Sajid Ali v. Zaibun Nisan — 1986 DIGILAW 787 (ALL)

ORDER K.N. Misra, J. - This civil revision under S. 115 of the Civil P. C. in short 'the Code', is directed against the order dated 10th July, 1986 passed by Addl. Civil Judge, Barabanki in Regular Suit No. 59 of 1983, rejecting the application moved by the plaintiff-revisionist under O. 23, R. 1(3) of the Code, for withdrawal of the suit with liberty to file fresh suit on the same cause of action. 2. The above-noted suit was filed by the plaintiff Sajid Ali in the Court of Civil Judge, Barabanki seeking declaration to the effect that the sale deed dated 11-2-1965/12-2-1965, executed in favour of the defendant Smt. Zaibun Nishan by one Murli was a Benami-transaction and that the share of the plaintiff in the Bhumidhari land in question is 12/16 and in the house situated thereon he holds a share of 11/16. The plaintiff has based his claim in the suit on the ground that he and his deceased father Mashook Ali were the real purchasers of the property in suit and they had paid sale consideration in equal shares to the vendor and it was not paid by the vendee Smt. Zaibun Nishan in whose favour the Benami sale deed was executed. The plaintiff thus sought the above declaration basing his cause of action as alleged in the plaint by denial of title of the defendant on the basis of the aforesaid Benami sale deed and that in March, 1983, defendant wanted to sell the property without permission of the plaintiff and by denying the plaintiff s right. This suit was initially filed against Smt. Zaibun Nishan alone. It was contested by her and a plea was raised to the effect that the suit was for nonjoinder of necessary parties and issue No. 8 was also framed on that plea which reads as under : - "Whether the suit is bad for non-joinder of Shakir Ali as alleged in para 36(A) of the U.P.? 3. It appears that the then learned Civil Judge Sri B.K. Srivastava, vide order dated 31-5-1985 decided the said issue No. 8 in favour of the plaintiff by accepting the plea of the plaintiff that the aforesaid sale deed was a Benami transaction. 3. It appears that the then learned Civil Judge Sri B.K. Srivastava, vide order dated 31-5-1985 decided the said issue No. 8 in favour of the plaintiff by accepting the plea of the plaintiff that the aforesaid sale deed was a Benami transaction. It is astonishing to note as to how the learned Civil Judge while dealing with the aforesaid issue No. 8, proceeded to record a finding on the crucial question involved in the suit as to whether the sale deed in question was Benami transaction or not. No findings could legally be recorded on this crucial question while deciding the said preliminary issue No. 8. Such an unwarranted manner in recording a finding on the crucial question involved in the suit is apt to cause prejudice to the parties and on going through the finding recorded on issue No. 8, find that such a finding could not be recorded while dealing with issue No. 8 resulting in great prejudice to the parties. It was urged by the learned counsel for the revisionist that since evidence was led on the point, and, as such, learned Civil Judge could record a finding on the question as to whether the sale deed executed in favour of defendant Smt. Zaibun Nishan was a Benami transaction or not. I am unable to agree with this contention because while dealing with the preliminary issue about the suit being bad for non-joinder of parties, it would be unwarranted in law to deal with the crucial issue involved in the suit although some evidence on the point might have been led by the parties on record at that time. The learned Civil Judge has thus acted illegally and with material irregularity in exercise of jurisdiction in recording a finding on the said point while deciding the aforesaid preliminary issue No. 8. The findings, therefore, cannot be sustained and deserve to be ignored while deciding the suit on merits and considering said crucial question about the sale deed being Benami or not. 4. It was pointed out by the learned counsel of the plaintiff-revisionist that although a finding was recorded on the aforesaid issue No. 8, in favour of the plaintiff, but an application was moved by the plaintiff for impleadment of his brother Shakir Ali and his sister Smt. Zubaida Khatoon as defendants in the suit. 4. It was pointed out by the learned counsel of the plaintiff-revisionist that although a finding was recorded on the aforesaid issue No. 8, in favour of the plaintiff, but an application was moved by the plaintiff for impleadment of his brother Shakir Ali and his sister Smt. Zubaida Khatoon as defendants in the suit. These person were impleaded as defendants 2 and 3 and they also contested the suit by filing their written statement. Subsequently, the plaintiff had moved an application on 8-7-1986 under O. 23, R. 1 of the Code for withdrawal of the suit, a copy of which has been annexed as Annexure 3. It