JUDGMENT S.U. Khan, J.
1. Heard learned Counsel for the petitioner. No one appears on behalf of the respondent No. 2, the only contesting respondent at the time of arguments.
2. Learned Counsel for the petitioners made an oral prayer for deletion of the names of respondents 4 and 5. Prayer is accepted and respondents 4 and 5 are deleted from the array of the parties.
3. Respondent No. 2 Sardara filed Original Suit No. 372 of 1978 against the petitioners. Petitioners had purchased the agricultural land in dispute (Khasra No. 44 area 5 bigha 2 biswa and 5 biswansis) from Prabhu, real brother of plaintiff Sardara. Sale deed was executed on 2.3.1963 and registered on 4.3.1963. In the plaint it was stated that Prabhu had no right to execute the sale deed and plaintiff was also co-sharer to the extent of 50 per cent. Relief "A" in the plaint was to the effect that sale deed dated 2/4 March, 1963 be cancelled and its intimation be sent to the office of the Registrar concerned. The second prayer was that the plaintiff must be delivered possession of the land in dispute through Court Amin. Petitioners-defendants filed written statement and staled that the suit was not cognizable before the civil court. Issues were framed. Issue No. 10 pertained to jurisdiction. The issue of jurisdiction was decided as preliminary issue and 111 Additional Munsif Bijnor through order dated 13.5.1980 held that the suit was not cognizable by the civil court and directed the return of plaint for being filed before the proper court i.e. revenue court under U.P. Zamindari Abolition and Land Reforms Act. Against the said order plaintiff-respondent filed Civil Revision No. 56 of 1982. First Additional District Judge, Bijnor allowed the revision on 13.4.1982, set aside the order of the learned Munsif and held the suit to be maintainable before the civil court. Hence this writ petition.
4. The trial court had held that according to the allegations in the plaint the sale deed was void, hence suit was cognizable before the revenue court.
5. It is true that by virtue of Full Bench of this Court reported in Ram Padarath v. II A.D.J. Sultanpur and Ors. 1989 A.W.C. 290, even a suit for cancellation of void sale deed in respect of agricultural land may be maintainable before the Civil Court. The said Full Bench Authority has virtually been upheld by the Supreme Court in Smt. Bismila v. Janeshwar A.I.R. 1990 S.C. 540. The Supreme Court held that if the plaintiff is of the opinion that without getting the offending deed set aside, he can not get proper reliefs , then the bar is not attracted and plaintiff is at liberty to file suit before the Civil Court.
6. In Shri Ram and Anr. v. 1st Addl. District Judge and Ors. also it has been held that recorded tenure holder is not required to approach the revenue court for declaration of right. He can challenge the sale deed purported to have been executed by him in the civil court. The aforesaid Full Bench authority of this Court in the case of Ram Padarath (supra) was also approved by the Supreme Court in the case of Shri Ram
7. In the full Bench authority it has been held that a recorded tenure holder can challenge the sale deed purported to have been executed on his behalf in the civil court even if challenge is on the ground of impersonation. Latter part of para 41, of the said Full Bench is quoted below:
41. ...Suit or action for cancellation of void document will generally lie in the civil court and a party cannot be deprived in 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.
8. In view of the above authorities, including the Full Bench authority a person who questions sale deed executed or purported to be executed by him in respect of agricultural land can file the suit for its cancellation before civil court if it is alleged by him that the sale deed is void or viodable on the ground of fraud, coercion, undue influence, misrepresentation or impersonation. Similarly sale deed executed or purported to be executed by predecessor-in-interest of a plaintiff can also be challenged by him before civil court on the same grounds. However, in such situation it is necessary that immediately before the execution of the sale deed, the plaintiff or his predecessor-in-interest must undisputedly be recorded in the revenue records.
9. Conversely, if sale deed executed by a person is challenged by another person on the ground that even though immediately before the sale deed only the name of vendor / vendors was undisputedly recorded in the revenue records, still plaintiff had a right in the said land, then such suit is not maintainable before civil court, as it primarily involves question of declaration of right in the agricultural land. In such situation it is not actually the sale deed and state of affairs coming in existence by execution of the sale deed which is being challenged. The challenge in such situation in real sense is to the position and affairs in existence immediately before the execution of the sale deed. If a person asserts that apart from the recorded tenure-holder he also has got a right in the agricultural land then his only remedy lies in filing a suit for declaration before the revenue court.
10. In the instant case also the only relevant assertion of the plaintiff is that the vendor i.e. Prabhu even though recorded as sole tenure holder in the revenue records was, in fact, not the sole tenure-holder and plaintiff was also co-sharer along with him. This, in fact, is a challenge to the state of affairs existing since before the execution of the sale deed and continuing till then. If this assertion is correct, then sale deed at least to the extent of share of the plaintiff becomes void otherwise it is quite valid as there is no allegation against the sale deed. Accordingly, in my opinion, the suit was not maintainable before the civil court.
11. Writ petition is therefore, allowed. Judgment and order passed by the Revisional Court is set aside. Judgment and order passed by the trial court holding the suit not to be maintainable before the civil court is affirmed.