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2017 DIGILAW 1328 (ALL)

Nasseunnisa Beghum v. Kunwar Yasmin Ali Khan

2017-05-18

ASHWANI KUMAR MISHRA

body2017
JUDGMENT Ashwani Kumar Mishra, J. 1. This appeal under Section 96 of Civil Procedure Code is directed against the judgment and decree passed by the Additional District Judge, Court No. 2, Agra dated 24.8.2012, whereby plaint filed in Original Suit No. 540 of 2007 has been rejected in respect of property described in Schedule-E of the plaint. Court below has consequently allowed the application filed on behalf of defendant No. 1 (Paper No. 165-C), under Order-7 Rule-11 (d) of Civil Procedure Code holding that the suit in respect of property shown in Schedule-E, is not maintainable before the Civil Court. In respect of other properties, the suit remains pending. Aggrieved by such determination, plaintiff-appellant is before this Court in the present appeal. 2. Shorn of unnecessary details, it transpires that plaintiff-appellant instituted Original Suit No. 540 of 2007 with the allegation that she is the owner of suit property, disclosed in Schedule A, B &E. Paras 1 to 4 of the plaint is reproduced: - “1. That Kunwar Nasihat Ali Khan, father of the plaintiff & defendants No. 1,2,4 & 5 and grandfather of the defendant No. 3, was sole and absolute owner of the property in suit described in Schedule-A of the plaint inter-alia other properties. Smt. Rafiqunnisa Begam wife of Kunwar Nasihat Ali Khan was absolute owner of the property described in Schedule B of this plaint. 2. That Kunwar Nasihat Ali Khan expired in the year 1965 after executing his last Will dated 6.12.1964 in favour of his wife Smt. Rafiqunnisa Begam bequeathing his entire property including the property described in Schedule-A of the plaint with consent of his son defendant No. 2, three daughters, defendants No. 4 & 5 and his mother Smt. Zubeda Begam. By virtue of the above Will, Smt. Rafiqunnisa Begam became absolute owner of inter alia property mentioned in Schedule A of the plaint and already being owner of the property mentioned in Schedule B at the plaint, she became owner of the entire property in suit mentioned in Schedule A & B of the plaint and remained in possession of the above properties till her death in the year 1986. 3. That properties mentioned at item No. 1 to 28 in Schedule A of the plaint lie within the limits of town area Sadabad, District Hathras. 3. That properties mentioned at item No. 1 to 28 in Schedule A of the plaint lie within the limits of town area Sadabad, District Hathras. In the above properties part is abadi land with constructions existing thereon and part is agricultural holding. 4. That out of Khasra Plot No. 962 mentioned in Schedule A of the plaint having total area of 0.283 hectare, the defendant No. 1 has sold 83.56 sq. yard area to Shri Bhavani Shanker, defendant No. 3 has sold 40 sq. yard area to Shri Madho Lal and out of Khasra Plot No. 961 defendant No. 2 has orally gifted 203 sq. yards area to Smt. Husn Bano, wife of Shri Kafil Ahmad and has also sold 130 Sq. yard area to Smt. Gayatri Devi wife of Sri Gopal Das”. 3. Plaintiff has claimed 1/9th share in the properties mentioned in Schedule-E of the plaint. Paras 17 & 18 of the plaint is also reproduced “17. That in the above circumstances, now the plaintiff does not want to keep the property joint and wants partition by metes & bound of her 1/9th share in the properties mentioned in Schedule-E of the plaint. The plaintiff requested the defendants for amicable partition of the plaintiff’s1/9th share in the entire joint properties mentioned in schedule of the plaint but excepting the defendants No. 2,4 & 5, the other defendants have refused to such partition as they are not interested in giving to the plaintiff what is due to her. 18. That the plaintiff is now constrained to file this suit for partition of her 1/9th share in the properties mentioned in Schedule-E of the plaint”. Schedule describing various properties are enclosure to the plaint. 4. In the original suit, notices were issued and written statement has been filed by the defendants. An application under Order-7 Rule-11 (d) CPC was filed by the defendant No. 1 stating therein that the suit property was recorded as Bhumidhari in the revenue records and the names of defendants were duly mutated therein. It is stated that the plaintiff was not recorded as tenant in the revenue record and that plaintiff, otherwise, had no right to be mutated. It is stated that the plaintiff was not recorded as tenant in the revenue record and that plaintiff, otherwise, had no right to be mutated. It was also stated that no declaration, in terms of Section 143 of U.P.Z.A. & L.R. Act was granted and the Schedule E property being agricultural land continue to be the Bhumidhari land and as such, Civil Court has no jurisdiction to entertain the plea of partition. It was also stated that a declaration was required in favour of plaintiff, which could be granted only by revenue court. 