Am inder Singh Bal. .. ... Revisionist v. Ms. Am ena Bal and Ot hers

Plaint iff and against Defendant No.1 as per t he report of t he Local Com m issioner; and ( d) Appoint a Local Com m issioner t o t ake account s of t he incom e/ revenue generat ed from t he suit propert y on being used as a Hot el/ Resort and pass a decree in favour of t he Plaint iff and against t he Defendant s t o pay of 50% of t he said net incom e t o t he Plaint iff t oget her wit h int erest @18% per annum from t he dat e of accrual t ill such t im e t he sam e is paid; and ( e) Pass a decree of perm anent inj unct ion rest raining t he Defendant No.1, his agent s, nom inees, assigns, servant s alienat ing, t ransferring, leasing, encum bering or alt ering t he st ruct ure and nat ure of t he suit propert y in any m anner what soever; and ( f) Award cost of t he suit . 2 ( g) Pass such ot her order( s) as t his Hon’ble Court m ay deem j ust and proper under t he fact s and circum st ances of t he case t o do com plet e j ust ice” . 3 . The case of t he respondent no.1- plaint iff is t hat t he fat her of t he plaint iff and defendant no.1 died int est at e on 06.11.2010 leaving behind his wife Sm t . I ndra Bal, daught er ( plaint iff) and son ( defendant no.1) . I n t he year, 1995, t he fat her and t he m ot her of t he plaint iff and t he defendant no.1 purchased a resident ial bungalow/ out house and land appurt enant t heret o as an Orchard at village, Bohrakot , Ram ghar ( Malla) , Kum aun, Tehsil and Dist rict Nainit al, Ut t arakhand adm easuring approxim at ely 36 Nali and 3 Mut hi com prised in Khat auni and Khat a No.163 and 209, Khasra no.5016 and 5021 of approxim at ely 0.1600 hect ares and 0.7260 hect ares respect ively having current Khat a No.00005 ( suit propert y) from one Sri Kishan Singh by virt ue of a regist ered sale deed. Thereaft er, t he suit propert y was m ut at ed in t he revenue records in t he nam e of t he fat her and m ot her of t he plaint iff and defendant no.1. The suit propert y was nam ed as “ Taradale Cot t age” . The suit propert y com prises of 06 well decorat ed and well furnished room s. Since incept ion, t he suit propert y was ut ilized as Residence- cum - Herit age Resort . The suit propert y is used t o carry out com m ercial act ivit ies by rent ing out room s for short st ay in t he suit 3 propert y. On dem ise of Sm t . I ndra Bal in t he year, 2016, an agreem ent was reached bet ween t he plaint iff and t he defendant no.1 t hat all t he propert ies left behind by t he parent s shall be divided in equal share bet ween t hem . The plaint iff underst ands t hat t he defendant no.1 holding out him self t o be t he sole owner of t he suit propert y had ent ered int o an agreem ent wit h defendant no.2 and defendant no.3 allowing t hem t o m anage and run t he affairs of t he Resort , room s whereof are being offered on rent under t he nam e and st yle, “ Seclude Hot els Hom e St ay” . The plaint iff has undivided 1/ 2 share in t he suit propert y. She has been kept in dark about t he said agreem ent . The suit propert y is being used as a Hot el/ Resort for st ay. 4 . Heard Mr. Siddhart ha Singh, learned counsel for revisionist and Mr. Sat wik Verm a, learned Senior Advocat e wit h Mrs. Sunayana Kohli Kot hari, learned counsel respondent no.1. 5 . Mr. Siddhart ha Singh, Advocat e, has cont ended t hat t he revisionist - defendant no.1 had filed t he Applicat ion under Order VI I Rule 11( d) CPC in t he said original suit on t he ground t hat t he suit propert y, including resort and t he land appurt enant t heret o, is st ill agricult ural land as per t he plaint case. The suit propert y has not been declared as non- agricult ural land under Sect ion 143 of t he Ut t ar Pradesh Zam indari Abolit ion and Land Reform s Act , 1950 ( as 4 applicable in t he St at e of Ut t arakhand) ( in short , “ Act , 1950” ) . The suit propert y com es wit hin t he purview of t he provisions of t he Act , 1950 because t he suit propert y is st ill recorded as agricult ural t he revenue records. Therefore, t he original suit , filed for part it ion, rendit ion of account and perm anent prohibit ory inj unct ion, is apparent ly barred by Sect ion 331 of t he Act , 1950. Mr. Siddhart ha Singh, Advocat e subm it t ed t hat as per t he plaint , t he plaint iff is not a Bhum idhar. Therefore, t he provisions of Sect ion 331 A of t he Act , 1950 are not applicable in t his case. He has relied on t he j udgm ent dat ed 18.11.1972, passed by Allahabad Revenue Board in SA N o .4 0 o f 1 9 6 6 - 6 7 ” K e sh a v D a s v s. Ga o n Sa b h a ” , in which it was held t hat t he condit ion precedent t o t he provisions of Sect ion 331 A of t he Act , 1950 being brought int o play is t hat t he suit m ust relat e t o t he land held by a Bhum idhar. 