Full Judgment Text
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CASE NO.:
Appeal (civil) 5060 of 2007
PETITIONER:
Mahant Dooj Das (Dead) through LR
RESPONDENT:
Udasin Panchayati Bara Akhara & Anr
DATE OF JUDGMENT: 01/05/2008
BENCH:
P.P. Naolekar & Aftab Alam
JUDGMENT:
J U D G M E N T
REPORTABLE
CIVIL APPEAL NO. 5060 OF 2007
P.P. NAOLEKAR, J.:
1. The facts necessary for adjudicating the question
involved are that the plaintiff-appellant (for convenience hereinafter
referred to as "the plaintiff") filed a suit claiming decree for
possession over the properties/lands [21 Bighas, 8 Biswa Kachhi
Bhumi (land) No. Khasra 27M and 28M and Bhumi (land) 1 Bigha, 3
Biswa, 10 Biswanshi Kacchi No. Khasra 27M and 28M and Bhumi
(land) 19 Bigha, 3 Biswa, 15 Biswansi Khasra No. 4M and Bhumi
(land) 30 Bigha Kacchi No. Khasra 4M total Bhumi (land) 71 Bighas,
15 Biswa, 5 Biswansi Kacchi situated at Bhupatwala Kalan, Pargana
Jwalapur, Distt. Saharanpur and houses and 4 boundary walls pakka
and well with wheels and brick-kiln, garden and tube-well with oil
engine and tin shed etc. which have been situated on the above
mentioned land presently Khasra No. 4/5 (4/27) 48/6/2(28/26 and
48/28); Description of Boundary No. 1: East \026 Way, West \026 Road
Haridwar-Rishikesh, North \026 Land of Sohanlal Mistri, South \026 Nala
and after that boundaries of Mahant Sadhu Singh; Description of
Boundary No. 2: East \026 Road Haridwar-Rishikesh, South \026 Land of
Shankaranand, North \026 Land of Brahamchari and after that Nala, West
\026 Forest Land) mentioned in the plaint after adjudging the sale deed
dated 5.5.1962 registered on 19.6.1962 invalid executed by Budh
Dass in favour of Udasin Panchayati Bara Akhara, defendant No.1-
respondent No.1 (for convenience hereinafter referred to as
"defendant No.1") to be void and cancelling the same. The suit was
filed on the allegations that Mahant Tahal Dass was Udasin of Panth
of Revered Shrichand. In the said Panth there is a custom that Mahant
cannot marry and he is entitled to initiate a ’Chela’. After the death of
Mahant, his eldest chela Dooj Das succeeded to all rights and interests
in the properties of his Guru. It is also a custom in the Panth that on
the tenth day of the death of Guru there is a ceremony called
Dassehra. Akhand Path of Guru Granth Saheb is performed and Bhog
is offered and eldest chela of the deceased Guru is acknowledged as
the heir of the deceased, whereafter he is known as ’Mahant’. Mahant
Tahal Dass initiated the plaintiff-Dooj Das as his chela on 23.7.1937
at the Dera of Bhetiwala, Tehsil Muktasar, District Ferozpur in
accordance with the custom, in the presence of respectable persons
and from that day the plaintiff became the chela of Mahant Tahal
Dass. Mahant Tahal Dass died on 5.12.1957 and the plaintiff being
the eldest chela was recognized and acknowledged as successor of the
deceased Mahant and thereafter was known as Mahant Dooj Dass.
The plaintiff succeeded to all rights, properties and assets of Mahant
Tahal Dass. Meanwhile, before the death of Mahant Tahal Dass,
defendants Prag Dass, Ishwar Dass and Hari Dass were also initiated
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as chelas by him. The plaintiff being the eldest chela, succeeded to all
the properties left by his Guru, according to the custom. Mahant
Tahal Dass acquired the suit properties by permanent leases
measuring 71 Bighas, 15 Biswa and 15 Biswansi Kachi situated at
Bhupatwala Kalan, Pargana Jwalapur, Tehsil Roorkee, Distt.
Saharanpur within the limits of Municipal Board, Hardwar. Mahant
Tahal Dass was the permanent lessee of these lands and he was in
occupation thereof. He was cultivating the same through his men and
sewaks. He was paying lagan also. After the death of Tahal Dass, the
plaintiff became the permanent lessee of all the lands. He also had
right therein as being the eldest chela, heir and successor of Mahant
Tahal Dass. On the occasion of Ardh Kumbhi, the plantiff went to
Hardwar for the first time on 11.4.1968 after the death of his Guru to
have a dip in the holy Ganges on the sacred day along with his sewaks
and there he learnt that one Budh Dass (since deceased) claimed
himself to be the chela of Mahant Tahal Dass and transferred the
rights under the leases to defendant No.1 through defendant
No.2/respondent No.2 (for convenience hereinafter referred to as
"defendant No.2") and, therefore, he obtained a certified copy of the
sale deed on 19.4.1968. Budh Dass was never initiated as chela by
Mahant Tahal Dass and, therefore, he had no right, title and interest
over the suit lands. Defendants Nos. 1 and 2 did not derive any right
or title in the suit properties by the sale deed. The sale deed was in
collusion with defendants Nos. 1 and 2.
