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Ram Bali and ors. Vs. Jaipal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2328 of 1968
Judge
Reported inAIR1978All514
ActsUttar Pradesh Consolidation of Holdings Act, 1954 - Sections 49; Code of Civil Procedure (CPC) , 1908 - Order 7, Rules 10 and 11
AppellantRam Bali and ors.
RespondentJaipal and ors.
Appellant AdvocateVindheshwari Pd., Adv.
Respondent AdvocateC.B. Mishra, Adv.
DispositionAppeal dismissed
Excerpt:
civil - dismissal of suit - order 7 rules 10 and 11 of code of civil procedure, 1908 - it is a matter of discretion of the court to decide whether the plaint ought to be returned for presentation in the court having the jurisdiction to entertain it or to dismiss the suit. - .....on two grounds : (1) that the civil court had no jurisdiction to try the suit; and (2) that the suit was barred by section 49 of the u. p. consolidation of holdings act.3. mr. vindeshwari pd., learned counsel for the appellants, has urged that the suit was not barred by section 49 of the u. p. consolidation of holdings act in view of the fact that they had no remedy under that act, the only remedy being that the plaintiffs could have got their rights adjudicated upon by the civil court. he further submits that even if it was held that the civil court had no jurisdiction to grant a declaration in respect of bhumidhari rights, the courts below ought to have directed the return of the plaint for presentation to the revenue court instead of having dismissed the suit.4. now if the only.....
Judgment:

Deoki Nandan, J.

1. This is a plaintiff's second appeal in a suit for declaration that the plaintiffs are the Bhumidhars of an area of 21 decimals shown by the letters ABCD on the plaint map out of plot No. 66, which number had been given to it by the consolidation authorities in place of its original number 406. The case of the plaintiffs-appellants was that although they were Bhumidhars of the middle portion of that plot while the defendants were Bhumidhars of two portions, one to the north and the other to the south of their portion, the consolidation authorities by mistake recorded the whole of the plot No. 66 in the name of the defendants as Bhumidhars.

2. The trial court dismissed the suit. The lower appellate court maintained the dismissal of the suit on two grounds : (1) that the civil court had no jurisdiction to try the suit; and (2) that the suit was barred by Section 49 of the U. P. Consolidation of Holdings Act.

3. Mr. Vindeshwari Pd., learned counsel for the appellants, has urged that the suit was not barred by Section 49 of the U. P. Consolidation of Holdings Act in view of the fact that they had no remedy under that Act, the only remedy being that the plaintiffs could have got their rights adjudicated upon by the civil court. He further submits that even if it was held that the civil court had no jurisdiction to grant a declaration in respect of Bhumidhari rights, the courts below ought to have directed the return of the plaint for presentation to the revenue court instead of having dismissed the suit.

4. Now if the only point were that the revenue court and not the civil court had jurisdiction to try the suit something might have been paid for the last argument of Mr. Vindeshwari Pd., but the bar of Section 49 of the U. P. Consolidation of Holdings Act, is applicable equally to both revenue courts and civil courts. On this Mr. Vindeshwari Pd. urged that if the civil court had no jurisdiction to try the suit, its finding that Section 49 barred the suit, would be a finding given by a court having no jurisdiction. I do not agree. The question whether the plaint ought to be returned for presentation to the court having jurisdiction to entertain the suit, or the suit should be dismissed was a matter within the discretion of the civil court to decide, because the plaintiff had filed the suit there.

The parties had raised several (omission) (sic) before the court, and on thefacts stated, indeed on the own pleadings of the plaintiffs, the bar of Section 49 of the U. P. Consolidation of Holdings Act is so obvious that the decree dismissing the suit on the ground that it was barred by that provision, as also on the ground that the civil court had no jurisdiction to try it, cannot be said to suffer from any error of law. This will, however, not preclude the plaintiffs from availing of such remedy, if any, as might be available to them under the U. P. Consolidation of Holdings Act, in order to have (rectified ?) the error, if any, in the record of rights prepared by Consolidation Authorities under the provisions of that Act.

5. In the result, the appeal fails and is dismissed with costs.


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