# Sardar Jasbir Singh and Others v. IV Additional District Judge Unnao and Others

- **Citation:** (2013) 1 ILRA 172
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-02-21
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sardar-jasbir-singh-and-others-v-iv-additional-district-judge-unnao-and-others-42485
- **Pages:** 6

## Headnote

C S C
Sri Malay Shukla
Sri P K Srivastava
Sri Ramesh Kumar Singh
Sri Sanjay Shukla
Sri Sushil Kumar

U.P. Consolidation of Holding Act 1953Section 5(2) (a)-abatement of suit for
injunction-without declaration of right or
title-held-in view of Division Bench case
of Banwarilal-followed by Single Judge
in K Kanchan Kumar Chowdhary and
Radha Krishna-would not stand abated.

Held: Para-25

In view of Division Bench judgment in
Banwarilal & Others (supra) and the two
Single Judge authority of this Court,
following
aforesaid
Division
Bench
judgment in Kanchan Kumar Chowdhary
(supra) and Radha Krishna & others
(supra), I am clearly of the view that suit
in
question
is
simply
a
suit
for
1 All] Sardar Jasbir Singh and Others Vs. IV Additional District Judge Unnao and Others
173
permanent injunction and would not
stand abated by Section 5(2) of Act,

## Text

172 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
has observed that the resignation becomes
effective on acceptance even if not
communicated. Non Communication of
the acceptance does not make the
resignation inoperative provided there is
in
fact
on
acceptance
before
the
withdrawal when the relevant rules not
postulating communication of acceptance
as a condition precedent for coming into
effect of resignation. Employee tendering
resignation with immediate effect and
employer accepting the same on the same
day but communicating the acceptance to
the employee after 13 days. During the
intervening
period,
the
employee
withdrawing his resignation. Such delay
of mere 13 days, held , not an undue delay
so as to infer that resignation had not
already
been
accepted.
Even
the
continued attendance to duty and signing
of attendance register by the said
employee during the intervening period
held, of no assistance to claim that the
resignation had not taken effect. More so,
when there was no responsible officer in
the office during that time and taking the
advantage of that situation the employee
had marked his attendance, hence the
High
Court's
decision
holding
that
communication of the acceptance of
resignation subsequent to withdrawal of
the resignation by the employee had
become redundant was held improper.

21. Thus, in view of the facts stated
hereinabvoe, as per the law, admittedly, in
the present case, the petitioner had
submitted his resignation from service on
15.02.2010 on personal grounds and the
same has been accepted by the O.P. No. 1
on 07.06.2012. Accordingly, once the
same has been accepted, it is not open to
the petitioner to withdraw the same
subsequently hence there is no illegality
or infirmity in the impugned order dated
07.06.2012 passed by O.P. No. 1/District
Judge, Faizabad which is under challenge
in the present writ petition.

22. In the result, the writ petition
lacks merit and is dismissed.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.02.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

MISC. SINGLE No. - 878 of 1995

Sardar Jasbir Singh and Others ...Petitioner
Versus
IV Additional District Judge Unnao and
Others

 ...Respondents

Counsel for the Petitioner:
Sri Govind Saran Nigam

Counsel for the Respondents:
C S C
Sri Malay Shukla
Sri P K Srivastava
Sri Ramesh Kumar Singh
Sri Sanjay Shukla
Sri Sushil Kumar

U.P. Consolidation of Holding Act 1953Section 5(2) (a)-abatement of suit for
injunction-without declaration of right or
title-held-in view of Division Bench case
of Banwarilal-followed by Single Judge
in K Kanchan Kumar Chowdhary and
Radha Krishna-would not stand abated.

Held: Para-25

In view of Division Bench judgment in
Banwarilal & Others (supra) and the two
Single Judge authority of this Court,
following
aforesaid
Division
Bench
judgment in Kanchan Kumar Chowdhary
(supra) and Radha Krishna & others
(supra), I am clearly of the view that suit
in
question
is
simply
a
suit
for
1 All] Sardar Jasbir Singh and Others Vs. IV Additional District Judge Unnao and Others
173
permanent injunction and would not
stand abated by Section 5(2) of Act,
1953.
Case Law discussed:
AIR 1968 SC 714; 1971 RD 331; 1983 RD 29;
1984 RD 156; AIR 1966 SC 1718; 2005 (1)
AWC 660; 1979 All.L.J. 675=1979 RD 136;
1990 (1) CRC 466; 1999 (1) AWC 152

(Delivered by Hon'ble Sudhir Agarwal,J.)

