LAL BEHARI v. IIIRD ADDL D J MIRZAPUR — 1995 DIGILAW 1010 (ALL)

N. L. GANGULY, J. This writ petition is directed against the judgment of the IIIrd Addl. District Judge, Mirzapur, dated 17. 12. 1986 by which the learned Judge set aside the judgment and order of the learned Munsif on the issue that the suit filed by the plaintiff-respondent was barred by Section 331 of the U. P. Z. A. and L. R. Act for appreciating the controversy in the present case it would be necessary to state brief facts and reliefs claimed by the plaintiff-respondent in the suit. 2. A pedigree has been shown in the plaint mentioning Bhola, Doodhnath and Paras as three sons of Lalla. It was pleaded that the plots in dispute were ancestral holding of Lalla, which had devolved on the three sons afore-mentioned. Bhola was married at the age of nine years, who had died at the age of 15 years even before the Gauna ceremony had taken place. His widow Smt. Phuljharia had married again according to the customs with one Moti Lal. It was pleaded that Raj Kumar had no legal right in the holding simply on the ground that he could never be the son of Bhola who had died before the Gauna ceremony. The petitioner remained in continuous possession adverse to Smt. Phuljharia who had no legal right also. Lalla had died and the petitioners remained as the sole successor and tenureholder of the land. Raj Kumar, Defendant No. 1, is the son of defendant No. 2 Smt. Phuljharia and Moti Lai to whom she had remarried after the death of her first husband Bhola. It was pleaded that Raj Kumar, defendant, had been living with Moti Lai and in other cases Raj Kumar and Smt. Phuljharia, defendants No. 1 and 2, sub mitted written statement admitting that they are son and widow of Moti Lal deceased. It was pleaded that defendants No. 1 and 2 Rajkumar and Phuljharia had no legal right, title over the land in question. By playing fraud a sale deed was got executed for the alleged share of Rajkumar and Phuljharia in favour of defendants No. 3 to 5. 3. The pleading in the suit is that the sale deed dated 12. 3. 1985 executed by defendant Raj Kumar in favour of defendants No. 3 to 5 Lal Behari was liable to be set aside and quashed. 3. The pleading in the suit is that the sale deed dated 12. 3. 1985 executed by defendant Raj Kumar in favour of defendants No. 3 to 5 Lal Behari was liable to be set aside and quashed. It has also been stated in the pleadings that defendant No. 1 Rajkumar is not the son of Bhola deceased brother of the plaintiff nor he has any right, title or interest in the property or in any share thereof. The sale deed ex ecuted by Rajkumar was wholly illegal and is liable to be cancelled. Another plead ing was that the sale deed in question was liable to be cancelled in view of Section 168 of the U. P. Z. A. and L. R. Act. 4. The relief claimed in the suit is that the sale deed dated 12. 3. 1985 executed by defendant Raj Kumar in favour of Lal Behari, Kishori Lal and Tikori Lal be cancelled and the court may grant any further relief that may consider just and proper. A written statement was filed raising the plea that the suit was barred by section 331 of the U. P. Z. A. and L. R. Act. I will not refer to further details of the pleadings raised in the written statement since it is the plaint allegations which are to be taken into consideration when jurisdiction of the Court is to be adjudicated. 5. The learned Munsif referred to the pleadings of the parties and was pleased to observe that here the main relief of the plaintiffs is that they be declared the sole Bhumidar of the disputed land and the sale deed executed by the defendant No. 1 be cancelled. The Learned Munsif was of the view that it was really a case for declaration about the competency of the defendant No. 1 to execute the sale deed in favour of defendants No. 3 to 5. The learned Munsif also recorded a finding that the plaintiffs have not categorically denied that the name of defendant No. 4 has been entered in the revenue record. Ultimately the decision of the learned Munsif was that the main relief of the plaintiff is for declaration and the civil court cannot grant such relief. The learned Munsif also recorded a finding that the plaintiffs have not categorically denied that the name of defendant No. 4 has been entered in the revenue record. Ultimately the decision of the learned Munsif was that the main relief of the plaintiff is for declaration and the civil court cannot grant such relief. The learned Munsif directed that the Court has no jurisdiction to try the suit, decided the issue and directed the record of the case to be consigned to the record room. Against the said judgment an appeal was filed by the plaintiff-respondents. 