By this writ petition, the petitioners are challenging the order dated 22.2.2000 passed by the respondent no. 1, District Judge, Siddharth Nagar.
The facts of the case, in brief, are that one Masammat Aisha, mother of the petitioners filed a suit for cancellation of the sale deed which was alleged to have been executed by Massamat Aisha in favour of respondent no. 2-Smt. Badrunnisha. The case of Smt. Massamat Aisha was that she was an illiterate lady and was the sole owner of the disputed property but by fraud practised upon her, the husband of respondent no. 2 got the sale deed executed in favour of his wife Smt. Badrunnisha by showing himself as the witness in the sale deed. The contention of Massamat Aisha was that in the sale deed there was no consideration mentioned and it was obtained by fraud. She came to know of this fraud on 19.9.1986 and then she filed the suit no. 637 of 1986 for cancellation of the said sale deed before the civil court.
Before the civil court, the respondent no. 2 filed her objections that the suit was barred by the provisions of section 49 of the U.P. Consolidation of Holdings Act, 1953 and further objection of the respondent no. 2 was that her name had been recorded in the revenue records prior to the filing of the suit and, therefore, the suit was not maintainable before the civil court and if at all, only the Revenue Court had jurisdiction. However, the respondent no. 2 insisted that the sale deed dated 13.1.1977 was a genuine document and same cannot be questioned.
The trial court after hearing the parties, by its order dated 17.4.1998 held that the suit was maintainable before the civil court and was not barred by the provisions of Section 49 of the U.P. Consolidation of Holdings Act. The order dated 17.4.1998 was challenged by the respondent no. 2 in a civil revision no. 31 of 1998 and the court below by its impugned order dated 22.2.2000 has held that since the name of the respondent no. 2 was already mentioned in the revenue records and in any view of the matter the civil court had no jurisdiction in view of the specific bar created by Section 49 of the U.P. Consolidation of Holdings Act. So far as the various case law cited before the court below, it was held that all those cases related to the objections arising under the U.P. Zamindari Abolition and Land Reforms Act, 1950 wherein the objection was that the proceedings before the civil court were not maintainable in view of the provisions of Section 331 of the Act of 1950 and since this matter arises out of the proceedings under the provisions of U.P. Consolidation of Holdings Act, therefore, the case law cited by the petitioner-respondents before the revisional court had no application to the facts of the case and the civil court therefore, had no jurisdiction to entertain the suit.
I have heard Shri Jokhan Prasad, learned counsel for the petitioner. This matter is listed in the cause list as peremptory. No one appears on behalf of the respondent no. 2. Learned standing counsel appears for the respondent no. 1.
The first submission of the learned counsel for the petitioner is that since the name of Smt. Massamat Aisha stood recorded in the revenue records even prior to the filing of the civil suit, therefore, it was not necessary for her to approach the civil court for declaration of her rights and filing a suit under section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950 and the only remedy available for her is to file a civil suit for cancellation of the sale deed on the ground that the sale deed had been obtained by fraud. In this regard he has placed reliance upon a decision of the Supreme Court reported in 2001 ACJ 497 Shri Ram and another Vs. I Addl. District Judge and others wherein the Supreme Court while considering the Full Bench decision of Allahabad High Court reported in 1989 ACJ 1 Ram Padarath V. Second ADJ, Sultanpur held that where the name of the plaintiff already stood recorded in the revenue records and there was necessity for cancellation of a sale deed on the ground that it was obtained by fraud it was not necessary for the plaintiff to approach the revenue authority by filing a suit for declaration since the land already stood recorded in his name. However in cases where the land was never recorded in the name of the plaintiff and yet the plaintiff sought to challenge the sale deed by filing a suit for declaration it is only in these circumstances that he would have to approach the revenue court. Relevant paragraph 7 of the judgment of the Supreme Court reads as under:
"7. On analysis of the decisions cited above, we are of the opinion that 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 next decision cited by the learned counsel for the petitioner is reported in 2008 ACJ 1862 Smt. Kalawati and another Vs. A.D.J. Shahjahanpur and another, wherein the learned Single Judge of this Court has held that for the purposes of cancellation of a void document such as a fraudulent sale deed or a will deed, the appropriate court is the civil court. The relevant paragraphs 8, 9 and 10 of the judgment reads as under:
"8. In the above Section, the word 'void' has been used before the word 'voidable'. Under the aforesaid Section, there is no substantial difference between declaring an instrument as void or cancelling the same. By virtue of this Section, not only cancellation of voidable document is permissible but cancellation of void document is also permissible.
