RADHEY SHYAM Vs. RAJ KISHORE

JUDGEMENT

(1.) By means of this petition, the petitioner has assailed the order dated 27.1.2004 passed by Civil Judge (JD) by which the court below decided issue No. 8 leaning against the petitioner holding therein that the suit instituted in the civil court was not barred by operation of the provisions contained in Section 331 of the U.P.Z.A. and L.R. Act. Appeal preferred against the said order also met the fate of rejection vide order dated 11.5.2004 passed by Additional District Judge, Bijnor presiding over Court No. 2.

(2.) In the instant case, dispute has its genesis in the property belonging to Nand Kishore comprising in Khata No. 38 Khasra No. 82 admeasuring 9-9-6. Raj Kishore respondent being co-sharer and being elder brother, his name came to be mutated in the revenue records. It is alleged that Nand Kishore deceased had executed a Will in favour of late Smt. Sona Devi bequeathing the property in question to her. Subsequently, Smt. Sona Devi also died and in pursuance of some orders passed in the matter of mutation in the revenue records, name of Raj Kishore, elder brother of deceased Nand Kishore was expunged from the revenue records and consequently, he instituted Suit No. 504 of 1990 claiming the relief of cancellation of Will. In the suit, an objection having complexion of a preliminary objection was raised about maintainability of suit in the civil court by referring to Section 331 of the U.P.Z.A. and L.R. Act. Consequently, trial court formulated a specific issue, i.e., issue No. 8 which came to be decided by means of order dated 27.1.2004 holding that the jurisdiction of civil court was not barred by virtue of Section 331 of the U.P.Z.A. and L.R. Act Against this order, respondent Radhey Shyam preferred revision, which also ended up in being rejected, vide order dated 11.5.2004. It is in the above backdrop that the present petition has come to be instituted assailing the two orders aforestated.

(3.) Heard learned counsel for the petitioner and also the learned counsel representing the respondent in the instant petition and perused the record. Learned counsel for the petitioners premised his submission by stating that the suit instituted by the respondent was not maintainable in the civil court being one barred by Section 331 of the U.P.Z.A. and L.R. Act. It was further canvassed that as a matter of fact, the suit instituted will be deemed to be declaratory suit and consequently, the jurisdiction to try the suit would vest in the revenue courts. It was further canvassed that a person who is not entered in the revenue record cannot claim the relief of cancellation of Will unless he secures declaration of his own rights over the property in question from revenue courts. In vindication of his stand-point, the learned counsel placed credence on a decision of the Apex Court in Shri Ram v. Ist Additional District Judge and Ors., 2001 (1) JCLR 891.