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CASE NO.:

Appeal (civil) 4596 of 1997

PETITIONER:

SHRI RAM AND ANOTHER

Vs.

RESPONDENT:

IST ADDL. DISTT. JUDGE & ORS.

DATE OF JUDGMENT: 07/02/2001

BENCH:

S.N.Variava, V.N.Khare

JUDGMENT:

V. N. KHARE, J.

L.....I.........T.......T.......T.......T.......T.......T..J

The question for decision in this appeal is whether a

suit laid in the civil court by a recorded tenure holder in

possession for cancellation of the sale deed in favour of

the respondents executed by some imposters in respect of the

land is barred under Section 331 and Schedule II of the U.P.

Zamindari Abolition and Land Reforms Act, 1950 (hereinafter

referred to as the the Act). The aforesaid question has

arisen out of a suit brought by the plaintiff-appellants for

cancellation of sale deed alleged to be executed in favour

of respondent Nos.3 and 4. The case of the

plaintiff-appellants is that one Smt. Vidyawati Devi, who

was the owner and Bhumidar of the land in dispute,

transferred the said plot of land by a registered sale deed

dated 12th July, 1984 in their favour. Subsequently, the

vendor Smt. Vidyawati Devi delivered the possession of the

said plot of the land to the appellants and accordingly

their names got mutated in the revenue records. The further

case of the appellants is that, subsequently,

defendant-respondent Nos. 3 & 4 forged an agreement for

sale of the said plot of land in their favour. It is also

the case of the appellants that on 24th July, 1984,

respondent Nos. 3 & 4 got the sale deed executed in their

favour by projecting some imposter as Smt Vidyawati Devi for

an alleged consideration of Rs. 60,000/- and on the

strength of the said forged sale deed, defendant-respondent

Nos. 3 & 4 attempted to interfere with the possession of

the appellants over the said plot of land. It is under such

circumstances the appellants brought a suit in civil court

for cancellation of the sale deed dated 24th July, 1984 as

well as for grant of injunction. Before the trial court,

defendant-respondents took up the plea that the suit filed

by the appellant is barred by Section 331 and Schedule II of

the Act and the remedy available to the appellants is to

file a suit in the revenue court. This plea of the

defendant-respondents was treated as a preliminary issue and

was decided in favour of the appellants. The respondents

thereafter preferred an appeal against the order of the

trial court which was dismissed. However, the writ petition

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filed by the respondents against the appellate order was

allowed by the High Court and the orders passed by the trial

court as well as the appellate court were set aside. The

appellants thereafter filed a review petition which was

dismissed by an order dated 4th October 1996. The High

Court, while allowing the writ petition was of the view that

since Smt. Vidyawati Devi the original owner (vendor) has

not filed any suit for cancellation of the sale deed dated

24th July, 1984 in the civil court, the suit filed by the

appellants was barred by Section 331 and Schedule II of the

Act and the remedy available to the appellants is to file

suit in the Revenue Court. The validity of the said order

and judgment of the High Court is impugned in the present

appeal.

Learned counsel appearing for the appellants urged

that the view taken by the High Court that since vendor Smt.

Vidyawati Devi has not filed any suit for cancellation in

the civil court and, therefore, the suit filed by the

appellants was not maintainable in civil court is erroneous

and based on no evidence. He further argued that there was

ample evidence on record to show that Smt. Vidyawati Devi

has also filed a suit in civil court praying for

cancellation of the sale deed dated 24th July, 1984. We

have looked into the record and find that Smt. Vidyawati

Devi has also filed a suit in civil court for cancellation

of the alleged sale deed dated 24th July, 1984. This is not

disputed by learned counsel for the respondents. We,

therefore, find that the very premise on which the writ

petition was allowed is based on no evidence.

Learned counsel appearing for the respondents then

urged that assuming that Smt. Vidyawati Devi did file a

suit for cancellation of the sale deed dated 24th July, 1984

in the civil court still the suit filed by the appellants in

the civil court was not maintainable as the same is barred

under section 331 of the Act. In other words argument is

that as per allegation in the plaint if the document is void

there is nothing to cancel or set aside. It is simply to be

ignored. The document is not voidable and, therefore, the

civil court has no jurisdiction to entertain and decide the

suit and it is only Revenue court which has jurisdiction to

decide the suit for declaration. Learned counsel strongly

relied upon the decision in Gorakh Nath Dube vs. Hari

Narain Singh and others (1973) 2 SCC 535, in support of his

argument.

In the present case what we find is that vendor Smt.

Vidyawati Devi admitted that she had executed a registered

sale deed in favour of the appellants on 12th July, 1984.

She also admitted that she delivered the possession of the

said land to the appellants and the appellants are in

possession over the said plot of land. It is also on record

that the names of the appellants have been ordered to be

recorded as a tenure holder in the revenue record. The

aforesaid facts show that the appellants are the recorded

tenure holder in possession of the plot in dispute in

pursuance of the sale deed dated 12th July, 1984. The

question that now arises for consideration is whether a

recorded tenure holder having prima facie title in his

favour and in possession is required to file a suit in the

revenue court or the civil court has jurisdiction to

entertain and decide the suit seeking relief for

cancellation of a void document. In Ram Padarath vs.

Second ADJ, Sultanpur (1989) RD p.21, a Full Bench of

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Allahabad High Court considered this aspect of the matter

and held thus:

We are of the view that the case of Indra Dev vs.

Smt. Ram Pyari, has been correctly decided and the said

decision requires no consideration, while the Dvision bench

case, Dr. Ayodhya Prasad vs. Gangotri Prasad is regarding

the jurisdiction of consolidation authorities, but so far as

it holds that suit in respect of void document will lie in

the revenue court it does not lay down a good law. Suit or

action for cancellation of void document will generally lie

in the civil court and a party cannot be deprived of his

right getting this relief permissible under law except when

a declaration of right or status and a tenure holder is

necessarily needed in which event relief for cancellation

will be surpluses and redundant. A recorded tenure holder

having prima facie title in his favour can hardly be

directed to approach the revenue court in respect of seeking

relief for cancellation of a void document which made him to

approach the court of law and in such case he can also claim

ancillary relief even though the same can be granted by the

revenue court. (emphasis supplied)

The correctness of the decision in the above case has

not been challenged before us. In fact, the said decision

was approved in Smt. Bismillah vs. Janeshwar Prasad and

others (1990) 1 SCC 207. In Gorakh Nath Dube (supra) which

is strongly relied upon by learned counsel for the

respondents, it was held thus.

.but, where there is a document the legal effect of

which can only be taken away by setting it aside or its

cancellation, it could be urged that the consolidation

authorities have no power to cancel the deed, and,

therefore, it must be held to be binding on them so long as

it is not cancelled by a court having the power to cancel

it..

The said decision is distinguishable and is of no help

to the case of the respondents. The observation quoted

above has to be understood in the context of the fact of the

case. In the said case, the plaintiff had filed a suit for

cancellation of the sale deed to the extent of half share

claimed by the plaintiff and also an award of possession of

the plaintiffs share. In the suit, it was alleged that the

vendor had no title to the extent of half share in the land

and, therefore, the sale deed to that extent is void. In

the said case there was no prima facie title in favour of

plaintiff and his title to the land and delivery of

possession was required to be adjudicated.

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

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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.

For the aforesaid reasons, we are of the opinion that

the view taken by the High Court in allowing the writ

petition suffers from serious infirmity. The appeal,

therefore, deserves to be allowed. Consequently, the

judgment under appeal is set aside. The trial court is

directed to proceed with the suit on merits. There shall be

no order as to costs.