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1993 DIGILAW 444 (ALL)

Vishwa Nath v. Kapil Dev

1993-08-11

S.R.MISRA

body1993
JUDGMENT : S.R. Misra, J. This is Defendant's second appeal against the decree and judgment dated 9-2-1993 passed by Additional Civil Judge, Deoria in Civil Appeal No 212 of 1989 arising out of Original Suit No. 1361 of 1985 decided on 17-11-1989 by the Vth Additional Munsif Deoria. 2. The Plaintiff-Respondents have put in their appearance through Sri R.S. Misra and after hearing the Counsel for both sides, i.e., S/Sri Swaraj Prakash for the Appellant and Sri R.S. Misra for the Respondents, the appeal is being disposed of finally at the admission stage. 3. The Plaintiff-Respondents filed a suit for permanent injunction seeking to restrain the Defendant from making construction over the land in dispute and also sought the relief that any construction made, which is unauthorized, may be removed. The case of the Plaintiffs was that the property in dispute was purchased by them on 15th March, 1963 from one Ayodhya and after the, execution of the sale deed, the land in dispute, including the house was in occupation of the Plaintiffs. It is not necessary to give details of the other averments made in the plaint 4. The suit was contested by the Defendant who denied the plaint allegations and according to them the Plaintiffs have no cause of action to file the suit, According to them, north portion of the house of the Plaintiff's Plot No. 245 is abadi where the Defendant Nos. 1 and 5 have got their, Nad, Bamboo plants etc. The disputed constructions do not lie in Plot No. 241 and the” same lies on Plot No. 245, which is abadi since before abolition of Zamindari. The land is not being used for agricultural purposes since 1974 and it is in the shape of abadi. 5. The plea regarding bar of limitation was also raised and Issue No. 5 was framed. This was, however, not pressed by the parties. The Trial Court, however, recorded a finding that the suit is not barred by time and it decided the issue in favour of the Plaintiffs. 6. After considering the oral and documentary evidence on record, the learned Munsif decree the suit. The Defendants went in appeal but their appeal too met the same fate and hence this Second Appeal. 7. The Trial Court, however, recorded a finding that the suit is not barred by time and it decided the issue in favour of the Plaintiffs. 6. After considering the oral and documentary evidence on record, the learned Munsif decree the suit. The Defendants went in appeal but their appeal too met the same fate and hence this Second Appeal. 7. Sri Swaraj Prakash learned Counsel for the Appellant urged, mainly, three points (i) whether, when the plea of Section 123 of ZA & LR Act has been taken, the Civil Court will have the jurisdiction to try the suit ? (ii) Whether once the plea that the Defendants are entitled to the benefit of Section 123 ZA & LR Act has been taken, and, despite the fact that no issue has been framed by the Courts below on the point of jurisdiction, the Defendants could be allowed to raise the said plea for the first time that the Civil Court will have no jurisdiction and, (iii) whether the provisions of Section 123 ZA & LR Act will be applicable to a land owned by Gaon Sabha or a tenure holder ? He further urged that even assuming but without admitting, for the sake of argument, that the Civil Court may have jurisdiction to try the suit but once the plea that a part of Bhumidhari is occupied by construction, that part cease to be the land within the meaning of ZA & LR Act and in the absence of any issue u/s 143 of the ZA & LR Act, and also in the absence of any decision of this issue by Sub Divisional Officer for determination of the relevant question, the Civil Court, without a reference, could not decide the matter and in support thereof he relied on a decision reported in Shri Chandrika Singh and others Vs. Raja Vishwanath Pratap Singh and another, AIR 1992 SC 1318 . 8. Sri R.S. Misra tried to justify the judgment of the Courts below and according to him the plea of jurisdiction has not been raised not there is any issue and in view of the provisions of Section 331A of the ZA & LR Act, it is not open now at this stage to raise the plea of jurisdiction. 9. Heard learned Counsel for the parties have gone through the record of the case. 9. Heard learned Counsel for the parties have gone through the record of the case. I do not final any substantial question of law in the present appeal. In a suit for demolition of certain construction, Civil Court will have the jurisdiction as has been held by a Full Bench of this Court. A decree for demolition could only be granted by the Civil Court. The plea that the Civil Court will have no jurisdiction and that non framing of issue will render the judgment of the Courts below erroneous, has been taken for the first time before this Court. Moreover, a perusal of the judgment of the Hon'ble Supreme Court would go to show that the aforesaid decision is distinguishable on the facts of its own and it has no application to the facts of the present case. As regards the contention on behalf of the Appellant relating to Section 123 of U.P. Zamindari Abolition and Land Reforms Act, it would be apposite, to quote the aforesaid section, which runs as under: 123. Certain house, sites to be settled with existing owner thereof-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 Sub-section (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 (2) of Section 122-C has built a house on any land held by a tenure holder (not being a Government lessee) and such house exists on the 30th day of June 1985 the site of such house, shall notwithstanding anything contained in this Act, be deemed to be settle with the owner of such house by the tenure holder on such terms and conditions as may be prescribed. Explanation.... 10. From the aforesaid provision it is absolutely clear that the benefit of such a provision is only confined to those cases where the house is standing on the land of Gaon Sabha and not on the land of a tenure holder. However, there is no finding that the house of the Defendant is standing on the land of Gaon Sabha. From the aforesaid provision it is absolutely clear that the benefit of such a provision is only confined to those cases where the house is standing on the land of Gaon Sabha and not on the land of a tenure holder. However, there is no finding that the house of the Defendant is standing on the land of Gaon Sabha. The only allegation is that some minor construction was being raised in a part of the land in dispute. So the provisions of Section 123 are neither attracted nor it will oust the jurisdiction of the Civil Court. It has also to be taken more of that when a plea of jurisdiction has not been raised, no issue was framed, raising of such an issue in a Second Appeal is barred u/s 331A of the aforesaid Act relevant portion of which is being quoted 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 husbandary which includes pisciculture land under Sections 143 or 144, the Court shall frame an issue on the question and send the record to the Assistant Collector in charge of the subdivision for the decision of that issue only .... 11. In view of what has been said above, the appeal lacks merit and is accordingly dismissed.