Court No. - 19
Case :- SECOND APPEAL No. - 477 of 2017 Appellant :- Zarif Ahmad And Another Respondent :- Mohd. Safi And Another Counsel for Appellant :- Santosh Kumar Mishra Counsel for Respondent :- Sanjay Kumar Pundir
Hon'ble B. Amit Sthalekar,J.
Heard Sri Santosh Kumar Mishra, learned counsel for the appellants and Sri Sanjay Kumar Pundir, learned counsel for the respondents.
This is a plaintiffs' second appeal arising out of the judgement and decree of the trial court as well as appellate court.
The plaintiffs filed suit for cancellation of sale-deed dated 10.1.2008 executed by the respondent no.1 and petitioner no.2 in favour of Mohd. Aaftab Alam in respect of plot no.73. Plot no.73 was recorded in the name of eight co-tenants namely Zarif Ahmad, Mohd.Safi, Suleman, Chhota, Inam, Bashir, Sherif and Mohd. Aftab Alam. A suit no.26 of 2006 (newly numbered as 94 of 2007-08, Zarif Ahmad v. Islam) was filed for partition in which it was held that whole of the plot no.73 was share of Jarif Ahmad, the plaintiff-appellant. Aggrieved the defendant therein preferred an appeal which was allowed by the judgement dated 20.2.2008 against which second appeal is pending before the Board of Revenue. By an interim order dated 8.4.2008 the Board of Revenue stayed the operation of the order dated 20.2.2008 passed by the Additional Commissioner.
During the pendency of partition suit before the revenue court co-tenants Mohd. Safi and Islam sold their share of plot no.73 through an identical sale-deed dated 10.1.2008 in favour of Mohd. Aftab Alam defendant no.3/respondent no.3 herein. Aggrieved the plaintiff filed suit no.50 of 2008, Jarif Ahmad vs. Islam for cancellation of the said sale-deed which was decreed and the sale-deed dated 10.1.2008 was cancelled against which an appeal has been filed which is still pending.
Another co-tenant Suleman executed a sale-deed dated 26.2.2008 in favour of Mohd. Aftab Alam in respect of his share of plot no.73 against which suit no.342 of 2008, Jarif v. Suleman and others was filed and suit was dismissed by the judgement dated 13.3.2015 against which an appeal was preferred which was also dismissed. Against the judgement of the appellate court dated 10.12.2015 second Appeal No.224 of 2016, Jarif Ahamad and another vs. Suleman and others was filed. This second appeal was dismissed by the High Court by order dated 1.3.2016.
In para-7 thereof the Court has recorded a finding that civil court has no jurisdiction to decide the matter relating to cancellation of the sale deed. Initial suit for partition which was initiated before the Board of Revenue is still pending before the Board of Revenue in appeal in which interim order has been granted on 8.4.2008 staying the order of Additional Commissioner.
Paras 7, 8 and 9 of the judgement of the High Court reads as under :-
"7. It is admitted case that plaintiff's suit for cancellation of sale-deed in question is based on his claim of exclusive ownership of plot no. 73 and on ground that vendor of sale-deed did not possess title over any portion of plot no.-73, so sale-deed is without any authority and is void, and should be cancelled. Therefore the relief to plaintiff-appellant can be granted only if this court recognizes his exclusive ownership of plot no.-
73. Since the disputed property relates to plot no.-73 is admittedly agricultural land and it's ownership can be decided only by Revenue Court, therefore the civil court has no jurisdiction to declare or recognize the exclusive ownership of plaintiff over this land and pass the judgment accordingly. The partition suit pending in revenue court related to several plots including plot no.-73. The relief of partition can only be granted by the revenue court. The matter relating to partition is still sub-judice before the Board of Revenue. If the Board of Review allows the appeal of appellants and declares that whole plot no.-73 will go in share of plaintiff- appellants, only in that case their claim on plot no.-73 can be recognized by civil court. Thus the main relief of declaration of plot or recognition of ownership of plot no.-73 can be granted only by the revenue court and not by civil court. In this matter the relief sought for cancellation of sale-deed in original suit becomes ancilliary relief which relates to main relief of declaration of ownership of agricultural plot no.-73. The Civil Court has no jurisdiction to decide such matter because main relief indirectly sought through plaint of original suit cannot be granted by the civil court. This is a simple point of law and is not a substantial question of law.
8. The disputes between the parties, as discussed above, relates to ownership of agricultural land of plot no.-73 that cannot be decided in Civil Court. Therefore the trial court and lower appellate court had rightly dismissed the original suit and the first appeal. So this second appeal is also liable to be dismissed.
9. But the main point is to be considered that if the second appeal before the revenue court (Board of Revenue) regarding this matter is allowed and if the plaintiff-appellants is declared exclusively owner of plot no.-73, then whether the sale-deed in question, challenged in original suit, will have any effect on legal rights of plaintiff-appellant in this regard or not? In this regard it is held that if the revenue court decides the second appeal in the manner of declaring the present appellants to be the exclusive owner of plot no.-73 then the sale-deed executed by defendants-respondents in favour of respondent no.-4 would automatically becomes redundant for the plot no.-73 because no one can pass better title than he himself possesses. Although in that case the purchaser may have right to have his claim over that other property, which had gone in share of vendor in pace of his earlier share in plot no.-73 in partition. Thus on the basis of above discussion, it is held that if the revenue court decides the disputes regarding partition between the parties and declares the appellants exclusive owner of plot no.-73 then sale-deed executed by other defendant-respondents in favour of respondent no.-4 would automatically become ineffective for this plot. With these observations, this second appeal is hereby dismissed."
The High Court had held that civil court has no jurisdiction to decide the matter relating to cancellation of the sale-deed since main relief indirectly sought through plaint of original suit cannot be granted by the civil court. This is a simple point of law and is not a substantial question of law.
On the substantial question of law for decision the High Court has further held that the dispute relates to ownership of agricultural land of plot no.73 which cannot be decided by the civil court but nevertheless the question would remain that if in the revenue court (Board of Revenue) the plaintiff- appellant is declared exclusively owner of plot no.73, another sale-deed in question will have any effect on legal rights of the plaintiff-appellant in this regard or not. The High Court has held that if the revenue court decides the second appeal in the manner of declaring the plaintiff- appellants to be the exclusive owner of plot no.73 then the sale-deed executed by the defendant-respondents in favour of respondent no.4 would automatically become redundant as no one can pass better title than what he himself possesses.
In my opinion, facts of the present second appeal are identical to that Second Appeal no.224 of 2016 and, therefore, the finding recorded by the High Court in second appeal by deciding the Second Appeal no.224 of 2016 on the question of law therein would also be applicable in the present case.
The present Second appeal is, therefore, dismissed.
Order Date :- 18.4.2017 Asha