Allahabad High Court
Vijay Shankar And 3 Others vs Teerathraj Shukla on 5 October, 2023
Author: Jayant Banerji
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:191077 Reserved Court No. - 1 Case :- MATTERS UNDER ARTICLE 227 No. - 2840 of 2023 Petitioner :- Vijay Shankar And 3 Others Respondent :- Teerathraj Shukla Counsel for Petitioner :- Sachin Mishra,Bala Nath Mishra,Ram Vishal Mishra Counsel for Respondent :- Nisheeth Yadav,Santosh Kumar Shukla AND Case :- MATTERS UNDER ARTICLE 227 No. - 2853 of 2023 Petitioner :- Umashankar And 6 Others Respondent :- Teerathraj Shukla Counsel for Petitioner :- Sachin Mishra,Bala Nath Mishra,Ram Vishal Mishra Counsel for Respondent :- Santosh Kumar Shukla,Nisheeth Yadav Hon'ble Jayant Banerji,J.
1. Heard Shri B.N. Mishra alongwith Shri Sachin Mishra, learned counsel for the defendant-petitioners and Shri C.B. Yadav, learned Senior Advocate assisted by Shri Anand Kumar Yadav, learned counsel appearing for the plaintiff- respondent.
2. With the consent of learned counsel for the parties, the aforesaid petitions were finally heard without calling for affidavits.
3. In the aforesaid petitions, the orders dated 5.12.2019, passed by the Civil Judge ( Junior Division), East, Allahabad in Original Suit No. 700 of 2016 ( Tirathraj Shukla Vesrus Vijay Shankar and others) and in O.S. No. 664 of 2016 (Tirath Raj Shukla Vs. Vijay Shankar Mishra and others) respectively have been challenged, whereby the application 6C for temporary injunction moved by the plaintiff-respondent was allowed and the defendant-petitioners were directed to not create any disturbance in the possession of the plaintiff-respondent over the property in dispute and neither to encroach nor to interfere in the use of the property in dispute.
4. Also under challenge are the orders dated 9.12.2022, passed in Misc. Civil Appeal No. 8 of 2020 ( Vijay Shankar and others Vs. Tirathraj Shukla) and in Misc. Civil Appeal No. 9 of 2020 ( Vijay Shankar and others Vs. Tirathraj Shukla), respectively, whereby the appeals filed by the defendant-petitioners were rejected.
Backgrounds of the case in Petition No. 2840 of 2023.
5. It appears that Original Suit No. 700 of 2016 was filed by the plaintiff-respondent against the defendant-petitioners seeking a relief of permanent injunction in respect of Plot No. 181 area 0.1230 hectare situated in Village Rasauli Tappa-84, Pargana Khairagarh, Tehsil Meja, District Allahabad. The allegations in the suit are that the sole bhumidhar with transferable right Rajendra Prasad son of Ram Padarath had expressed his desire to sell the aforesaid plot and executed a sale deed dated 14.1.2016 which was registered and the ownership and possession of the property in dispute was transferred to the plaintiff-respondent. By an order dated 19.2.2016, the Tehsildar passed an order of mutation and the name of the plaintiff was recorded on 24.2.2016 and thereafter, the plaintiff is owner in possession of that property. It is stated that the defendants, for taking forcible possession of the plot in dispute and for making constructions thereon, started collecting construction material on the roadside abutting the plot in dispute. Therefore, the suit was filed. Alongwith the plaint, an application 6C for temporary injunction with an affidavit was filed. The defendants filed their objection alongwith an affidavit, in which it is stated that the vendor of the alleged sale deed dated 14.1.2016, namely, Rajendra Prasad is not the son of the recorded tenure holder, namely, Ram Padarath. It is stated that Ram Padarath died issueless and the defendants are nephews of Ram Padarath, who used to take care and look after him and are rightful successors to the plot in dispute. It is stated that the defendants are in continuous possession since the year 1953 and the title to the plot in dispute has accrued in favour of the defendants. It is stated that on coming to know of the fraudulent mutation being done in the revenue record in the name of the plaintiff, the defendants instituted a suit for declaration of title bearing Suit No. 232 of 2016 under Section 144 of the U.P. Revenue Code, 2006 in the court of Sub-Divisional Officer which is pending. It is stated that the plaintiff is defendant in the aforesaid suit filed by the defendant and an order of status quo has been passed by the Sub-Divisional Officer. It is stated that on coming to know of the illegal entries made in the revenue record in favour of the plaintiff, the defendant moved an application before the Tehsildar, who by order dated 7.9.2016 stayed the order of mutation. It is stated that on the spot, possession was never with the vendor of the sale deed namely, Rajendra Prasad nor with the plaintiff and, therefore, the application for temporary injunction deserves to be rejected.
6. By the impugned order dated 5.12.2019, the Civil Judge (Junior Division), passed an order of injunction in favour of the plaintiff which was challenged in Misc. Civil Appeal No. 8 of 2020 by the defendants. By the order impugned dated 9.12.2022, the order of Civil Judge dated 5.12.2019 was affirmed and the appeal was dismissed.
Facts of the petition No. 2853 of 2023.
7. The plaintiff-respondent filed Original Suit No. 664 of 2016 against the defendant-petitioners seeking a relief of permanent injunction restraining the defendants from interfering in the possession and use of plot No. 149 area 0.1780 hectare and 272 area 0.2110 hectare and from making any encroachment and construction thereon. The aforesaid plaint was filed alongwith an application for temporary injunction ( 6C). It is stated that by a registered sale deed dated 14.1.2016, Rajendra Prasad son of Ram Padarath transferred the title and possession to the plaintiff. By an order dated 19.2.2016, the Tehsildar passed an order directing mutation of the name of plaintiff in the revenue record with regard to the plot in dispute and the entries were made on 24.2.2016. It is stated that the defendants have no concern with the plot in dispute and are forcibly threatening dispossession and making construction on the plot in dispute.
8. The objection and the affidavit in reply were filed by the defendants in which same objections that were raised by them in O.S. No. 700 of 2016 were iterated. By the impugned order dated 15.12.2019, an order of temporary injunction was passed and the application 6C was allowed by the trial court in the same terms as in O.S No. 700 of 2016. A challenge to the aforesaid order of trial court was made by the defendants in Misc. Civil Appeal No. 9 of 2020 which came to be dismissed by the impugned order dated dated 9.12.2022 and the order of the trial court dated 5.12.2019 was affirmed.
Submission by the learned counsel.
9. The contention of Shri B.N. Mishra, learned counsel for the petitioners is that after coming to know of the false entries made in the revenue record on the basis of alleged sale-deeds executed in favour of the plaintiff-respondent, a suit under Section 144 of the U.P. Revenue Code, 2006 was instituted by the defendant-petitioners before the court of the Sub-Divisional Officer, which was numbered as Suit No.232 of 2016, in which suit the Sub-Divisional Officer on 08.02.2016 had directed the parties to maintain status quo.
10. Learned counsel for the petitioners has stated that the alleged sale-deed executed in favour of the plaintiff-respondent was executed by a person, who did not exist in the village concerned and the vendor of that sale-deed is not the son of Ram Padarath, who was the originally recorded tenure-holder and Ram Padarath died issueless. It is stated that the vendor of the sale-deed was not competent to execute the sale-deed as he is neither the son of the recorded tenure-holder nor is the owner of the property in dispute. It is contended that the defendants are in possession over the property in dispute. It is further contended that given the provisions of Section 206 of the U.P. Revenue Code, 2006, the suits for injunction filed by the plaintiff-respondent would not be maintainable and, therefore, the orders impugned granting injunction in favour of the plaintiff-respondent is illegal and deserves to be set aside. It is stated that even otherwise the plots in dispute have been transferred by an imposter rendering the sale deed void and therefore, no temporary injunction could be granted.
11. Shri C.B. Yadav, learned Senior Advocate for the plaintiff-respondent, has drawn the attention of the Court to the plaint of the aforesaid O.S. No. 700 of 2016, O.S. No. 664 of 2016 and Suit No.232 of 2016 filed before the court of the Sub-Divisional Officer by the defendant-petitioners under Section 144 of the Code, 2006 to contend that the declaration sought for in that suit was for voidance of three sale-deeds respectively dated 12.12.2013, 14.09.2015 and 14.01.2014, and that on the basis of a document dated 23.03.1953, the plaintiffs therein be declared the legal representatives of the deceased Ram Padarath and as bhumidhar with transferable rights. It is stated that the suit for declaration itself would not be maintainable before the Sub-Divisional Officer given the nature of the relief sought. It is contended that the revenue court has no power to grant any declaration for declaring any sale-deed void. Learned counsel for the respondent has stated that the petitioners have concealed the fact that subsequently a suit was filed by the defendant-petitioners in the civil court for declaring the aforestated sale-deeds, that find mention in the suit filed before the Sub-Divisional Officer, as void. It is contended that under the circumstances, the order of status quo passed by the revenue court would not have any bearing in the original suits and the orders passed by the trial court as well as the appellate court are justified.
