Rameshwar Prasad Verma vs Smt. Seetamani Devi Kushwaha on 11 January, 2019

[Cites 29, Cited by 0]

Allahabad High Court

Rameshwar Prasad Verma vs Smt. Seetamani Devi Kushwaha on 11 January, 2019

Equivalent citations: AIR 2020 (NOC) 130 (ALL), 2019 (3) ALJ 680, (2019) 144 REVDEC 210, (2019) 1 ALL RENTCAS 468, (2019) 2 ALL WC 1220, 2019 (3) ADJ 37 NOC

The present petition is directed against the order dated 18.07.2018 passed by the court of Additional District Judge and Sessions Judge, Court No.,11, Varanasi whereby the application paper no.99-Ga filed by the petitioner under Section 151 of the Code of Civil Procedure, has been rejected.

The brief facts relevant to decide the controversy in hand are that the partition suit namely bearing Original Suit No.517 of 2001 (Smt. Sitamani Devi Kushwaha Vs. Rameshwar Prasad Verma) was instituted before the Court of Civil Judge (S.D.) Varanasi for partition of the house no. D-64/150 and house no. D-064/150-A and half of the plot no.456/610/2 area 0.384 Air at the western side of which, house nos. D-64/150 and D-64/150-A were constructed. The description of the suit properties at the foot of the plaint is relevant to be reproduced herein:-

^^fooj.k tk;nkn rdlhe ryc** edku uEcj Mh0 64@150 e; lgu tehu fLFkr eksgYyk ek/kksiqj f'koiqjok 'kgj okjk.klh ftldk okf"kZd vlslesUV 1080@&:i;k gSA gLo pkSgn~nh tSy %& iwjc & xyh ckngwW edku eksgu yky oxS0 o esok yky if'pe & ckmUMªh oky lEiw.kkZuUn LiksVZl LVsfM;eA mRrj & lM+dA nf{k.k & tehu o edku uEcj Mh0 64@150, QjhdSu ¼2½ Hkou la[;k Mh0 64@150 , e; lgu tehu fLFkr eqgYyk ek/kksiqj f'koiqjok 'kgj okjk.klh ftldk okf"kZd vlslesUV eqcfyx 1080@&:i;k gSA gLo pkSgn~nh tSy %& iwjc & xyh okngw edku jkelwjrA if'pe & ckmUMÂªh oky laEiw.kkZuUn LiksVZl LVsfM;eA mRrj & tehu o edku uEcj Mh0 64@150 QjhdSuA nf{k.k & ckmUMÂªh oky LvsfM;eA ¼3½ Hkw[k.M la[;k 456@610@2 {ks=Qy 0-384 ,;j dk 1@2 ftlds if'pe {ks=Qy esa Hkou la[;k Mh0 64@150 o Mh0 64@150, fufeZr gS 'ks"k {ks=Qy 0-192 gsDVs;j o'kDy ijrh o lgu tehu edkukr etdwj fLFkr eqgYyk ek/kksiqj ekStk f'koiqjok 'kgj okjk.klhA"

As per paragraph no.4 of the plaint, two houses namely D-64/150 and D-64/150-A were constructed by Sri Hanuman Das i.e. father-in-law of the plaintiff over his share of plot no.456/610/2 area 0.192 hectares of which total area was 0.384 hectares. The open land at the southern and north of the two houses was left as 'Sehan' of both the said houses. In paragraph no.5, it is contended that house nos. D-64/150 and D-64/150-A were constructed in an area of four Biswas and the rest of 0.142 hectares of open land was 'Sehan' land adjacent to the two houses. It was further stated in paragraph no.6 of the plaint that the name of father-in-law of the plaintiff was also recorded in the municipal records over two houses and the land was recorded in his name in the revenue records. After death of the recorded owner Sri Hanuman Das, the plaintiff sought declaration of her rights with that of the defendant to the extent of half being owner in possession thereof. As per the plaint averments, the names of the plaintiff and the defendant both were recorded as co-owners in the municipal assessment record as also the revenue records. The defendant/petitioner in the additional plea in paragraph no.16 of the written statement pleaded that the in open piece of land adjacent to the two houses, which was allegedly mentioned as 'Sehan' land in the plaint, was agricultural land to which the plaintiff had no right, title or interest. As far as the right of the plaintiff to seek partition of the suit properties, the same was denied outrightly.

