RAM SARAN SINGH Vs. DISTRICT JUDGE GHAZIPUR

JUDGEMENT

(1.) In a suit for partition upon an application for interim order, the trial court had directed that half of the rent realised out of the property on which admittedly commercial complex had been constructed to be given to the plaintiff and half to the defendant. An appeal having been preferred against the said order, the appellate court had directed to deposit the entire rental income in Court. These are orders dated 9th February, 1998 passed by the Civil Judge, Senior Division in Suit No. 70 of 1995 and the order dated 24th March. 1998 passed by the learned District Judge. Ghazipur in Misc. Appeal No. 3 of 1998, have been challenged in this writ petition.

(2.) Mr. Mahboob Ahmad, learned counsel for the petitioner contends that one of the properties involved in the partition suit being the present one is of agricultural and in respect whereof notification under Section 4 (2) had been issued and the final publication had not yet been made. Therefore, by virtue of Section 5 (2), the present suit is not maintainable inasmuch as in the present suit adjudication of the rights and interest of the parties including partition is involved. Section 5 (2) provides that no proceeding which ought to have been taken under the said Act could be maintained in the civil court and shall abate on the issue of notification under Section 4 (2). Accordingly an application to such effect had been filed on behalf of the petitioner. The said application has been kept pending on the ground that it involves mixed question of facts and law and are awaiting adjudications. In this circumstance, according to him, the Court below have no jurisdiction to grant injunction in aid of a proceeding which is due to abate, therefore, the orders cannot be sustained and should be set aside.

(3.) Mr. A. N. Rai, learned counsel for the opposite party on the other hand contends that a commercial complex is standing on the said land, therefore, the property cannot be treated to be an agricultural holding and therefore, does not come within the purview of U. P. Consolidation of Holdings Act as such the bar provided under Section 5 (2) cannot be attracted in the present case.