Sitapati (Dead), Through Lr vs 2Nd Addl.District Judge, Sultanpur and Others

Devi Prasad Singh, J.

Heard the learned counsel for the parties.

Plaintiffpetitioner has filed a suit for cancellation of the sale deed in question. According to the learned Counsel for the petitioner, sale deed dated 24th of December, 1981 was executed in favour of the defendant No.3 in collusion with defendant Nos. 4 & 5 relating to land in question. The land in question is an agricultural land. A preliminary issue was framed relating to the jurisdiction of the Civil Court. The trial Court arrived to the conclusion that the civil Court has got jurisdiction to entertain the suit for cancellation of the sale deed. Feeling aggrieved, defendant has preferred a revision which has been allowed by the impugned order dated 7th of February, 1987, copy of which has been filed as Annexure No.5 to the writ petition. While allowing the revision, the learned Addl. District Judge, Sultanpur has relied upon a Division Bench judgment of this Court reported in 1981 LJ 647, Ayodhya Prasad v. Gangotri Prasad. The revisional court had given a finding that revenue Court will have got jurisdiction to entertain the suit in question in view of the provisions contained in Section 331 of the U.P.Z.A. & L.R. Act. Feeling aggrieved with the order of revisional Court, present writ petition has been filed by the plaintiff. The attention of this Court has bee drawn towards the plaint, copy of which has been filed as Annexure No.1 to the writ petition. The pleadings as exists on record shows that the plaintiffpetitioner had come forward with a case that she has not executed the sale deed and instead of her some imposter appeared before the Registrar who had executed the sale deed in question to give undue advantage to the defendant No.3. Pleading on record at the face of the record further shows that plaintiff has filed the suit on the ground that defendant has committed fraud by impersonation. Plaintiff has not executed any sale deed. Sri S.K. Mehrotra, learned counsel for the petitioner further submits that since the sale deed was executed by committing fraud and impersonation, document in question was void document and civil Court was competent to entertain the suit. The further submission of the learned Counsel for the petitioner is that the Division Bench judgment of this Court which has been relied by the revisional Court was the subject matter for consideration before the Full Bench of this Court in a case reported in 1988 (6) LCD 565, Ram Padarath v. 2nd ADJ, Sultanpur and others. Accordingly, the submission of the learned counsel for the petitioner is that the civil Court was competent to entertain the suit for cancellation of sale deed in question.

Feeling aggrieved by the impugned order, petitioner had preferred the present writ petition on the ground that the alleged sale deed is a void document and not voidable and accordingly the suit abates and the controversy should relegate to the Consolidation Court for decision in accordance to law. Learned counsel for the petitioner had placed reliance upon the Full Bench judgment of this Court reported in 1988 (6) LCD 565, Ram Padarath v. Second ADJ. Learned counsel for the petitioner relied upon para 9 of the said judgment which is reproduced as under:

�So far as voidable documents like those obtained by practising coercion, fraud, misrepresentation, undue influence etc., are concerned, their legal effect cannot be put to an end without its cancellation. But a void document is not required to be cancelled necessarily. Its legal effect, if any, can be put an end to by declaring it to be void and granting some other relief instead of cancelling it. Once it is held to be void it can be ignored by a Court or authority, being of no legal effect or consequence. A document executed without free consent or one which is without consideration or the object of which is unlawful or executed by a person not competent to contract like a minor or in excess of authority would be a void document. In case it is in excess of authority it would be void to that extent only. There is presumption of due registration of a document and correctness of the facts mentioned in the same, but the said presumption is not conclusive and can be dislodged.�

At the face of record, the Full Bench judgment of this Court shows that those documents are voidable which are obtained by practising coercion, fraud, misrepresentation, undue influence etc. and their legal effect cannot be put to an end without its cancellation. A void document has been defined as a document, the cancellation of which is not necessarily required and it can be ignored.