has been averred in this application that on a portion of plot in suit No. 87/M, area 8 biswas situate in village Paisar Pargana and Tahsil Nawabganj, District Barabanki, lying within the Municipal limits of Nawabganj, the disputed house is situated and the sale deed dated 11-2-65/12-2-65 in respect of said property is Benami. The (sic) although a finding in favour of the plaintiff in respect of it has been recorded by the Court on 31-5-1985. It has further been averred that a declaration under S. 143 of the U. P. Zamindari Abolition and Land Reforms Act in respect of the land in dispute would be required to be sought of from the revenue Court Thus with these allegations a prayer was made seeking withdrawal of the suit with permission to file fresh suit. This application was opposed by the defendants and after hearing parties, learned Addl Civil Judge Sri S. P. Shukla rejected the application by the impugned order dated 107-1986. This order has been challenged in this revision. 5. Learned counsel for the plaintiff-applicant urged that the Court below erred in not permitting the suit to be withdrawn with liberty to file a fresh suit as according to him there are sufficient grounds to allow plaintiff to withdraw the suit and institute a fresh suit after getting declaration from the revenue Court under S. 143 of the U.P. Zamindari Abolition and Land Reforms Act. Learned counsel has further contended that the suit suffered from formal defect as in the absence of declaration under S. 143 of the said Act, the present suit would not be maintainable in the civil court and on the ground of such formal defect the suit would fail. Learned counsel has further contended that the suit suffered from formal defect as in the absence of declaration under S. 143 of the said Act, the present suit would not be maintainable in the civil court and on the ground of such formal defect the suit would fail. I do not find any merit in these contentions. 6. The first question which requires consideration is whether the present suit would fail for the reason of the formal defect as alleged by the learned counsel for the plaintiff-revisionist. It was urged that as declaration under S. 143 of the U. P. Z. A., and L. R. Act would be required in respect of' the land in question over which a house is situated and, therefore, in the absence of' such declaration the present suit would not be maintainable and would fail on that ground, IA perusal of S. 143 of the U. P. Z. A. and L R. Act indicates that where a Bhumidhar uses his holding or part thereof for a purpose , not connected with agriculture, horticulture, or animal husbandry which includes pisciculture and poultry farming, the Assistant Collector in charge of sub-division may, suo motu or on an application made in that behalf, make a declaration to that effect after making due enquiry in the prescribed manner. It is further provided in sub-sec. (2) of S. 143 that upon the grant of the declaration mentioned in sub-sec. (1), the provisions of this Chapter (except this section) shall cease to apply to the bhumidhar with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject. This section has, I therefore, no bearing on the question of maintainability of the present suit wherein the plaintiff had sought a declaration to the effect that the aforesaid sale deed in question is a Benami transaction. Such a suit for declaration would be maintainable only in Civil Court and the revenue Court will have no jurisdiction to take cognisance of a suit for declaration whether the sale deed executed in favour of the defendant by the vendor is Benami transaction or not In Ram Kumar Singh v. Smt. Kamal Rani, 1975 Rev Dec 262 (BR) the Hon'ble Board of Revenue has held and in my opinion quite correctly. That since relief was based on a claim of an instrument which is said to be Benami and so the proper Court would be the Civil Court for its cancellation because the object of such cancellation would always be to remove the doubt of title of the plaintiff inasmuch as the cancellation of instrument the right and interest of the plaintiff in such property would become secured. 7. In view of the above, find that the revenue Court would have no jurisdiction for granting a declaration to the effect that the sale deed was a Benami transaction and the real purchaser of the property was plaintiff ; and his father. Such a suit would be-maintainable in the Civil Court alone and it cannot be said to be barred on the ground that a declaration under S. 143 of the U.P.Z.A. and LR. Act in respect of the land in question has not been obtained by the plaintiff over a portion of which a house is said to be situated The maintainability of the suit would not be dependent on the declaration under S. 143 of the U.P.Z.A. and L.R. Act which provides that upon the grant of the declaration under sub-sec. (1) of S. 143 the provisions of Chapter VIII of the Act, except S. 143 shall cease to apply to a bhumidhar with respect to such . Land and he shall thereupon be governed in the matter of devolution of land by personal daw to which he is subject.This section has, 'therefore, nothing to do with the maintainability of the present suit in the Civil Court, and in my opinion, the absence of a declaration under S. 143 in respect of the land in suit cannot be said to be a formal defect of the nature on the ground of which the suit may fail. 8. In Thakur Prasad v. Rasool Bux, AIR 1950 All 489, Hon'ble Bind Basni Prasad, J. held "The expression formal defect connotes defects of various kinds not affecting the merits of the case. A defect which goes to the root of the plaintiffs claim is not a formal defect. 