Research › Search › Judgment

Uttarakhand High Court · body

2016 DIGILAW 548 (UTT)

S. C. Mathur v. Jitin Nikhanj

2016-09-06

SERVESH KUMAR GUPTA

body2016
JUDGMENT : Servesh Kumar Gupta, J. All these cases are being taken up together as these challenge to the same order dated 01.04.2016 of the Trial Judge rendered in two different parts. 2. Having heard learned counsels of either party, it transpires that an Original Suit No.117 of 2010 was pending adjudication, wherein the plaintiff Mr. Jitin Nikhanj sought the relief, inter alia, for cancellation of the Sale Deed dated 26.06.2006/registered on 01.08.2006, executed by Mr. Anil Srivastava (respondent no.2) in favour of Mr. S.C. Mathur (defendant no.1). 3. The counter claim was also filed by Mr. Anil Srivastava seeking cancellation of Sale Deed dated 07.03.2000, executed by Mr. Sarvjeet Singh Nikhanj (father) in favour of Mr. Jitin Nikhanj (own son). 4. It has not been disputed that the property was owned by Mr. Anil Srivastava, who executed a registered power of attorney on 28.11.1997 in favour of Mr. Sarvjeet Singh Nikhanj. On the strength of the power of attorney, Mr. Sarvjeet Singh Nikhanj executed the Sale Deed dated 07.03.2000 in favour of his son Mr. Jitin Nikhanj. 5. It has been in the averment that Mr. Anil Srivastava cancelled that power of attorney by way of sending a letter dated 05.12.1997 to Mr. Sarvjeet Singh Nikhanj and such letter was sent by post. 6. It is under dispute that whether such letter could ever be received by Mr. Sarvjeet Singh Nikhanj before executing the Sale Deed dated 07.03.2000 in favour of his son. Further, it is also legal controversy whether a registered power of attorney can be cancelled merely by sending a simple letter under the signature of its’ executor. 7. Since, Mr. Anil Srivastava executed a separate Sale Deed in favour of Mr. S.C. Mathur on 26.06.2006 (supra), hence on moving an application to the Revenue authorities, the name of Mr. S.C. Mathur was recorded without any service on Mr. Jitin Nikhanj. So, Mr. Jitin Nikhanj applied for cancellation of the name of Mr. S.C. Mathur from such records. 8. Further, it appears that the names of either parties were kept on changing in the Revenue records very frequently at the initiation of one against the other without having been that the matter heard ever sincerely on merits and that is why, the claim and counter claim have been filed for cancellation of the sale deeds executed by each other. 9. 9. The preliminary issue was raised by the defendants Mr. S.C. Mathur as well as Mr. Anil Srivastava, questioning the jurisdiction of the Civil Court in the matter. It was pleaded that the suit was barred under Order 7 Rule 11 CPC because the trial of such suit could not have been proceeded as barred by Section 331 of U.P.Z.A. & L.R. Act. 10. Learned Court below has passed impugned judgment deciding all the issues in favour of the plaintiffs on jurisdiction point to the effect that it is the only forum of Civil Court, which can appropriately adjudicate the controversy in the present matter, and not the Revenue Court. A number of precedents have been relied upon by learned Trial Judge and this Court would not burden its finding by reproducing all of them. 11. The premise of retaining the jurisdiction for adjudication by the Civil Judge was that since the theme of fraud, deceit and fabrication is in the pivot for cancellation of the sale deed, as averred by both the parties, hence, it can only be adjudicated by the Civil Court. Simply the entries in the Revenue records do not confer the title to the person, whose name is there. Suit of such nature is decided by the Civil Court and not by Revenue court. 12. This has been decided by Allahabad High Court as well, in the case of Smt. Mangli Devi vs. Kamlesh Kumar & Others, 2004 (96) RD 343. In case of “Horil Vs. Keshav and another”, reported in (2012) 5 SCC 525 , it was held by Hon’ble Apex Court that Revenue courts are neither equipped nor competent to effectively adjudicate on allegations of fraud that have overtones of criminality and the courts really skilled and experienced to try such issues are the courts constituted under the Code of Civil Procedure. 