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2018 DIGILAW 2461 (ALL)

Kumari Reeta v. Vivek Kumar Singh

2018-12-04

RAJIV JOSHI

body2018
JUDGMENT : Rajiv Joshi, J. 1. Heard Sri Atul Kumar Srivastava, learned counsel for the appellant and Sri A.K. Shukla, Advocate holding brief of Krishnaji Khare for the respondents. 2. The present second appeal has been filed by the plaintiff-appellant challenging the judgment and decree dated 6.8.2018/20.8.2018 passed by the Additional District Judge/F.T.C. Court No. 2 Ghazipur whereby the Civil Appeal No. 50 of 2017 field by the appellant has been dismissed and the decree of the trial Court dated 25.9.2017 rejecting the plaint under Order 7 Rule 11 (d) of the Code of Civil Procedure, has been affirmed. 3. The fact as reflect from the record are that the plaintiff-appellant filed a suit for cancellation of sale-deed executed by her mother Smt. Mewati Devi on 9.12.2013 (registered on 10.12.2013) in favour of the defendant-respondent first set i.e. defendant Nos. 1 to 3 It was stated in the plaint that admittedly Gorakh father of the plaintiff, was recorded 'bhumidhar' of the land in suit who died on 16.1.2010. After his death, his widow Mewati, defendant second set, applied for mutation which was allowed by the concerned Tahsildar vide order dated 22.2.2010 and her name was recorded in the revenue record in place of Gorakh. The plaintiff-appellant being a daughter of Gorakh and the defendant second set Mewati, claims to be the co-bhumidhar of the disputed land. 4. Plaintiff's claimed that in view of Section 171 of U.P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the U.P. Z.A.& L.R. Act), the name of her mother Mewati has been fraudulently recorded in the revenue record although she is co-sharer alongwith her mother having half share in the disputed land. 5. It is further stated in the plaint that her mother-Mewati had executed the sale-deed in favour of the defendant first set beyond her share for which she has got no right and as such the sale-deed beyond her share is a void and therefore, the relief for cancellation of sale deed, was claimed. 6. 5. It is further stated in the plaint that her mother-Mewati had executed the sale-deed in favour of the defendant first set beyond her share for which she has got no right and as such the sale-deed beyond her share is a void and therefore, the relief for cancellation of sale deed, was claimed. 6. During the pendency of the suit the defendant first set filed an application under order 7 Rule 11 CPC for rejection of the plaint on the ground that admittedly the plaintiff is not a recorded tenure holder and since the sale deed which is executed in their favour is claimed to be void to the extent of share of the plaintiff, therefore, the plaint should be rejected as the suit is barred by the provisions of Section 331 of U.P. Z.A.& L.R. Act. 7. The application filed by the defendant first set for rejection of the plaint, was rejected by the trial Court vide order dated 17.3.2015, against which a revision was preferred and the same was allowed by the revisional Court vide order dated 30.5.2015. The order of the revisional Court was challenged by the plaintiff-appellant in the matter under Article 227 No. 3587 of 2015 which was disposed of by this Court with the direction to decide the application for rejection of plaint under the Order 7 Rule 11 without being influenced by the finding so recorded by the revisional Court Specifically thereafter the Court proceeded with the matter and again rejected the application under Order 7 Rule 11 vide order dated 11.2.2016. Against that order a revision was filed by the defendant first set which was allowed and the matter was remanded back to the trial Judge for deciding the application for rejection of plaint afresh. Against that order a revision was filed by the defendant first set which was allowed and the matter was remanded back to the trial Judge for deciding the application for rejection of plaint afresh. Thereafter the trial Court proceeded with the case and allowed the application filed by the defendant first set and rejected the plaint under Order 7 Rule 11 (d) of C.P.C. A finding was recorded by the trial Court to the effect that from the bare reading of the plaint only, the plaintiffs not the recorded tenure holder and the sale deed executed in favour of the defendant first set to the extent of her share is void and therefore in the garb of the present suit the plaintiff wants declaration of her title in respect of agricultural land for which only the revenue Court has got the jurisdiction to declare the rights of the plaintiff. 8. The finding so recorded by the trial Court was affirmed by the appellate Court dismissing the appeal vide impugned order dated 6.8.2018. Both the orders passed by the trial Court as well as appellate Court are impugned in the second appeal. 