Hari Babu v. Ram Prasad — 1981 DIGILAW 711 (ALL)

JUDGMENT I.B. Singh, M. - This is a plaintiff's second appeal against judgment and decree dated October 17, 1974 passed by learned Additional Commissioner, Agra Division, Agra, dismissing appeal and confirming judgment and decree dated February 8, 1972 passed by Assistant Collector Ist Class, Chhata, district Mathura, deciding issue No. 6 that the revenue court has got no jurisdiction as the matter involves cancellation of the alleged sale deed be guardian mother of the plaintiffs on their behalf in favour of the defendant. 2. I have heard the learned counsel for the parties and have perused the record. 3. It has been argued that the cause of action and the relief claimed is triable only by the revenue court for declaration of Bhumidhari rights and ejectment of the defendant. Reliance has been placed on Dr. Ayodhya Prasad v. Gangotri Prasad 1981 A.W.C. 469 (L.B.). 4. It was argued in reply that as the cancellation of the sale deed which is voidable is involved, therefore, only Civil Court has got jurisdiction. Reliance has been placed on Bhirgu v. Ram Chandra 1978 R.D. 240 in which 1966 A.L.J. 1085 and 1968 R.D. 470 were relied upon. 5. In Bhirgu v. Ram Chandra (supra) Mr. G.S. Sial, Member held as follows following 1968 R.D. 470 and 1966 A.L.J. 1885:- "The point to be examined in this case, is whether the main relief is cognizable by a Revenue Court or by a Civil Court. In the present case the cognizable relief sought is that of co-tenancy but this relief can be granted only when the sale deed executed is held to be fraudulent and is cancelled. The main relief sought in the case is the cancellation of the sale deed which is not a void document ab initio. The real cause of action of the plaintiffs is the cancellation of the sale deed which they alleged to have been obtained fraudulently. The sale deed is a voidable document. The title which it passes to the defendants would continue with the defendants so long as the sale deed is not cancelled and no relief can be granted to the plaintiffs unless the sale deed is first declared to be void and cancelled. The Revenue Court can give a declaration to the plaintiff only when the sale deed is got cancelled. But so long as it stands their claim cannot be entertained by the Revenue Courts. The Revenue Court can give a declaration to the plaintiff only when the sale deed is got cancelled. But so long as it stands their claim cannot be entertained by the Revenue Courts. Accordingly the orders of the courts below were set aside with the direction that the plaintiffs should first approach the Civil Court and get the sale deed cancelled before they can claim relief in the Revenue Court." 6. Section 331(1) with the explanation reads as follows:- "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 Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908, take cognizance of any suit, application, or proceedings mentioned in column 3 thereof, or of a suit, application or proceeding based on a cause of action in respect of which any relief could be obtained by means of any such suit or application: Provided that where a declaration has been made under Section 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 VIII shall not apply to such holding or part thereof. 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." 7. The explanation to the aforesaid section clearly shows that it is the cause of action and not the relief which is relevant for cognizance of a case by the revenue court. The ruling reported in 1973 A.D. 240 in which the cause of action has not been considered and it is based merely on the relief claimed. The cases of main relief and ancillary relief were mostly cases in which relief for possession or relief for demolition was involved. In that context it molition was involved. In that context it was held by superior courts that if the main relief was grantable by the revenue court then the jurisdiction was in the revenue court and it was grantable by the civil court then the civil court had the jurisdiction which was not the case of 1978 R.D. 240. In that context it molition was involved. In that context it was held by superior courts that if the main relief was grantable by the revenue court then the jurisdiction was in the revenue court and it was grantable by the civil court then the civil court had the jurisdiction which was not the case of 1978 R.D. 240. The view taken in 1978 R.D. 240 is not the correct view because in it, it was not considered that it was the cause of action as provided in the explanation of section in respect of which relief may be granted by the revenue court. It was immaterial that the relief asked for from the Civil Court may not be identical to that which the revenue court could have granted. The view taken in it is also not correct as it has been held in Gorakh Nath Dube v. H.N. Singh A.I.R. 1973 (S.C.) 2451 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. In alienation made in excess of power to transfer would be to the extent of the excess of power, invalid. An adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights of interests in land which are the subject matter of consolidation proceedings. The existence and quantum of rights claimed or denied will have to be declared by the consolidation authorities which would be deemed to be invested with jurisdiction, by the necessary implication of their statutory powers to adjudicate upon such rights and interests in land, to declare such documents effective or ineffective, but where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it could be urged that the consolidation authorities have no power to cancel the deed, and, therefore it must be held to be binding on them so long as it is not cancelled by a court having the power to cancel it. In the case before us, the plaintiff's claim is that the sale of his half share by his uncle was invalid, inoperative and void, such claim could be adjudicated upon by consolidation court." In Ram Nath v. Smt. Munna 1976 A.W.C. (E.B.) 412 a similar view was expressed. 8. Secondly in Dr. Ajodhya Prasad v. Gangotri Prasad 1981 A.W.C. 469 a Division Bench of Lucknow Bench of Lucknow Bench overruling Ramdhari v. Bodhan 1972 A.W.R. 623, it has been held that suit filed in civil court for a relief of declaration that he was the Sirdar of the land in dispute and for possession in case he was found to be out of possession and the plaintiff had also claimed relief for cancellation of a sale deed executed by defendant in respect of the holding and for injunction, civil Court has no holding and for injunction, civil court has no jurisdiction to entertain this suit which is cognizable by the revenue court. 9. In the present case no relief for cancelling the alleged sale deed has been claimed and the cause of action and the relief claimed clearly show that the suit is cognizable only by the revenue court. 10. In view of the above, this appeal is allowed with costs. The judgment and decree passed by both the courts below are hereby set aside and it is held that the suit is cognizable only by revenue court and issue No. 6 is decided accordingly. 11. Let the trial court's file be sent to it for deciding the suit on merits according to law.