Consideration.
12. The case of the petitioners against the orders impugned is that the order of mutation passed by the Tehsildar in favour of the plaintiff was stayed by an order of the Tehsildar dated 7.9.2016. It is stated that on coming to know of the fraudulent entries being made in the revenue record, the petitioners have instituted a suit No. 232 of 2016 in the court of Sub-Divisional Officer seeking declaration. It is stated that an order of status quo has been passed by the Sub-Divisional Officer and thus, both the plaintiff and defendants are bound by that order. It is stated that rights of the parties are duly protected by the interim order of the Sub-Divisional Officer and, therefore, the trial court ought not to have granted injunction. In support of his contention, learned counsel for the petitioners has relied upon Full Bench judgments of this Court in Ram Padarath Vs. Second Addl. District Judge, Sultanpur1 and Ram Awalamb Vs. Jata Shankar2.
13. On the other hand the case of the plaintiff-respondent is based on the fact that the declaration as sought by the defendants before the revenue court is not maintainable as voidance of sale deed cannot be declared by the revenue court. It is stated that under the circumstances, when the vendor has validly executed sale deed in their favour, a mere suit for injunction would suffice and the orders impugned are justified. In support of his contention, learned counsel for the respondent has relied upon a judgment of this Court reported in 1992 ALR (Hindi Section) 57 (Nasar Abdulla Vs. State of U.P. and others) and a judgment of Supreme Court in Shri Ram and another Vs. Ist Addl. District Judge and others3.
14. A perusal of the impugned order dated 5.12.2019 reflects that the trial court has relied upon a Khatauni filed by the plaintiffs which reflected the names of the plaintiffs as bhumidhar with transferable rights. Further, certified copy of the sale deed dated 14.1.2016 was relied upon. The trial court observed that the sale deed dated 14.1.2016 is a registered document which would be deemed to be correct and effective unless and until it is declared void. It was observed that so far as the allegation that the vendor of the sale deed Rajendra Prasad is not the adopted son of Ram Padarath is concerned, that is a question of fact which is subject to proof. Accordingly, the prima facie case, balance of convenience and irreparable injury were held to exist in favour of the plaintiff and the order was passed.
15. The appellate court observed that until the sale deed in question is cancelled, it would be deemed to be correct and effective. It was also observed that on the basis of the sale deed, the plaintiff's name was recorded as bhumidhar with transferable rights and, accordingly, the appeal was dismissed.
16. It is pertinent to note that in none of the orders passed either by the trial court or by the appellate court that are under challenge in the present petitions, has the consequence of the order of the Tehsildar dated 7.9.2016 been considered, whereby the exparte order dated 19.2.2016 mutating the name of the plaintiff in the revenue record was stayed. Further, even though the appellate court has referred to the statement of the defendants about the pendency of the suit before the revenue court filed by the defendants under Section 144 of the Code, 2006 seeking declaration of title, however, no consideration of the same is reflected in the impugned appellate order. Moreover, the alleged fact regarding the order of status quo being passed by the Sub Divisional Officer in the aforesaid suit for declaration has not been considered.
17. So far as judgement relied upon by the learned counsel for the respondent in the case of Nasar Abdulla is concerned, a perusal of the judgment reveals that facts of the case were completely different from the case at hand.
In Nasar Abdulla, the Court has iterated the legal position that the registered sale deed would be deemed to be valid document unless it is cancelled or declared void by a court of competent jurisdiction. However, the question involved in the present petitions is whether on the basis of sale deeds alone, could a prima facie case be said to be made out in favour of the plaintiff and whether only the basis of those sale deeds would the balance of convenience and irreparable injury tilt in favour of the plaintiff given the assertion of the petitioner-defendants that the sale deeds are void and that a suit for declaration of title is pending.
18. So far as other judgments cited by the learned counsel for the plaintiff-respondent is concerned, namely in the matter of Shri Ram, a question in appeal before the Supreme Court was whether a suit laid in the civil court by a recorded tenure-holder in possession for cancellation of the sale deed in favour of the respondents executed by some imposters in respect of the land is barred under Section 331 and Schedule II of the U.P. Zamindari Abolition and Land Reforms Act, 19504. The trial court and appellate courts held that the suit is barred under Section 331. However, the High Court allowed the writ petition holding that since the original owner ( vendor), had not filed any suit for cancellation of sale deed in the civil court, the suit filed by appellants was barred under Section 331 and Schedule II of Act, 1950 and, therefore, remedy is before Revenue Court. The Supreme Court noted that the original owner (vendor) of the sale deed in respect of which the suit for cancellation was filed had also filed a separate suit in the civil court for cancellation of the alleged sale deed. It was, therefore, found that the very premise on which the writ petition was allowed by the High Court was based on no evidence.
The other question that arose before the Supreme Court was whether a recorded tenure-holder having prima facie title in his favour and in possession is required to file a suit in the revenue court or it is the civil court which has jurisdiction to entertain and decide the suit seeking relief of cancellation of a void document. The Supreme Court while relying upon a judgment of Full Bench of Allahabad High Court in Ram Padarath (supra) held as under:-
"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 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".
19. In the aforesaid suit giving rise to the present proceeding, since the plaintiff-respondent is seeking injunction on the basis of a registered sale deed, the question with regard to his title would be required to be settled. However, the defendants claim to be in possession and the order of mutation passed by the Tehsildar in favour of the plaintiff has been stayed, therefore, the aspect of possession of the plaintiff does come under a cloud and this aspect ought to have been considered by the courts before granting temporary injunction. The defendants do not appear to be recorded tenure-holders with regard to the property in dispute and, therefore, the suit for declaration of title filed before the Revenue Court assumes significance. Under the circumstances, the aforesaid judgement of Shri Ram is of no assistance to the plaintiff-respondent.
20. The full Bench in the case of Ram Awalamb (supra) was considering common question of jurisdiction arising out of two second appeals and connected civil revision. The court proceeded to consider "vexed question" of the exclusive jurisdiction of revenue courts in civil matters coming before the courts. After observing that it is well settled that a statute ousting the jurisdiction of the civil court must be strictly construed, the court referred to the provisions of Section 331 of the Act, 1950 and observed that the jurisdiction of a civil court shall be barred in respect of suits based on a cause of action for any of the reliefs (a) mentioned in column 4 of Schedule II as being cognizable by revenue court, or (b) if on the same cause of action any relief could be obtained by means of any suit or application mentioned in column 4 of Schedule II of the Act, the relief asked for from the civil court may or may not be identical to that which the revenue court would have granted. In other words, (a) above relates to the class of cases where the jurisdiction of civil court is specifically barred. Under clause (b) falls that class of cases where the jurisdiction of the civil court is impliedly barred.
21. While referring to the Full Bench decision in D.N. Rege Vs. Kazi Muhammad Haider5, in which it was held that the jurisdiction of a court primarily depends upon the allegations made in the plaint but at the same time, it was clear that the plaintiff could not either by hiding or mis-stating certain facts give jurisdiction either to the civil court or to the revenue court, it was observed in Ram Awalamb as follows:
"56. It follows that in each and every case the cause of action of the suit shall have to be strictly scrutinized to determine whether the suit is solely cognizable by a revenue court or is impliedly cognizable only by a revenue court, or is cognizable by a civil court.
57. Where in a suit, from a perusal only of the relief claimed, one or more of them are ostensibly cognizable only by civil court and at least one relief is cognizable only by the revenue court, further questions which arise are whether all the reliefs are based on the same cause of action and, if so, (a) whether the main relief asked for on the basis of that cause of action is such as can be granted only by a revenue court, or (b) whether any real or substantial relief (though it may not be identical with that claimed by the plaintiff) could be granted by the revenue court. There can be no doubt that in all cases contemplated under (a) and (b) above the jurisdiction shall vest in the revenue court and not in the civil court. In all other cases of a civil nature the jurisdiction must vest in the civil court.
60. It was observed by the Supreme Court in the case of AIR 1966 SC 893 (supra) that one of the points which is often treated as relevant in dealing with the question about the exclusion of the civil court's jurisdiction is whether the special statute (in that case the U.P. Temporary Control of Rent and Eviction Act, III of 1947) has used clear and unambiguous words indicating that intention. Another test which is applied is:
Does the statute provide for any adequate and satisfactory alternative remedy to a party that may be aggrieved?.
