Smt. Shanti @ Satiya vs Smt. Phullan Dulliaya And 5 Others
2016 Latest Caselaw 2831 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 58							Reserved
 
									AFR
 
Case :- MATTER UNDER ARTICLE 227 No. - 3687 of 2016
 

 
Petitioner :- Smt. Shanti alias Satiya
 
Respondent :- Smt. Phoolan Dullaiya And 5 Others.
 
Counsel for Petitioner :- Pankaj Saksena, Anupam Laloriya
 
Counsel for Respondent :- Arvind Srivastava, Pushkar  Srivastava
 

 
Connected with
 

 
Case :- MATTER UNDER ARTICLE 227 No. - 3688 of 2016
 

 
Petitioner :- Smt. Shanti alias Satiya
 
Respondent :- Amit Kumar Agrawal And 9 Others.
 
Counsel for Petitioner :-, Anupam Laloriya
 
Counsel for Respondent :- Arvind Srivastava, Pushkar  Srivastava
 

 
Hon'ble Ram Surat Ram (Maurya),J.

1. Heard Sri Pankaj Saksena, for the petitioner and Sri Arvind Srivastava, for caveator in both the petitions. In both the petitions, common question arise for consideration as such both the petitions are being decided by a common order.

2. Petition no. 3687 of 2016 has been filed for setting aside the orders of Civil Judge (J.D.) dated 29.10.2014, deciding issue relating to jurisdiction of civil court to try a suit for cancellation of sale deed, in respect of agricultural land, against the plaintiff and Additional District Judge dated 11.04.2016, dismissing the appeal (arising out of O.S. No. 105 of 2014) of the petitioner against aforesaid order. Petition no. 3688 of 2016 has been filed for setting aside the orders of Civil Judge (J.D.) dated 29.10.2014, deciding issue relating to jurisdiction of civil court to try a suit for cancellation of sale deed, in respect of agricultural land, against the plaintiff and Additional District Judge dated 11.04.2016, dismissing the appeal (arising out of O.S. No. 102 of 2014) of the petitioner against aforesaid order.

3. Smt. Shanti alias Satiya (the petitioner) filed a suit (registered as Suit No. 102 of 2014) for cancellation of sale deeds dated 05.01.1961, executed by Smt. Phoolan Dullaiya in favour of Kunwar Raj, 15.07.1989, executed by heirs Kunwar Raj in favour of Shashi Pathak, Manish Chandra Agrawal and Amit Agrawal and 13.02.2003, executed by Shashi Pathak in favour of Aman Agrawal, in respect of plots 1625 Sa, 1626 Sa, 1627 Sa and 1628 Sa (total area 1.50 acre) of village Raksa, pargana and district Jhansi and for permanent injunction, restraining defendants-1 to 9 from interfering in her possession over the land in dispute. Smt. Shanti alias Satiya (the petitioner) filed a suit (registered as Suit No. 105 of 2014) for declaration of sale deed dated 12.06.1972, executed by Smt. Phoolan Dullaiya in favour of Siyaram, Vishwanath and Hukum Singh, as void and to cancel it, in respect of agricultural land situated at village Raksa, pargana and district Jhansi and for permanent injunction, restraining the defendants from interfering in her possession over the land in dispute. In both suits, it has been stated that the disputed land belonged to Baijnath son of Ramu, who died in 1951, leaving behind his widow Smt. Phoolan Dullaiya and two minor daughters Shanti alias Satiya (aged about 5 years) and Kasturi (aged about 3 years). After death of Baijnath, Smt. Phoolan Dullaiya remarried to Aman, resident of village Ranguwa, pargana and district Jhansi. As such Shanti alias Satiya and Kasturi inherited entire property in dispute. Smt. Phoolan Dullaiya executed aforesaid sale deeds dated 05.01.1961 and 12.06.1972, although, after remarriage, she was divested and left with no interest in land in dispute. Subsequent sale deeds executed by transferees are also void, as no right accrued to them on the basis of sale deed executed by Smt. Phoolan Dullaiya. On these allegations, the suits were filed.

