Uttarakhand High Court
Sanjeev Sharma And Another ... vs Smt. Pushpa Agarwal And Others on 15 July, 2021
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Civil Revision No. 5 of 2021
Sanjeev Sharma and another ....... Revisionists
Vs.
Smt. Pushpa Agarwal and others .......Respondents
Present:
Mr. Aditya Singh, Advocate for the revisionists.
Ms. Priyanka Arora, Advocate for the respondents.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
This revision has been preferred against order dated
31.10.2020, passed in Original Suit No. 25 of 2017, Smt. Pushpa Agarwal
Vs. Sanjeev Sharma and others, by the Court of Civil Judge (Senior
Division), Kashipur (for short, "the Suit"). By the impugned order, an
Amendment Application 72 A filed by the revisionists has been dismissed.
2. Facts necessary to decide the instant revision, briefly stated,
are that the suit was filed by the respondent no.1 seeking declaration to the
effect that a sale deed dated 18.10.2014 be declared null and void. Other
reliefs have also been claimed in the suit. The main basis of the suit was
that the land in dispute is an agricultural land and in view of Section 152
A of the Uttar Pradesh Zamindari and Abolition Act, 1950 (for short,
"1950 Act"), power of attorney could not have been executed in favour of
the revisionist no.1 but it was so got executed by playing fraud with
respondent no.1 and based on such power of attorney, sale deed has been
executed. Various objections were raised by the revisionists in their
written statement including the nature of land in dispute. It is, inter alia,
objected to that the power of attorney dated 29.09.2014 is not fraudulent;
the land in dispute is not being used for agricultural purpose, instead, it is
used for residential purpose and the provisions of the 152 A of the 1950
Act are not applicable.
3. After issues having been framed, amendment application
72 A has been filed by the revisionists seeking permission to incorporate
two additional paragraphs in the written statement i.e. paragraphs 22A and
30 A. By way of para 22A, the revisionists wanted to incorporate that the
land in dispute is being used for residential purpose, therefore, in view of
Section 331A of the 1950 Act, an issue be framed and it be remitted to the
Assistant Collector, 1st Class for its determination. By virtue of the
proposed inclusion of para 30 A, it is proposed that the respondent no.1
is neither recorded tenure holder nor in possession of the land in dispute,
therefore, jurisdiction of the Civil Court is barred and it is the only
revenue court, which has jurisdiction to decide such case. The learned
court below observed that the revisionists propose to incorporate
inconsistent and self-contradictory pleas in the written statement, which
are not necessary for the adjudication of the suit. The court below also
observed that, in fact, the purpose of moving the application is just to
delay the trial of the suit. Accordingly, the application has been rejected.
4. Heard learned counsel for the parties through video
conferencing and perused the record.
5. At the very outset, the Court wanted to know from the
learned counsel for the revisionists that since the pleadings with regard to
the purpose, for which, the land is being used has already been
incorporated by the revisionist in paragraph 8 of the written statement
filed by him, what is the need to incorporate another paragraph 22 A for
inclusion of the similar kind of averments. Similarly, the Court further
wanted to know that the question of the suit having been barred by the
provisions of Section 331 of the 1950 Act, has already been categorically
pleaded by the revisionists in para 22 of the written statement filed by
them then, what is the need to further incorporate para 30 A as proposed in
amendment application 72 A.
6. Learned counsel for the revisionists very fairly concedes that
a liberty may be given to the revisionists to move an application for
framing of an additional issue with regard to the purpose, for which the
land in dispute is being used. He also submits that directions may be
issued that the findings recorded in the impugned order may not be
considered at the time of final determination. He particularly, referred to
the paragraphs 17, 19, 22 and 25 of the impugned order.
7. Learned counsel for the respondent no.1 would submit that,
in fact, the amendment application has been rejected mainly on the ground
that it is the revisionists, who want to delay the proceedings of the trial
despite direction of this Court to conclude the trial of the suit within a
period of one year. Reference has been made to order of this Court dated
03.01.2019, passed in Writ Petition (M/S) No.3927 of 2018, in which, this
Court requested the court below to hear and decide the suit as early as
possible preferably within one year. As stated, the suit has mainly been
filed on the ground that the power of attorney, which is in dispute was
obtained by the revisionists by playing fraud and based on it, a sale deed
has been executed. The declaration, as stated hereinbefore, has been
sought for declaring the sale deed as null and void. It is also the case of the
respondent no.1 that the alleged power of attorney is in violation to
Section 152 A of the 1950 Act. In its written statement, the revisionists
took a plea that the land in dispute is not being used for the agricultural
purpose, instead, it is used for residential purpose. Though, it is not an
issue because the purpose for which the land in dispute is being used, has
not been pleaded by the respondent no.1 in his plaint.
8. Section 331 A of the 1950 Act comes in play only when a
question arises or raised with regard to the purposes for which the land in
question is being used. What is proposed by inclusion of proposed para 22
A is that an issue with regard to purpose for which the land in dispute is
being used may be framed and referred to the Assistant Collector for
determination. But, the question is that the purpose for which the land in
dispute is being used has already been stated by the revisionist in his
written statement. At the time of framing of issue, it was never raised. The
issue was not framed. Does it mean that the parties were in an agreement
about the purpose for which the land in dispute was being used?
9. Insofar as, proposed para 30 A for its inclusion in the written
statement is concerned, it is merely repetition of para 22 of the written
statement, in which, already the revisionist has taken a plea that the suit is
barred by the provisions of Section 331 of the 1950 Act.
10. Therefore, in view of the forgoing discussion, this Court is of the
view that the court below did not commit any error in rejecting the
amendment application. But, undoubtedly, while deciding the amendment
application, the court below has gone a long way to record conclusive
findings on various other aspects which could have been conveniently
ignored. But, since it is recorded this Court observes that such conclusive
findings, except rejection of the amendment application, should not be
read at the final stage of the suit.
11. Learned counsel for the revisionists at this stage seeks liberty
to move a fresh application for framing of an additional issue with regard
to the purposes for which the land in dispute is being used.
11. At it, learned counsel appearing for respondent no.1 would
submit that this is nothing but another trick of the revisionists to further
procrastinate the trial of the suit.
12. Framing of issues is, in fact, a task entrusted with the Court.
It is not a choice of convenience of the parties as to which issue is to be
framed. Based on pleadings, on disputed material questions and facts and
laws, issues are framed and undoubtedly, if required, additional issues are
framed. In civil suit at any stage, if a party feels that some kind of
application, as is permissible under law, is to be moved, the party is free to
move such application. For such purpose the liberty from this Court is not
required. This Court leaves it as it.
13. On behalf of the respondent no.1, it is submitted that in view
of the earlier direction of the Court the trial of the suit was to be concluded
within a period of one year, but because of this revision it has been
delayed. Therefore, direction may be issued that in case, any application is
filed that may be decided with all promptitude.
14. Needless to say, this Court had once requested the learned
trial court to expedite the disposal of the suit, preferably within a time
limit, as stated hereinbefore .It need no reiteration.
15. With the above observation the revision is dismissed.
(Ravindra Maithani, J.)
15.07.2021
Jitendra
