# Smt. Uma Mukerji v. The Board of Revenue Allahabad

- **Citation:** (2020) 8 ILRA 410
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-30
- **Case number:** Misc. Single No. 6016 of 2008
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-uma-mukerji-v-the-board-of-revenue-allahabad-46051
- **Pages:** 31

## Headnote

A. Civil Law - U.P. Zamindari Abolition
and Land Reforms Act,1950- Section
176-Suit for partition - plaintiff denied
that the land in question was being used
for agricultural purpose-she referred to
the Master Plan -mere publication of
Master Plan would not automatically
convert agricultural land into urban
land-since there was no declaration u/s
143 of the Act,1950, the provisions of
Section 171 of the Act 1950 would
continue to apply with respect to
succession/devolution of the property of
a Bhumidhar, who died interstate-Since
the widow and son of Bhumidhar were
alive, there was no question of grant of
any share of the property in question to
his widowed mother as she was not
recorded as co-tenure holder in the
Khatauni, she could not be heard in the
Partition Suit-she had failed to show
any right, title or interest on the
property in question nor could she prove
that the land in question was being used
for residential/Abadi land-she had no
right to object on the basis of personal
law.(Para 45 to 87)

B. The question of jurisdiction of Civil
Court qua the Revenue court involved in
the case. Where on the basis of a cause
of action, the main relief is cognizable
by the Revenue Court, only the fact that
the
ancillary
relief
claimed
are
cognizable by the Civil Court would be
8 All. Smt. Uma Mukerji Vs. The Board of Revenue Allahabad
411
immaterial of determining the proper
forum of the suit; the main relief is
cognizable by the Civil Court, the suit
would be cognizable by the Civil Court,
the suit would be cognizable by the Civil
Court only and the ancillary reliefs
which could be granted by the Revenue
Court may also be granted by the Civil
Court.(Para 61)

The petitions are dismissed. (E-6)
List of Cases Cited:-

## Text

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410 INDIAN LAW REPORTS ALLAHABAD SERIES
(supra), the waiting period can be
condoned only when the conditions
mentioned therein are satisfied.

33. As per the judgment in
Amardeep Singh (supra), one of the
factors to be taken into account by the
court before exercising its discretion to
waive off the statutory period of six
months is as to whether all efforts for
mediation/conciliation including efforts
to reunite the parties have failed and
there is no likelihood of success in that
direction by any further efforts.

34. Neither in the application for
waiver, nor in her petition before this
Court has the petitioner mentioned about
any
mediation
having
taken
place
between the parties prior to the alleged
mediation on 11.12.2019 and 12.11.2019.
In the absence of any effort to reconcile
the contesting parties, the statutory
waiting period could not have been
condoned.

35.

The
Family
Court
has
committed no wrong in rejecting the
application for waiver of six months
statutory period. There is no infirmity or
illegality in the order impugned. The
petition is devoid of merit and is
accordingly dismissed.

36. No order as to cost.
----------
(2020)08ILR A410
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.07.2020

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Misc. Single No. 6016 of 2008
connected with
Misc. Single No. 5292 of 2010

Smt. Uma Mukerji ...Petitioner
Versus
The Board of Revenue Allahabad
 ...Respondent

Counsel for the Petitioner:
D.C. Mukerji, Devendra Mohan Shukla,
Dhruv Mathur, K.K. Sharma, Sharavan
Kumar Shukla

Counsel for the Respondent:
C.S.C., G.S. Nigam, Mohd. Adil Khan

A. Civil Law - U.P. Zamindari Abolition
and Land Reforms Act,1950- Section
176-Suit for partition - plaintiff denied
that the land in question was being used
for agricultural purpose-she referred to
the Master Plan -mere publication of
Master Plan would not automatically
convert agricultural land into urban
land-since there was no declaration u/s
143 of the Act,1950, the provisions of
Section 171 of the Act 1950 would
continue to apply with respect to
succession/devolution of the property of
a Bhumidhar, who died interstate-Since
the widow and son of Bhumidhar were
alive, there was no question of grant of
any share of the property in question to
his widowed mother as she was not
recorded as co-tenure holder in the
Khatauni, she could not be heard in the
Partition Suit-she had failed to show
any right, title or interest on the
property in question nor could she prove
that the land in question was being used
for residential/Abadi land-she had no
right to object on the basis of personal
law.(Para 45 to 87)

B. The question of jurisdiction of Civil
Court qua the Revenue court involved in
the case. Where on the basis of a cause
of action, the main relief is cognizable
by the Revenue Court, only the fact that
the
ancillary
relief
claimed
are
cognizable by the Civil Court would be
8 All. Smt. Uma Mukerji Vs. The Board of Revenue Allahabad
411
immaterial of determining the proper
forum of the suit; the main relief is
cognizable by the Civil Court, the suit
would be cognizable by the Civil Court,
the suit would be cognizable by the Civil
Court only and the ancillary reliefs
which could be granted by the Revenue
Court may also be granted by the Civil
Court.(Para 61)

