Smt. Dharma Devi vs Sarjoo and Others

Hon''ble Devendra Kumar Arora, J.—By means of present writ petition, the petitioner is seeking a writ in the nature of certiorari for quashing of the judgment and order dated 26.04.1985 of the Additional District Judge, Lucknow in Civil Misc. Appeal No. 27 of 1982 (Sarjoo Vs. Babu Lal and Others), by which while allowing the appeal the order of the learned Munsif was set aside with a direction to the trial court to proceed to dispose of the suit on merits in accordance with law and parties were directed to appear before the learned trial court on 25.05.1985.

The submission of learned counsel for the petitioner is that the petitioner purchased plot no.483 area 5 Biswa 4 Biswansi and plot no. 484 area 5 Bigha 19 Biswan 1 Biswansi total area 6 Bigha 4 Biswa, 5 Biswansi situated in village Hariharpur, Pargana and Tehsil, Malihabad, district-Lucknow from Babu Lal (opposite party no. 2) who was recorded sole tenure holder of the land in question on consideration of Rs. 20,000/-by way of sale-deed executed on 20th January, 1978. After the purchase of land in question, the petitioner applied for mutation for recording her name in the revenue records. A citation was issued in accordance with law, but in spite of opportunity available to opposite party no. 1 (Sarjoo), he did not file any objection opposing mutation application of the petitioner. Hence, in accordance with law, the name of petitioner was recorded in the revenue records in pursuance to the order of Naib Tehsildar, Malihabad dated 15th February, 1979 and appropriate entries were also made in Khasra and Khatauni thereto, expunging the name of Babu Lal (opposite party no. 2).

Further submission of learned counsel for the petitioner is that opposite party no. 1 (Sarjoo) did not challenge the mutation order and the entries made, either u/s 210 of the Land Revenue Act or any other provision of law in the competent court of Revenue side. Hence, the entries made in favour of the petitioner were made final and binding on opposite party no. 1(Sarjoo). The opposite party no. 1 (Sarjoo) filed a suit for cancellation of sale-deed in the court of Munsif, Hawali against the petitioner as well as for impleading Babu Lal and Prem Kumar as opposite parties no. 2 and 3 alleging inter alia that he is Co-Bhumidhar of the land in question along with opposite parties no. 2 and 3 and claimed half share for himself and remaining half for opposite parties no. 2 and 3. The petitioner filed written statement on 01.02.1980 pleading therein that the suit of opposite party no. 1, in view of the pleading in plaint, is not cognizable in Civil Court. It is also submitted that in fact the opposite party no. 1 wants declaration u/s 321 of U.P.Z.A. and L.R. Act and remedies lies before the Revenue Court. The trial court framed following 8 issues:-

I. Whether the plaintiff is joint bhumidhar of the land in suit as alleged in para 1 of the plaint?

II. Whether the Plaintiff has half share in the land in suit as alleged in para 2 of the plaint?

III. Whether the defendant No. 1 has not right to transfer the land in suit as alleged in para 6 of the plaint? If so its effect.

IV. Whether the suit is barred by Section 333 of Z.A. And L.R. Act as alleged in para 16 of the written statement?

V. Whether the defendant No. 3 is entitled to take the benefit of section 41 of T.P. Act as alleged in para 23 of written statement?

VI. Whether the defendant no. 3 is bonafide purchaser as alleged in para 18 of the written statement? If so its effect.

VII. Whether the plaintiff is not entitled for any relief against defendant no. 2?

VIII. To what relief if any is the plaintiff is entitled?

The learned trial court by means of order dated 30.10.1981 decided the preliminary issue (issue no. 4) relating to question of jurisdiction and held that the suit is not cognizable in the Civil Court and is cognizable in the Revenue Court, consequently direction was given that the plaint be returned to the plaintiff-opposite party no. 1 for filing before the competent court i.e. Revenue Court. The opposite party no. 1 feeling aggrieved against the order of the trial court dated 30.10.1981 filed appeal under Order 43 Rule-1(A) of the CPC in the court of District Judge, Lucknow as Misc. Civil Appeal No. 27 of 1982, which was subsequently transferred to the court of Additional District Judge, Lucknow. The appeal was allowed by means of order dated 26.04.1985 and order of the learned trial court was set aside thereby holding that the civil court has jurisdiction to entertain and try the suit.

