Allahabad High Court
Smt. Uma Mukerji vs The Board Of Revenue Allahabad on 30 July, 2020
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved on: 10.02.2020 Delivered on: 30.07.2020 Case :- MISC. SINGLE No. - 6016 of 2008 Petitioner :- Smt. Uma Mukerji Respondent :- The Board Of Revenue Allahabad Counsel for Petitioner :- D.C.Mukerji,Devendra Mohan Shukla,Dhruv Mathur,K.K.Sharma,Sharavan Kumar Shukla Counsel for Respondent :- C.S.C.,G.S.Nigam,Mohd.Adil Khan CONNECTED WITH: Case :- MISC. SINGLE No. - 5292 of 2010 Petitioner :- Smt. Uma Mukharjee ( U/A 227 ) Respondent :- Special Judge Ayurvedic Scam Case Lucknow And Others Counsel for Petitioner :- Devendra Mohan Shukla,Devendra Mohan Shukla,Dhruv Mathur,K.K.Sharma,Sharavan Kumar Shukla Counsel for Respondent :- C.S.C.,Anurag Srivastava,Mohd.Aslam Khan,Mohiuddin Khan Hon'ble Mrs. Sangeeta Chandra,J.
1. Heard Sri Dhruv Mathur along with Sri Devendra Mohan Shukla, Advocates appearing for the petitioner-Smt. Uma Mukharjee, who has been substituted by her legal heirs i.e. her grandsons by an order of the Court dated 23.4.2012, and Sri Mohd. Arif Khan, learned Senior Advocate assisted by Sri Mohiuddin Khan and Sri K.K. Sharma, Advocates, appearing for M/s. New Hassan Sahkari Awas Samiti, the private respondents contesting in both Writ Petition Nos.6016 (MS) of 2008 and 5292 (MS) of 2010.
2. These writ petitions are being taken up together as they relate to the same petitioners and the challenge raised relates to the same plot of land i.e. Plot No.254/2 at Village Kamta, District Lucknow.
Writ Petition No.6016 (MS) of 2008 has been filed, praying for quashing of the order dated 6.9.2005 passed by the Sub Divisional Magistrate concerned in a Suit relating to partition of the land in question, the order dated 10.4.2007 passed by the Additional Commissioner, Lucknow Division, Lucknow, rejecting the Appeal of the petitioners and the order dated 4.11.2008 passed by the Board of Revenue, rejecting the petitioners' Second Appeal also.
Writ Petition No.5292 (MS) of 2010 has been filed challenging the order dated 26.8.2010 passed by the opposite party no.1-Special Judge, Ayurvedic Scam Case, Lucknow in Revision filed against the order passed by the Civil Judge in Regular Suit No.320 of 2000.
The facts, in brief, are that one Sri Anil Dev Mukharjee, husband of the petitioner Smt. Uma Mukharjee, purchased three plots of land through registered Sale Deed in the name of his 12 year's old minor son Ajay Kumar Mukharjee in Village Kamta on 1.4.1959. The plot numbers given in the copy of the registered Sale Deed filed along with the Writ Petition are Plot Nos.453, 454, 443 ad-measuring 20 Bigha and 5 Biswa. The land in question was later numbered as Gata no.254 and recorded in the name of Ajay Kumar Mukharjee in the revenue records as Bhumidhar during consolidation operations. In 1976, the Urban Land Ceiling and Regulation Act was notified (hereinafter referred to as ''the Urban Land Ceiling Act') and Ajay Kumar Mukharjee was given a notice regarding declaration of vacant land by the Prescribed Authority for the purpose of ceiling. Ajay Kumar Mukharjee filed his objection under Section 8(3), but the Prescribed Authority rejected such objections and declared the land in question as vacant land by order dated 26.11.1979. On 5.2.1987, the State Government declared the area where the plot in question was situated as within the municipal limits of the city of Lucknow. Ajay Kumar Mukherjee died on 29.5.1992. The land in question remained in possession of his widow Reena Mukharjee and minor son Raja Ajay Mukharjee as no action was taken by the State Government for taking possession of land declared vacant on 26.11.1979. After the repeal of the Urban Land Ceiling Act in 1999, Reena Mukharjee and her son Raja Ajay Mukharjee were recorded as tenure holders over Gata no.254 ad-measuring 15 Bigha, 17 Biswa on 25.12.1999. Reena Mukharjee sold off 5 Bighas of land in question to M/s. New Hassan Sahkari Awas Samiti on 19.7.2000.
The petitioner-Smt. Uma Mukharjee filed a Suit before the Civil Judge (Senior Division), Malihabad for declaration of her 1/3rd share in the property in question along with a prayer for Permanent Injunction against the opposite parties, restraining further alienation of the property in question. Initially, an Injunction was granted ex-parte on 21.7.2000 by the trial court, restraining the defendants from alienating 1/3rd of the property in question. On service of notice, the defendant filed an application under Order VII Rule 11 of C.P.C., saying that Regular Suit No.320 of 2000 was not maintainable in view of the bar under Section 331 of the U.P.Z.A. and L.R. Act (hereinafter referred to as ''the Act of 1950'). Reena Mukherjee thereafter sold off another 5 Bighas of land to M/s. New Hassan Sahkari Awas Samiti on 19.7.2001 and on the basis of the said Sale Deed, M/s. New Hassan Sahkari Awas Samiti filed a Partition Suit under Section 176 of the Act of 1950 before the Sub Divisional Magistrate, Lucknow. The petitioner-Smt. Uma Mukharjee was not impleaded as a party and the Suit was decreed, giving 2/3rd share of Plot No.254 to M/s. New Hassan Sahkari Awas Samiti and 1/3rd of the remaining plot was declared to be the property of Reena Mukharjee and Raja Ajay Mukharjee.
The petitioner being affected challenged the order passed by the Sub Divisional Magistrate in Revision, which was allowed and the matter was remanded for fresh consideration with a direction to the Sub Divisional Magistrate to give an opportunity of hearing to the petitioner. Against the order passed by the Additional Commissioner on 17.3.2007, M/s. New Hassan Sahkari Samiti filed an Appeal before the Board of Revenue, which was rejected on 27.8.2003. On remand, the Sub Divisional Magistrate proceeded to pass the order dated 20.10.2004 holding that the Partition Suit was maintainable and granting Decree of Partition, as claimed by the private opposite parties.
Against the order dated 20.10.2004, the petitioner filed Revision No.320/2004-05, which was disposed off on 7.5.2005 with a direction to the Sub Divisional Magistrate to reconsider the question of maintainability of the Suit. The Sub Divisional Magistrate reiterated his earlier decision and by his order dated 6.9.2005 held that the land in question was agricultural land as no declaration under Section 143 of the Act of 1950, had been made with respect to the said land and the question of extension of municipal limits and the question of alteration of land use by issuance of Master Plan declaring the area to be residential would be immaterial in so far as no declaration under Section 143 of the Act of 1950 had been made. The Partition Suit was decreed and the share of opposite party nos.4, 5 and 6 in Writ Petition No.6016 (MS) of 2008 was determined by metes and bounds. The Appeal filed by the petitioner was dismissed by the learned Commissioner on 6.9.2005. Second Appeal No.36 of 2006-07 (Smt. Uma Mukharjee vs. M/s. New Hassan Sahkari Awas Samiti) was also dismissed by the Board of Revenue on 4.11.2008.
Writ Petition No.6016 (MS) of 2008 was filed by the petitioner against the orders of the Revenue Courts. No interim order was granted by this Court initially.
In Regular Suit No.320 of 2000, initially the trial court rejected the application filed under Order VII Rule 11 of the C.P.C., but a Revision was filed against such an order dated 31.3.2001. The Revisional Court allowed the application under Order VII Rule 11 of C.P.C. and rejected the plaint as not maintainable before the Civil Court by its order dated 26.8.2010, relying on the findings returned by the Revenue Court. Hence, Writ Petition No.5292 (MS) of 2010 was filed. An interim order was granted in Writ Petition No.5292 (MS) of 2010 on the first day of hearing i.e. on 1.9.2010 itself, directing the parties to maintain status quo.
It has been alleged during the course of argument that ignoring the said order, Sale Deed was executed by the opposite party nos.2 and 3 in favour of newly impleaded opposite party no.4 to 9, of the remaining 5 bigha and 17 biswa of land of Plot No.254/2.
3. Learned counsel for the petitioners has placed reliance upon a Notification issued on 3.2.1987 under Section 3 of the U.P. Nagar Mahapalika Adhiniyam, 1959 in the name of His Excellency the Governor of U.P., declaring the municipal limits of Lucknow city. It has been submitted that the Eastern Boundary of the city of Lucknow has included the whole of the village Chinhat upto NH-28 and Village Kamta has also been included within such municipal limits.
