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Neutral Citation No. - 2024:AHC:133948

Reserved on 07.08.2024

Delivered on 21.08.2024

AFR

Court No. - 36

Case :- SECOND APPEAL No. - 1035 of 1996

Appellant :- Mangoo Singh And Ors.

Respondent :- Ram Autar

Counsel for Appellant :- Smt. Shikha Singh,Ajay Shankar,Alrafio

Basir,D.K. Dwivedi,R.C.Tiwari,Shashi Kumar Dwivedi,Triveni

Shankar

Counsel for Respondent :- Ajit Kumar,Kiran Kumar Arora,Rahul

Sahai

Hon'ble Kshitij Shailendra,J.

THE APPEAL

1.The instant second appeal at the instance of defendants of

Original Suit No.523 of 1989 (Ram Autar Vs. Siyawati and others)

has been filed challenging the concurrent judgments and decrees

drawn by the trial court and the first appellate court whereby,

respectively, suit for cancellation of a registered Will dated

20.03.1985 has been decreed and civil appeal arising out of the decree

has been dismissed.

PLAINT CASE

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2.As per the plaint case, one Harswaroop had two sons, namely,

Ram Autar (plaintiff) and Mangoo (defendant no.2). One Siyawati

wife of defendant no.2, was arrayed as defendant no.1. Harswaroop,

aged 90 years, used to remain sick in his last days of life. His wife had

already died and the plaintiff and defendant no.2 used to take care of

their father. When Harswaroop fell seriously ill in March, 1985, the

plaintiff and defendant no.2 took him to Modinagar and Meerut for

treatment. Initially, Harswaroop got some relief but he again fell ill

and, on 20.03.1985, defendant no.2 along with his brother-in-law

Nand Kishore took Harswaroop for examination by a doctor at

Modinagar. At that time, since the wife of plaintiff was ill, he could

not accompany his father. Defendant no.2, in collusion with defendant

no.1, i.e. his wife, and his brother-in-law Nand Kishore, took

Harswaroop to Ghaziabad for treatment and on 20.03.1985 itself, a

Will was obtained from Harswaroop in the name of defendant no.1,

i.e. the wife of defendant no.2 pretending that the same was being

executed in favour of both plaintiff and defendant no.2. Harswaroop

died on 04.01.1989, however, plaintiff could not get any information

about the Will but when the defendants, at the strength of the said

Will, expressed their absolute ownership in respect of Khasra

No.1007, the plaintiff got information about the Will and found it as

having been fraudulently executed. A plea with regard to family

settlement dated 17.01.1989 was also taken and cause of action for

filing the suit was alleged as denial by the defendants to get the Will

cancelled, threats extended in April, 1989 as regards possession over

the property and on not accepting family settlement.

DEFENCE IN WRITTEN STATEMENT

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3.The defendants filed written statement pleading due execution

of the Will. It was stated that the testator even till his death remained

in all good senses and the Will was executed out of his free will. It

was further stated that the plaintiff had never taken care of his father

and even did not participate in his last rites. Bar of Section 331 of U.P.

Zamindari Abolition and Land Reforms Act, 1950 (for short ‘the Act

of 1950’) was also pleaded with a further statement that name of the

beneficiary, i.e. the defendant no.1, had already been mutated in the

revenue records at the strength of Will.

TRIAL COURT'S JUDGMENT

4.The trial court decreed the suit on 04.11.1993. It found the

execution of Will as a result of fraud and fabrication and also recorded

that the original Will was neither filed before the Court nor proved in

accordance with law. It, however, discarded family settlement relied

upon by the plaintiff. As regards bar of Section 331, the trial court

observed that since suit was filed seeking cancellation of Will and

claiming injunction restraining dispossession and alienation, the civil

court had jurisdiction to entertain and decide the suit.

FIRST APPELLATE COURT'S JUDGMENT

5.Aggrieved by the decision of the trial court, the defendants

preferred Civil Appeal No.10 of 1993 (Mangoo Singh and others Vs.

Ram Autar) that has been dismissed on 05.11.1996.

COUNSEL HEARD

6.I have heard Sri Triveni Shankar along with Sri Narendra

Mohan & Sri Ramesh Chandra Tiwari, learned counsel for the

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defendant-appellants and Sri Kiran Kumar Arora, learned counsel for

the plaintiff-respondent.

