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2012 DIGILAW 528 (UTT)

JIWAN LAL SAH v. KHASHTI DEVI

2012-09-05

B.S.VERMA

body2012
JUDGMENT Hon’ble B.S.Verma, J. (Oral) Heard learned counsel for the appellants as well as learned counsel for the respondents and perused the record including the impugned judgment and decree. 2. This appeal by plaintiffs is directed against the judgment and decree dated 29-7-2005 passed by the District Judge, Bagshwar, in Civil Suit No. 28 of 2001, Jiwan Lal Sah and others Vs. Smt. Khashti Sah and others, whereby the suit for partition filed by the plaintiff-appellants has been dismissed. 3. Briefly stated the facts giving rise to the present appeal are that initially the plaintiff-appellants filed a suit for partition, which was registered as Original Suit No. 28 of 2001 in the court of Civil Judge (Senior Dvision) Bageshwar alleging therein that the parties to the suit are Bhumidhars of the house, appurtenant land, Angan Bara recorded in Khatauni Khata no.13 of village Katyur Math, Talla Katyur, Bageshwsar. According to the plaintiffs one of the ancestors of the plaintiffs, namely late Har Lal Sah Son of Mohan Lal Sah had sold his 1/4th share in plot no. 470 and plot no. 469 comprising house, land and Bara to one Sri Indra Lal Sah s/O late Jai Lal Sah by a registered sale deed dated 20-1-1942 and thus, the legal heirs of deceased Indra Lal Sah became owner to the extent of 1/4th share in Plot no. 13. Late Indra Lal Sah left behind two sons, namely Sri Girdhari Lal and Kailash Lal Sah, whose names were recorded in the Khatauni and both of them have already died and the defendants have been recorded in the revenue records as legal heirs of their predecessors. Plaintiffs have further alleged that they are exclusive owner of 3/4th share of the house, Angan, Bara recorded in Khata No. 13, while defendants are owner of 1/4th share thereon. In the suit, the plaintiffs have prayed for partition of only 3/4th share in the property mentioned in plot nos. 470 and 469 of Khata No. 13 comprising house, Bara and land and that decree be passed against the defendants and after partition, possession of 3/4th share be given to the plaintiffs. 4. All the three defendants resisted the suit by filing their written statement. The defendants have only admitted that the parties are Bhumidhars of the property in question but have denied the plaint allegations made in paragraph no. 2 to 9. 4. All the three defendants resisted the suit by filing their written statement. The defendants have only admitted that the parties are Bhumidhars of the property in question but have denied the plaint allegations made in paragraph no. 2 to 9. In the additional pleas, the defendants have asserted that the ancestor of the defendant Late Indra Lal Sah purchased the land and house of Khata no. 13 through a registered sale deed dated 20-1-1942 and since then, they are continuously in possession of the entire 15 Muthi land and houses constructed thereon and that the plaintiffs were never in possession of the suit property. It has also been pleaded that the ancestors of the plaintiffs were residing permanently in Thana Bazar, Almora. In paragraph no. 12, it has inter alia been pleaded that the plaintiffs with ulterior motive had sold two-muthi land of Khata no. 13 without delivery of possession to one Devi Lal Son of Shyam Lal, therefore, co-tenure holder has not been arrayed as party to the suit and the suit is bad for non-joinder of necessary parties. In paragraph no. 13 of the written statement, it has been pleaded that a part of the suit land is being used as field for agriculture by the defendants, therefore, the revenue Court has jurisdiction to hear the suit for partition. 5. Learned Civil Judge (Senior Division) Bageshwar framedfollowing Issues in the suit:- ISSUES 1. Whether out of the disputed land, the plaint ifs are entitled to get the land to the extent of their ¾ share partitioned? If so, its efect? 2. Whether the suit of the plaint ifs is liable to be dismissed for want of jurisdiction as has been pleaded in paragraph 13 of the written statement? 3. Whether the suit has been undervalued and the court fee paid is insuficient? 4. To what relief, are the plaintifs entitled? 6. A perusal of the record shows that the suit was subsequently transferred to the court of the District Judge Bageshwar. 7. On 21-5-2003, the Issue No.3 framed on the point of valuation of the suit and court fee has been decided by the District Judge and the plaintiffs were directed to amend the valuation clause of the plaint and to pay necessary court fee after making necessary amendment in the plaint. 8. 7. On 21-5-2003, the Issue No.3 framed on the point of valuation of the suit and court fee has been decided by the District Judge and the plaintiffs were directed to amend the valuation clause of the plaint and to pay necessary court fee after making necessary amendment in the plaint. 8. Both the parties have led both oral and documentary evidence in the suit in support of their respective claims and after hearing the learned counsel for the parties, the learned District Judge took Issue nos. 1 and 2 for decision. After perusing the evidence led by the parties, the learned District Judge has observed that for a suit for partition it is necessary that the parties belong to one family and their property must be joint and common. On the basis of statement of plaintiffs’ witness Jiwan Lal Sah, at page 4 of the judgment, it has been observed that the defendants are in possession over the 3/4th share of the plaintiffs and admittedly, plaintiffs have no possession over any part of the property in suit. It has also been observed that the plaintiffs have failed to establish as to of which 3/4th share and on what direction of the disputed property, they are owner and over which the defendants had taken possession forcibly. It has also been observed by the learned District Judge that the plaintiffs have failed to establish that the defendants are the members of the family of the plaintiffs or their ancestors. On the point of jurisdiction of the Court, the learned District Judge has observed that since there are a number of houses over the plots mentioned in Khata No. 13, therefore, the suit is not barred on the point of jurisdiction. It has also been held that the defendants are third party and they are not members of the family of the plaintiffs and the defendants are owner in possession on the basis of sale deed. Ultimately, by the judgment and decree dated 29-7-2005, the suit for partition has been dismissed. 