Allahabad High Court
Shailendra Tewari And Others vs Ist.A.D.J.Faizabad And Another on 20 February, 2013
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 9 Case :- MISC. SINGLE No. - 2647 of 1993 Petitioner :- Shailendra Tewari And Others Respondent :- Ist A.D.J.Faizabad And Another Petitioner Counsel :- R.S.Pandey Respondent Counsel :- C.S.C. Hon'ble Sudhir Agarwal,J.
1. This writ petition is directed against the judgment dated 26.05.1993 passed by First Additional District Judge, Faizabad allowing appeal filed by respondent no. 2 and setting aside Trial Court's order dated 10.11.1987. The Appellate Court held that suit is cognizable by Civil Court and has directed parties to appear before court below so that the matter may proceed further.
2. It is contended that though the land in dispute is "Banjar land" recorded in revenue records and if there is a dispute of title, jurisdiction lies with Revenue Court and not with Civil Court. Reliance is placed on Apex Court's decision in Kamla Prasad and others Vs. Kishna Kant Pathak and others, 2007(4) SCC 213.
3. However, I do not find any force in the submission.
4. A perusal of plaint shows that suit in question was filed with relief that defendant be restrained from cutting trees standing over land in dispute, which is admittedly a "Banjar land", so recorded in revenue record.
5. The terms "land" has been defined in Section 3(4) of U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act No. 1 of 1951) (hereinafter referred to as the "Act, 1951"). It reads as under:
"3(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."
6. Section 117(1)(iii) of Act, 1951 says that trees (other than trees in the holding on the boundary of a holding or in a grove or abadi) vests in Gaon Sabha. This Court in Mohd. Naqi Khan Vs. State of U.P., 1965 ALJ 609 held that trees standing in the graveyard vest in Gaon Sabha.
7. The term "land" has also been defined in Section 3(5) of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the "Act, 1953"). It reads as under:
"3(5) 'Land' means land held or occupied for purposes connected with agriculture, horticulture and animal husbandry (including pisciculture and poultry farming) and includes--
(i) the site, being part of a holding, of a house or other similar structure; and
(ii) trees, wells and other improvements existing on the plots forming the holding."
8. The term "consolidation" is also defined in Section 3(2) and reads as under:
"3.(2) 'Consolidation' means re-arrangement of holdings in a unit amongst several tenure-holders in such a way as to make their respective holdings more compact.
Explanation- For the purpose of this clause, holding shall not include the following:
(i) Land which was grove in agricultural year immediately preceding the year in which the notification under Section 4 was issued;
(ii) land subject to fluvial action and intensive soil erosion;
(iii) land mentioned in Section 132 of U.P. Zamindari Abolition and Lad Reforms Act, 1950;
(iv) such compact areas as are normally subject to prolonged water-logging;
(v) usar, kallar and rihala plots forming a compact area including cultivated land within such area;
(vi) land in use for growing pan, rose, bela, jasmine and kewra; and
(vii) such other areas as the Director of Consolidation may declare to be unsuitable for the purpose of Consolidation."
9. The comparison of two definitions, as above, indicate that principle part of definition of land in Act, 1953 has been borrowed from Act, 1951 but it has been expanded so much so that for the purposes of Act, 1953 even the site for house or well or trees standing over a plot has been included. The trees etc., however, must exist on a plot which forms part of a holding.
10. The term "holding" under clause (4-C) of Act, 1953 means a parcel or parcels of land held under one tenure by a tenure holder singly or jointly with other tenure holder. Therefore,, land can be holding under Act, 1953 only if it is held by tenure holder that is a Bhumidhari, Sirdari or Asami. If Banjar land can be considered to be land within meaning of clause (3) of Section 3 of Act, 1953, extracted earlier then only it can be held by a Bhumidhar, Sirdar or Asami and shall be covered in the definition of holding. "Banjar land" has not been defined either in two Acts but Section 3(12) of Act, 1953 adopts meaning of word and expression not defined in Act, 1953 but used or defined in Act, 1951. Though in Act, 1951 also there is no definition of "Banjar land" but para 124-A of Land Records Manual framed in pursuance of Land Revenue Act making provision for entry in annual register of field book provides as under:
"(v) otherwise barren.
