Mosra Devi v. Board of Revenue — 1984 DIGILAW 801 (ALL)

JUDGMENT J.N. Dubey, J.- This writ petition arises out of U.P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act) and is directed against the order dated 14-11-1979 of the Board of Revenue allowing the revision of the contesting opposite parties. 2. The petitioner filed a suit in the court of Sub-Divisional-Officer-Chakia under Section 229-B of the Act claiming sole tenancy in the land in dispute. Her case was that the land in dispute belonged to Hanuman who had only one son, namely, Markandey alias Bachchan. Markandey alias Bachchan died during the life time of Hanuman. The petitioner being widow of Markandey alias Bachchan, the predeceased son of Hanuman was his preferential heir under Section 171 of the Act. However, the opposite parties nos. 3 and 4 taking advantage of the illiteracy and ignorance of the petitioner got their name mutated in the revenue records in place of Hanuman and thereafter gifted it to opposite parties nos. 2 and 5. Since the opposite parties nos. 3 and 4 had themselves no right in the land in dispute they were not competent to execute any gift deed in favour of the opposite parties nos. 2 and 5 inasmuch as one cannot transfer better rights than he himself possesses. The opposite parties nos. 2 to 5 contested the suit of the petitioner on the ground that it was not cognisable by the Revenue Court. Her remedy, if any, was to file a civil suit for cancellation of gift deed executed by opposite parties nos. 3 and 4 in favour of opposite parties nos. 2 and 5. However, they did not deny that the petitioner was widow of predeceased son of Hanuman whose succession was to be determined. 3. The Sub-Divisional-Officer Chakia tried the issues about maintainability of the suit in the revenue court as preliminary issues and decided in favour of the petitioner on 15.5.1978. Feeling aggrieved from the order the contesting opposite parties filed a revision under Section 333-A of the Act to the Commissioner, Varanasi Division, Varanasi which was dismissed by the Additional Commissioner on 24.9.1978. The contesting opposite parties thereafter filed revision under Section 333 of the Act to the Board of revenue which was allowed on 14.11.1979 and the orders of the two courts below were set aside. 4. The contesting opposite parties thereafter filed revision under Section 333 of the Act to the Board of revenue which was allowed on 14.11.1979 and the orders of the two courts below were set aside. 4. Aggrieved against the aforesaid order of the Board of Revenue, the petitioner has preferred the instant writ petition before this Court. 5. Having heard the learned counsel for the parties I am of the opinion that the Board of Revenue has committed an error apparent on the face of the record in allowing the revision of the contesting opposite parties and setting aside the orders of the two courts below holding that the suit was maintainable in the Revenue Court. The Board of Revenue appears to have allowed the revision of the contesting opposite parties only on the ground that two subordinate courts did not consider as to whether the gift deed executed by the opposite parties nos. 3 and 4 in favour of opposite parties nos. 2 and 5 was void or voidable document. I have gone through the judgment of the Sub-Divisional-Officer, Chakia and the Additional Commissioner, Varanasi and to me it appears that the view of the Board of Revenue that they did not consider as to whether the gift deed in question was void or voidable document is not correct. Both the subordinate courts in deciding the case in favour of the petitioner proceeded on the basis that the gift deed was a void document and not voidable as claimed by the contesting opposite parties. Even otherwise it is now well settled that the jurisdiction of the court to try a particular case has to be determined on the basis of the allegations made in the plaint and, therefore, even assuming for the sake of argument that the two subordinate courts have not specifically used the words "void and voidable" in their orders, it was of no legal consequence unless the Board of Revenue was of the view that from the allegations of the plaint the gift deed was a voidable document and, therefore, it requires cancellation by the Civil Court. Thus, it was incumbent upon the Board of Revenue itself to consider as to whether the gift deed in question was a void or voidable document and it had no jurisdiction to set aside the orders of the two subordinate courts on this point without doing so. Thus, it was incumbent upon the Board of Revenue itself to consider as to whether the gift deed in question was a void or voidable document and it had no jurisdiction to set aside the orders of the two subordinate courts on this point without doing so. From the body of the order of the Board of Revenue one gathers an impression that the trial court would be directed to decide the preliminary issue afresh in the light of the observations made by it but at the end one is surprised to note that the revision of the contesting opposite parties was allowed in to and the orders of the two subordinate courts were set aside without issuing any direction to the subordinate courts to decide the matter afresh which amounts to dismissal of the suit of the plaintiff on the ground of non-maintainablity of it by the revenue court. 6. I have gone through the plaint of the suit which has been filed as Annexure-1 to the writ petition and I do not have slightest doubt in my mind that on the plaint allegations the gift deed executed by opposite parties nos. 3 and 4 in favour of opposite parties nos. 2 and 5 is a void document. According to the plaint allegations the petitioner being widow of predeceased son of Hanuman was the sole heir of Hanuman under Section 171 of the Act and the opposite parties nos. 3 and 4 had no right or interest in the property of Hanuman. That being so, neither the entries in favour of opposite parties nos. 3 and 4 made during mutation proceedings would confer any right upon them nor the opposite parties nos. 2 and 5 could get any right in the land in dispute on the basis of gift deed executed by them. Moreover, the petitioner was primarily aggrieved from the entries of revenue records in favour of the opposite parties nos. 3 and 4 and once it was found that the said entries were incorrect the gift deed executed by them in favour of the opposite parties Nos. 2 and 5 would also go. If the opposite parties nos. 3 and 4 themselves were not the heirs of Hanuman and had no right or interest in the land in dispute the question of their transferring the same in favour of opposite parties nos. 2 and 5 would also go. If the opposite parties nos. 3 and 4 themselves were not the heirs of Hanuman and had no right or interest in the land in dispute the question of their transferring the same in favour of opposite parties nos. 2 and 5 by means of a gift deed or otherwise did not arise. 7. In the result, the writ petition succeeds and is allowed. The order dated 14-11-1979 passed by the Board of Revenue is quashed. The petitioner shall be entitled to her costs.