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Allahabad High Court · body

1991 DIGILAW 1017 (ALL)

Shiv Murat v. Matabhikh

1991-08-06

R.P.GUPTA

body1991
JUDGMENT R.P. Gupta, J.M. - The present revision was filed by Shiv Murat against Matabhikh, Gaon Sabha and U. P. Government in the Court of Commissioner, Allahabad which was referred to this Court by Addl. Commissioner, Allahabad vide his Order dated 17.4.89 with the recommendation that the order passed by S.D.O. Phulpur be quashed as he had no jurisdiction to decide the case under Section 123 of U. P. Z. A. and L. R. Act. The present suit under Section 123 of U. P. Z. A. and L. R. Act was filed by Matabhikh plaintiff O. P. No. 1 before S. D. O., Phulpur on 21.12.87 regarding one and half biswa land of plot No. 773-M on the ground that house of the plaintiff is situated over it since before the date of vesting and in every case he being the agriculture Labourer of schedule caste being pasi, having built the house before the prescribed date, became the owner of the land in suit under Section 123 of U. P. Z. A. and L. R. Act. The present revisionist contested the case on various grounds including that he being in possession on it on the prescribed date became its bhumidhar under Section 123-B of U. P. Z. A.and L. R. Act and that he had already filed a suit under Section 229-B of U. P. Z. A. and L. R. Act regarding the entire 13 bishwa area of this plot No. 773. After taking evidence the Trial Court decreed the suit of the plaintiff on 20.7.88 regarding one Biswa land against which order the present revision was filed. 2. I have heard the arguments of the learned counsel for the parties and have gone through the record. The learned counsel for the revisionist supported the recommendation of the learned Addl. Commissioner and stated that neither under Section 9 nor under Section 123 of U. P. Z. A. and L. R. Act. S. D. O. could have entertained such suit or application for declaring disputed land as Abadi of the plaintiff Matabhikh. According to his jurisdiction of such declaration was of Civil Court. According to him in Schedule II of U. P. Z. A. and L. R. Act neither Section 9 nor Section 123 are mentioned. As such declaration of Abadi could have been given by the Civil Court only. According to his jurisdiction of such declaration was of Civil Court. According to him in Schedule II of U. P. Z. A. and L. R. Act neither Section 9 nor Section 123 are mentioned. As such declaration of Abadi could have been given by the Civil Court only. The learned counsel for the O. P. supported the judgment of the Trial Court and stated that S. D. O. had full jurisdiction under Section 123 of U. P. Z. A. and L. R. Act as it was his duty to record Abadi in Revenue records. He further argued that the revisionist was not aggrieved party and he had no right to file present revision. 3. I have considered the arguments of the learned counsel for the parties. The revisionist has contested the suit in the Lower Court also and claimed the entire land as his own, regarding which he had already filed a separate suit under Section 229-B of U. P. Z. A. and L. R. Act. As such it cannot be said that he is not the aggrieved party. The revision filed by him is not defective due to it. 4. Now' the main point to be decided is whether the Revenue Court had jurisdiction to declare the right of the plaintiff under Section 9 or 123 of U. P. Z. A. and L. R. Act. As such it cannot be said that he is not the aggrieved party. The revision filed by him is not defective due to it. 4. Now' the main point to be decided is whether the Revenue Court had jurisdiction to declare the right of the plaintiff under Section 9 or 123 of U. P. Z. A. and L. R. Act. Section 9 of the Act provides that: "(All Wells), trees in abadi and all buildings situate within the limits of an estate belonging to or held by an intermediary or tenant or other person whether residing in the village or not, shall continue to belong to or be held by such intermediary tenant or person, as the case may be, and the site of the wells or the buildings within the area appurtenant there to shall be deemed to be settled with him by the State Government on such terms and conditions as may be prescribed." Section 123 of the Act Provides that: "(1) Without prejudice to the provisions of Section 9 where any person referred to in sub-section (3) of Section 122-C has built a house on any land referred to in subsection (2) of that section, not being land reserved for any public purpose, and such house exists on the (30th day of June, 1985) the site of such house shall be held by the owner of the house on terms and conditions as may be prescribed. (2) Where any person referred to in sub-section (3) of Section 122-C has built a house on any land held by a tenure-holder not being a Government lease and such house exists on the (30th day of June 1985) the suits of such house shall, notwithstanding anything contained in this Act, be deemed to be settled with the owner of such house by the tenure holder on such terms and conditions as may be prescribed. Explanation -For the purposes of Sub-section (2) a house existing on the (30th day of June, 1985) on any land held by a tenure-holder shall, unless the contrary is provided, be presumed to have been built by the occupant thereof, and where the occupants are members of one family by the head of that family. By these Sections, a owner of the house existing on the land on certain date are given similar ownership right on the land. By these Sections, a owner of the house existing on the land on certain date are given similar ownership right on the land. These sections are not mentioned in Schedule II of U. P. Z. A. and L. R. Act., where those sections are mentioned in which the suits could have been filed or application could have been given in Revenue Court. The suit for declaration of Bhumidhari rights are provided under Section 229-B of U. P. Z. A. and L. R. Act. Declaration under Section 143 may be sought by Bhumidhar having transferable right for using his land for purpose not connected with agriculture etc. This declaration can be given by S. D. O. Now after no provision is made in it to get the right under Section 9 of 123 U. P.Z.A.and L. R. Act declared by filing the suit or application in Revenue Court. Thus where the plaintiff wants declaration of his right on the basis of the provisions under Section 9 or 123 of U. PZA.and L. R. Act, the only forum available to him is Civil Court and not the Revenue Court. The Revenue Court has no jurisdiction to declare the rights of the person under Section 9 or 123 of U. P. Z. A. and L. R. Act. 5. The result is that accepting the recommendation of the Addl. Commissioner, Allahabad the revision is allowed and the order dated 20.7.88 passed by the S. D. O. Phulpur, is set aside. Let plaint be returned for presentation to proper Court. Parties shall bear their own costs.