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CASE NO.: Appeal (civil)  3659 of 2003

PETITIONER: KAMLA PRASAD & ORS

RESPONDENT: SRI KRISHNA KANT PATHAK & ORS

DATE OF JUDGMENT: 09/02/2007

BENCH: C.K. THAKKER & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

C.K. THAKKER, J.

       This appeal is filed by the appellant-original  defendant Nos. 1 to 6 against an order dated August 10,  2001, passed by the High Court of Judicature at  Allahabad in Civil Miscellaneous Writ Petition No. 386 of  1990.         One Kishna Kant Pathak-respondent No.1 herein,  filed a suit against the appellant and respondent Nos. 2  to 12 in the Court of Civil Judge, Jaunpur being Suit No.  110 of 1984. It was averred in the suit that an agreement  to sell dated June 18, 1981 entered into between the  plaintiff and defendant Nos. 1 to 6, sale deed dated  November 7, 1981 executed in their favour and another  sale deed, dated December 16, 1981 executed by the  plaintiff in favour of defendant Nos. 2 & 3 were illegal,  without authority of law and null and void. A prayer was,  therefore, made to cancel those documents.  It was  stated by the plaintiff in the plaint that he and defendant  Nos.10 to 12 were co-bhoomidars of the disputed land  and as such defendant Nos.10 to 12 had also right in the  disputed property. The names of defendant Nos.10 to 12,  however, were not entered in the Revenue Record and  only the name of plaintiff was recorded. But in view of  shares of defendant Nos.10 to 12, plaintiff alone had no  right, title or interest to sell the property.         It was also alleged in the plaint by the plaintiff that  he had developed bad habits and defendant Nos.1 to 9  took undue advantage of the said situation. The plaintiff  was under intoxication and the documents got executed  by contesting defendants. The plaintiff did not remember  the execution of the sale deed and its presentation before  the Sub-Registrar, Kerakat. He did not execute the sale  deeds with his freewill and on his own accord. Nothing  was paid to him. He was given tablets by defendant Nos.  1 to 9 and he became unconscious. At the time of  execution of sale deed, the plaintiff was unconscious and  was unable to understand judgment of his act.  Defendant Nos. 1 to 9 became vendees on the basis of  sale deeds but they were liable to be cancelled in view of  the circumstances under which the documents were  executed by the plaintiff.         The contesting defendants raised several  contentions including the contention as to the  jurisdiction of Civil Court to entertain, deal with and  decide the suit. It was contended that in respect of  cancellation of deeds as regards agricultural land, the

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suit was not entertainable by a Civil Court as only Court  which had jurisdiction was Revenue Court under the  provisions of the U.P. Zamindari Abolition and Land  Reforms Act, 1950 (hereinafter referred to as "the Act").  It was prayed by the defendants to treat the issue as to  jurisdiction of the Court as preliminary issue and decide  it.         The Trial Court, after considering the contentions of  the parties, held that the suit was cognizable by the Civil  Court so far as abadi land was concerned. It had,  however, no jurisdiction in respect of agricultural land  and to that extent, the preliminary objection raised by  the contesting defendants was well-founded and was  upheld.         The aggrieved plaintiff preferred an appeal being  Civil Miscellaneous Appeal No. 242 of 1986. The appeal  came up for hearing before the III Additional District  Judge, Jaunpur who confirmed the order passed by the  Trial Court and dismissed the appeal. Dealing with  submission of the parties, the Appellate Court observed  that the Trial Court was right in holding that it had no  jurisdiction to decide the question as to validity of sale- deeds in respect of agricultural land, particularly in view  of the case put forward by the plaintiff in the plaint that  over and above the plaintiff, defendant Nos.10 to 12 had  also share therein. Such a suit, according to the  Appellate Court could be entertained only by Revenue  Court. According to the Appellate Court, how much  share belongs to plaintiff in the disputed land was a  question which could be determined only by Revenue  Court. He was, therefore, obliged to file suit for  declaration in Revenue Court under Section 229B of the  Act.         The Appellate Court also observed that the record  showed that mutation on the basis of the impugned sale  deed had been effected by the revenue authority, name  of the plaintiff had been deleted from Revenue Records  and the names of contesting defendants had already  been entered in his place. Observing that "title follows  possession" and it would be presumed that plaintiff was  not in possession over the disputed land, the Appellate  Court observed that the question of possession of  agricultural land could be decided only by Revenue  Court and Civil Court had no jurisdiction to give any  finding on possession over the agricultural land.  Accordingly, the appeal was dismissed.         The plaintiff challenged the said order by filing a  writ petition in the High Court which was allowed by  holding that since the prayer of the plaintiff in the plaint  was for cancellation of sale deed and declaration that  they were void, only Civil Court had jurisdiction which  could decide such question.  The suit was, accordingly,  held maintainable before Civil Court and the orders  passed by both the Courts were set aside.         The aggrieved defendants have approached this  Court. We have heard learned counsel for the parties.         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

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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.         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.         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.\027(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.

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

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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.  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.   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".

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.  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. For the foregoing reasons, the appeal deserves to be  allowed and is accordingly allowed. The order passed by  the High Court is set aside and that of the Courts below  is restored. In the facts and circumstances of the case,  however, there shall be no order as to costs.