Allahabad High Court
Mahesh Chand vs Brijesh Kumar And Ors. on 15 February, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:25354 Court No. - 7 Reserved A.F.R. Case :- SECOND APPEAL No. - 1623 of 1992 Appellant :- Mahesh Chand Respondent :- Brijesh Kumar And Ors. Counsel for Appellant :- Mr. Kunal Shah, Advocate Counsel for Respondent :- Mr. Ravi Kant, Sr. Advocate assisted by Mr. I.N. Singh, Mr. Gajendra Pratap, Sr. Advocate assisted by Mr. Abhishek Kumar, Advocate Hon'ble J.J. Munir,J.
1. This is a plaintiff's second appeal. It arises out of a suit for eviction, recovery of arrears of rent and mesne profits.
2. The plaintiff's suit aforesaid, being O.S. No.250 of 1974 was decreed by the Trial Court for eviction, recovery of arrears of rent from 01.07.1972 to 15.05.1974 and mesne profits from the date of determination of tenancy at the rate of Rs.10/- per day.
3. The defendant-respondent appealed to the District Judge of Bulandshahr from the Trial Court's decree, which was numbered as Civil Appeal No.409 of 1981. The plaintiff filed a separate appeal from the Trial Court's decree, seeking enhancement of the mesne profits awarded. This appeal was numbered as Civil Appeal No.20 of 1982. Both the appeals were consolidated, heard together and decided by a common judgment, but separate decrees passed by the learned Special Judge/ Additional District Judge, Bulandshahr dated 27.07.1992. The defendant's appeal was allowed whereas that by the plaintiff dismissed.
4. Aggrieved by the judgment and decree passed in Civil Appeal No.409 of 1981, the present second appeal has been preferred. The plaintiff appealed to this Court from the judgment and decree passed in Civil Appeal No.20 of 1982 as well, which was dismissed in default by an order dated 24.08.2011. Until time that this appeal was heard by this Court, none of the parties said that the plaintiff's appeal, bearing No.1694 of 1992 had been restored to file. The present appeal alone was, therefore, heard.
5. The facts giving rise to this appeal are:
Mahesh Chandra and Ramesh Chandra, two brothers instituted Original Suit No.250 of 1974 against Shyam Sundar Sharma with a case that they are owners of a part of Plot Nos.2135 and 2136, admeasuring 0-16-6 and 0-8-2 respectively, that abut the wall of the police station on the Jewar side, situate at Jewar, within the limits of the Town Area Jewar, District Bulandshahr (it now falls in District Gautam Buddh Nagar). On the 1st of January, 1970, Mahesh Chandra and Ramesh Chandra, the plaintiff-appellants (for short, 'the plaintiffs') granted lease of a part out of their holdings in Plot Nos.2135 and 2136 in favour of Shyam Sundar Sharma, admeasuring 100' along the road and about 100' on the western side, abutting the wall of Police Station Jewar. The demise was made on a rent of Rs.150/- per month for the purpose of enabling Shyam Sundar Sharma to establish and carry on the business of his petrol retail outlet, being an agency of the Indian Oil Corporation. A rent note dated 31.07.1970 was executed between parties and presented for registration on the same day. It was registered on 08.09.1970 as Document No.2740 in Book No.1, Volume 832 at Pages 62-67 by the Sub-Registrar. Something described as a 'hand note', carrying a map of the plot let out to Shyam Sundar Sharma, also signed by him, was duly executed by parties.
6. Shyam Sundar Sharma died pending suit and was substituted by his heirs and LRs, to wit, Smt. Nirmala Devi, his widow, Brijesh Kumar, a minor aged 3 years and Rajesh Kumar, a minor aged one year, both sons of Shyam Sundar Sharma through their next friend Jayanti Prasad Sharma, their grandfather. These LRs continued to represent the interest of the late Shyam Sundar Sharma in the suit and in appeal before the Lower Appellate Court. Here also, all the three heirs and LRs were made parties, but at a subsequent stage, under orders of this Court dated 06.01.2004, the name of Smt. Nirmla Devi, Shyam Sundar Sharma's widow was deleted and in this appeal, Shyam Sundar Sharma's interest is represented by Brijesh Kumar and Rajesh Kumar, his sons. Hereinafter, the original defendant Shyam Sundar Sharma, represented by his heirs and LRs Brijesh Kumar and Rajesh Kumar, shall be referred to as 'the defendant'. The Indian Oil Corporation was impleaded in the suit as defendant No.2 and to this appeal as defendant-respondent No.2. No relief has been claimed against the Indian Oil Corporation and they are admittedly what is called a proforma defendant.
7. To revert to facts, it is the plaintiffs' case that the defendant fell in arrears of rent w.e.f. 01.07.1972. This led the plaintiffs to serve a notice dated 08.04.1974 upon the defendant to quit and pay arrears of rent. By the said notice, the defendant's tenancy was determined and he was asked to deliver vacant possession of the suit property on 15.04.1974. It is the plaintiffs' further case that the defendant is in arrears of rent from 01.07.1972 to 15.05.1974, that worked out to a figure of Rs.3375/-. It is pleaded that the suit property can easily fetch a sum of Rs.25/- per day in damages for use and occupation and the plaintiffs have been deprived of the said damages, amounting to Rs.325/-. The cause of action was said to arise on everyday that the defendant remained in possession of the suit property after the period of notice expired on 16.05.1974. A decree for ejectment against the defendant and also against the proforma defendant, if they object, was claimed, besides one for recovery of a sum of Rs.3375/- as mesne profits at the rate of Rs.25/- per day with pendente lite and future interest. A further decree for mesne profits was sought pending suit until delivery of possession to the plaintiffs at the rate of Rs.25/- day, upon payment of court-fees in the Execution Department.
8. The defendant filed a written statement generally denying the plaint allegations. In the additional pleas, the defendant came up with a case that the plaintiffs were not the exclusive owners of Plot Nos.1235/1 and 1236/2. These plots were held in the share of one-third each by the plaintiffs, one Fakira and another Krishna. The plaintiffs, representing themselves to be the exclusive owners, demised the suit property for a year, executing the registered rent note. The plaintiffs have realized from the defendant rent up to 30.06.1973. It is the defendant's case that the two other co-owners Fakira and Krishna insisted that the plaintiffs alone did not have right to let out the suit property nor do they have the exclusive right to realize rent. After the said insistence by Fakira and Krishna, it was decided amongst the three of them, to wit, the defendant, Fakira and Krishna that the defendant would pay rent to Fakira and Krishna and none of it would be paid to the plaintiffs until such time that their share of the rent was evenly received with the plaintiffs. The defendant paid rent from 01.07.1972 to 30.06.1973 to Fakira and secured a receipt. Likewise, the defendant paid rent from 01.07.1973 to February, 1974 to Krishna and obtained a receipt thereof from him as well. Later on, Krishna and Fakira executed sale deeds of their share in the two plots in favour of the defendant on 16.03.1974 and 26.03.1974, respectively. The defendant is, in consequence, the owner of a two-third share in the suit property. The suit property and the remainder part of the two plots in question is a bhumidhari, which has not yet been partitioned by any Court. The defendant's petrol pump is located in a one-third part of the land comprising the two plots, but the plaintiffs are beneficially holding more than a one-third share therein. Therefore, the plaintiffs have no right to claim anything against the defendant, including rent or mesne profits. In addition, the defendant is co-sharer and in possession in his own right. He is not the tenant. The notice to quit etc. served upon the defendant is against the law and it has been already answered detailing correct facts. There cannot be any determination of the defendant's tenancy since he is not a tenant. He is co-sharer. The plaintiffs are not entitled to any mesne profits. The rent note is against the law and, therefore, it does not entitle the plaintiffs to recover any damages etc. Through an amended plea carried in Paragraph No.16-A of the written statement, introduced vide order dated 15.02.1986, it is pleaded that since the rent note is illegal and void under Section 156 of the U.P. Z.A. & L.R. Act, the defendant by virtue of Section 165 of the Act last mentioned has acquired sirdari rights, and, later on, a bhumidhari, because combining the area of the suit property to that already available with him and his family members, the total does not exceed twelve and a half acres. The defendant is, therefore, not liable to eviction. The further plea raised is that no cause of action has arisen to the plaintiff to institute the present suit, which is not maintainable. The plaintiffs have no right to sue. The Civil Court has no jurisdiction to try the suit. The suit is also pleaded to be barred by estoppel and acquiescence.