5. Upon this application, objections were filed by the plaintiffs stating that the suit property consisted of land with buildings/structures raised thereupon and as such, it cannot be treated to be a Bhumidhari land. Trial Court, however, upon perusal of objection filed by the defendants and relying upon the plaint averments as well as the documents filed alongwith application under Order-7 Rule-11(d) CPC has allowed the objection. A finding is returned that the suit property is recorded as Bhumidhari land, over which defendants are mutated and, therefore, the Civil Court, in respect of Schedule-E property, has no jurisdiction to entertain the suit. 6. Plaintiff-appellant contends that at the stage of entertaining of application under Order-7 Rule-11 (d) CPC, the Court below was not justified in relying upon documents and materials brought on record vide application filed under Order-7 Rule-11(d) CPC and the scope of exercise of power under Order-7 Rule-11 CPC was required to be confined to plaint averment alone. It is also contended that once construction had been raised over part of the property it had seized to be an agricultural land and, therefore, jurisdiction of Civil Court was not ousted. 7. Learned Senior Counsel, appearing for the appellant submits that at best the Court could have framed a preliminary issue on the nature of schedule-E property so as to determine the question of competence of Court to examine the issue but such an exercise could not have been undertaken at the stage of hearing an application under Order-7 Rule-11 CPC. 7. Learned Senior Counsel, appearing for the appellant submits that at best the Court could have framed a preliminary issue on the nature of schedule-E property so as to determine the question of competence of Court to examine the issue but such an exercise could not have been undertaken at the stage of hearing an application under Order-7 Rule-11 CPC. Learned counsel further submits that on the factual aspect as to whether suit property continued to exist in the nature of agricultural land on the date of institution of suit or had seized to so exist and altered its character on account of constructions raised was an issue which could be subjected to proceedings under Section 331-A of the U.P.Z.A. & L.R. Act, but at the stage of Order-7 Rule-11 CPC application, no finding could be given to hold the suit to be barred. 8. The prayer made in this appeal is opposed by Sri Rahul Sripat, assisted by Sri Digvijai Singh contending that Khatauni is a public document which clealry demonstrates that Schedule-E property is recorded as Bhumidhari, over which defendants are recorded and such materials could be relied upon. It is also pointed out that in Khatauni name of plaintiff is not recorded and a declaration of right in favour of plaintiff could be granted only by the revenue Court. Learned counsel further contends that so long as a declaration under Section 143 of the U.P. Z.A. & L.R. Act is not granted, the property would continue to have the character of ‘land’, as defined under the Act of 1950, notwithstanding the claim of construction existing upon it. 9. I have heard Sri M.A. Qadeer, learned Senior Counsel, assisted by Sri Shamim Ahmad for the appellant and Sri Rahul Sripat for the respondent No. 1, Sri Subhash Gosain for respondent No. 5, Miss Shama for respondent No. 2, Sri Vashishth Tewari for substituted appellant and Sri Sunil Srivastava for legal heirs of appellant, who has died. 10. Following points for determination arise in this appeal. “(a) Whether, at the stage of hearing an application under Order-7 Rule-11 CPC, it was permissible for the trial court to have entertained documentary evidence filed by the defendants so as to determine the nature of the suit property? 10. Following points for determination arise in this appeal. “(a) Whether, at the stage of hearing an application under Order-7 Rule-11 CPC, it was permissible for the trial court to have entertained documentary evidence filed by the defendants so as to determine the nature of the suit property? (b) Whether, it was open for the court below to interpret plaint averments with regard to existence of constructions over the suit property and upon materials brought by defendants to hold that such property continues to have the character of a agricultural holding so as to oust jurisdiction of Civil Court in the matter?” 