8. In Thakur Prasad v. Rasool Bux, AIR 1950 All 489, Hon'ble Bind Basni Prasad, J. held "The expression formal defect connotes defects of various kinds not affecting the merits of the case. A defect which goes to the root of the plaintiffs claim is not a formal defect. Defects such as omission to obtain permission, if necessary, of the necessary authority before bringing the suit; misjoinder of parties or causes of action; or erroneous valuation of the subject-matter of the suit; or the institution of the suit in a Court which has no jurisdiction to entertain the suit, are defects of a formal nature. But where the suit has failed because the plaintiff failed to produce evidence which he was bound to produce in support of his claim, he cannot be permitted to withdraw the claim with liberty to bring a fresh suit in respect of the same subject matter." 9. Learned counsel for the plaintiff-revisionist had, however, stressed that since the plaintiff had claimed the declaration to the effect that he has got 12/ 16th share in the bhumidhari land in question and 11/16th share in the building situated thereon, and, as such, the suit for declaration of the plaintiffs rights as co-sharer in the bhumidhari land in dispute would be maintainable only in the revenue Court and not in the Civil Court. Learned counsel has thus argued that since a Civil Court had no jurisdiction to entertain the suit and grant declaration to the plaintiff in respect of his claim as a co-bhumidhar in the aforesaid land, and as such, on account of this formal defect, the suit deserved to be withdrawn granting permission to file fresh suit on the same cause of action pleaded in the suit. It was further urged that the plaintiff had indicated sufficient cause for the withdrawal of the suit and the learned Court below erred in rejecting the application. I am not impressed with these arguments. It is well settled that the two clauses (a) and (b) of O. 23, R. 1(3) have to be read by applying the rule of ejusdem generis and a cause which is sufficient within the meaning of O. 23, R. l(3)(b) must be similar or alike to the cause mentioned in O. 23, R. l(3)(a) of the Code. It is well settled that the two clauses (a) and (b) of O. 23, R. 1(3) have to be read by applying the rule of ejusdem generis and a cause which is sufficient within the meaning of O. 23, R. l(3)(b) must be similar or alike to the cause mentioned in O. 23, R. l(3)(a) of the Code. See Tarachand Bapuchand v. Gaibihaji, AIR 1956 Bom 632 and Ramarao Bhagwantrao Inamdar v. Babu Appanna, AIR 1940 Bom 121 (FB) and Abdul Gafoor v. Abdul Rahman, 1951 All WR (HC) 575 : ( AIR 1951 All 845 ) (FB). 10. So far as the argument regarding maintainability of the suit in revenue Court is concerned, I have already expressed above that a suit seeking declaration in respect of impugned sale deed to be a Benami sale deed would be maintainable in the Civil Court alone and the revenue Court would have no jurisdiction to entertain suit in respect of such relief. 11. Learned counsel for the plaintiff-revisionist has, however, strenuously contended that although the suit in respect of the part of the relief seeking declaration about the sale deed in question being a Benami transaction may be maintainable in the Civil Court but so far as the relief claimed seeking declaration to the effect that the plaintiff holds 12/16th share in the Bhumidhari land is concerned, it cannot be granted by the Civil Court as a suit for declaration of title as a tenure holder or co-tenure-holder in the Bhumidhari land in suit would be cognisable by revenue Court alone. It was thus contended by the learned counsel that since the suit for part of the relief would be cognisable by the Civil Court and for the other part of the relief claimed the suit would be maintainable in revenue Court, and, as such, the present suit deserved to be withdrawn for filing it in the revenue Court, which would be competent also to grant relief of declaration about the impugned sale deed to be Benami while considering and granting main relief regarding declaration sought by the plaintiff to the effect that he is co-tenure-holder/bhumidhar having 12/16 share therein. I do not find any merit