Point of law: All personal law with regard to devolution of property becomes immaterial in view of the Act of 1950 as the Act of 1950 creates for the first time Bhoomidhari rights

JUDGMENT :

1. This writ petition has been filed by the petitioner challenging the order dated 04.07.2013 passed in Misc. Case No.110 of 2013:Yogendra Pratap Singh versus Jeetendra Pratap Singh, and also the order dated 09.11.2020 passed in Civil Appeal No.56 of 2020.

2. It is the case of the petitioner that his father Late Kaamta Singh was a police employee who retired in the year 1970. From his earning as well as by taking advance on his G.P.F. account, Kaamta Singh had bought certain land in village Adhar Khera Tahsil Bakshi ka Talab Lucknow and also some land in district Mau. He had inherited some land through family settlement in District Sultanpur also. There is no dispute regarding land situated in Sultanpur as it has been of ancestral stock and divided among the petitioner and his brother Jitendra Pratap Singh equally. The land that was bought by the father of the petitioner in Adhar Khera was fraudulently got registered by Kaamta Singh’s brother, that is the petitioner’s uncle in his name. The petitioner was educated and working as an Advocate. When consolidation proceedings where initiated in 1996 in village Adhar Khera the petitioner filed objection under Section 9A 2 of the Act and land that had been wrongly got registered in his uncle’s name, was registered in the name of the petitioner and his brother. Section 52 publication has been done in Village Aadhar Khera in 2003. The brother of the petitioner was unemployed and looked after farming and the petitioner divided his time between his profession as an Advocate and the farming that was being done at village Aadhar Kheda.

3. It is the case of the petitioner that in 1977 after the retirement of the father of the petitioner he divided his property amongst the petitioner and his brother orally. The respondent no.1 was given land situated in village Teghna District Mau where one huge pond of 6 acres had been got dug out by the petitioner’s father which was being used for fish farming. The petitioner was given land situated at village Aadhaar Khera Distt Lucknow. The petitioner and respondent no.1 continued in possession of their share and now have become old therefore, were in agreement that the family settlement that was entered into between the two brothers at the instance of Kamta Singh during his lifetime be given legal and binding colour. Hence the petitioner filed a suit for Declaration and Permanent Injunction before the Civil Judge (Junior Division) Havali Lucknow.

4. It is the petitioner’s case that the petitioner had claimed a Declaration on the basis of Hindu Gains of Learning Act 1930 (hereinafter referred to as ‘the Act of 1930’) and not under the U.P. Zamindari Abolition and Land Reforms Act 1950 (hereinin after referred to as ‘the Act of 1950’). The Munsarim put up a wrong report that the case is cognizable by the Revenue court and not by the Civil court. On the basis of this wrong report, the Civil Judge (Junior Division) Havali, Lucknow got it registered as Miscellaneous Case No.110 of 2013 for the purpose of deciding the question of jurisdiction of the civil court. The Civil Judge (Junior Division) thereafter rejected the suit on the ground of not being maintainable before the civil court by observing that the disputed property, that is, the land of plot no.25 situated at village Aadhaar Kheda district Lucknow which is recorded in the name of the defendant, is an agricultural land. The Plaintiff on the basis of a partition made by his father orally, had prayed for deletion of the name of the defendant from the revenue record and Declaration of Title and recording of entry in plaintiff’s name in the revenue records. Since the plaintiff had sought declaration of title over agricultural land which can be granted only by the revenue courts under the U.P.Z.A.&L.R. Act and because such declaration cannot be given by the civil court, the civil court had no jurisdiction. Consequently, the suit was rejected as not maintainable. Aggrieved by the same, the petition