Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 413 of 2019 Petitioner :- Guddu @ Satya Prakash Sachan And Another Respondent :- Smt. Rajeshwari And Another Counsel for Petitioner :- Shailendra Singh Hon'ble Mrs. Sunita Agarwal,J.
The present petition is directed against the order passed by the trial court, whereby issue no.5 of the suit being barred by Section 331 of the U.P. Z.A. & L.R. Act' 1950, on the dispute raised by the defendants, has been decided in favour of the plaintiffs. The trial court has recorded a categorical finding of fact that as per own admission of the defendants, the suit property was being used for non-agricultural purpose for a long time. The plaintiffs have come out with the clear case and described the suit property in Schedule 'Ka' & 'Kha' of the plaint being used as "Sahan land". In the said scenario, the injunction suit cannot be said to be barred by Section 331 of the Act' 1950.
This finding recorded by the trial court has been affirmed in a revision vide order dated 11.07.2018.
Assailing the said findings, submission of learned counsel for the petitioners/defendants is that it is reflected from the records that the suit property is an agricultural land recorded as such in the revenue records. No declaration whatsoever had been made under Section 143 of the Act' 1950 and in absence of any such declaration, the jurisdiction of the civil court was barred. Moreover, only option left with the trial court was to frame an issue in exercise of power under Section 331-A of the Act' 1950 and remit the matter back to the Assistant Collector, Incharge of the Sub Division for decision on the said issue. The trial court was not competent to decide the nature of the suit property on its own on the dispute raised by the petitioner/defendants in the instant suit.
Having noticed the said submissions, it would be relevant to note the provisions as contained in Section 331 and 331-A of the Act' 1950. A careful perusal of the said provision indicates that a suit in relation to the property before the civil court, which is recorded as agricultural land, for the relief which could be obtained by means of any suit or application or proceedings mentioned in column no.3 of Schedule-II, by a court mentioned in column 4 of the said schedule is barred. Proviso to sub section (1) of Section 331 further states that where there is a declaration under Section 143 of the Act' 1950 in support of any holding or part thereof, the provision of Schedule- II, in so far as they relate to the suits, proceeding under Chapter 5, 6, 7 & 8 shall not apply, in as much as, the civil court would have jurisdiction to deal with such question, in relation to a land, which has been declared non-agricultural land under Section 143 of the Act' 1950.
Section 331-A further provides that if in any suit or proceeding, instituted in any court, the question arises as to whether the land in question is or is not used for purposes connected with agriculture and a declaration has not been made in respect of such land under Section 143 of the Act, the court shall frame an issue on the said question and send the record to the Assistant Collector Incharge of Sub Division, who after such reference may reframe the issue if necessary and proceed to decide the same for making declaration under Section 143 or 144, as the case may be. He shall, thereafter, return the record together with his finding to the court which recorded the issue. The referral court shall then proceed to decide the suit accepting the findings of the Assistant Collector, In-charge of the Sub Division on the issue referred before them.
Section 331 (1-A), further provides that the issue in relation to the jurisdiction of the civil court has to be raised at the earliest possible opportunity and in all cases where issue are settled at or before such settlement and such objection shall not be entertained by any authority or revisional court unless there has been a consequent failure of justice.
Thus, from a careful reading of the Sections 331, 331(1-A) and 331-A of the Act' 1950, this much is clear that in case an issue with regard to the nature of the suit property being used for non- agricultural purposes, without there being any declaration under Section 143 of the Act' 1950, is raised before the civil court, it has to frame an issue while exercising the power under Section 331-A and refer the same for adjudication by the competent authority namely Assistant Collector, Incharge of the Sub Division.
The question of jurisdiction i.e. object as to the maintainability of the suit, however, has to be raised by the defendants i.e. the person raising objection as to the maintainability of the suit at the earliest possible opportunity i.e. in all such cases where issues are settled, at or before such settlement.
The trial court has categorically recorded that the defendants/petitioners herein had taken a vague objection in the written statement that the suit is barred by Section 331 of the Act' 1950 but there is no assertion that there had been no declaration of the said land under Section 143 of the Act' 1950 being used for non-agricultural purpose, rather in the first paragraph of the written statement there is an admission on the part of the defendants that the suit property was being used for non-agricultural purposes for more than 25 years and that it was in possession of the defendants and they were using the same for their business purpose.
In the said scenario i.e. in view of the said admission of the defendants in the written statement, regarding the nature of the suit property being used for non-agricultural purposes, there was no occasion for the trial court to frame an issue in accordance with Section 331-A of the Act' 1950 and remit the same back for declaration/decision under Section 143 of the Act' 1950.
No infirmity is found in the decision of the trial court on issue no.05, in the instant suit.
The present petition is found devoid of merits and hence
dismissed.
Order Date :- 22.2.2019/Himanshu