- (1.) HEARD Sri H. C. Saxena and Sri O. P. Pandey, learned counsels for the appellant and Sri A. K. Mishra advocate, for the contesting respondents.
(2.) THIS is plaintiffs second appeal against the judgment and decree dated 31. 8. 1995, passed by the Additional District Judge, Varanasi, Mahrajganj in Civil Appeal No. 1 of 1994 confirming the judgment and decree dated 15. 12. 1993, passed by Munsif Magistrate, Farenda, district Maharajganj in Original Suit No. 280 of 1991. An original suit was preferred by the plaintiff claiming himself to be son of Phaiku and owner in occupation. It was pleaded that the defendant-respondents have started interfering with the peaceful possession of the appellant and injunction suit was instituted in respect of Plot No. 1499 area 749d situated in Village Bargahpur, Pargana and Tehsil Farenda, District Maharajganj. The claim of the defendants was on the basis of a Will executed by Phaiku. The defendants were nephew of Phaiku and it was contended that he died issuless. The trial court and lower appellate court were of the view that the dispute is in respect of agricultural land and, therefore, the civil suit is not maintainable and is barred by Section 331 of U. P. Zamindari Abolition and Land Reforms Act. The substantial questions of law framed in this appeal, on which the appeal was admitted, are as under: 1. Whether the plaintiff is the son of Phaiku ? 2. Whether Phaiku bequeathed the agricultural land in suit to the defendants by Will as alleged by the defendants ? Therefore, the only question whether the plaintiffs suit is barred by Section 331 of the U. P. Zamindari Abolition and Land Reforms Act arises for consideration in this appeal. The first question is factual and cannot be reopened and reassessed in a second appeal. The findings of the trial court on issue Nos. 1 and 2 have been emphatically challenged. The submission is that while deciding issue No. 2, the trial court recorded its finding that the suit is barred is per se illegal.
(3.) IN the circumstances, the short question involved in the present second appeal is, whether the suit was barred or not. Learned counsel for the appellant has placed the plaint before me in support of this contention that the suit was simplicitor for relief of injunction and, therefore, this relief could not be given by the revenue courts and the suit was maintainable. I have perused the findings of the courts below on issue No. 2. It is evident that the name of the plaintiff is not recorded in the revenue records and, therefore, perusal of paper No. Ga/49 and statement of P. W. 1, it is evident that the mutation proceedings are pending before the revenue courts and the question of ownership is yet to be decided. Issue No. 1 relates to question whether the plaintiff is owner in occupation of Plot No. 1499 (area 749 ). Since the question of injunction can only be considered, if the plaintiff establishes his title and thereby consequent possession. Since both the questions are inter linked, it cannot be said that the suit instituted by the plaintiff was simpliciter for injunction. In fact the courts below were required to decide the question of title and possession on merits. Though this Court, while admitting the second appeal, framed question of law regarding the parentage of plaintiff and his relation with Faiku. Both the courts below have come to a definite conclusion and recorded a finding of fact that on the basis of documentary proof paper No. Ga/15, Extract Khasra Paper No. Ga/16, extract khatauni Paper No. Ga/76 and Khasra Paper No. Ga/77 by the plaintiff failed to establish their prima facie right to the disputed property, the defendants are recorded in the revenue records and if the plaintiff has any objection, it can only be challenged before the revenue court by instituting a suit for declaration. The name of plaintiff was not recorded in the revenue records and, therefore, the Courts were of the view that the question as to whether the plaintiff is son of Faiku or not is to be decided first before any relief of injunction could be granted. I am in agreement with the findings arrived at by both the courts below that the suit was not maintainable and barred by Section 331 of U. P. Zamindari Abolition and Land Reforms Act.;