Satgur Dayal vs IV Additional District Judge and Others

Sudhir Agarwal, J.—Heard Sri R.V. Chaudhary, learned counsel for the petitioner and Sri Avadhesh Kumar, Advocate for respondents. The petitioner instituted Original Suit No. 479 of 1993 seeking partition in the disputed plot which was recorded in revenue record as agricultural land. The defendant raised an objection that Civil Court has no jurisdiction in the matter.

The case of plaintiff before court below was that there existed some permanent construction over the land, therefore, Civil Court has no jurisdiction. The Trial Court answered issue No. 2 with respect to jurisdiction of Civil Court holding, if there existed a permanent construction over agricultural land, the Civil Court will have jurisdiction to adjudicate suit for partition and said decision of Trial Court dated 13.12.1994 has been confirmed by Revisional Court by dismissing petitioner''s revision vide order dated 07.09.1995.

Sri Chaudhary, learned counsel for the petitioner contended that even if there existed some construction over a land which is recorded as agricultural land, the mere fact of such existence of construction over land, the jurisdiction of Revenue Court u/s 143 of U.P. Zamindari Abolition and Land Reforms Act, 1951 (hereinafter referred to as the "Act, 1951") will not be barred. He placed reliance on Alauddin Vs. Hamid Khan, ; Dinanath Verma and Others Vs. Gokaran and Others, ; and, Veer Bal Singh v. State of U.P. and others, 2009 (108) RD 124.

Sri Avadhesh Kumar, learned counsel appearing for respondents, however, attempted to justify the impugned orders for the reasons stated therein.

Having heard learned counsel for the parties, in my view, this writ petition deserved to be allowed. It cannot be disputed that land in question is an agricultural land and there existed some brick walls with a covering of thatches. The question "whether the mere factum of existence of some construction will denude the status of "land" being "agricultural land" even if there is no declaration made u/s 143 " has been considered by this Court in some of the authorities discussed below.

In Alauddin alias Makki (supra) Hon''ble C.S.P. Singh, J. observed:

In case the intention of the legislature was that as soon as land which had been previously held for the purposes connected with agriculture etc. ceased to be used for that purpose, the provisions of the U.P.Z.A. and L.R. Act or Ch. VIII would not apply, it would not have been necessary for it to enact Section 143. In fact in the case such an interpretation is put, the provisions of Section 143 of the Act becomes redundant. It is plain that till such time that a Bhumidhar does not get the requisite declaration he continues to be governed by the provisions of the U.P.Z.A. and L.R. Act irrespective of the purposes connected with agriculture, horticulture etc. or not.

In Dinanath Verma and Others Vs. Gokaran and Others, , a decision rendered by Hon''ble B.K. Rathi, J., almost a similar situation existed. Four houses existed on the agricultural land though there was no declaration. Relying on an earlier decision of this Court in Indrajeet Singh v. Sardar Arjun Singh and others, 1983 RR 304 : (1983 All LJ 388), the Court said:

It may also be mentioned all the four houses are existing in agricultural land and admittedly there is no declaration u/s 143 of U.P.Z.A. and L.R. Act. Learned counsel for the appellants has referred to the decision of this court in Indrajeet Singh v. Sardar Arjun Singh and others, 1983 RR 304 : (1983 All LJ 388). It was held in this case, that if no declaration in respect of the land is made u/s 143 of U.P.Z.A. and L.R. Act, the land did not cease to be land. That even if certain construction exist on the land, it is not material. It was further observed that the rights decided by the Consolidation courts on such land are final.

In Veer Bal Singh (supra) Hon''ble Prakash Krishna, J. considered the question in the context of determination of market value for the purpose of attracting stamp duty thereon, u/s 47-A of Indian Stamp Act, 1899. It was contended, when a land is recorded in revenue record as agricultural land, purchased as such, it cannot be treated to be a semi-urban, commercial or residential land unless a declaration is made u/s 143 of Act, 1951. In para 9 of judgment the Court said:

The report in my considered view is not sufficient to hold that the land in dispute, is non-agricultural land. An agricultural land can be treated as non-agricultural land only under two circumstances. Firstly, when there is a declaration as u/s 143 of U.P. Zamindari Abolition and Land Reforms Act or it is recorded as such in the revenue record....

The Court clearly held that future probable use of land will not determine its nature but it has to be seen as to what was its nature at the time of execution of instrument.

In the present case admittedly there is no declaration u/s 143 of Act, 1951. The exposition of law as discussed above clinches the issue in question in favour of petitioner and Sri Avadhesh Kumar, learned counsel appearing for respondents despite repeated query neither could place any authority taking otherwise view nor could advance any other submission so as to pursue this Court to take a different view.

Since the land in dispute, despite and irrespective of nature of construction, as discussed above, continued to be an "agricultural land", in absence of any declaration made u/s 143, evidently Civil Court had no jurisdiction to decide the matter being barred by Section 331 of Act, 1951. The dispute could have been settled in Revenue Court.

In view of above, the writ petition is allowed. The impugned orders dated 13.12.1994 and 07.09.1995 are hereby quashed. Since the Original Suit No. 479 of 1993 itself is not maintainable being barred by Section 331 of Act, 1951 the suit itself is dismissed with liberty to parties concerned to avail such remedy as available in law, before Revenue Court, if so advised. No costs.