Note: Sub-clause (v) will include land which cannot be brought under cultivation without incurring a high cost."
11. This indicates that "Banjar land" is that land which is unfit for cultivation and cannot be brought under cultivation without incurring heavy expenditure. It is, therefore, not "land" as defined in the Act. A "Banjar land" is not a "land" under the Act, it also cannot be a holding. That being so, Revenue Courts or consolidation authorities would have no jurisdiction to adjudicate upon the rights and titles of Banjar land. In the context of provisions of Act, 1953 this matter has been examined earlier by this Court.
12. The functions of consolidation authorities are confined to deciding questions relating to tenure holder's rights, i.e., rights of Bhumidhars, Sirdars or Amins in respect of agricultural holding and not beyond that. This is what was hold by Division Bench of this Court in Syed Ashfaq Hasan Vs. Waqf Alal Nafs and Alal Aulad and Alal Ayal, 1967 AWR 337.
13. Similarly this Court in Badri Dube Vs. Commissioner, Varanasi Division, 1969 AWR 317 held that words, 'persons interested' do not include persons who have other rights than the rights of a Bhumidhar, Sirdar and an Asami in respect to Act, 1953. It is in this context the Court held that "Banjar plot" does not form part of a holding and, therefore, trees situate on such a plot of land which is vested in Gaon Sabha it would not be within the jurisdiction of consolidation authorities being not a part of holding and, therefore, in such matters Civil Court has jurisdiction.
14. In Rama v. State of U.P., 1971 RD 520 this Court said:
". . . . . . a Banjar land does not form part of a holding and, therefore, the consolidation authorities had no jurisdiction to adjudicate upon the rights of the parties in respect of the trees in question. It is open to the parties to get their rights adjudicated upon by a competent Civil Court."
15. A doubt arose that decision of this Court in Rama v. State of U.P. (supra) is in conflict with another subsequent decision in Shambhu Vs. Deputy Director of Consolidation Azamgarh, 1975 AWC 469 and the matter came to be considered by a Division Bench in Baijnath Rai and another Vs. Deputy Director of Consolidation, Ghazipur and others, 1986 AWC 919. The view taken by Division Bench in para 2 of judgment fortify the view I have discussed above. The Court held:
"Banjar land is that land which is unfit for cultivation and cannot be brought under cultivation, without incurring heavy expenditure. It is, therefore, not land as defined in the Act. . . . . . . . If trees are planted on a Banjar land or it is let out for planting trees and the trees standing over it or after planting were such in number as to exclude cultivation when fully grown then it becomes grove land."
16. The Court held that a Banjar land is not within the jurisdiction of consolidation authorities so as to take upon themselves in matter of adjudication under Act, 1953. That would also apply, in my view, for Revenue Courts under Act, 1951. The Court, however, further proceeded to observe that there may have been cases where Banjar land let out for converting it into land may be within few years by incurring expenses and planting trees in such a number so as to convert it in a grove land after the trees fully grown. It says, if trees are planted on a Banjar land or it is let out for planting trees and trees standing over it or after planting of such a number as to exclude cultivation when fully grown then it becomes grove land and once Banjar land becomes grove land, the consolidation authorities can decide objections in this regard. That is how the Court resolved both judgments and found no conflict therein. The Court said:
"Any land, therefore, having trees in such number as to preclude cultivation becomes grove-land. And once a land banjar or otherwise, becomes grove land the Consolidation authorities shall have jurisdiction to decide. In cases where right or title is claimed on trees standing over land what has to be decided is if the trees standing over it were such in number that it became grove land. If the finding is in the affirmative the Consolidation authorities shall have jurisdiction to decide right or claim of parties. If the finding is in negative the objection has to be dismissed and parties directed to seek their remedy in Civil Courts."
