Smt. Shanti Devi vs Sumant Prasad Major & 3 Ors.
2019 Latest Caselaw 3347 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved on:-10.04.2019
 
Pronounced on:-23.04.2019
 
Court No. - 22
 

 
Case :- SECOND APPEAL No. - 83 of 2005
 

 
Appellant :- Smt. Shanti Devi
 
Respondent :- Sumant Prasad Major & 3 Ors.
 
Counsel for Appellant :- Q.M. Haque
 
Counsel for Respondent :- Rakesh Srivastava,Sri Krishna Singh
 

 
Hon'ble Ved Prakash Vaish,J.

1. Heard Sri Q.M. Haque, learned counsel for the appellant.

2. The appellant has filed the present second appeal under Section 100 of the Code of Civil Procedure (hereinafter referred to as "C.P.C.") against the judgment and decree dated 14.12.2004 passed by Ist Additional District Judge, Balrampur in Civil Appeal No.11 of 2003 whereby the appeal filed by the appellant was dismissed.

3. The brief facts of the case are that the appellant (plaintiff in the original suit) filed a suit for permanent injunction, bearing Original Suit No.245 of 1993 titled as Shanti Devi vs. Sumant Prasad and others seeking cancellation of sale deed dated 25.01.1992. The case of the appellant was that the mother of the appellant, Ram Lali was the bhoomidhar of the disputed land in Gata No.366/0.40, 368/2.26 and 374/0.03 situated at village Paraspur Karonda Pargana and Tehsil Tulsipur, District Balrampur; she died leaving behind the appellant as her sole legal heir; the deceased, Smt. Ram Lali executed a registered Will dated 27.01.1978 in favour of the appellant; after the death of her mother,

the appellant become the owner and in possession of the disputed land. It was alleged that the defendants No.3 and 4 have forged a Will dated 24.09.1988 and on the basis of said Will the land in dispute was mutated in the name of defendants. It was also alleged that the deceased Smt. Ram Lali had not executed any other Will except the Will dated 27.01.1978 in favour of the appellant. Hence, the appellant filed a suit for cancellation of sale deed dated 25.01.1992.

4. Respondents No.1 and 2 herein (defendants No.1 and 2 in the original suit) contested the suit by filing written statement. The case of plaintiff, namely, Shanti Devi was that Smt. Ram Lali was the owner and in possession of the land in dispute, she had executed a registered Will dated 24.09.1988 in favour of the respondents No.3 and 4, after the death of Ram Lali, respondent No.3 and 4 became the owners of plots in dispute. It was also stated that respondents No.3 and 4 have sold the disputed plots to the respondents No.1 and 2 vide registered sale deed dated 25.01.1992 and physical possession of the plots in question was delivered to respondents No.1 and 2. The respondents also stated that the appellant filed a Suit No.311 of 1992 titled as Smt. Shanti Devi vs. Sumant Prasad and another for permanent injunction on the ground that the appellant was the owner, the respondents had no concerned with the disputed plots and they were trying to take possession of the disputed plots illegally; In the said suit, the appellant did not mention about the registered will dated 24.09.1988; subsequently, the plaint was amended and the facts regarding Will dated 24.09.1988 and registered sale deed dated 25.01.1992 was incorporated; application for interim injunction was dismissed by learned Additional Civil Judge. Against the said judgment and decree, the appellant preferred an appeal bearing Civil Appeal No.20 of 1994, which was dismissed by learned District Judge, Gonda on 29.03.1995. Thereafter, the appellant has filed suit for cancellation of sale

deed. It was contended by the respondents that the suit is barred by Section 331 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as "U.P. Z.A. & L.R. Act").

5. On the pleadings of the parties amongst other issues, issue No.2 was framed by learned trial court that is whether suit is barred by Section 331 of U.P. Z.A. & L.R. Act.

6. Vide judgment and decree dated 17.01.2002 passed by learned Second Additional Civil Judge (Junior Devision), Balrampur, the suit was held to be barred by Section 331 of U.P. Z.A. & L.R. Act and the plaint was rejected. Against the said judgment and decree dated 17.01.2002, the appellant filed Civil Appeal No.11/2003, the same was dismissed by learned Additional District Judge, Balrampur, vide judgment and decree dated 14.12.2004.

7. Feeling aggrieved by the said judgment and decree, the appellant has preferred the present appeal. My learned predecessor vide order dated 03.03.2005 admitted the appeal on the following substantial question of law;

"Whether the court below committed error of law in holding that the suit was barred under Section 331 of the U.P. Z.A. & L.R. Act"

8. Learned counsel for the appellant urged that respondents No.3 and 4 forged a Will dated 24.09.1988, on the basis of said forged Will sold the disputed land in favour of respondents No.1 and 2 vide registered sale deed dated 25.01.1992, on the basis of said sale deed, the respondents No.1 and 2 got the disputed land mutated in their name ex parte on 09.03.1992.

