction from transferring that
other's unpartitioned share. In a case like the
present one, the defendant's transferee would
not be entitled to possession, or so to speak khas
possession, over any portion of the suit
property. He would become the owner of the
share or the area of land transferred, which such
transferee can, like the defendant or any other
co-sharer, seek partition of through a suit
instituted for the purpose. In no event, the
plaintiffs would, therefore, be entitled to an
injunction of the kind they claim, seeking to
restrain the defendant, a co-sharer in the suit
property from transferring her unpartitioned
share in favour of a third party.

11. Likewise, the other relief, which
they seek, is as misconceived as the first. It
is a declaration, which the plaintiffs seek of
their own share and that of the defendant in
the different khatas of the suit property.
Section 34 of the Specific Relief Act, 1963
(for short, 'the Act of 1963') reads:

"34. Discretion of court as to
declaration of status or right.-Any
person entitled to any legal character, or to
any right as to any property, may institute a
suit against any person denying, or
interested to deny, his title to such
character or right, and the court may in its
discretion make therein a declaration that
he is so entitled, and the plaintiff need not
in such suit ask for any further relief:

Provided that no court shall make
any such declaration where the plaintiff,
being able to seek further relief than a mere
declaration of title, omits to do so.

Explanation.-A
trustee
of
property is a "person interested to deny" a
title adverse to the title of some one who is
not inexistence, and for whom, if in
existence, he would be a trustee."

12. All that the proviso to Section 34
of the Act of 1963 intends to provide is that
where substantial relief of a particular kind
is envisaged by law, provided in law or
necessary, a bare declaration cannot be
granted. It would be an absurdity to
imagine about a plaintiff seeking a
declaration that the defendant owes him a
particular sum of money, say 'X' and
nothing more. That kind of a declaration
can never be granted. The proviso to
Section 34 would bar such a declaration
and oblige the plaintiff to sue for recovery
of money or accounts or other substantial
relief, appropriate to the cause of action.
Likewise, a plaintiff, who is out of
possession and seeks to recover it from the
defendant, who denies the plaintiff's title,
must sue for the relief of recovery of
10 INDIAN LAW REPORTS ALLAHABAD SERIES
possession. It is another matter that if the
plaintiff's title in a case like that is thickly
and arguably disputed, the plaintiff in
certain cases may be obliged to seek a
declaration together with the relief of
possession. A classical case of this kind
would be if the plaintiff, the owner of the
land says that he has been dispossessed by
the State or an instrumentality of the State
from his land that he owns, without the
State acquiring it in accordance with law.
In such a case, perhaps the plaintiff need
seek
a
declaration
together
with
a
consequential decree for recovery of
possession. In none of these cases,
however, the plaintiff can just seek a
declaration of his title even with an
injunction. Like the first illustration, about
the claim for money, the plaintiff cannot be
permitted to sue for declaration that the
defendant owes him a liquidated sum of
money,
say
'X',
together
with
a
consequential mandatory injunction against
the defendant, directing him to pay the
money owed. These kind of reliefs would
be absolutely barred by the proviso to
Section 34 of the Act of 1963.

13. A declaration is a general relief, which
is neither to be sought nor granted in a case
where there are other substantive reliefs known
to law. A suit for rendition of accounts would
involve the plaintiff asking for a decree for
accounts, and likewise, in a case where the
money owed to the plaintiff is secured by a
mortgage, a decree for foreclosure or sale of the
mortgaged property. A plaintiff, who has a
cause of action against a co-sharer in an
undivided estate, is obliged by law to sue for the
relief of partition, specifically pleading the share
that he claims. The Court would then try the
suit and pass a preliminary decree for partition,
declaring the share of parties. The preliminary
decree in a suit for partition is in fact a
declaration of the parties' share, which includes
the plaintiff and all other co-sharers. After the
preliminary decree for partition is passed, it is
open to the plaintiff to apply for the preparation
of a final decree, where according to the shares
of parties and the myriad factors that are
relevant, the Court would pass a suitable final
decree for partition, demarcating and delivering
khas possession of the plaintiff's share in the
suit property.