61. It was laid down in the case of AIR 1966 SC 1718 that a statute ousting the jurisdiction of the civil court must be strictly construed.
62. The case law in this Court on this point might be classified under the following two heads:-
(a) Where several reliefs closely connected with each other can be claimed on the basis of the cause of action set forth in the plaint it has to be examined which of them is the main relief and which others are ancillary reliefs. If upon a consideration of facts constituting the cause of action the main relief is such which can be granted by the civil court the suit will be cognizable in the civil court which will proceed to grant the ancillary reliefs also. On the other hand if the main relief is specifically cognizable by a revenue court only but ancillary reliefs may be such as could be granted by the civil court the matter was cognizable only by a revenue court.
(b) The pith and substance of the allegation made in the plaint constituting the cause of action must be scrutinized in order to determine whether or not if on the same cause of action any adequate or satisfactory alternative remedy could be available to the plaintiff in the revenue court. If the answer to the scrutiny be in the affirmative, then the suit brought in the civil court must fail regardless of the consideration that in respect of the reliefs actually claimed the suit was on the face of it cognizable by a civil court.
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76. The main point for consideration in all cases where on a definite cause of action two reliefs can be claimed is which of the two reliefs is the main relief and which relief or other reliefs are ancillary reliefs. Where from facts and circumstances of the case the relief for demolition and injunction is the main relief there could be no reason why the jurisdiction of the civil court should be barred. On the other hand, if it could be said that the main relief, that is to say, the real and substantial relief, could on that cause of action be of possession only then the suit will definitely lie in the revenue court. In our opinion it is difficult to lay down any hard and fast rule that where the suit is brought against a trespasser the only relief which the plaintiff should claim as an effective relief is that of possession and he need not try to obtain an injunction order and get the constructions made by the trespasser demolished. The revenue courts have not been empowered to grant the reliefs of injunction and demolition and in case the defendant refuses to take away the materials from the land in dispute after the decree for possession has been passed against him the main object of the plaintiff would be frustrated. A civil court will, therefore, have the power to entertain the suit where the main relief sought by the plaintiff is that of injunction and demolition, a relief which could be granted by the civil court only. The relief of possession will be merely ancillary relief which the civil court could grant after having taken cognizance of the suit for injunction and demolition. We respectfully agree with the view expressed by Dayal and Seth, JJ. in the case of 1966 All LJ 1084= (AIR 1967 All 358) that once the suit is maintainable for the main relief in the civil court then there is no bar for the civil court to grant all possible reliefs flowing from the same cause of action. We, however, with great respect, differ from the view taken by the Division Bench in the case of 1965 All LJ 1137 that whenever a suit is for demolition and possession against a trespasser it must always be held that the main relief was that of possession. We are of the view that the determination of the question as to which out of the several reliefs arising from the same cause of action is the main relief will depend on the facts and circumstances of each case.
77. Further we are of the view that where, on the basis of a cause of action--
(a) the main relief is cognizable by a revenue court the suit would be cognizable by the revenue court only. The fact that the ancillary reliefs claimed are cognizable by civil court would be immaterial for determining the proper forum for the suit;
(b) the main relief is cognizable by the civil court the suit would be cognizable by the civil court only and the ancillary reliefs, which could be granted by the revenue court may also be granted by the civil court.
78. We are also of the view that the above principle will apply also to a suit for injunction and demolition relating to agricultural land and brought against a trespasser. With great respect to the Hon'ble Judges who took a different view it is not possible for us to arrive at the conclusion that as against trespassers the main relief must always be that of possession only. The argument that the definition of the land has equally changed and, therefore, the old case-law on the point cannot be at all accepted as good law has not appealed to us. It has to be remembered that so far as the plaintiff is concerned he never intended to make any construction on his land and wants to get back its vacant possession. Therefore, the slight change in the definition of land (so as to exclude the land built upon) can hardly affect the question of jurisdiction."
22. Admittedly, the land in dispute is agricultural land. The case set up by the plaintiff with regard to the property in dispute is based on certain sale deeds, allegedly executed by the successor of the recorded tenure holder in favour of the plaintiff. The aforesaid sale deeds conveying the suit property in favour of the plaintiff have been stated by the defendants to be void as they are executed by an imposter. The defendants claim to be nephews of the deceased tenure holder who are alleged successors of the suit properties. It is not disputed by the plaintiff-respondent that by its order dated 7.9.2016, the Tehsildar stayed the order of mutation made in favour of the plaintiff-respondent. It is also not disputed that a suit No. 232 of 2016 was filed under Section 144 of the Code, 2006 before the revenue court which is pending and in which the parties have been directed to maintain status quo.