1. Heard Sri G.S.Nigam, learned
counsel for the petitioner and perused the
record.

2. The respondent no.2 instituted a
suit
under
Section
229-B
of
U.P.Zamindari
Abolition
&
Land
Reforms Act, 1951 (hereinafter referred
to as "Act, 1951") impleading Gaon
Sabha, Mahinaura and State of Uttar
Pradesh seeking declaration that disputed
plot no.1259 area 10 bigha 7 biswa is his
bhumidhari land with transferable rights.
A notification under Section 4 of
Consolidation of Holdings Act, 1953
(hereinafter referred to as "Act, 1953")
was issued and thereafter aforesaid suit
stood abated on 17th February, 1992
under Section 5(2) of Act, 1953.

3. Thereafter aforesaid respondent
no.2 instituted another suit in the Court of
Munsiff, North, Unnao against petitioners
seeking
an
injunction
restraining
petitioners from forcibly interfereing in
peaceful enjoyment and possession of
respondent no.2 upon the land no.1259
(old no.1477) measuring 10 bigha 7 biswa
situated in Gram Mahnaura, Pargana
Gosinda Parsandan, Tehsil Hasanganj,
District Unnao.

4. The petitioners put in appearance
and filed their objections stating that
dispute relates to a property which is
actually owned by petitioners and since
there is a title dispute, suit is not
maintainable and must be held to be
abated under Section 5(2) of the Act,
1953. The objection raised by petitioners
found favour with Trial Court and it
passed order dated 21st May, 1994
abating the suit under Section 5(2) of Act,
1953. But the aforesaid decision has been
reversed by lower Appellate Court by
allowing civil appeal no.72 of 1994 filed
by respondent no.2.

5.

Learned
counsel
for
the
petitioners submitted that in the present
case unless dispute/issue of title is
decided, no injunction can be granted and
therefore judgment of Trial Court abating
suit was perfectly right but lower
Appellate Court has committed error in
taking a view otherwise. He placed
reliance on Apex Court's decision in Ram
Adhar Singh Vs. Ramroop Singh &
Ors., AIR 1968 SC 714 and this Court's
decisions in Zor Singh & Ors. Vs.
Hukum Singh & Anr., 1971 RD 331,
Ram Lakhan & Ors. Vs. Gaon Sabha
Kusmahara, & Ors., 1983 RD 29 and
Smt. Barsatiya Vs. District Judge,
Ghazipur, 1984 RD 156 and contended
that in view of aforesaid authoritative
pronouncement of Apex Court and this
Court, judgment of lower Appellate Court
is liable to be set aside.

6.

The
only
issue
up
for
consideration, whether suit in question
would stand abated by Section 5(2) of
Act, 1953.

7. Section 5(2)(a) of Act, 1953,
relevant for our purpose of Act, 1953,
reads as under:
174 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

"(2) Upon the said publication the
notification under Sub-section (2) of
Section
4,
the
following
further
consequences shall ensure in the area to
which the notification relates, namely :

(a)
every
proceeding
for
the
correction of records and every suit and
proceeding in respect of declaration of
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 or 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 that no such order shall be
passed without giving to the parties notice
by post or in any other manner and after
giving them an opportunity of being heard
:

Provided further that on the issue of
a notification under sub-section (1) of
Section 6 in respect of the said area or
part thereof, every such order in relation
to the land lying in such area or part as
the case may be, shall stand vacated."

8. A perusal of above shows that
upon publication of notification under
Section 4(2) of Act, 1953, suit and
proceedings of specified nature pending
before any Court or authority shall abate.
The kinds of cases which would stand
abated by virtue of Section 5(2) upon
publication of notification issued under
Section 4(2) of Act, 1953 are :

(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.

9. Exposition of law is well settled
that a statute ousting the jurisdiction of a
Court must be construed strictly. (See
Abdul Waheed Khan Vs. Bhawani &
Ors., AIR 1966 SC 1718). Thus the
jurisdiction of Court or authority, as the
case may be, which would stand affected
by virtue of Section 5(2), have to be seen
strictly whether they are within the ambit
of aforesaid provision or not.

