2025:UHC:113 RESERVED IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL THE HON’BLE SRI JUSTICE ALOK KUMAR VERMA 06TH JANUARY, 2025 CIVIL REVISION NO.72 of 2022 Aminder Singh Bal. ..... Revisionist Versus Ms. Amena Bal and Others. ..…Respondents Counsel for the Revisionist : Mr. Siddhartha Singh, Advocate. Counsel for the Respondent : Mr. Satwik Verma, Senior No.1-plaintiff. Advocate with Mrs. Sunayana Kohli Kothari, Advocate. Reserved on :05.11.2024 Delivered on :06.01.2025 Hon’ble Alok Kumar Verma,J. The challenge in this Civil Revision, filed under Section 115 of the Code of Civil Procedure, 1908 (in short, “CPC”,) is to an order dated 07.07.2022, passed by learned Senior Civil Judge, Nainital in Original Suit No.89 of 2021, “Ms. Amena Bal Vs. Mr. Aminder Singh Bal and Others”, whereby, the Application, filed by the revisionist-defendant no.1 under Order VII Rule 11 (d) CPC, has been dismissed. By the impugned order, the trial court has held that the land-in-question is not being used for agricultural purposes, hence the civil court has the jurisdiction to try the suit. 1 2025:UHC:113 2. The respondent no.1-plaintiff filed the said Original Suit No.89 of 2021 before the trial court with the following prayers:- “(a) Pass a Preliminary Decree in favour of the plaintiff and against Defendant No.1 to the effect that the Plaintiff is owner to 1/2 share of the Suit Property i.e. Orchard-cum-House at village Bohrakot, Ramgarh (Malla), Kumau, Tehsil and Zila Nainital, Uttarakhand- 263137 admeasuring approximately 36 Naali and 3 Muthi comprised in Khatauni and Khata No.163 & 209, Khasra No.5016 & 5021 of approximately 0.1600 hectares and 0.7260 hectares respectively having current Khata No.00005; and (b) Appoint a Local Commissioner to divide the suit property into two equal shares; and (c) Pass a Final Decree of ½ share in favour of the Plaintiff and against Defendant No.1 as per the report of the Local Commissioner; and (d) Appoint a Local Commissioner to take accounts of the income/revenue generated from the suit property on being used as a Hotel/Resort and pass a decree in favour of the Plaintiff and against the Defendants to pay of 50% of the said net income to the Plaintiff together with interest @18% per annum from the date of accrual till such time the same is paid; and (e) Pass a decree of permanent injunction restraining the Defendant No.1, his agents, nominees, assigns, servants from alienating, transferring, leasing, encumbering or altering the structure and nature of the suit property in any manner whatsoever; and (f) Award cost of the suit. 2 2025:UHC:113 (g) Pass such other order(s) as this Hon’ble Court may deem just and proper under the facts and circumstances of the case to do complete justice”. 3. The case of the respondent no.1-plaintiff is that the father of the plaintiff and defendant no.1 died intestate on 06.11.2010 leaving behind his wife Smt. Indra Bal, daughter (plaintiff) and son (defendant no.1). In the year, 1995, the father and the mother of the plaintiff and the defendant no.1 purchased a residential old bungalow/outhouse and land appurtenant thereto as an Orchard at village, Bohrakot, Ramghar (Malla), Kumaun, Tehsil and District Nainital, Uttarakhand admeasuring approximately 36 Nali and 3 Muthi comprised in Khatauni and Khata No.163 and 209, Khasra no.5016 and 5021 of approximately 0.1600 hectares and 0.7260 hectares respectively having current Khata No.00005 (suit property) from one Sri Kishan Singh by virtue of a registered sale deed. Thereafter, the suit property was mutated in the revenue records in the name of the father and mother of the plaintiff and defendant no.1. The suit property was named as “Taradale Cottage”. The suit property comprises of 06 well decorated and well furnished rooms. Since inception, the suit property was utilized as Residence-cum-Heritage Resort. The suit property is used to carry out commercial activities by renting out rooms for short stay in the suit 3 2025:UHC:113 property. On demise of Smt. Indra Bal in the year, 2016, an agreement was reached between the plaintiff and the defendant no.1 that all the properties left behind by the parents shall be divided in equal share between them. The plaintiff understands that the defendant no.1 holding out himself to be the sole owner of the suit property had entered into an agreement with defendant no.2 and defendant no.3 allowing them to manage and run the affairs of the Resort, rooms whereof are being offered on rent under the name and style, “Seclude Hotels Home Stay”. The plaintiff has undivided 1/2 share in the suit property. She has been kept in dark about the said agreement. The suit property is being used as a Hotel/Resort for stay. 4. Heard Mr. Siddhartha Singh, learned counsel for revisionist and Mr. Satwik Verma, learned Senior Advocate with Mrs. Sunayana Kohli Kothari, learned counsel for respondent no.1. 