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2017 DIGILAW 1755 (ALL)

PARAM JOTA v. RAM NACHHATRA

2017-07-31

SIDDHARTHA VARMA

body2017
JUDGMENT Hon’ble Siddhartha Varma, J.—This is a defendants’ second appeal against the judgment and decree passed by the First Appellate Court dated 30.3.1989. For a proper appreciation of the controversy at hand, the following pedigree would be relevant. Yogeshwar Mahadeo Sahdeo Shripat (defendant No. 2) Ram Nakshattra (Plaintiff) Wife of Param Jota (defendant No. 1) Rajpati Chandrika Ramakant 2. The plaintiff Ram Nachhatra filed a suit for the cancellation of a sale-deed dated 8.12.1971 executed by Mahadeo in favour of the defendant-appellant No. 1, the wife of Shripat, the brother of the plaintiff (who was arrayed as defendant No. 2). After framing issues the Trial Court partly allowed the suit and cancelled the sale-deed dated 8.12.1971 with regard to plots Nos. 64 Aa, 64 Ba and 91 so far as they were owned by the plaintiff but dismissed the suit with regard plot Nos. 12, 13 and 62 though they were sold by the very same sale-deed. Aggrieved thereof the plaintiff filed First Appeal No. 125 of 1988, while the defendant No. 1 Paramjota who is the appellant here filed the First Appeal No. 121 of 1988. Both the appeals were consolidated and decided on 30.3.1989. The First Appellate Court modified the decree of the Trial Court and held that at the time when the sale had taken place i.e. on 8.12.1971, Ram Nachhatra-plaintiff, Shripat-defendant No. 2 and their father Mahadeo all were alive, and therefore, Mahadeo alongwith his sons had 1/3rd share in the property. 3. In such circumstances, it was held that Mahadeo could have transferred only 1/3rd of his share to Paramjota who was arrayed as defendant No. 1 in the suit. 4. Aggrieved by the judgment and decree of the First Appellate Court, the defendants have filed this second appeal claiming that they were entitled to the properties as were transferred to Paramjota through the sale-deed dated 8.12.1971 by Mahadeo. The plaintiff-respondent filed a cross appeal No. 12 of 1990 claiming that the Trial Court had adopted a correct approach and that the lower Appellate Court was in error when it reduced his share in the property from half to 1/3rd. The second appeal and the cross appeal both have been heard together. 5. The substantial questions of law which were framed at the time of admission were as follows: (1) Whether the suit is barred by Section 49 of U.P.C.H. Act? The second appeal and the cross appeal both have been heard together. 5. The substantial questions of law which were framed at the time of admission were as follows: (1) Whether the suit is barred by Section 49 of U.P.C.H. Act? (2) Whether the plaintiff respondent has legal right to challenge the sale-deed executed in favour of the appellant? 6. The learned counsel for the appellant submitted that from the plaint allegations, it was clear that the plaintiff was alleging that the sale-deed was a void document and, therefore, the cause of action lay in a Revenue Court. He further submitted that when on the date the sale took place, consolidation proceedings were already notified in the village then the suit challenging the sale-deed could not have been filed in the Civil Court as there was a bar imposed by the provisions of Section 49 of the U.P. Consolidation of Holdings Act, 1954 on the filing of a civil suit. The further submission was that the suit was barred by limitation as the property as was owned by Mahadeo was sold to the appellant in 1971 and the suit was filed extremely beyond time in 1982. 7. In reply, the learned counsel for the plaintiff-respondent has submitted that the provisions of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 do not bar the jurisdiction of the Civil Court as a suit for cancellation of a deed is filed on the basis of an apprehension that the instrument if left to exist might cause the plaintiff serious injury. If the instrument is one which has been registered a copy thereof will be maintained in the registration office. The holder of the instrument may negotiate for sale of the property and the purchaser, in order to satisfy himself, that the holder of the deed has valid title to the property, may examine the registration record and in the absence of an endorsement of cancellation of the document, he may legitimately believe in the representation of title made to him by the holder of the deed and purchase the property. This purchaser may afterwards, claim protection of his title under Section 41 of the Transfer of Property Act on the basis of which he had purchased the property from the ostensible owner. Further, cancellation of a void document protects the prospective purchaser of the property also. This purchaser may afterwards, claim protection of his title under Section 41 