JUDGMENT Rajes Kumar, J.
1. The present First Appeal From Order has been filed against the order dated 16.1.1982 by the 1st Addl. District Judge, Jaunpur in Appeal No. 44 of 1979 arising out of Original Suit No. 52 of 1979.
2. The brief facts of the case are that the plaintiff-respondent Smt. Esraji w/o Devi Charan filed a Suit No. 52 of 1979 for declaration and cancellation of a sale deed dated 31.8.1978 as void on the ground that she is a bhumidhar of land in dispute and sale deed was executed fraudulently by someone else in favour of defendant-appellant. It has been alleged that in the sale-deed, neither there is any thumb impression nor signature of plaintiff and inasmuch as the plaintiff had not gone to the office of Sub-Registrar and had no knowledge about the execution of such sale deed. Defendant filed objection, in which, it had been said that the suit was not maintainable for want of jurisdiction, inasmuch as, it was cognizable by the revenue court and not by civil court and barred by Section 331 of U. P. Zamindari Abolition and Land Reforms Act. Munsif, Jaunpur vide its order dated 5.11.1979 held that it is true that if in place of plaintiff, someone else has executed sale deed, it is definitely void and nullity. However, he held that since the property in dispute was agricultural, hence, the case could be filed in revenue court for which, he relied upon the decision of this Court in the case of Ram Roop v. Smt. Boondiya. 1979 AWC 44 and in the case of Sheo Pal v. Smt. Lakhpatia, 1979 AWC 524. After holding that the suit was not maintainable in the civil court but could be filed in a revenue court he directed to return the plaint for presentation before the proper court.
3. Aggrieved by the order of learned Munsif, an appeal was filed by the plaintiff-respondent before the Addl. District Judge, Jaunpur, which was allowed vide order dated 16.1.1982. Learned Addl. District Judge held that the view of learned Munsif, was not correct and the civil court had jurisdiction to decide the case. This appeal was accordingly allowed and the order of Munsif was set aside and the matter was sent back to the Court of Munsif to decide the suit after hearing both the parties. Being aggrieved by the order of learned Addl. District Judge, the present appeal has been filed.
4. Heard learned counsel for the appellant.
5. List has been revised but no one appeared on behalf of respondent.
6. The short question involved in the present appeal is whether the suit for declaration claiming a sale deed void and nullity being fraudulently executed by someone else than by the plaintiff-respondent being actual owner is cognizable by civil court or by revenue court. Property in dispute was an agricultural land.
7. In the case of Ram Roop and Ors. v. Smt. Budhiya, 1979 ALJ 800, a registered sale deed dated 6.9.1963 purported to have been executed, by Smt. Budhiya in favour of appellant in respect of the some agricultural plots, came into existence. In the year, 1964 Smt. Budhiya filed a suit, that she was an old, illiterate and blind woman ; that she had not executed the said sale deed and the sale deed was the result of misrepresentation and fraud played upon her by the appellants. She was actually taken to Ghazipur for getting Ration Card, in that account, her thumb impression was taken on the blank papers for the purposes of execution of sale-deed. She further claimed for possession of the land in the case which was found out of possession. This Court held as follows :
"9. In this way the position is that if the document is void in law, the revenue court is the proper court for seeking redress, but if a document is voidable, the civil court can take cognizance of the case for avoiding it.
11. The above allegations clearly show two things :
(1) Smt. Budhiya thumb marked on some blank papers for obtaining ration card. She did not thumb mark on the papers which were meant for writing out sale deed. Thus, he challenges the very character of the document. According to her it was a forgery committed by the father of the defendants ; and (2) She had no necessity to take any loan. She was given no consideration of the sale deed. These allegations clearly indicate that according to the plaintiff the sale deed was in fact a void document.
No doubt, there are allegations to the effect that she is an old, blind and illiterate woman but these allegations do not take away the effect of the entire allegations of the plaint which clearly show that according to her it was a forged and fictitious document without consideration. Therefore, in order to obtain possession or to obtain declaration of her statuts as sirdar she could easily sue in the revenue court.
The lower appellate court was not justified that the suit was essentially for adjudging the sale deed void on the ground of fraud and misrepresentation."