11. The plaint averments are specific. The plaintiff has described the suit property with reference to plot number and its area in the Schedule-A, B and E. In para-3 of the plaint it is mentioned that property situates within the limits of town area Sadabad District Hathras, which consists of Abadi, part of the land with construction thereupon while remaining area remains agricultural holding. Description of construction over plot have thereafter been set out in various paragraphs of the plaint. There is, however, no clear segregation in plaint with regard to Bhumidhari land and Abadi. It is only by way of an application filed under Order-7 Rule-11 CPC that Khatauni has been brought on record by the defendants to allege that schedule-E property is recorded as Bhumidhari over which defendants are recorded. The first question that arises for consideration in this appeal is as to whether at the stage of entertaining application under Order-7 Rule-11 CPC, materials filed by defendants could have been looked into or relied upon? Law in this regard is settled. For the purposes of deciding application under Order-7 Rule-11(d) CPC what is to be seen by the Court is only the plaint averment and on the strength of such averments alone if the suit is found to be barred by any law that an application under Order-7 Rule-11 CPC could be allowed. The averments made in the written statement or materials brought by way of an application filed under Order-7 Rule-11 CPC cannot be pressed into service, at such stage. The averments made in the written statement or materials brought by way of an application filed under Order-7 Rule-11 CPC cannot be pressed into service, at such stage. The view that I propose to take in this regard is fortified by the judgments of the Apex Court in Saleem Bhai and others v. State of Maharashtra and others, AIR 2003 SC 759 ; Vithal Bhai Pvt. Ltd. v. Union Bank of India (2005) 4 SCC, 315 and Church of Christ Charitable Trust & Educational Charitable Society v. Panniamman Educational Trust, 2012 (8) SCC 706 . It was not open for the court below to have relied upon materials other than what was put forth in the plaint or in the documents annexed alongwith the plaint by the plaintiff. 12. So far as the nature of suit property being ‘land’ defined under the provisions of the U.P. Z.A. & L.R. Act is concerned, it would be relevant to note that land is defined under Section 3 (14) of the U.P. Z.A. & L.R. Act. Section 143 of the Act contemplates grant of declaration of holding being used for a purpose not connected with agriculture. It is settled that so long as a declaration under Section 143 is not granted by the competent court, the land would continue to be covered within the definition of ‘land’. Section 331 of the U.P. Z.A. & L.R. Act also provides that in respect of the land covered by the Act, a suit for partition would lie exclusively before the revenue Court and the jurisdiction of Civil Court would stand ousted. However, if an issue arises as to whether constructions have been raised upon the land and that it seizes to have the character of land, the provisions of Section 331-A of the Act would come into play. However, if an issue arises as to whether constructions have been raised upon the land and that it seizes to have the character of land, the provisions of Section 331-A of the Act would come into play. Section 331-A of the Act reads as Under: - “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 husbandry, which includes pisciculture and poultry farming, and a declaration has not been made in respect of such land under Section 143 or 144, the court shall frame an issue on the question and send the record to the Assistant Collector kin-charge of the sub-division for the decision of that issue only: Provided that where the suit has been instituted in the court of Assistant Collector in-charge of the sub-division, it shall proceed to decide the question in accordance with the provisions of Section 143 or 144, as the case may be. 2. The Assistant Collector in-charge of sub-division after reframing the issue, if necessary, shall proceed to decide such issue in the manner laid down for the making of a declaration under Section 143 or 144, as the case may be, and return the record together with his finding thereon to the court which referred the issue. 3. The court shall then proceed to decide the suit accepting the finding of the Assistant Collector in-charge of the sub-division on the issue referred to it. 4. The finding of the Assistant Collector in-charge of the subdivision on the issue referred to lit shall, for the purpose of appeal, be deemed to be part of the finding of the court which referred the issue”. From the statutory scheme, it is clear that when an issues arises as to whether the ‘land’ held by a Bhumidhar is or is not used for the purposes connected with agricultural, horticulture or animal husbandry, then a finding in that regard could be invited by the Civil Court upon reference to the revenue Court, and such finding, in law, would amount to grant of declaration under Section 143 CPC. 13. 