Small Industries Research and Development Organisation v. District Judge Nainital & Ors.

affirmed by the impugned order dated 13.5.1997. Briefly stated, facts of the case, giving rise to the writ petition are, that the petitioner purchased land of Khata No.114, Khet No.1237 (Area 2 Nali 15 Muthi) Village Anu, Patti Pachhimi Chakhata, Tehsil and District Nainital. The defendant-respondent no.3 started creating 2 hindrance and raising construction unauthorisedly over the land in dispute by encroaching upon the portion of the land in dispute without any right, title or interest over the land in dispute and when inspite of repeated request he did not stop the illegal construction and continued unlawful construction, the petitioner filed suit mandatory injunction and to handover the vacant possession of the land in dispute. Written statement was filed by the defendant alleging that the defendant has not encroached upon the land in dispute, that he has carried out the alleged construction on his own land on which he is bhumidhar since 17.4.1969. In para-21 of the written statement, the defendant stated that there is no declaration u/s 143 of U.P.Z.A. & L.R. Act therefore civil court has no jurisdiction to try the case. On the pleadings of the parties, issue no.9 was framed by the trial court to the effect that whether the civil court has jurisdiction to adjudicate the suit? By the impugned order dated

10.10.1995, the learned Additional Civil Judge, Nainital, considered the revenue entries and on the basis of revenue entries held that the suit can be filed for possession u/s 209 of U.P.Z.A. & L.R. Act as the suit is only cognizable by the revenue court in view of section 331of U.P.Z.A. & L.R. Act. Aggrieved by the order of the Additional Civil Judge, appeal was preferred before the District Judge. Learned District Judge, after considering the judgment of the Apex Court in the case of Chandrika Misir & Another vs. Bhaiyalal, AIR 1973 Supreme Court 2391, dismissed the appeal on the same grounds. Hence, this writ petition. 3 I have heard learned counsel for the parties and perused the impugned orders. A perusal of the impugned orders reveal that Additional Civil Judge as well as the appellate court did not consider the provisions of section 331-A of the U.P.Z.A. & L.R. Act. , which provides the procedure to be followed by the Court when a plea that the land is not being used for purposes connected with agricultural, horticulture or animal husbandry arises or is raised in any suit relating to land held by a bhumidhar. For facility, Section 331-A is extracted hereunder:- (cid:147)331-A. Procedure when plea of land being used for agricultural purposes is raised in any suit- (1) It in any suit, relating to land held by a bhumidhar, instituted in any court, the question arises or is raised whether the land in question is or not used for purposes connected with agriculture, horticulture or animal husbandry, which includes pisciculture and poultry farming, and a declaration has not been made in respect of such land under Section 143 or 144, the court shall frame an issue on the question and send the record to the Assistant Collector in-charge of the sub-division for the decision of that issue only: Provided that where the suit has been instituted in the court of Assistant Collector in-charge of the sub- division, it shall proceed to decide the question in accordance with the provisions of Section 143 or 144, as the case may be. 4 (2) The Assistant Collector in-charge of sub-division after reframing the issue, if necessary, shall proceed to decide such issue in the manner laid down for the making of a declaration under S.143 or 144, as the case may be, and return the record together with his finding thereon to the court which referred the issue. (3) The Court shall then proceed to decide the suit accepting the finding of the Assistant Collector in- charge of the sub-division on the issue referred to it. (4) The finding of the Assistant Collector in- charge of the sub-division on the issue referred to it shall, for the purposes of appeal, be deemed to be part of the finding of the court which referred the issue." From a perusal of language of section 331-A of the Act, it transpires that if there is any dispute as to whether the land is or not used for agriculture, horticulture or animal husbandry, then the Court has to refer the issue to the Assistant Collector for decision of the same. In Chandrika Singh and Others vs. Raja Vishwanath Pratap Singh and another, R.D. 1992 Supreme Court 258, the Apex Court has held that in determining whether the land is used or not used for purposes of agriculture, horticulture or animal husbandry, the procedure laid down in Sec.331-A must be followed by the Court and an issue must be framed by the Civil Judge and send with record for decision to Assistant Collector. 5 In the case at hand, the Civil Judge has exercised jurisdiction not vested in him by law by deciding the issue no.9 in favour of defendant no.3 that the civil court has no jurisdiction to decide the suit in view of section 331 of the Act, without considering the mandatory provision of section 331-A of the Act. In view of the above proposition of law, the writ petition is allowed. Impugned order dated 10.10.1995 passed by Additional Civil Judge, Nainital as well as order dated 13.5.1997 passed by District Judge, Nainital are quashed. The trial court is directed to refer the issue as to whether the land is being used or not being used for the purpose of agriculture, horticulture or animal husbandry, u/s 331-A of the Act, to the Assistant Collector Ist, who shall proceed further in accordance with law. Rajni (B.S.Verma,J.) 22.11.2012