Devendra vs Smt. Lalmati And 3 Others
2019 Latest Caselaw 1083 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 19
 

 
Case :- CIVIL REVISION No. - 250 of 2016
 

 
Revisionist :- Devendra
 
Opposite Party :- Smt. Lalmati And 3 Others
 
Counsel for Revisionist :- Narendra Kumar Chaturvedi
 
Counsel for Opposite Party :- Tarun Varma
 
And
 
Case :- MATTERS UNDER ARTICLE 227 No. - 8986 of 2016
 

 
Petitioner :- Devendra
 
Respondent :- Smt. Lalmati And 3 Others
 
Counsel for Petitioner :- Narendra Kumar Chaturvedi,Vivek Singh Shrinet
 
Counsel for Respondent :- Tarun Varma
 

 
Hon'ble Manoj Kumar Gupta,J.

As both the cases have common facts and raises common question of law, they have been heard together and are being decided by this common order.

The plaintiff-respondent in both the cases is Smt. Lalmati Devi. Her case is that the suit properties exclusively belonged to her husband Lattu. His name was duly recorded in the revenue records in respect of agricultural lands owned by him. Lattu died issue-less and intestate on 04.01.2013. Consequently, she inherited all the properties left behind by him. According to the plaintiff, about two years before his death, her husband fell seriously ill. Since they were issue-less, therefore, they placed complete faith and reliance upon Devendra, their pattidaar (one of the defendant in both the suits). He taking benefit of the trust reposed in him by the plaintiffs' husband succeeded in procuring a sale deed dated 30.05.2012 in his favour and his brother Pawan as well as a Will dated 02.06.2012. She came to know of the above two documents after the death of her husband when Devendra and his brother Pawan claimed title on basis of these documents in question. The specific case of the plaintiff is that she is in possession of all the properties left behind by her deceased husband. Accordingly, she instituted (i) Original Suit No. 803 of 2014 for cancellation of sale deed dated 30.05.2012 and for permanent prohibitory injunction restraining the defendants from interfering in her possession over the suit properties and (ii) Original Suit No. 1120 of 2014 for cancellation of will dated 02.06.2012 purportedly executed by her husband in favour of defendant Devendra and Pawan.

Devendra filed separate applications under Order 7 Rule 11 C.P.C. in both the suits praying for rejection of the plaint on the ground that the suits are barred from the cognizance of civil court in view of Section 331 of U.P.Z.A. & L.R. Act, 1950 (for short the Act). In original Suit No. 803 of 2014, by order dated 17.05.2016, the trial court rejected the application. The trial court held that the husband of the plaintiff was recorded tenure holder. Had there been no sale-deed, the plaintiff would have inherited the suit property. Consequently, declaration of title to the suit property is not involved. The suit for cancellation of sale deed based on fraud and misrepresentation would be maintainable before the civil court. Aggrieved thereby, Civil Revision No. 250 of 2016 has been filed by Devendra (defendant no.1).

In Original Suit No. 1120 of 2014, the trial court rejected the application under Order 7 Rule 11 C.P.C. holding that relief for cancellation of will would lie before the civil court. Aggrieved by the said order, defendant no.1 Devendra filed Civil Revision No. 108 of 2016. The revision has been dismissed by order dated 17.09.2016 reiterating that the suit for cancellation of will would lie before civil court. The revisional Court has taken note of the fact that initially name of plaintiff, being the natural heir, was mutated in the revenue records in place of her husband. Subsequently, on basis of alleged will in favour of the defendants, their name came to be mutated. The revisional court has held that since name of the defendants was entered on basis of will, which is already under challenge, therefore, no question of adjudication of title is involved. In the event, the suit is allowed and the will is cancelled, the cloud over the title of the plaintiff would stand dispelled. The revisional court has further observed that certain movable and other properties, which are not agricultural in character, are also subject matter of will, thus civil court alone will have jurisdiction in the matter.

Learned counsel for the revisionist/petitioner in both the cases made common submissions. It is urged that since name of defendants came to be recorded in revenue records, on basis of sale deed/will, therefore, declaration of title of the plaintiff is necessarily involved. It is contended that since major part of the suit properties are agricultural in character and no declaration under Section 143 has been issued till date, consequently, the suit before civil court is barred by Section 331 of the Act. In support of the said contention, he placed reliance on the Supreme Court judgments in the case of Shri Ram Vs. 1st Additional District Judge, 2001 (3) SCC 24 and Kamla Prasad Vs. Krishna Kant Pathak, 2007 (4) SCC 213.

