1. This is a plaintiff's appeal arising out of a suit for permanent prohibitory injunction.

2. Original Suit No. 441 of 1979 was instituted by Irshad Ahmad against the State of U.P., represented by the Collector, Muzaffar Nagar and the Town Area Committee, Burhana, District Muzaffar Nagar, represented by its Secretary, praying for a permanent injunction to the effect that the defendants be forbidden from interfering with the plaintiff's peaceful possession in the suit property perpetually.

3. The facts giving rise to the appeal are these:

Irshad Ahmad (for short, 'the plaintiff') instituted a suit before the Munsif of Muzaffar Nagar with a case that he had his Pajawa (an indigenous brick-kiln), located in Khasra No. 3299, admeasuring 1 bigha 8 biswa and Khasra No. 3300, admeasuring 10 biswa, situate in the Town and Tehsil Burhana, District Muzaffar Nagar. The said land was the plaintiff's ancestral property, that was included in Khewat No. 19, Mahal Abdul Alam. The said property shall hereinafter be called 'the suit property'. It is the plaintiff's case that the Pajawa is situate in the suit property since a very long time, and, is recorded as such, in the revenue records. In Khasra No. 3299, the plaintiff's great grandfather had got a pucca well sunk, that bears a stone engraving of his name. The suit property does not fall within the definition of land envisaged under Section 3(14) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (for short, 'the Act').

4. In the days gone by, land of Khasra No. 3299 was cultivated and in order to irrigate the land, the well last mentioned was sunk. The State of U.P., represented by the Collector, Muzaffar Nagar and the Town Area Committee, Burhana, hereinafter referred to as 'defendant Nos. 1 and 2, respectively, have neither title nor possession to the suit property and it is the plaintiff, who is in possession of the same. It is the plaintiff's case that without any right, defendant Nos. 1 and 2 want to interfere with the plaintiff's peaceful possession in the suit property. The plaintiff instituted a declaratory suit under Section 229-B of the Act, but the suit property being not land within the definition of Section 3(14) of the Act, the suit was dismissed.

5. The plaintiff questioned the Trial Court's judgment vide Appeal No. 303 of 1978 preferred to the Commissioner of the Division. The Commissioner by his order dated 27.04.1979 remanded the suit for trial. It was held that the suit property was not land under Section 3(5) of the Uttar Pradesh Consolidation of Holdings Act, 1953 (for short, ‘the Consolidation Act’), and, therefore, the provisions of the said Act, are not attracted, including those of Section 49. It is in these circumstances, the plaintiff says that he instituted a suit for injunction before the Civil Court. It is also the plaintiff's case that he served two notices dated 09.05.1979 upon defendant Nos. 1 and 2 and these were served on 15.05.1979.

6. About defendant Nos. 3 to 10 to the suit, who are not parties to this appeal, for reasons that will shortly be indicated, it was averred that the said defendants have no right in the suit property. It was also averred that defendant Nos. 3 to 10 have executed a conveyance of sorts, called a dastbardari of their share in the plaintiff's favour, who are now owners of the entire suit property. It may be remarked that there is no relief by way of injunction claimed against defendant Nos. 3 to 10. It is lastly averred by the plaintiff that defendant Nos. 1 and 2 are, despite the plaintiff's asking, persistent in their endeavour to take forcible possession of the suit property and interfering with his peaceful possession.

7. Defendant Nos. 1 and 2 have filed a joint written statement. It is their case that the plaintiff has instituted the suit stating incorrect facts. According to these defendants, the suit property is vacant for the last 30 years and banjar in character. Neither the plaintiff nor anyone else has a Pajawa located there. The suit property is not in the plaintiff's possession. It is the defendants' case that there was no Pajawa situate in the suit property, either on the date of vesting under the Act or thereafter. The suit property was vacant and barren (banjar), and, therefore, under the law, defendant Nos. 1 and 2 are owners thereof. It is the defendants' objection that the plaintiff has not pleaded as to how he got title to the suit property. Therefore, the suit is not maintainable. The plaintiff is not in possession of the suit property. As such, the suit is barred by Sections 34, 38 and 41 of the Specific Relief Act, 1963. The Civil Court has no jurisdiction to try the suit. Defendant Nos. 1 and 2 have prayed that the suit be dismissed with special costs.

8. Defendant Nos. 1 and 2 have filed an additional written statement, where they have come up with a case that neither the plaintiff nor defendant Nos. 3 to 10 have any right in the suit property nor have they been holders of its title ever in the past. It is averred that the suit property is recorded in the revenue records as Pajawa and banjar. Defendant Nos. 1 and 2 are owners in possession of the suit property. At the time of abolition of zamindari, there was no Pajawa and on the date of vesting, the said property was vacant and barren (banjar). The defendants have, therefore, urged that the suit be dismissed with costs.

9. A separate written statement was put in on behalf of defendant Nos. 3 to 10, bearing paper No. 83-Ka. It is the said defendants' case that the suit property was originally owned by one Noor Mohammad, a common ancestor of the plaintiff and defendant Nos. 3 to 10. As such, defendant Nos. 3 to 10 are cosharers and co-owners in possession of the suit property along with the plaintiff. These defendants have taken a stand that they have never executed any kind of a conveyance of their share in the plaintiff's favour. They are, therefore, entitled to their share in the suit property in accordance with law. In the year 1974, the plaintiff asked defendant Nos. 3 to 10 to institute a suit regarding the suit property. For the purpose, the plaintiff came over to the said defendants and obtained their signatures on some papers. He secured their signatures on a blank paper as well. It was represented that the signatures of defendant Nos. 3 to 10 were required for the purpose of instituting a suit to secure the parties' rights in the suit property. It is also the case of defendant Nos. 3 to 10 that a later inspection of the record revealed that the plaintiff had defrauded them. Behind their back, the plaintiff has got his exclusive rights recorded in the suit property.

10. On the pleadings of parties, the Trial Court framed the following issues (translated into English from Hindi):

“1. Whether the plaintiff is the owner in possession of the property in dispute If yes, its effect

2. Whether the provisions of the U.P. Z.A. & L.R. Act apply to the property in dispute as described in the plaint If not, its effect

3. Whether the suit is barred by Section 80 CPC and Section 106 of the Transfer of Property Act

4. Whether the suit has been undervalued and the court-fee paid insufficient

5. Whether the Court has jurisdiction to try the suit

6. Whether the suit is barred by Sections 34, 38 and 41 of the Specific Relief Act

7. To what relief is the plaintiff entitled

8. Whether defendant Nos. 3 to 10 hold title to the suit property If yes, its effect”

11. The Trial Court found for the plaintiff on Issues Nos. 1 and 2. Issue No. 3 was not pressed on behalf of defendant Nos. 1 and 2, and, therefore, decided in the plaintiff's favour. Issue No. 4, which relates to valuation and the proper court-fee payable, was disposed of vide order dated 25.04.1980, that was made part of the judgment. There is nothing decided against the plaintiff by the Trial Court in answering the said issue. Issue No. 5 also appears to have been decided earlier, and apparently, in the plaintiff's favour. So far as Issue No. 6 is concerned, the defendants did not address the Court on it and it was, therefore, decided against them. So far as Issue No. 8 is concerned, it was decided in favour of defendant Nos. 3 to 10 and against the plaintiff holding that they were co-sharers in the suit property and also managing the Pajawa therein. The suit property was held to be ancestral and inherited by all.

