V.K. Shukla, J. - (1.) PRESENT second appeal has been filed against the judgment and decree dated 24.11.1975 passed by Civil Judge, Jhansi in Civil Appeal No. 2 of 1966 arising out of judgment and decree passed by Munsif Jhansi dated 03.12.1964 in Original Suit No. 412 of 1963 (Bade Mahadeviji Maharaj v. Dr. Pyare Lal Misra.
(2.) BRIEF background of the case is that plaintiff filed Original Suit No. 412 of 1963 on 14.05.1963 before Munsif Jhansi contending therein that land shown by red colour and marked as letter ABCDEFGHIJKLMNO in the map appended to the plaint and area of which is about two acres formed part of plot No. 873 situated within the municipal limit of Mauranipur was Abadi land and the plaintiff was the owner in possession of the said land. On 25.10.1956 defendant of the suit illegally occupied the said land and in this background Original Suit No. 383 of 1957 was instituted in the court of Munsif Jhansi for ejectment of defendant from the said land. Said suit in question after its institution was transferred for disposal to Munsif, Lalitpur. On 09.08.1958 a consent decree was passed in the said suit and on the strength of said consent decree defendant was permitted to remain in occupation of the land as tenant on payment of annual rent of Rs. 10/ -. It was agreed in between parties concerned that defendant would pay rent for each of the year in the month of February and in default of payment of rent the plaintiff would have right to get the defendant ejected. Thereafter as defendant had failed to pay rent therefore suit was filed before Judge Small Cause Court (Munsif) Jhansi being Suit No. 44 of 1961 for recovery of rent. Said suit was decreed exparte. Said decree in question was not obeyed and the rent due has not been paid in this background plaintiff again served with the notice of demand to quit on 29.08.1962 and by means of said notice defendant was asked to vacate the disputed land after expiry of period prescribed. Defendant had choosen not to vacate the premises in question, in this background suit in question had been filed for ejectment from the disputed land and damages which is subject matter of present second appeal. In the said suit written statement was filed and plea was taken that defendant was in possession and further plea was taken that he was hereditary tenant of the said disputed land and plaintiff was neither owner in possession thereof. Land existed within the limit of Mauranipur Municipal Board and at that point of time Zamindari in the said area has not abolished. Land has been obtained for agricultural purpose in the year 1364 fasli on annual Lagan from Zamindari concerned. Suit for ejectment could have only been filed in Revenue court and the Civil court has no authority or jurisdiction to try the same and the decree passed on earlier occasion are null and void as court who has passed the said decree in question had no jurisdiction to try the suit. In this background defendant was not at all liable to vacate the land in question. During the pendency of suit learned Munsif framed issue as to whether defendant was the hereditary tenant of the land in suit and for this purpose remitted the said issue for finding to the Revenue court. Revenue court gave decision in affirmative. Based on the same learned Munsif took the view that plaintiff was not the landlord of the disputed land and decree which has been passed on earlier occasion did not effect the defendant's right, in this background suit in question was dismissed. Aggrieved by the said finding of learned Munsif, plaintiff filed appeal and said appeal was also dismissed by IInd Additional Civil and Session Judge, Jhansion 31.03.1965 by holding that civil court has no jurisdiction to try the suit by virtue of Section 242 of U.P. Tenancy Act. Against the said judgment and decree plaintiff preferred Second Appeal before this Court being Second Appeal No. 3002 of 1965. This Court on 29.09.1973 allowed the said appeal and set aside judgment and decree passed by lower appellate court and remanded the matter back to the lower appellate court for fresh decision keeping in view the observation made in the body of the judgment. Relevant extract of the said judgment passed by this Court is being quoted below: It was argued in reply by the learned Counsel for the respondent that even if the conditions put forward on behalf of the appellant are assumed to be correct, this Court should not interfere unless it was shown that the Civil Court really had jurisdiction to entertain the suit after the Act came in to force in Mauranipur. It was pointed out that by Section 64 of the Act Chapter VIII of the U.P. Zamindari Abolition & Land Reforms Act was made applicable to 'Agricultural areas' acquired under the act and under the Section 82 of the act besides other sections, Section 331 of the U.P. Zamindari Abolition & Land Reforms Act has been made applicable to suits applications etc. filed under the Act. It was argued that under the circumstances it appears that even after the U.P. Tenancy Act stood repealed in Mauranipur, the plaintiff would have had to file to suit in the revenue court as according to the finding recorded by the lower appellate court the land in suit is 'agricultural land'. This contention as was pointed out on behalf of the appellant, does not appear to be sound. There is no material on record of this case to show that the disputed land lies in agricultural area or 'agricultural area' acquired under this Act. A perusal of Section 3 to 5 will show that the words 'agricultural area' acquired under this Act mean an agricultural area acquired as laid down in Chapter I and II of the Act. Therefore, it could not be said from the material on the record whether Section 64 of the Act would be applicable to the land in suit thereby making the provision of Section 220 read with Section 331 of the U.P. Zamindari Abolition & Land Reforms Act applicable to the facts of this case. In order to decide as to whether even after abolition of the U.P. Tenancy Act because of the Act coming into force in Mauranipur, the suit could be filed in the Civil Court or not. It has to be considered whether the land in suit has been acquired as an agricultural area' with in the meaning of the Act otherwise the question involved in this case being of civil nature would be cognizable by the Civil Court under Section 9 of the Code of Civil Procedure. In view of the reasons discussed, I consider a fit case which should be remanded back to lower appellate court for fresh decision on the question of jurisdiction and if necessary on merit also after taking into consideration the effect of the abolition of the U.P. Tenancy Act by the coming into force of the Act in Mauranipur with effect from 01.07.1964. It would be open to the lower appellate court to give an opportunity to the parties to adduce evidence on the question as to whether the land in question was acquired as agricultural land within the meaning of the act while the suit was still pending in the trial court. Accordingly the appeal is allowed. The judgment passed by the lower appellate court is set aside and the case is remanded back to the lower appellate court for the fresh decision keeping in view the observation made above. Costs in this Court shall abide the final decision in the case.
(3.) AFTER appeal in question has been remanded background, parties to the dispute adduced additional evidence, in the shape of oral as well as documentary evidence and thereafter lower appellate court on 24.11.1975 allowed the appeal and the judgment and decree under appeal has been set aside and the suit has been decreed for recovery and possession and for recovery of arrears of rent. At this juncture present Second appeal has been filed.;