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2022 DIGILAW 383 (ALL)

Adya Shanker v. Raj Karan

2022-03-15

SIDDHARTH

body2022
JUDGMENT : Siddharth, J. 1. Heard Sri Alok Kumar Yadav, learned counsel for the petitioners and Sri Vipin Bihari, Advocate appearing on behalf of respondent No. 1. 2. This petition has been filed under Article 227 of the Constitution of India praying for setting aside the judgment and order dated 3.2.2009 and 3.3.2009 passed by the trial Court and revisional Court in Original Suit No. 217 of 2009 and in Misc. Case No. 33 of 2009 respectively. 3. Further prayer has been made for a direction to the Civil Judge (Senior Division), Bhadohi, Gyanpur, District-Sant Kabir Nagar to remit issue No. 2 for trial before the Assistant Collector Incharge as per Section 331-A of U.P. Zamindari and Abolition of Land Reforms Act, 1950. 4. The case of the petitioners is that they alongwith respondents IInd set have constructed their houses over plot No. 77 Kha (Old No. 993/1983, area 3.17 hectares) situated in Village Godhna, Taluka Kond, Tehsil Gyanpur, District-Sant Ravidas Nagar. The defendants Ist set tried to demolish their houses in the year 2003 and then on enquiry, it was found that the defendants Ist set has got his name entered into revenue record fraudulently. Hence, the suit was instituted before the trial Court praying for a decree of mandatory injunction against the defendant/respondent Ist set. The defendant-respondent Ist set filed his written statement claiming that he is bhumidhari of the property in dispute on the basis of revenue record of the year 1970 fasli. 5. On the basis of the pleadings of the parties, the trial Court framed issues in the suit. The second issue framed was as to whether the suit of the plaintiff is barred by Section 331-A of the U.P.Z.A & L.R. Act. 6. The plaintiffs-petitioners filed an application (68-ga) praying that the aforesaid issue may be referred to the Assistant Collector Incharge of the Sub-Division for decision as per Section 331-A of the Act aforesaid but the trial Court rejected the same on the ground that the same shall be considered after the evidence is led by the parties. 7. Aggrieved by the aforesaid order, a revision was preferred which was dismissed on the ground of maintainability and hence the petitioners are before this Court. 8. 7. Aggrieved by the aforesaid order, a revision was preferred which was dismissed on the ground of maintainability and hence the petitioners are before this Court. 8. Learned counsel for the petitioners has submitted that the Section 331-A of the U.P.Z.A & L.R. Act makes it mandatory for the Court, other than the Court of Assistant Collector, that if an issue arises in a suit as to whether any land is being used as agricultural land or abadi land, such an issue is required to be referred to the Assistant Collector Incharge of the Sub-Division as per the procedure laid down in the Section. 9. He has further submitted that the aforesaid provision is mandatory as per the judgment of the Hon'ble Supreme Court in the case of Chandrika Singh vs. Raja Vishwanath Pratap Singh and Others, AIR 1992 SC 1318 and also the judgment of this Court in the case of Ramraj vs. Board of Revenue, 2006 (100) RD 150, Para 6. 10. Learned counsel for the respondent Ist set has submitted that the application 68-ga filed by the plaintiffs-petitioners was rightly rejected by the trial Court and affirmed by the revisional Court holding that only after the evidence is led by the parties, it would be decided whether to send the issue No. 2 for decision to the Assistant Collector or not. He has submitted that the writ petition was dismissed by the order dated 17.8.2009 by this Court but the order was reviewed on 21.4.2011 by this Court on review petition of the plaintiffs-petitioners. He has further submitted that the petitioners are only delaying the proceedings of the suit by filing this petition. 11. After hearing learned counsels for the parties, it is clear that counsel for the defendants-respondents Ist set has not replied to the arguments made regarding the mandatory requirement of compliance of Section 331-A of the U.P.Z.A & L.R. Act. A perusal of the judgment of the Apex Court in the case of Chandrika Singh and others (Supra) shows that whenever the dispute is raised regarding the nature of the land being abadi or agricultural, the provisions of Section 331-A of the U.P.Z.A & L.R. Act are required to be mandatorily complied. 12. Paragraph Nos. 5 to 12 of the judgment of the Apex Court in the case of Chandrika Singh (Supra) are relevant and are quoted herein-below: ''5. 12. Paragraph Nos. 5 to 12 of the judgment of the Apex Court in the case of Chandrika Singh (Supra) are relevant and are quoted herein-below: ''5. The expression ''Land'' is defined in clause (14) of Section 3 as follows: ''Land' except in Sections 109, 143 and 144 and Chapter VII means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming''. Section 143 Provides as under: ''143. Use of holding for industrial or residential purpose - (1) Where a bhumidhar with transferable rights uses his holding or part thereof for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming, the Assistant Collector in charge of the sub-division may, suo moto or on an application, after making such enquiry as may be prescribed, make a declaration to that effect. (I-A) Where a declaration under sub-section (1) has to be made in respect of a part of the holding the Assistant Collector in charge of the sub-divisions may in the manner prescribed demarcate such part for the purposes of such declaration. (2) Upon the grant of the declaration mentioned in sub-section (1) the provisions of this Chapter (other than this section) shall cease to apply to the bhumidhar with transferable rights with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject.'' 6. Section 144 provides for making of similar declaration where land held by a bhumindar which is not used for purposes connected with agriculture, horticulture or animal husbandry has become land used for such purposes. 7. The bar to the jurisdiction of Civil Court is contained in Section 331(1) which provides as under: ''331 Cognizance of suits, etc. under this Act: (1) Except as provided by or under this Act no Court other then 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 or application''. Provided that where a declaration has been made under Section 143 in respect of 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. 