2. Defendants Nos. 1 and 2 filed their written statement
denying the custom alleged in the plaint. As per the defendants, the
plaintiff was never initiated as the chela of Mahant Tahal Dass. The
last rites of Mahant Tahal Dass were denied to have been performed
by the plaintiff. However, the defendants admitted that Mahant Tahal
Dass had properties at Bhittiwala, Sheikha, Govindgarh, Karamwala,
Rampura and Bhupatwala (Hardwar). It is also admitted that Mahant
Tahal Dass died in the year 1957 and the suit property belonged to
Tahal Dass on permanent leasehold rights. It is alleged that U.P.
Urban Areas Zamindari Abolition and Land Reforms Act, 1956 is
applicable to the suit lands and under the Act, proceedings in respect
of the lands cannot be initiated in civil court and as such civil court
has no jurisdiction to try the suit. It is further pleaded that the
defendants had purchased the suit properties bonafide for a
consideration of Rs.32,000/- from Budh Dass, who died three years
before the institution of the suit. In the written statement, it was
alleged that Budh Dass, the transferor who was the chela of Tahal
Dass, succeeded to the properties situated at Bhupatwala, Hardwar
after the death of his Guru Mahant Tahal Dass.
3. Defendant No.6 Hari Dass also contested the suit by
filing a separate written statement claiming therein the right, title and
interest in the suit property but lost in the trial court, in the first appeal
and Second Appeal No. 2713 of 1977 filed by him was withdrawn.
Thus, in the present proceedings he is not the contesting party.
4. The trial court decreed the suit of the plaintiff holding
that the plaintiff was initiated as the eldest chela of Mahant Tahal
Dass according to the custom and the plaintiff became the heir and
successor in respect of the properties of Mahant Tahal Dass. Budh
Dass, the transferor of property to defendants Nos. 1 and 2 did not
succeed to the property at Bhupatwala at Hardwar owned by Mahant
Tahal Dass. As per the trial court’s finding, there never existed any
person by the name Budh Dass nor had he ever succeeded to the rights
and interests of Mahant Tahal Dass, whatsoever to the suit properties;
hence, Budh Dass was incompetent to execute the sale deed dated
5.5.1962 in favour of defendants Nos. 1 and 2. It also appeared to the
trial court that the disputed sale deed dated 5.5.1962 was completely a
forged and fictitious document. Consequently, the trial court set aside
and cancelled the sale deed dated 5.5.1962 executed by Budh Dass in
favour of defendants Nos. 1 and 2 and decreed the suit. As regards
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jurisdiction of the civil court to try the suit and the valuation put by
the plaintiff, it was held, while trying them as preliminary issue on
13.10.1969, that the civil court had jurisdiction to try the suit.
5. Aggrieved by the judgment and decree of the trial court,
defendants Nos. 1, 2 and 6 filed appeals numbered as C.A.No.117 of
1976 titled Hari Dass vs. Mahant Dwaj Dass & Ors. and C.A.
No.118 of 1976 titled Udaseen Panchayati Bara Akhara & Anr. vs.
Mahant Dwaj Dass and Others. The first appellate court held that
plaintiff was the eldest chela of Mahant Tahal Dass and was duly
installed as successor of the Mahant and he succeeded to the
properties of his Guru. Evidence on record did not establish the
identity of any Budh Dass to be the chela of Mahant Tahal Dass and,
therefore, he did not succeed to the suit properties. As regards the
question of jurisdiction of civil court, the first appellate court held that
the suit property is situated within the municipal limits of Hardwar
recorded as Bhumidari land but the land in question was acquired for
the purposes of erecting buildings. The lessee in fact created a dera
on the spot by erecting buildings, installing tube-wells etc. Section
143 of the U.P. Land Reforms Act, 1950, was, therefore, attracted.
The court further held that the cause of action for the purposes of
jurisdiction depends on the facts and circumstances of each case. The
real controversy in the suit is right to the office of Mahantship.
Cancellation of the sale deed is also directly involved. Determination
of the question of relinquishing the office of Mahantship is also
involved. All these matters in controversy can only be decided by a
competent civil court and, therefore, lower court has rightly upheld
the jurisdiction of the civil court to try the suit. Consequently, C.A.
Nos. 117/1976 and 118/1976 were dismissed and judgment and decree
of the trial court was confirmed.
