Court No. - 16
Case :- SECOND APPEAL No. - 153 of 2019 Appellant :- Shushil Kumar And 2 Others Respondent :- Harpal And 4 Others Counsel for Appellant :- Kaushal Kishor
Hon'ble Rajiv Joshi,J.
Heard Sri Kaushal Kishor, learned counsel for the appellants.
The present second appeal under Section 100 C.P.C. has been filed against the judgment and decree dated 29.10.2018 whereby Civil Appeal No. 80 of 2017 filed by the defendant-respondent no. 2 to 4, was allowed and decree passed by the trial court dated 30.11.2017 in Original Suit No. 87 of 2001 was set aside.
The facts as reflect from the record are that the plaintiff- appellants filed a suit for cancellation of sale-deed dated 7.4.1998 which was executed by the defendant no.1 in favour of the defendant nos. 2,3 and 4 in respect of the land of Plot no. 1357 having area 0.332 hectares situate in Village-Mau, Tehsil Karvi, District Chitrakoot and also sought injunction to the effect that the defendants be restrained from interfering with the peaceful possession of the plaintiff.
The suit was filed on the ground that the plaintiff was the sole bhumidhar with transferable right of the land in suit and is also in possession. The defendants have no concern with the disputed property but the defendant no.1 in collusion with the officials of the revenue department got recorded his name in the revenue records from 1381 to 1383 fasli onwards and as a result thereof the defendant no.1 transferred the disputed property vide registered sale-deed dated 7.4.1998 in respect of the land in suit in favour of the defendant nos. 2,3 and 4.
The defendant-respondents contested the matter and filed their written statement denying in the plaint allegations. It was specifically stated that the defendant no.1 is the recorded bhumidhar and has got right to transfer the property to the defendant nos. 2 to 4 by a registered instrument and in such circumstances the suit is liable to be dismissed. Both the parties in respect of their claims filed documentary evidence and adduced oral evidence.
The trial court decreed the suit of the plaintiff and cancelled the registered sale-deed dated 7.4.1998 executed by the defendant no. 1 in favour of the defendant nos. 2 to 4 and restrained the defendants from interfering with the peaceful possession of the plaintiff over the land in suit. The decree passed by the trial court was reversed by the lower appellate court and a specific finding has been recorded that the plaintiff is not the recorded tenure holder and the name of defendant no.1 was recorded in the revenue record who transferred the land in favour of the defendant no.s 2 to 4 vide registered instrument dated 7.4.1998 for a total sale of consideration of Rs. 40,000/-
Contention of learned counsel for the appellant is that the name of the defendant no.1 has wrongly been recorded in the revenue records without there being any order of the Court and the same was done in collusion with the officials of revenue department and therefore, he has got no right to execute the sale-deed and transfer the land in question.
It is further contended by the counsel for the appellants that the plaintiffs have the only remedy to file suit for cancellation of the sale deed as the revenue court has no jurisdiction to cancel any instrument.
I have considered the arguments so raised by the counsel for the appellants and perused the record.
From the record, it is apparent that the defendant no.1 is recorded bhumidhar and from the Khatauni of 1378 to 1380 fasli, (Paper no. 11 Ga-1), it is clear that the name of defendant no.1 was recorded in the revenue record. Since, the defendant no. 1 was recorded as Bhumidhar, the remedy available to the plaintiff-appellants was to approach the revenue Court for correction of entries in the revenue record, if the same is forged and without any specific order of the competent authority or to file suit for declaration under Section 229-B of the U.P. Z.A.& L.R. Act. The suit for injunction is specifically barred by Section 41 (h) of the Specific Relief Act and the plaintiff- appellants have an alternative remedy to approach the revenue court for declaration of their rights.
So far as the contention of learned counsel for the appellants that the revenue court has no jurisdiction to cancel the registered instrument and the suit of the plaintiff is maintainable before the civil court is concerned, in this regard, it is stated that if the plaintiff-appellants file a suit for declaration of their rights before the revenue court and if it is found therein that the plaintiff is the bhumidhar, then the registered sale-deed executed by the defendant no.1 in favour of the defendant no.2 to 4 would be rendered void and revenue court has jurisdiction to ignore the void instrument.
No illegality or infirmity has been pointed out by the learned counsel for the appellant in the judgment and order passed by the lower appellate court.
The proposed substantial questions of law framed by the appellants in the appeal do not involve any legal issue. The appeal is devoid of merit, and is accordingly dismissed.
Order Date :- 25.2.2019/Akbar