Another suit no.191 of 1998 was also filed by the plaintiff-respondent with the relief of permanent prohibitory injunction against the defendant/petitioner praying that he may not interfere in the possession of the plaintiff over the suit properties till partition of the same.

Both the suits were consolidated and decided vide common judgment and decree dated 11.08.2004 passed in favour of the plaintiff. A preliminary decree of partition with respect to the three sets of the suit property as noted herein above, declaring half share of the plaintiff therein had been granted in her favour. Further, permanent prohibitory injunction has been granted restraining the defendant from interfering in the possession of the plaintiff over the suit property. The judgment and decree dated 11.08.2004 was subjected to challenge in two First Appeal no.993 of 2004 and 994 of 2004 (Rameshwar Prasad Verma Vs. Smt. Sitamani Devi Kushwaha). Both the appeals were decided vide judgement and order dated 31.05.2013 by this Court.

The Special Leave to Appeal (Civil) CC No.19703 of 2013 filed against the judgment and order dated 31.05.2013 of dismissal of both the first appeals has been dismissed on 02.12.2013 at the admission stage itself. Thus, the preliminary decree declaring half share of the plaintiff/respondent in the suit properties has been affirmed uptil the Apex Court.

It appears that pursuant to the preliminary decree of partition dated 11.08.2004, an application under Order 20 Rule 18 of the Code of Civil Procedure (C.P.C.) was filed by the plaintiff on 21.09.2004 for preparation of final decree, which was registered as Misc. Case no.21 of 2004. On the said application, the Amin has prepared a report and partition plan, on which objections were raised by the petitioner, which were rejected vide order dated 03.06.2010 and direction was given for preparation of final decree of partition. The order dated 03.06.2010 was subjected to challenge in First Appeal No.292 of 2010 (Rameshwar Prasad Verma Vs. Smt. Sitamani Devi Kushwaha), which was allowed vide order dated 08.03.2017 on the ground that the court below did not advert itself to the crucial issues raised by the petitioner/appellant that the report of the Amin Commissioner was not in consonance with the description of the properties as given in the preliminary decree as the dispute raised with regard to the total area of the suit properties has not been considered.

It further appears that after remital, pending preparation of the final decree, application paper no.99-Ga under Section 151 CPC was filed by the petitioner raising objection with regard to the jurisdiction of the civil court to pass the relief of partition in respect of one of the suit properties i.e. the open piece of land, described in clause 3 at the foot of the plaint (as reproduced herein above). The assertion in the said application was that the civil court was not competent to pass the preliminary decree of a partition, in as much as, any partition decree with regard to open piece of land, which is Bhumidhari land, can only be passed by the revenue Court. The suit before the civil court for partition of an agricultural land was barred by Section 331 of U.P.Z.A. & L.R. Act' 1950 (hereinafter referred as Act' 1950). It was further stated that the preliminary decree of partition of plot no.456/610/2 being passed by an incompetent court, was null and void. No final decree, therefore, can be prepared by the civil court below.

An objection to this application was taken by the plaintiff/respondent with the assertion that the plea of ouster of jurisdiction of the civil court cannot be taken at the final stage of the Original Suit No.517 of 2001 i.e. at the stage of preparation of the final decree. The objections taken by the petitioner before the trial court regarding lack of jurisdiction of civil court had been rejected which order has become final between the parties. The application 99-Ga was, therefore, not maintainable.

The court of Additional District and Sessions Judge, Court No.11, Varanasi has rejected the application 99-Ga filed by the petitioner vide order impugned on the ground that the preliminary decree of partition has attained finality. The objections taken by the petitioner as to the validity of the preliminary decree cannot be entertained after finalization of the same, at the stage of preparation of final decree. Furthermore, the suit was for partition of two houses and appurtenant land, which was well within the jurisdiction of the civil court. Main relief sought by the plaintiff was for partition of the houses and hence for ancillary relief for partition of the appurtenant land, the suit was well within the jurisdiction of the civil court.

