Delhi High Court
Sh. Prabhjot Singh & Anr. vs Col. (Retd.) Hargobind Singh & ... on 30 September, 2010
Author: V.B.Gupta
* HIGH COURT OF DELHI : NEW DELHI
1. CM(M) No. 947/2010 & CM No. 13139/2010
% Judgment reserved on: 1st September, 2010
Judgment delivered on: 30th September, 2010
1. Sh. Prabhjot Singh & Anr.
S/o Sh. Teja Singh,
2. Sh. Balbir Singh
S/oSh. Gurjit Singh
R/o Village Behat, Tehsil Bilaspur,
District Rampur,
U.P. ....Petitioners.
Through: Mr. M.S.Vinayak with
Mr. Deepak, Advocates.
Versus
1. Col. (Retd.) Hargobind Singh
S/o late Gurbaksh Singh
R/o House No. 1394, Sector-33C,
Chandigarh.
2. Sh.Hargursaran Singh
S/o late Gurbaksh Singh
R/o Village Behat, Tehsil Bilaspur
District Rampur,
U.P. ....Respondents
Through: None
CM (M) No. 947/2010 Page 1 of 21
2. CM (M) No. 948/2010 & CM No. 13146/2010
1. Smt. Namrata Chandi
D/o Sardar Hargursharan Singh
Through her attorney Sh.Harbans Singh
Son of Inder Singh
R/o Village Behat, Tehsil Bilaspur
District Rampur, U.P. ....Petitioner
Through: Mr. M.S.Vinayak with
Mr. Deepak, Advocates.
Versus
1. Smt. Amrinder Kaur
D/o Sh. Hargobind Singh
Address for service
R/o House No. 1394, Sector-33C,
Chandigarh.
2. Sh.Hargursaran Singh
S/o late Gurbaksh Singh
R/o Village Behat, Tehsil Bilaspur
District Rampur,
U.P. ....Respondents
Through: None
3. CM (M) No. 950/2010 & CM No. 13168/2010
1. Sh. Manjeet Singh
S/o Sh. Jagir Singh
2. Sh. Balbir Singh
S/o Sh. Gurdeep Singh
CM (M) No. 947/2010 Page 2 of 21
(Both represented through
Sh. Teja Singh son of Sh. Gurdit Singh
R/o Village Behat, Tehsil Bilaspur
District Rampur, U.P. ....Petitioners
Through: Mr. M.S.Vinayak with
Mr. Deepak, Advocates
Versus
1. Col. (Retd.)Sh. Hargobind Singh
S/o late Gurbaksh Singh
R/o House No. 1394, Sector-33C,
Chandigarh.
2. Sh.Hargursaran Singh
S/o late Gurbaksh Singh
R/o Village Behat, Tehsil Bilaspur
District Rampur,
U.P. ....Respondents
Through: None
4. CRP No. 134/2010 & CM No. 13095/2010
Hargursharan Singh Major,
S/o Sh. Sardar Gurbaksh Singh,
R/o Village Bihta, Tehsil Bilaspur
District Rampur, U.P. ....Petitioner
Through: Petitioner in person
Versus
1. Col. Sh. Hargobind Singh
Through attorney Parminder Kaur,
R/o House No. 1394, Sector-33C,
CM (M) No. 947/2010 Page 3 of 21
Chandigarh. ....Respondent
No.1
2. Prabhjot Singh Major,
S/o Sh. Tej Singh,
R/o Village Bihta, Tehsil Bilaspur
District Rampur,
U.P. ...Respondent No.2
3. Balbir Singh Major,
S/o Sh. Gurjit Singh,
R/o Village Bihta, Tehsil Bilaspur
District Rampur,
U.P. ....Respondent No.3
Through: None
5. CRP No. 135/2010 & CM No. 13097/2010
Hargursharan Singh Major,
S/o Sh. Sardar Gurbaksh Singh,
R/o Village Bihta, Tehsil Bilaspur
District Rampur, U.P. ....Petitioner
Through: Petitioner in person
Versus
1. Col. Sh. Hargobind Singh
Through attorney Parminder Kaur,
R/o House No. 1394, Sector-33C,
Chandigarh. ....Respondent No.1
2. Mangit Singh Major,
S/o Sh. Jagir Singh,
R/o Village Behait, Tehsil Bilaspur
CM (M) No. 947/2010 Page 4 of 21
District Rampur,
U.P. ...Respondent No.2
3. Balbir Singh Major,
S/o Sh. Gurjit Singh,
R/o Village Behait, Tehsil Bilaspur
District Rampur,
U.P. ....Respondent No.3
Through: None
6. CRP No. 136/2010 & CM No. 13098/2010
Hargursharan Singh Major,
S/o Sh. Sardar Gurbaksh Singh,
R/o Village Bihta, Tehsil Bilaspur
District Rampur, U.P. ....Petitioner
Through: Petitioner in person
Versus
1. Smt. Amrinder Kaur
Col. Sh. Hargobind Singh
Through attorney Parminder Kaur,
R/o House No. 1394, Sector-33C,
Chandigarh. ....Respondent No.1
2. Colonel Sarvajit Singh Thind,
S/o Sh.Avtar Singh Thind,
R/o Village Bihta, Tehsil Bilaspur
District Rampur,
U.P. ...Respondent No.2
CM (M) No. 947/2010 Page 5 of 21
3. Namrita Chandi,
D/o Sh. Hargursharan Singh,
R/o Village Bihta, Tehsil Bilaspur
District Rampur,
U.P. ....Respondent No.3
Through: None
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
V.B.Gupta, J.
By this common judgment, above said six petitions are being
disposed of, since common question of law and facts are involved in
these petitions.
2. Brief facts are that, Col. Hargobind Singh Major, respondent
herein (plaintiff in the trial court) through his attorney Smt. Parminder
Kaur (his wife), filed a suit for declaration and permanent injunction
against Prabhjot Singh Major, Balbir Singh Major and Hargursharan
Singh Major, on the ground that he is recorded as land holder
cultivator having transferrable rights of the cultivated land plot No.
1/5, area 32 bighas, 11 biswa, 12 biswansis, Gatha no.4 area 12
Biswa, Gatha No.5 area 13 Biswa, Gatha No.9/1, area 2 Bighas, Gatha
22/55 area 6 Biswa, 8 Biswansis, Gatha No. 1/67, Area 1 bigha 4
biswa, total numbers 6, total area 37 bighas, 7 biswa, rent 229 rupees
45 paise per year situated in village Bihta, Bilaspur, District Rampur.
3. It is further stated that he transferred area of 9 Bighas, 12 Biswa
out of Gatha No. 1/5 Rent Rs. 60/- per year to Kumari Amrinder Kaur,
his daughter. It is further averred that his name is entered in the
records, as land holder cultivator having transferable rights of the
cultivated land, Plot No. 1/5, Area 5.813 hec. Gatha no. 4 area 152
hec. Gatha no. 5 Area 164 hec. Gatha no. 9/1 area 506 hec. Gatha no.
22/55 area. 081 hec., Gatha 1/67 area 34 hec., total numbers is 6, total
area 7.020, rent Rs.169.45 p per year and is in actual possession.
4. It is further stated that he appointed Sh. Hargursaran Singh, as
his Attorney, vide Power of Attorney, dated 03.04.1970 for the
management of the aforesaid lands. However, Sh. Hargursaran Singh
started deriving undue benefits of being attorney and as such Power
of Attorney in his favour was revoked, by executing document dated
29.07.95 and the said document of revocation was executed in Sub
Registrar Office, Amritsar. Intimation of the same was given to Sh.
Hargursaran Singh by registered A/D, letter dated 31.07.1975 and also
to Sub Divisional Magistrate, Bilaspur, District Rampur (U.P.) As
such, since 1975, Sh. Hargursaran Singh is no more his attorney and
was not in any way authorized to do any legal act or execute any
document on his behalf.
5. It is further averred that Sh.Hargursaran Singh in collusion with
Prabhjot Singh Major and Balbir Singh Major (Defendant no.1 and 2
in the trial court) executed a forged fabricated Registered Sale Deed
dated 07.01.96, in their favour without having any right or authority,
by posing himself as a General Attorney of Hargobind Singh. It is
further averred that these persons instituted a mutation case no. 229 of
the year 1996 in the Court of Tehsildar, Bilaspur and procured
mutation order dated 07.03.96 and Hargobind Singh came to know
about all the conspiracies, through the record keeper on 16.05.02.
Accordingly, Hargobind Singh sought the following reliefs:-
a) that by a declaratory decree of this
court it should be declared in favour
of the plaintiff and against the
defendants that the alleged sale deed
dated 7.1.96 which is delineated on
the Book No.1 volume 534/537 page
60/387-390 A.D.H.B.-1, of the office
of Sub-Registrar Bilaspur, Distt.
