One third share of House Nos. 491, 491/1 & 492/2 and one third share of 9.51 acre of Bhumidhari land situated in Dandia Pura, Jhansi was sold by Nathua, Ram Lal and Param sons of Bhonde to Manohar Lal son of Mohan Lal vide sale deed executed on 5.11.1966 registered on 8.11.1966. The said property constitute one third share of Nathua and others mentioned herein above who were recorded as Bhumidhar. The said property was partitioned by sons of Mohan Lal by executing partition deed dated 6.11.1968 which was registered on 23.11.1968. By virtue of the said partition deed Damodar Das son of Mohan Lal got in his share whole of House No. 491, 491/1, 492/2 and whole of one third share of the land 9.51 acre which are 26 in numbers. By a separate registered sale deed executed on 24.12.1974 the land was transferred in the name of present petitioners which bears the signature of Param and Ram Lal as witnesses who initially sold this land to Manohar Lal in the year 1966 and since then they are in possession over the same. It is also revealed from the writ petition that Nathua, Ram Lal and Pram were tenants of Damodar Das in the house and after the execution of the sale deed they became tenants of the petitioners. On account of non payment of rent they were dispossessed from the land after decree of their eviction was passed by the competent court on 6.5.1976 in J.S.C. Suit No. 163 of 1975 filed by the petitioners. Thereafter, Original Suit bearing O.S. No. 69 of 1981 for declaration with a prayer for mandatory injunction was filed before the Civil Judge, Jhansi by the Nathua, Ram Lal and Param against the petitioners Manohar Lal and Damodar Das and others for seeking the cancellation of the sale deeds executed on 5.11.1966 and 24.12.1974.The said suit was tried after framing as many as nine issues and was dismissed by the learned Trial Court vide judgement and decree dated 2.8.1984. Learned Trial Court after hearing the parties held as under:-
(i) That the plaintiffs in the suit was Bhumidhar which right they had acquired after depositing ten times revenue in lump sum.
(ii) That the contention of the plaintiffs that it was a mortgage deed executed in lieu of having taken loan from erstwhile vendee Sri Mohan Lal is not correct and held that the sale deed was executed on 5.11.1966. A categorical finding was recorded that It was not a mortgage deed.
(iii) That the plea of plaintiffs that they were sirdars and did not have right to affect the transfer of the property in question was not factually correct. Finding recorded by the learned Trial Court that before execution of the sale deed they had acquired the status of Bhumidhar. This finding was recorded on the basis of depositing of ten times revenue which conferred them the right to affect the transfer of the land.
(iv) Prayer of the plaintiffs that the Civil Court has no jurisdiction to entertain a suit as it was specifically barred by Section 331 of the UPZA & LR Act, was rejected on the ground that the issue involved in the present suit was to examine the validity of the sale deeds as such Civil Court alone has jurisdiction to entertain such suit.
Against the judgement and order dated 2.8.1984, a Civil Appeal was preferred by Nathua, Ram Lal and Param against the petitioners in the Court of District Judge, Jhansi, which stood dismissed vide order dated 8.9.1986 passed by Ist Addl. District Judge, Jhansi. Thereafter, a review petition was filed against the said judgement in which it was contended that the the application of the appellants plaintiffs regarding treating them to be Bhumidhar was rejected vide order dated 27.1.1967 which came to the knowledge of the appellants/plaintiffs after passing of the appellate order. It is said that since the document was not available at the time of dismissal of the Civil Appeal it be taken on record and accordingly the judgement be reviewed. This plea was rejected on the ground that there was a clear recital in the sale deed that the plaintiffs/appellants were Bhumidhars. Second appeal bearing Second Appeal No. 356 of 1987 against the judgement and order dated 2.8.1984 passed in Original Suit No. 69 of 1981 and the Judgement and Decree dated 8.9.1986 passed in Civil Appeal No. 198 of 1985 was also filed which also stood dismissed vide order dated 12.12.1991 by this Court.