Learned counsel for the petitioner vehemently submits that the said issue has been dealt by the court below against the established principle of law that the civil court has no jurisdiction over the agricultural land. The decree of partition of share of the plaintiff in respect of the open land namely plot No.456/610/2, therefore, being null and void, cannot be executed or enforced. The plea regarding the decree being null and void on the ground of inherent lack of jurisdiction of the civil court can be taken at any stage of the proceeding, even in execution proceedings. The objection of lack of jurisdiction of the civil court taken in the instant case, has been rejected in a cursory manner.

Every court is under obligation to examine as to whether it has jurisdiction to entertain the suit. As the suit for partition before the civil court was barred by Section 331 of the Act' 1950, it was a case of inherent lack of jurisdiction of the civil court. The preliminary decree, therefore, being null and void, final decree cannot be prepared pursuant thereto. Reliance is placed upon the judgments in U.P. State Road Transport Corporation Vs. State of U.P. & another1, Chandrika Singh & others Vs. Raja Vishwanath Pratap Singh & another2 to vehemently submit that where the suit relate to Bhumidhari land, in absence of any declaration in respect of such land under Section 143 or Section 144 of the U.P. Act' 1950, it cannot be treated as 'Abadi'. The suit property namely plot no.456/610/2 being an open piece of land, having not been declared 'Abadi' by the competent authority, cannot be made subject matter of the instant partition suit. It is vehemently contended that on the objection raised by the petitioner in paragraph no.16 of the written statement, it was incumbent upon the civil court to frame an issue to ascertain the nature of the suit property so as to examine its jurisdiction before passing the decree for partition.

Placing reliance upon the judgement of Apex Court in Chief Engineer, Hydel Project Vs. Ravinder Nath & others3, it is contended that neither consent nor waiver or acquiescence of a party can confer jurisdiction upon a Court, otherwise incompetent to try the suit. The decree passed by a court without jurisdiction is a coram non judice. A defect of jurisdiction strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties. Once the original decree itself is found to be without jurisdiction and hit by doctrine of coram non judice, there would be no question of upholding the same merely on the ground that the objection to its jurisdiction was not taken at the initial, first appellate or the second appellate stage.

It must be held that the civil court had no jurisdiction to deal with the suit property and resultantly the judgment of the trial court and the first appellate court affirming the preliminary decree of partition are liable to be set aside and for that reason alone the present petition is liable to be allowed.

Placing Kiran Singh & others Vs. Chaman Paswan & others4, it is contended that it is a fundamental principle that a decree passed by a court without jurisdiction is nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction in respect to the subject matter of the action brought before the court strikes at the very authority of the court to pass any decree and such a defect cannot be cured even by consent of the parties.

Placing Ram Singh & others Vs. Gram Panchayat, Mehal Kalan & others5, it is contended that the plaintiff by presenting a cleverly drafted plaint to circumvent the provisions of law in order to invest jurisdiction in civil court, cannot get indulgence. The question as to the right of the plaintiff in the suit land has to be decided by the competent court of law. The court having no jurisdiction cannot grant any declaration of right of the plaintiff in the suit property.

Placing Chandrika Misir & another Vs. Bhaiyalal6, it is contended that the plea that the court is inherently lacking in jurisdiction, the plea may be raised at any stage, even in execution proceeding on the ground that the decree was a nullity. The jurisdiction of the ordinary civil court is absolutely barred under Section 331 of the Act' 1950 to take cognizance of such suit, application or proceeding mentioned in column 3 of Schedule-II of the said Act in respect of a cause of action for which relief can be granted by the Court mentioned in column 4 of Schedule II of the Act' 1950. The suit for partition of an agricultural land being maintainable before the revenue court, the jurisdiction of the civil court was completely barred.

With reference to the judgment in Ram Awalamb & others Vs. Jata Shankar & others7, it is contended that where the suit is for more than one relief, one or more of them cognizable only by the civil court and at least one relief is cognizable only by the revenue court, it has to be ascertained as to whether the main relief asked for on the basis of the cause of action disclosed in the suit can be granted only by a revenue court. If the real and the substantial relief could be granted only by the revenue court, there remains no doubt that other ancillary relief can also be granted by the revenue court and the jurisdiction shall vests in the revenue court and not in the civil court.

