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Shiv Pal Singh and ors. Vs. Gaon Sabha - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. No. 216 of 1978
Judge
Reported inAIR1984All114
ActsCode of Civil Procedure (CPC) , 1908 - Sections 9; Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951 - Sections 18
AppellantShiv Pal Singh and ors.
RespondentGaon Sabha
Appellant AdvocateD.P. Singh, Adv.
Respondent AdvocateK.B. Garg, Adv.
DispositionAppeal dismissed
Excerpt:
civil - denudation of land - section 9 of code of civil procedure, 1908 - due to diluvion and alluvion action of river plaintiff land submerged - resulting in formation of a new land on other side of river - gaon sabha of another village claimed title - plaintiff filed injunction to restrain gaon sabha - civil court lacks jurisdiction to entertain such cases. - .....rights as such. it is, therefore, contended that the suit is primarily and basically for the relief of injunction and if in order to grant this relief the court has to consider the question of bhumidhari rights, it was only incidental and wholly insufficient to oust the jurisdiction of the civil courts. the respondent on the other hand has contended that even if the plaintiffs were originally bhumidhar of the land yet they have lost their rights due to alluvion action of the river. thus rights would accrue in favour of defendant in the land added to the area of village uncha by alluvion. the plaintiffs cannot base their title on the earlier bhumidhari rights which no longer survive and any land gained towards the subject to altogether new rights therein. 6. having heard learned.....
Judgment:

N.N. Mithal, J.

1. The plaintiff has filed this appeal against the order of the lower appellate Court holding that the Civil Court had no jurisdiction to decide the suit and directing return of the plaint for presentation to the proper Court.

2. The facts of the case, so far as they arc relevant for the purposes of the controversy involved in the appeal are : between the village Maharajpur and Uncha there is a river. The plaintiffs were recorded Bhumidhars of the land in question in village Mahrajpur. However, due to shift in the course of the river towards village Mahrajpur some land on its other side became available due to alluvion. The respondent, as Gaon Sabha of village Uncha, laid its claim to the said land and intended to lease it nut according to law. The plaintiffs, therefore, filed the suit in 1975 for an injunction restraining the defendant from interfering with plaintiff's possession over it and from allotting the same on lease to others.

3. Objection was taken by the defendant Gaon Sabha that due to change in the course of the river some area of village Mahrajpur had become submerged in the river and by alluvion some land has emerged towards defendants' village and the S. D. O. concerned had already decided this matter on 4-3-72.

4. The trial Court considered the issue of jurisdiction initially and came to the conclusion that the suit was cognizable by Civil Court, but on appeal its decision has been set aside and the plaint has been ordered to be returned for presentation to the proper Court.

5. Sri D.P. Singh, learned counsel for the appellant has mainly urged before methat since the plaintiffs were recorded as Bhumidhars in the revenue papers it was not necessary for the plaintiffs to seek any declaration of their status as Bhumidhars. The suit for injunction was filed by them on the pre-existing rights as such. It is, therefore, contended that the suit is primarily and basically for the relief of injunction and if in order to grant this relief the Court has to consider the question of Bhumidhari rights, it was only incidental and wholly insufficient to oust the jurisdiction of the Civil Courts. The respondent on the other hand has contended that even if the plaintiffs were originally Bhumidhar of the land yet they have lost their rights due to alluvion action of the river. Thus rights would accrue in favour of defendant in the land added to the area of village Uncha by alluvion. The plaintiffs cannot base their title on the earlier Bhumidhari rights which no longer survive and any land gained towards the subject to altogether new rights therein.

6. Having heard learned counsel for the parties I find that the appeal has no force. It is true that if the plaintiffs had sought the injunction on the basis of their subsisting Bhumidhari rights then the position would have been simple. However, in the instant case, the so-called Bhumidhari rights of the plaintiffs have been affected by the diluvion action of the river and the main dispute now between the parties is whether the plaintiffs still retain their Bhumidhari rights in the land which has now emerged on account of alluvion towards the village Uncha. 'The revenue entries relied upon by the appellant are for the years 1380 F to 1382 F pertaining to village Mahrajpur in which the said land is shown recorded in the name of the plaintiffs. However, the said entries are not of much relevance because the plaintiffs themselves have alleged in paras 4, 5 and 6 of the plaint that the current of the river had shitted towards village Mahrajpur and the land in dispute now lies towards the other bank of the river on the side of village Uncha.

7. The custom of Dhar Dhura literally means 'along the mid-stream' and according to this custom mid-stream is taken to be the dividing line of the two village boundaries. This custom, however, is applicable only in respect of navigable rivers but not in respect of seasonal rivers. Also, the custom varies from place to place. In any case, it is now settled law that if the land is submerged in the river on one side and some land emerges towards the other bankpersons claiming rights in that former land must establish that the land emerging on the ether bank is the same land and was identifiable as such. Merely because due to change in the course of the river some land had emerged towards the other side it cannot be inferred that it continued to belong to the same person who had lost his land, nor can it be claimed that he continued to exercise the same old rights therein. In the absence of identification of such land fresh rights therein will accrue and in the absence of any rightful claimant it would vest in the State.

8. In the present case the only basis of the plaintiffs' claim is their Bhumidhari rights which they had prior to the diluvion action. It is further claimed that the land emerging on the other side of the river would still continue to be their Bhumidhari. This does not appear to be tine correct position of law. Even if plaintiffs continue to be recorded as Bhumidhar over the land during 1380 F to 1382 F in the Revenue Re. cords of village Maharajpur it cannot follow that the land which is an accretion towards village Uncha still pertains to the former village and had not become part of the area of village Uncha. These are all vexed questions and the plaintiffs have yet to establish their rights before they could succeed in getting the relief of injunction. In the peculiar circumstances of this case, therefore, it cannot be said that merely because the plaintiffs were recorded Bhumidharis there was no need to seek declaration of their rights and could straightway seek the relief of injunction. The relief of declaration was not merely an incidental matter. Once the former rights are lost and new ones are acquired due to diluvion and alluvion action of the river it is not possible to rely upon entries in Revenue Records, as rights in the land have to be established again. In such circumstances, declaration of rights becomes of primary importance on which alone the relief of injunction, could be found. Since declaration of Bhumidhari rights can be granted only by Revenue Courts the Civil Courts can have no jurisdiction in tile matter.

9. Learned counsel for the appellants seeks support from a decision of a learned single Judge of this Court in Bhola Nath v. Baba Damodar Das, (1982) Rev Dec 17: (1981 All LJ 1303). However as stated earlier, the facts of that case were entirety different from the facts with which we are presently concerned. In that case Bhumidhari rights were acquired by the plaintiffs undera sale deed executed by the former Bhumidhar and on that basis alone injunction was claimed. Here in this case the very basis of the plaintiffs' rights has to be redetermined in view of diluvion and alluvion for which a proper enquiry is contemplated under the revenue law. These rights, therefore, cannot be accepted as a take off point for seeking relief of injunction because the plaintiffs will have to establish these rights afresh and then only he could seek the relief of injunction. The view of the lower appellate Court that Civil Court had no jurisdiction to try this suit is, therefore, correct.

10. The appeal has thus no force and is accordingly dismissed. However, there will be no order as to costs.


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