Vishva Nath Yadav vs Smt. Kalawati Devi And 3 Others
2016 Latest Caselaw 2073 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 19
 
Case :- SECOND APPEAL No. - 353 of 2016
 
Appellant :- 		Vishva Nath Yadav
 
Respondent :- 	Smt. Kalawati Devi & 3 Ors.
 
Counsel for Appellant :-     Ramesh Chandra Singh
 
Counsel for Respondent :- Kamal Kumar Singh
 

 
Hon'ble Pramod Kumar Srivastava,J.

1. Heard learned counsel for the parties and perused the records.

2. In original suit no. 867 of 2009 (Vishva Nath Yadav v. Balli Yadav & others), the plaint case in brief was that disputed agricultural property is ancestral one, which was earlier owned by grand-father of plaintiff Kauleshwar. After the death of Kauleshwar, his son Balli Yadav (father of plaintiff, and defendant no.-1), plaintiff Shiv Nath Yadav (husband of defendant no.-2 Asharfi Devi) and Kattal @ Surya Nath (husband of defendant no.-3 Kalawati Devi) became co-owners of this property. Plaintiff is owner of half of the disputed agricultural property but his father Balli Yadav, defendant no.-1 had executed gift-deed of said property in favour of his daughter-in-laws (defendant nos. 2 and 3). Since the plaintiff's father had no right to execute the gift-deed of whole of the disputed property, and the plaintiff is owner of half share of this land and is in its joint possession, and since the gift-deed dated 30.05.2009 was executed by defendant no.-1 without his free will and under influence of drug, therefore the plaintiff had filed suit for cancellation of said gift-deed, and also for permanent injunction with prayer that defendants be restrained from interfering in joint possession and user of half share of disputed agricultural field and from transferring it in favour of any third person without getting it partitioned.

3. After accepting written statement and affording opportunity of hearing to the parties, Civil Judge (J.D.) Mohammadabad Gohna, Mau had decreed the original suit and restrained defendants from interfering in half share of agricultural field and its crops of plaintiff and evicting the plaintiff without getting it partitioned and from transferring any particular share of property in question.

4. Against the judgment of trial court, civil appeal no. 52/2013 (Kalawati v. Vishva Nath Yadav & others) was preferred, which was heard and allowed by the judgment dated 18.2.2016 of District Judge, Mau. In this judgment, inter alia, first appellate court had held that plaintiff is not entitled for the relief claimed in suit because of facts that he had failed to prove registered gift-deed in question was result of fraud or misrepresentation or undue influence over defendant no.-1. On the point of law, first appellate court had held that if plaintiff claims to be the co-owner of disputed agricultural land, then he can get relief of permanent injunction only after he gets his share in disputed land partitioned under Section 176 of UPZA & LR Act. On the basis of these findings, first appellate court had reversed the judgment of trial court and dismissed the original suit by allowing the appeal.

5. Aggrieved by the judgment of first appellate court, present second appeal has been preferred by plaintiff of the original suit.

6. The first main contention of learned counsel for the appellant was that defendant no.-1 Balli Yadav had given statement in court that he had not willingly executed the gift-deed but at the time of his treatment he was drugged by his daughter-in-law who had manipulated the execution and registration of gift-deed, and he had put his thumb impression on this document without understanding its contents. He contended that on the basis of this statement alone, registered gift-deed in question is liable to be cancelled. He further contended that since plaintiff-appellant is coparcener and co-owner of disputed agricultural land, therefore, he has right to get injunction for securing his legal rights. He contended that lower appellate court had erroneously ignored these facts and passed erroneous judgment, therefore, appeal should be admitted for being allowed.

7. These contentions were refuted by learned counsel for the respondents who submitted that there has been correct finding of fact of first appellate court that no misrepresentation or fraud was committed in execution of gift-deed in question, and this finding of fact being not erroneous should not be reversed in second appeal on factual ground. His alternative argument was that in any case gift-deed in question was voidable document at the option of the who had not filed suit for its cancellation. On the other hand he (defendant no.-1 Balli Yadav) himself had filed joint written-statement with other defendants pleading specifically that no overt act was committed during execution of said registered document, so original suit should be dismissed. He contended that in the light of this pleading of written-statement, defendant no.-1 is estopped from pleading otherwise and his statement against his own pleadings should not be believed. He further submitted that suit is barred by provisions of Section 331 UPZA & LR Act because no relief can be granted to plaintiff unless he is declared owner of half share of disputed agricultural property, which can be declared only by revenue court and not by civil court.