Learned counsel for the petitioner further relied upon another judgment reported in 1979 AWC 524, Sheopal and others v. Smt. Lakhpata and submits that the sale deed in question is void document and the case should have been relegated to Revenue Court. In the present case, the suit should be abated under Section 5 of the Consolidation of Holding Act. Learned counsel for the petitioner had relied upon para 8 of the said judgment which is reproduced as under:

�In Rasool Ahmad v. Beni Prasad, 1965 ALJ 70, Gangeshwar Prasad, J. while deciding the question whether the suit was cognizable by the Civil Court or by the Revenue Court, held that the true grievance of the plaintiff and not what he professes to be aggrieved by, has to be seen. What has to be determined is whether he can get redress in the revenue Court or not. According to the learned Judge, if the plaintiff is in possession of the land in suit and wants to establish that his rights as tenant are unaffected by the (sic) or the decree, a suit for declaration under Seciton 59 of the U.P. Tenancy Act would provide a complete and effective remedy. This will be on the principle that if a deed or decree has legal force and precludes the grant of a declaration without having been cancelled, it would be necessary for him to invoke the jurisdiction of the Civil Court and to clear the ground for obtaining that relief which may be available to him in the revenue Court but where, according to the plaintiff himself, the deed or the decree is devoid of all legal force and effectiveness, it cannot constitute an impediment in the way of the plaintiff in getting a declaration as to his rights or in recovering possession through the revenue Court. In the instant case the plaintiff''s case is that she intended to execute a Mukhtarnama but fraudulently she was made to execute a deed of sale. The allegation in the plaint is in regard to the nature of the document and not in regard to the contents. Having regard to the principles enunciated in the decisions referred to above, the conclusion that is reached is that since the fraudulent act alleged by the plaintiff relates to the character of the document and not to the contents, the sale deed would be void. If the deed is void then it can be ignored and the consolidation authorities can go into the question of title and so called deed of sale would not be an impediment in granting relief to the plaintiff. In Gorakh Nath Dube v. Hari Narain Singh, AIR 1973 SC 2451, the Court was required to decide the question whether having regard to the allegations in the plaint, the suit would abate under Section 5(2) of the U.P. Consolidation of Holdings Act. M.H. Beg, J. (as he then was) at page 2435 pointed out distinction between cases where a document can be ignored and where it has to be set aside before any relief can be granted. His observations may be quoted as follows:

�We think that a distinction can be made between cases where a document is wholly or partially invalid so that it can be disregarded by any Court or authority and one where it has to be actually set aside before it can cease to have legal effect.�

This Court in the case of Sheopal (supra) had virtually laid down the same principle which was later on decided by the Full Bench of this Court in the case of Ram Padarath (supra). While deciding the present controversy the Revisional Court had relied upon the judgment of Apex Court reported in AIR 1973 SC 2451, Gorakh Nath Dube v. Hari Narain Singh and another. Full Bench judgment reported in 1976 AWC held that in case the document is voidable it should not be abated under Section 5(2) of the Consolidation of Holdings Act.

I have given any consideration to the arguments advanced by learned counsel for the petitioner while defining the void and voidable document. The Full Bench of this Court in the case of Ram Padarath (supra) had held that in case document is obtained by fraud or misrepresentation it shall be voidable document and Civil Court will be competent to decide the controversy. Further Full Bench had held that a void document will be of no legal consequence and binding on any one even without its cancellation. But existence of such document or instrument for a substantial period may cause injury to the person whose rights are affected by it and affects his right and title over a property, in doubt and dispute. In the case of Ram Padarath (supra) this Court further proceeded to hold that in case in a situation where more than one reliefs are claimed in any action pertaining to agricultural land and if the reliefs claimed or the real and the main relief is one which is mentioned in Schedule II to U.P.Z.A. and L.R. Act then the same may be decided by the Revenue Court only and the jurisdiction of Civil Court to grant such a relief or reliefs is ousted by Section 331 of the said Act. The relevant portion of para 10 of the Ram Padarath''s case (supra) is reproduced as under:

