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PETITIONER:

CHANDRIKA SINGH AND ORS.

Vs.

RESPONDENT:

RAJA VISHWANATH PRATAP SINGH AND ANR

DATE OF JUDGMENT22/04/1992

BENCH:

AGRAWAL, S.C. (J)

BENCH:

AGRAWAL, S.C. (J)

FATHIMA BEEVI, M. (J)

CITATION:

1992 AIR 1318 1992 SCR (2) 640

1992 SCC (3) 90 JT 1992 (3) 55

1992 SCALE (1)883

ACT:

U..P.Zamindari abolition and land reforms Act,1950:

Section 3(14),143,144,333(1) and 331-A: conditions of ap-

plicability of section 331-A-land comprising of building and

land surrounding the building whether falls within the

definition 'land '-jurisdiction over such matters-whether

vested with civil courts or revenue courts.

Civil Procedure code,1908:

Section 115-Revision-Civil Court exercising jurisdiction not

vested in it by statute-Illegality committed in exercise of

jurisdiction-Rectification of by High Court in exercise of

its Revision Jurisdiction -Need for.

HEADNOTE:

Respondents field a suit for possession of certain

property,stating that the father of appellant Nos.1 and 2

was in possession of the property as a care taker and that

after his death appellant Nos.1 and 2 continued in posses-

sion of the same and did not vacate inspite of promises;

instead they got their names entered in the records in

respect of the property the plaintiffs sought a decree for

ejectment as well as pendente lite and future damages for

use and occupation.The defendents-appellants contested the

suit claiming that it was not maintainable in the Civil

Court inasmuch as it related to agricultural land it was

also claimed that the entire area came within the definition

'land' since no declaration was made under section 143 of

the U.P.Zamindari Abolition and land reforms Act,1950.The

Civil judge observed that the land occupied by the building

or appurtenant thereto was excluded from the definition

'land'in the U.P.Tenancy Act,1939 and since the house was

there even prior to the commencement of the U.P.Zamindari

Abolition and land reforms Act,1950,the same is not applica-

ble He,therefore held the land to be abadi land,the Revenue

courts had no jurisdiction over it and the Civil Court Could

entertain the suit.

641

The appellants produced extracts of the relevant

Khatauni which showed the plaintiff as bhumidhar of the suit

property.The Civil judge help that reliance could not be

placed on these and observed that under the law if the land

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appurtenant to a building is being used for agricultural

purposes it would not lose its nature of land appurtenant to

building

The appellants preferred a Revision and the High Court

dismissed the same.Against the High Court's order,the

appellant preferred the present appeals by special leave.

On behalf of the appellants, it was contended that all

the three conditions stipulated in section 331-A of the

U.P.Zamindari abolition and Land Reforms Act,were fulfilled

in this case; that no declaration has been made under

section 143 or 144 of the Act in respect of the suit land;

that the question whether the land was used or not for

purpose of agriculture etc.ought to have been considered

since the respondents claimed that it was abadi landthat

there was no justification in ignoring the entry in the

relevant khatauni and entries in the revenue record;and that

the civil judge had no jurisdiction to decide issue nos.5

and 6.

On behalf of the respondents it was contended that

admittedly there was a building on the land in dispute and

since the land surrounding the building was appurtenant to

the building the entire area was abadi land.

Allowing the appeal,this court,

HELD:1.1.In order that section 331-A of the U.P.Zamindari

Abolition and Land reforms act,1950 may be invoked three

conditions must be satisfied,viz (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 and (iii) a declaration has

not been made in respect of such land under section 143 or

section 144.(650 A-C)

1.2.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

642

used for purposes connected with agriculture,horticulture or

animal husbandry. Such a determination is envisaged by sec-

tions 143 and 144 and where such a determination has not

been made in accordance with those provisions and this ques-

tion 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 provision 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 to 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 a suit in which

the said question arises to by pass the provision of section

331-A.and to proceed to determine the said question itself (

649 E-H;650 A )

1.3.This would be so even in a case where a building

exists on the land and the land is claimed to be appurtenant

to the building because in such a case it will be necessary

to determine the extent of the land that is appurtenant to

the building i e whether the entire land or only a part of

it is so appurtenant to the building and for that reason is

not held or occupied for purposes connected with agricul-

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ture,horticulture or animal husbandry. This determination

has to be made in accordance with the provisions of section

143 and 144 or section 331-A of the Act.( 651 E )

