JUDGMENT 1. This second appeal arises out of a suit filed by one Hari Singh for cancellation of a sale deed alleged to have been got executed under some fraudulent circumstances on 21-9-1970. The suit was filed soon thereafter on 24-11-1970 but he did not survive for long, having died on 7-12-70. His widow was substituted but she too died on 16-9-1972 and thereafter the present respondent was impleaded as plaintiff and has continued the suit ever since. 2. The suit was based mainly on the allegations that the plaintiff Hari Singh was a poor, weak, illiterate and heart-patient and on account of his simplicity the defendant used to look him after from time to time and used to manage for his medicines, etc. Taking advantage of this position they took him away to Tahsil headquarter on the pretext of getting him admitted in the hospital for treatment. It is alleged that he was administered wine and his signatures were obtained on some blank papers on the pretext that these were necessary for his admission in the hospital. It is further alleged that these blank signed papers have been utilised by the respondent for depositing twenty times of the land-revenue for acquiring bhumidhari rights in the land in dispute but he had initiated proceedings for getting the same withdrawn and for cancellation thereof. The plaintiff further alleged that subsequently he came to know that on the basis of twenty times deposit of land-revenue some sale deed has also been got executed by the defendants and with a view to do away with him he was kept in confinement for some time about which a report was lodged by his wife and he was ultimately got released from confinement. On these allegations the plaintiff sought cancellation of the sale deed. During the pendency of the suit possession was also taken by the defendants and a relief in that respect was subsequently added. 3. The suit was contested by defendants Nos. 1 and 2 only and it was denied that the plaintiff was ill; that he was not a patient of heart for the past ten years but only suffered from casual stomach-ache and used to take loans from them for his treatment and as such the plaintiff had become heavily indebted to them. According to their defence, Rs. 13,000/- have been given over to the plaintiff earlier and Rs. According to their defence, Rs. 13,000/- have been given over to the plaintiff earlier and Rs. 7,000/- was paid to him at the time of registration of the document and in this manner the entire sale consideration of Rs. 20,000/- had been paid to the plaintiff. It is further alleged that the sale deed was executed by Hari Singh while in full senses and that the suit had been filed with a view to defraud the defendants of their money which they have paid to him as sale consideration. The trial Court came to the conclusion that the sale deed had not been executed by practising any fraud upon him but held that he had not acquired bhumidhari rights in the land as such he had no right to transfer the land in dispute. The suit was, therefore, decreed for cancellation of the sale deed. 4. On appeal by the defendants-appellants findings on the question of Hari Singh's right to execute the sale deed was reversed and on a review of the evidence on record the Court came to the conclusion that the sale deed was vitiated by fraud practised upon him by the defendants. In view of this the appeal also resulted in dismissal. This is how the defendants have now come up in second appeal. 5. Sri R. P. Goel, learned counsel for the appellant has very vehemently assailed the decision of the Court below and the main thrust of his argument was that the Court below has put burden of proof on the wrong shoulder and has also differed with the findings of fact recorded by the Court below for no compelling reasons. In fact the findings of fact recorded by the trial Court should not have been disturbed unless for strong and good reasons. On the question as to whether Hari Singh could execute sale deed even though before the grant of bhumidhari certificate he had expired, he has relied upon certain decisions of the Court. 6. Sheet-anchor of the learned counsel's argument is a Supreme Court decision in Sarju Pershad Ramdeo v. Jwaleshwari Pratap Narain Singh, AIR 1951 SC 120 . On the question as to whether Hari Singh could execute sale deed even though before the grant of bhumidhari certificate he had expired, he has relied upon certain decisions of the Court. 6. Sheet-anchor of the learned counsel's argument is a Supreme Court decision in Sarju Pershad Ramdeo v. Jwaleshwari Pratap Narain Singh, AIR 1951 SC 120 . In that case the due execution of mortgage was in dispute and the trial Court had arrived at the proper decision which was reversed by the High Court when the matter came up before the Supreme Court for decision which have been basically relied upon by the learned counsel may be extracted here as in my opinion these do not fully support the submissions of the learned counsel. The Supreme Court in para 7 of the report observed as under : "The question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evidence adduced in the case. In such cases, the appellate Court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in Court. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is - and it is nothing more than a rule of practice - that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges' notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact." (Emphasis provided) (Emphasis not seen in judgment - Ed.) 7. Further in paragraph 12 of the report it was observed as under :- "There were thus two conflicting versions placed before the Court and each side attempted to substantiate its case by verbal testimony of witnesses. Further in paragraph 12 of the report it was observed as under :- "There were thus two conflicting versions placed before the Court and each side attempted to substantiate its case by verbal testimony of witnesses. The trial Judge was to decide which of the two versions was correct and he accepted the story of the plaintiff and rejected that of the defendant." 8. Later in paragraph 15 of the report it was observed as under : "The High Court was wrong in thinking that it would detract from the value to be attached to a trial Judge's finding of fact if the Judge does not expressly base his conclusion upon the impressions he gathers from the demeanour of witnesses. The duty of the appellate Court in such case is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial Court arrived at or whether there is an element of improbability arising from proved circumstances which in the opinion of the Court outweighs such finding." 9. In the light of these observations certain facts may be taken note of. The sale deed in question was executed on 21-9-1970 and on 30-9-1970 the vendee made an application under S. 145, Cr. P. C. in the Court of S. D. M. complaining that he was threatened with dispossession by the wife of Hari Singh and two others. Preliminary report was made on 13-10-1970. On 3-10-1970 wife of Hari Singh complained to the police authorities alleging that Hari Singh had been taken away by the defendants on 21-9-1970 and some sale deed had been got executed and is being kept in confinement by those persons. She requested for an enquiry into the matter. It appears that soon thereafter on 25-11-1970 the suit was filed but subsequently a reply purporting to be signed by Hari Singh was filed in proceedings under S. 145, Cr. P. C. on 30-11-1970 wherein the fact of execution of sale deed and receipt of consideration was admitted. It is relevant to note that although Hari Singh died on 7-12-1970 the order granting bhumidhari certificate was passed only on 8-6-1971. Both the proceedings under S. 145, Cr. P. C. as well as the one for grant of bhumidhari certificate were decided against the respondent. It is relevant to note that although Hari Singh died on 7-12-1970 the order granting bhumidhari certificate was passed only on 8-6-1971. Both the proceedings under S. 145, Cr. P. C. as well as the one for grant of bhumidhari certificate were decided against the respondent. The lower appellate Court has taken note of the fact that the original sale deed was not filed on the record. It has also considered that neither the scribe nor any of the two attesting witnesses of the execution of the sale deed had been examined. Of the two persons who had identified the executant at the time of registration of the sale deed only one had been examined and he happens to be one of the defendants impleaded in the suit and there is an allegation in the plaint that he is a close associate of the appellants. The Court has taken due note of the fact that since the original plaintiff as well as his widow were both dead when the evidence was recorded it was not possible for the plaintiff to produce any direct evidence of the fact relating to the manner in which the sale deed was got executed. In a case of this nature, although technically burden would ordinarily lie on the plaintiff, yet in the special circumstances of this case burden would equally lie on the defendants to establish that the sale deed had been duly executed and was not sullied by fraud. In the plaint execution of the sale deed has not been admitted and all that has been stated is that certain blank papers were got signed from the vendor. In these circumstances if the defendants chose to rely upon a registered sale deed it was their duty to have established that the sale deed had been duly and fairly executed by producing reliable evidence in this respect. Certified copy of the sale deed would show that the object of making transfer was the necessity to pay off the debts which had been advanced to the vendor in connection with his treatment and for payment of twenty times of land revenue for acquiring bhumidhari rights and also for his need for money to meet necessary domestic expenses for which the vendor had no other, means except to transfer the land. These allegations reveal two reasons for sale. These allegations reveal two reasons for sale. One in respect of past liabilities and the other about future domestic expenses. It is admitted that only a small amount was deposited by way of twenty times land revenue meaning thereby that the major part of the money out of Rs. 13,000/- said to have been received earlier must have been paid by the vendees to the vendor for his treatment. This lends support indirectly to the plaintiff's case that he had been (omission) for a long time. Copy of the Kutumb register shows that Hari Singh was born on 1-2-1924. Thus when he died in 1970 he was only 45 years of age. The fact that he was ill and invalid would be borne out from the endorsement made by the Registrar on the sale deed. It is also mentioned that he was very weak on account of diarrhea and fever. These aspects of the evidence which were available on the record had not been considered by the trial Court. The lower appellate Court has also observed that in