9. Upon the pleadings of parties, the following issues were struck:
"(1) Whether the defendant No.1 took the land in suit from the plaintiff on a rent of Rs.150/- per mensum on 1.1.70?
(2) Whether a sum of Rs.3375/- on account of arrears of rent for the period from 1.7.72 to 15.5.74 was due against the defendant no.1?
(3) Whether the defendant no.1 has purchased 2/3rd share of other co-sharers of the plaintiff in the land in suit. If so, its effect?
(4) Whether the court has no jurisdiction to try the suit?
(5) Whether the tenancy of the defendant was illegal?
(6) Whether the plaintiffs have got no right to sue?
(7) Whether the suit is barred by principles of waiver, estoppel and acquiescence?
(8) Whether the defendant is estopped from denying the title of the plaintiff?
(9) Whether the plaintiff is entitled to recover any mesne profits? If so, its amount?
(10) Whether the notice to quit is invalid?
(11) Whether the suit as framed is not maintainable?
(12) Whether the relationship of the landlord and tenant subsisted between the parties after the expiry the period of lease stipulated in the original lease deed?
(13) To what relief if any, the plaintiff entitled?"
10. The plaintiffs, in support of their case, examined Mahesh Chand as PW-1, Shaukat Ali, PW-2 and a Handwriting Expert, who testified as PW-3.
11. The defendant examined Jayanti Prasad, DW-1, Shankar Lal, DW-2, Prabhu Dayal, DW-3 and B.S. Chaudhary, Handwriting Expert, DW-4. Documentary evidence was also produced by both parties. So much of this evidence, documentary or oral, would alone be referred to as relevant to the substantial questions of law, that fall for consideration in this appeal.
12. The Trial Court answered Issue No.1 in the plaintiffs' favour and against the defendant, after the defendant admitted in his statement under Order X Rule 2 of the Code of Civil Procedure, 1908 (for short, 'the Code') that he had been demised the suit property on a monthly rent of Rs.150/-, in terms of the rent note executed in the defendant's favour.
13. Issue Nos.2 and 3 were decided together. The learned Trial Judge held that on a perusal of the judgment passed by the Assistant Collector, Bulandshahr dated 06.10.1970 in a suit titled, Chhiddan v. Missi, it is evident that co-sharer Krishna had a share of 1/24 in the suit property, which Krishna sold to a man called Ram Chandra on 11.11.1963. The relative sale deed was noticed to be on record, bearing Paper No.64-A. This document was produced by the plaintiffs. Ram Chandra's name was mutated in the revenue records on the basis of the sale deed, Paper No.64-A, and to this end, Khatauni for the year 1371 fasli, bearing Paper No.118-C has been taken note of. It was, therefore, concluded that Krishna had no share in the suit property, which he could transfer to the defendant by way of sale. So far as the other co-sharer Fakira is concerned, the plaintiffs' case was that they had purchased Fakira's share. In support, the plaintiffs produced a sale deed dated 09.07.1965. This sale deed was executed much earlier than the sale deed said to be executed in the defendant's favour by Fakira. It was, therefore, concluded by the learned Trial Judge that Fakira had nothing to transfer in the defendant's favour as his share in the suit property. The Trial Court has also remarked that if for some reason, Fakira's name had continued to be recorded in the revenue records, the inference cannot be that Fakira continued to be owner of his share, which he could again transfer to another. The Trial Court has also noticed Paper No.65-C, a Khatauni, which shows that on 10.07.1974, the revenue record, that was inaccurate about mentioning Fakira's name, too was corrected. The learned Trial Judge has also remarked that neither Fakira nor Krishna were produced by the defendant in the witness box, depriving the plaintiffs of the opportunity of cross-examining them about their right to transfer. The case, therefore, set up by the defendant that from 01.07.1972 to 30.06.1973, he paid rent to Fakira and from 01.03.1973 to February, 1974 to Krishna, regarding which he had produced rent receipts, is of no consequence. The defendant's case that there was an agreement between him, Fakira and Krishna, when those two had obstructed the use of the suit property, to pay them rent, was discarded by the Trial Court, because no document to establish the fact could be produced by the defendant. To the contrary, the lease deed executed by the plaintiffs was a registered document and according to it, the defendant was obliged to pay the plaintiffs due rent. It was also observed by the Trial Court that if there had to be any change of the terms of tenancy, it had to be done through a registered instrument. Thus, Issue No.2 was answered in the manner that the defendant was in arrears of rent payable to the plaintiffs for the period 01.07.1972 to 15.05.1974 to the tune of Rs.3375/-. Issue No.3 was answered in the manner that the defendant was not a co-sharer with the plaintiffs to the extent of a two-third share in the suit property.
14. Issue No.4 was decided against the defendant as a preliminary on 14.05.1976, holding that the Civil Court had jurisdiction. The said issue appears to have been re-agitated when the suit was finally heard, but the Trial Court did not disturb the earlier determination of the issue with the remark that there was no such change in circumstances, warranting a review of the finding on Issue No.4.
15. In deciding Issue No.5, the Trial Court reasoned that the suit property was not leased out for agricultural purposes. The documentary evidence showed that the suit property was situate in Town Area Jewar within the local limits of Nagar Palika. It has been declared to be an abadi. In the circumstances, it was opined that on the execution and registration of the lease deed, there has been no violation of the law and the defendant's tenancy was not unlawful.
16. Issue No.7 was decided in the plaintiffs' favour and against the defendant holding that the suit was not barred by estoppel or acquiescence.
17. Issues Nos.6, 8 and 11 were dealt with together, where Issue No.6 was answered in the negative and in the plaintiffs' favour, holding that looking to the terms of the lease deed, it could not be said that the plaintiffs had no right to institute the suit. Issue No.8 was decided in the affirmative and in the plaintiffs' favour, holding that going by the terms of the lease deed, there was relationship of 'landlord' and 'tenant' between the plaintiffs and the defendant, on account of which he could not deny the plaintiffs' title. Issue No.11 was decided in the negative holding the suit maintainable.
18. Issue No.10 was also decided in the negative and in the plaintiffs' favour holding that the notice to quit was valid. The next that was determined by the Trial Court was Issue No.12. This issue was answered again in the plaintiffs' favour, holding that there was relationship of landlord and tenant, post expiry of the term of the lease. Issue No.13 was also answered in the plaintiffs' favour and against the defendant, which was an issue about the relief to which the plaintiffs were entitled.
19. The suit was decreed with costs for eviction and recovery of rent from 01.07.1972 to 15.05.1974, being a sum of Rs.3375/-. The said decree of the Trial Court was passed on 30.11.1981. It was further decreed that post determination of the lease, the plaintiffs would be entitled to mesne profits at the rate of Rs.10/- per day.
20. The Trial Court's decree was appealed by the defendant to the District Judge of Bulandshahr. The defendant's appeal was registered on the file of the District Judge as Civil Appeal No.409 of 1981. The appeal aforesaid came up for hearing before the learned Special Judge/ Additional District Judge, Bulandshahr on 27th July, 1992, when it was allowed, the decree of the Trial Court reversed and the plaintiffs' suit for ejectment, recovery of arrears of rent and mesne profits dismissed.
21. Aggrieved, the present second appeal has been preferred by the plaintiffs.
22. This appeal was admitted to hearing on 04.12.1992. The substantial questions of law involved were those carried in Ground Nos.1 to 9. No substantial questions of law were formulated by the Court. When this matter came up before this Court for hearing on 20.02.2020, the following substantial questions of law were formulated:
"1. Whether the provisions of U.P.Z.A.&L.R. Act, 1950 would apply to the (sic) land let out for non agricultural purposes?
2. Whether the provisions of U.P.Z.A.&L.R. Act, 1950 would apply to the (sic) agricultural land located in an area that has fallen within the limits of a town area upon extension of boundaries after the date of vesting?
3. Whether the land situate in an urban area utilized for to (sic) a non agricultural purposes would still be deemed to an agricultural land in the absence of a declaration under Section 143 U.P.Z.A.&L.R. Act?
4. Whether a tenant is estopped from disputing the nature of the land demised after utilizing the same for non agricultural purposes?
5. Whether the provisions of Section 165 U.P.Z.A.&L.R. Act would be attracted either in its amended form or un-amended, to land that has been found to be utilized for non agricultural purposes post letting?"
