Allahabad High Court
Zila Panchayat Aurraiya Thru Adhyaksh ... vs Sri Krishna Lal Dixit on 29 August, 2022
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved on 25.04.2022
Delivered on 29.08.2022
Case :- WRIT - C No. - 49873 of 2003
Petitioner :- Zila Panchayat Aurraiya Thru Adhyaksh And Anr.
Respondent :- Sri Krishna Lal Dixit
Counsel for Petitioner :- Anshu Chaudhary,Aditya Kumar Tripathi,Anil Kumar Singh
Counsel for Respondent :- Aditya Kumar Tripathi
Hon'ble Saral Srivastava,J.
1. Heard Sri Anshu Chaudhary, learned counsel for the petitioners and Sri Aditya Kumar Tripathi, learned counsel for the respondent.
2. The petitioners by means of the present writ petition have assailed the order dated 21.08.1999 passed by the Civil Judge (Senior Division), Etawah in Original Suit No.12 of 1981 (Krishna Lal Dixit Vs. Zila Parishad, Etawah and Others) whereby application 156Ga of the petitioner to abate the suit was rejected, and order dated 24.07.2003 passed by the Additional District Judge, Court No.4, Etawah rejecting the revision of the petitioner.
3. The plaintiff/respondent instituted a suit bearing Original Suit No.12 of 1981 praying for a decree of cancellation of document dated 27.08.1951 and sale deed dated 30.09.1957. The suit was instituted on the ground that the property in dispute was owned by one Sukhi Lal and petitioner was adopted son of Sukhi Lal. It is pleaded that late Sukhi Lal had instituted a suit against plaintiff/respondent before the court of Munsif, Etawah which was dismissed, and the adoption deed of the plaintiff/respondent was held valid. The appeal preferred by late Sukhi Lal against the judgement and decree declaring the adoption deed valid was also dismissed.
4. It is further pleaded that the document dated 27.08.1951 was never executed by late Sukhi Lal and sale deed dated 30.09.1957 was also not executed by late Sukhi Lal in favour of petitioner/defendant. In paragraph 8 of the plaint, it was specifically pleaded that petitioners/defendants got their names recorded in the revenue records by playing fraud whereas they have no concern with the property in dispute and were not entitled to get their names recorded in the revenue record. In paragraph 9 of the plaint, plaintiff/respondent further pleaded that on inquiry it was found that petitioner/defendant got the document dated 30.09.1957 executed by playing fraud. It was further pleaded that no document was executed by late Sukhi Lal on 30.09.1957 and said document is forged and fabricated and was not signed by Sukhi Lal nor he had put any impression of thumb on that document.
5. The suit was contested by petitioners/defendant denying the averments made in the plaint.
6. The petitioners/defendants filed an application 156Ga alleging therein that as the village Umri, Pargana Auraiya, District Etawah in which property in dispute is situated was under consolidation operation, therefore, suit is liable to be abated under Section 5(2)(a) of the U.P. Consolidation and Holdings Act, 1953 (hereinafter referred to as 'Act, 1953') as after the notification under Section 4 of the U.P. Act, 1953 consolidation court is empowered to declare the sale deed void.
7. The aforesaid application was contested by the plaintiff/respondent by filing objection contending inter-alia that after publication of notification under Section 5(2) of the Act, 1953, the suit was instituted. The plaintiff/respondent has stated in the plaint that the documents in question are voidable, and therefore, suit before the court of Civil Judge is maintainable.
8. The trial court vide order dated 21.08.1999 accepted the objection of plaintiff/respondent in holding that documents in question are voidable in nature and held that till the said documents are set aside, the character of these documents would be voidable.
9. A revision preferred by the petitioners/defendant against the order dated 21.08.1999 was rejected by the revision court vide judgement dated 24.07.2003, who affirmed the finding of the trial court.
10. Challenging the aforesaid orders, learned counsel for the petitioners has contended that both the courts below have erred in law in holding that as it was a specific case of the plaintiff/respondent that late Sukhi Lal had not executed the document dated 27.08.1951 and sale deed dated 30.09.1957 nor he had put any impression on the said documents, and petitioner got those documents executed by producing an impostor, therefore, documents are forged and once consolidation operation had started in the area, where property in dispute is situated, the suit for cancellation of sale deed is cognizable by consolidation court and not by civil court. In support of his contention, he has paced reliance upon the judgement of Apex Court in the case of Smt. Dulari Devi Vs. Janardhan Singh and Others passed in Civil Appeal No.2998 of 1980 wherein the Apex Court has laid down distinction between void and voidable documents.