4. It has also been submitted by the petitioners' counsel that by virtue of the order passed on 26.11.1979 by the Prescribed Authority under the Urban Land Ceiling Act, the land in question i.e. Gata no.254 ad-measuring 15 Bigha, 17 Biswa i.e. 39,583.42 square meters was treated as vacant land, out of which, only 1500 m² of land was left for personal use of Sri Ajay Kumar Mukharjee and numbered as 254/2. Sri Ajay Kumar Mukharjee had filed his objections to the notice issued by the Prescribed Authority in which objections, he had taken the specific ground that the land in question was not included in the Master Plan of Lucknow, the land in question was in Village Kamta, District Lucknow and was not covered under the U.P. Urban Planning and Development Act, 1973 and that no Master Plan as defined under Section 10-A of the Regulation of Building Operations Act had also been notified. The Prescribed Authority had, however, rejected such objections on the ground that under the Regulation of Building Operations Act, a Master Plan had already been prepared and approved for the city of Lucknow by the competent Authority.
5. The Prescribed Authority was referring to a Master Plan prepared under the Regulation of Building Operations Act on 27.1.1970, which brought the land in question within the urban agglomeration earmarking it for "other than agricultural use". This finding was never challenged by Sri Ajay Kumar Mukharjee and became final between the parties. When the Urban Land Ceiling Act was repealed, the land which was declared as "vacant" land reverted back to Sri Ajay Kumar Mukharjee/his heirs. At the time of death of Ajay Kumar Mukharjee in 1992 and its mutation in the name of his heirs in 1999, the nature of land being already settled as a vacant urban land, it could not be now argued by the contesting respondents that the land was agricultural in nature and covered by the Act of 1950.
6. Learned counsel for the petitioners has referred to Section 2(o) of the Urban Land Ceiling Act, which defines open land as that land situated within the limits of an urban agglomeration and referred to as such in a Master Plan or in case where there is no Master Plan, any land within the limits of an urban agglomeration and situated in any area included within the local limits of any municipality but does not include any such land which is mainly used for the purpose of agriculture. The Explanation (B) to Section 2(o) clearly provides that the land shall not be deemed to be used mainly for the purpose of agriculture, if such land is not entered in the revenue or land records before the appointed day as for the purpose of agriculture. Clause-C of this Explanation includes a non obstante clause, which says that notwithstanding anything contained in Clause-B of the Explanation, land shall not be deemed to be mainly used for the purpose of agriculture if the land has been specified in the Master Plan for a purpose other than agriculture.
7. It has been submitted that till such time as the notice was issued under the Urban Land Ceiling Act, 1976, no Master Plan was available under the Urban Planning And Development Act, 1973 (hereinafter referred to as the ''Act of 1973'), but the land was held to be included within the local limits of the Municipality by the Prescribed Authority on the basis of Master Plan prepared and approved under the Regulation of Building Operation Act, 1956.
8. The fact that proceedings under Section 8 of the Ceiling Act were initiated and concluded treating the land in question as "urban land" by the Prescribed Authority, would mean that no further declaration under Section 143 of the Act of 1950 for using the land for any non-agricultural purpose was needed in the eyes of law. It would be deemed to be urban land having no agricultural use for all times to come.
9. It has been submitted further by the learned counsel for the petitioners that the term ''land' as defined under Section 3(14) of the Act of 1950 meant land held or occupied for the purpose connected with agriculture. The operation of the Act of 1950 is limited over the land covered under this definition and once the land is included under an urban agglomeration by any order of the competent Authority, for example, by operation of the Urban Land Ceiling Act, the land seizes to be land under the Act of 1950 and the devolution of such land shall be governed by personal Laws and not according to Section 171 of the Act of 1950.
10. It has been submitted that declaration under Section 143 of the Act of 1950 is required when the land seizes to be agricultural because of it being used by the tenure holder for the purposes other than agricultural, but it does not envisage an eventuality where the land seizes to be agricultural by operation of any law. Section 143 does not prohibit any declaration made under any other Act holding the land to be non-agricultural. Therefore, there would be no need to obtain a fresh declaration under Section 143 of the Act of 1950, once the land has already been declared by the Prescribed Authority to be urban/non-agricultural land under the Ceiling Act. Land having been declared as urban land on 26.11.1979 continued to remain in possession of Sri Ajay Kumar Mukharjee and his heirs thereafter till the repeal of the Act in 1999. No doubt, the Act was repealed in the year 1999 and the ownership reverted to Sri Ajay Kumar Mukharjee/his heirs, but such a reversion would not make the declaration of land as urban land redundant or null and void. The nature of the land would remain urban and reversion of land use from non-agricultural to agricultural would have to be done only by a declaration under Section 144 of the Act of 1950 by the Sub Divisional Magistrate after conducting an enquiry.
11. Learned counsel for the petitioners has emphasized the fact that repeal of the Ceiling Act in 1999 had a limited effect only of reverting the land and its ownership and such repeal would not render the declaration made on 26.11.1979 that the land in question was Urban vacant land meaningless. Learned counsel for the petitioners has placed reliance upon the case of Hari Ram Arya vs. State of U.P. and others, 1984 ALJ 1275 (Paragraphs 7 to 12).
12. This Court in Hari Ram Arya (supra) has observed on the basis of definition under section 2(h) of the Urban Land Ceiling Act that Master Plan as defined under the Act in relation to an area within an urban agglomeration or any part thereof, means the plan, by whatever name called, prepared under any law for the time being in force, or in pursuance of an order made by the State Government for the development of such area or part thereof and providing for the stages by which such development shall be carried out. In the State of U.P., there are two major Acts which provide for Master Plan, they are: the U.P. Regulation of Building Operations Act, 1956 and the U.P. Urban Planning and Development Act, 1973. A Court of Law under the Urban Land Ceiling and Regulation Act, 1976 has not been empowered to go behind the Master Plan and to apply its own mind to the land uses given in the same. A Court dealing in a proceeding under the Act is bound to accept a Master Plan as it is. ".....When there is a Master Plan, the Act extends to all lands situated within the local limits of the Municipality or a local Authority and also covers the peripheral area thereof, but where there is no Master Plan, the applicability of the Act is confined to the municipal limit or the notified area as the case maybe....."
13. Learned counsel for the petitioners has also placed reliance upon a decision rendered in Writ Petition No.8354 (MS) of 2017: Anand Kumar Singh and another vs. State of U.P. and others, on 20.4.2017 by another Coordinate Bench, wherein this Court has dealt with the effect of repeal of an Act. In Paragraph-23 of the judgment, this Court had observed that the repeal of any Legislative enactment means that it must be considered as if such Act never existed. The purpose of repeal is to obliterate the Act from the Statute book except for certain purposes as provided in Section 6 of the General Clauses Act. However, unless a different intention appears, such repeal does not affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder. It also does not affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability etc. incurred under the Act now repealed.
14. It has been argued by the learned counsel for the petitioners that extension of municipal limits of the city of Lucknow by the operation of the Gazette Notification dated 5.2.1987 under the U.P. Municipal Corporation Act, 1959 over the land in question also excluded the land in question from operation of the Act of 1950. In the year 1999 also the city limits of Lucknow were extended beyond the boundaries of the land in question. By operation of Sections 31 and 32 of the U.P. Municipal Corporation Act, 1959, the area included within the municipal limits would be subject to all Notifications, Rules, Regulations, Bye-Laws, Orders and directions issued or made under the said Act or any other enactment in force in the city at the time immediately preceding the inclusion of such area. The exception to this inclusion is the land/area, which is declared agricultural area under the U.P. Urban Area Zamindari Abolition and Land Reforms Act, 1956, by undertaking the procedure prescribed under that Act. It is only a declaration made under the U.P. Urban Area Zamindari Abolition and Land Reforms Act, 1956, which provided for the applicability of U.P.Z.A. and L.R. Act over the agricultural area coming within the municipal limits.
15. There was no evidence adduced before the Revenue or the Civil Courts and even before this Court to show that the area in question was got declared agricultural by a notification issued under the U.P. Urban Area Zamindari Abolition and Land Reforms Act, 1956.
16. It has been argued that the Hindu Succession Act was applicable in the urban limits of the city of Lucknow and after extension of the city limits by a notification on 3.2.1987, the applicability of the said Act was also extended over the area in question and on the death of Sri Ajay Kumar Mukharjee intestate in 1992, the law as applicable for the devolution of the property in question would also apply to the land in question.
17. Learned counsel for the petitioners has placed reliance upon Ram Lal and others vs. Deputy Director of Consolidation, Hamirpur and others, 1988 RD 309; Hari Bans Bahadur vs. State of U.P., 1980 ALJ 545; and Maharaj Singh vs. Deputy Director of Consolidation, Bareilly and others, 1990(8) LCD 609, to buttress this argument.
18. It has been argued by Sri Mohd. Arif Khan, learned Senior Advocate, appearing for the private opposite parties that the zamindari was abolished in agricultural areas lying in city and towns under the 1956 Act. The 1956 Act gave a specific procedure for demarcation of agricultural area within urban agglomeration and after inviting objections and deciding the same, a declaration needed to be published under Section 8 of the Act of 1956 for the demarcated agricultural area to vest in the State free from all encumbrances.
19. It has been argued that the grounds taken in the writ petition are misconceived as "urban land" has nowhere been defined either in the Act of 1950 or in the Act of 1973. The petitioners have raised vague pleas with regard to the definition of "urban land" and "agriculture land" becoming urban land, ignoring the provisions of Section 143 of the Act of 1950. It has been argued that the land in dispute has never been declared as land used for purposes other than agriculture by any of the authorities under the provisions of the Act of 1950.
