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2010 DIGILAW 2149 (ALL)

TARA CHAND v. 12TH A. D. J. , GHAZIABAD

2010-07-22

SANJAY MISRA

body2010
JUDGMENT Hon’ble Sanjay Misra, J.—Heard Sri Santosh Kumar, learned counsel for the petitioners. 2. The cause list has been revised. None appears on behalf of the contesting-respondent. Counter-affidavit on behalf of the contesting-respondent and rejoinder affidavit are available on record. 3. The petitioners claim to be two out of four sons of Respondent No. 5 Pooran and are aggrieved by the order dated 18.11.1995 (Annexure No. 4 to the writ petition) whereby the Revisional Court has allowed the revision of the Respondent No. 3 Jai Singh and held that the suit filed by the petitioners for cancellation of the sale-deed dated 10.7.1991 and other reliefs was not maintainable before the Civil Court in view of the bar under Section 331 of the U.P.Z.A. & L.R. Act. 4. Sri Santosh Kumar has submitted that the land in question was agricultural ancestral Sir and Khudkast of the petitioners as also their brother Respondent No. 4 namely Rajendra alongwith their father namely Pooran Respondent No. 5. They state that they were born much before the date of vesting and as such they inherited equal rights alongwith Pooran their father. According to the petitioners Respondents No. 4 and 5 in collusion with each other and with Respondent No. 3 Jai Singh got the sale-deed dated 10.7.1991 executed with respect to the property in question from Pooran (Respondent No. 5). According to them the said sale-deed could not be executed by Pooran, particularly, because the petitioners had half share in the land in question by virtue of their having rights of ownership alongwith their father Pooran in the Sir and Khudkast. The petitioners allege to have filed a Suit No. 870 of 1991 in the Court of Munsif, Ghaziabad for cancellation of the sale-deed dated 10.7.1991. The Trial Court framed various issues, however, it took up Issue No. 3 as to whether the Suit was barred under Section 331 of the U.P.Z.A & L.R. Act as a preliminary issue and by the order dated 20.1.1995 decided the same in favour of the petitioners (plaintiffs) holding that the suit was not barred by Section 331 of the U.P.Z.A. & L.R. Act. 5. 5. According to Sri Santosh Kumar the Respondent No. 3 Jai Singh being aggrieved by the order of the Trial Court preferred a Revision No. 69 of 1995 before the Court of District Judge, who by means of the impugned order dated 18.11.1995 has reversed the decision of the Trial Court and held that the suit was clearly barred by Section 331 of the U.P.Z.A. & L.R. Act. Sri Santosh Kumar has assailed the said judgment by submitting that the suit was filed for cancellation of the sale-deed to the extent of half share belonging to the petitioners/plaintiffs and, therefore, only the Civil Court had jurisdiction to cancel the sale-deed and the suit was rightly filed. He submits that the Revisional Court has committed an error inasmuch as the petitioners were owners of half share of the agricultural land and hence required no further declaration of their title. Having said so Sri Santosh Kumar submits that the decision in the case of ‘Ram Padarath v. 2nd Additional District Judge and others’, 1989(1) AWC 290, would be applicable since the plaintiffs were owner of half share in the property in question whereof the sale-deed had been executed. According to him when the petitioners were owners of half share in the land in question the sale-deed to that extent required to be cancelled and no declaration of their title was required by the petitioners from the Revenue Court. 6. Having considered the submission of learned counsel for the petitioners and perused the record, it is quite apparent from the impugned order that the petitioners/plaintiffs had sought relief of cancellation of sale-deed dated 10.7.1991 to the extent of half portion of the agricultural land before the Civil Court. The petitioners claim to be the owner of half portion alongwith their father Pooran who was the vendor of the sale-deed, and therefore, the petitioners required no further declaration of their title and hence it could not be held that the suit before the Civil Court was barred under Section 331 of the Act. 7. In the case of Ram Padarath (supra) it was clearly held as quoted here under : “We are of the view that the case of Indra Deo v. Smt. Ram Piari, 1982(8) ALR 517 has been correctly decided and the said decisioin requires no consideration, while the Division Bench case, Dr. 7. In the case of Ram Padarath (supra) it was clearly held as quoted here under : “We are of the view that the case of Indra Deo v. Smt. Ram Piari, 1982(8) ALR 517 has been correctly decided and the said decisioin requires no consideration, while the Division Bench case, Dr. Ayodhya Prasad v. Gangotri, 1981 AWC 469, 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 surplusage 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.” 8. In the absence of any entry in the revenue records the plaintiff would require an adjudication of his interest in the property in question and that would be the primary declaration before the ancillary relief can be granted. In case a sale-deed is pleaded to be null and void it can be ignored by the Revenue Courts, if the Revenue Court finds that the plaintiff is owner of the property in question and relief of declaration with consequential relief can be granted. In the absence of such prima-facie evidence of ownership mere pleading that the plaintiffs are owners of half portion with their father on the rights accrued to them after the date of vesting would not bring the pleading at par with an adjudication of their ownership, more particularly, when they are not recorded in the revenue records nor there is any other evidence to show that they have been owners of the portion claimed by them. The Revisional Court has considered the decision of the full Bench in Ram Padarath’s case and has held that the plaintiffs apart from making an allegation in the plaint that they are owners of half portion of the land in question have not proved it by any evidence. Even the claim of title after the date of vesting required a declaration since the father was recorded alone in the revenue records. 