13. In the facts and circumstances of the present case, since the plaintiff had alleged existence of Abadi/construction, in case the Court came to the conclusion that a dispute had arisen with regard to nature of property as being covered by constructions or not, recourse could have been taken to the provisions contained under Section 331-A of the Act also. No conclusive opinion, in that regard, however, need be expressed by this Court, at this stage, since in my opinion such issues could not have been gone into by the Civil Court while hearing application filed under Order-7 Rule-11 CPC. 14. In the facts and circumstances of the present case, since an objection relating to jurisdiction of the Court had been raised, the proper course to be exercised by the Civil Court, was to have framed a preliminary issue exercising jurisdiction under Order-14 Rule-2 (2) of the Code, and after allowing the parties an opportunity to lead evidence in that regard, return a finding as to whether the Civil Court had jurisdiction to grant relief of partition to the plaintiff or not? Since such course has not been followed and the exercise of jurisdiction under Order-7 Rule-11 (d) of the code is found to be vitiated due to an error of law, the judgment and decree passed by the court below cannot be sustained. 15. The appeal, consequently, succeeds and is allowed. The judgment and order dated 24.8.2012, passed by the Additional District Judge, Court No. 2, Agra is set aside. Matter is remitted back for a fresh consideration of cause by the court below. Since the suit has remained pending for a period of more than 10 years and issue of jurisdiction is raised, it would be appropriate to provide that the court below may frame preliminary issue, in that regard, and after affording an opportunity to the parties to adduce evidence, determine the question as to whether Civil Court had jurisdiction to grant relief of partition or not? Both the parties undertake to appear before the court below alongwith certified copy of this order on 30.5.2017. The Court below shall proceed to fix a date immediately in July, 2017. The Court below shall thereafter fix fortnightly dates, and proceed to adjudicate the matter without granting unnecessary adjournment to either of the parties. Other reliefs prayed for in the suit shall also be adjudicated upon, in accordance with law. The Court below shall proceed to fix a date immediately in July, 2017. The Court below shall thereafter fix fortnightly dates, and proceed to adjudicate the matter without granting unnecessary adjournment to either of the parties. Other reliefs prayed for in the suit shall also be adjudicated upon, in accordance with law. Substitution Application No. 345947 of 2015: - 16. Heard learned counsel for the parties. 17. Arjumand Ali Khan son of Kunwar Mustmand Ali Khan has filed the present application seeking substitution in this appeal as appellant No. 1/1 with the allegation that the appellant Smt. Nasseunnisa Beghum has died on 8.5.2015. It is stated that prior to her death, she executed a Will bequeathing her right in the property upon the applicant on 20.2.2014. Based upon such Will, the applicant claims right to prosecute the present appeal. A counter affidavit has been filed, opposing the prayer stating that Will is forged and also for the reason that since the property is an agricultural property, as such, the Will is otherwise hit by Section 169 of the U.P. Zamindari Abolition and Land Reforms Act, 1950. 18. At this stage, it would be appropriate to notice that another Substitution Application No. 261140 of 2016, filed in this appeal has been allowed vide order dated 10.2.2017 which is extracted here in below: - “Heard learned counsel for the parties. Substitution application is allowed. Let heirs and legal representatives of deceased appellant No. 1/1 Javed Ali Khan be substituted as per the description given in the affidavit, and a note be made that appellant No. 1/1 has died on 22.12.2016”. 19. Passing of orders upon this substitution application was deferred and was to be dealt with while hearing the appeal itself. 20. The question as to whether will is valid or not, is an issue which would require leading of evidence. Moreover whether any right upon the substituted appellant devolves over the property would have to be determined based upon the question as to whether the land is agricultural land to be governed by the provisions of the U.P.Z.A & L.R. Act or not? Moreover whether any right upon the substituted appellant devolves over the property would have to be determined based upon the question as to whether the land is agricultural land to be governed by the provisions of the U.P.Z.A & L.R. Act or not? Since the matter on this aspect is being remitted back to the Court below vide order passed today in appeal, the question regarding genuineness of will as well as applicability of the Act of 1950 are left open to be examined by the trial court, at the first instance. 21. For the purposes of prosecuting the instant appeal, however, the application for substitution is allowed with the clarification that the rights of the appellant would be subject to determination of cause, in that regard, by the court below. Delay Condonation Application No. 345946 of 2015: - 22. Heard learned counsel for the parties. 23. Delay in filing of the substitution application has been explained to the satisfaction of the Court. 24. Delay condonation application is allowed. 25. Delay in filing of substitution application is condoned.