the sale deed the endorsement of the Registrar that Rs. 7000/- paid in his presence was received by Hari Singh and was passed on to his brother Ajab Singh, defendant No. 3 who appeared as a witness for the defendants but this fact is also not corroborated by any evidence on record. He was also identified before the Registrar by this Ajab Singh and also by the Lekhpal of the village. Court below has observed that in his statement Ajab Singh was not in a position to disclose any one known to him who might have been present at the time of registration of the deed. This is strange for it is not expected that a villager would not even know the Lekhpal of his own village. Thus the Court below was fully justified in taking a different view and in disagreeing with the findings of the trial Court in the circumstances of the present case. The principles which have laid down in the Supreme Court decision referred to earlier do not come in the way of the respondents in this case. 10. Second question that needs consideration as to whether Hari Singh had a right to transfer the land. Admittedly he only was a sirdar on the date when he had executed the sale deed. The principles which have laid down in the Supreme Court decision referred to earlier do not come in the way of the respondents in this case. 10. Second question that needs consideration as to whether Hari Singh had a right to transfer the land. Admittedly he only was a sirdar on the date when he had executed the sale deed. It is alleged that on the same date he had deposited twenty times of the land revenue and had prayed for grant of bhumidhari sanad to him. Relevant portion of the provisions of S. 134 as it existed when the sale deed was executed may be extracted below : S. 134 : Acquisition of bhumidhari rights by a sirdar : (1) If a sirdar belonging to the class mentioned in cl. (a) of S. 131 pays or offers to pay to the credit of the State Government an amount equal to twenty times the land revenue payable or decreed to be payable on the date of application for the land for which he is the sirdar, he shall, upon an application duly made in that behalf to an Assistant Collector, be entitled, with effect from the date on which the amount has been deposited, to a declaration that he has acquired the rights mentioned in S. 137 in respect of such land : Provided that the rights to pay or offer to pay the amount aforementioned shall cease on the expiry of three months from the date to be notified by the State Govt. Explanation I-Explanation II ........ (a)-(b) ........ (2) ........ It is no doubt true that according to law if the bhumidhari sanad is granted subsequently it relates back to the time when the application for grant of certificate was made. However, the position may be quite different in a case where the person who had applied for grant of bhumidhari certificate himself dies and in that case no such certificate can be granted by the authorities. In a recent decision of this Court in Raghunandan Singh v. Yashwant Singh, 1978 Rev Dec 183 : 1978 All LJ 435 which relied upon the earlier Full Bench decision of this Court it was held that the change of status of a sirdar into a bhumidhar occurs when the Assistant Collector makes the judicial grant, the event of the ministerial grant viz., the actual issuance of the certificate is immaterial. The judicial order for the grant of the certificate in that case was passed after the applicant had died. It was, therefore, held that the order granting sanad was nullity and no benefit or right could accrue on its basis. The grant of bhumidhari sanad being a nullity and bhumidhari rights not having accrued to the applicant the sale deed executed by such person was invalid inasmuch as sirdari rights in the land were not legally transferable. 11. Against this the learned counsel for the appellant has placed reliance on a Division Bench decision of this Court in Deshraj v. Lal Sahai Singh, 1973 All WR 123: AIR 1973 All 292 but the facts of that case were entirely different. What had happened there was that a person professing himself to be bhumidhar of the land made a transfer thereof. Subsequently he deposited necessary amount and acquired bhumidhari rights and got his sirdari rights converted. In the suit filed by transferee the transferor contended that on the date of transfer he did not possess a transferable interest in the property and the sale deed executed by him was of no effect. This contention was repelled and it was held that in view of the provisions contained under S. 43 of the Transfer of Property Act if the vendor subsequently acquired title to the property "he had earlier professed" to transfer he was estopped from questioning the validity of his earlier action. 12. The other case to which reference has been made by the appellant is reported in Lal Behari v. Nirmal Singh, 1977 All WC 140. In that case the vendor deposited the necessary amount for acquiring bhumidhari sanad and transferred the property to the vendee. Subsequently he wanted to resile from this and applied for refund of the deposit but his application was rejected and necessary bhumidhari sanad was granted. The facts of that case also obviously are quite distinguishable from the facts of the present case. The legal position, therefore, appears to be quite clear that no bhumidhari sanad could have been granted to a person who was then dead and could not, therefore, confer any valid title on the transferee in whose favour any sale deed might have been executed on a date when an application for depositing necessary amount for acquiring bhumidhari rights have been made. 13. 