9. The contention of learned counsel for the appellant is that the plaintiff-appellant being unmarried girl, has got a right in the property in view of Section 171 of U.P. Z.A. & L.R. Act and simply because her name was not recorded in the revenue records her rights cannot be curtailed. He further submits that the decree for cancellation of sale deed can only be passed by the civil Court, as the revenue Court has no jurisdiction to cancel the instrument. 10. Learned counsel for the appellant further contends that the sale deed as per the plaint averments is a voidable document and as such the suit cannot be said to be barred by Section 331 of U.P. Z.A. & L.R. Act. It is further contended that only the civil Court has got jurisdiction to cancel the instrument either it is void or voidable. 11. On the other hand learned counsel appearing on behalf of the respondent first set submits that from the plaint allegation it is admitted fact that the plaintiff is not a recorded tenure holder and the sale deed executed to the extent her share is void and the plaint has rightly been rejected by the Courts below under Order 7 Rule 11 (d)CP.C. 12. I have considered the rival submissions of the parties and perused the record. 13. The plaint filed by the plaintiff-appellant has been rejected under Order 7 Rule 11 C.P.C. on the ground that the suit is barred by Section 331 of U. P. Z.A.& L.R. Act. It is well settled law that while considering the application under Order 7 Rule 11 C.P.C., only the plaint averments are relevant and can only be seen, in this regard the relevant extract of Order 7 Rule 11 C.P.C. is reproduced hereunder: Rejection of plaint-The plaint shall be rejected in the following cases: (a) Where it does not disclose a cause of action; (b)........... (c)............. (d) Where the suit appears from the statement in the plaint to be barred by any law; (e)............ (f).................. [Provided that, the time fixed by the Court for the correction of the valuation or "supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature form correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff. 14. The Order 7 Rule 11 specifically provides that in case the suit appears from the statement in the plaint to be barred by any law, then the plaint ought to have been rejected. 15. From bare reading of the plaint averments, it is apparent that the plaintiff-appellant is not recorded in the revenue record and her case in the plaint is that her father was recorded as a Bhumidhar and after his death, the name of the her mother Mewati Devi was recorded who subsequently vide registered sale deed dated 9.12.2013/10.12.2013 transferred the disputed land to the defendant first set i.e., respondent Nos. 1, 2 & 3. The plaintiff has also averred in the plaint that after the death of her father she inherited the property to the extent of half share but the name of her mother alone was mutated in the revenue record, although, she is also owner of the disputed property to the extent of half share. 16. It is further averred in the plaint that the sale-deed executed by the defendant second-set i.e., her mother in favour of the defendant first set (respondent Nos. 16. It is further averred in the plaint that the sale-deed executed by the defendant second-set i.e., her mother in favour of the defendant first set (respondent Nos. 1, 2 & 3) is void to the extent of her share and therefore, the same is liable to the cancelled by the Civil Court. 17. Now, the question that arisen for consideration is whether the suit filed by the plaintiff-appellant is barred by provisions of Section 331 of the U.P. Z.A. & L.R. Act or not, and whether the civil Court has got jurisdiction to cancel the instrument which is said to be void as averred in the plaint. 18. In order to consider the said question, it is necessary to have a glance on Section 331 of the U.P. Z.A.& L.R. Act is quoted which runs as: "331. 18. In order to consider the said question, it is necessary to have a glance on Section 331 of the U.P. Z.A.& L.R. Act is quoted which runs as: "331. Cognizance of suits, etc under this Act.-(1) Except as provided by or under this Act no Court other than a Court mentioned in Column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908, (V of 1908) take cognizance of any suit, application or proceedings mentioned in column 3 thereof or of a suit, application or proceedings based on a cause of action in respect of which any relief could be obtained by means of any such suit or application:] [Provided that where a declaration has been made under Section 143 in respect or any holding or part thereof, the provisions of Schedule II in so far as they relate to suits, applications or proceedings under Chapter VIII shall not apply to such holding or part thereof; Explanation.