Mahabir Singh and Others vs Smt. Ilam Kaur

K.C. Agarwal, J.—This isa defendants'' revision filed against an order dated 19th March, 1980, of the Civil Judge, Muzaffamagar, deciding the preliminary issue of jurisdiction against the Defendants.

The necessary facts are these. Suit No. 122 of 75 was originally filed by Ram Saran for cancellation of the two gift deeds dated 11th November, 1974 which had been executed in favour of the Defendants. The Plaintiff Ram Saran alleged that he was an old man and was blind. The Defendants took him outside the village and got his thumb impressions on various papers. Subsequently, he came to know that the Defendants had got the sale deed executed from him in their favour in respect of agricultural land, hence, he filed the suit for the cancellation of the gift deed and also for injunction restraining the Defendants from interfering with his possession.

During the pendency of the suit, Plaintiff Ram Saran died. Upon his death, Smt. Ham Kaur who was the daughter of the deceased got herself substituted on the basis of the will executed by Ram Saran of the disputed land and other properties on 3-2-75.

The Defendants contested the suit on various grounds. One of the grounds taken was that the civil Court had no jurisdiction to entertain the suit and, as such, the same was liable to be dismissed.

The trial Court answered the aforesaid issue in favour of the Plaintiff holding that the suit was cognizable by the civil Court.

Being aggrieved, the Defendants filed the present revision.

Sri G. P. Bhargava, counsel for the Defendants urged that the real nature of the suit was that of declaration and, as such, it was barred by Section 331 of the U.P. Zamindari Abolition and Land Reforms Act. Counsel contended that a void document was not required to be avoided and that the Plaintiff could get declaration of his right over the land in dispute without getting the same cancelled. He urged that there was a clear distinction between the fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. According to him, the present was a case falling under the first category and, as such the document was to be regarded as void.

Before proceeding to consider the submission of the learned Counsel for the Defendants, reference be made to Sub-section (1-A) of Section 331 of U.P. Zamindari Abolition and Land Reforms Act (U.P. Act No. 1 of 51) which was inserted by U.P. Act 4 of 69. The new Sub-section (1-A) runs as under:

Notwithstanding in Sub-section (1) an objection that a Court mentioned in column 4 of Schedule II, or, as the case may be a civil Court, which had no jurisdiction with respect to the suit, application or proceedings, exercised jurisdiction with respect thereto shall not be entertained by any appellate or revisionai Court unless the objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled, on or before such settlement, and unless there has been a consequent failure of justice.

The argument raised on behalf of the Respondent was that the decision of the Court below could not be reversed even if the point of jurisdiction had been wrongly decided by the Court below. He urged that the Defendants having neither alleged nor proved that there has been a failure of justice in consequence of the order of the Civil Judge, they were precluded by Sub-section (1-A) of U.P. Act 1 of 51 from raising this objection in this Court.

I do not find any merit in this submission. The suit has not yet been tried on merits. So far, only the preliminary issue was decided in favour of the Plaintiff by the trial Court. There could not be a consequent failure of justice at this stage. The condition "unless there has been a consequent failure of justice-implies that at the time when the objection is taken in the apellate or revisionai Court, the suit must have been decided on merits. The section does not preclude the objection as to the forum where a suit has to be filed if the trial Court has not given a verdict on merits at the time when the objection is taken in the appellate or revisionai Court.

Thus, for what I have said above, it follows that in a case where a suit had been decided on merits, the appellate or revisionai judge be precluded from reversing the decision on the ground of jurisdiction unless the judgment of the trial Court was found to have resulted in causing injustice to the party aggrieved. A decree passed by a Court having no jurisdiction will not be set aside in the absence of proof of prejudice or failure of justice.

The point that Sub-section (l-A) of Section 331 does not preclude the objection as to the jurisdiction in the appellate or revisionai Court, if the suit has not been decided on the merits, at the time when the objection is taken is brought out in the judgment of Kiran Singh and Others Vs. Chaman Paswan and Others, . The observation made are quoted below:

The policy underlying Sections 21 and 99 of the CPC and Section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a Court on the merits and judgment be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of Legislature has been to treat objections to jurisdiction both the territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merits.