6. The learned IIIrd Addl. District Judge, before whom the appeal was trans ferred, referred the facts stated in the plaint. It was observed that the sale deed executed by Rajkumar, defendant No. 1, has not been given effect to in the revenue record. The learned lower appellate court mentioned in the judgment that in para 11 of the written statement the sale deed was stated to be void but during the course of arguments in appeal, this plea was not pressed before the lower appellate court. It was said that since the main relief from the facts indicated that it was a case for declaration as such the provisions of section 331 of the U. P. Z. A and L. R. Act would bar the maintainability of the suit in Civil Court. It was also argued before the lower appellate court that the name of the person recorded in the revenue record, if executes a sale deed, without declaration, the sale deed could be got cancelled by filing a suit in the civil court. 7. The lower appellate court referred to a decision reported in 1980 ALT 1135-Jagdamba Prasad Singh v. Prahlad Singh and observed that a sale deed-whether void or voidable, in both the circumstances, could be cancelled by filing a suit in the Civil Court. It was observed that void sale deeds could be ignored by revenue court. Another decision reported in 1971 RD 90-Bateshwar v. Udit Narain Upadhya was referred to and it was stated that it is for the plaintiff to seek for a relief whether he wanted to get the sale deed cancelled or ignored. It was observed that void sale deeds could be ignored by revenue court. Another decision reported in 1971 RD 90-Bateshwar v. Udit Narain Upadhya was referred to and it was stated that it is for the plaintiff to seek for a relief whether he wanted to get the sale deed cancelled or ignored. Another decision reported in 1983 ACJ 6yj-Samani Ram v. District Judge, Budaun was cited, in the judgment in which the question of declaration of the rights of the vendor-whether he was a sirdar-was a question to be considered. The decision reported in 1981 AWC 121-Mahavir Singh and others v. Smt. Ham Kunwar was also referred to in which it has been stated that a suit for cancellation of the sale deed in respect of agricultural land could be filed in civil court. 8. The learned Addl. District Jydge has simply referred to the case-laws and has not appreciated the fact and law involved in the said cases whether they were applicable in the facts and circumstances of the present case. The learned Addl. District Judge relying on a decision reported in 1983 A. L. J 617 (supra) observed that if the name of the person was not mentioned in the revenue record and the name of the defendant was recorded in the revenue papers, as such that was a case for declaration. The Addl. District Judge was of the view that the name of the plaintiff was recorded in the revenue papers and the defendant, whose name has not been recorded in the revenue record^ cannot be compelled to get a declaration from the revenue court. He was of the view that the suit was maintainable in the Civil Court and the order of the learned Munsif was set aside. 9. The parties have filed counter affidavit and rejoinder affidavit. Heard the learned counsel for the parties at length. The learned counsel for the petitioner as well as the learned counsel for the respondent relied on several decisions, which I shall refer hereinafter. 10. In the Full Bench- decision reported in 1989 RD 21-Ram Padarath and others v. Ilnd Addl. 9. The parties have filed counter affidavit and rejoinder affidavit. Heard the learned counsel for the parties at length. The learned counsel for the petitioner as well as the learned counsel for the respondent relied on several decisions, which I shall refer hereinafter. 10. In the Full Bench- decision reported in 1989 RD 21-Ram Padarath and others v. Ilnd Addl. District Judge, Sultanpur and others, the controversy about the jurisdiction of civil court and revenue court was considered at length and it was observed relying on the decision reported in AIR 1966 SC 1718 -Abdul Wahid Khan v. Bhawani and others, as under: "it is settled principle that it is for the party who seeks to oust the jurisdiction of Civil court to establish his contention. It is also equally well settled that a statute ousting the jurisdiction of a civil court must be strictly construed. Section 31 of Specific Relief Act makes specific provision for cancellation of void as well as voidable instrument. Suit for cancellation of such documents being of civil nature are cognizable by a civil court and even otherwise suits claiming relief provided under Specific Relief Act are entertainable only by a civil court and no revenue court or any other court can entertain such a suit including for cancellation of an instrument or document. Section 31 of the Specific Relief Act reads as under: 31. When cancellation may be ordered.