HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 953 of 2009 (M/S) Smt. Lajwanti Sharma. ………..Petitioner Versus Pradeep Kumar Jain and others. …….Respondents Shri Tapan Singh, holding brief of Shri Lok Pal Singh, Advocate for the petitioner, Shri Sudhir Kumar, Brief Holder for the State Dated: May 3, 2010 Hon’ble V.K. Bist, J. Present writ petition has been filed by the petitioner challenging the impugned order dated 09.04.2008 passed by the Addl. Commissioner, Garhwal Region and order dated 25.03.2009 passed by Addl. Chief Revenue Commissioner, Uttarakhand. 2. Brief facts, emerge out of the record, are that the petitioner filed a Revenue Suit No. 25 of 2004 u/s 229-B of U.P.Z.A. and L.R. Act (for short the Act) in the Court of Assistant Collector, 1st Class, Dehradun against the defendant/ respondent nos. 1 & 2 with the averments that Smt. Ramdai @ Kishandai W/o late Pratap Singh was the tenure holder of the land in dispute and was in possession and after her death her son Hari Chand became the owner of the property and again after the death of Hari Chand, his share vested in his wife Vidyawati who executed a WILL in favour of her daughters. Thus, the petitioner became the bhumidhar with transferable rights and in possession over the property in dispute and the defendant no.1 has no right, title over the property in dispute. The respondent no.1 moved an application under Order-7 Rule-11 of the Code of Civil Procedure on the ground that since the land in dispute is not being used for agricultural 2 purposes, therefore the Trial Court has got no jurisdiction to hear and decide the suit. This application was rejected by the Assistant Collector, Dehradun vide order dated 04.10.2007. Thereafter, the respondent no.1 preferred a Z.A. Appeal no. 19 of 2007-08 before the Commissioner Garhwal Region, which was allowed by the Addl. Commissioner, Garhwal Region by its order dated 09.04.2008. Feeling aggrieved with the order dated 09.04.2008, the petitioner preferred Second Appeal no. 95 of 2007-08 in the Court of Chief Revenue Commissioner, Uttarakhand which was transferred to the Court of Addl. Chief Revenue Commissioner, Uttarakhand. But the Addl. C.R.C., Uttarakhand did not find favour with the appellant/petitioner and vide order dated 25.03.2009 dismissed the second appeal filed by the petitioner. Hence this petition. 3. The respondent/State has filed a counter affidavit in which the respondent, interalia, has stated that earlier the petitioner has filed a Writ Petition no. 1320 (M/S) 2009 before this Court for the same relief and the same has been dismissed vide Court’s order dated 13.08.2009. 4. I have heard the learned counsel for the parties and perused the record. 5. The learned Brief Holder drew my attention to the judgment rendered by the Apex Court in Chandrika Singh and others vs. Raja Vishwanath Pratap Singh and another (1992, R.D., Page-258) in which the Apex Court has held that in order to exclude the applicability of the Act on the ground that the land is Abadi land it is necessary to determine whether the said land is or is not being used for 3 purposes connected with agriculture, horticulture or animal husbandry. Such a determination is envisaged by Secs. 143 and 144 and where such a determination has not been made in accordance with those provisions and this question arises before a Court in a suit, it is required to be determined in accordance with the provisions of Sec. 331- A. The scheme of the provisions contained in Section 143 or Section 144 and Section 331-A is that the question whether a particular land is or is not used for the purposes connected with agriculture, horticulture or animal husbandry has to be determined either under Section 143 or Section 144 and where no such determination has been made, it should be determined by following the procedure laid down in Section 331-A. 6. During the course of arguments, learned counsel for the parties are agreed and prayed that the writ petition may be decided in the same terms and observations made in Writ Petition no. 1320 (M/S) 2009 decided on 13th August, 2009. 7. Accordingly, the writ petition is disposed of in the same terms and observations made in Writ Petition no. 1320 (M/S) 2009 decided on 13th August, 2009. 8. All the pending applications stand disposed of. (V.K. Bist, J.) 03.05.2010 NCM: