Allahabad High Court
Ram Saran Singh vs District Judge, Ghazipur And Others on 15 May, 1998
Equivalent citations: 1998(2)AWC2132, 1998 ALL. L. J. 2321, 1999 A I H C 241, 1998 ALL CJ 2 1346, (1998) 3 ALL WC 2132, (1998) REVDEC 605
Author: D.K. Seth
Bench: D.K. Seth
JUDGMENT D.K. Seth, J.
1. In a suit for partition upon an application for interim order, the trial court had directed that half of the rent realised out of the property on which admittedly commercial complex had been constructed to be given to the plaintiff and half to the defendant. An appeal having been preferred against the said order, the appellate court had directed to deposit the entire rental income in Court. These are orders dated 9th February, 1998 passed by the Civil Judge, Senior Division in Suit No. 70 of 1995 and the order dated 24th March. 1998 passed by the learned District Judge. Ghazipur in Misc. Appeal No. 3 of 1998, have been challenged in this writ petition.
2. Mr. Mahboob Ahmad, learned counsel for the petitioner contends that one of the properties involved in the partition suit being the present one is of agricultural and in respect whereof notification under Section 4 (2) had been issued and the final publication had not yet been made. Therefore, by virtue of Section 5 (2), the present suit is not maintainable inasmuch as in the present suit adjudication of the rights and interest of the parties including partition is involved. Section 5 (2) provides that no proceeding which ought to have been taken under the said Act could be maintained in the civil court and shall abate on the issue of notification under Section 4 (2). Accordingly an application to such effect had been filed on behalf of the petitioner. The said application has been kept pending on the ground that it involves mixed question of facts and law and are awaiting adjudications. In this circumstance, according to him, the Court below have no jurisdiction to grant injunction in aid of a proceeding which is due to abate, therefore, the orders cannot be sustained and should be set aside.
3. Mr. A. N. Rai, learned counsel for the opposite party on the other hand contends that a commercial complex is standing on the said land, therefore, the property cannot be treated to be an agricultural holding and therefore, does not come within the purview of U. P. Consolidation of Holdings Act as such the bar provided under Section 5 (2) cannot be attracted in the present case.
4. I have heard both the learned counsel for the parties at length.
5. Mr. Mahboob Ahmad relied on a decision in case of Magnu Ahir and others v. Mahabir, 1988 RD 301. and contends relying on the ratio laid down therein that the land does not cease to be an agricultural land until a declaration under Section 143 is given by the Revenue Court and therefore, the Court is bound to refer to the revenue court under Section 331A of the U. P. Zamindari Abolition and Land Reforms Act.
6. On the other hand Mr. Rai had referred to a decision In the case of Randhir Singh and others v. Dy. Director of Consolidation and others. 1997 (88) RD 346. rendered by the Apex Court in support of his contention that the definition of the land as defined in the U. P. Consolidation of Holdings Act means the land held or occupied for the purpose connected with agricultural, horticulture and animal husbandry which includes pisciculture and poultry farming and if there is a house situate on a part of it. the same can also be included within such land. But it does not cover the buildings occupying the land and used for commercial purposes.
7. Whether the land is agricultural or not. whether a declaration issued under Section 143 or not, whether the case is to be referred for decision under Section 331A of the U. P. Zamindari Abolition and Land Reforms Act are questions yet to be decided since the application filed by the petitioner relating to the Jurisdiction of the Court had not yet been decided. As contended by Mr. Rai, it appears from the facts and circumstances of the case as referred to above, the question is a mixed question of law and facts which requires determination by the Court below. On the basis of the plain reading of the facts, it cannot be straightway contended that the suit is barred under Section 5 (2) of the U. P. Consolidation of Holdings Act at the first sight.
8. Then again decision in the case of Magnu Ahir, (supra) proceeds on the basis that the land does not cease to be agricultural so long it is held for the purpose of agriculture and even if a Sirdar raises constructions on the land held by him as such. It cannot be said that the provisions of the U. P. Z. A. and L. R. Act cease to have an application thereto. Now whether the land is being used for agricultural purposes or not can be decided only at the trial of the suit or when the objections raised by the petitioner relating to the jurisdiction is taken up for disposal.
9. Admittedly the rent derived from the building is not an agricultural income. The building being used for commercial purpose and the rent being derived from such building could be termed to be a commercial income out of the commercial use of the building. The rent does not relate to the land. It relates to the building. It is clear that the building is situate on a land but then the income is not derived from the land on account of its being used for agricultural purpose. Thus, the said income out of the rent derived from the building in no way can be said to be connected with agriculture which could be brought within the purview of the Consolidation of Holdings Act so as to prevent the Court to pass an Interlocutory order pending decision on the question raised by way of injunction order otherwise.
10. Then again even if since question of maintainability is raised, the Court does not cease to have its Jurisdiction. It is well within its jurisdiction to pass interlocutory orders which may not determine the ultimate decision in the suit which is relating to the title which is only an ad interim order within the meaning of Order XXXIX, Rules 1 and 2 or the like. Pending decision on the question of maintainability of the suit, it is well within the power of the Court to pass appropriate interim orders If circumstances so requires. Reliance on the decision in the case of Randhir Singh and others (supra), prima facie it appears that the building Itself cannot be said to be an agricultural use when the same is used for commercial purpose from which rent is realised. It may be that unless there is a declaration under Section 143. the land may not be ceased to be an agricultural land that relates to the land and not to the building.
11. Therefore, I do not find any reason to interfere with the order impugned in this writ petition. The writ petition fails and is dismissed.
12. It may. however, be observed that the findings recorded in this order as well as those in the orders impugned in the writ petition are of tentative for the purpose of deciding the interlocutory application and shall In no way influence the Court, while deciding the question of maintainability or otherwise or the title to the property, or the issues involved in the suit, while deciding the suit on merits.