CHANDRIKA SINGH Vs. RAJA VISHWANATH PRATAP SINGH

JUDGEMENT

(1.) This appeal by special leave is directed against the Judgment of the Allahabad High Court dated April 2, 1080. It raises the question whether the civil court has jurisdiction to decide the issue whether the land in dispute in a suit or proceeding before it is a abadi land or some other land. It involves the interpretation of Section 331-A of the U. P. Zamindari Abolition and Land Reforms Act, 1950 (U. P. Act No. 1 of 1951), hereinafter referred to as 'the Act'.

(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 caretaker and he was managing the same on 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 B,ighas 10 Biswas (2.92 acres) out of which the residential house, pucca well and the land appurtenant to the house cover an 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 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

(3.) The said issues were tried as preliminary issues and were decided in favour of the plaintiffs-respondents and against the appellants by the Civil Judge-I, Varanasi by his order dated September 14, 1973. The Civil Judge held that in the written statement dated September 31, 1983 it has been alleged by the defendants-appellants that about 23 years back, the disputed house was in a very dilapidated condition and that Aparbal Singh and Alpanath Singh invested about Rupees 15,000/- and made the house habitable. On the basis of the said allegation in the written statement, the Civil Judge held that the disputed property had a house, though in a dilapidated condition, before July 1, 1952 the date of the enforcement of the Act and he considered the matter in the light of the provisions contained in the U.P. Tenancy Act, 1939. After referring to the definition of 'land' contained in Section 3(1)(o) of the said Act the Civil Judge observed that the land occupied by building or appurtenant thereto was excluded from the said definition and, therefore, the disputed property did not come within the definition of land as defined in the U. P. Tenancy Act and was abadi and it was not land as defined in the Act and the revenue courts have got no jurisdiction and the suit could be entertained by the Civil Court. The defendants-appellants produced extractor Khatauni for the year 1377 Fasli (Ex.A1) wherein the plaintiffs have been recorded as bhumidar of the suit property. The copies of the revenue record (Exs. 2 to 5) were also produced. The Civil Judge held that the said entries were useless and no reliance could be placed on them. It appears that the property in dispute was also inspected by the Amin, who prepared a map and submitted his report wherein it was stated that the suit property is enclosed by a boundary wall and land appurtenant to the building has been shown as being used for agricultural purposes also. While dealing with the said report of the Amin, the Civil Judge observed that under law if the land appurtenant to a building is being used for agricultural purposes, it will not lose its nature of being land appurtenant to building. Feeling aggrieved by the said order of the Civil Judge, the appellants filed a revision in the High Court which was dismissed by the High Court. Agreeing with the Civil Judge the High Court has held that the suit land was appurtenant to a building and a Shiwala and was not being held or occupied for purposes connected with agriculture, horticulture or animal husbandry and hence, prima facie, it was not land as defined in the Act and, therefore, Section 331-A had no application. The High Court also observed that the lower Court had rightly refused to rely on the revenue records from 1960 onwards which showed that the land was recorded as the plaintiffs' bhumidari because on the defendants' own pleadings the land was appurtenant to a house and was rightly held to be abadi property in respect of which civil court continued to retain jurisdiction and try disputed title.