9. In view of the aforesaid finding recorded by the Revisional Court it comes to light that the claim of the petitioners to be owner of half share over the land in question is not based on any revenue entry or an order of adjudication but it is a mere plea. This is more so because if the plaintiffs have not obtained a declaration of their title of half share of the land in question they cannot maintain a Civil Suit for cancellation of a sale-deed executed by a duly recorded owner in the revenue records. The Revenue Court has jurisdiction to grant such relief relating to agricultural land inasmuch as if it holds that the petitioners are owners of half share in the property in question it can grant the ancillary relief to the petitioners. 10. True it is that mutation of name in the Revenue Records is not an adjudication of title, but if the entry in the Revenue Records is not at all in dispute then it is an evidence of title. But where the entry in the Revenue Records is disputed then such entry cannot be relied upon as the sole and conclusive evidence of title. The person would then have to get a declaration of his title from the competent Court. Mutation proceedings are summary in nature and title dispute cannot be decided in these summary proceedings. 11. Where there is an entry in the Revenue Records relating to agricultural land made under orders passed in mutation proceedings the persons interest in the land is on some legal basis pleaded by him before the mutation authorities whereupon such orders for mutation were passed. But these orders are not such as can be said to have adjudicated the title of the person. 12. A stranger cannot maintain a suit for cancellation of sale-deed of an agricultural land. He has to show that he has some interest therein. But these orders are not such as can be said to have adjudicated the title of the person. 12. A stranger cannot maintain a suit for cancellation of sale-deed of an agricultural land. He has to show that he has some interest therein. A Revenue Entry shows that his name was mutated on some basis and therefore prima facie he had an interest. That interest can entitle him to maintain a suit filed by him for cancellation of a sale-deed. But where his name is not entered in the Revenue Record then he has to first get a declaration of his interest in the agricultural land. That declaration can be made only by a competent Revenue Court. 13. Learned counsel for the petitioners has placed reliance on a decision of the Hon’ble Supreme Court in the case of Smt. Bismillah v. Janeshwar Prasad and others, 1990(1) AWC 359 (SC). The aforesaid decision in the case Smt. Bismillah has taken into consideration the full Bench decision of this Court in the case of Ram Padarath (supra) and has held that the suit for cancellation of sale-deed filed by Smt. Bismillah would be maintainable and be covered by the full Bench decision and has proceeded to allow the appeal. The facts in the case of Smt. Bismillah were that she had filed a suit for cancellation of the sale-deed by claiming that she was the only daughter of Nawab Nurul Rahman Khan and inherited his estate. She appointed the Respondent Nos. 1 to 3 as agents to manage the estate under an instrument of agency dated 17.4.1969. The said document was drafted in Hindi, a language which was not known to Smt. Bismillah, however, it was later discovered by her that it contained an unauthorized clause empowering the sale of properties in favour of other respondents who were close relatives and confidents of the agents. 14. Under these circumstances Smt. Bismillah sought cancellation of the sale-deed executed by her agents and further sought delivery of possession and rendition of accounts of incomes and profits. The High Court in Appeal held that a plea of nullity taken by the plaintiff for cancellation of the sale-deed was simply illusory and such a relief was neither necessary nor appropriate in the context of a plea of nullity. The High Court in Appeal held that a plea of nullity taken by the plaintiff for cancellation of the sale-deed was simply illusory and such a relief was neither necessary nor appropriate in the context of a plea of nullity. The Hon’ble Supreme Court in the Appeal of Smt. Bismillah considered the full Bench decision of this Court and found that it was a case that the agents who had executed the sale-deed under power of their agency were not conferred right, title and interest. Smt. Bismillah had given them the agency to execute the sale-deeds which was not a devolution of title on the said agents. Consequently, it was held that the High Court has committed an error in holding that the suit for cancellation of sale-deed before the Civil Court was not maintainable. The Hon’ble Supreme Court, therefore, set aside the order of the High Court and restored the decision of the Trial Court on the preliminary issue by remitting the matter to the Trial Court for disposal. 15. From the aforesaid decision of the Hon’ble Supreme Court it is quite clear that the facts in the case of Smt. Bismillah were quite different. The suit for cancellation was filed by the owner against her agents and their purchasers hence it was held to be maintainable. In the present case the suit has been filed by the sons against their father who had executed the sale-deed. Since they claim to have half share in the property in question and no such declaration has been obtained by them even after the date of vesting and when they are not recorded as tenure-holders or owners of the agricultural land they ought to have sought a declaration of their rights. Admittedly their father Pooran was alone recorded as owner in the revenue records. They are not entered in the revenue records over the agricultural land, therefore, the decision of the Revisional Court based on the law laid down by the Full Bench in Ram Padarath (supra) does not suffer from any error in law. 16. The impugned order does not require any interference. The writ petition has no merit, hence dismissed. No order is passed as to costs. ————