14. Of course, it would also be open to the
defendant or defendants, whose shares are
declared by the preliminary decree to likewise
apply for a final decree, partitioning their share
by metes and bounds upon payment of requisite
court fee. In the nature of the remedy open to a
co-sharer, division of holdings, as it is now
called under Section 116 of the Revenue Code,
partition is the only remedy that is permitted by
law. Until partition takes place by metes and
bounds with the passing of a final decree, none
of the co-sharers can forbear the other from
transferring his/ her undivided or unpartitioned
interest in the suit property in favour of a third
party.

15. Seen from this vantage, the relief,
which the plaintiffs seek, can never be
granted even if all the allegations in the
plaint at the trial are proved to the hilt.

16. There is another facet of the
matter, which the learned Additional
District Judge has considered and about
which too, he has drawn the correct
conclusions. The suit property is revenue
paying land and the relief, which the
plaintiffs seek, is clearly governed by the
provisions of Section 206 read with Item 16
of the Second Schedule. Section 206 of the
Revenue Code reads:

"206.
Jurisdiction
of
civil
Courts
and
revenue
courts.-
(1)
Notwithstanding anything contained in any
8 All. Sanjay Kumar Tripathi & Anr. Vs. Smt. Suryakali Tripathi
11
law for the time being in force, but subject
to the provisions of this Code, no Civil
Court shall entertain any suit, application or
proceeding to obtain a decision or order on
any matter which the State Government,
the Board, any Revenue Court or revenue
Officer is, by or under this Code,
empowered to determine, decide or dispose
of.

(2) Without prejudice to the
generality of the provisions of sub-section
(1), and save as otherwise expressly
provided by or under this Code-

(a) no Civil Court shall exercise
jurisdiction over any of the matters
specified in the Second Schedule; and

(b) no Court other than the
revenue Court or the revenue officer
specified in column 3 of the Third Schedule
shall entertain any suit, application or
proceeding specified in column 2 thereof.

(3)
Notwithstanding
anything
contained in this Code, an objection that a
Court or officer mentioned in sub-section
(2)(b) had or had no jurisdiction with
respect
to
any
suit,
application
or
proceeding, shall not be entertained by any
appellate, revisional or executing Court,
unless the objection was taken before the
Court or officer of the first instance, at the
earliest opportunity, and in all cases where
issues are settled at or before such
settlement, and unless there has been a
consequent failure of justice."

17. The Second Schedule to the
Revenue Code is extracted below:

"SECOND SCHEDULE
(See Sections 206 (2)(a))
Matters excluded from the jurisdiction
of the Civil Court

1
Any question regarding the determination of
boundaries or fixing of boundary marks.
2
Any claim to question a decision determining abadi
made by the Collector.
3

Any claim to have any entry made in any revenue
records or to have any such entry omitted, amended
or substituted.
4
Any question regarding the assessment, remission
or suspension of land revenue or rent.
5
Any claim connected with or arising out of the
collection by the State Government or the
enforcement by such Government of any process
for the recovery of land revenue or any sum
recoverable as an arrear of land revenue under this
Code or any other law for the time being in force.
6
Any claim against the vesting of any property in the
State Government, Gram Panchayat or other local
authority under this Code.
7
Any question relating to the levy or imposition of
the fine, cost, expense, charge, penalty or
compensation under this Code.
8
Any
question
regarding
reinstatement
of
a
bhumidhar
or
asami
wrongfully
ejected
or
dispossessed from any land.
9
Any claim to compel the performance of any duty
imposed by this Code on any revenue officer
appointed under this Code.
10
Any question, relating to division, creation,
amalgamation, abolition or readjustment of revenue
areas and Lekhpal's circles under Chapter II.

