# Vijay Kumar Chaubey Defendant v. Rajendra Agarwal Plaintiff

- **Citation:** (2023) 3 ILRA 1271
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-06
- **Case number:** Matters Under Article 227 No. 10252 of 2022
- **Bench:** Vivek Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-kumar-chaubey-defendant-v-rajendra-agarwal-plaintiff-49224
- **Pages:** 3

## Headnote

A. Civil Law - Code of Civil Procedure,
1908 - Order XXXIX Rule 4 - Objections
allowed- Temporary injunction set aside-
temporary injunction against co-sharers
of the property without partition- Full
bench decision of Chedi Lal- right of cosharer distinct from relief to be granted-
his share invade by other co-sharers-
exclusively appropriating or cultivating
land or raising constructions- injunction
suit maintainable- only when exclusive
appropriation by other co-sharers- or
when
plaintiff
cannot
be
adequately
co

## Text

3 All. Vijay Kumar Chaubey Vs. Rajendra Agarwal
1271
Section 17 of Act, 1908 nowhere provides,
if a registration of a document is provided
under any statute, that would not be
necessary by virtue of Section 17 of Act,
1908. Section 17 of Registration Act
nowhere has overriding effect as such over
Section 54 therefore, both these provisions
have to be read together. That being so, I
am clearly fortified from the view taken by
this Court in Budhi Ram (supra) that sale
of property, if made through an instrument
in writing then it shall not result in transfer
of property, even if worth of property is less
than
Rs.100/-,
since
registration
of
document is necessary by virtue of Section
54 of Act, 1882. In such a case, I do not
find any provision which may come to help
a party who is staking his claim on the
basis of an unregistered instrument. I am,
therefore, clearly in agreement with the
view taken by Court below that sale deed
dated 22.12.1976, being an unregistered
document, was a nullity and did not result
in conferring any rights upon defendanttenants i.e. petitioners with regard to suit
property.

25. The above authorities clearly
show that a mere dispute of title raised,
would not oust the jurisdiction of Small
Cause Court in proceeding to decide a suit,
filed before it, and it is not bound to return
the plaint on mere raising of such a
dispute. Section 23 clearly says; only when
the Court comes to the conclusion that it
cannot decide the right of plaintiff and
relief claimed by him since that would
depend upon the proof or disproof of a title
to immovable property, it may return the
plaint and not otherwise.

26. In the present case plaintifflandlord claim their rights founded on a
registered instrument while the petitionerdefendants contested the matter relying on
an unregistered document which was ex
facie
illegal.
Hence
there
was
no
substantial dispute of title. It cannot be said
that plaint ought to have been returned by
Trial Court and the suit was incompetent.
This question is also answered against
petitioners. "

30. In the present case I also find that
respondent land lord has acquired title by
virtue of a registered sale deed dated
13.6.2011 whereas petitioner tenant was
contesting the title of the land lord on the
basis of an unregistered agreement for sale
of which even original copy was not filed
before the Court as an evidence to the
pleadings raised .

31. In view of above, therefore, I do
not find any error apparent on the face of
record in the judgments and order passed
by the trial court and, therefore, refuse to
interfere in this revision petition. Both the
petitions filed under Article 227 of the
Constitution and revision filed under
Section 25 of the Provincial of Small Cause
Courts Act, 1887, being no. 234 of 2014
accordingly dismissed for want of merit
and consigned to records.
----------
(2023) 3 ILRA 1271
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.12.2022

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Matters Under Article 227 No. 10252 of 2022
(Civil)

Vijay Kumar Chaubey
 ...Defendant- Petitioner
Versus
Rajendra Agarwal ...Plaintiff- Respondent

Counsel for the Petitioner:
Sri Akhilesh Kumar Singh
1272 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondent:

Civil Law -Uttar Pradesh Municipality Act,
1916- Section 160 -Maintainability of
appeal before Chief Judicial Magistrate-
State
Government-
notification
dated
11.07.1974- Appeal under Section 160 can
be heard by the court of Chief Judicial
Magistrate- impugned order passed by
Chief Judicial Magistrate, Gorakhpur is
within its jurisdiction- Petition dismissed.

HELD: Learned counsel for the petitioner has
placed reliance on a judgment of this Court
dated 08.05.2020 passed in the Matters Under
Article 227 No.9748 of 2019 (Sajal Kumar and 2
others Vs Chief Judicial Magistrate, Ballia and 6
others), in which, referring to Section 160 of the
Municipality Act, Court has held that the District
Magistrate of the District alone has power to
hear the appeal and the Chief Judicial
Magistrate does not have any such power. A
perusal of the said judgment shows that the
same was passed as the notification dated
07.11.1974 was not placed before the Court.
Thus, the said judgment passed without taking
into
consideration
the
notification
dated
07.11.1974 does not lay down the correct law.

Petition dismissed. (E-14)

List of Cases cited:

Matters Under Article 227 No.9748 of 2019
(Sajal Kumar & ors. Vs Chief Judicial Magistrate,
Ballia & ors.)

(Delivered by Hon'ble Vivek Chaudhary,
J.)

