ARVIND KUMAR TRIPATHI ,J. - (1.) THIS first appeal has been filed by the State of U.P. through Collector and others against the judgement and decree dated 21.03.1996 passed by Civil Judge, Senior Division, Azamgarh in O.S. No. 91 of 1995 by which the suit filed by Ram Prasad Saxena against State of U.P. through Collector, Azamgarh, Chief Revenue Officer, Azamgarh, SDM Sadar, Azamgarh and Tehsildar, Tehsil Sadar, District Azamgarh was decreed and defendants were restrained from interfering in possession of the plaintiff over the plot No. 740 situated in Mauja Narauli, Paragana Nizamabad, Tehsil Sadar, District Azamgarh area 3 acre 590 Kari i.e. 1.453 Hector.
(2.) RAM Prasad Saxena, the plaintiff-respondent has filed a suit that his brother Ganga Ram Saxena was the owner and bhumidhar of plot No. 740 area 3 acre 590 kari situated in Mauja Narauli, Tehsil Sadar, District Azamgarh, after death of his brother, plaintiff became bhumidhar of the land being legal heir of his brother. The entire land except certain portion towards west-north has been surrounded by a boundary wall. Several persons have constructed their houses in the west side for which an O.S. No. 44 of 1992 Badri Prasad vs. Ram Prasad and other is pending. The wall is shown in the plaint with letters E, F, G, H, D, I, E. Plaintiff has sold the part of his land through the sale deed to Pramod Kumar. The land abuts the road and now Azamgarh has been declared as a Commissionery. Defendants are adamant to use his land and want to take forcible possession for that purpose. Plaintiff has shown his papers, but despite that defendants are not paying any heed. According to the plaintiff, cause of action arose on 14.04.1995 when defendants threatened to dispossess him by dismantling the boundary wall. Plaintiff, after seeking permission to file a suit without giving notice under section 80 CPC, filed the suit on 15.04.1995. Plaintiff prayed that the defendants be restrained from taking forcible possession of the disputed land plot no. 740, situated in village Narauli, Tehsil Sadar, District Azamgarh. Defendants except District Magistrate Azamgarh, filed their written statement after taking much time for filing written statement on 30.10.1995 alleging that the revenue entry is forged so they have been cancelled. Plot No. 740 area 3 acre 590 kari, situated Mauja Narauli Tappa Harbanshpur, Paragna Nizamabad, Tehsil Sadar, District Azamgarh has been recorded as Nazul land in revenue records and as such nobody can get any right over that. When the complaint was made by Additional District Government Counsel, (Revenue) Azamgarh, then old records were seen and on inquiry it was found that the plaintiffs name has wrongly been recorded on that land, then District Magistrate Azamgarh, directed on 18.05.1995 for expunging the name of plaintiff over that land and thus the name of the plaintiff has been expunged from the revenue records. Plaintiffs filed an appeal before the Commissioner and the Commissioner has also found the entry in favour of plaintiff forged, but as according to him, no opportunity was given to the plaintiff, hence the matter was remanded back to the District Magistrate to pass orders after hearing the plaintiff. The matter is pending, thus the plaintiff has alternative remedy in competent court. It has also to be noticed that the plaintiff was posted in Z.A.C. as Naib Tehsildar and he has tried to grab the land by creating wrong entry in revenue record in favour of his elder brother Ganga Ram Saxena. The disputed land is a nazul land and nobody can get Bhumidhari right and his name cannot be mutated over that land. The land is old banjar and parti on the spot. Since the plaintiff has filed a suit claiming himself to be bhumidhar of the land, hence the civil court has no right to try the suit. It has also been alleged that the suit is barred by the provisions of Section 34 Specific Relief Act, the suit is barred by Section 80 CPC. Ministry of Defence is also a necessary party in this case so the suit is barred by non-jointer of necessary party. Learned court below after perusing the pleading of the parties framed following issue:- 1. Whether the plaintiff is in possession of the disputed land as owner?. If yes, its effect. 2. Whether the suit is beyond jurisdiction of this Court. 3. Whether the suit is barred by Section 34 Specific Relief Act. 4. Whether the suit is barred by provisions of Section 80 CPC. 5. Whether the suit is barred by non-joinder necessary party. 6. To what relief if the plaintiff entitled.
(3.) IN order to prove their case, plaintiff examined himself as P.W. 1 and defendant has examined Durgadhar Dubey, Lekhpal, area Narauli, Tehsil Sadar, District Azamgarh. No other witness was examined by either of the parties. Parties have also filed several papers which shall be dealt later on at appropriate places. After hearing the parties and going through the evidence and pleadings the trial court decided issue no. 1 in favour of plaintiff, issue no. 2, 3, 4 and 5 against the defendants and on the basis of disposal of issue no. 1 to 5 decided issue no. 6 in favour of plaintiff and decreed the suit in favour of the plaintiff. Feeling aggrieved, this appeal has been filed.;