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1983 DIGILAW 195 (ALL)

Hashmat Khan v. Imami

1983-03-04

GOPI NATH

body1983
ORDER Gopi Nath, J. - This is a defendants' revision directed against an order dated 17-10-1977 passed by the Munsif, Banda holding the plaintiffs' suit for partition to he maintainable in the Civil Court. 2. The plaintiffs filed a suit for partition of houses in dispute and the land appurtenant thereto. The defence delivered was that the disputed houses and the land appurtenant belonged to the defendants exclusively, and hence the plaintiffs could not claim a partition of the same. Para No. 6 of the written statement which is relevant reads as follows : "Yah Ki Makanat Nijaee Ham Pratiwadid An Ke Pita Ke Kuchh Banwae Hue Hain Aur Kuchh Ham Pratiwadigan Ne Arsa Lagbhag 15 Saal Pahle Swayam Banwae The. Aur Arazee Uftada Bataur Sehan Ke Ham Pratiwadigan Istaimal Karte Chale Aarahe Hain Aur Usmen Cahar Diwaree Ham Pratiwadigan Ke Pita Dwara Kheenchee Gaee Thee Aur Tabhee Se Ham Pratiwadigan Ka Tanaha Qabza Dakhal Chala Aaraha Hai." The same stand was taken in Para Nos. 7, 9 and 10 as well. An additional written statement was also filed which in Para No. 3 stated that the plaintiffs had not given the particulars of the plot on which the house in dispute stood, and the plaint was liable to be rejected on the ground of vagueness. Para No. 4 stated : "Yah Ki Aarajee Nizaee Kasht Pratiwadigan Kee Hai Aur Pratiwadigan Kuchh Hisse Men Kashta Ke Intizam Ke Liya Kinare Kinare Makanat Banwae Hain. Aur Jo Ki Unhone Swayam Banwae Hain Aur Paisa Lagaya Hai Aur Bakoya Aarazee Nijaee Ko Pratiwadigan Deegar Kasht Ke Nambaron Men Shamil Karke Jotate Wa Kasht Karte Hain. ". On the basis of these allegations, a plea was raised that the suit was not cognisable by the Civil Court. The learned Munsif, by the impugned order, held that the parties were co-sharers in the houses and the land in dispute, and the plot on which they were situate had been declared Abadi by the Consolidation Authorities in the proceedings under the Consolidation of Holdings Act, consequently the Revenue Court had no jurisdiction to entertain the suit for partition. The suit was accordingly held cognisable by the Civil Court. Aggrieved, the defendants have come up in revision. 3. It is admitted to the parties that the Consolidation Authorities had declared the land over which the disputed properties stood as Abadi. The suit was accordingly held cognisable by the Civil Court. Aggrieved, the defendants have come up in revision. 3. It is admitted to the parties that the Consolidation Authorities had declared the land over which the disputed properties stood as Abadi. C.H. Form No. 2-A (paper No. 30-Ga) mentions the land as covered by houses, and records it as Abadi. The question for consideration accordingly is whether a suit for partition of houses and land appurtenant thereto forming part of an Abadi, is cognisable by the Revenue Court. S. 176 of the Zamindari Abolition & Land Reforms Act provides, for division of holding and states : "176. Holding of a bhumidhar or sirdar partible.- (1) A bhumidhar or sirdar may sue for division of his holding............" The word 'holding' has been defined in S. 3(7) of the U. P. Tenancy Act, 1939 as follows : " "holding" means a parcel or parcels of land held under one lease, engagement or grant or in the absence of such lease, engagement or grant under one tenure and in the case of a thekedar includes the theka area." 