PAPPU AGRAWAL @ PRABHAKAR AND 2 OTHERSversusAMIT KUMAR MODI AND 8 OTHERS

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 FIRST APPEAL FROM ORDER No. - 2427 of 2026

Pappu Agrawal @ Prabhakar And 2 Others
                                                         .....Appellant(s)
                                   Versus

Amit Kumar Modi And 8 Others
                                                       .....Respondent(s)

Counsel for Appellant(s)            :   Ashish Agrawal, Nimish Garg
Counsel for Respondent(s)           :   Sudhanshu Pandey

Alongwith

                 FIRST APPEAL FROM ORDER No. - 2428 of 2026

Pappu Agrawal @ Prabhakar And 2 Others
                                                         .....Appellant(s)
                                   Versus

Praveen Modi And 8 Others
                                                       .....Respondent(s)

Counsel for Appellant(s)            :   Ashish Agrawal, Nimish Garg
Counsel for Respondent(s)           :   Sudhanshu Pandey

Court No. - 54

                       HON'BLE ANIL KUMAR-X, J.

1. Heard Shri Ashish Agrawal, learned counsel for the appellants and Shri
Atul Dayal, learned Senior Advocate assisted by Shri Sudhanshu Pandey,
learned counsel for the respondent no.1

2. FAFO No.2427 of 2026 (Pappu Agrawal @ Prabhakar And 2
Others vs. Amit Kumar Modi And 8 Others) has been preferred with a
prayer to set aside the judgment and decree dated 23.4.2026 passed by
District Judge, Gorakhpur in Civil Appeal No. 102 of 2024 (Amit Kumar
Modi V/s Shiv Kumar Modi and others) arising out of the judgment and
order dated 17.9.2024 passed by Civil Judge (S.D.) Gorakhpur in Original
Suit No.15 of 2024 (Amit Kumar Modi V/s Shiv Kumar and others). By
means of the impugned order dated 23.4.2026, the order dated 17.9.2024
passed in Original Suit No.15 of 2024 has been set aside by the learned
appellate court.
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3. FAFO No.2428 of 2026 (Pappu Agrawal @ Prabhakar And 2
Others vs. Praveen Modi And 8 Others) has been preferred with a
prayer to set aside the judgment and decree dated 23.4.2026, signed on
18.5.2026, passed by District Judge, Gorakhpur in Civil Appeal No. 101
of 2024 (Praveen Modi V/s Shiv Kumar Modi and others) arising out of
the judgment and order dated 17.9.2024 passed by Civil Judge (S.D.)
Gorakhpur in Original Suit No. 494 of 2022 (Praveen Modi V/s Shiv
Kumar Modi and others). By means of the impugned order dated
23.4.2026, the order dated 17.9.2024 passed in Original Suit No. 494 of
2022 has been set aside by the learned appellate court.

4. Since both the aforesaid appeals arise out of two judgments passed by a
common learned appellate court involving common questions of law and
facts between the same parties in respect of same properties, they are
being decided together.

5. For the sake of convenience, the parties hereinafter shall be referred to
by their nomenclature as assigned in the plaints. The appellants are the
defendants and the respondent no.1 in both appeals are the plaintiff in the
aforesaid two suits.

Brief Facts

6. Briefly stated, two civil suits, being Original Suit No. 494 of 2022
(Praveen Modi Vs. Shiv Kumar Modi and others) and Original Suit No.
15 of 2024 (Amit Kumar Modi Vs. Shiv Kumar Modi and others) were
instituted before the civil court with a prayer seeking partition of ancestral
land. Parties in both suits are common. Both suits seeking same relief
were instituted by respondent-plaintiffs. In both suits, it was pleaded that
respondent-plaintiffs have their 1/6th share in the disputed property and
their share requires assessment and partition.

7. The appellant-defendants in both suits filed applications under Order 7
Rule 11 CPC and the same were allowed by the trial court by its separate
orders each dated 17.09.2024 passed in Original Suit No. 494 of 2022 and
Original Suit No.15 of 2024, respectively. In both orders, the trial court
came to a conclusion that disputed property is Bhumidhari land and
ancestral property of the parties for which a relief for partition has been
sought, adjudication of which falls exclusively within the domain of
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Revenue Court. Accordingly, the trial court held that both suits were
barred by Section 116 of U.P. Revenue Code, 2006 as the relief of
partition in respect of agricultural land can only be granted by a Revenue
Court by virtue of Section 206 of U.P. Revenue Code and, accordingly,
rejected the plaints of the respondent-plaintiffs by orders dated 17.9.2024.

