# MAHANTDOOJ DAS(DEAD)THROUGH LR v. UDASIN PANCHAYATI BARA AKHARA & ANR - **Citation:** [2008] 7 S.C.R. 470 - **Court:** Supreme Court of India - **Decided:** 2008-05-01 - **Case number:** Civil Appeal No.5060 of 2007 - **Bench:** P.P. Naolekar, Aftab Alam - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mahantdooj-das-dead-through-lr-v-udasin-panchayati-bara-akhara-anr-24680 - **Pages:** 28 ## Headnote ). Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 - s.331 -Applicability of- Jurisdiction of civil court c - Held: No evidence led by defendants that suit land was · demarcated under s. 5 and as such vested in State Government - Hence s.331 of 1950 Act not applicable - Unless land is vested in State Government, s.331 would have no application to oust jurisdiction of civil court - Burden lies ; D. on defendants to prove that suit lands were demarcated which they failed to discharge - Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Act, 1956 - ss. 5 and 8. ""1 Code of Civil Procedure, 1908 : ~ E s. 100 - Finding arrived at by trial court and first appellate court that plaintiff was initiated as the eldest chela of Mahant ) and was successor in respect of the suit property of Mahant - High Court framed substantial questions of law as to whether civil court has jurisdiction and whether suit was barred by F limitation - High Court held that suit was not maintainable before civil court- On appeal, Held: Neither any other question ... '... of law framed by High Court nor any other question decided by courts below put to challenge by framing substantial question of law - Hence finding of courts below regarding G plaintiff being successor of suit property attained finality. s. 100(5), proviso - Powers under - Exercise of - Held: Power of High Court to hear appeal on question of law not formulated is conferred by virtue of proviso to sub-section (5) ~ - of s. 100, but to apply provision of proviso it is necessary H 470 ; ' MAHANT DOOJ DAS (DEAD) THROUGH LR. v. 471 UDASIN PANCHAYATI BARAAKHARA & ANR. condition that High Court feels satisfied that case involves such A question on which hearing has to given to the parties although such substantial question of law has not been framed and secondly the High Court records its reasons for its satisfaction. Appeal - Before Supreme Court - New plea - Raising B of - Permissibility of - Held: Not permissible. The Mahant 'TD' was Udasin of a Panth. He acquired the suit properties by permanent leases and was in occupation thereof. The plaintiff-appellant filed suit for declaration of title and cancellation of the sale deeds on c the ground that after the death of Mahant 'TD' he being the eldest chela acquired the right and interest in the suit properties and one 'BO' claimed himself to be chela of Mahant 'TD' and transferred the rights under the leases to defendant no.1 through defendant no.2. The trial court D decreed the suit, which was affirmed by the First Appellate Court. ... ~ High Court reversed the order of Trial Court and First Appellate Court holding that by virtue of expression "which have been so demarcated under s.5 of the U.P. E Urban Areas Zamindari Abolition and Land Reforms Act, 1956" contained in the notification, indicate that the demarcation was made before the notification under s.8 of the 1956 Act was issued; thatthe land in question stood vested in the State of U.P. w.e.f. 1. 7 .1963; thatthe suit being F ,.. basically for declaration of the title and the cancellation of the sale deed in respect of the agricultural area under the 1956 Act is an ancillary relief and the real question between the parties was of title in respect of agricultural area covered under the 1956 Act; and that in view of the G provisions of s.82 of the 1956 Act read with s.331 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, the suit before the civil court between the parties was not '(_ maintainable before the civil court. ! The prime question for consideration before this H 472 SUPREME COURT REPORTS (2008] 7 S.C.R. A court is whether the land in suit would be covered and governed under the 1956 Act so as to apply the provisions of s.331 of 1950 Act to oust the jurisdiction of the civil court. Allowing the appeal, the Court B HELD: 1. The Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Act, 1956 received the assent of the President on 7.3.1957 and w ## Text _Characters 0–39,454 of 56,731. This is a partial read: ask again with offset=39454 for what follows._ [2008] 7 S.C.R. 470 A MAHANTDOOJ DAS(DEAD)THROUGH LR. A ...._ v UDASIN PANCHAYATI BARA AKHARA & ANR. (Civil Appeal No.5060 of 2007) B MAY 1, 2008 [P.P. NAOLEKAR AND AFTAB ALAM, JJ.] ). Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 - s.331 -Applicability of- Jurisdiction of civil court c - Held: No evidence led by defendants that suit land was · demarcated under s. 5 and as such vested in State Government - Hence s.331 of 1950 Act not applicable - Unless land is vested in State Government, s.331 would have no application to oust jurisdiction of civil court - Burden lies ; D. on defendants to prove that suit lands were demarcated which they failed to discharge - Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Act, 1956 - ss. 5 and 8. ""1 Code of Civil Procedure, 1908 : ~ E s. 100 - Finding arrived at by trial court and first appellate court that plaintiff was initiated as the eldest chela of Mahant ) and was successor in respect of the suit property of Mahant - High Court framed substantial questions of law as to whether civil court has jurisdiction and whether suit was barred by F limitation - High Court held that suit was not maintainable before civil court- On appeal, Held: Neither any other question ... '... of law framed by High Court nor any other question decided by courts below put to challenge by framing substantial question of law - Hence finding of courts below regarding G plaintiff being successor of suit property attained finality. s. 100(5), proviso - Powers under - Exercise of - Held: Power of High Court to hear appeal on question of law not formulated is conferred by virtue of proviso to sub-section (5) ~ - of s. 100, but to apply provision of proviso it is necessary H 470 ; ' MAHANT DOOJ DAS (DEAD) THROUGH LR. v. 471 UDASIN PANCHAYATI BARAAKHARA & ANR. condition that High Court feels satisfied that case involves such A question on which hearing has to given to the parties although such substantial question of law has not been framed and secondly the High Court records its reasons for its satisfaction. Appeal - Before Supreme Court - New plea - Raising B of - Permissibility of - Held: Not permissible. The Mahant 'TD' was Udasin of a Panth. He acquired the suit properties by permanent leases and was in occupation thereof. The plaintiff-appellant filed suit for declaration of title and cancellation of the sale deeds on c the ground that after the death of Mahant 'TD' he being the eldest chela acquired the right and interest in the suit properties and one 'BO' claimed himself to be chela of Mahant 'TD' and transferred the rights under the leases to defendant no.1 through defendant no.2. The trial court D decreed the suit, which was affirmed by the First Appellate Court. ... ~ High Court reversed the order of Trial Court and First Appellate Court holding that by virtue of expression "which have been so demarcated under s.5 of the U.P. E Urban Areas Zamindari Abolition and Land Reforms Act, 1956" contained in the notification, indicate that the demarcation was made before the notification under s.8 of the 1956 Act was issued; thatthe land in question stood vested in the State of U.P. w.e.f. 1. 7 .1963; thatthe suit being F ,.. basically for declaration of the title and the cancellation of the sale deed in respect of the agricultural area under the 1956 Act is an ancillary relief and the real question between the parties was of title in respect of agricultural area covered under the 1956 Act; and that in view of the G provisions of s.82 of the 1956 Act read with s.331 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, the suit before the civil court between the parties was not '(_ maintainable before the civil court. ! The prime question for consideration before this H 472 SUPREME COURT REPORTS (2008] 7 S.C.R. A court is whether the land in suit would be covered and governed under the 1956 Act so as to apply the provisions of s.331 of 1950 Act to oust the jurisdiction of the civil court. Allowing the appeal, the Court B HELD: 1. The Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Act, 1956 received the assent of the President on 7.3.1957 and was published in the U.P. Gazette Extraordinary dated 12.3.1957. The Act was brought into force to provide for the abolition of Zamindari C system in agricultural areas situated in urban areas of U.P. and for acquisition of the rights, title and interest of the intermediaries between the tiller of the soil and the State in such areas and for introduction of the land reforms therein. By virtue of s.8 of 1956 Act, after the agricultural area has been demarcated under s.5, the State D Government would issue a notification in the official gazette declaring that from specified date all demarcated area situated in the urban area shall vest with the State J'. ~ Government and from the date so specified all such agricultural area shall be transferred to and vest except E otherwise provided, in the State free from all encumbrances. There is no evidence led by the defendants that the suit land had been declared as a demarcated area and as such as vested with the State government under s.8 of the 1956 Act. In the absence of F proof, it cannot be said that the suit area is a demarcated area and thus vested in the State by issuance of the notification under s.8 of the Act. [Paras 12, 15] [484-G, H; 485-A; 488-G, H; 489-A; 491 C, G; 492·A] 2. For application of the provisions of s.331 of the G 1950 Act which has been incorporated in the 1956 Act, it was necessary for the defendants to prove that the suit lands had been demarcated by the State Government by taking necessary steps as contemplated under ss.3,4 cind .,. /1 5 of the 1956 Act. Ss.3,4 and 5 provide a complete code / H for demarcation of the agricultural are~ after giving ( MAHANT DOOJ DAS (DEAD) THROUGH LR. v. 473 > UDASIN PANCHAYATI BARAAKHARA&ANR. appropriate hearing to the party affected by the procedure A laid down therein, it also provides for aQ appeal to