6. Defendants Nos. 1 and 2 preferred a second appeal before the
High Court under Section 100 of the Code of Civil Procedure
challenging the judgment and decree of the first appellate court. On
12.11.2002, the High Court admitted the appeal and the following
three substantial questions of law were framed:
"(1) Whether after enforcement of the U.P. Urban Areas
Zamindari Abolition and Land Reforms Act, 1956, the land in
suit, stood vested with the State of U.P. by operation of law free
from all encumbrances and stood settled with the Appellants
(Defendant No.1 and 2) exclusively? If so, whether the suit
was barred by Section 331 of the U.P. Zamindari Abolition and
Land Reforms Act, 1950?
(2) Whether the suit was barred by law of limitation and
whether the plea of limitation can be raised at the stage of
second appeal in a situation when neither it was pressed before
the Trial Court nor before the First Appellate Court?
(3) Whether the State of U.P. and the Gaon Sabha/Gaon
Panchayat, were the necessary parties? If so, was the suit liable
to be dismissed for non-joinder of necessary parties?
On an application being filed by defendants Nos. 1 and 2, the
following order was passed by the High Court on 25.7.2005 :
"Heard learned counsel for the parties.
Learned counsel for the appellant/defendant, drew the
attention of this Court to the application No.2741 of 2005,
suggesting few more questions of law.
Already this Court has formulated the substantial
question of law on 12.11.2002, with the observations that the
appellant does not press other applications and rejected the
same. However, now few more questions have been suggested.
Since this is an old appeal, which was instituted in the year
1977, it is not just and proper to keep on framing the substantial
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questions of law, each day, after hearing. In view of the sub-
section (5) of Section 100 of the Code of Civil Procedure, 1908,
if any substantial question of law is found left out, this Court
has ample power to hear the parties on such questions and to
answer them. Therefore, this Court feels that instead of framing
new questions of law, it is better to proceed with the hearing of
this old appeal and if any of the question of law is found left,
the same would be answered by the Court, after hearing the
parties. Learned counsel for the parties agreed that this appeal
may be listed on 29th August, 2005 for final hearing, as both of
them are coming from Allahabad.
List this appeal for final hearing on 29th August, 2005."
The High Court by its impugned order dated 23.2.2006 answering the
first substantial question of law has held that by virtue of the
expression "which have been so demarcated under Section 5 of the
aforesaid Act" (i.e. U.P. Urban Areas Zamindari Abolition and Land
Reforms Act, 1956) (hereinafter referred to as "the 1956 Act"),
contained in the notification, indicates that the demarcation was made
before the notification under Section 8 of the 1956 Act was issued;
that the land in question stood vested in the State of U.P. w.e.f.
1.7.1963; that the suit being basically for declaration of the title and
the cancellation of the sale deed in respect of the agricultural area
under the 1956 Act is an ancillary relief and the real question between
the parties is of title in respect of agricultural area covered under the
1956 Act; and that in view of the provisions of Section 82 of the 1956
Act read with Section 331 of the U.P. Zamindari Abolition and Land
Reforms Act, 1950 (hereinafter referred to as "the 1950 Act"), the suit
before the civil court between the parties is barred by law. Thus, the
High Court has held that the suit as it is filed by the plaintiff was not
maintainable before the civil court. As regards question No.2, the
High Court has held that the suit filed in the civil court is within
limitation but the suit before the revenue court would be barred by
limitation. Question No. 3 was decided in favour of the plaintiff
holding that the question of non-joinder of the parties stands waived
by the defendants. The High Court neither framed the question of law
regarding right, title or interest in the suit property nor has disturbed
the findings of courts below on that issue. The High Court on the
basis of the decision of the first question of law has allowed the
appeal and set aside the judgment and decree passed by the courts
below. The plaintiff is, therefore, before us in this appeal.
7. It is submitted by Shri Nagendra Rai, learned senior counsel
appearing for the plaintiff (appellant herein) that the High Court has
committed an error in holding that the land in question stood vested
under the 1956 Act in the State and as such provisions of the 1956 Act
are attracted and consequently the suit is required to be filed in the
revenue court under Section 331 of the 1950 Act and not in civil
court, which does not have jurisdiction to try the suit.
8. It is further contended by Shri Rai that the relief claimed by the
plaintiff was a decree for possession over the suit lands after
adjudging the sale deed dated 05.05.1962 registered on 19.06.1962
executed by Budh Dass in favour of Udasin Panchayati Bara Akhara
illegal and canceling the same. The overall reading of the plaint
indicates that the main relief claimed is of cancellation of the sale
deed and ancillary relief is delivery of possession of the suit
properties. As the effect of the sale deed had had to be got rid of by
an appropriate adjudication, as a transaction could not be said to be
void in law which is not required to be set aside, the suit, as it was
filed, was cognizable by the civil court and not by the revenue court.