8. The order dated 17.09.2024 passed by learned trial court in Original
Suit No.494 of 2022 was challenged in Civil Appeal No.101 of 2024
(Praveen Modi V/s Shiv Kumar Modi and others). Said civil appeal was
allowed by the appellate court by its order dated 23.04.2026 holding that
trial court has erred in recording a finding that disputed property is an
agricultural property because the plaint does not mention it as an
agricultural property. Same finding was also recorded by the appellate
court in its another order dated 23.04.2026 passed in Civil Appeal No.102
of 2024 (Amit Kumar Modi V/s Shiv Kumar Modi and others), wherein
the order dated 17.09.2024 passed in Original Suit No. 15 of 2024 was
challenged.

9. The appellant-defendants aggrieved by both orders dated 23.4.2026
passed by the appellate court in Civil Appeal No.101 of 2024 (Praveen
Modi V/s Shiv Kumar Modi and others) and Civil Appeal No.102 of 2024
(Amit Kumar Modi V/s Shiv Kumar Modi and others) have preferred
these two appeals.

Arguments on behalf of appellants/defendants

10. Learned counsel for the appellant-defendants submitted that the
appellate court has committed gross illegality in reversing the findings
recorded by the trial court and coming to an erroneous conclusion that the
plaints do not disclose that the disputed property is an agricultural
property. It was contended that it is very much evident from a bare
reading of the plaints that the disputed property is an agricultural property
because the description of the property in the plaints itself reveals that the
properties for which relief of partition has been sought are Arazi Nos.
257, 283, 284 situated at Mauja Turkmanpur, Tehsil Sadar, District
Gorakhpur. It was further contended that the document i.e. record of
rights annexed along with the plaints was itself sufficient to show that the
disputed property is an agricultural property.
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11. Learned counsel also contended that Section 116(1) of U.P. Revenue
Code specifically mentions that a suit for division of holding by a
Bhumidhar, of which he is a co-sharer, is cognizable by a Revenue Court
and no other court shall have any jurisdiction to entertain the same. It was
further submitted that Section 143 of U.P. Z.A. & L.R. Act
(corresponding to Section 80 of U.P. Revenue Code) clearly mandates
that an agricultural holding unless converted to be used for non-
agricultural purposes shall remain an agricultural property. It is very
much evident from the said provision that unless a declaration in respect
of agricultural land is not made under Section 80 of U.P. Revenue Code,
the nature of the property remains the same even though the land thereof
has been used as Abadi land.

12. It was, therefore, contended by learned counsel for the appellants that
the appellate court has wrongly concluded that the said land has become
an Abadi land as it was included into town area. It was submitted that
mere inclusion of a land either into a town area or municipal area will not
change its nature from agricultural land to non-agricultural land unless
there is a specific declaration in this respect. Therefore, the finding
recorded by the appellate court for setting aside the orders passed by the
trial court rejecting the plaints filed by the respondent-plaintiffs is
unsustainable and the impugned orders dated 23.4.2026 are liable to be
set aside.

Arguments on behalf of respondent/plaintiff

13. Per contra, learned counsel for the respondent-plaintiffs submitted that
plaintiffs have nowhere disclosed in their plaint that disputed property is
an agricultural land. Until and unless there is a specific averment in a
plaint, the same cannot be inferred at the stage of application under Order
7 Rule 11 CPC. Therefore, the reason recorded by the trial court holding
the disputed land as agricultural land is per se illegal and the same was
rightly set aside by the appellate court.

14. It was further submitted that disputed land was included into town
area way back earlier before institution of the suits and now the entire
land has been converted into Abadi land which is manifest from the
Khasra of the disputed land. The appellate court has also recorded a
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finding to this effect that paper No. 23-C (Khasra of the disputed land)
clearly reveals that disputed land has been recorded as Abadi land
consisting of 'sahan' as well as 'house'. The revenue record also records
the disputed land as Abadi land and there is no restriction upon the civil
court to entertain the suits of partition in respect of Abadi land. In support
of his contention, he has placed reliance upon judgment of Nimmi
Infratech Private Limited (Previously Satya Homes Pvt. Ltd.) vs.
Fundan and 9 Ors.; Neutral Citation 2025:AHC:11437.