23. Heard Mr. Kunal Shah, learned Counsel for the plaintiffs, Mr. Ravi Kant, learned Senior Advocate assisted by Mr. I.N. Singh and Mr. Gajendra Pratap, learned Senior Advocate assisted by Mr. Abhishek Kumar, learned Counsel appearing for the defendant.
24. It would be convenient in the logical sequence of things to answer substantial questions breaking seriatim and determining the questions in an order that eschews examining matters, without going into which the appeal can still be effectively decided.
25. This Court proposes to examine Substantial Question of Law No.2 for a first.
26. It was urged on behalf of the plaintiffs on the second substantial question that the suit property falls within the Town Area Jewar and the provisions of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (for short, 'the Act of 1950') do not apply to it at all. It is pointed out that in Paragraph No.1 of the plaint, it is pleaded that the suit property is located within the town area aforesaid. The remark in the judgment of the Lower Appellate Court that Chapter VIII of the Act of 1950 applies to land falling within a town area is erroneous. The remark of the Lower Appellate Court is said to be erroneous because under the provisions of Section 64 of the U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956 (for short, 'the Act of 1956'), a land falling within the limits of a town area becomes amenable to the Act of 1950 if the land is an agricultural area, acquired and notified as such by the State Government. The term 'agricultural area' has been defined under Section 2(1) of the Act of 1956. It is said that a perusal of the provisions of the Act of 1956 shows that facts are to be proved for showing an area to be an agricultural area within the limits of a town by virtue of the Act of 1956. It is pointed out on behalf of the plaintiffs that the defendant in his written statement has not alleged that the suit property was ever included in an agricultural area under the Act of 1956, to which a fortiori the provisions of the Act of 1950 became applicable under Section 64 of the Act of 1956. There was much contention on behalf of the plaintiffs as to the manner of notification and demarcation of agricultural area under the Act of 1956, within the limits of a town, in order to make it amenable to the Act of 1950.
27. The learned Counsel appearing for the defendant, Mr. Ravi Kant submitted that it is not the position of the law that if agricultural land is included within the limits of a municipality or town area, it is ipso facto excluded from the purview of the Act of 1950. It is argued by the learned Senior Advocate that under Section 1(2) of the Act of 1950, any area which is included within the limits of a municipality or a town area on 07.07.1949, is excluded from the operation of the last mentioned Act. It is emphasized that the date of vesting under the Act of 1950, which is 01.07.1952, has no relevance to the applicability of the said Act to land located within the local limits of a town area or municipality. It is, particularly, emphasized that there is no pleading on behalf of the plaintiffs that the suit property was included in the town area on or before 07.07.1949. There is no evidence produced by the plaintiffs either that it was so included, on or before the date aforesaid. It is, therefore, submitted that the provisions of the Act of 1950 would continue to apply to the suit property. It is further on submitted that it is the plaintiffs' admission in their dock evidence that the suit property is bhumidhari. The learned Senior Advocate for the defendant has drawn this Court's attention to the following testimony of the plaintiff recorded on 10.04.1979, when he appeared in the dock as PW-1:
"........ इन खेतों पर काश्तकारी 1968-1969 से नहीं हो रही है। इन खेतों के बावत गजट नही दाखिल किया है। यह खेत भूमिधरी के थे। अब 2-3 साल से भूमिधरी नही हैं।"
28. It is also pointed that the plaintiff further said in his testimony on 21.07.1987:
"............. यह बात सही है और अब भी विवादित जमीन को खेतिहर जमीन ही मानता हूँ। ...........विवादित भूमि से पश्चिम व दक्षिण तरफ जो भूमि है उसकी बेदखली का मुकदमा माल की अदालत में किया है जिसका खसरा नम्बर 2135 व 2136 है। और विवादित जमीन का भी नम्बर 2135 व 2136 है।"
29. It is argued that the suit property is, therefore, bhumidhari as the fact is admitted to the plaintiffs. It is urged that admission is the best piece of evidence unless it is withdrawn or proved erroneous. In support of this contention of his, the learned Senior Advocate has placed reliance upon the authority of the Supreme Court in Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi, AIR 1960 SC 100. The learned Senior Advocate for the defendant, in particular, drew the attention of the Court to the following remarks in Narayan Bhagwantrao Gosavi Balajiwale (supra):
"11. In the present case, the burden of proof need not detain us for another reason. It has been proved that the appellant and his predecessors in the title which he claims, had admitted on numerous occasions that the public had a right to worship the deity, and that the properties were held as Devasthan inams. To the same effect are the records of the revenue authorities, where these grants have been described as Devasthan, except in a few cases, to which reference will be made subsequently. In view of all these admissions and the revenue records, it was necessary for the appellant to prove that the admissions were erroneous, and did not bind him. An admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. We shall now examine these admissions in brief and the extent to which they went and the number of times they were repeated."
30. We do not think that admission on a question, such as the one present, can be of much use to the other side, because it is essentially a matter of the law, going by the date of inclusion of the suit property within the town area if the Act of 1950 would apply to it. There is on record a copy of the notification issued under Section 3 of the U.P. Town Areas Act, 1914, which shows that a portion of the Gaon Sabha Jewar, which includes the suit property, came to be notified and included within the town area with effect from the said date. Section 1 of the Act of 1950 reads:
"1. Short title, extent and commencement.- (1) This Act may be called the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950.
(2) It extends to the whole of the Uttar Pradesh except the areas which, on the 7th day of July, 1949, were included in a municipality or a notified area under the provisions of the United Provinces Municipalities Act, 1916 or a Cantonment under the provisions of the Cantonment Act, 1924 or a town area under the provisions of the United Provinces Town Areas Act, 1914:
Provided that in relation to areas included in the Rampur Municipality, this sub-section shall have effect as if for the words and figures '7th day of July, 1949' the words and figures '3lst day of July, 1949', were substituted therein:
Provided further that where any area which on July 7, 1949 was included in a Municipality, Notified Area, Cantonment or Town Area, cease to be so included therein at any time after that date and no notification has been made in respect thereof under Section 8 of the Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Act, 1956-
(i) in case it has ceased to be so included at any time before June 29, 1971, this Act shall extend to such area from June 29, 1971; and
(ii) in any other case, this Act shall extend to such area from the date on which the area ceases to be so included.
(3) It shall come into force at once except in the areas mentioned in Clauses (a) to (f) of sub-section (1) of Section 2 where it shall, subject to any exception or modification under sub-section (1) of Section 2, come into force on such date as the State Government may by notification in the Gazette appoint and different dates may be appointed for different areas and different provisions of this Act."
(emphasis by Court)
31. A perusal of the said provision makes it explicit that the Act of 1950 applies to the whole of Uttar Pradesh, save for areas which on the 7th day of July, 1949 were included in a municipality, a notified area, a cantonment or a town area under the specified statutes. It is, therefore, trite to say that the date for the purpose of excluding an area from the operation of the Act on account of that area being situate within the local limits of a municipality or a town area etc. is quite distinct and different from the date of vesting to be notified under Section 4 of the Act of 1950 by the State Government and published under Section 5 thereof. The date of vesting is 01.07.1952 and the relevant date for any area to be excluded from the operation of the Act on account of it being included in the local limits of a municipality, town area etc. is 07.07.1949. Here, admittedly, the area which includes the suit property was a part of Gaon Sabha Jewar on 07.07.1949 and came to be included in the Town Area Jewar by a notification, as already mentioned, issued under Section 3 of the Uttar Pradesh Town Areas Act, 1914 w.e.f. 31.12.1956. For the said reason, the Act of 1950 would continue to apply to the suit property, notwithstanding its inclusion within the local limits of the town area.
32. This question is answered in the terms that the provisions of the Act of 1950 would apply to agricultural land located in an area that has fallen within the limits of a town area upon extension of its boundaries after the date of vesting; more specifically, after 07.07.1949.
33. This would take us to answering Substantial Question of Law No.1. This question is cast in the terms, whether the provisions of the Act of 1950 would apply to land let out for non-agricultural purposes.
34. It would be convenient to answer Substantial Question of Law No.1 together with Substantial Question of Law No.3 because the issue, subject matter of these questions, is overlapping, if not the same.