The petitions are dismissed. (E-6)
List of Cases Cited:-

1. Hari Ram Arya Vs St, of U.P. & ors,(1984)
ALJ 1275

2. Anand Kumar Singh & anr. Vs St. of U.P. &
ors, W.P.No.8354 (MS) of 2017

3. Ram Lal & ors. Vs D.D.C.,Hamirpur &
ors,(1988) RD 309

4. Hari Bans Bahadur Vs St. Of U.P.,(1980)
ALJ 545

5. Maharaj Singh Vs D.D.C., Bareilly &
ors,(1990) 8 LCD 609

6. Mahant Dooj Dass (Dead) thru LR. Vs
Udasin Panchayati Bara Akhara & anr.(2008)
12 SCC 181

7. The Triveni Engineering Works Ltd. & anr.
Vs Govt. Of U.P. & ors ,(1978) ALJ 744

8. Allauddin @ Makki Vs Hamid Khan,(1971)
RD 160

9. Mahendra Singh Vs Attar Singh &
ors,(1967) RD 191

10. Anis Ahmad & ors. Vs St. of U.P. &
ors,(1967) RD 75

11. Magnu Ahir & ors. Vs Mahabir,(1987) Rev.
Jdts. 146

12. Indrajeet Singh Vs Sardar Arjun Singh &
ors., (1983) 1 LCD 10

13. Mewa & ors. Vs Baldev,AIR (1967) Alld.
358
14. Alauddin Vs Hamid Khan, AIR (1971) Alld.
348

15. Ratna Sugar Mills Co. Ltd. Vs St. Of U.P. &
ors,(1976) 3 SCC 797

16. Dina Nath Verma & ors. Vs Gokarna &
ors,(2003) 94 RD 323

17. Veer Bal Singh Vs St. Of U.P. & ors,(2009)
108 RD 124

18. Satgur Dayal Vs VI ADJ & ors., (2013) ALJ
595

19. Chandrika Singh & ors Vs Raja Vishwanath
Pratap Singh & anr.,(1992) 3 SCC 90

20. Ram Awalamb & ors. Vs Jata Shankar &
ors,(1968) RD 470

21. Ram Padarath & ors. Vs. II ADJ,
Sultanpur (1989) RD 21 FB

22. Indrapal Vs Jagannath (1993) ALJ 235

23. Chandrika Misir Vs Bhaiya Lal, AIR (1973)
SC 2391

24.
Bismillah
Vs
Janeshwar
Prasad
&
ors,(1990) 1 SCC 207

25. Jai Prakash Singh Vs Bachchu Lal & ors.,
(2019) SCC Online Alld. 3522

26. Suhrid Singh @ Sardool Singh Vs Randhir
Singh,(2010) 12 SCC 112

27. Deoki Nandan Vs Surja Pal,(1996) RD 70

28. Shri Ram Vs Ist ADJ, (2001) 3 SCC 24

29. Azhar Hasan Vs DJ, Saharanpur,(1998) 34
ALR 152 SC

30.
Kamla
Prasad
Vs
Krishna
Kant
Pathak(2007) 4 SCC 213

(Delivered by Hon'ble Mrs. Sangeeta Chandra, J.)

1. Heard Sri Dhruv Mathur along
with Sri Devendra Mohan Shukla,
412 INDIAN LAW REPORTS ALLAHABAD SERIES
Advocates appearing for the petitionerSmt. Uma Mukharjee, who has been
substituted by her legal heirs i.e. her
grandsons by an order of the Court dated
23.4.2012, and Sri Mohd. Arif Khan,
learned Senior Advocate assisted by Sri
Mohiuddin Khan and Sri K.K. Sharma,
Advocates, appearing for M/s. New
Hassan Sahkari Awas Samiti, the private
respondents contesting in both Writ
Petition Nos.6016 (MS) of 2008 and
5292 (MS) of 2010.

2. These writ petitions are being
taken up together as they relate to the
same petitioners and the challenge raised
relates to the same plot of land i.e. Plot
No.254/2 at Village Kamta, District
Lucknow.

Writ Petition No.6016 (MS) of
2008 has been filed, praying for quashing
of the order dated 6.9.2005 passed by the
Sub Divisional Magistrate concerned in a
Suit relating to partition of the land in
question, the order dated 10.4.2007
passed by the Additional Commissioner,
Lucknow Division, Lucknow, rejecting
the Appeal of the petitioners and the
order dated 4.11.2008 passed by the
Board
of
Revenue,
rejecting
the
petitioners' Second Appeal also.

Writ Petition No.5292 (MS) of
2010 has been filed challenging the order
dated 26.8.2010 passed by the opposite
party no.1-Special Judge, Ayurvedic
Scam Case, Lucknow in Revision filed
against the order passed by the Civil
Judge in Regular Suit No.320 of 2000.