20. In the counter affidavit filed by the contesting respondents, it has been stated that Anil Dev Mukharjee had purchased the property in question in the name of his minor son Ajay Kumar Mukharjee and remained in possession of the property in question till the death of Anil Dev Mukharjee in the year 1985. On the death of Anil Dev Mukharjee, Ajay Kumar Mukharjee remained in possession of the property in question till 28.5.1992 when he died. On the death of Ajay Kumar Mukharjee, the names of opposite party nos.2 and 3 were recorded as Bhumidhar by the Supervisor Kanoongo in exercise of his powers under Section 33-A of the U.P. Land Revenue Act. Because the property in question was agricultural in nature, it was beyond the scope of the Urban Land Ceiling Act, 1976 and though the declaration was made by the Prescribed Authority on 26.11.1979 of a major part of Plot No.254/2 as vacant land, the possession thereof was never taken from Late Ajay Kumar Mukharjee.
21. On repeal of the Act in 1999 and on the death of Ajay Kumar Mukharjee, the names of opposite party nos.2 and 3 were recorded as Bhumidhar on 25.12.1999. The opposite party nos.2 and 3 sold off 2/3rd of the property in question by two registered Sale Deeds on 19.7.2000 and 19.7.2001 to M/s. New Hassan Sahkari Awas Samiti, Khurram Nagar, Lucknow.
22. The contents of the writ petition have been vehemently denied by the contesting respondents in so far as they relate to the property in question being converted into Urban and non-agricultural land after the Master Plan was issued for the city of Lucknow, incorporating village Kamta therein in 1970 under the Regulation of Building Operations Act, 1956, and after the expansion of municipal limits in February, 1987 and the issuance of Master Plan under the U.P. Urban Planning and Development Act, 1973 in the year 2001 w.e.f. 1992.
23. It has been contended that there was no declaration under Section 143 of the Act of 1950, therefore, the property in question continued to be governed by the provisions of Section 171 of the Act and the petitioner-Smt. Uma Mukharjee could not be considered the legal heir of her son in view of the presence of the son's widow and his son i.e. opposite party nos.2 and 3.
24. Reena Mukharjee and Raja Ajay Mukharjee, the defendants in Regular Suit No.320 of 2000 had filed an application under Order VII, Rule 11 of C.P.C. numbered as Paper no.20-C, contending that no declaration under Section 143 of the Act of 1950 had been made with respect to the property in dispute and it continued to remain agricultural land situated in village Kamta. The names of the defendants in the Suit were recorded as Bhumidhar, not only in the Records of Rights i.e. Khatauni for 1407-1412 Fasli, but also in the Field Book i.e. Khasra of the relevant years. Kisaan Bahi had also been issued in the name of Ajay Kumar Mukharjee, showing the crops of Arhar/Toordaal having been sown on the property in question. It had been submitted in the Application numbered as 20-C that the Suit was not maintainable for declaration of rights on agricultural land in view of the bar mentioned under Section 331 of the Act of 1950.
25. Also, even in areas where Master Plan is available, the land may remain as agricultural or non-agricultural and would be governed by the Statute under which the same was covered before coming into force of the Master Plan. Merely because land was included within the municipal limits of the city of Lucknow would not take it out of the purview of the Act of 1950. It would continue to be governed by the provisions relating to devolution of property of Bhumidhar under Section 171 of the Act of 1950. The provisions of Hindu Law of Succession do not apply in such matters.
26. The contesting respondents further argued that Reena Mukharjee and Raja Ajay Mukharjee had sold of 2/3rd of the property in question to opposite party no.4 in 2000 and 2001 through registered Sale Deeds. The interim injunction granted by the Civil Court in Regular Suit filed by the petitioners was ex-parte and on receiving notices of the said Suit being filed, opposite party no.5 had moved an application under Order VII Rule 11 of the Code of Civil Procedure (for short ''C.P.C.'), praying for rejection of the plaint. The interim injunction continued to operate only on 1/3rd of the property. The opposite party no.4 after purchasing 2/3rd share in the property in Suit wanted to have its land separated and demarcated and, therefore, filed a Suit for Partition under Section 176 of the Act of 1950 before the Sub Divisional Magistrate, Lucknow. Since the petitioner-Smt. Uma Mukharjee was not the recorded tenure holder of the property in question, there was no need to implead her as an opposite party. The rights of the petitioner have yet to be recognized by the competent Court of Law. In this Suit for Partition, a preliminary Decree was passed on 3.1.2003 in which, the rights of the parties were declared. The opposite party no.4 was recognized as purchaser of 2.530 hectares of land of Plot no.254/2 ad-measuring 3.957 hectares. The rest of the plot in question i.e. 1.427 hectares remained with Reena Mukharjee and Raja Ajay Mukharjee. The preliminary Decree was never challenged by the petitioner. Only when the opposite party no.3 ordered preparation of a final Decree on 31.5.2003, the said order for preparation of final Decree was challenged by way of Revision as well as Appeal simultaneously by the petitioner.
27. Learned counsel for the private opposite parties has placed reliance upon (2008) 12 SCC 181: Mahant Dooj Dass (Dead) through LR. vs. Udasin Panchayati Bara Akhara and another, to say that unless a property is demarcated and vested as per procedure prescribed under Sections 3 to 8 of the 1956 Act, the provisions of section 331 of the 1950 Act incorporated in the 1956 Act would not apply and there would not be any bar to the Civil Court to entertain the Suit relating to declaration of rights on agricultural land.
28. Learned counsel for the opposite parties has also placed reliance upon the Statement of Objects and Reasons of the Urban Land Ceiling Act, the Regulation of Building Operation Act, 1956 and U.P. Urban Development and Planning Act, 1973 to say that the application of these three Acts to the Village in question i.e. Village Kamta, District Lucknow would not automatically mean that the requirement of following the procedure prescribed under Section 143 of the 1950 Act and getting a declaration from the Assistant Collector First Class after due enquiry under the said Section has been done away with. The Urban Land Ceiling Act of 1976 was merely aimed at declaring vacant land in urban agglomeration and vesting the same in the State of U.P. for future use of expansion of urban activities of Municipal Corporations etc. The Regulation of Building Operation Act and the Urban Planning and Development Act had only aimed at stopping haphazard growth in urban areas. There was no prohibition for carrying out agriculture in such areas. They only aimed to regulate development through constitution of Housing Boards/Development Authorities. It has been argued that if a Housing Society wishes to develop a residential colony, it shall have to seek a declaration under Section 143 of the Act of 1950. There cannot be any presumption as to automatic declaration under Section 143 and even if no agricultural activities are carried out for several years on such land.
29. Learned counsel for the opposite parties has relied upon The Triveni Engineering Works Ltd. and another vs. Government of U.P. and others, 1978 Allahabad Law Journal 744 and Allauddin alias Makki vs. Hamid Khan, 1971 RD 160, to argue that use of land for purposes not connected with agriculture for a long time would not avoid the necessity of obtaining a declaration under Section 143 of the Act of 1950.
30. Learned counsel for the opposite parties has also relied upon of judgment rendered in Mahendra Singh vs. Attar Singh and others, 1967 RD 191, to say that personal Law like Hindu law or Mohammedan Law is irrelevant for the purpose of determination of Bhumidhari rights. It has been argued that Bhumidhari rights are special rights created by the Act of 1950 for the first time and these new rights are solely governed by the provisions of the Act. By Section 152 of the Act of 1950, the rights of a Bhumidhar are transferable, subject only to the conditions mentioned thereunder. Application of personal Laws regarding devolution of joint family property would curtail the right given to Bhumidhar by Section 152 of the Act. Sections 171 to 173 of the Act of 1950 lay down a special mode of Succession, which is wholly inconsistent with the rights of a coparcener in joint family property as per personal Laws.
31. Counsel for the opposite parties has also relied upon Anis Ahmad and others vs. State of U.P. and others, 1967 RD 75, to argue that a plot of land on which a mosque or a house is situated would not cease to be a land within the meaning of Section 3(14) of the Act of 1950 unless a declaration under Section 143 of the Act is made by the Assistant Collector First Class/Tehsildar after due enquiry in this regard.
32. It has been further submitted that the plea regarding lack of jurisdiction was raised at the initial stage on the basis of Section 331 of the Act of 1950 as a Suit for Declaration of rights is covered under Serial No.34 of Schedule-II attached to the Act. The application under Order VII Rule 11(d) was wrongly rejected by the trial court, but in Civil Revision, the same was allowed and the suit was dismissed for want of jurisdiction, giving liberty to file the same before the competent Revenue Court.
33. Counsel for the opposite parties has also relied upon Magnu Ahir and others vs. Mahabir, 1987 Revenue Judgments 146, to argue that a land shall not be treated to be Abadi land on which Consolidation Authorities would not have jurisdiction, unless the declaration under Section 143 of the Act of 1950 is made, allowing him to use the land for the purpose other than agriculture. A Bhumidhar cannot transfer his land or deal with it otherwise during consolidation operations, on the ground that the land has become Abadi and he could deal with it in any manner he liked. The jurisdiction to grant a declaration under Section 143 lies exclusively in the Revenue Courts. If the question whether certain land has ceased to be used for agricultural purposes is raised before the Civil Court, it is bound to refer the question to the Revenue Court as per Section 331-A of the Act of 1950.