ADMISSION ORDER

7.The instant second appeal, though filed in the year 1996 when

an order of status quo was also passed, it was admitted as late as on

05.10.2021 on the following substantial questions of law:-

“(1) Whether in a case where the plaintiff is not recorded in the

revenue records of an agricultural holding, a suit for cancellation of a

Will at the instance of such an unrecorded person is maintainable before

the Civil Court ?

(2) Whether secondary evidence of a document (photostat copy) is

admissible in a case, where the original is available and the two are at

variance ?”

SUBMISSIONS ON BEHALF OF APPELLANTS

8.Sri Triveni Shankar, learned counsel for the defendant-

appellants vehemently argued that the suit was barred by Section 331

of the Act, 1950, inasmuch as on the date of its institution, name of

plaintiff-respondent was not recorded in the revenue records, whereas

the name of beneficiary, i.e. defendant no.1 (Siyawati), stood

recorded. He submits that the finding of both the courts below holding

the suit as maintainable is incorrect, inasmuch bequeath by a

bhumidhar is provided under Section 169 of the Act, 1950 and as per

sub-section (3) of Section 169, if the Will is in writing and attested by

two persons, the same is valid and any person who otherwise claims

himself as bhumidhar, would have to seek a declaration under Section

229-B of the Act, 1950 and, therefore, it is the Court described in

Second Schedule of the Act which would have jurisdiction to entertain

such a claim rendering the suit as barred by Section 331. He,

therefore, submits that first substantial question of law should be

answered in favour of the appellants and the impugned judgments and

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decrees should be set aside. As regards question no.2, it is contended

that the plaintiff-respondent relied upon a family settlement of 1989

bringing on record its photostat copy, which was inadmissible in

evidence and, therefore, the suit was otherwise not liable to be

decreed and, hence, the second question may also be answered in

favour of the appellants. In support of his contention, learned counsel

has placed reliance upon following authorities:-

(i) Shri Ram and another Vs. 1

st

Additional District Judge:

AIR 2001 SC 1250;

(ii) Kamala Prasad Vs. Krishna Kant Pathak: 2007 (1)

AWC 1 (SC);

(iii) Dr. Ram Prakash Gupta Vs. District Judge: 2010 (110)

RD 613;

(iv) Mohan Lal Vs. Sri Ram and another: 2016 (3) AWC

2696;

(v) Ishwaragouda and others Vs. Mallikarjun Gowda and

others: 20009 (1) AWC 1 (SC).

9.During the course of arguments, certified copy of a document

paper No.37-Ka was placed before the Court and it was contended

that it is the document dated 17.01.1989 that was termed as family

settlement but it did not contain mention of Gata No.1007 about

which the disputed Will had been executed, rather it contains

description of other gatas and, even otherwise, the document being a

photostat copy, it could not be relied upon. When the Court perused

the original record of proceedings, it found that in the record of the

trial court, original family settlement was indexed as paper No.37-Ka,

however, it was not found on record but there was a photostat copy of

the same document as paper No.38-Ga. What was placed before the

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Court was a certified copy of paper No.37-Ka, which was issued from

Executing Court dealing with Execution Case No.11 of 2011. As per

General Rules (Civil), no certified copy of a photostat copy can be

issued by the office of the civil court. It, therefore, appears that paper

No.37-Ka, in fact, was an original document forming part of the

record of trial court but it is quite surprising as to how its certified

copy was issued by the Executing Court. Though, it is true that the

decree is executed by the court of first instance itself, this Court fails

to understand as to how the original Paper No.37-Ka was taken out

from the original record so as to form part of the record of execution

proceedings which are said to be going on, whereas original record is

with this Court. Probably, some skeleton file is being maintained by

the Executing Court about which there is no illegality or irregularity.

It is also permissible that any party to the proceedings can take back

any original document from the record of the proceedings by moving

application under the relevant Rules and there may also be a

possibility that original Paper No.37-Ka, indexed on the file of the

trial court, was taken away by the respondent. However, this Court

does not want to indulge itself in the inquiry as to how original Paper

No.37-Ka forms part of the record of execution proceedings and it

proceeds to decide the matter in the light of questions framed by this

Court.

