Vedpal (Dead) And 9 Others vs Smt. Bharpai (Dead) And Anr.
2015 Latest Caselaw 3774 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 19
 

 
Case :- SECOND APPEAL No. - 858 of 2015
 

 
Appellant :- 	Vedpal (Dead) And 9 Others
 
Respondent :- 	Smt. Bharpai (Dead) And Anr.
 
Counsel for Appellant :- 	Syed Mohd. Fazal
 
Counsel for Respondent :-	Saurabh Saran, A.K. Sachan
 

 
Hon'ble Pramod Kumar Srivastava, J.

1. Original Suit No. 423/1989 (Smt. Bharpai Vs. Bishan and others) was filed for relief of permanent injunction with prayer the defendants be restrained from interfering in plaintiff's possession over disputed plot no.-167; and relief of declaration was also sought that sale-deed dated 20.06.1989 executed for disputed property by defendant no.-1 Bishan in favour of defendant no.-2 Bishan is void and ineffective. This suit was also consolidated with another original suit no. 65/1990 Indraj Vs. Bishan, in which plaintiff had sought relief of declaration that registered sale-deed dated 20.06.1989 executed by Bishan in favour of Chandrapal be declared illegal, null and void. Thus plaintiffs of both the suits have sought relief that registered sale-deed executed by defendant no.-1 Bishan in favour of defendant no.-2 Chandrapal be declared null and void and that defendants be restrained from interfering in possession of plaintiffs of original suit no. 423/1989, who claimed to be in possession of said property. Both the consolidated original suits were dismissed by judgment dated 20.12.2000 of IInd Additional Civil Judge (J.D.) Ghaziabad.

2. Against this judgment the plaintiff of original suit no. 423/1989 (Smt. Bharpai through LRs) had filed Civil Appeal no. 30/2001, which was heard and partly decreed by judgment dated 10.09.2015 of Additional District Judge/Special Judge (E.C. Act), Ghaziabad. By this judgment the first appellate court had dismissed the appeal against the judgment of original suit no. 65/1990; but partly allowed the appeal against the judgment of O.S. No.-423/ 1989 and cancelled the registered sale-deed dated 20.06.1989 executed by Bishan in favour of Chandrapal. The Civil Appeal no. 30/2001 was preferred only by the plaintiff of original suit no. 423/2001. Against this judgment Second Appeal No. 897/ 2015 (Indraj & Others v. Smt. Bharpai & Others) has been preferred only by the plaintiff of original suit no. 423/2001 which was heard and dismissed by judgment dated 30-10-2015 of this Court.

3. Another Second Appeal No.- 858/ 2015 (present Second Appeal, instituted by plaintiffs of original suit no. 65/1990) was also filed against the judgment dated 10.09.2015 of Additional District Judge/Special Judge (E.C. Act), Ghaziabad. The parties to this appeal (S.A.-858/ 2015) were the same which were parties in Second Appeal No. 897/ 2015 (Indraj & Others v. Smt. Bharpai & Others).

4. It would have been proper and appropriate that both the second appeals No. 858/ 2015 (Vedpal & Others v. Smt. Bharpai & Others) and Second Appeal No. 897/ 2015 (Indraj & Others v. Smt. Bharpai & Others) would have been heard and decided together because both were preferred against same judgment. But for the reason best known to them the pendency of this appea (S.A.-858/ 2015)l was not informed to this court, and therefore arguments in only second appeals No. 897/ 2015 were heard and the same was decided and dismissed on 30-10-2015.

5. The first contention of learned counsel for the appellant was that he was not present at the time of hearing of second Appeal no. 897/2015 due to which said appeal was heard ex-parte and was dismissed. Said judgment should not cause prejudice to the rights of present appellant. In this regard record of second appeal no. 897/ 2015 was perused and it is found that arguments on behalf of all the parties, including legal representatives of deceased Vedpal (present appellants), were preferred in that appeal and then its judgment was passed. In any case it is not the case of appellants that they had no knowledge of date of hearing of second appeal no. 897/2015. Therefore no legal right of present appellants was, in fact, prejudiced as they had been afforded opportunity of hearing before passing of the said judgment.

6. Learned counsel for the appellants further contended that trial court or the first appellate court had not framed issues or point of determination on maintainability of the original suit, so their judgment was erroneous. This argument is not acceptable, firstly, because all possible issues had been framed by trial court in the two original suits (O.S. no. 423/1989 and O.S. No. 65/1990) which were decided; and secondly, because defendant no.-1 Bishan (predecessor in interest of present appellants) had not raised specific plea in his written-statement regarding alleged non-maintainability of the original suit. All factual and legal points raised by defendants, including defendant no,-1 Bishan (predecessor in interest of present appellants in original suit), had been dealt with by the trial court as well as by first appellate court.

