Shiv Baksh Singh ( U/A 227 ) vs Dev Nath Singh And Ors.
2017 Latest Caselaw 352 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 18
 
Case :- MISC. SINGLE No. - 3425 of 2010
 
Petitioner :- Shiv Baksh Singh ( U/A 227 )
 
Respondent :- Dev Nath Singh And Ors.
 
Counsel for Petitioner :- Saima Khan
 
Counsel for Respondent :- C.S.C.,Arjun Singh
 
Hon'ble Attau Rahman Masoodi,J.

Heard Saima Khan, learned counsel for the petitioner and Sri Arjun Singh learned counsel for opposite party no. 1.

Opposite party no. 2 was issued notice through registered post as well as through the District Judge Gonda. The registered notice has come back undelivered whereas notice through District Judge is reported to have been returned with the remark of refusal. In these circumstances, notice to respondent no. 2 is deemed sufficient. It is to be noted that opposite party no. 2 did not participate in the proceedings before the court below.

Property in dispute is admittedly an agricultural property. The name of the petitioner was entered in the khatauni way back in the year 1993 consequent upon the death of one Raj Kumar on the basis of report in form PA-11 which is an annual report of succession submitted by supervisor kanungo.

It is revealed from the order dated 23.12.1993 that an application for mutation filed by opposite party no. 2, which was registered as case no. 215/566/1292 under Section 34 of the U.P. Land Revenue Act, was rejected for want of prosecution. Significantly, this order was passed after the petitioner/defendant had put in appearance in the mutation case whereas the plaintiff/opposite party no. 2 remained absent.

In the year 2005, a second application for mutation under Section 34 of U.P. Land Revenue Act appears to have been filed by opposite party no. 2, on which, an ex parte order was passed on 20.8.2005 directing for entry of the name of one Ram Baran Singh as a legal heir of late Raj Kumar Singh and thus the name of opposite party no. 2 came to be recorded in the revenue record. This order passed on 20.8.2005 being ex parte gave rise to an objection at the end of the petitioner. On an objection being raised, the ex parte order passed on 20.8.2015 was recalled by order dated 30.8.2005 and thus the name of the petitioner was restored in the revenue record i.e. khatauni as is evident from annexure 2 to the writ petition but the proceedings remain pending.

It is revealed from the record that a sale-deed was executed by opposite party no. 2 in favour of opposite party no. 1 on 9.9.2005, which was registered on 12.9.2005 in respect of a part of the property. On the date of execution/registration of sale-deed, the name of the petitioner was duly recorded in the revenue record i.e. khatauni. The petitioner having come to know about the sale-deed filed a suit for cancellation of sale-deed alleging therein that a fraud was committed by opposite party no. 2 in the execution of sale transaction through an impostor. It is also noticeable that the conduct of opposite party no. 2 regarding filing a fresh mutation application under Section 34 of U.P. Land Revenue Act was also exposed in the suit. It was stated that opposite party no. 2 had earlier filed an application under Section 34 of the Land Revenue Act for mutation of his name in the revenue record but the first application was rejected after the petitioner had put an appearance in the mutation case, hence a fresh application under Section 34 of the Land Revenue Act would not be maintainable looking to the principle underlying Order 9 Rule 9 C.P.C.

The suit for cancellation of sale-deed progressed and issues were framed. Issue no. 3 was framed on the strength of Order 7 Rule 11 C.P.C. and related to the very maintainability of suit proceedings before the civil court, inasmuch as, the land in dispute was admittedly agricultural land.

On this aspect of the matter, the trial court proceeded to consider the rival contentions as well as the evidence led by the parties and it was opined that since the dispute between the parties would involve adjudication on the question of title in respect of agricultural land, thus the suit would not be maintainable before the civil court. The plaint was rejected on the strength of objections raised under Order 7 Rule 11 C.P.C. by the opposite party no. 2.

The judgment passed by the trial court was assailed before the revisional court and the revisional court has also upheld the same, hence this writ petition.

It is not in dispute that the petitioner continues to be a recorded tenure holder of the property in question and is also in the actual possession of the disputed land. Opposite party no. 1 is the purchaser of disputed property from opposite party no. 2 but has not been delivered possession till date. The very authority of opposite party no. 2 to enter in the sale transaction was questioned by the petitioner on the ground of fraud and misrepresentation. A suit for cancellation of sale-deed is cognizable before the civil court as per the provision of Section 31 of the Specific Relief Act, 1963, which reads as under :-

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 canceled.

(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.

Learned counsel for the petitioner has pointedly argued that the case set up for cancellation of sale deed is founded on the ground of fraud and mis-representation and a suit of this nature is cognizable by a civil court as per the scheme of Specific Relief Act. It is also submitted that even possession of the disputed land lies with the petitioner and this fact goes undisputed. The revenue record also contains the name of the petitioner as a legal successor.

In view of above, inviting attention of the court to the relief sought in the suit, it was urged that the case law relied upon to decide the issue of maintainability of suit in favour of the opposite party, the courts below have committed a manifest error of law and the same deserves to be corrected. Learned counsel for the petitioner while distinguishing the judgment rendered by the apex court in the case of Kamla Prasad and others versus Krishna Kant Pathak and others reported in 2007 AIR SCW 1403 has placed reliance upon two other decisions of the apex Court in the case of Horil versus Keshav and another reported in 2012(30) LCD 370 and in the case of Shri Ram and another versus Ist Additional District Judge and others reported in 2001(19) LCD 739.

In the judgment reported in 2007 AIR SCW 1403(supra), the apex court was dealing with a case of co-tenure holders whose name was recorded but in the present case the situation appears to be more akin to the apex court decision reported in 2001(19) LCD 739(supra) in as much as, the petitioner is not only in the possession of land in dispute but is also a recorded tenure holder. That apart, the real owner who has transferred the land is not coming forward to prove his case and the vendee has no better title what the vendor has. The ground of fraud unless contested by the vendor in the civil suit can not be gone into by revenue court for the lack of expertise and even otherwise looking to the mandate of Section 31 of the Specific Relief Act.

Learned counsel for the opposite party(vendee) has not disputed that the possession of land until now rests with the petitioner and the petitioner's entry in the revenue record also stands restored. The allegation of fraud as rightly argued by the petitioner's counsel in the light of apex court judgment reported in 2012(30) LCD 370(supra) is to be gone into by the civil court looking to what has been observed in para 11 & 12 which are extracted below :-

11. We are of the view that Revenue courts are neither equipped nor competent to effectively adjudicate on allegations of fraud that has overtones of criminality and the courts really skilled and experienced to try such issues are the courts constituted under the Code of Civil Procedure.

12. It is also well settled that under Section 9 of the Civil Procedure Code, the civil court has inherent jurisdiction to try all types of civil disputes unless its jurisdiction is barred expressly or by necessary implication, by any statutory provision and conferred on any other tribunal or authority. We find nothing in Order XXIII Rule 3-A to bar the institution of a suit before the civil court even in regard to decrees or orders passed in suits and/or proceedings under different statutes before a court, tribunal or authority of limited and restricted jurisdiction.

Having regard to the factual position of the present case, this Court is of the considered opinion that the issue ought not to have been decided against the petitioner and the courts below having decided the issue against the petitioner have committed an illegality which is apparent on the face of record. Thus, the impugned judgments are hereby set aside and the matter is remitted to the trial court for deciding the issues involved in the suit on merit. The suit proceedings are accordingly expedited. It is open to the parties to participate and put up their respective case and evidence. The trial court shall avoid undue adjournments and conclude the proceedings expeditiously in accordance with law.

The petition is allowed. No order as to cost.

Order Date :- 10.5.2017

kanhaiya