Pradeep Kumar And 4 Ors. vs Ramveer Singh And 5 Ors.
2018 Latest Caselaw 4159 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 39
 

 
Case :- FIRST APPEAL FROM ORDER No. - 1842 of 2016
 

 
Appellant :- Pradeep Kumar And 4 Ors.
 
Respondent :- Ramveer Singh And 5 Ors.
 
Counsel for Appellant :- Madhav Jain
 
Counsel for Respondent :- N.K.Chaturvedi,Nirmal Kumar Chaturvedi
 

 
Hon'ble B. Amit Sthalekar,J.

Heard Sri Anupam Kulshreshtha, learned counsel for the plaintiffs-appellants and Sri Pramod Jain, learned Senior Counsel assisted by Sri Nirmal Kumar Chaturvedi, learned counsel for the respondents no.1, 2 and 3.

This appeal has been filed assailing the judgment and order dated 16.05.2016 whereby the plaint of the plaintiffs-appellants has been returned for filing before the Revenue Court in view of the Section 331 of the Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950 (hereinafter referred to as the Act, 1950).

Briefly stated the facts of the case as emerging from the documents on record is that one Mohan Lal was the owner of the property in dispute. He had two sons, namely, Radhey Shyam and Kitab Singh. Radhey Shyam had one son Ramesh Chandra and one daughter Smt. Anita Devi. Kitab Singh had four sons, namely Pradeep Kumar, Sandeep Kumar, Vijendra Kumar and Sheelendra Kumar, who are the appellants no.1 to 4 in this appeal. The appellant no.5 is the widow of late Kitab Singh. During the lifetime of Mohan Lal his son Radhey Shyam died and his widow Smt. Kamla Devi is reported to have married somebody else.

The case of the plaintiffs-appellants is that Mohan Lal executed a Will of the property in question in favour of Kitab Singh and after the death of Kitab Singh the property in question has now vested in the plaintiffs-appellants. It is stated that after the death of Radhey Shyam as well as Mohan Lal the name of Kitab Singh was recorded in the revenue records by the order dated 10.09.1991. Ramesh Chandra son of Radhey Shyam moved an application before the Tehsildar seeking mutation of his name over the property in question and therefore by order dated 02.03.1992 the application was allowed and the name of Ramesh Chandra son of Radhey Shyam and grand son of Mohan Lal was entered into the revenue records alongwith that of Kitab Singh. After the death of Kitab Singh the names of Pradeep Kumar, Sandeep Kumar, Vijendra Kumar and Sheelendra Kumar were entered in the revenue records vide order dated 07.07.1992.

It appears that the plaintiffs-appellants filed objections with regard to recording of the name of Ramesh Chandra over the property in question and that an application to that effect was filed on 01.08.1992 which was allowed and the order dated 02.03.1992 was set aside.

The relevant revenue records, photocopy of which has been filed as Annexure-2 to the affidavit filed in support of the stay application, however, show that an appeal was filed against the order dated 01.08.1992 and the operation of the order dated 02.03.1992 was stayed. The records also show that the appeal is still pending and the stay order continues to be operative.

The revenue entries further show that on 15.09.1992 the name of one Chiranji Lal son of Raja Ram was also recorded in the revenue records and after the death of Chiranji Lal the names of Ram Kishan and Son Pal, sons of Chiranji Lal was recorded on 20.03.1993. Thereafter the name of Son Pal was removed from the revenue records and the name of Yasoda Devi wife of Salig Ram, respondent no.5 was recorded over some part of the land. It appears that thereafter Ramesh Chandra also died and over half share of the property in question the name of Anita Devi, respondent no.4 as heir and daughter of Radhey Shyam was entered in the revenue records on 08.05.2012. Smt. Anita Devi in the meantime is stated to have sold her half share of the property of the total area of 46.85, in favour of Ramveer Singh, Yogendra Singh, Roomal Singh, whose names were recorded in the revenue records on 09.04.2013. The plaintiffs-appellants thereafter filed a Suit No.288 of 2012 for cancellation of the sale deed dated 11.05.2012. In the meantime the Suit No.288 of 2012 was re-numbered as Original No.1/2016 (Pradeep Kumar and Others Vs. Ramveer Singh and Others). In the suit proceedings the plaintiffs-appellants filed an application seeking ad-interim injunction which was granted by the trial court by order dated 26.05.2012 restraining the defendants (respondents no.1, 2, 3 herein) from interfering in the peaceful possession of the plaintiffs-appellants. The trial court also appointed a Court Amin who was directed to submit a report and accordingly the Court Amin after inspection of the suit property submitted his report on 23.07.2012.

