Kundan Singh vs 1st Addl.District Judge, Bijnore And Others

Prakash Krishna, J.—One Govinda was the owner and Bhumidhar of plot No. 183/2 situate in village Dhanauri Kunwar, Pargana Akabarabad, District Bijnore. He on 15.1.1985 executed a saledeed for a sum of Rs. 6.000/ in respect of 1130 bigha of the aforesaid plot in favour of Kundan Singh, the present petitioner. Subsequent thereto, another saledeed was executed by Govinda in favour of Raghuveer Singh, Sher Singh etc.

The subsequent purchases i.e. Raghuveer Singh and Sher Singh filed a suit No. 78 of 1995 in the Court of Munsif, Najibabad that the saledeed executed by Govinda in favour of Kundan Singh on 15.1.1985 may be declared null and void as it is liable to be cancelled and it has no effect on the rights of the plaintiff. After exchange of the pleadings, a preliminary issue as regards to the maintainability of the suit before the Civil Court being Issue No. 3 was framed. The trial Court by its order dated 11th December, 1997 found that the name of the petitioner who was defendant in the suit, has already been mutated in the revenue record on the basis of the saledeed in his favour, therefore, the proper forum for adjudication of the rights of the parties is Revenue Court under Section 229B of the U.P.Z.A. and L.R. Act. The trial Court by the said order directed to return the plaint to the plaintiff for presentation before the Revenue Court.

Being aggrieved with the aforesaid order of the trial Court, the petitioner preferred a Civil Revision No. 102 of 1997 which came up for consideration before the 1st Additional District Judge, Bijnore. The Revisional Court took the view that the matter is cognizable by the Civil Court. It consequently allowed the revision and set aside the order of the trial Court and restored back the matter to the trial Court. Challenging the order of the revisional Court, the present writ petition has been filed.

Heard Shri Mukhtar Alam, the learned counsel for the petitioner. None is present on behalf of the respondents even in the revised list.

The learned counsel for the petitioner has placed reliance upon a judgment of the Apex Court in Kamla Prasad v. Sri Krishna Pathak, (2007) 1 CRC 506, wherein the Supreme Court has held that in such facts situation only Revenue Court can record a finding as to whether the saledeed executed by original tenureholder is valid or not. The controversy involved in the present writ petition is squarely covered by the aforesaid judgment of the Apex Court. Relevant paras 13 and 14 of the report are reproduced below:

"13. On second question also, in our view, Courts below were right in coming to the conclusion that legality or otherwise of insertion of names of purchasers in Record of Rights and deletion of name of the plaintiff from such record can only be decided by Revenue Court since the names of the purchasers had already been entered into. Only Revenue Court can record a finding whether such an action Was in accordance with law or not and it cannot be decided by a Civil Court.

In this connection, the learned counsel for the appellant rightly relied upon a decision of this Court in Shri Ram and another v. 1st Addl. Distt. Judge and others, JT 2001 (2) SC 573 : 2001 (1) CRC 417 (SC). In Shri Ram, ''A'', the original tenureholder of the land sold it to ''B'' by a registered saledeed and also delivered possession and the name of the purchaser was entered into Revenue Records after mutation. According to the plaintiff, saledeed was forged and was liable to be cancelled. In the light of the above fact, this Court held that it was only a Civil Court which could entertain, try and decide such suit. The Court, after considering relevant case law on the point, held that where a recorded tenureholder having a title and in possession of property files a suit in Civil Court for cancellation of saledeed obtained by fraud or impersonation could not be directed to institute such suit for declaration in Revenue Court, the reason being that in such a case, prima facie, the title of the recorded tenureholder is not under cloud of title. He does not require declaration of his title to the land."

Besides above, the learned counsel for the petitioner has also placed reliance upon the following decisions:

(1) 2007 (25) LCD 283, Jai Ram Singh and another v. 1st Additional Distt. Judge, Bijnor and others;

(2) AIR 2003 All 58, Kishori Prasad v. IIIrd Additional District Judge and others;

(3) 2003 (4) AWC 2972, Babu Nandan (D) through LRs. v. Smt. Esraji;

(4) AIR 1990 SC 1173, Smt. Dularia Devi v. Janardan Singh and others; and

(5) 1998 (3) AWC 2024 (SC), Azhar Hasan and others v. District Judge, Saharanpur and others.

These above cases also fortifies the contention of the learned counsel for the petitioners.

In view of the above discussion, I find sufficient force in the argument of the learned counsel for the petitioner. The writ petition succeeds and is allowed. The impugned order is hereby quashed. The trial Court is directed to return the plaint for presentation before the Revenue Court. But no order as to costs.