MONIKA BELWAL Vs. RAMAN CHANDRA BUDHALAKOTI

JUDGEMENT

(1.) This Appeal from Order has been filed under Section 43 Rule 1 (a) C.P.C. against the order dated 17.11.2008 passed by learned Civil Judge (Senior Division), Nainital in Civil Suit No. 75 of 2008, whereby her plaint has been returned for presentation before Revenue Court.

(2.) Facts of the case, in brief, are as follows: Appellant filed a civil suit seeking declaration that she is the joint owner of the property mentioned in para no. 4 of the plaint alongwith defendants. She also sought a decree for permanent prohibitory injunction against defendant no. 1 to restrain him from alienating whole or part of the suit property. As per the plaint allegation, plaintiff and defendants are real brothers and sisters; the suit property was purchased by their mother (Smt. Tara Devi Budhlakoti) by means of two separate sale deeds executed in the year 1964 and 1969 and her name was mutated in the records of Nagar Palika Parishad, Kathgodam and also in revenue records; Smt.Tara Devi Budhlakoti died on 01.05.2009 leaving behind plaintiff and the defendants as her legal heir; Smt. Tara Devi Budhlakoti constructed dwelling house over the land purchased by her; large scale construction was made over the said land and Smt. Tara Devi Budhlakoti had constructed a number of flats, some of which were sold by her during her lifetime; the property comes within urban area and is being used for residential purpose, therefore, it does not come within the purview of U.P. Zamindari Abolition and Land Reforms Act (for short U.P.Z.A. & L.R. Act). Defendant no. 1 in his written statement admitted that residential house was built over the land in question, however, he stated that he alone is the lawful owner of the property. He further contended that the relief sought in the suit can only be granted by a revenue Court under provisions of Zamindari Abolition and Land Reforms Act.

(3.) Learned trial Court framed issue no. 4 as follows: