- (1.) PRAFULLA C. Pant, J. This appeal, preferred under Section 96 of Code of Civil Procedure, 1908, is directed against judgment and decree dated 20-08-2004, in Original Suit No. 407 of 1996, passed by learned Additional District Judge/fast Track Court I, Dehradun, whereby said suit has been decreed in favour of the Plaintiff, granting injunction against the defendant/appellant.
(2.) BRIEF facts of the case are that Plaintiff/respondent- Rahiman Bai Guddi, instituted aforementioned suit No. 407 of 1996 with the pleadings that she was owner and in possession of khata No. 186, plot No. 25/3, measur ing area 0. 300 and plot No. 46/11, measuring area 0. 814 in village-Haripur Kalan, Tehsil and District-Dehradun. It is further pleaded that she was recorded tenure holder of aforesaid land, which is shown by letters 'aa' 'ba' 'sa' 'da' with its boundaries in the map annexed with the Plaint. From the year 1969 to 1976, on aforesaid land, Plaintiff used to run a factory in the name and style- M/s Jai Chemicals, which was ancillary unit of Indian Drugs and Pharmaceuticals Limited, Rishikesh. On the east of said land, defendant pur chased a plot and constructed her house. In the south of defendant's aforesaid plot, there is a raasta land for his approach towards the main road. In the year 1996, taking advantage of the absence of the Plaintiff, defendant opened her door towards west over the land, shown by letters 'aa' 'ba' 'sa' 'da' and by collecting soil, made at tempt to give shape of raasta over the strip of aforesaid land. The defendant has no right to have passage over this land. Hence the suit for injunction against the defendant/appellant, was in stituted by the Plaintiff/respondent for injunction not to interfere in the peace ful possession of land 'aa' 'ba' 'sa' 'da'. Also, a mandatory injunction was sought that the defendant should close his western door towards the disputed land. (During the pendency of this ap peal, after death of Plaintiff, her legal representatives were substituted ). The suit was contested by the defendant (present appellant) before the trial court, who filed her written statement, denying the contents of the plaint allegations. But it is admitted in the written statement that the defend ant has constructed her house over the plot on the east of the disputed land and has opened a door towards the western side. It is further pleaded by the defendant in the additional pleas that the Plaintiff is not the owner of the dis puted raasta land, which is shown to be part of 'aa' 'ba' 'sa' 'da' in the Plaint map. It is denied by her that the Plaintiff is owner and in possession of the entire land, shown in the Plaint map as 'aa' 'ba' 'sa' 'da'. It is alleged that land of plot No. 18. 0 and 181 are jointly owned by the defendant with one Ved Prakash. It is further pleaded that de fendant along with other villagers uses the disputed passage from the time prior to the purchase of the plot, shown in the east of the disputed land. Lastly, it is pleaded that the suit is not legally maintainable in the civil court. Learned trial court on the basis of the pleadings of the parties, framed the following issues: 1. Whether the property in suit, which includes disputed passage is owned by and in possession of the Plaintiff? 2. Whether the suit is legally not maintainable? 3. To what relief, if any, the Plaintiff is entitled? After recording the evidence and hearing the parties, the learned trial court found that the Plaintiff has been able to establish her bhumidhari rights and possession over the land in ques tion and accordingly decreed the suit with costs against the defendant, direct ing her not to interfere in the peaceful possession of plot No. 25/3 and 46/11 of village Haripur Kalan, shown by let ters 'aa' 'ba' 'sa' 'da' in the Plaint map. It is further directed by the trial court that the soil collected by the de fendant over the disputed land with in tention to give a shape of raasta land be removed, and door 'ka' (shown in Plaint map), opened towards western side of the plot of the defendant be closed. Aggrieved by said judgment and decree, the defendant has preferred this appeal.
(3.) WE heard learned counsel for the parties and perused the record. Learned counsel for the defend ant/appellant, has argued that the suit in question is barred by Section 331 of U. P. Zamindari Abolition and Land Re forms Act, 1950. Sub-section (1) of said Section, reads as under: "331. Cognizance of suits, etc. under this Act- (1) Except as pro vided by or under this Act no court other than a court mentioned in col umn 4 of Schedule II shall, notwith standing anything contained in the Civil Procedure Code, 1908 (V of 1908), take cognizance of any suit, application, or proceedings men tioned in column 3 thereof or of a suit, application or proceedings based on a cause of action in respect of which any relief could be obtained by means of any such suit or appli cation: Provided that where a declaration has been made under Section 143 in respect of any holding or part thereof, the provisions of Schedule II in so far as they relate to suits, applications or proceedings under Chapter VIII shall not apply to such holding or part thereof. Explanation- If the cause of action is one in respect of which relief may be granted by the revenue court, it is immaterial that the relief asked for from the civil court may not be iden tical to that which the revenue court would have granted. (1-A) Notwithstanding anything in sub-section (1), an objection that a court mentioned in column 4 of Schedule II, or, as the case may be, a civil court, which had no jurisdic tion with respect to the suit, applica tion or proceeding, exercised juris diction with respect thereto shall not be entertained, by any revisional court unless the objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and un less there has been a consequent failure of justice. " The above provision, makes it clear that suit in respect of the remedy, which is available under U. P Zamindari Abo lition and Land Reforms Act, 1950, be fore the revenue court was not to be entertained by other courts. There is no doubt that remedy of injunction is not available in the revenue court. The trial court has decided issue No. 2 in favour of the Plaintiff on the ground that the relief of injunction was not available before the revenue court. On behalf of the appellant, it is argued that under the color of the injunction, a remedy which was available before the revenue court cannot be sought from the civil court. It is further contended on behalf of the appellant that the title of the Plaintiff is disputed by the defendant, as such, the question of title which can be got declared from the revenue court, cannot be got so declared from the civil court by seeking relief of injunction. Had the Plaintiff been not a recorded tenure holder in respect of the land for which she has sought relief of injunc tion, the contention of the learned counsel for the appellant could be ac cepted. But in Para-1 of the Plaint it self, Plaintiff has alleged that she is a recorded tenure holder and in posses sion of land of plot No. 25/3 and 46/ 11, shown with letters 'aa' 'ba' 'sa' 'da' in the Plaint map. In support of said plea, the copies of the revenue pa pers- Khasra and Khatauni, have been filed by the Plaintiff apart from getting witnesses examined orally. As such, it cannot be said that the Plaintiff has sought declaration of title under garb of injunction.;