# Shailendra Tewari and others v. 1st A.D.J. Faizabad and others

- **Citation:** (2013) 1 ILRA 358
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-02-20
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shailendra-tewari-and-others-v-1st-a-d-j-faizabad-and-others-42515
- **Pages:** 6

## Headnote

Act 1950-Section 3(4) read with U.P.
Consolidation of Holdings Act 1953-3(5)-
'Land'-definition does not include 'Banjar
land' suit relating to Banjar land-whether
civil or revenue court has jurisdiction? Held-
only civil Court has jurisdiction.

Held: Para-21
For the purpose of U.P. Zamindari
Abolition and Land Reforms Act, 1951
(hereinafter referred to as the "Act,
1951") also so far as the meaning of
term 'holding' or 'land' is concerned, in
respect to land recorded as "Banjar", the
law as discussed above would apply
equally and, therefore, suit in question is
not barred by Section 331 of Act, 1951
and the Civil Court had jurisdiction to
take cognizance of suit in question and
decide the same. The Appellate Court has
rightly
taken
the
view
about
maintainability of suit in Civil Court, in
the judgment impugned in this writ
petition, and, I find no legal or otherwise
fault therein, warranting interference.

Case Law discussed:
1965 ALJ 609; 1967 AWR 337; 1969 AWR 317;
1971 RD 520; 1975 AWC 469; 1986 AWC 919;
1989 RD 293;

## Text

358 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
the arrears shall be made within next three
months thereafter.

23. Costs made easy.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW20.02.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Misc. Single 2647 of 1993

Shailendra Tewari and others...Petitioners
Versus
1st A.D.J. Faizabad and others

 ...Respondents

Counsel for the Petitioners:
R.S. Pandey

Counsel for the Respondents:
C.S.C.

U.P. Zamindari abolition and Land Reforms
Act 1950-Section 3(4) read with U.P.
Consolidation of Holdings Act 1953-3(5)-
'Land'-definition does not include 'Banjar
land' suit relating to Banjar land-whether
civil or revenue court has jurisdiction? Held-
only civil Court has jurisdiction.

Held: Para-21
For the purpose of U.P. Zamindari
Abolition and Land Reforms Act, 1951
(hereinafter referred to as the "Act,
1951") also so far as the meaning of
term 'holding' or 'land' is concerned, in
respect to land recorded as "Banjar", the
law as discussed above would apply
equally and, therefore, suit in question is
not barred by Section 331 of Act, 1951
and the Civil Court had jurisdiction to
take cognizance of suit in question and
decide the same. The Appellate Court has
rightly
taken
the
view
about
maintainability of suit in Civil Court, in
the judgment impugned in this writ
petition, and, I find no legal or otherwise
fault therein, warranting interference.

Case Law discussed:
1965 ALJ 609; 1967 AWR 337; 1969 AWR 317;
1971 RD 520; 1975 AWC 469; 1986 AWC 919;
1989 RD 293;

(Delivered by Hon'ble Hon'ble Sudhir
Agarwal, J.)

1. This writ petition is directed
against the judgment dated 26.05.1993
passed by First Additional District Judge,
Faizabad
allowing
appeal
filed
by
respondent no. 2 and setting aside Trial
Court's order dated 10.11.1987. The
Appellate
Court
held
that
suit
is
cognizable by Civil Court and has
directed parties to appear before court
below so that the matter may proceed
further.

2. It is contended that though the
land in dispute is "Banjar land" recorded
in revenue records and if there is a dispute
of title, jurisdiction lies with Revenue
Court and not with Civil Court. Reliance
is placed on Apex Court's decision in
Kamla Prasad and others Vs. Kishna
Kant Pathak and others, 2007(4) SCC
213.

3. However, I do not find any force
in the submission.

4. A perusal of plaint shows that suit
in question was filed with relief that
defendant be restrained from cutting trees
standing over land in dispute, which is
admittedly a "Banjar land", so recorded in
revenue record.

5. The terms "land" has been defined
in Section 3(4) of U.P. Zamindari
Abolition and Land Reforms Act, 1950
(U.P. Act No. 1 of 1951) (hereinafter
1 All] Shailendra Tewari and others vs. 1st A.D.J. Faizabad and others
359
referred to as the "Act, 1951"). It reads as
under:

"3(14) "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."

6. Section 117(1)(iii) of Act, 1951
says that trees (other than trees in the
holding on the boundary of a holding or in
a grove or abadi) vests in Gaon Sabha.
This Court in Mohd. Naqi Khan Vs.
State of U.P., 1965 ALJ 609 held that
trees standing in the graveyard vest in
Gaon Sabha.

7. The term "land" has also been
defined
in
Section
3(5)
of
U.P.
Consolidation of Holdings Act, 1953
(hereinafter referred to as the "Act,
1953"). It reads as under:

"3(5) 'Land' means land held or
occupied for purposes connected with
agriculture,
horticulture
and
animal
husbandry (including pisciculture and
poultry farming) and includes--

(i) the site, being part of a holding, of
a house or other similar structure; and

(ii)
trees,
wells
and
other
improvements existing on the plots
forming the holding."

8. The term "consolidation" is also
defined in Section 3(2) and reads as
under:

..."3.(2) 'Consolidation' means rearrangement of holdings in a unit
amongst several tenure-holders in such a
way as to make their respective holdings
more compact.

Explanation- For the purpose of this
clause, holding shall not include the
following:

(i) Land which was grove in
agricultural year immediately preceding
the year in which the notification under
Section 4 was issued;

(ii) land subject to fluvial action and
intensive soil erosion;

(iii) land mentioned in Section 132 of
U.P. Zamindari Abolition and Lad
Reforms Act, 1950;

(iv) such compact areas as are
normally subject to prolonged waterlogging;

(v) usar, kallar and rihala plots
forming
a
compact
area
including
cultivated land within such area;

(vi) land in use for growing pan,
rose, bela, jasmine and kewra; and

(vii) such other areas as the Director
of Consolidation may declare to be
unsuitable
for
the
purpose
of
Consolidation."

9.

The
comparison
of
two
definitions,
as
above,
indicate
that
principle part of definition of land in Act,
1953 has been borrowed from Act, 1951
but it has been expanded so much so that
for the purposes of Act, 1953 even the site
for house or well or trees standing over a
plot has been included. The trees etc.,
however, must exist on a plot which
forms part of a holding.

10. The term "holding" under clause
(4-C) of Act, 1953 means a parcel or
parcels of land held under one tenure by a
tenure holder singly or jointly with other
tenure holder. Therefore,, land can be
holding under Act, 1953 only if it is held
360 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
by tenure holder that is a Bhumidhari,
Sirdari or Asami. If Banjar land can be
considered to be land within meaning of
clause (3) of Section 3 of Act, 1953,
extracted earlier then only it can be held
by a Bhumidhar, Sirdar or Asami and
shall be covered in the definition of
holding. "Banjar land" has not been
defined either in two Acts but Section
3(12) of Act, 1953 adopts meaning of
word and expression not defined in Act,
1953 but used or defined in Act, 1951.
Though in Act, 1951 also there is no
definition of "Banjar land" but para 124-A
of Land Records Manual framed in
pursuance of Land Revenue Act making
provision for entry in annual register of
field book provides as under:

"(v) otherwise barren.

Note: Sub-clause (v) will include
land which cannot be brought under
cultivation without incurring a high cost."

11. This indicates that "Banjar land"
is that land which is unfit for cultivation
and cannot be brought under cultivation
without incurring heavy expenditure. It is,
therefore, not "land" as defined in the Act.
A "Banjar land" is not a "land" under the
Act, it also cannot be a holding. That
being so, Revenue Courts or consolidation
authorities would have no jurisdiction to
adjudicate upon the rights and titles of
Banjar land. In the context of provisions
of Act, 1953 this matter has been
examined earlier by this Court.

12. The functions of consolidation
authorities are confined to deciding
questions relating to tenure holder's rights,
i.e., rights of Bhumidhars, Sirdars or
Amins in respect of agricultural holding
and not beyond that. This is what was
hold by Division Bench of this Court in
Syed Ashfaq Hasan Vs. Waqf Alal Nafs
and Alal Aulad and Alal Ayal, 1967
AWR 337.

13. Similarly this Court in Badri
Dube Vs. Commissioner, Varanasi
Division, 1969 AWR 317 held that
words, 'persons interested' do not include
persons who have other rights than the
rights of a Bhumidhar, Sirdar and an
Asami in respect to Act, 1953. It is in this
context the Court held that "Banjar plot"
does not form part of a holding and,
therefore, trees situate on such a plot of
land which is vested in Gaon Sabha it
would not be within the jurisdiction of
consolidation authorities being not a part
of holding and, therefore, in such matters
Civil Court has jurisdiction.

14. In Rama v. State of U.P., 1971
RD 520 this Court said:

". . . . . . a Banjar land does not form
part of a holding and, therefore, the
consolidation
authorities
had
no
jurisdiction to adjudicate upon the rights
of the parties in respect of the trees in
question. It is open to the parties to get
their rights adjudicated upon by a
competent Civil Court."

15. A doubt arose that decision of
this Court in Rama v. State of U.P.
(supra) is in conflict with another
subsequent decision in Shambhu Vs.
Deputy
Director
of
Consolidation
Azamgarh, 1975 AWC 469 and the
matter came to be considered by a
Division Bench in Baijnath Rai and
another
Vs.
Deputy
Director
of
Consolidation, Ghazipur and others,
1986 AWC 919. The view taken by
Division Bench in para 2 of judgment
1 All] Shailendra Tewari and others vs. 1st A.D.J. Faizabad and others
361
fortify the view I have discussed above.
The Court held:

"Banjar land is that land which is
unfit for cultivation and cannot be
brought
under
cultivation,
without
incurring
heavy
expenditure.
It
is,
therefore, not land as defined in the Act. .
. . . . . . If trees are planted on a Banjar
land or it is let out for planting trees and
the trees standing over it or after planting
were such in number as to exclude
cultivation when fully grown then it
becomes grove land."

`16. The Court held that a Banjar
land is not within the jurisdiction of
consolidation authorities so as to take
upon themselves in matter of adjudication
under Act, 1953. That would also apply,
in my view, for Revenue Courts under
Act, 1951. The Court, however, further
proceeded to observe that there may have
been cases where Banjar land let out for
converting it into land may be within few
years by incurring expenses and planting
trees in such a number so as to convert it
in a grove land after the trees fully grown.
It says, if trees are planted on a Banjar
land or it is let out for planting trees and
trees standing over it or after planting of
such a number as to exclude cultivation
when fully grown then it becomes grove
land and once Banjar land becomes grove
land, the consolidation authorities can
decide objections in this regard. That is
how the Court resolved both judgments
and found no conflict therein. The Court
said:

"Any land, therefore, having trees in
such number as to preclude cultivation
becomes grove-land. And once a land
banjar or otherwise, becomes grove land
the Consolidation authorities shall have
jurisdiction to decide. In cases where
right or title is claimed on trees standing
over land what has to be decided is if the
trees standing over it were such in
number that it became grove land. If the
finding
is
in
the
affirmative
the
Consolidation
authorities
shall
have
jurisdiction to decide right or claim of
parties. If the finding is in negative the
objection has to be dismissed and parties
directed to seek their remedy in Civil
Courts."

17. Again a learned Single Judge in
Bhawani Pher Tiwari Vs. Narbada
Devi, 1989 RD 293 followed the earlier
decision in Rama Vs. State of U.P.
(supra) and observed:

" . . . . . scattered trees standing over
Banjar land cannot be termed as grove
and
the
Consolidation
Courts lack
inherent jurisdiction in adjudicating upon
rights of parties in respect of them."

18. In the present case it is not
disputed by parties that land in question is
recorded as Banjar and has not become a
grove land. The trees standing thereon,
therefore, would not form part of land of
holding so as to attract jurisdiction of
Revenue Court.

19. So far the decision relied by
counsel for petitioners in Kamla Prasad
and others Vs. Kishna Kant Pathak
(supra) is concerned, I find that there the
admitted facts therein were, that the
defendants had share in property in
dispute, as is evident from paras 6, 7, 12
and 13 of the judgment. The Court found
that plaintiff's own case was that he and
defendants no. 10 to 12 were coBhumidhars of disputed land and as such
the defendants had also right in disputed
362 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
property. The execution of sale deed by
defendants and plaintiff was also not in
dispute but what he claimed that at the
time
of
execution,
he
was
under
intoxication, and, the documents got
executed
by
contesting
defendants
without there being any free will on the
part of plaintiff. It is in these facts and
circumstances
the
Court
held
that
question as to how much share belong to
plaintiff and defendants respectively is a
question which can be determined only by
Revenue Court and further that after sale
deed, name of plaintiff was deleted from
revenue records, and the name of
contesting defendants have been entered
in his place is also a matter to be decided
by Revenue Courts. The question of
possession of agricultural land was also to
be decided by Revenue Court since the
Civil Court could have no jurisdiction to
give any finding of possession over
agricultural land. The Apex Court in paras
12, 13 and 16 said:

"12. Having heard the learned
advocates for the parties, in our opinion,
the submission of the learned counsel for
the appellants deserves to be accepted. So
far as abadi land is concerned, the trial
Court
held
that
Civil
Court
had
jurisdiction and the said decision has
become final. But as far as agricultural
land is concerned, in our opinion, the
Trial Court as well as Appellate Court
were right in coming to the conclusion
that only Revenue Court could have
entertained the suit on two grounds.
Firstly, the case of the plaintiff himself in
the plaint was that he was not the sole
owner of the property and defendant 10 to
12 who were proforma defendants, had
also right, title and interest therein. He
had also stated in the plaint that though in
the Revenue Record, only his name had
appeared but defendant 10 to 12 have
also right in the property. In our opinion,
both the Courts below were right in
holding that such a question can be
decided by a Revenue Court in a suit
instituted under Section 229-B of the Act.

