Radhey Shyam Sharma ... ... vs Sri R.P. Singh
2021 Latest Caselaw 1429 UK

        HIGH COURT OF UTTARAKHAND
                AT NAINITAL

              Writ Petition (M/S) No. 1538 of 2010
Radhey Shyam Sharma                        ...     Plaintiff/Petitioner

                                     Vs.
Sri R.P. Singh                             ...     Defendant/Respondent
Advocates :    Mr. Arvind Vashisth, Senior Advocate, assisted by Ms. Priyanka
               Aggarwal, Advocate, for the petitioner.
               Mr. Siddhant Manral and Mr. D. Barthwal, Advocate, for the
               respondent.


Hon'ble Sharad Kumar Sharma, J.

The petitioner, before this Court is a plaintiff in a Suit, which was instituted by him, before the Court of Additional Civil Judge (Senior Division), Dehradun, being Suit No. 443 of 2004, Radhey Shyam Vs. R.P. Singh. In the plaint thus instituted by the present petitioner, he had modulated the nature of decree, which was being sought for from the learned Civil trial Court was in the following manner:-

**11- ;g fd oknh vius i{k esa rFkk izfroknh ds fo:} fuEufyf[kr vuqrks'k dh fMdzh dk izkFkhZ ,oa vf/kdkjh gS%&

(A) A decree for possession be passed in favour of the plaintiff and against the defendant there by directing the defendant to deliver the possession of the land marked by letters XYCB in the plan annexed to the plaint after removing his malba thee from within a time to be fixed by the learned court and on failure of the defendant to do so, the decree be got executed through the agency of the court of the cost of the defendant.

(B) A decree for recovery of Rs. 500.00 per month as damages for illegal use and occupation of the land marked by letters XXCB in the plan annexed to the plaint w.e.f. 12.08.2004 till the date of the deliver of the possession of the aforesaid land to the plaintiff be passed in favour of the plaintiff and against the defendant. (BB) A permanent injunction be issued restraining the defendant and all persons claiming through or under him from interfering in any manner in the peaceful possession, use and enjoyment of the land marked by letters ABCD in the plan annexed to the plaint.

l- oknh dks izfroknh ls bl okn dk le:i O;; fnyk;k tkosA

n- mijksDr vuqrks'k ds vykok vU; dksbZ vuqrks'k tks fd ekuuh; U;k;ky; bl okn dh n"kk esa mfpr le>sA**

2. If the plaint averments in its totality, is taken into consideration, and in particular, in relation to the nature of property, which has been described at the foot of the plaint, it has described the disputed property as to be plot No. 15, over which, there exists certain constructions, which were alleged to have been raised by the Yamuna Valley Engineers Employees Housing Society, the precinct of which had been more appropriately described, in the details of the property, given therein, which is referred to hereunder:-

**fooj.k fookfnr Hkwfe ;equk oSyh bathfu;lZ deZpkjh vkoklh; lgdkjh lfefr fy0 dk IykWV ua0 15 ftldk [kljk ua0 704 jdck 0-0854 ,dM+ gS] fLFkr xzke dkaoyh ijxuk dsUnzh; nwu] ftyk nsgjknwu gS vkSj ftldh lhek,a fuEu izdkj gS%& mRrj esa & IykWV ua- 16 & uki 25-925 ehVj iwjc esa & jkLrk & & uki 13-05 ehVj if"pe esa & IykWV ua0 1, & uki 13-05 ehVj nf{k.k esa & IykWV ua 14 & uki 25-925 ehVj

The aforesaid plot of the plaintiff has been marked by letters ABCD in the annexed plan and in the encroached portion which has been marked by letter XYCB in the annexed plan."

3. The peculiarity of the facts of the present case are that the property in dispute which was the subject matter and in relation to the nature of relief, which has been sought for hereinabove, the few facts, which are admitted by virtue of the pleadings on record are :-

(i) That the petitioner claims himself to be having a status of a bhumidhar being a tenure holder falling under Section 129 of the U.P.Z.A. & L.R. Act.

(ii) By virtue of the nature of relief sought for removal of the constructions and for the grant of decree of possession, the fact of

the defendant being in possession is yet again an admitted fact, by virtue of the pleadings itself, by the plaintiff.

4. When the suit was instituted and the notices were issued to the respondents, they had filed their written statement and an additional written statement and on the exchange of pleadings, the learned trial Court has formulated the issues and one of the prime issue, which was the subject matter of determination was the issue of a bar of sustainability of the proceedings of suit before the Civil Court and consequently, issue Nos. 6 and 7 were formulated, as to whether the suit is barred under Order 7 Rule 11(d) of the CPC.

