Research › Search › Judgment

Allahabad High Court · body

2004 DIGILAW 5 (ALL)

Mangli Devi v. Kamlesh Kumar

2004-01-05

RAKESH TIWARI

body2004
JUDGMENT Rakesh Tiwari, J.—Heard counsel for the parties and perused the record. 2. The petitioner filed suit No. 188 of 1982 in the Court of Munsif, Etah with the allegations that the plaintiff-petitioner is the owner and bhumidhar of the land in dispute. It was alleged in the plaint that defendant Nos. 1 to 4 and defendant Nos. 5 to 8 in collusion with each other got one fictitious sale deed executed on 17.10.1981 by some fictitious lady showing herself as Smt. Mangli. The petitioner denied execution of the sale deed in favour of the defendants and the main relief claimed in the plaint was for cancellation of the sale deed. The reliefs claimed by the petitioner were as under : “According to relief ‘A’ the plaintiff-petitioner prayed that the sale deed dated 17.10.1981 which is said to have been executed by the plaintiff petitioner may be cancelled and its intimation may be sent to the office of the Registrar. The plaintiff-petitioner claimed this relief as the main relief. The plaintiff-petitioner also prayed in relief ‘C’ that any other such relief may be granted in her favour which may be beneficial to her against the defendants 1 to 8.” 3. The defendants filed their written statements inter alia, stating that the civil court had no jurisdiction to try the suit and it was barred by Section 331 of the U. P. Zamindari Abolition and Land Reforms Act. 4. An issue was framed by the trial court whether the suit is cognizable by the civil court or it was barred by Section 331 of the U. P. Zamindari Abolition and Land Reforms Act. The trial court decided this issue as a preliminary issue on 9.8.1983 holding that the suit is cognizable by the civil court and is not barred by Section 331 of the Act. 5. Aggrieved, the contesting defendants filed Civil Revision No. 86 of 1983, Kamlesh Kumar and others v. Smt. Mangli Devi and others, before the revisional court. The revision was allowed by order dated 31.5.1984 passed by IInd Additional District Judge, Etah. 6. The petitioner has filed this writ petition challenging the validity and correctness of the order dated 31.5.1984 aforesaid passed by the revisional court. 7. The contention of the counsel for the petitioner is that the relief claimed by the plaintiff-petitioner is the decisive factor as to which court has jurisdiction to try the suit. 6. The petitioner has filed this writ petition challenging the validity and correctness of the order dated 31.5.1984 aforesaid passed by the revisional court. 7. The contention of the counsel for the petitioner is that the relief claimed by the plaintiff-petitioner is the decisive factor as to which court has jurisdiction to try the suit. He submits that the revisional court has erred in law while observing that the cancellation of the sale deed is the main and only relief and the other reliefs mentioned in the plaint were general in nature. He further submits that the revisional court has wrongly distinguished the ruling in Jagdamba Prasad v. Prahlad Singh, 1980 ALJ 1135, and has committed manifest error of law that this Court did not consider the ambit of Section 331 of the U. P. Z. A. and L. R. Act. 8. It is settled by a catena of decisions that jurisdiction under Section 331 of the Act is exclusive and not concurrent. It is also settled by a catena of decisions that the question as to bar of civil courts’ jurisdiction cannot be resolved merely by having a look at the relief claimed in the suit but must depend upon the nature of allegations constituting the cause of action and also on other attending circumstances from which the Court must draw conclusion about the true and real nature of the relief, notwithstanding the language in which it is couched as has been held in Ram Bahadur v. Ist Additional Civil Judge, 1987 (2) AWC 812 : 1987 ALJ 579. A question of jurisdiction can be raised only if the conditions of sub-section (1A) are satisfied. These conditions are, firstly that the objection to the jurisdiction must have been taken in the Court of first instance and in all cases where issues are settled, at or before such settlement ; and secondly that the consequence of entertaining suit by the civil court has been a failure of justice. Section 331 (1) provides for proceedings, which a Revenue Court is competent to entertain, are mentioned in Schedule II column 3. In Raghu Nath v. D.J., 1986 RD 315, it has been held that suit for cancellation of sale deed on ground of fraud lies in civil court. Section 331 (1) provides for proceedings, which a Revenue Court is competent