Smt. Sarla Pal And 2 Others vs Additional District Judge, Court ...
2019 Latest Caselaw 1310 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 59
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 1733 of 2019
 
Petitioner :- Smt. Sarla Pal And 2 Others
 
Respondent :- Additional District Judge, Court No. 6 Kanpur Dehat And 3 Others
 
Counsel for Petitioner :- Adarsh Kumar,Bansh Narain Rai
 

 
Hon'ble Surya Prakash Kesarwani,J.

1. Heard Sri Adarsh Kumar, learned counsel for the plaintiff-petitioner.

Question involved

2. Whether jurisdiction for cancellation of gift of agricultural land made by defendant No.1 Tulsi Ram to his son Shivendra Singh by deed dated 29.7.2013 shall lie with the civil court under Section 9 C.P.C. read with Section 31 of the Specific Relief Act, 1963 OR it shall lie with the Revenue Court under Section 229 B of U.P. Z.A. & L.R Act, 1950 when the plaintiff No.1 alleged that the disputed property was a benami purchase by her husband in the name of the defendant No.1 Tulsi Ram ?

3. Briefly stated facts of the present case are that as per registered sale deed dated 27.3.1997 Khasra Plot Nos. 560 A and 560 B, situate in Village - Raugaon, Tehsil - Bilhaur, District - Kanpur Nagar, were purchased by one Sri Tulsi Ram (father in law of the plaintiff-petitioner No.1 and grand father of the plaintiff-petitioner nos. 2 and 3) and his name was mutated in the revenue records. Subsequently, the aforesaid Tulsi Ram gifted the aforesaid land to his younger son Sri Shivendra Singh ( defendant No.2/respondent no.4) by a registered gift deed dated 29.7.2013. Accordingly, the name of the defendant no.2/respondent no.4 was mutated in the revenue records and he is the recorded tenure holder.

4. The plaintiffs/petitioners filed a suit for cancellation of the aforesaid gift deed dated 29.7.2013 on the ground that purchase of the disputed land by sale deed dated 27.3.1997 in the name of Sri Tulsi Ram was a benami transaction and in fact the disputed property was purchased by the husband of the plaintiff no.1, namely, Sri Awdesh Pratap Singh, who paid the entire consideration by bankers cheque no.0523719 dated 27.3.1997, issued by Bank of Baroda, Makaranpur Branch, Kanppur Nagar, but he got the sale deed executed in the name of his father Sri Tulsi Ram. The aforesaid Sri Awdesh Pratap Singh died on 1.10.2011.

5. The aforesaid suit being O.S. No.506 of 2013 (Smt. Sarla Pal & others Vs. Tulsi Ram and another) was dismissed by the impugned order dated 26.8.2015, passed by the Additional Civil Judge ((J.D.), Court No.2, Kanpur Dehat, followed by order of return of plaint dated 3.9.2015, for lack of jurisdiction of Civil Court. Against these two orders the plaintiff-petitioners filed Misc. Civil Appeal No.15 of 2015 (Smt. Sarla Pal & others Vs.Tulsi Ram and another) which has been dismissed by the impugned order dated 28.7.2018, passed by Additional District & Sessions Judge, Court No.6, Kanpur Dehat. Aggrieved with these two orders, the plaintiffs-petitioners have filed the present petition under Article 227 of the Constitution of India.

Submissions

6. Learned counsel for the plaintiffs-petitioners submits that a suit for cancellation of gift deed shall lie only in Civil Court. There was no lack of jurisdiction of civil court in view of the provisions of Section 9 of C.P.C. read with Section 31 of the Specific Relief Act, 1963 (hereinafter referred to as 'the Act, 1963' ) 1963. In support of his submissions he relied upon a decision of this Court dated 24.5.2016 in Matters under Article 227 No.3406 of 2016, Chandrika Vs. Shivnath and 4 Others.

7. I have carefully considered the submissions of learned counsel for the petitioners.

8. Section 9 of C.P.C., Section 31 of the Act, 1963 and Section 229-B and Section 331 of the U.P. Zamindary Abolition and Land Reform Act, 1950 (hereinafter referred to as 'the Act, 1950) are relevant for the purposes of the controversy involved in the present petition which are reproduced below:

Civil Procedure Code, 1908

Section 9. Courts to try all civil suits unless barred.- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

Specific Relief Act, 1963

Section 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 cancelled.

(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.

U.P.Z.A. & L.R. Act, 1950

229-B. Declaratory suit by person claiming to be an asami of a holding or part thereof.-

(1) Any person claiming to be an asami of a holding or any part thereof, whether exclusively or jointly with any other person, may sue the landholder for a declaration of his rights as asami in such holding or part, as the case may be.

(2) In any suit under sub-section (1) any other person claiming to hold as asami under the land-holder shall be impleaded as defendant.