5. In order to answer the said question, the learned trial Court, while considering the respective arguments based on the pleadings and the evidence, which were adduced before the Court below, had decided the issue pertaining to Order 7 Rule 11 of CPC, in favour of the plaintiff/petitioner herein, vide its judgment dated 05.11.2009, holding thereof that the suit would lie before the Civil Court and the bar of Order 7 Rule 11(d) of CPC, will not come into play.

6. The said judgment was put to challenge by the defendant/respondent in a Civil Revision being Civil Revision No. 89 of 2009, R.P. Singh Vs. Radhey Shyam Sharma. The revisional Court, by the impugned judgment dated 16.07.2010, which is under challenge in the present writ petition, had allowed the said Revision and had set aside the order of the learned trial Court dated 05.11.2009, deciding the issue under Order 7 Rule 11 of CPC, and had returned its finding that the original suit being Suit No. 443 of 2004, was not maintainable before the Civil Court. Challenge is also given to the order dated 20.07.2010,

passed by the Court of Additional Civil Judge (Senior Division), rejecting the plaint under Order 7 Rule 11(d) of C.P.C.

7. Before answering the questions raised by the learned counsel for the petitioner, a reference to certain provisions of the U.P.Z.A. & L.R. Act itself becomes relevant to be considered by this Court. The provision of the said Act, i.e. U.P.Z.A. & L.R. Act, has been given a special status under the Constitution of India itself, by including it in Schedule IX; Entry 11, which falls to be within the ambit of Article 31B of the Constitution of India. Meaning thereby, it is a special law, which has been made applicable to the lands, as described therein under the Act by Section 3(14), and the general civil law would not be applicable over it. The property in question, which I have already referred above that it is an admitted case of the plaintiff/petitioner that it is a bhumidhari land, coupled with the additional fact that it is also an admitted case that no conversion, as such under Section 143 of the U.P.Z.A. & L.R. Act, has been granted so far as per law, which is being tried to be overridden by the argument of the learned counsel for the petitioner, from the view point that since over the property in question, there exist construction which has been raised by the respondent, which is being sought to be removed by grant of the decree as it had been modulated in the suit, hence his contention is that the present user of the land would determine the status of land in order to maintain the suit before the civil Court for grant of decree of possession, which even if it falls to be within the ambit of land defined under Section 3(14) of the U.P.Z.A. & L.R. Act.

8. This Court is afraid to accept that argument of the learned Senior Counsel, appearing for the plaintiff/petitioner, for the reason being, as I have already observed that since U.P.Z.A. &

L.R. Act, being a special Act, it will have a precedence over the general law and the factors for determination of the nature of land would exclusively be falling within the domain of the land as described under Section 3(14) of the U.P.Z.A. & L.R. Act, which is referred to hereunder:-

"(14) "Land" [except in Sections 109, 143 and 144 and Chapter VII] means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming;"

9. As per the case of the petitioner himself as pleaded in the plaint, once he admits that he is a bhumidhar of the land, the classification of tenure holder-ship of the petitioner would be obviously falling under Section 129 of the U.P.Z.A. & L.R. Act and the nature of relief, as prayed for therein would fall to be under Section 209 of the U.P.Z.A. & L.R. Act. Both the Sections are extracted hereunder:-

129. Classes of Tenure. - There shall be, for the purposes of this Act, the following classes of tenure-holders, that is to say- [(1) bhumidhar with transferable rights;

(2) bhumidhar with non-transferable rights; (3) asami;] [(4) Government lessee.]

209. Ejectment of persons occupying land without title. - [(1)] A person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force; and-

(a) where the land forms part of the holding of a bhumidhar, or asami without the consent of such bhumidhar, or asami;

(b) where the land does not form part of the holding of a bhumidhar, or asami without consent of the [Gaon Sabha], shall be liable to ejectment on the suit in cases referred to in Clause (a) above of the bhumidhar, or asami concerned and in cases referred to in Clause (b) above of the [Gaon Sabha] and shall also be liable to pay damages.

[(2) To every suit relating to a land referred to in Clause (a) of sub- section (1) the State Government shall be impleaded as a necessary party.]