34. Learned counsel for the opposite parties have also relied upon Indrajeet Singh vs. Sardar Arjun Singh and others, 1983 (1) LCD 10, to argue that no declaration having been made in respect of land in Suit as envisaged under Section 143 of the Act of 1950, the land in suit, did not cease to be ''land', and rights of tenure holders could be determined by Consolidation Authority. Even if on certain plots of land, which form part of the holding, constructions were made, such land would not cease to be part of the holding and would continue to be recorded as such and the provisions of the Act of 1950 will cover such land and in the absence of any declaration being granted under Section 143, if any plot of the holding has become Abadi or is used as such, it will continue to be recorded in the holding with the remark against it as "Abadi Shamil Jot".
35. In a supplementary affidavit filed by the petitioners on 14.7.2017, it has been stated that the learned Court below has wrongly relied upon the revenue records, where there was no change of land use recorded in accordance with Section 143 of the Act of 1950. For deciding the issue regarding nature of land and whether it was agricultural or non-agricultural, the learned Courts below have relied upon the reports submitted to the Sub Divisional Magistrate by the subordinate Officials under Section 331-A of the Act of 1950. Under Section 331-A of the Act of 1950, if any Suit relating to land held by the Bhumidhar is instituted in any Court and the question arises whether the land in question is or is not used for the purposes connected with agriculture, and declaration has not been made in respect of such land under Sections 143 or 144 of the Act, the Court shall frame an issue on the question and send it to the Assistant Collector Incharge of the Sub Division for the decision of that issue only. In the proviso to the said Section, it has been mentioned that where the suit has been instituted in the Court of Sub Divisional Magistrate/Assistant Collector Incharge of Sub Division, it shall proceed to decide the question in accordance with the provisions of Section 143 or 144, as the case may be. The Assistant Collector Incharge of Sub Division after re-framing the issue, if necessary, shall proceed to decide such issue in the manner laid down for making of a declaration under Section 143 and return the record together with his finding thereon to the Court which referred the issue. The Court shall then proceed to decide the suit accepting the finding of the Assistant Collector Incharge of Sub Division on the issue referred to it and such finding shall be deemed to be part of the finding of the Court which referred the issue.
36. Section 143 of the Act of 1950 provides that the Assistant Collector Incharge of Sub Division may either on application or Suo Moto make an enquiry in the manner prescribed and make a declaration that the Bhumidhar''s holding or a part thereof demarcated by him, is being used for a purpose not connected with agriculture. Upon the grant of such declaration, the Bhumidhari rights of land shall cease to be governed by the Act of 1950 in matters of devolution, but shall be governed by personal law to which, the Bhumidhar is subject.
37. The procedure to make an enquiry under Section 143 is prescribed under Rule 135 of the U.P.Z.A. and L.R. Rules, 1952. The Assistant Collector Incharge of the Sub Division will cause the enquiry to be made through the Tehsildar or any other officer not below the rank of Supervisor Kanoongo, to satisfy himself that the holding or a part thereof is really being used for the purposes not connected with agriculture. It is mandatory for the Enquiry Officer to make an on the spot inspection and submit his report in the prescribed proforma.
38. It has been submitted in the affidavit that, however, in the case of the petitioners, when objection regarding maintainability of the suit on the basis of land use was raised, the Sub Divisional Magistrate on 11.7.2005 directed the Tehsildar, Sadar, Lucknow to make an on the spot inspection himself and also inspect the records and submit a report. Such an order was again passed on 27.7.2005. On this order being passed, it became the personal responsibility of the Tehsildar, Sadar, Lucknow to have made an on the spot inspection and submit his report. However, the Tehsildar, Sadar, Lucknow deputed the Naib Tehsildar, Chinhat, Lucknow to make the inspection, who instead of making such inspection deputed the Area Lekhpal to carry out the inspection. The Lekhpal submitted two reports, one is dated 8.8.2005, which did not utter a single word regarding use of land at the time of spot inspection, but only spoke of entries in the revenue records, location of the land and non-conversion of land use under Section 143 of the Act. Again another report was submitted on 5.9.2005 reportedly in compliance of some order passed by the higher authority. This Report also is not on the prescribed proforma and an erroneous finding has been given that it was being used for agricultural purposes earlier, but because of pending litigation, it is now lying vacant.
39. Having heard the learned counsel for the parties at length and having perused the orders impugned in the two writ petitions, this court finds that there are four main issues that need to be decided to put the controversy at rest. Firstly, whether declaration under Section 143 of the Act of 1950 is necessary for conversion of land use from agricultural purposes to residential or industrial purposes or such conversion taking the land out of the purview of the Act of 1950 can be presumed by operation of law? Secondly, whether in the absence of a declaration under Section 143 of the Act of 1950, the matter can be referred to under Section 331-A of the Act of 1950 and the finding recorded therein by the Assistant Collector Incharge of the Sub Division or the Sub Divisional Magistrate would automatically bring the land in question outside the purview of operation of the Act of 1950 and within the jurisdiction of the Civil Court? Thirdly, whether the Civil Court could look into the question of jurisdiction raised in an application under Order VII Rule 11 of C.P.C. without Reference to the Court of Sub Divisional Magistrate for a finding to be recorded under Section 331-A of the Act of 1950 and was bound to believe the statement made by the plaintiff as set out in the plaint to assume jurisdiction? and lastly, whether the observations recorded by the Sub Divisional Magistrate while considering the issue under Section 331-A of the Act of 1950 were unassailable and, therefore, rightly affirmed by the Additional Commissioner and the Board of Revenue?
40. For consideration of the aforesaid issues, this Court has first to consider the relevant Section 143, 331 and 331-A of the Act of 1950. The relevant extract of Section 143 of the Act of 1950 is being quoted here in below:
"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."
41. The relevant extract of Section 331 of the Act of 1950 is being quoted here in below:
"331. Cognizance of suits, 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.]"
42. Section 331-A of the Act of 1950 provides as under:
"331-A. Procedure when plea of land being used for agricultural purposes is raised in any suit.- (1) If in any suit, relating to land held by a bhumidhar, instituted in any court, the question arises or is 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]"
43. The manner prescribed for holding an enquiry under Section 331-A is given in Rule 135 of the U.P.Z.A. and L.R. Rules, 1952 (hereinafter referred to as ''the Rules of 1952'), which is being quoted hereinbelow:
"[135. (1) [On an application made by a bhumidhar under Section 143 or on facts coming to his notice otherwise, the Assistant Collector in-charge of the Subdivision may cause enquiry being made through the Tahsildar or any other officer not below the rank of a Supervisor-Kanungo for the purpose of satisfying himself that the bhumidhar's holding or a part thereof is really being used for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming. The enquiry shall be made on the spot and the enquiry officer shall, along with his report also furnish information in the proforma given below:] Name of Village Name of bhumidhar with parentage and residence Khata Khatauni number Area of the holding Land revenue Area of the holding used for non- agricultural purposes The specific non agricultural use to which the holding or part thereof is put to Remarks
(a) Plot No.
(b) Area 1 2 3 4 5 6 7 8 9 (2) Where the proceedings have been started by the Assistant Collector incharge of the Sub-Division on his own motion he shall issue notice to the bhumidhar concerned. Otherwise also he shall give him an opportunity of being heard before coming to a decision in the matter.
(3) Where the entire holding of the bhumidhar has been put to use 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 make a declaration to that effect.
(4) Where only part of the holding of the bhumidhar has been put to use 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 shall make a declaration to that effect accordingly and get the said part demarcated on the basis of existing survey map and actual user of the land.
(5) The Assistant Collector-incharge of the sub-division shall get prepared and placed on record a map showing in different colours the plots put to use for purpose connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming and for purposes not so connected. He shall also apportion the land revenue payable for each part of holding. The land revenue payable for each shall bear the same proportion to the total land revenue as the valuation of part bears to the total valuation of the holding calculated on the basis of rent rates applicable. An entry shall also be ordered to be made accordingly in the khatauni.
(6) The cost of the demarcation shall be realized from the bhumidhar concerned as an arrear of land revenue unless it has been deposited during the course of the proceedings. For the services of the government servants deputed for carrying out the demarcation, the cost shall be calculated according to the time taken in the work at the rates laid down in Paragraph 405 of the Revenue Court Manual.
The cost so calculated shall be deposited in the treasury under the head [LII-Miscellaneous 9-Collection of payments of services rendered.]"
44. With regard to the first question, the law that has been settled by the Supreme Court by its various pronouncements and also by this Court is that unless a declaration is made under Section 143 of the Act of 1950, no land, which is included in the Khasra and Khatauni of the Village concerned can be presumed to be used for non-agricultural purposes and thus, outside the purview of Chapter VIII of the Act of 1950 and the provisions of devolution/succession to such land shall continue to be governed by Sections 169 to 175 of the Act.
