Holding

The defendants did not prove that the suit lands were demarcated and vested in the State; therefore Section 331 of the 1950 Act does not apply and the civil court retains jurisdiction, leading to the setting aside of the High Court judgment and confirmation of the first appellate decree.

Summary

The plaintiff, Mahant Dooj Das (deceased) through legal representatives, sued to declare title and cancel a sale deed concerning lands he claimed as heir and successor of Mahant Tahal Dass. The defendants argued that the lands were agricultural areas demarcated under the Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Act, 1956, and therefore vested in the State, invoking Section 331 of the 1950 Act to oust the civil court's jurisdiction. The Supreme Court held that the defendants failed to produce any evidence that the suit lands had been demarcated and vested in the State, a prerequisite for the operation of Section 331; consequently, the civil court retained jurisdiction and the High Court’s dismissal of the suit was set aside. The Court also ruled that the new plea invoking the 1939 Tenancy Act could not be raised at this stage, and the High Court could not entertain a fresh substantial question of law without satisfying the conditions of Section 100(5) CPC. The decree of the first appellate court was restored and the appeal was allowed with costs.

Issues considered

Whether the suit lands were demarcated under Sections 3,4,5 of the Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Act, 1956 and thus vested in the State under Section 8, making Section 331 of the 1950 Act applicable to oust civil court jurisdiction.
Whether the suit is barred by limitation and whether a limitation plea can be raised at the stage of a second appeal.
Whether the State and Gaon Sabha/Gaon Panchayat are necessary parties and whether non‑joinder warrants dismissal.
Whether the High Court could entertain a new substantial question of law under the proviso to Section 100(5) of the Code of Civil Procedure.
Whether the burden of proof for ouster of civil court jurisdiction lies on the party asserting it.

Legislation cited

Subjects

jurisdictioncivil courtouster of jurisdictionland reformsdemarcationSection 331Uttar Pradesh Zamindari Abolition ActCode of Civil Proceduresubstantial question of lawsuccessionchelaleasehold

Judgment

[2008] 7 S.C.R. 470

A MAHANTDOOJ DAS(DEAD)THROUGH LR. A ...._
v
UDASIN PANCHAYATI BARA AKHARA & ANR.
(Civil Appeal No.5060 of 2007)
MAY 1, 2008
B
[P.P. NAOLEKAR AND AFTAB ALAM, JJ.]
).

Uttar Pradesh Zamindari Abolition and Land Reforms
Act, 1950 - s.331 -Applicability of- Jurisdiction of civil court
c - Held: No evidence led by defendants that suit land was
· demarcated under s. 5 and as such vested in State
Government - Hence s.331 of 1950 Act not applicable -
Unless land is vested in State Government, s.331 would have
no application to oust jurisdiction of civil court - Burden lies ;
on defendants to prove that suit lands were demarcated which
D.
they failed to discharge - Uttar Pradesh Urban Areas
Zamindari Abolition and Land Reforms Act, 1956 - ss. 5 and
8. ""1
Code of Civil Procedure, 1908 :
~

E s. 100 - Finding arrived at by trial court and first appellate )
court that plaintiff was initiated as the eldest chela of Mahant
and was successor in respect of the suit property of Mahant -
High Court framed substantial questions of law as to whether
civil court has jurisdiction and whether suit was barred by
F limitation - High Court held that suit was not maintainable
before civil court- On appeal, Held: Neither any other question ... ...'
of law framed by High Court nor any other question decided
by courts below put to challenge by framing substantial
question of law - Hence finding of courts below regarding
G plaintiff being successor of suit property attained finality.
s. 100(5), proviso - Powers under - Exercise of - Held:
Power of High Court to hear appeal on question of law not
formulated is conferred by virtue of proviso to sub-section (5) ~ -
of s. 100, but to apply provision of proviso it is necessary
H 470
;
'
MAHANT DOOJ DAS (DEAD) THROUGH LR. v. 471
UDASIN PANCHAYATI BARAAKHARA & ANR.

condition that High Court feels satisfied that case involves such A
question on which hearing has to given to the parties although
such substantial question of law has not been framed and
secondly the High Court records its reasons for its satisfaction.
Appeal - Before Supreme Court - New plea - Raising
of - Permissibility of - Held: Not permissible. B

The Mahant 'TD' was Udasin of a Panth. He acquired
the suit properties by permanent leases and was in
occupation thereof. The plaintiff-appellant filed suit for
declaration of title and cancellation of the sale deeds on c
the ground that after the death of Mahant 'TD' he being
the eldest chela acquired the right and interest in the suit
properties and one 'BO' claimed himself to be chela of
Mahant 'TD' and transferred the rights under the leases
to defendant no.1 through defendant no.2. The trial court
D
decreed the suit, which was affirmed by the First Appellate
Court.
... ~
High Court reversed the order of Trial Court and First
Appellate Court holding that by virtue of expression
"which have been so demarcated under s.5 of the U.P. E
Urban Areas Zamindari Abolition and Land Reforms Act,
1956" contained in the notification, indicate that the
demarcation was made before the notification under s.8
of the 1956 Act was issued; thatthe land in question stood
vested in the State of U.P. w.e.f. 1. 7.1963; thatthe suit being F
,.. basically for declaration of the title and the cancellation
of the sale deed in respect of the agricultural area under
the 1956 Act is an ancillary relief and the real question
between the parties was of title in respect of agricultural
area covered under the 1956 Act; and that in view of the
G
provisions of s.82 of the 1956 Act read with s.331 of the
U.P. Zamindari Abolition and Land Reforms Act, 1950, the
suit before the civil court between the parties was not
'(_ maintainable before the civil court.
! The prime question for consideration before this H
472 SUPREME COURT REPORTS (2008] 7 S.C.R.

A court is whether the land in suit would be covered and
governed under the 1956 Act so as to apply the provisions
of s.331 of 1950 Act to oust the jurisdiction of the civil court.
Allowing the appeal, the Court
B HELD: 1. The Uttar Pradesh Urban Areas Zamindari
Abolition and Land Reforms Act, 1956 received the assent
of the President on 7.3.1957 and was published in the U.P.
Gazette Extraordinary dated 12.3.1957. The Act was
brought into force to provide for the abolition of Zamindari
C system in agricultural areas situated in urban areas of U.P.
and for acquisition of the rights, title and interest of the
intermediaries between the tiller of the soil and the State
in such areas and for introduction of the land reforms
therein. By virtue of s.8 of 1956 Act, after the agricultural
area has been demarcated under s.5, the State
D Government would issue a notification in the official
gazette declaring that from specified date all demarcated
area situated in the urban area shall vest with the State J'. ~