23. It needs no iteration that the suit for declaration of title in respect of an agricultural land, would not be maintainable before the civil court. In cases where the main relief is cognizable by the revenue court, the suit would be cognizable by the revenue court. The plaintiff-respondents have stated that in the suit filed in the Revenue Court by the defendant-petitioners, they have sought declaration of viodance of certain sale deeds. However, that objection is not of much significance because declaration of title has also been sought, which would be the main relief in that suit.
24. In the case of Ram Padarath (supra), a Full Bench of this Court, which also considering the case of Ram Awalamb, observed as follows:
"34. The provisions of a local Act receiving President's assent subsequently prevailed over the previously enacted Central Act. Specific Relief Act is an Act which is on the same subject than U.P.Z.A. and L.R. Act. There may be something in common here and there and as such it cannot be said that provisions of U.P. Zamindari Abolition an Land Reforms Act prevail over that of Specific Relief Act. Both are to be read together and the provisions of U.P. Zamindari Abolition and Land Reforms Act are to get precedence only in respect of the matter specifically covered by it. The provisions of Section 331 of U.P.Zamindari Abolition and Land Reforms Act cannot be interpreted or stretched so as to exclude the provisions of Specific Relief Act.
35. Section 331 of the U.P. Zamindari Abolition and Land Reforms Act excludes the jurisdiction of civil court in respect of those matters for which relief can be had from the revenue court by means of a suit, application or proceedings mentioned in Schedule II to the 'Act'. Section 331 of the Act, if read without Explanation, does not crate any difficulty. Dispute regarding jurisdiction arises when Explanation which is an integral part of the section is interpreted and applied to the facts of a particular case. The object of Explanation to any statutory provision is to understand the Act in the light of the Explanation which ordinarily does not enlarge scope of the original section which it explains, but only makes its meaning clear beyond dispute. The Explanation thus makes the things still more explicit and exists primarily removing doubts and dispute which may crop up in its absence. Section 331 of the Act alongwith Explanation cannot be read so as to oust the jurisdiction of civil court if the primary relief on the same cause of action can be granted by the civil court notwithstanding the fact that consequential relief or ancillary relief flowing out of the main relief the grant of which also becomes necessary can be granted by revenue court alone.
36. In the case of void document said to have been executed by a plaintiff during his disability or by some one impersonating him or said to have been executed by his predecessor whom he succeeds, the relief of cancellation of the document is more appropriate relief for clearing the check of title and burying deep any dispute or controversy on its basis in presenti or which may take place in future. The document after its cancellation would bear such an endorsement of Sub-Registrar's register and would be the basis for correction of any paper and revenue record including record of register. Section 31 of the Specific Relief Act itself prescribes as to who can seek relief of cancellation. A third person cannot file a suit for cancellation of a void document. If in fact no decree for cancellation was needed and real and effective relief could be granted by the revenue court only, the civil court decree would even then be valid and not void if no objection to the same was taken before the trial court. If such an objection was taken before the trial court before framing of issues and objection continued to be taken before appellate and revisional court and there has been failure of justice because of change of forum then the civil court decree could be said to be without jurisdiction.
37. Sec. 331(1-A) of the 'Act' provides that objection to the jurisdiction of court is to be taken before framing of issue, otherwise its notice will not be taken by appellate or revisional court also with a further rider that unless there is failure of justice, notice of such objection will not be taken by the superior court. As frivolous and technical pleas of jurisdiction every now and then were being taken which resulted in lingering on proceedings and delay or defeat of justice, the U.P. Legislature by U.P. Act No. IV of 1969 inserted Section 331 (1-A) extracted earlier in the U.P. Zamindari Abolition and Land Reforms Act. The statement of object and reasons for U.P. Act No. IV of 1969 itself provides that the said amendment was being made as it was considered necessary in order to curtail frivolous and technical pleas in litigation. The statement and the reasons of a statute cannot be ignored and are to be given due importance and are the safest guide for interpreting a particular statute.