12. On these findings, the Trial Court decreed the suit against defendant Nos. 1 and 2, injuncting them from interfering with the peaceful possession of the plaintiff and defendant Nos. 3 to 10 in the suit property.

13. The Trial Court's decree was appealed by defendant Nos. 1 and 2 vide Civil Appeal No. 81 of 1981. The plaintiff also appealed the Trial Court's decree vide Civil Appeal No. 70 of 1981, assailing the findings recorded on Issue No. 8 inter se the plaintiff and defendant Nos. 3 to 10.

14. It appears that the two civil appeals were assigned to the 8 th Additional District Judge, Muzaffar Nagar. So far as Civil Appeal No. 70 of 1981 is concerned, there was a compromise between the plaintiff and defendant Nos. 3 to 10, with the said defendants acknowledging the plaintiff's possession in the suit property. A formal compromise was filed and verified. Civil Appeal No. 81 of 1981 was, however, heard and determined on merits.

15. The Lower Appellate Court decided both the appeals by a common judgment but separate decrees dated 21.09.1984, whereby Civil Appeal No. 70 of 1981 preferred by the plaintiff was disposed of in terms of the compromise, whereas Civil Appeal No. 81 of 1981 preferred by defendant Nos. 1 and 2 was allowed, the Trial Court's judgment set aside and the suit dismissed.

16. Aggrieved, the plaintiff has instituted the present second appeal.

17. The appeal was admitted to hearing on 31.10.1984 by this Court by a reference made to Substantial Questions of Law Nos. 2, 5 and 6, as mentioned in the memo of appeal. These questions were not formulated. This Court before commencement of hearing, however, recorded the aforesaid questions in the order dated 22.04.2022, whereon the appeal was admitted. It must be clarified here that in the order dated 22.04.2022, the questions mentioned at serial No. 4 was not one of the questions on which the appeal was admitted vide order dated 31.10.1984. To that extent, the order dated 22.04.2022 must be taken to be corrected. This Court must record that before proceeding with the hearing on 22.04.2022, we formulated another three substantial questions of law, numbered as 5, 6 and 7. If the seriatim of these questions were corrected, considering that Question No. 4 mentioned in the order dated 22.04.2022 was never regarded as one of the substantial questions of law involved, there would be a reduction in serial number of questions after Substantial Question Law No. 3 by one. However, for the ease of reference, substantial questions of law would be dealt with going by the serial number in the order dated 22.04.2022. Of course, Question No. 4 would not at all be referred to or set out in this judgment.

18. It is also imperative to notice that after the hearing had proceeded on 22.04.2022 and 29.04.2022, and resumed on 05.05.2022, it was found by this Court that one more substantial question of law was required to be formulated. It was, accordingly, formulated and recorded in the order dated 05.05.2022.

19. The following substantial questions of law were formulated in this appeal:

"1. Whether the land in dispute being entered as Pajawa in the revenue records of 1359 Fasli and much before that, a fact proved by documentary evidence of the appellant as also the admission made by the respondents, the property in dispute could be said to be"land" within the meaning of Section 3(4) of U.P. Act 1 of 1951

2. Whether the lower appellate court committed an error apparent in making an observation that in the suit under Section 229-B of the Act, the Town Area Committee was not a party

3. Whether the judgment rendered in Suit no.6 under Section 229-B U.P.Z.A & L.R. Act, would operate as res judicata so far as the question of the nature of property in dispute is concerned.

5. Whether the lower appellate Court entered into an irrelevant issue as to the nature of the land subsequent to the enforcement of U.P. Act 1 of 1951

6. Whether the lower appellate Court has ignored the material part of the testimony of the plaintiff appellant that Pajawa was different from a brick kiln which did not oblige him by law to take out a licence from Zila Parishad to establish and run it

7. Whether a suit for permanent injunction forbearing the defendant from interfering with the plaintiff's possession can be decided without framing an issue regarding actual physical possession of parties

8. Whether in a case where the plaintiff's title is under a cloud, it is imperative to sue for declaration and a suit for injunction simplicitor would not be maintainable"

20. At the hearing of this appeal, that has continued across a number of days, the parties have advanced their submissions on Substantial Questions of Law Nos. 2, 3 and 8, and not on the others. This appeal was, accordingly, heard on the aforesaid substantial questions of law. It must also be recorded that pending this appeal, the plaintiff passed away and his heirs and LRs, who are appellant Nos. 1/1, 1/2, 1/3 and 1/4 to the appeal, were substituted in accordance with the order dated 06.02.2014. These heirs and LRs of the plaintiff too shall be referred to in this judgment as 'the plaintiff'.

21. Heard Mr. Arpit Agrawal, learned Counsel appearing on behalf of the plaintiff, Mr. V.K. Nagaich, learned Standing Counsel appearing on behalf of defendant No.1 and Mr. Amit Kumar, learned Counsel appearing on behalf of defendant No.2.

Findings of the Trial Court

22. The findings of the Trial Court on which the event turned are those recorded on Issues Nos. 1 and 2. The Trial Court considered the evidence of PW-2 and PW-3 to hold that these persons had spoken convincingly in their testimony that there was a Pajawa on the suit property. It has been remarked that PW-2 has testified to the effect that he had bought bricks made in the plaintiff's Pajawa, and further, that the witness had personal knowledge about the existence of this Pajawa for the past 50 years that he had seen being worked by the plaintiff's ancestors. PW-2's testimony was also noticed about the existence of the well in Khasra No. 3299, part of the suit property with the name of the plaintiff's ancestors engraved thereon. The testimony of PW-2 has also been noticed as one supporting the plaintiff's stand, crediting the witness with impartiality, because he belonged to a different village. The Trial Court also took into consideration Ex. 4 – a copy of the Khatauni for the Fasli Years 1383-1386 and another document, Ex. 5, being a Khasra for the Fasli Year 1357. Another document considered was Ex. 6, being a copy of the Khasra for the Fasli Year 1325. Still another document that was considered is a copy of the Khasra for the Fasli Year 1357. This document does not appear to have been exhibited. There is a reference to paper Nos. 56-C to 66-C without any reference being there in the Trial Court’s judgment about the description or the character of these documents and how they precisely bear on the issue.

23. From all this evidence – documentary and oral, the Trial Court drew an inference that the suit property has been utilized as a Pajawa since long. The Trial Court also took note of the fact that despite denial by defendant Nos. 1 and 2, the Additional Collector, in proceedings for correction of records, had directed the nature of the plot on the basis of reports of the Lekhpal and the Supervisor Kanoongo to be recorded as Pajawa. The Trial Court has observed that the revenue entry, which was made under the Additional Collector's orders, may not be conclusive about the nature of the land, but it was weighty evidence, which could be dislodged if the defendants produced evidence in rebuttal.