11. He has further contended that in paragraph 8 of the plaint, it has been specifically stated that petitioner/defendant's name is recorded in the revenue record, and therefore, plaintiff/respondent has to pray for declaration of title and thus, civil court has no jurisdiction to try the suit. In support of this contention, he has placed reliance upon the judgements of Apex Court in the cases of Shri Ram and Another Vs. Ist Additional District Judge and Others 2001 (3) SCC 24 and Pyarelal Vs. Shubhendra Pilania (Minor) through Natural Guardian (Father) Shri Pradeep Kumar Pilania and Others 2019 (3) SCC 692.
12. Rebutting the aforesaid contentions, learned counsel for the respondents has contended that the sale deed is a voidable document and as in the instant case, there was fraudulent misrepresentation, therefore, the document would fall in the category of voidable documents and shall remain in force till it is set aside, and such document can only be cancelled by competent civil court, therefore, suit is maintainable. He has further contended that consolidation operation in the area is over, and therefore, suit for cancellation of sale deed would lie before the competent civil court.
13. I have considered the rival submissions of the parties and perused the record.
14. To ascertain the question in the present case as to the nature of document whether the document is void or voidable document, it would be apposite to reproduce paragraphs 8, 9, 10 & 11 of the plaint:-
"8. यह कि वादी को यह भी मालूम हुआ कि चकबन्दी के दौरान प्रतिवादी गण ने वसाजिश चकबन्दी अधिकारी फर्जी नाम अपना चढ़वाया है और दौरान चकबन्दी, प्रतिवादीगण को अपना नाम चढ़वाने का कोई हक नही था और चकबन्दी आफिसर को कोई अख्त्यार डि० बोर्ड का नाम चढ़ाने का नही था जुम्ला कार्यवाही व हुक्म बावत नाम दर्ज होने कतई अवैधानिक व विथआउट ज्यूरिस्डिक्शन है और कानूनन कमफरटेबिल इन लॉ नही है और मालूम होता है कि डि० बोर्ड इटावा के कर्मचारियो ने दौरान चकबंदी धोखा देकर व साजिश चकबन्दी अधिकारी उपरोक्त डि० बोर्ड का नाम फर्जी दर्ज करवाया है उन इन्द्राजात का कोई फायदा प्रतिवादीगण नही उठा सकते हैं और उपरोक्त इन्द्राजात वादी पर काबिज पाबन्दी नही है और जुम्ला इन्द्राजात कतई ज्यूरिकेशन है और धोखा व मिसरिप्रेजेन्टेशन पर मवनीय है कोई भी नोटिस वगैरह भी चकबन्दी के दौरान वादी या सोखी लाल के नाम जारी नही हुये और न विपक्षी व सोखी लाल कोई नोटिस जारी हुयी और न किसी नोटिस की कोई तामील हुयी। और न एतराज का मौका कोई दिया गया व नीज अदालत चकबन्दी अधिकारी को प्रतिवादीगण या डि० बोर्ड का नाम चढ़ाने का कोई हक भी नही था और न कोई अख्त्यार था।
9. यह कि प्रतिवादीगण के द्वारा व उनके कर्मचारी के द्वारा दस्तनदाजी देने पर वादी ने जानकारी की व जांच पड़ताल की व मुआयना वगैरह करवाया तब वादी को माह सितम्बर सन् 80 यह जानकारी हुयी कि सोखी लाल के नाम से एक फर्जी, लिखा पढ़ी अज किस्म तमलीखानामा डि० बोर्ड इटावा के हक मे 30.9.57 को तहरीर व तकमील होना जाहिर की गयी है और उसमे नम्बरान जो कव्ल चकबन्दी थे उनका जिक्र है जो तहरीर बिल्कुल गलत है व नीज प्रेसीडेन्ट डि० बोर्ड को तहरीर लिखाने का कोई हक नही था और तहरीर मजकूर भी व मुजिव कानून डि० बोर्ड एक्ट नही लिखी गयी और न लिखी जा सकती थी सोखी लाल ने कोई तहरीर 30.9.57 को डि० बोर्ड के हक मे नही लिखी है वह तहरीर फर्जी व जाली है और उस पर सोखी लाल के निशान वगैरह नहीं है बल्कि फर्जी दुसरे आदमी के है व नीज वादी को यह भी मालूम हुआ कि 27.8.51 को एक तहरीर सोखी लाल व काली