Khamani Ram v. District Judge, Budaun — 1983 DIGILAW 588 (ALL)

ORDER B.D. Agrawal, J. - This is an application for review against the decision of this Court dated June 9, 1983 in writ petition filed under Article 226 of the Constitution. The suit giving rise to the writ petition-was brought by the petitioner with the allegations that he was the Bhumidhar of the land in dispute. The defendant No. 1 is his wife. In collusion with other defendants, it was contended, the defendant No. 1 got a registered deed of sale executed in her favour on Dec. 24, 1980 in respect of the disputed land. The plaintiff did not execute this deed; he did not go to the office of the Sub-Registrar and it seems, according to the plaintiff, the deed was obtained from some imposter. The deft. No. 1 had also got herself mutated in the revenue papers on the basis of the said deed of sale. This cast a cloud on the title of the plaintiff and hence the relief sought by him for cancellation of the impugned deed of sale. The trial court framed a preliminary issue on the point of jurisdiction. The finding recorded on Aug. 5, 1982 by the trial court was that the Civil Court had jurisdiction to entertain the suit. In Civil Revision No. 48 of 1982 filed against this finding, the decision arrived at by the trial court was reversed by the learned District Judge on March 1, 1983 and the-view taken is that the suit lies in the revenue court. The plaint was accordingly, directed to be, returned for presentation to the revenue court. The writ petition filed by the plaintiff against this decision of the revisional court was dismissed in limine by me on Jan. 9, 1983 on ground that in view of the explanation to S. 331(1) of the U. P. Zamindari Abolition and Land Reforms Act, 1951 the court competent to entertain and decide the suit is the revenue court and not the civil court. The petitioner has sought review against that decision. 2. Before entering into the merits of the contention of the petitioner's learned counsel, it may be observed that the review petition is not maintainable. There is no error apparent on the face of the record. Nothing of the kind could be mentioned by the learned counsel. The petitioner has sought review against that decision. 2. Before entering into the merits of the contention of the petitioner's learned counsel, it may be observed that the review petition is not maintainable. There is no error apparent on the face of the record. Nothing of the kind could be mentioned by the learned counsel. On the petitioner's own showing, the matter is at the best debatable and there are authorities supporting the contrary view. Even therefore, in case the view"on the point of law taken by this Court be erroneous, that cannot give rise to the application made for review. 3. Upon merit also in my view the decision taken in the matter is perfectly justified. Sub-sec. (1) of S. 331 of the U. P. Zamindari Abolition and Land Reforms Act, 1951 provided, inter alia, that the civil court cannot take cognisance of a suit mentioned in col. No. 3 of Sch. II based on cause of action in respect of which any relief can be obtained by means of any suit or application. The explanation to this sub- section lays down that if the cause of action is one in respect of which the 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. The cause of action consists of entire bundle of facts upon which the action is based. The cause of action means every fact which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything, which if not proved would give the defendant a right to an impugned judgment must be part of cause of action. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything, which if not proved would give the defendant a right to an impugned judgment must be part of cause of action. It is in other words a bundle of facts which is necessary for the plaintiff to prove in order to succeed in the suit (See : Mulla's Code of Civil Procedure, Vol. I, 1981 page 206). The pith and substance of the plaint in the instant case consists of the averments that the plaintiff-petitioner is the Bhumidhar of the disputed land his name was recorded in the revenue papers prior to Dec. 24, 1980; he did not execute any deed of sale in favour of the defendant No. 1; the defendant No. 1 got the deed impugned executed in her favour on December 24, 1980 from some one impersonating as the plaintiff; the defendant No. 1 also got her name mutated in the revenue papers on the basis of the alleged deed of gift and all this casts a cloud on the plaintiffs title. All this taken together constitutes in my view the cause of action for the claim raised by the plaintiff. In order that he may succeed in obtaining the relief of cancellation, it was necessary for him to have averred his title and it would be essential also to prove the same. Mere execution of a deed of sale by someone cannot entitle X Y Z to sue for cancellation thereof Therefore, it is material question in this case whether the plaintiff is or is not Bhumidhar of the said land. Further, the plaintiff's own case is that he is no longer recorded in the revenue papers. The entry , is in favour of the defendant No. 1 vendee. The plaintiff ha clearly to seek declaration in his favour and to this the Gaon Sabha and the State would be necessary parties. Upon the cause of action set up in the plaint, therefore, the suit would lie for declaration in the revenue court under S. 229-B of the U. P. Act No. 1 of 1951. 