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CASE NO.: Appeal (civil)  5060 of 2007

PETITIONER: Mahant Dooj Das (Dead) through LR

RESPONDENT: Udasin Panchayati Bara Akhara & Anr

DATE OF JUDGMENT: 01/05/2008

BENCH: P.P. Naolekar & Aftab Alam

JUDGMENT: J U D G M E N T REPORTABLE

CIVIL APPEAL NO. 5060 OF 2007

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 [21 Bighas, 8 Biswa Kachhi  Bhumi (land) No. Khasra 27M and 28M and Bhumi (land) 1 Bigha, 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  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 \026 Way, West \026 Road  Haridwar-Rishikesh, North \026 Land of Sohanlal Mistri, South \026 Nala  and after that boundaries of Mahant Sadhu Singh; Description of  Boundary No. 2: East \026 Road Haridwar-Rishikesh, South \026 Land of  Shankaranand, North \026 Land of Brahamchari and after that Nala, West  \026 Forest Land) 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 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 ’Chela’.  After the death of  Mahant, his eldest chela Dooj Das succeeded to all rights and interests  in the properties of his Guru.  It is also a custom in the Panth that on  the tenth day of the death of Guru there is a ceremony called  Dassehra.  Akhand 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 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 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, Ishwar Dass and Hari Dass were also initiated

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as chelas by him.  The plaintiff being the eldest chela, 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 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 Dass, the  plaintiff became the permanent lessee of all the lands.  He also had  right therein as being the eldest chela, heir and successor of Mahant  Tahal Dass.  On 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 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  "defendant No.2") and, therefore, he obtained a certified copy of the  sale deed on 19.4.1968. Budh Dass was never initiated 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.   

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 Tahal Dass.  The  last rites of Mahant Tahal Dass were denied to have been performed  by the plaintiff.  However, the defendants 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 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  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 Tahal  Dass, succeeded to the properties situated at Bhupatwala, Hardwar  after the death of his Guru Mahant Tahal 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 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 Mahant Tahal  Dass according to the custom and the plaintiff became the heir and  successor in respect of the properties of Mahant Tahal Dass. 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 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 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

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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 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 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 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 purposes of erecting buildings.  The lessee in fact created a dera   on the spot by erecting buildings, installing tube-wells etc.  Section  143 of the U.P. Land Reforms Act, 1950, was, therefore, attracted.   The court further held that the cause of action for the purposes of  jurisdiction depends on the facts and circumstances 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, 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 and judgment and decree  of the trial court was confirmed. 6.      Defendants Nos. 1 and 2 preferred a second appeal 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: "(1) Whether after enforcement of the U.P. Urban Areas  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 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 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 :         "Heard learned counsel for the parties.

       Learned counsel for the appellant/defendant, drew the  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.  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

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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 substantial question of law is found left out, this Court  has ample power to hear the 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 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."

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 Abolition and Land  Reforms Act, 1956) (hereinafter referred to as "the 1956 Act"),  contained in the notification, indicates that the demarcation was made  before 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 respect of agricultural area covered under the  1956 Act; and that in view of the provisions of Section 82 of the 1956  Act  read with Section 331 of the U.P. Zamindari Abolition and 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 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 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 judgment and decree passed by the courts  below.  The plaintiff 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 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.    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 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 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 required to be set aside, the suit, as it was  filed, was cognizable by the civil court and not by the revenue court.   The counsel urged that under Section 331(1-A) of the 1950 Act,  which was 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

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issues are settled at or before such settlement.  It is further 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 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.   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 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 amended in the 1950  Act by insertion by U.P. Act No.4 of 1969 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 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  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 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 defendants’ right to raise defence of suit before revenue  court is beyond limitation would be lost.   It is also submitted by the  learned counsel 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 of 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 such 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 of the civil court.   The decision of this issue would decide whether this Court is required   to go into the other questions raised by the parties 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 for the abolition of  Zamindari 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.  Section 2(1) defines  ‘agricultural area’ which reads as under :-         "agricultural area" as respects any urban area means an

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area which, with reference to such date as the State Government  may notify in that behalf, is \026          (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  permanent lessee in Avadh; or

(c)     included in the holding of \026

(i)     a fixed-rate tenant, (ii)    an ex-proprietary tenant, (iii)   an occupancy tenant, (iv)    a tenant holding on special terms in Avadh, (v)     a rent-free grantee, (vi)    a grantee at a favourable rate of rent, (vii)   a hereditary tenant, (viii)  a grove-holder, (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,   

and is used by the holder thereof for purposes of  agriculture or horticulture;                  Provided always that land which on the date  aforesaid is occupied by buildings not being  "improvements" as defined 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 \026 An area, being part of the holding of a tenant  shall not be deemed to have ceased to be 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."