प्रसाद के नाम से बतौर बैनामा वहक शिक्षा समिति भगवती गंज ऊमरी तहरीर व तकमील हुयी है जो तहरीर भी कतई नाजायज व फर्जी है और उपरोक्त तहरीर पर काशी प्रसाद व सोखी लाल के दस्तखत या निशान नही है बल्कि फर्जी आदमी के है बिव फर्ज मुहाल अगर उपरोक्त तहरीर सोखी लाल के द्वारा तहरीर होना साबित भी हो तो वह भी नाजायज है और काबिल पाबन्दी वादी नही है सोखी लाल को उपरोक्त तहरीर करने का कोई हक नही था व नीज उपरोक्त नम्बरान मे काशी प्रसाद वल्द मिश्री लाल साकिन मौजा शुशरु परगना डेरापुर जिला कानपुर का नाम फर्जी खाता मशकूर मे दर्ज था जिसका भी उनको कोई हक नही था काशी प्रसाद कभी भी नम्बरान के मालिक व काबिज नही रहे और न उनका कब्जा दखल रहा बल्कि बराबर कुल नम्बरान पर कब्जा दखल सोखी लाल का ही उनके मरते समय तक चला आया।
10. यह कि दस्तावेज मु० 27.8.51 ई० को सोखी लाल और काशी प्रसाद ने तहरीर नही किया और फर्जी है व नीज जो उपरोक्त तहरीर शिक्षा समिति भगवती गंज के हक़ मे लिखी गयी है इस किस्म की कोई समिति नहीं रही और न सोखी लाल ऐसे किसी समिति के प्रेसीडेन्ट रहे और न किसी समिति का कोई कब्जा हुआ और न कोई स्कूल बना और न कोई स्कूल चला जुम्ला इन्द्राजात व जो तहरीर मे लिखे है वह गलत व वगरज तहरीर फर्जी लिखे गये है तहरीर मसकूर से कोई कब्जा दखल शिक्षा समिति का नही हुआ कोई मुआवजा वगैरह सोखी लाल को नही मिला। गरज कि जुम्ला इन्द्राज दस्तावेज निजाई के कतई बनावटी व फर्जी है दस्तावेज उपरोक्त का कोई अमल दरामद नही हुआ और न वह कभी एक्ट अमीन हुआ।
11. यह कि दस्तावेज मु० 30.9.57 को भी सोखी लाल व दीगर मुकिर भगवती प्रसाद जिसका नाम दस्तावेज मे दर्ज है ने तहरीर नही किया और न उनके दस्तखत या निशान है बल्कि फर्जी आदमी के है व नीज़ आल्टरनेटिव मे भी अगर सोखी लाल का तहरीर होना साबित भी हो तब भी यह उज्र है कि सोखी लाल व दीगर मुकिर मुन्दर्जा दस्तावेज को तहरीर करने का कोई हक नही था व नीज़ दस्तावेज़ मजकूर मे जिस कदर रकम तहरीर की गयी है। व नीज़ जो शरायते व कान्टेंट्स लिखे गये है वह सब फर्जी व बनावटी लिखे गये है और इस किस्म की कोई रकम मुन्दर्जा दस्तावेज सोखी लाल को नही मिली। उपरोक्त दोनो दस्तावेज कतई धोखा व मिसरिप्रेजेन्टशन पर भवनीय है। उपरोक्त दोनो दस्तावेज सोखी लाल व दीगर मुकरान को पढ़कर नही सुनाये गये और न समझाये गये और न उन्होने दफतर रजिस्ट्री मे पेश किये और न उनकी रजिस्ट्री कराई और न दफ्तर रजिस्ट्री मे पढ़कर सुनाये गये व समझाये गये जुम्ला कन्डोरसमेन्ट सब रजिस्ट्रर कतई गलत वसाजिश कर्मचारी डि० बोर्ड तहरीर हुये है व नीज़ दस्तावेज कतई फिकटिसियस व शाम दस्तावेज है और कभी एक्ट अमीन नही हुये और काबिल मंसूखी के है। उपरोक्त दस्तावेज की विनाय पर कोई कब्जा दखल मालिकाना जिला बोर्ड इटावा व जिला व जिला परिषद इटावा का नम्बरान पर नही रहा। उपरोक्त दस्तावेज कन्टेस्ट बिल्कुल गलत व साजिशी लिखे गये है व नीज़ कोई कब्जा दखल सोखी लाल ने नही दिया व नीज़ दस्तावेज निजाई से कानूनन जायदाद मुन्तकिल होना नही मानी जावेगी और न एबसलूट आउनरशिप व हक जिला परिषद् क्रियेट होना मानी जावेगी।"
15. Reading of the aforesaid paragraphs discloses that it was a specific case of the plaintiff/respondent that late Sukhi Lal had not executed the document dated 27.08.1951 and sale deed dated 30.09.1957 in favour of petitioner and petitioner/defendant got the aforesaid documents executed by producing some impostor. It is specifically pleaded in the aforesaid paragraphs, extracted above, that the document dated 27.08.1951 is forged and it was never executed by late Sukhi Lal. Similar averment has been made by the plaintiff/respondent in respect to sale deed dated 30.09.1957 in paragraph 11 of the plaint, extracted above.
