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1960 DIGILAW 167 (ALL)

Uma Pandey v. Purshottam

1960-05-18

KAILASH PRASAD, MOOTHAM

body1960
JUDGMENT Kailash Prasad, J. - These are two connected appeals from the judgment and order dated 18th of February, 1959 of Mr. Justice Vishnu Datta. 2. The appeals arise from two suits filed by Smt. Suraj Mukhi, the mother of the present Respondents, against two sets of Defendants who are the Appellants in these two connected appeals before us. Smt. Suraj Mukhi died during the pendency of the present litigation and the present Respondents were brought on record as her legal representatives. 3. The facts briefly are that one Jadunandan was the last male owner of the property in dispute. On 20th July, 1914 he executed a will in favour of Smt. Ram Sawari who was the wife of his nephew. Smt. Ram Sawari executed a deed of gift in favour of her daughter (Smt. Suraj Mukhi) and daughter's sons (the present Respondents). Later on Smt. Ram Sawari filed a suit for the cancellation of the gift deed but a compromise was arrived at in that case whereunder it was agreed that the gift would not take effect until after the death of Smt. Ram Sawari. Thereafter the present Appellants filed suits against Smt. Ram Sawari u/s 59 of the UP. Tenancy Act claiming that they were the tenants of certain plots which are in dispute here. Smt. Rail Sawari admitted them to be tenants and a decree was prepared in terms of the admission, treating the present Appellants as tenants. Smt. Ram Sawari died on 9th March, 1946. Thereafter Smt. Suraj Mukhi filed the two present suits in the civil court against the two sets of Defendants for a declaration that the consent decrees passed in suits Nos. 116 of 1944 and 500 of 1944 u/s 59 of the UP Tenancy Act were obtained by fraud and were not binding on her. It was also prayed that a decree for possession over the plots be passed. 4. The defence inter alia was that the Defendants were tenants of the plots in dispute, that the decrees in question were not obtained by fraud or misrepresentation and were binding on the parties and that the suits were not cognizable by the civil court. 5. It was also prayed that a decree for possession over the plots be passed. 4. The defence inter alia was that the Defendants were tenants of the plots in dispute, that the decrees in question were not obtained by fraud or misrepresentation and were binding on the parties and that the suits were not cognizable by the civil court. 5. The learned Munsif found that the suits were cognizable by civil court, that the consent decrees in suits u/s 59 of the UP Tenancy Act were obtained by fraud and that the Defendants were not the tenants of the plots in question. The learned Munsif accordingly decreed the two suits. 6. The Defendants went in appeal from that decision of the learned Munsif. The Additional Civil Judge, who heard the appeals, only decided the question of jurisdiction. He held that the civil court had no jurisdiction to try the suits and the suits were cognizable by the revenue courts. He accordingly allowed the appeals and ordered the plaints to be returned to the Plaintiff for presentation to the proper court. 7. The Plaintiff then came up in appeal to this Court and the learned Judge who heard the appeals, held that the proper forum for the suits was the civil court. He accordingly allowed the appeals, set aside the decrees of the courts below and directed that the cases be sent back to the lower appellate court to readmit them to their original number and to decide them in accordance with law. From that order the Defendants now appeal. 8. The sole question, which is to be decided in these appeals, is whether the nature of the present suits is such that they cannot properly be entertained by the civil court. 9. The learned Counsel for the Appellants contends that the principal object of these suits is to obtain possession over the plots in question and so the substance of the relief is possession. Possession could be obtained by means of a suit u/s 180 of the UP Tenancy Act and a suit under that section was of the nature specified in the Fourth Schedule. Possession could be obtained by means of a suit u/s 180 of the UP Tenancy Act and a suit under that section was of the nature specified in the Fourth Schedule. Section 242 of the UP Tenancy Act provides that all suits and applications of the nature specified in the Fourth Schedule shall be heard and determined by a revenue court and no court other than a revenue court, shall, except, byway of appeal or revision as provided in the Act, take cognizance of any such suit or application, or of any suit or application based on a cause of action in respect of which relief could be obtained by means of any such suit or application. The suits, therefore, are not cognizable by a civil court. 10. The ultimate objective of the Plaintiff in filing these suits is undoubtedly to obtain possession over the plots in question. But the Plaintiff cannot get possession unless the consent decrees, under which Defendants were declared to be the tenants, are set aside. These decrees are alleged by the Plaintiff to have been obtained by fraud and misrepresentation, The decrees are, therefore, voidable and not void. The law is well settled that if a document is void the Plaintiff may ignore it and get a decree for possession without having the document cancelled or adjudged void but if possession has been given or is being retained under a voidable document Plaintiff cannot get possession unless the document is got out of the way. A decree which is voidable can be set aside or rendered inoperative by getting it cancelled or declared to be void and ineffectual. In the present case, therefore, the Plaintiff can obtain possession only after obtaining a declaration that the consent decrees, having been obtained by fraud are ineffectual and inoperative against him. 11. All suits of civil nature are cognizable by a civil court expect