9. Aggrieved, the plaintiff-appellants have preferred the present appeal. 10. In this appeal, learned counsel for the appellant has contended that the learned District Judge fell into error in not considering the fact that the 1/4th share had been purchased by the predecessor in interest of the defendants. 9. Aggrieved, the plaintiff-appellants have preferred the present appeal. 10. In this appeal, learned counsel for the appellant has contended that the learned District Judge fell into error in not considering the fact that the 1/4th share had been purchased by the predecessor in interest of the defendants. Learned counsel for the appellant further contended that the learned District Judge was not justified in dismissing the suit holding that the defendants are not the family members of the plaintiffs, therefore, the suit for partition cannot be maintained. 11. So far as the purchase of 1/4th share in the land in question by late Indra Lal Sah, the predecessor-in-interest of the defendants is concerned, the plaintiff-appellants have stated in paragraph no. 2 of the plaint that one of the predecessor in interest of the plaintiffs namely late Harlal Sah had sold his 1/4th share in the disputed Khata No.13 by registered sale deed dated 20-1-1942 and this fact is also admitted to the defendants that the sale deed was executed in favour of late Indra Lal Sah, the predecessor in interest of the defendants but at the same time, according to the defendants, they are in continuous possession of the entire 15 Muthi land and houses standing on Khata No. 13 and that the plaintiffs were never been in possession of the said property. 12. So far as the issue of jurisdiction (Issue No.2) is concerned, the trial Court has held that since constructions exist over the land in dispute, therefore, the jurisdiction of the civil court is not barred and the contention of the defendants on this score has been turned down. 13. In the case at hand, the defendants in paragraph nos. 11 and 13 have raised a plea that a portion of the land in dispute is being used by the defendants for agricultural purpose and the nature of the land being agricultural, the court has no jurisdiction. Issue no.2 was framed on the point of jurisdiction. 14. In the trial Court, on behalf of the defendants, Kisan Bahi of Khasti Widow of Girdhari Lal Sah, issued by the Revenue Authorities has been filed on record as paper no. 71C/36. A perusal of the entries made in the Kisan Bahi, it reveals that the land is recorded as Bhumidhari Class 1(A) and there is mention of plot no. 469, area 3 Muthi, plot no. 71C/36. A perusal of the entries made in the Kisan Bahi, it reveals that the land is recorded as Bhumidhari Class 1(A) and there is mention of plot no. 469, area 3 Muthi, plot no. 470 area 9 Muthi, plot no. 479 area 2 Muthi and plot no. 480 area 1 Muthi (total area15 Muthi). 15. It is pertinent to mention that the bar to the jurisdiction of Civil Court is contained in Section 331 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 and Section 331-A thereof prescribed the procedure to be followed by the Court when a plea that the land is not being used for purposes connected with agriculture, horticulture or animal husbandry arises or is raised in any suit relating to land held by a Bhumidhar. In my view, the learned Court below has not considered the provisions of Section 333-A of the U.P.Zamindari Abolition and Land Reforms Act, 1950. Whether any particular land is “land” under clause (14) of Section 3 to which the provisions of the said Act are applicable, it has to be determined whether the land is held or occupied for purposes connected with agriculture, horticulture or animal husbandry and that in such a case, the procedure laid down in Section 331-A of the U.P. Zamindari Abolition and Land Reforms Act, 1950 must be followed by the court concerned. I am fortified in my view by the Apex Court judgment in the case of Chandrika Singh and others Vs. Raja Vishwanath Pratap Singh and another (1992, R.D., Page 258). Therefore unless and until, the land is declared non-agricultural, the Court cannot proceed in the matter. If the plaintiffs allege that there are houses standing on the land in dispute, it is mandatory for the court to refer the Issue to the Assistant Collector In-charge of Sub Division to be decided first and only after the decision on that Issue, the Court has then to proceed further with the suit as per sub-section (3) of Section 331-A of the said Act. 16. For the reasons and discussions above, this Court is of the view that in view of the pleadings of the parties with regard of the nature of the land, it is necessary that the procedure as prescribed under Section 331-A of the U.P. Z.A. and L.R. Act should have been followed by the trial Court. 16. For the reasons and discussions above, this Court is of the view that in view of the pleadings of the parties with regard of the nature of the land, it is necessary that the procedure as prescribed under Section 331-A of the U.P. Z.A. and L.R. Act should have been followed by the trial Court. In this view of the matter, the impugned judgment and decree passed by the trial Court is liable to be set aside. Therefore, the appeal deserves to be allowed and the matter has to be remanded to the trial Court. 17. The appeal is allowed. Costs easy. The impugned judgment and decree dated 29-7-2005 passed by the District Judge, Bageshwar is set aside. The suit is remanded to the trial Court to decide the suit afresh in accordance with law and in the light of the observations made in the body this judgment, after affording opportunity of hearing and leading further evidence to both the parties, as the trial Court may deem necessary for decision of the suit. Interim order dated 16-9-2005 passed by this Court is vacated.