Heard learned counsel for the appellant as well as Shri M.K. Gupta, learned counsel for the respondents.
In this Second Appeal on 19.12.2011 following order was passed:-
"This fresh appeal was heard in admission before lunch and I was of the tentative opinion that suit was cognizable before the Civil Court and the Civil court had wrongly rejected the plaint under Order 7 Rule 11 C.P.C. hence appeal deserved admission. I also gave a particular suggestion to the learned counsel for both the parties for settlement of the dispute and the matter was postponed till after lunch. Now after lunch Shri M.K.Gupta, learned counsel for the respondents who has appeared through caveat states that the case may be taken up as fresh on 21.12.2011 in order to enable him to consult his client and make some statement regarding final disposal of appeal.
Accordingly, put up on 21.12.2011 as fresh."
This is plaintiff's Second appeal arising out of Original Suit No.1117 of 2008. Additional Civil Judge (Junior Division), Court No.7, Mathura through judgment and decree dated 2.9.2009 rejected the plaint under Order 7 Rule 11 C.P.C. Against the said judgment and decree plaintiff filed Civil Appeal No.39 of 2009 which was dismissed by Additional District Judge, Court No.2, Mathura on 12.10.2011 hence this Second Appeal.
On 19.12.2011 I was of the opinion that following substantial question of law was involved in the Second Appeal:-
Whether suit was not maintainable before the Civil Court?
The plaintiff's case was that property in dispute was part of plot no.230 (old plot no.439-M) previous owner/Bhoomidhar of which was Ved Ram son of Paima who divided the said plot into smaller sub-plots for the purposes of abadi and sold one sub-plot in favour of the plaintiff for Rs.1,50,000/- through registered sale deed dated 9.3.1998. The suit was filed regarding that sub-plot. It was further pleaded that plaintiff after purchasing the property got the sub-plot in dispute surrounded by boundary wall and constructed a stall from which he was selling tea, bidi, cigrate and paan. It was further pleaded that consolidation was going on in the area in question and on the basis of the sale deed name of the appellant was entered in the revenue record (C.H. Form 23). It was further pleaded that consolidation proceedings were suddenly stopped in the middle and as meanwhile Ved Ram had died hence in the revenue records ( after stopping of the consolidation) names of sons of Ved Ram were entered in the revenue record i.e. of Prahlad and Gopal while only in respect of rest of the land names of the sons should have been mutated and not in respect of the sub-plot in dispute. It was further asserted that defendants were claiming right over the land in dispute through Prahlad and Gopal Dass sons of Ved Ram. The relief claimed in the suit was for permanent prohibitory injunction restraining the defendants from interfering in the possession of the plaintiff over the land in dispute.
Defendants before filing written statement filed application which was numbered as 16 ga contending that the sale deed dated 9.3.1998 was executed during consolidation proceedings and was also hit by Section 168-A of U.P.Zamandari Abolition and Land Reforms Act (prohibiting transfer of fragment) as at the time of sale deed land in dispute was entered as agricultural land. The area of the land in dispute is 0.085 hectare (about 850 sq. meter). Courts below held that the suit was cognizable only by revenue court and not by civil court. Defendants had contended that unless certificate under Section 143 of U.P.Z.A.&L.R. Act was issued property could not be treated to be abadi or non agricultural.
Section 168-A U.P.Z.A&L.R. Act has been deleted by U.P. Act No.27 of 2004.
By virtue of Section 331-A of U.P.Z.A.&L.R. Act it has been provided 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 reaised whether the land in question is or is not used for purposes connected with agriculture, horticulture or animal husbandary, 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.
(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.
Accordingly, it cannot be said that the suit was not maintainable.
There was no serious challenge to the sale deed dated 9.3.1998.
Accordingly, in my opinion the courts below committed patent error of law in dismissing the suit under Order 7 Rule 11 C.P.C.
Today Shri M.K.Gupta, learned counsel who had filed caveat on behalf of respondent nos. 1 to 4 also filed vakalatnama for the remaining respondent i.e. respondent no.5. Shri Gupta, stated that in case it was held that the suit was maintainable before Civil Court, after allowing the Second Appeal the suit might be directed to be decided on merit by the trial court.
Even though on a question of law concession of counsel is not conclusive however, I am of the opinion that suit is maintainable before civil court and in view of above quoted Section 331-A of U.P.Z.A.&L.R. Act civil court can send the issue of land being abadi (non agricultural) or not to the Assistant Collector-In-charge of the Sub Division (S.D.O.).
Accordingly, Second Appeal is allowed. Impugned judgment and decree passed by the lower appellate court is set aside. Judgment and decree passed by the trial court is also set aside. Suit is held to be maintainable before civil court. Trial court is directed to decide the suit very expeditiously. Both the parties are directed to appear before the trial court on 19.1.2012. The trial court shall remit the issue of nature of land to the S.D.O. in accordance with Section 331-A of U.P.Z.A.&L.R. Act on the said date. Neither trial court nor the S.D.O. who is required to decide the issue shall grant any unnecessary adjournment to any of the parties in any form. If any adjournment is granted then it shall be on very heavy cost, which shall not be less than Rs.500/- per adjournment payable before the next date. As the judgment of the trial court has been set aside hence the position of interim order as prevailing immediately before the date on which trial court dismissed the suit/rejected the plaint i.e. 2.9.2009 stands revived.
Order Date :- 21.12.2011 RS