11
Any question relating to the allotment of land
referred to in section 64 or section 125 or
cancellation of such allotment.
12
Any claim to question a direction issued by the
Collector under section 71
13
Any claim to question the delivery of possession
over any land and part thereof referred to in section
124, or the eviction of any person under section 134
or section 201.
14
Any claim to question the validity of any order
made by the State Government under Chapter XI.
15
Any claim regarding possession over any land.
16
Any claim to establish the rights of a co-tenure
holder in respect of any land.

18. Item No.16 in the Second
Schedule of the Revenue Code clearly
speaks of "any claim to establish the rights
of a co-tenure holder in respect of any
land". Land is defined under Section 4(14)
of the Revenue Code, which reads:

"4. Definition.-In this Code.-
......

(14) 'land', except in Chapters
VII and VIII and sections 80, 81 and
section 136, means land held or occupied
for purposes connected with agriculture;"
12 INDIAN LAW REPORTS ALLAHABAD SERIES

19. There is no quarrel by the
plaintiffs that the suit property is land
within the meaning of Section 4(14) of the
Revenue
Code,
which
is
used
for
agriculture and recorded as such. It is after
all held by the plaintiffs and the defendant
for purposes connected with agriculture. If
then that is the plaintiffs' case, a suit by
them to establish their right as co-tenure
holders against the defendant, would
clearly be in the teeth of Item No.16 of the
Second Schedule to the Revenue Code read
with Section 206 (2) (a). The plaintiffs'
relief, howsoever quaintly drafted, does not
take it out of mischief of Section 206 (2)
(a) read with Item No.16 of the Second
Schedule to the Revenue Code. The
jurisdiction to try a suit of this kind would,
therefore, on a bare reading of the plaint,
lie exclusively in the Revenue Court. If the
plaintiffs were to seek any meaningful
relief, they would have to seek a decree for
division of their holdings/ the suit property,
which
again
would
be
exclusively
cognizable by the Revenue Court under
Section 116 of the Revenue Code. As the
relief stands, if at all it can be granted, it is
by the Revenue Court and not the Civil
Court. Quite apart, the terms, in which the
relief has been sought, read together with
the cause of action involved in this suit, the
relief can never be granted by any Court, as
remarked earlier for the reasons indicated.

20. In the considered opinion of this
Court, therefore, the learned Additional
District Judge was absolutely right in
setting aside the ad interim injunction
granted by the Trial Court. No exception
can be taken to the impugned order by the
plaintiffs, which must in our opinion be
unhesitatingly upheld.

21. In the result, this petition fails and
is dismissed with costs of Rs.10,000/-.
----------
(2024) 8 ILRA 12
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.08.2024

BEFORE

THE HON'BLE DINESH PATHAK, J.

Writ B No. 3320 of 2024

Bhoora Singh ...Petitioner
Versus
Deputy Director of Consolidation & Ors.
 ...Respondents

Counsel for the Petitioner:
Devendra Kumar Mishra

Counsel for the Respondents:
C.S.C., Hari Narayan Singh

Civil Law - U.P. Consolidation of Holdings
Act - Section 9-B, Disposal of objections
on the Statement of Principles - S. 9-B (3),
Any person aggrieved by an order of the
Consolidation Officer under sub-section
(1) or sub-section (2) may file an appeal
before
the
Settlement
Officer,
Consolidation, whose decision, except as
otherwise provided by or under this Act,
shall be final - Issue : Whether Revision
u/s 48 maintainable against order Section
9-B (3) or not? Held: Phrase "except as
otherwise provided by or under this Act"
means that the litigant can resort to the
remedy in case the same is available
under the Act and the rules or regulations
made therein - Intention of legislation is
that the order passed by the S.O.C. in
appeal may be assailed in the revisional
jurisdiction of the D.D.C., who has been
entrusted ample power to examine the
correctness, legality, or propriety of any
order, including the power to examine any
finding, whether of fact or law, returned
by the Consolidation Officer or the S.O.C.,
and
also
includes
the
power
to
reappreciate any oral or documentary
evidence (Para 7)