SUBMISSIONS ON BEHALF OF RESPONDENT

10.The contention of Sri K.K. Arora is that at no point of time the

bar of Section 331 was specifically pressed by the defendants,

although a vague plea was taken in the written statement but the trial

court’s judgment itself shows that the defendants did not press the

alleged bar covered by issue No.4 on which the trial court recorded

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specific finding that the defendants had not produced any such

evidence on the basis whereof it could be said that the civil court had

no jurisdiction to try and decide the suit. He submits that in view of

Section 331 (1-A), no such plea can be permitted to be raised before

the second appellate court unless it was pressed before the court of

first instance at the earliest possible opportunity. As regards

maintainability of the suit before the civil court, it is vehemently

argued that only civil court has power to cancel a Will and it is not a

case where the plaintiff was claiming declaration of his bhumidhari

rights in terms of Section 229-B but a case where a void document,

i.e. the Will, was existing to the detriment of the right and interest of

the plaintiff and since the revenue court has no jurisdiction to cancel

an instrument, the suit was very much maintainable before the court.

In support of his submission, Sri Arora places relied upon following

judgments:-

(i) Ram Padarath and others Vs. Second Additional

District Judge, Sultanpur: 1989 RD 21 (FB);

(ii) Chandrika Vs. Shivnath and others: 2016 (5) AWC

4874.

11.Shri Arora further submits that since both the courts below have

discarded the family settlement for one reason or the other, he is not

pressing his claim on that basis and, therefore, for deciding the instant

appeal, the document dated 17.01.1989 may be kept aside and ignored

and that he would stick to his claim for cancellation of Will and

injunction on the basis of findings recorded by both the courts below

in his favour. In view of the said submission of Sri Arora, question

no.2 as regards admissibility of copy of family settlement becomes

redundant and it is answered in the manner that decision in the instant

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appeal would not be dependent upon admissibility or inadmissibility

of alleged family settlement dated 17.01.1989.

12.The moot question on which the instant appeal has been argued

revolves around bar of Section 331 of the Act, 1950 and, therefore, the

Court deals with the submissions of both the sides in the light of first

question framed in the admission order.

ANALYSIS OF RIVAL CONTENTIONS

13.On perusal of original record, it is found that Will was executed

on 20.03.1985 and was registered on 08.04.1985. Copy of Khatauni

relating to 1393-F to 1398-F is on record as paper No.11-Ka. It

contains description of various gatas, viz, 873, 874, 890, 1007, 1009,

1122 and 1204. The Khatauni reveals that pursuant to an order dated

25.03.1989 passed by Additional Tehsildar concerned, after expunging

the name of testator Harswaroop, name of beneficiary Siyawati

(defendant no.1) was entered on the basis of Will. Copy of this

Khatauni was issued on 13.05.1989 and the suit in question was

instituted on 18.05.1989, i.e. immediately after five days of issuance

of copy of Khatauni. The name of beneficiary was, for the first time,

recorded just two months prior to institution of suit, although the Will

was executed four years prior in point of time.

14.Having heard learned counsel for the parties, this Court

proceeds to elaborately deal with the question as regards

maintainability of a suit for cancellation of Will with consequential/

ancillary relief of injunction in respect of an agricultural land.

15.The controversy regarding the jurisdiction of Civil Court and

Revenue Court in entertaining a suit regarding agricultural land and

also entertainability of the suit seeking cancellation of void

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instruments and documents has engaged attention of several benches

of this Court over decades. Suits for cancellation of a sale-deed or

other instruments and documents are essentially suits of civil nature.

As per section 9 of C.P.C., every suit of civil nature is cognizable by a

civil court except its cognizance is expressly or impliedly barred. In

Abdul Waheed Khan Vs. Bhawani and others, 1968 RD 79: AIR

1966 SC 1718 settled principle was stated that it is for the party who

seeks to oust the jurisdiction of civil court to establish his contention

and that a statute ousting the jurisdiction of a civil court must be

strictly construed.

16.Section 31 of the Specific Relief Act, 1963 makes specific

provision for cancellation of void as well as voidable instruments.

Suits for cancellation of such documents being of civil nature are

cognizable by a civil court and even otherwise suits claiming relief

provided under Specific Relief Act are entertainable only by a civil

court and no revenue court or any other court can entertain such a suit

including for cancellation of an instrument or document. Section 31 of

the Specific Relief Act reads as under:

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 if 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 bas 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 facts of its

cancellation.”

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17.Thus one, who has reasonable apprehension that any

instrument, if left outstanding, may cause him serious injury, can

approach a competent court of law to get it cancelled. Sub-section (2)

of Section 31 casts a mandatory duty upon the court passing the

decree to send a copy of the same to the registering officer, who is

enjoined by law to make a note on the copy of such document

regarding the order of its cancellation and, after such an endorsement

is made, the document becomes legally ineffective and no benefit of

the same can be derived by any one. If a certified copy of such a

document is issued to anyone, it would obviously contain the note

regarding its cancellation by a court of law.

18.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 their

cancellation. But a void document is not required to be cancelled

necessarily. Its legal effect can be put to an end 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 can be dislodged. On the finding that a particular

instrument or document was void because of any reason, it will be of

no legal consequence and binding on any one without even its

cancellation. But existence of such a document or instrument for a

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substantial period may cause injury to the person whose rights are

affected by it and existence of such instrument may create

complications giving rise to unnecessary litigations. But for those who

are aware of any judgment holding a particular document or

instrument to be void or are supposed to be aware of it, others can be

misled by its existence if it does not contain any endorsement of its

cancellation subsequent to a decision by any competent court of law.

19.The law relating to right, title and interest over the agricultural

land is contained in the U.P. Zamindari Abolition and Land Reforms

Act, 1950, which is a complete Code by itself and the Schedule-II to it

enumerates the suits etc., the cognizance of which is to be taken of by

the revenue courts specified therein. The said Act being special Act,

its provisions would prevail over the general law. The jurisdiction of

Civil Court is ousted if the relief can be granted by the special court

conferred with jurisdiction to grant such reliefs. In Section 331 of the

Act which specifically ousts the jurisdiction of other courts in respect

of all suits, applications etc., enumerated in Schedule II, the main

emphasis is on the words cause of action and any relief. The said

section reads as under:

Section 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 Code of Civil

Procedure, 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 u/s 143

in respect of any holding or part thereof; the provisions of

Schedule II in so far as they relate to suits, applications, or

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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 (1) an

objection that a court mentioned in column 4 of Schedule II, or,

as the case may be, a civil court, which bad no jurisdiction with

respect to the suits, application or proceedings, smelted

jurisdiction with respect thereto shall not be entertained by any

appellate of revisional court unless the objection was taken in the

court of first instance at the earliest possible opportunity and in

all eases where issues are settled, at or before such settlement,

and unless there has been consequent failure of justice.

20.Section 331 of the Act makes the phrase ''cause of action'' as

pivotal point for determining the jurisdiction of civil or revenue court.

The expression ''cause of action'' means every fact that would be

necessary for the plaintiff to prove in order to support his right of

judgment. 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 and substance

which is to be seen. The expression ''any relief'' used in Section 331 of

the Act is of too wide import and would not only mean the relief

claimed but would also include any relief arising out of the cause of

action which led the plaintiff to invoke the jurisdiction of a court of

law. The word 'relief’ is not part of cause of action nor the same is

related to the defence set up in the case. The relief is a remedy which

the court grants from the facts asserted and proved in an action.

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21.A Full Bench of this Court, in the case of Ram Awalamb v.

Jata Shanker 1968 AWR 731, observed that "where in a suit, from a

perusal only of the relief claimed, one or more of them are ostensibly

cognizable only by civil court and at least one relief is cognizable by

the revenue court, further questions which arise are whether all the

reliefs are based on the same cause of action and if so, (a) whether the

main relief asked for on the basis of the cause of action is such as can

be granted only by a revenue court or (b) whether any real or

substantial relief, though it may not be identical with that claimed by

the plaintiff could be granted by the revenue court. There can be no

doubt that in all cases contemplated under (a) and (b) above, the

jurisdiction shall vest in the revenue court and not in the civil court.”