Written statement was filed on behalf of the defendants-respondents no.1, 2 and 3. A written statement was also filed by the defendant-respondent no.4. The defendants-respondents also filed an application dated 25.10.2012 raising a preliminary objection regarding maintainability of the civil suit being paper 41-C. The trial court framed 5 issues and by the impugned order dated 16.05.2016 held that the suit was barred by provisions of Section 331 of the Act, 1950 and returned the plaint under Order VII Rule 10 CPC for filing in the Court of the competent jurisdiction. Aggrieved by the order dated 16.05.2016 the plaintiffs-appellants have filed the present appeal.

So far as the pedigree of the plaintiffs-appellants and the respondent no.4 as well as Radhey Shyam, Ramesh Chandra are concerned, there is absolutely no dispute between the parties.

The submission of Sri Anupam Kulshreshtha, learned counsel for the appellants, however, is that since Radhey Shyam son of Mohan Lal and brother of Kitab Singh had pre-deceased Mohan Lal, therefore, the said Mohan Lal executed a Will in favour of his surviving son Kitab Singh and the name of Kitab Singh was therefore entered into the revenue records by the order dated 10.09.1991. On 02.03.1992 Ramesh Chandra son of late Radhey Shyam moved an application before the Tehsildar for mutation of his name which was allowed and the name of Ramesh Chandra was recorded over the property in dispute alongwith that of Kitab Singh. Thereafter Kitab Singh died and the names of his sons the plaintiffs-appellants, namely Pradeep Kumar, Sandeep Kumar, Vijendra Kumar and Sheelendra Kumar were recorded in the revenue records as heirs of late Kitab Singh by order dated 07.07.1992.

The plaintiffs-appellants are stated to have challenged the entry of Ramesh Chandra in the revenue records alongwith Kitab Singh and an objection was filed against the order dated 02.03.1992 and the court granted the stay order. An objection was filed against the order dated 02.03.1992 stating that the same was an ex parte order and therefore the same was set aside by the Tehsildar by order dated 01.08.1992, which was challenged before the Sub Divisional Officer in appeal and Sub Divisional Officer vide his order dated 03.09.1992 has stayed the order dated 01.08.1992. It is not disputed that the said appeal is still pending.

Learned counsel for the appellants could not dispute that in view of the order dated 01.08.1992 being stayed, the earlier order of 02.03.1992 stood revived.

The submission of the learned counsel for the appellants, however, is that after the death of Ramesh Chandra, Smt. Anita Devi filed an application for substituting her own name in the revenue records which was allowed by the Tehsildar vide order dated 03.05.2012 which was again stated to be an ex-parte order and after getting her name mutated Smt. Anita Devi executed a sale deed in favour of the respondents no.1, 2 and 3 whose names have now come to be recorded in the revenue records. Learned counsel for the appellants submitted that because his name was recorded in the revenue records therefore there was no dispute with regard to his title and the only dispute was with regard to the sale deed executed by Smt. Anita Devi in favour of the respondents no.1, 2 and 3 and therefore the suit for cancellation of the sale deed where there was no dispute of title of the plaintiffs-appellants, was maintainable only before the civil court. Reference has been made to the following judgments:

1. (1989) R.D. 21 (Ram Padarath Vs. Second Additional District Judge Sultanpur)