The facts, in brief, are that one
Sri Anil Dev Mukharjee, husband of the
petitioner
Smt.
Uma
Mukharjee,
purchased three plots of land through
registered Sale Deed in the name of his
12 year's old minor son Ajay Kumar
Mukharjee in Village Kamta on 1.4.1959.
The plot numbers given in the copy of
the registered Sale Deed filed along with
the Writ Petition are Plot Nos.453, 454,
443 ad-measuring 20 Bigha and 5 Biswa.
The land in question was later numbered
as Gata no.254 and recorded in the name
of Ajay Kumar Mukharjee in the revenue
records
as
Bhumidhar
during
consolidation operations. In 1976, the
Urban Land Ceiling and Regulation Act
was notified (hereinafter referred to as
''the Urban Land Ceiling Act') and Ajay
Kumar Mukharjee was given a notice
regarding declaration of vacant land by
the Prescribed Authority for the purpose
of ceiling. Ajay Kumar Mukharjee filed
his objection under Section 8(3), but the
Prescribed
Authority
rejected
such
objections and declared the land in
question as vacant land by order dated
26.11.1979. On 5.2.1987, the State
Government declared the area where the
plot in question was situated as within
the municipal limits of the city of
Lucknow. Ajay Kumar Mukherjee died
on 29.5.1992. The land in question
remained in possession of his widow
Reena Mukharjee and minor son Raja
Ajay Mukharjee as no action was taken
by the State Government for taking
possession of land declared vacant on
26.11.1979. After the repeal of the Urban
Land Ceiling Act in 1999, Reena
Mukharjee and her son Raja Ajay
Mukharjee were recorded as tenure
holders over Gata no.254 ad-measuring
15 Bigha, 17 Biswa on 25.12.1999.
Reena Mukharjee sold off 5 Bighas of
land in question to M/s. New Hassan
Sahkari Awas Samiti on 19.7.2000.

The
petitioner-Smt.
Uma
Mukharjee filed a Suit before the Civil
Judge (Senior Division), Malihabad for
declaration of her 1/3rd share in the
8 All. Smt. Uma Mukerji Vs. The Board of Revenue Allahabad
413
property in question along with a prayer
for Permanent Injunction against the
opposite
parties,
restraining
further
alienation of the property in question.
Initially, an Injunction was granted exparte on 21.7.2000 by the trial court,
restraining the defendants from alienating
1/3rd of the property in question. On
service of notice, the defendant filed an
application under Order VII Rule 11 of
C.P.C., saying that Regular Suit No.320
of 2000 was not maintainable in view of
the bar under Section 331 of the U.P.Z.A.
and L.R. Act (hereinafter referred to as
''the Act of 1950'). Reena Mukherjee
thereafter sold off another 5 Bighas of
land to M/s. New Hassan Sahkari Awas
Samiti on 19.7.2001 and on the basis of
the said Sale Deed, M/s. New Hassan
Sahkari Awas Samiti filed a Partition
Suit under Section 176 of the Act of 1950
before the Sub Divisional Magistrate,
Lucknow.
The
petitioner-Smt.
Uma
Mukharjee was not impleaded as a party
and the Suit was decreed, giving 2/3rd
share of Plot No.254 to M/s. New Hassan
Sahkari Awas Samiti and 1/3rd of the
remaining plot was declared to be the
property of Reena Mukharjee and Raja
Ajay Mukharjee.

The petitioner being affected
challenged the order passed by the Sub
Divisional Magistrate in Revision, which
was
allowed
and
the
matter
was
remanded for fresh consideration with a
direction
to
the
Sub
Divisional
Magistrate to give an opportunity of
hearing to the petitioner. Against the
order
passed
by
the
Additional
Commissioner on 17.3.2007, M/s. New
Hassan Sahkari Samiti filed an Appeal
before the Board of Revenue, which was
rejected on 27.8.2003. On remand, the
Sub Divisional Magistrate proceeded to
pass the order dated 20.10.2004 holding
that the Partition Suit was maintainable
and granting Decree of Partition, as
claimed by the private opposite parties.

Against
the
order
dated
20.10.2004, the petitioner filed Revision
No.320/2004-05, which was disposed off
on 7.5.2005 with a direction to the Sub
Divisional Magistrate to reconsider the
question of maintainability of the Suit.
The Sub Divisional Magistrate reiterated
his earlier decision and by his order dated
6.9.2005 held that the land in question
was agricultural land as no declaration
under Section 143 of the Act of 1950,
had been made with respect to the said
land and the question of extension of
municipal limits and the question of
alteration of land use by issuance of
Master Plan declaring the area to be
residential would be immaterial in so far
as no declaration under Section 143 of
the Act of 1950 had been made. The
Partition Suit was decreed and the share
of opposite party nos.4, 5 and 6 in Writ
Petition No.6016 (MS) of 2008 was
determined by metes and bounds. The
Appeal filed by the petitioner was
dismissed by the learned Commissioner
on 6.9.2005. Second Appeal No.36 of
2006-07 (Smt. Uma Mukharjee vs. M/s.
New Hassan Sahkari Awas Samiti) was
also dismissed by the Board of Revenue
on 4.11.2008.

Writ Petition No.6016 (MS) of
2008 was filed by the petitioner against
the orders of the Revenue Courts. No
interim order was granted by this Court
initially.