22.Section 331 of the Act, 1950, if read without Explanation, does

not create any difficulty. Difficulty regarding jurisdiction arises when

Explanation, which is an integral part of the section, is interpreted and

applied to the facts of a particular case. It is well settled that the object

of Explanation to any statutory provision is to understand the Act in

the light of the Explanation which ordinarily does not enlarge scope of

the original section which it explains, but only makes its meaning

clear beyond dispute. The Explanation makes the things still more

explicit and exists primarily removing doubts and dispute which may

crop up in its absence. Section 331 of the Act along with Explanation

cannot be read so as to oust the jurisdiction of civil court if the

primary relief on the same cause of action can be granted by the civil

court notwithstanding the fact that consequential relief or ancillary

relief flowing out of the main relief, the grant of which also becomes

necessary, can be granted by revenue court alone.

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23.In the case of a void document said to have been executed by a

plaintiff during his disability or by some one impersonating him or

said to have been executed by his predecessor whom he succeeds, the

relief of cancellation of the document is more appropriate relief for

clearing the deck of title and burying deep any dispute or controversy

on its basis in present or which may take place in future. The

document, after its cancellation, would bear such an endorsement in

Sub-Registrar’s register and would be the basis for correction of any

paper and revenue record. Section 31 of the Specific Relief Act itself

prescribes as to who can seek relief of cancellation. A third person

cannot file a suit for cancellation of a void document.

24.The controversy in issue was extensively dealt with by a Three

Judges Full Bench of this Court in Ram Padarath (supra). The said

judgment has been approved by Supreme Court in Smt. Bismillah Vs.

Janeshwar Prasad: AIR 1990 SC 540. This Court in Chandrika

(supra), after placing reliance upon judgments in Ram Padarath

(supra) and Smt. Bismillah (supra), held that in view of Section 31

of the Act, 1963, a suit for cancellation of sale deed, void or voidable,

is a suit of civil nature and can be filed before the Civil Court that has

jurisdiction to try it under Section 9 CPC. 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.

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

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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.

RECONSIDERATION OF SHRI RAM (SUPRA) AND KAMLA

PRASAD (SUPRA) BY SUPREME COURT

25.This Court may gainfully refer to a somewhat recent decision of

the Apex Court in the case of Narendra Kumar Mittal and others

Vs. M/S Nupur Housing Development Pvt. Ltd. and another: 2019

(7) Supreme 157: 2019 (144) RD 785. The case before the Apex

Court had arisen out of a suit for cancellation of sale deed dated

15.06.2006 in respect of an agricultural land filed before the civil

court. A question arose before the Apex Court whether the decision of

the District Court and High Court holding the civil suit as

maintainable despite bar of Section 331 of the Act of 1950 was

correct. The Supreme Court, after discussing the judgments of Ram

Padarath (supra), Shri Ram (supra) and Kamla Prasad (supra),

held that the suit before the civil court was very much maintainable. It

distinguished the decisions of the Supreme Court in the case of Shri

Ram (supra) and Kamla Prasad (supra) in the following manner:-

“9. This Court in Shri Ram & Anr. v. Ist Addl. Distt.

Judge & Ors., (2001) 3 SCC 24 considered the

question relating to maintainability of a suit by a

recorded tenure holder in possession for cancellation

of the sale deed in favour of the respondents executed

by some imposters. After noticing the aforesaid

judgment of the Full Bench of Allahabad High Court,

this Court held that where 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,

it 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

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under cloud. He does not require declaration of his title

to the land. However, if the plaintiff is required to seek

a declaration of title, he has to approach the Revenue

Court.

11. 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.”

26.The Apex Court, while distinguishing the earlier decisions, was

of the considered opinion that once a sale deed is challenged, the

plaintiff need not be forced to seek a declaration of his title and,

hence, bar of Section 331 of the Act of 1950 would not be attracted.

Further, in view of the discussion made hereinabove, it can be safely

understood that Schedule-II contained in U.P. Z.A. & L.R. Act, 1950

does not contemplate any suit for cancellation of a written instrument

and the power vests only in a civil court.

27.As regards the judgments cited on behalf of the appellants, the

Apex Court in Shri Ram (supra) also placed reliance upon Ram

Padarath (supra) and its approval in Smt. Bismillah (supra).

However, it was observed that where a recorded tenure holder having

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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, he cannot be directed to file a suit for cancellation in

the revenue court as he does not require declaration of his title to the

land but 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. It was

observed that in that case 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 Kamla Prasad (supra), the

Supreme Court placed reliance upon Shri Ram (supra). The Apex

Court in, Narendra Kumar Mittal Shri Ram (supra) has already

distinguished both the said judgments holding civil suit maintainable.

