Holding

Section 331‑A applies and the civil court must frame the issue of agricultural use and refer it to the Assistant Collector; its independent determination was ultra vires.

Summary

The appellants appealed against a civil suit for possession of a plot in Varanasi, contending that the land was agricultural and thus fell within the U.P. Zamindari Abolition and Land Reforms Act, 1950. The respondents argued that the land was "abadi" (non‑agricultural) and that the civil court lacked jurisdiction to decide the matter, which should be determined by the Assistant Collector under Section 331‑A. The Supreme Court held that all three conditions for invoking Section 331‑A were satisfied: the suit concerned land held by a bhumidhar, the question of agricultural use arose, and no declaration under Sections 143 or 144 had been made. Consequently, the civil judge erred by deciding the issue himself instead of framing it and referring the record to the Assistant Collector, thereby exercising jurisdiction not vested in him. The Court set aside the orders of the civil judge and the Allahabad High Court and directed the civil judge to follow the procedure prescribed in Section 331‑A. The appeal was allowed.

Issues considered

Whether the conditions for applicability of Section 331-A of the U.P. Zamindari Abolition and Land Reforms Act, 1950 are satisfied in the present suit.
Whether a civil court has jurisdiction to determine if the disputed land is agricultural or abadi land, or must refer the question to the Assistant Collector under Section 331-A.
Whether the land in dispute falls within the definition of "land" under Section 2(14) of the Act.

Legislation cited

Code of Civil Procedure, 1908s. 115
U.P. Land Revenue Act, 1901s. 44
U.P. Tenancy Act, 1939s. 3(1)(o)
U.P. Zamindari Abolition and Land Reforms Act, 1950s. 143, s. 144, s. 3(14), s. 331(1), s. 331-A

Subjects

land reformjurisdictioncivil courtagricultural landabadi landSection 331-AU.P. Zamindari Abolition Actpossession suitrevenue jurisdictionprocedural law

Judgment

A CHANDRIKA SINGH AND ORS.
v.
RAJA VISHWANATH PRATAP SINGH AND ANR.

APRIL 22, 1992
B
[M. FATHIMA BEEVI ANDS. C. AGRAWAL, JJ.)

U.P. Zamindari Abolition and Land Refonns Act, 1950:

Sections 3(14), 143, 144, 333(1) and 331-A: Conditions of Applicability
C of section 331-A-Land comprising of building and land surrounding the
buildinJ;Whether falls within the definition 'land'-Jurisdiction over such
matter~Whether vested with Civil Courts or Revenue Cowts.

Civil Procedure Code, 1908:
D
Section 115-Revision--Civil Court exercising Jurisdiction not vested in
it by statute-I/legality committed in exercise of jurisdiction-Rectification of
by High Court in exercise of its Revision Jurisdiction-Need for.

Respondents filed a suit for possession of certain property, stating
E that the father pf appellant Nos.I and 2 was in possession of the property
as a care-taker and that after his death appellant Nos.I and 2 continued
in possession of the same and did not vacate inspite of promises; instead
they got their names entered in the records in respect of the property. The
plaintiffs sought a.decree for ejectment as well as pendente lite and future
F damages for use and occupation. The defendents-appellants contested the
suit, claiming that it was not maintainable in the Civil Court inasmuch as
it related to agricultural land. It was also claimed that the entire area came
within the definition 'land' .since no declaration was made under section
143 of the U.P. Zamindari Abolition and Land Reforms ~ct, 1950. The Civil
Judge observed that the land occupied by the building or appurtenant
G thereto was excluded from the definition 'land' in the U.P. Tenancy Act,
1939 and since the house was there even prior to the commencement of the
U.P. Zamindari Abolition and Land Reforms Act, 1950, the same is not
applicable. .._e, therefore, held the land to be abadi land, the Revenue
Courts had no jurisdiction over it and the Civil Court could entertain the
H suit.
640
CHANDRIKA SINGH v. RAJA PRATAP SINGH 641
I

1be appellants produced extracts· of the relevant Khatauni which A
showed the plaintiff as bhumidhar of the suit property. The Civil Judge
held that reliance could not be placed on these and observed that under
the law if the land appurtenant to a building is being used for agricultural
purposes it would not lose its nature of land appurtenant to building.

The appellants preferred a Revision and the High Court dismissed B
the same. Against the High Court's order, the appellant preferred the
present appeals by special leave.

