Court No. - 33
Case :- MATTERS UNDER ARTICLE 227 No. - 3857 of 2018 Petitioner :- Smt. Zahid Bibi Respondent :- Mohd. Naushey And 3 Others Counsel for Petitioner :- Shiv Bahadur Singh Counsel for Respondent :- Adya Prasad Tewari, Ravi Shankar Tripathi
Hon'ble Manoj Misra,J.
Sri A.P. Tewari, learned counsel for the plaintiff-respondents, states that a counter affidavit was filed in the registry but the same is not on record.
Sri S.B. Singh, the learned counsel for the petitioner, does not dispute that the counter affidavit was served upon him and that he has already filed rejoinder affidavit.
In view of the above, copy of the counter affidavit, which has been supplied by the learned counsel for the plaintiffs-respondents, is taken on record.
With the consent of learned counsel for the parties, the matter has been heard at the admission stage itself.
I have heard Sri S.B. Singh for the petitioner; Sri A.P. Tiwari for the respondents 1 and 2; and have perused the record.
The plaintiff-respondents 1 & 2 instituted Original Suit No. 53 of 2002 for cancellation of two separate sale deeds dated 21.03.1986 executed by deceased defendant no.1, namely, Khudaija Bibi, in favour of Smt. Jahida Bibi (defendant no.3-petitioner); Mazida Khatoon (defendant no.4) and Syed Shahid Hussain (defendant no.5-respondent no.4); and for cancellation of sale deed dated 27.09.2001 executed by Smt. Khudaija Bibi (deceased defendant no. 1) in favour of Shahjahan (defendant no. 2-respondent no.3).
The plaint case, in short, is that the plaintiffs are descendants of Zia-ul-Haq, who had three daughters, namely, Tahira Bibi, Rashida Bibi and Fatma Bibi. According to the plaintiffs though Khdaija Bibi (defendant no.1) was widow of Zia-Ul-Haq but she had remarried and therefore had no surviving interest. The plaintiffs claimed that they received interest from Rashida Bibi. In so far as Tahira Bibi is concerned she died without leaving any issue, whereas Fatima Bibi migrated to Pakistan and she died there.
According to the plaint case, Khudaija Bibi (defendant no. 1) taking advantage of her name appearing in the revenue record executed sale deeds without authority and therefore the sale deeds were void and as such liable to be canceled.
The defendants, apart from others, took a plea that the suit was barred by Section 331 of the U.P.Z.A. & L.R. Act because the land in question was agricultural land and that the plaintiff's name was not recorded on the date of execution of the sale deed.
On the aforesaid plea, issue no. 5 was framed as to whether the plaint is liable to be rejected under Order 7 Rule 11(d) of the C.P.C. as barred by law.
This issue no. 5 was decided against the defendant-petitioner and in favor of the plaintiffs by the trial court vide impugned order dated 30.05.2017 against which the revision preferred has been dismissed by the revisional court vide order dated 16.04.2018.
Assailing the orders dated 30.05.2017 and dated 16.04.2018, the learned counsel for the petitioner has submitted that from the material brought on record it was established that on the date of institution of the suit, the plaintiff was not the recorded tenure holder over the subject matter of sale deed and since, according to the plaintiffs, the sale deed was void, its cancellation was not necessary therefore the proper remedy for the plaintiffs was to institute a suit in the revenue court for declaration of rights as well as possession. Hence, the suit was not maintainable before the civil court inasmuch as it was barred by Section 331 of the U.P. Z.A. & L.R. Act.
Sri A.P. Tewari, the learned counsel for the plaintiffs-respondents has submitted that at the stage of consideration of an application to reject the plaint under Order 7, Rule 11(d) of the C.P.C., it is only the plaint averments that have to be taken into consideration and any material/document, that parties may produce, is not to be considered. He submitted that the suit for cancellation of sale deed is maintainable in a civil court and the plaint, when read as a whole, does disclose a cause of action and does not appear to be barred by any law, inasmuch as nowhere in the plaint it has been admitted by the plaintiffs that the plaintiffs are not recorded tenure holder of the suit property.
In response to the submission of the learned counsel for the plaintiffs-respondents, the learned counsel for the petitioner has invited attention of the Court to various paragraphs of the plaints from which it appears that the defendant no.1, who had executed the disputed sale deed, was a recorded tenure holder.
I have considered the rival submissions and have perused the record.
It is well settled that at the stage of consideration of the prayer to reject the plaint under Order VII Rule 11 CPC it is the plaint averments alone that have to be considered to find out whether the plaint when read as a whole discloses a cause of action to institute the suit or whether the suit is barred by law. At this stage, the defense taken in the written statements or the document supplied in support of the defence is not to be looked into {see (2015) 8 SCC 331:P.V. Guru Raj Reddy v. P. Neeradha Raddy & Ors.; (2016) 14 SCC 679: Provident Fund Commr. V. Lala J.R. Society; (2014) 16 SCC 125: Surjit Kaur Gill v. Adarsh Kaur Gill}. It is equally well settled that a recorded tenure-holder having a prima facie title and in possession can institute a suit in the civil court for cancellation of sale deed whether it is alleged to be void or voidable. Such a person cannot be directed to file a suit for declaration in the Revenue Court. However, position might be different where he is not a recorded tenure-holder. {see (2001) 3 SCC 24: Shri Ram v. Ist ADJ } From a perusal of the plaint it is not clear whether the defendant no.1 and the other defendants were recorded in the revenue records to the exclusion of the plaintiffs or whether they were recorded as co- tenure holders with the plaintiffs. More over, in paragraph 12 of the plaint it has been stated by the plaintiffs that their names were recorded on the death of Rashida Bibi but the defendant no.1 got her name entered in form P.A. Ka.-11 against which proceeding under section 34 of the U.P. L.R. Act was taken, which is pending.
Under the circumstances, the trial court as well as the revisional court took the view that the suit, on the basis of plaint averments, does not appear to be barred by law. The court below has also observed that whether a suit is barred by limitation would be a mixed question of law and fact and therefore it would be appropriate to decide it as an issue after leading of evidence.
The view taken by the courts below appears to be sound in law. No doubt, the plaint averments are not very clear as to whether the plaintiff was recorded over the suit property or not, at the time of institution of the suit. But what is important is that there is no unequivocal admission that the plaintiffs were not recorded as tenure holder of the suit property on the date of institution of the suit. More over, in paragraphs 9 and 12 of the counter affidavit, stand has been taken that the name of the plaintiff-respondents stood mutated to the exclusion of the transferees. Though there appears to be a serious dispute about such entries, but all such aspects can appropriately be considered while deciding the same as an issue. Similarly, the question of maintainability of the suit in view of the provisions of section 331 of the UPZA &LR Act can appropriately be considered as an issue on the basis of the evidence led by the parties and not while considering the prayer to reject the plaint under Order VII Rule 11(d) of the Code of Civil Procedure.
As from the plaint averments it cannot be said with certainty that the suit is barred by law or that it does not disclose cause of action, the courts below were justified in refusing to reject the plaint under Order VII, Rule 11(d) C.P.C. Hence, the prayer to set aside the impugned orders is rejected.
However, it shall be open to the petitioner to seek framing of issue as regards the maintainability of the suit in view of the bar of Section 331 of the U.P.Z.A. & L.R. Act. If any such issue is raised or has been framed, the court shall decide the same on the basis of evidence led by the parties without being influenced by any of the observations made by the courts below while deciding the issue no. 5 (i.e. whether the plaint was liable to be rejected under Order VII Rule 11(d) CPC).
With the aforesaid observations, the present petition is disposed off.
Order Date :- 30.10.2018 Pkb/