Monika Belwal vs Raman Chandra Budhalakoti & Others

Manoj K. Tiwari, J

This Appeal from Order has been filed under Section 43 Rule 1 (a) C.P.C. against the order dated 17.11.2008 passed by learned Civil Judge (Senior Division), Nainital in Civil Suit No. 75 of 2008, whereby her plaint has been returned for presentation before Revenue Court.

Facts of the case, in brief, are as follows:

Appellant filed a civil suit seeking declaration that she is the joint owner of the property mentioned in para no. 4 of the plaint alongwith defendants. She also sought a decree for permanent prohibitory injunction against defendant no. 1 to restrain him from alienating whole or part of the suit property. As per the plaint allegation, plaintiff and defendants are real brothers and sisters; the suit property was purchased by their mother (Smt. Tara Devi Budhlakoti) by means of two separate sale deeds executed in the year 1964 and 1969 and her name was mutated in the records of Nagar Palika Parishad, Kathgodam and also in revenue records; Smt.Tara Devi Budhlakoti died on 01.05.2009 leaving behind plaintiff and the defendants as her legal heir; Smt. Tara Devi Budhlakoti constructed dwelling house over the land purchased by her; large scale construction was made over the said land and Smt. Tara Devi Budhlakoti had constructed a number of flats, some of which were sold by her during her lifetime; the property comes within urban area and is being used for residential purpose, therefore, it does not come within the purview of U.P. Zamindari Abolition and Land Reforms Act (for short U.P.Z.A. & L.R. Act). Defendant no. 1 in his written statement admitted that residential house was built over the land in question, however, he stated that he alone is the lawful owner of the property. He further contended that the relief sought in the suit can only be granted by a revenue Court under provisions of Zamindari Abolition and Land Reforms Act.

Learned trial Court framed issue no. 4 as follows:

"Whether the suit is maintainable before this Court."

Learned trial Court decided the said issue against the plaintiff vide order dated 17.11.2008 and the plaint was returned for presentation before competent Court. Thus feeling aggrieved, plaintiff has filed this appeal.

Heard learned counsel for the parties and perused the record.

Since defendant/respondent no. 1 had raised question of maintainability of the suit in view of provision contained in Section 331 of U.P.Z.A. & L.R. Act, therefore, the first and foremost question which was to be considered by the trial Court was whether the land in question is or is not used for purposes connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming. Law is settled that bar of Section 331 would not be attracted if the land is Abadi land or declaration has been made therefor under Section 143 of the Act.

If the allegation made in the plaint is found correct that the land in question was not being used for agriculture and residential buildings were constructed over the said land, then the suit would be maintainable before the Civil Court, however, if the plaint allegation is found to be incorrect and it is found that the land in question is used for agriculture, then suit would be maintainable before the Revenue Court. To resolve this question, learned trial Court ought to have framed an issue on the question and sent the record to the Assistant Collector in-charge of the sub-division for the decision of that issue only.

Section 331-A provides a mechanism for ascertaining whether the land in question is agricultural land or Abadi land, which learned trial Court should have resorted to in view of the dispute between the parties regarding nature of land. Section 331-A of the Act is extracted below:

"331- A. Procedure when plea of land being used for agricultural purposes is raised in any suit.- (1) If in any suit, relating to land held by a bhumidhar, instituted in any court, the question arises or is raised whether the land in question is or is not used for purposes connected with agriculture, horticulture or animal husbandry, which includes pisciculture and poultry farming, and a declaration has not been made in respect of such land under Section 143 or 144, the court shall frame an issue on the question and send the record to the Assistant Collector in-charge of the sub-division for the decision of that issue only:

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.

(2) The Assistant Collector-in-charge of sub-division after reframing the issue, if necessary, shall proceed to decide such issue in the manner laid down for the making of a declaration under Section 143 or 144, as the case may be, and return the record together with his finding thereon to the court which referred the issue.

(3) The court shall then proceed to decide the suit accepting the finding of the Assistant Collector-in-charge of the sub-division on the issue referred to it.