Reference has also been made to the judgements in Bharvad Chhota Bhaga Vs. Bharvad Jaga Dahya8, Official Trustee, West Bengal & others Vs. Sachindra Nath Chatterjee & another9, Mt. Ananti Vs. Channu & others10, Ranvijay Singh & another Vs. Board of Revenue, U.P. at Allahabad & others11, Chandi Prasad Vs. State of Uttrakhand12 and P.P. Bansal Vs. M/s Bhagwati Solvent Extraction Pvt. Ltd.13 to assert that agricultural land shall continue to remain as such till a valid declaration under Section 143 of the Act' 1950 is made and the question as to whether such land was being used for purposes other than agricultural can only be determined in accordance with the provision of Section 143 and 144 of the Act' 1950. The plea of jurisdiction of the civil court to grant relief of partition in respect of the suit land cannot be rejected in a cursory manner. The order of the court below rejecting the objection of the petitioner, therefore, is perverse.

Learned counsel for the respondent, on the other hand, submits that the plea of lack of jurisdiction of the civil court with respect to the suit land was not taken before the court of first instance. The preliminary decree of partition as also the final decree has been challenged in two rounds of litigation by the petitioner before the higher courts of law and has attained finality with the dismissal of the first appellate and SLP (Civil) filed by the petitioner upto the Supreme Court. At that stage of the proceedings, no objection had been taken with regard to the suit land being agricultural land. Mere averments in the written statement regarding the nature of suit land, would not be sufficient to attach infirmity to the decree of partition passed by the court below.

Reliance is placed upon the judgment of this Court in Second Appeal No.1087 of 2007 (Brij Kishor Vs. Rajesh Kumar Gupta) decided on 02.07.2018 and Review Petition No.644 of 2013 decided on 01.12.2015. It is contended that objection as to the exclusion of jurisdiction of the civil court in respect of the subject matter of the suit on the ground that the relief can only be granted by the revenue court has to be taken at the first stage of the proceeding i.e. the court of first instance as is clear from Section 331-A (1) of the Act' 1950. No such objection can be taken at the stage of appeal or revision unless such an objection has been taken in the court of first instance at the time of settlement of issues or before that stage. Further such an issue cannot be raised before the higher court unless a case of consequent failure of justice is made out.

The objection filed by the petitioner at the stage of preparation of the final decree is an effort to stall the proceeding for partition of the suit property. It is not a case where the jurisdiction of the civil court was completely barred, in as much as, the plaintiff has come out with the clear case that the open piece of land adjacent to two houses was being used as 'Sehan' land by the co-owners of the suit property, since a long period of time, even by their predecessor.

Heard learned counsel for the parties and perused the record.

Considering the pleadings of the parties and the description of the suit property as noted herein above at this stage, it would be appropriate to first note, the relevant provisions as contained in Sections 331, 331-(1A) and Section 331-A of the Act' 1950 as under:-

331. Cognizance of soils, etc. under this Act. - (1) Except as provided by or under this Act no court other than a court mentioned in Column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908 (V of 1908), take cognizance of any suit, application, or proceedings mentioned in Column 3 thereof [,] [or of a suit, application or proceedings based on a cause of action in respect of which any relief could be obtained by means of any such suit or application :] [Provided that where a declaration has been made under Section 143 in respect or any holding or part thereof, the provisions of Schedule II insofar as they relate to suits, applications or proceedings under Chapter VIII shall not apply to such holding or part thereof.] [Explanation. - If the cause of action is one in respect of which relief may be granted by the revenue court, it is immaterial that the relief asked for from the civil court may not be identical to that which the revenue court would have granted.] (1-A) Notwithstanding anything in sub-section (i), an objection, that a court mentioned in Column 4 of Schedule II, or, as the case may be, a civil court, which had no jurisdiction with respect to the suit, application or, proceeding, exercised jurisdiction with respect thereto shall not be entertained by any appellate or revisional court unless the objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.] (2) Except as hereinafter provided no appeal shall lie from an order or [decree] passed under any of the proceedings mentioned in Column 3 of the Schedule aforesaid:

(3) An appeal shall lie from any decree or from an order passed under Section 47 or an order of the nature mentioned in Section 104 of the Code of Civil Procedure, 1908 (V of 1908) or in Order 43, Rule 1 of the First Schedule to that Code passed by a court mentioned in Column No. 4 of Schedule II to this Act in proceedings mentioned in Column 3 thereof to the court or authority mentioned in Column No. 5 thereof.