8. Section 331-A prescribes the procedure to be followed by the Court when a plea that the land is not being used for purposes connected with agricultural, horticulture or animal husbandry arises or is raised in any suit relating to land held by a bhumidhar. It 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 in-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. (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 sub-division on the issue referred to it shall, for the purposes of appeal, be deemed to be part of the finding of the Court which referred the issue.'' 9. The aforesaid provisions show that under Section 331(1) exclusive jurisdiction in respect of suits, applications and proceedings referred to in Schedule II of the Act has been conferred on the Courts specified in the said Schedule and the said proceedings, suits and applications cannot be entertained, by the Civil Courts. The proviso to Section 331(I) lifts the said bar in relation to any holding or part thereof where a declaration has been made under Section 143. Section 143 empowers the Assistant Collector after making such enquiry as may be prescribed, to make a declaration that a holding or part thereof is being used or held by a bhumidhar for purposes not connected with agriculture, horticulture or animal husbandry. Where such a declaration is made in respect of a part of the holding, the Assistant Collector is required to demarcate the said part. The effect of the grant of such a declaration is that the provisions of Chapter VIII (except s.143) cease to apply to the bhumidhar with transferable rights with respect to such land. 10. Section 331-A deals with a situation where a suit relating to land held by a bhumidhar has been instituted in any Court and a question arises or is raised whether the land in question is used or is not used for purposes connected with agriculture, horticulture or animal husbandry and a declaration has not been made in respect of such land under Sections 1433 or 144 of the Act. Since there is no declaration under Section 143 the proviso to sub-section (1) of Section 331 would not be applicable and the bar to the jurisdiction of the Court placed under sub-section (1) of Section 331 would be operative. Since there is no declaration under Section 143 the proviso to sub-section (1) of Section 331 would not be applicable and the bar to the jurisdiction of the Court placed under sub-section (1) of Section 331 would be operative. Section 331-ais intended to serve the same purpose as Section 143 and this is done by requiring the Court to frame an issue on the said question and send the record to the Assistant Collector in-charge of the sub-division for the decision on that issue only and by laying down that the Assistant Collector shall decide the said issue in the manner laid down for making a declaration under Section 143 or Section 144, as the case may be. The Court in which the suit is pending has to decide the suit accepting the finding recorded by the Assistant Collector in-charge of the sub-division on the issue referred to it but the said finding can be challenged in appeal against the decision of the said Court. This would mean that when there is no declaration under Section 143 the bar to jurisdiction of Courts placed under sub-section (1) of Section 331 can be lifted by following the procedure laid down in Section 331-A. 11. In respect of Abadi land it is implied that the land is not being used for purposes connected with agriculture, horticulture or animal husbandry and in view of the definition of 'land' contained in Section 2(14) of the Act such land is not land for the purpose of the Act. 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. 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 Sections 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 Section 331-A The scheme of the provisions contained in Section 143, 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 be determined either under Section 143 or Section 144 and where no such determination has been made, it should be determined by following the procedure laid down in Section 331-A. It is not open to a Court dealing with suit in which the said question arises to by pass the provisions of Section 331-A and to proceed to determine the said question itself. 12. In order that Section 331-A may be invoked the following conditions must be satisfied: (i) the suit must relate to land held by a bhumidhar. (ii) the question whether the land in question is or is not used for purposes connected with agriculture, horticulture or animal husbandry should arise or be raised in the said suit. (iii) a declaration has not been made in respect of such land under Section 143 or Section 144. 13. The same view has been taken by this Court again in the case of Ramraj vs. Board of Revenue (Supra) wherein a reference to paragraph No. 6 would be relevant which is as follows: ''For a bare reading of the aforesaid section, it is clear that if a question arises whether the land in question is or is not being used for the purpose connected with agriculture; horticulture or animal husbandry, which includes pisciculture and poultry framing, and a declaration has not been made in respect of the land under Section 143 or 144, the Court shall frame an issue on the question and send it to the Assistant Collector in charge of the sub-division for the decision of that issue only. The proviso to sub-section (1) provides that if 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 provision of Section 113 or 144 as the case may be. It is thus clear that it is the Assistant Collector in charge of the sub-division who is empowered by the provision of the enactment to decide the issue relating to the question as to whether the land in dispute will be covered within the definition of the land given under the Act or not. There appear to be force in the argument of the learned counsel for the petitioner that this issue was wrongly referred to the sub-divisional officer are the same ought to have been decided by respondent No. 3 himself where suit was pending. This aspect of the matter was raised before the Board of Revenue but it has failed to consider the effect of the same.'' 14. A perusal of the aforesaid authorities on this point shows that the provisions of Section 331-A of the U.P.Z.A & L.R. Act were required to be complied in this case which has not been done by the trial Court. 15. The orders impugned are hereby quashed. The trial Court is directed to sent the issue No. 2 for trial to the Assistant Collector Incharge of the Sub-Division and he shall take evidence and shall after taking evidence thereon, return the record together with his findings to the trial Court within a period of six month from the date of reference. 16. The writ petition is allowed with the aforesaid directions.