Heard Sri Ramendra Ashtana for the defendant-appellants.
This is a defendants' appeal against the judgment and order dated 24.02.2014 passed by the Additional District Judge, Court No.5, Agra in Civil Appeal No. 166 of 2012 by which the order dated 18.07.2011 passed by the Additional Civil Judge (Jr. Div.), Court No.2, Agra in Original Suit No. 719 of 2008, deciding issue No. 8 against the plaintiffs, has been set aside and the matter has been remanded back to the trial court to decide the suit on merits.
A perusal of the record reveals that Original Suit No. 719 of 2008 was instituted by the plaintiff-respondents against the defendant-appellants for cancellation of sale-deed dated 04.06.2007 executed by Deepchand (father of the plaintiffs) on ground that the sale-deed was got executed by coercion and by playing fraud on him. It was alleged that the defendants had abducted Deepchand, forcibly got him to execute the sale deed and, thereafter, murdered him, in which connection a first information report was lodged. The defendants filed written statement taking various pleas including that the suit was not maintainable at the instance of the plaintiffs inasmuch as it was not established that Deepchand was dead and since seven years had not passed since the date of execution of the sale deed up to the date of institution of the suit, his civil death could not be presumed. In addition to above, it was pleaded by the defendants that the suit was barred by section 331 of the U.P.Z.A. & L.R. Act, inasmuch as, the property to which the sale deed related was agricultural land and, pursuant to the sale-deed in question, the names of the defendants stood mutated in the revenue record therefore, without seeking declaration of rights over the property, no relief could be granted by a civil court and as revenue court alone has power to declare bhumidhari rights, under section 229-B of the UP ZA & LR Act, suit was not maintainable before the civil court.
On the pleadings of the parties, several issues were framed. Issue nos. 8 and 9 were as follows:-
Issue No.8: Whether the suit of the plaintiff was barred by the provisions of section 331 of the U.P.Z.A. & L.R. Act?
Issue No.9: Whether the suit was barred by the provisions of Order VII, Rule 11 C.P.C.?
From the impugned judgment and order it appears that, vide order dated 29.04.2010, which was affirmed by revisional court's order passed in Revision No.65 of 2010 decision on issue no.9 was deferred till receipt of evidence with regards to death of Deepchand. So far as issue No.8 is concerned, the trial court by its order dated 18.07.2011 decided the same against the plaintiffs holding thereby that since consequent to the sale-deed in question mutation had taken place in the revenue records and the dispute related to agricultural land, therefore, the suit was barred by section 331 of the U.P.Z.A.& L.R. Act inasmuch as the remedy for the plaintiffs lay in seeking declaration of their title under Section 229-B of the U.P.Z.A. & L.R. Act, which could only be granted by a revenue court.
Aggrieved by the order of the trial court, the plaintiff-respondents filed Civil Appeal No. 166 of 2012, which has been allowed by the impugned order.
The lower appellate court came to the conclusion that from the plaint case the sale-deed, the cancellation of which was sought, was voidable and, therefore, its cancellation was necessary to confer any right on the plaintiffs and since power to cancel an instrument vests solely in a civil court and of which no relief could be granted by a revenue court, the civil court's jurisdiction would not be barred by section 331 of the U.P.Z.A.& L.R. Act, accordingly, the order of the trial court was set aside and the matter was remanded to the trial court to decide the suit on merits.
Assailing the remand order of the lower appellate court, the learned counsel for the appellants submitted that since after execution of the sale-deed, the names of the defendant-appellants (the vendees) stood mutated in the revenue record and it is not disputed that the sale-deed was in respect of agricultural land, therefore, without declaration of right of the plaintiffs over the agricultural land, no effective relief can be granted by the civil court. It was submitted that as declaration of bhumidhari rights over agricultural land can be granted by a revenue court under Section 229-B of UP ZA & LR Act, the suit before a civil court would be barred by section 331 of the U.P.Z.A.& L.R. Act. In support of the submissions, the learned counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kamla Prasad and others v. Kishna Kant Pathak and others: (2007) 4 SCC 213.
Having considered the submissions of the learned counsel for the appellants, before deciding whether the suit, as framed, was barred by section 331 of the UP ZA & LR Act, it would be useful to first examine the law with regards to the bar of section 331 on a suit relating to cancellation of an instrument. Ordinarily, cancellation of an instrument is sought by claiming it either to be void or voidable. In the case of Dhurandhar Prasad Singh v. Jai Prakash University, (2001) 6 SCC 534, the apex court had the occasion to elucidate the expressions "void" and "voidable". In paragraph 22 of the report, it was observed by the apex court as follows: "The expression "void" has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. The other type of void act, e.g., may be transaction against a minor without being represented by a next friend. Such a transaction is a good transaction against the whole world. So far as the minor is concerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding the transaction becomes void from the very beginning. Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made. Voidable act is that which is a good act unless avoided, e.g., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated, it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given, a transaction becomes void from the very beginning. There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable."