8. So far as factual aspect of the matter relating to gift-deed in question is concerned, this point has been properly discussed by the first appellate courts, including those facts and circumstances also, which were not properly appreciated by the trial court. After it, lower appellate court had given finding that it is not proved that gift-deed in question was result of misrepresentation, fraud or alleged intoxication of defendant no.-1. The findings given by first appellate court in this regard are apparently correct and acceptable. These findings were given by lower appellate court after scrutinizing meticulously each and every point relating to execution of registered deed in question, and are found not infirm or erroneous. Apart from it, this contention of learned counsel for the respondent is acceptable that if defendant no.-1 had executed whole share of his disputed property to other defendants, then in case of any misrepresentation, fraud, undue influence or other like overt acts such document will be voidable only at the option of its executor, that is the defendant no.-1. Even if such document was executed in suspicious circumstances, in that case also on those grounds it could not be challenged or cancelled by any other person except its executor Balli (Defendant no.-1) who is a person of sound mind and had not opted for its cancellation. Therefore, this finding of lower appellate court is found erroneous not that disputed gift-deed dated 30.05.2009 executed by defendant no.-1 in favour of other defendants cannot be cancelled.

9. Learned counsel for the appellant cited ''Bechu Vs. Ram Bujharat and and others, 1979 ALJ, 792' and contended that on the basis of this citation, suit of cancellation of gift-deed is maintainable in civil court and reading of this ruling makes the argument of appellant side is unacceptable. In this ruling it is simply mentioned as suit for cancellation of gift-deed on the ground of undue influence being voidable document is maintainable in civil court. This legal position in its limited purview is acceptable but this point was not discussed in this judgment that on whose option such voidable document can be challenged in civil court. In present matter the suit for cancellation may be maintainable at the option of defendant no.-1 who has been recorded as bhumidhar of disputed land, and had option to get the voidable document cancelled. Such rights are not available to plaintiff-appellant. Therefore this ruling is not going to help the appellant side.

10. Apart from it if it is accepted for the sake of argument that plaintiff is recorded co-bhumidhar of disputed property then for protecting his share firstly he should get his rights declared regarding his share from revenue court, and then as rightly held by first appellate court, he should seek partition of disputed land for restraining the other co-bhumidhar from exercising their rights.

11. The suit of plaintiff-respondent has been based on claim of his ownership and bhumidhari rights over disputed agricultural land, for which the plea of bar of suit under Section 331 UPZA & LR Act was taken by defendants. Section- 331 of U.P. Zamindari Abolition & Land Reforms Act, 1950 reads as under:

"331. Cognizance of suits, etc under this Act.- (1) Except as provided by or under this Act no court other than a court mentioned in Column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908, (5 of 1908) take cognizance of any suit, application or proceedings based on a cause of action in respect of which any relief could be obtained by means of any such suit or application:

Provided that where a declaration has been made under Section 143 in respect of any holding or part thereof, the provisions of Schedule II in so far as they relate to suit, application or proceedings under Chapter VIII shall not apply to such holding or part thereof;

Explanation- If the cause of action is one in respect of which relief may be granted by the revenue court, it is immaterial that the relief asked for from the civil court may not be identical to that which the revenue court would have granted."

12. This section provides that no court other than court mentioned in Column 4 of Schedule II shall, notwithstanding anything contained in C.P.C., take cognizance of any suit, application or proceedings, mentioned in Column 3 thereof, or of a suit, application or proceedings based on cause of action in respect of which any relief could be obtained by means of any such suit or application. In Schedule II of this Act serial number-34 of Column-3 deals with ''Suit for declaration of rights'; and in front of it in column-4 the name of court of original jurisdiction is given as ''Assistant Collector, 1st Class'.

13. The main ground taken for cancellation of gift-deed in plaint is that plaintiff is owner of half of the share of the disputed property but there is no averment in plaint that plaintiff/appellant has been recorded in revenue records as bhumidhar or co-bhumidhar of this property. Admittedly it was only defendant no.-1 Balli Yadav whose name was recorded over disputed land as bhumidhar. The plaintiff's suit cannot be decreed unless he is declared or recognized as co-bhumidhar of half of the share of the disputed property. The pith and substance of the disputed is exercise of bhumidhari rights by appellant over disputed property.