On behalf of the appellants, it was contended that all the three
conditim1s stipulated in section 331-A of the U.P. Zamindari Abolition and c
Land Reforms Act, were fulfilled in this case; that no declaration has been I

made under section 143 or 144 of the Act in respect of the suit land; that
the question whether the land was used or not for purpose of agriculture
etc. ought to have been considered since the respondents claimed that it
was abadi land; that there was no justification in ignoring the entry in the
relevant Khatauni and entries in the revenue record; and that tlie Civil D
Judge had no jurisdiction to decide issue Nos.5 and 6.

On behalf of the respondents it was contended that admittedly there
was a building on the land in dispute and since the land surrounding the
building was appurtenant to the building the entire area was abadi land. E
"(_, Allowing the appeal, this Court,

HELD: 1.1. In order that section 33l~A of the U.P. Zamindari
Abolition and Land Reforms Act, 1950 may be invoked three conditions
must be satisfied, viz., (i) the suit must relate to land held by a bhumidhar; F
(ii) th'! question whether the land in question is or is not used for purposes
connected with agriculture, horticulture or animal husbandry should arise
or be raised in the said suit; and (iii) a declaration has not been made in
respect of such land under section 143 or section 144. [650 A-CJ

1.2. In respect of Abadi land it is implied that the land is not being G
used for purposes connected with agriculture, horticulture or animal
husbandry and in view of the definition of 'land' contained in section 2(14)
of the Act such land is not land for the purpose of the Act. In order to
exclude the applicability of the Act on the ground that the land is Abadi
land it is necessary to determine whether the said land is or is not being H,
642 SUPREME COURT REPORTS [1992) 2 S.C.R.

A used for purposes connected with agriculture, horticulture or animal r
husbandry. Such a determination is envisaged by sections 143 and 144 and
where such a determination has not been made in accordance with those
provisions and this question arises before a court in a suit, it is required
to be determined in accordance with the provisions of section 331-A. The
scheme of the provisions contained in section 143, section 144 and section
B 331-A is that the question whether a particular land is or is not used for
the purposes connected with agrkultun;, horticulture or animal hus-
bandry has to be determined either under section 143 or section 144 and
where no such determination has. been made, it should be determined by
following the procedure laid doWn in section 331-A. It is not ope11 to a
c Court dealing with a suit in which the said question arises to by pass the
provisions of section 331-A and to proceed to determine the said question
itself. (649 E-H; 650 A]

1.3. This would be so even in a case where a building exists on the
land and the land is claimed to be appurtenant to the building because in
D
such a case it will be necessary to determine the extent of the lancl tliat is
appurtenant to the building, i.e. whether the entire land or only a part of
it is so appurtenant to .the building and for that reason is not held or
occupied for purposes connected with agriculture, horticulture or animal
husbandry. This determination has to be made in accordance with the
E provisions of sections 143 and 144 or section 331-A of the Act. [65i E]

2. In the instant case the conditions for applicability of the
provisions of section 331-A were fulfilled. In view of entry in the Khatauni
'~ for the year 1377 Fasli (Ex.A-1) which must be presumed to be correct in
F view of section 44 of the U.P. Land Revenue Act, 1901, the said land was
held by the respondents as Bhumidhar. The question whether the suit land
is or is not held for purposes connect;d with agriculture arises in the suit
filed by the respondents. There is no declaration in relation to land in
dispute under section 143 of the Act. (651 F, G]

G 3. It was not open to the Civil Court to decide, on its own, the
question whether the said land was held or occupied for purposes con·
nected with agriculture, horticulture or animal husbandry and after hold-
ing that it is not so held, refuse to follow the procedure lai(] down in section
331-A on the ground that the said provision has no application to the land -\-
H in dispute. The only course which was open to the Civil Judge was to frame
CHANDRIKA SINGH. v. RAJA PRATAP SINGH [AGRAWAL, J.] 643

an issue on the question whether the land in dispute is or is not used for A
purposes connected with agriculture, horticulture or animal hus,bandry
and send the record to the Assistant Collector in- charge of the sub-
division for decision on that issue and decide the s1dt in the light of the
finding recorded by the Assistant Collector on that issue. By deciding this
question himself the Civil Judge has exercised jurisdiction not vested in
him by law and in not following the procedure laid down in section 331-A
B
he has committed illegality in exercise of his jurisdiction which error was
required to be rectified by the High Court in exercise of its revisional
jurisdiction under section 115 CPC. (651 H; 652 A·C]

4. The judgment and order of the High Court and the order passed C
by the Civil Judge are set aside. The Civil Judge is directed to frame an
issue on the question whether the suit land is or is not used for purposes
connected with agriculture, horticulture or animal husbandry which in-
cludes pisciculture and poultry farming and after framing the said i~sue
send the record to the Assistant Collector in-charge of the sub-division for
the decision on that issue. (652 D-E] D
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3785 of
1983. .