The counsel urged that under Section 331(1-A) of the 1950 Act,
which was incorporated in the 1956 Act, the objection to the
jurisdiction of civil courts with respect to the suit shall be entertained
by the court, only, if the objection was taken in the court of first
instance at the earliest possible opportunity and in all cases where the
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issues are settled at or before such settlement. It is further required to
be alleged and proved that entertainment of the suit results in
consequential failure of justice. Thus merely because the objection
has been taken to the jurisdiction of the civil court at the first instance
unless a case of failure of justice is made out and findings recorded by
the court to that effect, civil court’s jurisdiction could not be ousted in
regard to the cause of action triable by the revenue court. The High
Court has not arrived at any finding in regard to the consequential
failure of justice and thus could not have dismissed the suit of the
plaintiff on the ground that the civil court had no jurisdiction.
9. To counter, Shri Sakha Ram Singh, learned senior counsel for
the respondents submits that the land in question was a tenancy land
and, therefore, shall be deemed to have been acquired under the 1956
Act by the State, and the provisions of the 1956 Act would be
attracted. Therefore, there is no illegality or infirmity in the judgment
of the High Court holding that the jurisdiction of the civil court is
barred.
10. It is further submitted that by virtue of Section 82 of the 1956
Act, the provision of Section 331(un-amended) has been inserted in
the 1956 Act whereas Section 331(1-A) has been amended in the 1950
Act by insertion by U.P. Act No.4 of 1969 on 1.9.1969. The suit was
filed on 03.07.1968. It is a settled principle of law that when certain
provisions from an existing Act have been incorporated into a
subsequent Act, no addition to the former Act, which is not expressly
made applicable to the subsequent Act, can be deemed to be
incorporated in it. Section 331 of the 1950 Act has been inserted in
the 1956 Act by adoption, the provision as it stood at the time of
insertion by adoption would be a provision applicable in the 1956 Act
and not the amended provision of the original Act, namely, Section
331(1-A), which was inserted in the original Act of 1950 on a later
date and, therefore, there was no necessity to prove on the part of the
defendants that there was a consequential failure of justice caused by
not filing a suit in the appropriate forum. That apart, the suit would be
barred by limitation in the revenue court but would be maintainable in
the civil court, would itself is a proof of failure of justice. If the suit is
permitted to be continued in the civil court which would be within
limitation, the defendants’ right to raise defence of suit before revenue
court is beyond limitation would be lost. It is also submitted by the
learned counsel that if the 1956 Act has no application to the suit
lands, the cause of action in respect of the land would be governed
under the U.P. Tenancy Act, 1939 and on its application the suit
would have been maintainable before the revenue court and not before
the civil court. It is urged by the learned counsel that in any case the
case requires to be remanded to the High Court for adjudicating other
questions which arise from the judgment of first appellate court. The
High Court having expressed that in view of sub-section (5) of
Section 100 of the Code of Civil Procedure, 1908, if any substantial
question of law is found left out, the court has ample power to hear
the parties on such questions and answer them.
11. The first and the material issue which is required to be
considered by this Court is whether the land in suit would be covered
and governed under the 1956 Act so as to apply the provisions of
Section 331 of the 1950 Act to oust the jurisdiction of the civil court.
The decision of this issue would decide whether this Court is required
to go into the other questions raised by the parties in this appeal.
12. The Uttar Pradesh Urban Areas Zamindari Abolition and Land
Reforms Act, 1956 received the assent of the President on 7.3.1957
and was published in the U.P. Gazette Extraordinary dated 12.3.1957.
The Act was brought into force to provide for the abolition of
Zamindari system in agricultural areas situated in urban areas of U.P.
and for acquisition of the rights, title and interest of the intermediaries
between the tiller of the soil and the State in such areas and for
introduction of the land reforms therein. Section 2(1) defines
‘agricultural area’ which reads as under :-
"agricultural area" as respects any urban area means an
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area which, with reference to such date as the State Government
may notify in that behalf, is \026
(a) in the possession of or held or deemed to be held by an
intermediary as sir, khudkasht or an intermediary’s
grove;
(b) held as a grove by or in the personal cultivation of a
permanent lessee in Avadh; or
(c) included in the holding of \026
(i) a fixed-rate tenant,
(ii) an ex-proprietary tenant,
(iii) an occupancy tenant,
(iv) a tenant holding on special terms in Avadh,
(v) a rent-free grantee,
(vi) a grantee at a favourable rate of rent,
(vii) a hereditary tenant,
(viii) a grove-holder,
(ix) a sub-tenant referred to in sub-section (4) of
Section 47 of the U.P. Tenancy Act, 1938; or
(x) a non-occupancy tenant of land other than land
referred to in sub-section (3) of Section 30 of the
U.P. Tenancy Act, 1939,
and is used by the holder thereof for purposes of
agriculture or horticulture;
Provided always that land which on the date
aforesaid is occupied by buildings not being
"improvements" as defined in Section 3 of the U.P.
