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Smt. Bishni Devi Vs. Bahadur Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2053 of 1971
Judge
Reported inAIR1980All209
ActsSpecific Relief Act, 1963 - Sections 37 and 38
AppellantSmt. Bishni Devi
RespondentBahadur Singh and ors.
Appellant AdvocateK.C. Dhuliya, Adv.
Respondent AdvocateL.M. Pant, Adv.
DispositionAppeal dismissed
Excerpt:
.....of injunction - sections 37 and 38 of specific relief act, 1963 - agricultural land of deceased tenure-holder - married daughter mutated as tenure holder - suit for perpetual injunction filed against brother restraining him to interfere with possession - title of property belongs to brother by way of succession - discretionary power of court - held, court refused to grant the injunction. - - dhuliya that the lower appellate court had no jurisdiction to declare that the defendant-respondent bahadur singh was the lawful tenure holder of the land in 6uit and entitled to possession thereof, for that was clearly the jurisdiction of the revenue court, yet it cannot be said that the decree refusing to grant the injunction suffers from any error of law. it is well alown that under the..........mohan singh, father of the plaintiff-appellant and of the defendant-respondent no. 1 was the tenure holder, when he died in april, 1968. after his death the plaintiff, who claimed to have been in possession of the land in suit, got her name mutated as the tenure holder in place of her deceased father mohan singh. the suit giving rise to the present second appeal was filed thereafter for an injunction restraining the defendants from interfering with her cultivatory possession over the land in suit.2. the trial court decreed the suit but the lower appellate court reversed that decree and dismissed the suit on the ground that although the plaintiff was in possession of the land and her name was recorded as the tenure holder after the death of mohan singh, yet bahadur singh, the.....
Judgment:

Deoki Nandan, J.

1. This is a plaintiff's second appeal in a suit for injunction. Defendant-respondent Bahadur Singh is the own brother of the plaintiff-appellant. The third defendant-respondent Smt. Jamuna Devi is the wife of Bahadur Singh. The land in suit is agricultural. Mohan Singh, father of the plaintiff-appellant and of the defendant-respondent No. 1 was the tenure holder, when he died in April, 1968. After his death the plaintiff, who claimed to have been in possession of the land in suit, got her name mutated as the tenure holder in place of her deceased father Mohan Singh. The suit giving rise to the present second appeal was filed thereafter for an injunction restraining the defendants from interfering with her cultivatory possession over the land in suit.

2. The trial court decreed the suit but the lower appellate court reversed that decree and dismissed the suit on the ground that although the plaintiff was in possession of the land and her name was recorded as the tenure holder after the death of Mohan Singh, yet Bahadur Singh, the defendant, was a preferential heir. The lower appellate court has held that in the circumstances Bahadur Singh was entitled to a declaration from a court of competent jurisdiction that he was the lawful owner entitled to the property in suit and could also obtain possessionunder a decree of competent court. In this view of the matter the lower appellate court held that the case was not a fit one for the issue of a perpetual injunction restraining the defendants from interfering with the plaintiff's possession.

3. Mr. K.C. Dhuliya, learned counsel for the appellant urged before me that the finding of the lower appellate court was a travesty of law. Although the plaintiff has been found to be the recorded tenure holder in possession of the land in suit, yet the relief for permanent injunction has been refused to her. So long as the record stood, the plaintiff must be deemed to be the tenure holder and the lower appellate court could not have proceeded to hold that defendant-respondent No. 1 was in law entitled to be the owner and possession of the same.

4. While there is no difficulty in agreeing with Mr. K.C. Dhuliya that the lower appellate court had no jurisdiction to declare that the defendant-respondent Bahadur Singh was the lawful tenure holder of the land in 6uit and entitled to possession thereof, for that was clearly the jurisdiction of the revenue court, yet it cannot be said that the decree refusing to grant the injunction suffers from any error of law. The grant of relief of injunction is in the discretion of the court, defendant-respondent No. 1 is the own brother of the plaintiff. It is well alown that under the revenue law a married daughter is postponed to a son in the matter of succession to agricultural land. If for some reason defendant-respondent No. 1 did not object to the mutation of the name of the plaintiff-appellant as the tenure holder of the land or did not immediately proceed to file a suit for declaration and/or possession against her, it cannot be said that the plaintiff could have taken the advantage of the same by obtaining a perpetual injunction restraining him from interfering with her possession. Moreover, in every case, a court can, before granting an injunction, go into the question of the plaintiffs title to the property. The lower appellate court was under the circumstances fully justified, and had the jurisdiction to come to the finding that plaintiff-appellant had no right to the land in suit in face of the fact that her brother Bahadur Singhhad survived his father Mohan Singh to whom the land admittedly belonged. Having reached this finding the lower appellate court was also fully justified in refusing to grant the injunction.

5. In the result, the appeal fails and is dismissed but in the circumstances there will be no order as to costs.


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