Form the Judgment and Order dated 2.4.1980 of the Allahabad High E
Court in Civil Revision No. 3770 of 1978.

J.P. Goyal, T.N. Singh, B.M. Sharma and S.N. Singh for the Appel-
lants.
~
Y ogeshwar Prasad, Mrs. Rani Chhabra and Ms. Rachna Gupta for F

-
r/ ,_/
the Respondents.

The Judgment of the Court was delivered by

S. C. AGRAWAL, J. This appeal by special leave is directed against
~
the judgment of the Allahabad High Court dated April 2, 1980. It raises G
the question whether the civil court has jurisdiction to decide the issue
whether the land in dispute in a suit or proceeding before it is a abadi land
or some other land. It involves the interpretation of Section 331-A of the
U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act No. l
of 1951), hereinafter referred to as 'the Act'. H
644 SUPREME COURT REPORTS [1992) 2 S.C.R.

A The di.Spute relates to a plot of land bearing settlement No.141/176-
177 situate within the limits of Municipal Corporation of Varanasi. The
said land consists of a residential house, Shiwala (temple), pucca well and
open land enclosed by a boundary wall. In the municipal records, it is
numbered as 18/106, Mohalla Sarang Talab, Varanansi. Respondents Nos.
1 and 2 filed a suit (No.157 of 1973) for possession of the said property in
B the court of Civil Judge, Varanasi against the appellants wherein it was
alleged that Aparbal Singh, father of appellant. no.1, and Chandra Deep
Singh (deceased), who was appellant no.2, in the appeal and is now
represented by his legal representives, was in possession of the said proper-
ty as a care-taker and he was managing the same on behalf of the plaintiffs
c and after the death of Aparbal Singh, appellants nos.1 and 2 continued in
possession of the same but they did not vacate the said property in spite
of promises and on the other hand, they got their names entered in the
records in respect of the said property. The plaintiffs sought a decree for
ejectment as well as pendente lite and future damages for use and occupa-
~ ---
D tion. The said suit was contested by the defendants. In the written state-
ment, it was claimed that the suit was not maintainable in the civil court
inasmuch as it related to agricultural land. It was stated that the total area
of the disputed property is 4 Bighas 10 Biswas (2.92 acres) out of which
the residential house, pucca well and the land appurtenant to the house
cover in area of 10 Biswas and the rest of the land measuring about 4
E Bighas was being cultivated by the defendants. It was also claimed that the
~ntire area comes within the definition of 'land' since no declaration was
made under section 143 of the Act. It was also claimed that Aparbal Singh
and Alpanath Singh, father of defendants nos. 3 and 4, having equal share

F
in the land became sirdars and after the death of Aparbal Singh, Alpanath
is in possession as owner Sirdar of the said land. In the view of the said
pleadings, the Civil Judge framed Issues Nos. 5 and 6 which are as under: -
Issue No. 5 : Is suit land agricultural land as defined in U.P. Act,
1951 ?

G Issue No. 6 : Is the suit triable by this Court so far as suit land is
concerned?

The said issues were tried as preliminary issues and were decided in
favour of the plaintiffs-respondents and against the appellants by the Civil
H Judge-I, Varanasi by his order dated September 14, 1978. The Civil Judge
CHANDRIKA SINGH. v. RAJA PRATAP SINGH [AGRAWAL, J.) 645

held that in the written statement dated September 31, 1983, it has been A
alleged by the defendants-appellants that about 23 years back, the disputed
house was in a very dilapidated condition and that Aparbal Singh and
Alpanath Singh invested about Rs.15,000 and made the house habitable.
On the basis of the said allegation in the written statement, the Civil Judge
held that the disputed property had a house, though in a dilapidated
condition, before July 1, 1952 the date of the enforcement of the Act and
B
he considered the matter in the light of the provisions contained in the U.P.
Tenancy Act, 1939. After referring to the definition of 'land' contained in
Section 3(1)(o) of the said Act, the Civil Judge observed that the land
occupied by building or appurtenant thereto was excluded from the said
definition and, therefore, the disputed property did not come within the c
definition of land as defined in the U.P. Tenancy Act and was abadi and
\
it was not land as defined in the Act and the revenue court's have got no
_,-- ~ jurisdiction and the suit could be entertained by the Civil Court. The
defendants- appellants produced extract of Khatauni for the year 1377 Fasli
(Ex.Al) wherein the plaintiffs have been recorded as bhumidar of the suit D
property. The copies of the revenue record (Exs. 2 to 5) were also
produced. The Civil Judge held that the said entries were useless and no
reliance could be placed on them. It appears that the property in dispute
was also inspected by the Amin, who prepared a map and submitted his
report wherein it was stated that the suit property is enclosed by a bound-
ary wall and land appurtenant to the building has been shown as being used E
)r.
for agricultural purposes also. While dealing with the said report of the
I Amin, the Civil Judge observed that under law if the land appurtenant to
a building is being used for agricultural purposes, it will not lose its nature
of being land appurtenant to building. Feeling aggrieved by the said order
of the Civil Judge, the appel!ants filed a revision in the High Court which
F
was dismissed by the High Court. Agreeing with the Civil Judge the High
Court has held that the suit land was appurtenant to a building and a
Shiwala and was not being held or occupied for purposes connected with
agriculture, horticulture or animal husbandry and hence, prime facie, it was
not land as defined in the Act and, therefore, Section 331-A had no
application. The High Court also observed that the lower court had rightly G
refused to rely on the revenue records from 1960 onwards which showed
that the land was recorded as the plaintiffs' bhumidari because on the
defendants' own pleadings the land was appurtenant to a house and was
rightly held to be abadi property in respect of which civil court continued
H
646 SUPREME COURT REPORTS [1992) 2 S.C.R.

A to retain jurisdiction and try disputed title.
By order dated April 4, 1983 leave to appeal has been limited to the
question whether the court had jurisdiction to decide the issue whether the
land is abadi land or some other land.

B The expression "land" is defined in clause (14) of section 3 as follows:

" 'Land' except in Sections 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".
c
Section 143 provides as under : ..
"143. Use of holding for industrial or residential purpose -

(1) Where a bhumidhar with transferable rights uses his holding
D or part thereof for a purpose not connected with agriculture,
horticulture or animal husbandry which includes pisciculture
and poultry farming, the Assistant Collector in charge of the
sub-division may, suo moto or on an application, after making
such enquiry as may be prescribed, make a declaration to that
E effect.

(1-A) Where a declaration under sub-section (1) has to be
made in respect of a part of the holding the Assistant Collector
in charge of the sub-divisions may in the manner prescribed
demarcate such part for the purposes of such declaration.
F
(2) Upon the grant of the declaration mentioned in sub-s.(1)
the provisions of this Chapter (other than this section) shall
cease to apply to the bhumidhar with transferable rights with
respect to such land and he shall thereupon be governed in the
matter of devolution of the land by personal law to which he
G
is subject."

Section 144 provides for making of a similar declaration where land
held by a bhumindar which is not used for purposes connected with
agriculture, horticulture or animal husbandry has become land used for
H such purposes.
CHANDRIKA SINGH. v. RAJA PRATAP SINGH [AURAWAL, J.] 647

The bar to the jurisdiction of Civil Court is contained in Section A
~ 331(1) which provides as under :

"331. Cognizance of suits, etc. under this Act - (1) Except as
provided by or 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 · B
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 applica-
tion". c
.
Provided that where a declaration has been made under
>-- ~ ·Section 143 in respect of any holding or part thereof, the
provisions of Schedule II insofar as they relate to suits, applica-
tions or proceedings under,Chapter VIII shall not apply to such
holding or part thereof. D

Explanation:- If the cause of action is one in .respeet of which
relief may be granted by the revenue court, it is imm.acerial that
the relief asked for from the civil court may not be identical to
that which the revenue court would have granted. E
r-- Section 331-A prescribes 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 lo land held by a bhumidhar. It reads as under:
F
"331-A. Procedure when plea of land being used for agricultural
purposes is raised in any suit -
l
~' (1) lf'in any suit, relating to land held by a bhumidhar, instituted
in any court, lhe question arises or is raised whether the land
in question is or is not used for purposes connected with G
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
f to the Assistant Collector in-charge of the sub-division for the H
648 SUPREME COURT REPORTS [1992] 2 S.C.R.