Tenancy Act, 1939, and land appurtenant to such
buildings shall not be deemed to be agricultural area.
(d) held on lease duly executed before the first day of July,
1955 for the purposes of erecting buildings thereon; or
(e) held or occupied by an occupier.
"Explanation \026 An area, being part of the holding of a tenant
shall not be deemed to have ceased to be agricultural area by
reason merely that it has not been used, during the seven years
preceding the commencement of this Act, for raising crops or
other agricultural produce."
Chapter II provides for demarcation of agricultural areas. The
relevant provisions of Chapter II read as under :-
"3. Power to order demarcation of agricultural areas \026
(1) The State Government may, with a view to acquisition
under the provisions of this Act of the rights, title and interest
of intermediaries in urban areas, direct by notification in the
official Gazette, that the agricultural area situated in any such
area be demarcated.
(2) As soon as may after the publication of the notification
under sub-section (1), the Demarcation Officer shall make
enquiries in the prescribed manner, and shall determine and
demarcate agricultural areas within the urban areas.
4. Publication of preliminary proposals and objections
thereon \026 (1) The Demarcation Officer shall, within three
months or such extended period as the State Government may
in any case fix; of the date of the notification under sub-section
(1) of Section 3, submit his proposals with reasons therefor to
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the Commissioner who may make such modifications therein as
he may consider necessary.
(2) After the Commissioner has considered the said
proposals he shall publish a notice in the prescribed form in the
Gazette and in such other manner as may be prescribed to the
effect that the proposals as regards the demarcation of
agricultural areas have been formulated and are open to
inspection at the places to be specified in the said notice.
(3) Any person or local authority interested may within three
months of the date of publication of the notice under sub-
section (2), file an objection on the proposals before such
officer or authority and in such manner as may be prescribed.
5. Final demarcation \026 (1) After the expiry of the period
of three months mentioned in sub-section (3) of Section 4, the
Commissioner shall proceed to decide the objections in the
manner prescribed and then finally demarcate the agricultural
area.
(2) After the Commissioner has finally demarcated the
agricultural area under sub-section (1), he shall publish a notice
in the Gazette and in such other manner as may be prescribed to
the effect that the agricultural areas have been finally
demarcated and their details are open to inspection at places to
be specified in that notice.
(3) An appeal shall lie to the Board against the orders passed
by the Commissioner under sub-section (1)."
13. Chapter III provides for acquisition of the interests of
intermediaries and its consequences. Section 8 under this Chapter
reads as under:
"8. Vesting of agricultural area in the State.- After the
agricultural area has been demarcated under Section 5, the State
Government may, at any time, by notification in the official
Gazette, declare that as from a date to be specified all such
areas situate in the urban area shall vest in the State and, as
from the beginning of the date so specified all such agricultural
areas shall stand transferred to and vest except as hereinafter
provided, in the State free from all encumbrances."
By a notification issued under Section 8 by Rajaswa Vibhag dated
20.06.1963, the agricultural area in Haridwar demarcated under
Section 5 has been vested with the State Government. The relevant
portion of the notification issued reads as under :-
Rajaswa Vibhag Notification No.2653/1-A-168-60, dated June
20, 1963, published in U.P. Gazette, Part 1, dated June 29,
1963, p.1217.
In exercise of the powers under Section 8 of the U.P. Urban
Areas Zamindari Abolition and Land Reforms Act, 1956 (U.P. Act
No. IX of 1957), the Governor of Uttar Pradesh is pleased to declare
that as from the first day of July, 1963, all agricultural areas in the
following urban areas of the State, which have been so demarcated
under Section 5 of the aforesaid Act, shall vest in the State of Uttar
Pradesh, and as from the beginning of that date, all such agricultural
areas shall stand transferred to, and vest, except as provided in the
said Act, in the State free from all encumbrances :
------------------------------------------------------------------------------------
Serial No. Name of Urban Area District
------------------------------------------------------------------------------------
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Meerut Division
1. Rishikesh .. Municipality .. Dehra Dun.
2. Hardwar Union .. Do .. Saharanpur
3. Deoband .. Do .. Do
\005 \005 \005.