The petitioner feeling aggrieved against the order of appellate court dated 26.04.1985 preferred present writ petition. The submission of learned counsel for the petitioner is that the appellate court committed a manifest error of law and illegally decided issue no. 1 thereby holding that the plaintiff is co-tenure holder with defendant no. 1, whereas finding on this issue was illegal and without jurisdiction and amount to usurping the trial court''s jurisdiction specially when the said issue was not required to be decided by the trial court. It is also submitted that appellate court instead of deciding the simple question of jurisdiction decided the merit of the case on issue no. 1. Further submission of learned counsel for the petitioner is that opposite party no. 1 was never in possession over the land in question and even his name was not recorded in the revenue record, hence, in view of the facts and pleadings of the plaint, the relief claimed by him in civil court is barred by Section 331 of U.P.Z.A. and L.R. Act. Hence, the relief claimed by the opposite party no. 1 could only be claimed in Revenue Court u/s 229-B/209 of U.P.Z.A. and L.R. Act. The learned counsel for the petitioner submitted that as per the relief claimed by opposite party no. 1 in his plaint, no declaration with respect to share of opposite party no. 1 can be given by the civil court and that can only be done by the Revenue court.

The learned counsel for the petitioner in support of his submission placed reliance on the judgment of Ram Roop Vs. Budhiya 1979 ALL. L.J 800 as well as Vijai Singh Vs. II Additional District and Sessions Judge, Bulandshahr 1982 ALL. L.J. 725, in which it has been held that in view of Section 331 of U.P.Z.A. and L.R. Act, 1951, the jurisdiction of the civil court shall be barred in respect of suits based on a cause of action for any of the reliefs mentioned in Colunm 4 of Schedule II as being cognizable by revenue court or if on the same cause of action any relief could be obtained by means of any suit or application mentioned in Column 4 of Schedule II of the Act, the relief asked for from the civil court may or may not be identical to that which the revenue court would have granted. Therefore, what is crucial for determining as to whether a particular suit is triable by a civil court or by a revenue court, is to be looked into the bundle of facts which provoked the plaintiff to approach the court i.e. it is the cause of action of a particular case which is the decisive factor and not the relief claimed by him. If the main relief is specifically cognizable by a revenue court only, but ancillary reliefs may be such as could be granted by the civil court, the matter will be cognizable only by a revenue court.

The learned counsel for the petitioner submitted that as the jurisdiction lies with the revenue court, there is no illegality in the order of learned trial court dated 30.10.1981 and, therefore, the present writ petition deserves to be allowed.

I have considered the arguments of learned counsel for the parties and gone through the record.

The perusal of prayer clause of plaint of opposite party no. 1 reveals that suit No. 95/142 of 1969 was filed and opposite party no. 1 claimed that he is the co-bhumidhar of the half of the land and defendant no. 1 and 2 i.e. Babu Lal and Prem Kumar have 1/4 share each. As his name was not recorded in the revenue records along with defendant no. 1, therefore, he filed a suit no. 95/142 in the year 1969 for declaration, which was decreed on 23.09.1970 and he was declared co-tenure holder with defendant no. 1 in the land in dispute. Babu Lal taking the advantage of wrong revenue entries, sold the land on 30.10.1978 to Dharma Devi (present petitioner) by concealing the same from plaintiff, whereas Babu Lal had no authority to sell the share of plaintiff. The trial court framed 8 issues and by means of order dated 30.10.1981 decided issue no. 4 as preliminary issue and held that suit was not triable by civil court. The opposite party no.1/plaintiff feeling aggrieved against the said order preferred Civil Misc. Appeal No. 27 of 1982 (Sarjoo Vs. Babu Lal and Others). The appellate court after hearing the parties and examining the record observed that the plaintiff had pleaded in the plaint that in the revenue records his name was not recorded along with defendant no. 1 and, therefore, he filed suit for declaration, which was decreed on 23.09.1970 and he was declared as co-tenure holder with defendant no. 1 in the land in dispute. The said judgment was on record and it appears that the learned trial court ignoring the pleading and the said document of the plaintiff, wrongly observed that plaintiff should have filed a suit for declaration of title.

It has also been observed by the appellate court that there is nothing on record to show that the said judgment was set aside by any competent court and thereafter it cannot be said that the judgment dated 23.09.1970 cannot be looked into. The learned appellate court found that the suit does not involve any declaration of title of the plaintiff because the title of the plaintiff as co-tenure holder with defendant no.1 had already been declared before filing of the suit in question. The learned appellate court examined the pleadings of the plaint, the cause of action alleged and relief claimed in the suit in order to find out as to whether suit is triable by the Civil Court or not and came to the conclusion that the cause of action and the relief claimed in the suit is triable by civil court.

The cancellation of impugned sale-deed to the extent of plaintiff''s share is only effective relief, which could be claimed in the suit. The granting of the said relief does not involve any declaration of title of the plaintiff as the same has already been declared before filing of the suit. The learned appellate court while allowing the appeal, remanded the matter back to the trial court with a direction to proceed to dispose of the suit on merits in accordance with law. The parties were directed to appear before the trial court on 25.05.1985.