       Chapter II provides for demarcation of agricultural areas.  The  relevant provisions of Chapter II read as under :-         "3.     Power to order demarcation of agricultural areas \026          (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 \026 (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

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the Commissioner who may make such modifications therein as  he may consider necessary.

(2)     After the Commissioner has considered the said  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 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 prescribed.

5.      Final demarcation \026 (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 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 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 passed  by the Commissioner under sub-section (1)."

13.     Chapter III 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  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 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 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.2653/1-A-168-60, dated June          20, 1963, published in U.P. 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 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 so demarcated  under Section 5 of the aforesaid Act, shall vest in the State of Uttar  Pradesh, and as from the beginning of that date, all such agricultural  areas shall stand transferred to, and vest, except as provided in the  said Act, in the State free from all encumbrances : ------------------------------------------------------------------------------------ Serial No.                              Name of Urban Area      District ------------------------------------------------------------------------------------

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                                 Meerut Division 1.   Rishikesh               .. Municipality  ..             Dehra Dun. 2.   Hardwar Union           ..           Do         ..     Saharanpur 3.   Deoband                          ..           Do         ..                 Do \005                                    \005                            \005.

14.     By virtue of Section 8 after the agricultural area has been  demarcated under Section 5, the State 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  Government and from the date so specified all such agricultural area  shall be transferred to and vest except otherwise provided, in the State  free from all encumbrances.  The purport of Section 8 is very clear  that the agricultural land falling in the urban area has to be demarcated  under Section 5 and thereafter the notification shall be issued by the  State Government in regard to the demarcated area in the urban area  to have been vested in the State.  Sections 3 to 5 lay down the  procedure for demarcation of the area for the purposes of acquisition  of right, title and interest of intermediaries in urban areas of the  agricultural area.  Under Section 3, the State Government shall issue a  notification in the official gazette for the purposes of acquisition of  right, title and interest of intermediaries in urban areas and declare  such area as demarcated area.  After the publication of the notification  under sub-section (1) the Demarcation Officer shall make inquiries in  the prescribed manner and thereafter shall determine and demarcate  the agricultural area within the urban area.  After this, under Section  4, the Demarcation Officer would within three months or such  extended period as may be extended by the State Government, from  the date of notification issued under sub-section (1) of Section 3,  submit his proposal with a reason thereof to the Commissioner, the  Commissioner may make such modifications in the demarcated area  as he may consider necessary.  After the proposal is finalized by the  Commissioner 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 demarcation of the agricultural areas  have been formulated and are open to inspection at the place which  would be specified in the published notice.  Thereafter, any person  interested in such demarcation may within three months of the  publication of the notice under section sub-section (4) of Section 2  could file an objection on the proposal before such officer or authority  in a manner provided therein.  Section 5 lays down that after the  expiry of the period of three months of publication of notice the  Commissioner shall decide the objections received and thereafter shall  finally demarcate the agricultural area.  Sub-section (2) of Section 5  lays down that after determination of the objections finally,  demarcated agricultural area shall be published by notice in the  gazette or in such other manner as may be prescribed to the effect that  final demarcation of the agricultural area in the urban area is made   and the details thereof are open to inspection at places specified in the  notice.  On such notice being issued, sub-section (3) of Section 5  provides for an appeal to the Board of Revenue against the order  passed by the Commissioner prescribing finally demarcated  agricultural area.  Section 8 lays down that after the agricultural area  in the urban area has been demarcated under Section 5 the State  Government shall notify it in the Official Gazette that such area is  vested in the State from the date specified therein and all such  agricultural areas shall stand transferred and vested in the State  government free from encumbrances.  From the aforesaid provision, it  is amply clear that elaborate procedure has been laid down before the  agricultural area in the urban area is declared to be a demarcated area  for the purpose of vesting in the State free from encumbrances.   Section 3 provides for a notice to the general public that a  particular  agricultural area in the urban area is being picked up for declaring that  area to be demarcated area for the purposes of all right, title and  interest of intermediary to be vested with the State Government free