of the Transfer of Property Act on the basis of which he had purchased the property from the ostensible owner. Further, cancellation of a void document protects the prospective purchaser of the property also. If an endorsement of cancellation of the deed has been made in the registration department, a prospective purchaser would not be misled by the representation of the holder of the deed. Even otherwise, if explanation 1-A to Section 331 of the U.P.Z.A. & L.R. Act is perused then it becomes clear that to oust the jurisdiction of a Civil Court, certain objections have to be raised at the appropriate stage and that it has also to be established that the filing of a suit in a Civil Court had resulted in the failure of justice. The learned counsel pointed out the explanation 1-A to Section 331 which reads as under : “(1A) Notwithstanding anything in sub-section (1), an objection that a Court mentioned in column 4 Schedule II, or, as the case may be, a Civil Court, which had no jurisdiction with respect to the suit, application or, proceeding, exercised jurisdiction with respect thereto shall not be entertained by any appellate or revisional Court 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, and unless there has been a consequent failure of justice.” 8. The further argument of the learned counsel for the respondent was that under Section 49 of the U.P. Consolidation of Holdings Act, 1954, the suit cannot be barred as the father of the plaintiff, in whom the plaintiff had full faith, and after the death of the father, his elder brother, had not guarded the interest of plaintiff and thus upon gaining knowledge of the sale at a later stage, the only remedy available to him was the filing of a suit in a Civil Court. 9. After hearing the learned counsel and after perusal of the record of the case, I find that the civil suit was properly filed in the Civil Court. The existence of the sale-deed was causing a serious injury to the plaintiff. 9. After hearing the learned counsel and after perusal of the record of the case, I find that the civil suit was properly filed in the Civil Court. The existence of the sale-deed was causing a serious injury to the plaintiff. Though the plaint allegations clearly indicated that the sale-deed was a void document but the existence of it was casting a cloud on the title of the plaintiff. Thus, the only proper forum for the cancellation of the sale-deed was a Civil Court. This is what has also been laid down in Indra Deo v. Smt. Ram Piari, 1982 (8) ALR 517 and Ram Padarath and others v. Second Additional District Judge and other, 1989 (1) AWC 290 . 10. Further I find that the suit was not barred by Section 49 of the U.P. Consolidation of U.P. Consolidation of Holdings Act. Throughout the consolidation proceedings, the name of the father of the plaintiff and the defendant No. 2 had continued and thus, the plaintiff, being a co-tenure holder, was confident that his interest was being well looked after by his father and by his elder brother - defendant No. 2, and therefore, no occasion arose for him to file any objection. In Karbalai Begum v. Mohd. Sayeed and another, AIR 1981 SC 77 , the Supreme Court has held that a suit, after the consolidation proceedings are over, could be filed and the bar of Section 49 would not operate. Similarly, in Writ B No. 52717 of 2013 (Rambriksha and another v. Deputy Director of Consolidastion and 3 others), decided on 16.5.2017 this Court has held that Section 49 of the U.P. Consolidation of Holdings Act does not compulsorily bar the filing of a civil suit when co-sharers are living jointly and peacefully without any grievance against each other and while they are entered in the revenue records jointly. It also lays down that the right to property cannot be taken away simply because they did not file an objection while the consolidation proceedings were going on. 11. The perusal of the grounds of the appeal during the first appellate stage shows that the appellant had given up the plea of limitation, which was decided against them at the trial stage. 11. The perusal of the grounds of the appeal during the first appellate stage shows that the appellant had given up the plea of limitation, which was decided against them at the trial stage. Thus, the plaintiff-respondent upon gaining knowledge of the wrong doings of his father and the elder brother after the notification under Section 52 of Consolidation of Holdings Act had the right to file a Suit for Cancellation of the Sale-deed. The First Appellate Court correctly came to the conclusion about the share of the plaintiff-respondent. 12. Thus there is no merit in the second appeal. It is concluded by finding of facts. The substantial questions of law as have been framed by the Court are, accordingly, answered. 13. The second appeal is, accordingly, dismissed.