- (1) Any person against whom a written in strument 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 facts of its cancellation. " 11. The Full Bench considered the purport and effect of Section 331 of the Act. The jurisdiction of the Civil Court in respect of suits etc. enumerated in Scheduled II makes the phrase cause of action as pivotal point for determining the jurisdiction of civil or revenue court. " 11. The Full Bench considered the purport and effect of Section 331 of the Act. The jurisdiction of the Civil Court in respect of suits etc. enumerated in Scheduled II makes the phrase cause of action as pivotal point for determining the jurisdiction of civil or revenue court. The expression cause of action means that every fact would be necessary for the plaintiff to prove if traversed in order to support his right of judgment, The expression any relief used in Section 331 of the Act is too of wide import and would not only mean the relief claimed but would also include any relief arising out of the cause of action which led the plaintiff to invoke the jurisdiction of a court of law. The word relief is not part of cause of action nor the same is related to the defence set up in the case. The relief is a remedy which the court grants from the facts asserted and proved in an action. The relief and cause of action are not synonymous with each other. Section 331 of the Act itself has enlarged the jurisdiction of revenue court and has not confined it to the specified reliefs claimed which are mentioned in Scheduled II of the Act but the explanation to it has enlarged its scope further by using the word any relief. It is the cause of action alone which determines the forum and keeps the jurisdiction of revenue court intact in matters referred to in respect of suit, application or proceedings mentioned in Schedule II to the Act to the exclusion of Civil Court. The jurisdiction of the Civil Court is not concurrent with that of the revenue court by means of such suit, application or proceeding. The relief of the nature men tioned in Schedule II can be obtained from the revenue court which will take cog nizance of such suit, application or proceeding notwithstanding the relief provided in a different language can also be granted by the Civil Court. 12. The Full Bench of 1989 R. D. 21- (supra) also considered the earlier Full Bench case, reported in 1968 RD 470, Ram Awalamb v. Jata Shanker and others, which was constituted in view of conflict between two Bench decisions of this Court. 12. The Full Bench of 1989 R. D. 21- (supra) also considered the earlier Full Bench case, reported in 1968 RD 470, Ram Awalamb v. Jata Shanker and others, which was constituted in view of conflict between two Bench decisions of this Court. It was considered that where in a suit, from a perusal only of the relief claimed, one or more of them are ostensibly cognizable only by Civil Court and atleast one relief is cognizable by the revenue court. Further questions which arise are whether all the reliefs are based on the same cause of action and if so, (1) whether the main relief asked for on the basis of the cause of action is such as can be granted only by a revenue court or (2) whether any real or substantial relief, through it may not be identical with that claimed by the plaintiff could be granted by the revenue court. Ultimately, it was found that the jurisdiction shall vest in the revenue court and not in the Civil Court. The Full Bench held that the decision reported in 1982 (8) ALR 517 requires no reconsideration. With regard to the decision reported in 1981 AWC 469--Dr. Ayodhya Prasad v. Gangotri, regarding jurisdiction of consolidation authorities, so far as it holds the revenue court, it does not lay down a good law. It was held that 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 and a tenure holder is necessarily needed in which even relief for cancella tion will be surplusage and redundant. 