35. Mr. Kunal Shah, learned Counsel for the plaintiffs submits that the provisions of the Act of 1950, in particular, Chapter VIII of the said Act, stand excluded in their application to such land, which was let out and is being used for purposes not connected with agriculture, horticulture or animal husbandry etc. He has drawn the Court's attention to the definition of land in Section 3(14) of the Act of 1950, which reads:
"3. Definitions.- (1)-(13) x x x (14) "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;"
36. The submission proceeds that a bare perusal of Section 3(14) makes it evident that the legislature in plain and unambiguous words has provided that except where the expression 'land' is used in Sections 109, 143 and 144 and Chapter VII of the Act of 1950, it has to be ascribed a uniform meaning throughout the Act, which is 'land' held or occupied for purposes connected with agriculture etc. A fortiori for construing the expression 'land', occurring in the various provisions under Chapter VIII of the Act of 1950, the meaning ascribed to 'land' in Section 3(14) would apply, inasmuch as Chapter VIII has not been excluded from the ambit of Section 3(14). Upon a perusal of Section 3(14) of the Act of 1950, the conclusion is inescapable that the provisions of Chapter VIII, dealing with the land, would apply to such parcels of lands alone, which are 'held' or 'occupied' for agricultural purposes.
37. The learned Counsel for the plaintiffs, in order to understand the expression 'held' employed in Section 3(14) of the Act of 1950, has drawn on extrinsic aid in construing it. He has relied on P. Ramanatha Aiyar's Law Lexicon 5th Edition, which defines 'held' and 'occupied' thus:
""Held" or "occupied". The words "held" or "occupied" carry the same meaning and there is no manner of doubt that if the land is in the lawful possession of the factory and was being used for the purpose of the factory, the land vested in the Government as per Section 3 of the 1971 Act. [Gaurav Aseem Avtej v. Sugar Corporation Limited, (2018) 6 SCC 518, para 19] [U.P. Undertaking (Acquisition) Act (23 of 1971), S. 3]."
38. It is mooted that the words 'held' or 'occupied', occurring in Section 3(14) of the Act of 1950 have to be understood according to the dictionary meaning, which imply land, which is kept in possession or one that is owned for using it for agricultural purposes. It is argued by Mr. Shah that the reason or the purpose for which land is owned or possessed is then the determinative factor. On 1st of January, 1970, the plaintiffs were holding and occupying the suit property not for the purpose of carrying out any agricultural activity, but for the purpose of letting it out to the defendant in order to undertake non-agricultural activity thereon in consideration of the plaintiffs enjoying rent payable by the defendant. The purpose of holding the suit property on 01.01.1970 was to let it out to the defendant for a non-agricultural activity, to wit, for the installation and running of a petrol retail outlet. The suit property was leased out for one year w.e.f. 01.01.1970 to 31.12.1970. The purpose of letting it out on 01.01.1970 was not to enable or permit the lessee to do agricultural activity. It was decidedly let out for the lessee to undertake or accomplish his commercial pursuits. To support his submission in this regard, learned Counsel for the plaintiffs has called in aid an unreported decision of this Court in M/s. Mahabir Jute Mills Ltd. v. Gauri Shanker Das and others, Second Appeal No.302 of 1953, decided on 7th January, 1964. In M/s. Mahabir Jute Mills Ltd. (supra), it is pointed out that land, let out for manufacturing purposes, that is, for putting up a mill or factory, was held not to qualify as 'land' within the meaning of the pari materia provision in the Uttar Pradesh Agricultural Tenants (Acquisition of Privileges) Act, 1949. It was held not to qualify as land within the meaning of the last mentioned Act as it had been let out for a non-agricultural purpose. In M/s. Mahabir Jute Mills Ltd., it was observed by S.K. Verma, J. (as the learned Chief Justice then was):
"The trial court decreed the suit for recovery of Rs.1800/-. On appeal the learned Additional Civil Judge of Gorakhpur affirmed the decree of the trial court. The two grounds urged in the courts below have been urged before me in second appeal. Before the defendant-appellant can claim any benefit by virtue of the certificate under section 7 of the U.P. Agricultural Tenants Acquisition of Privileges Act (U.P. Act VII of 1950) the land has to be "land" as defined in the Act. The definition of the land in the Act is the same as in the U.P. Tenancy Act which is as follows-
"'land' means land which is let or held for growing of crops, or as groveland or for pasturage. It includes land covered by water used for the purpose of growing singhara or other produce, but does not include land for the time being occupied by buildings or appurtenant thereto other than building which are improvements:"
The land was leased out for manufacturing purposes. The Certificate granted to the defendant appellant under section 7 of the U.P. Act VII of 1950 was, therefore, without jurisdiction and it cannot be of any help to him. It was contended that the plaintiffs should have got the certificate cancelled under section 12 of the U.P. Act VII of 1950. If the granting of the certificate was without jurisdiction the plaintiffs-respondents were at perfect liberty to treat it as non-existent. If they chose to file a suit to recovery the money due under the lease instead of first getting the certificate cancelled under section 12 of U.P. Act VII of 1950 it does not mean that the suit was not maintainable."
39. It is next submitted that Section 142 of the Act of 1950 confers a right upon a bhumidhar with transferable rights, like the plaintiff to use his land for any purpose and, as such, there is no embargo upon a bhumidhar to convert his land to a non-agricultural one before letting it out. It is submitted that this is precisely what has happened in this case. If the suit property was converted to a non-agricultural purpose before it was let out to the defendant, it would no longer be land within the meaning of Section 3(14), to which Chapter VIII applies. In aid of this submission of his, learned Counsel for the plaintiffs has placed reliance upon the decision in Smt. Gomti Devi v. District Judge, Unnao and others, Review Petition No.624 of 2014 (arising out Misc. Single No.4227 of 2014), decided on 10.09.2014. In Smt. Gomti Devi (supra), it was held:
"12. Section 142 of U.P. Act No. 1 of 1951 confers a right upon bhumidhar to use his land for any purpose, which means that there is no restriction for a bhumidhar to convert his land as non-agricultural land. Section 143 (1) confers a privilege upon bhumidhar, who has converted his land as non-agricultural land get a declaration in this respect. Section 143 (3) of U.P. Act No. 1 of 1951 provides that where a bhumidhar has been granted loan by Uttar Pradesh Financial Corporation on security of any land held by such bhumidhar, provisions of Chapter VIII will cease to apply. Judge, Small Causes Court by order dated 18.03.2005 held that the predecessors of the plaintiffs had taken loan from Uttar Pradesh Financial Corporation mortgaging the land in dispute as such provisions of Chapter VIII of U.P. Act No. 1 of 1951 will cease to apply.
13. Now the question arises as to whether a declaration under Section 143 of U.P. Act No. 1 of 1951 is only mode for treating a land as non-agricultural land. Had the intention of legislature been such and making Section 143 exhaustive, there would have been no other provision under the Act. Insertion of Section 331-A in the Act, by U.P. Act No. 37 of 1958 makes it clear that Section 143 is not the only provision under which nature of the land can be decided. Suppose while deciding the issue referred under Section 331-A, Deputy Collector comes to the conclusion that on the date of letting land, was not land within the meaning of Section 3 (14) of the Act, then same consequences as given under Section 143 (2) will follow. Under the lease deed, it was admitted between the parties that the land in question was appurtenant land to the factory premises, which was let out to the petitioner for industrial purpose. The agreement, being admitted, is binding and in view of Section 92 of Evidence Act, 1872 no contrary plea can be raised by the petitioner as such in this case there is no issue in this respect between the parties, which require reference under Section 331-A."