�On the finding that a particular instrument or document was void because of any reason it will be of no legal consequence and binding on any one without even its cancellation. But existence of such a document or instrument, more particularly for a substantial period may cause injury to the person whose rights are affected by it and place his right and title over any property in doubt and dispute and may create complications and give rise to unnecessary litigation. But for those who are awarded of any judgment holding a particular document or instrument to be void or supposed to be awarded of it others can be misled by its existence if it does not contain any endorsement of its cancellation subsequent to its execution by any competent court of law. Reasonable apprehension of serious injury from a void document provides a cause of action to a person to approach the competent court of law, that is, civil Court for its cancellation. But this entitlement goes into background or becomes restricted if because of certain statutory constraints, restraints and prescription some other relief can be claimed or is to be granted by adjudging the document or instrument void and thereby declaring it to be legally ineffective and of no consequence. Such a situation can arise if apart from cancellation, some other relief is claimed which is real relief and the claim for which provides the proximate ground or reason for approaching the Court of law or when any other relief can be claimed or involved in the matter cropping up because of the evidence of void document or instrument. There can be other situation also, all of which can be created by statutory provisions as the jurisdiction of Civil Court can be ousted only by some specific provision of law or by necessary implication sprouting out of statutory provisions. Such a situation arise when more than one reliefs are claimed in any action pertaining to agricultural land. If the relief claimed or the real and the main relief is one which is mentioned in Schedule II to U.P. Zamindari Abolition and Land Reforms Act the same can be granted by the revenue Court only and the jurisdiction of Civil Court to grant such a relief or reliefs is ousted by Section 331 of the said Act.�

The Schedule II of the U.P.Z.A. & L.R. Act does not contain a topic related to cancellation of sale deed for any reason or on any ground whatsoever. Only declaratory suit or suits for possession can be filed under Section 229B of the U.P.Z.A. & L.R. Act.

Under the above facts and circumstances of the case, the alleged sale deed executed by the plaintiff at the face of record is the outcome of alleged act of defendant relating to misrepresentation of fact and fraud and can not be held to be executed bonafidely by disclosing the material fact. Secondly, the Schedule II of the U.P.Z.A. & L.R. Act does not provide that a suit for cancellation of sale deed may be filed in the Revenue Court. Since the sale deed executed by alleged misrepresentation of fact and fraud, the Civil Court was competent to decide the controversy in accordance to law.

Under above discussion, in case a controversy arises as to whether a suit should be finally heard by revenue Court or civil Court relating to agricultural property the Schedule II of the U.P.Z.A. & L.R. Act will play prominent role and act as deciding factor. In case the controversy or topic is not given in the Schedule II of U.P.Z.A. & L.R. Act then the revenue Court will have no right to entertain a suit even if it relates to an agricultural land. The right of revenue Courts to decide a controversy is a statutory right. Accordingly the revenue Court may entertain a suit or application in accordance to statutory provisions and for the purpose given in the U.P.Z.A. & L.R. Act and rules framed thereunder or under any other statutory provision. It is the well settled law that the authorities should act in the manner provided under the Act or Statute or not at all. A reference may be given to the Apex Court judgment reported in AIR 1967 SC 295, Barium Chemicals Ltd. and another v. Company Law Board. Relevant portion ''Para 34A'' of the said judgment of Apex Court is reproduced as under:

�As a general rule, whatever a person has power to do himself, he may do by means of an agent. This broad rule is limited by the operation of the principle that a delegated authority cannot be redelegated, delegatus non potest delegare. The naming of a delegate to do an act involving a discretion indicates that the delegate was selected because of his peculiar skill and the confidence reposed in him, and there is a presumption that he is required to do the act himself and cannot redelegate his authority. As a general rule �if the statute directs that certain acts shall be done in specified manner or by certain persons, their performance in any other manner that specified or by any other manner than that specified or by any other person than one of those named is impliedly prohibited.� See Crawford on Statutory Construction, 1940 Edn., Art. 195, p.335. Normally a discretion entrusted by parliament to an administrative organ must be exercised by that organ itself. If a statute entrusts an administrative function involving the exercise of a discretion to a Board consisting of two or more persons it is to be presumed that each member of the Board should exercise his individual judgment on the matter and all the members of the Board should act together and arrive at a joint decision. Prima facie, the Board must act as a whole and cannot delegate its function to one of its members.�

Since according to pleading on record the suit for cancellation of sale deed was filed on the ground that it was executed by misrepresenting the facts, the civil Court was competent to entertain the suit for the cancellation of sale deed. Accordingly the impugned order does not suffer from any impropriety or illegality and called for no interference by this Court.

In view of above, writ petition deserves to be allowed. Accordingly, a writ in the nature of certiorari is issued quashing the impugned order dated 7th of February, 1987 as contained in Annexure No.5 to the writ petition with all consequential benefits, costs. However, since the controversy is pending for more than 16 years, the trial Court is directed to proceed with the suit and decide the same in accordance to law expeditiously and preferably within a period of one year from the date of receipt of certified copy of this order.

Subject to above, the writ petition is allowed. No order as to costs.

(Petition allowed)