1. Heard learned counsel for the parties on the point of admission of second of appeal and perused the records.
2. The admitted case of the parties has been in brief was that Jagarnath had two sons Hari Ram and Lal Chand, who have partitioned the property after death of Jagarnath. Hari Ram had two wives. From one wife Rama Devi he had one son Banshidhar (plaintiff) and from another wife Teja Devi, he had two sons namely Sukhlal (defendant no.-2) and Khushihal (defendant no. 5). Defendant no.-2 Geeta is wife of Sukhlal. Defendant no.-1 Sheela is wife of defendant no. 5 Khushihal. Admittedly the disputed property is of agricultural in nature for which the original Suit no.-307/2011 was instituted on 28.4.2011.
3. The plaint case in brief was that disputed agricultural ancestral property was although in the name of plaintiff's father Hari Ram (defendant no.-3), but he had no right of ownership on whole of the property. Plaintiff being co-parcener was also the co-owner of this property. But Hari Ram had executed registered gift-deed (deed of donation) of whole of the property in favour of his daughter-in-laws (defendant no. 1 & 2) on 4.2.2011. Since he had no right to transfer whole of the disputed property, therefore the plaintiff had filed suit for cancellation of said gift-deed on ground that defendant no.-3 was disabled person who could not understand things, deed in question was not read and explained to him, said deed was without consideration and unauthorised; therefore it should be cancelled.
4. In written-statement defendants had pleaded that disputed property is not ancestral or joint Hindu family property. Plaintiff had been living separately for 30 years and he has separate house and separate cultivation. Defendant no.-3 Hari Ram is its sole owner and Bhumidhar. When defendant no.-3 had executed gift-deed in favour of defendants no. 4 and 5, and application for mutation was moved by them in revenue court, then plaintiff had raised objection on 22.3.2011 in mutation proceedings. Thereafter he filed original suit on 28.4.2011. Civil Court has no jurisdiction to decide the dispute involved in this matter relating to ownership of agricultural property. Therefore, suit is liable to be dismissed.
5. In Original Suit, trial court had framed several issues including issue no.-7 to the effect that whether suit is barred by section 331 of UP ZA & LR Act ? After affording opportunity of hearing to the parties, Civil Judge (J.D.), Varanasi had decided this preliminary issue no.-7 in affirmative and in favour of defendants by its order dated 25.11.2014, in which it was held that Civil Court has no jurisdiction to decide the suit.
6. Aggrieved by the order dated 25.11.2014 of the trial court, Civil Appeal No. 68/2015 was preferred by plaintiff. This appeal was heard and dismissed by the judgment dated 13.1.2016 of Additional District Judge, Court No.-14, Varanasi. Aggrieved by the judgment of lower court as well as first appellate court, the plaintiff of the original suit had preferred the present second appeal.
7. Learned counsel for the appellant contended that the plaintiff-appellant was co-parcenar in the disputed property with his father Hari Ram and brothers; therefore the trial court had passed erroneous judgment ignoring his co-parcenary ownership rights of disputed agricultural land. He contended that the judgment of lower court was based on non application of mind. Since only civil court has right to cancel the deed, so no question of bar of jurisdiction arises in this matter. He further pleaded that original suit was filed for the simple relief of cancellation of gift-deed, and there was no involvement of declaration of title of agricultural land, so the civil court had jurisdiction to decide the matter. Therefore the appeal should be admitted for being allowed.
8. Learned counsel for the respondents refuted the contentions of appellant side contended that co-parcenary right of agricultural land cannot be decided in civil court, as only the revenue court has jurisdiction to decide this matter and grant actual relief sought in plaint. He contended that the execution of gift-deed is admitted fact and no error was committed by the trial court and first appellate court. Therefore, second appeal should be dismissed at this stage.
9. Admittedly, defendant no.-1 was recorded bhumidhar and tenure-holder of disputed agricultural land, and his name was recorded in revenue records. The plaintiff/appellant had nowhere pleaded that his name was ever recorded over any portion of disputed land. The original suit of plaintiff was based on fact that being co-parcenar in disputed agricultural land, therefore, before granting any relief sought in plaint, this plaint case has to be proved that plaintiff/appellant is co-parcenar and co-sharer of disputed agricultural land.
10. In Shri Ram & another vs. 1st Addl. District Judge & others. (2001)3 S.C.C. 24, Hon'ble Apex Court has held as under:
"..On the 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 the cancellation of sale deed having been obtained on the ground of fraud or Impersonation cannot be directed to file a suit for declaration in the Revenue Court, the reason being that in such a case, prima facie, the title of the recorded tenure-holder is not under clout. 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."
11. In Kamla Prasad v. Kishna Kant Pathak, (2007) 4 SCC 213 the Apex Court had held as under:
"16. 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 the 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 the plaintiff was deleted.
17. 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."
12. In Azhar Hasan & others vs. District Judge, Saharanpur & others, 1998 (34) A. L.R. 152 (SC) full bench of Apex Court has held:
"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 purposes of the suit."
13. In present case, admittedly, plaintiff/appellant is not a recorded tenure-holder of disputed agricultural land whereas earlier defendant no.-1 was recorded, and after execution of gift-deed in question the the proceedings of mutation of defendants no. 4 & 5 over the disputed property in revenue records is pending, in which plaintiff-appellant is participating. Therefore, granting of any relief in present matter would involve adjudication of an issue relating to co-parcenary right in agricultural land and jurisdiction of the Court as held in Sri Ram's case (Supra). Since declaration of title and right of share of disputed agricultural land is necessary pre-condition involved for grant of relief sought by plaintiff/appellant, therefore, as it is held by Apex Court in Sri Rams' case (supra), plaintiff cannot get any relief unless his rights are declared by the revenue court. Pith and substance of the present dispute involves the declaration of bhumidhari rights of plaintiff/appellant; therefore the relief sought by him even in the garb of relief of cancellation of gift-deed, cannot be granted by the civil court.