40. It is next submitted on the strength of the authority of the Supreme Court in Commissioner of Income Tax, Madras v. Gemini Pictures Circuit Pvt. Ltd., (1996) 4 SCC 216 that the manner in which the parties visualized the transaction, the purposes for which the land is sold or let out, are determinative of the fact if the land is to be treated as agricultural land or otherwise. In Gemini Pictures Circuit Pvt. Ltd. (supra), it has been held by the Supreme Court:
"4. The land is situated within the limits of the Madras Municipal Corporation. It is located on the Mount Road which is the main artery of the city and its business centre. Even when the assessee purchased it in 1950, there was a hotel building located in the said land. In the municipal records, the property was registered as urban land and urban land tax was being levied thereon. It bore the Municipal door number "151-Mount Road, Madras". After purchasing the land, the assessee put up two more buildings thereon in the northern portion which together occupied an extent of 20 grounds which means that they were substantially large buildings. One of them was occupied by the assessee for its own business purposes and the other was occupied by its sister concern. After laying a road and reserving certain portion to serve as frontage for the buildings, an area of about 39 grounds was remaining open. The assessee was raising bananas thereon until 1962 and thereafter vegetables until the year 1966-67 when it was sold to three parties as aforestated. It is significant to notice that even when the assessee purchased an extent of about 4 acres of land with a hotel building in 1950, for a consideration of Rs 5.53 lakhs, it could not have been for the purpose of raising banana plantation or vegetables. And when it was sold in 1966-67 (which is the relevant point of time for our purposes) it was sold at the rate of about Rs 260 per sq. yard. Neither the sale deed under which the assessee purchased the said land nor the sale deeds executed by it in 1966-67 describe the land as an agricultural land. It could not be so described for the simple reason that it was registered in the municipal records as an urban land and urban land tax was levied thereon. After purchasing the land, the assessee itself constructed two large buildings thereon. Indeed, the buildings were being used for non-residential purposes. The land is situated on Mount Road, Madras which is the most important and the busiest thoroughfare in the city. The land is surrounded on all sides by industrial and commercial buildings. No agricultural operations were being carried on any land nearby. In the face of the above circumstances, the mere fact that vegetables were being raised thereon at the time of the sale or for some years prior thereto does not change the nature and character of the land. Obviously, it was only a stop-gap activity. It was not a true reflection of the nature and character of the land. It is a matter of common knowledge that in the heart of New Delhi, there are houses with large compounds wherein a portion of the open land is used for raising vegetables. That does not make those portions agricultural lands. In the case of the assessee too, the raising of vegetables was a stop-gap activity until the assessee found a better use for it, whether construction of buildings or sale. It is well to remember that the question whether a particular land is an agricultural land has to be decided on a totality of the relevant facts and circumstances. There may be circumstances for and against. They have to be weighed together and a reasonable decision arrived at. One has to take a realistic view and see how were the persons selling and purchasing it understood it. Is it believable that in 1966-67, the assessee and the aforesaid purchasers were under the impression that they were selling and purchasing agricultural land? Did they consider and treat the land as agricultural land? The answer is too evident to call for an elucidation.
5. Certain decisions have been cited before us by counsel for both the parties in support of their respective stands. It must, however, be remembered that facts of no two cases will be identical. The tests evolved by the courts are in the nature of guidelines. No hard and fast rules can be laid down in the matter, for the reason that it is essentially a question of fact. Even so, a brief reference to the cases cited would be in order. Strong reliance was placed by Shri Aruneshwar Gupta upon two decisions of the Gujarat High Court in Gordhanbhai Kahandas Dalwadi v. CIT [(1981) 127 ITR 664 (Guj)] and Motibhai D. Patel (Dr) v. CIT [(1981) 127 ITR 671 (Guj)] . In the first case, the land was registered as agricultural land in the revenue records and land revenue was being paid thereon. No permission was taken for converting it to non-agricultural use before the date of sale. Potential non-agricultural use or the fact that development had taken place in the vicinity of the land, it was held, do not militate against the fact that it was an agricultural land. In the next case too the land was registered as an agricultural land and permission to convert it into non-agricultural land was not obtained before the date of sale. In the circumstances, it was held that mere fact that it was sold at a high price only indicates its potentiality for non-agricultural use. On a consideration of entirety of the circumstances, it was held that it was an agricultural land.
6. A recent decision of this Court in Sarifabibi Mohmed Ibrahim v. CIT [1993 Supp (4) SCC 707 : (1993) 204 ITR 631] , rendered by a Bench comprising one of us (B.P. Jeevan Reddy, J.) is relied upon by the learned counsel for Revenue. The Bench observed: (SCC p. 712, para 12) "Whether a land is an agricultural land or not is essentially a question of fact. Several tests have been evolved in the decisions of this Court and the High Courts, but all of them are more in the nature of guidelines. The question has to be answered in each case having regard to the facts and circumstances of that case. There may be factors both for and against a particular point of view. The Court has to answer the question on a consideration of all of them -- a process of evaluation. The inference has to be drawn on a cumulative consideration of all the relevant facts."
Several judgments of this Court and the High Courts were referred to including a judgment of the Bombay High Court in CIT v. V.A. Trivedi [(1988) 172 ITR 95 : 1988 Tax LR 373 (Bom)] . On a consideration of the factors for and against, the Bombay High Court observed in V.A. Trivedi [(1988) 172 ITR 95 : 1988 Tax LR 373 (Bom)] that for ascertaining the true character and nature of the land, it must be seen whether it has been put to use for agricultural purposes for a reasonable span of time prior to the date of sale and further whether on the date of sale the land was intended to be put to use for agricultural purposes for a reasonable span of time in future. Examining the case from the said point of view, the High Court held that the fact that the agreement of sale was entered into by the assessee with a housing society is of crucial relevance since it showed that the assessee had agreed to sell the land for admittedly non-agricultural purposes. The ratio of the said decision was approved in Sarifabibi [1993 Supp (4) SCC 707 : (1993) 204 ITR 631]."
41. The Court may now consider briefly the submission of the learned Counsel for the plaintiffs on Substantial Question of Law No.3 and decide both the questions, to wit, Substantial Questions of Law Nos.1 and 3 together.
42. It is argued that there is no issue on facts between parties that the suit property was let out and being used for a non-agricultural purpose, to wit, to establish and run a petrol retail outlet. If that is the purpose for which the suit property was let out and then used, the fact that there was no declaration under Section 143 of the Act of 1950, would have no bearing upon its nature or on the issue, if it was still 'land' within the meaning of Section 3(14) of the Act, last mentioned. In the submission of the learned Counsel for the plaintiffs, it would not be land as defined under Section 3(14). To further substantiate his submission, learned Counsel for the plaintiffs has placed reliance upon the authority of this Court in Ajaz Carpets and others v. Birla International Pvt. Ltd., 2013 (4) AWC 4286. In Ajaz Carpets (supra), it was held:
"17. If a land is not being used for agricultural purposes then it is not necessary that in every situation certificate under Section 143 of U.P.Z.A.L. & R. Act must be obtained otherwise that land will continue to be governed by U.P.Z.A.L. & R. Act. ..........
18. From the above it is quite clear that if a suit relating to land held by bhoomidhar is instituted in a court other than revenue record (Assistant Collector/S.D.O.) and a question arises whether the land in question is or is not used for purposes connected with agricultural then matter has to be referred to the Assistant Collector. However if in any such suit filed before the Civil Court or J.S.C.C., there is no dispute that the land is actually being used for purposes not connected with agricultural and it is admitted that the land is having constructed portion and is being used for residential, commercial or industrial purposes then there will be absolutely no necessity to refer the matter to the Assistant Collector. The necessary corollary which follows is that if plaintiff claims and defendant admits that on an agricultural land constructions have been made and the same is being used for residential, commercial or industrial purposes then there will be no necessity of a certificate under Section 143 of U.P.Z.A.L. & R. Act and the Civil Court or J.S.C.C. or any other Court other than revenue court will have full jurisdiction to decide the matter."
43. The submission, therefore, is that the grant of a declaration under Section 143 of the Act of 1950 is not a sine qua non for what was otherwise land under Section 3(14) of the Act of 1950, but ceased to be so being regarded as one used for a non-agricultural purpose. It would all depend upon the actual user.
44. Mr. Ravi Kant and Mr. Gajendra Pratap, learned Senior Advocates, on the other hand, have submitted that the position of the law is completely different as regards whatever has been mooted on behalf of the plaintiffs in their submissions on Substantial Questions of Law Nos.1 and 3. It is argued that there is consistent authority on the issue if the provisions of the Act of 1950 would apply to land let out for non-agricultural purpose. All that authority, it is urged, says that land as defined under Section 3(14) of the Act of 1950, if used for non-agricultural purposes, would continue to be 'land' governed by the Act last mentioned, unless there is a declaration of change of its user to abadi granted under Section 143 of the Act of 1950. In support of this contention of theirs, learned Senior Counsel have placed reliance upon the decision of this Court in Alauddin alias Makki v. Hamid Khan, 1971 RD 160; Bhagwati Devi v. Radhey Shyam and others, (1976) 2 RD 178; Magnu Ahir and others v. Mahabir, 1987 RJ 146; and, U.P. State Sugar Corporation Ltd., Lucknow and another v. Vinod Chand Gupta and another, 2007 (3) AWC 3058. These authorities and how they bear on the point involved, would be shortly dealt with during the course of this judgment. The essence of both Substantial Questions of Law Nos.1 and 3 is whether 'land' held by a bhumidhar, if let out for a non-agricultural purpose without a declaration under Section 143 of the Act of 1950 and used for a non-agricultural purpose ceases to be land within the meaning of Section 3(14) of the Act of 1950. The corollary is if 'land' utilized for a non-agricultural purpose, would still be regarded as 'land', unless a declaration under Section 143 of the Act of 1950 in regard thereto is issued.