Government and from the date so specified all such
agricultural area shall be transferred to and vest except
E otherwise provided, in the State free from all
encumbrances. There is no evidence led by the
defendants that the suit land had been declared as a
demarcated area and as such as vested with the State
government under s.8 of the 1956 Act. In the absence of
F proof, it cannot be said that the suit area is a demarcated
area and thus vested in the State by issuance of the
notification under s.8 of the Act. [Paras 12, 15] [484-G, H;
485-A; 488-G, H; 489-A; 491 C, G; 492·A]
2. For application of the provisions of s.331 of the
G 1950 Act which has been incorporated in the 1956 Act, it
was necessary for the defendants to prove that the suit
lands had been demarcated by the State Government by
taking necessary steps as contemplated under ss.3,4 cind .,.
5 of the 1956 Act. Ss.3,4 and 5 provide a complete code / /1
H for demarcation of the agricultural are~ after giving (
MAHANT DOOJ DAS (DEAD) THROUGH LR. v. 473
> UDASIN PANCHAYATI BARAAKHARA&ANR.

appropriate hearing to the party affected by the procedure A
laid down therein, it also provides for aQ appeal to the
Board of Revenue. It is only after the area is declared as
demarcated area, s.8 will be attracted and the notification
to that effect would be issued in regard to and in respect
of such declared demarcated area to be vested in the B
State Government. Unless the land is vested in the State
Government, the provisions of s.331 of the 1950 Act would
have no application to oust the jurisdiction of the civil
court. [Para 18] [493-C-F]
3.1 The ouster of jurisdiction of a civil court is not c
readily accepted and heavy burden of proof lies on the
party who asserts that the civil court's jurisdiction is
ousted and some other court, tribunal or authority has
been vested with jurisdiction. [Para 17] [493-B]
"\ D
Abdul Waheed Khan v. Bhawani and Others AIR 1966
SC 1718; Sri Vedagiri Lakshmi Narasimha Swami Temple v.
/nduru Pattabhirami Reddi AIR 1967 SC 781; Smt. Bismillah
v. Janeshwar Prasad and Others (1990) 1 SCC 207;
Sahebgouda (Dead) by LRs. and Others v. Ogeppa and Others
(2003) 6 SCC 151 and Dwarka Prasad Agarwal (D) by LRs. v. E
Ramesh Chander Agarwal and Others (2003) 6 SCC 220 -
relied on.
3.2 No evidence has been led by the defendants on
)r
whom heavy burden lies to prove the fact that the suit F
lands were declared demarcated. The defendants have
claimed ouster of the civil court's jurisdiction only on the
basis of s.331 of the 1950 Act incorporated in the 1956
Act. The defendants having failed to prove the applicability
of that provision to the area in the suit, civil court's
G
jurisdiction cannot be said to have been ousted and
1 vested in the revenu~ court. [Paras 19-20] [493-F, H;
\I 494-A]
/
4.1 The respondents for the first time before this Court
tried to raise the question that the suit as it was filed, if H
474 SUPREME COURT REPORTS [2008] 7 S.C.R.

A not barred under the 1956 Act, is competent to be heard
by the revenue .court by virtue of the U.P. Tenancy Act,
1939 which was in force prior to the enforcement of the
1950 Act, the civil court would not have any jurisdiction
to try the suit of the plaintiff. This new plea, which does
8 not appear to be a pure question of law cannot be
permitted to be raised for the first time at the time of
hearing of the appeal in this Court. The question of
applicability of some other law was neither raised in the
written statement nor before the courts below. [Para 21]
C [494-B, C, D]
4.2 The High Court has framed only three substantial
questions of law. Neither any other question of law has
been framed by the High Court nor any other question
decided by the courts below has been put to challenge
D by framing substantial question of law in regard thereto
at the time of or before arguments before the High Court.
Thus, the finding arrived at, that the plaintiff was initiated
as the eldest chela of Mahant 'TD' according to the custom
and being the eldest chela was heir and successor in
E respect of the suit property of Mahant 'TD' and that 'BO'
did not succeed to the property of Bhupatwala (Hardwar)
has attained finality. [Para 22) [494-D, E, F]
4.3 There is nothing on record that the High Court
has exercised the powers under proviso to sub-section
F (5) of s.100, CPC. The power of the High Court to hear an
appeal on the question of law not formulated is conferred
by virtue of proviso to sub-section (5) of s.100, CPC, but
to apply the provision of proviso it is a necessary
condition that the High Court feels satisfied that the case
G involves such question on which the hearing has to given
to the parties although such substantial question of law
has not been framed and secondly the High Court records
its reasons for its satisfaction. [Para 23] [494-G; 495-A, B]
Santosh Hazari v: Purushottam Tiwari (Dead) by LRs.,
H AIR 2001 SC 965 - relied on.
I
MAHANT DOOJ DAS (DEAD) TH. LR. v. UDASIN 415
)-
PANCHAYATI BARAAKHARA&ANR.

Kshitish Chandra Purkait v. Santosh Kumar Purkait and A
Others, AIR 1997 SC 2517 and Gian Dass v.Gram Panchayat,
Village Sunner Kalan and Others, (2006) 6 SCC 271 -
referred to.

_;. 4.4 The High Court cannot deal with the issues unless
a substantial question of law is framed by it. It appears B.
that no other question than the questions of law already ·
framed by the High Court has been raised before the High
Court nor the High Court has recorded its satisfaction that
apart from the questions of law already framed any other
substantial question of law has arisen nor the plaintiff was c
put to notice that such other substantial question of law
has arisen in the case to be heard. It cannot be said that
any other substantial question of law than already framed
by the High Court has either been framed or has been left
~· ""· open by the High Court to be adjudicated at a later stage: D
No case is made out for remanding the matter to the Higli
Court to hear the same on non-existing substanti~I
question of law. [Paras 24 and 25) [496-D, E, F]
5. The civil court has rightly exercised its jurisdiction
in deciding the matter and the High Court after holding all E
the issues in favour of the plaintiff has erroneously
dismissed the suit of the plaintiff holding that it was beyond
competence of the civil court. The judgment of the High
Court so far as it holds that the civil court has no
jurisdiction and reversal of the decree passed by the F
appellate court, is therefore required to be set aside. [Para
26) [496-H, 497-A, B]
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5060 of 2007.
G
. -( From the Judgment and Order dated 23.2.2006 and
28.3.2006 of the High Court of Uttranchal at Nainital in S.A. No.

" ,J
1506/2001 and R.A. No. 26/2006 respectively.
Nagendra Rai, Ramesh Chandra and Manjula Gupta for
H
476 SUPREME COURT REPORTS [2008] 7 S.C.R.
....
A the Appellant.

Sakha Ram Singh, Ajit Kumar, Anant Vijay Palli, Rekha
Palli and Atul Sharma for the Respondents.

The Judgment of the Court was delivered by
B P.P. NAOLEKAR, J. 1. The facts necessary for •
adjudicating the question involved are that the plaintiff-appellant
(for convenience hereinafter referred to as "the plaintiff') filed a
suit claiming decree for possession over the properties/lands
[21 Bighas, 8 Biswa Kachhi Bhumi (land) No. Khasra 27M and
c 28M and Bhumi (land} 1 Big ha, 3 Biswa, 10 Biswanshi Kacchi
No. Khasra 27M and 28M and Bhumi (land) 19 Bigha, 3 Biswa,
15 Biswansi Khasra No. 4M and Bhumi (land) 30 Bigha Kacchi
No. Khasra 4M total Bhumi (land) 71 Bighas, 15 Biswa, 5
Biswansi Kacchi situated at Bhupatwala Kalan, Pargana
D Jwalapur, Distt. Saharanpur and houses and 4 boundary walls >' ~
pakka and well with wheels and brick-kiln, garden and tube·
·well with oil engine and tin shed etc. which have been situated
on the above mentioned land presently Khasra No. 4/5 (4/27)
48/6/2(28/26 and 48/28); Description of Boundary No. 1: East
E - Way, West - Road Haridwar-Risl}ikesh, North - Land of
Sohanlal Mistri, South- Na la and after that boundaries of Mahant
Sadhu Singh; Description of Boundary No. 2: East - Road
Haridwar-Rishikesh, South - Land of Shankaranand, North -
Land of Brahamchari and after that Nala, West - Forest Land)
F mentioned in the plaint after adjudging the sale deed dated
5.5.1962 registered on 19.6.1962 invalid executed by Budh
•
Dass in favour of Udasin Panchayati Bara Akhara, defendant
No.1-respondent No.1 (for convenience hereinafter referred to
as"defendant No.1") to be void and cancelling the same. The
suit was filed on the allegations that Mahant Tahal Dass was
G
Udasin of Panth of Revered Shrichand. In the said Panth there
is a custom that Mahant cannot marry and he is entitled to initiate
'"

H
a 'Che/a'. After the death of Mahant, his eldest chela Dooj Das
succeeded to all rights and interests in the properties of his
Guru. It is also a custom in the Panth that on the tenth day of the
r
MAHANT DOOJ DAS (DEAD) TH. LR. v. UDASIN 477
>. PANCHAYATI BARAAKHARA &ANR. [NAOLEKAR, J.]
""
death of Guru there is a ceremony called Dassehra. Akhand A
Path of Guru Granth Saheb is performed and Bhog is offered
and eldest chela of the deceased Guru is acknowledged as
the heir of the deceased, whereafter he is known as 'Mahant'.
Mahant Tahal Dass initiated the plaintiff-Dooj Das as his chela
on 23.7.1937 at the Dera of Bhetiwala, Tehsil Muktasar, District B
Ferozpur in accordance with the custom, in the presence of
respectable persons and from that day the plaintiff became the
chela of Mahant Tahal Dass. Mahant Tahal Dass died on
5.12.1957 and the plaintiff being the eldest chela was
recognized and acknowledged as successor of the deceased c
Mahant and thereafter was known as Mahant Dooj Dass. The
plaintiff succeeded to all rights, properties and assets of Mahant
Tahal Dass. Meanwhile, before the death of Mahant Tahal Dass,
defendants Prag Dass, lshwar Dass and Hari Dass were also

.. "" initiated as chelas by him. The plaintiff being the eldest chela,
succeeded to all the properties left by his Guru, according to
n
the custom. Mahant Tahal Dass acquired the suit properties by
permanent leases measuring 71 Bighas, 15 Biswa and 15
Biswansi Kachi situated at Bhupatwala Kalan, Pargana
Jwalapur, Tehsil Roorkee, Distt. Saharanpur within the limits of
Municipal Board, Hardwar. Mahant Tahal Dass was the E
permanent lessee of these lands and he was in occupation
thereof. He was cultivating the same through his men and
sewaks. He was paying lagan_ also. After the death of Tahal
)r Dass, the plaintiff became the permanent lessee of all the lands.
He also had right therein as being the eldest chela, heir and F
successor of Mahant Tahal Dass. Oh the occasion of Ardh
Kumbhi, the plantiff went to Hardwar for the first time on
11.4.1968 after the death of his Guru to have a dip in the holy
Ganges on the sacred day along with his sewaks and there he
learnt that one Budh Dass (since deceased) claimed himself to G
be the chela of Mahant Tahal Dass and transferred the rights
under the leases to defendant No.1 through defendant No.2/
respondent No.2 (for convenience hereinafter referred to as
T "defendant No.2") and, therefore, he obtained a certified copy
of the sale deed on 19.4.1968. Budh Dass was never initiated H
478 SUPREME COURT REPORTS [2008] 7 S.C.R.
....
•
A as chela by Mahant Tahal Dass and, therefore, he had no right,
title and interest over the suit lands. Defendants Nos. 1 and 2
did not derive any right or title in the suit properties by the sale
deed. The sale deed was in collusion with defendants Nos. 1
and 2.
B 2. Defendants Nos. 1 and 2 filed their written statement
denying the custom alleged in the plaint. As per the defendants,
the plaintiff was never initiated as the chela of Mahant Taha!
Dass. The last rites of Mahant Taha I Dass were denied to have
been performed by the plaintiff. However, the defendants
c admitted that Mahant Tahal Dass had properties at Bhittiwala,
Sheikha, Govindgarh, Karamwala, Rampura and Bhupatwala
(Hardwar). It is also admitted that Mahant Tahal Dass died in
the year 1957 and the suit property belonged to Tahal Dass on
permanent leasehold rights. It is alleged that U.P. Urban Areas
D Zamindari Abolition and Land Reforms Act, 1956 is applicable ....
to the suit lands and under the Act, proceedings in respect of
the lands cannot be initiated in civil court and as such civil court
has no jurisdiction to try the suit. It is further pleaded that the
defendants had purchased the suit properties bonafide for a
E consideration of Rs.32,000/- from Budh Dass, who died three
years before the institution of the suit. In the written statement, it
was alleged that Budh Dass, the transferor who was the chela
of Taha! Dass, succeeded to the properties situated at
Bhupatwala, Hardwar after the death of his Guru Mahan! Tahal
F Dass.
3. Defendant No.6 Hari Dass also contested the suit by
filing a separate written statement claiming therein the right, title
and interest in the suit property but lost in the trial court, in the
first appeal and Second Appeal No. 2713 of 1977 filed by him
G was withdrawn. Thus, in the present proceedings he is not the
contesting party.
4. The trial court decreed the suit of the plaintiff holding
that the plaintiff was initiated as the eldest chela of Mahan! Taha!
Dass according to the custom and the plaintiff became the heir
,-
H
MAHANT DOOJ DAS (DEAD) TH. LR. v. UDASIN 479
:.. }. PANCHAYATI BARAAKHARA & ANR. [NAOLEKAR, J.]

