Sadaruddin and Ors. vs District Judge,Alld.& Ors.

D. K. Seth, J.—Leave is granted to convert this petition under Article 227 of the Constitution.

By means of this writ petition the petitioners have challenged the order dated 20121988 passed by Sri B. B. Agarwal, District Judge, Allahabad in Civil Revision No. 378 of 1988, affirming the order dated 2391988 passed by the Additional Munsif, Allahabad in Suit No. 833 of 1985. The fact of the case, inter alia, was that the respondent No. 3, filed a Suit for declaration of the saledeed as void or cancellation thereof against the petitioners alleging that he was bhumidhar in respect of the disputed land alongwith his brother, respondent No. 4 and that the petitioner got the saledeed executed in their favour in respect of the disputed land through imposter and, as such, the sale deed is void and is liable to be cancelled.

The petitioners as defendants contended in their written statement that the suit for cancellation of the alleged void document, in view of the assertions, made in the plaint was not maintainable and was barred under Section 331 of U.P. Zamindari Abolition and Land Reforms Act, 1950, herein afterreferred to as the said Act, by an order dated 2391988 the learned Munsif had held that the document is void and the Civil Court has jurisdiction to entertain the suit, as framed. Being aggrieved by and dissatisfied with the order dated 2921988 the petitioners had filed revision which was dismissed on 20121988. It is this order against which the present writ petition has been filed. The petitioners have also pointed out that the respondent No. 3 had filed a Suit No. 144 of 1987 before the Revenue court in respect of the same land for declaration of his right under the said Act.

Learned counsel for the petitioners contends that the said suit being barred under Section 331 of the said Act both the orders passed by the trial Court can not be sustained and the order dated 2391988 passed by the learned Munsif Magistrate and the order dated 20121988 passed by the learned District Judge, in revision there out, are wholly without jurisdiction, particularly, when by filing suit before the Revenue Court the respondent No.3 has admitted the situation.

The learned counsel for the respondent contends that the suit for declaration of a document as void on account of the same being executed through imposter, can only be decided in Civil Court and not by the Revenue Court. Section 331 of the said Act is not barred in respect of such suit.

Admittedly the allegations made in the plaint are that the saledeed was alleged to have been executed by an imposter and, therefore, the same is void and be cancelled. A saledeed which obtained by fraud, namely, by setting up some one else as the original owner. Therefore the deed was obtained by fraudulent method, was sought to be cancelled in the present proceeding. A suit for cancellation of the saledeed on the ground of fraud lies in the Civil Court. [See, Raghunath and others v. District Judge, 1986 RD 315, and Mahabir Singh v. Ham Chandra, 1981 ALJ 394]. In a case where the Plaintiff is Bhumidhar of the land and the executant had no title to the land, in such a case suit for cancellation of the saledeed is cognizable by the Civil Court and not by Revenue Court, See, Indra Dev v. Ram Pyara, 1982 ALJ 1308]. In order to appreciate the situation it is necessary to refer to Section 331 of the said Act, which runs as under :

"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 ScheduleII 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 obtaind by means of any such suit or application :

Provided that where a declaration has been made under S.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 VII shall not apply to such holding or part thereof." Section 331 prescribes that the suit, enumerated in Schedule II shall lie in the court mentioned in Column 4 of the said Schedule and shall not be cognizable by any other Court. Schedule II Column 3 prescribes nature of proceeding. While Column 4 prescribes Court where such proceeding can be initiated. On perusal of Schedule II I am unable to find out in Column3 where description of proceeding as at hand has been given and that nature of suit involved in the present case has been included therein.

Learned counsel for the petitioners has drawn my attention to serial No. ''11'' which contains applications in declaration under Sections 143 and 144. Section 143 prescribed that wherever a Bhumidhar with transferable rights uses his holding or part thereof for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming is prohibited then the Asstt. Collector may make declaration to that effect after holding proper inquiry. Therefore, the present case does not come within the ambit of the said Section. Similarly, Section 144 also speaks of declaration regarding the use of land for agricultural purposes. Thus the present case does not come under Serial No. ''11''.

Then learned counsel draws my attention to Serial No. 14 which contends application for transfer to be void connected with Section 163 which has since been omitted by U.P. Act No. 20 of 1982. Therefore the same can also not be attracted.

Learned counsel for the petitioner could not show any other provision from the said schedule within which he could fit in the present suit. It appears, that he could have fit in the present suit at Serial No. 15 which related to the proceeding for declaration of any transfer to be void and that too under Section 163 of the said Act which stood omitted with effect from 361981 by virtue of U.P. Act No. 20 of 1982. Therefore, the present suit can not be brought within the mischief of Section 331 of the said Act. Then again sub section (1) (a) of Section 331 makes it clear that objection as to jurisdiction either before the Civil Court or before the court mentioned in Column 4, can be taken only at the earliest possible opportunity and before the settlement of issues before the court of first instance. Therefore it appears that the Civil Court''s Jurisdiction has not been strictly and totally ousted. Therefore, in my view the Civil Court has jurisdiction to entertain such a suit I am supported by the decision in the case of Ram Padarath and others v. II Additional District Judge, Sultanpur and others, 1988 (6) LCD 565.

In the said case it was held, "suits for cancellation of a saledeed or other instruments and documents are essentially suits of civil nature. Every suit of civil nature is cognizable by a civil court, except cognizable of which is expressly or impliedly barred." Referring to Section 31 of the Specific Relief Act, it was held in the said decision, "Section 31 of the Specific Relief Act makes specific provision for cancellation of void as well as voidable instrument. Suits for cancellation of such documents being of civil nature are cognizable by a civil court and even otherwise suits claiming relief provided under Specific Relief Act are entertainable only by a civil court and no revenue court or any other court can entertain such a suit including for cancellation of an instrument or document."

Now with regard to the question that because of the filing of the suit before the Revenue Court by the respondent No. 3 under Section 229B of the said Act the respondent had admitted that the Revenue court had jurisdiction and the Civil Court does not have jurisdiction. It is necessary to refer to Section 229B of the said Act:

"229B. Declaratory suit by person claiming to be an asami of a holding or pan thereof. (1) Any person claiming to be an asami of a holding or any part thereof, whether exclusively or jointly with any other person, may sue the landholder for a declaration of his rights as asami in such holding or part; as the case may be.

(2) In any suit under subsection (1) any other person claiming to held as asami under the landholder shall be impleaded as defendant.

(3) The provisions of subsections (1) and (2) shall mutatis mutandis apply to a suit by a person claiming to be a Bhumidhar with the amendment that for the word ''landholder'' the words ''the State Govt. and the Gaon Sabha'' are substituted therein."

A perusal of said section clearly shows that the present suit is not a suit within the meaning of Section 229B of the said Act. Section 229B deals with complete different aspect which has no nexus with the present suit. Therefore the cause of action and the relief claimed being altogether different the same does not amount to admission by the respondents about the question of jurisdiction. Neither initiation of the said proceeding under Section 229B precludes the respondents from prosecuting the present suit before the Civil Court.

For the foregoing reasons, as mentioned above, the order passed by the Court below does not appear to suffer from any infirmity or irregularity or illegality in exercise of jurisdiction or absence of jurisdiction. Therefore I do not find any reason to interfere with the said order. Learned court below has correctly laid down the preposition. Therefore the writ petition fails and is accordingly dismissed.

There will, however, no order as to costs.