Ram Kishor vs A.D.J.
2013 Latest Caselaw 5995 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

								Reserved on 11.9.2013
 
								Delivered on 23.9.2013
 

 
Case :- WRIT - C No. - 4041 of 1992
 

 
Petitioner :- Ram Kishor
 
Respondent :- A.D.J.
 
Counsel for Petitioner :- H.C. Kharbanda,S.K. Srivastava
 
Counsel for Respondent :- S.C.
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Review Application No. 221135 of 2012

Heard  Sri Rahul Srivastava, learned  counsel  for the applicants petitioners and the learned  Standing  Counsel  for the respondents.

The review application has been filed by the applicants for review of order dated 12.4.2012 passed by Hon'ble Sunil Hali, J. as he then was on the ground that there is error apparent on the face of record as the view taken by the learned Single Judge that the suit filed for cancellation of sale deed dated 23.10.1984 by the respondent no. 2 will lie in the Civil Court is against law as it has no jurisdiction in the matter.

Learned counsel for the applicants submits that the ratio of the judgment of Full Bench of this Court in Ram Padarath and others vs. Second Additional District Judge and others reported in 1989 RD page 21 as affirmed by the Apex Court in the case of Bismillah vs. Janeshwar Prasad reported in AIR 1990 SC 540 as also the judgment of the Apex Court in Sri Ram Vs. Additional District Judge reported in 2001(92) RD 241 has been wrongly applied/interpreted in order to arrive at a conclusion that the suit for cancellation of sale deed will lie in the Civil Court. While elaborating his arugments, learned counsel for the applicants petitioners submits that the suit was filed for cancellation of sale deed by the respondent no. 2 on the ground that it was got executed by impersonation and fraud. The relief claimed by him was for cancellation of sale deed as well as for declaration of his rights. Learned counsel for the applicants submits that after execution of sale deed on 23.10.1984, the petitioners' names were mutated in the revenue record and and they were put in possession of the land which was subject matter of the sale deed. Now applicants petitioners are the recorded tenure holders of the land in question. The mutation was given effect to by order dated 30.4.1985. After the mutation of the name of the applicants petitioners, the suit filed by the plaintiff respondent no. 2 before the Civil Court is barred by Section 331 of the U.P. Z.A. & L.R. Act (hereinafter referred to as the 'Act). Learned counsel for the petitioners further submits that the jurisdiction lies only with the Revenue Court with regard to the land in question which is admittedly an agricultural land.

In order to substantiate his arguments, learned counsel for the applicants heavily relied upon the judgment of the Apex Court in Kamla Prasad & others vs. Sri Krishna Kant Pathak and others in Civil Appeal No.3659 of 2003 reported in 2007(4)SCC 213. Placing reliance upon paragraph 12 and 13 of the judgment passed in Kamla Prasad (supra), learned counsel for the applicants petitioners submits that the instant case is squarely covered by the observations made in Kamla Prasad(supra) in the aforementioned paragraphs. He submits that in case of Kamla Prasad the suit was filed by the vendor for cancellation of two sale deeds on the ground that the document was got executed by the contesting defendants when the plaintiff was under intoxication. He was given tablets by the defendants and he became unconscious at the time of execution of the sale deed. The plaintiff was unable to understand the fraud played on the execution of sale deeds and they were liable to be cancelled in view of the circumstances under which the documents were executed by the plaintiff. It was further claimed by the plaintiff in the case of Kamla Prasad(supra) that he was not sole owner of the property and the defendant nos. 10 to 12 who were proforma defendants had also right, title and interest being co-sharer in the property. As such plaintiff alone had no right or interest to sell the property. Considering the submission of the plaintiff the Apex Court observed that as the plaintiff had claimed that other persons defendant nos. 10 to 12 had also right, title and interest in the property, therefore, both the courts below were right in holding that such a question can only be decided by a Revenue Court in the suit instituted under Section 229-B of the Act.

On the second question of mutation of name of the purchasers in the record of rights and deletion of name of the plaintiff from the record it was observed that since the name of 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 can not be decided by a Civil Court. The Apex Court in Kamla Prasad(supra) considering observations made in case of Sri Ram(supra) has held that as the name of plaintiff has been deleted from the record of rights and the name of purchaser has been entered and mutated in record of rights, the courts below were right in coming to the conclusion that such a suit could be entertained only by the Revenue Court and the Civil Court had no jurisdiction. The High Court by reversing the orders passed by the Civil Court had committed an error of law and of jurisdiction. The appeal was allowed and the judgment and order passed by the High Court was set aside.

Learned counsel for the applicants petitioners submits that the observations made in paragraph 12 and 13 of the judgment of the Apex Court in Kamla Prasad (supra) was not considered by the learned Single Judge while dismissing the instant writ petition. He vehemently argued that as the names of the purchasers petitioners have been recorded in the revenue records after the mutation proceedings were concluded on 30.4.1985, on the date of filing of the suit for cancellation of sale deed before the Civil Court, the plaintiff was not a recorded tenure holder having prima facie title with regard to the land in question. As the possession has also been delivered, the plaintiff was not in possession of the suit at the relevant point of time . Thus, he is required to seek declaration of his title of the land.

As the jurisdiction with regard to declaration of title of an agricultural land lies with the Revenue Court, the suit filed by the plaintiff for cancellation of sale deed could not have been maintained in the Civil Court. The Courts below have committed error in entertaining the suit.

Dealing with the contention of learned counsel for the petitioner in so far as reliance placed on the case of Kamla Prasad(supra) is concerned, it may be noted that facts of the said case are different from the facts of the present case. In case of Kamla Prasad(supra), the plaintiff filed a suit for cancellation on the ground of fraud against the vendee. However, in the plaint, his specific averment was that he was not the sole owner of the property which was subject matter of two sale deeds. There were other Co-tenure holders of the disputed land. The Apex Court while dealing with the first issue categorically held that in so far as rights of defendants no. 10 to 12 i.e. other co-tenure holders are concerned, that can only be decided by the Revenue Court in the suit instituted under Section 229-B of the Act, meaning thereby the plaintiff had no absolute title to the disputed property. Prima facie title of the plaintiff regarding disputed land was under cloud in view of his own assertions in the claim set up in the plaint and in these circumstances the Apex Court recorded that once the name of plaintiff has been deleted from the Revenue record and possession has been handed over to the purchaser whose name was entered in the revenue record after mutation, the suit could only be entertained by the Revenue Court and not by the Civil Court, as the matter requires declaration of the title of plaintiff to the disputed land.

In so far as the present case is concerned, it is not in dispute that the plaintiff was sole owner of the suit property. He sought cancellation of the sale deed dated 23.10.1984 on the ground that it was executed by impersonation and fraud was committed on him and he never executed the said sale deed. A perusal of of the plaint (Annexure 1 to the writ petition) indicates that only relief sought in the suit was cancellation of sale deed, no relief of declaration of title was sought as contended by the learned counsel for the applicants petitioners.

Learned counsel for the applicants further vehemently argued that after mutation of names of purchasers i.e. petitioners, the title of the plaintiff respondent no. 2 came under cloud and the plaintiff not being a recorded tenure holder cannot be said to have prima facie title in the suit property. He is required to seek declaration of his title from the revenue Court which is the only competent court having jurisdiction with respect to agricultural land. The said contention of the learned counsel for the applicant petitioners is misconceived and cannot be accepted for the reason that in any circumstance, the plaintiff who was alleged to have executed the sale deed in favour of the defendants applicants had right, title and interest in the suit property on the date of execution of the sale deed i.e. 23.10.1984. He cannot be said to be a person who has no prima facie title in the suit property.

Moreover, it is well settled that mutation does not confer any right or title in the property. Entries in the revenue records are for fiscal purposes and are relevant to show only prima facie possession of the person whose name is recorded therein. The defendants applicants cannot submit that the person i.e. plaintiff who is alleged to have executed the sale deed in their favour did not have title or interest in the suit property or his title is under cloud merely for the reason that the names of defendants have been recorded after deletion of name of the plaintiff from the revenue record. Admittedly, the title of the applicants defendants flows from the title of the plaintiff respondent no.2. In case the title of the plaintiff is  under cloud, then the defendants applicants could not have any right, title or interest in the property as it  was transferred through a sale deed executed  by the plaintiff, though the  plaintiff denies execution of the same.

In any case, the contention of learned counsel for the applicants that the suit for cancellation of sale deed executed in favour of the defendants applicants, is cognizable by the revenue court as the plaintiff requires declaration of his title cannot be accepted. Thus, it is concluded that observations made in Kamla Prasad (supra) by the Apex Court would not be applicable in the facts and circumstances of the present case as the said observations were made in the peculiar facts and circumstances of that case.

Now, in so far as the law laid down in Ram Padarath (supra) affirmed by the Apex Court in Bismillah Khan (supra) and the judgment in the case of Sri Ram & another (supra), it is well settled law that the recorded tenure holder having prima facie title in his favour, if files a 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 in the revenue Court. It may be noted that in the case of Sri Ram (supra) it was observed that a recorded tenure holder having prima facie title and possession if files a suit for cancellation of sale deed cannot be directed to file a suit for declaration in the Revenue Court as in such a case, prima facie, the title of recorded tenure holder is not under cloud. He does not require declaration of his title of the land. In case, a person who is not 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 plaintiff is required to seek declaration of his title and, therefore, he may be directed to approach the Revenue Court, as the sale deed being void is to be ignored for giving him relief for declaration and possession.