A 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.
B
(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
c 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.
D
(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.''
E The aforesaid provisions show that under section 331(1) exclusive
jurisdiction in respect of suits, applications and proceedings referred to in
Schedule II of the Act has been conferred on the courts specified in the
said Schedule and the said proceedings, suits and applications cannot be
entertained, by the civil courts. The proviso to S.331(1) lifts the said bar in
F relation to any holding or part thereof where a declaration has been made
under section 143. Section 143 empowers the Assistant Collector after
making such enquiry as may be prescribed, to make a declaration that a
holding or part thereof is being used or held by a bhumidhar for purposes
not connected wit.h agriculture, horticulture or animal husbandry. Where
G such a declarayon is made in respect of a part of the holding, the Assistant
Collector is required to demarcate the said part. The effect of the grant
of such a declaration is that the provisions of Chapter VIII (except s.143)
cease to apply to the bhumidhar with transferable rights with !espect to
such land.

H Section 331-A deals with a situation where a suit relating to land held
Cf{ANDRIKA SlNGH. v. RAJA PRATAP SINGH [AGRAWAL, J.) 649

by a bhumidhar has been instituted in any court and a question arises or A
is raised whether the land in question is used or is not used for purposes
connected with agriculture, horticulture or animal husbandry and a decla-
ration has not been made in respect of such land under ss.143 or 144 of
the Act. Since there is no declaration under Section 143 the proviso to
sub-section (1) of Section 331 would not be applicable and the bar to the
jurisdiction of the Court placed under sub-section (1) of Section 331 would
B
be operative. Section 331-A is intended to serve the same purpose as
Section 143 and this is done by requiring the Court to frame an issue on
the said question and. send the record to the Assistant Collector in-charge
of the sub-division for the decision on that issue only and by laying down
that the Assistant Collector shall decide the said issue in the manner laid c
down for making a declaration under s.143 or s.144, as the case may be.
The court in which the suit is pending has to decide the suit accepting the
finding recorded by the Assistant Collector in-charge of the sub-division
on the issue referred to it but the said finding can be challenged in appeal
against the decision of the said Court. This would mean that when there is D
no declaration under section 143 the bar to jurisdiction of courts placed
under sub-section (1) of section 331 can be lifted by following the proce-
dure laid down in Section 331-A.

In respect of Abadi land it is implied that the land is not being used
for purposes connected with agriculture, horticulture or animal husbandry E
and in view of the definition of 'land' contained in Section 2(14) of the Ah
such land is not land for the purpose of the Act. In order to exclude the
applicability of the Act on the ground that the land is Abadi land it is
necessary to determine whether the said land is or is not being used for
purposes connected with agriculture, horticulture or animal husbandry. F
Such a determination is envisaged by Sections 143 and 144 and where such
a determinatioh has not been made in accordance with those provisions
and this question arises before a court in a suit, it is required to be
determined in accordance with the· provisions of s.331-A. The scheme of
the provisions contained in s.143, _s:144 and s.331-A is that the question
whether a particular land is or is not used for the purposes connected with G
agriculture, horticulture or animal husbandry has be determined either
• under s.143 or s.144 and where no such determination has been made, it
1

. should be determined by following the procedure laid d6wn in s.331-A. lt
is not open to a Court dealing with a suit in which the said question arises
to by pass the provisions of section 331-A and to proceed to determine H
650 SUPREME COURT REPORTS (1992) 2 S.C.R.

A the said question itself.

In order that s.331-A may be invoked the following conditions must
be satisfied:

(i) the suit must relate to land held by a bhumidhar;
B
(ii) the question whether the land in question is or is not used for
purposes connected with agriculture, horticulture or animal husbandry
should arise or be raised in the said suit; and

c s.143 or(iii)s.144.
a declaration has not been made in respect of such land under

Shri J.P. Goyal, the learned counsel appearing for the appellants, has
submitted that in the present case all the three conditions are fulfilled. The
respondents are recorded as Bhumidhar in respect of the suit land and,
D therefore, the said land is held by a bhumidhar. The question whether the
land in question was used or not used for purposes connected with agricul- ·
ture, horticulture or animal husbandry which includes pisciculture and
poultry farming arises for consideration in the suit filed by the respondents
because the respondents claim that it is Abadi land. No declaration has
been made in respect of that suit land under s.143 or s.144. Shri Goyal has
E urged that in the circumstances, it was incumbent upon the Civil Judge to
frame an issue on the question and send the same to the Assistant Collector
in-charge of the sub-division for the decision on that issue as required by
sub-section(!) of Section 331-A and the Civil Judge could not himself
decide the said question while dealing with issues nos. 5 and 6. Shri Goyal
F has, therefore, contended that the order passed by the Civil Judge deciding
issues nos. 5 and 6 was an order passed without jurisdiction and the High
Court has erred in not interfering with the same in revision. Shri Goyal has
also urged that presumption of correctness attaches to record of rights \ '
under section 44 of the U.P. Land Revenue Act, 1901 and that the Civil .~
G Judge and the High Court were not justified in ignoring the entry in the
khatauni for 1377 F (Exh.A-1) and copies of the entries in the revenue r,.,.
record (Exh.2 to Exh.5).

