Rashpal Singh vs Kishtopad Gharami And Others

Sharad Kumar Sharma, J

This is the Second Appeal, which has been preferred by the plaintiff /appellant Rashpal Singh against the judgment and decree dated 25th January, 2002, passed by IInd Additional District Judge, Udham Singh Nagar in Civil Appeal No. 92 of 2000, Rashpal Singh Vs. Kistopad Gharami and others, which was arising out of the judgment and decree dated 21st November, 2000, as passed by the Civil Judge (Junior Division), Rudrapur, District Udham Singh Nagar, confined to the decree, which was rendered in Original Suit No. 140 of 1993, Rashpal Singh Vs. Kistopad Gharami and others.

When the suit was pending in relation to the property, in dispute, as described therein, para 2 of the said plaint, it constituted to be the property, i.e. khasra No. 92/8 and 92/27, having an area of 0.379 hectares and as per the revenue records, it was pleaded that it was having an overall area of 24 bigha, 16 biswas and 0 biswansi. The suit itself was based on the premise that there was an agreement for sale dated 15th November, 1971, which has been executed by the defendants in favour of the plaintiff and, as such, based on the said unregistered agreement for sale, the plaintiff, had filed the suit, in question, on 13th October, 1993, seeking a decree in the nature of permanent injunction, as against the defendants from interfering over the property, in question.

On being noticed, in the said suit, the defendants had put in appearance and, apart from denying the plaint allegations, they have filed a counter claim, invoking the provisions contained under Order 8 Rule 6-A C.P.C. and in the counter claim, thus preferred, the defendants too had sought a decree in the nature of permanent injunction as against the plaintiff.

In the counter claim, thus filed by the defendants on 25th October, 1993, which finds place on record as paper No. 15-Ka, they have sought a decree of permanent injunction, as against the (plaintiffs) defendants of counter claim in relation to the property as described above.

Both the plaint as well as counter claim proceeded before the learned Civil Judge (Junior Division), Rudrapur, District Udham Singh Nagar, and the same was dismissed by the judgment dated 21st November, 2000. Simultaneously, by the judgment rendered by the Trial Court, the counter claim of the defendants too was rejected.

Being aggrieved against the judgment and decree dated 21st November, 2000, the plaintiff preferred First Appeal, being First Appeal No. 92 of 2000, Rashpal Singh Vs. Kistopad Gharami and others, whereas, on other hand, the defendants too, being aggrieved against the judgment of the Trial Court dated 21st November, 2000, dismissing the counter claim preferred in First Appeal being First Appeal No. 86 of 2000, Kistopad Gharami and others Vs. Rashpal Singh.

At the appellate stage, when the matter was being considered by the Court of 2nd Additional District Judge, Udham Singh Nagar, the same vide its judgment dated 25th January, 2002, had partly allowed the Civil Appeal No. 92 of 2000, Rashpal Singh Vs. Kistopad Gharami and others of the plaintiff and the counter claim as preferred by the defendants, i.e. Civil Appeal No. 86 of 2000, Kistopad Gharami and others Vs. Rashpal Singh. was allowed in its totality and by virtue of the decree as rendered in Civil Appeals on 25th January, 2002, the plaintiff, who was the defendant in the counter claim, was restrained to interfere over the property, in dispute, so far it relates to the rights claimed by the defendants.

It has been argued by the learned counsel for the defendants/respondents that as against the judgment rendered in the First Appeal No. 86 of 2000, decreeing his counter claim in total, in relation to the property, in dispute, no Second Appeal has been preferred by the plaintiff/appellant, herein, and hence, as far as the judgment dated 25th January, 2002, rendered in First Appeal No. 86 of 2000, has attained finality inter se between the parties so far it related to the rights claimed by the defendants over the property, in question.

As against the dismissal of the First Appeal No. 92 of 2000, preferred by the plaintiff/appellant, the plaintiff had preferred the present Second Appeal, being Second Appeal No. 45 of 2005, Rashpal Singh Vs. Kishtopad Gharami and others, praying for setting aside that part of the judgment, so far it relates to the denial of his claim pertaining to the dismissal of the relief as claimed in the suit is concerned. In the Appeal, in question, there was an initial interim order passed by this Court on 21st December, 2002, whereby, the effect and operation of the impugned judgment and decree dated 25th January, 2002, was kept in abeyance.