in this contention as well 12. I do not find any merit in this contention as well 12. In Ram Awalamb v. Jata Shanker, 1968 All LJ 1108 : ( AIR 1969 All 526 ) (FB), it has been held :- "Once the suit is maintainable for the main relief in the Civil Court, then there is no bar for the Civil Court to grant all possible reliefs flowing from the same cause of action. The determination of the question as to which out of the several reliefs arising from the same cause of action is the main relief will depend on the facts and circumstances of each case. It has been further clarified and observed. "Where on the basis of a cause of action - (a) the main relief is cognisable by a revenue Court the suit would be cognisable by revenue Court only the fact that the ancillary reliefs claimed are cognisable by Civil Court would be immaterial of determining the proper forum of the suit; (b) the main relief is cognisable by the Civil Court the suit would be cognisable by the Civil Court only and the ancillary reliefs which could be granted by the revenue Court may also be granted by the Civil Court." 13. In the instant case the plaintiff had claimed that the sale deed in question executed in favour of Smt. Zaibun Nisan was a Benami transaction and she would, therefore, acquire no title on its basis. The plaintiff claimed that he and his father were the real purchasers of the property and the defendant has wrongly asserted herself to be owner of the property on the basis of the sale deed in question. Thus the main relief sought in the present case is regarding declaration to the effect that the sale deed in question is Benami. The other part of the relief claimed in respect of his alleged share in the property in suit is an ancillary relief and would be dependent on the consideration and grant of the above-noted main relief. Thus the main relief sought in the present case is regarding declaration to the effect that the sale deed in question is Benami. The other part of the relief claimed in respect of his alleged share in the property in suit is an ancillary relief and would be dependent on the consideration and grant of the above-noted main relief. The Civil Court would therefore, be competent to entertain the present suit in respect of the reliefs claimed therein, and find no substance in the arguments of the learned counsel for the plaintiff-revisionist that the suit is not cognisable by the Civil Court in respect of the above-referred second relief claimed in the present suit regarding declaration of title as co- tenure-holder in the land in suit, which, in my opinion, is the ancillary relief dependent on the grant of above noted main relief. The Civil Court would, therefore, be competent to grant all the reliefs claimed in the suit as held in Ram Awalambs case, ( AIR 1969 All 526 ) (FB) (supra). 14. Learned counsel, however, did note leave the point over-here and by referring to Explanation appended to S. 331(1) of the U. P. Zamindari Abolition and Land Reforms Act, it was urged by him that 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, hi was thus strenuously contended that although revenue Court may not be able to grant identical relief but the suit for declaration of title as co-tenure-holder would be maintainable in the revenue Court alone, and therefore, such a relief even if it be ancillary relief in the suit, cannot be granted by civil court as its jurisdiction is barred by S. 331(1)of the said Act. do not find any merit in this' contention as well. 15. do not find any merit in this' contention as well. 15. The explanation appended tot aforesaid section clearly shows that it is the pith and substance of the cause of action and not the form of the relief which is relevant for cognisance of a case by the revenue Court on the cause of action averred in the plaintiff the relief claimed regarding rights as a tenure' holder or co-tenure-holder in the land in suit covered by a deed of conveyance cannot be granted so long as the impugned deed of conveyance which would require its cancellation to make it ineffective, is not cancelled, the suit would not be cognisable by the revenue court because the revenue Court has got no jurisdiction to cancel the deed and, therefore, such a case would not be covered by Explanation to S. 331(1) of the said Act. It would cover only such cases where on the pleaded cause of action the real substantial relief may be granted by the revenue Court though it may not be identical to that asked for from the Civil Court. It would not cover those cases where on the ; consideration of the pith and substance of the claim based on the averred cause of action the main and real relief claimed cannot be granted by the revenue Court, because the suit would then be cognisable by the Civil Court and the ancillary reliefs which could be granted by the revenue Court may also be granted by the Civil Court. (See Ram Awalamb v. Jata Shanker, 1968 All LJ 1108 : ( AIR 1969 All 526 ) (FB). It is the pith and substance of the claim and not the form which is decisive as held by the Division Bench of this Court in Jagar Nath v. Sita Ram Pande, 1969 All LJ 768. The view expressed in this decision has been approved by the Hon'ble Supreme Court in Gorakh Nath v. H. N. Singh, AIR 1973 SC 2451 . 