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2009 DIGILAW 425 (UTT)

LAJWANTI SHARMA v. MAHESH CHAND SHARMA

2009-08-13

B.S.VERMA

body2009
ORDER (on stay application No. 6993 of 2009) Heard learned counsel for the parties and perused the record. 2. Brief facts giving rise to the present writ petition are that the plaintiff-petitioner filed Revenue Suit for declaration under Section 229-B of the U.P. Z.A. and L.R. Act 1950 (for short the Act) against the defendant-respondents in the Court of Assistant Collector 1st Class, Dehradun. The respondent nos. 1 and 2 moved an application under Order 7, Rule 11 of the Code of Civil Procedure on the ground that there suit is not maintainable before the Revenue Court and the same should be dismissed outright. The application was dismissed by the trial court vide order dated 4.10.2007 (copy Annexure No. 4 to the petition). Aggrieved by the said order, the defendants Mahesh Chand Sharma and others filed an appeal, which was registered as Z.A. Appeal No. 14 of 2007-08 before the Additional Commissioner, Garhwal Division, Pauri. The said appeal was ultimately allowed vide order dated 9.4.2008 and it was observed by the appellate court that the trial court, before deciding the point of jurisdiction of the court and maintainability of the suit, shall decide the point whether the land in question is abadi as per provisions of Sections 331 and 331-A of the Act, after obtaining the report as per Rules by adopting the procedure of declaration under Section 143 of the Act. The plaintiff-petitioner being aggrieved by the said order preferred Second Appeal No. 93/2007-08 Smt. Lajwanti Sharma Vs. Mahesh Chand Sharma and others before the learned Additional Chief Revenue Commissioner, Uttarakhand, Dehradun. The learned second appellate court did not find favour with the plaintiff-appellant and dismissed the appeal on the same ground by its order dated 25.3.2009, which gave rise to the present writ petition. 3. The Apex Court in the case of Chandrika Singh and others Vs. Raja Vishwanath Pratap Singh and another [1992, R.D. page 258] has held that 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 Secs. Such a determination is envisaged by Secs. 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 Sec. 331-A. The scheme of the provisions contained in Section 143 or Section 144 and Section 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 to be determined either under Section 143 of Section 144 and where no such determination has been made, it should be determined by following the procedure laid down in Section 331-A. 4. The Apex Court has further held that the question as to whether a particular land is ‘land’ under Section 2(14) to 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 Sections 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 Section 331-A must be followed by the Court. This would be so even in a case where a building exists on the land and the land is claimed to be appurtenant 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 that 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. The learned first appellate Court has rightly given a finding that the trial court must record a finding on the abadi point whether the land in question is abadi or the same has been occupied for the purposes connected with agriculture, horticulture or animal husbandry and remanded the matter to the trial court. The learned first appellate Court has rightly given a finding that the trial court must record a finding on the abadi point whether the land in question is abadi or the same has been occupied for the purposes connected with agriculture, horticulture or animal husbandry and remanded the matter to the trial court. The second appellate court has rightly dismissed appeal preferred by the petitioner on the same ground. 5. Having heard learned counsel for the petitioner and in view of the above discussion, I am of the view that the writ petition is devoid of merit and is liable to be dismissed outright. 6. Accordingly, the writ petition is dismissed in limine. 7. All pending applications stand disposed of.