10. The argument, which has been extended by Mr. Arvind Vashisth, the learned Senior Counsel for the petitioner, is from the perspective that if the relief which has been modulated in the suit itself is taken into consideration, it will not exclusively fall to be within the ambit of Section 209 of the U.P.Z.A. & L.R. Act (as extracted above), and hence the jurisdiction of Civil Court, may not be exclusively ousted. This argument of the learned senior counsel for the petitioner is not being accepted by this Court for the reason being that as per the opinion of this Court, it cannot be ruled out that merely a modulation of a relief or nature of decree sought for which is based on professional expertise, it cannot be exclusively taken as a basis to determine the jurisdiction or the competence of the Court, particularly which is specifically governed as per the statutory provisions of the Act itself. Because modulation of a relief is the prerogative of the plaintiff/petitioner and it cannot be ruled out, that at times though it may not be that it is a situation which is engaged in this case, which may have been, but still that it cannot be utilised in a fashion to override the statutory restrictions contained under Section 210 of the U.P.Z.A. & L.R. Act.

11. The argument which had been extended by the learned counsel for the petitioner is that in such an eventuality, where an issue was raised about the bar created under Order 7 Rule 11(d) of the Code of Civil Procedure, in that eventuality, since the provisions of CPC has been made applicable over the proceedings by Section 341 of the U.P.Z.A. & L.R. Act, it was incumbent upon the Court to have referred the matter to the Court of Assistant Collector, 1st Class, to get the findings returned by invoking the provisions contained under Section 331A of the U.P.Z.A. & L.R. Act.

12. There are two reasons and logic for not accepting these arguments of the learned Senior Advocate for the petitioner. One, there was no such controversy which was raised, because as per the plaint averments of the petitioner himself with regards to the status of a land, so far it relates to its entries which had been made in the revenue records it is as a bhumidhari land, and in view of Section 44 of the Land Revenue Act, to be read in harmony with the provisions under Section 143 of the U.P.Z..A & L.R. Act, a presumption, would come that it continues to be a bhumidhari land falling under Section 129 of the U.P.Z.A. & L.R. Act, and hence the proceedings of a suit, for a decree of possession in a Civil Court in relation to an admitted bhumidhari land would not lie Second, the argument, which has been extended by the learned senior counsel for the petitioner, that the reference under Section 331A of the U.P.Z.A & L.R. Act ought to have been resorted to this Court is of the opinion that it was not required for the reason being that first of all, it is a prerogative which has been exclusively vested with the Court where the Court itself, is under the given circumstance of the case is not in a position to determine the status of the land or subject matter of the suit, where the recourse to under Section 331A of the U.P.Z.A. & L.R. Act, has been left open for the Court to be undertaken to get the findings returned to resolve a controversial issue to determine the nature of land, in order to decide the forum available under law, in relation to the nature of decree sought.

13. Since the petitioner himself in the present case has admitted his status, as to be a bhumidhar, in that eventuality, there was no occasion for the Civil Trial Court, to have recourse to Section 331A, for getting the findings returned on the issue, about the

nature of land for the purposes of deciding the question of bar which has been created by Order 7 Rule 11(d) of the CPC.

14. Even let us presume, that if this was a question raised, which entailed consideration, nothing precluded the petitioner to have raised this question before the learned Court below itself by requesting the Court to invoke the provisions contained under Section 331A of the U.P.Z.A. & L.R. Act, by referring the matter to the Assistant Collector, 1st Class, under Section 331A of the U.P.Z.A. & L.R. Act, to get the findings returned on the said issue and as per my view, this was rightly and consciously not resorted to by the petitioner, because had that been issue referred to the Court, then too it would obviously entail the consideration of his status as a bhumidhar itself and in that eventuality, the findings recorded therein would have a bearing on the suit itself. Hence, it would have been a proceedings in futility, and contrary to the admitted case of the petitioner himself.

15. In view of the admitted position, which is reflected from the pleadings, the learned senior counsel for the petitioner has drawn the attention of this Court to a judgment which has been reported in AIR 1992 Supreme Court 1318, Smt. Chandrika Singh and others Vs. Raja Vishwanat Pratap Singh and another, and particularly, he has made reference to the contents of paras 12, 15 and 16 of the said judgment, which are extracted hereunder:-

"12. In order that s.331-A may be invoked the following conditions must be satisfied:

(i) the suit must relate to land held by a bhumidhar;

(ii) the question whether the land in question is or is not used for purposes connected with agriculture, horticulture or animal husbandry should arise or be raised in the said suit; and

(iii) a declaration has not been made in respect of such land under s.143 or s.144.

15. We are unable to agree with the said sub mission of Shri Yogeshwar Prasad. In our opinion, the question as to whether a particular land is "land" under section 2(14) of 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 ss.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 s.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 the 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.

