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2017 DIGILAW 414 (UTT)

Mohd. Ali v. Dinesh Chandra Bhatt

2017-07-27

LOK PAL SINGH

body2017
JUDGMENT : 1. This second appeal has been preferred by the appellant against the judgment and decree dated 11.08.2011 and 18.08.2011 passed by Civil Judge (Senior Division)/F.T.C. Haldwani in civil suit no.90 of 2008, as well as against the judgment and decree dated 30.05.2012 and 06.06.2012 passed by Additional District Judge/III F.T.C. Nainital, in Civil Appeal No.21 of 2011. Both the judgments and decree, challenged herein, render the concurrent finding, whereby the plaint filed by the plaintiff has been returned. 2. In brief, facts of the case are that the plaintiff (the appellant herein) filed a suit for permanent prohibitory injunction and declaration of Will dated 26.04.2004 as null and void against the defendant in the Court of Civil Judge (Sr. Div.), Nainital, stating therein that father of the plaintiff Late Sri Mohd. Alam was the recorded tenure holder of the plot no.60, measuring 0.016 hectare, plot no.61 measuring 0.076, plot no.107 measuring 0.598 hectare, plot no.108 measuring 0.032 hectare, plot no.109 measuring 0.049 hectare and plot no.110 measuring 0.648 hectare, total measuring 1.819 hectare of khata no.15 and plot no.103 measuring 0.607 hectare, plot no.104 measuring 0.525 hectare, plot no.106 measuring 0.602 hectare, total measuring 1.734 hectare of land of khata no.14 and plot no.48 measuring 0.025 hectare, plot no.55 measuring 0.430 hectare, plot no.56 measuring 0.439 hectare, plot no.57 measuring 0.443 hectare, plot no.58 measuring 0.411 hectare, plot no.59 measuring 0.657 hectare, plot no.60 measuring 0.054 hectare, plot no.61 measuring 0.171 hectare, plot no.62 measuring 0.082 hectare, plot no.63 measuring 0.183 hectare, thus the total measurement of above land is 6.448 hectare, situated at Gram Haripur Khass, Pargana, Bhawar, Chha Khata, Tehsil Haldwani, District Nainital. Plaintiff’s father expired on 29.12.2001, leaving behind his six sons (including the plaintiff) and his wife. After death of plaintiff’s father, his legal heirs became the owner and bhumidhar of the land in suit and their names were also entered in the revenue records. It is further stated in the plaint that on 28.5.2008 when the plaintiff was looking after his property, the defendant came and asked the plaintiff to vacate the whole property on the basis of Will dated 26.4.2004 executed in favour of the defendant by plaintiff’s father. The plaintiff claimed that he is in possession over the suit property, the defendant has no right and he be restrained from interfering into peaceful possession of the plaintiff. 3. The plaintiff claimed that he is in possession over the suit property, the defendant has no right and he be restrained from interfering into peaceful possession of the plaintiff. 3. The defendant contested the suit and filed his written statement stating therein that Late Mohd. Alam had executed registered Will dated 26.04.2004 in favour of the defendant on which basis name of the defendant has been mutated in the revenue records. 4. On the basis of pleadings of the parties, the trial court framed following issues on 19.02.2010: (i) Whether the plaintiff is in possession over the property mentioned in the plaint? If yes, its effect? (ii) Whether, on the basis of plaint averments, Will dated 26.04.2004 executed in favour of the defendant is liable to be declared as null and void? If yes, its effect? (iii) Whether the defendant has caused interference in the suit property? If yes, its effect? (iv) Whether the present suit is beyond the jurisdiction of this court? if yes, its effect? (v) Whether the court fees paid is insufficient? If yes, its effect? (vi) Whether the suit is barred by limitation? If yes, its effect? (vii) Whether the suit is bad due to mis-joinder and non-joinder of parties? If yes, its effect? (viii) Whether the suit is barred by principle of estoppel? If yes, its effect? (ix) Whether the suit is barred by Section 41 of Special Relief Act? If yes, its effect? (x) Relief? 5. The trial court decided issue nos.4 and 5 as preliminary issues. Issue no.5 was decided in favour of plaintiff/appellant and it was held that court fees paid is sufficient. 