13. Learned counsel for the revisionist has heavily relied upon the judgment of the Hon’ble Apex Court in the case of “Kamla Prasad & others vs. Sri Krishna Kant Pathak & others”, reported in 2007 (2) Supreme 173 . In such judgment where plaintiff himself instituted a suit for cancellation of the sale deed executed by himself on the basis that there were certain other persons who were also the owners of the land, in question. In such judgment where plaintiff himself instituted a suit for cancellation of the sale deed executed by himself on the basis that there were certain other persons who were also the owners of the land, in question. Then, in such eventuality the Hon’ble Apex Court was of the view that since share of the plaintiff as well as certain other persons in the property, in question had to be settled, therefore, Civil Court ought not to have entertained such matter because the share of a particular individual or individuals in a agricultural land could have been settled and adjudicated only by the Revenue Court, and not by the Civil court. 14. Here the controversy is quite different. This is not a matter of deciding the shares in a property, but it is for the cancellation of sale deed, which was allegedly executed on the basis of fraud, deceit and fabrication as well. Therefore, simply on the basis of revenue entries, which have been changed very frequently on the initiation of one party at some moment and on the initiation of other party at another moment. Thus, the Civil Court cannot be devastated from adjudicating the matter. 15. Needless to say, criminal case has also cropped up between the parties on the question of same property and it has been highlighted during the course of arguments that such criminal trial is pending adjudication, wherein the charge-sheet has been submitted against Mr. S.C. Mathur and Mr. Anil Srivastava. 16. Learned counsel for the revisionist has argued that this power of attorney by Mr. Jitin Nikanjh in favour of Mr. Sunil Sarin was executed in New Delhi on 19.02.2009 and in paragraph 7 of the plaint, the plaintiff Mr. Jitin Nikanjh has pleaded that when on 19.02.2009, he came to know through his general power of attorney that Tehsildar, Vikas Nagar, by passing the order on 26.03.2007, has cancelled the name of plaintiff from the Revenue records, then how Mr. Sunil Sarin (general power of attorney) could have accepted this power of attorney sitting in Delhi on 19.02.2009 itself. This question can better be asked from Mr. Sarin while standing in the deposition box and probably it has not been asked. He would have been the best person to explain and clarify this anomaly (if any). If such question has not been put up from Mr. This question can better be asked from Mr. Sarin while standing in the deposition box and probably it has not been asked. He would have been the best person to explain and clarify this anomaly (if any). If such question has not been put up from Mr. Sarin, then the defendant will still have the liberty to move an application for the additional cross-examination on this point in the Court below. 17. Learned counsel for the revisionist has also highlighted that the area of the land, which has been disclosed in the sale deed dated 07.03.2000, is much higher than what has been in the power of attorney. For that too, he may put up the question from the plaintiff Mr. Jitin Nikhanj, who would be the best person to offer the answer. If Mr. Jitin Nikhanj is not produced for examination in the deposition box, then the defendant may urge for drawing the adverse inference against him on this score. 18. It is also very significant to note that Mr. Anil Srivastava has also filed counter claim in the same suit. So it is difficult to understand that when he is accepting the land, in question, under the jurisdiction of Civil Court for cancellation of the sale deed dated 07.03.2000, but he is arguing to preclude the selfsame court from adjudicating on the issue of cancellation of sale deed dated 26.06.2006. 19. Second part of the impugned judgment pertains to the suit valuation and payment of court fees for the relief sought in the suit and counter-claim, which have been confined under the issue nos.6, 7, 12 and 13, the adjudication wherefor has been challenged by way of filing the AO No.186 of 2016 and Civil Revision No.41 of 2016. 20. I do not find any infirmity in suit valuation as well as in payment of court fees, therefore, the AO No. 186 of 2016 & Civil Revision No. 41 of 2016 both are hereby dismissed. 21. With the above observations, the Revision No.42 of 2016 is also dismissed. 22. Interim order, if any, stands vacated.