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1980 Supreme(All) 526
HIGH COURT OF ALLAHABAD
K.N. SINGH, N.N.MITHAL, JJ.
Sabha Chand - Appellant
Versus
Narayan Singh – Respondent
Appeal No : F. A. F. O. No. 312 of 1974
Decided on : Dec 12, 1980
V.K.Gupta
A civil court has no jurisdiction to entertain a suit for partition of agricultural land, as Sec. 331 of the U. P. Zamindari Abolition and Land Reforms Act, 1950 provides a special forum for such suits.
Headnote:
JURISDICTION - PARTITION SUIT - U. P. ZAMINDARI ABOLITION AND LAND REFORMS ACT, 1950 - SEC. 331 - CIVIL COURT JURISDICTION - SUIT FOR PARTITION OF BHUMIDHARI LAND - SPECIAL FORUM PROVIDED - CIVIL COURT HAS NO JURISDICTION - OBJECTION TO JURISDICTION MUST BE TAKEN AT THE EARLIEST OPPORTUNITY - FAILURE OF JUSTICE MUST BE SHOWN - SEC. 331 (1-A) - APPEAL AGAINST DECREE OR ORDER OF CIVIL COURT MAINTAINABLE BEFORE APPELLATE COURT IN ACCORDANCE WITH CPC.
Fact of the Case:
Plaintiff filed a suit for partition of his 1/6 share in a plot of land, claiming to be a Bhumidhar and in possession of the land along with the defendants. The defendants contested the suit, denying the plaintiff's claim and asserting that he had no share in the land. They also pleaded that the suit was barred by Sec. 49 of the Consolidation of Holdings Act. The trial court dismissed the suit, holding that the land was not joint and the plaintiff had no share in it, and that the suit was not barred by Sec. 49 of the Consolidation of Holdings Act as the land had been earmarked as abadi land. The plaintiff appealed, and the appellate court set aside the trial court's judgment and decree, holding that the civil court had no jurisdiction to entertain the suit as the land in dispute was agricultural land.
Finding of the Court:
The High Court held that the civil court had no jurisdiction to entertain the suit for partition of agricultural land, as Sec. 331 of the U. P. Zamindari Abolition and Land Reforms Act, 1950 provides a special forum for such suits. The court also held that the plaintiff was not entitled to raise the question of jurisdiction before the appellate court, as he had not raised it in the trial court at the earliest opportunity and had not shown that he had suffered any failure of justice due to the civil court's jurisdiction.
Issues: 1. Whether the civil court had jurisdiction to entertain the suit for partition of agricultural land? 2. Whether the plaintiff was entitled to raise the question of jurisdiction before the appellate court?
Ratio Decidendi: 1. Sec. 331 of the U. P. Zamindari Abolition and Land Reforms Act, 1950 provides a special forum for suits for partition of agricultural land, and therefore the civil court had no jurisdiction to entertain the suit. 2. Sec. 331 (1-A) of the Act provides that a party cannot raise the question of jurisdiction unless the objection was taken by it in the court of first instance at the earliest possible opportunity or before the settlement of issues, and the party must also show that there has been failure of justice on account of the Civil court taking cognizance of the suit.
Final Decision: The High Court allowed the appeal, set aside the order of the appellate court, and directed it to hear and decide the appeal on merits.
N. N. Mithal, J.
1. This appeal is directed against the order of the Ilnd Addl. District Judge, Muzaffarnagar, dated 5-9-74 setting aside the judgment and decree of the trial court and remanding the suit to the trial court with a direction to return the plaint to the plaintiff-respondent.
2. Narain Singh plaintiff-respondent filed a suit for partition of his 1/6 share in plot No. 96 having an area of 1 Bigha 11 biswas situate in village Kabirpur, pargana Baghra, District Muzaffarnagar on the ground that he was Bhumidhar and in possession of the said plot in suit alongwith defendants No. 1 to 6 and one Hoshiar Singh. The suit was contested by defendants No. 1, 2, 3 and 8 who denied the plaintiff's claim and asserted that he had no share in the disputed land. The defendants further pleaded that the suit was barred by Sec. 49 of the Consolidation of Holdings Act. A number of other pleas were also raised but no plea questioning the jurisdiction of the civil court was raised. The trial court framed 13 issues, none of them related to the jurisdiction of the court to entertain or try the suit. The trial court held that the land in dispute was not joint and the plaintiff had no share in the same, and the suit was not barred by Sec. 49 of the Consolidation of Holdings Act as the land had been earmarked as abadi land. On these findings the trial court dismissed the suit. Plaintiff thereupon filed appeal against the judgment and decree of the trial court. The appellate court did not consider the trial court's findings on merits instead it set aside the trial court's findings on the sole ground that the civil Court had no jurisdiction to entertain the suit as the land in dispute was agricultural land. The appellate court remanded the suit to the trial court with a direction that the plaint be returned to the plaintiff for presentation to the competent court. Aggrieved the defendants have preferred this appeal against the order of the appellate court.
Learned counsel for the defendant appellants urged that since the plaintiff himself invoked the jurisdiction of the civil court, it was not open to him to raise the question of jurisdiction for the first time in appeal before the appellate court. He further urged that the view taken by the lower appellate court that the civil court had no jurisdiction is erroneous. The civil court, according to him, had full jurisdiction to entertain and try the suit. We find considerable force in the contention. Admittedly the plaintiff himself chose the forum by filing his suit in the civil court with the assertion that the land in dispute was abadi land. He contested the defendant's plea that the suit was barred by Sec. 49 of the Consolidation of Holdings Act on the ground that the question of title in abadi land is not determined by the consolidation authorities hence Sec. 49 could not operate as bar to his suit. The plaintiff produced evidence and invited the court to record findings on the questions raised in the suit. When the trial court dismissed the suit on merits, it was not open to the plaintiff to turn round to challenge the decree of the trial court on the ground that civil court had no jurisdiction to entertain or try his suit. No party can take advantage of its own mistake, if any, therefore, the plaintiff was not entitled to challenge the findings of the trial court on the ground of lack of jurisdiction.
3. Section 331 of the U. P. Zamindari Abolition and Land Reforms Act 1950 lays down that no court other than a court mentioned in Column 4 of Schedule II shall take cognizance of any suit for partition of Bhumidhari land. Entries contained in Schedule II provide that a suit for partition of bhumidhari land is cognizable by Assistant Collector, Ist Class. Since Section 331 provides special forum for filing suit for partition of agricultural land civil court has no jurisdiction to entertain such a suit. The question whether a suit is cognizable by a civil court or by a revenue court has
