Pancham vs Ram Gen and others

V.K.Shukla,J.

Second Appeal has been filed against the impugned judgment and decree dated 04.05.2005/10.03.2005 passed by Special Judge SC/ST Act/Additional District Judge, Mirzapur in Civil Appeal No. 152 of 1982 arising out of Original Suit No. 197 of 1982 wherein judgment and decree dated 28.09.1982 passed by 4th Additional Munsif, Mirzapur has been confirmed.

Brief background of the case is that plaintiff filed Original Suit No. 197 of 1978 before the court of Munsif Mirzapur against Pancham and Dharnee Dhar contending therein that sale deed dated 5th June 1978 is liable to be declared as void. Ground of challenge mentioned therein was that property in question by no stretch of imagination could have been transferred in favour of Pancham by Dharnee Dhar as he had got no concern with the said property in question and said property in question belonged to one Jagannath who was father of the plaintiff, and had acquired property based on will and whose name was mutated in revenue record. Said suit in question was contested by contending therein that sale deed in question has been validly executed and further property in question was joint property and further his name has illegally been left out to be entered in the revenue record and further proceedings under Section 229B has been initiated and further he has absolute right to execute sale deed. After pleadings inter se parties have been exchanged in all six issues were framed. From the side of plaintiff as well as defendants oral as well as documentary evidence was led. Initially an issue was raised as to whether in the fact of the present case plaintiff should be relegated to revenue court or not. Trial court ceased of the matter, decided said preliminary issue on 18.07.1979 by taking view that civil court had the authority and jurisdiction to deal with the suit. Against the said decision on the preliminary issue of jurisdiction Civil Revision No. 167 of 1979 was preferred and same was rejected on 05.11.1980 and thereafter trial court considered the claim of the parties on merit and proceeded to dismissed the suit on 28.09.1982. Against the said order Civil Appeal in question i.e. Civil Appeal No. 158 of 1982 was preferred and said appeal in question has been allowed. Suit No. 197 of 1978 has been decreed. At this juncture present second appeal in question has been filed.

Learned counsel for the appellant Sri Rajiv Mishra, Advocate, contended with vehemence that in the present case, substantial question of law which arises for consideration is that relief which was being claimed by plaintiff was in fact in the nature of declaration and in fact parties ought to have been relegated to the Revenue court in term of Section 331 of U.P.Z.A. & L.R Act and Civil court had no authority or jurisdiction to try the suit as has been done in the present case, in this background judgement and decree passed by lower appellate court is liable to be set aside.

Countering the said submission Sri K.N.Rai Advocate on the other hand contended that in the present case similar issue was raised as preliminary issue and it was answered in negative i.e. civil court has got full authority or jurisdiction to deal with the suit for cancellation of sale deed and against said order in question Civil Revision in question has been filed and same has also been dismissed. Said question was further not reagitated and as such said order has attained finality and same cannot be permitted to be reopened and same operates as resjudicata, as it is the same question raised in same proceedings at different stages. Second Appeal is concluded by pure finding of fact, and on substantial question of law has arisen worth consideration in the present case.

After respective arguments have been advanced, first question to be considered in the present case is, once preliminary issue has been decided in respect of jurisdiction of civil court and the answer of the said question is in affirmative i.e. civil court had jurisdiction to entertain the suit and said order was subject matter of revision and revisional forum has also affirmed said order, can the validity of the said order be still questioned in Second Appeal, or its challenge would by barred by the principal of resjudicata on account of nonquestioning of the validity of said decision, under Article 226/227 of the Constitution of India.

In the present case admitted position is that issue no. 3 was an issue relating to the competence of the Civil court to decide the question of jurisdiction. Civil court, as suit was in respect of cancellation of sale deed proceeded to take view that civil court had authority and jurisdiction to decide the matter and against the said order Revision in question has been filed and said Revision in question has been dismissed.

At this juncture Section 11 of the Code of Civil Procedure which deals with resjudicata is being looked into.

"Section 11 ResJudicata : No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court.

Provision quoted above would go to show that in case issue pointed out has attained finality, same should not be allowed to be reopened or reagitated twice over. Section 11 engrafts said doctrine with a purpose that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and the parties litigating under same title and once such decision has been taken then same constitutes an absolutes bar to a subsequent action involving the same claim.