10. This Court in Radha Krishna &
Ors. Vs. Brij Kishore and Ors.
2005(1)AWC 660 said:

"12. The section being exhaustive
will only apply to suits or proceedings
specified therein, and no other. It cannot
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 Ram Adhar Singh Vs.
Ramroop Singh and others, AIR 1968
SC 714, the Court construed Section 5(2)
as amended by U.P. Act 21 of 1966 and
said that a suit filed for recovery of
1 All] Sardar Jasbir Singh and Others Vs. IV Additional District Judge Unnao and Others
175
possession of a property on the ground
that the opposite party is a trespasser and
has no right to remain in possession of
property ex facie would include a dispute
relating to title. Therefore, the expression
'every suit and proceedings in respect of
declaration of rights or interest in any
land', is comprehensive enough to take in
suits for possession of land, because,
before a claim for recovery of possession
is
accepted,
the
Court
will
have
necessarily to adjudicate upon the right or
interest of the plaintiff, in respect to the
disputed property, taking into account the
claim of opposite party and such a suit
would hit by Section 5 (2) of Act, 1953.

12. Therein the Court had no
occasion to consider whether a suit for
mere injunction would also come within
the ambit of Section 5(2) of Act, 1953.

13. This issue came up for
consideration in Zor Singh & Ors.
(supra) but the facts of the case show that
though the suit was filed for permanent
injunction, but plaintiff himself admitted
that defendant had dispossessed him and
therefore the Court took a view that if that
being so, no suit for mere injunction was
maintainable and the suit should have
been for possession. Once a suit for
possession has to be filed, a dispute with
regard to title over the land has to be
decided by the Court and in such
circumstances the suit would be covered
by Section 5(2) of Act, 1953 after a
notification has been issued under Section
4(2) of the Act, 1953.

14. Referring to the Apex Court's
decision in Ram Adhar Singh (supra),
the Court also observed, where right or
title to the land is not involved, a suit for
injunction
would
fall
outside
the
provision of Section 5(2) of Act, 1953.
The relevant observations are :

"....Even a suit for an injunction
implies a declaration of right or title to
hold land. In my opinion, even a suit for
an
injunction,
which
involves
a
declaration of title or right or interest in
land, would be struck by Section 5 of the
U.P. Consolidation of Holdings Act. A
suit for an injunction which does not
involve such a declaration, but is based
on an alleged right of easement, may fall
outside the provisions of Section 5."
(emphasis added)

15. The issue, however, has been
settled by a Division Bench of this Court
in Banwarilal & Ors. Vs. Tulsi Ram &
Ors., 1979 All.L.J. 675=1979 RD 136
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 permanent injunction, and the suit
is not of a kind which necessitates
adjudication of rights before relief could
be granted, such a suit would not abate by
virtue of Section 5(2) of Act, 1953.

16. In the context of Civil Court and
Revenue Court's jurisdiction, Apex Court
has also held in Heera Lal & Anr. Vs.
Carjan Singh & Ors., 1990(1) CRC 466
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.

17. If the suit, in the present case, is
looked into in view of above exposition of
law, this Court finds that plaintiff has set
up a case that he is in possession of 10
bigha 7 biswa land of plot no.1259 (old
no.1477) situated at Gram Mahnaura,
Pargana
Gosinda
Parsandan,
Tehsil
176 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Hasanganj,
District
Unnao
and
is
continuously cultivating the land. His
crop
is
standing
thereon
but
the
defendants are trying to cut his crop by
threats etc. and therefore, they should be
restrained from taking forceful possession
of property in dispute and should not
damage standing crop and peaceful
enjoyment and possession of plaintiff.
The defendants though disputed the claim
set up by plaintiff, but, admits in written
statement that there are entries in revenue
records which are in the name of plaintiff
and plot no.1259 is a very big plot of
which 133 bigha and 18 biswa was
registered in the name of a agricultural
society and defendants are cultivating
thereupon. The entry in revenue records
in respect to plaintiff is not disputed but it
is challenged alleging that it is a forged
entry.