13. In the case at hand the defendant No. 1, who is said to have executed the sale deed in favour of defendants No. 3 to 5 is not shown to have been recorded in the revenue records as disclosed in the plaint. In the plaint it has been said that the basis for executing the sale deed by Rajkumar alleging himself to be the son of Bhola is baseless and unfounded. Bhola had died at the age of 15 years even before his Gauna ceremony. Defendnat Rajkumar was born out of the second marriage of Sint. In the plaint it has been said that the basis for executing the sale deed by Rajkumar alleging himself to be the son of Bhola is baseless and unfounded. Bhola had died at the age of 15 years even before his Gauna ceremony. Defendnat Rajkumar was born out of the second marriage of Sint. Phuljharia with Moti Lal, after the death of Bhola and defendant No. 1 Raj Kumar is the son of Moti Lal. The question is for declaration whether defendant No. 1 was the son of Bhola and also whether the plaintiffs matured their right by adverse possession over the land in question for more than 22 years after the death of Bhola. The jurisdiction of the court is not to be decided on the basis of the defence but on the basis of the plaint allegations mainly. It appears that the learned Munsif examined the facts of the case and arrived at a correct conclusion from the pleadings of the plaintiffs. The learned counsel for the respondent also relied on the decision reported in 1989 R. D. 21 referred to above. It has not been shown that the defendant No. 1 Rajkumar was a recorded tenure holder at the time of execu tion of the sale deed. Thus the authority reported in 1989 R. D. 21 (supra) cited by him is of no assistance to him. 14. Another decision reported in AIR 1990 SC 540 -Smt. Bismillah v. Janesh-war Prasad was cited, wherein the question was whether a party prima facie proc eeding on premises that she cannot ignore sale-deeds but they need to be set aside before relief of possession and other reliefs can be availed of. The bar of Section 331 of the Act was held not to be attracted. The Supreme Court was pleased to observe that the exclusion of the jurisdiction of the Civil Court is not to be readily inferred, but that such exclusion must either the explicitly expressed or clearly im plied. The provisions of law which seek to oust the jurisdiction of Civil Court needs to be strictly construed. Section 331 of the Act has been the subject of series of pronouncements of the High Court as to the circumstances and the nature of the suits in which it exclusionary effect operates. The provisions of law which seek to oust the jurisdiction of Civil Court needs to be strictly construed. Section 331 of the Act has been the subject of series of pronouncements of the High Court as to the circumstances and the nature of the suits in which it exclusionary effect operates. Distinction was sought to be drawn between the class of cases where the binding effect of a deed had to be got rid of by an appropriate adjudication on the one hand and the class of cases in which a transaction could be said to be void in law where what the law holds to be void, there is nothing to cancel or set aside on the other. In the former case, it was held, a suit was cognizable by the Civil Court while in the latter, it was not, it being open to the statutory authority to take note of the legal incidents of what was non est. 15. From the perusal of the pleadings in the present case the main relief ap pears to be the declaration sought by the plaintiffs whether defendant No. 1 was the son of Bhola, who was competent to execute the sale deed and the cancellation of the sale deed was the consequential relief. The Honble Supreme Court was pleased to observe that in order to determine the precise nature of the action, the pleadings should be taken as a whole. If as, indeed, is done. The real point is not the stray or loose expressions which abound in inartistically drafted plaints, but the real substance of the case gathered by construing pleadings as a whole. The Honble Supreme Court referred to the same parties do not have the farsight of prophets and their lawyers the fraftmenship of a Chalmers. This decision supports the petitioners contention. The facts and pleadings showing the main relief was decla ration and competency of defendant No. 1 to execute the sale deed and cancellation was ancillary relief. Thus I am of the view that the judgment given by the trial court was sound and correct in view of the law referred to above. 16. In view of the observations made above, I am of the view that the writ petition deserves to be allowed. The judgment and order passed by the IIIrd Addl. District Judge dated 17. 12. 1986 is quashed. 16. In view of the observations made above, I am of the view that the writ petition deserves to be allowed. The judgment and order passed by the IIIrd Addl. District Judge dated 17. 12. 1986 is quashed. The plaint of the suit is directed to be returned to the plaintiff-respondents for presentation before the appropriate revenue court. 17. The petition is allowed. The parties shall bear their own costs. Petition allowed. .