DEO KISHUN TIWARI Vs. RAM SAGAR TIWARI

JUDGEMENT

(1.) We have heard learned Counsel for the parties on this reference made by the learned District Judge and have gone through the order of reference. The conflict of jurisdiction between the civil court and the revenue court that has been referred for our opinion has to be determined on the basis of the allegations made in the plaint and the reliefs claimed therein. In the plaint three reliefs were claimed. The first relief was for a declaration that the Plaintiffs had aright of using the land in dispute as a threshing floor. The second relief was a prayer for a decree for possession over the land in suit as detailed and described at the foot of the plaint and the third was that the Defendants first set be restrained by means of a permanent injunction from cultivating the land in dispute. These are the prayers as mentioned in the order of reference; but, on an examination of the plaint, we found that the second prayer was slightly different inasmuch as by that prayer a decree was first sought for a declaration that the Plaintiffs are already in possession and the decree for possession was sought only in the alternative if the Plaintiffs were found to be out of possession. It would thus appear that in the reliefs themselves the Plaintiffs claimed to be in possession or entitled to possession of the land in dispute. Once they claimed the right to retain or obtain possession, it is clear that they could not claim a right in the nature of easement of using that land as threshing-floor. No right of easement can be claimed in land in which the Plaintiffs claim the right of possession because easmentary rights cannot be acquired in land in possession of the person claiming the easmentary rights. Consequently, if the first and second prayers are read together, the suit was in effect for a declaration that the Plaintiffs were in possession of the land in dispute or in the alternative JOT a decree for possession and the user as a threshing-floor was only a basis for claiming the right to possession. The declaration that the Plaintiffs had a right to use this land as a threshing floor was not therefore an independent relief at all. The third relief of injunction against the Defendants first set only flows from and is consequential to the relief claiming declaration of possession or a decree for possession. The main relief thus was a declaration of a right to possession or a decree for possession. The present plaint was first presented in the year 1949 and at that time under the UP Tenancy Act such a suit was cognizable by the revenue court and not the civil court. Under Section 242 of the UP Tenancy Act, the suit had to be instituted in a revenue court if effective relief could be granted by that court and since the decree for possession could be granted by the-revenue court only, the suit should have been instituted in the revenue court. The order of the civil court passed in 1950 directing return of the plaint for presentation to the proper court was therefore correct. Subsequently, the suit was instituted in the revenue court in 1953 by which time the UP ZA and LR Act had come into force but, under Clause (2) of the UP Land Tenures Legal Proceedings (Removal of Difficulties) Order 1952, the Jurisdiction of the court in respect of this plaint had to be determined on the basis that the right claimed in it had already accrued in 1949 so that the suit would be cognizable by the same court which had jurisdiction to entertain it in 1949. Consequently, even when the suit was subsequently instituted in the revenue court in 1983 after the enforcement of the UP ZA and LR Act, the jurisdiction to entertain the suit continued to vest in the revenue court and the revenue court was therefore wrong in directing the return of the plaint for presentation to proper court. We, consequently, direct that the case shall go back with this opinion of ours to the revenue court which shall now proceed to decide the suit in accordance with law. The record may be sent back to the lower court at an early date so that there may be no further delay in taking proceedings in the suit.