18. Looking to the nature of
allegations contained in the plaint and
relief sought by plaintiff, in my view, the
suit as it stands neither seeks any
correction of record nor any declaration of
rights or interest in the land. Suit for
declaration of rights and interest in any
land necessarily implies relief by way of
declaration of rights in the said land and
unless a relief is claimed, the suit cannot
be said to be one for declaration of rights
or interest in the land.

19. When a suit for recovery is filed,
interest in the land is claimed and that is
how it has been held to be covered by
Section 5(2), which is not the case here.
No such relief in the present case has been
sought by plaintiff. It thus cannot be
termed to be a suit in respect to
declaration of rights or interest in the
land.

20. In respect to injunction suit in
Radha Krishna & Ors. (supra) this
Court further said:

"Further, under the scheme of the
Act, since the authorities are not vested
with any power to grant injunction, the
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."

21. 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, 1953
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.

22. Considering the authorities cited
at the Bar, I find that in Ram Lakhan &
Ors. (supra), the Court simply held the
suit stand abated under Section 5(2) of the
Act, 1953 on the ground that land in
question is covered by definition of 'land'
under Act, 1953 but it has not noticed
Division Bench judgment in Banwarilal
& Ors. (supra) rendered earlier and the
same being a judgment of Larger Bench,
binding on this Court.

23. The decision in Smt. Barsatiya
(supra) has followed dictum laid down in
Zor Singh & others (supra) where this
Court has held that a suit for injunction,
which involves a declaration of title or
right or interest in land, would stand
abated under Section 5(2) of Act, 1953;
1 All] Dinesh Kumar Sahni @ Dinesh Sahni Vs. State of U.P.
177
but it has clearly said that suit for
injunction, which does not involve a
declaration of title or right etc., but is
based on an alleged right of easement,
may fall outside the provision of Section
5(2) of the Act, 1953.

24. The decision in Banwarilal
(supra) has also been followed by this
Court in Kanchan Kumar Chowdhary
Vs. District Judge, Mau, 1999 (1) AWC
152.

25. In view of Division Bench
judgment in Banwarilal & Others
(supra) and the two Single Judge
authority
of
this
Court,
following
aforesaid Division Bench judgment in
Kanchan Kumar Chowdhary (supra)
and Radha Krishna & others (supra), I
am clearly of the view that suit in
question is simply a suit for permanent
injunction and would not stand abated by
Section 5(2) of Act, 1953.

26. The writ petition is, therefore,
dismissed.

27. Interim order, if any, stands
vacated.
---------
 ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.02.2013

BEFORE
THE HON'BLE RAMESH SINHA, J.

Criminal Misc. Bail Application No. 1803 of
2013

Dinesh Kumar Sahni @ Dinesh Sahni

 ...Applicant
Versus
State of U.P.

 ...Respondents

Counsel for the Petitioner:
Sri Raj Kumar
Sri Kundan Pal

Counsel for the Respondents:
A.G.A.

Code of Criminal Procedure, Section 439three different bail applications-by same
petitioner-three
different
Counselconcealing earlier bail applications-even
the
counsel
facing
embarrassing
situation
tendered
unconditional
apology-exemplary cost of Rs. 10,000
imposed-with
direction
to
make
declaration filing any earlier writ, bail,
appeal, revision or 482 applications

Held: Para-11

Before parting with the case, the Court
requests the members of the Bar to
make sure from the litigants and their
Pairokars etc. that before filing any writ
petition, application under Section 482
Cr.P.C., bail application, revision, appeal,
etc. before this Court whether any such
matters have not been earlier filed by
the respective parties before this Court
so that such an embarrassing situation
may not arise again before the learned
counsel and this Court may not be
flooded with multiplicity of litigations on
behalf of one party for same cause of
action and precious time of the Court be
wasted which has large number of cases
pending for disposal and litigants are
waiting for disposal of their cases. It has
been noticed by the Court on various
occasions
while
sitting
in
different
jurisdiction that such instances have
become the order of the day in spite of
various computerized methods adopted
by the Registry of this Court to check
such instances but sometimes it also
escapes from their notice. Thus, the cooperation from the Bar is also required to
save
the
institution
from
such
malpractices.
(Delivered by Hon'ble Ramesh Sinha, J.)