(4) A second appeal shall lie on any of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 (V of 1908) from the final order or decree, passed in an appeal under sub-section (3), to the authority, if any, mentioned against it in Column 6 of the Schedule aforesaid.] 331-A. Procedure when plea of land being used for agricultural purposes is raised in any suit. - (1) If in any suit, relating to land held by a bhumidhar, instituted in any court, the question arises or is raised whether the land in question is or is not used for purposes connected with agriculture, horticulture or animal husbandry, which includes pisciculture and poultry farming, and a declaration has not been made in respect of such land under Section 143 or 144, the court shall frame an issue on the question and send the record to the Assistant Collector in-charge of the sub-division for the decision of that issue only:

Provided that where the suit has been instituted in the court of Assistant Collector-in-charge of the sub-division, it shall proceed to decide the question in accordance with the provisions of Section 143 or 144, as the case may be.

(2) The Assistant Collector-in-charge of sub-division after reframing the issue, if necessary, shall proceed to decide such issue in the manner laid down for the making of a declaration under Section 143 or 144, as the case may be, and return the record together with his finding thereon to the court which referred the issue.

(3) The court shall then proceed to decide the suit accepting the finding of the Assistant Collector-in-charge of the sub-division on the issue referred to it.

(4) The finding of the Assistant Collector-in-charge of the sub-division on the issue referred to it shall, for the purpose of appeal, be deemed to be part of the finding of the court which referred the issue."

A careful perusal of the Section 331 of the Act' 1950 indicates that a bar has been created as to the jurisdiction of the civil court to take cognizance of any suit or proceeding mentioned in column 3 of schedule -II of the Act' 1950 based on a cause of action, in respect of which relief could be granted by the revenue Court. Proviso to Section 331, however, excludes such holding or part thereof, in respect to which, a declaration under Section 143 of the Act' 1950 has been made. Explanation to Section 331 further clarifies that if the cause of action in respect to a relief can be granted by the revenue court, it is immaterial that the relief prayed from the civil court is identical to that which the revenue court would have granted.

A further reading of sub section (1-A) of Section 331 indicates that an objection as to the exclusion of the jurisdiction of the court whether a court mentioned in column-4 of Schedule-II or a civil court, as the case may be, has to be taken before the court of first instance at the earliest possible opportunity i.e. before or at the time of settlement of issues. Such an objection cannot be entertained by the appellate or revisional court, unless it results in failure of justice. Further, Section 331-A provides that if in any suit relating to a land held by a Bhumidhar instituted in any court (including revenue or civil court), if the question arises or is raised as to the user of the land for non-agricultural purposes such as the purpose connected with agricultural, horticulture or animal husbandry (which includes pisciculture and poultry farm) and a declaration has not been made in respect of such land under Section 143 or 144, the Court concerned shall frame an issue on the said question and send the record to the Assistant Collector In-charge of the Sub Division for the decision of that issue only. Proviso to sub section (1) of Section 331-A further provides that if the suit has been instituted in the revenue court, it shall proceed to decide the question in accordance with the provisions of Section 143 or 144, as the case may be.

Sub section (2) and (3) further states that in case of reference, the Assistant Collector In-charge of the Sub Division after re-framing the issue, if necessary, shall proceed to decide the same in the manner laid down for making a declaration under Section 143 or 144, as the case may be and return the record together with his finding thereon to the court which had referred the issue. The referral court, thereafter, shall proceed to decide the suit accepting the finding of the Assistant Collector In-charge of the Sub Division on the issue referred to it. On such determination, under sub section (4), the finding of the Assistant Collector, In-charge of the Sub Division shall be deemed to be part of finding of the referral court.