(3) The provisions of sub-sections (1) and (2) shall mutatis mutandis apply to a suit by a person claiming to be a [bhumidhar] [* * *] with the amendment that for the word "landholder" the words "the State Government and the [Gaon Sabha] are substituted therein.

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 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.

(Emphasis supplied by me)

9. Entry No.34 of Schedule II framed under Section 331 of the Act 1950 contains description of the Revenue Court having original jurisdiction with respect to a suit for declaration of a right.

10. The law of jurisdiction of a Civil court and of a Revenue Court in matters of suit has been well settled. A Full Bench of this Court in Ram Awalamb Vs. Jata Shankar, AIR 1969 All 526 (FB) crystallize the legal position in this regard which may be summarised as under:

(a) Where on the basis of cause of action, the main relief is cognizable by a revenue court, the suit would be cognizable by revenue court only. The ancillary relief would be immaterial for determination of proper forum for the suit.

(b) Where on the basis of cause of action, main relief is cognizable by a civil court, the suit would be cognizable by civil court only. The ancillary relief which could be granted by revenue court may also be granted by civil court.

11. In the case of Sri Ram and another Vs. Ist Addl. Distt. Judge and others AIR 2001, SC 1250 (para 7): (2001) 3 SCC 24 Hon'ble Supreme Court has dealt with a similar controversy and 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.

12. In Ram Nath Vs. Munna, 1976 RD 220 (FB) it was held by a Full Bench of this Court that so long as a registered deed is not cancelled by civil court, revenue court will be bound to respect it.

13. A Full Bench of this Court in Ram Padarath Vs. Second ADJ, Sultanpur and others, 1989 RD 21 (FB) held that suit for cancellation of void and voidable sale deed shall lie in civil court. This judgment has been approved by Supreme Court in Bismillah Vs. Janeshwar Prasad, AIR 1990 SC 540.

14. In Church of North India v. Lavajibhai Ratanjibhai, (2005) 10 SCC 760, held that a plea of bar to jurisdiction of a civil court must be considered having regard to the contentions raised in the plaint. For the said purpose, averments disclosing cause of action and the reliefs sought for therein must be considered in their entirety. The court may not be justified in determining the question, one way or the other, only having regard to the reliefs claimed dehors the factual averments made in the plaint. The rules of pleadings postulate that a plaint must contain material facts.

15. With a view to determine the question as regards exclusion of jurisdiction of the civil court in terms of the provisions of the Act, the court has to consider what, in substance, and not merely in form, is the nature of the claim made in the suit and the underlying object in seeking the real relief therein. If for the purpose of grant of a relief, the court comes to the conclusion that the question is required to be determined or dealt with by an authority under the Act, 1950, the jurisdiction of the civil court must be held to have been ousted.

16. In Kamla Prasad v. Krishna Kant Path, (2007) 4 SCC 213 (paras 10 to 17) Hon'ble Supreme Court held, as under: .

"10. The learned counsel for the appellants-defendants contended that the Trial Court as well as Appellate Court were right in holding that Civil Court had no jurisdiction to decide the question as to ownership of agricultural land and the only Court which could decide such question is Revenue Court and the High Court had committed an error in reversing the said orders which deserve interference by this Court. It was submitted that so far as abadi land is concerned, the Court was right that it could be decided by Civil Court but in respect of agricultural land, Civil Court has no jurisdiction. Plaintiff was bound to approach Revenue Court under the provisions of the Act. It was also submitted that the High Court had committed an error of law and of jurisdiction in not considering the fact that the case of the plaintiff in the plaint itself was that over and above plaintiff, defendant Nos. 10 to 12 had also right in the agricultural land. Such a question can be decided only by Revenue Court in a suit filed under Section 229B of the Act. It was also submitted that when the name of the plaintiff was deleted and of the purchasers entered in Revenue Records, Revenue Court alone could consider the grievance of the plaintiff. It was, therefore, submitted that the appeal deserves to be allowed by setting aside the order passed by the High Court and restoring the orders of the Courts below.

11. The learned counsel for the respondent-plaintiff, on the other hand, supported the order of the High Court and contended that it rightly decided that Civil Court has jurisdiction and the case deserves to be decided on merits by dismissing the appeal.

12. Having heard the learned advocates for the parties, in our opinion, the submission of the learned counsel for the appellants deserves to be accepted. So far as abadi land is concerned, the trial Court held that Civil Court had jurisdiction and the said decision has become final. But as far as agricultural land is concerned, in our opinion, the Trial Court as well as Appellate Court were right in coming to the conclusion that only Revenue Court could have entertained the suit on two grounds. Firstly, the case of the plaintiff himself in the plaint was that he was not the sole owner of the property and defendant Nos. 10 to 12 who were proforma defendants, had also right, title and interest therein. He had also stated in the plaint that though in the Revenue Record, only his name had appeared but defendant Nos. 10 to 12 have also right in the property. In our opinion, both the Courts below were right in holding that such a question can be decided by a Revenue Court in a suit instituted under Section 229B of the Act. The said section reads thus:

229B. Declaratory suit by person claiming to be an asami of a holding or part thereof.(1) Any person claiming to be an asami of a holding or any part thereof, whether exclusively or jointly with any other person, may sue the landholder for a declaration of his rights as asami in such holding or part, as the case may be.