45. So far as the decision relied on behalf of the plaintiffs in M/s. Mahabir Jute Mills Ltd. is concerned, the point decided there is in the context of the Uttar Pradesh Agricultural Tenants (Acquisition of Privileges) Act, 1949 (for short, 'the UP AT Act'), as amended by the Uttar Pradesh Agricultural Tenants (Acquisition of Privileges) (Amendment) and Miscellaneous Provisions Act, 1950 (U.P. Act VII of 1950). No doubt, it has been held that in the event of land as defined in that Act, which broadly would mean agricultural land held by a tenant thereof, whose rights were enlarged under that Act, being leased for a manufacturing purpose, in a suit brought for ejectment of the lessee from such land, the provisions of the UP AT Act, as amended by UP Act VII of 1950, would not apply. This is so because the land was leased out to put up a mill or factory. There was in that case a declaration issued under Section 6 of the UP AT Act, referred to in the decision as a certificate, obtained by the tenant, who was sued for eviction by his landlord. The certificate would have entitled the tenant to reduction of rent and protection from ejectment, which was a defence urged to resist the suit. The other defence was that the suit being one for ejectment of a tenant from land, the Civil Court had no jurisdiction as a suit for ejectment from land would lie in the Revenue Court. The suit was decreed by the Trial Judge and the Lower Appellate Court, and before this Court, it was mooted that since the land was leased to the tenant for a manufacturing purpose, the declaration, called a certificate under Section 6, would be of no help to the tenant-defendant.
46. It appears that there is a reference in the decision regarding the certificate being issued under Section 7 of the UP AT Act, which in fact is a reference to a declaration under Section 6, entitling the tenant to privilege under Section 7. It was precisely these privileges that the tenant had pleaded to resist his eviction. The moot point was, if the lease, that was one for a manufacturing purpose, would entitle the tenant to a benefit of the declaration under Section 6 as envisaged under Section 7, without the certificate being cancelled under Section 12 of the UP AT Act. It was held that the lease being one for a manufacturing purpose, the certificate granted was without jurisdiction and non est. The suit for ejectment and recovery of rent could not be defended on the basis of a declaration or certificate under Section 6 of the UP AT Act. No doubt, the decision of this Court in M/s. Mahabir Jute Mills Ltd. comes close in point to the one involved here, because, after all, the UP AT Act was held excluded, and the certificate issued to the tenant thereunder, without jurisdiction as the lease was not for an agricultural purpose, rendering the demised property, not 'land' as envisaged under the UP AT Act. But, the principle there would be of little assistance to the plaintiffs because the UP AT Act was a statute that had a completely different object than the Act of 1950, though it may have been enacted in aid of the Act of 1950.
47. The UP AT Act did not abolish zamindari by itself or create new estates in land. Rather, it was an appendage in the enterprise of abolition of zamindari and principal purpose was to provide for reduction of rent for existing tenants, who were holding on tenures created under the U.P. Tenancy Act, 1939 and to protect them from ejectment. The object of the UP AT Act, as amended by UP Act VII of 1950, and its enacting clause read:
"An Act to provide for payment by tenants with a view to facilitate the abolition of Zamindari and to provide for reduction of rent and protection from ejectment and for certain other matters.
Whereas it is expedient to provide for payment by tenants with a view to facilitate the abolition of zamindari and to provide for reduction of rent and protection from ejectment and for certain other matters connected therewith."
48. Therefore, while interpreting the UP AT Act, it would always be the endeavour of the Court to extend privileges under Section 7 given by virtue of the said Act to an agricultural tenant, who had obtained a declaration under Section 6 after making an application under Section 3 and depositing the requisite rent payable. A fortiori a person, who had taken agricultural land on lease for a manufacturing purpose, would not be granted benefit of the UP AT Act. The mere purpose of the lease being to manufacture and its user as such, would be enough to deprive the tenant of the privileges of the last mentioned Act, even if he had a declaration under Section 6. Those privileges were meant for a tenant, who was utilizing the tenanted land or holding for agriculture or other purposes, as defined under Section 3(10) of the United Provinces Tenancy Act, 1939 (for short, 'the Tenancy Act'), on payment of rent to his landlord. By contrast, the Act of 1950 is the principal Act and the engine of law, by which not only zamindari was abolished, but also a new order of agricultural tenures introduced. The Act of 1950, after abolishing all existing estates of zamindar and their tenants, created new ones, until then unknown. It was a constitutive Act; not a mere appendage to another statute enacted to aid that other, as was the case with the UP AT Act. The object and the enacting clause of the Act of 1950 read:
"An Act to provide for the abolition of the Zamindari system which involves intermediaries between the tiller of the soil and the State in Uttar Pradesh and for the acquisition of their rights, title and interest and to reform the law relating to land tenure consequent upon such abolition and acquisition and to make provision for other matters connected therewith.
Whereas it is expedient to provide for the abolition of the Zamindari system which involves intermediaries between the tiller of the soil and the State in Uttar Pradesh and for the acquisition of their rights, title and interest and to reform the law relating to land tenure consequent on such abolition and acquisition and to make provision for other matters connected therewith."
49. In interpreting the provisions of the Act of 1950, the approach would be slightly different than that in case of the provisions of the UP AT Act. Here, as already remarked, after abolishing the zamindari system and acquisition of rights, title and interest of the zamindar and the various tenancy estates created by them, all lands were vested in the State in the first instance and then settled with different bodies and individuals on completely new terms. It just needs to be mentioned in the passing that under the Act of 1950, while the estates of zamindar and intermediaries were abolished, except certain classes of land held by them, the tenants of different classes under the Tenancy Act became holders of different kinds of tenancies, such as bhumidhar, sirdar, asami, with some, of course, being made hereditary tenants as envisaged under Section 16. It is in the context of the wholesome scope of the Act of 1950 that the provisions of Section 143 have to be understood. Section 143 of the Act of 1950 is part of Chapter VIII, falling under Part II of the Act of 1950. Chapter VIII deals with tenure and includes subjects, like classes of tenure; acquisition of bhumidhari rights; transfers; prevention of fragmentation; devolution; division; surrender, abandonment, extinction and acquisition; ejectment; and, rent. It also envisages the various classes of suits that can be brought in respect of tenures by the holders of bhumidhari estates against others, or those claiming rights to such estates under the Act of 1950, including suits for declaration, partition, ejectment etc. Section 143 of the Act of 1950 reads:
"143. Use of holding for industrial or residential purposes.--(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 motu or on an application, after making such enquiry as may be prescribed, make a declaration to that effect.
(1-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.
(3) Where a bhumidhar with transferable rights has been granted, before or after the commencement of the Uttar Pradesh Land Laws (Amendment) Act, 1978, any loan by the Uttar Pradesh Financial Corporation or by any other Corporation owned or controlled by the State Government, on the security of any land held by such bhumidhar, the provisions of this chapter (other than this section) shall cease to apply to such bhumidhar 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."
50. A bhumidhar with transferable rights like the plaintiff, no doubt, has the right to use his holding or any part thereof for a purpose other than agriculture, horticulture etc. and in that event, the Assistant Collector, in charge of the sub-division, either suo motu or on an application made to him for the purpose, after undertaking necessary inquiry, has the power to declare the bhumidhar's holding or a part not used for agriculture etc., to be land no longer used for the purposes envisaged under Section 3(14) of the Act of 1950. It is upon a declaration made under sub-Section (1) of Section 143 that the consequences in sub-Section (2) of Section 143 ensue. The effect of the declaration under sub-Section (2) of Section 143 of the Act of 1950 is that the provisions of Chapter VIII of the last mentioned Act, other than Section 143, become inapplicable to the land put to a different user. Amongst other things, its devolution is then governed by personal laws and not the Act of 1950. It is for this reason that a declaration under Section 143(1) is often referred to as a 'declaration of the land as abadi by the SDO'.
