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2021 DIGILAW 6 (UTT)

Shalini Sharma v. Premlata Sharma

2021-01-05

SHARAD KUMAR SHARMA

body2021
JUDGMENT This is a plaintiff's second appeal, where the plaintiff/appellant has given a challenge to the impugned judgments dated 08.08.2018, as rendered by the court of Civil Judge (Jr. Div.), Dehradun in O.S. No.221 of 2017, Smt. Shalini vs. Premlata and others whereby, by virtue of the judgment, which was rendered by the trial court the plaintiff/appellant's, suit was dismissed on the ground of a bar being created by Order 7 Rule 11(d) of C.P.C., to be read with Section 331 of the U.P. Zamindari Abolition and Land Reforms Act. Subsequently on a challenge being given to the said judgment of the Trial Court, by the plaintiff/appellant in an appeal under Section 96 of the Code of Civil Procedure, which was registered as Civil Appeal No.112 of 2018, Smt. Shalini Sharma vs. Premlata and others, the court of IIIrd Additional District Judge, Dehradun, too had dismissed the first appeal by the impugned judgment of 19.04.2019 and consequently has affirmed the finding and the reasoning, which had been recorded by the learned trial court vide its judgment of 08.08.2018. The second appeal when it was heard on admission stage, the second appeal was admitted on the substantial question of law; as was framed by this Court vide order dated 26.06.2019, which was to the following effect:- "1. As to whether both the courts erred at law in not framing an issue under Section 331A and referred the matter for its consideration before the Assistant Collector in view of the provisions contained under Section 331A. 2. Whether the Civil Court could have decided the matter pertaining to the maintainability of the proceedings by appreciating the evidence and, particular, the implications of Section 143 and the consideration of the revenue entries made in the revenue records. 3. Whether the appellate court could have while considering the implications flowing from the trial courts judgment in dismissing the suit under Order 7 Rule 11(d) of the CPC could have ventured beyond the scope of the trial court's judgment by recording its findings pertaining to the implications of Section 171 of the U.P. Zamindari Abolition and Land Reforms Act." 2. Whether the appellate court could have while considering the implications flowing from the trial courts judgment in dismissing the suit under Order 7 Rule 11(d) of the CPC could have ventured beyond the scope of the trial court's judgment by recording its findings pertaining to the implications of Section 171 of the U.P. Zamindari Abolition and Land Reforms Act." 2. This is the nature of the case, where the second appellate court while answering the substantial question of law has to maintain the delicacy and a precaution too, of not venturing into the merits of the matter where the question of jurisdiction is to be decided which relates to the sustainability of the suit preferred by the plaintiff/appellant. The precise argument of learned counsel for the plaintiff/appellant; was that the suit instituted by the plaintiff/appellant before the learned trial court on 28.07.2017, when the learned trial court was venturing on to the question, for attracting the provisions contained under Order 7 Rule 11(d) of C.P.C., it ought not to have ventured to decide the matter on the basis of the inter-se pleading raised between the parties and it was expected and it ought to have exclusively confined to the pleadings raised in the plaint itself. Secondly, he submits that since on the basis of the rival contentions, which were raised before the learned trial court; where the question of maintainability of the suit came into consideration and since as per plaintiff/appellant it was a disputed question, then in that eventuality, it was incumbent on the learned trial court to have referred the matter to be answered for by the court of Assistant Collector under Section 331(A) of U.P. Zamindari Abolition and Land Reforms Act. 3. 3. During the course of argument, what has emerged and which remains undisputed and admitted by the counsel for the parties are that:- i That the land in dispute which was the subject matter of the suit; that is land lying in Khata No.00731, Khasra No. 1812 Ka and Khasra No. 1869 Ka having a total area of 0.4140 of hectares situated in village Ajabpur Kalan, District Dehradun was and is still a land which still continues to be recorded in Shreni I, which is a class of land provided under the Land Record Manual, to be read with Section 129 of U.P. Z.A. and L.R. Act, it would be land covered by the definitions of land provided under Section 3(14) of U.P. Z.A &L.R. Act. ii. The second admitted fact between the parties which has emerged during the course of arguments is that over which there is no dispute that there happens to be no declaration of a change of user of property as contemplated under Section 143 of U.P. Zamindari Abolition and Land Reforms Act. iii. Thirdly, after having heard the learned counsel for the parties and having gone through the pleadings which had been raised in the plaint and particularly the averments, which have been made with regards to the apportionment of share, as claimed in the plaint, having been devolved from their predecessors, coupled with the fact that there had been an averment that there was no partition as such, and the plaintiff/appellant has claimed a share to the extent of 1/6th of the share of the Estates and consequently they had modulated the decree in the following manner:- ^^d½ okfnuh ds 1@6 vfoHkkftr Hkkx dks vyx dj mldks mldk rUgk dCtk fnyk;k tk;sA [k½ leLr okn O;; okfnuh dks izfroknhx.k ls fnyk;k tk;sA x½ vU; izfrdkj tks ekuuh; U;k;ky; mfpr