Res judicata by judicial pronouncements has been held, applies also between two stages in the same litigation, and doctrine of resjudicata is also attracted even the same proceedings. Relevant extract of the judgment, in the case Y.B. Patil Vs. Y.L. Patil AIR 1977 SC 392 is being extracted below:

"4. In appeal before us Mr. Gupte on behalf of the appellants has contended that the High Court was in error in not interfering with the order of the Tribunal whereby the revision petition filed by the appellants had been dismissed. It is urged that the Tribunal in affirming the findings of the Assistant Commissioner and the Deputy Commissioner regarding the question of the appellants being strangers qua the land in dispute took a very restricted view of Section 79 of the Act dealing with revision. This contention, in our opinion, is not well founded. The High Court at the time of the decision of the earlier writ petition on December 18 1964 recorded a finding and gave directions to the Tribunal not to reopen the questions of fact in revision. The Tribunal while passing the order dated September 12, 1967 complied with those directions of the High Court. The appellants are bound by the judgment of the High Court and it is not open to them to go behind that judgment in this appeal. No appeal was filed against that judgment and it has become final. It is well settled that principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings, Once on order made in the course of a proceeding becomes final, it would be finding at the subsequent stage of that proceeding. In view of the High Court judgment dated December 18, 1964, the Tribunal while passing the order dated September 12, 1967, disposing of the revision petition filed by the appellant, could not reopen the questions of fact which had been decided by the Assistant Commissioner and the Deputy Commissioner. The High Court, in our opinion was right in holding in the judgment under appeal that the concurrent findings of fact arrived at by the Assistant Commissioner, the Deputy Commissioner and the Tribunal cannot be set aside in the writ petition. The appeal consequently fails and is dismissed but in the circumstances with no order as to costs.

Same view has been reiterated in the case of U.P. State Road Transport Corporation, Vs. State of U.P. and another AIR 2005 SC 446.

"11. The principle of res judicata is based on the need of giving a finality to judicial decisions. The principle which prevents the same case being twice litigated is of general application and is not limited by the specific words of Section 11 of Code of Civil Procedure in this respect. Res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceedings. (See Satyadhan v. Smt. Deorajin Devi AIR 1960 SC 941)."

On the parameter as set out, facts of the present case are being adverted to. Here preliminary issue was decided in respect of jurisdiction of civil court and said order attained finality in Revision, then as far as appellate court is concerned, once it was hearing appeal against the final decree in question, the appellate court was certainly bound by the judgement which was given on the earlier occasion by Revisional Court when validity of the said order upholding jurisdiction of Civil Court was questioned in Revision and has been affirmed but as far as Second Appeal is concerned, as second appeal is nothing but continuance of suit and appeal and it can be entertained only when substantial question of law is involved on the parameter as set out under Section 100 Code of Civil Procedure, in case after the revision has been decided and appellant had chosen not to question the validity of the said order upholding jurisdiction of Civil Court under Article 226/227 of the Constitution of India then validity of the said order can be examined under Section 100 Code of C.P.C., inasmuch as, an incumbent can wait for final outcome of the suit and appeal then question the validity of the same in stead of questioning the validity of the same in pieces i.e. at every interlocutory stage of proceedings. Principle of resjudicata is definitely based on the need of giving finality of judicial decisions which will also apply two stages of the same proceedings. The stage of second appeal is altogether different, as such if at the revisional stage the order which has been affirmed in revision against the same writ petition has not been filed and same has not been challenged at higher forum then validity of the same can be very well questioned in second appeal after the final orders are passed and principle of resjudicata will not be apply, inasmuch as at no point of time at second appeal stage, said question has ever been permitted to attain finality. As such principle of resjudicata is not at all attracted in the fact of the present case and said issue of jurisdiction can be raised in second appeal.

In the case of Y.B. Patil Vs. Y.L. Patil AIR 1977 392 as against the order of High Court no appeal had been filed, said order had attained finality and the High Court had while deciding earlier writ petition recorded finding and gave decision in this background view has been taken that once an order made in proceedings becomes final, it would be binding at subsequent stage. Similarly in the case of U.P. State Road Transport Corporation, Vs. State of U.P. and another AIR 2005 SC 446, Hon''ble Apex Court had recorded categorical finding in two earlier decision that draft scheme had not lapsed, ignoring the same High Court again examined the said question and concluded that draft scheme had lapsed.

Now coming to the question raised that in the present case civil court had no jurisdiction to entertain the suit and parties to the dispute ought to have relegated to revenue court, as such was primarily for declaration of rights in agricultural land.

At this stage relevant provision of Section 9 of the Code of Civil Procedure and Section 331 of U.P.Z.A & L.R Act and Section 31 of Specific Relief Act are being looked into :

Section 9 C.P.C. Courts to try all civil suits unless barred : The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

Section 31 of Specific Relief Act: When cancellation may be ordered (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable and the Court may in its discretion, so adjudge it and order it to be delivered up and cancelled.

Section 331, Cognizance of suits, etc. under this Act.(1) Except as provided by or under this Act no court other than a court mentioned in column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908 (V of 1908) take cognizance of any suit, application, or proceedings mentioned in column 3 thereof or of a suit, application, or proceedings based on a cause of action in respect of which any relief could be obtained by means of any such suit or application :

Provided that where a declaration has been made under Section 143 in respect of any holding or part thereof, the provisions of Schedule II in so far as they relate to suits, applications or proceedings under Chapter VIII shall not apply to such holding or part thereof.

