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2016 DIGILAW 2313 (ALL)

Mohd. Shafi v. Distt. Judge Balrampur

2016-07-05

DEVENDRA KUMAR UPADHYAYA

body2016
JUDGMENT Devendra Kumar Upadhyaya,J. This petition has been filed to assail the validity of judgment and order dated 18.01.2016, passed by the District Judge, Balrampur whereby revision petition filed by respondent no.2 against the order dated 22.05.2014, passed by the learned trial court holding therein that the suit filed by the respondent no.2 is barred by provision of Section 331 of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951 (for brevity 'Act'), has been allowed. 2. Heard learned counsel for petitioner and learned counsel for respondent no.2, who has lodged caveat. 3. The facts which gave rise to the present petition are that khasra plot no. 778, situate in village Mathura Kalan, Pargana and Tehsil Balrampur was recorded in the name of Sri Jiledar. A sale deed is said to have been executed on 24.07.2003 for a sale consideration of Rs.60,000/- in respect of house situated on an area of 342 sq. ft. which forms part of plot no.778. On the basis of said sale deed, name of the petitioner is said to have been mutated on the basis of an order passed by the competent revenue authority on 01.09.2003 in Mutation Case No. 1325. 4. It is noticeable that the alleged sale deed dated 24.07.2003 has not been executed by the recorded tenure holder-Sri Jiledar but by his wife Smt. Savitri Devi, according to whom Sri Jiledar is mentally retarded. Respondent no.2 filed a suit against the petitioner for possession and cancellation of sale deed dated 24.07.2003 executed by Smt Savitri Devi in favour of the petitioner. The plaint's allegation are that the plaintiff-respondent no.2 is in possession of the suit property on the basis of sale deed executed by the original owner of the property Sri Jiledar on 24.07.2003 for a sale consideration of Rs.50,000/- in favour of the plaintiff which was registered in the office of Sub-Registrar, Balrampur on 30.07.2003 and since then he is in possession of the suit property. Further averment has been made in the plaint that Smt. Savitri Devi, wife of Sri Jiledar is a very clever lady who executed the sale deed on 24.07.2003 in favour of the petitioner alleging herself to be guardian of Sri Jiledar who is said to be mentally retarded. The averment of the plaintiff in pith and substance is that Smt. Savitri Devi, wife of Sri Jiledar has fraudulently shown Sri Jiledar as mentally retarded. The averment of the plaintiff in pith and substance is that Smt. Savitri Devi, wife of Sri Jiledar has fraudulently shown Sri Jiledar as mentally retarded. In the plaint, it has further been pleaded that Sri Jiledar is a completely healthy person and he is not mentally retarded; rather he is a healthy person who understands and comprehends the things. Thus, the contention of the plaintiff is that by playing fraud a sale deed has been executed by Smt Savitri Devi, wife of Sri Jiledar who did not have any right to execute the sale deed. 5. Various issues were framed by learned trial court including the issue no.11. Issue no.11 framed by learned trial court was as to whether the suit filed by the plaintiff-respondent no.2 is barred by the provision of Section 331 of the Act. Learned trial court has accepted the plea raised by the defendant regarding non-maintainability of the suit on the ground of provisions contained in Section 331 of the Act. While arriving at such a conclusion, learned trial court in its order dated 22.05.2014 has observed that since name of the petitioner has been recorded in the revenue records and the name of plaintiff is not recorded, hence in such circumstances, it will be the revenue court which will have the jurisdiction to entertain the suit as the revenue court can grant declaration and thereafter decree the suit for possession by eviction of the defendant. 6. The plaintiff-respondent no.2 filed revision petition before the learned District Judge, who has allowed the revision petition holding therein that in the facts and circumstances of the case the suit filed by the plaintiff is triable by the civil court. It is this order passed by the revenue court dated 18.01.2016 which is under challenge in this petition. 7. Learned counsel for the petitioner has vehemently argued on the basis of various judgements cited including the judgement in the case of Ram Padarath and others vs. IInd Additional District Judge, Sultanpur and others, reported in 1989 Allahabad Civil Journal, page 1. 7. Learned counsel for the petitioner has vehemently argued on the basis of various judgements cited including the judgement in the case of Ram Padarath and others vs. IInd Additional District Judge, Sultanpur and others, reported in 1989 Allahabad Civil Journal, page 1. His submission is that since name of plaintiff-respondent no.2-Hanuman Prashad was not recorded in the revenue records as such any decree of possession in his favour can be granted only once declaration of his rights is made and such a declaration can only be made by the revenue courts and thus, the suit filed by the plaintiff was barred by Section 331 of the Act. 8. The bar on jurisdiction of civil court to try a suit for cancellation of sale deed executed in respect of agricultural land and for possession is a question which has engaged attention of this Court time and again. 