(2) In any suit under sub-section (1) any other person claiming to hold as asami under the landholder shall be impleaded as defendant.

(3) The provisions of sub-sections (1) and (2) shall mutatis mutandis apply to a suit by a person claiming to be a bhumidhar, with the amendment that for the word 'landholder' the words "the State Government and the Gaon Sabha" are substituted therein.

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 Court 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.

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:

"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."

(Emphasis supplied by me)

17. A conjoint reading of the provisions of Section 9 of the Code and Section 31 of the Act, 1963 and Section 229 B and Section 331 of the Act 1950 as well as the law laid down by this Court and Hon'ble Supreme Court in the cases aforementioned, clearly settles the following proposition of law;

(i) The Courts subject to the provisions of the Code, shall have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

(ii) 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 cancelled.

(iii) If the instrument has been registered under the Indian Registration Act, 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.

(iv) A civil suit for declaration of rights with respect to the matters provided under Section 229 A, 229 B and 229 C of the Act 1950 is specifically barred by the provisions of Section 331 of the Act 1950.

(v) Cause of action implies a right to sue. The material facts which are imperative for the suitor to allege and prove constitute the cause of action. Cause of action is not defined in any statute. It has been judicially interpreted inter alia to mean that every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. Negatively put, it would mean that every thing which, if not proved gives the defendant an immediate right to judgment, would be part of cause of action. For every action, there has to be a cause of action and in absence thereof the plaint or the writ petition, as the case may be, shall be rejected summarily.

(vi) Where on the basis of cause of action the main relief is cognizable by a revenue court, the suit would be cognizable by revenue court only. The ancillary relief would be immaterial for determination of proper forum of the suit.

(vii) Where on the basis of cause of action, main relief is cognizable by a civil court, the suit would be cognizable by civil court only. The ancillary relief which could be granted by revenue court may also be granted by civil court.

(viii) Where recorded tenure holder having a prima facie title and in possession, files suit in the civil court for cancellation of sale deed on the ground that it was obtained by 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 as on the date of execution of the alleged sale deed is not under cloud. He does not require declaration of his title to the land.

(ix) But 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, then such a person is necessarily required to seek a declaration of his title, for which jurisdiction vest in revenue court. Therefore, he may be directed to approach the revenue court, as deed being void has to be ignored for giving him relief for declaration and possession.

18. Having crystallized the legal position as above, I proceed to examine the facts of the present case. Undisputedly, the plaintiffs-petitioners are not the recorded tenure holder. They have filed a suit for declaration of the gift deed dated 29.7.2013, executed by Tulsi Ram to be void on the ground that the registered sale deed dated 27.3.1997 of the disputed property in favour of Tulsi Ram on the basis of which his name was mutated in the revenue record, was a benami transaction as the consideration thereof was paid by Awdesh Pratap (husband of the plaintiff no.1 and father of the plaintiff nos. 2 & 3). Thus, the relief for cancellation of gift deed dated 29.7.2013 is solely dependent on declaration of rights of the plaintiffs-petitioners with respect to the disputed property. Thus, on the basis of cause of action disclosed by the plaintiffs-petitioners, the main relief is cognizable by the revenue court and not by the civil court inasmuch as the declaration of rights with respect to agricultural land vest in the revenue court. A civil suit in such matter is specifically barred by Section 331 of the Act, 1950. Therefore, both the courts below have not committed any error of law to hold that the Civil Court has no jurisdiction to try the suit and the suit shall be cognizable by revenue court and accordingly the plaint has been returned.

19. The judgment in the case of Chandrika (supra), relied by learned counsel for the petitioners does not support their case rather the law laid down therein, is against them. In the case of Chandrika (supra), the facts were that the petitioner of that case was undisputedly a recorded tenure holder as on the date when the alleged sale deed was executed allegedly by an imposter and not by him and for cancellation of which he filed a civil suit. In these circumstances, the suit was held to be maintainable inasmuch as on cancellation of the sale deed there shall be no requirement for declaration of the title of the plaintiff-petitioner (Chandrika) and the relief of ejectment and possession would be ancillary relief. The aforesaid conclusion is well supported by the facts and legal position noted by this Court in paragraph Nos.3,6,7,8,13,14 and 16 of the judgment in the case of Chandrika (supra). Therefore, the aforesaid judgment is of no help to the plaintiff-petitioner.

20. For all the reasons stated above, I do not find any legal infirmity in the impugned orders. The petition is wholly devoid of substance and is therefore, dismissed.

Order Date :- 15.3.2019/vkg