The actual controversy arose after preferring of the Second Appeal, as it now stands today, it's that on one hand, the plaintiff/appellant had preferred the present Second Appeal on 30th October, 2002, and had succeeded to convince the Court to grant an interim order dated 21st December, 2002. But, simultaneously, the fact pertaining to his institution of regular proceedings under Section 229-B for declaration of title by way of Suit No. 22/21 of 2000-01, Rashpal Singh and others Vs. Tapan Kumar was not brought to the knowledge of either to the First Appellate Court or to the present Second Appellate Court at the time when the appeal was filed and admitted on 21.12.2002.

It is an admitted fact which could also be borne out from the records that since the defendants/respondents could not acquire the knowledge of the pendency of proceedings under Section 229-B, as preferred by the plaintiff /appellant, herein, the same stood decreed in an ex parte manner by the Court of Assistant Collector, 1st Class, vide its judgment dated 2nd July, 2012. On the one hand, the plaintiff/appellant was pursuing this Second Appeal after concealing the fact of pendency of the prior instituted regular 229-B proceedings for declaration of his title and further and on the other hand, in relation to the same property, he has sought a decree for declaration, based on the alleged agreement for sale, which he claims to have been executed by defendants/respondents on 15th November, 1979.

Be that as it may. The proceedings under Section 229-B, which was initiated by the plaintiff/appellant, herein, stood decreed ex parte on 2nd July, 2012. Consequently, under the garb of the said ex parte decree declaring him to be the owner of the property, in question, it is the case of the defendants/respondents that the plaintiff succeeded himself to be recorded in the revenue records on the basis of the ex parte judgment dated 2nd July, 2012 of the Assistant Collector, 1st Class, and under the garb of the entry made in the revenue records, he had also conveyed the property by executing sale deed in favour of third person, as would be apparent from Khatuni of 1425 fasli Relevant part of the Khatuni reads as under :-

"आदेशानुसार श्रीमान सह0 अभि0 अधि0 उ0सि0नगर स्थान किच्छा के द्वारा दि0 10-11-97 को वाद सं04244 (96-97) पर आदेश हुआ कि खाता सं0 12 अन्तर्गत भूमि सं0 92/8/1 रकवा 1.160 हे0, 92/27 रकवा 0.262 हे0 पर से कृष्ण पद, कमलेश पुत्रगण मुकुन्द बिहारी नि0 दुर्गापुर नं0 02 का नाम निरस्त होकर उसके स्थान पर रिछपाल सिंह पु0 सरैन सिंह नि0 दुर्गापुर नं0 02 का नाम निरस्त होकर उसके स्थान पर रिछपाल सिंह पु0 सुरैन्सिंह नि0 दुर्गापुर नं002 का नाम खाते के उसकी संवर्ग में अंकित हो ह0अ0स0रे0/ह0अ0स0का0दि0 02-1-98 आदेशानसार श्रीमान सहा0 अभि0अधि0 महोदय किच्छा उ0सि0नगर द्वारा दि023-7-98 को आदेश हूआ कि वाद सं0 4244 (96-97) एवं0 दि0 10-11-97 को न्यायहित में एकपक्षीय आदेश अवास्त (निरस्त) किया जाता है ह0अ0स0ले0/ह0अ0स0ले0/ह0अ0स0का0दि0 17-8-98 आदेश श्रीमान अभि0अधि0निगरानी सं0 52/86 दि0 23-7-99 निगरानी बलहीन होने के कारण निरस्त की जाती है ह0अ0स0ले0दि05-5-2001/सत्यापित ह0अ0पी0के0दि0 05-05-2001 आदेशानुसार श्रीमान सहा0अभि0अधि0 के आ0दि0 11-2-03 के द्वारा अपील निर्णय दि0 25-1-2002 माननीय अपर जिला न्यायाधीष उ0सि0 नगर वादसं0 086/2000 किष्टोपद घरामी एवं अन्य बनाम रिछपाल सिंह वावत काउन्र कलैम स्वीकार की जाती है ववात ग्रा0बुक्सौरा वादी रिछपाल सिंह को प्रतिवादी के खनं092/8 तथा 92/27 रकवा 24 बीघा 16 विस्वा में प्रतिवादी के कब्जे में हस्तक्षेप करने से निषेधित किया जाता है ह0अ0स0ले0/ह0अ0पी0के0दि028-2-2003 आदेश मानीय उच्च न्यायालय उत्तरांचल (नैनीताल) अपील सं0 04/2002 रिछपाल सिंह बनाम किष्टो पद घरामी एवं अन्य में आदेश दि0 21-12-2002 का अपर जिला जज द्वारा पारित आदेश स्थगित हरेगा ह0अ0स0ले0/0अ0पी0के0दि028-02-03 1420 फ0न्या0परग0अधि0/सहा0कले0प्र0श्रे0 बाजपुर कैम्प गदरपुर वाद सं0 22/21 (2000-01) आ0दि0 2-7-12 के अर्न्तगत धारा 229 (बी) ज0वि0 एवं मू0सु0अधि0 के अनुसार ख0 नं0 39 क रकवा 1.122 हे0, 139 रकवा 0.300 हे0 कुल रकवा 1.422 हे0 पर वादी रिछपाल सिह पु0 सुरेन सिंह नि0 दुर्गापुर नं0 2 तह0 गदरपुर का नाम संक्रमणीय अधिकार वाले भूमिधर धोषित किया जाता है ह0अ0र0का0दि027-07-12 1420 फ0व0द सं0 030/406 (12-13) न्या0 तहसीलदार गदरपुर आ0दि012-12-12 के अनुसार ख0नं039 क रकवा 1.122 हे0,139 रकवा0.300 हे0, कुल रकवा 1.422 हे0ल0025.20पे0 से रिछपाल सिंह पु0 सरैन सिह का नाम सुजीत कसेह ने अपना हिस्सा मु03,50,000/ मे दि0 08-3-13 को बैंक आ0इण्डिया रूद्रपुर में बंधक रख ह0अ0दि003-4-13 सुजीत कुमार ने अपना हिस्सा मु0 4,75,000 में दि0 28-10-2013 को पंजाब एण्ड सि0 बैक काशीपुर रोड रूद्रपुर में बंधक रखा ह0अ0दि 06-11-13 सुजीत कुमार ने अपना हिस्सा मु0 4,75,000 में दि0 23-12-13 को पंजाब एण्ड सि0 बैक रूद्रपुर में बंधक रखा ह0 अ0 दि0 17-1-14"

