Devi Prasad Singh, J. - (1.) THE controvery relates to plot No. 5378 measuring 12 biswa and 10 biswansis situated in city and district Unnao. Petitioners' father Sri Kabirul Hasan Zaidi had filed a suit for ejectment against the defendants No. 2 and 3 under Section 209 of the U.P.Z.A. and L. R. Act, on the ground that he is the recorded tenure holder possessing the bhoomidhari rights. THE claims of opposite parties No. 2 and 3 was based on the adverse possession. During the course of trial, the plaintiffs-petitioners had filed the extract of the khatauni of 1375 & 1376 faslis as well as the decree of the District Judge, Unnao to show that they were having the co-tenancy rights over the land in question. THE names of the plaintiffs were recorded in Column I of the khatauni to indicate that they were acquiring the bhoomidhari rights. On the other hand, the case of the defendants was that the they are in possession of the land in question since 30-35 years, hence, on account of adverse possession, they have acquired the sirdari rights. However, from the evidence on records, it appears that there is no material on record which may indicate that the names of the defendants were recorded in Clause 9 in accordance to the provisions contained in Land Record Manual. Learned trial court had decreed the suit with the finding that the plaintiffs-petitioners are the bhoomidhars of the land in question. It was also pleaded by the defendants that there are two graveyards over the land in question, hence, ejectment of the suit under Section 209 of the U.P.Z.A. and L. R. Act shall not be maintainable. THE Assistant Collector, First Class, Unnao by the judgment and order dated 29th of March, 1978 (Annexure-1) has recorded a finding that though the defendants claim that they are in possession of the land in question since 30-35 years but in the absence of any entry in the khasra or khatauni, they cannot be given the benefit of the adverse possession. It has also been held by the learned trial court that mere existence of two graveyards on the portion of land in question and it shall not change the nature of land and the suit was maintainable. It has been further held by the learned trial court that since the name of petitioners' father was recorded as bhoomi?har in the land in question of the khatauni of certain years, they are the recorded tenure holders and the suit for ejectment was maintainable against the defendants. It has been further held by the learned trial court that in view of law settled by this Court in a case in Anis Ahmad v. State of U. P. and others, 1965 ALJ 502, the existence of two graveyards on a small portion of land in question shall not change the nature of land and it shall remain an agricultural land. Accordingly, the suit shall very well be maintainable. Learned trial court had decreed the suit and passed an order for ejectment.
(2.) FEELING aggrieved with the judgment and order and the decree of the trial court, the private respondents had filed an appeal which was dismissed by the judgment and order dated 29.11.1980 (Annexure-2). The Ist appellate court has also recorded a finding that in view of the entries recorded in 1375 and 1377 faslis as well as keeping in view the report submitted by the Advocate Commissioner that the land in question is an agricultural land and since petitioners have been recorded as co-tenants, the suit was very well maintainable. The finding recorded by the trial court was affirmed by the Ist appellate court. Learned Ist appellate court has relied upon a case in Ballabh Das and another v. Nur Mohammad and another, AIR 1936 PC 83 and held that mere existence of two graveyards over a portion of land in question shall not change the nature of land. Feeling aggrieved with the findings recorded by the two courts below, the private respondents have preferred a second appeal. The second appeal preferred by the private respondents was allowed on the ground that since the land in question has been used for the purposes of graveyard, it amounts to change of nature of land and it cannot be treated as an agricultural land. It has been held by the IInd appellate court that the land has not been used for agricultural, horticulture or for animal husbandry purposes and no declaration has been made in accordance to the provisions contained in Section 143 and Section 144 of the U.P.Z.A. and L.R. Act. The trial court should have framed issues relating to the nature of land. Learned IInd appellate court has further recorded a finding that since the land in question has been used for graveyard, it shall amount to change of nature of land and the provisions contained in Section 331A of the U.P.Z.A. and L.R. Act shall be attracted. Though the finding of facts recorded by the two courts below that mere existence of two graveyards shall not change the nature of land has not been reversed, but even then, the Board of Revenue has reversed the finding relying upon the provisions contained in Section 331A of the U.P.Z.A. and L. R. Act. Learned counsel for the petitioners while assailing the impugned orders passed by the appellate courts proceeded to submit that 'cause of action' is to be determined by applying the principle of 'pith and substance'. It has further been submitted that once from the entries in the khatauni, petitioners have been recorded as co-tenants and bhoomidhar and from the perusal of the Advocate Commissioner's report, it is obvious that the land has been used for agricultural purposes, the suit was very well maintainable under Section 209 of the U.P.Z.A. and L.R. Act.
(3.) A Full Bench of this Court in a case of Ram Padarath and others v. IInd Addl. D.J., Sultanpur and others, LCD 565 held that while determining the 'cause of action', the pith and substance is to be seen and not the language used in statute to oust the jurisdiction of the Court. The 'relief' is not the part of cause of action nor it is related to the defence set up in the case. Relevant portion from the Full Bench judgment of Ram Padarath (supra), is reproduced as under : "14. It is the real 'cause of action' which determines the jurisdiction of the Court to entertain particular action notwithstanding the language used in the plaint or the relief claimed. The stren?th on which the plaintiff comes to the Court does not depend upon the defence or relief clamed which could determine the forum for the entertainment of claim and grant of relief. It is the pith and substance which is to be seen and not the language used which may even have been so used to oust the jurisdiction of a particular Court. 15. The expression 'any relief' used in Section 331 of the Act is too of wide import and would not only mean the relief claimed but would also include any relief arising out of the cause of action which let the plaintiff to invoke the jurisdiction of a court of law. The word 'relief' is not a part of cause of action nor the same is related to the defence set up in the case. The relief is a remedy which the Court grants from the facts asserted and proved in an action." In another case in Anis Ahmad and others v. State of U. P. and others, 1967 RD 75, the dispute was as to whether the suit shall be maintainable where on a portion of land, the cultivator has constructed a house and mosque. In the case of Anis Ahmed (supra), it has been held by the Division Bench of this Court that mere existence of a mosque or house on a small portion of plot or chak shall not change the nature of land and shall not oust the jurisdiction of the Court under the U.P.Z.A. and L.R. Act. The plot or a chak shall be a land within the meaning of Zamindari Abolition and Land Reforms Act. It is immaterial that on a portion of it stand a mosque and houses exist.;