After having failed to have the sale deeds cancelled, a Civil Suit under Section 229 B of the UPZA & LR Act bearing Suit No.25 of 1995-96 was filed by the private respondents before the revenue Court in respect of the same land which was subject matter of dispute in Original Suit No. 69 of 1981 against the petitioners. The main contention raised in this Suit was that the ancestors of the private respondents had not acquired the Bhumidhari rights but were registered as 'Sirdar' with non transferable rights. Any sale deed executed by said siradars was not permissible under the Act and consequently any transaction effected thereby would be void ab-intio. Objections were raised and after examining the pleading of the parties Revenue Court framed issues which are as under:
(a) whether the ancestors of the private respondents herein had executed only a mortgage deed on account of loan taken from the erstwhile vendee Mohan Lal and not a sale deed as alleged;
(b) whether the vendors were sirdar of the land in question;
(c) whether the suit was barred by Section 34 of the Specific Relief Act;
(d) whether the suit was hit by principle of res-judicata or not On consideration of the matter revenue court of the first instance held that the private respondents plaintiffs in the suit were all along in possession of the property which clearly indicates that there was no sale deed executed in favour of the present petitioners but only a mortgage deed. It is further held that the land in question was sirdari land as such no transfer can be effected under the UPZA & LR Act by sirdar as the rights conferred are non transferable. So far as the question of maintainability on the issue of res-judicata of the suit was concerned it was held that the relief claimed in the present suit was never an issue involved in the previous suit decided by the Court. Thus, on the aforesaid findings the Court decreed the suit vide the judgement and decree dated 4.9.2004. An appeal being Appeal No. 73 of 2003-04 against this order was preferred by the petitioners which stood dismissed vide order dated 22.6.2007 passed by Addl. Commissioner. Second appeal being Second Appeal No. 95 of 2006-07 was filed by the petitioners before the Board of Revenue which also stands dismissed vide judgement and order dated 6.8.2007. It is under these circumstances the present writ petition has been filed.
Heard learned counsel for the parties and perused the material on record.
Learned counsel for the petitioners has contended that the decree dated 2.8.1984 passed in Original Suit No. 69 of 1991 confirmed in the First Appeal No. 198 of 1995 by the first appellate Court and by this High Court in Second Appeal will operate as res-judicata in subsequent suit under Section 229-B of the UPZA & LR Act between the same parties and for the same relief. It is further contended that the revenue court has no jurisdiction to upset the findings of the Civil Court and take a contrary view that the sale deeds executed on 5.11.1966 and 24.12.1974 are not sale deeds but mortgage deed.
It is further contended by learned counsel for the petitioners that the revenue court lacks jurisdiction to annul the sale deeds. No relief could have been given to the respondents by the revenue court. It could not have directed the deletion of the names of petitioners from the property in dispute recorded in the revenue records to be substituted by the name of the private respondents as joint tenure holders while the sale deeds executed remained operative in law.
On the other hand stand of the respondents is that the relief claimed in the Civil Suit was in the nature of injunction whereas the suit decreed by the revenue court was only in respect of seeking declaration as co-tenure holders of land in dispute. Since no bhumidhari rights were conferred on the erstwhile predecessor of the private respondents any transfer of the said land by sirdars was impermissible under the UPZA & LR Act, consequently any transaction based upon such would be void ab-initio.
Learned counsel for the private respondents-plaintiffs contended that the Civil Courts have acted Illegally and with material irregularity in deciding the aforesaid issues in favour of the petitioners-defendants. It was urged that the civil court had no jurisdiction to entertain and decide the aforesaid suit, that the suit was barred by Section 331 of the U.P.Z.A. and L.R. Act.
On the other hand, learned counsel appearing for the petitioners-defendants supported the validity of the judgement and order passed by the Court below. It was urged that the civil court had jurisdiction to entertain and decide the suit with respect to the property in dispute, the provisions of Section 331 of the U.P.Z.A. and L.R. Act had no application to the facts of the present case.
Section 9 of the C.P.C. provides that the civil courts are to try all civil suits unless they are specifically barred by any statute. Said section provides as under :
(Only relevant quoted) "9. Courts to try all civil suits unless barred.--The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or implledly barred."
Admittedly, the suit was for declaration and injunction. Therefore, the civil court has got jurisdiction to entertain the said suit. However, section, itself postulates bar of jurisdiction of civil court by competent Legislature with respect to particular class of suit of civil nature. It is open to the State Legislature to bar jurisdiction of civil court with respect to a particular class of suit of civil nature acting within the four corners of the Constitution.
It is well-settled in law that the jurisdiction of a civil court cannot be presumed to be ousted unless the suit as brought is specifically barred. Where the jurisdiction, which is vested in civil court, is intended to be ousted, there must be a clear cut statutory provision for the same in the relevant Act. In the present case, reliance has been placed by the learned counsel for the respondents upon Section 331 of the U.P.Z.A. and L.R. Act, in support of their contention that the civil court had no jurisdiction to entertain the suit. It has been urged that a portion of the property in dispute was agricultural land, therefore, in respect of the said land, suit could be filed in the revenue court and the civil court, in view of the aforesaid provision, had no jurisdiction to entertain the suit.
The Court below after perusing the record of the case, came to the conclusion that the property in dispute was houses and Abadi land. The said finding is based on relevant evidence on the record and does not suffer from any jurisdictional error. The Court below has rightly held that the civil court had the jurisdiction to entertain and decide the suit and that the suit was not barred by Section 331 of the U.P.Z.A. and L.R. Act. The Civil Courts were right in holding that the suit was not barred by Section 331 of the U.P.Z.A. and L.R. Act and that the civil court had the jurisdiction to entertain and decide the suit.
