1. The writ petition is directed against the order dated 17th January, 2008 passed by the Civil Judge (Junior Division) Jaunpur rejecting application no.50-C of petitioner-Manoj Kumar raising a preliminary objection regarding maintainability of Original Suit No.436 of 2004 (Indu Devi Vs. Manoj Kumar) on the ground that suit is barred by Section 331 of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as "1950 Act") and the revisional order dated 26th May, 2008 passed by District Judge, Jaunpur dismissing Revision No.9 of 2008 of the petitioner. The Facts giving rise to the dispute in the present writ petition may be stated as under.
2. One Fateh Bahadur Singh, husband of Smt. Indu Devi (respondent No.3) possessed some movable and immovable property and died on 12th February, 2002. The petitioner is the son of Sri Amar Bahadur Singh, brother of Fateh Bahadur Singh. He claimed that Fateh Bahadur Singh had executed a Will 7th February, 2002, though it was unregistered, and on the basis thereof got his name mutated in respect to the immovable property of Late Fateh Bahadur Singh. Respondent No.3 filed Original Suit No.436 of 2004 for cancellation of unregistered Will dated 7th February, 2002 in respect to the disputed property, as detailed at the bottom of the plaint, which reads as under:
^^rQlhy tk;nkn en vokdk ekStk Hkqbyk ijxuk [kijgk rg0 lnj ftyk tkSuiqjA rQlhy vkjkth o okdk ekStk Hkqbyk ijxuk [kijgka rg0 lnj ftyk tkSuiqjA [kkrk ua0 145 vk0 ua0 2,&797 gs0 esa [email protected] va'k o [kkrk ua0 170 vk0 ua0 [email protected] &466 esa [email protected] va'k o [kkrk la0 6 vk0 ua0 [email protected]@[email protected]] [email protected]&914] [email protected] tqeyk 4 xkVk [email protected] gs0 esa [email protected] va'k**
3. The petitioner-defendant put in appearance in the aforesaid suit and filed an application dated 27th March, 2006 raising a preliminary objection that suit is without jurisdiction and liable to be dismissed as not maintainable being barred by Section 331 of 1950 Act. It is stated that property in dispute, referred to in the suit, is all such land as is governed by 1950 Act and therefore it is barred by Section 331 of 1950 Act. It is contended that plaintiff-respondent No.3 had no right to file the said suit unless seeks a declaration from the Revenue Court regarding her status as Bhumidhar of the land in dispute. It is this application, which has been rejected by both the Courts below, whereagainst this writ petition has been filed.
4. Sri Namwar Singh, learned counsel for the petitioner submitted that name of the petitioner was already mutated in revenue records in place of Late Fateh Bahadur Singh and he was recorded as Bhumidhar. The petitioner has also possession over the property of Late Fateh Bahadur Singh. In the circumstances respondent No.3 ought to have sought a declaration by filing a suit in the Revenue Court under Section 229-B of 1950 Act and suit filed in Civil Court under Section 9 C.P.C. was barred by Section 331 of 1950 Act. He placed reliance on the Apex Court decision in Gorakh Nath Dube Vs. Hari Narain Singh & Ors. 1973 R.D. 423 (SC), a Full Bench judgment of this Court in Ram Padarath & Ors. Vs. Second Add. D.J., Sultanpur 1989 R.D. 21 and a Single Judge decision in Bhurey Lal Vs. District Judge, Budaun & Ors. 1997 (88) RD 149.
5. Per contra, Sri U.B. Singh, learned counsel appearing for the respondent No.3 contended that the suit was filed for cancellation of unregistered Will dated 7th February, 2002 and for declaration of property in dispute as that of the plaintiff on the ground that it was a forged and fictitious document prepared fraudulently and illegally hence the suit filed before Civil Court is not barred. He placed reliance on Apex Court decision in Bismillah Vs. Janeshwar Prasad 1990 SCC (1) 207 and a Single Judge decision in Barkhu & Ors Vs. Vth Additional District Judge, Basti 2004(97) R.D. 168.
6. I have heard Sri Namwar Singh for the petitioner, Sri U.B. Singh, Advocate for the respondent No.3 at length and has perused the record as also the authorities cited at the Bar.
7. Before proceeding further, it appears from the record that consolidation proceedings commenced at Mauza Bhuila, Pargana Khapraha and Tehsil Sadar, District Jaunpur, the area in question, hence an application no.20-G was filed by the petitioner in the Court of Civil Judge (Junior Division) Jaunpur praying for abatement of proceedings after issuance of notification under Section 4 of U.P. Consolidation of Holdings Act and Section 49 of the said Act. The aforesaid application was rejected by order dated 28th July, 2005 whereagainst Revision No.457 of 2005 was also rejected by the Addl. District Judge, Jaunpur on 8th December, 2005. Failing in the said attempt, petitioner filed another application No.50-C, details whereof have already been stated above.
8. In normal course, the property in question would have been inherited by respondent No.3 but the petitioner relying on a Will dated 7th February, 2002 claimed that after death of late Fateh Bahadur Singh on 12th February, 2002, the entire property belong to him. It is in these circumstances the suit was filed by respondent No.3 for cancellation of the said Will. It is also evident from record that Late Fateh Bahadur Singh was an employee in Inter College, Shahpur Sikrara and in the service book, respondent No.3 was a nominee and she is getting all dues of her late husband after his death.
