Plaintiff Smt. Chankali instituted a suit for cancellation of the sale deed dated 7.1.1983 and for a decree of permanent injunction in respect of the land covered by the aforesaid sale deed.
According to the plaintiff, she is the only daughter of Ram Ashish who expired early morning at 4 A.M. on 7.1.1983. The said Ram Ashish during his life time, on 11.9.1979 had executed a registered Will bequeathing his moveable and immoveable property to her. On his death, she applied for mutation of her name on the basis of the aforesaid Will and the Naib Tehsildar vide order dated 5.5.1983 directed for recording her name.
The defendants manipulated a sale deed dated 7.1.1983 alleged to have been executed by the aforesaid Ram Ashish. The sale deed was registered on 8.4.1983 and within five days of its registration, on 13.4.1983 an order was obtained by defendants for mutation of their names. In pursuance to the said order, the defendants names were entered in the revenue record on 25.5.1983. Plaintiff acquired knowledge of the said order, applied for its recall and the same was recalled vide order dated 2.9.1984. The above order was challenged by the plaintiff in appeal. It was set aside on 16.3.1985 and the matter was remanded. The defendants challenged aforesaid order in revision which was ultimately dismissed on 16.1.2004.
In short, the mutation order dated 13.4.1983 passed in favour of the defendants stood recalled vide order dated 2.9.1984 against which the application of the defendants for recalling the same is pending pursuant to the order of remand dated 16.3.1985 which has been affirmed in revision.
The plaintiff in the above back ground instituted the suit for cancellation of the sale deed dated 7.1.1983 registered on 8.1.1983 allegedly executed by Ram Ashish in favour of the defendants and the main ground of challenge is that it is a fraudulent document as it was not possible for Ram Ashish to execute any sale deed on 7.1.1983 as he died very early in the morning at 4 A.M. on the said date. In the suit one of the issues raised was as to whether the suit was barred by Section 331 of the U.P. Zamindari Abolition and Land Reforms Act. The Court below held that it is not barred and is cognizable by civil court. The suit was decreed by the court of first instance by judgment and order dated 24.11.2008.
Aggrieved by the decree so passed by the lower court, the defendants preferred civil appeal no.184 of 2008 Doodhnath Mani and others Vs. Smt. Chankali. In the appeal several points for determination were formulated but the lower appellate court vide order dated 18th August, 2010 allowed the appeal and after setting aside the decree of the lower court dismissed the suit of the plaintiff holding that the civil court lacks jurisdiction and the suit is not maintainable in view of the bar contained in Section331 of the U.P. Zamindari Abolition and Land Reforms Act. No other point was discussed.
The aforesaid judgment, order and decree of the lower appellate court dated 18th August, 2010 has been challenged by the plaintiff in this second appeal.
I have heard Sri R.C.Singh, learned counsel for the plaintiff/appellant and Sri R.B.Tripathi, learned counsel for the defendant/respondents who agreed to address the Court on merits for final disposal of the appeal at the admission stage itself.
Counsel for the appellant has argued that the suit for cancellation of sale deed which is based on fraud is not barred by Section 331 of the U.P. Zamindari Abolition and Land Reforms Act at the instance of the plaintiff whose name has been ordered to be mutated against the land in dispute.
The submission of Sri Tripathi on the other hand, is that the plaintiff is not the recorded tenure holder of the land in dispute and, therefore, merely on the basis of order of mutation, she cannot maintain the suit before the civil court whereas the name of the defendants has been recorded as per Amaldaramad dated 26.5.1983.
On the submission of the parties, the substantial question which arises for determination is, whether the plaintiff cannot maintain a suit for cancellation of the sale deed in the civil court unless her name is recorded in the revenue records even though there happens to be an order of the competent authority directing her name to be recorded.
Law is setted that Section 9 C.P.C. confers jurisdiction upon the civil court to determine all disputes of civil nature unless the same are barred under statute either expressly or by necessary implication. It is equally settled that bar of jurisdiction of civil court is not to be readily inferred and that a provision of law ousting the jurisdiction of the civil court must be strictly construed. Normally, the court would lean in favour of the construction, which would upheld retention of the jurisdiction of the civil court and the burden of proof of ouster of jurisdiction of civil court is always upon the party who asserts so.
Section 31 of the Specific Relief Act stipulates and confers jurisdiction upon the Civil Court to take cognizance of the suit for cancellation of a void or voidable document. A void document is one which is illegal from the very inception and can be ignored whereas a voidable document is one which remains in force unless avoided at the option of the party. It is well recognised that a voidable document will not come to an end unless it is avoided by a decree of the court, whereas it is not mandatory to institute a suit for cancellation or declaration of a void document as such, as the plea that the document is void can be raised and set up at any time whenever such an document is sought to be enforced or impleaded. However, in view of Section 31 of the Specific Relief Act there is no harm in even instituting a suit for cancellation of a void document.
A conjoint reading of Section 9 C.P.C. and Section 31 of the Specific Relief Act leads to an in avoidable conclusion that a suit for cancellation of a void or voidable document is of a civil nature which is ordinarily cognizable by a civil court, unless its jurisdiction is expressly or impliedly stands ousted under a statute.
Section 331 of the U.P. Zamindari Abolition and Land Reforms Act (hereinafter for short 'Act') reads as under:
"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 or 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 (i), 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."
The aforesaid provision provides that a suit based on a cause of action in respect of which relief could be obtained by means of any suit, application or proceedings as mentioned in column 3 of Schedule II of the Act shall only be cognizable by a court mentioned in column 4 of Schedule II of the Act and by none else.
The suit for cancellation of a sale deed does not find mention in column 3 of Schedule II of the Act and no specific revenue court for taking cognizance of a suit of such a nature has been specified.
Admittedly, the plaintiff has not sought any declaration of his rights in the land in dispute but only cancellation of a document i.e. sale deed dated 7.1.1983.
In Full Bench of this Court in the case of Ram Padarath and others Vs. Additional District Judge, Sultanpur and others 1989 AWC 290 clearly ruled that a suit for cancellation of void document will generally lie in civil court and a party cannot be deprived of his right of getting the above relief except when a declaration of right or status is also necessarily required along with relief for cancellation and that a recorded tenure holder having prima facie title in it cannot be relegated to approach the revenue court in respect of such a relief.
In the case of Smt. Bismillah Vs. Janeshwar Prasad and others 1989 All.L.J. 1335 the plaintiff being the only daughter of the deceased entitled to inherit the land of the deceased filed a suit for cancellation of the sale deed which was fraudulently manipulated to defeat her rights and for delivery of possession. The Supreme Court held that the suit is not barred under Section 331 and the Civil Court would have jurisdiction to entertain it.
The Supreme Court in the case of Shri Ram and another Vs. Ist Additional District Judge and others 2001 (1) AWC 862 : 2001(1) CRC 417 : JT 2001 (12) SC 573 : AIR 2001 (2) SC 1250 observed as under:
".........where a recorded tenure holder, having a prima facie title and in possession files suit in the civil court for cancellation of sale deed having obtained on the ground of fraud or impersonation cannot be directed to file a suit for declaration in the revenue court - reason being that in such a case, prima facie, the title of the recorded tenure holder is not under cloud. He does not require declaration of his title to the land. The position would be different where a person not being a recorded tenure holder seeks cancellation of sale deed by filing a suit in the civil court on the ground of fraud or impersonation. There necessarily the plaintiff is required to seek a declaration of his title and, therefore, he may be directed to approach the revenue court, as the sale deed being void has to be ignored for giving him relief for declaration and possession."
The legal position that emerges from the above authorities is that a civil suit for cancellation of a document in respect of an agricultural land may not be ordinarily barred provided that the person bringing that suit has a prima facie title i.e. some semblance of ownership which he may prima facie prove by entry of his name in the revenue records, which is based on possession and succession or transfer.
It is settled legal position that entries in the revenue records are not documents of title and they are meant only for fiscal purposes to enable State to collect revenue from the persons recorded. The entries in the revenue records in no way extinguishes or creates title in favour of the person(s) recorded. Nonetheless such entries have prima facie evidentary value It is also well known that mutation in the revenue records takes place on the orders of a competent authority and Amaldaramad is only a ministerial act consequent to such an order. The order of mutation regardless of actual entry proves that the competent authority is satisfied with the possession and succession/transfer of the person concern. Therefore, a person in whose favour the order of mutation exists, irrespective of the fact that such an order has been given effect to or not, is a person who can be treated to be a person having some semblance of title in the land in dispute. It is not necessary that his prima facie title would stand proved only by recording of his name.
In fact a person whose name has been directed to be recorded in revenue record is placed higher and better then the one whose name is actually recorded but with no order of the competent authority to support such entry.
In the instant case undisputedly, rightly or wrongly, the name of the plaintiff has been ordered to be recorded by the Naib Tehsildar vide order dated 5.5.1983 and the said order is not under challenge in any proceeding. The plaintiff as such, on the face of the aforesaid order, has a prima facie title to the land in dispute. On the contrary, the order of mutation passed in favour of the defendants on 13.4.1983 on the basis of which Amaldaramad has been carried out stands recalled. Therefore, the very basis of the Amaldaramad made in favour of the defendants ceases to exist and as such, said Amaldaramad automatically falls to the ground with no order to support.
In the aforesaid facts and circumstances, the plaintiff being the daughter of the deceased Ram Ashish having a registered Will in her favour whose name has been directed to be recorded as a tenure holder has made out a prima facie case of ownership of aforesaid land so as to entitle her to institute a suit for cancellation of sale deed which is said to have been obtained by fraud, specially in the circumstances that the deceased allegedly died prior to the execution of the said sale deed.
Sri Tripathi apart from the decision of the Supreme Court in the case of Shri Ram and another (supra) has placed reliance upon another Supreme Court decision reported in 2007(102) R.D 374 Kamla Prasad and others Vs. Krishna Kant Pathak and others do submit that civil court lacks jurisdiction in such matters.
I am afraid, the aforesaid authority cannot be applied to the facts and circumstances of this case. In the case before the Supreme Court the dispute was with regard to the possession of the agricultural land and the question was whether the civil court has jurisdiction to give finding on possession over the agricultural land where the name of the plaintiff was deleted from the revenue record. The Supreme Court held that the plaintiff whose name was deleted had no right to maintain a civil suit. In the present case the order for mutation of the name of the plaintiff continues to exists.
In Tara Chand and another Vs. 12th Additional District Judge, Ghaziabad and others 2010(7) ADJ 384 a single Judge of this Court for the reason that the name of the plaintiffs were not entered in the revenue records, applying the Full Bench decision in the case of Ram Padarath (supra) held that the suit for cancellation of the sale deed on their behest was not maintainable before the civil court. The facts of the said case are quite different, inasmuch as in the said case there was no order of the competent authority directing that the names of the plaintiffs be recorded in the revenue records.
In the present case, the order of the competent authority is in favour of the plaintiff and only the formality of entering the name in the revenue records remained to be completed. Thus, the aforesaid ruling does not benefit the defendants of this case.
In view of above, my answer to the substantial question of law is in favour of the plaintiff/appellant and I hold that recording of the name of the plaintiff in the revenue record being a ministerial act is not necessary. The order of the competent authority directing for the mutation of her name is sufficient and good enough to establish her prima facie title entitling her to institute suit for cancellation of the sale deed in the civil court and the same would not be barred by Section 331 of the U.P. Zamindari Abolition and Land Reforms Act.
Accordingly, appeal is allowed. The judgment, order and decree of the lower appellate court dated 18th August, 2010 passed by District Judge, Deoria in Civil Appeal No.184 of 2008 is set aside and the matter is remanded to the lower appellate court for decision on the points of determination already formulated by it, in accordance with law.
Dt: 4.10.2010 brijesh/