1. Heard learned counsel for the
petitioner and perused the record.

2. The petitioner has filed the present
petition
challenging
the
order
dated
15.10.2022 passed by the learned Chief
Judicial Magistrate, Ghazipur in Appeal
No.5 of 2021 (Rajendra Kumar Agarwal
Vs. Vijay Kumar Chaubey and others),
under Section 160 of the U.P. Municipality
Act,
whereby
he
has
rejected
the
preliminary objection with regard to
maintainability of the appeal under Section
160 of the U.P. Municipality Act, 1916.

3. The objection was raised by the
petitioner before the appellate Court that
the appeal is not maintainable before the
Chief Judicial Magistrate under Section
160 of the Municipality Act and would be
maintainable before the District Magistrate.
The said act itself provides that the State
Government may issue an appropriate
notification giving power to hear the appeal
to any other Authority/Court also. By
notification dated 11.07.1974, issued in
consultation with the Allahabad High
Court, the State Government provided that
the appeal can be heard by the Court of
Chief
Judicial
Magistrate
also.
The
notification dated 11.07.1974, is quoted
below:-

"सिंख्या-80/6(1) दो-ग-7(5)/70

श्री िन्द्रभूषणिर वद्ववेदी

उप सविव

उ०प्र० शासन

सेवा में

समस्त वजला मवजस्ट्रेट

उ०प्र०

वनयुप्तक्त (ग) ववभाग

वदनािंक लखनऊ, नवम्बर 7, 1974

ववषय- यू०पी०म्यूवनस्पेल्टीज एक्ट 1916
की िारा 160 तथा 318 तथा अन्य प्रकीणग थथानीय
एविं ववविक अविवनयमोिं के अिीन अपीलोिं की
सुनवाई।

महोदय,

उपरोक्त ववषय पर शासन के पृष्ठ
सिंख्या-3551(1)/दो-ग(5)/70
वदनािंक
6
जून
1974के अनुिम में मुझे यह कहने का आदेश हुआ
है वक शासन ने उच्च न्यायालय इलाहाबाद के
परामशग
से
यह
वनणगय
वलया
है
वक
यू०पी०म्यूवनस्पेल्टीज एक्ट 1916 की िारा 160 तथा
3 All. Smt. Shahnaz Begum Vs. District Judge, Sultanpur & Ors.
1273
318 के अिीन अपीले िीफ जुवडवशयल मवजस्ट्रेटोिं
के द्वारा ग्रहण की जानी तथा सुनी जानी िावहए।

2- शासन ने यह भी वनणगय वलया है वक
अन्य प्रकीणग थथानीय या ववशेष,अविवनयमोिं के
अन्तगगत अपील तथा पुनीक्षण प्राथगना पत्रोिं की
सुनवाई िीफ जुवडवशयल मवजस्ट्रेटो द्वारा की जाएगी
वसवाए उस दशा में जब वक उनके अविकार स्वयिं
ववशेष अविवनयमोिं द्वारा सीवमत कर वदये गए हो।

भवदीय

ह० िन्द्रभूषणिर वद्ववेदी

उपसविव"

4. Referring to the above quoted
notification,
learned
Chief
Judicial
Magistrate, Ghazipur has rejected the
objection.

5. Learned counsel for the petitioner
has placed reliance on a judgment of this
Court dated 08.05.2020 passed in the
Matters Under Article 227 No.9748 of
2019 (Sajal Kumar and 2 others Vs. Chief
Judicial Magistrate, Ballia and 6 others), in
which, referring to Section 160 of the
Municipality Act, Court has held that the
District Magistrate of the District alone has
power to hear the appeal and the Chief
Judicial Magistrate does not have any such
power. A perusal of the said judgment
shows that the same was passed as the
notification dated 07.11.1974 was not
placed before the Court. Thus, the said
judgment passed without taking into
consideration
the
notification
dated
07.11.1974 does not lay down the correct
law.

6. In view thereof, the order passed by
the Chief Judicial Magistrate, Ghazipur in
Appeal No. 5 of 2021, is within its
jurisdiction.

7. No other submission is made by the
petitioner.

8. Thus, no force is found in the
present petition and the same is dismissed.
----------
(2023) 3 ILRA 1273
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.02.2023

BEFORE

THE HON'BLE MANISH MATHUR, J.

Matters Under Article 227 No. 546 of 2023

Smt. Shahnaz Begum ...Petitioner
Versus
District Judge, Sultanpur & Ors.
 ...Respondents

Counsel for the Petitioner:
Mohammad Aslam Khan

Counsel for the Respondents:
Kaleem Ur Rehman, Shaista Parveen

A. Civil Law - Code of Civil Procedure,
1908 - Order XXXIX Rule 4 - Objections
allowed- Temporary injunction set aside-
temporary injunction against co-sharers
of the property without partition- Full
bench decision of Chedi Lal- right of cosharer distinct from relief to be granted-
his share invade by other co-sharers-
exclusively appropriating or cultivating
land or raising constructions- injunction
suit maintainable- only when exclusive
appropriation by other co-sharers- or
when
plaintiff
cannot
be
adequately
compensated at the time of partition-
lastly, greater injury to the plaintiff by
refusal of relief than by granting it-
question answered negatively against the
plaintiff-
no
partition-
no
averment
regarding trampling of exclusive share of
the plaintiff.

HELD: Upon consideration of Full Bench
Decision, it is apparent that the Full Bench has
answered the question that right of cosharers in
respect of joint land is required to be kept
separate and distinct from the question as to