JUDGMENT :

(Review Application No. 28351 of 2018)

1. Heard Sri Sudhir Pande along with Sri Lalit Kishore Pandey, learned counsels for the review-applicant.

2. This review application has been filed by the defendant-appellant in the second appeal.

3. Regular suit no. 465 of 2002 (Mahaveer vs. Gokaran and Ors.) filed by the plaintiff-respondent no. 1, was dismissed by the learned Additional Civil Judge (Junior Division), court no. 3, Sitapur, vide judgment and decree dated 07.04.2015. The regular civil appeal No. 40 of 2015 filed by the plaintiff-respondent was allowed and the suit was decreed by the learned Additional District Judge, court no. 10, Sitapur vide judgment and decree dated 11.10.2017.

4. Challenging the appellate decree, the defendant-appellant filed second appeal No. 518 of 2017, which was dismissed by this Court at the admission stage, vide judgment & decree dated 24.11.2017.

5. In the second appeal, the question for consideration was “whether the lower appellate court has committed any illegality in allowing the appeal and not considering the provisions of Section 331 of the U.P.Z.A. & L.R. Act while deciding the appeal, which was the sole contention raised before the learned Single Judge.

6. This Court, held that no such objection regarding maintainability on the basis of Section 331 of U.P.Z.A. & L.R. Act was taken by the defendant-appellant and placed reliance on the full Bench decision of this Court in Ram Padarath and Ors. vs. Second Addl. District Judge, Sultanpur and Ors. [1989 AWC 290 All.], wherein it was held that the defendant-appellant cannot be permitted to raise the issue of maintainability in the second appeal because no such objection was raised before the courts below. In view thereof, the second appeal was dismissed as involving no substantial question of law.

7. Vide order dated 25.08.2021, the defendant-appellant/review applicant, on his prayer, was granted time to file supplementary affidavit to bring on record the written statement, which was filed along with C.M. Application No. 112182/2021

8. Sri Sudhir Pande, learned counsel for the review-applicant, submits that the plea of bar of jurisdiction in the civil court was raised before the trial court. In this respect, he has referred to para 9 of the written statement and consequently submits that the judgment dated 24.11.2017 under review suffers from apparent error of law.

9. Para 9 of the written statement is in reply to para 9 of the plaint. Para 9 of the written statement reads as under:-

^^/kkjk 9 & xyr gSA nkok xyr nk;j fd;k x;k gSA**

10. Para 9 of the plaint reads as under:-

^^/kkjk 9 & ;g fd okn dk dkj.k fnukad 22-07-02 o 29-07-02 dks rFkk mlds i'pkr izR;sd fnu tc izfroknh laå 1 e`rdrk 3 }kjk oknh dh v-c-l-n- Hkwfe ij fuekZ.k dk;Z djds dCtk djus ds m}s'; ls Øe'k% uikà dh x;h rFkk uhao [kksnus dk iz;kl fd;k x;k LFkku xzke datk 'kjhQiqj ijxuk o rglhy ygjiqj ftyk lhrkiqj U;k;ky; dh vf/kdkfjrk esa mRiUu gqvkA**

11. From perusal of the plaint and the written statement, it is evident that any plea regarding bar of the suit in the civil court being barred by Section 331 of the U.P.Z.A & L.R. Act was not raised.

12. On specific query put to Sri Sudhir Pande, during arguments, if there was any material on the record of the Second Appeal before the learned Single Judge, which evidenced that the plea of bar of jurisdiction in the civil court was raised in the trial court, as provided by Section 331 of the U.P.Z.A & L.R. Act, he fairly submitted that there was no such material.

13. Sri Sudhir Pande has further submitted that the dispute being with respect to agriculture property, suit was not maintainable in the civil court which ought to have been filed in the revenue court. The suit was barred by Section 331 of the U.P.Z.A. & L.R. Act. Consequently, the decree passed by the civil court being without jurisdiction is nullity and the plea of nullity can be raised at any stage, even in execution of proceedings, and as such, such an objection deserved considerati