Brahma vs Sirtaji

@DELETEUPPERDATA

Dinesh Gupta, J.—This second appeal is preferred against the judgment dated 17.12.1998 passed by Additional District Judge, Ballia in Civil Appeal No. 372 of 1984 arising out of the judgment dated 12.11.1984 passed by Additional Munsif VII, Ballia in O.S. No. 298 of 1981. The brief facts which give rise to this relief are that the plaintiff-respondent, hereinafter called ''the respondent'' filed original suit No. 298 of 1981 for the relief of cancellation of sale-deed and permanent prohibitory injunction against the defendants-appellants, hereinafter called ''the appellants'', which was decreed.

Feeling aggrieved, the appellant preferred an appeal which was earlier decided on 28.11.1996 by the then District Judge who allowed the appeal and set aside the judgment and remanded the matter back to the Trial Court with a direction to dispose of issue No. 2 afresh in accordance with law.

Issue No. 2 was framed by the Trial Court as to whether the Court has no jurisdiction to try the suit and the suit is barred by the provisions of section 331 of U.P.Z.A. & L.R. Act.

Aggrieved with the judgment of the Appellate Court respondent filed first appeal from order before High Court bearing No. 9 of 1997 which was allowed by the High Court on 10.1.1997 holding that the suit is maintainable in the Civil Court and directed the Appellate Court to decide the other issues in accordance with law.

The Appellate Court finally decided the appeal and dismissed the same vide its order dated 17.12.1998.

Feeling aggrieved, the appellant preferred this appeal

Heard Sri G.D. Misra, learned Counsel for the appellants and Sri V.K. Singh for respondent at the admission stage.

The Counsel for the appellant submitted that at the time of filing the suit for cancellation the name of the appellants were recorded in the records of revenue on the basis of disputed sale-deed. Hence, the civil Court had no jurisdiction to try the suit and only revenue Court was competent to grant the relief to the respondent.

In view of the provisions of section 331 of U.P.Z.A. & L.R. Act both the Courts below have wrongly held otherwise.

That Appellate Court committed apparent error of law and jurisdiction in deciding the issue No. 2 regarding the jurisdiction of Civil Court to try the suit and has wrongly based its decision solely on the finding of the Hon. High Court passed in F.A.F.O. No. 9 of 1997.

that the order dated 10.1.1997 passed in F.A.F.O. No. 9 of 1997 was passed without actually hearing the appellant and even without issuing the notice to them and as such it does not amount to res judicata and decision on issue No. 2 also is not binding on the appellant. The lower Appellate Court committed error of law in treating Order dated 10.1.1997 as final decision of issue No. 2.

That the first Appellate Court has failed to appreciate that the Trial Court has failed to exercise jurisdiction in not giving proper discretion to the appellants to adduce their evidence.

That the finding recorded by both the Courts below are based on surmises and conjectures and in utter violation of principle of natural justice.

The Counsel in support of his contention relied upon Gorakh Nath Dube Vs. Hari Narain Singh and Others, , Dhurandhar Prasad Singh Vs. Jai Prakash University and Others, , and Kamla Prasad and Others Vs. Sri Krishna Kant Pathak and Others, : Kamla Prasad and Others Vs. Sri Krishna Kant Pathak and Others, , and submitted that the Apex Court has finally decided that controversy regarding the jurisdiction of Civil Court or revenue Court in the matter of cancellation of document which are void or voidable. Both the documents can be looked into by revenue Courts.

The Counsel for the respondent submitted that so far as the issue regarding the jurisdiction of civil Court in entertaining the suit is concerned after the remand of the case by Appellate Court to the Trial Court to decide the issue, respondent preferred an F.A.F.O. which was registered as No. 9 of 1997 and was decided by Allahabad High Court vide order dated 10.1.1997.

The High Court in the above said order clearly held that civil Court has jurisdiction to try the suit and directed the Appellate Court to decide the other issues on merit.

The impugned order passed in F.A.F.O. was in the knowledge of the appellant and it was not challenged by them in any competent Court and so far as the order is concerned, decision is binding on the Appellate Court. So far as the finding on the other issues are concerned the findings are concurrent in nature and there is no sufficient ground to disturb the same. The Counsel also relied upon Ganga Prasad Vs. Ram Das, .

I am unable to accept the contention raised by the learned Counsel for the appellants. So far as the decision on the point of jurisdiction is concerned, the Trial Court held that civil Court has jurisdiction to try the suit.

The Appellate Court further set aside the judgment and remanded the matter to the Trial Court to decide the issue of jurisdiction afresh against which an FAFO was filed by the respondent which was decided on 10.1.1997. The order passed on the FA.F.O. No. 9 of 1997 reads as under.

"Heard learned Advocate appearing for the appellant.

Duly considered the submissions. It has been submitted that the Trial Court held that though suit was for cancellation of decree, but the Trial Court held that the Court lacks jurisdiction. In the appeal, the Appellate Court sent back in remand with the direction to decide the issue afresh, according to the observations.

In view of the Full Bench decision of our Hon''ble Court and the Principle laid down, that the Revenue Court has no jurisdiction to decide whether the document is void or voidable. It is only exclusive jurisdiction to the Civil Court to decide the question. In the circumstances, this appeal stands allowed and that the operation of the order stands quashed and the Trial Court to decide other issues, according to law, as early as possible.

With these directions, this appeal is finally disposed of."

After this decision the matter was considered by the Appellate Court who while deciding the other issue dismissed the appeal. The contention raised by the appellant that the determination of issue of jurisdiction was not res judicata as it was not passed by this Court after hearing them has no force.

I have gone through the order passed by this Court in F.A.F.O. No. 9 of 1997 the Court after considering Full Bench decision has taken a view that in the facts and circumstances of the case the suit is maintainable in Civil court. This finding was binding on the Appellate Court and the Appellate Court has rightly decided the other issue as per direction of the High Court. In case the appellants were not satisfied with this order and treated it to be an ex parte, they could move High Court for setting aside that order but no such action was taken by the appellant and in my view the decision taken by this Court in F.A.F.O. No. 9 of 1997 was binding on the Appellate Court. So far as the contention of the appellant that still this Court can look into the point of jurisdiction which is purely a question of law.

I am unable to accept the contention raised by the learned Counsel for the appellant. Admittedly, in the revenue record the name of Mst. Sirtaji Was recorded earlier.

It was only on the basis of the alleged sale-deed that the name of the appellants were recorded. The respondent has challenged the sale-deed on the ground of fraud and misrepresentation. Thus, considering the judgment of the Hon. Apex Court citied by the Counsel for the appellant the civil Court has jurisdiction to try the suit and to resolve the controversy between the parties regarding the cancellation of document.

So far as the other findings are concerned they are concurrent in nature and passed on appreciation of facts and evidence and the Counsel for the appellant failed to show me that any evidence is misread or misinterpreted. No substantial question of law is involved.