45. In Mewa and others vs. Baldev, AIR 1967 Allahabad 358, a Division Bench of this Court was dealing with the issue whether a Suit for Cancellation of a document along with relief of possession would lie before a Civil Court or before the Revenue Court only by virtue of Section 331 of the Act of 1950. The Bench referred to the definition of Land as contained in Section 3(14) of the Act and observed in Para-14 of the report thus:
".......There is no provision now for "land "automatically seizing to be "land" if it is covered by buildings. On the contrary, an elaborate provision has been made in Section 143 onwards whereby land seizes to be land only after a declaration has been made to that effect by the Collector and.....Under the UPZA and LR Act therefore, land remains land until that declaration is given..."
The Bench was examining the question only with reference to the definition of land for purposes of Act of 1950.
46. In Alauddin vs. Hamid Khan, AIR 1971 Allahabad 348, a coordinate Bench observed in Para-8 of the report that; ''....till such time that a Bhumidar does not get the requisite declaration he continues to be governed by the provisions of the UPZA and LR Act irrespective of the fact as to whether he uses his land for purposes connected with agriculture, horticulture etc. or not....'. This case involved, as one of the questions, the question of jurisdiction of Civil Court qua the Revenue Court.
47. In Ratna Sugar Mills Company Limited vs. State of U.P. and others, (1976) 3 SCC 797, the Division Bench of the Supreme Court was considering the Appeal filed by the Mill, which had acquired disputed Banjar land measuring about 277 acres in 1951. Its application under Section 143 of the Act of 1950 for treating the land as industrial land had been rejected by the Sub Divisional Magistrate and against the demand raised for holding tax, the appellant approached the Board of Revenue, which directed levy of holding tax. Having failed before the High Court, the appellant approached the Supreme Court. The Supreme Court held that the appellant held the land as a Sirdar and a Sirdar under Section 146 of the Act of 1950, has the right to exclusive possession of the land and is entitled to use it for any purpose connected with agriculture, horticulture or animal husbandry. It was apparent that after the order was made on the application under Section 143 of the Act of 1950 rejecting the same, the appellant could not be said to hold the land in dispute for industrial purposes. The purpose for which, the appellant could after that date use the land was agriculture and allied activities only. The fact that the appellant did not cultivate the land in question would not warrant exemption from the liability to pay the holding tax. The definition of "land" includes uncultivated land held by a land holder as such. After the rejection of application under Section 143 of the Act of 1950, the land held by a Bhumidhar or a Sirdar continued to be agricultural land even if the appellant did not cultivate the same.
48. In Triveni Engineering Works Ltd. and another vs. Government of U.P. and others, 1978 Allahabad Law Journal 744, a coordinate Bench of this Court while considering the petitioner's case under the U.P. Imposition of Ceiling on Land Holdings Act observed that land will continue to remain "land" if no declaration under Sections 143 or 144 and Chapter VII of the Act of 1950 has been given. The provisions of the Rural Ceiling Act shall, therefore, apply to a Bhumidhar or Sirdar, or anyone, who holds the land for the purposes connected with agriculture, horticulture or animal husbandry, which includes pisciculture and animal husbandry. It seizes to be so only after a grant of declaration under Section 143 and the land shall not form part of his holding as defined in sub-section (9) of the Rural Ceiling Act and the manner of establishing the claim, is by producing a declaration under Section 143(2) of the Act of 1950. So long as a declaration is not granted, a tenure holder continues to be the Bhumidhar thereof and the land although used for industrial purposes remains holding available for determination of ceiling area.
49. In the case of Magnu Ahir and others vs. Mahabir, 1988 RD 301, it was held that land does not cease to be an agricultural land until a declaration under Section 143 is given by the Revenue Court. The decision in the case of Magnu Ahir (supra) proceeds on the basis that the land does not cease to be agricultural so long as it is held for the purpose of agriculture and even if a Sirdar raises constructions on the land held by him, it cannot be said that the provisions of U.P.Z.A. and L.R. Act ceases to have an application thereto. Now whether the land is being used for agricultural purposes or not can be decided only at a trial of the Suit or when the objections raised by the defendants relating to the jurisdiction is taken up for disposal.
50. This Court in Allauddin alias Makki vs. Hamid Khan, 1971 RD 160; Dina Nath Verma and others vs. Gokarna and others, 2003(94) RD 323; Veer Bal Singh vs. State of U.P. and others, 2009(108) RD 124; and Satgur Dayal vs. Sixth Additional District Judge and others, 2013(4) ALJ 595; has consistently held that so long as declaration under Section 143 of the Act of 1950 is not made, the nature of Bhumidhari land will not be changed by raising construction over a part of it and the provisions of the Act of 1950 will continue to apply over it. As no declaration has been made under Section 143 of the Act of 1950, as such, the land remained Bhumidhari land throughout.
51. In Chandrika Singh and others vs. Raja Vishwanath Pratap Singh and Another, 1992 (3) SCC 90, the Supreme Court was considering a case where the respondent had filed a Suit against the appellant seeking a Decree for Ejectment as well as pendente lite and future damages for use and occupation of the land in question. The appellant, who was the defendant stated in his written statement that the land in question ad-measuring 4 Bighas and 10 Biswa had a residential house, a Pucca well, and land appurtenant to the house on 10 Biswa only and the rest of the land ad-measuring 4 bighas was being cultivated by the defendants. The entire area came within the definition of land since no declaration was made under Section 143 of the Act. The defendants also produced extracts of the Khatauni, where in the plaintiffs had been recorded as Bhumidhar of the Suit property. On that basis, it was contended that Section 331-A of the Act of 1950 was attracted and the Suit was not maintainable in the Civil Court inasmuch as it related to agricultural land. The Civil Judge took the view that the land occupied by the building or appurtenant thereto was excluded from the definition of land under Section 3(1)(o) of the U.P. Tenancy Act and, therefore, the disputed property did not come within the definition of land as defined in that Act and was Abadi and it was not a land as defined in the Act of 1950 and the Revenue Court had no jurisdiction and the Suit could be entertained by the Civil Court. The High Court in Revision under Section 115 of the C.P.C. agreed with the Civil Judge.
52. The Supreme Court, however, found that the High Court had failed to exercise its Revisional jurisdiction properly and allowed the appeal. It observed after referring to the definition of land given under the Act of 1950 and Section 3(14) of the Act as that land, which was not mentioned in Sections 109, 143 and 144 and Chapter VII of the Act was to be treated as land held or occupied for the purposes connected with agriculture. It referred to Sections 143, 144 and 331(1) of the Act and then considered the provisions given under Section 331-A of the Act. It quoted the procedure to be followed when a plea of land being used for agricultural purposes is raised in any Suit. It observed that the provision of Section 331(1) gives exclusive jurisdiction in respect of Suits, Applications and Proceedings referred to in Schedule-II of the Act on Court specified in the said Schedule. The Proviso to Section 331(1) lifts the bar in relation to any holding or a part thereof where a declaration has been made under Section 143. Section 143 empowers the Assistant Collector to make an enquiry in the manner prescribed and then to make a declaration that a holding or a part thereof is being used or held by a Bhumidhar for purposes not connected with agriculture. Where such a declaration is made in respect of a part of the holding, the Assistant Collector is required to demarcate the said part. It is only after obtaining such declaration, the land in question would not be covered by the provisions of Chapter VIII of the Act.
53. In Section 331-A where an issue is raised regarding whether the land in question is used or is not used for purposes connected with agriculture and a declaration has not been made in respect of such land under Sections 143 of 144 of the Act, the matter shall be referred to the Assistant Collector Incharge of the Sub Division to make an enquiry in the manner prescribed and give a finding. The Supreme Court observed in Para-10 as follows:
"..........Since there is no declaration under Section 143 the proviso to sub-section (1) of the Section 331 would not be applicable and the bar to the jurisdiction of the court placed under sub-section (1) of Section 331 would be operative. Section 331-A is intended to serve the same purpose as Section 143 and this is done by requiring the court to frame an issue on the said question and send the record to the Assistant Collector in charge of the sub-division for the decision on that issue only and by laying down that the Assistant Collector shall decide the said issue in the manner laid down for making a declaration under Section 143 or Section 144, as the case may be. The court in which the suit is pending has to decide the suit accepting the finding recorded by the Assistant Collector in charge of the sub-division on the issue referred to it but the said finding can be challenged in appeal against the decision of the said court. This would mean that when there is no declaration under Section 143 the bar to jurisdiction of courts placed under sub-section (1) of Section 331 can be lifted by following the procedure laid down in Section 331-A."