Rampur, of which they should make
entry in the aforesaid records.
b) that a decree of permanent injunction
should be issued by this court in
favour of the plaintiff and against the
defendants to the effect that the
defendants themselves or in any other
way or medium shall not interefere
with the possession of the plaintiff
over the disputed lands.‖
6. Petitioners filed an application under Order 7 Rule 11 of Code
of Civil Procedure (for short as ‗Code') for rejection of the plaint on
the ground that the suit filed in the Civil Court is not maintainable in
view of Section 229-B, 229-D and 331 of ‗The Uttar Pradesh
Zamindari Abolition and Land Reforms Act, 1950' (for short as ‗Act)
as well as on the ground that Hargobind Singh has not sought the
relief for possession and mere declaration under Section 34 of the
Specific Relief Act is not maintainable.
7. Trial Court, vide its order dated 5th April, 2010, dismissed the
applications filed by petitioners.
8. Petitioners by way of present Petitions have challenged the
impugned order.
9. It is contended by Sh. M.S.Vinayak, Advocate (on behalf of
three petitioners) that Hargobind Singh has filed the Civil Suit in
respect of agricultural land situated in Tehsil Bilaspur, District
Rampur (U.P.), which is governed by provisions of the Act, which is
a complete code in itself. The jurisdiction of Civil Court is barred
under Section 331 of the Act.
10. It is also contended that relevant entries no.24 & 34 of
Schedule-II annexed with the Act, prescribes the appropriate remedy
with regard to the suit for declaration and permanent injunction.
11. It is further contended that it is settled proposition of law that a
person not being recorded tenure holder seeking cancellation of the
sale deed on the ground of fraud and impersonation has to approach
the revenue court for seeking a declaration of right and status as
tenure holder and relief of cancellation of deed shall be redundant.
On the contrary, the recorded tenure holder has the remedy before the
civil court seeking declaration with regard to the validity of the sale
deed on the ground of fraud, impersonation etc.
12. Lastly, it is contended that petitioner vide mutation order are
the recorded tenure holder/bhumidar of the suit land. This fact has
been admitted by Hargobind Singh in his reply that he has handed
over the possession to the purchasers who are cultivating the suit
land. Thus, Hargobind Singh is out of possession of suit land and as
such Civil Court has no jurisdiction to try the present suit.
13. In support, learned counsel for petitioners cited following
judgments:-
a) Chandrika Misir and another vs. Bhaiyalal,
AIR 1973 SC 2391 and
b) Kamla Prasad and others vs. Krishna Kant Pathak
and other, [2007 (102) RD 378].
14. Sh. Hargursharan Singh (petitioner in three Petitions) argued
himself. He advanced his arguments on the same lines as advanced
by Sh. M.S.Vinayak, Advocate for other Petitioners.
15. Relevant provisions in this case are, Sections 229-B, 229-D
and 331 of the Act, which read as under:-
"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 [bhumidar] [***] with the
amendment that for the word ―landholder‖ the word
―the State Government and the [Gaon Sabha] are
substituted therein.]
―[229. D. Provision for injunction.--[(1) If in the
course of a suit under the provisions of Sections
229-B and 229-C, it is proved by an affidavit or
otherwise--
(a) that any property, trees or crops standing on the
land in dispute is in danger of being wasted,
damaged or alienated by any party to the suit; or
(b) that any party to the suit threatens or intends to
remove or dispose of the said property, trees or
crops in order to defeat the ends of justice, the Court
may grant a temporary injunction and where
necessary, also appoint a receiver.]
(2) Nothing in sub-section (1) shall apply to a suit
filed under sub-section (4-D) of Section 122-B.]‖
"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 or 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. As per averments made in the plaint, Hargobind Singh has
been entered in the records as land holder cultivator having
transferable rights of the cultivated land and is only actual physical
possession.
17. In Kamla Prasad (supra), the case of plaintiff therein, as
per plaint was;
―that he was not the sole owner of property and
defendants No.10 to 12 who were proforma
defendants, had also right, title and interest
therein‖.
18. It was in that context Supreme Court observed;
―That in our opinion both the courts below were
right in holding that such a question can be
decided by the revenue court in a suit instituted
under Section 229-B of the Act.‖
19. It was also laid down in Kamla Prasad (supra) that;
―Civil Court will have the jurisdiction for the
declaration of sale deed as null and void if prima
facie the title of plaintiff is not under cloud and in
such circumstances the plaintiff is not required to
seek declaration of his title to the land and on the
other hand if the title of the plaintiff is under cloud
then the plaintiff is required to seek declaration of
his title in the revenue court and the suit will not
be maintainable in the Civil Court.‖
20. In the present case, Hargobind Singh has categorically stated
in the plaint, that he is in actual physical possession of the suit
property. Thus, prima facie his title is not under cloud and he does
not require any declaration of his title to the land. He can seek
cancellation of sale deed only in the civil court on the ground of
fraud or impersonation. Admittedly, power of attorney executed in
favour of Hargursharan Singh, was revoked on 29.7.1975. Whereas,
Hargursharan Singh by posing himself as General Attorney of
Hargobind Singh got the sale deed registered on 7.1.1996, when on
that date Sh.Hargursharan Singh had no right or authority, by virtue
of which he could have got registered the sale deed on 7.1.1996,
since he was no more the General Attorney of Hargobind Singh.