14. No relief of declaration of ownership of agricultural land specifically sought in plaint, but in essence the claim of plaintiff was based on his ownership right of the disputed land, while the plea of defendant was that plaintiff was not owner of the property. Then adjudication of title of land in substance was the main question involved in the suit, although, it was not expressly prayed for in plaint. Therefore, in substance, when the main question involved for adjudication in this case relates to declaration of right or title then suit would lie in revenue court and not in civil court. Therefore, in such mattrt the jurisdiction of civil court is barred under Section 331 of UPZA & LR Act. This provision of Section 331 is attracted when in substance main question to be determined for resolving dispute between parties relates to declaration of rights or title of agricultural land.
15. In Ram Padarath vs. Second Addl. District Judge, Sultanpur, 1989 R.D. 21 the Full Bench of this Court had held as Under:
"It is the alleged injury or the apprehended injury or cloud on the right and title of a person by some action on the part of any other person, or interference or attempt to interfere or encroach upon the right and title of a person over a particular property by any positive or negative act or declaration etc., which give a suitor cause of action to approach a court of law for relief or reliefs against the same. The dispute as to jurisdiction arises when more than one reliefs are claimed in an action on the same cause of action one of which can be granted by a civil court. If the principle of real relief can be granted by the revenue court, then the ancillary relief or the relief which flows out from the principal relief can also be granted by the revenue court notwithstanding that --then all the reliefs can be granted by the civil court and if things are in reverse direction then all the relief can be granted by the civil court, but if the so-called main relief is redundant or mere suplusage then it is the real relief involved in the matter which may or may not have been claimed as ancillary relief will determine the jurisdiction of the court which is to entertain a particular action. Even if a plaint or application is couched in such a language so as to oust jurisdiction of a particular court then it is the cause of action which would determine the forum for entertaining the said action and not the so called relief claimed."
16. In fact for an adjudication of an issue relating to jurisdiction the averments contained in the plaint have to be taken in their entirety. The effort of the court has to be to gathered from the pith and substance of what is alleged in the plaint. The pith and substance of the plaint in the instant case necessarily involved the adjudication of the question as to whether the plaintiff was or not the co-bhumidhar of the land in dispute. The plaintiff was not recorded in the revenue papers and the entry stood in favour of the defendants. Obviously, therefore, the plaintiff had to seek a declaration in his favour. Moreover, the absence of the names of the plaintiff in the revenue record necessitates an action for declaration on the part of the plaintiff because the entries may not be set right without such declaration being asked for and given as contemplated under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act. There can be no escape therefore, from the conclusion that upon the cause of action set up in the plaint, the suit would lie for declaration in the revenue court under Section 229-B of the U.P. Act No.1 of 1951.
17. No doubt, there is no relief of declaration claimed in the plaint, but that is not really material. In essence the claim of the plaintiff was that he was owner of the property, while the claim of defendants was that the plaintiffs were not the owners of the property. Thus, adjudication of title was, in substance the main question involved in the suit, even though it was not expressly prayed for in the plaint. Thus, the essence of the matter in deciding whether the suit is cognizable by the civil Court or the revenue Court is whether Section 331 of the U.P. Zamindari Abolition and Land Reforms Act is attracted to the facts of the case. If the substance, the main question involved relates to declaration of right or title, then the suit would lie in the revenue court and not in the civil court.
18. After considering facts of the present case, and on the basis of above discussion, it is apparent that main relief sought by plaintiff/appellant is not the cancellation of deed in question but the declaration of rights and title of disputed agricultural land, which the precondition of grant of the relief of cancellation of gift-deed as well as relief of permanent injunction sought in plaint. Therefore, pith and substance of the real dispute between the parties relate to declaration of right or title of agricultural land which is beyond jurisdiction of civil court and is within jurisdiction of revenue record. Therefore, on this ground alone the claim of plaintiff was liable to be dismissed.
19. The other grounds for cancellation of deed in question were physical ailment etc. of defendant no.-3 Hari Ram, non payment of consideration, non explanation of contents of gift-deed etc. These all facts related to points of fact and not question of law. These plaint averments could be decided on the basis of evidences, as has been done by the courts below in present matter by concurrent findings of fact. It has been held by the lower courts that the grounds mentioned in plaint for cancellation of gift-deed in question were not proved. The findings on these grounds are concurrent, and apparently correct and acceptable that cannot be interfered in second appeal.
20. Apart from it, as discussed and held earlier, civil court had no jurisdiction to grant the main relief of declaration of title and coparcenary right of agricultural land. Therefore, suit is liable to be dismissed on this ground alone.
21. On examination of the reasoning recorded by the trial court, which are affirmed by the learned first appellate court in first appeal, I am of the view that the judgments of the trial court as well as the first appellate court are well reasoned and are based upon proper appreciation of the entire evidences on record. No perversity or infirmity is found in the concurrent findings of fact recorded by the trial court that has been affirmed by the first appellate court to warrant interference in this appeal. No question of law, much less a substantial question of law, was involved in the case before the this Court. None of the contentions of the learned counsel for the appellant- plaintiffs can be sustained.
22. In view of the above, and since this Court finds that no substantial question of law arises in this appeal, this appeal is dismissed.
Order Date :- 13.04.2016 SR