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2018 DIGILAW 1442 (ALL)

RAM GOPAL v. KISHORI LAL

2018-07-02

SIDDHARTH

body2018
JUDGMENT Hon’ble Siddharth, J.—Heard Sri S. N. Tripathi, learned counsel for the appellant and Sri M. C. Singh, learned counsel for the respondent. 2. This is defendant’s second appeal against judgment and decree dated 21.1.1987 passed by Sri S.N. Prasad, First Additional District Judge, Bulandshahr in Civil Appeal No. 429 of 1980 whereby the judgment and decree dated 7.8.1980 passed by Sri Jagdish Prasad, Munsif, Khurja, District Bulandshahr in Original Suit No. 231 of 1978 has been set aside and the suit of the plaintiff has been decreed. 3. Plaintiff’s case is that the disputed agricultural land initially belonged to Hiraman and was sir and khudkast land; that defendant No. 3 is son of Hiraman and plaintiff is son of defendant No. 3; that after death of Hiraman, the land in dispute became property of Joint Hindu Family comprised of defendant No. 3 and the plaintiff, his son and both had half share each therein; that defendant No. 3 was recorded over the land as Karta of the family; that defendant Nos. 1 and 2 fraudulently got a sale-deed of the entire land executed from defendant No. 3 for an absolutely insufficient sale consideration of Rs. 3,800/- when defendant No. 3 had no legal necessity of executing the same and hence the suit was instituted for cancellation of the sale-deed dated 5.6.1978 and for possession over the land in dispute from the defendants No. 1 and 2 alongwith damages for illegal use and occupation by them. 4. Defendant No. 3 did not filed his written statement in the suit. 5. Defendant Nos. 1 and 2 filed their joint written statement stating that defendant No. 3 is the only Bhoomidhar of the land in dispute and he executed the sale-deed after accepting proper sale consideration of the same after fully understanding the implication of the sale-deed and he was competent to execute the same; that plaintiff has no right to the land in dispute and the suit of the plaintiff is barred by Sections 29 and 49 of the U.P. Consolidation of Holdings Act and therefore suit is not maintainable before the Civil Court. 6. On the basis of pleadings of the parties, the following issues were framed by the trial Court: 1- Whether the disputed property was/is property of Joint Hindu Family of plaintiff and defendant No. 3? If yes, then its effect? 6. On the basis of pleadings of the parties, the following issues were framed by the trial Court: 1- Whether the disputed property was/is property of Joint Hindu Family of plaintiff and defendant No. 3? If yes, then its effect? 2- Whether defendant No. 3 executed the sale-deed without any legal necessity and for insufficient sale consideration? Its effect? 3- Whether the suit is barred by Sections 29 and 49 of the U.P. Consolidation of Holdings Act? 4- Whether the suit is beyond the jurisdiction of the Civil Court? 5- Relief? 7. The trial Court decided issue No. 4 regarding the jurisdiction of Civil Court against the plaintiff and held that since the plaintiff is not the recorded tenure holder of the land in dispute, therefore, the Civil Court has no jurisdiction to decide the suit. Issue No. 3 was decided in favour of the plaintiff holding that the suit is not barred by Sections 29 and 49 of U.P. Consolidation of Holdings Act. Issue No. 1 was decided holding that plaintiff is co-sharer of the land in dispute which belongs to his grandfather. Issue No. 2 was decided holding that the law regarding Undivided Hindu Family will not apply to this case and therefore issue No. 5 was decided holding that the plaintiff is not entitled to any relief and the trial Court dismissed the suit of the plaintiff. 8. Plaintiff preferred civil appeal before the lower appellate Court assailing the judgment and decree of the trial Court which was allowed. 9. The lower appellate Court, while setting aside the decree of the trial Court, has recorded the finding that plaintiff was member of Joint Hindu Family and his father was recorded as Karta of the family and since he was the only son of his father, he had half share in the land in dispute and therefore the sale-deed executed by his father, defendant No. 3, including the share of plaintiff was void. A declaration was made in favour of plaintiff that he is owner of half share of the property in dispute. 10. A declaration was made in favour of plaintiff that he is owner of half share of the property in dispute. 10. This second appeal has been preferred by the defendant and it was admitted on 18.10.2016 on the following substantial question of law-: “Whether the learned Judge was right in holding that the suit is not barred by Section 49 of the U.P. Consolidation of Holdings Act, though the plaintiff-respondent admitted in his statement that he did not file any objection during the consolidation proceedings?” 