4. The defendants contested the suit and denied the plaint allegations. They stated that Smt. Phoolan Dullaiya was only heir of Baijnath and sale deeds executed by her was valid. On the basis of sale deeds, the names of transferees were mutated in revenue record and since the date of sale deeds, transferees were in possession of the land in dipsute. Various technical pleas were raised. It has also been stated that as at present the defendants were recorded tenure holders and in possession of agricultural land. The suit is essentially a suit for declaration of title and possession over agricultural land as such jurisdiction of civil court to try the suit is barred under Section 331 of U.P. Act No. 1 of 1951. The village has been placed under consolidation operation on 27.09.2008 and the suit is liable to be abated under Section 5 (2) of U.P. Consolidation of Holdings Act, 1953. On the basis of pleadings, issues were framed by Trial Court. Issue Nos. 5 and 6 were framed to the effect as to whether civil court has jurisdiction to try the suits and whether the suits are barred under Section 331 of U.P. Act No. 1 of 1951.

5. After hearing the parties, Civil Judge (J.D.), by dated 29.10.2014, held that the suits are for cancellation of the sale deeds. On the allegations made in the plaint, the sale deeds are void as such revenue court court or consolidation authorities are competent to ignore it. As the village is under consolidation operation, prior to filing of the suit as such suits are liable to be abated. The petitioner filed two appeals (registered as Misc. Civil Appeal Nos. 84 and 85 of 2014) against aforesaid order. Additional District Judge, by judgment dated 11.04.2016, dismissed both the appeals. Hence these petitions have been filed.

6. The counsel for the petitioner submitted that plaint's allegations are that Smt. Phoolan Dullaiya fraudulently executed sale deeds dated 05.01.1961 and 12.06.1972, although, after remarriage, she was divested and left with no interest in land in dispute, which were inherited by her minor daughters. On these allegations, sale deeds are voidable documents. Civil court alone has jurisdiction to try such suits and suits are not barred under Section 331 of U.P. Act No. 1 of 1951. By notification under Section 6 of U.P. Consolidation of Holdings Act, 1953, dated 16.11.2015, notification dated 27.09.2008 has been canceled as such the suits are not liable to be abated under Section 5 (2) of the Act. He relied upon the judgments Supreme Court in Bismillah Vs. Janeshwar Prasad, AIR 1990 SC 540 in which it has been held suit for cancellation of void and voidable sale deed shall lie in civil court. Smt. Dularia Devi v. Janardan Singh, AIR 1990 SC 1173, in which it has been held that if there was fraudulent misrepresentation in respect of character of a document, then document would be void and consolidation authorities have jurisdiction to ignore it. If claim is not made during consolidation, then suit would be barred under Section 49 of that Act. He also relied upon judgment of this Court in Jai Singh Vs. IInd Additional District Judge and others, 2001 (45) All L R 579, in which it has been held that in a suit for cancellation of sale deed, relief for cancellation of sale deed is main relief and for that relief suit before civil court is maintainable. Kishori Prasad Vs. IIIrd Additional District Judge and others, AIR 2003 All 58, in which it has been held that executant or his heir can filed a suit for cancellation of sale deed in civil court. Smt. Sajarunnisha Vs. District Judge, (2013) 5 ADJ 343 and Ganga Prasad Vs. Ram Das, (2014) 6 ADJ 677, in which it has been held that sale deed obtained by committing fraud is a voidable document and suit for its cancellation will lie in civil court.

7. I have considered the arguments of the counsel for the petitioner and examined the record. In order to appreciate the controversy, relevant provisions of Civil Procedure Code, 1908 and Specific relief Act, 1963 are quoted below:-

9. Courts to try all civil suits unless barred.--The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

31. When cancellation may be ordered.--(1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.

(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.

8. In view of Section 31 of Specific Relief Act, 1963, a suit for cancellation of sale deed, void or voidable, is a suit of civil nature and can be filed before civil court and civil court has jurisdiction to try it under Section 9 C.P.C. A Full Bench of this Court in Ram Padarath Vs. Second ADJ, Sultanpur and others, 1989 RD 21 (FB) held suit for cancellation of void and voidable sale deed shall lie in civil court. This judgment has been approved by Supreme Court in Bismillah Vs. Janeshwar Prasad, AIR 1990 SC 540.