13. The last of his submissions emphatically made was that according to the allegations made in the plaint the vendor had not signed the sale deed at all and as such the same was a void document. In view of this allegations in the plaint the suit could lie only in the revenue Court for possession and a void sale deed could be ignored for that purpose. 14. It is no doubt true that as the position of law stands today in view of Gorakhnath Dube's case, AIR 1973 SC 2451 that where there is a document the legal effect of which can only be taken away by setting it aside or when it is cancelled it would be held to be binding on them so long as it is not cancelled by a Court having power to cancel it. However, if the document is such which was wholly or partially invalid so that it could be disregarded by any Court or authority and being in excess of the power to transfer the document to the extent of excess of power would be invalid and may not require cancellation. That decision, however was given in a matter concerning consolidation proceedings which completely ousts the jurisdiction of the Civil Court after a notification under S. 4 of the Act had been issued. The position in the present case is obviously different. Here the suit was initially filed for cancellation of the sale deed and the relief of possession was added only subsequently as a consequences of the defendant entering into possession over it during the pendency of the suit. The main relief which the plaintiff sought was one for cancellation on the grounds set out in the plaint. Relief of possession becomes necessary only at a subsequent stage, initially when the suit was filed, therefore, it was filed in a Court of competent jurisdiction. After the relief of possession had been added of course the suit could be said to be cognisable by,the revenue Courts, as contended by the learned counsel for the appellant because the sale deed could be totally ignored in view of the allegations made in the plaint. A plea of jurisdiction was in fact taken but the suit ended in a decree. In appeal also plea of jurisdiction was raised in the grounds but does not appear to have pursued at the stage of argument. A plea of jurisdiction was in fact taken but the suit ended in a decree. In appeal also plea of jurisdiction was raised in the grounds but does not appear to have pursued at the stage of argument. However, an attempt is made to do so in this Court. In this connection it would be proper to have relevant portion of S. 331 of U. P. Z. A. & L. R. Act which reads as under : S. 331 : (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 proceeding 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 : Proviso.......... Explanation.......... (1) A. Notwithstanding anything in sub s. (1) an objection that a Court mentioned in column 4 of Schedule II, or, as the case may be, a Civil Court, which has no jurisdiction with respect to the suit, application or proceeding, exercised jurisdiction with respect thereto shall not be entertained by any appellate or revisional Court unless the objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice. (2)-(4) .......... 15. The very reading of this section will show that it applies primarily at the stage when the suit is filed and not to a stage when a suit has been filed in a Court of proper jurisdiction and subsequently due to addition of some relief it became cognizable by the revenue Courts mentioned in Column 4 of Schedule II of the Act. Secondly, if it be assumed for the sake of argument that the plea of jurisdiction could possibly be taken by the appellant, to oust the jurisdiction the twin requirements are : (1) That plea about jurisdiction has taken before the issues are framed; and (2) That exercise of jurisdiction by the Court has resulted in a consequent failure of justice. Secondly, if it be assumed for the sake of argument that the plea of jurisdiction could possibly be taken by the appellant, to oust the jurisdiction the twin requirements are : (1) That plea about jurisdiction has taken before the issues are framed; and (2) That exercise of jurisdiction by the Court has resulted in a consequent failure of justice. Therefore, even assuming that the Civil Court had no jurisdiction after addition of the relief of possession by the plaintiff and even assuming that possession has been taken by the appellant prior to the filing of the suit mere entertainment of the suit by the Civil Court will not entitle the suit to be thrown out unless the second requirement is also fulfilled i. e. that there has been consequent failure of justice. 16. I am not prepared to accept the submission that merely because the Civil Court has decided the suit this fact could alone have caused failure of justice. In substance the procedure applicable to the Civil Courts and revenue Courts is the Code of Civil Procedure and the mere trial of a suit in a Civil Court instead of revenue Court could not conceiveably result in failure of justice. If I may say so trial before the Civil Court has always been regarded more satisfying to the parties than in any other forum. Therefore, this fact alone cannot be treated as causing injustice. 17. In view of the above, I cannot agree with the submissions made by the appellant in this respect. 18. Thus I find no force in this appeal which is accordingly dismissed with costs. Appeal dismissed.