2. (1990) 1 SCC 207 (Smt. Bismillah Vs. Janeshwar Prasad and Others)

3. (2001) 3 SCC 24 (Shri Ram and Another Vs. 1st Additional District Judge and Others)

4. (2007) 4 SCC 213 (Kamla Prasad and Others Vs. Kishna Kant Pathak and Others)

5. (2016) 6 ADJ 614 (Chandrika Vs. Shiv Nath and Others)

Sri Pramod Jain, learned Senior Counsel, on the other hand, submitted that as per the pedigree starting from Mohan Lal it is not disputed that Mohan Lal had two sons, namely, Radhey Shyam and Kitab Singh. Radhey Shyam had one son Ramesh Chandra and one daughter Smt. Anita Devi. Radhey Shyam pre-deceased Mohan Lal and therefore whatever be the share of Radhey Shyam would come by way of inheritance to Ramesh Chandra. Therefore, Ramesh Chandra moved an application before the Tehsildar for mutation of his name in the revenue records over the land in question and his application was allowed by order dated 02.03.1992. This order was put to challenge by the sons of Kitab Singh, namely the plaintiffs-appellants herein and the Tehsildar therefore by order dated 01.08.1992 cancelled the earlier order of 02.03.1992 which was challenged in appeal and in appeal a stay has been granted by the order dated 01.08.1992 with the result that the earlier order dated 02.03.1992 stood revived. It is not disputed between the parties that the appeal is still pending. In the meantime, Ramesh Chandra also died and thereafter Smt. Anita Devi, respondent no.4 filed an application before the Tehsildar for mutation of her name. Her name was mutated in the revenue records. Smt. Anita Devi executed a sale deed of her half share of the property in favour of the defendants-respondents no.1, 2 and 3 whose names have also now been mutated in the revenue records.

Learned counsel for the respondents drew the attention of the Court to page 57 -58 of the paper book to show that in the revenue records also it has been mentioned that Smt. Anita Devi has executed a sale deed in respect of her half share of the property in favour of Ramveer Singh, Yogendra Singh, Roomal Singh, defendants-respondents no.1, 2 and 3 herein.

Sri Pramod Jain further submitted that there is no mention in the revenue records that the name of late Kitab Singh was recorded on the basis of any Will stated to have been executed by the ancestors of Mohan Lal in favour of late Kitab Singh and therefore, even if the name of late Kitab Singh has been recorded in the revenue records as the natural heir of Mohan Lal it would be only to the extent of his half share and not with regard to the half share of Radhey Shyam and his descendants and therefore the sale deed executed by Smt. Anita Devi in favour of the respondents no.1, 2 and 3 was absolutely valid as it did not refer to the half share of late Kitab Singh.

Sri Jain further submitted that even if it is stated that the names of the appellants have been recorded in the revenue records over the land in dispute it would only refer to their half share by way of inheritance through late Kitab Singh and if the appellants are claiming possession over the entire property under the Will alleged to have been executed by late Mohan Lal in favour of Kitab Singh then they would have to seek a declaration in their favour to that effect and the only court competent to decide this issue would be the Revenue Court.

Sri Jain has relied upon the same judgments as cited by the learned counsel for the appellants.

At this stage a reference may also be made to the provisions of Section 331 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (Act, 1950) which bars the jurisdiction of the Civil Court. Section 331 of the 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, take cognizance of any suit, application or proceedings mentioned in column 3 thereof [or of a 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.]"

It would also be necessary to refer to the judgments which have been cited by the parties before considering their ratio with regard to the facts of the present case.

