Judgement

S.C. AGRAWAL, J.:- This appeal by special leave is directed against the judgement 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 re