The defendants/respondents after having learnt about the ex parte decree, the defendants/respondents, herein, had preferred an application under Order 9 Rule 13 read with Section 341 Z.A. & L.R. Act before the Court of Assistant Collector, 1st Class, which remained pending. Since on account of pendency of the application under Order 9 Rule 13, taking advantage of its pendency, coupled with the fact that the plaintiff/appellant, herein, was the beneficiary of an ex parte decree dated 2nd July, 2012, and since he was recorded in the revenue records under the garb of the ex parte decree, acting in a fashion which was detrimental to the interest of the defendants/respondents, the defendants was constrained to file Writ Petition before this Court, being Writ Petition No. 1424 (M/S) of 2013, Tapan Kumar and others Vs. Rashpal Singh, praying for an appropriate direction to the Assistant Collector, 1st Class to consider and decide the application filed by the defendants/respondents under Order 9 Rule 13, expeditiously. The aforesaid Writ Petition was disposed of by the Coordinate Bench of this Court on 28th June, 2013, directing the Assistant Collector, 1st Class, to expedite the hearing of the application under Order 9 Rule 13, as preferred by the defendants on 29.09.2012, praying for setting aside the ex parte decree dated 2nd July, 2012, rendered in the proceedings under Section 229-B, preferred by the plaintiff/appellant. Relevant part of the judgment dated 28.06.2013, passed in Writ Petition No. 1424 (M/S) of 2013 reads as under :-

"The Assistant Collector 1st Class, Bazpur, District Udham Singh Nagar/ respondent No. 3 is directed to expedite the hearing of application filed by petitioners U/S 9 Rule 13 C.P.C. dated 29-9-2012, which is pending before him and decide the same expeditiously as far as possible, preferably, within a period of three months from the date of production of certified copy of the order. "

It is the case which has been argued by the defendants/respondents before this Second Appellate Court that despite of the direction issued by this Court on 28th June, 2013, yet, the application under Order 9 Rule 13, remained pending and taking advantage of the ex parte decree dated 2nd July, 2012, and the pendency of the application under Order 9 Rule 13, since the sale was being proceeded with by the plaintiff / appellant of the dispute land, the defendants preferred a Contempt Petition, being Contempt Petition No. 30 of 2014, Mr. Tapan Kumar and others Vs. Smt. Ila Giri, which was decided on 16th April, 2014, by the Coordinate Bench of this Court, holding thereof that the decree as rendered under Section 229-B of U.P. Z.A. & L.R. Act proceeding on 2nd July, 2012, was a nullity because of the fact that it was rendered against dead person and that too in an ex parte manner. Operating para of the Contempt Petition reads as under :-

"Present petition thus stand disposed of with direction to the Commissioner Kumaon Division to permit the revisionist to be impleaded as one of the party respondent in an application under Order 9 Rule 13 C.P.C. within 10 days positively from today and thereafter learned Assistant Collector, Bajpur Camp Gadarpur, Udham Singh Nagar shall decide the application under Order 9 Rule 13 C.P.C. in accordance with law within next 60 days. Mr. A.K. Joshi, learned Additional C.S.C. undertakes to communicate this order to the Commissioner Kumaon as well as to the Trial Court."