-If the cause of action is one in respect of which relief may be granted by the revenue Court, it is immaterial that the relief asked for from the civil Court may not be identical to that which the revenue Court would have granted] [(1-A) Notwithstanding anything sub-section (i), 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.] [(2) Except as hereinafter provided no appeal shall lie from an order or [decree] passed under any of the proceedings mentioned in Column 3 of the Schedule aforesaid. 19. In Gorakh Nath Dube v. Hari Narain Singh, (1973) 2 SCC 535 , the apex Court was required to adjudicate as to whether a suit for cancellation of a sale deed would abate or not, under Section 5(2) of the U.P. Consolidation of Holdings Act, on advent of consolidation proceedings. 19. In Gorakh Nath Dube v. Hari Narain Singh, (1973) 2 SCC 535 , the apex Court was required to adjudicate as to whether a suit for cancellation of a sale deed would abate or not, under Section 5(2) of the U.P. Consolidation of Holdings Act, on advent of consolidation proceedings. There, while drawing a distinction between a suit for cancellation of a void document and that of a voidable document, the apex Court observed, in paragraph 5 of the report, as follows: "We think that a distinction can be made between cases where a document is wholly or partially invalid so that it can be disregarded by any Court or authority and one where it has to be actually set aside before it can cease to have legal effect. An alienation made in excess of power to transfer would be, to the extent of the excess of power, invalid. An adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in land which are the subject-matter of consolidation proceedings. The existence and quantum of rights claimed or denied will have to be declared by the consolidation authorities which would be deemed to be invested with jurisdiction, by the necessary implication of their statutory powers to adjudicate upon such rights and interests in land, to declare such documents effective or ineffective, but, where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it could be urged that the consolidation authorities have no power to cancel the deed, and, therefore, it must be held to be binding on them so long as it is not cancelled by a Court having the power to cancel it. In the case before us, the plaintiff's claim is that the sale of his half share by his uncle was invalid, inoperative, and void." 20. The law laid down in Gorakh Nath Dube's case (supra) has been followed by the apex Court in the case of Bismillah v. Janeshwar Prasad, (1990) 1 SCC 207 . 21. It is now well settled that where a document is voidable it is a good act unless avoided and, therefore, its cancellation would be necessary to avoid its natural consequences. 21. It is now well settled that where a document is voidable it is a good act unless avoided and, therefore, its cancellation would be necessary to avoid its natural consequences. As the revenue Court has no power to cancel a document, a suit seeking cancellation of a document, which is alleged to be voidable, is maintainable in a civil Court and is not barred by Section 331 of the UP ZA & LR Act. Even a suit to cancel a void document may not be, in a given set of circumstances, barred by Section 331 of the UP ZA & LR Act as has been held by a Full Bench of this Court in the case of Ram Padarath and others v. Second Additional D.J., Fatehpur, 1989 RD 21, where it was held as follows: "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 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 ancillary relief even though the same can be granted by the revenue Court." The view taken by the Full Bench in Ram Padarath's case has been noticed and approved by the apex Court in Bismillah's case (supra). It is equally well settled that the question of jurisdiction depends upon the allegations in the plaint and not the merits or the result of the suit (vide Bismillah v. Janeshwar Prasad, (1990) 1 SCC 207 , paragraph 9). Therefore in a suit instituted before a civil Court for cancellation of an instrument, in respect to an agricultural land, if a plea with respect to the bar of Section 331 of the UP ZA & LR Act is taken, the Court must first determine as to whether from the plaint averments the instrument, as alleged, is void or voidable. Therefore in a suit instituted before a civil Court for cancellation of an instrument, in respect to an agricultural land, if a plea with respect to the bar of Section 331 of the UP ZA & LR Act is taken, the Court must first determine as to whether from the plaint averments the instrument, as alleged, is void or voidable. If the plaint averments go to show that the instrument is voidable at the instance