Bhawan Singh vs Dhan Singh

Sharad Kumar Sharma, J

Learned counsel for the defendant/appellant for the purposes of challenging the judgment and decree dated 28.05.2011 as passed by the learned Civil Judge (S.D.), whereby, the plaintiff/respondent, of Civil Suit No. 52/2004 'Dhan Singh vs. Bhawan Singh' who had preferred a suit for a decree of permanent injunction, which was decreed in his favour, as well as, it is also preferred against the judgment dated 20.02.2014, as passed by the Additional District Judge, Almora in Civil Appeal No. 18/2011 'Bhawan Singh vs. Dhan Singh', wherein, the defendant/appellant had put to challenge, by virtue of which the Appeal preferred by Bhawan Singh under Section 96 of CPC was also dismissed thereby, concurrently affirming the judgment and decree as rendered by the learned Trial Court granting a decree of permanent injunction in favour of the plaintiff/respondent.

To be precise, the controversy in the second appeal, which has been pleaded and as placed by the appellant before this Court, is in relation to the property, which has been more particularly described at the foot of the plaint constituting Khasra Nos. 7824, 7825 and 7826. A reference of Khasra No. 7823, becomes necessary to be considered at this stage because the defendant/appellant claims that the said khasra exclusively belongs to him and he stands to be the recorded in the revenue records as owner of the property. Be that as it may, but as far as the cause of action which gave rise to the present controversy which emanating from the Suit, which was instituted on 06.11.2004 by the plaintiff/respondent was in relation to Khasra Nos. 7824, 7825 and 7826, situated at village Devli, Patti Khasparza, Tehsil and District Almora (hereinafter to be called as property in dispute).

At the very initial stage of the arguments, the learned counsel for the respondent had submitted that as per the revenue records, which is available on record, the defendant/appellant stands recorded only as against Khasra No. 7823, and if at all he continues to hold the ownership it would be in relation to the said property, because even according to the plaintiff/respondent's case the said land, i.e. Khasra No. 7823 which is claimed to be belonging to the defendant/appellant, according to case of parties to the second appeal, already stood acquired in the acquisition proceedings for the construction of the road but, as far as the present second appeal is concerned, this court is not concerned with regards to the plot on. 7823 as it is not the subject matter in dispute. The controversy herein as complained of is the act of encroachment which has made by the defendant/appellant over the land lying in Shreni 1kha belonging to the plaintiff/respondent in Khasra No. 7825 in particular.

Learned counsel for the defendant/appellant had raised three substantial questions for consideration in the present second appeal at the admission stage. Firstly, he submits that there would not have been any cause of action for the plaintiff/respondent to institute the Suit for a decree of permanent injunction, on 06.11.2004, more particularly, when they themselves claim to have purchased the property only on 29.10.2004. As far as the purchase is concerned, admittedly the same happens to be subsequent in time to the cause of action as pleaded in the plaint with regards to the action of the defendant in interfering in possession of the property which is shown to be that of 28.10.2004, i.e. a day prior to the purchase of the property by the plaintiff/respondent.

At this stage itself this court feels its necessary to deal with this argument as extended by the learned counsel for the defendant/appellant regarding that there was no cause of action for the plaintiff to institute the Suit, because the date of cause of action as detailed in the plaint, happens to be prior to the date of purchase by the plaintiff/respondent. The close proximity of the dates of purchase and accrual of cause of action would have no bearing as far as the filing of Suit for a decree of permanent injunction is concerned because as soon as the plaintiff/respondent purchases the property may be on a day after the accrual of cause of action, the plaintiff/respondent steps into the shoes of the predecessors, and would carry the same rights as of its predecessor owner, as the act of wrongful interference over the property is a continuous cause of action, which will continue even thereafter even after purchase by plaintiff/respondent.