5. Mr. Siddhartha Singh, Advocate, has contended that the revisionist-defendant no.1 had filed the Application under Order VII Rule 11(d) CPC in the said original suit on the ground that the suit property, including resort and the land appurtenant thereto, is still agricultural land as per the plaint case. The suit property has not been declared as non- agricultural land under Section 143 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (as 4 2025:UHC:113 applicable in the State of Uttarakhand) (in short, “Act, 1950”). The suit property comes within the purview of the provisions of the Act, 1950 because the suit property is still recorded as agricultural land in the revenue records. Therefore, the original suit, filed for partition, rendition of account and permanent prohibitory injunction, is apparently barred by Section 331 of the Act, 1950. Mr. Siddhartha Singh, Advocate submitted that as per the plaint, the plaintiff is not a Bhumidhar. Therefore, the provisions of Section 331 A of the Act, 1950 are not applicable in this case. He has relied on the judgment dated 18.11.1972, passed by Allahabad Revenue Board in SA No.40 of 1966- 67 ”Keshav Das vs. Gaon Sabha”, in which it was held that the condition precedent to the provisions of Section 331 A of the Act, 1950 being brought into play is that the suit must relate to the land held by a Bhumidhar. 6. Mr. Satwik Verma, learned Senior Advocate, for the respondent no.1-plaintiff, on the other hand, has contended that as per the plaint, the land-in-question is still recorded as agricultural property in the revenue records but the suit property is used commercially as a resort. The defendant no.2 and defendant no.3 represent “Seclude Hotels Home Stay”. The rooms of the suit property are being offered on rent to public at large/tourists by defendant no.2 and defendant no.3 under the name and style of “Seclude 5 2025:UHC:113 Hotels Home Stay”. The suit property is not being used for the purpose of agriculture, horticulture or animal husbandry, which includes pisciculture and poultry farming. 7. Mr. Satwik Verma, learned Senior Advocate for the respondent no.1-plaintiff has argued that for invoking clause (d) of Order VII Rule 11 CPC, only the averments in the plaint would be relevant and it is settled position of law that no material except the plaint or the documents annexed with the plaint can be considered at the stage of consideration of application under Order VII Rule 11(d) CPC. He has relied upon the judgment, passed by the Hon’ble Supreme Court in Geetha vs. Nanjundaswamy and Others, 2023 SCC OnLine SC 1407 and the judgment dated 30.11.2023, passed by the Hon’ble Supreme Court in Special Leave Petition (C) No.19465 of 2021, “Eldeco Housing and Industries Limited vs. Ashok Vidyarthi and Others”. 8. Mr. Satwik Verma, learned Senior Advocate has argued that if in any suit, relating to land held by a Bhumidhar, the question arises whether the land-in-question is or is not used for purposes connected with agriculture, horticulture or animal husbandry, which includes pisciculture and poultry farming, and a declaration has not been made in respect of such land under Section 143 of the Act, 1950 or 144 of the Act, 1950, it would be appropriate for the Court to frame the issue on the question and send the record to 6 2025:UHC:113 the Assistant Collector in-charge of the sub-division for deciding that issue as per the provisions of Section 331 A of the Act, 1950 but in the present case the provisions of Section 331 A of the Act, 1950 are not attracted because it is an admitted fact between the parties that the land-in- question is being used commercially as a resort. 9. Order VII Rule 11 CPC reads as under :- “11. Rejection of plaint. The plaint shall be rejected in the following cases- (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law: (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of Rule 9; Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time 7 2025:UHC:113 fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.” 10. Section 3(14) of the Act, 1950 defines the term “land” as under:- “3(14) “land” except in Sections 109, 143 and 144 and Chapter VII means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry and includes pisciculture and poultry farming.” 