24. The Trial Court noted that defendant Nos. 1 and 2 did not produce any convincing evidence to displace what the Additional Collector had directed to be recorded. There is also a remark by the Trial Court that considering the statements of the defendants' witness, Prem Chand, it appears that he had never seen the suit property. The witness was a Secretary of the Town Area Committee, who held the post since the year 1980. The Trial Court opined that it is for the said reason that the witness had deficient knowledge about the suit property. The other witness examined on behalf of the defendants, Ram Chand was an employee of the Town Area Committee and has said that he had seen one Devi Sahai work a Pajawa on the suit property. The Trial Court has remarked that there is no such case, about which the witness has spoken. In these circumstances, the Trial Court answered Issue No. 1 in the plaintiff's favour.

25. Regarding Issue No 2, the Trial Court for the most part examined whether a Pajawa would fall in the definition of a ‘building’, so that upon enforcement of the Act, the building vested in the erstwhile Zamindar, that is to say, the plaintiff's ancestor. The Trial Court looked into the law relied upon by defendants Nos. 1 and 2 to say that Pajawa would not be a building unless there is a boundary wall on all sides, covered by a roof. The Trial Court held that the decision relied upon by defendant No. 1 reported in 1966 RD 310 did not help the said defendant's case, because it only defined a building and never dealt with the case of a Pajawa. In the opinion of the Trial Court, the site of the Pajawa would not vest in the State, but settle with the Zamindar, to wit, the plaintiff's ancestor.

26. It is primarily on these findings that the Trial Court decreed the suit.

Findings of the Lower Appellate Court

27. The Lower Appellate Court in writing its judgment of reversal has also dealt with Issue Nos. 1 and 2 albeit without formally framing points for determination. Virtually, the Lower Appellate Court has treated the issues as points to be dealt with. The case of parties has been substantially considered by the Lower Appellate Court while reversing the findings of the Trial Court.

28. The Lower Appellate Court after noticing the Trial Court's findings has looked into the documentary evidence. It has been remarked that Khasra No. 3300 was earlier numbered as 3776 and Khasra No. 3299 was formerly 3797. In 1295 Fasli, the Khasra shows that in Plot No. 3300 (as currently numbered) Pajawa is recorded and likewise in 1325 Fasli in the Khasra relating to Plot No. 3300, the entry showing Pajawa is there. Again in Fasli Year 1325, in the copy of the Khasra bearing paper No. 30-Ga, the same entry is shown. The last document noticed is the Khasra of Plot No. 3300 for the Fasli Years 1383- 1386, where too Pajawa is shown. It is remarked that either in 1295 Fasli or 1325 Fasli, nowhere in Naksha Aabpashi (record of irrigation) and in the Khasra for the year 1386 Fasli, paper No. 78-Ga, Pajawa is recorded. Instead, the Lower Appellate Court has remarked that in Khasra No. 3299, banjar is recorded, which supports the stand of defendant No. 1.

29. The Lower Appellate Court has then gone on to remark that in Khasra No. 3300, the Trial Court has accepted the existence of Pajawa going by documentary evidence alone, and, therefore, the oral evidence on the point is also required to be considered. What a Pajawa is, has also been commented upon by the Lower Appellate Court to opine that it is a place, where bricks are moulded. It has been held by the Lower Appellate Court that it is incorrect to say, therefore, that the plaintiff was carrying on the work of a brick-kiln.

30. The Lower Appellate Court has considered the testimony of the plaintiff in the witness-box, where he testified as PW-1. It is noted that this witness has said that there was a brick-kiln in the suit property for the past 30 years. It is also remarked that PW-1 has also testified that those running a Pajawa or brick-kiln had to take out licences from the Zila Parishad, which is an annual licence issued on deposit of a fee. The plaintiff, however, has not brought on record any licence relating to the Pajawa. There is also a reference to the plaintiff's testimony, where he said that some 6-7 years ago, a licence was taken out on payment of Rs. 10/- in fee to the Zila Parishad, but no receipt or a copy of the licence was issued. A copy of the licence as aforesaid, the witness admitted, was not produced in evidence.

31. The Lower Appellate Court has observed that the above evidence shows that for establishing and running a Pajawa or any kind of brick manufacturing work, a licence has to be taken out, granted by the Zila Parishad, but no such licence has been produced by the plaintiff. It is also remarked that the evidence of the plaintiff, where he says that he paid the requisite licence fee, cannot be believed in the absence of a receipt. The Lower Appellate Court has disbelieved the plaintiff's explanation about non-production of the receipt holding that what the plaintiff said on the issue is unbelievable. The plaintiff's explanation for nonproduction of the receipt was that no receipt was issued by the Zila Parishad. This explanation was not accepted by the Lower Appellate Court.

32. The Lower Appellate Court has also frowned upon the fact that the plaintiff did not produce a copy of the annual licence for running the Pajawa, a fact about which it is remarked that the licence would, if produced, establish the plaintiff's case about the suit property being used as a Pajawa. The Lower Appellate Court has then reasoned further that if for argument's sake it be accepted that the plaintiff was running a brick-kiln, its registration with the Sales Tax Department is imperative; and for the purpose, a definitive procedure is there. The plaintiff has not produced any registration with the Sale Tax Department or other document that may substantiate the existence of a Pajawa in the suit property.

33. The oral evidence of the other witnesses has also been commented upon by the Lower Appellate Court to opine that they have given different lengths of time, during which the Pajawa was functional. Their testimony has been found to be contradictory and irreconcilable; and for the said reason not worth credence. The Lower Appellate Court has observed that the testimony does not show the establishment or existence of the Pajawa and if that is the case, the suit property would be vacant land. In the Khasra for the Fasli Years 1383-1386, paper No. 28-Ga, Khasra No. 3299 has been recorded as banjar, which supports the case of defendant Nos. 1 and 2 in the opinion of the Lower Appellate Court.

34. On a meticulous examination of oral and documentary evidence, the Lower Appellate Court has disagreed with the findings of the Trial Court on Issue No. 1 and held that the plaintiff is not the owner of the suit property and there is no Pajawa in existence there.

35. As regards the findings on Issue No. 2, the Lower Appellate Court has held that land, that is used for agriculture, horticulture, animal husbandry or poultry farm, falls within the definition of land under the Act. It is remarked that there is no evidence on record that may suggest that the suit property was used for agriculture purposes. The logical inference, according to the Lower Appellate Court, is that it is banjar and under the Act would vest in the State. In the opinion of the Lower Appellate Court, the suit property has not been used for agriculture purposes nor was there any house or building standing thereon. Therefore, the plaintiff is neither the owner nor the bhumidhar of the suit property. In the opinion of the Lower Appellate Court, the suit property would vest in the State under the Act. The findings of the Trial Court on Issue No. 2 were, therefore, set aside and the said issue answered in favour of defendant Nos. 1 and 2.