6 . Mr. Sat wik Verm a, learned Senior Advocat e, for t he respondent no.1- plaint iff, on t he ot her hand, has cont ended t hat as per t he plaint , t he land- in- quest ion is st ill recorded as agricult ural propert y in t he revenue records but t he suit propert y is used com m ercially as a resort . The defendant no.2 and defendant no.3 represent “ Seclude Hot els Hom e St ay” . The room s of t he suit propert y are being offered on rent t o public at large/ t ourist s by defendant no.2 and defendant no.3 under t he nam e and st yle of “ Seclude 5 Hot els Hom e St ay” . The suit propert y is not being used for t he purpose of agricult ure, hort icult ure or anim al husbandry, which includes piscicult ure and poult ry farm ing. 7 . Mr. Sat wik Verm a, learned Senior Advocat e for t he respondent no.1- plaint iff has argued t hat for invoking clause ( d) of Order VI I Rule 11 CPC, only t he averm ent s in t he plaint would be relevant and it is set t led posit ion of law t hat no m at erial except t he plaint or t he docum ent s annexed wit h t he plaint can be considered at t he st age of considerat ion of applicat ion under Order VI I Rule 11( d) CPC. He has relied upon t he j udgm ent , passed by t he Hon’ble Suprem e Court in Ge e t h a v s. N a n j u n d a sw a m y a n d Ot h e r s, 2 0 2 3 SCC On Li n e SC 1 4 0 7 and t he j udgm ent dat ed 30.11.2023, passed by t he Hon’ble Suprem e Court in Sp e ci a l Le a v e Pe t i t i o n ( C) N o .1 9 4 6 5 o f 2 0 2 1 , “ El d e co H o u si n g a n d I n d u st r i e s Li m i t e d v s. A sh o k Vi d y a r t h i a n d Ot h e r s” . 8 . Mr. Sat wik Verm a, learned Senior Advocat e has argued t hat if in any suit , relat ing t o land held by a Bhum idhar, t he quest ion arises whet her t he land- in- quest ion is or is not used for purposes connect ed wit h agricult ure, hort icult ure or anim al husbandry, which includes piscicult ure and poult ry farm ing, and a declarat ion has not been m ade in respect of such land under Sect ion 143 of t he Act , 1950 or 144 of t he Act , 1950, it would be appropriat e for t he Court t o fram e t he issue on t he quest ion and send t he record t o 6 t he Assist ant Collect or in- charge of t he sub- division for deciding t hat issue as per t he provisions of Sect ion 331 A of t he Act , 1950 but in t he present case t he provisions of Sect ion 331 A of t he Act , 1950 are not at t ract ed because it is an adm it t ed fact bet ween t he part ies t hat t he land- in- quest ion is being used com m ercially as a resort . 9 . Order VI I Rule 11 CPC reads as under : - “ 1 1 . Re j e ct i o n o f p l a i n t . The plaint shall be rej ect ed in t he following cases- ( a) where it does not disclose a cause of act ion; ( b) where t he relief claim ed is undervalued, and t he plaint iff, on being required by t he Court t o correct t he valuat ion wit hin a t im e t o be fixed by t he Court , fails t o do so; ( c) where t he relief claim ed is properly valued but t he plaint is writ t en upon paper insufficient ly st am ped, and t he plaint iff, on being required by t he Court t o supply t he requisit e st am p- paper wit hin a t im e t o be fixed by t he Court , fails t o do so; ( d) where t he suit appears from t he st at em ent in t he plaint t o be barred by any law: ( e) where it is not filed in duplicat e; ( f) where t he plaint iff t o com ply wit h t he provisions of Rule 9; Provided t hat t he t im e fixed by t he Court for t he correct ion of t he valuat ion or supplying of t he requisit e st am p- paper shall not be ext ended unless t he Court , for reasons t o be recorded, is sat isfied t hat t he plaint iff was prevent ed by any cause of an except ional nat ure from correct ing t he valuat ion or supplying t he requisit e st am p- papers, as t he case m ay be, wit hin t he t im e 7 fixed by t he Court and t hat refusal t o ext end such t im e would cause grave inj ust ice t o t he plaint iff.” 1 0 . Sect ion 3( 14) of t he Act , 1950 defines t he t erm “ land” as under: - “ 3( 14) “ land” except in Sect ions 109, 143 and 144 and Chapt er VI I m eans land held or occupied for purposes connect ed wit h agricult ure, hort icult ure or anim al husbandry and includes piscicult ure and poult ry farm ing.” 1 1 . Sect ion 331, Sect ion 331A, Sect ion 143 and Sect ion 144 of t he Act , 1950 read as follows: - “ 3 3 1 . Co g n i za n ce o f su i t s, e t c. u n d e r t h i s A ct .- ( 1) Except as provided by or under t his Act , no court ot her t han a court m ent ioned in Colum n 4 of Schedule I I shall, not wit hst anding anyt hing cont ained in t he Civil Procedure Code, 1908, t ake cognizance of any suit , applicat ion, or proceedings m ent ioned in Colum n 3 t hereof or of a suit , applicat ion or proceedings based on a cause of act ion in respect of which any relief could be obt ained by m eans of any such suit or applicat ion: Provided t hat where a declarat ion has been m ade under Sect ion 143 in respect of any holding or part t hereof, t he provisions of Schedule I I in so far as t hey relat e t o suit s, applicat ions or proceedings under Chapt er VI I I , shall not apply t o such holding or part t hereof. Explanat ion. - I f t he cause of act ion is one in respect of which relief m ay be grant ed by t he revenue court , it is im m at erial t hat t he relief asked for from t he civil court m ay not be ident ical 8 t he revenue court would have t o t hat which grant ed. ( 1- A) Not wit hst anding anyt hing in sub- sect ion ( i) , an obj ect ion t hat a court m ent ioned in Colum n 4 of Schedule I I , or, as t he case m ay be, a civil court , which had no j urisdict ion wit h respect t o t he suit , applicat ion or, proceeding, exercised j urisdict ion wit h respect t heret o shall not be ent ert ained by any appellat e or revisional court unless t he obj ect ion was t aken in t he court of first inst ance at t he earliest possible opport unit y and in all cases where issues are set t led, at or before such set t lem ent , and unless t here has been a consequent failure of j ust ice. ( 2) Except as hereinaft er provided no appeal shall lie from an order or decree passed under any of t he proceedings m ent ioned in Colum n 3 of t he Schedule aforesaid. ( 3) An appeal shall lie from any decree or from an order passed under Sect ion 47 or an order of t he nat ure m ent ioned in Sect ion 104 of t he Code of Civil Procedure, 1908 or in Order 43, Rule 1 of t he First Schedule t o t hat Code, passed by a court m ent ioned in Colum n 4 of Schedule I I t o t his Act in proceedings m ent ioned in Colum n 3 t hereof t o t he court or aut horit y m ent ioned in Colum n 5 t hereof. ( 4) A second appeal shall lie on any of t he grounds specified in Sect ion 100 of t he Code of Civil Procedure, 1908 from t he final order or decree, passed in an appeal under sub- sect ion ( 3) , t o t he aut horit y, if any, m ent ioned against it in Colum n 6 of t he Schedule aforesaid.” 9 “ 3 3 1 - A . Pr o ce d u r e w h e n p l e a o f l a n d b e i n g u se d f o r a g r i cu l t u r a l p u r p o se s i s r a i se d i n a n y su i t - ( 1) I f in any suit , relat ing t o land held by a bhum idhar, inst it ut ed in any court , t he quest ion arises or is raised whet her t he land in quest ion is or is not for purposes connect ed wit h agricult ure, hort icult ure or anim al husbandry, which includes piscicult ure and poult ry farm ing, and a declarat ion has not been m ade in respect of such land under Sect ion 143 or 144, t he court shall fram e an issue t he quest ion and send t he record t o t he Assist ant Collect or in- charge of t he sub- division for t he decision of t hat issue only: Provided t hat where t he suit has been inst it ut ed in t he court of Assist ant Collect or in- charge of t he