9. Accordingly, it cannot be said that suit for cancellation of void document is not maintainable before the Civil Court as its cancellation is not necessary and a mere declaration, which may be granted by revenue Court, is sufficient.
10.Accordingly, writ petition is allowed. Impugned order passed by revisional Court is set aside. It is held that suit is maintainable before the civil court."
From a perusal of the impugned order dated 22.2.2000 it will be seen that the court has held that the case law cited by the petitioner related to the proceedings under the U.P. Zamindari Abolition and Land Reforms Act, 1950 particularly the bar created by the provisions of Section 331 of the said Act whereas the case in hand related to an objection with regard to the maintainability of the civil suit in view of the bar created by section 49 of the U.P. Consolidation of Holdings Act and, therefore, the case law referred to in the impugned judgment had no application in the case of the petitioner. One of the cases mentioned in the impugned order is of Smt. Chhanga Vs. I A.D.J. Jaunpur.
Learned counsel for the petitioner has placed before this Court the said judgment which is reported in 1998 (89) RD 647 Smt. Chhanga and another Vs. Ist Addl. District Judge, Jaunpur. The case of Smt. Chhanga is a case which arises under the U.P. Consolidation of Holdings Act wherein the objection was raised not only with regard to the maintainability of section 49 of the U.P. Consolidation of Holdings Act but also the maintainability under section 331 of the U.P. Zamindari Abolition and Land Reforms Act. The Court relying upon the Full Bench decision of the Allahabad High Court in the case of Ram Padarath (supra) has held that the suit filed before the civil court for cancellation of the sale deed on the ground of the same being void was maintainable before the civil court. The relevant paragraphs 10, 13 and 14 reads as under:
"10. The decision in the case of Smt. Dulari Devi (supra) was a decision in which the question as to the cognizance of the suit by the consolidation authorities under the U.P. Consolidation of Holdings Act, 1954 was under consideration in relation to Section 49 thereof which barred the jurisdiction of the civil court. There it was held that where a deed is void the same cannot be ignored by the consolidation authorities and, therefore, it can be within the jurisdiction of the consolidation authorities to decide the dispute and as such the said suit in respect whereof void deed was involved was hit by Section 49 of the U.P. Consolidation of Holdings Act. Under Section 49 of the U.P. Consolidation of Holdings Act the suit which could be or ought to be brought under the said provisions of the Act were hit by Section 49 as being barred in the civil court. The provisions of sub-section 49 is little different from that of Section 331 though in substance both are almost same. But the distinguishing feature in both Section 49 of the U.P. Consolidation of Holdings Act and Section 331 of U.P. Z.A. And L.R. Act is that in both cases the court is being brought within the purview of U.P. Consolidation of Holdings Act or under the U.P. Z.A. And L.R. Acts for a relief which could be had from the authority mentioned in both the Acts were prohibited from being proceeded with by a civil court. Thus in one aspect both the sections were common. Now as I have observed above that the proceedings involved in this case does not come within the purview of Section 331 and, therefore, the said provision of Section 331 cannot be attracted in the present case and the decision in the case of Smt. Dulari Devi (supra), therefore, cannot be attracted. In the said case it has not been laid down that wherever a void deed is involved, the suit is to be preferred before the revenue authority irrespective of the satisfaction of the conditions contained in Section 49 vis a vis Section 331 if that can be stretched to such an extent. The said decision can be distinguished only on the facts that the same relates to Section 49 of the U.P. Consolidation of Holdings Act but since there is something common in the two sections, in my view the distinguishing feature is the question as to whether the relief could be had within the ambit of special statutes being the revenue law concerning this case. As I have found that it cannot be had within the ambit of any provisions contemplated within the revenue law, therefore, that decision does not help Mr. P. Chandra, learned counsel for the petitioner.
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13. I am unable to persuade myself to agree with the contention of Mr. Prem Chandra in the facts and circumstances of the case, inasmuch as in the present case admittedly the name of the defendant was recorded as tenure holder only by virtue of the alleged sale deed, therefore, for the purpose of seeking cancellation of the sale deed prima facie the plaintiff had a title in respect of the property which was recorded in her name prior to the alleged execution of the sale deed. If the name of the defendant has been recorded subsequent to the alleged execution of the sale deed that will not turn the table to dispel the ratio decided by the Full Bench in the present case. Then again the relief that might be claimed by the plaintiff would be only a consequential relief, if she succeeds in getting the sale deed cancelled. However, she has not asked for any such relief. If relief in the suit is granted it would not necessarily change any status or right between the parties. In case she fails in the suit then also no status or right under the revenue authority is required to be adjudicated upon. Therefore, the ration decided by the Full Bench as referred to in the case of Ram Padarth (supra) applies in the present case with full force. Same view has been taken by this court following the decision in the case of Ram Padarth (supra) by a learned Single Judge in the case of Dwarika Singh Vs. The District Judge, Jaunpur and others. Similar view was taken in the decision in the case of Sadaruddin and others V. District Judge, Allahabad and other that too by me relying on the decision in the case of Ram Padarth (supra). The decision in the case of Ram Padarth (supra) was also followed in the case of Radhey Shyam V. District Judge, Gorakhpur and others. The decision of Full Bench in the case of Ram Padarth (supra) was relied upon by the Supreme Court in the case of Bismillah Vs. Janeshwar Prasad.
14. In view of the discussion made above I have not been able to agree with the contention of Mr. Prem Chandra who argued with great vehemence. On the other hand I am in agreement with the decision given by the learned Addl. District Judge Ist Court Jaunpur on 20.3.1991 in Civil Revision No. 205 of 1989 and hold that the present case is maintainable before a civil court."
Thus in view of the above legal preposition settled by the Full Bench of the Allahabad High Court in the case of Ram Padarath (supra) which has been followed by the various other court and has also been affirmed by the Supreme Court in the case of Shri Ram (supra), the suit filed by Masammat Aisha, mother of the petitioners for cancellation of the sale deed before the civil court seeking the relief of cancellation of the sale deed on the ground that the same was obtained by fraud by the respondent no. 2 was maintainable before the civil court and the civil court was fully competent to adjudicate the matter.
Learned counsel for the petitioner has further raised an objection that during the pendency of the suit proceedings which was earlier filed in the civil court, Siddharth Nagar, the District Siddharth Nagar was bifurcated and a new district Basti was created and Tehsil Bhanpur wherein the land in dispute is situated fell within the jurisdiction of the civil court, Basti and, therefore after the creation of the new district of Basti and the allocation of Bhanpur Tehsil to district Basti, all the proceedings pending before the judgeship of Siddharth Nagar would now be cognizable by the judgeship of Basti.
Be that as it may, it will be open for the petitioner to raise this objection before the concerned court which shall consider the same and if the court is satisfied that the matter is cognizable by the civil court Basti it will immediately transfer the suit no. 637 of 1986 to the appropriate court in the district court, Basti.
For the aforesaid reasons the writ petition is allowed and the impugned order dated 22.2.2000 is quashed.
There shall be no order as to cost.
Order Date :- 22.11.2012 o.k.