Prasad & Ors Vs. Sri Krishna Kant Pathak & Ors  Insc 115 (9 February 2007)
C.K. THAKKER & LOKESHWAR SINGH PANTA
C.K. THAKKER, J.
This appeal is filed by the appellant-original defendant Nos. 1 to 6 against
an order dated August 10, 2001, passed by the High Court of Judicature at Allahabad
in Civil Miscellaneous Writ Petition No. 386 of 1990.
One Kishna Kant Pathak-respondent No.1 herein, filed a suit against the
appellant and respondent Nos. 2 to 12 in the Court of Civil Judge, Jaunpur
being Suit No.
110 of 1984. It was averred in the suit that an agreement to sell dated June
18, 1981 entered into between the plaintiff and defendant Nos. 1 to 6, sale
deed dated November 7, 1981 executed in their favour and another sale deed,
dated December 16, 1981 executed by the plaintiff in favour of defendant Nos. 2
& 3 were illegal, without authority of law and null and void. A prayer was,
therefore, made to cancel those documents. It was stated by the plaintiff in
the plaint that he and defendant Nos.10 to 12 were co-bhoomidars of the
disputed land and as such defendant Nos.10 to 12 had also right in the disputed
property. The names of defendant Nos.10 to 12, however, were not entered in the
Revenue Record and only the name of plaintiff was recorded. But in view of
shares of defendant Nos.10 to 12, plaintiff alone had no right, title or
interest to sell the property.
It was also alleged in the plaint by the plaintiff that he had developed bad
habits and defendant Nos.1 to 9 took undue advantage of the said situation. The
plaintiff was under intoxication and the documents got executed by contesting
defendants. The plaintiff did not remember the execution of the sale deed and
its presentation before the Sub-Registrar, Kerakat. He did not execute the sale
deeds with his freewill and on his own accord. Nothing was paid to him. He was
given tablets by defendant Nos.
1 to 9 and he became unconscious. At the time of execution of sale deed, the
plaintiff was unconscious and was unable to understand judgment of his act.
Defendant Nos. 1 to 9 became vendees on the basis of sale deeds but they
were liable to be cancelled in view of the circumstances under which the
documents were executed by the plaintiff.
The contesting defendants raised several contentions including the
contention as to the jurisdiction of Civil Court to entertain, deal with and
decide the suit. It was contended that in respect of cancellation of deeds as
regards agricultural land, the suit was not entertainable by a Civil Court as
only Court which had jurisdiction was Revenue Court under the provisions of the
U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as
It was prayed by the defendants to treat the issue as to jurisdiction of the
Court as preliminary issue and decide it.
The Trial Court, after considering the contentions of the parties, held that
the suit was cognizable by the Civil Court so far as abadi land was concerned.
It had, however, no jurisdiction in respect of agricultural land and to that extent,
the preliminary objection raised by the contesting defendants was well-founded
and was upheld.
The aggrieved plaintiff preferred an appeal being Civil Miscellaneous Appeal
No. 242 of 1986. The appeal came up for hearing before the III Additional District
Judge, Jaunpur who confirmed the order passed by the Trial Court and dismissed
the appeal. Dealing with submission of the parties, the Appellate Court
observed that the Trial Court was right in holding that it had no jurisdiction
to decide the question as to validity of sale- deeds in respect of agricultural
land, particularly in view of the case put forward by the plaintiff in the
plaint that over and above the plaintiff, defendant Nos.10 to 12 had also share
therein. Such a suit, according to the Appellate Court could be entertained
only by Revenue Court. According to the Appellate Court, how much share belongs
to plaintiff in the disputed land was a question which could be determined only
by Revenue Court. He was, therefore, obliged to file suit for declaration in Revenue
Court under Section 229B of the Act.
The Appellate Court also observed that the record showed that mutation on
the basis of the impugned sale deed had been effected by the revenue authority,
name of the plaintiff had been deleted from Revenue Records and the names of
contesting defendants had already been entered in his place. Observing that
"title follows possession" and it would be presumed that plaintiff
was not in possession over the disputed land, the Appellate Court observed that
the question of possession of agricultural land could be decided only by Revenue
Court and Civil Court had no jurisdiction to give any finding on possession
over the agricultural land.
Accordingly, the appeal was dismissed.
