# Yogendra Pratap Singh v. Jitendra Pratap Singh

- **Citation:** (2021) 8 ILRA 322
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-19
- **Case number:** Misc. Single No. 7346 of 2021
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yogendra-pratap-singh-v-jitendra-pratap-singh-47182
- **Pages:** 10

## Headnote

Hindu Gains of Learning Act, 1930 - U.P.
Zamindari Abolition and Land Reforms
Act, 1950-Petitioner claims declaration over his
portion of land (to give legal effect)which has
been divided in between him and his brother in
family settlement- and further injunction soughtCivil Court rejected plaint as not maintainable-
Revenue Court has the jurisdiction-if no relief
can be granted unless declaration of his tenancy
rights -suit is cognizable by Revenue Court-Act,
1930 is a personal law-all personal law with
regard to devolution of property becomes
immaterial in view of Act of 1950. No illegality in
impugned order-W.P. dismissed.

Held, . With respect to agricultural land, the Act
of 1950 is a special Act which would be
applicable notwithstanding any other law for the
time being in operation. The Act of 1950 for the
first
time
created
rights,
temporary
or
permanent, over agricultural land, it had been
promulgated for an entirely different purpose as
has been mentioned in the "Statement of
Objects and Reasons" of the said Act. The Act of
1930 need not have been repealed by the Act of
1950 as in pith and substance, the Act of 1930
dealt with self acquired property through gains
of learning by a member of a joint Hindu family
even with some aid of joint family funds. The
Act of 1930 is personal law. All personal law
with regard to devolution of property becomes
immaterial in view of the Act of 1950 as the Act
of 1950 creates for the first time Bhoomidhari
rights. (para 24)

W.P. dismissed. (E-7)

List of Cases cited:

1.Mangal Singh Vs Harkesh AIR 1958 Alld 42

2.Ram Awalamb & ors. Vs Jata Shankar & ors.,
1968 RD 470

## Text

322 INDIAN LAW REPORTS ALLAHABAD SERIES
21.01.1996 and issue a corrected High
School Marksheet and Certificate within a
period of four weeks from the date a copy
of this order is produced before him.

17. The writ petition stands allowed.
----------
(2021)08ILR A322
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.08.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Misc. Single No. 7346 of 2021

Yogendra Pratap Singh ...Petitioner
Versus
Jitendra Pratap Singh ...Respondent

Counsel for the Petitioner:
Satish Chandra Kashish

Counsel for the Respondent:
-----

Hindu Gains of Learning Act, 1930 - U.P.
Zamindari Abolition and Land Reforms
Act, 1950-Petitioner claims declaration over his
portion of land (to give legal effect)which has
been divided in between him and his brother in
family settlement- and further injunction soughtCivil Court rejected plaint as not maintainable-
Revenue Court has the jurisdiction-if no relief
can be granted unless declaration of his tenancy
rights -suit is cognizable by Revenue Court-Act,
1930 is a personal law-all personal law with
regard to devolution of property becomes
immaterial in view of Act of 1950. No illegality in
impugned order-W.P. dismissed.

Held, . With respect to agricultural land, the Act
of 1950 is a special Act which would be
applicable notwithstanding any other law for the
time being in operation. The Act of 1950 for the
first
time
created
rights,
temporary
or
permanent, over agricultural land, it had been
promulgated for an entirely different purpose as
has been mentioned in the "Statement of
Objects and Reasons" of the said Act. The Act of
1930 need not have been repealed by the Act of
1950 as in pith and substance, the Act of 1930
dealt with self acquired property through gains
of learning by a member of a joint Hindu family
even with some aid of joint family funds. The
Act of 1930 is personal law. All personal law
with regard to devolution of property becomes
immaterial in view of the Act of 1950 as the Act
of 1950 creates for the first time Bhoomidhari
rights. (para 24)

W.P. dismissed. (E-7)

List of Cases cited:

1.Mangal Singh Vs Harkesh AIR 1958 Alld 42

2.Ram Awalamb & ors. Vs Jata Shankar & ors.,
1968 RD 470

3. Ram Padarath & ors. Vs IInd Additional
District Judge, Sultanpur 1989 RD 21 (FB)

4.Chandrika Misir Vs Bhaiya Lal; AIR 1973 SC
2391

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

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

7. Mahendr Singh Vs & ors. , 1967 RD 191

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

1. This writ petition has been filed by
the petitioner challenging the order dated
04.07.2013 passed in Misc. Case No.110 of
2013:Yogendra
Pratap
Singh
versus
Jeetendra Pratap Singh, and also the order
dated 09.11.2020 passed in Civil Appeal
No.56 of 2020.

2. It is the case of the petitioner that
his father Late Kaamta Singh was a police
8 All. Yogendra Pratap Singh Vs. Jitendra Pratap Singh
323
employee who retired in the year 1970.
From his earning as well as by taking
advance on his G.P.F. account, Kaamta
Singh had bought certain land in village
Adhar Khera Tahsil Bakshi ka Talab
Lucknow and also some land in district
Mau. He had inherited some land through
family settlement in District Sultanpur also.
There is no dispute regarding land situated
in Sultanpur as it has been of ancestral
stock and divided among the petitioner and
his brother Jitendra Pratap Singh equally.
The land that was bought by the father of
the
petitioner
in
Adhar
Khera
was
fraudulently got registered by Kaamta
Singh's brother, that is the petitioner's uncle
in his name. The petitioner was educated
and working as an Advocate. When
consolidation proceedings where initiated
in 1996 in village Adhar Khera the
petitioner filed objection under Section 9A
2 of the Act and land that had been wrongly
got registered in his uncle's name, was
registered in the name of the petitioner and
his brother. Section 52 publication has been
done in Village Aadhar Khera in 2003. The
brother of the petitioner was unemployed
and looked after farming and the petitioner
divided his time between his profession as
an Advocate and the farming that was
being done at village Aadhar Kheda.

3. It is the case of the petitioner that in
1977 after the retirement of the father of
the petitioner he divided his property
amongst the petitioner and his brother
orally. The respondent no.1 was given land
situated in village Teghna District Mau
where one huge pond of 6 acres had been
got dug out by the petitioner's father which
was being used for fish farming. The
petitioner was given land situated at village
Aadhaar
Khera
Distt
Lucknow.
The
petitioner and respondent no.1 continued in
possession of their share and now have
become old therefore, were in agreement
that the family settlement that was entered
into between the two brothers at the
instance of Kamta Singh during his lifetime
be given legal and binding colour. Hence
the petitioner filed a suit for Declaration
and Permanent Injunction before the Civil
Judge (Junior Division) Havali Lucknow.

4. It is the petitioner's case that the
petitioner had claimed a Declaration on the
basis of Hindu Gains of Learning Act 1930
(hereinafter referred to as ''the Act of 1930')
and not under the U.P. Zamindari Abolition
and Land Reforms Act 1950 (hereinin after
referred to as ''the Act of 1950'). The
Munsarim put up a wrong report that the
case is cognizable by the Revenue court
and not by the Civil court. On the basis of
this wrong report, the Civil Judge (Junior
Division) Havali, Lucknow got it registered
as Miscellaneous Case No.110 of 2013 for
the purpose of deciding the question of
jurisdiction of the civil court. The Civil
Judge (Junior Division) thereafter rejected
the suit on the ground of not being
maintainable before the civil court by
observing that the disputed property, that
is, the land of plot no.25 situated at village
Aadhaar Kheda district Lucknow which is
recorded in the name of the defendant, is an
agricultural land. The Plaintiff on the basis
of a partition made by his father orally, had
prayed for deletion of the name of the
defendant from the revenue record and
Declaration of Title and recording of entry
in plaintiff's name in the revenue records.
Since the plaintiff had sought declaration of
title over agricultural land which can be
granted only by the revenue courts under
the U.P.Z.A.&L.R. Act and because such
declaration cannot be given by the civil
court, the civil court had no jurisdiction.
Consequently, the suit was rejected as not
maintainable. Aggrieved by the same, the
324 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner filed a Revision under Section
115 C.P.C. before the learned Special
Judge/Additional District Judge Lucknow.
The Revision was rejected on 27.07.2015.
It has been stated that the Additional
District Judge wrongly came to the
conclusion that the land in question being
agricultural land, a declaration of title being
sought over it, can only be given by the
revenue court.

