Research › Search › Judgment

Uttarakhand High Court · body

2013 DIGILAW 26 (UTT)

JITAR SINGH v. GABAR SINGH NEGI

2013-01-16

B.S.VERMA

body2013
JUDGMENT Hon’ble B.S. Verma, J. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the impugned judgment and order dated 19-5-2009 passed by the Civil Judge (Junior Division) Haridwar whereby the learned trial Court has decided preliminary Issue No.7 holding that the civil Court has jurisdiction to try the suit as well as the order dated 15-12-2010, whereby the revision of the petitioner-defendant, preferred against the order dated 19-5-2009, has been dismissed by the revisional Court thereby upholding the order passed under revision. 2. Briefly stated the facts giving rise to the present writ petition are that the plaintiff-respondent herein filed a suit for cancellation of sale deed dated 23-4-1990, which was registered as Civil Suit No. 424 of 2006, Gabar Singh Negi Vs. Jitar Singh before the trial Court, on the ground that he purchased the land of plot no. 203/3 M. from Atru by way of a sale deed dated 8-1-1986, which was duly registered in the office of the Sub Registrar. 3. According to the plaintiff-respondent during the consolidation operations, the plot no. 203/3 M. had been changed to its new plot number 1038. It was also alleged by the plaintiff that he could not get mutated his name on the basis of sale deed dated 8-1-1986 but when he came to know regarding the sale deed of the petitioner-defendant dated 23-4-1990, which was executed by Atru in favour of the defendant-petitioner, he moved a mutation application and his mutation application was allowed on 10-2-2000. 4. According to the petitioner, the plaintiff-respondent got the knowledge of the sale deed, which was executed by Atru in favour of the defendant in the year 1999 but the suit for cancellation of sale deed was filed in the court on 4-12-2006. 5. The petitioner-defendant filed his written statement in the suit and contended that the plaintiff’s name is not recorded in the revenue record, but the name of Atru son of Tulsi was recorded as Bhumidhar with transferable rights; that plot no. 1038 was purchased by the petitioner-defendant by sale deed dated 23-4-1990and during consolidation proceeding his rights have been determined by the consolidation court. Since the name of the plaintiff-respondent is not recorded, therefore, the suit is barred by Section 331 of the U.P.Z.A and L.R. Act (for short the Act). 6. 1038 was purchased by the petitioner-defendant by sale deed dated 23-4-1990and during consolidation proceeding his rights have been determined by the consolidation court. Since the name of the plaintiff-respondent is not recorded, therefore, the suit is barred by Section 331 of the U.P.Z.A and L.R. Act (for short the Act). 6. It is contended by the petitioner that the learned trial Court has misinterpreted the provision of Section 331 of the Act and has wrongly place reliance upon the judgment of Allahabad High Court in the case of Ram Chandra and others Vs. Smt. Savitri Devi [1995 R.D., Allahabad, page 289] wherein it has been held that where the sale deed had been executed by an imposter, provisions of Section 331 of the Act would not be applicable and the civil Court is competent to try the suit for cancellation of sale deed. In view of the said case-law, the Issue No. 7 on the point of jurisdiction has been decided in favour of the plaintiff. The learned revisional Court has also dismissed the revision vide order dated 15-12-2010. The revisional Court in its order has held in paragraph no. 6 of the judgment that the land in question is agricultural land and question of title is involved in the case. Even then the learned revisional Court has held that the civil Court has jurisdiction to hear the suit. 7. It was argued before the revisional Court on behalf of the plaintiff-respondent that his name was recorded on the basis of the sale deed and the name of the revisionist-defendant had been expunged. In reply, it was contended on behalf of the defendant-petitioner that recall application was filed in Mutation Case No. 54 of 1997, which was allowed by Naib Tehsildar on 3-11-2007 and the order dated 10-7-2000 has already been set aside, thereby the mutation order, which was made in favour of the plaintiff-respondent was set aside, therefore, the revisional Court has also held that the name of defendant-revisionist is existing in the revenue record and in the last it was held by the revisional Court that since the suit has been filed for cancellation of sale deed, therefore, in the opinion of revisional Court the Civil Court is competent to hear the suit in respect of the land in question. 8. Further aggrieved by the judgment and order dated 15-12-2010, the petitioner has preferred the present writ petition. 8. Further aggrieved by the judgment and order dated 15-12-2010, the petitioner has preferred the present writ petition. 9. This writ petition has been filed mainly on the ground that the learned trial Court as well as the revisional Court has committed a manifest error of law in not considering the fact that the land plot no. 1038 was purchased by the defendant-petitioner from Atru by registered sale deed dated 23-4-1990, whose name was recorded in the revenue record as Bhumidhar with transferable right and that no application for mutation was made by the plaintiff-respondent on the basis of the earlier sale deed dated 8-1-1986, which was also executed by Atru in favour of the plaintiff of plot no. 203/3 M. of village Rasulpur Mithiberi, Pargana Nazibabad, Tehsil Haridwar. The sale deed executed in favour of the petitioner-defendant has been annexed as Annexure-2 to the writ petition. The petitioner has annexed CH-45 as Annexure- 1 to the writ petition, wherein the name of Atru Son of Tulsi is recorded over plot no. 1038, area 1Bigha, 4 Biswa, 01 Biswansi as Bhumidhar with transferable rights. 