9. Now question arises that if a sale deed is in respect of agricultural land, suit for its cancellation is barred under Section 331 of U.P. Act No. 1 of 1951, relevant part of which is quoted below:-

Section 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 take cognizance of any suit, application or proceeding mentioned in column 3 thereof or a suit application or proceeding based on a cause of action in respect of which any relief could be obtained by means of any such suit or application.

10. Under Section 331, jurisdiction of civil court is expressly barred for the suits mentioned in Column 3 of Schedule II of U.P. Act No. 1 of 1951 and impliedly barred for a suit based on a cause of action, in respect of which, relief could be obtained by revenue court (mentioned in column 4 of Schedule II). Column 3 of Schedule II of U.P. Act No. 1 of 1951 does not provide for a suit for cancellation of sale deed of agricultural land as such Section 331 (1) does not expressly bar a suit for cancellation of sale deeds.

11. Now it has to be examined as to whether suit for cancellation of a sale deed is impliedly barred as the required relief based on the cause of action in the suit could be obtained from revenue court. It is the cause of action, which determines jurisdiction of a court. Cause of action means the facts which will be necessary for the plaintiff to prove, in order to obtain decree. Supreme Court in Bismillah Vs. Janeshwar Prasad, AIR 1990 SC 540, held that in order to determine the precise nature of the action, the pleadings should be taken as a whole. If as, indeed, is done by High Court the expression ''void' occurring in the plaint as descriptive of the legal status of the sales is made the constant and determinate and what is implicit, in the need for cancellation as the variable and as inappropriate to a plea of nullity, equally, converse could be the position. The real point is not the stray or loose expressions which abound in inartistically drafted plaints, but the real substance of the case gathered by construing pleadings as a whole. It is said "Parties do not have the farsight of prophets and their lawyers the draftsmanship of a Chalmers".

12. In Church of North India v. Lavajibhai Ratanjibhai, (2005) 10 SCC 760, held that a plea of bar to jurisdiction of a civil court must be considered having regard to the contentions raised in the plaint. For the said purpose, averments disclosing cause of action and the reliefs sought for therein must be considered in their entirety. The court may not be justified in determining the question, one way or the other, only having regard to the reliefs claimed dehors the factual averments made in the plaint. The rules of pleadings postulate that a plaint must contain material facts.

With a view to determine the question as regards exclusion of jurisdiction of the civil court in terms of the provisions of the Act, the court has to consider what, in substance, and not merely in form, is the nature of the claim made in the suit and the underlying object in seeking the real relief therein. If for the purpose of grant of an appeal, the court comes to the conclusion that the question is required to be determined or dealt with by an authority under the Act, the jurisdiction of the civil court must be held to have been ousted. The questions which are required to be determined are within the sole and exclusive jurisdiction of the authorities whether simple or complicated.

13. Full Bench of this Court in Ram Awalamb Vs. Jata Shankar, AIR 1969 All 526 (FB) held that (a) where on the basis of cause of action, the main relief is cognizable by a revenue court, the suit would be cognizable by revenue court only. The ancillary relief would be immaterial for determination of proper forum for the suit. (b) Where on the basis of cause of action, main relief is cognizable by a civil court, the suit would be cognizable by civil court only. The ancillary relief which could be granted by revenue court may also be granted by civil court.

(Paragraph-90) A document under which the plaintiff's share also purports to have been transferred by a person not authorized to do so, can be canceled through court to the extent of the plaintiff's share and after a decree has been passed in his favour, information regarding the same has to be sent to the registration department for making a note in their register. To have the document adjudged void or voidable, the suit provided under Section 31 of Specific Relief Act, 1963 cannot be considered to be altogether unnecessary because after lapse of several years, the unchallenged existence of such document can cause serious difficulty to the plaintiff in establishing his title to the land. The plaintiff is not bound to ask for mere declaration of his title in respect of the land when he could pray for cancellation of the entire sale deed.