and successor in respect of the properties of Mahant Taha I Dass. A
Budh Dass, the transferor of property to defendants Nos. 1 and
2 did not succeed to the property at Bhupatwala at Hardwar
owned by Mahant Tahal Dass. As per the trial court's finding,
there never existed any person by the name Budh Dass nor
,..!
had he ever succeeded to the rights and interests of Mahant B
Tahal Dass, whatsoever to the suit properties; hence, Budh Dass
was incompetent to execute the sale deed dated 5.5.1962 in
favour of defendants Nos. 1 and 2. It also appeared to the trial
court that the disputed sale deed dated 5.5.1962 was completely
a forged and fictitious document. Consequently, the trial court c
set aside and cancelled the sale deed dated 5.5.1962 executed
by Budh Dass in favour of defendants Nos. 1 and 2 and decreed
the suit. As regards jurisdiction of the civil court to try the suit

~ .. and the valuation put by the plaintiff, it was held, while trying
them as preliminary issue on 13.10.1969, that the civil court
had jurisdiction to try the suit.
D

5. Aggrieved by the judgment and decree of the trial court,
defendants Nos. 1, 2 and 6 filed appeals numbered as
C.A.No.117 of 1976 titled Hari Dass vs. Mahant Dwaj Dass &
Ors. and C.A. No.118 of 1976 titled Udaseen Panchayati Bara E
Akhara & Anr. vs. Mahant Dwaj Dass and Others. The first
appellate court held that plaintiff was the eldest chela of Mahant
Tahal Dass and was duly installed as successor of the Mahant
~ and he succeeded to the properties of his Guru. Evidence on
record did not establish the identity of any Budh Dass to be the F
chela of Mahant Tahal Dass and, therefore, he did not succeed
to the suit properties. As regards the question of jurisdiction of
civil court, the first appellate court held that the suit property is
situated within the municipal limits of Hardwar recorded as
Bhumidari land but the land in question was acquired for the
G
-{
purposes of erecting buildings. The lessee in fact created a
dera on the spot by erecting buildings, installing tube-wells etc.
Section 143ofthe U.P. Land ReformsAct, 1950, was, therefore,
attracted. The court further held that the cause of action for the
purposes of jurisdiction depends on the facts and cirCl!IMstances
H
480 SUPREME COURT REPORTS [2008] 7 S. C.R.

A of each case. The real controversy in the suit is right to the office
of Mahantship. Cancellation of the sale deed is also directly
involved. Determination of the question of relinquishing the office
of Mahantship is also involved. All these matters in controversy
can only be decided by a competent civil court and, therefore,
B lower court has rightly upheld the jurisdiction of the civil court to
try the suit. Consequently, C.A. Nos. 117/1976 and 118/1976
were dismissed aoo judgment and decree of the trial court was
confirmed.

6. Defendants Nos. 1 and 2 preferred a second appeal
c before the High Court under Section 100 of the Code of Civil
Procedure challenging the judgment and decree of the first
appellate court. On 12.11.2002, the High Court admitted the
appeal and the following three substantial questions of law were
framed:
j_.
"(1) Whethe1 after enforcement of the U.P. Urban Area.:, "" >

Zamindari Abolition and Land Reforms Act, 1956, the land
in suit, stood vested with the State of U.P. by operation of
law free from all encumbrances and stood settled with the
;...
Appellants (Defendant No.1 and 2) exclusively? If so,
'-
whether the suit was barred by Section 331 of the U.P.
Zamindari Abolition and Land Reforms Act, 1950?
(2) Whether the suit was barred by law of limitation and
whether the plea of limitation can be raised at the stage
i
F of second appeal in a situation when neither it was pressed
before the Trial Court nor before the First Appellate Court?
(3) Whether the State of U.P. and the Gaon Sabha/Gaon
Panchayat, were the necessary parties? If so, was the suit
liable to be dismissed for non-joinder of necessary
(_.J parties?
On an application being filed by defendants Nos. 1 and
2, the following order was passed by the High Court on
25.7.2005:

H "Heard learned counsel for the parties.
MAHANT DOOJ DAS (DEAD) TH. LR. v. UDASIN 481
PANCHAYATI BARAAKHARA &ANR. [NAOLEKAR, J.]

Learned counsel for the appellanUdefendant, drew the A
attention of this Court to the application No.2741 of 2005,
suggesting few more questions of law.

Already this Court has formulated the substantial question
of law on 12.11.2002, with the observations that the appellant
does not press other applications and rejected the same. 8
However, now few more questions have been suggested. Since
this is an old appeal, which was instituted in the year 1977, it is
not just and proper to keep on framing the substantial questions
of law, each day, after hearing. In view of the sub-section (5) of
Section 100 of the Code of Civil Procedure, 1908, if any C
substantial question of law is found left out, this Court has ample
power to hearthe parties on such questions and to answer them.
Therefore, this Court feels that instead of framing new questions
of law, it is better to proceed with the hearing of this old appeal

....
and if any of the question of law is found left, the same would be D
answered by the Court, after hearing the parties. Learned
counsel for the parties agreed that this appeal may be listed on
29th August, 2005 for final hearing, as both of them are coming
from Allahabad.

List this appeal for final hearing on 29th August, 2005." E

The High Court by its impugned order dated 23.2.2006
answering the first substantial question of law has held that by
virtue of the expression "which have been so demarcated under
Section 5 of the aforesaid Act" (i.e. U.P. Urban Areas Zamindari i:
Abolition and Land Reforms Act, 1956) (hereinafter referred to
as "the 1956 Act"), contained in the notification, indicates that
the demarcation was made hefore the notification under Section
8 of the 1956 Act was issued; that the land in question stood
vested in the State of U. P. w.e.f. 1. 7 .1963; that the suit being (::,
basically for declaration of the title and the cancellation of the
sale deed in respect of the agricultural area under the 1956 Act
is an ancillary relief and the real question between the parties is
of title in respecl of agricultural area covered under the 1956
Act; and that in view of the provisions of Section 82 of the 1956 H
482 SUPREME COURT REPORTS [2008] 7 S.C.R.

