JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the parties are perused the record.
2. The only question involved in this petition is about the jurisdiction of civil court in a suit filed for cancellation of a Will dated 13.4.1981 alleged to have been executed by Ram Lochan Mishra.
3. A suit was' filed by Smt. Rajeshwari Devi claiming to be the wife of Lal Chand who predeceased his father Lal Chand Misra. She alleges to have a son and daughter and after death of her husband she is living at Bombay with son-in-law. During that period, defendant respondent got a forged Will registered and claim to have inherited all properties of Ram Loehan. She alleges that Ram Lochan was member of joint family and had no right to execute Will nor was capable of executing Will. The plaintiff prayed for cancellation of Will dated 13.4.1981 in favour of petitioner Sri Narain Mishra and injunction from interfering in possession of plaintiff. The defendant filed written statement taking objection that consolidation operations have taken place in the village, hence suit is barred by Section 49 of the U. P. Consolidation of Holdings Act., The trial court by order dated 15.12.1984 rejected the objections of the defendant petitioner. This order was confirmed in revision. Thereafter the plaintiff filed application for amendment of plaint seeking amendment in pedigree and that a sale deed had been executed on 11.5.1981 in favour of Gulab Chandra Chaubey.
4. Trial court framed issue No. 7 about the maintainability of suit in civil court. During pendency of suit village was again notified under D. P. Consolidation of Holdings Act on 15.6.1990. The petitioner defendant again filed application that suit has to be abated under Section 5 (2) of the C.H. Act. Plaintiff filed objection. The trial court by order dated 29.9.1995 rejected the application dated 15.12.1994 holding that suit for cancellation was not barred and does not abate. Revision against said order has been rejected by District Judge by order dated 9.8.1999. Now defendant-petitioner is praying that suit for cancellation of Will would abate.
5. The counsel for the petitioner submits that their name had been recorded in revenue papers on basis of Will hence decision on the validity of Will have effect on orders passed under Section 34 of Land Revenue Act, and civil court has no jurisdiction to correct revenue records hence, revenue court alone has right to entertain suit under Section 229B of the U.P.Z.A. and L.R. Act. He relied upon the case of Ram Padarath and Ors. v. IInd Additional District Judge, 1981 AWC 1 (FB). He submits that since name of plaintiff is not recorded in revenue papers the civil court has no jurisdiction in the matter. He also referred to case of Gorakh Nath Dube v. Hari Narain Singh and Ors., 1973 RD 423, wherein it has been held that claim of parties has to be decided by consolidation court and suit has to be abated. He relies heartly on case of Ram Padarath (supra) and other decisions of this Court.
6. The question of jurisdiction has been dealt with in several cases of cancellation of sale deeds. In this case both courts below have held that the alleged Will is a voidable document. The plaintiff is not an outsider. She claims right to property on basis of succession. She does not claim a declaration of her right but only cancellation of Will which casts cloud over her legal right. Recently Justice S.K. Singh considered all cases on this point and has held in case of Jai Singh v. IInd Additional District. Judge, Muzaffarnagar and Ors., 2001 (4) AWC 2826 thus :
"The Full Bench in Ram Padarath (supra), while approving the said judgment in para 41 held as follows :
We are of the view that the case of Indra Deo v. Smt. Ram Pyari, 1982 ALJ 1308. has been correctly decided and the said decision requires no consideration, while the Division Bench case,' Dr. Ayodhya Prasad v. Gangotri, 1981 ALJ 647, is regarding the jurisdiction of consolidation authorities, but so far as it holds that suit in respect of void document will lie in the revenue court, it does not lay down a good law. Suit or action for cancellation of void document will generally lie in the civil court and a parry 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 surplusages 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 aforesaid decision as has been given in Indra Deo v. Smt. Ram Pyari (supra), and in the Full Bench Ram Padarath (supra) have been taken note of by the Hon'ble Apex Court in the decision in Smt. Bismilla v. Janeshwar Prasad, 1990 (1) AWC 359 (SC) : AIR 1990 SC 540, and have been duly approved.
Otherwise, also if a deed is executed in respect to agricultural land, even though if the plaintiff is not recorded in revenue papers, it does not appeal that why if the plaintiff only intends to get the sale deed cancelled, why he cannot come to civil court asking that relief. By remaining the deed in favour of the opposite party, the records of the registration office will demonstrate that fact and that may create problem to the plaintiff in many ways in his practical life. In normal life, at various places, if the party is not able to produce the revenue entry and if a deed is presented showing the transaction in favour of a particular person, the concerned authorities are expected to accept the ownership of the land of that party in whose favour the deed exists. In view of this, if a plaintiff wishes to get the deed cancelled in order to get any shadow of doubt of a claim by a person holding the deed removed, he can have every right to approach the civil court."
There is another reason for which the plaintiff should not be precluded from going to the civil court to get the deed cancelled even though, he is not recorded in the revenue papers as in the event of cancellation of deed, i.e., further action about correction of the revenue entry will be just a sheer formality which can be said to be a follow up action and it will be Just a ministerial act to be performed by revenue authorities. If the plaintiff after getting declaration in his favour by civil court visits revenue authority and brings this fact to his notice, then the revenue authority after finding it out that the name of the defendant came to be recorded only on the basis of the deed in question, which having been cancelled, will have no option but to restore the entry. In this view, no adjudication by revenue authorities of any kind will be required, if the main bone of contention between the parties, i.e., deed goes away from the hands of the defendants on account of its cancellation by civil court.
The decision as has been referred in support of the argument for abating the suit under the provisions of U. P. Consolidation of Holdings Act in Smt. Sumitra Devi v. Additional District Judge and Ors., 1999 (3) AWC 2.100 (NOC) : 2000 RD 45. to my mind, has not at all dealt with the aspect, that if there is no specific bar in maintaining the suit the civil court for the relief for which the plaintiff has come, i.e., cancellation of the deed then irrespective of availability of the claim for another relief which might be available in the revenue court or consolidation court, why the civil court is not competent to grant the relief of cancellation of deed for which the plaintiffs have come to the civil court. As a deed, it remains in existence, it causes or may cause the mischief in various manners which may not be foreseen today but that may creates, situation in future and therefore, why that be permitted to remain if its existence can be taken away by competent forum of the civil court.
7. In para 28 the Court held that if a plaintiff comes to the civil court for seeking cancellation of deed which may be void or voidable, whether the name of the plaintiff is recorded or not, the Jurisdiction of the civil court not having been expressly barred to try such suits, the suit will be maintainable in the civil court. I agree with this legal position settled by this Court in above case and Full Bench case as a binding precedent,
8. In the result, the writ petition is dismissed as the matter is cognizable by the civil court. No order as to cost.