Ram Briksha vs Viii - District Judge and Others

Sibghat Ullah Khan, J.—Inspite of sufficient service no one appeared on behalf of Respondent No. 3 the only contesting Respondent. Heard learned Counsel for the Petitioner.

Petitioner is Defendant in O.S. No. 441 of 1985 which has been filed by Respondent No. 3 - Mohan Lal. The relief claimed in the suit is for cancellation of sale deed dated 16.1.1984 in respect of agricultural land which belonged to the Plaintiff. The ground for cancellation mentioned in the plaint is that Plaintiff never executed the sale deed and someone else had impersonated him and that the sale deed does not bear Plaintiff''s signatures. After execution of the sale deed name of the Defendant purchaser Petitioner was also mutated in the revenue records. The Defendant raised the plea of jurisdiction. Issues were framed and issue No. 3 was related to the jurisdiction of civil court. The contention of the Defendant was that jurisdiction of the civil court was barred by Section 331 of U.P. Zamindari Abolition & Land Reforms Act, 1950, according to which a suit cognizable before revenue court shall not be heard by any other court. Section 229-B of U.P.Z.A.&L.R. Act provides for suit for declaration.

Trial court/Munsif, Basgaon, District Gorakhpur through order dated 9.11.1993 held that the suit was in-fact for declaration of rights in agricultural land hence civil court had no jurisdiction to entertain the same in view of Section 229-B read with Section 331 of U.P.Z.A.& L.R. Act. Against the said order Plaintiff filed civil revision No. 2 of 1994. The revision was allowed by 3rd Additional District Judge, Gorakhpur through judgment and order dated 4.3.1997 holding that civil court has jurisdiction to try the suit. Petitioner filed an application for re-hearing before the revisional court which was registered as Misc. Case No. 24 of 1997. The said application was rejected on 16.10.1998.

Through this writ petition orders dated 16.10.1998 and 4.3.1997 have been challenged.

I have heard learned Counsel for the Petitioner on the merit of the writ petition i.e. as to whether suit was maintainable before the civil court or not.

Section 31 of Specific Relief Act 1963 is quoted below:

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.

(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 his books the fact of its cancellation.

From the perusal of the above section it is quite clear that even a suit for declaration that a document is void or viodable is maintainable before the civil court. The word void has been used before word voidable. A Full BenchRam Padarath v. A.D.J. 1989 A.W.C. 290 has also held that suits for cancellation of even void deeds in respect of agricultural land are maintainable before the civil court particularly when the allegation is that someone else impersonated the Plaintiff or the executant of the sale deed. Only such suits are necessarily to be filed before revenue courts and are not maintainable before civil court where position before the execution of sale deed is challenged. Paragraphs 36 and 41 of the Full Bench are quoted below: of this Court reported in

36: In the case of void document said to have been executed by a Plaintiff during his dis-ability or by someone impersonating him or said to have been executed by his predecessor whom he succeeds, the relief of cancellation of the document is more appropriate relief for clearing the deck of title and burying deep any dispute or controversy on its basis in presenti or which may take place in future. The document after its cancellation would bear such an endorsement in sub-Registrar''s register and would be the basis for correction of any paper and revenue record including record of register. Section 31 of the Specific Relief Act itself prescribes as to who can seek relief of cancellation. A third person cannot file a suit for cancellation of a void document. If in fact no decree for cancellation was needed and real and effective relief could be granted by the revenue court only, the civil court decree would even then be valid and not void if no objection to the same was taken before the trial court. If such an objection was taken before the trial court before framing of issues and objection continued to be taken before appellate and revisional court and there has been failure of justice because of change of forum then the civil court decree could be said to be without jurisdiction.

41: We are of the view that the case of Indradev v. Smt. Ram Piyari 1982 (8) ALR 517 has been correctly decided and the said decision requires no consideration, while the division bench case, Dr. Ayodhya Prasad v. Gangotri 1981 A.W.C. 469 is regarding the jurisdiction of consolidation authorities, but so far as it holds that suit in respect of void document will lie in the revenue court it does not lay down a good law. Suit or action for cancellation of void document will generally lie in the civil court and a party cannot be deprived of his right getting this relief permissible under law except when a declaration of right or status of a tenure-holder is necessarily needed in which event relief for cancellation will be surplus age and redundant. A recorded tenure-holder having prima-facie title in his favour can hardly be directed to approach the revenue court in respect of seeking relief for cancellation of a void document which made him to approach the court of law and in such case he can also claim ancillary relief even though the same can be granted by the revenue court.

The Full Bench authority has been approved by the Supreme Court in Bismillah v. Janeshwar Prasad AIR 1990 S.C. 2451 . It has also been quoted with approval in Shri Ram and Another Vs. Ist Addl. District Judge and Others, In the instant case challenge is only to the position which was brought into existence by the sale deed.

Accordingly, in my opinion the suit is perfectly maintainable before the civil court and the judgment of the revisional court dated 4.3.1997 does not suffer from any error.

Writ petition is therefore dismissed. The trial court before proceeding further shall issue notice to Plaintiff-Respondent No. 3-Mohan Lal as no one has appeared on his behalf in this writ petition.