'Holding' has further been defined in S. 4-C of the U. P. Consolidation of Holdings Act, 1953 as follows : 'Holding' means a parcel or parcels of land held under one tenure by a tenure- holder single or jointly with other tenure- holders." The instant suit had been filed for partition of houses and the land appurtenant thereto, and not for division of a holding. The suit accordingly is not barred by the provisions of S. 331 of the Zamindari Abolition & Land Reforms Act. Learned counsel for the applicants contended that a suit for possession of building standing on agricultural land can be filed in a Revenue Court under S. 209 of the Zamindari Abolition Act as held in Smt. Bhagwati Devi v. Radhey Shyam (1976 All WC 721) : (1977 All LJ 74). and a suit for partition can accordingly lie in a revenue court for partition of houses standing on land which at some point of time was used for agricultural purposes. Smt. Bhagwati Devi's case (supra) is distinguishable. and a suit for partition can accordingly lie in a revenue court for partition of houses standing on land which at some point of time was used for agricultural purposes. Smt. Bhagwati Devi's case (supra) is distinguishable. It was held in that case that until a declaration was granted under S. 143 11) of the U. P. Zamindari Abolition & Land Reforms Act, land within the meaning of the said Act would not cease to be land, and hence a suit for possession of such land even though a part of it was covered by constructions would not lie in a Civil Court. The instant suit is one for partition of house property and land appurtenant thereto which fall in an Ahadi and not in an agricultural holding. Smt. Bhagwati Devi 's case hence is inapplicable in the instant case. Learned counsel then relied upon Alauddin v. Hatnid Khan, (AIR 1971 All 3414) to contend that a declaration under S. 143 of U. P. Zamindari Abolition & Land Reforms Act was necessary to exclude land falling within the meaning of that term from the operation of the U. P. Zamindari Abolition & Land Reforms Act. That question is not involved in the instant case and needs no decision. 4. Learned counsel then submitted that a suit for partition under S. 176 of the U. P. Zamindari Abolition & Land Reforms Act of land on which a building stood would serve the purpose of the plaintiffs, and hence the suit could be filed in the Revenue Court and the jurisdiction of that Court would not he ousted by a clever drafting of the plaint. Reliance was placed on Mohd. Umar Khan v. Idris Mohd. Ghani ( AIR 1980 All 89 ) and Dr. Ajodhya Prasad v. Gangotri Prasad (1981 All LJ (47). No clever drafting of the pleading is involved in the instant case. The suit is simple suit for partition of houses situate in an Abadi with the land appurtenant thereto. 5. Learned counsel for the opposite parties on the other hand, relied on Ram Saran v. Drigraj (1974 Allahabad Civil Nirnaya 70) : (1974 All WR (HC) 115) to submit that a suit for partition of land in Ahadi as declared by the Consolidation Authorities lies in the Civil Court. This authority fully supports the contention of the respondents., In Kamla Shanker v. Dy. This authority fully supports the contention of the respondents., In Kamla Shanker v. Dy. Director of Consolidation (1979 Rev Dec 78) it was held that the Consolidation Authorities had the jurisdiction to record a piece of land as falling in the Abadi and to make an entry in the relevant column of C. H. Form No. 2A in that regard. 6. Learned counsel for the applicants then invited my attention to Triloki Nath v. Ram Gopal (1974 Rev Dec 5) : (1973 All WR ( HC) 185) to contend that the Consolidation Authorities had no power to make a declaration under S. 143 of the - U. P. Zamindari Abolition & Land Reforms Act. That question is not involved in the instant case: The only question for consideration is whether the suit for partition of houses and the land situate in Abadi is cognisable by the Civil Court. A suit for partition of the properties in dispute is not covered by S. 176 of the U. P. Zamindari Abolition & Land Reforms Act, hence S. 331 of that Act is not attracted in the instant case. The court below rightly held that the suit was cognisable by the Civil Court. 7. Learned counsel lastly relied on Ram Awalamb v. Jata Shankar (1968 All LJ 1108) : ( AIR 1969 All 526 ) (FB) to submit that if the main relief could be obtained from the Revenue Court, the joining of ancillary reliefs would not oust the jurisdiction of that court. No such question arises in the instant case. 8. In the result, the revision fails and is dismissed with costs.