9. In fact, the Full Bench of this Court in the case of Ram Padarath (supra) has clarified the law on this issue. The Full Bench has held that it is the cause of action which should determine the jurisdiction of the court to entertain a suit irrespective of the language used in the plaint or the relief claimed. The Full Bench has further held that ground on which the plaintiff files a suit in the court does not depend upon on the relief claimed; rather it is the pith and substance which is to be seen and not the language used which may have been so used to oust the jurisdiction of a particular court. Para 10 of the aforesaid judgement is quoted below: - '10. It is the real 'cause of action' which determines the jurisdiction of the court to entertain particular action notwithstanding the language used in the plaint or the relief claimed. The strength on which the plaintiff comes to the court does not depend upon the defence or relief claimed which could determine the forum for the entertainment of claim and grant or relief. It is the pith and substance which is to be seen and not the language used which may even have been so used to oust the jurisdiction of a particular court.' 10. It is the pith and substance which is to be seen and not the language used which may even have been so used to oust the jurisdiction of a particular court.' 10. Hon'ble Supreme Court in the case of Smt. Bismillah vs. Janeshwar Prasad and others, reported in (1990) 1 SCC 207 has held that exclusion of the jurisdiction of the civil court is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied. It has further been held that provision of a law which seeks to oust the jurisdiction of civil court needs to be strictly construed. In the said case, it has also been held that question of jurisdiction depends primarily upon the allegations of the plaint and not the merits or the result of the suit. It has further been held that what needs to be determined is the real substance of the case gathered by construing the case in the court. 11. In the case of Smt. Bismillah (supra) the trial court has held that jurisdiction of civil court was not barred on the ground of provision of Section 331 of the Act, however, the High Court reversed the finding of the trial court construing the pleading to amount to a plea of nullity of the sale deed and holding that the prayer for cancellation of sale deed was illusory and that such relief was neither necessary nor appropriate in the context of a plea of sale deed being nullity. The High Court in the said case further held that relief of possession though appearing to be a consequential relief was really the main relief and hence such relief would be granted by the revenue court. The Hon'ble Supreme Court did not approve the judgment of High Court in the case of Smt. Bismillah (supra) holding that the sale deed in question was required to be set-aside before the decree of possession could be granted. 12. Applying the aforesaid principles in the case of Smt. Bismillah (supra) what needs to be seen in this case is pith and substance of the pleading made by the plaintiff. In paras 2 and 3 of the plaint, it has been averred by the plaintiff that the sale deed in question was allegedly executed on 24.07.2003 showing original tenure holder Sri Jiledar to be mentally retarded. In paras 2 and 3 of the plaint, it has been averred by the plaintiff that the sale deed in question was allegedly executed on 24.07.2003 showing original tenure holder Sri Jiledar to be mentally retarded. The plaintiff has categorically denied the fact that Sri Jiledar is not mentally retarded, on the contrary it has been averred that he is mentally fit and a healthy person. The plea taken by the plaintiff in this case is not that the sale deed is a nullity and as such the same can be ignored. The revisional court can grant declaration of the right of the parties only if the sale deed in question is capable of being ignored. 13. Looking into the over all facts and circumstances of the case, I am of the considered opinion that relief of the possession cannot be granted unless and until the sale deed dated 24.07.2003 allegedly executed by Smt Savitri Devi in favour of the petitioner is cancelled. 14. The issue relating to ouster of jurisdiction of the civil court needs to be considered strictly. Since in this case plea of sale deed being a nullity is absent, the issue relating to its cancellation has to be gone into by the court concerned and as such the civil court will have the jurisdiction to entertain the suit filed by the plaintiff. 15. For the reasons and discussions made above, I do not find it a case fit for any interference in the order passed by the revisional court dated 18.01.2016 in Revision No. 42 of 2014; Hanuman Prasad vs. Mohd. Shafi. The petition is, thus, dismissed. 16. There will be no order as to costs.