Sudhanshu Dhulia, J.
1. The present civil revision arises out of an order dated 20.03.2012 passed by the Trial Court rejecting the application of defendant no. 2 under Order
VII Rule 11 of the Civil Procedure Code. The plaintiff, who is respondent no. 1 before this Court, had filed O.S. No. 03 of 2011 before the court
below for cancellation of sale deed dated 20.04.2011 executed by defendant no. 1 in favour of defendant no. 2. Apart from the prayer of cancellation
of sale deed, another relief sought by the plaintiff was for injunction against defendant no. 2. Presently defendant no. 2 is before this Court, who had
moved the application under Order VII Rule II of the Civil Procedure Code, which has been rejected by the court below vide order dated 20.03.2012.
2. The grounds raised by defendant no. 2 in his application under Order VII Rule 11 CPC were that since admittedly the land in question is an
agricultural land, therefore, it is covered under the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (from hereinafter referred to as
the ‘Act’) and on the face of it the plaintiff is prohibited under Section 331 read with Schedule II of the Act to file a suit, which is essentially a
suit for declaration which can only be filed before the Court of Collector. The second ground was that since the plaintiff was not recorded as tenure
holder, therefore the suit (in whichever capacity and for whatever relief), cannot be entertained at the hands of the plaintiff.
3. The Trial Court has passed a detail order after noting the submissions of both the sides and by referring to wide number of case laws, particularly of
Hon’ble Apex Court, and has come to the conclusion that since the land use has been changed by orders of the appropriate authority under
Section 143 of Act, the land is now outside the purview of the definition of “land†as defined under Section 3(14) of the Act. The court below has
also come to the conclusion that essentially it is a case of cancellation of sale deed and therefore the Civil Court has a jurisdiction in the matter and not
the revenue court and consequently the application under Order VII Rule 11 CPC has been rejected.
4. Section 3(14) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 defines “land†as follows:
“3 (14) “Land†[except in Section 109, 143 and 144 and Chapter VII means land held or occupied for purposes connected with agriculture,
horticulture or animal husbandry which includes pisciculture and poultry farming.â€
5. Vide order dated 12.04.2012, proceedings before the court below have been stayed by a Coordinate Bench of this Court.
6. Heard Mr. Bhupesh Kandpal, learned counsel for the revisionist and Mr. Arvind Vashistha, learned Senior Counsel assisted by Mr. Sandeep
Kothari, Advocate for respondent no. 1.
7. After hearing all the parties and perusal of pleadings of both the parties as well as the order dated 20. 03.2018, which is presently impugned in this
revision, I am of the considered view that though at some places it is possible that the power of Civil Court and the Revenue Court may overlap with
each other, but what has to be seen in the pith and substance of the subject matter. Here, the defendant no. 1, who is a recorded tenure holder has
sold the land to defendant no. 2 vide sale deed dated 20.04.2011. The suit is primarily for the cancellation of sale deed of a land, which is not a
“land†as defined under Section 3(14) of the U.P. Zamindari Abolition and Land Reforms Act, 1950.
8. The learned counsel for the revisionist though has relied upon the decision of the Hon’ble Apex Court in the case of Kamla Prasad and others
v. Kishna Kant Pathak and others reported in (2007) 4 SCC 213, wherein the Hon’ble Apex Court has observed that the suit itself was not
maintainable at the hands of the plaintiff, who was admittedly not a tenure holder and on this ground alone the Hon’ble Apex Court had questioned
the very maintainability of the said suit. The aforesaid decision of the Hon’ble Apex Court has been followed by this Court and the reference has
been given of Appeal From Order No. 419 of 2011 (M/s Dev Bhoomi Avas Ltd. v. Master Risabh Kohli & another).
9. This may be so, but the facts of the said case clearly reveal that that it was a case for declaration, under Section 229-B of the U.P. Zamindari
Abolition and Land Reforms Act, 1950 and there was an issue regarding the very maintainability of the suit itself. Here, in the present case, the
question is not of maintainability of the suit but the question is of jurisdiction of the civil court itself and what has been dismissed by the court below is
merely an application under Order VII Rule 11 of CPC, which has entirely different connotations. The fact whether a suit itself is maintainable at the
hands of the plaintiff, who is not a recorded tenure holder can still be agitated by the defendant before the court below, but I am of the considered
view that as far as jurisdiction is concerned, the same lies with Civil Court and therefore nothing further needs to be said.
10. In view thereof, the civil revision is dismissed. Interim order dated 12.04.2012 is hereby vacated.
11. The Trial Court is directed to proceed with the case in accordance with law. It is, however, made clear that the defendants would always be at
liberty to move an application before the court below for framing a preliminary issue regarding the very maintainability of the suit at the hands of the
plaintiff, which shall be decided in accordance with law. It is further made clear that present revision has only been decided on the jurisdiction of the
civil court, nothing further has been said on the merit of the case.