13. On second question also, in our
view, Courts below were right in coming
to the conclusion that legality or
otherwise of insertion of names of
purchasers in Record of Rights and
deletion of name of the plaintiff from such
record can only be decided by Revenue
Court since the names of the purchasers
had already been entered into. Only
Revenue Court can record a finding
whether
such
an
action
was
in
accordance with law or not and it cannot
be decided by a Civil Court.

16. The instant case is covered by
the
above
observations.
The
lower
Appellate Court has expressly stated that
the name of the plaintiff had been deleted
from Record of Rights and the names of
purchasers had been entered. The said
fact had been brought on record by the
contesting defendants and it was stated
that the plaintiff himself appeared as a
witness before the Mutation Court,
admitted execution of the sale deed,
receipt of sale consideration and the
factum of putting vendees into possession
of the property purchased by them. It was
also stated that the records revealed that
the names of contesting defendants had
been mutated into record-of-rights and
the name of plaintiff was deleted."

20. A bare perusal of aforesaid
decision
thus
makes
it
clearly
distinguishable and inapplicable to the
facts of present case.
1 All] Ram Kishun Yadav Vs. State of U.P. and another
363

21. For the purpose of U.P.
Zamindari Abolition and Land Reforms
Act, 1951 (hereinafter referred to as the
"Act, 1951") also so far as the meaning of
term 'holding' or 'land' is concerned, in
respect to land recorded as "Banjar", the
law as discussed above would apply
equally and, therefore, suit in question is
not barred by Section 331 of Act, 1951
and the Civil Court had jurisdiction to
take cognizance of suit in question and
decide the same. The Appellate Court has
rightly
taken
the
view
about
maintainability of suit in Civil Court, in
the judgment impugned in this writ
petition, and, I find no legal or otherwise
fault therein, warranting interference.

22. In view of above, I find no merit
in the writ petition. Dismissed. Interim
order, if any, stands vacated.
---------
 ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.03.2013

BEFORE
THE HON'BLE VISHNU CHANDRA GUPTA, J.

Criminal Misc. Case No. 2657(482) of
2010

Ram Kishun Yadav

...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Shivesh Nath Dubey

Counsel for the Respondents:
Govt. Advocate

Code of Criminal Procedure-Section 482-
Quashing of criminal proceeding -on
ground in proceeding for revision of map
under section 54 Land & Revenue Actthe Assistant Record Officer-is not Courthence
cognizence
taken
on
police
investigation
not
bad-provision
of
Section 195 not attracted during course
of inspection thumb impression of dead
person made by counsel-in absence of
entire material-matter remitted back for
reconsideration-whether case fall, under
section 195-Magistrate has power to
take
cognizance
apart
from
the
procedure under section 340 and 343
Cr.P.C.

Held: Para-28 & 29

(28) It is clear that if the case falls
within the ambit of either Section
195(1)(a)
or
195(1)(b),
cognizance
taken by Magistrate would be bad
because the same would be against the
procedure
established
by
law
as
contained
in
Section
195
readwith
Section 340 and 343 Cr.P.C.

(29) In view of the above facts and
circumstances of the case, this court is of
the firm view that matter should be sent
back to the Trial Court to give specific
finding with reasons on the basis of
material
available
on
police
diary
whether this case is covered under
section 195 Cr.P.C. or not ? In case, trial
court comes to the conclusion that case
does not falls within the ambit of section
195 Cr.P.C., only in that event, that court
shall proceed with the trial.

Case Law discussed:
2005(4)SCC,370; AIR 1998 SC 768; 11 SCC
251; AIR 1979 SC page 437; 1983 Cr.L.J;
AIR 1973 (SC)1100; AIR 1974 (SC)
(Delivered by Hon'ble Vishnu Chandra
Gupta, J)

(1) This Criminal Misc. Case under
section 482 Criminal Procedure Code
(for short 'Cr.P.C.') has been filed to
quash the proceeding of case No. 4934 of
2009, arising out of case crime no.
4234/08,
under
section
471/467/468/419/420 of Indian Penal
Code (for short 'I.P.C.'), P.S. - Kotwali