36. The Lower Appellate Court, on the basis of these findings, reversed the decree passed by the Trial Court.

Substantial Questions of Law requiring consideration and their order

37. Before considering the submissions on behalf of the parties by the learned Counsel, this Court considers it appropriate to say that though the learned Counsel for parties have addressed the Court on three out of the seven substantial questions of law formulated, to wit, Questions Nos. 2, 3 and 8, this Court is of opinion that it would be convenient and logical to answer Substantial Question of Law No. 8 first in order, and then the other two

Substantial Question of Law No. 8

38. The learned Counsel for the plaintiff has submitted that it is not a case where the suit can be said to be not maintainable, because the relief of declaration has not been sought and instead an injunction alone claimed. It is argued by the learned Counsel for the plaintiff that this is a plea, which had not been taken on behalf of defendant Nos. 1 and 2 before the Courts below and raised here for the first time, and that too at the hearing of the appeal. It is argued that the decision of the Supreme Court relied upon on behalf of defendant Nos. 1 and 2 in Jharkhand State Housing Board v. Didar Singh and others, (2019) 17 SCC 692 , [LQ/SC/2018/1301 ;] would not apply to the facts of the case here. It is further argued that the principle laid down in Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRs and others, (2008) 4 SCC 594, [LQ/SC/2008/747] also relied on behalf of defendant Nos. 1 and 2, provides for an exception to the Rule about the imperative to seek a declaration, which is precisely the case here. Learned Counsel for the plaintiff has drawn the Court's attention to Paragraph No. 15 of the report in Anathula Sudhakar (supra), which reads:

“15. In a suit for permanent injunction to restrain the defendant from interfering with the plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and the defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.”

39. It is next submitted on behalf of the plaintiff that in Didar Singh (supra), the Supreme Court carved out an exception to the Rule about the imperative for seeking a declaration, holding:

“11. It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.”

40. It is submitted by the learned Counsel for the plaintiff further that on their pleaded case and the evidence led, defendant Nos. 1 and 2 could not raise a cloud over the plaintiff’s otherwise unimpeachable title and the plaintiff has also proved his possession along with title by documentary as well as oral evidence, that was duly considered by the Trial Court. However, the Lower Appellate Court overturned the judgment of the Trial Court on a perverse reasoning. Further, reliance has been placed on behalf of the plaintiff on the decision of the Supreme Court in Kayalulla Parambath Moidu Haji v. Namboodiyil Vinodan, 2021 (6) AWC 5651 (SC), where it has been observed:

“11. The issue is no more res integra. The position has been crystalised by this Court in the case of Anathula Sudhakar (supra) in paragraph 21, which read thus:—

“21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:

(a) x x x

(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.

(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar [Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202]) [LQ/SC/2005/679] . Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exceptionto the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”

12. It could thus be seen that this Court in unequivocal terms has held that where the plaintiff's title is not in dispute or under a cloud, a suit for injunction could be decided with reference to the finding on possession. It has been clearly held that if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

13. No doubt, this Court has held that where there are necessary pleadings regarding title and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. However, it has been held that such cases are the exception to the normal rule that question of title will not be decided in suits for injunction.”

41. On the basis of the aforesaid principles, it is submitted by the learned Counsel for the plaintiff that the suit property here is a 'Pajawa' and 'well', that is a constructed building, and, as such, 'actual possession' was required to be looked into. But, the Lower Appellate Court had not given any finding regarding possession. It is submitted that the principle in Kayalulla Parambath Moidu Haji as well as that in Didar Singh and Anathul Sudhakar would apply, if it is a case where the defendants had proved their title or substantially cast a cloud over the plaintiff's title. Else, there is absolutely no necessity of seeking a declaration and the case would fall in the exception where the relief of injunction alone would suffice.

42. It is next argued that even if a question of title is involved, the principle in Paragraph No. 13 of the report in Kayalulla Parambath Moidu Haji clearly shows that where an issue relating to title has been raised and parties have led evidence, the Court may decide the issue about title even in a suit for injunction. It is submitted by the learned Counsel for the plaintiff that if nothing else, the principle in Paragraph No. 13 of the report in Kayalulla Parambath Moidu Haji would apply. It is further argued that in this case, there are sufficient pleadings and evidence to enable the Court to go into the question of the plaintiff's title to the suit property, and the Courts below have recorded finding regarding title. The case is simple and straightforward, which can be decided in this suit without the necessity of a declaratory relief. It is particularly argued that documentary evidence in this case was illegally weeded out in the record room of the District Court, even though the present second appeal was pending hearing. The extract of revenue records filed on behalf of the plaintiff have also been weeded out and no revenue records are available as on date. It is urged that at this distance of time, no purpose would be served by a remand. It is also argued that the plaintiff has been dispossessed by defendant Nos. 1 and 2 without following the procedure prescribed by law, that is to say, the procedure envisaged under Section 67 of the U.P. Revenue Code, 2006 or its corresponding provision in Section 122-B of the Act. The unauthorized eviction of the plaintiff is also patently illegal and unjust. The Lower Appellate Court failed to consider the effect of the aforesaid act bearing in mind the law.

43. Mr. V.K. Nagaich, learned Counsel for defendant No. 1 and Mr. Amit Kumar, learned Advocate appearing on behalf of defendant No.2 have in unison submitted that the suit is one which essentially involves adjudication of the plaintiff's title, that is seriously disputed on behalf of the said defendants. As such, a suit for a mere injunction without claiming a declaratory relief is not maintainable. As already noticed while recording the plaintiff's submissions, the learned Counsel for the defendants say that the suit is not maintainable in view of the decision of the Supreme Court in Anathula Sudhakar and Didar Singh. If at all the plaintiff had to claim relief, he had to seek a declaration about his rights. The plaintiff cannot, by instituting a suit for a mere injunction, obtain relief, where there is a serious dispute or cloud of doubt affecting the plaintiff's claimed title to the suit property.

44. A perusal of the findings recorded by the two Courts below divergently on Issues Nos. 1 and 2 show that there is a thick dispute about title to the suit property arising between parties, with both sides attempting to prove their case by oral and documentary evidence. The documentary evidence relied upon by the plaintiff are largely revenue entries, and that too, in the Khasra for different periods of time. These include calendar years 1887, 1917 and 1978. These would correspond to the Fasli Years 1295, 1325 and 1386, respectively. The Lower Appellate Court has noticed that the entry about a Pajawa is there in the Khasra for the aforementioned years relating to Khasra No. 3300, but not with regard to the other Khasra, that is part of the suit property, to wit, No. 3299.

45. As regards Khasra No. 3299, the Lower Appellate Court has recorded a finding that a perusal of the Khasra for the relative years show that it is recorded as banjar. The LowerAppellate Court has not stopped at that and looked into the parties' oral evidence, where the mostly the plaintiff's evidence has been considered to hold that there is nothing of the kind of a brick-kiln situate in the suit property. All other kinds of evidence, that would possibly be there, if a brick-kiln were operating, has been considered. The Trial Court has not paid much attention to these aspects of the oral or documentary evidence while returning its finding on Issue No.1.

