MAHABIR SINGHS Vs. DISTRICT JUDGE FATEHPUR

JUDGEMENT

(1.) A suit being Civil Suit No. 795 of 1994 was initiated before the learned Munsif. Fatehpur. On the basis of the pleadings several issues were framed. Issue Nos. 2, 3 and 4 were taken up for decision as preliminary issues and were overruled by the learned Munsif by an order dated 20.9.1996. Civil Revision No. 104 of 1996 arising thereout was also dismissed by an order dated 9.12.1997. These two orders have been challenged before this Court by means of this writ petition.

(2.) Mr. Akhllesh Chandra Varma, learned counsel for the petitioner assails the said orders on the ground that both the Courts have acted illegally in overruling the preliminary objections Inasmuch as though the prayer was couched as a relief seeking cancellation of a sale deed in respect of 1/45 share of the plaintiff, it is in effect a relief for declaration of a share in disguise which is cognizable by a revenue court under Serial No. 16 of Schedule II inasmuch as such division can be obtained under Section 176 of the U. P. Zamindari Abolition and Land Reforms Act. 1950 (hereinafter called as the U.P.Z.A. and L.R. Act). His second ground, according to him, was that admittedly proceeding for declaration of share are pending before the revenue court and, therefore, the proceedings cannot proceed further in the civil court which was instituted subsequently between the parties claiming the relief, in view of Section 10 of the Code of Civil Procedure. His third contention is that the suit is liable to be abated by reason of Section 5 (2) of the U, P. Consolidation of Holdings Act.

(3.) 1 have heard Mr. Varma at length.