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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.