51. What is of importance, to be understood, is that a declaration under Section 143(1) does not place the land, otherwise governed by the Act of 1950, completely out of its regime. It continues to be governed by the provisions of the Act of 1950 except that the provisions of Chapter VIII of the said Act become inapplicable in relation thereto. Thus, the regulatory regime about use, transfer etc. relating to land as defined under Section 3(14), that would otherwise be governed by Chapter VIII is no longer governed by the said Chapter. The other provisions of the Act of 1950 continue to apply. This point was particularly made during the hearing by Mr. Ravi Kant, learned Senior Advocate and we agree with that submission. This apart, from a plain reading of the terms of Section 143, the submission appears to be well-founded. It is particularly so when one looks to Section 144 of the Act of 1950. Section 144(1) says that wherever any land held by a bhumidhar, which is not used for purposes connected with agriculture etc., comes to be used as land for purposes of agriculture etc., the Assistant Collector, in-charge of the Sub-Division, may suo motu or on an application after necessary inquiry, make a declaration that land would be subject to provisions of Chapter VIII. Thus, land, as defined under Section 3(14) of the Act of 1950, which is governed by the said Act, upon the making of a declaration under Section 143, does not essentially cease to be land within the meaning of Section 3(14). It is only that until time that the declaration under Section 143(1) is not superseded by another declaration under Section 144(1), the provisions of Chapter VIII of the Act of 1950 become inapplicable to such land. All other provisions of the Act of 1950 would continue to apply to a land held by a bhumidhar, in relation to which a declaration under Section 143(1) has been made.
52. Now, this scheme of the Act of 1950 is essentially different from the UP AT Act, where the effect of a declaration under Section 6 and the consequences under Section 7 cannot at all be regarded as pari materia to Section 143 of the Act of 1950. Whereas in the nature and scheme of the UP AT Act, a land not used for purposes of agriculture etc., that has the protection of a declaration under Section 6 granted to it in accordance with law upon deposit of prescribed rent etc., would lose that benefit, stipulated under Section 7 by virtue of user of the land for a purpose not connected with agriculture etc., this is not the case if land governed by the Act is not used for purpose of agriculture, pisciculture etc. In the former case, in the scheme of things, a land leased to a tenant for the purpose of agriculture etc., in regard whereto, a declaration under Section 6 has been issued, would protect the tenant from eviction and entitle him to reduction of rent. Inherent in that kind of a scheme is the existence of a declaration granted by the Authority under Section 6 regarding land used for agriculture etc. If the tenant then leases out the land for a manufacturing purpose or himself undertakes activity thereon, which is not in accordance with Section 3(1) of the Tenancy Act, the benefit of protection from eviction and reduction of rent envisaged under Section 7 of the UP AT Act, would automatically disappear. The reason is that the privilege upon the issue of a declaration under Section 6 is one meant to benefit the tenant of agricultural land, engaged in the specified kind of agricultural activities. If an activity not connected with agriculture or one defined under Section 3(10) of the Tenancy Act is undertaken, the protection notwithstanding the existence of the declaration under Section 6 would vanish. It is in this sense that this Court in M/s. Mahabir Jute Mills Ltd. has held that there is no need to seek a cancellation of the declaration granted under Section 6 of the UP AT Act, if the land is leased out for a manufacturing purpose or used for manufacturing purposes.
53. By contrast, again in the nature of things, if land envisaged under Section 3(14) of the Act of 1950 is put to a different user or leased out by the bhumidhar to another for a purpose not connected with agriculture, pisciculture, poultry farming etc., there is no automatic exclusion of the provisions of Chapter VIII. It is quite another matter that the SDO, upon taking cognizance suo motu of the fact that the land is no longer used for purposes envisaged under Section 3(14), may grant a declaration under sub-Section (1) of Section 143, or may do that on the application of a party. But, there is no scope to contend that until a declaration of that kind, which has to be preceded by an inquiry by the SDO into the actual user of the land, is granted, Chapter VIII of the Act of 1950 is excluded from its application to land held by a bhumidhar. The exemption from application of Chapter VIII comes from the issue of a declaration issued under Section 143(1). It is almost impossible to think that a mere change of user of 'land' held by a bhumidhar for purposes not connected with agriculture, pisciculture, poultry farming etc., would lead to an automatic exclusion of Chapter VIII. This is not simply in the state of things under the Act of 1950 or the scheme of the said statute and, particularly, what a plain reading of the provisions of section 143 together with Section 144 would show.
54. Here, this Court must notice the contrary opinion of a learned Single Judge of this Court in Smt. Gomti Devi. We have referred to the holding in Smt. Gomti Devi while noticing the submissions made by the learned Counsel for the plaintiffs. The remarks in Paragraph No.13 of the judgment in Smt. Gomti Devi that Section 143 is not exhaustive and not the only provision under which 'nature of the land' can be decided, appear to be contrary to the law in point laid down by the Supreme Court, to which allusion would shortly be made.
55. There is another decision that has been laid much emphasis on by the learned Counsel for the plaintiffs to say that a declaration under Section 143 of the Act of 1950 granted by the SDO is not a sine qua non for a change in the nature of land from agricultural to one not covered by Section 3(14) of the last mentioned Act or abadi. This authority is Ajaz Carpets, to which too allusion has been made while noticing the plaintiffs' submission. The relevant part of the holding in Ajaz Carpets has been quoted while noticing the submissions of the plaintffs on the point. The principle in Ajaz Carpets also seems to run contrary to the holding of the Supreme Court on the issue.
56. In Additional Commissioner, Revenue and others v. Akhalaq Hussain and another, (2020) 4 SCC 507, the issue arose before the Supreme Court in the context of proceedings of exchange under Section 161 of the Act of 1950. It was a case, where one Akhalaq Hussain and another, Saqir Hussain exchanged their land with one Mangal Singh, a member of a Scheduled Tribe, by a registered deed of exchange, exchanging their respective bhumidhari. Mutation in terms of the deed of exchange was granted by the Tehsildar. Akhalaq Hussain and Saqir Hussain constructed a hotel on the bhumidhari that they received in exchange. The Sub-Divisional Officer issued a notice to the two hotel owners saying that the exchange violated the provisions of sub-Section (1) of Section 161, inasmuch as the deed of exchange had been executed without obtaining prior permission of the Assistant Collector. It was held that the exchange being in violation of Section 167 of the Act of 1950, the transaction was void and land subject matter of dispute stood vested in the Government of Uttar Pradesh from the date of its transfer. The order was upheld in appeal and revision, but all orders of the statutory Authorities were quashed by the High Court. There are other issues relating to validity of exchange involved, but those are not relevant to the issue in hand. One of the contentions that was raised was that the land is not an agricultural land to which Chapter VIII of the Act of 1950 applies. The issue was dealt with and answered by their Lordships in Akhalaq Hussain (supra), thus:
"14. Re. Contention -- Land is not an agricultural land : on behalf of the respondents, it was contended that the land in question is not an "agricultural land" and that it does not fall within the definition of "land" under Section 3(14) of the Act and therefore, provisions of Chapter VIII of the Act are not applicable. The question as to whether a particular land is "land" as defined under Section 3(14) of the Act to which the provisions of the U.P. ZA and LR Act are applicable would require determination. The question, whether such land is held or occupied for purposes connected with agriculture, horticulture or animal husbandry has to be determined in accordance with the provisions of Sections 143 and 144 of the Act. Section 3(14) of the Act defines "land" as under:
"3. Definitions.-- ...
(1)-(13)*** (14) "Land" except in Sections 109, 143 and 144 and Chapter VIII means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming."
15. The respondents have placed reliance upon the recitals in the exchange deed in which it is mentioned that the land in question is not an "agricultural land" and also the counter-affidavit of the State filed before the High Court, wherein it is mentioned that the hotel in the disputed land is situated in the market area of Munsiari township. In this regard, it is pertinent to note that for changing the nature of land from "agricultural" to "abadi", declaration as stipulated in Sections 143 and 144 is required. The provisions under Section 143 of the Act are initiated suo motu or on an application moved by a bhumidhar with transferable rights and an enquiry is required to be conducted by the Assistant Collector as prescribed under the Act. Section 143 of the Act reads as under:
"143. Use of holding for industrial or residential purposes.--(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 motu or on an application, after making such enquiry as may be prescribed, make a declaration to that effect.
*** (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.
(3) Where a bhumidhar with transferable rights has been granted, before or after the commencement of the Uttar Pradesh Land Laws (Amendment) Act, 1978, any loan by the Uttar Pradesh Financial Corporation or by any other Corporation owned or controlled by the State Government, on the security of any land held by such bhumidhar, the provisions of this Chapter (other than this section) shall cease to apply to such bhumidhar 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."
Where such a declaration is made under Section 143 of the Act, the provisions of Chapter VIII of the U.P. ZA and LR Act (except Section 143) ceased to apply to the bhumidhar with transferable rights with respect to such land.