11. Learned counsel for the appellant has argued that plaintiff never sought any declaration of his ownership right in the land in dispute before the Civil Court nor he filed any objection under Section 49 of the Consolidation of Holdings Act before the consolidation Courts and therefore his suit was not maintainable since he is not the recorded tenure holder of the land in dispute. After the abolition of Zamindari and coming into force of the U.P. Zamindari Abolition and Land Reforms Act, the law regarding Joint Hindu Family property has no application and once it was admitted by plaintiff himself that his father was the recorded tenure holder, the remedy of plaintiff lies before the consolidation or revenue Courts where he was required to seek a declaration regarding his rights and then ancillary relief of cancellation of sale-deed could have been prayed. He has strongly contended that without the name of the plaintiff being recorded in the revenue records, the suit was not maintainable for cancellation of sale-deed and for delivery of possession and for recovery of damages from defendants before the Civil Court. 12. Learned counsel for the appellant has relied upon the judgment of this Court in the case of Kharbhan Yadav and another v. Ramagya Yadav and another, 2016(2) ADJ 264 , wherein this Court has held that only revenue Court can pass a decree of declaration to the right and title of the plaintiff over the agricultural land and suit before Civil Court is not maintainable for cancellation of sale-deed of such a plaintiff who is not declared to be the owner of the land in dispute. 13. Reliance has also been placed on the judgment of Mohan Lal v. Sriram and another, 2016(2) ADJ 206 and Nagendra Pal Singh v. Bhadrapal Singh, LAWS (All)-2013-7-101, which are regarding the same proposition. 13. Reliance has also been placed on the judgment of Mohan Lal v. Sriram and another, 2016(2) ADJ 206 and Nagendra Pal Singh v. Bhadrapal Singh, LAWS (All)-2013-7-101, which are regarding the same proposition. In the judgment of Nagendra Pal Singh (supra) this Court has held that all adjudication and declaration of rights of tenure holder, after close of consolidation proceedings is barred and no Courts shall take cognizance of such dispute which could have been decided by consolidation Court. Civil Court cannot go into the dispute regarding title to a land where the plaintiff has failed to file objection before the consolidation Court during consolidation proceedings. In the case of Kailash Chandra v. State of U.P. and others, 2007(2) ADJ 113 , it has been held by this Court that the plea of a son that he was a co-sharer in agricultural land held by his father being family member is barred by Section 49 of the Consolidation of Holdings Act. If such a plea is not raised during consolidation proceedings and then it cannot be raised subsequently. 14. Learned counsel for the respondent has argued that in the Full Bench judgment of this Court in the case of Ram Padarath and others v. Second Additional District Judge, Sultanpur and others, 1989 RD 21, has held that suit for action for cancellation of void document will generally lie in Civil Court and a party cannot be deprived of his right of 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 an ancillary relief even though the same can be granted by the revenue Court. 15. After considering the rival submissions, it is clear that the plaintiff was not recorded in the revenue records and it was his father, defendant No. 3, who was recorded in the revenue record. Therefore, prima facie the title of the plaintiff was not clear. 15. After considering the rival submissions, it is clear that the plaintiff was not recorded in the revenue records and it was his father, defendant No. 3, who was recorded in the revenue record. Therefore, prima facie the title of the plaintiff was not clear. The claim to the land on the basis of being a Joint Hindu Family property and the plaintiff having half share therein was required to be adjudicated by the competent revenue Court or the consolidation Court and Civil Court was not competent to adjudicate the same. The plaintiff did not file any objection before the consolidation Court. Even before the Civil Court there was no relief of adjudication of his title sought in the plaint. The suit was filed presuming his title by the plaintiff and cancellation of sale-deed executed by his father in favour of defendant Nos. 1 and 2 and ancillary relief of possession and damages against the defendant Nos. 1 and 2. Therefore, the main relief of the plaintiff for cancellation of sale-deed was not maintainable at all in view of the Full Bench judgment of this Court in the case of Ram Padarath (supra) relied upon by the counsel for the respondent. The trial Court rightly dismissed the suit of the plaintiff by its judgment and decree dated 7.8.1980 which was reversed by the lower appellate Court on the basis of Hindu coparcenary law, which is not applicable to the suit property in view of the enforcement of U.P. Zamindari Abolition and Land Reforms Act, 1950. The judgments relied upon by the counsel for the appellant are applicable to be facts of the case. Therefore, the substantial question of law framed in this Appeal is decided holding that the suit of the plaintiff was barred by Section 49 of the U.P. Consolidation of Holdings Act and the judgment of the lower appellate Court is not in accordance with law and deserves to be set aside. 16. This second appeal is allowed. Parties shall bear their own costs.