Unknown vs "12. Having Heard The Learned ...
2023 Latest Caselaw 946 UK

       IN THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL

                       SRI JUSTICE VIPIN SANGHI, C.J.

                             10TH APRIL, 2023
       WRIT PETITION (M/S) NO. 926 OF 2023
Between:
Kumud Vaidya                     ........Petitioner.

and

Shri Kamal Prasad                                         ....Respondent


Counsel for the petitioner        :   Mr. Arvind Vashisth, learned Senior
                                      Counsel assisted by Mr. Priyanshu
                                      Gairola, learned counsel.

Counsel for the respondent        :   Mr. Neeraj Garg, learned counsel for
                                      the respondent.



Upon hearing the learned Counsel, the Court made the
following

JUDGMENT :

The petitioner has preferred the present writ petition to

assail the order dated 19.01.2023 passed by learned

Additional District Judge (II), Dehradun, whereby Civil

Revision No. 12 of 2022, preferred by the petitioner to assail

the order dated 29.11.2021 passed by learned Civil Judge

(Junior Division), Rishikesh dismissing the petitioner's /

defendant's Application under Order VII Rule 11 CPC, has

been rejected.

2. The respondent had preferred the aforesaid Suit No.

48/2020, wherein the petitioner was the defendant, to seek

a declaration that the Gift Deed, in respect of agricultural land, executed by the Aunt of the parties late Rajkumari

Padma is void. The petitioner moved an Application under

Order VII Rule 11 CPC on the premise that such a dispute

could be agitated only before the Revenue Court, and the

jurisdiction of the Civil Court is barred under Section 331 of

the Uttar Pradesh Zamindari Abolition and Land Reforms

Act, 1950. The Courts below did not find merit in this

submission of the petitioner, and dismissed the Application

as well as the revision.

3. Learned Senior Counsel for the petitioner has placed

reliance on the judgment of the Supreme Court in Kamla

Prasad and others vs. Kishna Kant Pathak and others

(2007) 4 SCC 213, and, in particular, Paragraphs 12 and

13 thereof, which read as follows:-

"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 defendants 10 to 12 who were pro-forma 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 defendants 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 229-B 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."

4. Learned counsel for the respondent, who appears

on advance notice, has countered the submissions of Mr.

Vashisth, by placing reliance on the later judgment of the

Supreme Court in Narendra Kumar Mittal and others vs.

M/s Nupur Housing Development Pvt. Ltd. and

another, 2019 10 SCALE 181. In this case, the plaintiff

had filed a Civil Suit to challenge the sale-deeds executed by

the vendor in favour of the third party in respect of the

property sold to the plaintiff. The land was an agricultural

land, and the defendants in the Suit raised similar objection

to the maintainability of the Suit before the Civil Court. The

Supreme Court rejected the said submission of the

defendants. The relevant extract of the judgment on this

aspect reads as follows:-

"6. This Court in Smt. Bismillah v. Janeshwar Prasad and Ors.((1990) 1 SCC 207) has drawn a distinction between the suits cognizable by the civil court and the cases where Revenue Court has exclusive jurisdiction. It was also held that the statutory provisions ousting the jurisdiction of the civil court need to be strictly construed. It was held thus:

"7. 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 cognisable 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."

7. In the instant case, the plaintiff has pleaded that it had purchased the disputed property under five sale deeds all dated 17.10.1998 from the first defendant. The suit was filed for cancellation of the sale deed dated 15.06.2006 on the ground of fraud and misrepresentation. The plaintiff had not sought any relief with respect to its own right and title as a tenure holder or declaration of its title or status. As stated

above, the only relief sought in the suit filed was for cancellation of the alleged sale deed dated 15.06.2006. We are of the view that Section 331 of the Act does not deprive a party of his right to approach competent court of law for getting a document cancelled, especially when, prima facie, the title of the recorded tenure holder is not under cloud. Revenue Court does not have jurisdiction of granting relief of cancellation of a deed on the ground of fraud and misrepresentation."

5. The Supreme Court has also distinguished its

earlier judgment in Kamla Prasad and others (supra) in

Paragraph-11 in the following manner:-

"11. In the judgment of this Court in Kamla Prasad & Ors. v. Kishna Kant Pathak & Ors.((2007) 4 SCC 213), relied on by the learned counsel for the appellant- second defendant, the plaintiff was the co-owner and not a recorded tenure holder. In the plaint, the plaintiff himself had stated that he was not the sole owner of the property and defendants 10 to 12 who were proforma defendants had also right, title and interest therein. He had also stated that though his name had appeared in the revenue record, defendants 10 to 12 also had a right in the property. In this factual background, this Court held that such a question can be decided by the Revenue Court in a suit instituted under Section 229-B of the Act. It was also held that the legality or otherwise of the insertion of names of purchasers in records of rights and deletion of the name of the plaintiff from such record can only be tested by Revenue Court, since names of the purchasers had already been entered into the record. This judgment has no application to the facts of the present case."

6. Mr. Garg has also drawn the attention of the

Court to the judgment of the Supreme Court in Horil vs.

Keshav and another (2012) 5 SCC 525. In this case, the

Supreme Court has commented on the nature and scope of

the proceedings before the Revenue Courts, and observed

as follows:-

"13. Section 331 of the Act bars the jurisdiction of the civil court and provides that a suit under the Act can be entertained by no court other than that the courts specified in Scheduled II to the Act. A reference to Schedule II would show that the court of original jurisdiction for a suit under Section 176 of the Act for division of a holding of a bhumidhar is the Assistant Collector, First Class and the courts of first appeal and second appeal are the Commissioner and the Board of Revenue respectively. Section 341 of the Act, of course, provides that unless otherwise expressly provided by or under the Act, the provisions of the Court Fees Act, 1870; the Code of Civil Procedure, 1908 and the Limitation Act, 1963, including Section 5 thereof would apply to the proceedings under the Act.

14. Though the provisions of the Code of Civil Procedure have been made applicable to the proceedings under the Act but that would not make the authorities specified under Schedule II to the Act as "court" under the Code and those authorities shall continue to be "courts" of limited and restricted jurisdiction.

15. We are of the view that the Revenue Courts are neither equipped nor competent to effectively adjudicate on allegations of fraud that have overtones of criminality and the courts really skilled and experienced to try such issues are the courts constituted under the Code of Civil Procedure."

7. In the light of the aforesaid, it is abundantly clear

that a Suit, to seek a declaration in respect of a document of

transfer of title to an agricultural land to say that the same

is void and to seek a relief of cancellation of the title

transferred by the document, would be maintained only in a

Civil Court.

8. The plaintiff, who is respondent in the proceedings

before me, has also sought a declaration in respect of a Gift

Deed executed by the Aunt of the parties in favour of the

petitioner, and that being the only relief, the present Suit

was clearly maintainable before the Civil Court.

9. The petition is, accordingly, dismissed.

________________ VIPIN SANGHI, C.J.

Dt: 10th April, 2023 Rathour