9. Learned counsel for the appellant submitted that the suit was not barred by Section 331 of the U.P. Z.A. & L.R. Act, as the sale deed in favour of respondent Nos.1 and 2 is a void document. In support of his submission, he has relied upon the judgments in the case of Radhe Shyam Verma and others vs. Raj Kishore, 2004 (97) RD 416, Shri Narayan Mishra vs. IVth Additional District Judge and others, 2004 (96) RD 273 and Kishori Prasad vs. IIIrd Additional District Judge, Varanasi and others, AIR 2003 Allahabad 58.

10. Lastly, learned counsel for the appellant submitted that even if the suit was barred by Section 331 of the U.P. Z.A. & L.R. Act, learned trial court ought to have returned the plaint to the appellant/plaintiff as per provisions of Order VII Rule 10 of C.P.C, instead of rejecting it under Order VII Rule 11 of C.P.C..

11. I have carefully considered the submissions made by the learned counsel for the appellant. I have also carefully gone through the material on record.

12. Undisputedly, Smt. Ram Lali was the owner of plots in question. After her death, the appellant, Smt. Shanti Devi is the daughter of deceased Ram Lali and respondents No.3 and 4 are the maternal grand sons of Smt. Ram Lali. Smt. Ram Lali executed a registered Will dated 27.01.1978 in favour of her daughter, the appellant herein. Later on Smt. Ram Lali executed a registered Will dated 24.09.1988 in favour of Sri Jagdamba Prasad and Kalyan Babu, who are respondents No.3 and 4 respectively, who sold the plots in question to respondents No.1 and 2 vide sale deed dated 25.01.1992.

13. It was also not disputed that the plots in question have been mutated in the name of respondents No.1 and 2 in the revenue records. The U.P. Z.A. & L.R. Act was enacted to provide for the abolition of the zamindari system which involves intermediaries between the tiller of the soil and the State in Uttar pradesh and for the acquisition of their rights title and interest and to reform the law relating to land tenure consequent on such abolition and acquisition and to make provision for other matters connected therewith.

14. The U.P. Z.A. & L.R. Act is a complete code in itself. The said Act

more particularly Schedule II, it enumerates the suits etc., cognizance of which is to be taken by the revenue court. The said Act being a special act its provisions would prevail over the general law.

15. The relevant provisions of Section 331 of the U.P. Z.A. & L.R. Act read as under:-

"331. Cognizance of soils, 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 (V of 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 or any holding or part thereof, the provisions of Schedule II insofar as they relate to suits, applications 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.]

[(1-A) Notwithstanding anything in sub-section (i), an objection, that a court mentioned in Column 4 of Schedule II, or, as the case may be, a civil court, which had no jurisdiction with respect to the suit, application or, proceeding, exercised jurisdiction with respect thereto shall not be entertained by any appellate or revisional court unless the objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.]

(2) Except as hereinafter provided no appeal shall lie from an order or [decree] passed under any of the proceedings mentioned in Column 3 of the Schedule aforesaid:

[(3) An appeal shall lie from any decree or from an order passed under Section 47 or an order of the nature mentioned in Section 104 of the Code of Civil Procedure, 1908 (V of 1908) or in Order 43, Rule 1 of the First Schedule to that Code passed by a court mentioned in Column No. 4 of Schedule II to this Act in proceedings mentioned in Column 3 thereof to the court or authority mentioned in Column No. 5 thereof.

(4) A second appeal shall lie on any of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 (V of 1908) from the final

order or decree, passed in an appeal under sub-section (3), to the authority, if any, mentioned against it in Column 6 of the Schedule aforesaid.]"

16. From a bare perusal of Section 331 of the U.P. Z.A. & L.R. Act it is clear that the section outs the jurisdiction of civil court in respect of suits, application etc. enumerated in Schedule II of the said Act, which provides that a suit for declaration of rights will lie before the Assistant Collector 1st Class.

17. The words 'any relief' used in Section 331 of the U.P. Z.A. & L.R. Act is of wide import and would not only mean the relief claim but also include any relief arising out of the cause of action which led the plaintiffs to invoke the jurisdiction of a Court of law. The word 'relief' is not a part of cause of action nor the same is related to the defence setup in the case. The relief is a remedy which the court grants from the facts asserted and proved in an action.

18. The scope and ambit of Section 331 and Schedule II of the U.P.Z.A. & L.R. Act was considered by the Hon'ble Supreme Court in the case of Sri Ram and another vs. Ist Additional District Judge and others (2001) 3 SCC 24. In the said case, the Hon'ble Supreme Court after considering the judgment of Full Bench of Allahabad High Court in Ram Padarath and others vs. Second Additional District Judge, Sultanpur and others, 1989 RD 21 (All) (FB) observed as under:-

"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.".

19. The issue regarding jurisdiction of Civil Court is no more res integra in view of the law laid down by the High Court in the case of Kamla Prasad and others vs. Kishna Kant Pathak and others (2007) 4 SCC 213. In the said case, it was observed as under:-

"14. In this connection, the learned counsel for the appellant rightly relied upon a decision of this Court in Shri Ram & Anr. v. Ist Addl. Distt. Judge & Ors., (2001) 3 SCC 24. In Shri Ram, A, the original owner of the land sold it to B by a registered sale deed and also delivered possession and the name of the purchaser was entered into Revenue Records after mutation. According to the plaintiff, sale deed was forged and was liable to be cancelled. In the light of the above fact, this Court held that it was only a Civil Court which could entertain, try and decide such suit. The Court, after considering relevant case law on the point, held that where a recorded tenure holder having a title and in possession of property files a suit in Civil Court for cancellation of sale deed obtained by fraud or impersonation could not be directed to institute such suit for declaration in 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.

15. The Court, however, proceeded to observe: (Shri Ram Case, SCC p. 28, para 7)

"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".

16. The instant case is covered by the above observations. The lower Appellate Court has expressly stated that the name of the plaintiff had been deleted from Record of Rights and the names of purchasers had been entered. The said fact had been brought on record by the contesting defendants and it was stated that the plaintiff himself appeared as a witness before the Mutation Court, admitted execution of the sale deed, receipt of sale consideration and the factum of putting vendees into possession of the property purchased by them. It was also stated that the records revealed that the names of contesting defendants had been mutated into Record of Rights and the name of plaintiff was deleted.

17. In the light of the above facts, in our opinion, the Courts below were wholly right in reaching the conclusion that such a suit could be entertained only by a Revenue Court and Civil Court had no jurisdiction. The High Court by reversing those orders had committed an error of law and of jurisdiction which deserves interference by this Court."

20. In the present case, as per allegations made by the appellant/plaintiff, in para 6 of the plaint, the plots in question have been mutated in the revenue records in the name of respondents No.1 and 2 on the basis of sale deed dated 25.01.1992. Thus, it is clear that the name of respondents No.1 and 2 had been recorded in the revenue records before filing of the suit and the respondents are the recorded tenure holders. Hence, the appellant/plaintiff was required to seek declaration of his title and, therefore, he may approach the revenue court as per law laid down by the Hon'ble Supreme Court in Sri Ram's case (supra) and Kamla's case (supra).

21. The trial court as well as first appellate court have rightly held that the suit is barred by Section 331 of the U.P.Z.A & L.R. Act.

22. In view of the law laid down by the Hon'ble Supreme Court in Sri Ram's case (supra) and Kamla's case (supra), the judgments relied upon by the appellant are not of much help to the appellant and I do not feel the necessity of referring the said judments.

23. As far as the last submission of learned counsel for the appellant that even if the suit was barred by Section 331 of the U.P.Z.A & L.R. Act, the plaint ought to have been returned as per provisions of order VII of Rule 10 of the C.P.C. is concerned, it is necessary to consider the relevant provisions of Order VII Rule 10 of the C.P.C. and Order VII Rule 11 of the C.P.C., which read as under:-

"10. Return of plaint

(1) [Subject to the provisions of rule 10A, the plaint shall] at any stage of the suit be returned to be: presented to the Court in which the suit should have been instituted.

[Explanation.- For the removal oil doubts, it is hereby declared that a Court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint under this sub-rule.]

(2) Procedure on returning plaint- On returning a plaint, the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it.

11. Rejection of plaint

The plaint shall be rejected in the following cases :-

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law :

[Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]"

24. On a bare reading of Order VII Rule 10 of C.P.C. it is manifestly clear that Rule 10 empowers the court to return the plaint at any stage of the suit for presentation before the appropriate court if it comes to the conclusion that it has no pecuniary or territorial jurisdiction to entertain such suit. Rule 11 of Order VII of C.P.C. prescribes the situations in which the Court shall reject a plaint.

25. It is pertinent to mention here that rejection of a plaint does not amount to dismissal of the suit, if a suit is dismissed, a suit will be barred by the principles of res judicata, whereas in the case of rejection of a plaint, a fresh suit is maintainable and the previous order of rejection will not be an impediment in filing the second suit after removal of defect which was the cause of action of the plaint.

26. Order VII Rule 11 (d) of C.P.C. empowers the Court to reject a plaint, where the suit appears from the statements made in the plaint to be barred by any law. It is settled rule of law that at the time of invoking Order VII Rule 11 (d) of C.P.C., the Court must restrict its scrutiny only to the averments made in the plaint and neither the court can take into consideration the defence of defendants nor it can seek assistance of any evidence from the parties. If it appears from the averments made in the plaint itself that the Court cannot entertain the suit because of any bar created by law in force, the Court is left with no other alternative but to reject the plaint under Rule 11 (d) of Order VII of the C.P.C. The provision is mandatory and no discretion is left with the Court. On the other hand, plaint can only be returned if the Court does not have pecuniary or territorial jurisdiction, which is not the case in hand.

27. Thus, in my view, the trial court was quite justified in not returning the plaint in the facts of the present case. This is not a case of lack of either territorial or pecuniary jurisdiction of the trial court, but is one where the statute has created a absolute bar of jurisdiction of the trial court.

28. In view of the above discussion, the appeal fails, deserves to be dismissed and the same is hereby dismissed.

29. No order as to costs.

(Ved Prakash Vaish)

Judge

Order Date :-23rd April 2019

cks/-