Disposed

Smt. Savitri Devi v. Shri Shivanand Pandey

Allahabad HC19 Jul 2019A227/4097/2019

Case brief

AI extract

What is this about?

The High Court reviewed the trial court's rejection of an application under Order 7 Rule 11 CPC regarding the bar under Section 331 of the U.P. Z.A. & L. R. Act. Finding no error in labeling the issue as mixed law and fact, the Court directed the trial court to decide the jurisdictional issue after hearing evidence.

What did the court decide?

Directed the trial court to decide the issue of maintainability after giving parties an opportunity to lead evidence.

Smt. Savitri Devi Vs Shri Shivanand Pandey — Property and Title | Allahabad HC (2019)

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Court No. - 40

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Case :- MATTERS UNDER ARTICLE 227 No. - 4097 of 2019

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Petitioner :- Smt. Savitri Devi Respondent :- Shri Shivanand Pandey Counsel for Petitioner :- Ramesh Chandra Singh, Rahul Kumar Singh

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Hon'ble Manoj Kumar Gupta,J.

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By means of the impugned order dated 5.5.2016 passed in Original Suit No.48 of 2012, the trial court has rejected the application 41-Ga filed by the defendant-petitioner for rejection of plaint under Order 7 Rule 11 CPC. In the said application, the petitioner also prayed for deciding issue relating to maintainability of the suit as a preliminary issue. According to the petitioner, the suit is barred by provisions of Section 331 of U.P. Z.A. & L. R. Act (in short 'the Act'). The petitioner has also challenged the order dated 5.4.2019, passed by the revisional court, dismissing the revision.

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The trial court has held that the issue as to whether the suit is barred by Section 331 of the Act or not, is a mixed question of law and fact, therefore, it could not be decided as a preliminary issue. On self same ground, the application under Order 7 Rule 11 CPC has also been rejected.

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Sri M.C. Singh learned senior counsel assisted by Sri Rahul Kumar Singh, submitted that even according to the plaint assertions, the land in dispute is agricultural land. He submitted that the name of the petitioner is duly entered in the revenue records, therefore, declaration of title of the plaintiff is necessarily involved. Consequently, the suit is not maintainable before the civil court. He further submitted that the sale deed, which is sought to be declared as null and void, is of the year 1987 whereas the suit was filed in the year 2012. It is submitted that it would be waste of time and money in case full trial is held and then suit is dismissed as barred by Section 331 of the Act.

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After going through the impugned order, this Court finds no error in the order of the trial court holding that the plea relating to bar under Section 331 of the Act is mixed question of law and fact, consequently plaint cannot be rejected under Order 7, Rule 11 CPC.

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However, at the same time, this Court is also of the opinion that since the very jurisdiction of the trial court is in issue, therefore, it would be in the interest of justice that the trial court decides the said issue before proceeding further in the matter. For such purpose, the trial court should give opportunity to the parties to lead evidence and then decide it.

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The petition stands disposed of with the above direction.

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(Manoj Kumar Gupta, J.)

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Order Date :- 19.7.2019 skv

Smt. Savitri Devi v. Shri Shivanand Pandey

Case brief

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Smt. Savitri Devi v. Shri Shivanand Pandey

Case brief

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