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Judgment
Sharad Kumar Sharma, J
Based on the purchase of the property, by virtue of a registered sale deed dated 13th July 1988, executed in favour of the petitioner, who was the plaintiff in Suit Number 567 of 1997, M/s Basant Agro Farms Product Ltd. v. Arun Bhaskar, he has described the property, which was a subject matter of the Suit as to be the property, contained hereunder:-
पूर्व में - सम्पत्ति श्री विजय माथुर
पश्चिम में - सम्पत्ति नगर पालिका
उत्तर में - 7 फिट चौड़ा पैसेज
दक्षिण में - मसूरी-देहरादून रोड
The said property, which has been defined in the Suit for grant of decree of injunction, as preferred by the petitioner-plaintiff, in the said Suit it didn't decipher or described the property with its khasra number or the municipal numbers, if at all, it was ever assigned to it. The said Suit, which was instituted on 21st August 1997, it proceeded and ultimately the said Suit was decreed on merits by the Court of Civil Judge (Senior division) by its judgement dated 24th April 2002. This judgement dated 24th April 2002, decreeing the Suit for grant of decree of permanent injunction in favour of the plaintiff/petitioner, who is the plaintiff in the said Suit, it would be quite obviously confined with regards to a decree in relation to a property, which was the subject matter of the Suit itself and nothing beyond it.
The said Suit, which was decreed, it rather shows that the defendants (respondents herein), had put in appearance, they have filed a written statement being paper number 47A, and thereafter the trial Court has proceeded to decide the Suit by the said judgement in the absence of there being any evidence, led by the respondents.
Be that as it may. The finding on which the petitioner harps upon are the findings recorded in relation to the issue number 1, even if the arguments, as extended by the learned counsel for the petitioners for the time being is accepted that the finding on issue number 1 is in relation to the property, which is a subject matter of the sale deed, which he has purchased in 1988, it goes beyond its doubt that the decree dated 24th April 2002, cannot be expanded to include within itself any other property, then except the property which has been described in the said Suit itself by the plaintiff/petitioner.
The learned counsel for the respondents has drawn the attention of this Court to an order dated 26th August 1997, as passed by the learned trial Court in relation to Suit number 567 of 1997, M/s Basant Agro Farms Product Ltd. v. Arun Bhaskar, wherein at an interim stage. What he tries to extract from the said order is that the findings, which has been recorded therein, in order to deduce that the case of the plaintiff-petitioner in the said Suit was in relation to the property, which was a subject matter of the Suit itself and according to his own case, it was a property, which was lying within the Municipal area, whereas, as per the order dated 26th August 1997, passed in Suit No. 567 of 1997, the claim of the respondents was exclusively in relation to the Khasra Number 701, situated in village Kyarkuli Bhatta, being a revenue earning land, and the said property was outside the limits of the Nagar Palika.
What he tries to draw the distinction in relation to the subject matter of the suit and in relation to the property, which was claimed by the defendants/respondents, in the said suit is from the findings, which have been recorded by the Court below in the operative portion of the order dated 26th August 1997, which is quoted hereunder:-
"6ग-2 प्रा0पत्र बावत अन्तरिम व्यादेश इस आशय से निस्तारित किया जाता है कि पक्षकार विवादित सम्पत्ति जिसका विवरण वाद पत्र के अंत में दिया गया है एवं जो नगरपालिका सीमा में अंतर्गत है पर अग्रिम आदेश होने तक यथास्थिति बनाये रखेंगे। यह आदेश खसरा सं0 701 की सम्पत्ति स्थित ग्राम क्यारकुली भटटा परगना केन्द्रीयदून जो कि नगरपालिका की सीमा के बाहर है पर प्रभावी नहीं है।''
The learned counsel for the respondents wants to submit that since at an interim stage, it was a consensus, which was extended by the plaintiff for the purposes of granting of an interim injunction under the pretext that the property, which is the subject matter of Suit Number 567 of 1997, M/s Basant Agro Farms Product Ltd. v. Arun Bhaskar, being distinct to the property, which the respondents claims to be lying in Khasra Number 701, it will be extracted and amounting as to be an admission on the part of the plaintiff/petitioner to serve as the distinction between the two properties, which is the subject matter of the Suit.