5. It is the case of the petitioner that
the land in question had been acquired by
the father of the petitioner under Act of
1930 and therefore the Act of 1950 had no
application on it. The petitioner challenged
the order passed by the Civil Judge (Junior
Divsion)
Havali
Lucknow,
dated
04.07.2013 and also the order dated
27.07.2015 passed by the learned Special
Judge/Additional District Judge in a Writ
Petition before the High Court bearing
No.6339 (M/S) 2015. The Court taking it
up as fresh pointed out that against the
order passed by the Civil Judge (Junior
Divsion) dated 04.07.2013 the petitioner
should have filed an Appeal before the
District Judge and not a Revision. The
petitioner withdrew the writ petition on
29.10.2015. The petitioner thereafter filed
Civil Appeal No.56 of 2020. The Appeal
has been dismissed by the District Judge on
a mechanical observation that the Special
Judge/Additional District Judge Lucknow
while rejecting the Revision was also
exercising the power of an Appellate Court.
Once the order dated 4.07.2013 had been
affirmed in Revision by a court having
coordinate jurisdiction as that of the
District
Judge,
the
judgement
dated
27.07.2015 would act as Res Judicata and
the Appeal would not be maintainable. The
order dated 04.07.2013 and the order dated
09.11.2020 have been challenged in Writ
Petition No. 7346 (MS) of 2021.

6. It has been submitted by the
learned counsel for the petitioner Shri
Satish Chand Kashish that the petitioners
case ought to have been decided by the
Civil court in view of the Hindu Gains of
Learning Act 1930 and the trial court had
wrongly sent the petitioner to the revenue
court and has wrongly refused to exercise
jurisdiction saying that the land in question
over
which
the
petitioner
seeks
a
declaration
is
agricultural
land
and
therefore the jurisdiction of the civil court
is barred under the provisions of the Act of
1950.

7. After giving the learned counsel for
the petitioner a hearing at length, the
petitioner wanted to argue the matter in
person and sought permission from the
Court. He was also heard as he said that he
was practising on the revenue side before
the lower courts for the past 50 years. It
was argued by the petitioner in person that
the Act of 1950 became enforceable with
effect from July 1952 where as the Act of
1930 has been in operation much before
Independence and has not been repealed by
the U.P. Act of 1950, therefore, being a
special Act, and not being specifically
overruled, it shall override the provisions of
the U.P. Act no. 1 of 1951. In the written
submissions filed by the learned counsel
for the petitioner Shri Satish Chand
Kashish, an extract of a Commentary
published by the Eastern Book Company
whose Author is Shri Vishwanath Prasad
Srivastava, has been filed. The extract
refers to judgement rendered in Mangal
Singh versus Harkesh AIR 1958 Alld 42,
where it was held that if the property had
been acquired with the smallest aid of the
joint family fund, then the acquisition
would be deemed to be a joint family
property. It would be the duty of the person
in whose name the deed stood and who said
8 All. Yogendra Pratap Singh Vs. Jitendra Pratap Singh
325
that it was his separate property to prove
that he had not taken the aid of family
funds.

Prior to the Act of 1930, this kind of
property was taken to be joint family
property, but since the passing of the Act of
1930, the property acquired by special skill
and knowledge by an individual is deemed
to be his exclusive property. The Act of
1930 having not been repealed by the Act
of 1950 self acquired property could only
become joint family property if the person
who acquired it waived the intention of
holding it as his exclusive property, and
threw it in the common stock with the idea
of abandoning all his personal and
exclusive claim over it.

