1. This second appeal has been preferred on behalf of the defendant deceased Ram Prakash Agrawal though his heirs and legal representatives after having lost in both the courts below.
2. The plaintiff Rishi Kumar instituted Original Suit No. 34 of 1985 for possession of the disputed plot of land situate in Etah, arrears of rent, damages and prohibitory injunction restraining the defendant from encroaching his adjoining land by dumping coal on it. The suit was filed on the allegation that the defendant is a tenant of the plot @ of Rs.105/- per month but he has started encroaching upon his adjoining land also by dumping coal. Accordingly, his tenancy was determined vide registered notice dated 23.8.1984. On his failure to vacate the land within the time provided in the notice, the cause of action for filing the suit had arisen.
3. The suit was contested by the defendant by filing his written statement and an additional written statement wherein the main defence was that the suit relates to to an 'accommodation' and is barred by UP Act No. 13 of 1972. Apart from other pleas, it was also contended that there is no encroachment on any other land of the plaintiffs. The notice is invalid.
4. On the basis of the pleadings of the parties as many as 11 issues were framed.
5. On consideration of the evidence adduced by the parties the suit was decreed by the court of first instance vide judgment and order dated 20.2.2003. The defendant was held to be tenant of the plot in dispute on rent of Rs. 105/- per month; he had encroached upon the other land of the plaintiff situate on the south west of the plot in dispute; the tenancy was not held to be in respect of any building, as such the suit was not barred by U.P. Act No. 13 of 1972 not even by Section 34 and 41 of the Specific Relief Act; and the notice was held to be valid.
6. Aggrieved by the decree so passed by the lower court, the defendant preferred an appeal ie. Civil Appeal No. 7 of 2003. During pendency of the appeal initially two additional issues no. 12 and 13 were framed on 20.7.1998. Thereafter, defendant moved an application paper no. 24 A-1 under Order VI rule 17 CPC for seeking amendment in the written statement. The said application despite opposition was allowed on 17.12.2004 and the defendant was permitted to add paragraphs no. 11a,11b and 11c in the written statement. The said amendments were to the effect that the plot in dispute before the abolition was an agricultural land and that the defendant has acquired ownership right in the same and therefore the plaintiffs has no right to maintain the suit and further that the suit is barred by Section 331 of the U P Z A and L R Act (hereinafter referred to as the 'Act'). Accordingly, two more issues no. 14 and 15 were framed with regard to the maintainability of the suit or the locus of the plaintiff to maintain it and that the suit being barred by Section 331 of the Act were also framed.
7. The lower appellate court vide judgment and order dated 29.7.2010 dismissed the appeal by affirming the findings of the first court and in addition holding that the plot in dispute has not been proved to be an agricultural land and as such neither the defendant has acquired any ownership right in the same nor the suit is barred by Section 331 of the Act.
8. Thus, on behalf of the defendant to the suit this second appeal has been preferred.
9. In view of the limited question as to whether the suit is barred by Section 331 of the Act, counsel for both the parties consented for final disposal of the appeal at the threshold.
10. I have heard Sri D.P. Singh Senior Advocate assisted by Sri P.C. Sharma learned counsel for the defendant appellants and Sri Anadi Krishna Narayana learned counsel for the plaintiff respondent.
11. Sri D.P. Singh on behalf of the defendant appellants argued that the courts below have manifestly erred in dismissing the suit as the same was patently barred by Section 331 of the Act. The decree so passed by the courts below as such is without jurisdiction. The above submission has been strongly resisted from the side of the plaintiff respondent taking shelter of Section 331 (1-A) of the Act and it has been contended that as the defendant had not taken objection with regard to jurisdiction of the court in the first court, such objection could not have been taken before the appellate court.
12. Generally, all suits are triable by the civil court. Section 9 CPC provides that the courts shall have jurisdiction to try all suits of civil nature except those whose cognizance is either expressly or impliedly barred.
13. In Vedagiri Lakshmi Narasimha Swami Temple v. Induru Pattabhirami Reddi AIR 1967 SC 781 the Apex Court held that in view of Section 9 of the CPC, the court shall have jurisdiction to try all suits of civil nature except suits which are expressly or impliedly barred.
14. It has also been laid down in the above case as well as in Abdul Waheed Khan v. Bhawani and others AIR 1996 SC 1718 that it is for the party who seeks to oust the jurisdiction of a civil court to establish that the jurisdiction of the civil court is so barred either expressly or impliedly.
