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2010 Supreme(All) 3059
[2010(9) ADJ 436]
ALLAHABAD HIGH COURT
BEFORE : PANKAJ MITHAL, J.
RAM PRAKASH AGRAWAL (DEAD) AND OTHERS ......Defendant/Appellants
Versus
RISHI KUMAR ......Plaintiff/respondent
(Second Appeal No. 865 of 2010, decided on 7th September, 2010)
Counsel :
D.P. Singh. P.C. Sharma,Himanshu Upadhyaya for the Appellants; Anadi Krishna Narayana, Dhru Narayana, Y.K. Srivastava for the Respondent.
Headnote:(A) Code of Civil Procedure, 1908—Sections 9, 21—U.P. Zamindari Abolition and Land Reforms Act,1950—Sections 331(1)(1-A), 143—Jurisdiction—Bar of jurisdiction of Civil Court—Objection raised at Appellate Court—Admittedly, in present case, the question of ouster of jurisdiction of Civil Court was neither pleaded in written statement nor was raised in the Court of first instance—It was at a much later stage during pendency of appeal defendant by amendment in written statement got additional issue framed—Further, no material was placed to show how any prejudice was accused to the defendant by the trial of the suit by the Civil Court—Thus, twin conditions necessary under Section 331 (1-A) of Act, 1950 for taking objection does not stand satisfied—Apart from this, the lower Appellate Court recorded a clear finding that land in dispute is not an agricultural land meaning thereby that Section 331 of the Act would not come into play—Therefore, there be no requirement for declaring it to be non-agricultural land under Section 143. [Paras 26, 27 and 28]
(B) Code of Civil Procedure, 1908—Order VI, Rule 17—Amendment—Permissibility in appeal—Defendant failed to take objection regarding jurisdiction of Civil Court in the Court of first instance and when such objection is not permissible to be raised in Appellate Court the very order allowing the amendment to that effect and framing an issue on it by Appellate Court was patently illegal without jurisdiction. [Paras 30 and 31]
(C) U.P. Zamindari Abolition and Land Reforms Act,1950—Sections 156, 165—Agricultural land—Letting of—Vesting of right in transferee—Section 165 provides that in case holding or its part is let out in contravention of Section 156 it would be deemed to be settled as Bhumidhar with non-transferable rights with the tenant—No such vesting of right in the defendant had taken as the land was not an agricultural holding. [Para 32]
Result; Appeal Dismissed.
Hon’ble Pankaj Mithal, J.—This second appeal has been preferred on behalf of the defendant deceased Ram Prakash Agrawal through his heirs and legal representatives after having lost in both the Courts below.
2. The plaintiff Rishi Kumar instituted Original Suit No. 34 of 1985 for possession of the disputed plot of land situate in Etah, arrears of rent, damages and prohibitory injunction restraining the defendant from encroaching his adjoining land by dumping coal on it. The suit was filed on the allegation that the defendant is a tenant of the plot @ of Rs.105/- per month but he has started encroaching upon his adjoining land also by dumping coal. Accordingly, his tenancy was determined vide registered notice dated 23.8.1984. On his failure to vacate the land within the time provided in the notice, the cause of action for filing the suit had arisen.
3. The suit was contested by the defendant by filing his written statement and an additional written statement wherein the main defence was that the suit relates to an ‘accommodation’ and is barred by UP Act No. 13 of 1972. Apart from other pleas, it was also contended that there is no encroachment on any other land of the plaintiffs. The notice is invalid.
4. On the basis of the pleadings of the parties as many as 11 issues were framed.
5. On consideration of the evidence adduced by the parties the suit was decreed by the Court of first instance vide judgment and order dated 20.2.2003. The defendant was held to be tenant of the plot in dispute on rent of Rs. 105/- per month; he had encroached upon the other land of the plaintiff situate on the south west of the plot in dispute; the tenancy was not held to be in respect of any building, as such the suit was not barred by U.P. Act No. 13 of 1972 not even by Section 34 and 41 of the Specific Relief Act; and the notice was held to be valid.
6. Aggrieved by the decree so passed by the lower Court, the defendant preferred an appeal ie. Civil Appeal No. 7 of 2003. During pendency of the appeal initially two additional issues No. 12 and 13 were framed on 20.7.1998. Thereafter, defendant moved an application paper No. 24 A-1 under Order VI rule 17 CPC for seeking amendment in the written statement. The said application despite opposition was allowed on 17.12.2004 and the defendant was permitted to add paragraphs No. 11a,11b and 11c in the written statement. The said amendments were to the effect that the plot in dispute before the abolition was an agricultural land and that the defendant has acquired ownership right in the same and therefore the plaintiffs has no right to maintain the suit and further that the suit is barred by Section 331 of the U P Z A and L R Act (hereinafter referred to as the ‘Act’). Accordingly, two more issues No. 14 and 15 were framed with regard to the maintainability of the suit or the locus of the plaintiff to maintain it and that the suit being barred by Section 331 of the Act were also framed.
7. The lower Appellate Court vide judgment and order dated 29.7.2010 dismissed the appeal by affirming the findings of the first Court and in addition holding that the plot in dispute has not been proved to be an agricultural land and as such neither the defendant has acquired any ownership right in the same nor the suit is barred by Section 331 of the Act.
8. Thus, on behalf of the defendant to the suit this second appeal has been preferred.
9. In view of the limited question as to whether the suit is barred by Section 331 of the Act, counsel for both the parties consented for final disposal of the appeal at the threshold.
10. I have heard Sri D.P. Singh Senior Advocate assisted by Sri P.C. Sharma learned counsel for the defendant appellants and Sri Anadi Krishna Narayana learned counsel for the plaintiff respondent.
11. Sri D.P. Singh on behalf of the defendant appellants argued that the Courts below have manifestly erred in decreeing1 the suit as the same was patently barred by Section 331 of the Act. The decr