46. So far as this Court is concerned, we cannot reappreciate the oral and documentary evidence of parties virtually as a Court of first appeal. These findings and the case of parties have been referred to in wholesome detail in order to find out whether there is a cloud cast over the plaintiff's title to the suit property, regarding which he has claimed an injunction simplicitor. The pleadings of parties and the way the trial has proceeded, spares little doubt that the defendant Nos. 1 and 2 have raised a wholesome challenge to the plaintiff's title, claiming the suit property to be banjar vested in the State. The plaintiff on his part does not have a case, where he is a neatly recorded tenure-holder or owner of the suit property, asking for an injunction simplicitor. His title is mired in controversy. It requires establishment.

47. The contention of the learned Counsel for the plaintiff that if this objection about the want of a relief of declaration were to be raised by the defendants, it ought to have been done at the earliest and before the Courts below, cannot be countenanced. The reason is that the principles in Didar Singh and Anathula Sudhakar, to which some further reference shall shortly be made, make it imperative for a plaintiff to appropriately seek relief. The plaintiff would know what kind of doubt or cloud exist over his title and must appropriately frame his relief. The plaintiff cannot carve out a niche for himself pleading an exception to the rule based on a lack of objection by the defendant in this behalf at the earliest opportunity. The plaintiff certainly has that opportunity once the defendants filed their written statement. If at that stage, the plaintiff finds that the defendants have raised a serious dispute about title, the plaintiff must immediately move to appropriately amend his relief and other pleadings, and seek a declaration. The plaintiff cannot get over the flaw emanating from the absence of a relief for declaration, where it is imperative by urging that the defendants did not raise an objection in this behalf. The principle about the relief to be claimed in Anathula Sudhakar, has been wholesomely stated thus:

“13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.

13.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.

13.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.

13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.

14. We may, however, clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to the plaintiff's title raises a cloud on the title of the plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that the defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raise a serious dispute or cloud over the plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.

15. In a suit for permanent injunction to restrain the defendant from interfering with the plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and the defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be establishedwith reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.

16. But what if the property is a vacant site, which is not physically possessed, used or enjoyed In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a fullfledged suit for declaration and consequential reliefs.”

48. Again, in Didar Singh, regarding cases where it would be imperative to seek a declaration and not merely an injunction, it was observed by the Supreme Court, thus:

“10. The issue that fall for our consideration is: “Whether the suit for permanent injunction is maintainable when the defendant disputes the title of the plaintiff”

11. It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.

12. In the facts of the case the defendant Board by relying upon the land acquisition proceedingsand the possession certificate could successfully raise cloud over the title of the plaintiff and in those circumstances plaintiff ought to have sought for the relief of declaration. The courts below erred in entertaining the suit for injunction.”

49. The question yet again figured recently before their Lordships of the Supreme Court in T.V. Ramakrishna Reddy v. M. Mallappa and Another, AIR 2021 SC 4293, where it was held:

“10. It could thus be seen that this Court in unequivocal terms has held that where the plaintiff's title is not in dispute or under a cloud, a suit for injunction could be decided with reference to the finding on possession. It has been clearly held that if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

11. No doubt, this Court has held that where there are necessary pleadings regarding title and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. However, it has been held that such cases are the exception to the normal rule that question of title will not be decided in suits for injunction.

12. x x x x

13. The plaintiff-appellant claims to be the owner of the suit property on the basis of a sale-deed executed by one K.P. Govinda Reddy in his favour on 13.4.1992. In turn, according to him, the said property was sold by one Smt. Varalakshmamma in favour of his vendor K.P. Govinda Reddy on 26.3.1971. He claims that he had mortgaged the suit property for taking loan from one financial institution. He further claimed that an endorsement was also issued by the Corporation of City of Bangalore that Khata regarding the suit property is transferred to the appellant. According to the plaintiff-appellant, when the Bangalore Mahanagar Palike withdrew the Khata in his favour, he went to the High Court and succeeded therein.

14. Per contra, the defendant No. 2 (respondent No. 1 herein) is specifically denying the title of the plaintiff-appellant. He claims to be the owner of the suit property on the basis of a sale-deed dated 5.4.1984 from one M. Shivalingaiah. He also claims to be in peaceful possession and enjoyment of the same on the basis of the said sale-deed. It is his case that K.P. Govinda Reddy got the title set up falsely and created fabricated documents with regard to possession. It is also his case that compound wall was constructed by him and not by the plaintiff, as claimed.

15. It could thus clearly be seen that this is not a case where the plaintiff-appellant can be said to have a clear title over the suit property or that there is no cloud on plaintiffappellant's title over the suit property. The question involved is one which requires adjudication after the evidence is led and questions of fact and law are decided.”

50. Here, it is unmistakable that the defendants wholesomely deny the plaintiff's title to the suit property and his possession as well. Even if the plaintiff says that he has established by evidence that on the date the cause of action arose, he was in possession, it does not render the case one, where the dispute about title is, but a mere farce. Going by the settled position of the law, if the plaintiff's title is clear, recorded and free from cloud of controversy, without doubt the plaintiff may bring a suit for injunction, with no imperative to seek declaration. But, where the plaintiff's title is clouded in controversy and doubted with the defendants challenging it on an arguable basis, a mere injunction would not suffice; a declaration would then be necessary.

51. It has been noticed above that the case of defendant Nos. 1 and 2 raises a serious issue about title arising by virtue of the nature of the suit property and its recorded character on the date of vesting, where the defendants say that it was recorded as banjar with regard to Khasra No. 3299. So far as the issue about some recorded entries in the Khasra indicating that there was a Pajawa, it requires determination whether a Pajawa qualifies as a building within the meaning of Section 9 of the Act. So far as the claim about there being a well in Khasra No. 3299 is concerned, that too is quite a disputed fact requiring determination by a Court of competent jurisdiction as to what is the area occupied by the well, who sunk the well, was it in existence on the date of vesting and what area is appurtenant to it, that may be held settled with the plaintiff by the State Government under Section 9 of the Act.

52. Since none of these facts are admitted by defendant Nos.1 and 2, these are matters which require to be determined, on a declaration sought by the plaintiff from a Court of competent jurisdiction, and not merely by the plaintiff asking for an injunction, as if his rights were apparent and free from doubt or challenge.

53. In the opinion of this Court, therefore, a suit for mere injunction, without a declaration, could not be maintained by the plaintiff.

54. The question whether the plaintiff ought to have filed for declaration is all the more obvious, because the plaintiff had earlier instituted Suit No. 307 of 1978, under Section 229-B of the Act against defendant Nos. 1 and 2, which was dismissed holding that the suit was barred by Section 49 of the Consolidation Act. The said judgment was passed by the Assistant Collector on 25.09.1978, that was challenged by the plaintiff before the Commissioner, Meerut Division, Meerut by means of Appeal No. 330 of 1978. The Commissioner allowed the appeal and remanded the suit to the Court of first instance for trial in accordance with law, holding that the ConsolidationCourt had no jurisdiction to adjudicate as the land was Pajawa. The bar of Section 49 was held inapplicable. The suit before the Revenue Court was not pursued. Instead, the present suit was instituted. What is relevant is, so far as this question is concerned, that the plaintiff himself thought that he ought to sue for declaration and did sue in the competent Revenue Court. Having lost before the Revenue Court, he agitated the matter in appeal and secured a remand.