Shri Yogeshwar Prasad, the learned counsel appearing for the plain-
tiffs-respondents has laid stress on the expression "relating to land" in
H sub-section (1) of s.33.1-A and has urged that the term 'land' has to be given
CHANDRIKA SINGH. v. RAJA PRATAP SINGH [AGRAWAL, J.) 651

the meaning as contained in s.2(14) of the Act and it was competent for A
the Civil Judge to consider whether the suit land is land as defined in
s.2(14) of the Act and it could, therefore, go into the question whether the
land in dispute was held or occupied for purpose connected with agricul-
ture, horticulture or animal husbandry. The submission of Shri Yogeshwar
Prasad is that admittedly there is a building on the land in dispute, and
since the land surrounding the building is appurtenant to the building the
B
entire area has been rightly held to be abadi by the Civil Judge as well as
the High Court.

We are unable to agree with the said submission of Shri Yogeshwar
Prasad. In our opinion, the question as to whether a particular land is c
-- "land" under section 2(14) to which the provisions of the Act are applicable
would require determination of the question whether the land is held or
occupied for purposes connected with agriculture, horticulture or animal
husbandry and that is a matter which has to be determined either in
accordance with the provisions of ss.143 and 144 and if such a determina-
tion has not been made and such a question arises or is raised in a suit
D
before a court, the procedure laid down in s.331-A must be followed by
the Court. This would be so even in a case where a buildmg exists on the
land and the land is claimed to be appurtenant to the building because in
such a case it will be necessary to determine the extent of the land that is
appurtenant to the building, i.e. whether. the entire land or only a part of E
it is so appurtenant to the building and for that reason is not held or
occupied for purposes connected with agriculture, horticulture or animal
husbandry. This determination has to be ·made in accordance with the
provisions of Sections 143 and 144 0r Section 331-A of the Act.

F
fn the instant case we find that the conditions for applicability of the
provisions of section 331-A were fulfilled. In view of entry in the Khatauni
for the year 1377 F (Ex.A-I) which must be presumed to be correct in view
of Section 44 of the U.P. Land Revenue Act, 1901, the said land was held
by the respondents as Bhumidhar. The question whether the suit land is or
is not held for purposes connected with agriculture arises in the suit filed G
by the respondents. There is no declaration in relation to land in dispute
under Section 143 of the Act.

It was, therefore, not open to the Civil Judge to decide, on its own,
the question whether the said' land was held or oc~upied for purposes H
652 SUPREME COURT REPORTS [1992] 2 S.C.R.

A connected with agriculture, horticulture or animal husbandry and after
holding that it is not so held refuse to follow the procedure laid down in
s.331-A on the ground that the said provision has no application to the land
in dispute. The only course which was open to the Civil Judge was to frame
an issue on the question whether the land in dispute is or is not used for
purposes connected with agriculture, horticulture or animal husbandry and
B send the record to the Assistant Collector in-charge of the sub-division for
decision on that issue and decide the suit in the light of the finding
recorded by the Assistant Collector on that issue. By deciding this question
himself the Civil Judge has exercised jurisdiction not vested in him by law
and in not following the procedure laid down in section 331-A ht has
c committed illegality in exercise of his jurisdiction which error was required
to be rectified by the High Court in exercise of its revisional jurisdiction
under section 115 CPC. ·-
-~
The appeal is, therefore, allowed. The judgment and or$ler of the
High Court of Allahabad dated April 2, 1980 and the order dated Septem-
D her 14, 1978 passed by the Civil Judge-I, Varanasi are set aside and~the
Civil Judge is directed to frame an issue on the question whether the suit
land is or is not used for purposes connected with agriculture, horticulture
or animal husbandry which includes pisciculture and poultry farming and
after framing the said issue send the record to the Assistant Collector in-
E charge of the sub-division for the decision on that issue. There will be no
order as to costs.

G:N. Appeal allowed