It is true that the above observations were in regard to sec 21 of the CPC but the language of Sub-section (1-A) of Section 331 being the same as that of Section 21, no other conclusion is possible. In fact, Sub-section (1-A) was inserted in 1969 by U.P. Act. No. 4 of 69 to set at rest the controversy about the validity of an objection of jurisdiction in appeals even though the suit had been decided on merits. The Legislature thought it advisable that where a suit had been decided on merits, the judgment should not be reversed on the technical ground of jurisdiction. With a view to bring this result that Sub-section (1-A) was inserted in Section 331 for achieving which Section 21 of the CPC had been enacted.

Reverting to the merits, the submission of the learned Counsel, as noted above, was that since the gift deeds were void, the suit was not maintainable.

Two reliefs bad been claimed in the suit. One was that of cancellation '' and the other was that of injunction. The jurisdiction of a Court depends initially on the allegations made in the plaint. The allegations made in the plaint were not such which could necessarily lead to the result that the gift deeds were void. These allegations were of a mixed character. On the proof of some of the allegations made, the deeds could only be held to be voidable whereas on other allegations found, the same could be treated as void. In order to clear his title, the Plaintiff brought the suit for the cancellation of the gift deeds. After a lapse of time the unchallenged existence of such document could cause difficulty in establishing title to the land. In these circumstances, the Plaintiff filed the suit for the cancellation of the gift deeds, the suit could not be said to be not maintainable. In Ram Awlamb v. Jata Shanher 1968 AWR 731 one of the appeals referred to its decision raised the question about the maintainability of the suit. The ground was that as the document was void, the suit was not maintainable. The Full Bench overruled the objection holding "a document under which the Plaintiff''s share also purports to have been transferred by a person not authorised to do so can be cancelled through Court to the extent of the Plaintiff''s share and after a decree has been passed in his favour information regarding the same has to be sent to the registration department for making a note in the register. To have a document adjudged void or voidable is provided for u/s 31 of the Specific Relief Act and cannot be considered to be altogether unnecessary because after a lapse of several years the unchallenged existence of such document can cause serious difficulty to the Plaintiff in establishing its title to the land of his share.....In short, the reliefs for declaration and partition could not be said to be effective alternative relief for the cancellation of the sale deed in respect of the whole or part of the joint property.....The jurisdiction of civil Court to entertain the suit out of which this appeal arises was not impliedly barred.''''

From the verdict of the Full Bench given in the above case, it is clear that the relief of declaration can not be substituted invariably in all cases where cancellation of a document is sought. That being the position, the suit for cancellation could not be held to be barred by Section 331 of the U.P. Zamindari Abolition and Land Reforms Act.

Baij Nath and Others Vs. Binda and Another, , relied upon by the learned Counsel for the applicants is distinguishable and is not applicable to the present case. In that case after having unsuccessfully challenged the cancellation of a document by the Assistant Consolidation Officer u/s 9 of the U.P. Consolidation of Holdings Act on the ground of fraud , the Petitioner filed the suit for the cancellation of the same document. The controversy before the learned Judge was as to whether the suit was maintainable. In that connection the learned Judge held that since the effect of inducement alleged in the said case rendered the document void, the consolidation Court had jurisdiction to adjudicate upon its validity and, as such, the suit in the civil Court was not maintainable. In the present case, the controversy is altogether different. The maintainability of the suit was challenged on the ground that as the document was void, as on the allegations made in the plaint, the gift deeds were void, the Plaintiff could bring a suit for declaration and, as such, no relief for cancellation could be given to him. For repealing the above submission, I have already held that the Plaintiff could not be forced to file a suit for declaration. He could get the relief of cancellation.

In the result, the revision fails and is dismissed with costs.