JUDGMENT
Poonam Srivastav, J.
1. Heard Sri H.C. Saxena and Sri O.P. Pandey, learned counsels for the appellant and Sri A.K. Mishra Advocate for the contesting respondents.
2. This is plaintiffs second appeal against the judgment and decree dated 31.8.1995 passed by the Additional District Judge, Varanasi, Mahrajganj in Civil Appeal No. 1 of 1994 confirming the judgment and decree dated 15.12.1993 passed by Munsif Magistrate, Farenda, District Mahrajganj in Original Suit No. 280 of 1991.
3. An Original Suit was preferred by the plaintiff claiming himself to be son of Phaiku and owner in occupation. It was pleaded that the defendant-respondents have started interfering with the peaceful possession of the appellant and injunction suit was instituted in respect of Plot No. 1499 area 749 D situated in Village Bargahpur, Pargana and Tehsil Farenda, District Mahrajganj. The claim of the defendants was on the basis of a Will executed by Phaiku. The defendants were nephew of Phaiku and it was contended that he died issueless. The trial court and lower appellate court were of the view that the dispute is in respect of agricultural land and, therefore, the civil suit is not maintainable and is barred by Section 331 of U.P. Zamindari Abolition & Land Reforms Act. The substantial questions of law framed in this appeal, on which the appeal was admitted, are as under:
1. Whether the plaintiff is the son of Phaiku?
2. Whether Phaiku bequeathed the agricultural land in suit to the defendants by will as alleged by the defendants?
Therefore, the only question whether the plaintiffs suit is barred by Section 331 of the U.P. Zamindari Abolition & Land Reforms Act arises for consideration in this appeal. The first question is factual and can not be reopened and reassessed in a second appeal.
The findings of the trial court on issue Nos. 1 and 2 have been emphatically challenged. The submission is that while deciding issue No. 2, the trial court recorded its finding that the suit is barred is per-se illegal.
4. In the circumstances, the short question-involved in the present second appeal is, whether the suit was barred or not. Learned Counsel for the appellant has placed the plaint before me in support of this contention that the suit was simplicitor for relief of injunction and, therefore, this relief could not be given by the revenue courts and the suit was maintainable.
5. I have perused the findings of the courts below on issue No. 2. It is evident that the name of the plaintiff is not recorded in the revenue records and, therefore, perusal of paper No. Ga/49 and statement of PW-1, it is evident that the mutation proceedings are pending before the revenue courts and the question of ownership is yet to be decided. Issue No. 1 relates to question whether the plaintiff is owner in occupation of plot No. 1499 (area 749). Since the question of injunction can only be considered, if the plaintiff establishes his title and thereby consequent possession. Since both the questions are inter linked, it can not be said that the suit instituted by the plaintiff was simplicitor for injunction. In fact the courts below were required to decide the question of title and possession on merits. Though this Court, while admitting the second appeal, framed question of law regarding the parentage of plaintiff and his relation with Faiku. Both the courts below have come to a definite conclusion and recorded a finding of fact that on the basis of documentary proof Paper No. Ga/15, Extract Khasra Paper No. Ga/16, Extract Khatauni Paper No. Ga/76 and Khasra Paper No. Ga/77 by the plaintiff failed to establish their prima facie right to the disputed property, the defendants are recorded in the revenue records and if the plaintiff has any objection, it can only be challenged before the revenue court by instituting a suit for declaration. The name of plaintiff was not recorded in the revenue records and, therefore, the courts were of the view that the question as to whether the plaintiff is son of Faiku or not is to be decided first before any relief of injunction could be granted. I am in agreement with the findings arrived at by both the courts below that the suit was not maintainable and barred by Section 331 of U.P. Zamindari Aboolition & Land Reforms Act.
6. Counsel for the appellant has placed three decisions. The first case I relied upon is, M. Kallappa Setty v. M.V. Lakshminarayana Rao . The Apex Court ruled that the plaintiff, on strength of his possession can very well resist interference from defendant who has no better title than himself and get injunction from disturbing his possession. In the circumstances, the ratio decided by the Apex Court is that in the event, the plaintiff is in an admitted possession of the property and the two courts recorded a finding conclusively in favour of the plaintiff that he is in possession then he is entitled for an injunction. This is not the position in the instant case. The trial court relied on the revenue entries while deciding the question of possession and has recorded a conclusive finding that since the entries are in the name of the defendants and unless and until contrary is established, the plaintiffs possession is not established. This finding is confirmed in the appeal, therefore, there is no applicability of the decision relied upon by the counsel for the appellant. There is no finding whatsoever that the plaintiff is in possession. No doubt it is settled that even an unauthorized occupant is found in possession, he can not be evicted otherwise than in accordance with law and is very much entitled for injunction but the facts of the present case are absolutely different and, therefore, I hold that the question of possession having been decided against the plaintiff by the two courts, which is a finding of fact, the relief of injunction has rightly been refused by the courts below. The next decision relied upon by the counsel is, Badalu and Anr. v. Ram Palat and Ors. 1992 R.D. 429. This decision relates to the question of jurisdiction of the court. The bar of Section 331 of U.P.Z.A. & L.R. Act was held to be not applicable if the plaintiff is found in possession and relief for prohibitory injunction claimed in the suit. Paragraph 13 of this decision is quoted below:
In the present case both the courts below have found that plaintiff were not entitled to the decree of prohibitory injunction since they had not been in possession over the land in dispute and their suit for the relief in respect of the plot Nos. 841 and 846 has been rightly dismissed. It may, however, be observed that since the finding on issue No. 2 framed by the trial court had not been challenged and the civil court had no jurisdiction to decide the question relating to the title in respect of plot Nos. 841 and 846 in dispute, the said question will remain open to be agitated by the parties if they so desired in a fresh proceeding and it will not be open to the defendants or their representatives or successors to resist any suit of the plaintiffs or their representatives or successors which may be brought in future for possession of the suit property comprised in plot Nos. 841 and 846 in dispute on the basis of their title either on the ground of res-judicata or Order II, Rule 2, C.P.C. I do not find any such infirmity in the impugned decree which may warrant any interference by this Court in the exercise of its jurisdiction under Section 100, C.P.C.
7. In the circumstances, the appellant do not get any help from this decision as well. The question of possession having once been decided against the plaintiff concurrently by the two courts, the relief for injunction was rightly refused. There is yet another Full Bench Decision of this Court which lays down clear guidelines regarding determination of jurisdiction of civil and revenue courts, in the case of Ram Awalamb and Ors. v. Jata Shanker and Ors. 1968 R.D. 470 (F.B.). The extract of the said decision is quoted below:
In each and every case the cause of action of the suit shall have to be strictly scrutinized to determine whether the suit is solely cognizable by a revenue court or is impliedly cognizable only by a revenue court, or is cognizable by a civil court. Where in a suit, from a perusal only of the reliefs claimed, one or more of them are ostensibly cognizable only by civil court and at least one relief is cognizable only by the revenue court, further questions which arise are whether all the reliefs are based on the same cause of action and, if so, (a) whether the main relief asked for on the basis of that cause of action is such as can be granted only by a revenue court, or (b) whether any real or substantial relief (though it may not be identical with that claimed by the plaintiff) could be granted by the revenue court. There can be no doubt that in all cases contemplated under (a) and (b) above the jurisdiction shall vest in the revenue court and not in the civil court. In all other cases of a civil nature the jurisdiction must vest in the civil court.
The main point for consideration in all cases where on a definite cause of action two reliefs can be claimed is which of the two reliefs is the main relief and which relief or other reliefs are ancillary reliefs. Where from facts and circumstances of the case the relief for demolition and injunction is the main relief there could be no reason why the jurisdiction of the civil court should be barred. On the other hand, if it could be said that the main relief, that is to say, the real and substantial relief, could on that cause of action be of possession only then the suit will definitely lie in the revenue court.
A civil court will have the power to entertain the suit where the main relief sought by the plaintiff is that of injunction and demolition, a relief which could be granted by the civil court only. The relief of possession will be merely ancillary relief which the civil court could grant after having taken cognizance of the suit for inunction and demolition.
The determination of the question as to which out of the several reliefs arising from the same cause of action is the main relief will depend on the facts and circumstances of each case. Where, on the basis of a cause of action-
(a) the main relief is cognizable by a revenue court the suit would be cognizable by the revenue court only. The fact that the ancillary reliefs claimed are cognizable by civil court would be immaterial for determining the proper forum for the suit;
(b) the main relief is cognizable by the civil court the suit would be cognizable by the civil court the suit would be cognizable by the civil court only and the ancillary reliefs, which could be granted by the revenue court may also be granted by the civil court.
(c) The above principle will apply also to a suit for injunction and demolition relating to agricultural land and brought against a trespasser. Where the revenue court was not competent to grant all the reliefs arising out of one and the same cause of action and the main relief was that of injunction and demolition the suit would lie in the civil court.
8. On analysis of Full Bench guidelines quoted above, it is evident that the two courts were of consistent view that the revenue records clearly establish the right and possession of the defendants and unless and until the plaintiffs right or even possession is not established, injunction could not be granted, therefore these questions could be adjudicated only in a suit for declaration. No doubt the relief of injunction was claimed in the suit but the main relief could not be ignored. In fact the injunction was only an ancillary relief which could be granted only by a revenue court. The findings by the two courts below that the suit was not maintainable since the question of title and respective right was to be determined. In the circumstances, I do not find that the substantial question of law raised in the instant appeal worth consideration, the findings to the contrary by the two courts below do not call for interference and can not be interfered in exercise of jurisdiction under Section 100 C.P.C. The suit instituted for possession was held not maintainable by the civil court after recording its conclusion that since the plaintiff has not been able to establish possession and there is neither any document nor any material to hold the title in favour of the plaintiff. These questions are to be adjudicated by the revenue courts which in fact is still pending. In view of what has been stated upon, there is no substance in the submissions made by the learned counsel. The appeal lacks merit and is accordingly dismissed Cost on parties.