38. In Utkal Contractors and Joinery ( P) Ltd. V. State of Orissa, AIR 1987 SC 2310, it was observed:
"The reason for a status is the safest guide for its interpretation. The words of a statue take their colour from the reasons for it. The reasons can be discarded from the external and internal aids. No provision in the statute and no word of a statute may be construed in isolation. Every provision and every word must be looked at generally before any provision or word is attempted to be construed. The setting and the patten are important. Further Parliament is neither expected to use unnecessary expression nor is expected to express itself unnecessarily. Even as Parliament does not use any word without meaning something. Parliament does not legislate where no legislation is called for. Again while the words of an enactment are important, the context is no 'less important. The general words should be read in context and not in isolation. The context of an Act may well indicate that wide or general words should be given a restrictive meaning. But the rules of construction, are mere aid to construction, presumption and pointers, having no binding force. In each case the court must look at all relevant circumstances and decide the weight to be attached to any rule of construction."
The reasons which led the State Legislature to insert section 331(1-A) in the Act show that the legislature intended to put an end to frivolous and technical pleas of jurisdiction. The reasons of the amendment rather discourage plea of jurisdiction unless it is really nut substantial plea. In doubtful cases the civil court's jurisdiction can easily be not ousted and a person is not to be deprived from real relief desired and made to remain satisfied with some relief in the present only.
39. Section 331(1-A) of U.P. Zamindari Abolition and Land Reforms Act is analogous to section 21 of Civil Procedure Code. Section 21 of the civil Procedure Code is also in similar language. Section 331 (1-A) of U.P. Zamindari Abolition an Land Reforms Act. Like section 21 civil Procedure Code, requires that all the three conditions must co-exist i.e., objection is raised before the trial court before framing of the issues and that there has been no failure of justice and the appellate court or revisional court cannot entertain such an objection except when it is established that there has been failure of justice in trial of the proceedings in that court.
40. The Supreme court interpreting section 21, CPC in Koapilan Umeen's daughter Pathumman V. Koopilan Umen's son Kuntalan Kutty dead by LRs, AIR 1981 SC 1983 observed that all the three conditions mentioned in section 21(1) of the Civil Procedure Code must co-exist and the failure of justice can be inferred only from the material and record. This indicates that unless it is not established that because the case was taken cognizance of by a particular court and a party was deprived from tendering evidence or because of procedural defect or difficulty he could not get full opportunity to substantiate his case or things of like nature and the same resulted in failure of justice, the plea of jurisdiction can be entertained only in such circumstances.
41. We are of the view that the case of Indra Deo V. Smt. Ram Piari, 1982 (8) ALR 517 has been correctly decided and the said decision requires no consideration, while the Division Bench case, Dr. Ayodhya Prasad V. Gangotri 1981 AWC 469 is regarding the jurisdiction of consolidation authorities, but so far as it holds that suit in respect of void document will lie in the revenue court it does not lay down a good law. Suit or action for cancellation of void document will generally lie in the civil court and a party cannot be deprived of his right getting this relief permissible under law except when a declaration of right or status of a tenure-holder is necessarily needed in which event relief for cancellation will be surplusage and redundant. A recorded tenure-holder having prima facie title in his favour can hardly be directed to approach the revenue court in respect of seeking relief for cancellation of a void document which made him to approach the court of law and in such case he can also claim ancillary relief even though the same can be granted by the revenue court."
25. Under the circumstances, in view of the fact that the defendant-petitioners prima facie do not appear to be the recorded tenure holders of the properties in the suits, and are certainly not the vendors of the sale deeds dated 14.1.2016, and they have raised the aspect of pendency of a suit for declaration of title before the Revenue Court, as well as the fact that in their objection they have stated that the order of mutation has been stayed by the Tehsildar, the temporary injunction order, as granted, could not have been made.
26. Thus, the impugned orders dated 5.12.2019 passed by the Civil Judge (Junior Division), East, Allahabad in Original Suit No. 700 of 2016 and O.S. No. 664 of 2016 as well as orders dated 9.12.2022 passed by the Additional District and Sessions Judge, Court no. 8, Allahabad in Misc. Appeal No. 8 of 2020 and 9 of 2020 are hereby set aside. The parties shall maintain status quo with regard to the suit property and shall not create any third party rights till disposal of the suit. However, the trial court may explore the possibility of a settlement under provisions of Section 89 of the Code of Civil Procedure.
27. Any observation made herein are only for purpose of deciding these petitions and shall not be taken as expression of opinion on jurisdiction of the courts or on merits.
28. This petition is, accordingly, disposed of.
Order date: 5.10.2023 sfa/ (Jayant Banerji, J)