Tentatively, this Court is not in agreement with the argument, which has been extended by the learned counsel for the respondents, for the reason being that the ambit of the interim order dated 26th August 1997, so far it has recorded a finding regarding the property in dispute in the suit it is based on a consensus between the parties with regards to the two properties that is the property in the suit and the property as claimed by the respondents being listed was on a basis of the consensus and that was yet again only contained to be maintained during the pendency of the Suit itself. It is a settled law and also in the opinion of this Court also that the said finding, which has been recorded in the order dated 26th August 1997, with regards to the distinction being drawn in relation to the property, which was the subject matter of the suit to be lying within the municipal area, and the property khasra No. 701, lying outside the Municipal area in the revenue village, belonging to the respondents, it was a tentative arrangement and finding which is made during the pendency of the Suit only.
However, under the principles of merger, when the Suit itself was ultimately adjudicated on 24th April 2002, by decreeing of the Suit, the order dated 26th August 1997 would loose its significance and will not have any binding precedent for the purposes of adjudication, until and unless the Court, while decreeing the Suit of the petitioner on 24th April 2002, derives or extracts the finding of the said temporary injunction order for the purposes of final adjudication of the Suit itself.
But, the fact remains to be determined is that upto what extent the impact of the decree dated 24th April 2002, could have and be read. It goes without saying that once according to the plaint averments and in particular, to the description of the property, which has been described hereinabove or in plaint of the suit, the decree of 24th April 2002, would only be read and be treated to be effective only in relation to the property, which has been specifically described in the plaint and its ambit cannot be extended beyond the property, which was actually made as the subject matter of the Suit. In the meantime, the main controversy, which is under consideration now, which has emerged is on the initiation of the proceedings, under Section 41 of the Land Revenue Act at the behest of the respondents, when they have filed an Application before the Competent Authority on 18th November 2014, that is, much after the passing of the decree dated 24th April 2002, praying for a demarcation of Khasra Number 701, situated at Kyarkuli Bhatt, District Dehradun, seeking its demarcation by metes and bounds.
The said demarcation was carried after the same was allowed and determined by the Court of Sub Divisional Magistrate by an order dated 7th April 2016. The Court of Sub Divisional Magistrate, while considering the Application under Section 41 of the Land Revenue Act, has specifically recorded its finding of the demarcation exclusively being in relation to the Kasara Number 701, having an area of 0.1860 hectare, which was based upon a finding which has been recorded in the demarcation report submitted by the Tehsildar on 12th September 2015 based on which the demarcation judgement was rendered on 7th April 2016.
It is this demarcation report and the order dated 7th April 2016, which has been made subject matter of the revision under Section 219 of the Land Revenue Act, 1901, at the behest of the present petitioner on the pretext that this order of demarcation would amount to barging over the decree rendered in a regular Suit Number 567 of 1997, M/s Basant Agro Farms Product Ltd. v. Arun Bhaskar, and hence this order of demarcation, which is rendered in proceedings which is summary in nature, in view of the provisions contained under Section 40A of the Land Revenue Act, 1901, hence the same cannot be adopted as a recourse to overcome or override a decree, which has been rendered in favour of the plaintiff/petitioner in a regular Suit. Section 40A of the U.P. Land Revenue Act, 1901 reads as under:-
"[40A. Saving as to title suits. - No order passed under Section 33, Section 35, Section 39, Section 40, Section 41 or Section 54 shall bar any suit in a competent Court for relief on the basis of a right in a holding.]"