8. In the case of Khilari and Ors. v. IIIrd Additional District Judge, Banda and Ors., 1983 ALJ 369, a similar question came up for consideration. In that case, one Smt. Ratania filed suit. In the plaint, it was alleged that her husband and brother-in-law had no power of disposal of property. Their power of disposal had been cut down by verdict of village panchayat. She further averred that the sale deed was sham transaction and thus the relief sought was cancellation of sale deed after adjudging void. The learned single Judge relied upon the judgment of this Court held as follows :
"34. I have already referred to the fact that the present suit was instituted by Smt. Ratania who was no party to the impugned sale deed, the vendors were impleaded through a subsequent amendment. She alleged that the vendors had no power to execute the sale deed. Their power of disposal had been cut down by verdict of village panchayat. Her father-in-law had also imposed a restraint on the vendors' power of disposal and had conferred rights on her and under such circumstances, the execution of the sale deed by the vendors was simply void and a sham transaction.
35. It is significant to note that under such circumstances when the character of transaction was itself assailed it was difficult to hold that the said sale deed was voidable and not void. The main relief which could have been sought by plaintiffs, was the recovery of possession over the holding ; that relief was within the exclusive competence of revenue court. Without possession, mere declaration or cancellation of sale deed could have been illusory and not an efficacious relief. As the plaintiffs failed in the revenue court so they invoked the jurisdiction of the civil court by circumvention of averments and in such circumstances, it has to be held that the findings recorded by the courts below on issue No. 7 were erroneous. The point is well covered by Vijai Singh v. 2nd Additional District and Sessions Judge, Bulandshahr, 1982 All LJ 725. It appears that in that case Ismail Khan respondent filed a suit, being Suit No. 46 of 1980, for cancellation of a sale deed dated 7.7.1979 purporting to have been executed by him in favour of Vijai Singh petitioner. It was in respect of an agricultural plot No. 281, the area of which was 1 bigha, 18 biswas, 13 biswansis situated in village Bawanpur, Pargana Ahar, district Bulandshahr."
9. In the case of Kamla Singh v. IIIrd Additional District Judge, Gorakhpur and Anr. 1984 AWC 984, this Court held as follows :
"8. After hearing the learned counsel for the petitioner, I am of the view that on the allegations made in the plaints of the two suits, the documents will dated 8.7.1969 and the gift deed dated 31.8.1971 whereby the basic allegations made for cancellation of these documents were that the executants of these deeds had no right, title or interest to convey any title. On these allegations, it would appear that the documents were void and the suits in respect of them had to be filed in the revenue court."
10. In the case of Azahar Hasan and Ors. v. District Judge, Saharanpur and Ors., 1998 (3) AWC 2024 (SC) : JT 1998 (4) SC 313. Hon'ble Supreme Court held as follows :
"2. On reading the plaint and on understanding the controversy, we get to the view that whether those persons who succeeded the recorded tenants, were rightly recorded as tenants or not, was a question determinable by the revenue authorities. Besides that, the sale deed which has been questioned on the basis of fraud, was not executed by the plaintiffs but by others, and they were not parties thereto, so as to allege the incidence of fraud. In these circumstances, we are of the view that the plaint was rightly returned to the plaintiffs. They are even now at liberty to approach the Revenue authorities and claim deduction of time spent in these proceedings, in computing limitation for the purpose of the suit. In this view of the matter, the appeal fails and is hereby dismissed. No costs."
11. In the present case, suit was filed for declaration claiming a sale deed void and nullity being fraudulently executed by some one else than by the plaintiff being actual owner.
12. In view of the above law laid down by this Court on the facts of the present case, the view of Munsif that the suit was not maintainable in the civil court and could be filed in a revenue court was correct and the view of appellate court setting aside the order of Munsif and holding that the suit lies in civil court and directing the Munsif to decide the suit was erroneous.
13. In the result, the appeal succeeds. The order dated 16.1.1982, passed by 1st Addl. District Judge, Jaunpur in Appeal No. 44 of 1979 arising out of Original Suit No. 52 of 1979 is set aside.