16. In the instant case it is quite evident that on the pleaded cause of action, the pith and substance of the claim is the relief regarding the impugned sale deed to be a Benami sale transaction conferring no title on the vendee-defendant. 16. In the instant case it is quite evident that on the pleaded cause of action, the pith and substance of the claim is the relief regarding the impugned sale deed to be a Benami sale transaction conferring no title on the vendee-defendant. This is the main and real relief claimed in the suit because the other relief claimed would depend on the granted of the said relief, which can be granted only by the Civil Court and not by the revenue Court Thus, the present suit would not be covered by the above referred Explanation appended to S. 331(1) of the said Act and the Civil Courts jurisdiction to entertain this suit would not be barred under S. 331(1) of the Act. 17. It is also well settled that a voidable sale deed or such other voidable document of conveyance, unless it is avoided, will be enforceable against the executant or any other person claiming under him as held in Ningawwa v. Byrappa Shiddappa Hirekurabar, AIR 1968 SC 956 ; and that a suit brought for cancellation of a voidable sale deed relating to agricultural plot would not be cognisable by revenue Court, as has been observed in the Full Bench decision of this Court in Ram Nath v. Smt. Munna, reported in 1976 All WC 412 (FB). 18. Thus, in my opinion, so long as the voidable sale deed stands and is not cancelled, the revenue Court would have to give effect to it and cannot ignore it. This is because the revenue Court is not vested with the jurisdiction to cancel a sale deed or any such other deed of conveyance which is voidable. However, if the sale deed or any deed of conveyance is null and void, then the revenue Court would have jurisdiction to entertain suit for declaration of rights claimed as tenure-holder in agricultural land covered by it because a void deed of conveyance being a nullity would not vest any valid title in the transferee and would deserve to be ignored whenever sought to be relied upon in support of the claim or denial of it before any Court of law. It would not require its cancellation. It would not require its cancellation. The existence and quantum of rights or interest in land if claimed on the basis of a deed of conveyance which is void, the revenue Court would have jurisdiction to adjudicate upon such rights and interest in land and to declare such document effective or ineffective but where there is a document the legal effect of which can be taken away by setting it aside or its cancellation, then it would be binding on the revenue Court so long as it is not cancelled by a Civil Court. 18A. Thus, a suit for cancellation of a voidable sale deed or any other voidable document of conveyance or for declaring that it is Benami transaction transferring no title on the vendee would maintainable in the civil Court alone and its jurisdiction to entertain such suit would not be barred under S. 331(1) of the U.P.Z.A. and L.R. Act But the jurisdiction of Civil Court to entertain a suit for cancellation of a void sale deed or any other void document of conveyance relating to agricultural plots together with the relief claimed for declaration of rights as tenure-holder of the land covered by the impugned deed, would, however, be barred by S. 331(1) of the said Act in view of Explanation appended to it because in such a suit the main relief would be the relief for declaration of rights as tenure-holder of the land covered by the deed, which can be granted by the revenue Court under S. 229-B of the Act because the void sale deed would be liable to be ignored being nullity requiring no cancellation for making it ineffective. The revenue Courts are vested with jurisdiction by necessary implication of their statutory powers to adjudicate upon such rights and interest in land to declare such documents to be ineffective being void and a nullity requiring no cancellation and so it would be immaterial if the revenue Courts would not be able to grant identical relief for cancellation as would be granted by the Civil Court. Thus, since in such a suit the main relief would be relief for declaration of rights as tenure-holder of the land covered by the void sale deed and, as such, it would be cognisable by the revenue Court because void deed of conveyance being a nullity would not require cancellation. 