- (1.) THIS appeal, preferred under Section 100 of Code of Civil Procedure, 1908, is directed against the judgment and de cree dated 28. 04. 1990, passed by IVth Additional District Judge, Nainital, whereby Appeal No. 83 of 1989, filed by defendant / appellants is dismissed and judgment and decree dated 20. 09. 1989, passed by Munsif, Kashipur, to Original Suit No. 86 of 1986, decreeing the suit, is affirmed. (Earlier Kashipur was part of District Nainital, now part of District Udham Singh Nagar ).
(2.) HEARD learned counsel for the parties and perused the record. Brief facts of the case are that plaintiff / respondent Bhajan Singh in stituted Suit No. 86 of 1986 against the defendants for permanent injunction re straining them from interfering in the possession of land in suit and also restraining them from demolition of wa ter channel (NALI ). The plaintiffs case is that he is Bhumidhar (a tenure holder having transferable right) of Khata No. 6, measuring 6. 54 acres of land in village Jagdishowala, Tehsil Kashipur. He is in possession of said land and cultivating the same. It is further pleaded in the plaint that defendants have no right over the land in suit, but on 15. 05. 1986, they threatened to plough the land in suit and to interfere with the water chan nel. Hence the suit. Defendants (present appellants) contested the suit wherein it is admitted that only l/3rd share (4. 29 acres) is owned by the plaintiff as Bhumidhar in Khata No. 6. It is further pleaded in the written statement that the defendants' share over the land is 2/3rd (8. 68 acres ). As such the dispute relates to 2. 15 acres of the total land of Khata No. 6. which is Bhumidhar land of the defendants and they are in exclusive possession of the same. As to the incident of 15. 05. 1986, it is alleged that tire defendants never threatened to encroach upon any land of the plaintiff. It is also pleaded that the plaintiff Bhajan Singh and Ujagar Singh (father of the defend ants Jeet Singh, Milkiat Singh and Cyan Singh) purchased land of same Khata. Ujagar Singh purchased the land of Sukha Singh and Teja Singh, who had a total share of 2/3rd over the Khata number. Bhajan Singh purchased land of same Khata number from Prakash Singh, who has l/3rd share in it. The Khata of the parties were joint, but they were in possession in their separate shares. When consolidation proceedings started in the village, by mistake shares of plaintiff Bhajan Singh and that of Ujagar Singh (father of the defendants) were shown as half for each of the two. But the defendants challenged the order dated 17. 08. 1971, passed by Consolidation Officer, Kashipur, and the appellate court (Settlement Officer of Consolida tion, Nainital) set aside the order of the Consolidation Officer and declared 2/3rd share of Ujagar Singh (father of the de fendants ). The said finding of Settle ment officer of Consolidation was af firmed (in Revision) by Deputy Director of Consolidation, Moradabad, and also writ petition filed by the plaintiff was dis missed. But due to the interim stay or der passed by Allahabad High Court during the pendency of Writ Petition No. 662 of 1972, the order of Settlement Of ficer of Consolidation could not be imple mented on the record and the error which percolated due to the order dated 17. 08. 1971, passed by Consolidation Of ficer remained on the revenue record. The defendants have further pleaded that land of Plot No. 67/1 (before consolidation pro ceedings), formed part of present Khata No. 6, which includes other land also. In the original Plot No. 67/1 due to some mistake the plaintiff was shown to be Bhumidhar in respect of an area of 6. 44 acres, which actually includes the disputed land measuring 2. 15 acres belonging to the defendants.
(3.) ON the basis of the pleadings of the parties the trial court framed follow ing issues : (i) Whether the plaintiff is Bhumidhar (tenure holder hav ing transferable right) of Khata No. 6 / measuring 6. 54 acres of land in village Jagdishowala, Tehsil Kashipur? OR is he Bhumidhar over only 4. 29 acres in said Khata? (ii) Whether this Court (civil court) has any jurisdiction to try the suit? (iii) Whether the suit is under valued and court fee paid is insufficient? (iv) To what relief, if any is entitled? The trial court decided issue no. 3 in negative on 17. 04. 1989, as a pre liminary issue. Thereafter, the trial court recorded evidence of parties and after hearing them decided all three other is sues (issue no. 1, 2 and 4) in favour of the plaintiff and decreed the suit for per manent injunction against the defend ants directing them not to interfere over the land measuring 6. 54 acres of Khata No. 6 of village Jagdishowala, in posses sion of the plaintiff. Aggrieved by said judgment and decree dated 20. 09. 1989, passed in Suit No. 86 of 1986, the de fendants filed Appeal No. 83 of 1989, which was dismissed by IVth Additional District Judge, Nainital, vide its judgment and order dated 28. 04. 1990, however, while dismissing the appeal it is observed by the lower appellate court that the de fendants are not barred from taking pos session of 2. 15 acres of land from plain tiff, of old Plot No. 67/1. The defend ants filed this present appeal before Allahabad High Court on 16. 08. 1990, where it was admitted on 03. 01. 1991. However, it appears that no substantial question of law is framed by Allahabad High Court at the time of admitting this second appeal. The second appeal is received by this Court under Section 35 of U. P Reorganisation Act, 2000, for its disposal. On 01. 05. 2008, this Court formulated following two substantial questions of law involved in this appeal: (i) Whether, the trial court had ju risdiction to try the suit? (ii) Whether, after findings arrived at by consolidation courts and the judgment of Allahabad High Court dismissing writ petition filed by the respondent, the trial court could not have granted the injunction?;