4. There is another aspect of the matter. According to the petitioner's case itself, the impugned deed is void. Upon the cause of action set up in the plaint, therefore, the suit would lie for declaration in the revenue court under S. 229-B of the U. P. Act No. 1 of 1951. 4. There is another aspect of the matter. According to the petitioner's case itself, the impugned deed is void. He contends that this was obtained from some imposter and as such the petitioner can ignore the said transaction. In view of S. 31 of the Specific Relief Act, 1963 cited for the petitioner, there is no bar certainly to the plaintiff's seeking still cancellation of this instrument despite the fact that the same is alleged to be void but the question for adjudication is that of forum. Even if the instrument is not cancelled, there is no bar to the petitioner's seeking declaration of title in himself. In fact the declaration of title in these circumstances will necessarily imply cancellation of the said deed because the declaration may not be granted for so long as it stands and once it is found that the petitioner continues to be the Bhumidhar it would follow necessarily that he has not parted with his right in favour of any other person. The authorities, in my opinion support this on principle. 5. The Full Bench decision of this Court in Ram Awalamb v. Jata Shankar ( AIR 1969 All 526 ) is authority for the proposition that where on the basis of a cause of action the main relief is cognisable by a revenue court, the suit would be cognisable by the revenue court only. The fact that the ancillary relief claimed was cognisable by the civil court would be immaterial for determining the proper forum for the suit. In Mohd. Umar Khan v. Idris Mohd. Gani ( AIR 1980 All 89 ) the relief sought by the plaintiff was of permanent injunction to restrain the defendants from interfering with the joint possession. A Division Bench of this Court held that the pith and substance of the allegations made in the plaint have to be scrutinised and if on those allegations some adequate or satisfactory relief can be obtained from the revenue court, the suit has to be filed before the revenue court, notwithstanding that the relief has been so drawn that it falls outside the purview of the revenue court. The case in Sheopal v. Smt. Lakhapata (1979 All WC 524) was of cancellation of an alleged deed of sale held to be void. The Division Bench of this Court was of the view that the proper forum to seek cancellation was the revenue court, and not the civil court. 6. In Dr. Ajodhya Pd. v. Gangotri Prasad (1981 All LJ 647) the allegation of the plaintiff was that he was heir of the deceased land-holder. On the death of the land-holder the widow had executed the impugned transfer deed. Under S. 171 of the U.P. Act No. 1 of 1951 the plaintiff claimed to be the preferential heir and in his presence the widow was not competent to make the transfer. Hence it was alleged that the transfer made by her would be void. The Division Bench relied on the Explanation to S. 331(i) and observed that for purposes of cognisance of the suit in the revenue court, it is the cause of action and not the relief that is relevant. It was argued for the opposite parties that since the sale deed had to be cancelled, it must be deemed to have initiated the cause of action for the suit. This was repelled pointing that an instrument can create a cause of action only if by itself, it creates a right and so long as that instrument is not avoided the title continues to be effective. This would be a case where the instrument referred to in the plaint is a void document, that is it creates no title ab initio, it cannot give rise to a cause of action by itself. The jurisdiction was, therefore, held to lie in the revenue court and not the civil court for the reliefs of declaration/possession and cancellation sought by the plaintiff. The decision of the learned single Judge in Ramdhari v. Jodhan ( AIR 1973 All 81 ) relied for the petitioner before me was expressly overruled. 7. In Chandrika Misir v. Bhaiya Lal (1973 Rev Dec 365) the suit had been filed for the relief of permanent injunction and in the alternative for possession. The suit was instituted in the civil court and the decree was passed. Considering the effect of Ss. 209/331 of Act No.1 of 1951 the Supreme Court held that the Civil Court had no jurisdiction and the suit was liable to be dismissed. The suit was instituted in the civil court and the decree was passed. Considering the effect of Ss. 209/331 of Act No.1 of 1951 the Supreme Court held that the Civil Court had no jurisdiction and the suit was liable to be dismissed. The void document can be considered and adjudicated by the revenue court. It is only a voidable instrument which needs declaration and adjudication by a competent authority. This was also the view taken by the Supreme Court in Gorakh Nath Dubey v. H. N. Singh ( AIR 1973 SC 2451 ) which has been followed in series of cases of this Court. 