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2022 DIGILAW 1380 (ALL)

Ureha v. Bharose (Since deceased)

2022-08-31

CHANDRA KUMAR RAI

body2022
JUDGMENT : 1. Heard Sri Anand Kumar Srivastava, learned counsel for the appellants. 2. This second appeal has been filed on behalf of the plaintiffs under Section 100 of the Code of Civil Procedure, against the judgment and decree dated 7.4.2016 and 16.4.2016 respectively, passed by the Additional District Judge, Court No.4, Basti, dismissing the Civil Appeal No.70 of 2013, arising out of Original Suit No.571/1988, wherein the trial court vide judgment and decree dated 28.10.2013 and 9.11.2013 respectively, dismissed the plaintiff's suit for permanent injunction and cancellation of sale deed. 3. The appellants have formulated the following substantial questions of law in the memorandum of the second appeal:- (a) Whether the ancestral property inherited by the defendant no.1 can be disposed of by sale deed to his in-laws son in the life time of his wife (plaintiff)? (b) Whether the issue nos. 1, 10 and 12 have wrongly been decided by the courts below against the weight on the evidence on the record? (c) Whether the will dated 10.2.1994 once decided by the trial court valid, after examining the evidence of the parties and no appeal was preferred by the defendants against the same, therefore, the findings of the court that on the will the evidence is required by the parties? 4. Plaint case in brief is that plaintiff (Ureha) is wife of defendant no.1 (Bharose). There was no male issue from the wedlock of plaintiff and defendant no.1 rather 3 daughters from their wedlock who are married and are residing along with their family in their in-law's house. It has been further mentioned in the plaint that defendant no.2 has fraudulently got executed the sale deed from defendant no.1 in respect to disputed land, accordingly, suit for injunction was filed by plaintiff and subsequently the relief for cancellation of sale deed was also added in the plaint. 5. In the written statement, defendants denied the plaint allegations and in their additional statement, it has been mentioned that plaintiff has no cause of action to file the suit. It has been further mentioned that sale deed was rightly executed by defendant no.1 in favour of defendant no.2 as he was in the need of money. On the basis of the execution of registered sale deed, defendant no.2 is in possession of the disputed property, as such, the prayer was made that suit is liable to be dismissed. 6. It has been further mentioned that sale deed was rightly executed by defendant no.1 in favour of defendant no.2 as he was in the need of money. On the basis of the execution of registered sale deed, defendant no.2 is in possession of the disputed property, as such, the prayer was made that suit is liable to be dismissed. 6. In the suit, the following issues were framed before the trial court:- 1- D;k okfnuh çfroknhx.k dks okn i= esa fyf[kr dFkuksa ds vk/kkj ij fookfnr laifr cspus ls euk djok ikus dh vf/kdkjh gS\ 2- D;k okfnuh dks okn nk;j djus dk vf/kdkj ugha gS\ 3- D;k bl U;k;ky; dks çLrqr okn ns[kus dk {ks=kf/kdkj çkIr ugha gS\ 4- D;k okn /kkjk 331 mŒ çŒ tehankjh fouk'k ,oa Hkwfe lq/kkj vf/kfu;e ls ckf/kr gS\ 5- D;k okn ekSu Lohd`fr o foca/ku ds fl)kUr ls ckf/kr gS\ 6- D;k okn vYiewY;kafdr gS\ 7- D;k çnr U;k; 'kqYd vi;kZIr gS\ 8- D;k okn /kkjk 34 fof'k"V vuqrks"k vf/kfu;e ls ckf/kr gS\ 9- D;k okfnuh fdlh vU; vuqrks"k çkIr djus dh vf/kdkfj.kh gS\ 10- D;k jkenso ds i{k esa fd;k x;k cSukek fnukad 21-5-88 ealw[k fd;s tkus ;ksX; gS\ 11- D;k çLrqr okn /kkjk 41 fof'k"V vuqrks"k vf/kfu;e ls ckf/kr gS\ 12- D;k mjsgk us Ã'oj nsà ds gd esa olh;rukek fnukafdr& 10-02-94 dks fy[kk gS] ;fn gk¡ rks çHkko\ 13- D;k çLrqr okn çkiyhZ çtsUVsM o csjhQkbM gS\ 14- D;k nkok oknh la'kks/ku ds ckn vYiewY;kafdr gS rFkk çnr U;k;'kqYd vi;kZIr gS\ 15- D;k nkok] oknh dky ckf/kr gS\ 16- D;k çfroknhuh /kkjk 35 ¼v½ lhŒihŒlhŒ Lis'ky dkLV ikus dh vf/kdkfj.kh gS\ 7. Both parties adduced oral and documentary evidence in support of their cases. On behalf of the defendants', the revenue entries in form of documentary evidence were filed in order to demonstrate that plaintiff was not recorded in the revenue records rather defendant no.1 was recorded in the revenue records, as such, the suit for injunction and cancellation of sale deed at the instance of defendant no.1 was not maintainable. Trial court while deciding the issue no.1, has recorded finding of fact that plaintiff was recorded in the revenue records as owner of the disputed plot, as such, plaintiff was fully entitled to execute the sale deed of the plot in dispute. Trial court while deciding the issue no.1, has recorded finding of fact that plaintiff was recorded in the revenue records as owner of the disputed plot, as such, plaintiff was fully entitled to execute the sale deed of the plot in dispute. Trial court while deciding issue no.10, has recorded finding of fact that sale deed executed by defendant no.1 in favour of defendant no.2 on 21.5.1988 is not liable to be cancelled as at the time of execution of the alleged sale deed, defendant no.1 was in a healthy mental condition. The trial court while deciding issue nos. 3 & 4, has recorded clear finding of fact that issues nos. 3 and 4 are decided in favour of the