Normally, Section 331 of the Act' 1950 is attracted in such cases where a declaration of right or status of a tenure holder is necessarily needed. In so far as the relief of partition is concerned, the revenue court can grant such relief only in respect of a land within the meaning of Section 3(14) of the Act' 1950. In respect of 'Abadi' land, it is implied that the land is not being used for purposes connected with agricultural, horticulture or animal husbandry and in view of the definition of land contained in section 3(14) of the Act' 1950 "such land is not land for the purposes of the said Act. Ordinarily, every suit of civil nature can be instituted in the civil court with respect to the subject matter or cause of action which is within its jurisdiction. The question as to whether the civil court would have jurisdiction to grant relief in respect of subject matter of the suit, is the question necessarily of its jurisdiction. There cannot be a doubt about the fact that in respect of a land which falls within the definition of 'land' contained in section 3(14) of the Act, the civil court would not have jurisdiction to grant relief of partition.

Thus, in a partition suit, if an issue is raised as to the user of the land, where there is no declaration under Section 143 of the Act, the civil court would be under obligation to remit the issue to the Assistant Collector In-charge of the Sub Division for making a declaration under Section 143 or 144 of the Act' 1950.

In case of the declaration being granted by the said officer, the findings as to the nature of the land determined by him, shall be accepted by the civil court as it is i.e. in case, the Assistant Collector In-charge grants a declaration in the manner laid down under Section 143 or 144, the civil court would have jurisdiction to proceed with the suit for granting decree of partition.

However, if the Assistant Collector In-charge of the Sub Division refused to make such a declaration, the civil court would have to return the plaint or reject the same for being presented before the revenue court of competent jurisdiction, in relation to the land, subject matter of the suit. It would not be out of place to note herein that in case of refusal to make declaration of the land being non-agricultural land under Section 143 or 144 of the Act' 1950, the aggrieved party would have a remedy to challenge the validity of the said decision under Section 333 of the Act' 1950.

Thus, from the appreciation of the above legal provisions, it is evident that the jurisdiction of the civil court to grant decree of partition with respect to a land not being an agricultural land within the meaning of section 3(14) of the Act or a non-agricultural land, is not excluded or ousted. It is well settled that every cause of action of the civil nature can be brought before the court of ordinary civil jurisdiction and the ouster or exclusion of the civil court on the plea of subject matter of the suit being beyond its jurisdiction, is not to be ordinarily inferred. When an action is brought before the civil court, the plea of lack of jurisdiction of the civil court has to be taken in the court of first instance so that the court may frame issue and settle the same at the inception stage.

There cannot be a doubt to the legal position that every court has to satisfy itself about its jurisdiction to entertain the suit in respect to a cause of action relating to subject matter of the suit. The plea of inherent lack of the jurisdiction of the court on the doctrine of coram non judice can be taken at any stage of the proceeding, even at the stage of execution and even in collateral proceeding, as such a defect cannot be cured by any action or inaction of the parties to the suit. The position of law, thus, as pressed by learned counsel for the petitioner on the strength of the judgments relied upon by him is well settled and leaves no room for doubt that, in case, the court does not have jurisdiction to try the suit in relation to subject matter of the suit, the decision or decree passed by it would be rendered null and void. A decree being nullity cannot be executed by any court of law and if such an objection is taken in execution proceedings, the executing court would stop there. Even in collateral proceeding, if an objection is taken regarding the decree being nullity, the court concerned would ignore the same. But the said legal position would be of no help to the learned counsel for the petitioner as the same is not attracted in the facts and circumstances of the present case.