the Board of Revenue. It is only after the area is declared as demarcated area, s.8 will be attracted and the notification to that effect would be issued in regard to and in respect of such declared demarcated area to be vested in the B State Government. Unless the land is vested in the State Government, the provisions of s.331 of the 1950 Act would have no application to oust the jurisdiction of the civil court. [Para 18] [493-C-F] 3.1 The ouster of jurisdiction of a civil court is not c readily accepted and heavy burden of proof lies on the party who asserts that the civil court's jurisdiction is ousted and some other court, tribunal or authority has been vested with jurisdiction. [Para 17] [493-B] "\ Abdul Waheed Khan v. Bhawani and Others AIR 1966 D SC 1718; Sri Vedagiri Lakshmi Narasimha Swami Temple v. /nduru Pattabhirami Reddi AIR 1967 SC 781; Smt. Bismillah v. Janeshwar Prasad and Others (1990) 1 SCC 207; Sahebgouda (Dead) by LRs. and Others v. Ogeppa and Others E (2003) 6 SCC 151 and Dwarka Prasad Agarwal (D) by LRs. v. Ramesh Chander Agarwal and Others (2003) 6 SCC 220 - relied on. )r 3.2 No evidence has been led by the defendants on whom heavy burden lies to prove the fact that the suit F lands were declared demarcated. The defendants have claimed ouster of the civil court's jurisdiction only on the basis of s.331 of the 1950 Act incorporated in the 1956 Act. The defendants having failed to prove the applicability of that provision to the area in the suit, civil court's G jurisdiction cannot be said to have been ousted and 1 vested in the revenu~ court. [Paras 19-20] [493-F, H; \ I 494-A] / 4.1 The respondents for the first time before this Court tried to raise the question that the suit as it was filed, if H 474 SUPREME COURT REPORTS [2008] 7 S.C.R. A not barred under the 1956 Act, is competent to be heard by the revenue .court by virtue of the U.P. Tenancy Act, 1939 which was in force prior to the enforcement of the 1950 Act, the civil court would not have any jurisdiction to try the suit of the plaintiff. This new plea, which does 8 not appear to be a pure question of law cannot be permitted to be raised for the first time at the time of hearing of the appeal in this Court. The question of applicability of some other law was neither raised in the written statement nor before the courts below. [Para 21] C [494-B, C, D] 4.2 The High Court has framed only three substantial questions of law. Neither any other question of law has been framed by the High Court nor any other question decided by the courts below has been put to challenge D by framing substantial question of law in regard thereto at the time of or before arguments before the High Court. Thus, the finding arrived at, that the plaintiff was initiated as the eldest chela of Mahant 'TD' according to the custom and being the eldest chela was heir and successor in E respect of the suit property of Mahant 'TD' and that 'BO' did not succeed to the property of Bhupatwala (Hardwar) has attained finality. [Para 22) [494-D, E, F] 4.3 There is nothing on record that the High Court has exercised the powers under proviso to sub-section F (5) of s.100, CPC. The power of the High Court to hear an appeal on the question of law not formulated is conferred by virtue of proviso to sub-section (5) of s.100, CPC, but to apply the provision of proviso it is a necessary condition that the High Court feels satisfied that the case G involves such question on which the hearing has to given to the parties although such substantial question of law has not been framed and secondly the High Court records its reasons for its satisfaction. [Para 23] [494-G; 495-A, B] Santosh Hazari v: Purushottam Tiwari (Dead) by LRs., H AIR 2001 SC 965 - relied on. I MAHANT DOOJ DAS (DEAD) TH. LR. v. UDASIN 415 )- PANCHAYATI BARAAKHARA&ANR. Kshitish Chandra Purkait v. Santosh Kumar Purkait and A Others, AIR 1997 SC 2517 and Gian Dass v.Gram Panchayat, Village Sunner Kalan and Others, (2006) 6 SCC 271 - referred to. _;. 4.4 The High Court cannot deal with the issues unless B. a substantial question of law is framed by it. It appears that no other question than the questions of law already · framed by the High Court has been raised before the High Court nor the High Court has recorded its satisfaction that apart from the questions of law already framed any other substantial question of law has arisen nor the plaintiff was c put to notice that such other substantial question of law has arisen in the case to be heard. It cannot be said that any other substantial question of law than already framed by the High Court has either been framed or has been left ~· ""· open by the High Court to be adjudicated at a later stage: D No case is made out for remanding the matter to the Higli Court to hear the same on non-existing substanti~I question of law. [Paras 24 and 25) [496-D, E, F] 5. The civil court has rightly exercised its jurisdiction E in deciding the matter and the High Court after holding all the issues in favour of the plaintiff has erroneously dismissed the suit of the plaintiff holding that it was beyond competence of the civil court. The judgment of the High Court so far as it holds that the civil court has no