2. In the instant case the conditions for applicability of

the provisions of section 331-A were fulfilled. In view of

entry in the khatauni for the year 1377 Fasli (Ex.A-A) which

must be presumed to be correct in view of section 44 of the

U.P.Land revenue Act,1901 the said land was held by the

respondents as bhumidhar. The question whether the suit land

is or is not held for purposes connected with agriculture

arises in the suit filed by the respondents. There is no

declaration in relation to land in dispute under section 143

of the Act.(651 F,G)

3.It was not open to the civil court to decide on its

own,the question whether the said land was held or occupied

for purposes connected with agriculture horticulture or

animal husbandry and after holding that it is not so

held,refuse to follow the procedure laid down in section

331-A on the ground that the said provision has no applica-

tion to the land in dispute the only course which was open

to the civil judge was to frame

643

an issue on the question whether the in land dispute is or

is not used for purposes connected with agriculture, hortic-

uture or animal husbandry and send the record to the assist-

ant collector in charge of the subdivision for decision on

that issue and decide the suit in the light of the finding

recorded by the Assistant Collector on that issue. By decid-

ing this question himself the civil judge has exercised

jurisdiction not vested in him by law and in not following

the procedure laid down in section 331-A he has committed

illegality in exercise of his jurisdiction which error was

required to be rectified by the high court in exercise of

its revisional jurisdiction under section 115 CPC.( 651 H;

652 A-C)

4.The judgment and order of the high court and the order

passed by the civil judge are set aside. The civil judge is

directed to frame an issue on the question whether the suit

land is or is not used for purposes connected with agricul-

ture, horticulture or animal husbandry which includes pisci-

culture and poultry farming and after framing the said issue

send the record to the assistant collector in charge of sub

division for the decision on that issue ( 652 D-E )

JUDGMENT:

&

CIVIL APPELLATE JURISDICTION : Civil appeal no 3785 of 1983.

Form the judgment and order dated 2.4.1980 of the Allaha-

bad high court in civil revision No 3770 of 1978.

J.P.Goyal T.N.singh B.M.Sharma and S.N.Singh for the Appeal

lants.

Yogeshwar Prasad Mrs.Rani Chhabra and Ms.Rachana Gupta for

the Respondents

The judgement of the court was delivered by

S.C.AGRAWAL,J.This appeal by special leave is directed

against the judgment of the Allahabad High Court dated April

2,1980.It raises the question whether the civil court has

jurisdiction to decide the issue whether the land in dispute

in a suit or proceeding before it is a abadi land or some

other land. It involves the interpretation of section 331-A

of the U.P.Zamindari Abolition and land reforms Act.1950

(U.P.Act No.1 of 1951) hereinafter referred to as'the Act.

644

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The dispute relates to a plot of land bearing settle-

ment No. 141/176-177 situate within the limits of Municipal

Corporation of Varanasi. The said land consists of a resi-

dential house, Shiwala (temple), pucca well and open land

enclosed by a boundary wall. In the municipal records, it is

numbered as 18/106, Mohalla Sarang Talab, Varanasi. Respond-

ents Nos. 1 and 2 filed a suit (No.157 of 1973) for posses-

sion of the said property in the court of Civil Judge,

Varanasi against the appellants wherein it was alleged that

Aparbal Singh, father of appellant no.1, and Chandra Deep

Singh (deceased), who was appellant no.2, in the appeal and

is now represented by his legal representatives, was in

possession of the said property as a care-taker and he was

managing the same of behalf of the plaintiffs and after the

death of Aparbal Singh, appellants nos.1 and 2 continued in

possession of the same but they did not vacate the said

property in spite of promises and on the other hand, they

got their names entered in the records in respect of the

said property. The plaintiffs sought a decree for ejectment

as well as pendente lite and future damages for use and

occupation. The said suit was contested by the defendants.

In the written statement, it was claimed that the suit was

not maintainable in the civil court inasmuch as it related

to agricultural land. It was stated that the total area of

the disputed property is 4 Bighas 10 biswas (2.92 acres) out

of which the residential house, pucca well and the land

appurtenant to the house cover in area of 10 Biswas and the

rest of the land measuring about 4 Bighas was being culti-

vated by the defendants. It was also claimed that the entire

area comes within the definition of 'land' since no declara-

tion was made under section 143 of the Act. It was also

claimed that Aparbal Singh and Alpanath Singh, father of

defendants nos. 3 and 4, having equal share in the land

became sirdars and after the death of Aparbal Singh, Alpa-

nath is in possession as owner Sirdar of the said land. In

the view of the said pleadings, the Civil Judge framed

Issues Nos. 5 and 6 which are as under:

Issue No.5 : Is suit land agricultural land as defined

in U.P. Act, 1951 ?