14. By virtue of Section 8 after the agricultural area has been
demarcated under Section 5, the State government would issue a
notification in the official gazette declaring that from specified date all
demarcated area situated in the urban area shall vest with the State
Government and from the date so specified all such agricultural area
shall be transferred to and vest except otherwise provided, in the State
free from all encumbrances. The purport of Section 8 is very clear
that the agricultural land falling in the urban area has to be demarcated
under Section 5 and thereafter the notification shall be issued by the
State Government in regard to the demarcated area in the urban area
to have been vested in the State. Sections 3 to 5 lay down the
procedure for demarcation of the area for the purposes of acquisition
of right, title and interest of intermediaries in urban areas of the
agricultural area. Under Section 3, the State Government shall issue a
notification in the official gazette for the purposes of acquisition of
right, title and interest of intermediaries in urban areas and declare
such area as demarcated area. After the publication of the notification
under sub-section (1) the Demarcation Officer shall make inquiries in
the prescribed manner and thereafter shall determine and demarcate
the agricultural area within the urban area. After this, under Section
4, the Demarcation Officer would within three months or such
extended period as may be extended by the State Government, from
the date of notification issued under sub-section (1) of Section 3,
submit his proposal with a reason thereof to the Commissioner, the
Commissioner may make such modifications in the demarcated area
as he may consider necessary. After the proposal is finalized by the
Commissioner he shall publish a notice in the prescribed form in the
gazette and in such other manner as may be prescribed, to the effect
that the proposals as regards demarcation of the agricultural areas
have been formulated and are open to inspection at the place which
would be specified in the published notice. Thereafter, any person
interested in such demarcation may within three months of the
publication of the notice under section sub-section (4) of Section 2
could file an objection on the proposal before such officer or authority
in a manner provided therein. Section 5 lays down that after the
expiry of the period of three months of publication of notice the
Commissioner shall decide the objections received and thereafter shall
finally demarcate the agricultural area. Sub-section (2) of Section 5
lays down that after determination of the objections finally,
demarcated agricultural area shall be published by notice in the
gazette or in such other manner as may be prescribed to the effect that
final demarcation of the agricultural area in the urban area is made
and the details thereof are open to inspection at places specified in the
notice. On such notice being issued, sub-section (3) of Section 5
provides for an appeal to the Board of Revenue against the order
passed by the Commissioner prescribing finally demarcated
agricultural area. Section 8 lays down that after the agricultural area
in the urban area has been demarcated under Section 5 the State
Government shall notify it in the Official Gazette that such area is
vested in the State from the date specified therein and all such
agricultural areas shall stand transferred and vested in the State
government free from encumbrances. From the aforesaid provision, it
is amply clear that elaborate procedure has been laid down before the
agricultural area in the urban area is declared to be a demarcated area
for the purpose of vesting in the State free from encumbrances.
Section 3 provides for a notice to the general public that a particular
agricultural area in the urban area is being picked up for declaring that
area to be demarcated area for the purposes of all right, title and
interest of intermediary to be vested with the State Government free
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from all encumbrances. After such notification the Demarcation
Officer has to apply his mind, make inquiries whether a particular area
is to be declared as a demarcated area and thereafter submit his
proposal for the purposes of declaration of demarcated area before the
Commissioner. The Commissioner is authorized to make a
modification in the proposal and thereafter is called upon to publish a
notice in the gazette or in any other manner as prescribed, that the
proposal as regards demarcation of the agricultural area is formulated
and are open to inspection. This apparently is a tentative proposal
which is subject to the objection by any person or local authority. If
any objection has been received within three months the
Commissioner is called upon to decide those objections and thereafter
pass a final order in regard to proposed demarcated area. Once the
objections are decided and the Commissioner has arrived at the
finding that a particular agricultural area in the urban area is to be
declared as a demarcated area he shall publish a notice in the gazette
showing the demarcated area which has been finally decided to be a
demarcated area for the place. Sub-section (3) of Section 5 thereafter
provides for an appeal from the order of the Commissioner. The
agricultural area was only to be declared to be vested in the State
Government free from all encumbrances under Section 8 only after
such an agricultural area has been finally declared to be demarcated
area.
15. In the present case, there is no evidence led by the defendants
that the suit land had been declared as a demarcated area and the suit
area being declared to be such has vested with the State government
under Section 8 of the 1956 Act. The notification issued under
Section 8 says that in exercise of powers of Section 8 of the 1956 Act,
the Governor of U.P. declares that from 01.07.1963 all agricultural
areas in the following urban areas (which admittedly falls within the
Hardwar Union, District Saharanpur) of the then State of U.P. which
has been demarcated under Section 5 of the Act shall stand vested
with the State of U.P. and as from that day onwards all such
agricultural areas shall stand transferred to, and vested, except as
provided in the 1956 Act, in the State free from all encumbrances. It
is clear from this notification under Section 8 that the land which has
been demarcated under Section 5 in the Hardwar Union shall be
vested in the State free from all encumbrances. Unless and until it is
shown that the land in suit has been declared as a demarcated area or
falls within the demarcated area, exercising the powers under Section
5, it cannot be said that it has been vested in the State by virtue of
notification issued under Section 8 on 20.6.1963. By 20.6.1963
notification, it is only the demarcated area under Section 5 which has
been vested in the State. That does not necessarily means that the suit
lands have been vested in the State In the absence of proof, it cannot
be said that the suit area is a demarcated area and thus vested in the
State by issuance of the notification under Section 8 of the Act.