55. This course of proceeding shows that the plaintiff was conscious of the fact that he required a declaration about his rights to the suit property and that is why he instituted a suit for declaration. What made him then to sue for a mere injunction before the Court is inexplicable.

56. In the circumstances, Substantial Question of Law No. 8 is answered in the affirmative and it is held that where the plaintiff's title is under cloud, he must sue for declaration. A suit for injunction simplicitor would not be maintainable.

Substantial Question of Law No. 2

57. About Substantial Question of Law No. 2, the contention of the learned Counsel for the plaintiff, Mr. Arpit Agarwal is that the remark by the Lower Appellate Court that in the suit under Section 229-B of the Act, the Town Area Committee was not a party suffers from an error apparent. The substantial question was framed in the context that the Revenue Court had held that the suit property is not land as defined under Section 3(5) of the Consolidation Act, because there was a Pajawa found there. This finding was recorded by the Commissioner in an appeal from the order of the Assistant Collector dismissing the suit on the ground that since the suit property was land and no steps were taken under the Consolidation Act, the suit was barred under Section 49 of the Act, last mentioned. This finding was set aside by the Commissioner in appeal, as already noticed, holding the land to be a Pajawa with a remand to the Trial Court.

58. The contention of the learned Counsel for the plaintiff that the Lower Appellate Court has committed an error apparent in holding that the finding of the Revenue Court, last mentioned, would not bind defendant No.2, because the Town Area Committee was not a party to the suit before the Revenue Court, that went to the Commissioner in appeal, is correct. A true copy of the Additional Commissioner's judgment rendered in Appeal No. 303 of 1978 is available on record of the motion papers relating to this appeal as Annexure No. 4 to the affidavit filed in support of the temporary injunction application. Apparently, a certified copy of this judgment was on record before the Courts below as paper No. 32-C, but on account of the very serious indiscretion committed by the officials of the record room of the District Court, this record has been weeded out. The parties have agreed before this Court that the copy of the Commissioner's order as aforesaid is a true copy of the order dated 27.04.1979, passed by the Additional Commissioner, Meerut Division in appeal as aforesaid. A perusal of the said order shows that the State Government was a party and so was the Town Area Committee. The following finding is there in the Additional Commissioner's order of remand dated 27.04.1979:

“The State Government did not contest. Town Area Committee contested the suit.”

59. In view of the said finding, there is no gainsaying the fact that the Lower Appellate Court did commit an error apparent on the face of the record holding that the Town Area Committeewas not a party to the proceedings before the Revenue Court. Substantial Question of Law No.2 is, therefore, decided in the affirmative and it is held that the Lower Appellate Court committed an error apparent in holding that the Town Area Committee was not a party to the suit under Section 229-B of the Act.

Substantial Question of Law No. 3

60. This brings us to Substantial Question of Law No.3. It is submitted by Mr. Arpit Agarwal, learned Counsel for the plaintiff that the Additional Commissioner, Meerut while allowing Appeal No. 303 of 1978 by the plaintiff vide judgment and order dated 27.04.1979 and remanding the suit to the Trial Court held that the suit property does not come within the ambit of land as defined under Section 3(14) of the Act and the Revenue Courts have no jurisdiction to adjudicate the issue regarding land, that is recorded as Pajawa. He submits that the aforesaid finding recorded by the Additional Commissioner in appeal was never challenged by defendant Nos. 1 and 2 and has attained finality inter partes. It is, particularly, argued that though the Revenue Court trying a suit under Section 229-B of the Act is not competent to try the present suit, yet it is a Court of exclusive jurisdiction empowered to adjudicate the issue relating to nature of the property being agricultural or non-agricultural. This jurisdiction is also exclusively conferred upon it. If that question were to arise before a Civil Court, the special procedure envisaged under Section 331-A of the Act has to be followed.

61. It is argued that being a Court of limited jurisdiction within the meaning of Explanation 8 to Section 11 of the Code, the finding of the Additional Commissioner in the appeal arising out of the suit under Section 229-B about the nature of the land would bind the Civil Court as res judicata, notwithstanding the fact that the Revenue Court does not have jurisdiction to try the present suit.

62. It is submitted that the Lower Appellate Court has erred in law by ignoring the aforesaid matter from consideration altogether, while reversing the Trial Court. In support of his submission, learned Counsel for the plaintiff has relied upon the decision of this Court in Triloki Nath v. Ram Gopal and others, 1974 RD 5. Learned Counsel for the plaintiff has drawn the attention of the Court to the following observations in Triloki Nath (supra):

“14. For the reasons given above, we are in agreement with the view expressed by Hon'ble Broome, J. that as the area in question was being used for the purposes of making bricks that is for purposes unconnected with agriculture etc. such an area would not be covered by the definition of the word 'land' and hence the consolidation courts would have no jurisdiction to adjudicate upon the rights of the parties in respect thereto. Merely because the area in question could on future date be used for purposes of agriculture, to our mind does not justify the application of the provisions of Consolidation of Holdings Act to land not covered by that Act.”

63. Upon hearing learned Counsel for the parties on the issue involved, this Court finds that the question about the judgment of the Revenue Court in appeal, while remanding the matter to the Court of first instance, in the suit earlier filed by the plaintiff under Section 229-B, operating as res judicata in the present suit about the nature of the land, does not arise.

64. The judgment of the Additional Commissioner in appeal arising from the declaratory suit earlier instituted by the plaintiff is res judicata between the plaintiff and defendant Nos. 1 and 2 on the point alone that the suit property had a Pajawa (anindigenous brick-kiln) on it and was, therefore, not land within the meaning of Section 3(5) of the Consolidation Act. It is for this reason that the Additional Commissioner held that the suit would not be barred by Section 49 of the Consolidation Act. Nevertheless, the Additional Commissioner remanded the suit for trial afresh after setting aside the decree of the Trial Court, dismissing it on the decision of a preliminary issue about the bar under Section 49.

65. The finding of the Additional Commissioner recorded in the order of remand is only that that the land is not one that could be consolidated in a chak, as it was not cultivable. The Additional Commissioner did not hold that the Pajawa was a building as envisaged under Section 9 of the Act. If he had done so, he would have dismissed the suit or directed a return of the plaint for presentation to the Civil Court. The remand of the suit by the Additional Commissioner shows that though he found the Pajawa to be a structure that rendered the suit property not ‘land’ within the meaning of Section 3(5) of the Consolidation Act, so as to attract the bar of Section 49, he still thought that the Revenue Court had jurisdiction to try the plaintiff’s suit under Section 229-B of the Act, where the plaintiff would have to prove whether the suit property had a building on it within the meaning of Section 9 of the Act, so as to lead to its settlement with him.