Explanation.If the cause of action is one in respect of which relief may be granted by the revenue court, it is immaterial that the relief asked for from the civil court may not be identical to that which the revenue court would have granted.

(1A) Notwithstanding anything in subsection (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 proceeding, exercised jurisdiction with respect thereto shall not be entertained by any appellate or revisional 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, at or before such settlement, and unless there has been a consequent failure of justice."

Section 331 of the Act which specifically outs the jurisdiction of Civil Court in respect of suits, etc. enumerated in Schedule II makes the phrase ''cause of action'' as pivotal point for determining the jurisdiction of civil or revenue court. The expression ''cause of action'' means that every fact would be necessary for the plaintiff to prove if traversed in order to support his right of judgment.

(2) If the instrument has been registered under the Indian Registration Act 1908 (16 of 1908), the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in this books the fact of its cancellation.

Section 9 of C.P.C. provides that Courts should have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Section 331 of U.P.Z.A & L.R Act contemplates that except as provided by or under the Act, no court other than Revenue Court mentioned in column 4 of schedule II shall notwithstanding anything contained in code, take cognizance of suit, application or proceeding mentioned in column 3 of the schedule, or of suit, application or proceeding based on cause of action in respect of which any relief can be obtained by means of any such suit or application. Section 31 of Specific Relief Act makes specific provision for cancellation of void as well as voidable document. One who has reasonable apprehension, that any instrument if left outstanding may cause him serious injury can approach competent court for getting same cancelled in Civil Court.

Full Bench of this Court in the case of Ram Padarath and others Vs. Second Additional District Judge, Sultanpur and others reported in 1989 RD 21 has dealt with the provision as provided under Section 31 of Specific Relief Act 1963, Section 9 of C.P.C. and Section 331 U. P. Z. A & L. R has held as follows:

" The law relating to right, title and interest over the agricultural land is contained in the U.P. Zamindari Abolition and Land Reforms Act hereinafter known as the ''Act'', which is a complete Code by itself and is wide than the earlier Act, i.e. U.P. Tenancy Act which too, was replaced by it. The said Act more particularly the Schedule to it enumerates the suits etc, the cognizance of which is to be taken by the revenue court specified therein. The said Act being special Act, it is provisions would prevail over the general law. The jurisdiction of Civil court is ousted if the relief can be granted by the special court conferred with jurisdiction to grant such reliefs. In Section 331 of the Act which specifically ousts the jurisdiction of other courts in respect of all suits, applications etc. enumerated in Schedule II the main emphasis is on the words ''cause of action and any relief''. The said section reads as under

"Section 331, Cognizance of suits, etc. under this Act.(1) Except as provided by or under this Act no court other than a court mentioned in column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908 (V of 1908) take cognizance of any suit, application, or proceedings mentioned in column 3 thereof or of a suit, application, or proceedings based on a cause of action in respect of which any relief could be obtained by means of any such suit or application :

Provided that where a declaration has been made under Section 143 in respect of any holding or part thereof, the provisions of Schedule II in so far as they relate to suits, applications or proceedings under Chapter VIII shall not apply to such holding or part thereof.

Explanation.If the cause of action is one in respect of which relief may be granted by the revenue court, it is immaterial that the relief asked for from the civil court may not be identical to that which the revenue court would have granted.

(1A) Notwithstanding anything in subsection (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 proceeding, exercised jurisdiction with respect thereto shall not be entertained by any appellate or revisional 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, at or before such settlement, and unless there has been a consequent failure of justice."

Section 331 of the Act which specifically outs the jurisdiction of Civil Court in respect of suits, etc. enumerated in Schedule II makes the phrase ''cause of action'' as pivotal point for determining the jurisdiction of civil or revenue court. The expression ''cause of action'' means that every fact would be necessary for the plaintiff to prove if traversed in order to support his right of judgment.

Hon''ble Court Apex Court in the case of Shri Ram and another Vs. Ist Additional District Judge and others reported in 2001 (3) Supreme Court Cases 21 has taken the view that a recorded tenure holder having a primafacie title and in possession files suit for cancellation of sale deed shall not be relegated before revenue court and the civil Court has jurisdiction to decide the suit and suit by recorded tenure holder was not barred. Relevant paragraph 7 is being extracted below:

"7. On analysis of the decisions cited above, we are of the opinion that where a recorded tenure holder having a prima facie title and in possession files suit in the civil Court for cancellation of sale deed having obtained on the ground of fraud or impersonation cannot be directed to file a suit for declaration in the revenue Court reason being that in such a case, prima facie, the title of the recorded tenure holder is not under cloud. He does not require declaration of his title to the land. The position would be different where a person not being a recorded tenure holder seeks cancellation of sale deed by filing a suit in the civil Court on the ground of fraud or impersonation. There necessarily the plaintiff is required to seek a declaration of his title and, therefore, he may be directed to approach the revenue Court, as the sale deed being void has to be ignored for giving him relief for declaration and possession."

