LAL BEHARI Vs. IIIRD ADDL D J MIRZAPUR

JUDGEMENT

(1.) N. L. Ganguly, J. This writ petition is directed against the judgment of the IIIrd Addl. District Judge, Mirzapur, dated 17. 12. 1986 by which the learned Judge set aside the judgment and order of the learned Munsif on the issue that the suit filed by the plaintiff-respondent was barred by Section 331 of the U. P. Z. A. and L. R. Act for appreciating the controversy in the present case it would be necessary to state brief facts and reliefs claimed by the plaintiff-respondent in the suit.

(2.) A pedigree has been shown in the plaint mentioning Bhola, Doodhnath and Paras as three sons of Lalla. It was pleaded that the plots in dispute were ancestral holding of Lalla, which had devolved on the three sons afore-mentioned. Bhola was married at the age of nine years, who had died at the age of 15 years even before the Gauna ceremony had taken place. His widow Smt. Phuljharia had married again according to the customs with one Moti Lal. It was pleaded that Raj Kumar had no legal right in the holding simply on the ground that he could never be the son of Bhola who had died before the Gauna ceremony. The petitioner remained in continuous possession adverse to Smt. Phuljharia who had no legal right also. Lalla had died and the petitioners remained as the sole successor and tenureholder of the land. Raj Kumar, Defendant No. 1, is the son of defendant No. 2 Smt. Phuljharia and Moti Lai to whom she had remarried after the death of her first husband Bhola. It was pleaded that Raj Kumar, defendant, had been living with Moti Lai and in other cases Raj Kumar and Smt. Phuljharia, defendants No. 1 and 2, sub mitted written statement admitting that they are son and widow of Moti Lal deceased. It was pleaded that defendants No. 1 and 2 Rajkumar and Phuljharia had no legal right, title over the land in question. By playing fraud a sale deed was got executed for the alleged share of Rajkumar and Phuljharia in favour of defendants No. 3 to 5.

(3.) THE learned Munsif referred to the pleadings of the parties and was pleased to observe that here the main relief of the plaintiffs is that they be declared the sole Bhumidar of the disputed land and the sale deed executed by the defendant No. 1 be cancelled. THE Learned Munsif was of the view that it was really a case for declaration about the competency of the defendant No. 1 to execute the sale deed in favour of defendants No. 3 to 5. THE learned Munsif also recorded a finding that the plaintiffs have not categorically denied that the name of defendant No. 4 has been entered in the revenue record. Ultimately the decision of the learned Munsif was that the main relief of the plaintiff is for declaration and the civil court cannot grant such relief. THE learned Munsif directed that the Court has no jurisdiction to try the suit, decided the issue and directed the record of the case to be consigned to the record room. Against the said judgment an appeal was filed by the plaintiff-respondents.