With regards to an illegal interference by the defendant/appellant over the property as contained and as described is over Khasra No. 7825, the act of interference at the hands of the defendant/appellant can always be said to be a continuous cause of action because as soon as the plaintiff purchases the property on a subsequent date, i.e. on 28.10.2004, the cause of action would obviously flow over to the plaintiff/respondent, who acquires title later as the cause is continuous act and, hence, institution of the Suit for a decree of permanent injunction on 06.11.2004 by the plaintiff/respondent cannot be faulted of because of the only reason that he has purchased the property a day after the accrual of the date of cause of action. Hence, this question as raised by the defendant/appellant is answered against him for the reason that an act of interference is a continuous action at the behest of the defendant/appellant and too when he has no title or ownership over Khasra No. 7825, and if the act of interference is a continuation, the cause of action it would quite obviously accrue to the plaintiff/respondent, may be that he has purchased the property at a subsequent date and the second reason, which has already been discussed above that after the purchase when the plaintiff/appellant steps into the shoes of the predecessors owners then it would be taken that the action of interference was continuous and was taken on 28.10.2004, has also simultaneously accrued and continued to be accrued as against the defendant/appellant, which has been sought to be safeguarded by preferring the present Suit for a decree of permanent injunction. Apart from it, it had never been the case of defendant/ appellant that they had a title over Khasra No. 7825, nor any such case was ever pleaded by defendant/appellant. Hence, this substantial question of law is answered against the defendant/appellant.

The second substantial question of law, which is being sought to be pressed by the learned counsel for the defendant/appellant, is that in view of the provisions contained under Order 26 Rule 10 there cannot be a second survey commission, which could have been conducted, which reads as under:

"10. Procedure of Commissioner

(1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court.

(2) Report and depositions to be evidence in suit. Commissioner may be examined in person - The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.

(3) Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit."

This issue has been sought to be raised on the ground that when the first survey commission was sought to be conducted by the defendant/appellant, the same was objected by the plaintiff/respondent, but the objection was rejected and a report of a survey commission was submitted on conclusion of survey commission on 05.03.2005. As against the survey commission report a Miscellaneous Civil Appeal No. 5 of 2005 'Dhan Singh vs. Bhawan Singh' was preferred by plaintiff/ respondent, which was dismissed on 21.09.2005. Consequently, as based on the principal of merger, the survey commission report dated 05.03.2005 would stand merged with the appellate order as decided by the Miscellaneous Civil Appeal No. 5 of 2005 on 21.09.2005. However, this fact too would not matter much for the purposes of deciding the second substantial question of law and that too in view of the provisions contained under Order 26 Rule 10, there cannot be a re-survey in order to answer the aforesaid question. What would be relevant herein was that the order passed by the appellate authority in Miscellaneous Civil Appeal No. 5 of 2005, which was put to challenge in a writ petition before this Court being Writ Petition No. 645 of 2006 'Dhan Singh vs. Civil Judge & Another', which was ultimately decided by the learned Coordinate Bench of this Court vide its judgment dated 06.06.2006. By the said judgment as rendered in the writ petition preferred by the plaintiff/respondent, the Coordinate Bench of this Court vide its order dated 06.06.2006 while deciding the writ petition has given the liberty to the plaintiff/respondent to file a fresh application for getting a re-survey conducted. The relevant finding given by the judgment dated 06.06.2006 is quoted hereunder:

"However, liberty is given to the petitioner to file a fresh application giving fresh grounds, if such an application is filed, the Court below in order to avoid the complications and to solve the controversy for ever shall consider the said application on merits, if possible making a Survey Commission in accordance with the application filed by the petitioner so far as indicating the difference between the settlement map and the report of the Survey Commissioner.

Subject to the aforesaid, writ petition is disposed of. No order as to costs."

This judgment has attained finality as has not been challenged by the defendant/appellant before any superior forum.

It was thereafter that the plaintiff/respondent has filed an application for conducting the re-survey, which was allowed as directed by the High Court and the survey was conducted and a fresh report of the survey was submitted on 30.08.2006, as against the defendant/appellant. As far as the implications, which is being sought to be argued by the learned counsel for the defendant/appellant from the view point of the provisions contained under Order 26 Rule 10(2) that would not come into play for the reason that in the instant case the plaintiff/respondent was in fact granted liberty by the writ court, to file a fresh application for conducting the Survey Commission, and the same stood finalized as the order dated 06.06.2006 rendered by the Coordinate Bench of this Court was not put to challenge. Hence, the interference which the defendant/appellant seeks to draw from the judgments on which he places reliance, i.e. AIR 1972 Punjab and Haryana, 265 'Chhotu Mauju vs. Gurbhajan Singh'. Paragraph 3 of the said judgment is quoted hereunder:

"Mr. Diali Ram Puri, learned counsel for the respondent has on the other hand brought to my notice the Division Bench judgment of the Patna High Court in Shib Charan Sahu v. Sarda Prasad, AIR 1937 Pat 670. In that case, it was held that if the Court is dissatisfied with the report of a Commissioner it can issue another commission, but still the report of the first Commissioner cannot be wiped out of the record. This is clear from a collective reading of sub-rules (2) and (3) of Rule 10 of Order XXVI. I am in respectful agreement with the view expressed by the Division Bench of the Patna High Court in Shib Charan Sahu's case. The prayer of the plaintiff-petitioner to exclude from consideration the report of Sadhu Ram cannot, therefore, be granted. Mr Harbans Lal then submits that Sadhu Ram's report may be treated as only evidence on which the defendant may rely and may not be treated as the Commissioner's report. I do not know what difference this would make. The report of each Commissioner under Order XXVI, Rules 9 and 10 of the Code is nothing more than evidence on which either of the parties may or may not rely or which may or may not find favour with the Court wholly or partially. Since under the mandatory provisions of Order XXVI, Rule 10 of the Code, the report of Sadhu Ram cannot be excluded from consideration as a piece of evidence. I cannot interfere with the order of the trial Court and dismiss this revision petition with the observation that the value to be attached to Sadhu Ram's report as well as to Mohinder Singh's report as pieces of evidence will have to be judged by the trial Court in the course of its decision on the main issue in the same manner as the other evidence on the record of the case has to be appraised. I leave the parties to bear their own costs."

In the said case the preposition which has been laid down by the Coordinate Bench of the Punjab and Haryana High Court was while it was interpreting the implications of Order 26 Rule 9 to be r/w Rule 10, which was altogether based on a different pretext, it was a case where the re-survey was being sought to be conducted after the conclusion of a prior unchallenged survey report. But, as far as the present case is concerned, its based under different circumstances altogether since the constitutional court while exercising its powers under Article 226/227 of the Constitution of India has granted liberty to the plaintiff/respondent herein to get a re-survey conducted, it will not create a bar of Order 26 Rule 10 because at the time when the permission was being granted by the Coordinate Bench of this Court on 06.06.2006 in a judgment rendered in Writ Petition No. 645 of 2006 'Dhan Singh vs. Civil Judge & Another' the implications of Order 26 Rule 9 and 10 was not pleaded by the defendant/appellant so as to obstruct the permission being granted by the High Court for conducting the second survey. Apart from that, since the said judgment has already been attained finality, the ratio as reported in AIR 1972 Punjab and Haryana High Court would not apply in the changed circumstances of the present case.

The second authority on which the reliance has been placed by the defendant/appellant for substantiating his argument pertaining to the re-survey, which was conducted or the holding of a second commission, the learned counsel for the defendant/appellant has placed reliance on judgment reported in AIR 1978 Karnataka 65 'K. Ramalingam vs. M.V. Ramanathan'. A reference is made to paragraph 4 of the said judgment, which is quoted hereunder:

"4. Now the principle is that where a particular matter has already been the subject of investigation and a report has been submitted by a Commissioner in that behalf, another commission for the same purpose should not ordinarily be issued unless upon valid grounds made out by the parties concerned and the previous report is unreliable and unhelpful and therefore should be set aside. In the present case, the learned Munsiff has completely overlooked this principle and has acted in a casual manner. He has not given any reason as to what propelled him to make the impugned order. When there is already a report submitted in respect of the same matter, he should have considered whether or not there were valid grounds to act in the manner he did. But it is obvious he has not addressed himself to this aspect of the matter before passing the impugned order. In the view I take, the impugned order must be and is accordingly set aside and the matter is remitted to the learned Munsiff to dispose of I. A. III afresh after allowing the petitioner to file his objections to it and after hearing him and in the light of the observations made above. In this petition, parties to bear their own costs."

This too is absolutely advocating the implications of the provisions contained under Order 26 Rule 10, regarding the limits of the Courts power to order resources, but yet again to answer the observations made in paragraph 4 of the said judgment, this Court will have to reiterate the same observation that since here in the present case the re-survey was permitted by the High Court itself in its judgment dated 06.06.2006 in Writ Petition No. 645 of 2006, it will not create a bar of entertaining of the application for re-survey as resurvey was conducted in compliance of a judicial dictum of this Court.