8. The petitioner in person had also
placed before this court a copy of the Act
of 1930. A perusal of Short Title and
extract as produced before this Court,
shows that it was an Act which was
notified to remove doubts as to the rights of
a member of a Hindu undivided family in
the property acquired by him by means of
his learning and to provide a uniform rule
as to its dispensation. As defined under
Section 2(b) of the said Act, "gains of
learning" means all acquisition of property
made substantially by means of learning,
whether such acquisitions be made before
or after the commencement of the Act,
whether such acquisitions be the ordinary
or the extraordinary result of such learning.
"Learning" has been defined under the
Section 2(c) of the Act as education,
whether elementary, technical, scientific,
special or general, and training of every
kind which is usually intended to enable a
person to pursue any trade, industry,
profession or avocation in life. It is the case
of the petitioner that the property in
question has been acquired by his father
through his learning and it being his
property he had given it to the petitioner
who filed a suit for Declaration.

9. In the written submission that has
been filed by Shri Satish Chand Kashish a
copy
of
the
extract
of
the
book
"Commentaries
on
U.P.
Zamindari
Abolition and Land Reforms Act 1950" has
been filed. A perusal of such extract shows
that the petitioner has filed the "Statement
of Objects and Reasons" for bringing in the
Act of 1950. The principal aim of the Act
of 1950 was to remove intermediaries
between the cultivator and the State and the
aim was to bring about a radical change in
the existing land system through a
coordinated plan of rural reconstruction to
ensure agricultural efficiency and increase
food production and to raise the standard of
living of the rural masses, and to give
opportunities for the full development of
the peasants personality. "The landlord
tenant system established by the British for
reasons of expediency and administrative
convenience, should, with the dawn of
political freedom, give place to a new order
which restores to the cultivator the rights
and the freedom which were his and to the
village community the supremacy which it
exercised over all the elements of village
life".

10. The Act of 1950 provided for
three kinds of tenure for the first time.
Bhoomidhari rights would be given to all
tenants who paid 10 times of the rent in one
instance. The remaining tenants would be
called
Sirdars
with
permanent
and
inheritable rights in land, and the right to
use the land for any purpose connected
with agriculture, horticulture or Animal
Husbandry, and to make any improvements
till such time that their rights matured into
Bhoomidhari rights. A temporary or minor
form of land tenure called Asami was also
326 INDIAN LAW REPORTS ALLAHABAD SERIES
created for a small number of non-occupancy
tenants, of land in which stable rights cannot
be given such as tracts of shifting or unstable
cultivation, or a person to whom land is left
in future by such Bhumidhar or Sirdars who
were incapable of cultivating the land
themselves because of physical or mental
infirmity. The general body of tenants of
Sirdars on whom hereditary rights do not
accrue, and of the existing sub-tenants would
be given security of tenure for a period of five
years after which they could, on payment of
15 times the hereditary rate of the rent of the
tenant in chief, acquire Bhoomidhari rights.
The Act of 1950 provided for all lands of
common utility, such as Abadi sites,
pathways, wasteland, forests, fisheries, public
wells, tanks and water channels, to be vested
in the village community on the Gaon Samaj
consisting of all residents of the village as
well as landless labourers. Gram Panchayat
acting on behalf of the village community
was
entrusted
with
powers
of
land
management. This measure was intended to
make the village a small republic and a
cooperative community to facilitate economic
and social development and increase the
growth
of
social
responsibility
and
community spirit. In order to remedy the
inefficiency and waste involved in the
cultivation of existing uneconomic holdings,
the Act of 1950 made a provision for
encouragement
and
rapid
growth
of
cooperative farming.

11. The Act of 1950 received the assent
of the President on January 24, 1951 under
Article 201 of the Constitution of India and
was published on 26.01.1951 in the Uttar
Pradesh Gazette extraordinary. The said Act
was challenged promptly and the Supreme
Court upheld the constitutionality of the Act
in the case of Attar Singh versus State of U.P.
and others, and it became enforcible from
July 1952.