jurisdiction and reversal of the decree passed by the F appellate court, is therefore required to be set aside. [Para 26) [496-H, 497-A, B] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5060 of 2007. G . -( From the Judgment and Order dated 23.2.2006 and " 28.3.2006 of the High Court of Uttranchal at Nainital in S.A. No. 1506/2001 and R.A. No. 26/2006 respectively. J , Nagendra Rai, Ramesh Chandra and Manjula Gupta for H 476 SUPREME COURT REPORTS [2008] 7 S.C.R. .... A the Appellant. Sakha Ram Singh, Ajit Kumar, Anant Vijay Palli, Rekha Palli and Atul Sharma for the Respondents. The Judgment of the Court was delivered by B P.P. NAOLEKAR, J. 1. The facts necessary for • adjudicating the question involved are that the plaintiff-appellant (for convenience hereinafter referred to as "the plaintiff') filed a suit claiming decree for possession over the properties/lands c [21 Bighas, 8 Biswa Kachhi Bhumi (land) No. Khasra 27M and 28M and Bhumi (land} 1 Big ha, 3 Biswa, 10 Biswanshi Kacchi No. Khasra 27M and 28M and Bhumi (land) 19 Bigha, 3 Biswa, 15 Biswansi Khasra No. 4M and Bhumi (land) 30 Bigha Kacchi No. Khasra 4M total Bhumi (land) 71 Bighas, 15 Biswa, 5 Biswansi Kacchi situated at Bhupatwala Kalan, Pargana D Jwalapur, Distt. Saharanpur and houses and 4 boundary walls >' ~ pakka and well with wheels and brick-kiln, garden and tube· ·well with oil engine and tin shed etc. which have been situated on the above mentioned land presently Khasra No. 4/5 (4/27) 48/6/2(28/26 and 48/28); Description of Boundary No. 1: East E - Way, West - Road Haridwar-Risl}ikesh, North - Land of Sohanlal Mistri, South- Na la and after that boundaries of Mahant Sadhu Singh; Description of Boundary No. 2: East - Road Haridwar-Rishikesh, South - Land of Shankaranand, North - Land of Brahamchari and after that Nala, West - Forest Land) F mentioned in the plaint after adjudging the sale deed dated 5.5.1962 registered on 19.6.1962 invalid executed by Budh • Dass in favour of Udasin Panchayati Bara Akhara, defendant No.1-respondent No.1 (for convenience hereinafter referred to as"defendant No.1") to be void and cancelling the same. The G suit was filed on the allegations that Mahant Tahal Dass was Udasin of Panth of Revered Shrichand. In the said Panth there is a custom that Mahant cannot marry and he is entitled to initiate '" a 'Che/a'. After the death of Mahant, his eldest chela Dooj Das r succeeded to all rights and interests in the properties of his H Guru. It is also a custom in the Panth that on the tenth day of the MAHANT DOOJ DAS (DEAD) TH. LR. v. UDASIN 477 "" >. PANCHAYATI BARAAKHARA &ANR. [NAOLEKAR, J.] death of Guru there is a ceremony called Dassehra. Akhand A Path of Guru Granth Saheb is performed and Bhog is offered and eldest chela of the deceased Guru is acknowledged as the heir of the deceased, whereafter he is known as 'Mahant'. Mahant Tahal Dass initiated the plaintiff-Dooj Das as his chela on 23.7.1937 at the Dera of Bhetiwala, Tehsil Muktasar, District B Ferozpur in accordance with the custom, in the presence of respectable persons and from that day the plaintiff became the chela of Mahant Tahal Dass. Mahant Tahal Dass died on 5.12.1957 and the plaintiff being the eldest chela was recognized and acknowledged as successor of the deceased c Mahant and thereafter was known as Mahant Dooj Dass. The plaintiff succeeded to all rights, properties and assets of Mahant Tahal Dass. Meanwhile, before the death of Mahant Tahal Dass, defendants Prag Dass, lshwar Dass and Hari Dass were also initiated as chelas by him. The plaintiff being the eldest chela, n .. "" succeeded to all the properties left by his Guru, according to the custom. Mahant Tahal Dass acquired the suit properties by permanent leases measuring 71 Bighas, 15 Biswa and 15 Biswansi Kachi situated at Bhupatwala Kalan, Pargana Jwalapur, Tehsil Roorkee, Distt. Saharanpur within the limits of E Municipal Board, Hardwar. Mahant Tahal Dass was the permanent lessee of these lands and he was in occupation thereof. He was cultivating the same through his men and sewaks. He was paying lagan_ also. After the death of Tahal )r Dass, the plaintiff became the permanent lessee of all the lands. He also had right therein as being the eldest chela, heir and F successor of Mahant Tahal Dass. Oh the occasion of Ardh Kumbhi, the plantiff went to Hardwar for the first time on 11.4.1968 after the death of his Guru to have a dip in the holy Ganges on the sacred day along with his sewaks and there he learnt that one Budh Dass (since deceased) claimed himself to G be the chela of Mahant Tahal Dass and transferred the rights under the leases to defendant No.1 through defendant No.2/ respondent No.2 (for convenience hereinafter referred to as T "defendant No.2") and, therefore, he obtained a certified copy of the sale deed on 19.4.1968. Budh Dass was never initiated H 478 SUPREME COURT REPORTS [2008] 7 S.C.R. .... • A as chela by Mahant Tahal Dass and, therefore, he had no right, title and interest over the suit lands. Defendants Nos. 1 and 2 did not derive any right or title in the suit properties by the sale deed. The sale deed was in collusion with defendants Nos. 1 and 2. B 2. Defendants Nos. 1 and 2 filed their