sub- division, it shall proceed t o decide t he quest ion accordance wit h t he provisions of Sect ion 143 or 144, as t he case m ay be. ( 2) The Assist ant Collect or in- charge of t he sub- division aft er refram ing t he issue, if necessary, shall proceed t o decide such issue in t he m anner laid down for t he m aking of a declarat ion under Sect ion 143 or 144, as t he case m ay be, and ret urn t he record t oget her wit h his finding t hereon t o t he court which referred t he issue. ( 3) The court shall t hen proceed t o decide t he suit accept ing t he finding of t he Assist ant Collect or in- charge of t he sub- division on t he issue referred t o it . ( 4) The finding of t he Assist ant Collect or in- charge of t he sub- division on t he issue referred t o it shall, for t he purposes of appeal, be deem ed t o be part of t he finding of t he court which referred t he issue.” 10 “ 1 4 3 . Use o f a h o l d i n g f o r i n d u st r i a l o r r e si d e n t i a l p u r p o se s.- ( 1) Where bhum idhar wit h t ransferable right s uses his holding or part t hereof for a purpose not connect ed wit h agricult ure, hort icult ure or anim al husbandry which includes piscicult ure and poult ry farm ing, t he Assist ant Collect or- in- charge of t he sub- division m ay, suo m ot u or on an applicat ion, aft er m aking such enquiry as m ay be prescribed, m ake a declarat ion t o t hat effect . ( 1- A) Where a declarat ion under sub- sect ion ( 1) has t o be m ade in respect of a part of t he holding, t he Assist ant Collect or- in- charge of t he sub- division m ay in t he m anner prescribed dem arcat e such part for t he purposes of such declarat ion. ( 2) Upon t he grant of t he declarat ion m ent ioned in sub- sect ion ( 1) t he provisions of t his Chapt er ( ot her t han t his sect ion) shall cease t o apply t o t he bhum idhar wit h t ransferable right s, wit h respect t o such land and he shall t hereupon be governed t he m at t er of devolut ion of t he land by personal law t o which he is subj ect . ( 3) Where a bhum idhar wit h t ransferable right s has been grant ed, before or aft er t he com m encem ent of t he Ut t ar Pradesh Land Laws ( Am endm ent ) Act , 1978, any loan by t he Ut t ar Pradesh Financial Corporat ion or by any ot her Corporat ion owned or cont rolled by t he St at e Governm ent , on t he securit y of any land held by such bhum idhar, t he provisions of t his chapt er ot her t han t his sect ion shall cease t o apply t o such bhum idhar wit h respect t o such land and he shall t hereupon be governed in t he m at t er of devolut ion of t he land by personal law t o which he is subj ect .” 11 “ 1 4 4 . Use o f l a n d f o r a g r i cu l t u r a l p u r p o se s: - ( 1) Whenever any land held by a bhum idhar which is not t he purposes connect ed wit h agricult ure, hort icult ure or anim al husbandry which includes piscicult ure and poult ry farm ing has becom e land used for such purpose, t he Assist ant Collect or- in- charge of t he sub- division m ay, suo m ot u or on an applicat ion, aft er m aking such enquiry as m ay be prescribed m ake a declarat ion t o t hat effect and t hereupon, t he bhum idhar shall, as respect s t he land, be subj ect t o t he provisions of t his chapt er. ( 2) Upon t he grant of t he declarat ion under sub- sect ion ( 1) in respect of any land, any person ot her t han t he bhum idhar in possession of t he plot shall- ( a) if he holds it under any cont ract or lease which is inconsist ent wit h any of t he provisions of t his chapt er, be deem ed t o be an occupant liable t o ej ect m ent under Sect ion 209; ( b) if he holds it under any cont ract or lease which is not inconsist ent wit h any of t he provisions of t his chapt er, be ent it led t o t he right s in t he land det erm ined in accordance wit h t he provisions t hereof. ( 3) Any cont ract or lease referred t o in sub- clause ( a) of sub- sect ion ( 2) which inconsist ent wit h t he provisions of t his chapt er shall, t o t he ext ent of t he inconsist ency, becom e void wit h effect from t he dat e of declarat ion: Provided t hat any m ort gage wit h possession exist ing on any such land shall, t o t he ext ent of t he am ount due and secured on such land, be deem ed t o have been subst it ut ed by a sim ple m ort gage carrying such rat e of int erest as m ay be prescribed.” 