The record shows that by means of order dated 31.05.1985, further proceedings in the trial court were stayed.

On examination of the plaint, the cause of action and the relief clause, it is beyond doubt clear that the sole relief claimed in the suit is for cancellation of the sale-deed to the extent of plaintiff''s share in the land in question. The record further shows that the opposite party no. 1 had already been declared as co-tenure holder with defendant no. 1/opposite party no. 2. A specific query was made from the learned counsel for the petitioner about the status of the judgment and order dated 23.09.1970. Shri T.N. Gupta, learned counsel for the petitioner accepted that the judgment and order dated 23.09.1970 was not challenged and is final between the parties.

The sole question involved in the present writ petition is as to whether the civil court has jurisdiction to decide the suit filed by opposite party no. 1/plaintiff for cancellation of sale-deed or not.

For the purpose of disposal of the said controversy involved in the present case, it is necessary to have a look to the relevant provisions of Section 331 of U.P. Act, no. 1 of 1950 which reads as under:-

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.

Law is well settled that exclusion of the jurisdiction of the civil court is not to be readily inferred and that such exclusion must either be explicitly expressed or clearly implied and that is for the party which contends that the civil court does not have the jurisdiction to establish the fact. In this connection reference may be made to the decision of the Supreme Court in Abdul Waheed Khan Vs. Bhawani and Others, :-

It is settled principle that it is for the party who seeks to oust the jurisdiction of civil court of to establish his contention. It is also equally well settled that a statute ousting the jurisdiction of a civil court must be strictly construed.

A Full Bench decision of this court in the case of Ram Padarth V. A.D.J. Sultanpur and Others 1989 AWC 290, held as under:-

Suit for cancellation of a sale deed or other instruments and documents are essentially suits of civil nature. Every suit of civil nature is cognizable by the civil court except cognizance of which is expressly or impliedly barred.

In the case of Jagdamba Prasad Singh Vs. Prahlad Singh 1980 ALJ 1135, this Court observed as under :-

......Examining the validity of sale deed in suit cognizable by revenue court is not the same thing as saying that a suit for cancellation of void documents is cognizable only in revenue court. If the argument of the learned counsel is accepted it shall mean that suit for cancellation of voidable document would lie in civil court, whereas of void documents in revenue court. This however, is fallacious. Both the suits are cognizable in civil court.

In the case of Mahabir Singh and Others Vs. Smt. Ilam Kaur, , it was observed :-

Where the suit was filed for cancellation of gift deed in respect of agricultural land which the defendants got fraudulently executed in their favour from the plaintiff, the suit for cancellation of gift deed could not be said to be barred by section 331 as after lapse of time the unchallenged existence of such documents could cause difficultly in establishing title to the land. In such a case, it could not be said that the relief of declaration being available, suit for cancellation should be considered to be barred.

Thus, in nutshell, the suit for cancellation of void deed is cognizable by civil court and section 331 does not deprive a party from a right to approach competent court of law for getting a document canceled and instead drives a party to revenue court claiming a different relief and that of cancellation which a revenue court cannot grant holding the deed to be void.

The Hon''ble Apex Court in the case of Shri Ram and Another Vs. Ist Addl. District Judge and Others (2001) 3 SCC 24 in Paragraph 7 held as under :-

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 been obtained on the ground of fraud or impersonation cannot be directed to file a suit for declaration in the Revenue Court, the 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.

The same view was reiterated in the case of Ram Kunwar Singh and Others Vs. Pramod Kumar and Another, , by this Court, the relevant Paras 8 and 17 read as under :-

Para-8. "The main relief claimed by the plaintiffs was for cancellation of the sale deeds on the ground that they were not executed by them but by some impersonator and the ancillary relief was for possession of the crops standing over the land after partition. The names of the plaintiffs were recorded in the revenue records before the mutation was done in favour of the defendants on the basis of the sale deeds. The plaintiffs have not sought a declaration of their right or status as bhumidhar of the disputed plots.

Para-17. There is, therefore, no error in the judgments of the courts below holding the suits to be maintainable before the civil court.

In view of the above, this Court does not find any force in the submission of learned counsel for the petitioner. There is no illegality in the judgment and order dated 26.04.1985 of the Additional District Judge, Lucknow in Civil Misc. Appeal No. 27 of 1982 (Sarjoo Vs. Babu Lal and others).

Accordingly, the writ petition is hereby dismissed.

The proceedings before the trial court was stayed by this Court by means of order dated 31.05.1985 and now about 26 years have passed. It is hereby directed that the trial court will proceed with Regular Suit No. 146/79 (Sarjoo Vs. Babu Lal and others) and will 10 decide the same expeditiously after affording opportunity to all the concerned, if possible within six months.