17. Again a learned Single Judge in Bhawani Pher Tiwari Vs. Narbada Devi, 1989 RD 293 followed the earlier decision in Rama Vs. State of U.P. (supra) and observed:
" . . . . . scattered trees standing over Banjar land cannot be termed as grove and the Consolidation Courts lack inherent jurisdiction in adjudicating upon rights of parties in respect of them."
18. In the present case it is not disputed by parties that land in question is recorded as Banjar and has not become a grove land. The trees standing thereon, therefore, would not form part of land of holding so as to attract jurisdiction of Revenue Court.
19. So far the decision relied by counsel for petitioners in Kamla Prasad and others Vs. Kishna Kant Pathak (supra) is concerned, I find that there the admitted facts therein were, that the defendants had share in property in dispute, as is evident from paras 6, 7, 12 and 13 of the judgment. The Court found that plaintiff's own case was that he and defendants no. 10 to 12 were co-Bhumidhars of disputed land and as such the defendants had also right in disputed property. The execution of sale deed by defendants and plaintiff was also not in dispute but what he claimed that at the time of execution, he was under intoxication, and, the documents got executed by contesting defendants without there being any free will on the part of plaintiff. It is in these facts and circumstances the Court held that question as to how much share belong to plaintiff and defendants respectively is a question which can be determined only by Revenue Court and further that after sale deed, name of plaintiff was deleted from revenue records, and the name of contesting defendants have been entered in his place is also a matter to be decided by Revenue Courts. The question of possession of agricultural land was also to be decided by Revenue Court since the Civil Court could have no jurisdiction to give any finding of possession over agricultural land. The Apex Court in paras 12, 13 and 16 said:
"12. Having heard the learned advocates for the parties, in our opinion, the submission of the learned counsel for the appellants deserves to be accepted. So far as abadi land is concerned, the trial Court held that Civil Court had jurisdiction and the said decision has become final. But as far as agricultural land is concerned, in our opinion, the Trial Court as well as Appellate Court were right in coming to the conclusion that only Revenue Court could have entertained the suit on two grounds. Firstly, the case of the plaintiff himself in the plaint was that he was not the sole owner of the property and defendant 10 to 12 who were proforma defendants, had also right, title and interest therein. He had also stated in the plaint that though in the Revenue Record, only his name had appeared but defendant 10 to 12 have also right in the property. In our opinion, both the Courts below were right in holding that such a question can be decided by a Revenue Court in a suit instituted under Section 229-B of the Act.
13. On second question also, in our view, Courts below were right in coming to the conclusion that legality or otherwise of insertion of names of purchasers in Record of Rights and deletion of name of the plaintiff from such record can only be decided by Revenue Court since the names of the purchasers had already been entered into. Only Revenue Court can record a finding whether such an action was in accordance with law or not and it cannot be decided by a Civil Court.
16. The instant case is covered by the above observations. The lower Appellate Court has expressly stated that the name of the plaintiff had been deleted from Record of Rights and the names of purchasers had been entered. The said fact had been brought on record by the contesting defendants and it was stated that the plaintiff himself appeared as a witness before the Mutation Court, admitted execution of the sale deed, receipt of sale consideration and the factum of putting vendees into possession of the property purchased by them. It was also stated that the records revealed that the names of contesting defendants had been mutated into record-of-rights and the name of plaintiff was deleted."
20. A bare perusal of aforesaid decision thus makes it clearly distinguishable and inapplicable to the facts of present case.
21. For the purpose of U.P. Zamindari Abolition and Land Reforms Act, 1951 (hereinafter referred to as the "Act, 1951") also so far as the meaning of term 'holding' or 'land' is concerned, in respect to land recorded as "Banjar", the law as discussed above would apply equally and, therefore, suit in question is not barred by Section 331 of Act, 1951 and the Civil Court had jurisdiction to take cognizance of suit in question and decide the same. The Appellate Court has rightly taken the view about maintainability of suit in Civil Court, in the judgment impugned in this writ petition, and, I find no legal or otherwise fault therein, warranting interference.
22. In view of above, I find no merit in the writ petition. Dismissed. Interim order, if any, stands vacated.
Order Date :- 20.02.2013 AK