A Full Bench of this Court in Ram Padarath Vs. Second Additions District Judge, Sultanpur reported in (1989) R.D. 21 has held as under:

"Section 331 of the U.P. Zamindari Abolition and Land Reforms Act excludes the jurisdiction of civil court in respect of those matters for which relief can be had from the revenue court by means of a suit, application or proceedings mentioned in Schedule II to the 'Act'. Section 331 of the Act, if read without Explanation, does not create any difficulty. Dispute regarding jurisdiction arises when Explanation, which is an integral part of the section, is interpreted and applied to the facts of a particular case. The object of Explanation to any statutory provision is to understand the Act in the light of the Explanation which ordinarily does not enlarge scope of the original section which it explains, but only makes its meaning clear beyond dispute. The Explanation thus makes the things still more explicit and exists primarily removing doubts and dispute which may crop up in its absence. Section 331 of the 'Act' along with Explanation cannot be read so as to oust the jurisdiction of civil court if the primary relief on the same cause of action can be granted by the civil court notwithstanding the fact the consequential relief or ancillary relief flowing out of the main relief, the grant of which also becomes necessary, can be granted by revenue court alone.

In the case of void document said to have been executed by a plaintiff during his disability or by some one impersonating him or said to have been executed by his predecessor whom he succeeds, the relief of cancellation of the document is more appropriate relief for clearing the deck of title and burying deep any dispute or controversy on its basis in present or which may take place in future. The document after its cancellation would bear such an endorsement in Sub-Registrar's register and would be the basis for correction of any paper and revenue record including record of register. Section 31 of the Specific Relief Act itself prescribes as to who can seek relief of cancellation. A third person cannot file a suit for cancellation of a void document. If in fact no decree for cancellation was need and real and effective relief could be granted by the revenue court only, the civil court decree would even then be valid and not void if no objection to the same was taken before the trial court. If such an objection was taken before the trial court before framing of issues and objection continued to be taken before appellate and revisional court and there has been failure of justice because of change of forum then the civil court decree could be said to be without jurisdiction."

In the case of Smt. Bismillah Vs. Janeshwar Prasad and Others reported in (1990) 1 SCC 207 the Supreme Court in paragraph 7 has held as under."

"7. It is settled law that the exclusion of the jurisdiction of the civil court is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. The provisions of a law which seek to oust the jurisdiction of civil court need to be strictly construed. Section 331 of the Act has been the subject of series of pronouncements of the High Court as to the circumstances and the nature of the suits in which its exclusionary effect operates. Distinction was sought to be drawn between the class of cases where the binding effect of a deed had had to be got rid of by an appropriate adjudication on the one hand and the class of cases in which a transaction could be said to be void in law where what the law holds to be void, there is nothing to cancel or set aside on the other. In the former case, it was held, a suit was cognisable by the civil court while in the latter, it was not, it being open to the statutory authority to take note of the legal incidents of what was non est."

In the case of Shri Ram and Another Vs. 1st Additional District Judge and Others reported in (2001) 3 SCC 24 it was held by the Supreme Court that where a recorded tenure-holder having a prima facie title and in possession files suit in the civil court for cancellation of the sale deed 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. Paragraph 7 of the said judgment is extracted below:

"7. On analysis of the decisions cited above, we are of the opinion 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."

The next case is of Kamla Prasad and Others Vs. Kishna Kant Pathak and Others reported in (2007) 4 SCC 213 which has followed the judgment of Shri Ram and Another Vs. First Additional District Judge and Others reported in (2001) 3 SCC 24 and it has been held therein that legality or otherwise of insertion of names of purchasers in Record of Rights and deletion of name of the plaintiff from such record can only be decided by Revenue Courts since the names of the purchasers had already been entered into it. Paragraph 13 of the judgment is extracted below:

"13. On second question also, in our view, Courts below were right in coming to the conclusion that legality or otherwise of insertion of names of purchasers in Record of Rights and deletion of name of the plaintiff from such record can only be decided by Revenue Courts since the names of the 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 cannot be decided by a Civil Court."

The next judgment referred to is of Chandrika Vs. Shiv Nath and Others reported in (2016) 6 ADJ 614 wherein the learned Single Judge of this Court has held that for purposes of cancellation of the sale deed where the petitioner is already in possession and the suit is essentially a suit for declaration of title and possession over agricultural land the title of the plaintiffs-appellants is admitted on the date of the sale deed the relief for ejectment and possession can be granted only by the Civil Court.

