JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. This writ petition has been filed praying, inter-alia; quashing of the judgment and order dated 11.1.1985 (Annexure 2 to the writ petition) passed by respondent No. 2 and judgment and order dated 9.4.1985 (Annexure 3 to the writ petition) passed by respondent No. 1.
3. The case of the petitioners, in brief, is that Mst. Dhanesara (respondent No. 3) filed Suit No. 875 of 1982 in the court of Munsif Mohammadabad Gohna District Azamgarh for cancellation of sale-deed dated 5.10.1982 alleged to have been executed by some imposter. It is alleged that the plaintiff is the owner of the land in dispute after the death of her husband. She neither required any money nor she had executed any sale-deed or received any consideration. Some imposter is alleged to have executed the sale deed regarding the plots in dispute. The plaintiff came to know of the same and asked the defendants to cancel it. The defendants did not pay any heed and hence the suit was filed for cancellation of the sale-deed dated 5.10.1982. According to the plaint allegations the alleged sale-deed is a void document. The defendants denied the plaint allegations and one of the pleas taken in the written statement was that the Civil Court had no jurisdiction to decide the suit. The only plea raised before the trial court is that the suit is not cognizable by the Civil Court. The trial court framed preliminary issue regarding the jurisdiction. The trial court after hearing the counsel for the parties, vide order dated 11.1.1985 held that the suit was maintainable and the Civil Court had jurisdiction to decide the same. Against the order of the Munsif Mohammadabad Gohna dated 11.1.1985, the petitioner filed Civil Revision, No. 44 of 1985 before the District Judge, District Judge), Azamgarh heard the revision and dismissed the same by order dated 9.4.1985.
4. The contention of the Counsel for the petitioners is that in the plaint the plaintiff-respondent No. 3 has clearly alleged that she has not executed any registered sale-deed in favour of the defendants nor has received any consideration and that the sale-deed has been executed by impersonation by some imposter and according to the plaint allegations the alleged sale-deed is void document and does not require cancellation.
5. It is submitted by the petitioners that according to law the settled view is that void sale-deed regarding agricultural plot does not require cancellation and the revenue court is competent to give declaration and as such the courts below have acted illegally in holding that the Civil Court has jurisdiction to decide the suit. It is also submitted that the courts below have failed to consider the provisions of Section 331 of the U.P. Zamindari Abolition & Land Reforms Act.
6. This writ petition was filed in the year 1985. An interim order dated 19.7.1985 was granted directing that in the mean time until further orders of this Court the proceedings in Suit No. 875 of 1982 pending in the court of Munsif Mohammadabad Gohna, Azamgarh may proceed in other respects, but the hearing of arguments and delivery of judgment was to remain stayed.
7. This proceedings are stayed in the suit in pursuance of the aforesaid interim order since 1985, i.e., for more than 18 years. The only point involved in this writ petition on which this writ petition was admitted is as to whether the suit for cancellation of a void sale-deed is maintainable in Civil Court or in Revenue Court. This question has been recently considered in Jai Singh v. II Additional District Judge, Muzaffarnagar, 2001 (45) A.L.R. 579. Considering the implication of Section 331 of the U.P. Zamindari Abolition and Land Reforms Act and Section 9 of the Code of Civil Procedure, 1908 the Court held that a suit for cancellation of sale-deed by a person either recorded in revenue papers or not if comes to Civil Court, the jurisdiction of Civil Court not having been expressly barred to try such suits, the suit will be maintainable in the Civil Court. After discussing the scope of Section 331 of the U.P. Zamindari Abolition and Land Reforms Act read with Section 31 of the Specific Relief Act and the provisions of Code of Civil Procedure and considering the entire case law on the point including the Full Bench decision in Ram Padarath v. II Additional District Judge and Ors., 1989 RD 21, the Court held as under:-
"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, 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, reported in Smt. Sumitra Devi v. Addl. District Judge and Ors., to my mind have not dealt the aspect that if there is no specific bar in maintaining the suit in the civil court for the relief for which the plaintiff has come i.e. cancellation of the deed, then irrespective of availability or 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, if remains in existence, it causes or may cause the mischief in various manners which may not be foreseen today but that may create a 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.
To my mind the jurisdiction of the civil court as is provided under Section 9 of C.P.C. cannot be permitted to be curtailed indirectly unless it is expressly barred. The pretext of ousting the jurisdiction of the civil court, on the plea that the relief claimed by the plaintiff appears to be ancillary and the main relief is of declaration of right which is to be given by the revenue court and, therefore the civil court lacks jurisdiction, to my mind will not be laying down a correct law as the plaintiff has come to the civil court for a relief of cancellation, which can only be given by civil court and therefore, even for the sake of argument, it is accepted that the relief claimed is ancillary relief, why the civil court will lack jurisdiction to grant it, (i.e. relief of cancellation of deed) especially in view of the fact that by grant of that relief, no adjudication between the parties in respect to their rights will survive either before the Revenue Court or before Consolidation Court and the correction of entry will remain a ministerial act.
In view of the aforesaid analysis, in respect to all the questions, (i) (ii), (iii) and (iv) posed above, it is being held that the suit will lie in the civil court. 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.
In all the three writ petitions, the courts below have taken view that the suit will lie in the civil court as it has been filed for cancellation deed and for its declaration to be void, in which, I do not find any infirmity and therefore, no interference is called for by this Court in these writ petitions.
In view of the discussions as made above, all the three writ petitions fail and are accordingly dismissed without any orders as to costs."
8. The jurisdiction of Civil Court as provided under Section 9 of the Code of Civil Procedure has not been expressly barred and cannot be curtailed. The jurisdiction of Civil Court cannot be ousted on the plea that the main relief is for declaration, which is ancillary/incidental, and to be given by Revenue Court. The plaintiff had gone to Civil Court for a relief of cancellation, which can only be given by the Civil Court having jurisdiction in the matter. The apex court in I.T.I. Ltd. v. Siemens Public Communications Network Ltd., A.I.R. 2002 S.C. 2308, held that when there is no express exclusion of jurisdiction it cannot be inference to hold that the Code is not applicable. It is well settled that the jurisdiction of the Civil Court to which a right to decide a lis between the parties has been conferred can only be taken by a stature in specific terms and such exclusion of right cannot be easily inferred because there is always a strong presumption that the Civil Court have the jurisdiction to decide all question of civil nature.
9. In Dhruv Green Field Ltd. v. Hukum Singh and Ors., A.I.R. 2002 S.C. 2841, it has been held that the jurisdiction of Civil Court to try all suits of a civil nature under Section 9 of the Code of Civil Procedure is very expensive as is evident from the plain language of Section 9 of the Code of Civil Procedure. This is because of the principle of Ubi jus ibi remedium. It is only where cognizance of a specified type of suit is barred by a statute either expressly or impliedly that the jurisdiction of Civil Court would be ousted to entertain such a suit.
10. The general principle that emerges from the aforesaid decision is that a statute excluding the jurisdiction of a Civil Court should be construed strictly.
11. In view of the law settled above and the fact that the suit is pending for the last about 8 years, the writ petition is dismissed. The interim order dated 19.7.1985 is vacated. The courts below are directed to hear and decide the matter within six weeks from the date of production of a certified copy of this order in accordance with law. No order as to costs.