6. Issue no.4 was framed “Whether this court has jurisdiction to hear and decide the case?” The defendant/respondent filed objection and placed reliance upon several judgments of the Hon’ble Apex Court. The defendant raised contention that name of the plaintiff is not recorded in the revenue records and by way of present suit he is seeking relief of declaration of his rights over the property in dispute. He contended that the suit is barred by Section 331 of U.P.Z.A. & L.R. Act and the revenue court has only jurisdiction to decide the suit. He contended that the suit is barred by Section 331 of U.P.Z.A. & L.R. Act and the revenue court has only jurisdiction to decide the suit. In reply, the plaintiff stated that the Will, which he wants to declare as null and void, has been obtained by fraud because as per Muslim Law a Muslim cannot dispose of his more than 1/3 property to an unknown person without the consent of his family. 7. Learned trial court, after hearing the parties and upon perusal of record, arrived to the conclusion that the dispute is regarding agricultural land and the Personal Law is not applicable in the matter and specific provisions of U.P.Z.A. & L.R. Act would be applicable. Learned trial court also held that, on the basis of Will, name of respondent/defendant has been recorded in the revenue records and the petitioner is seeking relief for declaration of his rights over the property in dispute, which can only be granted by revenue court and the civil court has no jurisdiction to decide the suit. While doing so, learned trial court placed reliance upon Hon’ble Apex Court’s judgment rendered in the case of Kamla Prasad vs. Krishan Kant Pathak, 2007 (4) SCC 213 wherein it has been held that in respect of agricultural land, revenue court alone has jurisdiction to hear and decide the suit for declaration. Since the trial court had no jurisdiction to hear the suit, plaintiff’s suit was returned for filing the same in competent court of jurisdiction by impugned judgment and order dated 11.08.2011. 8. Being aggrieved by the judgment and decree dated 11.08.2011, plaintiff preferred Civil Appeal no.21 of 2011 in the court of District Judge, Nainital. Learned first appellate court, vide judgment and decree dated 30.05.2012, dismissed plaintiff’s appeal. Hence, this second appeal. 9. This second appeal was admitted on the following substantial question of law: “Whether Section 331 of the Uttar Pradesh Zamindari Abo lition and Land Reforms Act, 1951 actually barred the filing of the suit?” 10. For convenience, Section 331 of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951 is extracted hereunder: 331. Cognizance of suits, etc. 9. This second appeal was admitted on the following substantial question of law: “Whether Section 331 of the Uttar Pradesh Zamindari Abo lition and Land Reforms Act, 1951 actually barred the filing of the suit?” 10. For convenience, Section 331 of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951 is extracted hereunder: 331. Cognizance of suits, etc. under this Act.-(1) Except as provided by or under this Act no court other than a court mentioned in Column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908 (V of 1908), take cognizance of any suit, application, or proceedings mentioned in Column 3 thereof [or of a suit, application or proceedings based on a cause of action in respect of which any relief could be obtained by means of any such suit for application :] [Provided that where a declaration has been made under Section 143 in respect or any holding or part thereof, the provisions of Schedule II insofar as they relate to suits, applications or proceedings under Chapter VIII shall not apply to such holding or part thereof.] [Explanation.-If the cause of action is one in respect of which relief may be granted by the revenue court, it is immaterial that the relief asked for from the civil court may not be identical to that which the revenue court would have granted.] [(1-A) Notwithstanding anything in sub-section (i), an objection, that a court mentioned in Column 4 of Schedule II, or, as the case may be, a civil court, which had no jurisdiction with respect to the suit, application or, proceeding, exercised jurisdiction with respect thereto shall not be entertained by any appellate or revisional court unless the objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.] (2) Except as hereinafter provided no appeal shall lie from an order or decree passed under any of the proceedings mentioned in column 3 of the Schedule aforesaid: [(3) An appeal shall lie from any decree or from an order passed under Section 47 or an order of the nature mentioned in Section 104 of the Code of Civil Procedure, 1908 (V of 1908) or in Order 43, Rule 1 of the First Schedule to that Code passed by a court mentioned in column No.4 of Schedule II to this Act in proceedings mentioned in Column 3 thereof to the court or authority mentioned in column No.5 thereof. (4) A second appeal shall lie on any of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 (V of 1908) from the final order or decree, passed in an appeal under sub-section (3), to the authority, if any, mentioned against it in column 6 of the Schedule aforesaid.] 