7. Learned counsel for the appellants contended that original owner of disputed land was Tejpal who has executed sale-deed of this property in the year 1958 in favour of one Bablu, who is predecessor interest of appellants. Thereafter another sale-deed dated 04.10.1967 of same property had been executed by him in favour of Natthu. On 29.08.1968 Natthu had executed the sale-deed of said property in favour of Munsab etc. Then these purchasers Munsab etc. had executed the sale-deed of said property in favour of plaintiff Smt. Bharpai on 07.10.1968. He contended that once Tejpal had sold the property in dispute to Bablu then he possessed no right to execute sale-deed of same property in favour of Natthu. Therefore the sale-deeds executed by him in favour of Natthu and the later sale-deeds of said property by successor in interest of Natthu are void; therefore the court below had wrongly ignored relevant facts, evidences and law, and erroneously passed the judgment in first appeal which should be quashed. Therefore, this appeal should be admitted for being allowed.

8. Learned counsel for the respondents contended that disputed agricultural property had undergone consolidation proceedings, during which consolidation courts and later on revenue court and also the High Court had confirmed the title of Smt. Bharpai (plaintiff of original suit no. 423/1989). He contended that during consolidation the title of Smt. Bharpai had been perfected; therefore the first appellate court had rightly held that sale-deed executed by defendant no.-1 in favour of defendant no.-2 for said property is void, so the said sale-deed was rightly cancelled. He contended that finding of fact in this regard by first appellate court is not erroneous, therefore there arises no question of law to admit this second appeal, which should be dismissed at this stage.

9. A perusal of the pleadings as well as two judgments of trial court as well as of first appellate court makes it clear that disputed property is agricultural land. So admittedly only the revenue court had jurisdiction to decide its title and ownership. It is also admitted legal position that when consolidation proceeding is initiated then only consolidation courts have right to determine ownership and title of such agricultural land under consolidation proceedings; and civil court has no jurisdiction to determine the title of such agricultural property. The only point of disputed between the parties in lower court was regarding ownership of disputed agricultural land. Both the parties to dispute claimed their ownership on the basis of sale-deeds executed in their favour; but it is settled legal position that when dispute relating to title and ownership of agricultural property comes under consolidation proceedings then jurisdiction of other courts seizes and such ownership can be decided only by consolidation courts. In present matter such decision of competent consolidation court has become final in favour of defendant-respondent Smt. Bharpai.

10. Pith and substance of the dispute between the parties is the ownership of agricultural land; and the point relating to authority to execute valid sale-deed for transferring ownership is an ancillary matter. Since main dispute relates to the title of agricultural land which is within jurisdiction of consolidation court, therefore the ancillary dispute relating to sale-deed or authority to execute the valid sale-deed or about the effectiveness of such sale-deed will also come within the jurisdiction of consolidation court in present matter. The main dispute between the parties relating to ownership and title of disputed agricultural property has been finally decided in favour of Smt. Bharpai (plaintiff of original suit no. 423/1989 through successors), therefore the ancillary dispute regarding authenticity and cancellation etc. of sale-deed relating to such property will also be dependent on the judgment of such main dispute finally decided by consolidation court; and after the completion of the consolidation proceedings by the competent revenue court. In such circumstances, ancillary dispute relating to relief sought in original suit regarding sale-deed in question also comes within jurisdiction of competent consolidation/ revenue court.

11. Learned first appellate court had rightly held that the competent consolidation court had decided that the plaintiff Smt. Bharpai was owner in possession and bhumidahr with transferable right of disputed agricultural land. On the basis of this judgment of consolidation court the first appellate court had rightly decided that disputed sale-deed by defendant no.-1 in favour of defendant no.-2 is without authority, null and void.

12. Trial court had given specific finding of fact that at present disputed property has been acquired by State Government; therefore, relief of permanent injunction sought by plaintiff-appellant (Smt. Bharpai) had become infructuous. Civil Court (trial court as well as first appellate court and also the High Court in civil appellate jurisdiction) is bound by such finding of competent consolidation/ revenue court regarding title of agricultural property. Therefore, there arises no question law, much less a substantial question of law in this second appeal for consideration of any factual or legal point.

13. On examination of reasonings recorded by first appellate court in first appeal, it appears that judgment of first appellate court is well reasoned and is based on proper appreciation of entire evidence on record, and no substantial question of law is involved in this case before this Court that may warrant interference by exercise of jurisdiction of second appeal. The contentions of learned counsel for the appellant in this regard cannot be sustained.

14. In view of above this second appeal is dismissed.

Order Date :- 03.11.2015

Sanjeev