A Act read with Section 331 of the U.P. Zamindari Abolition and A.. '-
Land Reforms Act, 1950 (hereinafter referred to as "the 1950
Act"), the suit before the civil court between the parties is barred
by law. Thus, the High Court has held that the suit as it is filed by
the plaintiff was not maintainable before the civil court. As regards
B question No.2, the High Court has held that the suit filed in the
civil court is within limitation but the suit before the revenue court
would be barred by limitation. Question No. 3 was decided in ..
favour of the plaintiff holding that the question of non-joinder of
the parties stands waived by the defendants. The High Court
c neither framed the question of law regarding right, title or interest
in the suit property nor has disturbed the findings of courts below
on that issue. The High Court on the basis of the decision of the
first question of law has allowed the appeal and set aside the
judQment and decree passed by the courts below. The plaintiff
is, therefore, before us in this appeal.
D
7. It is submitted by Shri Nagendra Rai, learned senior
counsel appearing for the plaintiff (appellant herein) that the High
Court has committed an error in holding that the land in question
. :_

stood vested under the 1956 Act in the State and as such
E provisions of the 1956 Act are attracted and consequently the
suit is required to be filed in the revenue court under Section
331 of the 1950 Act and not in civil court, which does not have
jurisdiction to try the suit.
8. It is further contended by Shri Rai that the relief claimed
F by the plaintiff was a decree for possession over the suit lands
after adjudging the sale deed dated 05.05.1962 registered on i
19.06.1962 executed by Budh Dass in favour of Udasin
Panchayati Bara Akhara illegal and canceling the same. The
overall reading of the plaint indicates that the main relief claimed
G is of cancellation of the sale deed and ancillary relief is delivery
of possession of the suit properties. As the effect of the sale
deed had had to be got rid of by an appropriate adjudication,
as a transaction could not be said to be void in law which is not r
required to be set aside, the suit, as it was filed, was cognizable
H by the civil court and not by the revenue court. The counsel urged
MAHANT DOOJ DAS (DEAD) TH. LR. v. UDASIN 483
PANCHAYATI BARAAKHARA & ANR. [NAOLEKAR, J.]

> that under Section 331 (1-A) of the 1950 Act, which was A
incorporated in the 1956 Act, the objection to the jurisdiction of
civil courts with respect to the suit shall be entertained by the
court, only, if the objection was taken in the court of first instance
at the earliest possible opportunity and in all cases where the
/ issues are settled at or before such settlement. It is further B
required to be alleged and proved that entertainment of the suit
• results in consequential failure of justice. Thus merely because
the objection has been taken to the jurisdiction of the civil court
at the first instance unless a case of failure of justice is made
out and findings recorded by the court to that effect, civil court's c
jurisdiction could not be ousted in regard to the cause of action
triable by the revenue court. The High Court has not arrived at
any finding in regard to the consequential failure of justice and
thus could not have dismissed the suit of the plaintiff on the
ground that the civil court had no jurisdiction.

-
D
9. To counter, Shri Sakha Ram Singh, learned senior
" counsel for the respondents submits that the land in question
was a tenancy land and, therefore, shall be deemed to have
been acquired under the 1956 Act by the State, and the
provisions of the 1956 Act would be attracted. Therefore, there E
is no illegality or infirmity in the judgment of the High Court
holding that the jurisdiction of the civil court is barred.
10. It is further submitted that by virtue of Section 82 of the
1956 Act, the provision of Section 331 (un-amended) has been
inserted in the 1956 Act whereas Section 331(1-A) has been F
amended in the 1950Act by insertion by U.P. Act No.4of1969
on 1.9.1969. The suit was filed on 03.07.1968. It is a settled
principle of law that when certain provisions from an existing
Act have been incorporated into a subsequent Act, no addition
to the former Act, which is not expressly made applicable to the G
subsequent Act, can be deemed to be incorporated in it. Section
331 of the 1950 Act has been inserted in the 1956 Act by
adoption, the provision as it stood at the time of insertion by
adoption would be a provision applicable in the 1956 Act and
not the amended provision of the original Act, namely, Section H
484 SUPREME COURT REPORTS [2008] 7 S.C.R

I\ 331(1-A), which was inserted in the original Act of 1950 on a
later date and, therefore, there was no necessity to prove on
the part of the defendants that there was a consequential failure
of justice caused by not filing a suit in the appropriate forum.
That apart, the suit would be barred by limitation in the revenue
R court but would be maintainable in the civil court, would itself IS
a proof of failure of justice. If the suit is permitted to be continued
in the civil court which would be within limitation, the defendantc;'
right to raise defence of suit before revenue court is beyon1
limitation would be lost. It is also submitted by the learned counsel
r, that if the 1956 Act has no application to the suit lands, the cause
of action in respect of the land would be governed under the
U.P. Tenancy Act, 1939 and on its application the suit would
have been maintainable before the revenue court and not before
the civil court. It is urged by the learned counsel that in any case
:)
the case requires to be remanded to the High Court for
adjudicating other questions which arise from the judgment c>f
first appellate court. The High Court having expressed that in
view of sub-section (5) of Section 100 of the Code of Civil
Procedure, 1908, if any substantial question of law is found left
;;::
out, the court has ample power to hear the parties on suet;
questions and answer them.

11. The first and the material issue which is required to be
considered by this Court is whether the land in suit would be
covered and governed under the 1956 Act so as to apply the
provisions of Section 331 of the 1950 Act to oust the jurisdiction
,)f the civil court. The decision of this issue wou Id decide whethPr
this Court is required to go into the other qw~c;tions rC1i!>~rl h·
•ho rariiPS in this appeal.
12. The Uttar Pradesh Urban Areas Zamindari Abolition
.., and Land Reforms Act, 1956 received the assent of the President
on 7.3.1957 and was published in the U.P. Gazette Extraordinary
dated 12.3.1957. The Act was brought into force to provide fo1
the abolition of Zamindari system in agricultural areas situa•ed
in urban areas of U.P. and for acquisition of the rights, title and
H interest of the intermediaries between the tiller of the soil anu
MAHANT DOOJ DAS (DEAD) TH. LR. v. U.DASIN 485
PANCHAYATI BARAAKHARA & ANR. [NAOLEKAR, J.]

f
). the State in such areas and for introduction of the land reforms A
therein. Section 2(1) defines 'agricultural area' which reads as
under:-
"agricultural area" as respects any urban area means an
area which, with reference to such date as the State
Government may notify. in that behalf, is - B
,.I. (a) in the possession of or held or deemed to be held by
an intermediary as sir, khudkasht or an intermediary's
grove;
(b) held as a grove by or in the personal cultivation of a c
permanent lessee in Avadh; or
(c) included in the holding of -
(i) a fixed-rate tenant,
D
(ii) an ex~proprietary tenant,
..
w -- (iii) an occupancy tenant,
. (iv) a tenant holding on special terms in Avadh,
(v) a rent-free grantee, E
(vi) a grantee at a favourable rate of rent,
(vii) a hereditary tenant,
(viii) a grove-holder,
F
r (ix) a sub-tenant referred to in sub-section (4) of
.
Section 47 of the U.P. Tenancy Act, 1938; or
(x) a non-occupancy tenant of land other than land
referred to in sub-section (3) of Section 30 of
the U.P. Tenancy Act, 1939, G
~

and is used by the holder thereof for purposes of agriculture ·1::j;
·.( or horticulture;
Provided always that land which on the date aforesaid is
occupied by buildings not being "improvements" as defined H
486 SUPREME COURT REPORTS [2008] 7 S.C.R.