15. It is equally settled that the statute ousting the jurisdiction of the civil court must be strictly construed. In Sahebgouda (Dead) by LRS and others v. Ogeppa and others (2003)6 SCC 151 the Apex Court held that it is well settled that a provision of law ousting the jurisdiction of the civil court must be strictly construed and onus lies on the party seeking to oust the jurisdiction to establish the same.
16. In another case Dwarika Prasad Agrawal (D) by LRS v. Ramesh Chnadra Agrawal and others (2003) 6 SCC 220 it has been held that Section 9 CPC confers jurisdiction upon the civil courts to determine all disputes of civil nature unless the same are barred under a statute either expressly or by necessary implication. Bar of jurisdiction of a civil court is not to be readily inferred. A provision seeking to bar jurisdiction of a civil court requires strict interpretation. Normally, the court would lean in favour of the construction, which would upheld retention of the jurisdiction. The burden of proof of ouster of jurisdiction of civil court is always upon the party who asserts the ouster of jurisdiction.
17. In view of the above legal position, one can easily say that the civil court is vested with the jurisdiction to try the suit in question. However, difficulty had arisen due to statutory ouster of the above jurisdiction vide Section 331 of the Act. At one hand the above provision bars the jurisdiction of the civil court, on the other hand, Sub-Section (1-A) of Section 331 provides that the objection to ouster of jurisdiction of the civil court can not be allowed to be taken at the appellate stage or when there is no failure of justice.
18. The above two provisions of the Act need to be reconciled and therefore, it would be beneficial to reproduce provisions of Section 331 (1) and (1-A) of the Act.
"331. Cognizance of suits, etc. under this Act.- (1) Except as provided under this Act no court other than a court mentioned in Column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908 (V of 1908), take cognizance of any suit, application, or proceedings mentioned in Column 3 thereof or of a suit, application or proceedings based on a cause of action in respect of which any relief could be obtained by means of any such suit or application.
Provided that where a declaration has been made under Section 143 in respect or any holding or part thereof, the provisions of Schedule II in so far as they relates to suits, applications or proceedings under Chapter VIII shall not apply to such holding or part thereof.
Explanation- If the cause of action is one in respect of which relief may be granted by the revenue court, it is immaterial that the relief asked for from the civil court may not be identical to that which the revenue court would have granted.
(1-A) Notwithstanding anything in sub-section (i), an objection that a court mentioned in Column 4 of Schedule II, or , as the case may be, a civil court, which had no jurisdiction with respect thereto shall not be entertained by any appellate or revisional court unless the objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice."
19. The aforesaid provision contained in 331 (1-A) provides that an objection with regard to jurisdiction of the court in respect of the suit or any proceeding shall not be entertained by any appellate court unless objection regarding jurisdiction had been taken in the court of first instance at the earliest possible opportunity atleast before the settlement of the issues and further unless there has been a consequent failure of justice. In other words, two conditions are required to be fulfilled for taking objection with regard to jurisdiction of the court. First, the objection ought to have been taken in the first court atleast before the settlement of issues and second, there has to be a consequent failure of justice in the trial by the court concern.
20. The aforesaid provision of Section 331 (1-A) of the Act is analogous to that of Section 21 CPC which also provides that no objection as to the place of suing and competence of the court with reference to the pecuniary limits shall be allowed by the any appellate or revisional court unless such objection is taken in the court of first instance at the earliest possible opportunity and in all cases before settlement of issues and unless there has been a consequent failure of justice.
21. A Division Bench of this Court in the case of Sabha Chand v. Narayan Singh and others 1981 AWC 161 observed that as many a times the question of ouster of jurisdiction of a civil court was raised even at the second appellate stage or even under Article 136 of the Constitution and in some cases it was found the court had no jurisdiction to entertain a suit, in order to meet such a situation the legislature intervened and introduced Section 331 (1-A) vide U.P. Act No. 40 of 1969 of the Act and in its wisdom provided that such an objection should be raised in the first court at the earliest possible opportunity and further to prove that there is failure of justice on account of trial by the civil court. If either of these two conditions are not satisfied, it is not open for the party to raise the issue of jurisdiction. It further lays down that in such a situation the aggrieved party has been conferred right to appeal against the decree of the civil court before the appropriate higher court in accordance with the provisions of the CPC.
22. A similar view has recently been expressed by His Lordship of this Court in the case of Ram Kunwar Singh and others v. Pramood Kumar and another 2007 (4) AWC 3414. It has been clearly laid down that Section 331 (1-A) of the Act provides that objection regarding jurisdiction of the civil court shall not be entertained by any appellate or revisional court unless the objection is taken before the court of first instance at the earliest possible opportunity and further unless it is established that there had been a consequent failure of justice.