16. Now, whether the character of the aforesaid documents is void or voidable, in this regard, it would be apt to reproduce the relevant extract of the judgement of the Apex Court in the case of Smt. Dulari Devi (supra):-
"In Gorakh Nath Dube, (supra), this Court held that the object of the relevant provision of the Act was to remove from the jurisdiction of any civil court or revenue court all disputes which could be decided by the competent authority under the Act during the consolidation proceedings. Questions relating to the validity of a sale-deed or a gift deed and the like had to be examined in proceedings before the statutory authorities. The Court, however, drew a distinction between void and voidable documents and said a voidable document was one which remained in force until set aside, and such a document could be set aside only by a competent civil court, and a suit for that purpose would, therefore, be maintainable. On the other hand, a claim that a transaction was void was a matter which could be adjudicated upon by the consolidation courts. This is what this Court stated:
"We think that a distinction can be made between cases where a document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have legal effect. An alienation made in excess of power to transfer would be, to the extent of the excess of power, invalid. An adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in land which are the subject matter of consolidation proceedings. The existence and quantum of rights claimed or denied will have to be declared by the consolidation authorities which would be deemed to be invested with jurisdiction, by the necessary implication of their statutory powers to adjudicate upon such rights and interests in land, to declare such documents effective or ineffective, but, where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it could be urged that the consolidation authorities have no power to cancel the deed, and, therefore, it must be held to be binding on them so long as it is not cancelled by a court having the power to cancel it. In the case before us, the plaintiffs claim is that the sale of his half share by his uncle was invalid, inoperative, and void. Such a claim could be adjudicated upon by consolidation courts."
In Ningawwa v. Byrappa & three others., (supra), this Court referred to the well-established principle that a contract or other transaction induced or tendered by fraud is not void, but only voidable at the option of the party defrauded. The transaction remains valid until it was avoided. This Court then said:
"The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the form- er, it has been held that the transaction is void, while in the case of the latter, it is merely voidable. In Foster v. Mackinon, 1869 (4) C.P. 704, the action was by the endorsee of a bill of exchange. The defendant pleaded that he endorsed the bill on a fraudulent representation by the acceptor that he was signing a guarantee. In holding that such a plea was admissible, the Court observed:
"It (signature) is invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signer did not accompany the signature; in other words, that he never intended to sign, and therefore in contemplation of law never did sign, the contract to which his name is appended ..... The defendant never intended to sign that contract or any such contract. He never intended to put his name to any instrument that then was or thereafter might become negotiable. He was deceived, not merely as to the legal effect, but as to the 'actual contents' of the instrument."
(emphasis supplied) From the facts narrated above, about which, as stated earlier, there is no dispute, it is clear that this is a case where the plaintiff appellant was totally ignorant of the mischief played upon her. She honestly believed that the instrument which she executed and got registered was a gift deed in favour of her daughter. She believed that the thumb impressions taken from her were in respect of that single document. She did not know that she executed two documents, one of which alone was the gift deed, but the other was a sale of the property in favour of all the defendants. This was, therefore, a case of fraudulent misrepresentation as to the character of the document executed by her and not merely as to its contents or as to its legal effect. The plaintiff-appellant never intended to sign what she did sign. She never intended to enter into the contract to which she unknowingly became a party. Her mind did not accompany her thumb impressions. This is a case that falls within the principle enunciated in Ningawwa v. Byrappa & three others (supra) and it was, therefore, a totally void transaction. Accordingly, as stated in Gorakh Nath Dube (supra), the suit is not maintainable by reason of the bar contained in the Act.
The High Court has, in our view, rightly held that the remedy of the plaintiff lies in the proceedings pending before the consolidation authorities and it is open to the parties to approach them for appropriate relief. In the circumstances, we see no merit in this appeal. It is, accordingly, dismissed, but we make no order as to costs."
17. In the aforesaid case, the Apex Court has drawn a distinction between void and voidable documents and has held that where there is fraudulent misrepresentation as to the character of a document executed by a person, it would be a void document, but in case where there is fraudulent misrepresentation as to the contents of the document, the character of a document is voidable.
18. Applying the aforesaid principles in the instant case, it is evident from the pleadings in the plaint, extracted above, that the case of the plaintiff/respondent is that the documents in question were never executed by late Sukhi Lal nor any impression was put by him on these documents, therefore, clearly the said documents are void documents as in the instant case there was fraudulent misrepresentation as to the character of the document and not to the contents thereof, therefore, in the opinion of the Court, both the courts below have erroneously held that documents in question are voidable document and are not void document.
19. The record of the case also reveals that though on the date of institution of suit, the area was not under the consolidation operation, but same was brought under consolidation operation by publication of notification under Section 4 of the Act, 1953 on 01.10.1983 and consolidation operation in the area was over on 03.10.2009, therefore, since during pendency of suit, consolidation operation had commenced in the area, the suit ought to have been abated by the court below as the relief prayed for in the instant suit could be granted only by consolidation court.
20. Now in the instant case, another question cropped up as to when consolidation operation has ended in the area after publication of notification under Section 5(2)(a) of the Act, 1953 on 30.09.2009, whether petitioner is entitled to any relief, and whether the suit is cognizable by civil court. In this regard, it would be relevant to peruse the paragraph 8 of the plaint, extracted above, wherein it is a admitted case of the plaintiff/respondent that names of the petitioner/defendant have been recorded in the revenue records. In such view of the fact, learned counsel for the petitioner has urged that the suit is not cognizable by civil court and is cognizable by revenue court.
21. This Court finds merit in the aforesaid submission of learned counsel for the petitioner in view of the judgements of Apex Court in the cases of Shri Ram and Another (supra) and Pyarelal (supra). It would be apt to refer paragraph 7 of the judgement of Apex Court in the case of Shri Ram and Another (supra) which is reproduced herein below:-
"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."
22. The judgement of Apex Court in the case of Shri Ram and Another (supra) has been followed by the Apex Court in the case of Pyarelal (supra) wherein Apex Court placing reliance upon a case arising out Section 207 read with Section 256 of the Rajasthan Tenancy Act has held that suit is cognizable by revenue court. Paragraphs 24 to 26 of the said judgement are being reproduced herein below:-
"24. In Shri Ram v. Addl. District Judge, (2001) 3 SCC 24, a suit was filed before the civil court for the cancellation of a sale deed of an agricultural land on the grounds of fraud and impersonation. The defendant contended that the suit is barred by Section 331 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 which reads thus:
"331. Cognizance of suits etc. under this Act. - (1) Except as provided by or under this Act, no court other than a court mentioned in Column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908 (V of 1908), take cognizance of any suit, application, or proceedings mentioned in Column 3 thereof or of a suit, application or proceedings based on a cause of action in respect of which any relief could be obtained by means of any such suit or application:
Explanation.- If the cause of action is one in respect of which relief may be granted by the Revenue Court, it is immaterial that the relief asked for from the civil court may not be incidental to that which the Revenue Court would have granted.
25. The question before this Court was whether a recorded tenure-holder having prima facie title in his favour and in possession was required to file a suit in the Revenue Court, or where the civil court had jurisdiction to entertain and decide the suit seeking relief of cancellation of a void document. Upholding the jurisdiction of civil court to try the suit, a two-Judge Bench of this Court differentiated between a recorded tenure holder, and an unrecorded tenure holder with the following observations:
7. ...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 been obtained on the ground of fraud or impersonation cannot be directed to file a suit for declaration in the Revenue Court, the 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.
26. Though the above principles emerge in the context of the bar under Section 331 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, the logic of the judgment extends to the bar under Section 207 read with Section 256 of the of the Tenancy Act. A recorded khatedar stands on a different footing compared to a claimant seeking a decree of their khatedari rights. A claimant seeking a decree of khatedari rights is barred from filing a suit in the civil court prior to their khatedari right being decreed by a Revenue Court when the relief sought for by the civil court includes a determination of khatedari rights."
23. As in view of the categorical averment made in paragraph 8 of the plaint, name of the petitioner/defendant have been recorded in the revenue record, therefore, the suit is not cognizable by civil court and is cognizable by revenue court.
24. In such view of the fact, the impugned orders dated 21.08.1999 and 24.07.2003 are not sustainable in law and are hereby, set aside. The writ petition is allowed with no order as to costs.
25. It is open to the plaintiff/respondent to file suit for the relief claimed, if so, advised, before the revenue court.
Order Date:- 29.8.2022 Sattyarth