66. Upon remand, the plaintiff ought to have pursued the suit before the Revenue Court for the purpose of declaration of his title on the plea that the Pajawa was a building, settled with him under Section 9 of the Act on the date of vesting. But, the plaintiff upon remand by the Commissioner to the Assistant Collector, apparently abandoned cause before the Revenue Court and instituted the present suit before the Civil Court, andthat too, for an injunction simplicitor. It would seem that the plaintiff in understanding the Additional Commissioner’s order of remand read between the lines to infer that the Additional Commissioner had held the Pajawa to be a building or otherwise an abadi, regarding which jurisdiction would vest in the Civil Court to grant relief. That assumption was utterly erroneous. That the plaintiff assumed that the Additional Commissioner had declared the suit property to be a building or an abadi, regarding which relief could be had in the Civil Court, is the only logical inference to be drawn from the conduct of the plaintiff in abandoning the suit before the Revenue Court and instituting the present suit before the Civil Court. It is, in fact, explicit from the plaintiff’s pleadings that figure in Paragraph No.9 of the plaint:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

67. A perusal of the aforesaid part of the plaintiff’s pleadings would show that he thought that the Additional Commissioner had decided that the suit property was not land within the meaning of Section 3(14) of the Act, and, therefore, the bar of Section 49 did not apply. That assumption is grossly erroneous. All that the Additional Commissioner held was that the suit property was not land within the definition of Section 3(5) of the Consolidation Act, which had to be kept out of the consolidation scheme. Being a Pajawa, it was obviously not cultivable land and, therefore, the Additional Commissioner was right in his view that it had to be kept out of the consolidation scheme; and a fortiori the bar of Section 49 would not apply.

68. As already remarked, the Additional Commissioner remanded the suit under Section 229-B of the Act to the Court of first instance for trial afresh on all issues, because it is there that the plaintiff would have to prove that the Pajawa was a ‘building’, entitling the suit property to be settled with him under Section 9; or how much of the suit property was the site of a well and that it was a well entitling the plaintiff to the benefit of Section 9 of the Act. A Pajawa is an indigenous brick-kiln and need not be a building within the meaning of Section 9. In fact, every brick-kiln does not qualify for a ‘building’ under the aforesaid provision. It has to be proved on facts pleaded and evidence led that it is indeed a building. The law in this regard was settled long ago by the Supreme Court in Ghanshiam Das v. Debi Prasad and another, AIR 1966 SC 1998 [LQ/SC/1966/81] , where the issue in the context of the Act had directly arisen. In that case, a brick-kiln, that was leased out by its owner before the date of vesting, was pleaded by the lessee to have vested in the State under Section 6 of the Act, so as to disentitle the lessor to sue the lessee for recovery of rent. In Ghanshiam Das (supra), it was held by their Lordships, thus:

“4. The word "building" has not been defined in the Act and must, therefore, be constructed in its ordinary grammatical sense unless there is something in the context or object of the statute to show that it is used in a special sense different from its ordinary grammatical sense. In the Websters New International Dictionary the word "building" has been defined as follows:

"That which is built specif: (a) as now generally used a fabric or edifice, framed or constructed, designed to stand more or less permanently and covering a space of land for use as a dwelling, store house, factory, shelter for beasts or some other usefulpurpose. Building in this sense does not include a mere wall, fence, monument, hoarding or similar structure though designed for permanent use where it stands, nor a steamboat ship or other vessel of navigation."

From this definition it does not appear that the existence of a roof is always necessary for a structure to be regarded as a building. Residential buildings ordinarily have roofs but there can be a non-residential building for which a roof is not necessary. A large stadium or an open-air swimming pool constructed at a considerable expense would be a building as it is a permanent structure and designed for a useful purpose. The question as to what is a "building" under S. 9 of the Act must always be a question of degree-a question depending on the facts and circumstance of each case. As Blackburn, J. observed in R. v. Neath Canal Navigation Co., (1871) 40 LJMC 193 (197).

"The masonry on the sides of a canal is not sufficient to constitute it a 'building'. A London street, though paved and faced with stonework, would yet be 'land'; whilst the Holborn Viaduct would be a 'building'."

The question for determination in the present case, therefore, is whether the kiln leased out to the appellant is a "building" within the meaning of S. 9 of the Act. It has been found by the first appellate Court that the brick kiln has no site and is not a roofed structure. It was a mere pit with some bricks by its sides. It is also admitted in this case that there was no structure standing on the Bhatta. Upon these facts, it is clear that the brick kiln has no walls and no roof but it is a mere pit dug in the ground with bricks by its side. In the circumstances, we are of the opinion that the brick kiln leased out to the appellant, in the present case, is not a "building" within the meaning of S. 9 of the Act. It follows, therefore, that the title to both the plots Nos. 596 and 597 along with the brick kiln vested in the State Government with effect from July 1, 1952 and the respondents are not entitled to claim any rent from the appellant for the period from October 1, 1952 to September 30, 1953.”

69. The question directly fell for consideration of a Division Bench of this Court in Newand Ram and another v. Gaon Samaj Rura and another, 1961 A.L.J. 910. The question in Newand Ram (supra) was whether a brick-kiln was a building within the meaning of Section 9 of the Act. Their Lordships of the Division Bench acknowledged the formula of a three fold test on the basis of the decision in Re. St. Peter the Great, Chichester, 1961 (2) All. E.R. 513 in order to determine whether the brick-kiln, subject matter of the said case, would qualify as a building for the purpose of Section 9. It would be of immense profit to quote from the report of decision in Newand Ram in extenso:

“In connection with the first contention the principal question which arises for decision is whether the brick kiln which is said to be situated on a portion of the land can be considered to be “a building” within the meaning of term as used in Sec. 9 of the Zamindari Abolition and Land Reforms Act. A subsidiary question would be whether the rest of the land in dispute can be said to be appurtenant to the building if the brick kiln is a building at all.

Unfortunately for the plaintiffs in the present case the point that they were entitled to the benefit of Sec. 9 of the Z.A. & L.R. Act was taken for the first time in second appeal. The question not having been raised earlier no materials were brought on the record in the trial court to show whether the brick kiln in question could be considered to be a building. It is true that in the pleadings and in the revenue papers a brick kiln is mentioned as existing on the land. It may also be assumed that bricks were baked and were stocked on the land. No details have, however, been brought out about the exact situation on the spot. We do not know whether the brick kiln in dispute contains any walls, constructions or structure. It has admittedly no roof. There is nothing to show that there is anything on the land except an excavation in which unbaked bricks brought from adjacent plots are arranged in rows and baked. It appears from the record that at one stage a commissioner was appointed to go to the spot. He has submitted a report. But in this report also there are no materials on the basis of which one can decide that the brick kiln amounted to a building.

It is interesting to notice in this connection that for the English word “building” which appears in Sec. 9 of the English version of the Zamindari Abolition and Land Reforms Act, the word “imarat” has been used in the Hindi version of the Act. We have, therefore, to consider whether a brick kiln can be considered to be an “imarat or “building”. The word building has not been defined in the Z.A. & L.R. Act and has, therefore, to be given its ordinary meaning. In a recent case reported in Re. St. Peter the Great, Chichester, 1961 (2) All. E.R. 513, Chancellor Buckle, had to consider what the word ‘building’ meant. Three tests were suggested to him for the decision of the question and he accepted them as correct. The three tests were:—

(1) Would an ordinary man think that the structure was a building.