written statement denying the custom alleged in the plaint. As per the defendants, the plaintiff was never initiated as the chela of Mahant Taha! Dass. The last rites of Mahant Taha I Dass were denied to have been performed by the plaintiff. However, the defendants c admitted that Mahant Tahal Dass had properties at Bhittiwala, Sheikha, Govindgarh, Karamwala, Rampura and Bhupatwala (Hardwar). It is also admitted that Mahant Tahal Dass died in the year 1957 and the suit property belonged to Tahal Dass on permanent leasehold rights. It is alleged that U.P. Urban Areas D Zamindari Abolition and Land Reforms Act, 1956 is applicable .... to the suit lands and under the Act, proceedings in respect of the lands cannot be initiated in civil court and as such civil court has no jurisdiction to try the suit. It is further pleaded that the defendants had purchased the suit properties bonafide for a E consideration of Rs.32,000/- from Budh Dass, who died three years before the institution of the suit. In the written statement, it was alleged that Budh Dass, the transferor who was the chela of Taha! Dass, succeeded to the properties situated at Bhupatwala, Hardwar after the death of his Guru Mahan! Tahal F Dass. 3. Defendant No.6 Hari Dass also contested the suit by filing a separate written statement claiming therein the right, title and interest in the suit property but lost in the trial court, in the first appeal and Second Appeal No. 2713 of 1977 filed by him G was withdrawn. Thus, in the present proceedings he is not the contesting party. 4. The trial court decreed the suit of the plaintiff holding that the plaintiff was initiated as the eldest chela of Mahan! Taha! ,- H Dass according to the custom and the plaintiff became the heir MAHANT DOOJ DAS (DEAD) TH. LR. v. UDASIN 479 :.. }. PANCHAYATI BARAAKHARA & ANR. [NAOLEKAR, J.] and successor in respect of the properties of Mahant Taha I Dass. A Budh Dass, the transferor of property to defendants Nos. 1 and 2 did not succeed to the property at Bhupatwala at Hardwar owned by Mahant Tahal Dass. As per the trial court's finding, there never existed any person by the name Budh Dass nor ,..! had he ever succeeded to the rights and interests of Mahant B Tahal Dass, whatsoever to the suit properties; hence, Budh Dass was incompetent to execute the sale deed dated 5.5.1962 in favour of defendants Nos. 1 and 2. It also appeared to the trial court that the disputed sale deed dated 5.5.1962 was completely a forged and fictitious document. Consequently, the trial court c set aside and cancelled the sale deed dated 5.5.1962 executed by Budh Dass in favour of defendants Nos. 1 and 2 and decreed the suit. As regards jurisdiction of the civil court to try the suit and the valuation put by the plaintiff, it was held, while trying ~ .. them as preliminary issue on 13.10.1969, that the civil court D had jurisdiction to try the suit. 5. Aggrieved by the judgment and decree of the trial court, defendants Nos. 1, 2 and 6 filed appeals numbered as C.A.No.117 of 1976 titled Hari Dass vs. Mahant Dwaj Dass & Ors. and C.A. No.118 of 1976 titled Udaseen Panchayati Bara E Akhara & Anr. vs. Mahant Dwaj Dass and Others. The first appellate court held that plaintiff was the eldest chela of Mahant Tahal Dass and was duly installed as successor of the Mahant ~ and he succeeded to the properties of his Guru. Evidence on record did not establish the identity of any Budh Dass to be the F chela of Mahant Tahal Dass and, therefore, he did not succeed to the suit properties. As regards the question of jurisdiction of civil court, the first appellate court held that the suit property is situated within the municipal limits of Hardwar recorded as Bhumidari land but the land in question was acquired for the G -{ purposes of erecting buildings. The lessee in fact created a dera on the spot by erecting buildings, installing tube-wells etc. Section 143ofthe U.P. Land ReformsAct, 1950, was, therefore, attracted. The court further held that the cause of action for the purposes of jurisdiction depends on the facts and cirCl!IMstances H 480 SUPREME COURT REPORTS [2008] 7 S. C.R. A of each case. The real controversy in the suit is right to the office of Mahantship. Cancellation of the sale deed is also directly involved. Determination of the question of relinquishing the office of Mahantship is also involved. All these matters in controversy can only be decided by a competent civil court and, therefore, B lower court has rightly upheld the jurisdiction of the civil court to try the suit. Consequently, C.A. Nos. 117/1976 and 118/1976 were dismissed aoo judgment and decree of the trial court was confirmed. 