9. The trial Court has rejected the application observing that the alleged Will results in transfer of moveable and immovable property which included the land governed by the statutes pertaining to revenue and also the land which is not revenue land hence the suit is not barred by Section 331 of 1950 Act. This finding has been affirmed by the revisional Court, which has also recorded the finding that entire property said to have been succeeded by the petitioner pursuant to the alleged Will includes certain property which is beyond the purview of revenue Courts. These findings by the Courts below have not at all been assailed in the entire writ petition and on the contrary the petitioner repeatedly rely on the fact that his name, on the basis of the Will deed dated 7th February, 2002, has been mutated in revenue records, therefore, the suit was barred by Section 331 of 1950 Act.
10. The kind of suits which are to be filed under Section 229-B are as under:
"229-B. Declaratory suit by person claiming to be an asami of a holding or part thereof.- (1) Any person claiming to be an asami of a holding or any part thereof, whether exclusively or jointly with any other person may sue the land holder for a declaration of his rights as asami in such holding or part as the case may be.
(2) In any suit under sub-section (1) any other person claiming to hold as asami under the landholder shall be impleaded as defendant.
(3) The provisions of sub-sections (1) land (2) shall mutates mutandis apply to a suit by a person claiming to be a Bhumidhar with the amendment that for the word "landholder" the words "the State Government and the Gaon Sabha" are substituted therein."
11. Section 331 of 1950 Act talks of the cognizance of suit etc. under 1950 Act and reads as under:
Section 331, Cognizance of suits, etc. under this Act.--(1) Except as provided by or under this Act no court other than a court mentioned in column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908 (V of 1908) take cognizance of any suit, application, or proceedings mentioned in column 3 thereof or of a suit, application, or proceedings based on a cause of action in respect of which any relief could be obtained by means of any such suit or application :
Provided that where a declaration has been made under Section 143 in respect of any holding or part thereof, the provisions of Schedule II in so far as they relate to suits, applications or proceedings under Chapter VIII shall not apply to such holding or part thereof.
Explanation.--If the cause of action is one in respect of which relief may be granted by the revenue court, it is immaterial that the relief asked for from the civil court may not be identical to that which the revenue court would have granted.
(1-A) Notwithstanding anything in sub-section (1), an objection that a court mentioned in column 4 of Schedule II, or as the case may be, a civil court, which had no jurisdiction with respect to the suit, application or proceeding, exercised jurisdiction with respect thereto shall not be entertained by any appellate or revisional court unless the objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice."
12. Section 331(1) ex facie provides that "no Court other than a court mentioned in Column 4 Schedule II shall take cognizance of any suit, application, or proceedings mentioned in Column 3 thereof, notwithstanding anything contained in Civil Procedure Code or of a suit, application or proceedings based on a cause of action in respect of which any relief can be obtained by means of any suit or such application in such Court. Therefore, first of all, we have to refer to Column 3, Schedule II to find out, what kinds of suits, applications or proceedings can be filed therein in the Court mentioned in Column-IV which are in fact all Revenue Courts.
13. Learned counsel for the petitioner submits that since suit can be filed under Section 229-B of 1950 Act, therefore, refers to item 34 of which Column-1 to 4 reads as under:
229, 229-B 229-C Suit for declaration of rights Assistant Collector Ist Class
14. Now, a suit for declaration of rights under 1950 Act, if filed, the same would lie before the Court of Assistant Collector, Ist Class. This Court has to examine whether the suit in question can be said to be of such kind or not. In order to find out whether Civil Court jurisdiction is barred or not, the Court cannot resolve the dispute merely by perusing the relief claimed in the plaint but would have to consider the nature of allegations constituting cause of action as also other attending circumstances to find out the true and real nature of relief.
15. The principal and in fact the only relief sought in the suit filed before Civil Court is for cancellation of alleged Will dated 7th February, 2002 with respect to the property in question. No relief has been sought with respect to the rights and title of a tenure holder or declaration of title or status. The Full Bench in Ram Padarath & Ors. (supra) has said ;
"These cases in substance lay down that suit for cancellation of void deed is cognizable by civil court and Section 331 does not deprive a party from a right to approach competent court of law for getting a document cancelled and instead drives a party to revenue court claiming a different relief and that of cancellation which a revenue court cannot grant holding the deed to be void."
16. This is what has also been held by Apex Court in Shri Ram & Anr. Vs. Ist Additional District Judge & Ors., 2001 (92) RD 241.
17. In Bismillah Vs. Janeshwar Prasad (supra) Apex Court referring to Section 331 said that, exclusion of jurisdiction of Civil Court is not to be readily inferred. Such exclusion must either be explicitly expressed or necessarily implied. Such provision has to be read strictly and has to be construed strictly. Where the binding effect of a deed had to be got rid of by an appropriate adjudication, a suit was cognizable by the Civil Court. The Apex Court has referred to Full Bench judgment in Ram Padarath (supra) in para 18 of the judgment.
18. Since the relief sought in the original suit is for cancellation of the alleged Will, it cannot be said that the suit was not maintainable before the Court below. None of the judgments cited on behalf of the petitioner has taken a view otherwise than what I have discussed above.
19. The writ petition, therefore, lacks merit. Dismissed. No costs.
Order Date:26.07.2011 KA