16. In the instant case we find that the conditions for applicability of the provisions of section 331-A were fulfilled. In view of entry in the Khatauni for the year 1377F (ex.A-1) which must be presumed to be correct in view of Section 44 of the U.P. Land Revenue Act, 1901, the said land was held by the respondents as Bhumidhar. The question whether the suit land is or is not held for purposes connected with agriculture arises in the suit filed by the respondents. There is no declaration in relation to land in dispute under Section 143 of the Act."

16. The principles, as laid down aforesaid by the Hon'ble Apex Court's judgement, in any given judgment cannot be blatantly applied without determining the facts and circumstances, under which the ratio has been pronounced by the Hon'ble Apex Court and particularly in the judgment referred to of Smt. Chandrika Singh (supra); where the Hon'ble Apex Court was isolatedly dealing with the implications of Section 331A of the U.P.Z.A. & L.R. Act, and particularly the circumstances, under which the Civil Courts, should have exercised its powers for getting an answer to a question with regards to sustainability of the proceedings before the Civil or Revenue Case.

17. The said principles given therein would not apply in the present case for the reason being, that if para 2 of the said judgement of Smt. Chandrika Singh, is taken into consideration, which is extracted hereunder, the multiple facts, which involved therein in the said case of Chandrika Prasad (Supra) was of much distinction, to the case at hand and hence the principles of Chandrika Prasad (supra), owing to the fact that it was the subject matter before the Hon'ble Apex Court so far it related to the applicability of the provisions of Section 331A of the U.P.Z.A. & L.R. Act, would not lie and that is what has been held in para 16 of the judgement, where it had considered the impact of Section 44 the Land Revenue Act, which would be attracted herein in the present case, where the petitioner's admitted status claimed is that as a bhumidhar. Para 2 of the Chandrika Prasad (Supra) is extracted hereunder:-

"2. The dispute relates to a plot of land bearing settlement No. 141/176-177 situate within the limits of Municipal Corporation of Varanasi. The said land consists of a residential house, Shiwala (temple), pucca well and open land enclosed by a boundary wall. In the municipal records, it is numbered as 18/106, Mohalla Sarang Talab, Varanasi. Respondents Nos. 1 and 2 filed a suit (No.157 of 1973) for possession of the said property in the court of Civil Judge, Varanasi against the appellants wherein it was alleged that Aparbal Singh, father of appellant no.1, and Chandra Deep Singh (deceased), who was appellant no.2, in the appeal and is now represented by his legal representatives, was in possession of the said property as a care-taker and he was managing the same of behalf of the plaintiffs and after the death of Aparbal Singh, appellants nos.1 and 2 continued in possession of the same but they did not vacate the said property in spite of promises and on the other hand, they got their names entered in the records in respect of the said property. The plaintiffs sought a decree for ejectment as well as pendente lite and future damages for use and occupation. The said suit was contested by the defendants. In the written statement, it was claimed that the suit was not maintainable in the civil court inasmuch as it related to agricultural land. It was stated that the total area of the disputed property is 4 Bighas 10 biswas (2.92 acres) out of which the residential house, pucca well and the land appurtenant to the house cover in area of 10 Biswas and the rest of the land measuring about 4 Bighas was being cultivated by the defendants. It was also

claimed that the entire area comes within the definition of 'land' since no declaration was made under section 143 of the Act. It was also claimed that Aparbal Singh and Alpanath Singh, father of defendants nos. 3 and 4, having equal share in the land became sirdars and after the death of Aparbal Singh, Alpanath is in possession as owner Sirdar of the said land. In the view of the said pleadings, the Civil Judge framed Issues Nos. 5 and 6 which are as under:

Issue No.5 : Is suit land agricultural land as defined in U.P. Act, 1951 ?

Issue No.6 : Is the suit triable by this Court so far as suit land is concerned ?"

18. In view of the aforesaid reasonings and the finding which had been recorded by the learned revisional Court, do not suffer from any apparent perversity, to call for an interference while exercising my extraordinary supervisory jurisdiction under Article 227 of the Constitution of India, hence, the writ petition lacks merit and the same is accordingly, dismissed.

19. However, it was lastly prayed for by the learned senior counsel for the petitioner that the findings recorded herein are exclusively for the purposes of deciding the writ petition.

20. All the issues are left open to be agitated by the parties to the proceedings, in an appropriate forum, if at all, it is resorted to by the petitioner.

(Sharad Kumar Sharma, J.) 09.04.2021 Mahinder/