12. The learned counsel for the
petitioner has argued that since the
petitioner intended to get the land which
was the self acquired property of his father
Kamta Singh divided in terms of family
settlement, there were no rights derived
under the Act of 1950. The rights to the
property acquired by Kamta Singh were
governed by the Act of 1930 as they were
acquired out of income generated from his
employment in the police department.
Section 229B of the Act of 1950 would not
be applicable and consequently there would
not be any bar under Section 331.

13. The relevant extract of Section
331 of the Act of 1950 is being quoted here
in below:

"331. Cognizance of suits, etc.
under this Act.- (1) Except as provided by
or under this Act no court other than a
court mentioned in Column 4 of Schedule II
shall, notwithstanding anything contained
in the Civil Procedure Code, 1908 (V of
1908), take cognizance of any suit,
application, or proceedings mentioned in
Column 3 thereof [,] [or of a suit,
application or proceedings based on a
cause of action in respect of which any
relief could be obtained by means of any
such suit or application:]

[Provided
that
where
a
declaration has been made under Section
143 in respect or any holding or part
thereof, the provisions of Schedule II
insofar as they relate to suits, applications
or proceedings under Chapter VIII shall
not apply to such holding or part thereof.]

[Explanation.- If the cause of
action is one in respect of which relief may
be granted by the revenue court, it is
immaterial that the relief asked for from the
civil court may not be identical to that
8 All. Yogendra Pratap Singh Vs. Jitendra Pratap Singh
327
which the revenue court would have
granted.]

14. In Ram Awalamb and others vs.
Jata Shankar and others, 1968 RD 470, a
Full Bench of this Court has observed that
''if the Suit is maintainable for the main
relief in the Civil Court, then there is no
bar for the Civil Court to grant all possible
reliefs flowing from the same cause of
action. The determination of the question
as to which out of the several reliefs arising
from the same cause of action is the main
relief will depend on the facts and
circumstances of each case." It has been
further clarified and observed that ''where
on the basis of a cause of action- (a) 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 immaterial of determining the
proper forum of the suit; (b) the main relief
is 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.'(Emphasis
Supplied)

15. In Ram Padarath and others vs.
IInd Additional District Judge, Sultanpur
1989 RD 21 (FB), a Full Bench of this
Court after referring to Section 31 of the
Specific Relief Act, which makes a specific
provision for cancellation of void as well as
voidable documents, observed that voidable
documents are those whose legal effect
cannot be put to an end without they being
cancelled by a declaratory decree in this
regard by the civil court in a regular suit
filed under Section 31 of the Specific
Relief Act. A void document however is
not required to be cancelled necessarily. Its
legal effect, if any, can be put to an end by
declaring it to be void and granting some
relief based upon such observations instead
of canceling it. Once it is held to be void it
can be ignored by any court or authority,
being of no legal effect or consequence.
For such a void document to be declared
so, a person may approach the competent
civil court. However, if apart from
cancellation, some other relief is claimed
which is the "real relief" and the claim for
which provides the proximate ground or
reason for approaching the court of law, or
when any other relief can be claimed or is
involved in the matter cropping up because
of the evidence of the void document or
instrument, and the "real relief" claimed is
one which is mentioned in Schedule II of
U.P.
Zamindari
Abolition
and
Land
Reforms Act, the same can be granted by
the revenue court only, and the jurisdiction
of the civil court to grant such a relief or
reliefs is ousted by section 331 of the
U.P.Z.A. & L.R. Act. "The law relating to
right, title and interest over agricultural
land is contained in U.P. Zamindari
Abolition and Land Reforms Act. The said
Act being a special Act, enumerates in
Schedule II the types of suits etc, the
cognizance of which is to be taken by the
Revenue Court specified therein. In the
Explanation attached to Section 331, it has
been specifically mentioned that if the
cause of action is one in respect of which
relief may be granted by the revenue court,
it is immaterial that the relief asked for
from the civil court may be identical to that
which the revenue court would have
granted."