plaintiff as plaintiff was not recorded in the revenue record nor plaintiff is in possession of the disputed property, as such, the suit is barred by Section 331 of the U.P. Z.A. & L.R. Act. The other issues were also decided accordingly and the trial court vide judgment and decree dated 28.10.2013 dismissed the plaintiff's suit. 8. Against the judgment and decree of the trial court, plaintiff filed Civil Appeal No.70/2013 in which the lower appellate court has formulated the point of determination as provided under Order 41 Rule 31 of the C.P.C. and while deciding the point of determination no.5, the lower appellate court has held that civil court has no jurisdiction to adjudicate the issue as plaintiff is not recorded in the revenue records nor there is any illegality in the execution of sale deed rather the sale deed is a mental act of defendant no.1. The civil appeal was dismissed by the lower appellate court vide judgment and decree dated 7.4.2016. 9. Counsel for the appellant submitted that property in dispute is ancestral property which is inherited by defendant no.1, as such, he cannot execute the sale deed in favour of his son-in-law without making any provision for the plaintiff who is wife of defendant no.1. He further submitted that issue nos.1, 10 & 12 have been wrongly decided by the trial court, the evidence of the plaintiff has not been taken into consideration while deciding issue nos. 1, 10 & 12, as such, the impugned judgment and decree is vitiated by error of law. He further submitted that issue nos.1, 10 & 12 have been wrongly decided by the trial court, the evidence of the plaintiff has not been taken into consideration while deciding issue nos. 1, 10 & 12, as such, the impugned judgment and decree is vitiated by error of law. He also submitted that once the will deed dated 10.2.1994 has been found to be valid by the trial court, the suit filed by plaintiff cannot be dismissed but the courts below have not considered the aforementioned aspect of the matter and dismissed the plaintiff's suit. 10. I have considered the arguments advanced by the learned counsel for the appellants as well as perused the records. 11. The substantial questions of law which have been framed by the learned counsel for the appellants in his memorandum of appeal as quoted above, has also been examined by this Court. 12. There is no dispute about the fact that on the date of institution of the civil suit, the plaintiff was not recorded in the revenue records rather defendant no.1 was recorded in the revenue records. The law on this point is well settled that if plaintiff is not recorded in the revenue record, he cannot maintain a civil suit rather plaintiff can avail the remedy of Revenue Court for declaration of their rights and title. The Apex Court in the case of Shri Ram and Another vs. 1st Addl. District Judge and Ors., JT 2001 (2) SC 573, has held that recorded tenure holder, having prima facie title and possession, filing suit of cancellation of sale deed executed in favour of respondent can be decreed by the trial court but position would be different if the person is not recorded tenure holder. The paragraph no.7 of the judgment is as follows:- "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. 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." 13. The Apex Court in the case of Azhar Hasan and Others vs. District Judge, Saharanpur and Others, (1998) 3 SCC 246 has held that civil court has no jurisdiction to entertain a suit where the plaintiff is not recorded in the revenue record. 14. This court in the case of Kamla vs. Smt. Gulabi Devi and Another, (2015) 127 RD 110 has held that civil court has no jurisdiction in a case where plaintiff is not recorded in the revenue records and files a suit for permanent injunction. 15. The lower appellate court has also considered the case reported in 2007 Allahabad Civil Journal page 1275 (Kamla Prasad and Others vs. Krishnakant Pathak and Others) where the Apex Court has held that suit in respect of abadi and agricultural land for cancellation of sale deed will lie in revenue court as plaintiff was not found to be recorded in the revenue records. 16. The trial court as well as lower appellate courts have thoroughly considered the evidence relied upon by the parties by deciding the issues and point of determination and have recorded finding of fact that plaintiff was not recorded in the revenue record, as such, the civil suit for permanent injunction and possession is barred by Section 331 of the U.P. Z.A. & L.R., Act. The courts below have also recorded finding of fact that plaintiff is not in possession of the disputed plot and the sale deed executed by defendant no.1 (recorded tenure holder) in favour of defendant no.2, was the healthy mental act of defendant no.1, as such, the suit and civil appeal filed by plaintiff was dismissed concurrently by the courts below. 17. 17. After considering the findings recorded by the trial court on each and every issue as well as by the lower appellate court on each and every point of determination, no substantial questions of law as framed in the memorandum of appeal by the appellants as well as argued by him, are arises in the second appeal. 18. The second appeal lacks merit and the same is hereby dismissed under Order 41 Rule 11 C.P.C.