Allahabad High Court
Ram Pratap & Another vs Raj Kishore & Others on 24 May, 2018
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 34
Case :- SECOND APPEAL No. - 1336 of 1979
Appellant :- Ram Pratap & Another
Respondent :- Raj Kishore & Others
Counsel for Appellant :- Satya Prakash,J.N.Pandey
Counsel for Respondent :- U.C.Mishra,A.K.Goyal,Dinesh Kumar Verma, Md. Muzzammil.I.Qureshi,Shirish Bansal,Sirish Prasad,Syed Mohd.,V.C. Mishra
Hon'ble Sudhir Agarwal,J.
1. Heard Shri Satya Prakash, learned counsel for appellants.
2. This is a defendants' appeal under Section 100 of Civil Procedure Code. It was admitted on ground No. 5 as substantial question of law, which reads as under:
"5. Whether sale deed executed by the natural guardian of minor without taking prior permission of District Judge under Section 8 of Hindu Minority Act which was mere voidable at the instance of minor could be cancelled in a suit filed by the stranger claiming herself to be next friend?"
3. Learned counsel for appellants has submitted that land belongs to defendant No.2, Ashok Kumar s/o Shri Kharagjeet Singh. It was sold by his father Kharagjeet, when Ashok Kumar was minor without permission of District Judge. Original Suit No. 252 of 1975 was filed by said minor through next friend (defendant No. 2) for cancellation of said sale-deed dated 3.4.1974, on the ground that no permission from District Judge had been obtained and, therefore, transaction was void, which was represented by minor. It is not in dispute that land in dispute is an agricultural land.
4. Trial Court had formulated following eight issues:
"1. Whether the sale deed in question is void and not binding on the plaintiff for the reasons given in para 5 of the plaint?
2. Whether the defendants are in possession of the plots in question, if so its effect?
3. Whether the plaintiffs have been possession of the plot in dispute? If so its effect?
4. Whether the prior permission of District Judge was necessary execute the sale deed by defendants No. 3 and 4 in favour of defendant no. 1 and 2?
5. Whether the plaintiff had knowledge of the sale deed in question prior to the date on which the names of defendant no. 1 and 3 were mutated?
6. Whether the plaintiff and defendant no. 4 were mere ostensible owner of the plots in writ? If so its effect?
7. Whether the suit for injunction is not maintainable?
8. To what relief, if any, are the plaintiffs entitled?"
5. Accepting the contention that without permission of District Judge under Section 8 of Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as 'Act, 1956') transaction of sale is voidable and the same was represented by Ashok Kumar (minor), which was liable to be cancelled, hence, Munsiff, Agra, decreed the suit vide judgment dated 23.12.1997, operative part of which is quoted as under:
"The suit of the plaintiffs is decreed with costs and the sale-deed in question to the extent of the plaintiffs share is hereby declared null and void and not binding upon the plaintiffs, the defendants no. 1 and 2 are hereby directed to deliver the possession of the same to the plaintiffs within a month from today, failing which the plaintiffs may move the Court for the delivery of possession."
6. Defendants filed Civil Appeal No. 21 of 1978 but the same was dismissed by Mohini Rajini, 3rd Additional Civil Judge, Agra, vide judgment and decree dated 30.1.1979, dismissing the appeal. Feeling still aggrieved, plaintiff-appellants has preferred this second appeal.
7. It is contended that substantial question of law up for consideration before this Court has already been decided by a judgment of this Court in Sursati Devi vs. Deputy Director of Consolidation and others 1983 (2) RD 300 (HC), passed in Civil Misc. Writ Petition No. 264 of 1980, wherein it was held that requirement of permission of District Judge under Section 8 is not applicable in respect of agricultural land as that could not be said to be included within the purview of immovable property under Section 8 of Act, 1956. Since, legislation in respect of agricultural land is within competence of State Legislature and, therefore, no law in respect of agricultural land could have been made by Central Government.
8. Learned counsel for plaintiff-respondent relied upon Supreme Court judgment in Narayan Lal vs. Sridhar Sutar, 1996 (0) SC 2371, and contended that the permission of District Judge was necessary and in absence thereof, transaction was voidable. However, I find that aforesaid judgment in Narayan Lal (supra) is not with respect to agricultural land, hence not applicable in this appeal. Learned counsel for plaintiff-respondents neither could distinguish judgment of this Court in Sursati Devi (supra) nor placed any otherwise provision or authority with respect to the same.
9. In that view of the matter and in the light of this Court's judgment in Sursati Devi (supra), I find force in the arguments of learned counsel for defendant-respondent that requirement of permission of District Judge under Section 8 of Act, 1956, was not applicable with respect to agricultural land.
10. Therefore, I answer substantial question of law formulated above in favour of appellants.
11. In the result, appeal is allowed and impugned judgment and order dated 30.1.1979, passed by 3rd Additional Civil Judge, Agra, passed in Civil Appeal No. 21 of 1978, arising out of Original Suit No. 252 of 1975, is hereby set aside.
12. Appeal stands allowed. No order as to costs.
Order Date :- 24.5.2018
LN Tripathi
