HARI NARAIN Vs. IVTH ADDITIONAL DISTRICT JUDGE AZAMGARH

JUDGEMENT

(1.) S. K. Phaujdar, J. The petitioner had filed Suit No. 1230 of 1986 for per manent injunction against the present respondents, Kamala and others. It was his case that he was the sole owner of certain agricultural plot and was in possession thereof. It was stated that previously he was having only one third share in the suit property a second one-third belonged to one Rampat Rai and the rest one-third belonged to the respondent Kamala and his brother Subedar. The plaintiff pur chased the share of Rampat through a registered instrument and there had been a family settlement through which Kamala and Subedar transferred their share in the suit property in favour of the petitioner through a written instrument dated 24-12-1971. Subsequently, however, Kamala, and Subedar transferred their land to other defendants on the basis of which I hey were trying to interfere in the land in dis pute and that gave the cause of action to the plaintiff- petitioner for permanent in junction. The petitioner asserted that for the Fasli year 1389 Khatauni was prepared in his name for certain plots and for the Fasli years 1390 and 1395 Khaiauni was prepared in his name for some other plots. The defendants, however, denied that title of the petitioner on the suit properly. The defendant Kamala also contested the suit and asserted that the plaintiff had not been the bhumidhar for one-third share in the suit property and the suit was really one for a relief for a declaration of his right and title to the extent of that one-third share and only the shape of an injunction suit was given although the real relief was of a declaration of title.

(2.) THE trial Judge framed several is sues including one touching the jurisdic tion of the civil Court to take up the mat ter. THE issue was decided by the trial Judge on 1-9-1992 in the affirmative, hold ing that the Civil Court had a jurisdiction to entertain the suit as the relief sought for was for permanent injunction that could have been granted only by the Civil Court. A revision application, however, was preferred and by an order dated 27-5-1999, the IVth Additional District Judge, Azamgarh, allowed the revision, set aside the order of the trial Judge dated 1-9-1992. This order has given rise to the present writ petition.

(3.) SCHEDULE 2, as spoken of in Section 331 of this Act, gives a table of the nature of the proceedings, the name of the Court of first instance and the names of the Courts of first and second appeal (where lies ). In item No. 34, it speaks of a suit for declara tion of rights under Sections 229, 229-B and 229-C of the Act and the proper forum for a suit is the Court of Assistant Collec tor, First Class. Section 229-B deals with declaratory suits by persons claiming to be asami of a holding of a part thereof. Any person claiming to be a asami of a holding or any part thereof whether exclusively or jointly with any other party, may sue the land-lord for a declaration of his rights as asami in such holding or the part as the case may be, and any other person claiming to hold as asami is to be impleaded as a defendant. These provisions would apply mutatis mutandis to a suit by a person claiming to be a bhumidhar and in such a suit the Word land-holder would mean the State Government and the Gaon Sabha. Section 229-D of the Act also provides for injunction under certain circumstances in suits filed under Section 229-B.