In Regular Suit No.320 of
2000, initially the trial court rejected the
application filed under Order VII Rule 11
of the C.P.C., but a Revision was filed
against such an order dated 31.3.2001.
The
Revisional
Court
allowed
the
application under Order VII Rule 11 of
414 INDIAN LAW REPORTS ALLAHABAD SERIES
C.P.C. and rejected the plaint as not
maintainable before the Civil Court by its
order dated 26.8.2010, relying on the
findings returned by the Revenue Court.
Hence, Writ Petition No.5292 (MS) of
2010 was filed. An interim order was
granted in Writ Petition No.5292 (MS) of
2010 on the first day of hearing i.e. on
1.9.2010 itself, directing the parties to
maintain status quo.

It has been alleged during the
course of argument that ignoring the said
order, Sale Deed was executed by the
opposite party nos.2 and 3 in favour of
newly impleaded opposite party no.4 to
9, of the remaining 5 bigha and 17 biswa
of land of Plot No.254/2.

3.

Learned
counsel
for
the
petitioners has placed reliance upon a
Notification issued on 3.2.1987 under
Section 3 of the U.P. Nagar Mahapalika
Adhiniyam, 1959 in the name of His
Excellency
the
Governor
of
U.P.,
declaring
the
municipal
limits
of
Lucknow city. It has been submitted that
the Eastern Boundary of the city of
Lucknow has included the whole of the
village Chinhat upto NH-28 and Village
Kamta has also been included within
such municipal limits.

4. It has also been submitted by the
petitioners' counsel that by virtue of the
order passed on 26.11.1979 by the
Prescribed Authority under the Urban
Land Ceiling Act, the land in question
i.e. Gata no.254 ad-measuring 15 Bigha,
17 Biswa i.e. 39,583.42 square meters
was treated as vacant land, out of which,
only 1500 m2 of land was left for
personal
use
of
Sri
Ajay
Kumar
Mukharjee and numbered as 254/2. Sri
Ajay Kumar Mukharjee had filed his
objections to the notice issued by the
Prescribed Authority in which objections,
he had taken the specific ground that the
land in question was not included in the
Master Plan of Lucknow, the land in
question was in Village Kamta, District
Lucknow and was not covered under the
U.P. Urban Planning and Development
Act, 1973 and that no Master Plan as
defined under Section 10-A of the
Regulation of Building Operations Act
had also been notified. The Prescribed
Authority had, however, rejected such
objections on the ground that under the
Regulation of Building Operations Act, a
Master Plan had already been prepared
and approved for the city of Lucknow by
the competent Authority.

5. The Prescribed Authority was
referring to a Master Plan prepared under
the Regulation of Building Operations
Act on 27.1.1970, which brought the land
in
question
within
the
urban
agglomeration earmarking it for "other
than agricultural use". This finding was
never challenged by Sri Ajay Kumar
Mukharjee and became final between the
parties. When the Urban Land Ceiling
Act was repealed, the land which was
declared as "vacant" land reverted back
to Sri Ajay Kumar Mukharjee/his heirs.
At the time of death of Ajay Kumar
Mukharjee in 1992 and its mutation in
the name of his heirs in 1999, the nature
of land being already settled as a vacant
urban land, it could not be now argued by
the contesting respondents that the land
was agricultural in nature and covered by
the Act of 1950.

6.

Learned
counsel
for
the
petitioners has referred to Section 2(o) of
the Urban Land Ceiling Act, which
defines open land as that land situated
within
the
limits
of
an
urban
8 All. Smt. Uma Mukerji Vs. The Board of Revenue Allahabad
415
agglomeration and referred to as such in
a Master Plan or in case where there is no
Master Plan, any land within the limits of
an urban agglomeration and situated in
any area included within the local limits
of any municipality but does not include
any such land which is mainly used for
the
purpose
of
agriculture.
The
Explanation (B) to Section 2(o) clearly
provides that the land shall not be
deemed to be used mainly for the
purpose of agriculture, if such land is not
entered in the revenue or land records
before the appointed day as for the
purpose of agriculture. Clause-C of this
Explanation includes a non obstante
clause, which says that notwithstanding
anything contained in Clause-B of the
Explanation, land shall not be deemed to
be mainly used for the purpose of
agriculture if the land has been specified
in the Master Plan for a purpose other
than agriculture.

7. It has been submitted that till
such time as the notice was issued under
the Urban Land Ceiling Act, 1976, no
Master Plan was available under the
Urban Planning And Development Act,
1973 (hereinafter referred to as the ''Act
of 1973'), but the land was held to be
included within the local limits of the
Municipality by the Prescribed Authority
on the basis of Master Plan prepared and
approved
under
the
Regulation
of
Building Operation Act, 1956.

8. The fact that proceedings under
Section 8 of the Ceiling Act were
initiated and concluded treating the land
in question as "urban land" by the
Prescribed Authority, would mean that
no further declaration under Section 143
of the Act of 1950 for using the land for
any non-agricultural purpose was needed
in the eyes of law. It would be deemed to
be urban land having no agricultural use
for all times to come.

9. It has been submitted further by
the learned counsel for the petitioners
that the term ''land' as defined under
Section 3(14) of the Act of 1950 meant
land held or occupied for the purpose
connected
with
agriculture.
The
operation of the Act of 1950 is limited
over the land covered under this
definition and once the land is included
under an urban agglomeration by any
order of the competent Authority, for
example, by operation of the Urban Land
Ceiling Act, the land seizes to be land
under the Act of 1950 and the devolution
of such land shall be governed by
personal Laws and not according to
Section 171 of the Act of 1950.