Thus, the ratio of the judgments as culled out from the facts in Sri Ram(supra) is that a person, who does not have prima facie title to the land, requires to seek a declaration of his title and the suit for cancellation of sale deed at his instance cannot be maintained in civil court for the reason that he requires relief for declaration of title and possession and the relief for cancellation of sale deed, therefore, is surplus. The same view has been taken by the learned Single Judge while dismissing the writ petition on 12.4.2012, the observations made in the judgment after consideration of Ram Padarath, Bismillah Khan and Sri Ram(supra) are as follows:-

"The petitioner has come in this writ petition before this Court against the order dated 22.10.1991 passed by opposite party no.1.

In order to appreciate the controversy involved in this writ petition, certain facts of this case are required to be noted:-

Petitioner claims that a sale deed was executed in his favour by respondent no.2 on 23.10.1984 in respect of Bhumidhari land. On the basis of the sale deed, petitioner is stated to have filed an application before Tehsildar concerned for effecting mutation in his favour which is stated to have been done. However, a suit bearing Suit No. 646 of 1986 was filed by the respondent no.2 for cancellation of the sale deed dated 23.10.1984 on the ground that the sale deed was never executed by him in favour of the petitioner. He states that somebody impersonated on his behalf at the time of execution of sale deed. Preliminary objection was raised by the petitioner that the suit is barred by Section 331 of the U.P.Z.A.&L.R. Act. This objection was upheld by the learned trial Court vide its order dated 30.10.1986 whereby the Court below ordered for filing the matter before appropriate Court. Against this order an appeal had been preferred by the respondent no. 2 before the opposite party no. 1 who vide its order dated 22.10.1991 allowed the appeal and set aside the order of learned Trial Court holding that the suit is cognizable by learned Civil Court and remanded the matter back to the Trial court. Under these circumstances the present writ petition has been filed.

The contention of the petitioner is that after the execution of sale deed mutation has been effected in his favour by the Tehsildar. While rebutting the contention of respondent no.2 it is stated that it is only the revenue authority which is required to go into the question of legality of the said sale deed and the Civil Court has no jurisdiction in the matter. The contention of the learned counsel for the petitioner is misplaced and cannot be accepted.

It is trite in law that the Tehsildar does not have power to decide the issue of title. He acknowledges the possession of the person only in case the property is devolved by way of succession or by way of transfer. The right of possession flows from the title which issue can only be adjudicated in civil court. The proceedings of Tehsildar are summary and lack adjudicatory power.

The Full Bench of this Court, in the judgement reported in Ram Padarth Vs IInd Addl. District Judge, Sultanpur, 1989 RD 21, while considering the jurisdiction of the Civil/Revenue Court in respect of the void sale deed, has specifically held as follows:-

"These cases in substance lay down that suit for cancellation of void deed is cognizable by civil court and Section 331 does not deprive a party from a right to approach competent court of law for getting a document cancelled and instead drives a party to revenue court claiming a different relief and that of cancellation which a revenue court cannot grant holding the deed to be void."

The decision of Full Bench in the case of Ram Padarth (supra), was affirmed by the Supreme Court in the case of Bismillah v. Janeshwar Prasad, AIR 1990 SC 540. Reference may also be had to the judgement of Hon'ble Supreme Court reported in 2001(92) RD 241 Sri Ram v. Additional District Judge, wherein it has been held as follows:

"On the nullity of the documents we are of the opinion that where a recorded tenure holder having prima facie title and in possession, files a suit in the Civil Court for cancellation of sale deed having obtained by some fraud or impersonation cannot be permitted to file a suit for cancellation in Revenue Court, reasons have been in said case that the prima facie title of the tenure holder is not in question."

Suit for cancellation of a void document will generally lies in the Civil Court and party cannot be deprived of his right for getting this relief under the law except when a declaration of title or status of a tenure holder is necessarily involved where relief of cancellation of sale deed is surplus.

I find no force in the writ petition. It is accordingly dismissed. The trial court is directed to proceed in the matter immediately. The Court below is expected to decide the suit within a period of one year without granting unnecessary adjournments to either of the parties, from the date of production of certified copy of this order."

In the instant case as has been discussed above, there cannot be a dispute with regard to the title of the plaintiff who is alleged to have executed the sale deed dated 23.10.1984. The right of the defendants flows from the right of the plaintiff. In view thereof, the question of declaration of title and status of the tenure holder i.e. the plaintiff is not involved in the present case. The relief sought is for cancellation of sale deed on the declaration of impersonation and fraud. The said suit can only be entertained by the Civil Court and the plaintiff could not be relegated to the Revenue Court as has been held by the learned judge in the judgment and order dated 12.4.2012.

The review application is dismissed accordingly.

Order Date :- 23.9.2013

P.P.