A in Section 3 of the U. P. Tenancy Act, 1939, and land
appurtenant to such buildings shall not be deemed to be
agricultural area.
(d) held on lease duly executed before the first day of
July, 1955 for the purposes of erecting buildings
B thereon; or
(e) held or occupied by an occupier.
"Explanation - An area, being part of the holding of a
tenant shall not be deemed to have ceased to be
C agricultural area by reason merely that it has not been
used, during the seven years preceding the
commencement of this Act, for raising crops or other
agricultural produce."
D Chapter II provides for demarcation of agricultural areas.
The relevant provisions of Chapter II read as under:-
"3. Power to order demarcation of agricultural areas
-(1) The State Government may, with a view to acquisition
under the provisions of this Act of the rights, title and interest
E of intermediaries in urban areas, direct by notification in
the official Gazette, that the agricultural area situated in
any such area be demarcated.
(2) As soon as may after the publication of the notification
under sub-section (1 ), the Demarcation Officer shall make
F enquiries in the prescribed manner, and shall determine
and demarcate agricultural areas within the urban areas.
4. Publication of preliminary proposals and
objections thereon - (1) The Demarcation Officer shall,
within three months or such extended period as the State
G
Government may in any case fix; of the date of the
notification under sub-section (1) of Section 3, submit his
proposals with reasons therefor to the Commissioner who
may make such modifications therein as he may consider
necessary.
H
MAHANT DOOJ DAS (DEAD) TH. LR. v. UDASIN 487
PANCHAYATI BARAAKHARA&ANR. [NAOLEKAR, J.]
_, >
(2) After the Commissioner has considered the said A
proposals he shall publish a notice in the prescribed form
in the Gazette and in such other manner as may be
prescribed to the effect that the proposals as regards the
demarcation of agricultural areas have been formulated
and are open to inspection at the places to be specified B
j in the said notice.
(3) Any person or local authority interested may within
three months of the date of publication of the notice under
sub-section (2), file an objection on the proposals before
such officer or authority and in such manner as may be c
prescribed.
5. Final demarcation - (1) After the expiry of the period
of three months mentioned in sub-section (3) of Section 4,
the Commissioner shall proceed to decide the objections
D
in the manner prescribed and then finally demarcate the
p ~
agricultural area.
(2) After the Commissioner has finally demarcated the
agricultural area under sub-section (1 ), he shall publish a
notice in the Gazette and in such other manner as may be E
prescribed to the effect that the agricultural areas have
been finally demarcated and their details are open to
inspection at places to be specified in that notice.
(3) An appeal shall lie to the Board against the orders
,. passed by the Commissioner under sub-section (1)." F
-.(

13. Chapter Ill provides for acquisition of the interests of
intermediaries and its consequences. Section 8 under this
Chapter reads as under:
"8. Vesting of agricultural area in the State.- After the G
agricultural area has been demarcated under Section 5,
., the State Government may, at any time, by notification in
the official Gazette, declare that as from a date to be
specified all such areas situate in the urban area shall
vest in the State and, as from the beginning of the date so H
488 SUPREME COURT REPORTS [2008) 7 S.C.R.

A specified all such agricultural areas shall stand transferred
to and vest except as hereinafter provided, in the State
free from all encumbrances."
By a notification issued under Section 8 by Rajaswa
Vibhag dated 20.06.1963, the agricultural area in Haridwar
B demarcated under Section 5 has been vested with the State
Government. The relevant portion of the notification issued reads
as under:-
Rajaswa Vibhag Notification No. 265311-A-168-60, dated
c ·June 20, 1963, published in UP Gazette, Part 1, dated June
,. 29, 1963, p.1217.
In exercise of the powers under Section 8 of the U.P. Urban
Areas Zamindari Abolition and Land Reforms Act, 1956 (U.P.
Act No. IX of 1957), the Governor of Uttar Pradesh is pleased
D to declare that as from the first day of July, 1963, all agricultural
areas in the following urban areas of the State, which have been ~ <o
so demarcated under Section 5 of the aforesaid Act, shall vest
in the State of Uttar Pradesh, and as from the beginning of that
date, all such agricultural areas shall stand transferred to, and
E vest, except as provided in the said Act, in the State free from
all encumbrances :

Serial No. Name of Urban Area District

Meerut Division
F
1. Rishikesh Municipality .. Dehra Dun
2. Hardwar Union .. Do .. Saharanpur
3. Deoband .. Do .. Do
G 14. By virtue of Section 8 after the agricultural area has
been demarcated under Section 5, the State government would
issue a notification in the official gazette declaring that from ..
specified date all demarcated area situated in the urban area
shall vest with the State Government and from the date so
H specified all such agricultural area shall be transferred to and
MAHANT DOOJ DAS (DEAD) TH. LR. v. UDASIN 489
PANCHAYATI BARAAKHARA &ANR. [NAOLEKAR, J.]

vest except otherwise provided, in the State free from all A
· encumbrances. The purport of Section 8 is very clear that the
agricultural land falling in the urban area has to be demarcated
under Section 5 and thereafter the notification shall be issued
. by the State Government in regard to the demarcated area in
, the urban area to have been vested in the State. Sections 3 to 5 B
lay down the procedure for demarcation of the area for the
. purposes of acquisition of right, title and interest of intermediaries
in urban areas of the agricultural area. Under Section 3, the
State Government shall issue a notification in the official gazette
for the purposes of acquisition of right, title and interest of c
· intermediaries in urban areas and declare such area as
demarcated area. After the publication of the notification under
sub-section (1) the Demarcation Officer shall make inquiries in
the prescribed manner and thereafter shall determine and
. demarcate the agricultural area within the urban area. After this, D
under Section 4, the Demarcation Officer would within three
months or such extended period as may be extended by the
State Government, from the date of notification issued under
sub-section (1) of Section 3, submit his proposal with a reason
thereof to the Commissioner, the Commissioner may make such
modifications in the demarcated area as he may consider E
necessary~ After the proposal is finalized by the Commissioner
he shall publish a notice in the prescribed form in the gazette
and in such other manner as may be prescribed, to the effect
that the proposals as regards demarcation of the agricultural
· areas have been formulated and are open to inspection at the F
·place which would be specified in the published notice.
Thereafter, any person interested in such demarcation may
within three months of the publication of the notice under section
sub-section (4) of Section 2 could file an objection on the
proposal before such officer or authority in a manner provided . G
therein. Section 5 lays down that after the expiry of the period of
three months of publication of notice the Commissioner shall •·
decide the objections received and thereafter shall finally
demarcate the agricultural area. Sub-section (2) of Section 5
lays down that after determination of the objections finally, H
490 SUPREME COURT REPORTS [2008] 7 S.C.R.