10. It has been submitted that
declaration under Section 143 of the Act
of 1950 is required when the land seizes
to be agricultural because of it being used
by the tenure holder for the purposes
other than agricultural, but it does not
envisage an eventuality where the land
seizes to be agricultural by operation of
any law. Section 143 does not prohibit
any declaration made under any other
Act holding the land to be nonagricultural. Therefore, there would be
no need to obtain a fresh declaration
under Section 143 of the Act of 1950,
once the land has already been declared
by the Prescribed Authority to be
urban/non-agricultural land under the
Ceiling Act. Land having been declared
as urban land on 26.11.1979 continued to
remain in possession of Sri Ajay Kumar
Mukharjee and his heirs thereafter till the
repeal of the Act in 1999. No doubt, the
Act was repealed in the year 1999 and
416 INDIAN LAW REPORTS ALLAHABAD SERIES
the ownership reverted to Sri Ajay
Kumar Mukharjee/his heirs, but such a
reversion would not make the declaration
of land as urban land redundant or null
and void. The nature of the land would
remain urban and reversion of land use
from non-agricultural to agricultural
would have to be done only by a
declaration under Section 144 of the Act
of 1950 by the Sub Divisional Magistrate
after conducting an enquiry.

11. Learned counsel for the
petitioners has emphasized the fact that
repeal of the Ceiling Act in 1999 had a
limited effect only of reverting the land
and its ownership and such repeal would
not render the declaration made on
26.11.1979 that the land in question was
Urban vacant land meaningless. Learned
counsel for the petitioners has placed
reliance upon the case of Hari Ram Arya
vs. State of U.P. and others, 1984 ALJ
1275 (Paragraphs 7 to 12).

12. This Court in Hari Ram Arya
(supra) has observed on the basis of
definition under section 2(h) of the Urban
Land Ceiling Act that Master Plan as
defined under the Act in relation to an
area within an urban agglomeration or
any part thereof, means the plan, by
whatever name called, prepared under
any law for the time being in force, or in
pursuance of an order made by the State
Government for the development of such
area or part thereof and providing for the
stages by which such development shall
be carried out. In the State of U.P., there
are two major Acts which provide for
Master
Plan,
they
are:
the
U.P.
Regulation of Building Operations Act,
1956 and the U.P. Urban Planning and
Development Act, 1973. A Court of Law
under the Urban Land Ceiling and
Regulation Act, 1976 has not been
empowered to go behind the Master Plan
and to apply its own mind to the land
uses given in the same. A Court dealing
in a proceeding under the Act is bound to
accept a Master Plan as it is. ".....When
there is a Master Plan, the Act extends to
all lands situated within the local limits
of the Municipality or a local Authority
and also covers the peripheral area
thereof, but where there is no Master
Plan, the applicability of the Act is
confined to the municipal limit or the
notified area as the case maybe....."

13. Learned counsel for the
petitioners has also placed reliance upon
a decision rendered in Writ Petition
No.8354 (MS) of 2017: Anand Kumar
Singh and another vs. State of U.P. and
others,
on
20.4.2017
by
another
Coordinate Bench, wherein this Court
has dealt with the effect of repeal of an
Act. In Paragraph-23 of the judgment,
this Court had observed that the repeal of
any Legislative enactment means that it
must be considered as if such Act never
existed. The purpose of repeal is to
obliterate the Act from the Statute book
except for certain purposes as provided in
Section 6 of the General Clauses Act.
However, unless a different intention
appears, such repeal does not affect the
previous operation of any enactment so
repealed or anything duly done or
suffered thereunder. It also does not
affect
any
investigation,
legal
proceedings or remedy in respect of any
such right, privilege, obligation, liability
etc. incurred under the Act now repealed.

14. It has been argued by the
learned counsel for the petitioners that
extension of municipal limits of the city
of Lucknow by the operation of the
8 All. Smt. Uma Mukerji Vs. The Board of Revenue Allahabad
417
Gazette
Notification
dated
5.2.1987
under the U.P. Municipal Corporation
Act, 1959 over the land in question also
excluded the land in question from
operation of the Act of 1950. In the year
1999 also the city limits of Lucknow
were extended beyond the boundaries of
the land in question. By operation of
Sections 31 and 32 of the U.P. Municipal
Corporation Act, 1959, the area included
within the municipal limits would be
subject to all Notifications, Rules,
Regulations,
Bye-Laws,
Orders
and
directions issued or made under the said
Act or any other enactment in force in the
city at the time immediately preceding
the inclusion of such area. The exception
to this inclusion is the land/area, which is
declared agricultural area under the U.P.
Urban Area Zamindari Abolition and
Land Reforms Act, 1956, by undertaking
the procedure prescribed under that Act.
It is only a declaration made under the
U.P. Urban Area Zamindari Abolition
and Land Reforms Act, 1956, which
provided for the applicability of U.P.Z.A.
and L.R. Act over the agricultural area
coming within the municipal limits.