those in respect of which the jurisdiction of civil court is barred by any specific provision of law. A suit for a declaration that a decree is null and void or ineffectual and inoperative is essentially of a civil nature. It is not of the nature of a suit specified in the Fourth Schedule of the UP. Tenancy Act. A suit for a declaration that a decree is null and void or ineffectual and inoperative is essentially of a civil nature. It is not of the nature of a suit specified in the Fourth Schedule of the UP. Tenancy Act. The Tenancy Act does not contain any provision for a suit for cancellation of a document or for a declaration that it is null and void. This is why in Nageshar Ram and Another Vs. Bansbahadur Singh and Another, AIR 1950 All 532 , where the question of cancellation of a lease was involved, it was held that 'to grant the relief of cancellation of the lease, civil court alone is the proper forum.' The reliefs of declaration claimed in the present suit are, therefore, entertainable by the civil court. The relief of possession, though entertainable by a revenue court, cannot be granted to the Plaintiff by that court unless the decrees declaring the Defendants to be the tenants are set aside by being cancelled or declared null and void, or ineffectual against the Plaintiff. Had the Plaintiff filed the t suits in the revenue court for possession, the plea of res judicata would have been a complete defence. Keeping this feature of the present case in view we are of opinion that the main relief in these suits are for declaration that the consent decrees are ineffectual. The relief of possession can flow only from the granting of the relief for declaration. We arc supported in this view by a Bench decision of this Court in the case of Man Singh v. Khachera (1957) WR 41. 12. The learned Counsel for the Appellants relied, in support of his contention, on an earlier decision of the Court, Ram Sewak Lal Vs. Bashist and Others, AIR 1949 All 419 . In that case Plaintiff had instituted a suit for a declaration that a consent decree passed by the revenue court was void and ineffectual against him. The defence was that the civil court had no jurisdiction to entertain the suit. It was held that the Plaintiff's allegation in substance, though not in form, amounted to this that he was still a tenant of the plots in suit and the suit was, therefore, one which was contemplated by Section 59 of the UP Tenancy Act and should have been filed in the revenue court. It was held that the Plaintiff's allegation in substance, though not in form, amounted to this that he was still a tenant of the plots in suit and the suit was, therefore, one which was contemplated by Section 59 of the UP Tenancy Act and should have been filed in the revenue court. It was further held that Section 242 of the UP Tenancy Act read with Section 59 barred the jurisdiction of the civil court to entertain the suit. 13. The case of Ram Sewak Lal Vs. Bashist and Others, AIR 1949 All 419 was considered by the Bench which decided the case of Man Singh v. Khachera and Ors. (1957) WR 41. The Bench, while recognizing the well-known principle of determining the true nature of a suit on the basis of pith and substance of the relief claimed, distinguished the case of Ram Sewak Lal v. Bashist AIR 1949 All. 419 on the grounds that the relief of declaration was not contained in the plaint as it was initially filed and that the question as to which of the reliefs claimed in the plaint was the main one was not raised in it. 14. In the present suits, too, the relief for declaring the decrees void, was added later on. The learned Counsel for the Appellants, therefore, argued that the present suits were covered more fully by the decision in Ram Sewak Lal Vs. Bashist and Others, AIR 1949 All 419 than the case of Man Singh v. Khachera (1957) WR 41. In the present suits the relief of declaration was added subsequently but all the necessary allegations to obtain that relief had, as pointed out in the judgment under appeal, already been incorporated in the plaint and the omission of this relief was inadvertent and that relief was immediately sought to be added after two days of the filing of the plaint. In this view of the matter it will be deemed in the present suits that the relief of declaration was claimed from the very beginning. The other ground on which the case of Man Singh v. Khachera (1957) WR 41 was distinguished from the case of Ram Sewak Lal Vs. Bashist and Others, AIR 1949 All 419 is also applicable to the present cases. The other ground on which the case of Man Singh v. Khachera (1957) WR 41 was distinguished from the case of Ram Sewak Lal Vs. Bashist and Others, AIR 1949 All 419 is also applicable to the present cases. Another aspect which distinguishes the present cases and the case of Man Singh v. Khachera (1957) WR 41 from the case of Ram Sewak Lal Vs. Bashist and Others, AIR 1949 All 419 is that in that case the question was not considered that a part of the relief, though entertainable by a revenue court, could not be granted by it unless the earlier decrees were adjudged void and the relief of adjudging the decrees void could not be entertained by the revenue court. We, accordingly, find ourselves in agreement with the view taken in Man Singh v. Khachera (1957) WR 41. 15. The learned Counsel for the Appellants, relying upon Mohd. Zahir Hasan and Another Vs. Dulare and Others, AIR 1953 All 729 , further argued that a suit in respect of a cause of action concerning which any relief could be granted by the revenue court, has to be filed in the revenue court and not in the civil court. In the present suits no relief could be granted, as we-have seen above, by the revenue court without the declaration of the decrees being void and so the revenue court has no jurisdiction in respect of the present suits. 16. We accordingly dismiss the appeals with costs. A copy of this judgment will be placed on the recorded of the other connected appeal.