Kalloo and Others vs Beni Prasad and Others

R.H. Zaidi, J.—This is a defendants'' second appeal arising out of a suit for permanent injunction.

The plaintiff respondents filed Original Suit No.395 of 1988 pleading that they were Bhumidhars in possession of the land in dispute. The defendants were illegally threatening them to disposses from the land in dispute and to include it in their land although they had no right to do so. Hence the suit.

During the pendency of the suit on an application made by the plaintiff respondent, the plaint was amended and the reliefs for possession and damages @ Rs.4,000 per annum for removal of paddy crop by the defendant appellants were also added.

The suit filed by the plaintiff respondents was contested by the defendant appellants who filed their written statement. It was admitted that the plaintiff respondents were the Bhumidhars of the land in dispute but on the spot they were not in possession. The dispute was pending disposal before the Additional Collector, Bulandshahr with respect to the plots in dispute, Civil Courts, therefore, had no jurisdiction to entertain and decide the suit, that in addition to the defendant appellants, Wahid Husain and Abdul Hamid were also in possession of the land in dispute, they were necessary parties but they were not impleaded in the suit, that the defendant appellants never cut away any paddy crop, they were, therefore, not liable to pay any damages.

On the pleadings of the parties, the trial court framed issues. The parties thereafter produced evidence, oral and documentary, in support of their cases. The trial court after perusing the material on record, returned findings on relevant issues in favour of the plaintiffsrespondents and decreed the suit by the judgment and decree dated 9.11.1993. Challenging the validity of the said decree, Civil Appeal No.141 of 1993 was filed by the defendant appellants before the Court below. The Court below affirmed the findings recorded by the trial Court and dismissed the appeal by its judgment and decree dated 25.7.2000. Hence the present second appeal.

Learned counsel for the appellants vehemently ruged that the land in dispute was agricultural land, the Civil Court, therefore, had no jurisdiction to entertain and decide the suit. It was also urged that the defendantappellants pleaded that the land in dispute was situated in a different number and was not in the number as claimed by the plaintiff respondents.

I have considered the submissions made by learned counsel for the appellants and also perused the record.

The trial Court framed issue No.4 on the question of jurisdiction. It was noted that initially the suit was filed for permanent injunction simpliciter. During the pendency of the suit, the defendants ousted the plaintiffs from possession of the land in dispute, therefore, the plaint was got amended and reliefs for possession and damages were also added. In these circumstances, it was held by the Court below that merely because during the pendency of the suit the defendants took possession over the land in dispute, the jurisdiction of the Civil Courts cannot be ousted. Reliance has been placed on a decision of this Court in Bholanath and others v. Damodar Das, 1981 ALJ 1309. In my opinion, the view taken by the Courts below is quite legal and does not suffer from any illegality or infirmity. The law laid down in the case of Bholanath and others (supra) by this Court has full application to the facts of the present case.

So far as the question regarding situation of the land in a different number is concerned, in the Courts below said question was not raised neither any issue was framed regarding the abovenoted controversy. Learned counsel for the appellants failed to demonstrate from the material on record that such a plea was taken. Even if the plea was taken since it was not pressed before the Courts below, I decline to permit learned counsel for the appellant to press the said point. Further, the question as to whether the land in dispute is situated in the number in dispute or not is a question of fact and cannot be said to be a question of law, what to say of substantial question of law, therefore, at this stage the said question cannot be raised.

The present appeal is, thus concluded by concurrent findings of fact. No substantial question of law is involved in it.

The appeal is dismissed under order XLI Rule 11, CPC.

(Appeal Dismissed)