Heard learned counsel for the parties.
This is plaintiffs' writ petition arising out of Original Suit No. 286 of 1987 filed by them against respondent nos. 3 and 4 Gajraj and Mool Shanker. Defendant no. 1 in the suit was Musammat Bagwanti who died on 07.03.1991 and no one was substituted at her place. She belonged to the family of the plaintiffs-petitioners. She was recorded as bhumidhar of certain agricultural land in the Revenue Records which she sold through a registered sale deed dated 03.03.1986 to the defendant no. 2 and 3/ respondent nos. 3 and 4. The prayer in the plaint of the suit was for cancellation of the sale deed. Defendants raised the plea of bar of jurisdiction of the civil court. After filing of the written statement, issues were framed. The issue relating to the jurisdiction (whether the suit is not maintainable in the civil Court in view of Section 331 of U.P. Zamindari Abolition & Land Reforms Act) was decided as a preliminary issue by Munsif Mirzapur on 04.03.1998 holding that the suit was maintainable before the Civil Court. Against the said judgment and order contesting respondent nos. 3 and 4 filed civil revision no. 55 of 1998. The District Judge, Mirzapur allowed the revision on 22.12.2000 and held the suit to be not maintainable before the Civil Court. The said judgment and order of the revisional court has been challenged through this writ petition.
In the plaint it was stated that just for the satisfaction of Musammat Bagwanti her name had been recorded in the revenue records but she was not bhumidhar and by maximum she was licensee.
If the situation which is brought in existence by the sale deed is challenged then the sale deed may be challenged before the Civil Court also even if the allegation is that the sale deed is void (e.g. the allegation that it was executed by some impostor). However if the challenge is to the position existing immediately before execution of the sale deed then simple suit for cancellation of sale deed or its declaration as void is not maintainable before the Civil Court as such suit necessarily involves the declaration of right prior to execution of the sale deed. In the instant case unless a declaration is granted that even prior to the execution of the sale deed, Musammat Bagwanti was not bhumidhar of the land in dispute, sale deed cannot be cancelled. Such a declaration can be granted only and only by revenue Court.
Therefore, the learned District Judge, rightly held that the suit was not maintainable before the Civil Court. Writ petition is accordingly dismissed.
Order Date :- 24.5.2011 vks