to entertain, are mentioned in Schedule II column 3. In Raghu Nath v. D.J., 1986 RD 315, it has been held that suit for cancellation of sale deed on ground of fraud lies in civil court. In the instant case, the petitioner has categorically stated that the sale deed has been got executed by impersonation and fraud and she has never executed the sale deed. The decision as has been rendered in Indra Dev v. Ram Pyari, 1982 ALJ 1308, holding the civil court jurisdiction to try even the suits in respect of void documents even if the plaintiff is not recorded, was approved by the Full Bench in the decision given in Ram Padarath v. IInd Additional District Judge, 1989 AWC 290. Recently Justice S. K. Singh considered all cases on this point and has held in case of Jai Singh v. IInd Additional District Judge, Muzaffarnagar and others, (2001) 4 AWC 2826 , thus : “The Full Bench in Ram Padarath (supra), while approving the said judgment in para 41 held as follows : “We are of the view that the case of Indra Deo v. Smt. Ram Pyari, 1982 ALJ 1308, has been correctly decided and the said decision requires no consideration, while the Division Bench case, Dr. Ayodhya Prasad v. Gangotri, 1981 ALJ 647, is regarding the jurisdiction of consolidation authorities, but so far as it holds that suit in respect of void document will lie in the revenue court, it does not lay down a good law. 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 of a tenure holder is necessarily needed in which event relief for cancellation will be surplusages and redundant. A recorded tenure holder having prima facie title in his favour can hardly be directed to approach the revenue court in respect of seeking relief for cancellation of a void document which made him to approach the Court of law and in such case, he can also claim ancillary relief even though the same can be granted by the revenue court. The aforesaid decision as has been given in Indra Deo v. Smt. Ram Pyari (supra), and in the Full Bench Ram Padarath (supra) have been taken note of by the Hon’ble Apex Court in the decision in Smt. Bismilla v. Janeshwar Prasad, AIR 1990 SC 540 , and have been duly approved. Otherwise, also if a deed is executed in respect to agricultural land, even though if the plaintiff is not recorded in revenue papers, it does not appeal that why if the plaintiff only intends to get the sale of deed cancelled, why he cannot come to civil court asking that relief. By remaining the deed in favour of the opposite party, the records of the registration office will demonstrate that fact and that may create problem to the plaintiff in many ways in his practical life. In normal life, at various places, if the party is not able to produce the revenue entry and if a deed is presented showing the transaction in favour of a particular person, the concerned authorities are expected to accept the ownership of the land of that party in whose favour the deed exists. In view of this, if a plaintiff wishes to get the deed cancelled in order to get any shadow of doubt of a claim by a person holding the deed removed, he can have every right to approach the civil court.” 9. In para 28 the Court held that if a plaintiff comes to the civil court for seeking cancellation of deed which may be void or voidable, whether the name of the plaintiff is recorded or not, the jurisdiction of the civil court not having been expressly barred to try such suits, the suit will be maintainable in the civil Court. 10. In Om Prakash v. A.D.J., 1982 ALJ 63, it has been held that the jurisdiction of the civil court to entertain a suit for declaration that the plaintiff never executed the sale deed in question is not barred. The revisional court has erred in law and committed material illegality by observing that by the relief for cancellation of the sale deed, the plaintiff-petitioner sought a declaration of her right in the agricultural land and, therefore, the revenue court has jurisdiction. 11. The revisional court has erred in law and committed material illegality by observing that by the relief for cancellation of the sale deed, the plaintiff-petitioner sought a declaration of her right in the agricultural land and, therefore, the revenue court has jurisdiction. 11. For the reasons stated above and in view of the law laid down there is no illegality or infirmity in the order of the trial court holding that the suit is not barred by Section 331 of the Act. 12. The writ petition is allowed. The impugned order dated 31.5.1984 is quashed. The matter is remanded back to the Court below for decision afresh in the light of the observations made in the body of the judgment in accordance with law.