14. The present suits are filed for cancellation of sale deeds dated 05.01.1961 and 12.06.1972, executed by Smt. Phoolan Dullaiya and subsequent sale deeds executed by her transferees, in respect of agricultural land and for permanent injunction, restraining the defendants from interfering in her possession over the land in dispute. In both suits, it has been stated that the disputed land belonged to Baijnath son of Ramu, who died in 1951, leaving behind his widow Smt. Phoolan Dullaiya and two minor daughters Shanti alias Satiya (aged about 5 years) and Kasturi (aged about 3 years). After death of Baijnath, Smt. Phoolan Dullaiya remarried to Aman, resident of village Ranguwa, pargana and district Jhansi. As such Shanti alias Satiya and Kasturi (minor daughters) inherited entire disputed land. Smt. Phoolan Dullaiya executed sale deeds of agricultural land dated 05.01.1961 and 12.06.1972, although, after remarriage, she was divested and left with no interest in land in dispute as such sale deeds are void. Subsequent sale deeds executed by transferees are also void, as no right accrued to them on the basis of sale deeds executed by Smt. Phoolan Dullaiya.

15. In 1951, inheritance was governed by provisions of U.P. Tenancy Act, 1939. Under Section 35 of this Act, widow was preferential heir in preference to unmarried daughter. As such Phoolan Dullaiya inherited land in dispute on the death of Baijnath. For grant of required relief in present suits, declaration that before execution of sale deeds, Smt. Phoolan Dullaiya remarried to Aman, as such she was divested under Section 172 of U.P. Act No.1 of 1951 and the petitioner and her sister inherited land in dispute, is necessary. This relief can only be granted by revenue court and in view of Section 331 of U.P. Act No. 1 of 1951, jurisdiction of civil court is expressly barred. Admittedly, the name of the petitioner and her sister were never recorded over land in dispute. Name of Smt. Phoolan Dullaiya and thereafter, names of the transferees were recorded. Supreme Court in Azhar Hasan v. Distt. Judge, Saharanpur, (1998) 3 SCC 246, held that whether those persons who succeeded the recorded tenants, were rightly recorded as tenants or not, was a question determinable by the revenue authorities.

16. Supreme Court in Bismillah Vs. Janeshwar Prasad, AIR 1990 SC 540, held that as suit or action for cancellation of void document will generally lie in the civil court and a party cannot be deprived of his right of 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 surplusage 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."

17. In Shri Ram v. Ist ADJ, (2001) 3 SCC 24, held 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 been obtained on the ground of fraud or impersonation cannot be directed to file a suit for declaration in the 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 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.

18. Argument of the counsel for the petitioner that Smt. Phoolan Dullaiya fraudulently executed sale deeds as such sale deeds are voidable, is not liable to be accepted. Under Section 19 of Contract Act, 1872, when consent to an agreement is caused by coercion, fraud or misrepresentation, the contract is voidable at the option of the party whose consent was so caused. Or in any other enactment, transaction is held as voidable. No fraud has been committed on Smt. Phoolan Dullaiya. In the present case, there is no allegation that sale deeds were obtained by coercion, fraud or misrepresentation rather the allegations are that the sale deeds were executed without having title of the land in dispute. On these allegations, sale deeds executed by Smt. Phoolan Dullaiya and her transferees would be void and not voidable.

19. In view of aforesaid discussions, suits are barred under Section 331 of U.P. Act No. 1 of 1951, as without declaration of title of the petitioner in respect of agricultural land, no relief in the suits can be granted. In case it is held that before execution of sale deeds, Smt. Phoolan Dullaiya remarried to Aman as such she was divested under Section 172 of U.P. Act No.1 of 1951 and the petitioner and her sister inherited land in dispute, then sale deeds executed by Smt. Phoolan Dullaiya and her transferees could be canceled. Declaration of title of the petitioner in the land in dispute is main relief in the suits and adjudication of sale deeds as void would be ancillary relief.

20. The petitioner has stated that by notification under Section 6 of U.P. Consolidation of Holdings Act, 1953, dated 16.11.2015, notification dated 27.09.2008 has been canceled. If consolidation operation has been canceled by notification under Section 6 of the Act, then provisions of U.P. Consolidation of Holdings Act, 1953 would not be attracted. However, if consolidation operation was closed by notification under Section 52 of the Act, then in view of judgment in Smt. Dularia Devi v. Janardan Singh, AIR 1990 SC 1173, the sale deeds being void and consolidation authorities have jurisdiction to ignore it. If claim is not made during consolidation, then suit would be barred under Section 49 of that Act.

21. In view of the aforesaid discussions, the impugned orders do not suffer from any illegality. The petitions have no merit and are dismissed.

Order Date :- 20.5.2016

Rahul /-