8. In Vijai Singh v. II Addl. D.J. (1982 All LJ 725) R. R. Rastogi J. referred to the case-law on the subject and took the same view. The facts thereof were identical in so far as relevant. The plaintiff alleged that he had not executed the impugned deed of sale but some other person had impersonated for that purpose and no consideration was paid for it. It was alleged also that on the basis of this deed of sale the defendant had obtained mutation in his favour and was interfering with the rights of the plaintiff. The learned Judge held that the suit for permanent injunction lay in the revenue court and not the civil court. The relief formulated was not material; the cause of action was the relevant thing to be considered; the impugned deed was void on the allegations made in the plaint. Even though the reliefs claimed was that of injunction, the effective relief on the cause of action set out in the plaint was that of declaration which could be granted only by the revenue court. Such a suit was not cognisable by the civil court and the plaint was liable to be returned to the plaintiff or presentation to the proper court. I am in respectful agreement with this view. 9. The petitioner's learned counsel placed reliance on a decision of learned single Judge reported in Rameshwar Prasad v. 1st Addl. District Judge, Gonda (1981 Luck. LJ 137). That also was a suit for cancellation of an instrument claimed to be void. I am in respectful agreement with this view. 9. The petitioner's learned counsel placed reliance on a decision of learned single Judge reported in Rameshwar Prasad v. 1st Addl. District Judge, Gonda (1981 Luck. LJ 137). That also was a suit for cancellation of an instrument claimed to be void. Relying upon the earlier decision in Parsottarn v. Narottam, (1970 Rev Dec 216 : ( 1970 All LJ 505), the learned single Judge held that the plaintiff had no cause of action for declaration because he had no grievance against the State or the Gaon Sabha. The significant fact in the instant case, however is that as mentioned above, the defendant No. 1 has admittedly been mutated in the revenue papers. The plaintiff no longer appears on the record of the revenue papers. This necessitates an action for declaration on his part because the entries may not be set right without such a declaration being asked for and given and on this account the impleadment of the Gaon Sabha/State also becomes necessary which is done in a suit for declaration under 5.229-B before the revenue court. The decision in Rameshwar Prasad's case and also in Jagdamba Prasad Singh v. Prahalad Singh (1980 All LJ 1135) were as well considered by the learned single Judge deciding the case reported in Vijai Singh 1982 All LJ 725 (supra). The observation in Jagdamba Prasad Singh was made by a learned Single Judge, it would appear, without reference to the decisions of larger Bench. 10. Learned counsel for the petitioner also placed strong reliance on the decision of S. C. Mathur, J. reported in Indra Dev v. Smt. Ram Pyari (1982 All LJ 1308). The decree claimed in that case was for cancellation of a sale deed executed by the mother of the appellant. The cancellation was sought on the ground that the vendor had no interest in the property in suit and, therefore, she was not entitled to execute the sale deed. The appellants claimed that they were Bhumidhars. It was held that the allegations made in the plaint amounted to saying that the sale deed was a void document. In the opinion of the learned single Judge "the real cause of action in a suit for cancellation is not the assertion of title by the executant but the cloud that is cast on the title of the actual holder of the property. In the opinion of the learned single Judge "the real cause of action in a suit for cancellation is not the assertion of title by the executant but the cloud that is cast on the title of the actual holder of the property. In this way the cause of action is provided by the execution of the deed itself'. For reasons narrated above, the cause of action in such a claim consists of not merely the factum of the deed being executed but also that the plaintiff has right, title or interest in the land in dispute and is, therefore the person affected or likely to be affected adversely if the document remained uncancelled. The distinguishing feature, moreover, from that case is that in that case there is no indication of the vendee having obtained mutation in his favour. The fact that in the instant case the deft No. 1 stands mutated and the plaintiffs name has been removed from the revenue record served as well to require a suit for declaration in the revenue court. Further, since in my view the review application is not maintainable even otherwise, I have not found it necessary to refer this case for consideration by a larger Bench. The view taken in the present case is, it is submitted, in conformity with the earlier decisions of the Division Bench and also the view taken by the Supreme Court. 11. For the reasons given above, the review application fails and is dismissed. No order as to costs.