A demarcated agricultural area shall be published by notice in
. ...
the gazette or in such other manner as may be prescribed to
the effect that final demarcation of the agricultural area in the
urban area is made and the details thereof are open to
inspection at places specified in the notice. On such notice being
B issued, sub-section (3) of Section 5 provides for an appeal to
the Board of Revenue against the order passed by the
Commissioner prescribing finally demarcated agricultural area.
Section 8 lays down that after the agricultural area in the urban
area has been demarcated under Section 5 the State
c Government shall notify it in the Official Gazette that such area
is vested in the State from the date specified therein and all
such agricultural areas shall stand transferred and vested in the
State government free from encumbrances. From the aforesaid
provision, it is amply clear that elaborate procedure has been
laid down before the agricultural area in the urban area is
D
declared to be a demarcated area for the purpose of vesting in >
;.
the State free from encumbrances. Section 3 provides for a
notice to the general public that a particular agricultural area in
the urban area is being picked up for declaring that area to be
demarcated area for the purposes of all right, title and interest
E of intermediary to be vested with the State Government free ~
from all encumbrances. After such notification the Demarcation
Officer has to apply his mind, make inquiries whether a particular
area is to be declared as a demarcated area and thereafter
submit his proposal for the purposes of declaration of
F demarcated area before the Commissioner. The Commissioner
is authorized to make a modification in the proposal and
thereafter is called upon to publish a notice in the gazette or in
any other manner as prescribed, that the proposal as regards
demarcation of the agricultural area is formulated and are open
G to inspection. This apparently is a tentative proposal which is
subject to the objection by any person or local authority. If any
objection has been received within three months the
Commissioner is called upon to decide those objections and
thereafter pass a final order in regard to proposed demarcated
H area. Once the objections are decided and the Commissioner
MAHAN! DOOJ DAS (DEAD) TH. LR. v. UDASIN 491
,I.
PANCHAYATI BARAAKHARA &ANR. [NAOLEKAR, J.]

has arrived at the finding that a particular agricultural area in the A
urban area is to be declared as a demarcated area he shall
publish a notice in the gazette showing the demarcated area
which has been finally decided to be a·demarcated area for the
place. Sub-section (3) of Section 5 thereafter provides for an
appeal from the order of the Commissioner. The agricultural · B
area was only to be declared to be vested in the,S,tji!te
Government free from all encumbrances under Section 8 only ·
after such an agricultural area has been finally declared to be
demarcated area.
15. In the present case, there is no evidence led by the c
defendants that the suit land had been declared as a
demarcated area and the suit area being declared to be such
has vested with the State government under Section 8 of the
1956 Act. The notification issued under Section 8 says that in
exercis~ of powers of Section 8 of the 1956 Act, the Governor D
of U.P. declares that from 01.07.1963 all agricultural areas in
the following urban areas (which admittedly falls within the
Hardwar Union, District Saharanpur) of the then State of U.P.
which has been demarcated under Section 5 of the Act shall
stand vested with the State of U. P. and as from that day onwards E
·t. all such agricultural areas shall stand transferred to, and vested,
except as provided in the 1956 Act, in the State free from all
encumbrances. It is clear from this notification under Section 8
that the land which has been demarcated under Section 5 in
. the Hardwar Union shall be vested in the State free from all F
encumbrances. Unless and until it is shown that the land in suit
has been declared as a demarcated area or falls within the
demarcated area, exercising the powers under Section 5, it
cannot be said that it has been vested in the State by virtue of
notification issued under Section 8 on 20.6.1963. By 20.6.1963
G
notification, it is only the demarcated area under Section 5 which
has been vested in the State. That does not necessarily means
that the suit lands have been vested tii'the State In the absence
of proof, it cannot be said that the suit area is a demarcated
area and thus vested in the State by issuance of the notification
H
492 SUPREME COURT REPORTS [2008) 7 S. C.R.

A under Section 8 of the Act.
16. In Abdul Waheed Khan v. Bhawani and Others, AIR
1966 SC 1718, it was held that it is settled principle that it is for
the party who seeks t<;> oust the jurisdiction of a civil court to
establish his contention and it is also equally well settled that a
B statute ousting the jurisdiction of a civil court must be strictly
constructed.

In Sri Vedagiri Lakshmi Narasimha Swami Temple v.
lnduru Pattabhirami Reddi, AIR 1967 SC 781, this Court held
c that under Section 9 of the Code of Civil Procedure, the courts
shall have jurisdiction to try all suits of civil nature excepting suits
of which there is a bar expressly or impliedly provided. It is well
settled principle that a party seeking to oust jurisdiction of an
ordinary civil court shall establish the right to do so.
D In Smt. Bismil/ah v. Janeshwar Prasad and Others,
(1990) 1 SCC 207, this Court has reiterated the principle laid
down and said that it is settled law that exclusion of the jurisdiction
of the civil court is not to be readily inferred, but that such exclusion
must either be explicitly expressed or clearly implied. The
E provisions of law which seek to oust the jurisdiction of civil court
need to be strictly construed.
In Sahebgouda (Dead) by LRs. and Others v. Ogeppa
and Others, (2003) 6 SCC 151, this Court has held that it is
well settled that a provision of law ousting the jurisdiction of a
F civil court must be strictly construed and onus lies on the party
seeking to oust the jurisdiction to establish his right to do so.
In Dwarka Prasad Agarwal (DJ by LRs. v. Ramesh
Chander Agarwal and Others, (2003) 6 SCC 220, a 3-Judge
G Bench has held that Section 9 of the Code of Civil Procedure
confers jurisdiction upon the civil courts to determine all disputes
of civil nature unless the same is 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
"'H bar jurisdiction of a civil court requires strict interpretation. The
MAHANT DOOJ DAS (DEAD) TH. LR. v. UDASIN 493
.,, .4
PANCHAYATI BARAAKHARA &ANR. [NAOLEKAR, J.]