(Emphais Supplied)
54. The Supreme Court further observed that in respect of Abadi land, it is implied that the land is not being used for the purposes connected with agriculture and in view of definition of land contained in Section 3(14) of the Act, such land is not land for the purposes of the Act. In order to exclude the applicability of the Act on the ground that the land is Abadi land, it is necessary to determine whether the said land is or is not being used for purposes connected with agriculture. Such determination is envisaged by Sections 143 and 144 and where such a determination has not been made, it is required to be determined in accordance with the provisions of Section 331-A. What is not open to a Court dealing with the Suit in which, said question arises is to bypass the provisions of Section 331-A and to proceed to determine the said question itself. In order to invoke section 331A, three conditions must be satisfied: (a) The suit must relate to land held by a Bhumidhar; (b) The question whether the land is or is not being used for purposes connected with agriculture should arise or be raised in the said suit; and (c) A declaration has not been made in respect of such land under Sections 143 and 144 of the Act of 1950. The Supreme Court rejected the argument raised by the counsel for the respondent that admittedly there is a building on the land in dispute and since the land surrounding the building is appurtenant to the building, the entire area has been rightly held to be Abadi by the Civil Judge and the High Court. It observed in Para-15 as follows:
"........In our opinion, the question as to whether a particular land is "land" under Section 3(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." (Emphasis Supplied) Since the Civil Judge had decided the question himself, he had exercised jurisdiction not vested in him by law and in not following the procedure laid down in Section 331-A, he had committed an illegality in exercise of his jurisdiction, which was required to be rectified by the High Court in its Revisional jurisdiction under Section 115 of the C.P.C.
55. With regard to the third issue framed hereinabove, learned counsel for the petitioner has argued that the point of jurisdiction is based on the allegations of plaint and not the basis of written statement. It sometimes happens that the plaint is drafted in such a clever manner as to bring the Suit within the purview of the Civil Court and, as such, the case laws cited by the learned counsel for the petitioners are not applicable in the facts and circumstances of the present case.
56. The petitioner-Smt. Uma Mukharjee, in response to the application under Order VII Rule 11 of C.P.C., had filed her objections supported by an affidavit numbered as Paper no.26-C. She denied that the land in question was being used for agricultural purposes. She referred to the Master Plan issued on 25.1.1970 under the Regulation of Building Operations Act, 1956, where the property in question as well as other lands in Village Kamta were shown as earmarked for residential purposes. Reference was made to the expansion of municipal limits of the city of Lucknow by a Gazette Notification issued under the U.P. Municipal Corporation Act, 1959 by His Excellency the Governor on 5.2.1987. Reference was also made to the order passed by the Prescribed Authority under the Urban Land Ceiling Act dated 26.11.1979. Reference was also made to the issuance of Master Plan for the city of Lucknow in the year 2001 including the Village in question under the U.P. Urban Planning and Development Act, 1973. This Master Plan was made effective retrospectively w.e.f. 1991.
57. Taking into account the said contentions raised by the plaintiff in her objections Paper no.26-C, the Application under Order VII, Rule 11 of C.P.C. numbered as Paper no.20-C was rejected by the learned trial court, holding that since the land question had come within the municipal limits of the city of Lucknow, it could no longer be governed by the Act of 1950.
58. Against such an order passed on 31.3.2001, opposite party nos.2 and 3 filed Civil Revision No.220 of 2003, which was entertained and allowed by the opposite party no.1 by the order dated 26.8.2001 in Writ Petition No.5292 (MS) of 2010.
59. In the order impugned dated 26.8.2010, first the facts as mentioned in the plaint by the plaintiff and the facts as mentioned in Application No.20-C and objections, Paper no.26-C have been mentioned by the opposite party no.1 in great detail as also the case laws relied upon by the rival parties. However, considering the record/documentary evidence as submitted along with the Application No.20-C i.e. Khatauni, Khasra, Kisaan Bahi and the case laws of this Court with regard to the necessity of declaration under Section 143 of the Act of 1950 for converting the agricultural land for non-agricultural use, the Revisional Court has allowed the Civil Revision.
60. One of the grounds taken for allowing the Civil Revision is also the order passed by the Board of Revenue dated 4.11.2008, reported in 2009 (106) RD 19 in respect of Smt. Uma Mukharjee vs. Smt. Reena Mukharjee and others, wherein the Board of Revenue has held that mere publication of Master Plan would not automatically convert agricultural land situated in the Village into urban and residential land. Since there was no declaration under Section 143 of the Act of 1950, the provisions of Section 171 of the Act of 1950 would continue to apply with respect to succession/devolution of the property of a Bhumidhar, who died interstate. It was held by the Revisional Court that since the widow and son of the Bhumidhar Late Ajay Kumar Mukharjee were alive, there was no question of grant of any share of the property in question to his widowed mother Smt. Uma Mukharjee.
61. In Ram Awalamb and others vs. Jata Shankar and others, 1968 RD 470, a Full Bench of this Court has observed that ''if the Suit is maintainable for the main relief in the Civil Court, then there is no bar for the Civil Court to grant all possible reliefs flowing from the same cause of action. The determination of the question as to which out of the several reliefs arising from the same cause of action is the main relief will depend on the facts and circumstances of each case.' It has been further clarified and observed that ''where on the basis of a cause of action- (a) the main relief is cognizable by the Revenue Court, only the fact that the ancillary relief claimed are cognizable by the Civil Court would be immaterial of determining the proper forum of the suit; (b) the main relief is cognizable by the Civil Court, the suit would be cognizable by the Civil Court only and the ancillary reliefs which could be granted by the Revenue Court may also be granted by the Civil Court.' (Emphasis Supplied)
62. In Ram Padarath and others vs. IInd Additional District Judge, Sultanpur 1989 RD 21 (FB), a Full Bench of this Court after referring to Section 31 of the Specific Relief Act, which makes a specific provision for cancellation of void as well as voidable documents, observed that voidable documents are those whose legal effect cannot be put to an end without they being cancelled by a declaratory decree in this regard by the civil court in a regular suit filed under Section 31 of the Specific Relief Act. A void document however is not required to be cancelled necessarily. Its legal effect, if any, can be put to an end by declaring it to be void and granting some relief based upon such observations instead of canceling it. Once it is held to be void it can be ignored by any court or authority, being of no legal effect or consequence. For such a void document to be declared so, a person may approach the competent civil court however if apart from cancellation, some other relief is claimed which is the "real relief" and the claim for which provides the proximate ground or reason for approaching the court of law, or when any other relief can be claimed or is involved in the matter cropping up because of the evidence of the void document or instrument, and the "real relief" claimed is one which is mentioned in schedule II of U.P. Zamindari Abolition and Land Reforms Act, the same can be granted by the revenue court only, and the jurisdiction of the civil court to grant such a relief or reliefs is ousted by section 331 of the U.P.Z.A. & L.R. Act . The law relating to right, title and interest over agricultural land is contained in U.P. Zamindari Abolition and Land Reforms Act. The said Act being a special Act, enumerates in schedule II the types of suits etc, the cognizance of which is to be taken by the Revenue Court specified therein. In the Explanation attached to Section 331, it has been specifically mentioned that 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 be identical to that which the revenue court would have granted.
63. The Full Bench after considering the phrase "cause of action" and the phrase "any relief", as mentioned in Section 331 of the Act, came to the conclusion that the Explanation to Section 331 has enlarged its scope further. The cause of action may determine the form and keeps the jurisdiction of the revenue courts intact as also the reliefs of the nature which is mentioned under Schedule II of the U.P.Z.A. & L.R. Act. The Full Bench observed that the reliefs of the nature mentioned in Schedule II of the U.P.Z.A.& L.R. Act can be claimed from the Revenue Court which can take cognizance of such suit or proceeding, notwithstanding that the relief provided in a different language can also be granted by the Civil Court.
64. If no relief can be granted to a person unless the declaration of his tenancy rights is made, in that situation the suit would be cognizable by the revenue court as such a declaration can only be granted by the revenue court. Even in cases where the suit is for injunction and/or possession if he is out of possession, then the suit will be cognizable by the revenue court notwithstanding that any relief for injunction may otherwise be granted by the civil court.
65. The Full Bench observed in Ram Padarath (supra) in Para-19 thus:-
"19. If more than one reliefs are claimed by a particular person, no relief can be granted to that person unless declaration of his tenancy rights is made and in that situation the suit will be cognizable by the revenue court as declaration can be granted by the revenue court. Similarly if a person claims relief of injunction and in the alternative for possession if he is found to be out of possession and his name is not on the record then without declaration that in fact he is the tenant or he is in possession of the tenancy rights no further relief can be granted and the suit is cognizable by the revenue court. In case the suit is for injunction and/or possession if he is out of possession then the suit will be cognizable by the revenue court notwithstanding the relief for injunction is to be granted by the civil court.........The Civil Court would have no Jurisdiction as the case first involved declaration of right as tenure-holder which could be granted by the revenue court only and thereafter relief could have been granted only if he was held to be tenure-holder by succession........"
(Emphasis Supplied) Similarly, in Indrapal vs. Jagannath 1993 ALJ 235, this Court observed in Para-9 as follows:
"9. Thus, the essence of the matter in deciding whether the suit is cognizable by the civil Court or the revenue court is whether Section 331 of the U.P. Zamindari Abolition and Land Reforms Act is attracted to the facts of the case. If in substance, the main question involved relates to declaration of right or title, then the suit would lie in the revenue court and not in the civil Court......." (Emphasis Supplied)
66. The Full Bench in Ram Padarath (supra) relied upon Chandrika Misir versus Bhaiya Lal; AIR 1973 SC 2391, which had said in a case arising out of a suit for injunction and in the alternative for possession in respect of agricultural land, that in view of Schedule II of the U.P.Z.A. & L.R. Act, the relief of possession could only be granted by the revenue courts under Section 331 of the Act and thus ousted the jurisdiction of the Civil Court. The Supreme Court observed that the civil court would have no jurisdiction as the case first involves the declaration of rights as a tenure holder which could only be granted by the revenue courts, and thereafter relief could have been granted regarding injunction to protect possession. In paragraph 22, the Full Bench observed that the forum for action in relation to void documents or regarding agricultural land depends on the "real cause of action" with reference to the facts averred. Void documents necessarily do not require cancellation like voidable documents.