In the instant case, the suit for partition of three properties as described in the plaint (re-produced in the foregoing paragraphs of this judgment) was brought before the civil court. The dispute herein pertains to only an open piece of land in plot no.456/610/2 area 0.142 hectares. The plaintiff has come out with the clear case that the total area of plot no.456/610/2 was 0.384 hectares, half of which i.e. 0.192 hectares, was in the ownership of Hanuman Das i.e. the plaintiff's fahter-in-law. Two houses namely House no.D-64/150 and D-64/150-A were constructed and the open piece of land at the southern and northern side of the said houses (measuring 0.142 hectares) was being used as 'Sehan land' of the said houses, by father-in-law of the plaintiff namely Hanuman Das who had expired in the year 1989. After death of Hanuman Das i.e. the original owner both the plaintiff and the defendant are in occupation of two houses and 'Sehan' land as co-owners. Their names are recorded in the records of rights as co-owners. Thus, it is clear that the plaintiff had asserted that the open piece of land, subject matter of the suit was being used by both the plaintiff and defendant atleast since before 1989 i.e. during the life time of their predecessor-in-interest namely Hanuman Das as their 'Sehan land'. The defendant though had taken a ground in the written statement that the open piece of land of the two houses is not 'Sehan land' rather it was an agricultural land, but this point was not taken further. It appears that the defendant had given up this assertion at the early stage of the suit itself and as such no issue was framed by the trial court on the maintainability of the suit. This issue was also not pressed before the higher courts i.e. the first appellate court and the Apex Court, while challenging the preliminary decree of partition of the suit properties.

In the case of Ram Padharath Vs. ADJ Sultanpur14, it has been held that the objections as to the exclusion of jurisdiction of the civil court under Section 331(1) of the Act' 1950 has to be taken at the court of first instance, in view of Section 331(1)-A of the Act, which provides that the objections to the jurisdiction is to be taken before framing of issue, otherwise its notice will not be taken by appellate or revisional court with the further rider that unless there is a case of failure of justice, such an objection will not be entertained by a superior court. The said observation has been made with the idea that frivolous and technical pleas of jurisdiction which results in lingering on proceeding or delay or defeat of justice cannot be allowed to be taken. Section 331(1)-A has been inserted by U.P. Act No. IV of 1969 in order to curtail frivolous and technical pleas in litigation.

Further it is held that Section 331 (1-A) of the Act' 1950 is analogous to Section 21 of the Code of Civil Procedure. Section 21 of the Code of Civil Procedure is also in similar language. Section 331 (1-A) of the Act' 1950, like section 21 of the Code of Civil Procedure requires that for ouster of jurisdiction of the Civil Court all the conditions provided therein must co-exist i.e. that objection is raised before the trial at or before framing of the issue and that there has been a consequent failure of justice. The appellate court or revisional court cannot entertain such an objection except when it is established that there has been failure of justice in trial of the proceeding in the court.

The statement of Object and reasons for insertion of Section 331 (1-A) by U.P. Act IV of 1969 as considered in Utkal Contractors and Joinery (P) Ltd. V. State of Orissa15 has been noted therein and that the State legislature intended to put an end to frivolous technical pleas of jurisdiction. The reasons for the amendment rather discourage plea of jurisdiction unless it is really not substantial plea. In doubtful cases, the civil court's jurisdiction cannot be easily ousted. Relevant paragraphs nos. 37, 38, 39 and 40 of Ram Padharath (supra) are relevant to be quoted as under:-

"37. Section 331 (1-A) of the 'Act' provides that objection to the jurisdiction of court is to be taken before framing of issue, otherwise its notice will not be taken by appellate or revisional court, also with a further rider that unless there is failure of justice, notice of such objection will not be taken by the superior court. As frivolous and technical pleas of jurisdiction every now and then were being taken which resulted in lingering on proceedings and delay or defeat of justice, the U.P. Legislature by U.P. Act No. IV of 1969 inserted section 331-(1-A) extracted earlier, in the U.P. Zamindari Abolition and Land Reforms Act. The statement of objects and reasons for U.P. Act No. IV of 1969 itself provides that the said amendment was being made as it was considered necessary in order to curtail frivolous and technical pleas in litigation. The statements and the reasons of a statute cannot be ignored and are to be given due importance and are the safest guide for interpreting a particular statute.