Conclusion

15. I have heard the rival submissions advanced by learned counsel for
the parties and perused the records.

16. It is very much evident that in both suits, i.e. Original Suit No. 494 of
2022 (Praveen Modi V/s Shiv Kumar Modi and others) and Original Suit
No.15 of 2024 (Amit Kumar Modi V/s Shiv Kumar and others), the p
arties and properties are same. Amit Kumar Modi is the son of Shiv
Kumar Modi, who is defendant in Original Suit No.494 of 2022. Said
Amit Kumar Modi has instituted a fresh suit being Original Suit No.15 of
2024 (Amit Kumar Modi Vs. Shiv Kumar Modi and others). The
pleadings in both suits are same and the disputed properties, i.e., Arazi
Nos. 257, 283, 284 are also same.

17. There is no denial of the fact that plaintiffs in both suits have nowhere
stated in their plaint that the disputed property is an agricultural land. It is
also very much clear that an application under Order 7 Rule 11 CPC has
to be decided only on the basis of averments made by a plaintiff in his
plaint and a court cannot travel beyond the plaint unless it is necessary to
ascertain the true meaning of the plaint as well as the actual prayer sought
by the plaintiff. But the said fact is entirely missing from the present suits.

18. It is true that the plaintiffs in both suits have not made any specific
averment that the disputed property is an agricultural property, but he has
clearly described the property as Arazi Nos. 257, 283 and 284. The said
description is part of the plaint and the said description itself is sufficient
to show that the disputed property is an agricultural property. Therefore,
by no stretch of imagination, it can be said that the nature of the property
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described in the plaint is vague and its nature cannot be ascertained unless
there is some additional evidence in respect of the same. Hence, it is
evident that disputed property is an agricultural property.

19. Now the question that arises for consideration before this Court is
whether a suit for partition in respect of an agricultural land, particularly
when such land has not been declared to be used as Abadi purposes, is
maintainable before a civil court.

20. There is no need to make a detailed discussion on this issue. The
provisions of Sections 80, 116 and 206 of U.P. Revenue Code, 2006 are
very specific and they clearly lay down that a suit regarding division of an
agricultural holding will fall within the domain of Revenue Court. The
said agricultural land may fall within the domain of civil court for
purposes of partition if same has been declared as Abadi land under
Section 80 of U.P. Revenue Code. Unless there is a declaration under
Section 80 of U.P. Revenue Code, the physical nature of the agricultural
property will not determine the forum for filing a suit for partition of the
said property.

21. This Court in the judgments of Saroj vs. State of U.P. and others;
2019 (143) RD 577 and Kanti Prakash Mittal vs. State of U.P., 2011
(9) ADJ 142, has held that without any specific declaration under Section
143 of U.P. Z.A. & L.R. Act, the agricultural land cannot be treated to be
an Abadi land merely because there exists Abadi. Therefore, the reason
recorded by the trial court in rejecting the plaints of the respondent-
plaintiffs in both suits was proper and legal. There was no justification for
interfering in the findings recorded by the trial court. The appellate court
has committed gross illegality in holding that the suits for partition
regarding the disputed land can lie before the civil court because the
nature of the property has changed and same has become an Abadi land.
Said finding is not tenable. The judgment relied upon by the respondent-
plaintiffs in Nimmi Infratech Pvt. Ltd. (supra) was perused by this
Court. The facts in the said judgment which has considered the scope of
Sections 80, 116 and 206 of U.P. Revenue Code, have no relevance in the
present facts of the case.

22. In view of the above discussions, both the appeals are allowed. Both
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                                    the impugned orders each dated 23.04.2026 passed by the appellate court
                                    respectively in Civil Appeal No.102 of 2024 and Civil Appeal No.101 of
                                    2024 are set aside and the orders dated 17.9.2024 passed by the trial court
                                    respectively in Original Suit No.15 of 2024 and Original Suit No.494 of
                                    2022 are confirmed.



                                                                                           (Anil Kumar-X,J.)
                                    September 21, 2026
                                    SK




Digitally signed by :-
SUSHEEL KUMAR
High Court of Judicature at Allahabad