This Court in the case of Tara Chand & another Vs. IInd Additional District Judge & others reported in 2002 (1) JCLR 95 (All) has taken the view that it is only Civil court which has authority or jurisdiction to decide when relief of cancellation of sale deed has been asked for. Relevant extract of the aforesaid judgment 9, 10,19 and 22 are being extracted below:

"9. A survey of the above decisions shows that consistent view appears to be the cause of action in a suit for cancellation of saleded is not the denial of the plaintiff''s title which may be said to be implicit in the cancellation of the sale deed but the execution of the deed itself.

So far as the documents which are voidable in nature, there a appears to be no dispute or any diversion of views about maintainability of suit in the Civil court, either the plaintiff is recorded in the revenue papers or not recorded. The diversion of the opinion appears to be only in the cases where the deed sought to be cancelled on the allegations made in the plaint appears to be void and if the plaintiff is not recorded in the revenue papers. If the plaintiff is recorded in the revenue papers then also there appears to be no diversion of opinion about maintainability of the suit in the Civil Court even in respect to the void document.

Otherwise, also if a deed is executed in respect to agricultural land even though if the plaintiff is not recorded in revenue papers, it does not appeal that they if the plaintiff only intends to get the saledeed cancelled why he cannot come to Civil Court asking that relief. By remaining the deed in favour of the opposite party the records of the registration office will demonstrate that fact and that may create problem to the plaintiff in many ways in his practical life. In normal life at various places, if the party is not able to produce the revenue entry and if a deed is represented showing the transaction in favour of a particular person the concerned authorities are excepted to accept the ownership of the land of that party in whose favour the deed exists. In view of this if a plaintiff wishes to get the deed cancelled in order to get any shadow of doubt of a claim by a person holding the deed removed, he can have every right to approach the Civil Court.

In view of the aforesaid analysis in respect to all questions (i), (ii) and (iv) posed above, it is being held that the suit will lie in the civil court. If plaintiff come to the Civil Court for seeking cancellation of deed which may be void or avoidable whether the name of the plaintiff is recorded or not the jurisdiction of the Civil Court not having being expressed barred to try such suits, the suit will be maintainable in the Civil Court."

Hon''ble Apex Court in the case of Kamla Prasad Vs. Krishna Kant Pathak 2007 (102) R.D 378, has followed the view in the case of Shri Ram and others Vs. Ist Additional District Judge, 2001 (3) SCC 24 and held keeping in view the facts mentioned in the plaint, as to how much share of disputed agricultural land belonged to plaintiff can be determined by Revenue Court. Factum deletion of plaintiff''s name from record, execution of sale deed etc. had been admitted before Mutation Court, in respect of sale deed qua agricultural area, view has been taken that same can be entertained by Revenue Court in the facts of case.

On the parameter as set out above the fact of the present case is being looked into. In the present case plaint in question has been perused and the plaint in question is clearly plain and simple suit for cancellation of sale deed and subsequently claim for possession has also been asked for. Relief of declaration has not at all been asked for, rather it has been specifically stated that based on registered will dated 12.10.1987 in favour of Jaganth, property belonged to plaintiff, and Dharnidhar had no authority to execute sale deed. Categorical finding of fact has been recorded that he had no authority to execute sale deed. Validity of will has not at all been questioned. The suit in question was plain and simple suit for cancellation of sale deed in term of Section 31 of Specific Relief Act 1963 and on the strength of said sale deed, the right of plaintiff was to be adversely effected. Revenue Court is not at all competent to give relief of cancellation of sale deed. Jurisdiction of Civil Court is ousted if the relief can be granted by the special court, conferred with the jurisdiction to grant relief. Section 331 of U.P.Z.A. & L.R Act ousts jurisdiction of the other courts, and therein emphasis is on words "cause of action" and " any relief" which can be accorded by Revenue Court. A suit for cancellation of sale deed is not such a suit application or proceeding as mentioned in column 3 of the schedule II nor is it a suit application or proceeding based on a cause of action in respect of which relief can be obtained by means of any such suit or application from a Revenue Court mentioned in Column 4 of Schedule II of the Act. In this background civil court has got full authority and jurisdiction and lower appellate court has rightly allowed the appeal in question based on pure finding of fact. There is no failure of justice in present case.

Consequently, present second appeal is dismissed.