14. In fact for an adjudication of an issue relating to jurisdiction the averments contained in the plaint have to be taken in their entirety. The effort of the court has to be to gather the pith and substance of what is alleged in the plaint. The pith and substance of the plaint in the instant case necessarily involved the adjudication of the question as to whether the plaintiffs were or not the bhumidhars of the land in dispute to the extent of half share. The plaintiff-appellant was not recorded in revenue papers and entry stood in favour of defendant no.-1, which was never challenged even during consolidation proceedings. Obviously, therefore, the plaintiff had to seek a declaration in his favour. Moreover, the absence of the names of the plaintiff in the revenue record necessitates an action for declaration on the part of the plaintiffs because the entries may not be set right without such declaration being asked for and given as contemplated under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act. There can be no escape therefore, from the conclusion that upon the cause of action set up in the plaint, the suit would lie for declaration in the revenue court under Section 229-B of the U.P. Act No.1 of 1951.

15. No doubt, there is no relief of declaration claimed in the plaint, but that is not really material. In essence the claim of the plaintiffs was that they were owners of the property, while the claim of defendants was that the plaintiffs were not the owners of the property. Thus, adjudication of title was, in substance the main question involved in the suit, even though it was not expressly prayed for in the plaint. Thus, the essence of the matter in deciding whether the suit is cognizable by the civil Court or the revenue Court is whether Section 331 of the U.P. Zamindari Abolition and Land Reforms Act is attracted to the facts of the case. If the substance, the main question involved relates to declaration of right or title, then the suit would lie in the revenue court and not in the civil court.

16. The present case of plaintiff-respondent is based on claim that he is owner and co-bhumidhar of disputed land. Admittedly the name of defendant-respondent are recorded as bhumidhar on disputed land i.e. agricultural 'land' as defined in UPZA & LR Act. Even the alleged relief of permanent injunction regarding disputed land is also based on the relief of declaration of title of disputed agricultural 'land'. Therefore it is explicitly clear that only the court of Assistant Collector has jurisdiction to grant these reliefs, and Civil Court has no jurisdiction to decide the suit or other proceeding based on cause of action for declaration of ownership rights of such agricultural land. So this finding of first appellate court is erroneous and cannot be upheld that plaintiff is entitled for the relief of injunction based on recognition of bhumidhari rights which is within exclusive jurisdiction of revenue courts.

17. The contention of learned counsel for the appellant is that he is also in joint possession of disputed property, which should not be disturbed. From above discussion, it is explicitly clear that main relief sought by plaintiff-appellant is based on declaration/ recognition of his alleged right of bhumidhari over disputed agricultural land, but it cannot be granted to him by civil court, and therefore, claim of plaintiff/appellant is barred by Section 331 of UPZA & LR Act. So for the sake of argument, even if his possession is accepted, in that case also the plaintiff-appellant is not entitled for the relief claimed. Therefore for the dispute of possession of disputed property is concerned, the plaintiff-appellant may approach the revenue court for obtaining required relief which has exclusive jurisdiction to decide the real dispute between the parties.

18. It is admitted legal position that the ownership dispute or rights relating to agricultural land can be decided only by revenue court and the jurisdiction of civil court in this regard is barred under Section 331 of UPZA & LR Act. For granting relief of permanent injunction regarding such land, which is recorded in name of defendant-appellant, it has to be declared that plaintiff-respondents are co-bhumidhar of this disputed land. Since such declaration of bhumidhari rights cannot be granted by civil court as its jurisdiction is barred and since without such declaration plaintiff is not entitled for the relief of permanent injunction, which also involves declaration of such right, therefore, the judgment of first appellate court is found neither erroneous nor perverse. Therefore, judgment of lower appellate court on point of law is found correct, which is confirmed.

19. On examination of the reasoning recorded by the learned first appellate court in first appeal, I am of the view that judgment in civil appeal as above is well reasoned, and is based on proper appreciation of entire evidences available on record. No perversity or infirmity is found in finding recorded by the first appellate court to warrant interference through this appeal. No substantial question of law was involved before this Court. None of the contentions of the learned counsel for the appellant can be sustained.

20. In view of the above, this appeal is dismissed.

Order Date :- 29.04.2016

Sanjeev