From the law noticed above, it is clear that where a document is voidable it is a good act unless avoided and, therefore, its cancellation would be required, if a party seeks to avoid its natural consequences.
In Gorakh Nath Dube v. Hari Narain Singh, (1973) 2 SCC 535, the apex court was required to adjudicate as to whether a suit for cancellation of a sale deed would abate or not, under section 5(2) of the U.P. Consolidation of Holdings Act, on advent of consolidation proceedings. There, while drawing a distinction between a suit for cancellation of a void document and that of a voidable document, the apex court observed, in paragraph 5 of the report, as follows: "We think that a distinction can be made between cases where a document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have legal effect. An alienation made in excess of power to transfer would be, to the extent of the excess of power, invalid. An adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in land which are the subject-matter of consolidation proceedings. The existence and quantum of rights claimed or denied will have to be declared by the consolidation authorities which would be deemed to be invested with jurisdiction, by the necessary implication of their statutory powers to adjudicate upon such rights and interests in land, to declare such documents effective or ineffective, 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. In the case before us, the plaintiff's claim is that the sale of his half share by his uncle was invalid, inoperative, and void."
The law laid down in Gorakh Nath Dube's case (supra) has been followed by the apex court in the case of Bismillah versus Janeshwar Prasad: (1990) 1 SCC 207.
It is now well settled that where a document is voidable it is a good act unless avoided and, therefore, its cancellation would be necessary to avoid its natural consequences. As the revenue court has no power to cancel a document, a suit seeking cancellation of a document, which is alleged to be voidable, is maintainable in a civil court and is not barred by section 331 of the UP ZA & LR Act. Even a suit to cancel a void document may not be, in a given set of circumstances, barred by section 331 of the UP ZA & LR Act as has been held by a Full Bench of this Court in the case of Ram Padarath & others versus Second Additional D.J., Fatehpur: 1989 RD 21, where it was held as follows: "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 of a tenure holder is necessarily needed in which event relief for cancellation will be surplusage 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." The view taken by the Full Bench in Ram Padarath's case has been noticed and approved by the apex court in Bismillah's case (supra).
It is equally well settled that the question of jurisdiction depends upon the allegations in the plaint and not the merits or the result of the suit (vide Bismillah versus Janeshwar Prasad: (1990) 1 SCC 207, paragraph 9). Therefore in a suit instituted before a civil court for cancellation of an instrument, in respect to an agricultural land, if a plea with respect to the bar of section 331 of the UP ZA & LR Act is taken, the court must first determine as to whether from the plaint averments the instrument, as alleged, is void or voidable. If the plaint averments go to show that the instrument is voidable at the instance of the plaintiff(s), then the suit would be maintainable in a civil court, but if it is alleged to be void then the Court may have to undertake a complex exercise so as to assess whether in a given set of facts a declaration of right or status of a tenure holder is necessarily needed or not. If a declaration to that effect is necessarily needed, in that event, the relief for cancellation would be mere surplusage and redundant, because the court, which has power to grant declaration can disregard a void document while granting a declaratory relief. In such an event a civil suit would be barred by sub section (1) of Section 331 of the UP ZA & LR Act.
Coming to the facts of the instant case, from the plaint, which is on record as Annexure No.3 to the affidavit, it is found that the ground on which cancellation of the sale-deed has been sought is that the sale-deed was got executed by coercion and by playing fraud on Deepchand, the recorded tenure-holder. There is no dispute with regards to the fact that Deepchand, on the date of execution of the sale-deed, was the recorded tenure-holder. The cancellation has been sought, primarily, on ground that there was no free consent of the vendor. Section 19 of the Indian Contract Act provides that when consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused. Therefore, according to the plaint averments the sale deed in question would be voidable at the option of the plaintiffs. The effect of such a deed cannot be avoided unless it is cancelled by a decree. As the revenue court has no power to pass a decree of cancellation of a document, the suit would lie before the Civil Court irrespective of the fact that name of the defendant-appellants have been entered in the revenue record consequent to the execution of the sale-deed. The judgment of the Apex Court in the case of Kamla Prasad and others (supra) is of no help to the appellants inasmuch as in the said case the plaintiff had instituted a suit for cancellation of a document on ground that the executor of the deed alone did not have authority to execute the same, which reveals that in that suit cancellation was sought on ground that the deed was in excess of authority that is, void.
In view of the discussion made above, I do not find any error in the judgment and order passed by the lower appellate court.
At this stage, the learned counsel for the appellants submitted that since the court has not passed any order with regards to the maintainability of the suit at the instance of the plaintiff-respondents, on ground that seven years had not elapsed from the date when Deepchand was last heard of, this question may be left open for the trial court to decide.
The above apprehension expressed by the learned counsel for the appellants is misplaced inasmuch as the lower appellate court has specifically observed in its order of remand that the issue whether the suit is maintainable at the instance of the plaintiff can be decided only after leading of evidence. Thus, it is expected that the said issue would be decided at an appropriate stage.
The appeal is dismissed.
Order Date :- 14.5.2014 Sunil Kr Tiwari