6. Defendants Nos. 1 and 2 preferred a second appeal c before the High Court under Section 100 of the Code of Civil Procedure challenging the judgment and decree of the first appellate court. On 12.11.2002, the High Court admitted the appeal and the following three substantial questions of law were framed: j_. "(1) Whethe1 after enforcement of the U.P. Urban Area.:, Zamindari Abolition and Land Reforms Act, 1956, the land in suit, stood vested with the State of U.P. by operation of law free from all encumbrances and stood settled with the ;... Appellants (Defendant No.1 and 2) exclusively? If so, '- whether the suit was barred by Section 331 of the U.P. Zamindari Abolition and Land Reforms Act, 1950? (2) Whether the suit was barred by law of limitation and whether the plea of limitation can be raised at the stage F of second appeal in a situation when neither it was pressed before the Trial Court nor before the First Appellate Court? (3) Whether the State of U.P. and the Gaon Sabha/Gaon Panchayat, were the necessary parties? If so, was the suit liable to be dismissed for non-joinder of necessary (_.J parties? On an application being filed by defendants Nos. 1 and 2, the following order was passed by the High Court on 25.7.2005: H "Heard learned counsel for the parties. "" > i .... MAHANT DOOJ DAS (DEAD) TH. LR. v. UDASIN 481 PANCHAYATI BARAAKHARA &ANR. [NAOLEKAR, J.] Learned counsel for the appellanUdefendant, drew the A attention of this Court to the application No.2741 of 2005, suggesting few more questions of law. Already this Court has formulated the substantial question of law on 12.11.2002, with the observations that the appellant does not press other applications and rejected the same. 8 However, now few more questions have been suggested. Since this is an old appeal, which was instituted in the year 1977, it is not just and proper to keep on framing the substantial questions of law, each day, after hearing. In view of the sub-section (5) of Section 100 of the Code of Civil Procedure, 1908, if any C substantial question of law is found left out, this Court has ample power to hearthe parties on such questions and to answer them. Therefore, this Court feels that instead of framing new questions of law, it is better to proceed with the hearing of this old appeal and if any of the question of law is found left, the same would be D answered by the Court, after hearing the parties. Learned counsel for the parties agreed that this appeal may be listed on 29th August, 2005 for final hearing, as both of them are coming from Allahabad. List this appeal for final hearing on 29th August, 2005." E The High Court by its impugned order dated 23.2.2006 answering the first substantial question of law has held that by virtue of the expression "which have been so demarcated under Section 5 of the aforesaid Act" (i.e. U.P. Urban Areas Zamindari i: Abolition and Land Reforms Act, 1956) (hereinafter referred to as "the 1956 Act"), contained in the notification, indicates that the demarcation was made hefore the notification under Section 8 of the 1956 Act was issued; that the land in question stood vested in the State of U. P. w.e.f. 1. 7 .1963; that the suit being (::, basically for declaration of the title and the cancellation of the sale deed in respect of the agricultural area under the 1956 Act is an ancillary relief and the real question between the parties is of title in respecl of agricultural area covered under the 1956 Act; and that in view of the provisions of Section 82 of the 1956 H 482 SUPREME COURT REPORTS [2008] 7 S.C.R. A Act read with Section 331 of the U.P. Zamindari Abolition and A.. '- Land Reforms Act, 1950 (hereinafter referred to as "the 1950 Act"), the suit before the civil court between the parties is barred by law. Thus, the High Court has held that the suit as it is filed by the plaintiff was not maintainable before the civil court. As regards B question No.2, the High Court has held that the suit filed in the civil court is within limitation but the suit before the revenue court would be barred by limitation. Question No. 3 was decided in .. favour of the plaintiff holding that the question of non-joinder of the parties stands waived by the defendants. The High Court c neither framed the question of law regarding right, title or interest in the suit property nor has disturbed the findings of courts below on that issue. The High Court on the basis of the decision of the first question of law has allowed the appeal and set aside the judQment and decree passed by the courts below. The plaintiff D is, therefore, before us in this appeal. 7. It is submitted by Shri Nagendra Rai, learned senior counsel appearing for the plaintiff (appellant herein) that the High . :_ Court has committed an error in holding that the land in question stood vested under the 1956 Act in the State and as such E provisions of the 1956 Act are attracted and consequently the suit is required to be filed in the revenue court under Section 331 of the 1950 Act and not in civil court, which does not have jurisdiction to try the suit. F 8. It is further contended by Shri Rai that the relief claimed by the plaintiff was a decree for possession over the suit lands after adjudging the sale deed dated 05.05.1962 registered on i 19.06.1962 executed by Budh Dass in favour of Udasin Panchayati Bara Akhara illegal and canceling the same. The overall reading of the plaint indicates that the main relief claimed G is of cancellation of the sale deed and ancillary relief is delivery of possession of the suit properties. As the effect of the sale deed had had to be got rid of by an appropriate adjudication, as a transaction could not be said to be void in law which is not r required to be set aside, the suit, as it was