16. It has been held in Chandrika Singh v. Vishwanath Pratap Singh [Chandrika Singh v. Vishwanath Pratap Singh, (1992) 3 SCC 90] that in order to exclude the applicability of provisions of the U.P. ZA and LR Act on the ground that the land is abadi land, it is necessary to determine that it is in accordance with the provisions of Sections 143 and 144 of the Act and whether such a declaration under Sections 143 and 144 of the Act has been made in accordance with the provisions of the Act. In paras 9 and 15, it was held as under : (SCC pp. 97 & 99) "9. The aforesaid provisions show that under Section 331(1) exclusive jurisdiction in respect of suits, applications and proceedings referred to in Schedule II to 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(1) 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 enquiry as may be prescribed, to make a declaration that a holding or part thereof is being used or held by a bhumidar 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 Section 143) cease to apply to the bhumidar with transferable rights with respect to such land.
***
15. ... In our opinion, the question as to whether a particular land is "land" under Section 2(14) to 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, horticulture or animal husbandry and that is a matter which has to be determined either in accordance with the provisions of Sections 143 and 144 and if such a determination has not been made and such a question arises or is raised in a suit before a court, the procedure laid down in Section 331-A must be followed by the court. 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 agriculture, horticulture or animal husbandry. This determination has to be made in accordance with the provisions of Sections 143 and 144 or Section 331-A of the Act."
17. In the present case, the respondents have not produced any such document which shows that declaration required under Section 143 of the Act has been made, much less registered. In the absence of such declaration, the land is deemed to be an "agricultural land" as per the provisions of Section 3(14) of the Act.
18. The respondents placed reliance upon the recitals in the exchange deed to show that the land is not an "agricultural land". The recitals in the exchange deed can be of no help to the respondents as the said document is a self-serving document and cannot operate as a document to prove that the land is an "abadi land". Likewise, the respondents sought to place reliance upon the counter-affidavit filed by the appellants where it is averred that the suit property is situated in the market area of Munsiari township. The averments in the counter-affidavit filed by the State can be of no assistance to the respondents. For claiming the nature of the land as "abadi land", a declaration as stipulated in Section 143 is required and the said declaration is also required to be registered. As pointed out earlier, the respondents have not produced any document which shows that the declaration as required under Section 143 of the Act has been made. In the absence of such declaration, the land cannot be said to be "abadi land". Since the land is an "agricultural land", the provisions of the U.P. ZA and LR Act are applicable to the land in question."
57. Apparently, the learned Single Judges of this Court, who decided Smt. Gomti Devi and Ajaz Carpets, did not notice the decision of the Supreme Court in Chandrika Singh and others v. Raja Vishwanath Pratap Singh and another, (1992) 3 SCC 90, which has been followed in Akhalaq Hussain by a three Judge Bench of their Lordships.
58. Now, in this case, the Lower Appellate Court, about the status of declaration under Section 143 of the Act of 1950, has recorded the following finding:
"4.......
In the instant case a suit was filed under section 143 Z.A. Act. The S.D.O. Khurja by its order dated 10.12.1975 paper no.39-C declared both the plots 2135 and 2136 as Abadi land. The order dated 10.12.1975 was ex-parte. An application for restoration was moved, whose copy of order 112-C is on record whereby the ex-parte order dated 10.12.1975 was set aside on 13.9.1979. There are other two paper no.31-C and 33-C on record which show that the suit under section 143 U.P.Z.A. & L.R. Act was dismissed and its appeal was also dismissed. It means that no declaration under section 143 Z.A. Act could be made so far. The position is obvious that in absence of any declaration under section 143, the property in question shall be deemed Bhumidhari land."
59. The Lower Appellate Court, upon the finding that there is no declaration under Section 143 of the Act of 1950 with regard to the suit property, proceeded to hold that the Civil Court had no jurisdiction to try the suit in terms of the following remarks:
"14. Learned counsel for the appellant argued that civil court has no jurisdiction to try the suit. I have carefully gone through the record. It has already been observed that the disputed property falls within the definition of land, besides no declaration under section 143 of the U.P.Z.A. & L.R. Act has been made so far. Therefore, the suit for eviction shall lie before the Revenue Court. Civil Court has no jurisdiction to evict a Sirdar or Bhumidhar or a person from the land. It is, therefore, held that Civil Court has no jurisdiction to try the suit."
60. The Lower Appellate Court, based on the status of proceedings under Section 143 and the outcome thereof, has reached a conclusion about the Civil Court not being possessed of jurisdiction to try the suit and rightly so. The said opinion expressed by the Lower Appellate Court on the state of proceedings under Section 143 accords with the legal position noticed by this Court hereinabove.
61. For the reasons indicated hereinabove, we endorse the Lower Appellate Court's opinion that the Civil Court had no jurisdiction to try the suit for eviction. A fortiori, it had to be filed before the Revenue Court of competent jurisdiction as Chapter VIII of the Act of 1950 would apply.
62. In view of what has been said above, Substantial Question of Law No.1 is answered in the affirmative and in terms that the provisions of the Act of 1950 would apply to land let out for non-agricultural purposes and Substantial Question of Law No.3 is also answered in the affirmative in terms that land situate in an urban area, if one to which the Act of 1950 applies, would be deemed to be an agricultural land, unless a declaration under Section 143 of the Act of 1950 is made.
63. This Court has held on Substantial Questions of Law Nos.1 and 3 that in the absence of a declaration under Section 143 of the Act of 1950, the suit property continues to be land within the meaning of the said Act, to which Chapter VIII applies. The Lower Appellate Court has also taken the same view and opined that the Civil Court had no jurisdiction to try the suit. Thereafter, the Lower Appellate Court has considered the plaintiffs' plea that the defendant could not have denied the plaintiffs' right to bring a suit to evict him, because he had accepted the plaintiffs to be his landlord. The pleas of estoppel and acquiescence urged by the plaintiffs were rejected on the principle that there is no estoppel against statute. This finding is based on a different finding elsewhere recorded by the Lower Appellate Court on the merits of the parties' case, where the Lower Appellate Court has held that the plaintiffs having let out the suit property in violation of Section 156 of the Act of 1950, the consequences under Section 165 would attach and the defendant would become a bhumidhar thereof with non-trasferable rights. This Court assumes that this finding has been recorded because either it was admitted or it was nobody's case that the defendant or any member of his family had land with them in excess of twelve and a half acres together with the area of the suit property. Now, to judge the validity of these findings, Substantial Questions of Law Nos.4 and 5 have been formulated.
64. Considering the submissions advanced by the learned Counsel for the defendant (respondent here), this Court is of opinion that both those substantial questions of law do not really arise in this appeal because once the Lower Appellate Court held that the suit property being land governed by the Act of 1950 the Civil Court had no jurisdiction to try the suit, there was no occasion for the Lower Appellate Court to have recorded findings about the merits of the parties' case. It was on account of the remarks of the Lower Appellate Court on the merits of the parties' case that the defendant would become the bhumidhar with non-transferable rights vis-a-vis the suit property under Section 156 read with Section 165 of the Act of 1950 that Substantial Questions of Law Nos.4 and 5 were formulated.
65. This Court, therefore, holds that Substantial Questions of Law Nos.4 and 5 are not involved in the present appeal and refrains from deciding the same.
66. The Lower Appellate Court has dismissed the suit on merits while holding that the Civil Court had no jurisdiction to try it. We have affirmed those conclusions in answering Substantial Questions of Law Nos.1 and 3.
67. The only order, in the opinion of this Court, that could have been made by the Lower Appellate Court, once it came to the conclusion that the Civil Court had no jurisdiction to try the suit, was a direction to return the plaint. That is the order, which we think that this Court ought to make, because, after all, what the Lower Appellate Court and this Court have held, is inherent lack of jurisdiction with the Civil Court to try the suit.
68. In the result, this appeal succeeds and is allowed in part. The impugned decree passed by the Lower Appellate Court shall stand set aside and substituted by an order, under Order VII Rule 10 of the Code, directing a return of the plaint to the plaintiff for presentation to the Court of competent jurisdiction. The Trial Court shall carry out the aforesaid order and ensure return of the plaint within 15 days of receipt of the lower court records.
69. Costs easy.
70. Let the lower court records be sent down to the Trial Court concerned through the learned District Judge, Bulandshahr.
71. Let an order be drawn up accordingly.
Order Date :- 15.2.2024 Anoop (J.J. Munir, J.)