So far as the judgments referred to above, there is absolutely no quarrel with regard to the law laid down therein.

Learned counsel for the parties are relying upon the same judgments each one interpreting the law laid down therein in his own way.

The contention of the plaintiff-appellants is that they are in possession of the property in dispute and therefore, their suit for cancellation of the sale deed executed by Smt. Anita Devi in favour of the respondents no.1, 2 & 3 is maintainable only before the Civil Court since their names are already recorded in the revenue records and they are in possession and there is no dispute about the title.

Learned counsel for the plaintiff-appellants, on the other hand submitted that the plaintiffs-appellants even if their names are recorded in the revenue records can be said to be in possession and having title over the property in dispute only with regard to their half share of the property as inherited from the ancestor Mohan Lal from whom the respondent no.4, Smt. Anita Devi also claims her half share. There is no dispute between the parties so far as the pedigree flowing from ancestor Mohan Lal is concerned. The appellants, however, claim to be the title holder over the entire property under the Will of Mohan Lal. This is disputed by the respondents.

From the documents on records what emerges is that so far there is no declaration with regard to the title of the appellants with regard to the entire property under the Will of Mohan Lal. The Will has neither been proved nor there is any declaration of its validity or declaration of title in favour of late Kitab Singh and his descendants i.e. the appellants.

So far as the respondent no.4, Smt. Anita Devi is concerned, she has come into possession of the property upon the death of Ramesh Chandra, who is her brother. Radhey Shyam pre-deceased Mohan Lal and thereafter the name of Ramesh Chandra was entered into the revenue records by the Tehsildar by order dated 02.03.1992. This order was put to challenge by the appellants upon which the Tehsildar vide order dated 01.08.1992 set aside the order dated 02.03.1992 against which erstwhile owners of the property filed appeal in which the order dated 01.08.1992 has been stayed with the result that the order of the Tehsildar dated 02.03.1992 stands revived. The appeal is still pending.

The heirs of Mohan Lal in the family branch flowing from his son late Radhey Shyam including Smt. Anita Devi have been recorded in the revenue records from time to time and Smt. Anita Devi executed a sale deed in favour of the respondents no.1, 2 & 3 on 11.05.2012 with regard to her half share of the suit property and thereafter the names of the respondents no.1, 2 and 3 have also been recorded in the revenue records. In the circumstances, in the absence of any declaration of right or title in favour of the appellants as heirs of Mohan Lal through late Kitab Singh, the appellants cannot claim to be holding a valid title in respect of the entire property. Their names are recorded in the revenue records as heirs of Mohan Lal through their father late Kitab Singh, therefore, in my opinion, the suit for cancellation of the sale deed dated 11.05.2012 will not be maintainable before the Civil Court in respect of the half share of the property of Smt. Anita Devi inherited by her as heir of Mohan Lal and in any case if the plaintiffs-appellants want to establish their right and title over the entire property under the alleged Will of Mohan Lal they will have to seek a declaration to that effect and a suit for such declaration would only be maintainable before the Revenue Court and unless such a declaration is obtained no right or title will flow to the appellants over the entire property if they have to succeed in their suit for cancellation of the sale deed since the sale deed is in respect of the half share of Smt. Anita Devi and not in respect of the entire property.

The contention of Sri Anupam Kulshreshta, learned counsel for the appellants is that the names of the appellants being recorded in the revenue records confers a title upon them and therefore the suit for cancellation of the sale deed is maintainable only before the Civil Court is thoroughly misconceived. The judgments relied on by the learned counsel for the petitioners supports the claim of the respondents rather that the petitioner.

For reasons aforesaid, I do not find any illegality or infirmity in the judgment and order of the court below dated 16.05.2016.

The appeal lacks merit and is accordingly dismissed.

Order Date :- 06th December, 2018

N Tiwari