of the plaintiff(s), then the suit would be maintainable in a civil Court, but if it is alleged to be void then the Court may have to undertake a complex exercise so as to assess whether in a given set of facts a declaration of right or status of a tenure holder is necessarily needed or not. If a declaration to that effect is necessarily needed, in that event, the relief for cancellation would be mere surplusage and redundant, because the Court, which has power to grant declaration can disregard a void document while granting a declaratory relief. In such an event a civil suit would be barred by sub-section (1) of Section 331 of the UP ZA & LR Act. 22. Now coming to the facts of the instant case, it is admitted that the plaintiff is not at all recorded as a bhumidhar and sale-deed which the plaintiff wants to be cancelled is a void instrument alleged to be extent of her share. 23. Learned counsel for the respondent placed reliance upon the judgment of Hon'ble Apex Court in the case of Kamla Prasad v. Krishna Kant Pathak, LAWS (SC) 2007 2 92 and rely paragraph Nos. 13 and 14 of the said judgment which are quoted hereunder:- "13. On second question also, in our view, Courts below were right in coming to the conclusion that legality or otherwise of insertion of names of purchasers in Record of Rights and deletion of name of the plaintiff from such record can only be decided by Revenue Court since the names of the purchasers had already been entered into. Only Revenue Court can record a finding whether such an action was in accordance with law or not and it cannot be decided by a Civil Court. 14. In this connection, the learned Counsel for the appellant rightly relied upon a decision of this Court in Shri Ram and another v. 1st Addl. Distt. Only Revenue Court can record a finding whether such an action was in accordance with law or not and it cannot be decided by a Civil Court. 14. In this connection, the learned Counsel for the appellant rightly relied upon a decision of this Court in Shri Ram and another v. 1st Addl. Distt. Judge and others, (2001) 3 SCC 24 . In Shri Ram, A, the original owner of the land sold it to B by a registered sale deed and also delivered possession and the name of the purchaser was entered into Revenue Records after mutation. According to the plaintiff, sale deed was forged and was liable to be cancelled. In the light of the above fact, this Court held that it-was only a Civil' Court which could entertain, try and decide such suit. The Court, after considering relevant case law on the point, held that where a recorded tenure holder having a title and in possession of property files a suit in Civil Court for cancellation of sale deed obtained by fraud or impersonation could not be directed to institute such suit for declaration in Revenue Court, the reason being that in such a case, prima facie, the title of the recorded tenure holder is not under cloud. He does not require declaration of his title to the land. The Court, however, proceeded to observe: The position would be different where a person not being a recorded tenure holder seeks cancellation of sale deed by filing a suit in the civil Court on the ground of fraud or impersonation. There necessarily the plaintiff is required to seek a declaration of his title and, therefore, he may be directed to approach the revenue Court, as the sale deed being void has to be ignored for giving him relief for declaration and possession". 24. From the ratio laid down by the Apex Court in the aforesaid judgment, it is apparent that the suit for cancellation of sale-deed is clearly barred by provisions of Section 331 of U.P. Z.A.& L.R. Act. Since the name of the plaintiff is not recorded in the revenue record therefore, she should seek a declaration before the revenue Court and in case to record her name then the sale seed executed by the respondent second set in favour of the respondent first set is liable to be void to the extent of her share. 25. Since the name of the plaintiff is not recorded in the revenue record therefore, she should seek a declaration before the revenue Court and in case to record her name then the sale seed executed by the respondent second set in favour of the respondent first set is liable to be void to the extent of her share. 25. In view of the above, in the considered opinion of this Court, both the Courts below have rightly rejected the plaint Under Order 7 Rule 11 (d) of C.RC. as the suit is barred by provisions of Section 331 of U.P. Z.A.& L.R. Act. There appears to be no illegality or infirmity in the orders passed by the both the Courts below. The proposed substantial questions of law framed by the appellants in the appeal do not involve any legal issue. In the result, the appeal lacks merit and is accordingly dismissed. No order as to costs.