Hari Prasad, who is a blind person and is petitioner No.1 in the instant writ petition has filed this petition along with his wife assailing the order dated 14.9.2010 passed by the Civil Judge, Junior Division, Gonda, as also the order dated 21.12.2010 passed by the Additional District Judge, whereby the order of Civil Judge has been approved. This Court, while entertaining the writ petition, issued notice to the private respondents Nos. 3 to 7, whereas notice was not issued to respondents Nos. 1 and 2 as appearance was put in by Sri Manish Kumar, Advocate.
Order-sheet indicates that notices were sent to respondents Nos. 3 to 7 but they refused to take the same. There is a report of OSD dated 22.7.2011, wherein it has been reported that service upon respondents Nos. 3 to 7 is held sufficient on account of refusal.
From the record, it appears that the petitioner being a blind person could not get his name recorded in the revenue record after the death of his grand father and as such, he moved an application under Section 229-B/209 of the U.P.Z.A & L.R. Act in the Court of Sub-Divisional Officer, Gonda, wherein he came to know that in respect of the property in dispute, a Will deed has been executed allegedly by his grand-father Laxmi Prasad in favour of Shanker Dayal, Shambhu Dayal, Shiv Dayal and Prabhu Dayal. He further came to know that Shanker Dayal-father of the petitioner No.1 had executed a sale-deed dated 22.7.1997 in favour of Kashi Prasad and Mahesh Datt without any consideration.
On the basis of the above alleged Will, Shanker Dayal and Shambhu Dayal got entered their names in the revenue record. As petitioners came to know about the alleged Will deed dated 2.6.1986 and the sale deed dated 22.7.1997, they filed a suit for cancellation of sale deed and Will deed, which was registered as Regular Suit No. 344 of 2000. In the suit, notices were issued to the defendants/respondents Nos. 3 to 7, who filed their written statement, raising a plea that the suit is barred under Section 331 of the U.P.Z.A. & L.R. Act [hereinafter referred to as 'Act'].
The Trial Court framed in all fourteen issues and issue No. 9 was that "whether the suit is barred under Section 331 of the Act or not". The Trial Court held that in respect of abadi land, the Civil Court has jurisdiction, whereas in respect of agricultural land, revenue court has jurisdiction and as such, the suit filed by the petitioners is barred under Section 331 of the Act.
Being dissatisfied with the order dated 14.9.2010, whereby the issue No. 9 was decided against the petitioners, they preferred a civil revision. The revisional court affirmed the order of the Trial Court vide its judgment and order dated 21.12.2010. Hence the petitioners have filed this writ petition.
As averred above, no one has put in appearance on behalf of the private respondents.
Counsel for the petitioner has vehemently argued that the impugned orders suffer from infirmities as the relief for cancellation of sale deed/Will deed cannot be granted by the revenue Court. Therefore, the findings recorded by the Courts below are perverse and are not based on correct appreciation of material on record.
A Full Bench of this Court in Ram Padarath and others versus 2nd Additional D.J., Sultanpur and others [1988 (6) LCD 565], held as under :
"5. Suits for cancellation of a sale deed or other instruments and documents are essentially suits of civil nature. Every suit of civil nature is cognizable by a civil court, except cognizable of which is expressly or impliedly barred."
At this juncture, it would be useful to mention that Chapter V of the Specific Relief Act, 1963 deals with the cancellation of instruments. Section 31, which is relevant in the present context, reads as under :
"31. When cancellation may be ordered.-(1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.
Thus, from the perusal of the aforesaid legal position, it is clear that Section 31 makes specific provision for cancellation of void as well as voidable instruments. Suits for cancellation of such documents being of civil nature or cognizable by civil court and even otherwise, suits claiming relief provided under Specific Relief Act are entertainable only by civil court and no revenue court or any other court can entertain such a suit including for cancellation of instrument or documents.
In view of the above clear cut provision, the case laws relied upon by the Revisional Court are not applicable and the Courts below erred in holding that the suit is not maintainable in view of Section 331 of U.P.Z.A. & L.R. Act. Therefore, both the orders are not tenable in the eyes of law.
So far as the decision of the Hon'ble Apex Court in the case of 'Kamla Prasad and others versus Krishna Pathak and other' [2007 (102) RD 378] is concerned, the Hon'ble Apex Court has referred the decision in the case of Shri Ram and another versus Ist Additional District Judge and others [2001 (29) R.D., 241]. The facts of the case are entirely different. In the said case, the name of the person was deleted from the revenue records in mutation proceeding and the possession has already been handed over. Therefore, the Revisional Court has wrongly placed reliance on this case law.
It may be clarified that the petitioners in the writ petition has stated that in the suit, they had not prayed any right, title and share over the property in dispute. Petitioners in the writ petition have indicated that the suit property as Schedule A, B and C is the ancestral property. Laxmi Prasad, brother of the grand father of petitioner No.1, who was the bona fide owner of property Schedule at 'A', was having half share in Schedule 'B' property and ¼th share in Schedule 'C' property. Laxmi Prasad was unmarried and he had executed a Will deed dated 3.1.1986 in favour of the petitioners in respect of all movable and immovable property. Laxmi Prasad died on 4.6.1986 and the petitioners are enjoying possession over the property in dispute. The aforesaid facts stated in the writ petition remained un-controverted for the reasons stated hereinabove.
In view of the aforesaid discussions, impugned orders dated 21.12.2010 and 14.9.2010 are hereby quashed. The Trial Court is directed to decide issue No. 9 afresh after giving opportunity of hearing to the parties concerned in light of the observations made hereinabove.
As it has come on record that the petitioner No.1 is a blind person, the Trial Court shall make earnest endeavour to conclude the proceedings, expeditiously.
The writ petition stands allowed in above terms.
Order Date : 29.11.2011 HM/-