12 1 2 . Order VI I Rule 11 ( d) CPC provides t hat t he plaint shall be rej ect ed “ where t he suit appears from t he st at em ent in t he plaint t o be barred by any law.” The averm ent s in t he plaint are germ ane. Hence, in order t o decide whet her t he suit is barred by any law, it is t he st at em ent in t he plaint which will have t o be const rued. The quest ion as t o whet her t he suit is barred by any law, would always depend upon t he fact s and circum st ances of each case. The plaint can be rej ect ed under Order VI I Rule 11 CPC if condit ions enum erat ed in t he said provision are fulfilled. The power under Order VI I Rule 11 CPC can be exercised by t he Court at any st age of t he suit . The relevant fact s which need t o be looked int o for deciding t he applicat ion are t he averm ent s of t he plaint only. Whet her t he suit is barred by any law m ust be det erm ined t he st at em ent s t he plaint . The averm ent s of t he plaint have t o be read as a whole t o find out whet her t he suit is barred by any law. The averm ent s in t he writ t en st at em ent as well as t he cont ent ions of defendant are wholly im m at erial while considering t he prayer of t he defendant for rej ect ion of t he plaint . 1 3 . I n t he present case, as per t he paragraph no.1 of t he plaint , t he suit , int er- alia, is for part it ion of a resort and land appurt enant t heret o. A m eaningful reading of t he plaint m akes it abundant ly clear t hat t he suit has been filed in respect of t he resort and t he land appurt enant t heret o. As 13 per t he plaint , t he land is being used com m ercially in t he form of a resort but t here is no averm ent in t he plaint t hat t he land appurt enant t o t he said resort , which is suit propert y and is st ill recorded as agricult ural land, is also being used com m ercially. 1 4 . Sect ion 331 of t he Act , 1950 lays down t hat no court ot her t han a court m ent ioned in Colum n 4 of Schedule I I shall t ake cognizance of any suit , applicat ion or proceedings m ent ioned in Colum n 3 t hereof or of a suit , applicat ion or proceedings based on a cause of act ion in respect of which any relief could be obt ained by m eans of any such suit or applicat ion but t he quest ion whet her suit is or is not used for purposes connect ed wit h agricult ure, hort icult ure or anim al husbandry, which includes piscicult ure and poult ry farm ing, cannot be det erm ined by a civil court . Where a disput e regarding t he nat ure of land is raised in a suit and a declarat ion under Sect ion 143 or Sect ion 144 of t he Act , 1950 had not been issued, t he t rial court was bound t o refer t he issue under Sect ion 331 A of t he Act , 1950. The court dealing wit h a suit in which t he said quest ion arises cannot proceed t o det erm ine t he said quest ion it self ignoring t he provisions of Sect ion 331 A of t he Act , 1950. I t should be det erm ined by following t he procedure laid down in Sect ion 331 A of t he Act , 1950. 14 1 5 . I n t he result , t he Revision is allowed accordingly. The im pugned order dat ed 07.07.2022, passed by learned Senior Civil Judge, Nainit al, is set aside. The m at t er is sent back wit h a direct ion t o t he concerned court t o fram e an issue on t he quest ion whet her t he ent ire land- in- quest ion is or is not used for purposes connect ed wit h agricult ure, hort icult ure or anim al husbandry which includes piscicult ure and poult ry farm ing and aft er fram ing t he said issue send t he record t o t he Assist ant Collect or in- charge of t he sub- division for t he decision on t he said issue. 1 6 . There shall be no orders as t o cost s. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ A LOK K UM A R VERM A , J. Dat e: 06.01.2025 JKJ/ Neha NEHA BISHT DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=6f1c15b6305912b3f008e9a4a8038ee 7326b08b2d0e018b01be753f014836d27, postalCode=263001, st=UTTARAKHAND, serialNumber=3D89DC33779FB9677068452F 32DE6BA960BFE64D819EE44CA9CCE487B2FE 0F92, cn=NEHA BISHT 15