11. Section 331, Section 331A, Section 143 and Section 144 of the Act, 1950 read as follows:- “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, 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 of any holding or part thereof, the provisions of Schedule II in so far 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 8 2025:UHC:113 to that which the revenue court would have granted. (1-A) Notwithstanding anything in sub-section (i), an objection that a court mentioned in Column 4 of Schedule II, or, as the case may be, a civil court, which had no jurisdiction with respect to the suit, application or, proceeding, exercised jurisdiction with respect thereto shall not be entertained by any appellate or revisional court unless the objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice. (2) Except as hereinafter provided no appeal shall lie from an order or decree passed under any of the proceedings mentioned in Column 3 of the Schedule aforesaid. (3) An appeal shall lie from any decree or from an order passed under Section 47 or an order of the nature mentioned in Section 104 of the Code of Civil Procedure, 1908 or in Order 43, Rule 1 of the First Schedule to that Code, passed by a court mentioned in Column 4 of Schedule II to this Act in proceedings mentioned in Column 3 thereof to the court or authority mentioned in Column 5 thereof. (4) A second appeal shall lie on any of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 from the final order or decree, passed in an appeal under sub-section (3), to the authority, if any, mentioned against it in Column 6 of the Schedule aforesaid.” 9 2025:UHC:113 “331-A. Procedure when plea of land being used for agricultural purposes is raised in any suit- (1) If in any suit, relating to land held by a bhumidhar, instituted in any court, the question arises or is raised whether the land in question is or is not used for purposes connected with agriculture, horticulture or animal husbandry, which includes pisciculture and poultry farming, and a declaration has not been made in respect of such land under Section 143 or 144, the court shall frame an issue on the question and send the record to the Assistant Collector in-charge of the sub-division for the decision of that issue only: Provided that where the suit has been instituted in the court of Assistant Collector in-charge of the sub- division, it shall proceed to decide the question in accordance with the provisions of Section 143 or 144, as the case may be. (2) The Assistant Collector in- charge of the sub-division after reframing the issue, if necessary, shall proceed to decide such issue in the manner laid down for the making of a declaration under Section 143 or 144, as the case may be, and return the record together with his finding thereon to the court which referred the issue. (3) The court shall then proceed to decide the suit accepting the finding of the Assistant Collector in- charge of the sub-division on the issue referred to it. (4) The finding of the Assistant Collector in-charge of the sub-division on the issue referred to it shall, for the purposes of appeal, be deemed to be part of the finding of the court which referred the issue.” 10 2025:UHC:113 “143. Use of a holding for industrial or residential purposes.- (1) Where bhumidhar with transferable rights uses his holding or part thereof for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming, the Assistant Collector-in-charge of the sub- division may, suo motu or on an application, after making such enquiry as may be prescribed, make a declaration to that effect. (1-A) Where a declaration under sub-section (1) has to be made in respect of a part of the holding, the Assistant Collector-in-charge of the sub-division may in the manner prescribed demarcate such part for the purposes of such declaration. (2) Upon the grant of the declaration mentioned in sub-section (1) the provisions of this Chapter (other than this section) shall cease to apply to the bhumidhar with transferable rights, with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject. (3) Where a bhumidhar with transferable rights has been granted, before or after the commencement of the Uttar Pradesh Land Laws (Amendment) Act, 1978, any loan by the Uttar Pradesh Financial Corporation or by any other Corporation owned or controlled by the State Government, on the security of any land held by such bhumidhar, the provisions of this chapter other than this section shall cease to apply to such bhumidhar with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject.” 11 2025:UHC:113 “144. Use of land for agricultural purposes:-(1) Whenever any land held by a bhumidhar which is not used for the purposes connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming has become land used for such purpose, the Assistant