16. The Full Bench after considering
the phrase "cause of action" and the phrase
"any relief", as mentioned in Section 331 of
the Act, came to the conclusion that the
Explanation to Section 331 has enlarged its
scope further. The cause of action may
determine
the
form
and
keeps
the
328 INDIAN LAW REPORTS ALLAHABAD SERIES
jurisdiction of the revenue courts intact as
also the relief of the nature which is
mentioned under Schedule II of the
U.P.Z.A. & L.R. Act. The Full Bench
observed that the reliefs of the nature
mentioned in Schedule II of the U.P.Z.A.&
L.R. Act can be claimed from the Revenue
Court which can take cognizance of such
suit or proceeding, notwithstanding that the
relief provided in a different language can
also be granted by the Civil Court.

17. If no relief can be granted to a
person unless the declaration of his tenancy
rights is made, in that situation the suit
would be cognizable by the revenue court
as such a declaration can only be granted
by the revenue court. Even in cases where
the suit is for injunction and/or possession
if he is out of possession, then the suit will
be cognizable by the revenue court
notwithstanding
that
any
relief
for
injunction may otherwise be granted by the
civil court.

18. The Full Bench observed in Ram
Padarath (supra) in Para-19 thus:-

"19. If more than one reliefs are
claimed by a particular person, no relief
can be granted to that person unless
declaration of his tenancy rights is made
and in that situation the suit will be
cognizable by the revenue court as
declaration can be granted by the revenue
court. Similarly if a person claims relief of
injunction and in the alternative for
possession if he is found to be out of
possession and his name is not on the
record then without declaration that in fact
he is the tenant or he is in possession of the
tenancy rights no further relief can be
granted and the suit is cognizable by the
revenue court. In case the suit is for
injunction and/or possession if he is out of
possession then the suit will be cognizable
by the revenue court notwithstanding the
relief for injunction is to be granted by the
civil court.........The Civil Court would have
no Jurisdiction as the case first involved
declaration of right as tenure-holder which
could be granted by the revenue court only
and thereafter relief could have been
granted only if he was held to be tenureholder
by
succession........"(Emphasis
Supplied)

Similarly,
in
Indrapal
vs.
Jagannath 1993 ALJ 235, this Court
observed in Para-9 as follows:-

"9. Thus, the essence of the
matter in deciding whether the suit is
cognizable by the civil Court or the revenue
court is whether Section 331 of the U.P.
Zamindari Abolition and Land Reforms Act
is attracted to the facts of the case. If in
substance, the main question involved
relates to declaration of right or title, then
the suit would lie in the revenue court and
not in the civil Court......."(Emphasis
Supplied)

19. The Full Bench in Ram Padarath
(supra) relied upon Chandrika Misir versus
Bhaiya Lal; AIR 1973 SC 2391, which had
said in a case arising out of a suit for
injunction and in the alternative for
possession in respect of agricultural land,
that in view of Schedule II of the U.P.Z.A.
& L.R. Act, the relief of possession could
only be granted by the revenue courts under
Section 331 of the Act and thus ousted the
jurisdiction of the Civil Court. The
Supreme Court observed that the civil court
would have no jurisdiction as the case first
involves the declaration of rights as a
tenure holder which could only be granted
by the revenue courts, and thereafter relief
could
have
been
granted
regarding
injunction
to
protect
possession.
In
paragraph 22, the Full Bench observed that
8 All. Yogendra Pratap Singh Vs. Jitendra Pratap Singh
329
the forum for action in relation to void
documents or regarding agricultural land
depends on the "real cause of action" with
reference to the facts averred. Void
documents necessarily do not require
cancellation like voidable documents.

20. Ram Padarath (supra) has been
quoted with approval by the Supreme Court
in paragraph 18 of its judgment in
Bismillah versus Janeshwar Prasad and
others, 1990 (1) SCC 207.