The plaintiff challenged the said order by filing a writ petition in the
High Court which was allowed by holding that since the prayer of the plaintiff
in the plaint was for cancellation of sale deed and declaration that they were
void, only Civil Court had jurisdiction which could decide such question. The
suit was, accordingly, held maintainable before Civil Court and the orders
passed by both the Courts were set aside.
The aggrieved defendants have approached this Court. We have heard learned
counsel for the parties.
The learned counsel for the appellants-defendants contended that the Trial
Court as well as Appellate Court were right in holding that Civil Court had no
jurisdiction to decide the question as to ownership of agricultural land and
the only Court which could decide such question is Revenue Court and the High
Court had committed an error in reversing the said orders which deserve
interference by this Court. It was submitted that so far as abadi land is
concerned, the Court was right that it could be decided by Civil Court but in
respect of agricultural land, Civil Court has no jurisdiction.
Plaintiff was bound to approach Revenue Court under the provisions of the
Act. It was also submitted that the High Court had committed an error of law
and of jurisdiction in not considering the fact that the case of the plaintiff
in the plaint itself was that over and above plaintiff, defendant Nos. 10 to 12
had also right in the agricultural land. Such a question can be decided only by
Revenue Court in a suit filed under Section 229B of the Act. It was also
submitted that when the name of the plaintiff was deleted and of the purchasers
entered in Revenue Records, Revenue Court alone could consider the grievance of
the plaintiff. It was, therefore, submitted that the appeal deserves to be
allowed by setting aside the order passed by the High Court and restoring the
orders of the Courts below.
The learned counsel for the respondent-plaintiff, on the other hand,
supported the order of the High Court and contended that it rightly decided
that Civil Court has jurisdiction and the case deserves to be decided on merits
by dismissing the appeal.
Having heard the learned advocates for the parties, in our opinion, the
submission of the learned counsel for the appellants deserves to be accepted.
So far as abadi land is concerned, the trial Court held that Civil Court had
jurisdiction and the said decision has become final.
But as far as agricultural land is concerned, in our opinion, the Trial
Court as well as Appellate Court were right in coming to the conclusion that
only Revenue Court could have entertained the suit on two grounds.
Firstly, the case of the plaintiff himself in the plaint was that he was not
the sole owner of the property and defendant Nos. 10 to 12 who were proforma
defendants, had also right, title and interest therein. He had also stated in
the plaint that though in the Revenue Record, only his name had appeared but
defendant Nos. 10 to 12 have also right in the property. In our opinion, both
the Courts below were right in holding that such a question can be decided by a
Revenue Court in a suit instituted under Section 229B of the Act. The said
section reads thus:
229B. Declaratory suit by person claiming to be an asami of a holding or
Any person claiming to be an asami of a holding or any part
thereof, whether exclusively or jointly with any other person, may sue the
landholder for a declaration of his rights as asami in such holding or part, as
the case may be.
In any suit under sub-section (1) any other person claiming to hold as asami under the landholder shall be impleaded as defendant.
The provisions of sub-sections (1) and (2) shall mutatis mutandis apply
to a suit by a person claiming to be a bhumidhar, with the amendment that for
the word 'landholder' the words "the State Government and the Gaon
Sabha" are substituted therein.
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.
In this connection, the learned counsel for the appellant rightly relied
upon a decision of this Court in Shri Ram & Anr. v. Ist Addl. Distt. Judge
& Ors., (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".
The instant case is covered by the above observations. The lower Appellate
Court has expressly stated that the name of the plaintiff had been deleted from
Record of Rights and the names of purchasers had been entered. The said fact
had been brought on record by the contesting defendants and it was stated that
the plaintiff himself appeared as a witness before the Mutation Court, admitted
execution of the sale deed, receipt of sale consideration and the factum of
putting vendees into possession of the property purchased by them. It was also
stated that the records revealed that the names of contesting defendants had
been mutated into Record of Rights and the name of plaintiff was deleted.
In the light of the above facts, in our opinion, the Courts below were
wholly right in reaching the conclusion that such a suit could be entertained
only by a Revenue Court and Civil Court had no jurisdiction. The High Court by
reversing those orders had committed an error of law and of jurisdiction which
deserves interference by this Court.
For the foregoing reasons, the appeal
deserves to be allowed and is accordingly allowed. The order passed by the High
Court is set aside and that of the Courts below is restored. In the facts and
circumstances of the case, however, there shall be no order as to costs.