Lallu (Deceased) and Another vs Ram Nath and Others

Hon''ble Sibghat Ullah Khan, J.—Heard Learned Counsel for the parties. This is plaintiff''s second appeal arising out of O.S. No. 525 of 1995 which was dismissed on 26.05.2010 by Civil Judge (Junior Division), Etawah. Against the said decree plaintiff-appellant filed Civil Appeal No. 36 of 2010 which was dismissed by Additional District Judge, Court No. 8, Etawah on 08.02.2011 hence this second appeal.

The suit was filed for cancellation of sale deed dated 30.06.1992 executed by Chameli Devi widow of Bhadai in favour of defendants-respondents. Original plaintiff Lallu (since deceased and survived by his son Man Singh-appellant) and Bhadai were real brothers. The case of the original plaintiff was that Bhadai died issueless 40 years before and after his death his widow Chameli Devi started residing with him (plaintiff) as wife (by doing garonna). Property in dispute is agricultural land comprised in plot nos.1560 area 0.97 acre, 1397 area 1.15 acre, 1585 area 0.74 acre and 1591 area 1.14 acre total four plots area 4.27 acre. Both the brothers, plaintiff and Bhadai were co-bhumidhars of the entire land. According to the plaintiff after death of Bhadai plaintiff became the bhumidhar of the entire land as Bhadai died issueless and his widow remarried with him. However, the name of Chameli Devi continued in the revenue records along with the plaintiff. The sale deed was executed by Chameli Devi in respect of half share in the above agricultural property in favour of defendants-respondents for Rs. 70,000/-.

This appeal was admitted on four substantial questions of law on 25.03.2011. The said order is quoted below:-

Heard Sri Anil Sharma, Learned Counsel appearing for appellants and Sri Ramesh Upadhyaya, Learned Counsel appearing for respondents.

The substantial questions of law involved in the present second appeal are-

I. Whether on Issue No. 3 once the trial court has recorded a finding that civil court has no jurisdiction in view of the nature of the property, to decide the suit on merits ?

II. Whether the Appellate Court on an appeal filed by plaintiff-appellant was having any jurisdiction after holding that suit was maintainable before the Civil Court can decide the appeal on merits?

III. Whether on such ground plaintiff can be non-suited without remanding the matter to the Trial Court ?

IV. Whether the defendant failed to prove regarding payment of consideration the sale deed becomes void u/s 25 of the Contract Act ?

Admit.

Issue Notice.

Respondents are restrained from alienating or changing the nature of land in dispute.

Chameli Devi was not impleaded as defendant in the suit. It was also pleaded by plaintiff that sale consideration was not paid to Chameli Devi. Plaintiff Man Singh in his oral statement stated that Chameli Devi had died in 1990. However, in the plaint it was not mentioned that Chameli Devi had died.

The courts below held that in the pariwar register Chameli Devi was mentioned as widow of Bhadai. Plaintiff could not produce any witness, who could say that before him marriage of Chameli Devi with original plaintiff took place. No document in that regard was also filed. In the pariwar register copy of which was filed by the defendant, it was shown that Chameli Devi died in the year 2004. However, at another place year of death of Chameli Devi was mentioned as 1990 in the Pariwar Register but that entry was made on 26.03.2006. Both the courts below found that Chameli Devi executed the sale deed after receiving the sale consideration. Accordingly, it was held that plaintiff was not entitled to get the sale deed cancelled and that Chameli Devi had died on 28.01.2004.

Under issue No. 3 the trial court mentioned that suit for cancellation of sale deed was not maintainable before Civil Court, it ought to have been filed before the Revenue Court. Lower Appellate Court set aside the finding of the trial court on issue No. 3 regarding jurisdiction and held that the suit was maintainable before the civil court. The view of the Lower Appellate Court is perfectly in accordance with law. It has been held in the Full Bench Authority reported in Ram Padarath Vs. Additional District Judge 1989 AWC 290 that even if the allegation is that some imposter executed the sale deed, still suit for its cancellation is maintainable in civil Court.

The main argument of the Learned Counsel for the appellant is that the trial court after recording the finding that the suit was not maintainable before the Civil Court, should not have decided the other issues regarding validity of the sale deed. This point is covered by substantial questions of law nos.1 to 3. In this regard Order 14 Rule 2 CPC is relevant which is quoted below:-

[Court to pronounce judgment on all issues- (1)Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.

(2). Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-

(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time being in force,

and for that purpose may, if it things fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.]

Accordingly, no fault can be found in the approach of the trial court in deciding all the issues even after holding that the suit was not maintainable. Plaintiff-appellant did not apply for deciding issue of jurisdiction as preliminary issue.

As far as last substantial question of law is concerned firstly, in the registered sale deed it is mentioned that sale consideration was paid; secondly, Chameli Devi never raised any dispute regarding payment of sale consideration; thirdly, plaintiff having got no concern with the land in dispute could not raise such a dispute.

In any case, the sale deed through which respondents purchased the property from Smt. Chameli Devi was protected u/s 41 Transfer of Property Act as Lallu original plaintiff permitted the name Smt. Chameli Devi to continue in the revenue record and did not take any steps for expunging her name even though he alleged that Smt. Chameli Devi had remarried with him.

Accordingly, there is absolutely no error in the impugned findings. The questions of law framed at the time of admission of appeal are decided against the appellant. Second appeal is, therefore, dismissed.

Before parting, it is necessary to take note of a particular development. In this case a limited stay order was passed on 25.03.2011 to the following effect:- Respondents are restrained from alienating or changing the nature of land in dispute.

However, the Naib Tehsildar Lal Mani Dubey illegally delivered possession of the land in dispute to the appellant after dispossessing the respondents on the basis of the above stay order. The Court directed the learned Standing Counsel to seek instruction. Learned Standing Counsel placed on record instructions sent to him by District Magistrate, Etawah dated 15.02.2012 holding that Lal Mani Debey, Naib Tehsildar, Bharatana acted illegally in delivering possession to the appellant and intimating that Commissioner & Secretary, Board of Revenue, U.P., Lucknow had been requested to initiate disciplinary proceedings against him. It is obvious that the action of Lal Main Dubey, Naib Tehsildar or any other officer who was responsible for dispossession of respondents and delivery of possession to the appellant was utterly illegal. There was no such order passed by this Court, the above quoted interim order dated 25.03.2011 impliedly accepted possession of the respondents. The disciplinary proceedings shall quickly be brought to their conclusion. Possession if not already delivered to the respondents shall be delivered to them by the Collector, Etawah within three days from the receipt of copy of this judgment but in no case beyond 15 days from today as learned Standing Counsel is being directed to send copy of this judgment to the Collector, Etawah. Office is directed to supply a copy of this order free of cost to Sri S.P. Mishra, learned Standing Counsel by tomorrow for sending the same immediately to Collector, Etawah.