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from all encumbrances.  After such notification the Demarcation  Officer has to apply his mind, make inquiries whether a particular area  is to be declared as a demarcated area and thereafter submit his  proposal for the purposes of declaration of demarcated area before the  Commissioner.  The Commissioner is authorized to make a  modification in the proposal and thereafter is called upon to publish  a  notice in the gazette or in any other manner as prescribed, that the  proposal as regards demarcation  of the agricultural area is formulated  and are open to inspection.  This apparently is a tentative proposal  which is subject to the objection by any person or local authority.  If  any objection has been received within three months the  Commissioner is called upon to decide those objections and thereafter  pass a final order in regard to proposed demarcated area.  Once the  objections are decided and the Commissioner has arrived at the  finding that a particular agricultural area in the urban area is to be  declared as a demarcated area he shall publish a notice in the gazette  showing the demarcated area which has been finally decided to be a  demarcated area for the place.  Sub-section (3) of Section 5 thereafter  provides for an appeal from the order of the Commissioner.  The  agricultural area was only to be declared to be vested in the State  Government free from all encumbrances under Section 8 only after  such an agricultural area has been finally declared to be demarcated  area.   15.     In the present case, there is no evidence led by the defendants  that the suit land had been declared as a demarcated area and the suit  area being declared to be such has vested with the State government  under Section 8 of the 1956 Act.  The notification issued under  Section 8 says that in exercise of powers of Section 8 of the 1956 Act,   the Governor of U.P. declares that from 01.07.1963 all agricultural  areas in the following urban areas (which admittedly falls within the  Hardwar Union, District Saharanpur) of the then State of U.P. which  has been demarcated under Section 5 of the Act shall stand vested  with the State of U.P. and as from that day onwards all such  agricultural areas shall stand transferred to, and vested, except as  provided in the 1956 Act, in the State free from all encumbrances.  It  is clear from this notification under Section 8 that the land which has  been demarcated under Section 5 in the Hardwar Union shall be  vested in the State free from all encumbrances.  Unless and until it is  shown that the land in suit has been declared as a demarcated area or  falls within the demarcated area, exercising the powers under Section  5, it cannot be said that it has been vested in the State by virtue of  notification issued under Section 8 on 20.6.1963.  By 20.6.1963  notification, it is only the demarcated area under Section 5 which has  been vested in the State.  That does not necessarily means that the suit  lands have been vested in the State   In the absence of 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 Section 8 of the Act. 16.     In Abdul Waheed Khan v. Bhawani and Others, AIR 1966 SC  1718, it was held that it is settled principle that it is for the party who  seeks to oust the jurisdiction of a civil court to establish his contention  and it is also equally well settled that a statute ousting the jurisdiction  of a civil court must be strictly constructed. In Sri Vedagiri Lakshmi Narasimha Swami Temple v. Induru  Pattabhirami Reddi, AIR 1967 SC 781, this Court held that under  Section 9 of the Code of Civil Procedure, the courts shall have  jurisdiction to try all suits of civil nature excepting suits of which  there is a bar expressly or impliedly provided.  It is well settled  principle that a party seeking to oust jurisdiction of an ordinary civil  court shall establish the right to do so. In Smt. Bismillah v. Janeshwar Prasad and Others, (1990) 1 SCC  207, this Court has reiterated the principle laid down and said that it is  settled law that exclusion of the jurisdiction of the civil court is not to  be readily inferred, but that such exclusion must either be explicitly  expressed or clearly implied.  The provisions of law which seek to  oust the jurisdiction of  civil court need to be strictly construed.

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In Sahebgouda (Dead) by LRs. and Others v. Ogeppa and Others,  (2003) 6 SCC 151, this Court has held that it is well settled that a  provision of law ousting the jurisdiction of a civil court must be  strictly construed and onus lies on the party seeking to oust the  jurisdiction to establish his right to do so.  In Dwarka Prasad Agarwal (D) by LRs. v. Ramesh Chander  Agarwal and Others, (2003) 6 SCC 220, a 3-Judge Bench has held  that Section 9 of the Code of Civil Procedure confers jurisdiction  upon the civil courts to determine all disputes of civil nature unless  the same is barred under a statute either expressly or by necessary  implication.   Bar of jurisdiction of a civil court is not to be readily  inferred.  A provision seeking to bar jurisdiction of a civil court  requires strict interpretation.  The court, it is well settled, would  normally lean in favour of construction, which would uphold retention  of jurisdiction of the civil court.  The burden of proof in this behalf  shall be on the party who asserts that the civil court’s jurisdiction is  ousted.   17.     Thus, from the aforesaid decisions, it is now well established  principle of law that the ouster of jurisdiction of a civil court is not  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. 18.     For application of the provisions of Section 331 of the 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  Sections 3, 4 and 5 of the 1956 Act.  Sections 3, 4 and 5, as already  held by us, provide a complete code for demarcation of the  agricultural area after giving appropriate hearing to the party affected  by following the procedure laid down therein, it also provides for an  appeal to the Board of Revenue.  It is only after the area is declared as  demarcated area, Section 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 State Government.  Unless the  land is vested in the State Government, the provisions of Section 331  of the 1956 Act would have no application to oust the jurisdiction of  the civil court.   19.     In the present case, no evidence has been led by the defendants  on whom heavy burden lies to prove the fact that the suit lands were  declared demarcated.  Notification under Section 8 which itself says  that the demarcated area has been vested in the State Government,  would not be given a meaning as if the suit lands had also been  demarcated and thus stood vested in the State Government by virtue  of the notification   issued under Section 8 of the 1956 Act. 20.     The defendants have claimed ouster of the civil court’s  jurisdiction only on the basis of Section 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  jurisdiction cannot be said to have been ousted and vested in the  revenue court. 21.     The learned senior counsel for the respondents for the first time  before this Court tried to raise the question that the suit as it was filed,  if 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.  We cannot  permit this new plea, which does not appear to be a pure question of  law 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.     22.     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 by framing substantial question of law in regard thereto  at the time of or before arguments before the High Court.  Thus, the