Lastly, the learned counsel for the defendant/appellant has argued that the present Suit would not be maintainable in view of the bar created by Section 331 of the Zamindari Abolition Act.

Having gone through the plaint averments as raised by the plaintiff/respondent in his Suit was confined to grant of a simplicitor decree of a permanent injunction by way of restraining against the defendant/appellant from interfering in his property, i.e. Khasra Nos. 7824, 7825 and 7826. It is not in dispute even by the defendant/appellants ever that the aforesaid plots stand recorded in the name of the plaintiff/respondent, and they are the Bhumidhar of land in dispute recorded as Shreni 1kha tenure holder. Be that it is a land, which would be covered under sub-section (3) of Section 14 of the U.P.Z.A. & L.R. Act, but since on going through the plaint, this Court is of the view that as there happens to be no controversy pertaining to the title of the plaintiff/respondent nor did it involve any issue or touching any element pertaining to a declaration of title or of a right of the plaintiff/respondent over the property in question for determination of title of the plaintiff/respondent would be only instantly in nature and only for the purposes of deciding a Suit for permanent injunction and, in such an eventuality, where the title is not disputed and no relief is sought, which is of declaratory in nature, a bar of Section 331 will not come into play. In that regards a reference may be had to the judgment reported in AIR 1969 Allahabad 526 (V 56 C 100) Full Bench 'Ram Awalamb & Others vs. Jata Shankar & Others'. Paragraph 48, 54, 56, 57, 58 & 85 are quoted herein below:

"48. It is, therefore, evident that civil court has jurisdiction to try all suits of a civil nature except those of which its cognizance is barred, under any local law.

It is the cause of action which determines the jurisdiction of a court. The term "cause of action" though nowhere defined is now very well understood. It means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment -- vide Mohammad Khalil Khan v. Mahbub AH Mian, AIR 1949 P.C. 78.

It follows that in each and every case the cause of action of the suit shall have to be strictly scrutinized to determine whether the suit is solely cognizable by a revenue court or is impliedly cognizable only by a revenue court, or is cognizable by a civil court.

Where in a suit, from a perusal only of the reliefs claimed, one or more of them are ostensibly cognizable only by civil court and at least one relief is cognizable only by the revenue court, further questions which arise are whether all the reliefs are based on the same cause of action and, if so, (a) whether the main relief asked for on the basis of that cause of action is such as can be granted only by a revenue court, or (b) whether any real or substantial relief (though it may not be identical with that claimed by the plaintiff) could be granted by the revenue court. There can be no doubt that in all cases contemplated under (a) and (b) above the jurisdiction shall vest in the revenue court and not in the civil court. In all other cases of a civil nature the jurisdiction must vest in the civil court.

It was contended by Sri K. P. Singh (appearing for the appellant in Second Appeal No. 282 of 1967 and for the respondent in the connected Second Appeal) that the Legislature has, by using the term "any relief" in Section 331 of the Act completely barred the jurisdiction of the civil court in suits relating to agricultural land where any relief based on the same cause of action, whether or not the same is real or substantial, could be given to the plaintiff by a revenue court. There is no force in this contention. In our view it is opposed to the observations made by the Supreme Court in the following two cases:--

(i) Ram Swarup v. Shikar Chand, AIR 1966 SC 893, and

(ii) AIR 1966 SC 1718.

The sale deeds were voidable and not void. Even in case of the alternative relief with regard to one half of the property only the sale deed must be held to be voidable because the sale had been made by the defendant no. 7, an elder brother of the plaintiff on behalf of the plaintiff also. In the present case the suit could not be said to be barred by Section 331 read with Section 209 of the Act for the simple reason that Section 209 of Act I of 1951 applied only to suits against trespassers and where the suit for joint possession is instituted by one co-sharer against the other it can have no application. The opening words of Section 209 read as follows:--

"A person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the tune being in' force. . . . ."

A suit for ejectment directed against such persons only (i. e., trespassers) could be filed under Section 209 of the Act: Vide Ram Dass v. Board of Revenue, U. P. Allahabad, 1966 All WR (HC) 802 = (AIR 1967 All 481). The jurisdiction of the civil Court, therefore, would not be barred under Section 331read with Section 209 of the Act, in a suit for joint possession against cosharers."

