Sita v. 3rd Additional District Judge, Gonda — 1991 DIGILAW 318 (ALL)

JUDGMENT J.K. Mathur, J. - This petition has been filed challenging the correctness and validity of the order passed by Sri R.P. Verma, IIIrd Additional District Judge, Gonda on 12121990 dismissing a revision filed against the order passed by the VII Additional Munsif, Gonda in civil suit No. 548 of 1984. 2. Two plots of land situate in village Kapurpur, pargana Paharpur, tahsil and district Gonda belonged to Doodh Nath. He died issueless on 31121983. Vidyadhar Shukla, opposite party No. 4 instituted the aforesaid suit in the court of Munsif, Gonda claiming that Doodh Nath had executed a will in his favour on 2491983 as a result of which he succeeded to the right of Doodh Nath in the aforesaid plots. The petitioners in this writ petition who were arrayed as defendants 1 to 5 were alleged to have got a sale deed prepared claiming that it had been executed by the deceased Doodh Nath in respect of the aforesaid property. They got the sale deed registered after the death of Doodh Nath. The suit was filed for cancellation of this sale deed on a number of grounds. A permanent injunction was also claimed against the defendants. 3. The defendants contested the suit and inter alia pleaded that the suit was not cognizable by the civil court. An issue was framed. The learned Munsif after hearing parties was of the opinion that the suit for cancellation of sale deed and injunction could be filed in the civil court. The issue was, therefore, decided against the defendants who preferred a revision which was heard by the learned Additional District Judge. He after considering the contention of the parties affirmed the decision of the Munsif. The present writ petition is directed against the decision of the Additional District Judge. 4. The only point which, therefore, arises for determination in this case is about the forum in which the suit could have been filed by respondent No. 4. 5. The notice has been accepted by the Standing Counsel on behalf of respondent Nos. 1 and 2. Sri J.P. Singh appeared on behalf of respondent No. 4. At the stage of admission they addressed the court at length and the petition is being finally determined. 6. 5. The notice has been accepted by the Standing Counsel on behalf of respondent Nos. 1 and 2. Sri J.P. Singh appeared on behalf of respondent No. 4. At the stage of admission they addressed the court at length and the petition is being finally determined. 6. On behalf of the petitioner it was firstly urged that in view of fact that the petitioners having not been entered as tenureholder, the remedy available to them was a suit for declaration u/s 229B of U.P.Z.A. and L.R. Act and because of the availability of that remedy, a suit for cancellation in the civil court would be barred by the provisions of Section 331 of the aforesaid Act. It was also urged on behalf of the petitioners that a suit for cancellation could not be filed by third person who is not a party to the deed. 7. That contention that respondent No. 4 did not have locus to file a suit for cancellation of sale deed is sought to be based on the observation made in the Full Bench decision of this court in the case of Ram Padarath v. II Addl. D.J., Sultanpur (1988(6) LCD 565). 8. In the aforesaid case it has been said (at page 584) that a third person cannot file a suit for the cancellation of a void document. 9. A reproduction of the remaining portion of this paragraph would itself clarify the situation: In the case of void document said to have been executed by a plaintiff during his disability or by someone impersonating him or said to have been executed by his predecessor whom he succeeds, the relief of cancellation of the document is more appropriate relief for clearing the deck of title and burying deep any dispute or controversy on its basis in presenti or which may take place in future. The document after its cancellation would bear such an endorsement in subRegistrar's register and would be the basis for correction of any paper and revenue record, including record of register. Section 31 of the Specific Relief Act itself prescribes as to who can seek relief of cancellation. A third person cannot file a suit for cancellation of a void document. Thus a suit can be filed when a document is said to have been executed by the predecessor of a person who claims cancellation. Section 31 of the Specific Relief Act itself prescribes as to who can seek relief of cancellation. A third person cannot file a suit for cancellation of a void document. Thus a suit can be filed when a document is said to have been executed by the predecessor of a person who claims cancellation. In the present case, the plaintiff has sought the cancellation of sale deed which is alleged to have been executed by the person who had executed a Deed of will in his favour and was, therefore, his predecessor in interest in respect to this property. 10. Section 31 of the Specific Relief Act provides as below: 31. When cancellation may be ordered (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable, and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. (2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation. Any person against whom an instrument is void and who has an apprehension of injury from such a document, has a right to move for cancellation under Section 31 of the Specific Relief Act. The plaintiff in this case claims that this document is void and also claims that the document casts doubt on his title to the property in dispute and is, therefore, likely to cause injury to him. 11. In these circumstances the plaintiff cannot be said to have no right to institute a suit for cancellation of the Deed and on this score alone it cannot be said that the suit ought to have been filed by him in the revenue court. 12. Coming to the main dispute in this case, this question has been recently decided by the Supreme Court in the case of Smt. Bismillah v. Janeshwar Prasad ( 1990(1) SCC 207 ) : 1990(8) LCD 536. 12. Coming to the main dispute in this case, this question has been recently decided by the Supreme Court in the case of Smt. Bismillah v. Janeshwar Prasad ( 1990(1) SCC 207 ) : 1990(8) LCD 536. This case approved the decision in the case of Indra Dev v. Ram Pyari 1982 ALJ 1308) which was also approved in the Full Bench decision of Ram Padarath v. Second Addl. District Judge, Sultanpur referred to above. 