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finding arrived at, that the plaintiff was initiated as the eldest chela of  Mahant Tahal Dass according to the custom and being the eldest chela  was heir and successor in respect of the suit property of Mahant Tahal  Dass and that Budh Dass did not succeed to the property of  Bhupatwala (Hardwar) has attained finality. 23.     It is contended by the learned senior counsel for the  respondents herein that since the High Court has left open the  consideration of substantial questions of law in exercise of the powers  under sub-section (5) of Section 100 of the Code of Civil Procedure  (CPC) and, therefore, the matter requires remand, cannot be  countenanced with.  There is nothing on record that the High Court  has exercised the powers under proviso to sub-section (5) of Section  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 Section 100, CPC, but to apply the provision of  proviso it is a necessary condition to be satisfied that the High Court  feels satisfied that the case 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.  [See Santosh Hazari v. Purushottam  Tiwari (Dead) by LRs., AIR 2001 SC 965].  Under the proviso to  Section 100(5), CPC,  it is a necessary condition that the court is  satisfied that the case involves a substantial question of law and not  merely a question of law, and the Court must record the reason  permitting the substantial question of law to be raised. In Kshitish Chandra Purkait v. Santosh Kumar Purkait and Others,  AIR 1997 SC 2517, this Court held in para 7 as under: "\005We would only add that (a) it is the duty cast upon the High  Court to formulate the substantial question of law involved in  the case even at the initial stage; and (b) that in (exceptional)  cases, at a later point of time, when the Court exercises its  jurisdiction under the proviso to sub-section (5) of Section 100,  C.P.C. in formulating the substantial question of law, the  opposite party should be put on notice thereon and should be  given a fair or proper opportunity to meet the point.  Proceeding  to hear the appeal without formulating the substantial question  of law involved in the appeal is illegal and is an abnegation or  abdication of the duty cast on Court; and even after the  formulation of the substantial question of law, if a fair or proper  opportunity is not afforded to the opposite side, it will amount  to denial of natural justice.  The above parameters within which  the High Court has to exercise its jurisdiction under Section  100, C.P.C. should always be borne in mind. \005"   In Gian Dass v.  Gram Panchayat, Village Sunner Kalan and  Others, (2006) 6 SCC 271, this Court in para 13 has held as under: "\005 The proviso is applicable only when any substantial  question of law has already been formulated and it empowers  the High Court to hear, for reasons to be recorded, the appeal on  any other substantial question of law.  The expression "on any  other substantial question of law" clearly shows that there must  be some substantial question of law already formulated and  then only another substantial question of law which was not  formulated earlier can be taken up by the High Court for  reasons to be recorded, if it is of the view that the case involves  such question."   24.     From the aforesaid decisions of this Court, it is apparent that  the High Court cannot deal with the issues unless 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 put to  notice that such other substantial question of law has arisen in the case

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to be heard. 25.     From the aforesaid, 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.  No case is made out for remanding the matter to the High  Court to hear the same on non-existing substantial question of law.   As we have already held that the defendants on whom the burden lies  to prove the ouster of the civil court has failed to discharge its burden  and applicability of the 1956 Act to the suit lands has not been proved,  no other questions argued by the parties are required to be decided by  us. 26.     For the aforesaid reasons, we hold that the civil court has  rightly exercised its jurisdiction 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 appellate court, is therefore  required to be set aside.  Accordingly, the High Court’s judgment is  set aside and the decree passed by the first appellate court is  confirmed.   The appeal is allowed with costs quantified at  Rs.10,000/-.