le>s] okfnuh dks izfroknhx.k ds fo:) fnyk;k tk;sA^^ 4. On an exclusive reading of the plaint itself, which this Court is conscious to consider, while answering the question of Order 7 Rule 11 (d) and the bar of Section 331, which is attracted of the U.P. Zamindari Abolition and Land Reforms Act, I am of the view that the divesting of the Estate of deceased Late Mr. On an exclusive reading of the plaint itself, which this Court is conscious to consider, while answering the question of Order 7 Rule 11 (d) and the bar of Section 331, which is attracted of the U.P. Zamindari Abolition and Land Reforms Act, I am of the view that the divesting of the Estate of deceased Late Mr. Jay Prakash Sharma, of which the plaintiff/appellant, claims to be his daughter, has sought the apportionment of share to the extent of 1/6th share, obviously, it entails a determination of a partition, which would be falling within the ambit of the provisions contained under Section 176 of U.P. Zamindari Abolition and Land Reforms Act and as soon as the status of the land having been recorded as Shreni I Ka, is a fact, which is admitted, irrespective of the fact and the distinction, which has been sought to be carved out by the counsel for the plaintiff/appellant that the land, in fact as on today is not being used for any of the purposes as defined and covered under Sub Section (14) of Section 3 of the U.P. Zamindari Abolition and Land Reforms Act, that would partake the shape of property in question to be falling within the ambit and scope of Section 9 of the C.P.C. to be considered by the regular Civil Court; is not acceptable by this Court. 5. 5. This Court need not to refer and answer the question that irrespective of the manner in which the property has been put to use, so far it continues to be recorded in the revenue records, in the class of tenure holdership as defined under Section 129 of U.P. Zamindari Abolition and Land Reforms Act and is a Shreni I land, its status is still continues to fall to be a land covered under the U.P. Zamindari Abolition and Land Reforms Act and any relief of partition of a share being claimed and derived from the principal tenure holder, would be barred by the provisions contained under Section 176 for the reason being that the determination of share, which the petitioner has claimed by way of decree to the extent of 1/6th share would obviously, entail the element of declaration also as to the entitlement by succession, which yet again would be falling within the domain of the revenue courts and the proceedings before the civil court with regards to the nature of decree sought would be exclusively barred by Section 331 of U.P. Z.A. &L.R. Act. 6. The counsel for the appellant had harped upon that it was mandatory for the court, that where the question arises as to whether the suit is maintainable or not and a factual determination is required to be made entailing the consideration of Order 7 Rule 11(d), then the Court is bound to have referred the question to be answered by the Assistant Collector as mandated under Section 331(A) U.P. Zamindari Abolition and Land Reforms Act; is mandatory in nature, is not acceptable by this Court. There is logic behind it. There is logic behind it. The provisions contained under Section 331-A U.P. Zamindari Abolition and Land Reforms Act; has been incorporated by the legislature in a special statute in order to deal with the such type of contingency; where there is a doubt at all, but when on the simple reading of the plaint arises a controversy to determine the nature of land and its ultimate consequences and impact on maintainability of a suit it is where the court feels that in a peculiar facts and circumstances, in a given case is not in a position to decide, as to whether the suit would lie before the civil court or the revenue court, the provisions contained under Section 331-A U.P. Zamindari Abolition and Land Reforms Act; takes the shape of an enabling provision for the court to come to a conclusion because it contemplates a return of finding therein by the Assistant Collector, after determining the question of the nature of land and the maintainability of proceedings. 7. Since I, after having heard the counsel for the parties and after having gone through the plaint and considering the nature of relief sought, the nature of land involved in the litigation and as per the own case of the plaintiff/appellant, which has been admitted here during the course of argument with regards to the nature, with which the land has been recorded in the revenue records, I am of the view that the judgments rendered by both the courts below holding the suit of plaintiff/appellant to be barred by Section 331 of U.P. Zamindari Abolition and Land Reforms Act is absolutely justified because even this Court after going through the plaint is of a confirmed opinion that the nature of the decree sought for entails an element of declaration and apportionment of share of property in relation to an agricultural land, which could only be cognizable by the courts created under the U.P. Zamindari Abolition and Land Reforms Act and not by the regular Civil Court. Accordingly, the question as framed at the time of admission of second appeal is answered against the plaintiff/appellant and in favour of the defendants/respondents holding thereof that the suit would be barred by Order 7 Rule 11(d) to be read with Section 331 of U.P. Zamindari Abolition and Land Reforms Act. Consequently, the second appeal lacks merits and the same is accordingly dismissed. 8. Consequently, the second appeal lacks merits and the same is accordingly dismissed. 8. The substantial questions as framed are answered accordingly, against the plaintiff/appellant.