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2018 DIGILAW 357 (ALL)

MAMTA DEVI v. KEDAR

2018-02-08

MANOJ KUMAR GUPTA

body2018
JUDGMENT : Hon'ble Manoj Kumar Gupta, J. The instant petition is directed against the order dated 7.9.2015 by which the trial court decided issue no.6 in negative as well as the order dated 19.7.2017 by which the revision filed by the petitioner challenging the order of the trial court has been dismissed. Issue no.6 was framed on the plea raised by the petitioner, who is defendant no.3 in Original Suit No.332 of 1999 that the suit is barred by provisions of Section 331 of the U.P.Z.A. & L.R. Act, 1950 (for short 'the Act'). The case of the petitioner was that she had purchased the suit property from Krishna Ballabh Sahai, defendant no.1 by registered sale deed dated 30.3.2010. In pursuance thereof, her name was mutated in the revenue records in place of Krishna Ballabh Sahai. It was urged that the suit property is agricultural land and since name of the petitioner is duly recorded in the revenue records, consequently, the suit filed by the plaintiff-respondents involves declaration of title, which can only be granted by the revenue court, thus, the suit filed before the civil court was barred by Section 331 of the Act. The suit in question has been instituted by Kedar, who had since died and is now represented by his heirs and legal representatives. The relief claimed in the suit, as originally instituted, was for cancellation of sale deed dated 20.3.1998 registered in the office of Sub Registrar, Ghazipur on 29.9.1998. The said sale deed was supposedly executed by the plaintiff in favour of defendant no.1. The plaintiff also sought an injunction against the defendants, restraining them from interfering in his ownership rights as well as in his possession. In the alternative, a prayer was made that in case he is found out of possession, the same be also delivered to him. During the pendency of the suit, defendant no.1 transferred the suit property in favour of the petitioner by registered sale deed dated 30.3.2010. The plaintiff thereafter sought amendment of the plaint by introducing relief for cancellation of the said sale deed as well. A bare perusal of the plaint assertions reveals that the suit was instituted on the ground that sale deed dated 20.3.1998 was obtained by defendant no.1 by fraud and misrepresentation. It was without sale consideration and according to the plaintiff, it was a sham transaction. A bare perusal of the plaint assertions reveals that the suit was instituted on the ground that sale deed dated 20.3.1998 was obtained by defendant no.1 by fraud and misrepresentation. It was without sale consideration and according to the plaintiff, it was a sham transaction. In pith and substance, the case of the plaintiff was that the sale deed dated 20.3.1998 was a voidable document having been obtained by fraud and misrepresentation. The trial court has decided the issue in favour of the plaintiff and against the defendants by holding that relief for cancellation of sale deed on the ground that the sale deed was obtained by fraud or misrepresentation, could only be granted by the civil court and not by the revenue court. The revisional court has affirmed the order of the trial court. Counsel for the petitioner submitted that at present name of the petitioner is recorded in the revenue records and consequently, the suit involves adjudication of title, which could only be done by the revenue court. He further submitted that the relief for possession in respect of agricultural land could only be granted by the revenue court. It is not disputed by learned counsel for the petitioner that the sale deed impugned in the suit dated 20.3.1998 was executed by the original plaintiff Kedar in favour of defendant no.1. Thus, it was not in dispute between the parties that the original plaintiff was owner of the suit property. The fact that on the basis of the said sale deed, name of defendant no.1 came to be recorded in the revenue records, in place of the original plaintiffs and thereafter, name of defendant no.3 on the basis of sale deed executed by defendant no.1 in her favour, would not make the instant suit a suit involving declaration of title. In Shri Ram and another Vs. Ist Additional District Judge and others AIR 2001 SC 1250 , the Supreme Court after considering the Full Bench judgement of this Court in Ram Padarath Vs. Second Additional District Judge 1989 Rev. Dec 21 and the previous judgement of Supreme Court in Smt. Bismillah Vs. In Shri Ram and another Vs. Ist Additional District Judge and others AIR 2001 SC 1250 , the Supreme Court after considering the Full Bench judgement of this Court in Ram Padarath Vs. Second Additional District Judge 1989 Rev. Dec 21 and the previous judgement of Supreme Court in Smt. Bismillah Vs. Janeshwar Prasad 1990 (1) SCC 207 held that where a recorded tenure holder having a prima facie title and in possession files suit in the civil court for cancellation of the sale deed on the ground of fraud or impersonation, the suit would be maintainable before the civil court, as it does not involve declaration of his title to the land. However, the position would be different where a person, who is not a recorded tenure holder, when the sale deed was executed, seeks its cancellation. In such a case, he is required to seek declaration of his title and therefore, the suit would lie before revenue court. The relevant observations made in this regard are as under:- "On analysis of the decisions cited above, we are of the opinion that where a recorded tenure holder having a prima facie title and in possession files suit in the civil court for cancellation of sale deed having obtained on the ground of fraud or impersonation cannot be directed to file a suit for declaration in the revenue court 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 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." As noticed above, the plaintiff was the recorded tenure holder at the time when he had executed the sale deed. Name of defendant no.1 came to be recorded only on the basis of the said sale deed. Name of defendant no.1 came to be recorded only on the basis of the said sale deed. In the considered opinion of this Court, in the facts of the instant case, no declaration of title of the plaintiff is involved and it is only the civil court which can grant relief for cancellation of the sale deeds. The plaintiff claimed himself to be in possession of the suit property. He has also sought an injunction restraining the defendants from interfering in his possession. The relief for possession has only been sought in the alternative. As the main relief sought by the plaintiff could only be granted by the civil court, it cannot be said that the suit is barred under Section 331 of the Act. The petition lacks merit and is dismissed.