On the other hand, learned counsel for the plaintiff-respondent submitted that declaration of title of the plaintiff is not involved in any of the suits, thus the view taken by the courts below does not suffer from any illegality.

It is not in dispute that Lattu was owner of the suit properties and his name was duly recorded in the revenue records during his life time. It is also not in dispute that Lattu died issue-less and thus after his death, in normal course, the properties left behind by him would devolve upon the plaintiff under Section 171 of the Act. The sale deed and will have been challenged primarily on the ground that two years before his death, Lattu was seriously ill and he reposed full confidence in Devendra and Pawan, who, learned counsel for the revisionist/ petitioner points out, were grandsons of one of his real brothers. They, taking advantage of the faith reposed in them, by fraud and misrepresentation, succeeded in procuring the sale deed and will deed.

A Full Bench of this Court in Ram Padarath and others Vs. Second Additional District Judge and others, 1989 (1) AWC 290, in paragraph 7 and 19 of the law report, has drawn distinction between void and voidable documents as follows:-

"7. So far as voidable documents like those obtained by practising coercion, fraud, misrepresentation, undue influence etc., are concerned, their legal effect cannot be put to an end without its cancellation. But a void document is not required to be cancelled necessarily. Its legal effect if any can be put to an end to by declaring it to be void and granting some other relief instead of cancelling it. Once it is held to be void it can be ignored by any court or authority being of no legal effect or consequence. A document executed without free consent or one which is without consideration or the object of which is unlawful or executed by a person not competent to contract like a minor or in excess of authority would be a void document. In case it is in excess of authority it would be void to that extent only. There is presumption of due registration of a document and correctness of the facts mentioned in the same, but the said presumption is not conclusive and be dislodged."

"19. The forum for action in relation to void documents or instruments regarding agricultural land depends on the real cause of action with reference to the facts averred. Void documents necessarily do not require cancellation like voidable documents. A simple suit for cancellation of a document or instrument if the same casts loud on one's right and title or is likely to cast cloud over it or affects the same adversely in respect of agricultural property, that is, 'land' poses no difficulty provided further it does not necessitate any declaration as to the claimant's right and title over the land i.e. tenancy rights under the existing law. The difficulty arises when more than one reliefs are involved or claimed. It may be that one may get effective relief in presenting without cancellation of the document, but if a document remains uncancelled for several years its existence may give rise to new trouble and litigation. The decree of a court in which a document is declared to be void and is avoided is obviously a decree in personam and the same undoubtedly binds a party but it will not be binding to each and every person as to note of such a decree can be made in the sub-Registrar's register as provided in Section 31 of the Specific Relief Act. Such a document may mislead many and many give rise to various transactions and litigations."

It is clear from the above observations that a voidable document is one, which is obtained by practicing coercion, fraud, misrepresentation and undue influence etc. Their legal effect cannot be put to end without cancellation of the document. In respect of void document, like in case where a sale deed is executed in respect of a particular property by a person, who has no title, its legal effect could be set at naught by seeking a simple declaration of title. Such a document is not required to be cancelled necessarily. It could be ignored by holding it to be void in a suit instituted for declaration of title. However, even in respect of such a document, it is now almost settled that the person affected thereby could seek its cancellation so as to put to end cloud upon his title and avoid unnecessary complication in future. In other words, the difference between a void and voidable document now stands obliterated in so far as it concern a plaintiff seeking cancellation of such document. In this regard, it is worthwhile to refer to some judgments dealing with the issue. In Indra Deo Vs. Smt. Ram Pyari, 1982 ALJ 1308, a learned Single Judge after considering the provisions of Section 31 of the Specific Act, 1963, observed as under:-

"So far as voidable document like those obtained by practicing coercion, fraud, misrepresentation, undue influence etc., are concerned, their legal effect cannot be put to an end without its cancellation. But a void document is not required to be cancelled necessarily. Its legal effect if any can be put to an end to by declaring it to be void and granting some other relief instead of cancelling it. Once it is held to be void it can be ignored by any court of authority being of no legal effect or consequence. A document executed without free consent or one which is without consideration or the object of which is unlawful or executed by a person nor competent to contract like a minor or in excess of authority would be a void document. In case it is in excess of authority it would be void to that extent only. There is presumption of due registration of a document and correctness of the facts mentioned in the same, but the said presumption is not conclusive and be dislodged."