15. There was no evidence adduced
before the Revenue or the Civil Courts
and even before this Court to show that
the area in question was got declared
agricultural by a notification issued under
the U.P. Urban Area Zamindari Abolition
and Land Reforms Act, 1956.

16. It has been argued that the
Hindu Succession Act was applicable in
the urban limits of the city of Lucknow
and after extension of the city limits by a
notification on 3.2.1987, the applicability
of the said Act was also extended over
the area in question and on the death of
Sri Ajay Kumar Mukharjee intestate in
1992, the law as applicable for the
devolution of the property in question
would also apply to the land in question.

17. Learned counsel for the
petitioners has placed reliance upon Ram
Lal and others vs. Deputy Director of
Consolidation, Hamirpur and others,
1988 RD 309; Hari Bans Bahadur vs.
State of U.P., 1980 ALJ 545; and
Maharaj Singh vs. Deputy Director of
Consolidation, Bareilly and others,
1990(8) LCD 609, to buttress this
argument.

18. It has been argued by Sri Mohd.
Arif Khan, learned Senior Advocate,
appearing for the private opposite parties
that the zamindari was abolished in
agricultural areas lying in city and towns
under the 1956 Act. The 1956 Act gave a
specific procedure for demarcation of
agricultural
area
within
urban
agglomeration
and
after
inviting
objections and deciding the same, a
declaration needed to be published under
Section 8 of the Act of 1956 for the
demarcated agricultural area to vest in
the State free from all encumbrances.

19. It has been argued that the
grounds taken in the writ petition are
misconceived
as
"urban
land"
has
nowhere been defined either in the Act of
1950 or in the Act of 1973. The
petitioners have raised vague pleas with
regard to the definition of "urban land"
and "agriculture land" becoming urban
land, ignoring the provisions of Section
143 of the Act of 1950. It has been
argued that the land in dispute has never
been declared as land used for purposes
other than agriculture by any of the
authorities under the provisions of the
Act of 1950.
418 INDIAN LAW REPORTS ALLAHABAD SERIES

20. In the counter affidavit filed by
the contesting respondents, it has been
stated that Anil Dev Mukharjee had
purchased the property in question in the
name of his minor son Ajay Kumar
Mukharjee and remained in possession of
the property in question till the death of
Anil Dev Mukharjee in the year 1985. On
the death of Anil Dev Mukharjee, Ajay
Kumar
Mukharjee
remained
in
possession of the property in question till
28.5.1992 when he died. On the death of
Ajay Kumar Mukharjee, the names of
opposite party nos.2 and 3 were recorded
as
Bhumidhar
by
the
Supervisor
Kanoongo in exercise of his powers
under Section 33-A of the U.P. Land
Revenue Act. Because the property in
question was agricultural in nature, it was
beyond the scope of the Urban Land
Ceiling Act, 1976 and though the
declaration was made by the Prescribed
Authority on 26.11.1979 of a major part
of Plot No.254/2 as vacant land, the
possession thereof was never taken from
Late Ajay Kumar Mukharjee.

21. On repeal of the Act in 1999
and on the death of Ajay Kumar
Mukharjee, the names of opposite party
nos.2 and 3 were recorded as Bhumidhar
on 25.12.1999. The opposite party nos.2
and 3 sold off 2/3rd of the property in
question by two registered Sale Deeds on
19.7.2000 and 19.7.2001 to M/s. New
Hassan Sahkari Awas Samiti, Khurram
Nagar, Lucknow.

22. The contents of the writ petition
have been vehemently denied by the
contesting respondents in so far as they
relate to the property in question being
converted
into
Urban
and
nonagricultural land after the Master Plan
was issued for the city of Lucknow,
incorporating village Kamta therein in
1970 under the Regulation of Building
Operations Act, 1956, and after the
expansion
of
municipal
limits
in
February, 1987 and the issuance of
Master Plan under the U.P. Urban
Planning and Development Act, 1973 in
the year 2001 w.e.f. 1992.

23. It has been contended that there
was no declaration under Section 143 of
the Act of 1950, therefore, the property
in question continued to be governed by
the provisions of Section 171 of the Act
and the petitioner-Smt. Uma Mukharjee
could not be considered the legal heir of
her son in view of the presence of the
son's widow and his son i.e. opposite
party nos.2 and 3.

24. Reena Mukharjee and Raja
Ajay Mukharjee, the defendants in
Regular Suit No.320 of 2000 had filed an
application under Order VII, Rule 11 of
C.P.C. numbered as Paper no.20-C,
contending that no declaration under
Section 143 of the Act of 1950 had been
made with respect to the property in
dispute and it continued to remain
agricultural land situated in village
Kamta. The names of the defendants in
the Suit were recorded as Bhumidhar, not
only in the Records of Rights i.e.
Khatauni for 1407-1412 Fasli, but also in
the Field Book i.e. Khasra of the relevant
years. Kisaan Bahi had also been issued
in the name of Ajay Kumar Mukharjee,
showing the crops of Arhar/Toordaal
having been sown on the property in
question. It had been submitted in the
Application numbered as 20-C that the
Suit was not maintainable for declaration
of rights on agricultural land in view of
the bar mentioned under Section 331 of
the Act of 1950.
8 All. Smt. Uma Mukerji Vs. The Board of Revenue Allahabad
419

25. Also, even in areas where
Master Plan is available, the land may
remain as agricultural or non-agricultural
and would be governed by the Statute
under which the same was covered
before coming into force of the Master
Plan. Merely because land was included
within the municipal limits of the city of
Lucknow would not take it out of the
purview of the Act of 1950. It would
continue
to
be
governed
by
the
provisions relating to devolution of
property of Bhumidhar under Section
171 of the Act of 1950. The provisions of
Hindu Law of Succession do not apply in
such matters.