28.Dr. Ram Prakash Gupta (supra) was a case where the suit

was instituted claiming a decree for declaration that a sale deed

executed in favour of the plaintiff was valid. Another relief seeking

declaration of title on the basis of a Will was also claimed. In that

background of facts it was held that the suit was barred by Section

331 of the Act of 1950 as declaration of title can be granted by the

revenue court. Mohan Lal (supra) was a case where a gift deed was

challenged by the plaintiff on the ground that executant had no right to

execute the same. The said plaintiff was not recorded tenure holder of

the disputed agricultural land and placing reliance upon judgment in

Shri Ram (supra), it was held that suit would lie before the revenue

court. Not only the facts of that case are distinguishable, inasmuch as

here the instrument, i.e. the Will, has been challenged on the ground

of fraud, the said judgment is prior in point of time when the Apex

Court re-considered the decisions in Ram Padarath (supra), Shri

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Ram (supra) and Kamla Prasad (supra) and held that suit for

cancellation of an instrument shall lie before the civil court and

Section 331 of the Act of 1950 would not create a bar against the suit.

29.Ishwaragouda (supra) was a case arising out of State of

Karnataka where certain rights were claimed under the provisions of

Karnataka Land Reforms Act and applications seeking declaration of

cultivation title were filed before the Land Tribunal. Various

proceedings were held inter-se parties, such as determination by Land

Tribunal, the writ petition before the High Court, demarcation

proceedings, an appeal before the Land Reforms Appellate Tribunal

and, thereafter, a suit for declaration of title and possession in respect

of the land before the civil court. In that background of facts, an issue

had arisen as to whether the jurisdiction of the civil court was ousted

in view of Section 133 of the Karnataka Land Reforms Act to decide

whether an individual is a tenant or the joint family is tenant. Under

such circumstances, after dealing with the provisions of Section 133,

the Supreme Court found that the suit was barred as declaration of

title was within the exclusive jurisdiction of the Land Tribunal. Not

only the facts of the said case but also nature of the proceedings as

well as provision of law under the concerned Reforms Act were

entirely different from the facts of the present case and statutory

provision applicable here in the State of U.P. Therefore, with due

respect, the said judgment also has no application in the present case

and, thus, appellants cannot get any help from it.

30.In order to test the appellants’ argument based upon non-

recorded tenure holder, in the instant case, status of defendant no.1

being a recorded tenure holder on the basis of the disputed Will has to

be analyzed. As noted above, the disputed Will was executed in the

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year 1985 and the defendant no.1, i.e. the beneficiary of the Will, just

immediately prior to institution of the suit in the year 1989, got her

name mutated in the revenue records. The challenge came on the 5

th

day of obtaining certified coy of the Khatauni Paper No.11-C. It was

not a case where since long prior to institution of the suit, the

beneficiary was enjoying actual and physical possession as a recorded

tenure holder in its true sense but was a case where the cause of action

for institution of suit arose in very close proximity of entry in the

revenue records on the basis of Will which was not in the knowledge

of the plaintiff-respondent prior to obtaining certified copy of the

Khatauni that contained reference of a mutation order of the Assistant

Tehsildar passed on the basis of Will. Whatelse, except seeking

cancellation of Will, could be done by the plaintiff under such

circumstance. In the opinion of the Court, the suit for declaration of

bhumidhari rights along with his real brother as a joint successor from

their late father was not the necessity, inasmuch as it was the Will and

consequential entry in the revenue records which was standing against

the plaintiff in enjoyment of uninterrupted possession as a co-

bhumidhar over the agricultural land. The plaintiff, therefore, was

well within his rights to seek cancellation of the Will on available

grounds, such as fraud, coercion or undue influence, etc.

