Jai Prakash And Another @APPELLANT@Hash Pratap Singh And Others

Sudhanshu Dhulia, J

This is defendant’s second appeal against the order and judgment of the first appellate court dated 22.07.2003, whereby the appeal filed by the

plaintiff/appellant has been allowed and the order of the trial court dated 20.03.1998 has been set aside.

The plaintiff had filed a suit for eviction against the defendants which was dismissed by the trial court on 20.03.1998. Brief facts of the case are

that the property in question between the parties is a land bearing khasra no.1028/1, which is situated at Village Roorkee, Tehsil Roorkee, District

Haridwar measuring 1150 sq. ft. An agreement for sale was executed between plaintiffs and respondent no.1 Phooli. The agreement was duly

registered on 21.12.1982. The stipulated condition in the agreement for sale was that the property of which description was given in the agreement for

sale and as already referred above was to be purchased by the defendant for a consideration of Rs.22,000/- of which a sum of Rs.2,000/- was to be

given as advance at the time of agreement for sale and the remaining consideration of Rs.20,000/- was to be given at the time of execution of sale

deed. The case of the plaintiffs was that they were always ready and wiling to get the sale deed executed but the defendants never turned up and

therefore the sale deed could not be executed. Thereafter on 03.12.1986 the defendants unauthorizely occupied the disputed property and started

raising construction. Therefore the plaintiffs were constrained to file a suit for eviction being suit no. 111 of 1992.

The case of the defendants was that the possession was given on 31.03.1983 to defendant no. 1 and an amount of Rs.10,000/- was given to Sri

Arjun Singh by Smt. Pholli and thereafter the date of execution of sale deed was extended till 27.10.1990 and after receiving the remaining amount of

Rs.10,000/- the date of execution of sale deed was further extended till 27.10.1997.

The Trial Court framed as many as 8 issues, which are as follows:

“1. Whether the defendants have forcibly and unauthorisedly took possession of the disputed land on 3.12.1986? If yes, its effect?

Whether the plaintiffs have legally handed over the possession of the disputed property on 31.3.1983 on the basis of contract dated 13.12.1982? If

yes, its effect?

Whether the suit is barred by principle of Section 53-A of the Transfer of Property Act?

Whether the defendants have raised construction after legally occupying the property? If yes, its effect?

Whether the suit is barred by principle of Section 331 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act?

Whether the suit is under valued and the court fee paid is insufficient?

Whether the suit is barred by acquiescence and estoppel?

Relief to be granted?â€​

Regarding issue no. 1, 2 & 4, the findings of the trial court were that possession was never given by the plaintiffs to the defendants on 31.03.1983

and therefore this contention of the plaintiffs appears to be correct that the defendants had forcibly and unauthorisedly occupied the property on

31.12.1986. The receipts submitted by the defendants that they have given Rs. 10,000/- to the plaintiffs were not admitted by the trial court. The

remaining findings as to the property being in ownership of the plaintiffs and the execution of the agreement for sale and the agreement for sale being

entered on 21.12.1982 and the last date for execution being 31.3.1983 all have been admitted. The suit, however, was dismissed by the trial court on

ground of jurisdiction since the property was an agricultural land and hence there is a bar under Section 331 read with Schedule II of the Uttar

Pradesh Zamindari Abolition and Land Reforms Act, 1950.

At this juncture, it must be stated that for a suit for declaration and eviction there is a bar under Section 331 read with Schedule II of the Uttar

Pradesh Zamindari Abolition and Land Reforms Act, 1950 and such a suit can only be instituted in a revenue court in case the land is an agricultural

land as defined under the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950.

The “landâ€​ is defined in Section 3(14) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 as under:

“3 (14) “Land†[except in Sections 109, 143 and 144 and Chapter VII] means land held or occupied for purposes connected with agriculture,

horticulture or animal husbandry which includes pisciculture and poultry farming.â€​

To the contrary, the case of the plaintiffs always was that Section 331 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 does

exempts the jurisdiction of the revenue court for a “land†for which a conversion has been done from agricultural to non-agricultural land under

Section 143 of the Act, to which evidence was also produced before the court below in form of the order passed by the Munsif, Roorkee dated

11.12.1984 in Suit No. 71/83, Arjun Singh v. Rameshwar Prasad, where it was stated that Khasra No. 1028/1, the part of disputed property in the

present case is an “abadi†land. The matter was referred to the Sub Divisional Officer and the Sub Divisional Officer vide order dated. 2.03.1987

has given a proof that the property concerned is an “abadiâ€​ property. This evidence, however, was not considered by the trial court on ground that

the order of conversion can only be passed by the Assistant Collector and not by the Sub Divisional Officer.