filed, was cognizable H by the civil court and not by the revenue court. The counsel urged MAHANT DOOJ DAS (DEAD) TH. LR. v. UDASIN 483 PANCHAYATI BARAAKHARA & ANR. [NAOLEKAR, J.] > that under Section 331 (1-A) of the 1950 Act, which was A incorporated in the 1956 Act, the objection to the jurisdiction of civil courts with respect to the suit shall be entertained by the court, only, if the objection was taken in the court of first instance at the earliest possible opportunity and in all cases where the / issues are settled at or before such settlement. It is further B required to be alleged and proved that entertainment of the suit • results in consequential failure of justice. Thus merely because the objection has been taken to the jurisdiction of the civil court at the first instance unless a case of failure of justice is made out and findings recorded by the court to that effect, civil court's c jurisdiction could not be ousted in regard to the cause of action triable by the revenue court. The High Court has not arrived at any finding in regard to the consequential failure of justice and thus could not have dismissed the suit of the plaintiff on the ground that the civil court had no jurisdiction. D 9. To counter, Shri Sakha Ram Singh, learned senior -" counsel for the respondents submits that the land in question was a tenancy land and, therefore, shall be deemed to have been acquired under the 1956 Act by the State, and the provisions of the 1956 Act would be attracted. Therefore, there E is no illegality or infirmity in the judgment of the High Court holding that the jurisdiction of the civil court is barred. 10. It is further submitted that by virtue of Section 82 of the 1956 Act, the provision of Section 331 (un-amended) has been inserted in the 1956 Act whereas Section 331(1-A) has been F amended in the 1950Act by insertion by U.P. Act No.4of1969 on 1.9.1969. The suit was filed on 03.07.1968. It is a settled principle of law that when certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the G subsequent Act, can be deemed to be incorporated in it. Section 331 of the 1950 Act has been inserted in the 1956 Act by adoption, the provision as it stood at the time of insertion by adoption would be a provision applicable in the 1956 Act and not the amended provision of the original Act, namely, Section H 484 SUPREME COURT REPORTS [2008] 7 S.C.R I\ 331(1-A), which was inserted in the original Act of 1950 on a later date and, therefore, there was no necessity to prove on the part of the defendants that there was a consequential failure of justice caused by not filing a suit in the appropriate forum. That apart, the suit would be barred by limitation in the revenue R court but would be maintainable in the civil court, would itself IS a proof of failure of justice. If the suit is permitted to be continued in the civil court which would be within limitation, the defendantc;' right to raise defence of suit before revenue court is beyon1 limitation would be lost. It is also submitted by the learned counsel r, that if the 1956 Act has no application to the suit lands, the cause of action in respect of the land would be governed under the U.P. Tenancy Act, 1939 and on its application the suit would have been maintainable before the revenue court and not before the civil court. It is urged by the learned counsel that in any case the case requires to be remanded to the High Court for :) ;;:: adjudicating other questions which arise from the judgment c>f first appellate court. The High Court having expressed that in view of sub-section (5) of Section 100 of the Code of Civil Procedure, 1908, if any substantial question of law is found left out, the court has ample power to hear the parties on suet; questions and answer them. 11. The first and the material issue which is required to be considered by this Court is whether the land in suit would be covered and governed under the 1956 Act so as to apply the provisions of Section 331 of the 1950 Act to oust the jurisdiction ,)f the civil court. The decision of this issue wou Id decide whethPr this Court is required to go into the other qw~c;tions rC1i!>~rl h· •ho rariiPS in this appeal. 12. The Uttar Pradesh Urban Areas Zamindari Abolition .., and Land Reforms Act, 1956 received the assent of the President on 7.3.1957 and was published in the U.P. Gazette Extraordinary dated 12.3.1957. The Act was brought into force to provide fo1 the abolition of Zamindari system in agricultural areas situa•ed in urban areas of U.P. and for acquisition of the rights, title and H interest of the intermediaries between the tiller of the soil anu MAHANT DOOJ DAS (DEAD) TH. LR. v. U.DASIN 485 PANCHAYATI BARAAKHARA & ANR. [NAOLEKAR, J.] f ). the State in such areas and for introduction of the land reforms A therein. Section 2(1) defines 'agricultural area' which reads as under:- "agricultural area" as respects any urban area means an area which, with reference to such date as the State B Government may notify. in that behalf, is - ,.I. (a) in the possession of or held or deemed to be held by an intermediary as sir, khudkasht or an intermediary's grove; (b) held as a grove by or in the personal cultivation of a c permanent lessee in Avadh; or (c) included in the holding of - (i) a fixed-rate tenant, (ii) an ex~proprietary tenant, D .. w -- (iii) an occupancy tenant, . (iv) a tenant holding on special terms in Avadh, (v) a rent-free grantee, E (vi) a grantee at a favourable rate of rent, (vii) a hereditary tenant, (viii) a grove-holder, F r (ix) a sub-tenant referred to in sub-section (4) of Section 47 of the U.P. Tenancy Act, 1938; or . (x) a non-occupancy tenant of land other than land referred to in sub-section (3) of Section 30 of the U.P. Tenancy Act, 1939, G ~ and is used by the holder thereof for purposes of agriculture ·1::j; ·.