Collector-in-charge of the sub-division may, suo motu or on an application, after making such enquiry as may be prescribed make a declaration to that effect and thereupon, the bhumidhar shall, as respects the land, be subject to the provisions of this chapter. (2) Upon the grant of the declaration under sub- section (1) in respect of any land, any person other than the bhumidhar in possession of the plot shall- (a) if he holds it under any contract or lease which is inconsistent with any of the provisions of this chapter, be deemed to be an occupant liable to ejectment under Section 209; (b) if he holds it under any contract or lease which is not inconsistent with any of the provisions of this chapter, be entitled to the rights in the land determined in accordance with the provisions thereof. (3) Any contract or lease referred to in sub-clause (a) of sub-section (2) which is inconsistent with the provisions of this chapter shall, to the extent of the inconsistency, become void with effect from the date of declaration: Provided that any mortgage with possession existing on any such land shall, to the extent of the amount due and secured on such land, be deemed to have been substituted by a simple mortgage carrying such rate of interest as may be prescribed.” 12 2025:UHC:113 12. Order VII Rule 11 (d) CPC provides that the plaint shall be rejected “where the suit appears from the statement in the plaint to be barred by any law.” The averments in the plaint are germane. Hence, in order to decide whether the suit is barred by any law, it is the statement in the plaint which will have to be construed. The question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The plaint can be rejected under Order VII Rule 11 CPC if conditions enumerated in the said provision are fulfilled. The power under Order VII Rule 11 CPC can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. Whether the suit is barred by any law must be determined from the statements in the plaint. The averments of the plaint have to be read as a whole to find out whether the suit is barred by any law. The averments in the written statement as well as the contentions of defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. 13. In the present case, as per the paragraph no.1 of the plaint, the suit, inter-alia, is for partition of a resort and land appurtenant thereto. A meaningful reading of the plaint makes it abundantly clear that the suit has been filed in respect of the resort and the land appurtenant thereto. As 13 2025:UHC:113 per the plaint, the land is being used commercially in the form of a resort but there is no averment in the plaint that the land appurtenant to the said resort, which is suit property and is still recorded as agricultural land, is also being used commercially. 14. Section 331 of the Act, 1950 lays down that no court other than a court mentioned in Column 4 of Schedule II shall 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 but the question whether suit land is or is not used for purposes connected with agriculture, horticulture or animal husbandry, which includes pisciculture and poultry farming, cannot be determined by a civil court. Where a dispute regarding the nature of land is raised in a suit and a declaration under Section 143 or Section 144 of the Act, 1950 had not been issued, the trial court was bound to refer the issue under Section 331 A of the Act, 1950. The court dealing with a suit in which the said question arises cannot proceed to determine the said question itself ignoring the provisions of Section 331 A of the Act, 1950. It should be determined by following the procedure laid down in Section 331 A of the Act, 1950. 14 2025:UHC:113 15. In the result, the Revision is allowed accordingly. The impugned order dated 07.07.2022, passed by learned Senior Civil Judge, Nainital, is set aside. The matter is sent back with a direction to the concerned court to frame an issue on the question whether the entire land-in-question is or is not used for purposes connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming and after framing the said issue send the record to the Assistant Collector in-charge of the sub- division for the decision on the said issue. 16. There shall be no orders as to costs. ___________________ ALOK KUMAR VERMA, J. Date:06.01.2025 JKJ/Neha 15 NEHA BISHT Digitally signed by NEHA BISHT DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=6f1c15b6305912b3f008e9a4a8038ee 7326b08b2d0e018b01be753f014836d27, postalCode=263001, st=UTTARAKHAND, serialNumber=3D89DC33779FB9677068452F 32DE6BA960BFE64D819EE44CA9CCE487B2FE 0F92, cn=NEHA BISHT Date: 2025.01.06 18:26:18 +05'30'