A reference of another judgment is made by respondent/plaintiff reported in (F.B.) 1989 (1) A.W.C. 290 'Ram Padarath & Others vs. Second Addl. District Judge, Sultanpur & Others' has also been held. Paragraph 9, 11, 12 & 14 are quoted hereunder:

"9. The law relating to right, title and interest over the agricultural land is contained in the U.P. Zamindari Abolition and Land Reform Act, hereinafter known as the 'Act', which is a complete Code by itself and is wider than the earlier Act, i.e. U.P. Tenancy Act which too was replaced by it. The said Act more particularly the Schedule to it enumerates the suit etc., the cognizance of which is to be taken of by the revenue court specified therein. The said Act being special Act, its provisions would prevail over the general law. The jurisdiction of Civil Court is ousted if the relief can be granted by the special court conferred with jurisdiction to grant such reliefs. In Section 331 of the Act which specifically ousts the jurisdiction of other courts in respect of all suits, applications etc., enumerated in Schedule II the main emphasis is on the words 'cause of action and any relief'. The said section reads as under:

"Section 331. Cognizance of suits etc., under this Act-(1) Except as provided by or under this Act no court other than a court mentioned in column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908 (V of 1908,) take cognizance of any suit, application or proceedings mentioned 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 application.

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 identical to that which the revenue court would have granted.

(1-A) Notwithstanding anything in sub-section (i) an objection that a court mentioned in column 4 of Schedule II, or, as the case may be, a civil court, which had no jurisdiction with respect thereto shall not be entertained by any appellate or 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 settle, at or before such settlement, and unless there has been consequent failure of justice."

Section 33 of the Act which specifically ousts the jurisdiction of Civil Court in respect of suits etc., enumerated in Schedule II makes the phrase 'cause of action' as pivotal point for determining the jurisdiction of civil or revenue court. The expression 'cause of action' means that every fact would be necessary for the plaintiff to prove if traversed in order to support his right of judgment.

It is the real 'cause of action' which determines the jurisdiction of the court to entertain particular action notwithstanding the language used in the plaint or the relief claimed. The strength on which the plaintiff comes to the court does not depend upon the defence or relief claimed which could determine the forum for the entertainment of claim and grant of relief. It is the pith and substance which is to be seen and not the language used which may even have been so used to oust the jurisdiction of a particular court.

The expression 'any relief' used in Section 331 of the 'Act' is of too wide import and would not only mean the relief claimed but would also include any relief arising out of the cause of action which led the plaintiff to invoke the jurisdiction of a court of law. The word 'relief' is not part of cause of action nor the same is related to the defence set up in the case. The relief is a remedy which the court grants from the facts asserted and proved in an action.

Section 331 of the 'Act' itself has enlarged the jurisdiction of revenue court and has not confined it to the specified reliefs claimed which are mentioned in Schedule II to the U.P. Zamindari Abolition and Land Reforms Act, but the Explanation to it has enlarged its scope further by using the word 'any relief'. It is the cause of action alone which determines the forum and keeps the jurisdiction of revenue court intact in matters referred to in respect of suit, application or proceedings mentioned in Schedule II to the U.P. Zamindari Abolition and Land Reforms Act to the exclusion of civil court. The jurisdiction of civil court is not concurrent with that of the revenue court by means of such suit, application or proceeding. The reliefs of the nature mentioned in Schedule II can be obtained from the revenue court which will take cognizance of such suit, application or proceeding notwithstanding the relief provided in a different language can also be granted by the civil court."

Hence, in that view of the matter, this substantial question of law too does not involve to be adjudicated by this Court. Consequently, the entitlement of the right of the plaintiff/respondent since stands established concurrently by the findings reported by both the courts below as against the defendant/appellant and, since none of the substantial question of law as sought to be pressed before this Court rather would be falling within the purview of the substantial question of law involved to be adjudicated in the present second appeal, thus the present second appeal lacks merit and is, accordingly, dismissed as it is concluded by finding of facts concurrently affirmed by both the courts below, on appreciation of the evidence on record. Thus, the present second appeal deserves to be dismissed. Hence, the same is accordingly dismissed.

However, there would be no order as to cost.