31.As discussed above, unless the Will is cancelled by the civil

court and, in terms of sub-section (2) of Section 31 of the Specific

Relief Act, 1963, unless its intimation is sent to the Sub-Registrar

concerned, the Will would remain alive for all theoretical and

practical purposes causing injury to the person who would have

succeeded rights on the basis of natural succession from his

predecessor, here, late Harswaroop. Thus cancellation of the

registered Will is, beyond doubt, the main relief as cause of action for

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the suit was the existence of Will itself. Mutation order, on its basis,

directing recording of the name of the defendant therein is found to be

a consequential action based on Will. So long as a registered

instrument is not cancelled by civil court, revenue court will be bound

to respect it and will not able to ignore it, as held by Full Bench of this

Court in Ram Nath Vs. Munna, 1976 RD 220 (FB).

32.It is also emphasized here that there is no provision under the

Act of 1950 empowering a revenue court to cancel an instrument.

Even Section 229-B does not contemplate any such provision

whereunder an instrument of transfer or conferring testamentary

succession can be expressly or impliedly cancelled or that its

intimation can be sent to the Sub-Registrar concerned for making an

entry in the concerned records so that certified copy of such

instrument, as and when issued, may contain remark of its

cancellation. The Court is of the considered opinion that even if, while

deciding a suit for declaration under Section 229-B in a given case,

the revenue court comes to a conclusion that any instrument relied

upon by the defendants is void or voidable and records a finding to

that effect, the operative portion of the judgment of the revenue court

would simply confer a declaration of ownership upon the concerned

plaintiff, either exclusively or along with any other person but finding

to that effect would not be sufficient to statutorily compel the Sub-

Registrar concerned to make an entry of cancellation of the instrument

in the concerned records.

33.In so far as the findings of courts below in the instant case that

the Will was a result of fraud and undue influence etc, no argument

was advanced by the appellants. Even otherwise, the Court finds that

the analysis of oral and documentary evidence testing the Will of 1985

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on the touchstone as to whether it was a result of fraud and whether it

was surrounded by suspicious circumstances, as done by both the

courts below, is covered by pure findings of fact based upon evidence

and, hence, the same cannot be upset in second appellate jurisdiction

under Section 100 CPC. In so far as the argument of appellant based

upon sub-section (3) of Section 169 of Act of 1950, the Court finds

that the said provision speaks of execution of Will and has no concern

with the proceedings seeking cancellation thereof. Hence, the

argument advanced on that line is of no significance.

34.As regards contention of Sri Arora that the plea under Section

331 having not been substantially raised before the courts below and,

hence, it cannot be allowed to be raised here, the same is not

acceptable in view of clear statement contained in the written

statement regarding bar of the said provision and its discussion by

both the courts below. However, in view of the above discussion, the

said bar is not attracted in the facts and circumstances of the present

case and it is held that both the courts below have rightly found civil

suit to be maintainable.

35.Before concluding this judgment, it is apt to mention that

learned counsel for the appellants filed a very brief written synopsis

alongwith which the case laws cited by him were annexed and in the

third point of the synopsis, it is mentioned that the courts below have

wrongly accepted the case of the plaintiff as full owner of Khasra

No.1007, because in case natural succession follows, the plaintiff and

defendant being two sons of late Harswaroop, would become co-

owners. Here what I notice from the record is that the trial court

decreed the suit cancelling the Will dated 20.03.1985 (registered on

08.04.1985) and granting a decree for permanent prohibitory

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injunction restraining the defendants from causing interference in

plaintiff’s possession over the land covered by Khasra No.1007. Issue

No.2 framed as to whether the plaintiff-respondent is co-owner on the

basis of succession, was decided in favour of the plaintiff-respondent

holding him as co-bhumidhar in joint possession along with

defendants as a consequence of cancellation of the aforesaid Will.

Though, in the operative portion, it is mentioned that the defendants

were restrained from interfering in the plaintiff’s possession, in view

of the finding on issue No.2, the possession of the plaintiff-respondent

is certainly in the capacity of a co-bhumidhar based upon natural

succession from his late father Harswaroop and not as the sole

bhumidhar. Therefore, contrary contention raised by the appellants in

this regard too is not acceptable.

36.For all the aforesaid reasons, the first question of law is

answered in favour of the plaintiff-respondent and against the

defendant-appellants and it is held that the suit for cancellation of the

Will was very much maintainable before the civil court. Second

question has already been held to be redundant in view of the

discussion made above.

37. Consequently, the instant second appeal fails and is, accordingly,

dismissed.

Order Date :- 21.8.2024

AKShukla/-

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