The full Bench of this Court, in the judgment reported in Ram Padarth Vs IInd Addl. District Judge, Sultanpur, 1989 RD 21, while considering the jurisdiction of the Civil/Revenue Court in respect of the void sale deed, has Specifically held as follows:-
"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."
The decision of Full Bench in the case of Ram Padarth (supra), was affirmed by the Supreme Court in the case of Bismillah v. Janeshwar Prasad, AIR 1990 SC 540. Reference may also be had to the judgement of Hon'ble Supreme Court reported in 2001(92) RD 241 Sri Ram v. Additional District Judge, wherein it has been held as follows:
"On the nullity of the documents we are of the opinion that where a recorded tenure holder having prima facie title and in possess, files a suit in the Civil Court for cancellation of sale deed having obtained by some fraud or impersonation cannot be permitted to file a suit for cancellation in Revenue Court reasons have been in said case the prima facie title of the tenure holder is not in question."
Suit for cancellation of a void document will generally lies in the Civil Court and party cannot be deprived of his right for getting this relief under the law except when a declaration of title or status of a tenure holder is necessarily involved where relief of cancellation of sale deed is surplus.
Learned counsel for the respondents-plaintiffs submits that in view of Section 164 of the U.P.Z.A. & L.R. Act the petitioners cannot claim the benefit, inasmuch as, the original vendors were themselves recorded as Sirdars and were not Bhumidhars.
For the sake of convenience Section 164 of the UPZA & LR Act is quoted below:-
164. Transfer with possession by a bhumidhar to be deemed a sale.--"Any transfer of any holding or part thereof made by a bhumidhar by which possession is transferred to the transferee for the purpose of securing any payment of money advanced or to be advanced by way of loan, and existing or future debt or the performance of an engagement which may give rise to a pecuniary liability, shall, notwithstanding anything contained in the document of transfer or any law for the time being in force, be deemed at all times and for all purposes to be a sale to the transferee and to every such sale the provisions of Sections 154 and 163 shall apply.
The provisions of Section 164 of the U.P.Z.A. & L.R. Act clearly provide that the transaction of a mortgage will amount to sale only if has been entered into by a Bhumidhar. The said provision is not for any such transaction entered into by a Sirdar. The recorded tenure holders were not Bhumidhars as alleged by the respondents-plaintiffs and they were Sirdars, whereas the learned court below has held that the sirdars have acquired the bhumidhari rights after depositing ten times of the revenue in the revenue department. Apart from this, a mortgage deed if it relates to a transaction of above Rs. 100/- has to be registered keeping in view the provisions of Section 58 of the Transfer of Property Act and the relevant provisions of the Indian Registration Act. There is no evidence as to whether the said mortgage deed was registered or unregistered. The issue relating to the applicability of Section 164 is dependant on conditions being fulfilled as enumerated hereinafter read with Section 155 of the U.P.Z.A. & L.R. Act. The following conditions must be fulfilled:
"(a) There must be a 'transfer' of any holding or part thereof, (within the meaning of Transfer of Property Act).
(b) Such transfer must have been made by a bhumidhar (who should be a bhumidhar with transferable rights). The provision does not apply to a bhumidhar with non-transferable rights.
(c) The transaction must result in transfer of possession to the transferee.
(d) The transfer of possession must be for securing any payment of money advanced (or to be advanced) by way of loan etc."
In this view of the matter, any claim on the basis of the mortgage deeds is absolutely erroneous as it is only a Bhumidhar who could have mortgaged the property and not Sirdars.
On the principle of res-judicata, it be seen that the Civil Court has recorded in its order that the documents executed by the ancestors of the private respondents with one Mohan Lal was sale deeds. Revenue Court has recorded the finding contrary to that by stating that it was a mortgage deed. Ex-facie, revenue court has no jurisdiction to over set the findings of the civil Court as the principle of res-judicata would apply in the present case.
As Already stated herein supra that the findings of the revenue court even on facts cannot sustain as Section 154 of the UPZA & LR Act clearly provides that no sirdars shall have right to mortgage any land belonging to him whether the possession of the mortgaged land is transferred or agreed to be transferred in future such transfer would be barred by Section 166 of the UPZA & LR Act. On the contrary any transfer of any holding or part thereof made by a bhumidhar by which possession is transferred to the transferee for the purpose of securing any payment of money advanced or to be advanced by way of loan, and existing or future debt or the performance of an engagement which may give rise to a pecuniary liability, shall, notwithstanding anything contained in the document of transfer or any law for the time being in force, be deemed at all times and for all purposes to be a sale to the transferee. Revenue courts have erred in concluding that the transfer effected in favour of Mohan Lal was by way of Mortgage.
On the principle of res judicata, Courts have consistently held that general doctrine of res-judicata de-horse section will be applied in cases in which neither of the two proceedings or only one of them is civil suit. It contemplates that if earlier proceedings were civil suit in nature and subsequent proceedings are before the revenue court general principle of doctrine of res judicata would still apply in this behalf. A Division Bench of this Court in Jodhan vs Board Of Revenue And Ors reported in AIR 1967 Allahabad 442 has held as under:-
"Applying the rule enunciated above to the facts of the present case, we find that Section 11 C. p. C. is not applicable and that the case is governed by the general doctrine of res judicata. The decision of 11-1-1960 was no doubt gives by a Civil Court in a civil suit, but the subsequent decision of 16-8-1960 was by a Revenue Court in a revenue suit. Revenue courts are courts of special limited jurisdiction, belonging to an entirely separate hierarchy and Courts are courts of special limited jurisdiction, cannot be equated with Civil Courts; and only made applicable to revenue suits (vide Chapter IX of the U. P. Land Revenue) Act and Appendix I to the Revenue Court Manual. If, therefore, Section 11 C. p. C. is concerned solely with the effect of decisions in a civil suit on a subsequent civil suit, it cannot govern the effect of the decision in a civil suit on a subsequent revenue court decision.
The Board of Revenue was thus wrong in holding that the Munsif's decision of 11-1-1 1960 could not operate as res judicata in the subsequently decided revenue suit on the ground that the requirement of Section 11 C. P. C., had not been satisfied. In the circumstances of this case the general principles of res judicata would apply and the Munsif's decision would bar the defence taken by Ramdhani in the revenue suit, despite the fact that the Munsif had no jurisdiction to try the latter suit."
After holding that the principle of res judicata would apply, it be seeds that the civil Court in its judgement has held that the sale deeds are valid. Categorical findings were recorded by the Civil Courts that the instrument was sale deed and not mortgage. Revenue Courts with respect to the same property have held that it was a mortgage deed not a sale deed. Thus, in the present case, principles of res-judicata would squarely apply. Findings were recorded by the Revenue Courts that the principles of res-judicata would not apply on the premise that application for recall was pending before the Second Appellate Court against the order of the Civil Court. It be noted that the said recall application for recalling the order dated 12.12.1991 passed in Second Appeal No. 536 of 1987 was dismissed on 3.4.2003. Thus, it is clearly visible that no proceedings in respect of earlier civil suit was pending at the time the judgement was passed. Even if, it is assumed that some review application is pending does not of necessity reopen questions already decided between the parties. Mere filing of an application will not reopen a suit. Mere admission of a review application does not reopen the second appeal or the suit because the admission of a review application only means that the Court is tentatively satisfied about the merits of the case, but still after hearing both the parties, the Court, may again reaffirm its earlier judgement and reject the review application. It is only when the review application has been allowed that the second appeal or the suit is reopened and then it can be said that the judgement is put in jeopardy. Both the Civil and appellate revenue courts have misread this issue. Admittedly, there was no second appeal pending at the time the judgement was passed and the issues were settled. Revenue Courts have wrongly rejected the plea of the respondents on specious premise that a review application was pending. On this count also the judgement of both the courts below is required to be set aside.
Admittedly, respondents are not in possession of the property as they stand dispossessed by virtue of the order of the Civil Court. Mere declaration would in itself not accrue any benefits to the respondents. The property in dispute stands transferred by sale deeds and the petitioners are in possession in view of the said sale deeds. Consequently, mutation has been attested on the basis of the title. Findings of the revenue Courts in directing the deletion of the name of the petitioners by itself does not render the sale deeds executed in their favour null and void. Admittedly, the power of Assistant Collector under the UPZA & LR Act is to declare any transfer to be void but it does not have a jurisdiction to adjudicate the cancellation of the sale deeds. It is trite law that the revenue courts have no jurisdiction to adjudicate upon the legality of the sale deeds. It is sole domain of the civil Court to examine the validity of sale deeds. The effect of the order passed passed by the revenue court would be a paper decree as admittedly respondents is out of possession.
In the result, the writ petition is allowed. The orders dated 6.8.2007 passed by the Board of Revenue in Second Appeal No. 95 of 2006-07 and the judgement dated 22.6.2007 passed by Addl. Commissioner (Admin) in Appeal No. 73 of 2003-04 and the judgement dated 4.9.2004 passed by Addl. Sub Divisional Officer, Jhansi in Suit No. 25 of 1995-96 are hereby quashed.
Order Dated :- 02/03/2012 RKS/