10. The petitioner has also annexed copy of Khatauni for 1398 to 1403 Fasli, wherein the name of the petitioner-defendant was recorded on the basis of sale deed in Mutation Case No. 107 on 11-3-1991. Copy of Khasra pertaining to 1408 Fasli has also been annexed as Annexure-4 Collectively and copy of plaint has been annexed as Annexure-5 and that of written statement as Annexure-6 to the writ petition. 11. Counter affidavit has been filed by the plaintiff-respondent. In paragraph no. 2, it is stated that the Naib Tehsildar Ferupur had ordered to mutate the name of the respondent on the basis of sale deed dated 8-1-1986. It has been stated in para 6 of the counter affidavit that the plaintiff-respondent came to know about the sale deed of the present petitioner, which was registered on 23-4-1990 and then he filed an application for mutation on the basis of sale deed executed in his favour dated 8-1-1986 in the court of Naib Tehsildar Ferupur in Case No. 54 of 1996 and ultimately the name of the respondent was mutated in the revenue record. The respondent has annexed copy of mutation order as Annexure CA-2 to the counter affidavit. The respondent has annexed copy of mutation order as Annexure CA-2 to the counter affidavit. The respondent has also annexed copy of Khatauni pertaining to 1416 Fasli to 1421 Fasli, as Annexure CA-3 to the counter affidavit. 12. On the other hand, the petitioner has filed rejoinder affidavit. It has been stated in paragraph no. 4 of the rejoinder affidavit that the respondent has himself admitted in paragraph no. 4 of the counter affidavit that Atru S/O Tuli was recorded Bhumidhar with transferable rights in possession of plot no. 1038 measuring 1 Bigha, 4 Bishwa and 4 Bishwani, situated in village Rasulpur Mithiberi, Pargana and Tehsil Nazibabad, district Bijnor (now District Haridwar), therefore, the respondent has no right to challenge the sale deed dated 23-4-1990 of the petitioner. It has also been stated that the suit for cancellation of sale deed filed against the petitioner is not maintainable unless the right and title of the respondent is declared by competent court and that the said suit is barred by Section 331 of the Act. 13. I have heard learned counsel for the parties and perused the entire material placed before this Court including the orders impugned in the present writ petition. 14. Learned counsel for the petitioner has firstly contended that the learned trial Court has committed a manifest error of law in not considering the fact that the name of vendor Atru was recorded as Bhumidhar with transferable right, who had sold the land of plot no. 1038 by registered sale deed in favour of the plaintiff which was registered on 23-4-1990. It has also been contended that according to the own plaint-case of the plaintiff-respondent that after he came to know about the sale deed of the defendant-petitioner, he filed an application for mutation of his name on the basis of sale deed dated 8-1-1986 in the court of Naib Tehsildar, which was allowed on 10-7-2000, but the present suit for cancellation of sale deed has been filed as late as in the year 2006 much after expiry of the period of limitation. Learned counsel for the petitioner has also contended that since the mutation order passed in favour of the plaintiff-respondent has already been recalled on the application of the petitioner-defendant, therefore, as on today, the name of the plaintiff does not exists in the revenue records, therefore, unless the plaintiff-respondent gets his title declared under Section 229-B of the Z.A. and L.R. Act by the competent Court, no cause of action has arisen to the plaintiff for filing the suit for cancellation of sale deed of the petitioner. 15. In reply, the learned counsel for the respondent-plaintiff Mr. A.K.Sharma, Advocate, has submitted that the suit for cancellation of the sale-deed filed by the plaintiff is very much maintainable because no relief has been sought by the plaintiff, which could have only been granted by the Revenue Court. Learned counsel further contended that in the case at hand, the sale deed of the defendant-petitioner is itself void and not voidable, therefore, the suit for cancellation of sale deed is maintainable. 16. I have considered over the matter. 17. The Apex Court in the case of Ningawwa Vs. Byrappa [(1968) 2 SCR, 797=AIR 1968, Supreme Court, 956], wherein it has been observed as under: “The legal position will be diferent if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, while in the case of the latter, it is merely voidable….” 18. In the case at hand, the defendant-petitioner had purchased the land of plot no. 1038 from Atru son of Tulsi, who appears to have been recorded in the revenue records as Bhumidhar with transferable right. The petitioner has annexed copy of the sale deed registered on 23-4-1990 as Annexure-2 to the writ petition. From a bare perusal of this sale deed, it cannot be said at this stage that there was any misrepresentation as to the contents of the sale deed or with regard to the character of the document. The petitioner has annexed copy of the sale deed registered on 23-4-1990 as Annexure-2 to the writ petition. From a bare perusal of this sale deed, it cannot be said at this stage that there was any misrepresentation as to the contents of the sale deed or with regard to the character of the document. It is the positive case of the defendant-petitioner that Atru from whom the land in question was purchased by the petitioner, was entered in the revenue record as Bhumidhar with transferable right of the land of plot No. 1038 measuring 1 Bigha, 4 Biswa and 4 Biswansi situated in village Rasulpur Mithiberi, Tehsil Nazibabad. 