Bhim Bahadur v. Vikram Singh

Servesh Kumar Gupta, J.:— Having heard learned Counsel of the parties, it transpires that Original Suit No. 229/1998 was launched on 7.7.1998 by Vikram Singh (plaintiff) against Bhim Bahadur and Smt. Lachhi Devi (sister of Bhim Bahadur) seeking the decree of prohibitory injunction, wherein the relief was sought that the defendants be restrained from taking unauthorised possession by way of encroachment on the disputed site. Such site has been shown to be located in Gram Bharuwala Grant, Pargana Central Doon, District Dehradun, bearing Khasra No. 615 (Minzumla New No. 87), area half bigha or 0.095 acre. Its boundaries have also been enumerated at the end of the plaint.

2. In paragraph 19 of the plaint, it was averred that the property, in question, is an agricultural land and so, it was evaluated for the purpose of Court Fee as well. On the other hand, the written statement was filed by the defendants and, in paragraph 7 of such written statement, it was pleaded that the land, in question, though has been shown to be situated in a Khasra, but there is a mention of Abadi as well and this Abadi land belongs to the defendants. The number of old house, which is in highly dilapidated condition, of the defendants was 74, which includes the property in dispute. However, in paragraph no. 16 of such written statement, the jurisdiction of the Civil Court was admitted.

3. The learned Trial Court on the basis of the rival averments formulated one of the issues, inter alia, as under:

“Whether the disputed site is agricultural in nature, as has been enumerated in the plaint or it is an Abadi site, as has been elucidated in the written statement?”

4. Learned Trial Judge vide his judgment dated 12.9.2005 adjudicated the same to the effect that the disputed site is an agricultural land, and not the Abadi because no declaration under Section 143 of the Uttar Pradesh Zamindari Abolition & Land Reforms Act (for short, hereinafter referred to as ‘UPZA & LR Act’) was ever made by any competent revenue authority. It was also shown that out of total area, 0.177 hectare was recorded as agricultural land because revenue records showed the crop of maize, wheat, etc. on such land; the area 0.040 hectare was adverted as Abadi.

5. When the appeal was preferred by the defendant Bhim Bahadur challenging the such finding of learned Trial Judge, the learned Appellate Court vide its judgment dated 11.9.2012 held that in both events, whether the disputed nature of land was Abadi or agricultural, the Civil Court has jurisdiction to adjudicate on the issue because the Civil Court was well competent to hear the suit seeking injunction in such matters, hence, there was no need to formulate such an issue. With these findings, the learned Appellate Court deleted the issue no. 3 altogether, whereagainst this second appeal has been preferred by the defendant. The following substantial questions of law were formulated:

“(i) Whether the jurisdiction aspect has rightly been considered by the Court below?

(ii) Whether the Courts below erred in not considering the mandatory provisions of Section 331 of the UPZA & LR Act?”

6. This Court has rendered hearing to learned Counsel of either party.

7. Learned Counsel of the appellant has relied upon the precedent of Hon'ble Apex Court rendered in Chandrika Singh v. Raja Vishwanath Pratap Singh, reported in 1992 AIR SC 1318, wherein it was held that the question whether the suit land is used or not used for the purposes connected with agriculture, horticulture or animal husbandry cannot be determined by the Civil Court. It is to be determined under the provisions of Section 143 or 144 or 331 of UPZA & LR Act.

8. Further, in another precedent Kamla Prasad v. Krishna Kant Pathak, reported in 2007 (102) RD 378, the Hon'ble Apex Court held that the question of possession of agricultural land could be decided only by the Revenue Court; Civil Court has no jurisdiction to give finding on possession over agricultural land.

9. That apart, learned Counsel on behalf of the appellant has drawn the attention of this Court towards the bare provisions of Section 331A, which 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 included 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 decided 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 subdivision 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 purpose of appeal, be deemed to be part of the finding of the court which referred the issue.”

10. On the other hand, learned Counsel on behalf of the respondents has vehemently argued that since the question of injunction has to be dealt with by the Court, so the Civil Court was well competent to adjudicate over the issue and, more so, when the defendants in their written statement have specifically admitted the jurisdiction of the Court to adjudicate the controversy.

11. In this regard, the law is well established to the effect that competency of the jurisdiction or the lack of the same in a particular Court cannot be determined by either of the parties through their pleadings, viz., the Court having jurisdiction under the law to decide a particular issue cannot be kept away from deciding the same on the basis of averments made by the parties and, in the same manner, the jurisdiction cannot be conferred on a particular Court on the basis of pleadings and admission thereof to decide a particular issue wherefor the law does not confer jurisdiction to the Court.

12. Section 331A is clear in its terms that when the nature of the land has been pleaded to be agricultural and the same has been denied in the rival contention, being pleaded as an Abadi, the issue must have been referred to as envisaged under Section 331A of UPZA & LR Act and this view has well been propounded even by the Hon'ble Apex Court in Chandrika Prasad case (supra).

13. That apart, even if the contention of learned Counsel for the respondents is taken into consideration for a moment, then also the settled proposition of law is that to seek the prohibitory injunction against anyone and granting of the relief to the plaintiff pre-supposes his possession over the land, in question, and the issue of possession on agricultural land could only be decided by the Revenue Court. Civil Court has no jurisdiction to give finding on possession over agricultural land and this view has been laid down in Kamla Prasad case (supra).

14. So, both ways, when the issue was framed that whether the land, in question, was agricultural or Abadi in nature, then the proper course for both the Courts below must have been to refer the matter under Section 331 of the UPZA & LR Act.

15. In view of what has been stated above, I answer the substantial question of law no. (i) in negative and the substantial question of law no. (ii) in positive. This second appeal stands allowed accordingly. Both impugned judgments of the Courts below dated 12.9.2005 and 11.9.2012 are hereby set aside. The matter is remanded back to the Civil Court to take the recourse of law, as has been discussed hereinabove.

16. Let the lower court record be also returned back.