Issue No.6 : Is the suit triable by this Court so far

as suit land is concerned ?

The said issues were tried as preliminary issues and

were decided in favour of the plaintiffs-respondents and

against the appellants by the Civil Judge-I, Varanasi by his

order dated September 14, 1978. The Civil Judge

645

held that in the written statement dated September 31, 1983,

it has been alleged by the defendants-appellants that about

23 years back, the disputed house was in a very dilapidated

condition and that Aparbal Singh and Alpanath Singh invested

about Rs.15,000 and made the house habitable. On the basis

of the said allegation in the written statement, the Civil

Judge held that the disputed property had a house, though in

a dilapidated condition, before July 1,1952 the date of the

enforcement of the Act and he considered the matter in the

light of the provisions contained in the U.P. Tenancy Act,

1939. After referring to the definition of 'land' contained

in Section 3(1) (0) of the said Act, the Civil Judge ob-

served that the land occupied by building or appurtenant

thereto was excluded from the said definition and, there-

fore, the disputed property did not come within the defini-

tion of land as defined in the U.P.Tenancy Act and was abadi

and it was not land as defined in the Act and the revenue

court's have got no jurisdiction and the suit could be

entertained by the Civil Court. The defendants-appellants

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produced extract of Khatauni for the year 1377 Fasli (Ex.A1)

wherein the plaintiffs have been recorded as bhumidar of the

suit property. The copies of the revenue record (Exs. 2 to

5) were also produced. The civil Judge held that the said

entries were useless and no reliance could be placed on

them. It appears that the property in dispute was also

inspected by the Amin, who prepared a map and submitted his

report wherein it was stated that the suit property is

enclosed by a boundary wall and land appurtenant to the

building has been shown as being used for agricultural

purposes also. While dealing with the said report of the

Amin, the Civil Judge observed that under law if the land

appurtenant to a building is being used for agricultural

purposes, it will not lose its natured of being land appur-

tenant to building. Feeling aggrieved by the said order of

the Civil Judge, the appellants filed a revision in the High

Court which was dismissed by the High Court. Agreeing with

the Civil Judge the High Court has held that the suit land

was appurtenant to a building and a Shiwala and was not

being held or occupied for purposes connected with agricul-

ture, horticulture or animal husbandry and hence, prime

facie, it was not land as defined in the Act and, therefore,

Section 331-A had no application. The High Court also ob-

served that the lower court had rightly refused to rely on

the revenue records from 1960 onwards which showed that the

land was recorded as the plaintiffs' bhumidari because on

the defendants' own pleadings the land was appurtenant to a

house and was rightly held to be abadi property in respect

of which civil court continued

646

to retain jurisdiction and try disputed title.

By order dated April 4, 1983 leave to appeal has been

limited to the question whether the court had jurisdiction

to decided the issue whether the land is abadi land or some

other land.

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-s.(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."

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Section 144 provides for making of similar declaration

where land held by a bhumindar which is not used for pur-

poses connected with agriculture, horticulture or animal

husbandry has become land used for such purposes.

647

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 con-

tained 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.

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

648

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 S.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

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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."

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 s.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 provi-

sions of Chapter VIII (except s.143) cease to apply to the

bhumidhar with transferable rights with respect to such

land.

Section 331-A deals with a situation where a suit

relating to land held

649

by a bhumidhar has been instituted in any court and a ques-

tion 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 ss.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 opera-

tive. Section 331-a is 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 s.143 or

s.144, as the case may be. The court in which the suit is

pending has to decide the suit accepting the finding record-

ed 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.

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. 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

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a suit, it is required to be determined in accordance with

the provisions of s.331-A The scheme of the provisions

contained in s.143, s.144 and s.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 s.143 or s.144 and where no

such determination has been made, it should be determined by

following the procedure laid down in s.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

650

the said question itself.

In order that s.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; and

(iii) a declaration has not been made in respect of

such land under s.143 or s.144.

Shri J.P. Goyal, the learned counsel appearing for the

appellants, has submitted that in the present case all the

three conditions are fulfilled. The respondents are

recorded as Bhumidhar in respect of the suit land and,

therefore, the said land is held by a bhumidhar. The

question whether the land in question was used or not used

for purposes connected with agriculture, horticulture or

animal husbandry which includes pisciculture and poultry

farming arises for consideration in the suit filed by the

respondents because the respondents claim that it is Abadi

land. No declaration has been made in respect of that suit

land under s.143 or s.144. Shri Goyal has urged that in the

circumstances, it was incumbent upon the Civil Judge to

frame an issue on the question and sent the same to the

Assistant Collector in-charge of the sub-division for the

decision on that issue as required by sub-section(1) of

Section 331-A and the Civil Judge could not himself decide

the said question while dealing with issues nos.5 and 6.