(2) Has the relevant structure four walls and a roof, and

(3) can anyone say that the structure was built.

He pointed out that the first test had been formulated on the basis of some of the general observations made by Chitty, J. in Harris v. De Pinna, (1886) 33, Ch. D. 238. The second test had been taken from Moir v. Williams, (1892) 1 Q.B. 264 and the 3rd test was based on the observations in South Wales Aluminium Company Ltd. v. North Area Assessment Committee,(1943) 2, All. E.R. 587.

The three tests appear to us to be reasonable tests to be applied for deciding the question whether the brick kiln in question is building. Before applying these tests in the present case we would like to make it clear that the facts and circumstances of each case will have to be kept in view while deciding the question. There are brick kilns of various kinds and designs. Different considerations would naturally apply if the bricks are baked or stored in a specially constructed closed and roofed structure with walls all round. We are not concerned in the present case with anything of this kind. The only material we have before us is that there is on the land in dispute a brick kiln in which bricks are baked. Now, ordinarily what is known as brick kiln is only an excavation in the ground. The land is dug to a certain extent so as to enable the brick kiln owner to arrange unbaked bricks in a certain manner to facilitate them being baked after fire has been set to the coal or wood which is used for purposes of baking. Such a kiln does not usually contain any walls and there is no question of there being any roof. It is not even an enclosure or structure. The kiln is not intended to be used for residential purpose nor can it be used for any of the ordinary purposes for which a building is usually employed. An ordinary man using the word building or ‘imarat’ in its usual prevalent sense will, therefore, never use the word for a brick kiln. There is no structure there at all. There is no wall or roof. When nothing has to be done except excavating a pit in the earth of a particular size or shape and arranging bricks in it for the purpose of being baked, it is difficult to see how it can be said that anything is being “built” or “created” in connection with such a brick kiln.

Learned counsel for the appellant suggested that in the brick kiln in question there was a wall lining on each of the pit excavated in the earth. There is, however, no material on the record to support the suggestion and we cannot, therefore, take any notice of it.

We are, therefore, of opinion that a brick kiln of the kind which appears to be in dispute in this case cannot be called a building for the purpose of Sec. 9 of the Zamindari Abolition and Land Reforms Act and if the brick kiln is not a building there can be no question of the rest of the land in dispute being appurtenant to any building. No advantage can, therefore, be derived by the appellant of the provisions of Sec. 9 of the Z.A. & L.R. Act on the ground that on the date of the coming into force of the Act, he was in possession of the brick kiln or the land in dispute.

From the reported judgment it Devi Prasad v. Ghanshyam Das, 1961 A.L.J. 193, the details of the brick kiln which was held to be a building by the learned judge are not clear. The learned Judge considered the dictionary meaning of the word “building” which required that there should be some structure, edifice or fabric “constructed or built or raised.” He, therefore, observed:

“In my opinion it is possible for a kiln to be a building provided it is a permanent structure raised for use as a Bhatta.”

We respectfully share the opinion that it is so possible. We would, however, point out every brick kiln does not have a “permanent structure, raised for use as a Bhatta”. Such a structure is not necessary for baking bricks. It may or may not be erected. Even if it is there it may not amount to a “building”. In the case before the learned Judge it was admitted that—

“There was no structure standing on the Bhatta”.

The learned Judge expressed his inability to understand these words and thought,

“A Bhatta is itself a structure”.

He also interpreted ‘Bhatta khisht’ as meaning “a kiln constructed with bricks”. With profound respect we are unable to endorse this interpretation. Bhatta means kiln and khisht means brick. But “bhatta khisht” does not necessarily mean “kiln constructed with bricks.” It can equally mean kiln meant for preparing bricks and that is the sense in which the expression is ordinarily used (cf. Bhatta chuna or Bhatta Surkhi). As we have said, usually a brick kiln has no structure of its own. It is only an excavation made in the earth. When, therefore, it was admitted that “there was no structure standing on the bhatta” the admission was not meaningless. If it was intended to be laid down in Devi Prasad's case, 1961 A.L.J. 193 that all brick kilns whatever their nature, must be considered to be buildings for the purposes of Sec. 9 of the Zamindari Abolition and Land Reforms Act, we respectfully do not agree with that view.”

70. It must be mentioned here that the decision of the learned Single Judge in Devi Prasad v. Ghanshiam Dass and another, 1960 SCC OnLine All 150, that was not subscribed to by the Division Bench in Newand Ram, held that a brick-kiln made of bricks must be regarded as a building under Section 9 of the Act. It is to be noted that the decision of this Court in Devi Prasad v. Ghanshiam Dass (supra) was overturned by their Lordships of the Supreme Court in Ghanshiam Das v. Debi Prasad (supra). It was, therefore, a matter of pleading, proof and evidence for the plaintiff to establish what kind of a brickkiln that he has called a Pajawa is, and whether it qualifies for a ‘building’ or not. All this would require the plaintiff, as already held in answer to Substantial Question of Law No. 8, to sue for declaration and prove by his evidence that, in fact, the Pajawa was a building and the suit property would be settled with him under Section 9.

71. For the said reason, it has also been held that a suit for injunction simplicitor would not lie. It is to be noticed that there is no evidence brought to the notice of the Courts below or a plea raised to establish the character of the Pajawa as a building within the meaning of Section 9. It has all been assumed by the plaintiff from the order of remand passed by the Additional Commissioner. The Additional Commissioner has not, as already said, held that the Pajawa is a ‘building’ and the suit property one that is settled under Section 9. It could be conveniently proved by the plaintiff, as already remarked, after remand by the Commissioner in the suit under Section 229-B of the Act, which he elected not to do and moved the Civil Court, instead.

72. The finding of the Additional Commissioner in the remand order, therefore, in no way operates as res judicata, because it was never decided by the Additional Commissioner that the suit property with the Pajawa was a building that stood settled under Section 9 of the Act with the plaintiff. Possibly, the Additional Commissioner could not have recorded that finding while remanding the suit, dismissed on the preliminary issue of a bar under Section 49 of the Consolidation Act, to the Court of first instance in the revenue jurisdiction for trial afresh on all issues.

73. Substantial Question of Law No. 3 is, therefore, answered in the negative holding that the finding recorded in Suit No. 6 under Section 229-B of the Act vide the order of remand passed in the appeal, arising from the said suit, would not operate as res judicata as far as the nature of the suit property is concerned.

74. The other substantial questions of law, though mooted and formulated, were not pressed in support of the appeal on behalf of the plaintiff at the hearing.

75. In view of the answers to the three substantial questions of law, whereon this appeal has been heard, no case for interference with the decree is made out.

76. The appeal fails and is dismissed with costs throughout.

77. Let a decree be drawn up, accordingly.