26. The contesting respondents
further argued that Reena Mukharjee and
Raja Ajay Mukharjee had sold of 2/3rd
of the property in question to opposite
party no.4 in 2000 and 2001 through
registered Sale Deeds. The interim
injunction granted by the Civil Court in
Regular Suit filed by the petitioners was
ex-parte and on receiving notices of the
said Suit being filed, opposite party no.5
had moved an application under Order
VII Rule 11 of the Code of Civil
Procedure (for short ''C.P.C.'), praying
for rejection of the plaint. The interim
injunction continued to operate only on
1/3rd of the property. The opposite party
no.4 after purchasing 2/3rd share in the
property in Suit wanted to have its land
separated and demarcated and, therefore,
filed a Suit for Partition under Section
176 of the Act of 1950 before the Sub
Divisional Magistrate, Lucknow. Since
the petitioner-Smt. Uma Mukharjee was
not the recorded tenure holder of the
property in question, there was no need
to implead her as an opposite party. The
rights of the petitioner have yet to be
recognized by the competent Court of
Law. In this Suit for Partition, a
preliminary Decree was passed on
3.1.2003 in which, the rights of the
parties were declared. The opposite party
no.4 was recognized as purchaser of
2.530 hectares of land of Plot no.254/2
ad-measuring 3.957 hectares. The rest of
the plot in question i.e. 1.427 hectares
remained with Reena Mukharjee and
Raja Ajay Mukharjee. The preliminary
Decree was never challenged by the
petitioner. Only when the opposite party
no.3 ordered preparation of a final
Decree on 31.5.2003, the said order for
preparation
of
final
Decree
was
challenged by way of Revision as well as
Appeal simultaneously by the petitioner.

27. Learned counsel for the private
opposite parties has placed reliance upon
(2008) 12 SCC 181: Mahant Dooj Dass
(Dead)
through
LR.
vs.
Udasin
Panchayati Bara Akhara and another,
to say that unless a property is
demarcated and vested as per procedure
prescribed under Sections 3 to 8 of the
1956 Act, the provisions of section 331
of the 1950 Act incorporated in the 1956
Act would not apply and there would not
be any bar to the Civil Court to entertain
the Suit relating to declaration of rights
on agricultural land.

28. Learned counsel for the opposite
parties has also placed reliance upon the
Statement of Objects and Reasons of the
Urban Land Ceiling Act, the Regulation
of Building Operation Act, 1956 and
U.P. Urban Development and Planning
Act, 1973 to say that the application of
these three Acts to the Village in
question i.e. Village Kamta, District
Lucknow would not automatically mean
that the requirement of following the
procedure prescribed under Section 143
420 INDIAN LAW REPORTS ALLAHABAD SERIES
of the 1950 Act and getting a declaration
from the Assistant Collector First Class
after due enquiry under the said Section
has been done away with. The Urban
Land Ceiling Act of 1976 was merely
aimed at declaring vacant land in urban
agglomeration and vesting the same in
the State of U.P. for future use of
expansion
of
urban
activities
of
Municipal
Corporations
etc.
The
Regulation of Building Operation Act
and
the
Urban
Planning
and
Development Act had only aimed at
stopping haphazard growth in urban
areas. There was no prohibition for
carrying out agriculture in such areas.
They only aimed to regulate development
through
constitution
of
Housing
Boards/Development Authorities. It has
been argued that if a Housing Society
wishes to develop a residential colony, it
shall have to seek a declaration under
Section 143 of the Act of 1950. There
cannot be any presumption as to
automatic declaration under Section 143
and even if no agricultural activities are
carried out for several years on such land.

29. Learned counsel for the
opposite parties has relied upon The
Triveni Engineering Works Ltd. and
another vs. Government of U.P. and
others, 1978 Allahabad Law Journal
744 and Allauddin alias Makki vs.
Hamid Khan, 1971 RD 160, to argue
that use of land for purposes not
connected with agriculture for a long
time would not avoid the necessity of
obtaining a declaration under Section 143
of the Act of 1950.

30. Learned counsel for the
opposite parties has also relied upon of
judgment rendered in Mahendra Singh
vs. Attar Singh and others, 1967 RD
191, to say that personal Law like Hindu
law or Mohammedan Law is irrelevant
for the purpose of determination of
Bhumidhari rights. It has been argued
that Bhumidhari rights are special rights
created by the Act of 1950 for the first
time and these new rights are solely
governed by the provisions of the Act.
By Section 152 of the Act of 1950, the
rights of a Bhumidhar are transferable,
subject only to the conditions mentioned
thereunder. Application of personal Laws
regarding devolution of joint family
property would curtail the right given to
Bhumidhar by Section 152 of the Act.
Sections 171 to 173 of the Act of 1950
lay down a special mode of Succession,
which is wholly inconsistent with the
rights of a coparcener in joint family
property as per personal Laws.