11. The Hon’ble Apex Court in Kamla Prasad case (supra) has held that a suit filed by a person for declaration of rights is not maintainable in the civil court. In paras-13 to 17 of the said judgment, it has been held as follows: “13. On second question also, in our view, Courts below were right in coming to the conclusion that legality or otherwise of insertion of names of purchasers in Record of Rights and deletion of name of the plaintiff from such record can only be decided by Revenue Court since the names of the purchasers had already been entered into. Only Revenue Court can record a finding whether such an action was in accordance with law or not and it cannot be decided by a Civil Court. 14. In this connection, the learned counsel for the appellant rightly relied upon a decision of this Court in Shri Ram & Anr. v. Ist Addl. Distt. Judge & Ors., (2001) 3 SCC 24 . In Shri Ram, A, the original owner of the land sold it to B by a registered sale deed and also delivered possession and the name of the purchaser was entered into Revenue Records after mutation. According to the plaintiff, sale deed was forged and was liable to be cancelled. In the light of the above fact, this Court held that it was only a Civil Court which could entertain, try and decide such suit. The Court, after considering relevant case law on the point, held that where a recorded tenure holder having a title and in possession of property files a suit in Civil Court for cancellation of sale deed obtained by fraud or impersonation could not be directed to institute such suit for declaration in Revenue Court, the reason being that in such a case, prima facie, the title of the recorded tenure holder is not under cloud. He does not require declaration of his title to the land. 15. He does not require declaration of his title to the land. 15. The Court, however, proceeded to observe: “The position would be different where a person not being a recorded tenure holder seeks cancellation of sale deed by filing a suit in the civil court on the ground of fraud or impersonation. There necessarily the plaintiff is required to seek a declaration of his title and, therefore, he may be directed to approach the revenue court, as the sale deed being void has to be ignored for giving him relief for declaration and possession”. 16. The instant case is covered by the above observations. The lower Appellate Court has expressly stated that the name of the plaintiff had been deleted from Record of Rights and the names of purchasers had been entered. The said fact had been brought on record by the contesting defendants and it was stated that the plaintiff himself appeared as a witness before the Mutation Court, admitted execution of the sale deed, receipt of sale consideration and the factum of putting vendees into possession of the property purchased by them. It was also stated that the records revealed that the names of contesting defendants had been mutated into Record of Rights and the name of plaintiff was deleted. 17. In the light of the above facts, in our opinion, the Courts below were wholly right in reaching the conclusion that such a suit could be entertained only by a Revenue Court and Civil Court had no jurisdiction. The High Court by reversing those orders had committed an error of law and of jurisdiction which deserves interference by this Court.” 12. Answer to substantial question of law:- A bare reading of explanation of Section 331 of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951 makes it abundantly clear that relief sought by the plaintiff in his suit, in fact, is for declaration of rights. Since the name of the plaintiff is not recorded in the revenue records, therefore, relief sought by the plaintiff is cognizable by the revenue court alone. My view is fortified by the decision of Hon’ble Apex Court rendered in the case of Kamla Prasad (supra). Since the name of the plaintiff is not recorded in the revenue records, therefore, relief sought by the plaintiff is cognizable by the revenue court alone. My view is fortified by the decision of Hon’ble Apex Court rendered in the case of Kamla Prasad (supra). The trial court as well as the lower appellate court has rightly arrived to the conclusion that revenue court alone has jurisdiction to decide the suit and has rightly returned plaintiff’s plaint for presentation before the appropriate court. There is no illegality or infirmity in the impugned judgments and decree passed by the courts below. No interference is therefore called for. Substantial question of law is decided against the plaintiff/appellant. 13. For the reason as discussed above, the second appeal lacks merit and the same is hereby dismissed. No order as to costs.