After the dismissal of the suit on this technicality, the plaintiffs filed an appeal before the appellate court. The appellate court came to the conclusion

that the sale deed was not executed till 31.3.1983 as per terms and conditions of agreement for sale dated 13.12.1982 and since the sale deed was not

executed, the amount was rightly withheld by the plaintiffs and there was no question of any rights accrued in favour of the defendants. The appellate

court therefore allowed the appeal and the suit of the plaintiffs was decreed.

Surprisingly the appellate court has not given any finding as to the jurisdiction aspect. This is true. Therefore following substantial question of law

was framed by the appellant before this Court.

“1. Whether the Appellate Court is justified in allowing the appeal and decreeing the suit without disturbing the finding of the trial court on issue no.

5 and 7 that suit is barred by the section 331 of the U.P.Z.A. and L.R. Act and further barred by the principle of estoppel waiver and acquiescence?

Whether any finding on facts can be recorded by the civil court having found that the suit is not maintainable in civil court and same is cognizable by

the Revenue Court only?

Whether the suit can be decreed by the Court having no jurisdiction in the matter?â€​

A learned Single Judge of this Court admitted the appeal on all the substantial questions of law as framed by the appellant. The core question in all

the three substantial questions of law, on which this second appeal is admitted is on the point of jurisdiction. The substantial question of law as

formulated above would be whether the Civil Court had jurisdiction in this matter and whether the suit has been rightly dismissed on the ground of

jurisdiction alone?

Heard the learned counsels for the parties on this substantial question of law.

The trial court has admitted the ownership of the plaintiff on the disputed property. The agreement for sale dated 21.12.1982 entered into between

the parties, which is a registered document has also been admitted. It has further been admitted that though the agreement for sale was liable to be

executed by 31.03.1983 it could not be done and the defendants have wrongly occupied the property. Therefore, broadly all the contentions raised by

the plaintiff were dealt, except the jurisdictional aspect.

Undoubtedly, under the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, cognizance of suits, etc. relating to the “land†as

defined under Section 3 (14) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 itself will go to a particular court as given in

Schedule II of the Act.

Schedule II of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 in column no. 24 states that “suit for ejectment of person

occupying land without title and damages†is to go to Assistant Collector, 1st Class. Consequently, the suit for declaration of rights has to be filed

under Section 229-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 and again it has to go before the Assistant Collector, 1st

Class and no other court can take cognizance of the matter. All the same, the first proviso to Section 331 of the Act clearly creates an exemption

which reads as under:-

“Provided that where the suit has been instituted in the court of Assistant Collector in-charge of the sub-division, it shall proceed to decide the

question in accordance with the provisions of Section 143 or 144, as the case may be.â€​

In this case, there is a categorical finding of the revenue authority that the land in question is an “abadi†land, which would mean a land not in

the use of agriculture and hence would not come under the definition of “land†as given in Section 3(14) of the Act. No further proof was

required as to the nature of the land and the suit ought to have been decreed considering that all other findings were already in favour of the plaintiffs,

and the suit ought not to have been rejected on mere technicality. It is true that the appellate court has not considered the matter as it ought to have

considered, particularly in view of Order 41 Rule 31 of CPC, but considering the nature of the facts and the case that it is an extremely old matter and

particularly in view of law laid down by the Hon’ble Apex Court in the case of Ashwini Kumar K. Patel v. Upendra J. Patel and others reported

in (1999) 3 SCC 161, the remand of the case at this stage would not be in the interest of justice, particularly when it is purely a legal question which

has to be decided by this Court.

Considering the material available on record, this Court is of a considered view that the suit ought not to have been dismissed by the Trial Court,

considering that the property in dispute was an “abadi†land. The substantial question of law therefore is decided in favour of the plaintiff which is

that the civil court had the jurisdiction in the case.

In view of the above, second appeal is liable to be dismissed and is hereby dismissed.