31. Counsel for the opposite parties
has also relied upon Anis Ahmad and
others vs. State of U.P. and others, 1967
RD 75, to argue that a plot of land on
which a mosque or a house is situated
would not cease to be a land within the
meaning of Section 3(14) of the Act of
1950 unless a declaration under Section
143 of the Act is made by the Assistant
Collector First Class/Tehsildar after due
enquiry in this regard.

32. It has been further submitted
that
the
plea
regarding
lack
of
jurisdiction was raised at the initial stage
on the basis of Section 331 of the Act of
1950 as a Suit for Declaration of rights is
covered under Serial No.34 of ScheduleII attached to the Act. The application
under Order VII Rule 11(d) was wrongly
rejected by the trial court, but in Civil
Revision, the same was allowed and the
suit
was
dismissed
for
want
of
jurisdiction, giving liberty to file the
8 All. Smt. Uma Mukerji Vs. The Board of Revenue Allahabad
421
same before the competent Revenue
Court.

33. Counsel for the opposite parties
has also relied upon Magnu Ahir and
others vs. Mahabir, 1987 Revenue
Judgments 146, to argue that a land shall
not be treated to be Abadi land on which
Consolidation Authorities would not
have jurisdiction, unless the declaration
under Section 143 of the Act of 1950 is
made, allowing him to use the land for
the purpose other than agriculture. A
Bhumidhar cannot transfer his land or
deal
with
it
otherwise
during
consolidation operations, on the ground
that the land has become Abadi and he
could deal with it in any manner he liked.
The jurisdiction to grant a declaration
under Section 143 lies exclusively in the
Revenue Courts. If the question whether
certain land has ceased to be used for
agricultural purposes is raised before the
Civil Court, it is bound to refer the
question to the Revenue Court as per
Section 331-A of the Act of 1950.

34. Learned counsel for the
opposite parties have also relied upon
Indrajeet Singh vs. Sardar Arjun Singh
and others, 1983 (1) LCD 10, to argue
that no declaration having been made in
respect of land in Suit as envisaged under
Section 143 of the Act of 1950, the land
in suit, did not cease to be ''land', and
rights of tenure holders could be
determined by Consolidation Authority.
Even if on certain plots of land, which
form part of the holding, constructions
were made, such land would not cease to
be part of the holding and would
continue to be recorded as such and the
provisions of the Act of 1950 will cover
such land and in the absence of any
declaration being granted under Section
143, if any plot of the holding has
become Abadi or is used as such, it will
continue to be recorded in the holding
with the remark against it as "Abadi
Shamil Jot".

35. In a supplementary affidavit
filed by the petitioners on 14.7.2017, it
has been stated that the learned Court
below has wrongly relied upon the
revenue records, where there was no
change
of
land
use
recorded
in
accordance with Section 143 of the Act
of 1950. For deciding the issue regarding
nature of land and whether it was
agricultural
or
non-agricultural,
the
learned Courts below have relied upon
the
reports
submitted
to
the
Sub
Divisional Magistrate by the subordinate
Officials under Section 331-A of the Act
of 1950. Under Section 331-A of the Act
of 1950, if any Suit relating to land held
by the Bhumidhar is instituted in any
Court and the question arises whether the
land in question is or is not used for the
purposes connected with agriculture, and
declaration has not been made in respect
of such land under Sections 143 or 144 of
the Act, the Court shall frame an issue on
the question and send it to the Assistant
Collector Incharge of the Sub Division
for the decision of that issue only. In the
proviso to the said Section, it has been
mentioned that where the suit has been
instituted in the Court of Sub Divisional
Magistrate/Assistant Collector Incharge
of Sub Division, it shall proceed to
decide the question in accordance with
the provisions of Section 143 or 144, as
the case may be. The Assistant Collector
Incharge of Sub Division after re-framing
the issue, if necessary, shall proceed to
decide such issue in the manner laid
down for making of a declaration under
Section 143 and return the record
422 INDIAN LAW REPORTS ALLAHABAD SERIES
together with his finding thereon to the
Court which referred the issue. The Court
shall then proceed to decide the suit
accepting the finding of the Assistant
Collector Incharge of Sub Division on
the issue referred to it and such finding
shall be deemed to be part of the finding
of the Court which referred the issue.

36. Section 143 of the Act of 1950
provides that the Assistant Collector
Incharge of Sub Division may either on
application or Suo Moto make an enquiry
in the manner prescribed and make a
declaration that the Bhumidhar''s holding
or a part thereof demarcated by him, is
being used for a purpose not connected
with agriculture. Upon the grant of such
declaration, the Bhumidhari rights of
land shall cease to be governed by the
Act of 1950 in matters of devolution, but
shall be governed by personal law to
which, the Bhumidhar is subject.

37. The procedure to make an
enquiry under Section 143 is prescribed
under Rule 135 of the U.P.Z.A. and L.R.
Rules, 1952.