67. Ram Padarath (supra) has been quoted with approval by the Supreme Court in paragraph 18 of its judgment in Bismillah versus Janeshwar Prasad and others, 1990 (1) SCC 207.
68. In Jai Prakash Singh vs Bachchu Lal and others, 2019 SCC Online Allahabad 3522, a coordinate Bench of this Court was considering the question as to under what circumstances, the Suit for Cancellation of a Sale Deed of agricultural property would lie before the Civil Court or the Revenue Court?
69. In Jai Prakash Singh (supra), the Court was considering a case where the Suit for relief sought was Permanent Injunction and Cancellation of Sale Deed. It has been stated that the defendant was the recorded tenure holder of the property in question at the time when the Sale Deed was executed. The plaintiff was not the recorded tenure holder. In the written statement, in Paragraph 24, a plea was taken to the effect that the Suit involves declaration of title and, therefore, it should have been filed before the Revenue Court and not in the Civil Court and that the Civil Suit is not maintainable. It was also submitted that the plaintiffs have no right title or interest in the property in Suit and they are not in possession of the same. In view of this plea of maintainability of the Suit being taken in written statement, the Issue No.1 was framed by the trial court. The trial court directed the return of plaint under Order VII Rule 1 for presentation before the competent Court. The Court considered the view taken by the learned Court below that declaration to the effect that transfer is void amounts to cancellation of Transfer Deed and as such, the declaration of right, title and interest by the Revenue Court would suffice. It observed that the Supreme Court in Suhrid Singh alias Sardool Singh versus Randhir Singh, (2010) 12 SCC 112, had observed as under:
"Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him." (Emphasis Supplied) This Court in Jai Prakash Singh (supra) observed that ''if sale deed executed by a person is challenged by another person on the ground that even though immediately before the sale deed only the name of vendor/vendors was undisputedly recorded in the revenue records, still plaintiff had a right in the revenue records, still plaintiff had a right in the said land, then such suit is not maintainable before Civil Court, as it primarily involves question of declaration of right in the agricultural land. In such a situation, it is not actually the sale deed and state of affairs coming in existence by execution of the sale deed which is being challenged. The challenge in such a situation in real sense is to the position and affairs in existence immediately before the execution of the sale deed. If a person asserts that apart from the recorded tenure-holder he also has got a right in the agricultural land then his only remedy lies in filing a suit for declaration before the Revenue Court.......' (Emphasis Supplied) This Court held that the Suit would lie before the Revenue Court.
70. In Jai Prakash Singh (supra), this Court also considered the judgment rendered by the Supreme Court in Deoki Nandan vs. Surja Pal, 1996 RD 70, and the judgment rendered in Shri Ram vs. First Additional District Judge, reported in 2001(3) SCC 24, where the Supreme Court observed in Para-7 as follows:
"7. On analysis of the decisions cited above, we are of the opinion that where a recorded tenure-holder having a prima facie title and in possession files suit in the civil court for cancellation of sale deed having been obtained on the ground of fraud or impersonation cannot be directed to file a suit for declaration in the Revenue Court, the reason being that in such a case, prima facie, the title of the recorded tenure-holder is not under cloud. He does not require declaration of his title to the land. The position would be different where a person not being a recorded tenure-holder seeks cancellation of sale deed by filing a suit in the civil court on the ground of fraud or impersonation. There necessarily the plaintiff is required to seek a declaration of his title and, therefore, he may be directed to approach the Revenue Court, as the sale deed being void has to be ignored for giving him relief for declaration and possession."
(Emphasis Supplied)
71. In Azhar Hasan versus District Judge, Saharanpur, 1998(34) ALR 152 (SC), the Supreme Court observed as under:
"On reading the plaint and on understanding the controversy, we get to the view that whether those persons who succeeded the recorded tenants, were rightly recorded as tenants or not, was a question determinable by the Revenue Authorities. Besides that, the sale deed which has been questioned on the basis of fraud, was not executed by the plaintiffs but by others, and they were not parties thereto so as to allege the incidence of fraud, In these circumstances, we are of the view that the plaint was rightly returned to the plaintiffs. They are even now at liberty to approach the Revenue authorities and claim deduction of time spent in these proceedings, in computing limitation for the purposes of the suit."
(Emphasis Supplied)
72. In Kamla Prasad vs. Krishna Kant Pathak (2007) 4 SCC 213, the Supreme Court observed, after referring to the judgment rendered in Azhar Hasan (supra) thus:
"...No doubt there is no relief of declaration of ownership of agricultural land specifically sought in the plaint, but in essence the claim of plaintiff was based on his ownership right of the disputed land, while the plea of defendant was that plaintiff was not owner of the property. Then adjudication of title of land in substance was the main question involved in the suit, although, it was not expressly prayed for in plaint. Therefore, in substance, when the main question involved for adjudication in this case relates to declaration of right or title then suit would lie in revenue court and not in civil court. Therefore, in such matter the jurisdiction of civil court is barred under Section 331 of UPZA & LR Act. This provision of Section 331 is attracted when in substance main question to be determined for resolving dispute between parties relates to declaration of rights or title of agricultural land....."
(Emphasis Supplied)
73. This Court finds from a perusal of the pleading on record in both the writ petitions that the pith and substance of the dispute between the parties is the ownership of agricultural land and the point regarding the authority to execute a valid Sale Deed becomes an ancillary matter. Since the main dispute relates to the title of agricultural land, which is within the jurisdiction of the Revenue Court, therefore, the ancillary dispute relating to Sale Deed of such land would also come within the jurisdiction of the Revenue Court.
74. Smt. Uma Mukharjee is not recorded as tenure holder on the aforesaid plot of land in the revenue records i.e. Plot No.254/2 admeasuring 3.57 hectare and 2/3rd of the plot in question is lying vacant and has not yet been declared under Section 143 of the Act of 1950 as being used for Abadi. The land in question is capable of being put to agricultural use. The land in question has not yet been acquired under any housing scheme under the Land Acquisition Act.
75. Till such time that Competent Authority did not make a declaration under Section 143 of the Act of 1950 for the land in question, changing its nature from agricultural to land used for other purposes, the jurisdiction to hear the Partition Suit would remain with the Revenue Courts. Since in the revenue records, Plot No.254/2 was still recorded as agricultural land and was also being used for agricultural purposes and the name of Smt. Uma Mukharjee was not recorded as co-tenure holder in the Khatauni, she could not be heard in the Partition Suit and the only course open to her was to first get a declaration of her rights before the Revenue Courts. Smt. Uma Mukharjee had failed to show any right, title or interest on the property in question nor could she prove that the land in question was being used for residential/Abadi land.
76. The objection dated 23.7.2005 filed by Smt. Uma Mukharjee was rejected and the order dated 20.10.2004 passed earlier by the Sub Divisional Magistrate was found to suffer from no infirmity so as to require its modification by the First Appellate Court and Second Appellate Court. The finding as recorded by the Sub Divisional Magistrate is quoted as follows:-
"... spasht hai ki vivadit bhoomi krishi yogya bhoomi hai jiska upyog aavasiya roop mein nahin kiya jaa raha hai. aisi sthiti mein prashngat vaad rajasva nyayalay ko sunane ka poorna adhikaar prapt hai. Yah bhi spasht hai ki vivadit bhoomi ka do tihaai bhang vartaman mein rikt pada hai. Jab tak vivadit bhoomi Dhara 143 ke antargat aavasiya bhoomi saksham adhikaari dwaara nahin kar di jaati hai athva saksham adhikaari dwaara bhoomi ka swaroop parivartan nahin kar diya jaata hai tab tak prashn gat vaad ko sunane ka adhikaar is nyayalay ko prapt hai. Chunki vivadit bhoomi vartaman samay mein bhi intakhab khatauni 1410 se 1412 Fasli Gram Kamta ke Khata Sankhya 62 par sankramaniye bhumidhar ke roop mein ankit hai jisse spasht hota hai ki vivadit bhoomi abhi bhi krishi bhoomi ke roop mein prayog mein layi jaa rahi hai jisse tay karne ka adhikaar is nyayalay ko prapt hai...." (Emphasis Supplied)
77. The Additional Commissioner in his order dated 10.4.2007 while dealing with the Appeal, has mentioned in the first few pages of his order, the facts relating to the history of litigation between the parties.