23. It is therefore necessary to satisfy both the above conditions for taking the objection regarding exclusion of jurisdiction of the civil court.
24. The Supreme Court interpreting Section 21 CPC in Koopilan Umeen's daughter Pathumman and others v. Koopilan Umeen's son Kuntalan Kutty dead by LRs and others AIR 1981 SC 1683 observed that all the conditions mentioned in Section 21 (1) of the CPC must co-exists meaning thereby that the plea of jurisdiction can not be entertained unless all the conditions laid down in Section 21 are satisfied.
25. The purpose and the policy underlying Section 21 as well as Section 331 (1-A) of the Act is to ensure that where a suit has been decided by a court on merits the said decision ought not to be reversed on technical grounds on an objection taken subsequently at the appellate or revisional stage unless it is proved that it had resulted in failure of justice.
26. Admittedly, in the present case the question of ouster of jurisdiction of the civil court was neither pleaded in the written statement nor was raised in the court of first instance. There was no issue on this aspect before the trial court. It was at a much later stage during pendency of the appeal that the defendant by amendment in the written statement got additional issue framed in this connection. Further, no material was placed to show how any prejudice was caused to the defendant by trial of the suit of the civil court. In the absence of such material it can not possibly be held that there was a failure of justice by the trial of the suit by the civil court. Thus the twin conditions necessary for taking objection to the ouster of the jurisdiction of the civil court does not stand satisfied in the instant case.
27. In view of the above, as neither of the two conditions as laid down in Section 331 (1-A) stands satisfied, the objection of the defendant that the suit was barred by Section 331 could not have been entertained and has rightly been rejected by the lower appellate court.
28. Apart from the above, the lower appellate court has recorded a clear finding that the land in dispute is not an agricultural land meaning thereby that Section 331 of the Act would not come into play. The land was not proved to be ever recorded as an agricultural land and therefore there was no requirement for declaring it to be non agricultural in nature under Section 143 of the Act. The above finding is a pure finding of fact and raises no legal question worth consideration in second appeal.
29. The ancillary submission of Sri D.P. Singh learned counsel for the defendant appellant that the provisions of Section 331 (1-A) would not come into play where the written statement has been permitted to be amended and an issue with regard to question of jurisdiction of civil court has been specifically framed is of no substance.
30. The above submission has no force for the reason that the defendant has not been prejudice by the trial of the suit by the civil court. Secondly, in view of the finding that the land is non agricultural in nature, the jurisdiction of the civil court does not stand ousted in any way by Section 331 of the Act. Last but not the least the defendant has failed to take objection regarding jurisdiction of the civil court in the court of first instance and when such objection is not permissible to be raised in the appellate court the very order allowing amendment in the written statement to that effect and framing an issue on it by the appellate court was patently illegal and without jurisdiction. Thus, such an amendment or the framing of issue would not benefit the defendant to contend that the provisions of Section 331 (1-A) of the Act would not be attracted. In any case if the ouster of jurisdiction is pleaded under Section 331 of the Act then it has to be considered in the light of Section 331 (1-A) of the Act and not independently.
31. In the end learned counsel for the defendant appellants tried to submit that in view of Section 156 read with 165 of the Act, the land had vested in the defendant as Bhoomidhar with non transferable rights and as such suit as framed for possession or the eviction of the defendant was not maintainable.
32. No doubt Section 156 of the Act prohibits letting out of the land of a holding to any person other than a recognized educational institution for a purpose connected with instruction in Agriculture, Horticulture and Animals husbandry or to disabled persons as provided under Section 157 of the Act and further Section 165 of the Act provides that in case a holding or part of it is let out in contravention of Section 156 it would be deemed to be settled as Bhoomidar with non transferable rights with the tenant. However, I am afraid that no such vesting of rights in the defendant had taken place in view of the finding that the land was not an agricultural holding. It is also worth noticing that no evidence was adduced to prove that the name of the defendant was ever got recorded as Bhoomidhar with non transferable right over the land in dispute. This also reflects that he never acquired right as Bhoomidhar with non transferable right otherwise he would have got his name mutated.
33. In view of the above, the lower appellate court committed no error of law in deciding issue no. 15 also against the defendant and holding the suit to be maintainable. Accordingly, I do not consider it to be a fit case for entertaining the second appeal even on the above point.
34. No other point of substantial nature has been raised in this appeal.
35. Accordingly, I am of the view that the appeal is devoid of merit and has to ultimately fail. It is accordingly dismissed with costs upon the parties.