19. Learned counsel for the defendant opp. Thus, since in such a suit the main relief would be relief for declaration of rights as tenure-holder of the land covered by the void sale deed and, as such, it would be cognisable by the revenue Court because void deed of conveyance being a nullity would not require cancellation. 19. Learned counsel for the defendant opp. party, however, urged that a suit for declaration of rights as tenure-holder in respect of land covered by sale deeds, both void and voidable will be entertain able by the Civil Court because both such sale deeds are required to be cancelled by a suit filed in Civil Court under S. 31(1) of the Specific Relief Act. The revenue Courts would, therefore, be bound to recognise both such deeds and cannot determine their effective or ineffectiveness. Thus, according to the learned counsel for the opp. party, the jurisdiction of Civil Court also in respect of void sale deed cannot be said to be barred under S. 331(1) of the U.P.Z.A. and L.R. Act. 20. It is no doubt correct to say that according to S. 31 of the Specific Relief Act a suit can be instituted for cancellation of void and voidable deed, if there is reasonable apprehension that such instrument if left outstanding, may cause serious injury and that such suit can be instituted in civil Court, which on cancelling the deed, shall also send under S. 31(2) of the Act, a copy of the decree to the officer in whose office the instrument has been so registered for making note on the copy of the instrument contained in his books the fact of its cancellation. This requirement would, however, not oust the jurisdiction oil revenue Court in entertaining suit for declaration of title as a tenure-holder in the agricultural land covered by the void sale deed becomes(and) a null and void document of conveyance would not necessarily require its cancellation for making it ineffective, as already pointed out above. This requirement would, however, not oust the jurisdiction oil revenue Court in entertaining suit for declaration of title as a tenure-holder in the agricultural land covered by the void sale deed becomes(and) a null and void document of conveyance would not necessarily require its cancellation for making it ineffective, as already pointed out above. The provision contained in sub-sections (1) and (2), S. 31 of the S. R. Act, in my opinion does not operate to make nugatory the provision creating bar of jurisdiction of Civil Court as provided under S. 331(1) and the Explanation appended there to, nor on its strength it can be urged that the void document unless cancelled by the Civil Court, would be binding on revenue Court and it would have no jurisdiction to determine whether it is effective or ineffective in a suit filed before it wherein it is sought to be relied upon in support or denial of the claim as a tenure-holder on the basis of sale deed which is void ab initio and a nullity requiring no cancellation. The revenue Court can thus ignore a sale deed which is void because a void document of conveyance would be inoperative and ineffective in law and would not require decree for its cancellation for rendering it valueless, but if the sale deed is voidable it cannot be ignored as it would operate as a valid sale deed unless cancelled by the competent Civil Court. 21. It, therefore, appears to be well settled that if the sale deed or any other deed of conveyance is not void but voidable, then a suit for its cancellation would be required to be filer before the competent Civil Court and so long as it is not cancelled, it wold be effective and binding on the parties and the revenue Court cannot ignore it nor it can reject it while determining right, title and interest as tenure-holder in the land covered by such deed. In a suit for declaration of title as tenure-holder of the land covered by a voidable sale deed, the revenue Court therefore cannot grant declaration rejecting claim of the vendee-defendant unless the deed is cancelled by the competent Civil Court Thus, a suit for cancellation of voidable deed of conveyance together with further relief for declaration of title as a tenure-holder or co-tenure holder in the land covered by such deed, it being an ancillary relief, would be maintainable in civil Court. 22. In view of the above, the present suit, in my opinion, is maintainable in the civil Court and so it cannot be permitted to be withdrawn on the ground urged by the learned counsel that Civil Court has no jurisdiction to entertain it. No case appears to have been made out for withdrawal of the suit under sub-clause (3) of O. 23, R. 1 of the Code with liberty to file fresh suit in respect of property in suit on the same cause of action. 23. In view of the above do not find any error in the impugned order passed by the Civil Court in rejecting the application for withdrawal of the suit moved by the plaintiff. There is thus no merit in this revision and it is accordingly, dismissed. No order as to costs. The ad interim order of stay dated 25-8-1986 is hereby vacated.