16. In Abdul Waheed Khan v. Bhawani and Others, AIR 1966 SC
1718, it was held that it is settled principle that it is for the party who
seeks to oust the jurisdiction of a civil court to establish his contention
and it is also equally well settled that a statute ousting the jurisdiction
of a civil court must be strictly constructed.
In Sri Vedagiri Lakshmi Narasimha Swami Temple v. Induru
Pattabhirami Reddi, AIR 1967 SC 781, this Court held that under
Section 9 of the Code of Civil Procedure, the courts shall have
jurisdiction to try all suits of civil nature excepting suits of which
there is a bar expressly or impliedly provided. It is well settled
principle that a party seeking to oust jurisdiction of an ordinary civil
court shall establish the right to do so.
In Smt. Bismillah v. Janeshwar Prasad and Others, (1990) 1 SCC
207, this Court has reiterated the principle laid down and said that it is
settled law that exclusion of the jurisdiction of the civil court is not to
be readily inferred, but that such exclusion must either be explicitly
expressed or clearly implied. The provisions of law which seek to
oust the jurisdiction of civil court need to be strictly construed.
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In Sahebgouda (Dead) by LRs. and Others v. Ogeppa and Others,
(2003) 6 SCC 151, this Court has held that it is well settled that a
provision of law ousting the jurisdiction of a civil court must be
strictly construed and onus lies on the party seeking to oust the
jurisdiction to establish his right to do so.
In Dwarka Prasad Agarwal (D) by LRs. v. Ramesh Chander
Agarwal and Others, (2003) 6 SCC 220, a 3-Judge Bench has held
that Section 9 of the Code of Civil Procedure confers jurisdiction
upon the civil courts to determine all disputes of civil nature unless
the same is barred under a statute either expressly or by necessary
implication. Bar of jurisdiction of a civil court is not to be readily
inferred. A provision seeking to bar jurisdiction of a civil court
requires strict interpretation. The court, it is well settled, would
normally lean in favour of construction, which would uphold retention
of jurisdiction of the civil court. The burden of proof in this behalf
shall be on the party who asserts that the civil court’s jurisdiction is
ousted.
17. Thus, from the aforesaid decisions, it is now well established
principle of law that the ouster of jurisdiction of a civil court is not
readily accepted and heavy burden of proof lies on the party who
asserts that the civil court’s jurisdiction is ousted and some other
court, tribunal or authority has been vested with jurisdiction.
18. For application of the provisions of Section 331 of the 1950 Act
which has been incorporated in the 1956 Act, it was necessary for the
defendants to prove that the suit lands had been demarcated by the
State Government by taking necessary steps as contemplated under
Sections 3, 4 and 5 of the 1956 Act. Sections 3, 4 and 5, as already
held by us, provide a complete code for demarcation of the
agricultural area after giving appropriate hearing to the party affected
by following the procedure laid down therein, it also provides for an
appeal to the Board of Revenue. It is only after the area is declared as
demarcated area, Section 8 will be attracted and the notification to that
effect would be issued in regard to and in respect of such declared
demarcated area to be vested in the State Government. Unless the
land is vested in the State Government, the provisions of Section 331
of the 1956 Act would have no application to oust the jurisdiction of
the civil court.
19. In the present case, no evidence has been led by the defendants
on whom heavy burden lies to prove the fact that the suit lands were
declared demarcated. Notification under Section 8 which itself says
that the demarcated area has been vested in the State Government,
would not be given a meaning as if the suit lands had also been
demarcated and thus stood vested in the State Government by virtue
of the notification issued under Section 8 of the 1956 Act.
20. The defendants have claimed ouster of the civil court’s
jurisdiction only on the basis of Section 331 of the 1950 Act
incorporated in the 1956 Act. The defendants having failed to prove
the applicability of that provision to the area in the suit, civil court’s
jurisdiction cannot be said to have been ousted and vested in the
revenue court.
21. The learned senior counsel for the respondents for the first time
before this Court tried to raise the question that the suit as it was filed,
if not barred under the 1956 Act, is competent to be heard by the
revenue court by virtue of the U.P. Tenancy Act, 1939 which was in
force prior to the enforcement of the 1950 Act, the civil court would
not have any jurisdiction to try the suit of the plaintiff. We cannot
permit this new plea, which does not appear to be a pure question of
law to be raised for the first time at the time of hearing of the appeal
in this Court. The question of applicability of some other law was
neither raised in the written statement nor before the courts below.
