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ALLAHABAD HIGH COURT
Ashwani Kumar Mishra, J.
Nasseunnisa Beghum - Appellant
Versus
Kunwar Yasmin Ali Khan and Ors. - Respondent
First Appeal No. 682 of 2012
Decided On : 18-05-2017
Order-7 Rule-11 CPC - Jurisdiction of Civil Court - U.P.Z.A. & L.R. Act - [Bhumidhari Land] - [Section 143, Section 331-A] - The court held that at the stage of entertaining application under Order-7 Rule-11 CPC, materials filed by defendants could not have been looked into or relied upon. The nature of the suit property being 'land' defined under the provisions of the U.P. Z.A. & L.R. Act was discussed, and it was noted that a finding in that regard could be invited by the Civil Court upon reference to the revenue Court. The court concluded that the judgment and decree passed by the court below cannot be sustained and remitted the matter back for a fresh consideration.
Fact of the Case:
The plaintiff filed a suit for partition of her 1/9th share in the properties mentioned in Schedule-E of the plaint. The defendant filed an application under Order-7 Rule-11 (d) CPC stating that the suit property was recorded as Bhumidhari in the revenue records and the names of defendants were duly mutated therein, and that the Civil Court had no jurisdiction to entertain the plea of partition. The trial court allowed the objection and rejected the plaint in respect of the property described in Schedule-E.
Finding of the Court:
The court found that the trial court erred in relying upon materials filed by the defendants at the stage of entertaining the application under Order-7 Rule-11 CPC. It also noted that the nature of the suit property being 'land' defined under the provisions of the U.P. Z.A. & L.R. Act required a finding that could be invited by the Civil Court upon reference to the revenue Court.
Issues: The issues were whether the trial court was justified in relying upon documents and materials brought on record by the defendants at the stage of hearing an application under Order-7 Rule-11 CPC, and whether it was open for the court to interpret plaint averments with regard to the existence of constructions over the suit property and hold that such property continues to have the character of an agricultural holding so as to oust the jurisdiction of the Civil Court.
Ratio Decidendi: The court held that at the stage of entertaining application under Order-7 Rule-11 CPC, materials filed by defendants could not have been looked into or relied upon. It also discussed the provisions of the U.P. Z.A. & L.R. Act and the procedure for determining the nature of the land, emphasizing that a finding in that regard could be invited by the Civil Court upon reference to the revenue Court.
Final Decision: The appeal succeeded, and the judgment and order passed by the court below were set aside. The matter was remitted back for a fresh consideration by the court below, with directions to frame a preliminary issue on the question of jurisdiction and determine whether the Civil Court had jurisdiction to grant relief of partition to the plaintiff or not.
Ashwani Kumar Mishra, J.
1. This appeal under Section 96 of Civil Procedure Code is directed against the judgment and decree passed by the Additional District Judge, Court No. 2, Agra dated 24.8.2012, whereby plaint filed in Original Suit No. 540 of 2007 has been rejected in respect of property described in Schedule-E of the plaint. Court below has consequently allowed the application filed on behalf of defendant No. 1 (Paper No. 165-C), under Order-7 Rule-11 (d) of Civil Procedure Code holding that the suit in respect of property shown in Schedule-E, is not maintainable before the Civil Court. In respect of other properties, the suit remains pending. Aggrieved by such determination, plaintiff-appellant is before this Court in the present appeal.
2. Shorn of unnecessary details, it transpires that plaintiff-appellant instituted Original Suit No. 540 of 2007 with the allegation that she is the owner of suit property, disclosed in Schedule A, B &E. Paras 1 to 4 of the plaint is reproduced: -
“1. That Kunwar Nasihat Ali Khan, father of the plaintiff & defendants No. 1,2,4 & 5 and grandfather of the defendant No. 3, was sole and absolute owner of the property in suit described in Schedule-A of the plaint inter-alia other properties. Smt. Rafiqunnisa Begam wife of Kunwar Nasihat Ali Khan was absolute owner of the property described in Schedule B of this plaint.
2. That Kunwar Nasihat Ali Khan expired in the year 1965 after executing his last Will dated 6.12.1964 in favour of his wife Smt. Rafiqunnisa Begam bequeathing his entire property including the property described in Schedule-A of the plaint with consent of his son defendant No. 2, three daughters, defendants No. 4 & 5 and his mother Smt. Zubeda Begam. By virtue of the above Will, Smt. Rafiqunnisa Begam became absolute owner of inter alia property mentioned in Schedule A of the plaint and already being owner of the property mentioned in Schedule B at the plaint, she became owner of the entire property in suit mentioned in Schedule A & B of the plaint and remained in possession of the above properties till her death in the year 1986.
3. That properties mentioned at item No. 1 to 28 in Schedule A of the plaint lie within the limits of town area Sadabad, District Hathras. In the above properties part is abadi land with constructions existing thereon and part is agricultural holding.
4. That out of Khasra Plot No. 962 mentioned in Schedule A of the plaint having total area of 0.283 hectare, the defendant No. 1 has sold 83.56 sq. yard area to Shri Bhavani Shanker, defendant No. 3 has sold 40 sq. yard area to Shri Madho Lal and out of Khasra Plot No. 961 defendant No. 2 has orally gifted 203 sq. yards area to Smt. Husn Bano, wife of Shri Kafil Ahmad and has also sold 130 Sq. yard area to Smt. Gayatri Devi wife of Sri Gopal Das”.
3. Plaintiff has claimed 1/9th share in the properties mentioned in Schedule-E of the plaint. Paras 17 & 18 of the plaint is also reproduced
“17. That in the above circumstances, now the plaintiff does not want to keep the property joint and wants partition by metes & bound of her 1/9th share in the properties mentioned in Schedule-E of the plaint. The plaintiff requested the defendants for amicable partition of the plaintiff’s1/9th share in the entire joint properties mentioned in schedule of the plaint but excepting the defendants No. 2,4 & 5, the other defendants have refused to such partition as they are not interested in giving to the plaintiff what is due to her.
18. That the plaintiff is now constrained to file this suit for partition of her 1/9th share in the properties mentioned in Schedule-E of the plaint”.
Schedule describing various properties are enclosure to the plaint.
4. In the original suit, notices were issued and written statement has been filed by the defendants. An application under Order-7 Rule-11 (d) CPC was filed by the defendant No. 1 stating therein that the suit property was recorded as Bhumidhari in the revenue records and the name
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