KANCHAN KUMAR CHAUDHARY Vs. DISTRICT JUDGE MAU

JUDGEMENT

(1.) By the order dated 23.11.1995 passed by the learned Civil Judge, Junior Division, Mau, in Original Suit No. 1796 of 1995, the preliminary issue as to whether the suit for Injunction without any relief being sought for declaration on adjudication of title would abate by reason of Section 5 (2) of the U. P. Consolidation of Holdings Act. 1953, (hereinafter referred to as the said Act) or whether such suit is barred before the civil court in view of Section 49 of the said Act, was decided in favour of the plaintiffs " holding that the suit as framed was maintainable before the civil court. A revision being Civil Revision No. 16 of 1996 was preferred by the petitioner. By an order dated 18.2.1998 learned District Judge, Mau had dismissed the revision affirming the order of the learned Munslf. These two orders have been challenged through this writ petition.

(2.) Sri Navin Srivastava, learned counsel for the petitioner in support of the writ petition submitted that the relief of injunction is based on title and interest of the plaintiff in the land in respect of which a notification under Section 4 of the said Act has been issued and as such by reason of Section 5 (2) the suit instituted through the plaint drafted very craftily should abate Inasmuch as though no relief with regard to declaration of title or adjudication of interest has been sought for, but in effect the plaintiff has claimed title in respect of the land. Therefore, in order to grant injunction the question of title or adjudication of interest is involved in the suit and therefore is hit by the provisions of Section 5 (2) of the said Act. On the similar ground he contends that in view of Section 49 such suit cannot be maintained before the civil court. He relied on two decisions of this Court in support of his above contention. The two cases he relied on are Bachchu Lal v. Ram Sajiwan, 1993 RD 393 and Smt. Barsatiya v. District Judge, 1984 All LJ490.

(3.) Sri Ramesh Singh, learned counsel for the respondents, on the other hand contends that the two decisions cited by the learned counsel are single Judge decision which are contrary to the decisions of this Court rendered by Division Bench as well as that of Hon'ble Supreme Court. The ratio decided therein therefore does not hold good and stands impliedly overruled. In support of his contention he relied on the decision in the case of Banwari Lal v. Tulsiram, 1979 RD 136 and Smt. Krishna Kumari and others v. Shiv Kumar, 1987 RD 399, of this Court and Hiralal and another v. Garjan Singh and others. 1990 (1) CRC 466, rendered by Supreme Court. He contends that in the suit no relief with regard to declaration of title or adjudication of interest has been sought for. Injunction is to be passed on the basis of title asserted by the plaintiff and therefore within the ambit of the plaint there is no scope for adjudication of right, title or interest of the plaintiff in respect of the property. As such, according to him in such a situation Section 5 (2) has no manner of application. On the same analogy Section 49 also cannot stand in the way. Relying on the decision cited by him he contends that even if the question of title may come up for the purposes of grant of injunction, but that does not involve any adjudication, a finding of fact that whether the plaintiff has title or not, is only incidental to the grant of injunction without involving any adjudication to the right, title or Interest. The moment it is necessary to adjudicate right, title or interest on the basis of defence that might be raised in that event the suit would fall in the absence of any relief of declaration, in turn would attract application of Section 5 (2) and Section 49. In the present case the plaintiff having asserted title, there is no scope of adjudication of title. Therefore, the order passed by the Civil Judge as well as by the District Judge in the suit and revision respectively are perfectly justified.