22. The High Court has framed only three substantial questions of
law. Neither any other question of law has been framed by the High
Court nor any other question decided by the courts below has been put
to challenge by framing substantial question of law in regard thereto
at the time of or before arguments before the High Court. Thus, the
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finding arrived at, that the plaintiff was initiated as the eldest chela of
Mahant Tahal Dass according to the custom and being the eldest chela
was heir and successor in respect of the suit property of Mahant Tahal
Dass and that Budh Dass did not succeed to the property of
Bhupatwala (Hardwar) has attained finality.
23. It is contended by the learned senior counsel for the
respondents herein that since the High Court has left open the
consideration of substantial questions of law in exercise of the powers
under sub-section (5) of Section 100 of the Code of Civil Procedure
(CPC) and, therefore, the matter requires remand, cannot be
countenanced with. There is nothing on record that the High Court
has exercised the powers under proviso to sub-section (5) of Section
100, CPC. The power of the High Court to hear an appeal on the
question of law not formulated is conferred by virtue of proviso to
sub-section (5) of Section 100, CPC, but to apply the provision of
proviso it is a necessary condition to be satisfied that the High Court
feels satisfied that the case involves such question on which the
hearing has to given to the parties although such substantial question
of law has not been framed and secondly the High Court records its
reasons for its satisfaction. [See Santosh Hazari v. Purushottam
Tiwari (Dead) by LRs., AIR 2001 SC 965]. Under the proviso to
Section 100(5), CPC, it is a necessary condition that the court is
satisfied that the case involves a substantial question of law and not
merely a question of law, and the Court must record the reason
permitting the substantial question of law to be raised.
In Kshitish Chandra Purkait v. Santosh Kumar Purkait and Others,
AIR 1997 SC 2517, this Court held in para 7 as under:
"\005We would only add that (a) it is the duty cast upon the High
Court to formulate the substantial question of law involved in
the case even at the initial stage; and (b) that in (exceptional)
cases, at a later point of time, when the Court exercises its
jurisdiction under the proviso to sub-section (5) of Section 100,
C.P.C. in formulating the substantial question of law, the
opposite party should be put on notice thereon and should be
given a fair or proper opportunity to meet the point. Proceeding
to hear the appeal without formulating the substantial question
of law involved in the appeal is illegal and is an abnegation or
abdication of the duty cast on Court; and even after the
formulation of the substantial question of law, if a fair or proper
opportunity is not afforded to the opposite side, it will amount
to denial of natural justice. The above parameters within which
the High Court has to exercise its jurisdiction under Section
100, C.P.C. should always be borne in mind. \005"
In Gian Dass v. Gram Panchayat, Village Sunner Kalan and
Others, (2006) 6 SCC 271, this Court in para 13 has held as under:
"\005 The proviso is applicable only when any substantial
question of law has already been formulated and it empowers
the High Court to hear, for reasons to be recorded, the appeal on
any other substantial question of law. The expression "on any
other substantial question of law" clearly shows that there must
be some substantial question of law already formulated and
then only another substantial question of law which was not
formulated earlier can be taken up by the High Court for
reasons to be recorded, if it is of the view that the case involves
such question."
24. From the aforesaid decisions of this Court, it is apparent that
the High Court cannot deal with the issues unless a substantial
question of law is framed by it. It appears that no other question than
the questions of law already framed by the High Court has been raised
before the High Court nor the High Court has recorded its satisfaction
that apart from the questions of law already framed any other
substantial question of law has arisen nor the plaintiff was put to
notice that such other substantial question of law has arisen in the case
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to be heard.
25. From the aforesaid, it cannot be said that any other substantial
question of law than already framed by the High Court has either been
framed or has been left open by the High Court to be adjudicated at a
later stage. No case is made out for remanding the matter to the High
Court to hear the same on non-existing substantial question of law.
As we have already held that the defendants on whom the burden lies
to prove the ouster of the civil court has failed to discharge its burden
and applicability of the 1956 Act to the suit lands has not been proved,
no other questions argued by the parties are required to be decided by
us.
26. For the aforesaid reasons, we hold that the civil court has
rightly exercised its jurisdiction in deciding the matter and the High
Court after holding all the issues in favour of the plaintiff has
erroneously dismissed the suit of the plaintiff holding that it was
beyond competence of the civil court. The judgment of the High
Court so far as it holds that the civil court has no jurisdiction and
reversal of the decree passed by the appellate court, is therefore
required to be set aside. Accordingly, the High Court’s judgment is
set aside and the decree passed by the first appellate court is
confirmed. The appeal is allowed with costs quantified at
Rs.10,000/-.