On the contrary, the argument as extended by the learned counsel for the respondents is that since the order of demarcation dated 7th April 2016, being rendered is a summary proceedings under the Land Revenue Act, hence even if the revision has been decided against the petitioner, the recourse available to the petitioner would be available to him in accordance with the provisions contained under Section 40A of the Land Revenue Act for getting his rights determined in relation to the property, which was sought to be demarcated i.e. Khasra Number 701 by resorting to the regular proceedings before the Competent Court.
He further submits that there was no necessity for him to elaborate on the controversy, which was raised in the Suit number 567 of 1997, M/s Basant Agro Farms Product Ltd. v. Arun Bhaskar, because as per his contention, though it has been disputed by the petitioner, it is that since the dispute in proceedings under Section 41 of the Act, it was in relation to altogether a different and a distinct property than the one which was lying in municipal area, it will have no bearing as far as the determination of a decree is concerned at the behest of the respondents, because Section 41 order cannot override the decree of the suit.
As far as this argument pertaining to maintainability is concerned, as raised of the learned counsel for the respondents, it may be sustained for a limited purposes that if at all the demarcation which has been made by the order dated 7th April 2016, is concerned, which has been affirmed by the Revisional Court's order, which is impugned in the present writ petition, that will be exclusively and only confined to Khasra Number 701, on which the claim has been raised by the learned counsel for the respondents based on the subsequent sale deed as executed in favour of the respondents. After having said so, and while determining the exclusive rights of the defendant to get his property demarcated under Section 41 of the Land Revenue Act, which he claims to have purchased by the sale deed of 1996, it further remains a settled law that the summary proceedings of Section 41 of the Land Revenue Act, if it is confined it is bound to confined and limited in relation to a different set of property, lying in revenue area and will never related to suit property which is located in municipal area, and which according to the respondent was not a subject matter of the Suit Number 567 of 1997, M/s Basant Agro Farms Product Ltd. v. Arun Bhaskar, as preferred by the petitioner, in such an eventuality, the implications of the demarcation order dated 7th April 2016, will never be extracted in order to cloud over the rights of the plaintiff, which has been determined by the decree dated 24th April 2002 rendered in a regular suit.
Hence, while holding that the decree dated 24th April 2002, would be confined to the property, which has been described in the plaint and which admittedly according to the respondents themselves happens to be a distinct property, than which was subject matter of the proceedings under Section 41 of the Land Revenue Act, this writ petition is being closed with the following directions:-
1) The order of demarcation dated 7th April 2016, in a proceedings under Section 41 of the Land Revenue Act, initiated at the behest of the respondents, would be exclusively confined to Khasra Number 701 only, which has been subsequently claimed to have been purchased by the respondents by the sale deed of 1996
2) The said demarcation report or the consequential dismissal of the revision under Section 219, as preferred by the petitioner will have no consequential effect on the property, which was the subject matter of the Suit, as described in the plaint, because which according to the petitioner himself it was a property, which was lying in the Municipal area and it was absolutely a distinct property to the one which was covered and involved in the proceedings under Section 41 of the Land Revenue Act.
Thus, this Court is of the view that the demarcation order will not in any way have any affect on the regular decree, which has already been rendered in favour of the plaintiff/petitioner, and which has attained finality since not challenged by any aggrieved party before any superior Court. But, that goes without saying that if at all still the petitioner has slightest notion that the order of demarcation dated 7th April 2016, has an affect on a determination of his right as made by the decree dated 24th April 2002, in that eventuality, he will have a remedy available to him under Section 40A of the Land Revenue Act of 1901, by getting his rights determined in case if his rights settled by the decree is affected by the demarcation order dated 7th April 2016 rendered in a summary proceedings under Section 41 of the Land Revenue Act, 1901. This observation of availability of a remedy under Section 40A of the Land Revenue Act will not infringed the rights of the petitioner in relation to getting his decree dated 24th April 2002, rendered in Suit number 567 of 1997, M/s Basant Agro Farms Product Ltd. v. Arun Bhaskar, to be executed in accordance with law.