(4) The finding of the Assistant Collector-in-charge of the sub-division on the issue referred to it shall, for the purpose of appeal, be deemed to be part of the finding of the court which referred the issue"

Hon'ble Supreme Court in the case of Chandrika Singh and others Vs. Raja Vishwanath Pratap Singh and others", reported in (1992) 3 SCC 1990, has considered the import of Section 331-A of the Act and held that, in case of dispute regarding the purpose for which land is used, the only course available to the Civil Court is to frame an issue on the question whether the land in dispute is or is not used for purposes connected with agriculture, horticulture or animal husbandry and send the record to the Assistant Collector in-charge of the sub-division for decision on that issue. Paragraph nos. 13, 17 & 19 of the said judgment are extracted below:

"13. In respect of Abadi land it is implied that the land is not being used for purposes connected with agriculture, horticulture or animal husbandry and in view of the definition of `land' contained in Section 2(14) of the Act such land is not land for the purpose of the Act. In order to exclude the applicability of the Act on the ground that the land is Abadi land it is necessary to determine whether the said land is or is not being used for purposes connected with agriculture, horticulture or animal husbandry. Such a determination is envisaged by Sections 143 and 144 and where such a determination has not been made in accordance with those provisions and this question arises before a court in a suit, it is required to be determined in accordance with the provisions of s.331-A The scheme of the provisions contained in s.143, s.144 and s.331-A is that the question whether a particular land is or is not used for the purposes connected with agriculture, horticulture or animal husbandry has be determined either under s.143 or s.144 and where no such determination has been made, it should be determined by following the procedure laid down in s.331-A. It is not open to a Court dealing with suit in which the said question arises to by pass the provisions of section 331-A and to proceed to determine the said question itself.

We are unable to agree with the said sub mission of Shri Yogeshwar Prasad. In our opinion, the question as to whether a particular land is "land" under section 2(14) of which the provisions of the Act are applicable would require determination of the question whether the land is held or occupied for purposes connected with agriculture, horticulture or animal husbandry and that is a matter which has to be determined either in accordance with the provisions of ss.143 and 144 and if such a determination has not been made and such a question arises or is raised in a suit before a court, the procedure laid down in s.331- A must be followed by the Court. This would be so even in a case where a build- ing exists on the land and the land is claimed to be appur- tenant to the building because in such a case it will be necessary to determine the extent of the land that is appurtenant to the building, i.e. whether the entire land or only a part of it is so appurtenant to the building and for the reason is not held or occupied for purposes connected with agriculture, horticulture or animal husbandry. This determination has to be made in accordance with the provisions of Sections 143 and 144 or Section 331-A of the Act.

It was, therefore, not open to the Civil Judge to decide, on its own, the question whether the said land was held or occupied for purposes connected with agriculture, horticulture or animal husbandry and after holding that it is not so held refuse to follow the procedure laid down in s.331-A on the ground that the said provision has no application to the land in dispute. The only course which was open to the Civil Judge was to frame an issue on the question whether the land in dispute is or is not used for purposes connected with agriculture, horticulture or animal husbandry and send the record to the Assistant Collector in-charge of the sub-division for decision on that issue and decide the suit in the light of the finding recorded by the Assistant Collector on that issue. By deciding this question himself the Civil Judge has exercised jurisdiction not vested in him by law and in not following the procedure laid down in section 331-A he has committed illegality in exercise of his jurisdiction which error was required to be rectified by the High Court in exercise of its revisional jurisdiction under section 115 CPC."

Admittedly, in the present case, the procedure prescribed in Section 331-A of U.P.Z.A. & L.R. Act was not followed by learned trial Court, even though there was dispute regarding the purpose for which the land in question was being used. The learned trial Court was, therefore, not justified in returning the plaint without decision on the issue by the Assistant Collector.

Thus, it was not open for the trial Court to decide on its own the question as to whether the land in dispute is held or kept for purposes connected with agriculture, horticulture or animal husbandry, or not.

In such view of the matter, the impugned order dated 17.11.2008 passed by learned Civil Judge (Senior Division), Nainital in Civil Suit No. 75 of 2008 is set aside. The matter is remitted back to learned trial Court to frame an issue as to whether the land in question is or is not used for purposes connected with agriculture, horticulture or animal husbandry and send the record to Assistant Collector in-charge of sub-division for decision on the said issue in terms of Section 331-A of U.P.Z.A. & L.R. Act.

This Court hopes and expects that the Assistant Collector shall decide the issue as early as possible, preferably within four months from the date of receipt of the file.

The Appeal From Order is, accordingly, disposed of.