Ram & Anr Vs. Ist Addl. Distt. Judge & Ors  Insc 72 (7 February 2001)
V.N.Khare V. N. Khare, J.
question for decision in this appeal is whether a suit laid in the civil court
by a recorded tenure holder in possession for cancellation of the sale deed in favour
of the respondents executed by some imposters in respect of the land is barred
under Section 331 and Schedule II of the U.P.
Abolition and Land Reforms Act, 1950 (hereinafter referred to as the the Act).
The aforesaid question has arisen out of a suit brought by the
plaintiff-appellants for cancellation of sale deed alleged to be executed in favour
of respondent Nos.3 and 4. The case of the plaintiff-appellants is that one Smt.
Vidyawati Devi, who was the owner and Bhumidar of the land in dispute,
transferred the said plot of land by a registered sale deed dated 12th July, 1984 in their favour. Subsequently, the
vendor Smt. Vidyawati Devi delivered the possession of the said plot of the
land to the appellants and accordingly their names got mutated in the revenue
records. The further case of the appellants is that, subsequently,
defendant-respondent Nos. 3 & 4 forged an agreement for sale of the said plot
of land in their favour. It is also the case of the appellants that on 24th
July, 1984, respondent Nos. 3 & 4 got the sale deed executed in their favour
by projecting some imposter as Smt Vidyawati Devi for an alleged consideration
of Rs. 60,000/- and on the strength of the said forged sale deed,
defendant-respondent Nos. 3 & 4 attempted to interfere with the possession
of the appellants over the said plot of land. It is under such circumstances
the appellants brought a suit in civil court for cancellation of the sale deed
dated 24th July, 1984 as well as for grant of injunction.
Before the trial court, defendant-respondents took up the plea that the suit
filed by the appellant is barred by Section 331 and Schedule II of the Act and
the remedy available to the appellants is to file a suit in the revenue court.
This plea of the defendant-respondents was treated as a preliminary issue and
was decided in favour of the appellants. The respondents thereafter preferred
an appeal against the order of the trial court which was dismissed. However,
the writ petition filed by the respondents against the appellate order was
allowed by the High Court and the orders passed by the trial court as well as
the appellate court were set aside. The appellants thereafter filed a review
petition which was dismissed by an order dated 4th October 1996. The High Court, while allowing the writ petition was of
the view that since Smt. Vidyawati Devi the original owner (vendor) has not
filed any suit for cancellation of the sale deed dated 24th July, 1984 in the
civil court, the suit filed by the appellants was barred by Section 331 and
Schedule II of the Act and the remedy available to the appellants is to file
suit in the Revenue Court. The validity of the said order and judgment of the
High Court is impugned in the present appeal.
counsel appearing for the appellants urged that the view taken by the High
Court that since vendor Smt. Vidyawati Devi has not filed any suit for
cancellation in the civil court and, therefore, the suit filed by the
appellants was not maintainable in civil court is erroneous and based on no
evidence. He further argued that there was ample evidence on record to show
that Smt. Vidyawati Devi has also filed a suit in civil court praying for
cancellation of the sale deed dated 24th July, 1984. We have looked into the record and
find that Smt. Vidyawati Devi has also filed a suit in civil court for
cancellation of the alleged sale deed dated 24th July, 1984. This is not disputed by learned counsel for the respondents.
We, therefore, find that the very premise on which the writ petition was
allowed is based on no evidence.
counsel appearing for the respondents then urged that assuming that Smt. Vidyawati
Devi did file a suit for cancellation of the sale deed dated 24th July, 1984 in
the civil court still the suit filed by the appellants in the civil court was
not maintainable as the same is barred under section 331 of the Act. In other
words argument is that as per allegation in the plaint if the document is void
there is nothing to cancel or set aside. It is simply to be ignored. The
document is not voidable and, therefore, the civil court has no jurisdiction to
entertain and decide the suit and it is only Revenue court which has
jurisdiction to decide the suit for declaration. Learned counsel strongly
relied upon the decision in Gorakh Nath Dube vs. Hari Narain Singh and others
(1973) 2 SCC 535, in support of his argument.
present case what we find is that vendor Smt. Vidyawati Devi admitted that she
had executed a registered sale deed in favour of the appellants on 12th July, 1984.
also admitted that she delivered the possession of the said land to the
appellants and the appellants are in possession over the said plot of land. It
is also on record that the names of the appellants have been ordered to be
recorded as a tenure holder in the revenue record. The aforesaid facts show
that the appellants are the recorded tenure holder in possession of the plot in
dispute in pursuance of the sale deed dated 12th July, 1984. The question that now arises for consideration is whether
a recorded tenure holder having prima facie title in his favour and in
possession is required to file a suit in the revenue court or the civil court
has jurisdiction to entertain and decide the suit seeking relief for
cancellation of a void document. In Ram Padarath vs. Second ADJ, Sultanpur
(1989) RD p.21, a Full Bench of Allahabad High Court considered this aspect of
the matter and held thus:
of the view that the case of Indra Dev vs. Smt. Ram Pyari, has been correctly
decided and the said decision requires no consideration, while the Dvision
bench case, Dr. Ayodhya Prasad vs. Gangotri Prasad is regarding the
jurisdiction of consolidation authorities, but so far as it holds that suit in
respect of void document will lie in the revenue court it does not lay down a
good law. 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 and a tenure
holder is necessarily needed in which event relief for cancellation will be
surpluses 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. (emphasis supplied) The
correctness of the decision in the above case has not been challenged before
us. In fact, the said decision was approved in Smt. Bismillah vs. Janeshwar
Prasad and others (1990) 1 SCC 207. In Gorakh Nath Dube (supra) which is
strongly relied upon by learned counsel for the respondents, it was held thus.
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..
said decision is distinguishable and is of no help to the case of the
respondents. The observation quoted above has to be understood in the context
of the fact of the case. In the said case, the plaintiff had filed a suit for
cancellation of the sale deed to the extent of half share claimed by the
plaintiff and also an award of possession of the plaintiffs share. In the suit,
it was alleged that the vendor had no title to the extent of half share in the
land and, therefore, the sale deed to that extent is void. In the said case
there was no prima facie title in favour of plaintiff and his title to the land
and delivery of possession was required to be adjudicated.
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.
the aforesaid reasons, we are of the opinion that the view taken by the High
Court in allowing the writ petition suffers from serious infirmity. The appeal,
therefore, deserves to be allowed. Consequently, the judgment under appeal is
set aside. The trial court is directed to proceed with the suit on merits.
There shall be no order as to costs.