21. In Kamla Prasad vs. Krishna
Kant Pathak (2007) 4 SCC 213, the
Supreme Court observed thus:

"...No doubt there is no relief of
declaration of ownership of agricultural
land specifically sought in the plaint, but in
essence the claim of plaintiff was based on
his ownership right of the disputed land,
while the plea of defendant was that
plaintiff was not owner of the property.
Then adjudication of title of land in
substance was the main question involved
in the suit, although, it was not expressly
prayed
for
in
plaint.
Therefore,
in
substance, when the main question involved
for adjudication in this case relates to
declaration of right or title then suit would
lie in revenue court and not in civil court.
Therefore, in such matter the jurisdiction of
civil court is barred under Section 331 of
UPZA & LR Act. This provision of Section
331 is attracted when in substance main
question to be determined for resolving
dispute
between
parties
relates
to
declaration of rights or title of agricultural
land....."(Emphasis Supplied)

22. This Court has carefully perused
the provisions of the Act of 1930, a copy of
which has been annexed to the writ
petition. It is evident that the Act was
intended to remove doubts as to the rights
of a member of a Hindu undivided family
property acquired by him by means of his
learning. Before the Act of 1930 any
property acquired by a member of joint
Hindu family either through his own
income or through the aid of Joint family
funds would become the property of the
Hindu joint family. With this Act a uniform
rule as to the right of a member of a Hindu
undivided family in property acquired by
him by means of his own gains of learning
was notified. It was immaterial that such
learning would have been in whole or in
part imparted to him by any member of the
joint family, or with the aid of the joint
family funds, or with the aid of the funds of
any member thereof, or either himself or
his family during the time he was acquiring
this learning was being maintained or
supported wholly or in part by the joint
funds of his family or by the funds of any
member thereof.

23. No doubt in the plaint filed before
the
Civil
Court
the
petitioner
has
mentioned in detail how his father acquired
property separate from the Joint Hindu
family property which he owned as
coparcener in Sultanpur, but there was no
quarrel with regard to whether the property
situated in district Mau or in District
Lucknow was not the self acquired
independent property of his father Kamta
Singh. Late Kamta Singh having acquired
the property out of his own income as an
employee of the police department had a
right to bequeath such property any person
whether belonging to his family or an
outsider and the petitioner was not seeking
a declaration from the civil court against
his collaterals who were coparceners in
Joint Hindu family property situated at
Sultanpur. It was alleged by the petitioner
that Kamta Singh during his life time orally
330 INDIAN LAW REPORTS ALLAHABAD SERIES
divided the self acquired property between
his two sons. The petitioner and the
respondent no.1. The petitioner was given
property
situated
in
Lucknow
and
respondent
no.1
was
given
property
situated in Mau. The petitioner alleged that
the name of his brother the respondent no.1
had been wrongly entered in the revenue
records of the property situated at village
Aadhaar Khera in Lucknow. He wanted the
name of respondent no. 1 to be expunged
from the revenue records and the property
situated in Lucknow to be declared as the
petitioner's Bhoomidhari and also prayed
for permanent injunction restraining the
respondent no.1 from interfering in the
peaceful possession of the petitioner on the
property situated in Lucknow.

Such a prayer as was made in the
plaint had nothing at all to do with the Act
of 1930 as it was not the case of the
petitioner that his father's right to bequeath
his self acquired property to his sons was in
question. It was the petitioner who sought
to base his case upon family settlement
(which settlement was seriously disputed
by the respondent), entered into between
the between him and his brother during the
lifetime of his father Kamta Singh. It was
simply a case under section 229 B of the
Act of 1950. If the petitioner wanted that
family Settlement that was entered into in
the lifetime of his father be given legal
effect to then he could have filed a suit for
partition under Section 176 of the Act of
1950. The partition was to be affected
between the petitioner and his brother not
between the petitioner and his collaterals.
This was not a case under the Act of 1930.