court, it is well settled, would normally lean in favour of A
construction, which would uphold retention of jurisdiction of the
civil cour(The burden of proof in this behalf.shall be on the party
who asserts that the civil court's jurisdiction is ousted.
17. Thus, from the aforesaid decisions, it is now well
established principle of law that the ouster of jurisdiction of a ~
civil court is not readily accepted and heavy burden of proof lies
on the party who asserts that the civil court's jurisdiction is ousted
and some other court, tribunal or authority has been vested wi,th
jurisdiction.
c
18. For application of the provisions of Section 331 of the
1950 Act which has been incorporated in the 1956 Act, it was
necessary for the defendants to prove that the suit lands had
been demarcated by the State Government by taking necessary
steps as contemplated under Sections 3, 4 and 5 of the 1956
D
-~. Act. Sections 3, 4 and 5, as already held by us, provide a ·
complete code for demarcation of the agricultural area after
giving appropriate h~aring to the party affected by following the
procedure laid down therein, it also provides for an appeal to
the Board of Revenue. It is only after the area is declared as
demarcated area, Section 8 will be attracted and the notification E
to that effect would be issued in regard to and in respect of
such declared demarcated. area to be vested in the State
Government. Unless the land is vested in the State Government,
y the provisions of Section 331 of the 1956 Act would have no
application to oust the jurisdiction of the civil court. F
19. In the present case, no evidence has been led by the
defendants on whom heavy burden lies to prove the fact that the
suit lands were declared demarcated. Notification under Section
8 which itself says that the demarcated area has been vested
G
in the State Government, would not be given a meaning as if the
suit lands had also been demarcated and thus stood vested in
the State Government by virtue of the notification issued under
Section 8 of the 1956 Act.
20. The defendants have claimed ouster of the civil court's H
494 SUPREME COURT REPORTS [2008] 7 S.C.R.
.....
•
A jurisdiction only on the basis of Section 331 of the 1950 Act
incorporated in the 1956 Act. The defendants having failed to
prove the applicability of that provision to the area in the suit,
civil court's jurisdiction cannot be said to have been ousted and
vested in the revenue court.
B 21. The learned senior counsel forthe respondents forthe
first time before this Court tried to raise the question that the
suit as it was filed, if not barred under the 1956 Act, is competent
to be heard by the revenue court by virtue of the U.P. Tenancy
Act, 1939 which was in force prior to the enforcement of the
c 1950 Act, the civil court would not have any jurisdiction to try the
suit of the plaintiff. We cannot permit this new plea, which does
not appear to be a pure question of law to be raised for the first
time at the time of hearing of the appeal in this Court. The
question of applicability of some other law was neither raised
D in the written statement nor before the courts below.
22. The High Court has framed only three substantial
questions of law. Neither any other question of law has been
framed by the High Court nor any other question decided by the
courts below has been put to challenge by framing substantial
E question of law in regard thereto at the time of or before
arguments before the High Court. Thus, the finding arrived at,
that the plaintiff was initiated as the eldest chela of Mahant Tahal
Dass according to the custom and being the eldest che/a was
heir and successor in respect of the suit property of Mahant ...
F Tahal Dass and that Budh Dass did not succeed to the property
of Bhupatwala (Hardwar) has attained finality.
23. It is contended by the learned senior counsel for the
respondents herein that since the High Court has left open the
consideration of substantial questions of law in exercise of the
G
powers under sub-section (5) of Section 100 of the Code of
Civil Procedure (CPC) and, therefore, the matter requires
remand, cannot be countenanced with. There is nothing on
record that the High Court has exercised the powers under
proviso to sub-section (5) of Section 100, CPC. The power of
H
MAHANT DOOJ DAS (DEAD) TH. LR. v. UDASIN 495
PANCHAYATI BARAAKHARA &ANR. [NAOLEKAR, J.]

the High Court to hear an appeal on the question of law not A
formulated is conferred by virtue of proviso to sub-section (5) of
Section 100, CPC, but to apply the provision of proviso it is a
necessary condition to be satisfied that the High Court feels
satisfied that the case involves such question on which the
hearing has to given to the parties although such substantial B
question of law has not been framed and secondly the High
Court records its reasons for its satisfaction. [See Santosh
Hazari v. Purushottam Tiwari (Dead) by LRs., AIR 2001 SC
965]. Under the proviso to Section 100(5), CPC, it is a necessary
condition that the court is satisfied that the case involves a C
substantial question of law and not merely a question of law,
and the Court must record the reason permitting the substantial
question of law to be raised.

In Kshitish Chandra Purkait v. Santosh Kumar Purkait
and Others, AIR 1997 SC 2517, this Court held in para 7 as D
under:
" ... We would only add that (a) it is the duty cast upon the
High Court to formulate the substantial question of law
involved in the case even at the initial stage; and (b) that
in (exceptional) cases, at a later point of time, when the E
Court exercises its jurisdiction under the proviso to sub-
section (5) of Section 100, C.P.C. in formulating the
substantial question of law, the opposite party should be
put on notice thereon and should be given a fair or proper
opportunity to meet the point. Proceeding to hear the F
appeal without formulating the substantial question of law
involved in the appeal is illegal and is an abnegation or
abdication of the duty cast on Court; and even after the
formulation of the substantial question of law, if a fair or
proper opportunity is not afforded to the opposite side, it G
will amount to denial of natural justice. The above
parameters within which the High Court has to exercise
its jurisdiction under Section 100, C.P.C. should always
be borne in mind .... "
H
496 SUPREME COURT REPORTS [2008) 7 S.C.R.

A In Gian Dass v. Gram Panchayat, Village Sunner Kalan
and Others, (2006) 6 SCC 271, this Court in para 13 has held
as under:
"... The proviso is applicable only when any substantial
question of law has already been formulated and it
B empowers the High Court to hear, for reasons to be
recorded, the appeal on any other substantial question of
law. The expression "on any other substantial question of
law" clearly shows that there must be some substantial
question of law already formulated and then only another
c substantial question of law which was not formulated earlier
can be taken up by the High Court for reasons to be
recorded, if it is of the view that the case involves such
question."
24. From the aforesaid decisions of this Court, it is
0
apparent that the High Court cannot deal with the issues unless
a substantial question of law is framed by it. It appears that no
other question than the questions of law already framed by the
High Court has been raised before the High Court nor the High
. E Court has recorded its satisfaction that apart from the q\Jestions
of law already framed any other substantial question of law has
arisen nor the plaintiff was put to notice that such other
substantial question of law has arisen in the case to be heard.
25. From the aforesaid, it cannot be said that any other
F substantial question of law than already framed by the High Court
has either been framed or has been left open by the High Court
to be adjudicated at a later stage. No case is made out for
remanding the matter to the High Court to hear the same on
non-existing substantial question of law. As we have already
G held that the defendants on whom the burden lies to prove the
ouster of the civil court has failed to discharge its burden and
applicability of the 1956 Act to the suit lands has not been
proved, no other questions argued by the parties are required
to.be decided by us,
H 26. For the aforesaid reasons, we hold that the civil court
MAHANT DOOJ DAS (DEAD) TH. LR. v. UDASIN 497
PANCHAYATI BARAAKHARA&ANR. [NAOLEKAR, J.]

has rightly exercised its jurisdiction in deciding the matter and A
the High Court after holding all the issues in favour of the plaintiff
has erroneously dismissed the suit of the plaintiff holding that it
was beyond competence of the civil court. The judgment of the
High Court so far as it holds that the civil court has no jurisdiction
and reversal of the decree passed by the appellate court, is B
therefore required to be set aside. Accordingly, the High Court's
judgment is set aside and the decree passed by the first
appellate court is confirmed. The appeal is allowed with costs
quantified at Rs.10,000/-.
D.G. Appeal allowed. C