Ultimately, the application under Order 9 Rule 13 filed by the plaintiff / respondents was taken up on merits and same was allowed by the Court of Assistant Collector, 1st Class on 27th May, 2014, and as a consequence thereto, the suit for declaration of title at the behest of the plaintiff / appellant, stood revived and admittedly as per the parties to the present Second Appeal are contesting the proceedings under Section 229-B of U.P. Z.A. & L.R. Act, 1950, which are the regular proceedings for declaration of title under a Special Statute, are still pending and the same are yet to be adjudicated upon on merits, parties to the present Second Appeal are placing their respective claim in the said case and case in these pending proceedings before the Assistant Collector, 1st Class.

In these peculiar circumstances, the question which arises for consideration before this Court is that under the aforesaid circumstances is so far as the challenge remains to the judgment rendered by the Appellate Court in First Appeal No. 92 of 2000, Rashpal Singh Vs. Kistopad Gharami and others, it has to be borne in mind that the suit, admittedly, instituted by the plaintiff/appellant was in relation to the land which was recorded in revenue records and was a land falling under the class of tenure holder defined under Section 129 of the Z.A. & L.R. Act. In fact, any decree of injunction which is rendered by the Civil Court in relation to a land covered under Sub-section (14) of Section 3 of the Act as described under U.P. Z.A. & L.R. Act, the principal rights and title in relation to the property, in dispute, could have only been determined in the proceedings under Section 229-B and any interest or title or fining which is decided or recorded by the Civil Court in relation to the said land, i.e. suit property, will always be treated as to be incidental in nature, depending upon the pleadings of the parties in a suit under Section 229-B of U.P. Z.A. & L.R. Act, where decree of declaration is sought and the title over the property in suit is sought to be determined by the competent revenue Court created under law.

Hence, the finding which has been recorded therein in the impugned judgment, will neither create any right, title or interest, but it only intends and aims to safeguard the status of the property during the pendency of the civil proceedings or thereafter, because the rights of the parties are dependent upon adjudication of the title and right over the disputed property by the competent Courts of Assistant Collector, 2nd Class in regular proceedings of title under the Special Statute.

Owing to the admitted fact that as of now, the proceedings under Section 229-B by way of Suit No. 22/21 of 2000-01, Rashpal Singh and others Vs. Tapan Kumar and others, in relation to the property, in dispute, i.e. khasra No. 92/8 and 92/27, having an area of 24 bighas, 16 biswas and 0 biswansi, is still pending consideration before the Assistant Collector, 1st Class, where title is yet to be decided of the parties, it would always be open now to parties to the litigation therein to get an order of injunction by invoking the provisions contained Section 229-D, before the Assistant Collector, 1st Class and the injunction as granted by the Civil Court would not influence the powers of the regular revenue Court while considering the application under Section 229-D, since being the proceedings under Special Statute covered under the 9th Schedule of the Constitution of India.

Since the determination of title and rights of the plaintiff/respondents has now become sub-judice by way of Suit No. 22/21 of 2000-01, Rashpal Singh and others Vs. Tapan Kumar and others in principle, the present Second Appeal reaches to a stage of being a non est proceedings, as all the questions pertaining to the right, title and interest, they are yet to be decided independently by the Court of Assistant Collector, 1st Class.

Consequently, this Court is of the view that the present Second Appeal which was exclusively for a decree of permanent injunction has been rendered infructuous and is accordingly dismissed.

But having said so, it is made clear at this stage that any finding recorded in the proceedings before the Court below or by this Court while adjudicating the suit, appeals or even the present Second Appeal will not be taken into consideration by the Assistant Collector, 1st Class, and he would independently decide the suit under Section 229-B without being influenced by any of the findings recorded herein.

Consequently, the Second Appeal is dismissed for the aforesaid reasons. However, there will be no order as to costs.