24. With respect to agricultural land,
the Act of 1950 is a special Act which
would be applicable notwithstanding any
other law for the time being in operation.
The Act of 1950 for the first time created
rights, temporary or permanent, over
agricultural land, it had been promulgated
for an entirely different purpose as has been
mentioned in the "Statement of Objects and
Reasons" of the said Act. The Act of 1930
need not have been repealed by the Act of
1950 as in pith and substance, the Act of
1930 dealt with self acquired property
through gains of learning by a member of a
joint Hindu family even with some aid of
joint family funds. The Act of 1930 is
personal law. All personal law with regard
to
devolution
of
property
becomes
immaterial in view of the Act of 1950 as
the Act of 1950 creates for the first time
Bhoomidhari rights. The petitioner was
asking for a declaration of his Bhoomidhari
rights over agricultural land which was not
recorded in his name but was recorded in
the name of his brother. In Mahendr Singh
versus others , 1967 RD 191, it has been
held by this court that personal laws like
Hindu law are irrelevant for the purpose of
determination
of
Bhoomidhari
rights.
Special rights were created by the Act of
1950 for the first time and these new rights
are wholly governed by the provisions of
the Act. By Section 152 of the Act of 1950,
the rights of a Bhoomidhar are transferable
subject only to the conditions mentioned
thereunder. Application of personal laws
regarding
devolution of
joint
family
property would curtail the right given by
Section 152 of the Act. Sections 171 to 173
of the Act of 1950 laid down the special
mode of succession which was wholly
inconsistent with personal laws.

25. The Civil Judge (Junior Divsion)
Havali rightly dismissed the Suit as not
maintainable
by
observing
that
the
petitioner wanted Plot No. 25 which was
recorded in the name of respondent no.1 to
be recorded in the name of the petitioner as
Bhoomidhar with transferable rights. Since
8 All. Abhishek Tiwari Vs. State of U.P. & Ors.
331
the land in question was agricultural land
on which a declaration was sought of
ownership, the Suit was found by the
Learned trial court to be barred under the
provisions of the Act of 1950. I do not find
any legal or factual infirmity in the order
dated 4.7.2013.

26. The District Judge besides
mentioning the merits of the petitioners
contention regarding the applicability of the
Act of 1930 vis-a-vis the Act of 1950,
additionally found that the Revision had
been dismissed by a Court of coordinate
jurisdiction and the court of District Judge
would not sit as appellate court over an
order passed in Revision by the Court of
Additional District Judge. The question of
jurisdiction was a pure question of law and
it makes no difference whether the
impugned order was assailed in Appeal or
Revision. No evidence was to be led, no
questions of fact were to be considered.
The Additional District Judge in Revision
had found that the Suit was filed for
declaration and injunction and it was
prayed that the name of the defendant be
removed from the revenue records over
plot no. 25 in village Aadhar Khera and the
name of the plaintiff be recorded therein as
Sankramaniya
Bhoomidhar.
Additional
District Judge had also noted the argument
raised by the learned counsel for the
petitioner that the property had been
acquired by his father, and therefore the
Act
of
1930
would
be
applicable
consequently the provisions of the Act of
1950 are not applicable, but had rejected
the argument on the ground that the Act of
1950 is a Special Act which has overriding
effect over personal law. The petitioner in
fact was seeking a declaration of his right
title under Section 229B of the Act of 1950
such declaration of title over agricultural
land can only be granted by the revenue
court as there was a bar under Section 331
of the Act. Even in respect of partition of
agricultural land there is a specific
provision under Section 176 of the Act.

27. The District Judge in his order
dated 09.11.2020 has observed that original
jurisdiction is also part of Appellate
jurisdiction and is exercised by the same
court upon which Revisional jurisdiction is
conferred. The District Judge also observed
that there was no question of fact that was
needed to be determined in the Appeal filed
before him, only a question of law relating
to jurisdiction of the civil court was
involved in the Appeal. The Revisional
court had already considered this question
of law and being a court of Coordinate
jurisdiction the District Judge could not sit
in Appeal over such view expressed
regarding lack of jurisdiction. I do not find
any infirmity in such observations of the
District Judge.

28. The petition is dismissed as
devoid of merit. No Order as to costs.
----------
(2021)08ILR A331
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.08.2021

BEFORE

THE HON'BLE RITU RAJ AWASTHI, J.
THE HON'BLE DINESH KUMAR SINGH, J.

Misc. Bench No. 10867 of 2021

Abhishek Tiwari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Anand Mani Tripathi, Himanshu Shukla

Counsel for the Respondents: