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2009 DIGILAW 1522 (ALL)

MATUKKI v. RAJWANTI

2009-04-20

SANJAY MISRA

body2009
JUDGMENT Honble Sanjay Misra, J.—Heard Sri R.N. Singh learned senior counsel assisted by Sri A.K. Rai learned counsel for the plaintiff appellants and Sri S.K. Verma learned senior counsel assisted by Sri Siddharth Verma for the defendant respondent. This second appeal of the year 1996 has been listed for final hearing and is being decided finally today itself. 2. This second appeal has been filed by the plaintiff against the .judgment and decree, dated 14.12.1995 passed in Civil Appeal No. 11 of 1993 by the 1st Additional District Judge, Sonebhadra whereby the first appellate Court has allowed the appeal filed by the defendant and dismissed the suit of the plaintiff. 3. The plaintiff Phekani filed a suit for cancellation of will deed dated 29.11.1984. The plaint allegations were that the plaintiff Phekani was the child of Sri Gajadhar and Aliyari. After the mother Aliyari died Gajadhar married a second time to Sugani alias Ramdei who already had a minor daughter by the name of Rajwanti. These proceedings started between Phekni and Rajwanti and the appellants are the heirs of Phekani. It is stated that Gajadhar had no issue from his second wife Sugani alias Ramdei and his son Ram Dularey had died during his life time. He is alleged to have executed the will deed in favour of the defendant Rajwanti and hence the suit. The Trial Court upon evidence led by the parties cancelled the will deed dated 29.11.1984 whereupon the defendant Rajwanti filed the first appeal. The first appellate Court while considering the appeal recorded a finding on the marriage of Sri Gajadhar and Sugani and held that with the enforcement of the Act of 1955 their marriage was a valid marriage. Having recorded the said finding the first appellate Court found that the plaintiff Phekani was not recorded in the revenue records and was seeking cancellation of the will deed. It was of the opinion that the plaintiff ought to first get a declaration of her title and interest from the revenue Court and thereafter she could be competent to challenge the will deed relating to the land in question because prior to such declaration of the plaintiffs interest and rights were under a cloud and hence held that the suit at the instance of the plaintiff Phekani for cancellation of the will deed was not maintainable before the Civil Court. 4. 4. Sri R.N. Singh learned counsel for the plaintiff appellant has relied upon a decision in the case of Athmanathaswami Devasthanam v. K. Gopalaswami Ayyangar, AIR 1965 SC 338 and places reliance on paragraph 13 therein. Paragraph 13 is quoted here under : "The last point urged is that when the Civil Court had no jurisdiction over the suit, the High Court could not have dealt with the cross-objection filed by the appellant with respect to the adjustment of certain amount paid by the respondent. This contention is correct. When the Court had no jurisdiction over the subject-matter of the suit it cannot decide any question on merits. It can simply decide on the question of jurisdiction and coming to the conclusion that it had no jurisdiction over the matter had to return the plaint." 5. From the said decision it appears that when the Civil Court has no, jurisdiction over the suit it cannot decide any question on merits but it can decide only the question of jurisdiction and if it comes to a conclusion that it had no jurisdiction over the matter it had to return the plaint. According to Sri Singh when the first appellate Court found that the Civil Court had no jurisdiction for want of any interest of the plaintiff in the land in question due to absence of any revenue entry in her favour the first appellate Court rightly held that it had no jurisdiction to entertain the suit and hence in view of the provisions of Order VII Rule 10, CPC it ought to have returned the plaint for presentation before the competent Court. He therefore submits that the dismissal of the suit of the plaintiff by deciding the dispute between the parties on merits and then holding that the Civil Court had no jurisdiction is an error apparent committed by the first appellate Court. 6. At the time when this appeal was admitted substantial questons of law had been framed. (1) Whether the suit was barred under Section 49 of the U.P. Consolidation of Holdings Act? (2) Whether the suit for cancellation of registered will could be entertained by the Civil Court or its jurisdiction was barred. (3) Whether the lower appellate Court was justified in not returning the plaint for presentation before the proper Court after finding that the Civil Court has no jurisdiction to entertain the same? (2) Whether the suit for cancellation of registered will could be entertained by the Civil Court or its jurisdiction was barred. (3) Whether the lower appellate Court was justified in not returning the plaint for presentation before the proper Court after finding that the Civil Court has no jurisdiction to entertain the same? (4) Whether the finding of the lower appellate Court reversing the finding of the Trial Court regarding the marriage between Smt. Saguni and Gajadhar is erroneous and whether the lower appellate Court has ignored the material pleadings and evidence on record? 7. According to him the finding of fact on the merits of the issue between the parties regarding marriage of Gajadhar with Sugani could not be recorded once it held that the Civil Courts have no jurisdiction to entertain the suit for cancellation of the will deed for the aforesaid reasons. 8. Sri S.K. Verma learned counsel appearing for the defendant has placed reliance on a decision of this Court in the case of Ram Bali and others v. Jaipal and others, AIR 1978 All 514 and states that the question whether the plaint ought to be returned for presentation to the Court having jurisdiction to entertain the suit or the suit should be dismissed was a matter of discretion of the Civil Court because the plaintiff had himself filed the suit before the Civil Court. 9. He has further relied upon a decision in the case of Lal Bahadur Singh and another v. Bagesara and others, AIR 1984 All 231 to state that when the Civil Court was deciding the question of jurisdiction on the plea that the Revenue entry was incorrect only return of plaint for want of jurisdiction is the proper course. He states that if the question of jurisdiction depends upon other question on merits then the Court has a discretion either to dismiss the suit after recording a finding that it has no jurisdiction and may in appropriate cases also direct return of the plaint without dismissing the suit. 10. He has also placed reliance on a decision of this Court in Rasool Ahmad v. Beni Prasad and others, AIR 1965 All 514 and relied on paragraph 12 therein. In the said case the learned Single Judge placed reliance upon a decision of a Full Bench of this Court. 10. He has also placed reliance on a decision of this Court in Rasool Ahmad v. Beni Prasad and others, AIR 1965 All 514 and relied on paragraph 12 therein. In the said case the learned Single Judge placed reliance upon a decision of a Full Bench of this Court. Paragraph 12 is quoted hereunder : "What remains to be considered is whether the suits should be dismissed or the plaints should be returned for presentation to the proper Court. The course to be adopted in cases of this kind has been laid down in the majority judgment of the Full Bench in Mst. Ananti’s case, AIR 1930 All 193 (supra) as follows : “Where it is found, on the allegations made in the plaint, that the suit is cognizable by the Court, it will have to proceed to find whether the facts alleged in the plaint are established or not. It is found on a trial on the merits so far as this issue of jurisdiction goes, that the facts alleged by the plaintiff are not true and the facts alleged by the defendant are true, and that the case is not cognizable by the Court, there will be two kinds of orders to be passed. If the jurisdiction is only one relating to territorial limits, or pecuniary limits, the plaint will be ordered to be returned for presentation to the proper Court. If, on the other hand, it is found, having regard to the nature of the suit, it is not cognizable by the class of the Court to which the Court belongs, the plaintiff’s suit will have to be dismissed in its entirety. The reason will be that on the unamended plaint the Revenue Court would have no jurisdiction to hear this suit." To the same effect are the observations of Desai, J. (As he then was) in Dwarka v. Jwala Singh, 1958 All WR 21, where after referring to the cases in which a similar situation arose his Lordship stated : "In most of these cases it was assumed that the plaint in the existing form could be presented before a revenue Court and the question whether a plaint which in its existing form cannot be entertained by a Revenue Court must still be returned by the Civil Court for presentation to a Revenue Court, was not discussed. They dealt with suits which should have been filed in a revenue Court but were filed in a Civil Court; apparently the plaints in those suits were such as should have been presented before a revenue Court and not before a Civil Court. The plaint in the present case could not be presented before a revenue Court; it could be presented before a Civil Court but the jurisdiction of a Civil Court is bared by Section 242, U.P. Tenancy Act. The present suits too are barred by Section 242 of the Act but the plaintiffs of these suits like the plaint in the case in which the above observations were made, are not such as may be presented before the revenue Court in the share in which they have been framed. They cannot, therefore, be directed to be returned for presentation to the Revenue Court and the suits have to be dismissed." 11. He submits that the plaint as filed by the plaintiff before the Civil Court was for cancellation of the will deed and no relief was claimed for a declaration of his title. According to him when the plaintiff was not recorded in the revenue records he could not maintain the suit for cancellation of the will deed. He therefore states that if the plaint as it is and unamended is returned to the plaintiff such a plaint would not be maintainable before the revenue Court unless the plaint seeks a declaration of his rights and title under the relevant provisions of the Act. He has also referred to the amended provisions of Section 331 (1-A) of the U.P. Zamindari Abolition and Land Reforms Act to state that when the Civil Court had no jurisdiction with respect to the suit but exercised jurisdiction with respect thereto the appellate Court or the revisional Court would not entertain such appeal or revision 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 of the issues. He submits that the plaintiff had himself filed the suit before the Civil Court and there was no objection taken with respect to the jurisdiction of the Civil Courts and therefore by virtue of the provisions of Section 331 (1-A) of the Act the first appellate Court rightly dismissed the suit on the ground of lack of jurisdiction and there was no occasion for the first appellate Court to return the plaint for presentation before the competent Court. According to him the jurisdiction in the present case depended upon rights of Sri Gajadhar and Sugani and therefore it was necessary for the fIrst appellate Court to record its finding on the relationship of Sri Gajadhar and Sugani and once it found that the marriage was valid it rightly dismissed the suit of the plaintiff for want of jurisdiction. Therefore the first appellate Court was not required to return the plaint to the plaintiff. 12. Having considered the submission of learned counsel for the parties and gone through the decisions cited by them it will be seen that the first appellate Court had decided two issues, the first was whether Sugani alias Ramdei was the wife of Sri Gajadhar and the second was that the suit for cancellation of will was not a simplicitor suit for cancellation but it was for a declaration of the plaintiffs right and title over the properties involved in the will. The Court having found that Sri Gajadhar and Sugani were validly married proceeded to decide the question of jurisdiction of the Civil Court and found that the plaintiff never made any attempt to get her name recorded in the revenue records whereas the second wife of Sri Gajadhar namely Sugani was duly recorded in the revenue records. It therefore held against the plaintiff and found that the plaintiffs interest over the property in question being under a cloud it required to first get a declaration which could not be granted by the Civil Court with respect to the property in question. It therefore held against the plaintiff and found that the plaintiffs interest over the property in question being under a cloud it required to first get a declaration which could not be granted by the Civil Court with respect to the property in question. It will be seen from the aforesaid finding of the first appellate Court that the question of jurisdiction clearly depended upon status of Smt. Sugani the second wife of Sri Gajadhar whose name was duly recorded in the revenue records and the plaintiff claiming interest in the property in question was neither recorded in the revenue records nor the will bequeathed any property upon the plaintiff namely Phekani. Therefore when the Civil Court was deciding the question of jurisdiction relating to a suit for cancellation of will deed it had to record its finding on merits of a question having a direct bearing and on which the jurisdiction depended. Unless such status of the parties was decided the question of jurisdiction could not be decided by the Civil Court inasmuch as the suit was for cancellation of the will deed and in case the plaintiff was recorded over the revenue records or had any evidence to establish her interest or title the suit would be maintainable before the Civil Court. 13. From the aforesaid decision it appears that if the question of jurisdiction is only one relating to territorial limits or pecuniary limits the plaint will be ordered to be returned for presentation to the proper Court. If on the other hand it is found having regard to the nature of the suit that it is not cognizable by the class of the Court to which the Court belongs, the plaintiffs suit will have to be dismissed in its entirety the reason being that on the unamended plaint the revenue Court would also have no jurisdiction to hear the suit. 14. The Full Bench decision referred to above had clearly held that when the objection relates to territorial limits or pecuniary limits or the class of Courts where the suit is filed the proper course would have been to return the plaint for presentation before the appropriate Court. 14. The Full Bench decision referred to above had clearly held that when the objection relates to territorial limits or pecuniary limits or the class of Courts where the suit is filed the proper course would have been to return the plaint for presentation before the appropriate Court. The discretion of the Civil Court referred to by the Full Bench is when a plaintiff files a suit before a Civil Court and that Civil Court is not competent on the basis of the averments made in the plaint to entertain the suit for the reason of its territorial limits or pecuniary limits or the class of Court in the Civil Court it can return the plaint for presentation before the proper Court. On the other hand if it is found that the suit is not cognizable by the class of Courts to which the Court belongs and the plaint as it is, is also not entertainable before another class of Courts (Revenue Court) the plaintiff’s suit will have to be dismissed in its entirety. It is in the first circumstance that discretion had been provided to the Courts either to dismiss the suit or to return the plaint for presentation before the appropriate Court. 15. The present case falls in the second category where the first appellate Court upon deciding an issue between the parties about their status which question had a direct bearing on the question of jurisdiction has found that the class of Courts in the Civil Court would not have jurisdiction to entertain the suit. It was not the case where the territorial limits or the pecuniary limits or the class of the Court within Civil Court was involved. It was a case where cancellation of the will deed at the instance of a plaintiff who was not recorded in the revenue records and had not filed any evidence or substantial evidence to prove an interest in the property that the Civil Court held that the class of Civil Courts had no jurisdiction because the plaintiffs interest and title was under a cloud and it required a declaration from the competent Court. Therefore under these circumstances the discretion was exercised by the Civil Court when the first appellate Court dismissed the suit of the plaintiff on the issue of lack of jurisdiction and did not return the plaint for presentation before the competent Court because even the plaint as it stood for cancellation of a will deed could not be entertained by the Revenue Court. 16. The decision cited by Sri R.N. Singh in the case of Athmanathaswami Devasthanam (supra) relates to a case where the suit was filed for recovery of damages for use and occupation of the land. The respondent therein was given possession of the land by the previous trustees of the Devasthanam trust and he started claiming acquisition of the status of ryot under Section 3(15) of the Madras Estates Land Act and acquired permanent rights of occupancy under Section 6 of the said Act. In appeal the High Court disagreed with the Trial Court and found that the suit as presented could be instituted only in the revenue Court and Civil Court had no jurisdiction to entertain the same and therefore it ordered the return of the plaint for presentation to the proper Court. The Hon’ble Supreme Court was considering such a dispute and held that when the Court has no jurisdiction over the subject-matter of the suit it cannot decide any question on merits. The question that can be decided is only a question of jurisdiction and if it comes a conclusion that it had no jurisdiction over the matter it had to return the plaint which was on the plain averments made therein cognizable by another Court competent to entertain the suit. 17. The decisions cited on behalf of the respondents is with respect to the two circumstances when the Court has to return a plaint for presentation or exercise its discretion to dissmis the suit on the ground of having no jurisdiction. The present case is one of the second category where the question of jurisdiction depends upon the averments in the plaint and other questions on merit and the Court proceeded to decide the other issue relating to the claim of the plaintiff itself as not maintainable before the Civil Court due to reasons given therein and when the plaint as such could not be maintainable before the Revenue Court. 18. 18. Once having decided the locus of the plaintiff Phekani in relation to the property and relationship of Gajadhar and Smt. Sugani it found that the suit for cancellation of the will filed by the plaintiff was not maintainable before the Civil Court because the plaintiff first required a declaration of her interest which was possible only by the Revenue Courts. The first appellate Court dismissed the suit in toto and did not order return of the plaint. It has therefore to be seen whether the plaint ought to have been returned under Order VII Rule 10, CPC in the facts and circumstances or the discretion exercised by the first appellate Court by dismissing the suit in toto without directing return of plaint is proper or not. 19. As has already been indicated above there are two categories of cases when a jurisdictional issue is involved and the Courts have to decide the same on the facts averred in the plaint. The discretion is only in the second category and in case the plaint allegations are such as falls in the second category where no issue of territorial limits or pecuniary limits or class of Courts within the Civil Courts is concerned the Court is free to exercise its discretion. Therefore when in the present case there was no issue of territorial limits or pecuniary limits or the class of Courts in the heirarchy of Civil Courts where the plaint could be maintainable the issue falls squarely where the Court has to consider the question of its jurisdiction on the averments in the plaint only after deciding the competence of the plaintiff to maintain the suit. This was a suit for cancellation of the will deed by the plaintiff who was not recorded in the revenue records nor had filed any substantial evidence to indicate any interest in the property in question. Therefore the plaintiff required to get a declaration of her title and remove the cloud over her relating to any right, title or interest in the property in question. Hence the plaint as it stood could not be returned since it would not be cognizable by the revenue Court. 20. In view of the aforesaid circumstance the substantial question of law framed in this appeal as substantial question of law Nos. Hence the plaint as it stood could not be returned since it would not be cognizable by the revenue Court. 20. In view of the aforesaid circumstance the substantial question of law framed in this appeal as substantial question of law Nos. 2 and 3 are decided in negative and it is held that the first appellate Court has exercised its discretion in the facts and circumstances of the case which falls in the second category and the decision cited on behalf of the plaintiff appellants in the case of Athmanathaswami Devasthanam (supra) does not apply in the facts and circumstances of this case because in that case the plaint as it stood was maintainable before another Court. 21. Learned counsel for the parties have not pressed the question of bar of the suit under Section 49 of the U.P. Consolidation of Holdings Act nor any submissions have been advanced on the said question of law. 22. In so far as the fourth substantial question of law is concerned it relates to reversing the finding of the Trial Court regarding marriage between Smt. Sugani and Gajadhar. As has already been mentioned above the jurisdiction of a suit for cancellation of will deed before the Civil Court depended upon the locus of the plaintiff who was not recorded in the revenue records and the finding was with relation to the second marriage of Gajadhar with Sugani who was recorded in the revenue record. Therefore in order to decide whether the Civil Court had jurisdiction to entertain the suit it was incumbent upon it to decide an issue of fact. An issue of fact cannot be decided by a Court if it has no jurisdiction territorial or pecuniary but the suit is maintainable before another competent Court either in the same class of Courts or other class of Courts. An issue of fact cannot be decided by a Court if it has no jurisdiction territorial or pecuniary but the suit is maintainable before another competent Court either in the same class of Courts or other class of Courts. When a plaint is not entertainable in the Revenue Court, like a plaint for cancellation of a will deed, and the Civil Court cannot entertain such a suit on the civil side for the reason of incompetency of the plaintiff to maintain such a suit, then a decision on such an issue that relates directly to jurisdiction of the class of Civil Courts and competency of the plaintiff to maintain the suit even before a revenue Court cannot be said to be illegal or that the Court could not decide such an issue affirmed by one party and denied by the other. Therefore when the first appellate Court has reversed the finding on the issue of marriage between Gajadhar and Smt. Sugani it cannot be said that it has committed an illegality in doing the same. Moreover in this second appeal further evidence on the said issue is neither permissible nor has been brought on record. Therefore the findings of the first appellate Court stands confirmed. 23. The second appeal is accordingly dismissed. 24. No order is passed as to costs. ————