The Full Bench in Ram Padarath approved the judgment in Indra Deo and specifically overruled view taken by a Division Bench in Dr. Ayodhya Prasad Vs. Gangotri Prasad, 1981 AWC 469 that suit in respect of a void document would lie before revenue court. The Full Bench concluded by holding-

"We are of the view that the case of Indra Dev vs. Smt. Ram Pyari, has been correctly decided and the said decision requires no consideration, while the Division bench case, Dr. Ayodhya Prasad vs. Gangotri Prasad is regarding the jurisdiction of consolidation authorities, but so far as it holds that suit in respect of void document will lie in the revenue court it does not lay down a good law. Suit or action for cancellation of void document will generally lie in the civil court and a party cannot be deprived of his right 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 surpluses 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."

(emphasis supplied)

The fundamental issue which arises for consideration is whether in case where name of plaintiff seeking cancellation of a document is not recorded in revenue records, is it imperative for him to first seek declaration of his title in a suit filed before revenue court or he could straight away approach civil court for cancellation of the document.

Section 331 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 (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 of any holding or part thereof, the provisions of Schedule II in so far 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.

(1A) Notwithstanding anything in Sub-section (1), 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."

Both the main provision as well as the Explanation uses the phrase 'cause of action' which alone is determinative of the forum before which suit would lie. If according to cause of action pleaded, the revenue court is competent to grant relief, then irrespective of the nature of relief which could be granted by the revenue court, the suit would lie before it. The crucial fact to determine the jurisdiction is the real 'cause of action'. In the word of their Lordships in Ram Padarath:-

"12. It is the real 'cause of action' which determines the jurisdiction of the court to entertain particular action notwithstanding the language used in the plaint or the relief claimed. The strength on which the plaintiff comes to the court does not depend upon the defence or relief claimed which could determine the forum for the entertainment of claim and grant of relief. It is the pith an substance which is to be seen and not the language used which may even have been so used to oust the jurisdiction of a particular court."

In Shri Ram, the Supreme Court quoted with approval the concluding part from the judgment in Ram Padarath and thereafter held 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 obtained on the ground of fraud or impersonation cannot be directed to file a suit for declaration in the revenue court 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."

In the facts of the given case, the plaintiff-appellants claimed title to the suit property on basis of a registered sale deed dated 12th July 1984 executed in their favour by one Smt. Vidyawati Devi, the recorded owner and bhoomidhar. The name of the plaintiff-appellants was mutated in the revenue records on basis of sale deed obtained by them from Smt. Vidyawati Devi. It was alleged that defendant-respondents 3 and 4 forged an agreement for sale of the same land in their favour dated 24th July 1984 projecting some impostor as Smt. Vidyawati Devi. In the said background, the plaintiff-appellants brought suit in the civil court for cancellation of sale deed dated 24th July 1984 as well as for grant of injunction. The Supreme Court held that the suit would be maintainable before the civil court, the plaintiffs being recorded tenure holders in possession of the suit properties.

In Kamla Prasad (supra), the facts were that the plaintiff brought a suit for declaration of sale deed executed in favour of the contesting defendants 1 to 10 as null and void. The sale deeds were sought to be cancelled on the ground that he was not the sole owner of the property, but defendant nos. 10 to 12, the proforma defendants, also had share therein. It was also asserted that though in the revenue records, his name duly appears but name of defendant nos. 10 to 12 was left out from being mutated. It is in the above backdrop that the Supreme Court held that the suit involved declaration of title of defendant nos. 10 to 12, therefore the suit instituted before the civil court was not maintainable. In the same context, the Supreme Court observed that legality or otherwise of insertion of names of purchaser in the Right of Records could only be decided by Revenue Court.

It is clear from the above judgments that where a suit is brought for cancellation of a registered document, the suit generally lies before civil court. A party cannot be deprived of his right of getting this relief permissible under law except where challenge to the document is dependent upon declaration of right or status of plaintiff as a tenure holder. In such a case, relief of cancellation will be surplusage, the real cause of action being denial of title of the person concerned by the other side. It could be for the reason that such person is not a recorded tenure holder in the Record of Rights, independent of the document impugned, but not as a consequence of the document impugned, in which case, as explained above, the real cause of action would be the document itself and not the expunction of name from revenue records.

