BRIJESH Vs. MANORAMA (DECEASED) AND 2 OTHERS

JUDGEMENT

(1.) This appeal, under Section 100 Code of Civil Procedure, is directed is directed against the judgment and decree dated 09.02.2018 and 21.02.2018 passed by Additional District Judge, Bansi, Siddharthnagar in Civil Appeal No. 15 of 2013 and also against the judgment and decree dated 29.03.2013 whereby, original suit of the appellant herein being numbered as Original Suit No. 302 of 1991 has been dismissed.

(2.) The case set up by the plaintiff-appellant herein is that the land originally belongs to Durgawati who succeeded the suit land from her husband Tarachand. However, subsequently she executed a registered WILL in favour of the appellant on 07.07.1985 and thereafter, Durgawati died on 25.07.1985. It is submitted that Durgawati had a daughter Manorama, who, though was married but eloped with a third person and resultantly Durgawati had started living with the plaintiff-appellant and it is out of love and affection that a WILL was executed in his favour. Manorama was not concerned with the land in question, as she was living elsewhere, however, certain people in village by impersonation got the land purchased showing Manorama as Vendor. Since the land is agricultural and plaintiff-appellant was not recorded over the land, therefore, he also filed a suit under Section 229-B of U.P.Z.A. & L.R. Act, 1950 which was registered as Suit No. 206 of 1986, wherein an injunction order was passed under Section 229-D of U.P.Z.A. & L.R. Act on 006.1986 which was later on confirmed on 04.11986 after hearing Manorama and against the said order the revision filed by Manorama was also dismissed by the Commissioner on 18.08.1989. Under the injunction order she was restrained from executing any sale deed or alienating property. It is under these circumstances, the present suit came to be filed for cancellation of sale deed executed by Manorama in favour of defendant-respondent and second for injunction and cancellation of WILL allegedly executed by Durgawati in favour of Manorama. However, trial court decreed the Suit No. 302 of 1991 regarding cancellation of sale deed but the Original Suit of appellant being Suit No. 206 of 1986 regarding injunction and cancellation of WILL came to be dismissed. In the first set, plaintiff-appellant filed appeal against the judgment and decree of the trial court dated 003.2013 in respect of O.S. No. 47 of 1986 out of which the present appeal arises, whereas, defendant-respondents also preferred an appeal against the judgment and decree dated 29.03.2013 passed in O.S. No. 302 of 1991. Both the appeals bearing nos. 17 of 2013 and 15 of 2013 were clubbed together and passed by the lower appellate court which is impugned in the present appeal. Learned court had recorded the finding that land is agricultural and further the plaintiff being not recorded has a right to get declaration in respect of agricultural holding on the basis of WILL which he setting up. It has also taken notice of the fact that plaintiff-appellant also filed a suit under Section 229-B of U.P.Z.A. & L.R.Act which has been registered as O.S. No. 206 of 1986 which was still going on.

(3.) Under the circumstances, learned court below come to the conclusion that appellant being not recorded and so suit for even injunction will in effect amount to a suit getting declaratory rights in agricultural holding. The lower appellate court has relied upon the judgment of Supreme Court including the one in the case of Sri Ram v. First Additional District Judge, (2001) ACJ 497 in which it has been held that in civil suit for injunction or cancellation, if plaintiff is not recorded tenure holder then it is a case of getting declaration in respect of title. Unless and until the tenure holder is recorded such rights can only be agitated before the revenue court under U.P.Z.A. & L.R. Act.