( or horticulture; Provided always that land which on the date aforesaid is occupied by buildings not being "improvements" as defined H 486 A B SUPREME COURT REPORTS [2008] 7 S.C.R. in Section 3 of the U. P. Tenancy Act, 1939, and land appurtenant to such buildings shall not be deemed to be agricultural area. (d) held on lease duly executed before the first day of July, 1955 for the purposes of erecting buildings thereon; or (e) held or occupied by an occupier. "Explanation - An area, being part of the holding of a tenant shall not be deemed to have ceased to be C agricultural area by reason merely that it has not been used, during the seven years preceding the commencement of this Act, for raising crops or other agricultural produce." D Chapter II provides for demarcation of agricultural areas. The relevant provisions of Chapter II read as under:- E F G H "3. Power to order demarcation of agricultural areas -(1) The State Government may, with a view to acquisition under the provisions of this Act of the rights, title and interest of intermediaries in urban areas, direct by notification in the official Gazette, that the agricultural area situated in any such area be demarcated. (2) As soon as may after the publication of the notification under sub-section (1 ), the Demarcation Officer shall make enquiries in the prescribed manner, and shall determine and demarcate agricultural areas within the urban areas. 4. Publication of preliminary proposals and objections thereon - (1) The Demarcation Officer shall, within three months or such extended period as the State Government may in any case fix; of the date of the notification under sub-section (1) of Section 3, submit his proposals with reasons therefor to the Commissioner who may make such modifications therein as he may consider necessary. MAHANT DOOJ DAS (DEAD) TH. LR. v. UDASIN 487 PANCHAYATI BARAAKHARA&ANR. [NAOLEKAR, J.] _, > (2) After the Commissioner has considered the said A proposals he shall publish a notice in the prescribed form in the Gazette and in such other manner as may be prescribed to the effect that the proposals as regards the demarcation of agricultural areas have been formulated and are open to inspection at the places to be specified B j in the said notice. (3) Any person or local authority interested may within three months of the date of publication of the notice under sub-section (2), file an objection on the proposals before such officer or authority and in such manner as may be c prescribed. 5. Final demarcation - (1) After the expiry of the period of three months mentioned in sub-section (3) of Section 4, the Commissioner shall proceed to decide the objections D p ~ in the manner prescribed and then finally demarcate the agricultural area. (2) After the Commissioner has finally demarcated the agricultural area under sub-section (1 ), he shall publish a notice in the Gazette and in such other manner as may be E prescribed to the effect that the agricultural areas have been finally demarcated and their details are open to inspection at places to be specified in that notice. (3) An appeal shall lie to the Board against the orders F ,. passed by the Commissioner under sub-section (1)." -.( 13. Chapter Ill provides for acquisition of the interests of intermediaries and its consequences. Section 8 under this Chapter reads as under: "8. Vesting of agricultural area in the State.- After the G agricultural area has been demarcated under Section 5, ., the State Government may, at any time, by notification in the official Gazette, declare that as from a date to be specified all such areas situate in the urban area shall vest in the State and, as from the beginning of the date so H 488 A SUPREME COURT REPORTS [2008) 7 S.C.R. specified all such agricultural areas shall stand transferred to and vest except as hereinafter provided, in the State free from all encumbrances." By a notification issued under Section 8 by Rajaswa Vibhag dated 20.06.1963, the agricultural area in Haridwar B demarcated under Section 5 has been vested with the State Government. The relevant portion of the notification issued reads as under:- Rajaswa Vibhag Notification No. 265311-A-168-60, dated c ·June 20, 1963, published in UP Gazette, Part 1, dated June ,. 29, 1963, p.1217. In exercise of the powers under Section 8 of the U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956 (U.P. Act No. IX of 1957), the Governor of Uttar Pradesh is pleased D to declare that as from the first day of July, 1963, all agricultural areas in the following urban areas of the State, which have been ~