13. In the case of Indra Deo v. Ram Pyari, a suit had been filed by Indra Deo and others for cancellation of a sale deed executed by Smt. Ram Pyari mother of Indra Deo, a minor, in favour of one Bramhanand. Cancellation of deed was sought on the ground that Smt. Ram Pyari had no interest in the property and was, therefore, not entitled to execute the sale deed. 14. The learned District Judge held that the sale deed was a void document and, therefore, the suit was cognizable by a revenue court only. The plaint was ordered to be returned. 15. In this case S.C. Mathur J, found that Section 331 of U.P.Z.A. and L.R. Act bars the jurisdiction of civil court only in such cases which have a cause of action on the basis of which a suit or proceeding mentioned in Col. 3 or Schedule II of the aforesaid Act can be maintained. 16. According to Section 331(1) proceedings which a revenue court is competent to entertain are mentioned in Sch. II Column 3. In order to determine whether a proceeding falls under any of the clauses of column 3 the decisive thing is the cause of action on which the proceeding is based and not the form in which the relief is claimed. If in respect of this cause of action the revenue Court is competent to grant relief, the suit or proceedings would lie in the revenue court and not in the civil court, the jurisdiction under Section 331 being exclusive and not concurrent. 17. Thus the determinant factor to find the extent of the jurisdiction of the revenue court which excludes the jurisdiction of the civil court is the cause of action in a particular suit and not the relief as may be claimed in that suit. 18. 17. Thus the determinant factor to find the extent of the jurisdiction of the revenue court which excludes the jurisdiction of the civil court is the cause of action in a particular suit and not the relief as may be claimed in that suit. 18. After considering the provisions of Section 31 of the Specific Relief Act and a number of cases it was held in the aforesaid case: A survey of the above decisions shows that the consistent view of this Court is that the cause of action in a suit for cancellation of sale deed is not the denial of plaintiff's title which may be said to be implicit in the execution of the saledeed by the defendant but is the execution of the deed itself. Because of this the view taken in that case was that a suit for cancellation of sale deed would not be barred from the jurisdiction of the civil court because of the provisions of Section 331 of Z.A. and L.R. Act as this cause of action does not make any proceeding available in the revenue court. 19. As given above, this decision was approved by the Full Bench and finally by the Supreme Court in the case of Smt. Bismillah (supra). 20. On behalf of the respondents it was urged that when a person has not been entered in the revenue record, the appropriate remedy for him would be a declaration of his title in terms of Section 229B of U.P. Act 1 of 1951 and not a suit for cancellation of sale deed. For this, reliance was placed by them on the case of Ram Padarath (supra), in which case it was also held: Suit or action for cancellation of void document will generally lie in the civil court and a party cannot be deprived of his right getting this relief permissible under law except when a declaration of right or status as a tenureholder is necessarily needed, in which event relief for cancellation will be surplusage and redundant. 21. There is an assertion by the defendants in the written statement that the plaintiff's have not been entered in the revenue records. No extract of the record has been filed. This plea was also not pressed before the trial court or before the revisional court. 21. There is an assertion by the defendants in the written statement that the plaintiff's have not been entered in the revenue records. No extract of the record has been filed. This plea was also not pressed before the trial court or before the revisional court. This being a question of fact cannot now be permitted to be raised for the first time in the writ petition. 11. In any case, in the peculiar facts of the present case the only effective remedy which the plaintiffs can have is the cancellation of the sale deed. The property admittedly belonged to Doodh Nath. The plaintiff claims to be his legatee and thus entitled to right in the property. Defendants 1 to 5 claimed title from Doadh Nath by transfer, by the impugned sale deed. 23. In this case, therefore, an independent declaration of title cannot be claimed. The validity of transactions through which either of the parties claim right to the property, need be gone into and adjudicated about. In fact, only the party in favour of whom the transaction is found to be valid would be entitled to be entered as tenureholder. It is not the declaration of his right which is the primary question, but it is only the validity of the sale deed which is to be considered primarily. The right of either of the party would be dependent upon such a finding. 24. Even in respect of a void document, it cannot be said that relief of cancellation is not the proper relief. If a document is permitted to stand, though alleged to be void, it can create a doubt about the right of the person whose interest has been sought to be transferred by the document. It is, therefore, necessary for such a party to have the endorsement made upon the document itself to see that it is not taken advantage of by any party even at a later point of time. 25. This principle has been recognised even in the case of Ram Padarath (supra) as is apparent from the portion cited above. The suit for cancellation of sale deed cannot, therefore, be barred by the provisions of Section 331 of Act 1 of 1951. 26. As a result of this discussion, I find that the order passed by the learned Additional District Judge does not suffer from any illegality. The suit for cancellation of sale deed cannot, therefore, be barred by the provisions of Section 331 of Act 1 of 1951. 26. As a result of this discussion, I find that the order passed by the learned Additional District Judge does not suffer from any illegality. This petition is, therefore, liable to be dismissed and is hereby dismissed.