21. In Mewa and others vs. Baldeo, AIR 1967 Allahabad 358, it
was observed:-
―It is well settled that every suit of a civil nature
lies in a civil court unless it is expressly barred by
statute. What has, therefore, to be seen is, what is
the bar created by the U.P. Zamindari Abolition and
Land Reforms Act in respect of such suits which
would normally be filed in civil courts. The only
bar that exists in the U.P. Zamindari Abolition and
Land Reforms Act is S.331. The relevant part of
the section which creates the bar is in the following
words:
―No court other than the court mentioned in column
4 of Schedule II shall .......... take cognizance ....
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.‖
(6) In substance, therefore, the bar exists where a
suit is filed in a civil court which is based upon a
‗cause of action' in respect of which cause of action
the plaintiff could get any relief by a proceeding in
the revenue court. Therefore, the primary important
thing to be observed in each case filed in civil court
is, where an objection is raised as to its
maintainability in a civil court, as to what is the
cause of action for it, and whether on the basis of
that cause of action any relief can be granted by the
revenue court. If the cause of action is one in which
the revenue court can give no relief then the suit is
one which would lie in the civil court. If the cause
of action is one in respect of which no relief can be
claimed in the revenue court then the suit is
maintainable in the civil court and once the suit is
maintainable in the civil court then there is no bar
in civil court granting all possible reliefs flowing
from that cause of action. Consideration of
individual reliefs divorced from cause of action is,
therefore, wholly irrelevant.
(7) Applying this principle to the present case we
find that the cause of action in the present case is
that the plaintiff was, under fraudulent
circumstances, induced to execute a sale deed of
this property in favour of the defendants and the
plaintiff wants that that sale deed be cancelled and
his property be restored to him. In these
circumstances the real cause of action of the
plaintiff is the fraudulent act in obtaining the sale
deed. The sale deed having been executed by the
plaintiff himself, on account of fraud, as alleged by
him, is only a voidable document and is, therefore,
valid and binding upon the plaintiff as long as it is
not set aside. The title which has passed from the
plaintiff to the defendants would continue to vest in
the defendants as long as the sale deed is not
cancelled and obviously as long as long as the sale
deed is not cancelled no relief can be granted to the
plaintiff either by way of declaring his title, because
he has no title, or of delivering of property as long
as he does not get back his title which he has sold
by sale deed Janki Kunwar v. Ajit Singh (1888)
ILR 15 Cal. 58 (PC). In these circumstances the
revenue court can give no relief as long as the sale
deed is not cancelled. It was contended on behalf of
the defendants that the revenue court can give a
declaration that the plaintiff is the owner because
the sale deed was executed by fraud and the
revenue court could also give possession. As stated
above neither declaration nor possession can be
given to the plaintiff as long as the sale deed is not
cancelled.‖
22. Supreme Court in Smt. Bismillah vs. Janeshwar Prasad &
Others (1990) 1 SCC 207 has observed;
―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 cognizable 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.‖
23. Since, title of Hargobind Singh is not under cloud and he is in
possession, thus he is not required to seek declaration of his title of the
land. Certainly, he can seek cancellation of the sale deed in Civil
Court on the ground of fraud or misrepresentation. Moreover, when
Hargobind Singh states that he is in actual physical possession of the
suit property, under these circumstances he is not required to seek the
relief for possession.
24. Under these circumstances, no illegality, infirmity or error can
be found in the impugned order passed by the trial court.
25. Present petitions are thus not maintainable. Accordingly, all
the above mentioned Petitions stand dismissed with costs of
Rs.10,000/- (Rupees Ten Thousand only) in each case.
26. Petitioners are directed to deposit the costs with Registrar
General of this court by way of cross cheque, within four weeks from
today.
CM Nos.13139/2010, 13146/2010, 13168/2010, 13095/2010,
13097/2010 & 13098/2010 (stay)
27. Dismissed.
28. List for compliance on 1st November, 2010.
29. Copy of this judgment be placed in all the connected matters.
September 30, 2010 V.B.GUPTA, J.
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