78. In the revenue records, the name of Smt. Uma Mukharjee was missing. The land in question was recorded in the name of the erstwhile Bhumidhar Ajay Kumar Mukharjee and thereafter his dependents i.e. his widow Reena Mukharjee and son Raja Ajay Mukharjee. Five bighas of land was bought on 19.7.2000 and 5 bighas of land was again bought on 19.7.2001 and the contesting respondents thus became co-tenure holders. For partition of its share, a Partition Suit was filed by M/s New Hassan Sahkari Awas Samiti, in which a preliminary Decree, determining the shares between the co-tenure holders was passed on 3.1.2003. This order was not challenged. When the final Decree, partitioning the land in question by metes and bounds was issued on 31.5.2003, the same was challenged and the matter was remanded.
It is not relevant for the purposes of determining the nature of land that a notification dated 5.2.1987 was issued for expanding the municipal limits of the city of Lucknow and agricultural land would not become urban land only because of such notification. Even if Master Plan was issued under the Regulation of Building Operation Act or the Urban Planning and Development Act, it would only mean that the area in question would now be governed by the Lucknow Nagar Nigam in so far as taxes and other civic amenities were concerned.
A Partition Suit is filed between the co-sharers of a property and not for declaration of share of strangers. Smt. Uma Mukharjee not being recorded tenure holder was a stranger to the property. In case she wanted to be declared as co-tenure holder with 1/3rd share on the property, then a Suit for Declaration under Section 229-B of the Act of 1950 ought to have been filed, where the State Government and the Gram Sabha would have been impleaded as parties. In a Suit for Partition under Section 176 of the Act of 1950, the State Government and the Gram Sabha are not necessary parties, hence no fresh rights of strangers can be declared on the land in dispute.
An agricultural land would continue to remain an agricultural land till such time as a notification/declaration under Section 143 of the Act of 1950 is not issued. Since no declaration under Section 143 of the Act of 1950 had been issued, Smt. Uma Mukharjee had no right to object on the basis of personal law. Moreover, the initial Sale Deed was executed on 19.7.2000, and the Regular Suit No.320 of 2000 was filed later on and an ex-parte ad-interim injunction only with respect to maintenance of status quo on 1/3rd part of Plot No.254/2 had been granted. The Temporary Injunction was operative only on 1/3rd of the land in question. Also, in the Regular Suit No.320 of 2000, an application under Order VII Rule 11 of C.P.C. had been filed, as the Suit was barred by Section 331 of the Act of 1950. The ex-parte temporary injunction had been passed on misrepresentation by the plaintiff Smt. Uma Mukharjee that the land in question was Abadi land, not covered under the bar of Section 331 of the Act of 1950.
79. Since the land in question was agricultural land and the Civil Court had no jurisdiction to decide the suit in question, the jurisdiction to declare rights in agricultural land lay exclusively with the Revenue Court and the Notification dated 3.2.1987, expanding the municipal limits of the city of Lucknow would not mean that the Act of 1950 would stop being applicable to the area. As long as no resumption of land is made under Section 117 of the Act of 1950 by the Government/Competent Authority, the land in question would continue to remain agricultural and be governed by the definition under Section 3(14) of the Act of 1950. If the State Government deems it proper, it can transfer by way of notification under Section 117 the land belonging to a Gaon Sabha to some other local authority, namely, Lucknow Nagar Nigam, but even after such transfer of land, the nature of land would not change. The Gaon Sabha would be replaced by the local authority viz. Nagar Panchayat or Nagar Palika or Nagar Nigam. The nature of land which is agricultural under the Act of 1950 would remain the same as it has been held by this Court time and again that once the land comes under the operation of the Act of 1950, it shall remain to be so till a specific notification is issued by the State Government making the Act inapplicable. If the Act of 1950 becomes applicable on a particular piece of land and such land later on comes within the expanded limits of a municipality, still the Act of 1950 would continue to apply on the same land.
80. With Regard to the procedure followed and the decision arrived at by the Sub Divisional Magistrate, the Additional Commissioner after perusal of record of the case, came to the conclusion that the Sub Divisional Magistrate had summoned a report from the Tehsildar concerned, which report was based on the spot inspection, therefore, there was no procedural impropriety found in the order impugned. The notification of the Master Plan only meant that the area in question was now to be controlled by the Regulations relating to construction being raised by the owners of the land. It did not affect the jurisdiction of the Revenue Courts. The Revenue Courts' and the Civil Courts' jurisdiction is determined by the relevant Statutes.
In the land in question, crops were being sown, although it may have been shown to be included within the municipal limits of Lucknow. The Additional Commissioner observed that the question of jurisdiction of Revenue Courts to decide the Partition Suit was based upon the issue whether the land in question was Abadi land or agricultural land and when the issue would be decided either ways, it would govern the fate of the Partition Suit. For the decision of the issue, a finding had been recorded by Sub Divisional Magistrate under Section 331-A of the Act of 1950. This Court does not find the order of the Appellate Court as suffering from any infirmity.
81. In the order dated 6.9.2005, the Sub Divisional Magistrate has considered the report of the Tehsildar dated 5.9.2005 by which, he had informed that in Village Kamta, Plot No.254/2 was recorded in the Khatauni of 1410 to 1412 Fasli as agricultural land. In the Khata No.62, the name of M/s. New Hassan Sahkari Awas Samiti through Secretary Mohd. Khaliq was recorded on 2.530 hectares of land and in Khatauni, Khata No.128 Ajay Kumar Mukarjee son of Anil Dev Mukharjee and Reena Ajay Mukharjee wife of Ajay Kumar Mukharjee were recorded on 1.427 hectare as Bhumidhar with transferable rights.
82. This Court finds that the Sub Divisional Magistrate's order does not suffer from any infirmity in the facts of the case. If indeed Kamta was included in Municipal limits, then consolidation operations would not have been carried out in the area, but admittedly consolidation did take place and the land purchased by Anil Dev Mukarjee for his son was given a new Chak number.
83. Section 143 occurs in chapter VIII of the Act of 1950, which consists of several Sections from Section 129 to Section 230 out of these, many relate to Bhumidhar in particular. As per Section 169 read with Sections 171 to 175 dealing with devolution to the holding of a Bhumihar, a declaration under Section 143(1) and sub-section (2) thereof would make a Bhumidhar's succession to be governed by personal law. The declaration under Section 143(1) is envisaged in respect of a holding of a Bhumidhar where it is used for the purpose not connected with agriculture and allied activities. The declaration can be sought by a Bhumidhar by making an application. This would become necessary or otherwise the provisions of chapter VIII of the Act of 1950 would be applicable to it. It is implicit in the request of a Bhumidhar for a declaration under Section 143(1) that the land would not be used for purposes of agriculture.
84. Admittedly, the Suit of the contesting respondents was for partition under Section 176 of the Act of 1950, which related to agricultural holding and that jurisdiction of the Civil Court is specifically barred under the provisions of Section 331(1) of the Act of 1950, which provides that no Court other than the Court mentioned in Column-4 of Schedule-II, take cognizance of any Suit or proceedings mentioned in Column-3 thereof on a cause of action in respect of which, any relief can be given by such Court. The Proviso to such Section says that where a declaration is made under Section 143 in respect of a holding or a part thereof, the provisions of Schedule-II in so far as they relate to Suits, applications or proceedings under Chapter VIII shall not apply to such holding or part thereof. Since the contesting respondents had claimed 2/3rd share in the land in question and partition and separation of their share under Section 176 of the Act of 1950, as such, the same could be entertained only by the Revenue Court. The Explanation appended to the said Section really provides that if the cause of action is one in respect of which, relief may be granted by the Revenue Court, it would be immaterial that the relief asked for from the Civil Court may not be identical to that, which the Revenue Court may have granted.
85. In the instant case, the plaintiff while filing the Suit before the Civil Court had claimed 1/3rd share over the property in dispute. This question could incidentally be gone into by the Revenue Court in the Partition Suit, as objection was filed by the plaintiff Smt. Uma Mukharjee and she had been given the right to be heard by the Appellate and Revisional Court.
86. It has been submitted that the report prepared by the Area Lekhpal was without jurisdiction and could not have been relied upon by the Sub Divisional Magistrate.
This Court has perused the orders passed by the Sub Divisional Magistrate, Sadar, Lucknow. Initially, a report was submitted without actual physical inspection of the property, but perhaps a clarification was sought and in the second report dated 5.9.2005, there is a mention of spot inspection and it is also mentioned that 2/3rd of the plot in question was lying vacant, but was capable of being put to agricultural use and was being used for agricultural purposes earlier, but because of pending litigation, it is now lying vacant. This finding of the learned Court below is a finding of fact that has been reiterated by the First Appellate Court and the Second Appellate Court. There is no dispute that the land in question is still lying vacant. The vacant land not actually being used for residential or industrial purposes would still be land covered under Section 3(14) of the Act of 1950. This has been held to be so by this Court as well as the Supreme Court. Therefore, merely because the Area Lekhpal and not the Tehsildar had carried out the spot inspection, it could not be said that the ultimate conclusion of land lying vacant was in anyway perverse and against the facts on record.
87. This Court, in view of the observations made hereinabove, finds no infirmity in the orders impugned in both the writ petitions. Consequently, both the writ petitions are dismissed.
Dated: July 30th, 2020 Sachin [Sangeeta Chandra, J.]