Concededly, in the facts of the instant case, the title of Lattu in respect of the suit properties is not in dispute. It is also not in dispute that in normal course, the plaintiff would have inherited the suit properties after the death of her husband except for the alleged will and sale deed, which are under challenge. In case, the will and the sale deeds are cancelled on the ground that the documents were obtained by fraud and misrepresentation, the eclipse upon the title of plaintiff, which she inherits in normal course, would stand cleared. She does not require a declaration that after death of her husband she inherited his estate. The real cause of action for approaching the court is not the assertion of claim of title by the defendant on the ground of being a recorded tenure holder, but the document itself, under which the name came to be mutated. In an identical situation where name of the vendee came to be recorded on basis of impugned sale-deed, the contention that suit would not lie before the civil court was repelled by a learned Single Judge in Smt. Chhanga and another vs. Ist Additional District Judge, Jaunpur and others, 1998 (3) AWC 2094, observing thus :-

"12...........I am unable to persuade myself to agree with the contention of Mr. Prem Chandra in the facts and circumstances of the case, inasmuch as in the present case admittedly the name of the defendant was recorded as tenure-holder only by virtue of the alleged sale deed, therefore, for the purpose of seeking cancellation of the sale deed prima facie the plaintiff had a title in respect of the property which was recorded in her name prior to the alleged execution of the sale deed. If the name of the defendant has been recorded subsequent to the alleged execution of the sale deed that will not turn the table to dispel the ratio decided by the Full Bench in the present case. Then again the relief that might be claimed by the plaintiff would be only a consequential relief, if she succeeds in getting the sale deed cancelled. However, she has not asked for any such relief. If relief in the suit is granted, it would not necessarily change any status or right between the parties. In case she fails in the suit, then also no status or right under the revenue authority is required to be adjudicated upon. Therefore, the ratio decided by the Full Bench as referred to be in the case of Ram Padarath (supra) applies in the present case with full force. Same view has been taken by this Court following the decision in the case of Ram Padarth (supra) by a learned single Judge in the case of Dwarika Singh v. District Judge, Jaunpur and Ors. 1996 RD 291. Similar view was taken in the decision in the case of Sadaruddin and Ors. v. District Judge, Allahabad and Ors. 1996 RD 287, by me relying on the decision in the case of Ram Padarth (supra). The decision in the case of Ram Padarth (supra), was also followed in the case of Radhey Shyam v. District Judge, Gorakhpur and Ors. 1993 AWC 836. The decision of Full Bench in the case of Ram Padarath (supra), was relied upon by the Supreme Court in the case of Bismillah v. Janeshwar Prasad AIR 1990 SC 540."

In Ram Kumar Singh vs. Pramod and others, 2007 (4) AWC 3414, this Court considered the observations made by the Supreme Court in Shri Ram in context of a similar plea raised in that case and answered the same by observing as follows:-

"15. In the present case the names of the plaintiffs were earlier recorded as tenure-holders and it is only by virtue of the sale deeds purported to have been executed by the plaintiffs in favour of the defendants that the names of the defendants were recorded as tenure-holders. In Smt. Chhanga (supra), it was held that the suit for cancellation of the sale deed in such circumstances, maintainable in the civil court as prima facie the plaintiffs had a title in respect of the property. The decision of the Full Bench of this Court in Ram Padarath (supra) was also considered and it was observed that the ratio decided by the Full Bench applies with full force because if the name of the defendant had been recorded on the basis of the alleged execution of the sale deed then that will not dispel the ratio of the Full Bench."

In Shri Ram, the Supreme Court's observation that 'where a recorded tenure-holder having prima facie title in possession files suit in the civil court' would include a person claiming title through the recorded tenure-holder at a point of time immediately preceding the execution of the document under challenge. It would be a different matter altogether where the name of the person who had executed the alleged document was also not recorded at the time of execution of document. In that event, the executant cannot be said to be a person having prima facie title. He has to first approach the revenue court to clear deck regarding his title.

Having regard to the above legal position, this Court is of considered opinion that the suits instituted by the plaintiff-opposite party before the civil court are perfectly maintainable before it and are not barred by Section 331 of the Act. The contention of the petitioner to the contrary does not merit acceptance. In consequence, both the petitions are dismissed.

The trial court is directed to proceed with the trial of the suit expeditiously, without granting unnecessary adjournments to the parties.

 
Order Date :- 13.3.2019 
 
M. ARIF                                                        (Manoj Kumar Gupta, J.)