38. Utkal contractors and Joinery (p) Ltd. v. State of Orissa (AIR 1987 SC page 2310) (AIR 1987 SC 1454-Ed.) it was observed :-

"The reason for a statute is the safest guide for its interpretation. The words of a statute take their colour from the reasons for it. The reasons can be discarded from the external and internal aids. No provision in the statute and no word of a statute may be construed in isolation. Every provision and every word must be looked at generally before any provision or word is attempted to be construed. The setting and the pattern are important. Further, parliament is neither expected to use unnecessary expression nor is expected to express itself unnecessarily. Even as Parliament does not use any word without meaning something. Parliament does not legislate where no legislation is called for. Again while the words of an enactment are important, the context is no less important. The general words should be read in context and not in isolation. The context of an Act may well indicate that wide or general words should be given a restrictive meaning. But the rules of construction are mere aid to construction, presumption and pointers, having no binding force. In each case the court must look at all relevant circumstances and decide the weight to be attached to any rule of construction."

The reasons which led the State Legislature to insert section 331 (1-a) in the 'Act' show that the legislature intended to put an end to frivolous and technical pleas of jurisdiction. The reasons of the amendment father discourage plea of jurisdiction unless it is really not substantial plea. It doubtful cases the civil court's jurisdiction can easily be not ousted and a person is not to be deprived from real relief desired and made to remain satisfied with some relief in the present only.

39. Section 331 (1-A)of U.P. Zamindari Abolition and L. Reform. Act is analogous to section 21 of Civil Procedure Code. Section 21 of the Procedure Code is also in similar language. Section 331 (1-A) of Zamindari Abolition and Land Reforms Act, like section 21 Civil Procedure Code, requires that all the three conditions must co-exist i.e., objection is raised before the trial court before framing of the issues and that there has been no failure of justice and the appellate court or revisional court cannot entertain such an objection except when it is established that there has been failure of justice in trial of the proceedings in that court.

40. The Supreme Court interpreting section 21 CPC in Koopilan Ureen's daughter Pathumma and others v. Koopilan Ureen's son Kuntalan Kutty dead by LRs. and others (AIR 1981 SC 1683) observed that all the three conditions mentioned in section 21 (1) of the Civil Procedure Code must co-exist and the failure of justice can be inferred only from the material on record. This indicates that unless it is not established that because the lease was taken cognizance of by a particular court and a party was deprived from tendering evidence or because of procedural defect or difficulty he could not get full opportunity to substantiate his case or things of like nature and the same resulted in failure of justice; the plea of jurisdiction can be entertained only in such circumstances."

As far as ratio of the judgement of the Apex Court in Chandrika Singh (supra) is concerned, the same proceeds on a different principle. The specific question raised in the said case was whether the civil court has jurisdiction to decide whether the land in a suit or proceeding before it is an 'Abadi' or some other land. The issue therein involved was to the interpretation of Section 331-A of the Act' 1950. The provisions of Section 331 (1-A) was neither placed nor it was subject matter of consideration by the Apex Court. The law laid down by the Apex Court in Chandirka Singh (supra) is, therefore, of no help.

In the light of the above discussion, in the facts of the instant case, this Court is of the considered view that the objection as to the jurisdiction of the civil court to grant a decree of partition, in view of bar of Section 331 of the Act' 1950, ought to have been taken by the petitioner at or before determination of issues before the court of first instance so as to determine the right of the plaintiff to seek partition of the suit land. By not taking this objection before the stage of grant of preliminary decree, he has admitted the nature of the suit land being 'Abadi' and having submitted himself to the jurisdiction of the civil court, he cannot be allowed to raise this objection at an advance stage of preparation of final decree that too when the preliminary decree was subjected to challenge by him before the High Court and the Supreme Court. The plea taken by the petitioner that the suit land is not 'Sehan' land of two houses, is thus frivolous and is an effort to frustrate the partition decree. And moreover, there is no dispute about the fact that the suit land lies in a Non-Z.A area and is being used for the last more that 30 years as 'Sehan' of their houses both by the plaintiff and the defendant.

Further the final decree has to be prepared in conformity with the preliminary decree. At the stage of preparation of final decree, no exception can be taken as to the merits of the preliminary decree, which has been affirmed with the dismissal of the first appeal by the High Court and Special Leave Petition by the Apex Court.

No other ground has been pressed.

The present petition, consequently, falls and is dismissed.

Order Date :- 11.01.2019 Himanshu

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Allahabad High Court