Shri Goyal has, therefore, contended that the order passed

by the Civil Judge deciding issues no 5 and 6 was an order

passed without jurisdiction and the High Court has erred in

not interfering with the same in revision. Shri Goyal has

also urged that presumption of correctness attaches to

record of rights under section 44 of the U.P. Land Revenue

Act, 1901 and that the Civil Judge and the High Court were

not justified in ignoring the entry in the khatauni for 1377

F (Exh-A-1) and copies of the entries in the revenue record

(Exh.2 to Exh.5).

Shri Yogeshwar Prasad, the learned counsel appearing

for the plain-tiffs-respondents has laid stress on the

expression "relating to land" in sub-section (1) of s.331-A

and has urged that the term `land' has to be given

651

the meaning as contained in s.2(14) of the Act and it was

competent for the Civil Judge to consider whether the suit

land is land as defined in s.2(14) of the Act and it could,

therefore, go into the question whether the land in dispute

was held or occupied for purpose connected with agriculture,

horticulture or animal husbandry. The submission of Shri

Yogeshwar Prasad is that admittedly there is a building on

the land in dispute, and since the land surrounding the

building is appurtenant to the building the entire area has

been rightly held to be abadi by the Civil Judge as well as

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the High Court.

We are unable to agree with the said sub mission of

Shri Yogeshwar Prasad. In our opinion, the question as to

whether a particular land is "land" under section 2(14) of

which the provisions of the Act are applicable would require

determination of the question whether the land is held or

occupied for purposes connected with agriculture, horticul-

ture or animal husbandry and that is a matter which has to

be determined either in accordance with the provisions of

ss.143 and 144 and if such a determination has not been made

and such a question ariseds or is raised in a suit before a

court, the procedure laid down in s.331-A must be followed

by the Court. This would be so even in a case where a build-

ing exists on the land and the land is claimed to be appur-

tenant to the building because in such a case it will be

necessary to determine the extent of the land that is appur-

tenant to the building, i.e. whether the entire land or only

a part of it is so appurtenant to the building and for the

reason is not held or occupied for purposes connected with

agriculture, horticulture or animal husbandry. This determi-

nation has to be made in accordance with the provisions of

Sections 143 and 144 or Section 331-A of the Act.

In the instant case we find that the conditions for

applicability of the provisions of section 331-A were

fulfilled. In view of entry in the Khatauni for the year

1377F (ex.A-1) which must be presumed to be correct in view

of Section 44 of the U.P. Land Revenue Act, 1901, the said

land was held by the respondents as Bhumidhar. The question

whether the suit land is or is not held for purposes

connected with agriculture arises in the suit filed by the

respondents. There is no declaration in relation to land in

dispute under Section 143 of the Act.

It was, therefore, not open to the Civil Judge to

decide, on its own, the question whether the said land was

held or occupied for purposes

652

connected with agriculture, horticulture or animal husbandry

and after holding that it is not so held refuse to follow

the procedure laid down in s.331-A on the ground that the

said provision has no application to the land in dispute.

The only course which was open to the Civil Judge was to

frame an issue on the question whether the land in dispute

is or is not used for purposes connected with agriculture,

horticulture or animal husbandry and send the record to the

Assistant Collector in-charge of the sub-division for deci-

sion on that issue and decide the suit in the light of the

finding recorded by the Assistant Collector on that issue.

By deciding this question himself the Civil Judge has exer-

cised jurisdiction not vested in him by law and in not

following the procedure laid down in section 331-A he has

committed illegality in exercise of his jurisdiction which

error was requried to be rectified by the High Court in

exercise of its revisional jurisdiction under section 115

CPC.

The appeal is, therefore, allowed. The judgment and

order of the High Court of Allahabad dated April 2, 1980 and

the order dated September 14, 1978 passed by the Civil

Judge-I, Varanasi are set aside and the Civil Judge is

directed to frame an issue on the question whether the suit

land is or is not used for purposes connected with agricul-

ture, horticulture or animal husbandry which includes pisci-

culture and poultry farming and after framing the said issue

send the record to the Assistant Collector in-charge of the

sub-division for the decision on that issue. There will be

no order as to costs.

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G.N. Appeal allowed

653