Paragraph numbers below are the court’s original numbering, recovered from the source text.
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 H specified all such agricultural area shall be transferred to and MAHANT DOOJ DAS (DEAD) TH. LR. v. UDASIN PANCHAYATI BARAAKHARA &ANR. [NAOLEKAR, J.] vest except otherwise provided, in the State free from all A · 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 B 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 c · 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 E 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 . G 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 B 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 c 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 D 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 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 G 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 H area. Once the objections are decided and the Commissioner MAHAN! DOOJ DAS (DEAD) TH. LR. v. UDASIN ,I. PANCHAYATI BARAAKHARA &ANR. [NAOLEKAR, J.] 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 · B area was only to be declared to be vested in the,S,tji!te 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 c 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 exercis~ of powers of Section 8 of the 1956 Act, the Governor D 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 ·t. 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 G 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 tii'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 [2008) 7 S. C.R. 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 t<;> oust the jurisdiction of a civil court to establish his contention and it is also equally well settled that a B statute ousting the jurisdiction of a civil court must be strictly constructed. In Sri Vedagiri Lakshmi Narasimha Swami Temple v. lnduru Pattabhirami Reddi, AIR 1967 SC 781, this Court held c 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. Bismil/ah 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 E provisions of law which seek to oust the jurisdiction of civil court need to be strictly construed. 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 F 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 (DJ by LRs. v. Ramesh Chander Agarwal and Others, (2003) 6 SCC 220, a 3-Judge G 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 "'H bar jurisdiction of a civil court requires strict interpretation. The MAHANT DOOJ DAS (DEAD) TH. LR. v. UDASIN .4 PANCHAYATI BARAAKHARA &ANR. [NAOLEKAR, J.] court, it is well settled, would normally lean in favour of A construction, which would uphold retention of jurisdiction of the civil cour(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 wi,th jurisdiction. c
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 D Act. Sections 3, 4 and 5, as already held by us, provide a · complete code for demarcation of the agricultural area after giving appropriate h~aring 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 E 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, y 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 G 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 H ….. • A 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 forthe respondents forthe 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 c 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 D 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 E 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 finding arrived at, that the plaintiff was initiated as the eldest chela of Mahant Tahal Dass according to the custom and being the eldest che/a was heir and successor in respect of the suit property of Mahant F 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 G 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 H proviso to sub-section (5) of Section 100, CPC. The power of MAHANT DOOJ DAS (DEAD) TH. LR. v. UDASIN PANCHAYATI BARAAKHARA &ANR. [NAOLEKAR, J.] the High Court to hear an appeal on the question of law not A 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 B 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 C 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 D under: " … We 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 G 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 …. " [2008) 7 S.C.R. In Gian Dass v. Gram Panchayat, Village Sunner Kalan c and Others, (2006) 6 SCC 271, this Court in para 13 has held as under: " … 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 . E Court has recorded its satisfaction that apart from the q\Jestions 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 to be heard.
25. From the aforesaid, it cannot be said that any other F 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 G 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 MAHANT DOOJ DAS (DEAD) TH. LR. v. UDASIN PANCHAYATI BARAAKHARA&ANR. [NAOLEKAR, J.] 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/-. D.G. Appeal allowed.