1. Heard learned counsel for the appellant on point of admission of second appeal and perused the record. After hearing rival contentions it appears on basis of admitted facts this appeal may be decided at this stage on merits. It is accordingly decided.
2. It is admitted case of the parties that Khasra No. 73 is recorded in the name of eight co-tenants jointly, who are Zarif Ahmad, Mohd. Safi, Suleman, Chhota, Inam, Bashir, Sherif and Mohd. Aftab Alam.
3. It is also admitted fact that in revenue court a suit no. 26/2006 (new no. 94/2007-08 Zarif Ahmad v. Islam), was filed for partition, in which whole of the plot no. 73, came in the share of Jarif Ahmad. Then an appeal was preferred, which was allowed by judgment dated 20.02.2008 of Additional Commissioner. Against the said judgment of the Additional Commissioner, second appeal is pending before the Board of Revenue; and by an interim order dated 08.04.2008, the Board of Revenue had admitted the appeal and stayed the operation of the order dated 20.02.2008 passed by Additional Commissioner.
4. It is also admitted that during pendency of partition suit before the revenue court, two named co-tenants namely Mohd. Safi and Islam had sold their share of plot no. 73 through sale-deed dated 10.01.2008 in favour of Mohd. Aaftab Alam (Respondent no. 4). Then plaintiff (present plaintiff-appellant) had filed original suit no. 50/2008 Jarif Ahmad Vs. Islam for cancellation of said sale-deed. The said suit was decreed and sale-deed dated 10.01.2008 was cancelled by the trial court. The appeal against the said judgment is still pending.
5. It is also admitted that another named co-tenant Suleman executed sale-deed dated 26.02.2008 of his share in Plot No. 73 to respondent no. 4 Mohd. Aaftab Alam. Original suit no. 342/2008 Jarif v. Suleman & Others was instituted by the present appellants for cancellation of said sale-deed. The said O.S. no. 342/2008 was dismissed by the judgment dated 13.03.2015 of Civil Judge (Junior Division) Hawali, Saharapur. Then present appellants had preferred first Civil Appeal no. 41/2005 Jarif Ahmad & others vs. Suleman and others, which was heard and dismissed by judgment dated 10.12.2015 of Additional District Judge, Court No.-8, Saharanpur. Against the said judgments of trial court as well as first appellate court, present second appeal has been preferred by the plaintiff of the original suit.
6. Learned counsel for the appellant contended that since partition suit no. 94/2007-08 was decided by the judgment dated 28.11.2007 of the lower revenue court, and the judgment dated 20.02.2008 of first appeal passed in first appeal by Ist Additional Commissioner was stayed by order dated 08.04.2008 of Board of Review, therefore the judgment dated 28.11.2007 passed by the lower Revenue Court is still in effect; so appellant should be accepted as owner of total portion of plot no. 73 and the sale-deed executed by the defendant Suleman in favour of respondent no.-4 Mod. Aaftab Alam is unauthorized and without any legal right; therefore it should have been cancelled by the lower courts. He contended that on this point the judgment of the trial court and lower appellate court are erroneous and perverse, so the appeal should be admitted for being allowed.
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.
Order Date :- 01.03.2016.
Vinod