19. Learned counsel for the respondent has further submitted that since the suit for cancellation of sale deed has been filed by the owner of the land in question, i.e. the plaintiff- respondent, therefore, the suit is maintainable in the civil Court. Learned counsel has placed reliance upon the case of Tara Chand and another Vs. 12th Addl. District Judge, Ghaziabad and others [2010 (111) R.D., Page 4]. In that case, Allahabad High Court has considered the provisions of Section 331 of the Act, wherein it has been inter alia held in paragraph no. 15 that “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.” 20. In the case at hand, it is an undisputed fact that as on today, the name of the plaintiff-respondent does not exist in the revenue record as Bhumidhar and as the plaintiff-respondent was admittedly not recorded as owner of plot no. 1038 in the revenue records at any point of time. In the case at hand, it is an undisputed fact that as on today, the name of the plaintiff-respondent does not exist in the revenue record as Bhumidhar and as the plaintiff-respondent was admittedly not recorded as owner of plot no. 1038 in the revenue records at any point of time. On the other hand the name of Atru was recorded as Bhumidhar in the revenue record of plot no. 1038 and the petitioner had purchased the land in question from the said Atru by registered sale deed therefore, the case law relied upon by the learned counsel for the plaintiff-respondent is of not help to him rather it indirectly supports the case of the petitioner. 21. In the case of Ram Padarath and others Vs. Second Add. District Judge Sultanpur and others [1989, R.D. Page 21 (Lucknow Bench, Full Bench)], it has been held that the 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 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. 22. The ratio of this judgment cannot be disputed. As discussed above, at this stage prima facie it cannot be said that the sale-deed executed in favour of the defendant-petitioner, which was registered on 23.4.1990 is a void document. 23. Learned counsel for the petitioner has lastly submitted that the suit filed by the plaintiff-respondent for cancellation of sale deed itself is barred by limitation because the plaintiff had knowledge of the sale deed in favour of the defendant since the year 1991 but the suit for cancellation of sale deed was filed as late as in the year, 2006. The defendant-petitioner has raised this plea in para 9 of the additional pleas of the written statement. The defendant-petitioner has raised this plea in para 9 of the additional pleas of the written statement. This aspect of the case shall be considered by the learned trial Court while deciding the suit on its own merits at appropriate stage. 24. While parting with the judgment, it is pertinent to mention here that in paragraph no. 6 of the writ petition, it has been specifically stated by the petitioner that he moved a recall application to recall the ex-parte order dated 10-7-2000 passed by Tehsildar Haridwar. The order was recalled by the Tehsildar concerned and the mutation case no. 54 of 1997 Gabar Vs. Atru is still pending in the Court of Tehsildar Haridwar. The respondent has annexed copy of Khatauni (Annexure CA-3 to the counter affidavit), which also shows that the restoration application of the petitioner was allowed and the mutation order in favour of the respondent dated 10.7.2000 was set aside. Thus, it is evident that after 3-11-2007, there is no entry in the revenue record in favour of the respondent-plaintiff in respect of the land in dispute. In this view of the matter, the plea raised in the plaint that the name of the plaintiff-respondent is continuing in the revenue record by order dated 10-7-2000 falls to the ground and the plaintiff-respondent cannot say as on today that he is a recorded tenure holder of the land in question. 25. For the reasons and discussions above, I am of the considered view that the learned trial Court has committed a manifest error of law in holding that the civil court has jurisdiction to try the suit without considering the provisions of Section 331 of the Act and also without taking into consideration the fact that the application moved by the defendant-petitioner to recall the order of mutation passed in favour of the plaintiff-respondent was allowed and the mutation case had been restored to its original number. In such circumstances, as on today, there exists no entry in favour of the plaintiff-petitioner in the revenue record. The finding recorded by the learned revisional Court is also perverse, whereby the revisional court, without considering the provisions of law referred to in the body of judgment, has opined that the civil Court has jurisdiction to try the suit. The writ petition therefore deserves to be allowed outright. 26. The writ petition is allowed. Costs easy. The finding recorded by the learned revisional Court is also perverse, whereby the revisional court, without considering the provisions of law referred to in the body of judgment, has opined that the civil Court has jurisdiction to try the suit. The writ petition therefore deserves to be allowed outright. 26. The writ petition is allowed. Costs easy. The orders impugned, passed by the two Courts below, are set aside. The matter is remanded to the trial Court to decide the Issue No.7 afresh in the light of the observations made in the body of the judgment and in accordance with law after considering the provisions of Section 331 of the Act. The learned trial Court shall also decide the question of limitation first whether the suit filed by the plaintiff is within time or not.