Allahabad High Court
Ram Rikhi vs Ram Lachan on 12 February, 2024
Author: Jayant Banerji
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:23326 RESERVED In Chamber Case :- SECOND APPEAL No. - 2724 of 1984 Appellant :- Ram Rikhi Respondent :- Ram Lachan Counsel for Appellant :- K.N.Rai, D.B.Yadav, D.N. Yadav, Deep Narayan, Jai Prakash Mishra, Jokhan Prasad Yadav, Nanhe Lal Tripathi, Rajesh Tripathi, Thakur Pd. Yadav Counsel for Respondent :- K.R. Singh Hon'ble Jayant Banerji, J.
1. This second appeal has been filed by the defendant against the judgment dated 28.7.1984 passed in Civil Appeal No. 152 of 1982 by the Civil Judge II, Azamgarh, whereby, the appeal was dismissed with costs and the judgment and decree of the trial court passed in Original Suit No. 408 of 1978 was affirmed. The plaintiff's suit for cancellation of a sale deed dated 29.7.1978, accordingly, stood decreed.
2. By the order dated 5.11.1984, the aforesaid appeal was admitted on the substantial question of law that:
"Whether the courts below have erred in holding that the civil court has jurisdiction to decide the case?"
3. The original suit was filed by the plaintiff-respondent seeking cancellation of a sale deed dated 29.7.1978 on the ground that he is bhumidhar in possession of various plots mentioned in the plaint; the defendant-appellant got the sale deed executed of the plots in dispute fraudulently and by impersonation; the plaintiff-respondent never executed the sale deed and is in possession of the plots in dispute; despite the defendant-appellant being asked to get the impugned sale deed cancelled, he refused and therefore, the suit was filed.
4. In the written statement, it was stated that the plaintiff showed his willingness to sell the plots in dispute and executed the sale deed in favour of the defendant after receiving a sale consideration of Rs. 19,000/-; the plaintiff obtained permission from the Settlement Officer of Consolidation prior to execution of the sale deed; the defendant had paid a sum of Rs. 15,500/- to the plaintiff in advance and the balance consideration of Rs. 3,500/- was paid to him before the Sub-Registrar at the time of registration; the plaintiff signed and put his thumb impression on the documents after fully understanding its contents; the defendant was in possession of the plots in dispute. Pleas of jurisdiction and estoppel were made.
5. Both the parties examined their witnesses, including handwriting and fingerprint experts. The plaintiff filed certified copies of the sale deed dated 29.7.1978 and of the order of the Deputy Director of Consolidation with amended chart in respect of the plots in dispute. The issues were framed by the trial court on 7.10.1980. Issue no.1 was whether the sale deed dated 29.7.1978 is liable to be cancelled on the grounds stated in the plaint? The second issue was whether the court had jurisdiction to hear the suit? Two other issues were also framed.
6. On the Issue No.2, regarding jurisdiction of the civil court to hear the suit, the matter was heard on 4.5.1981 and 11.5.1981 was fixed for orders. On 11.5.1981 (wrongly mentioned in the order-sheet of the trial court as 11.2.1981), the trial court observed that it had jurisdiction to try the suit. The trial court observed that the matter relates to cancellation of a sale deed which was filed with the allegation that the plaintiff had not executed the sale deed and neither had he received any consideration for the same. It was stated that in the written statement, the title of the plaintiff was not disputed. The contention in the written statement was that after obtaining consideration for the plots in dispute, the sale deed was executed. The trial court observed that relief sought for could only be granted by the civil court.
7. Thereafter, by means of the judgment in Original Suit No. 408 of 1978, the suit was decreed. While decreeing the suit, the trial court dwelt on the nuances of the thumb impressions existing on the sale deed as well as on the admitted document and observed that the thumb impressions were markedly different. Further, the testimony of experts and other witnesses was referred to and it was held that the sale deed dated 29.7.1978 was liable to be cancelled. As far as the issue No. 2 was concerned, it was observed that since it was already decided previously, there was no need to decide it afresh. Accordingly, the judgment dated 5.2.1982 was passed.
8. The appellate court considered both aspects, that is, the validity of the sale deed and the jurisdiction of the civil court to decide the suit. The testimony of the witnesses was discussed at length and the circumstances considered. The thumb impression/fingerprints appearing on record and the opinion of experts including their witnesses was considered at length and it was held that the suit was correctly decreed.
9. As far as the aspect of jurisdiction is concerned, the submission made on behalf of the defendant-appellant that the matter pertains to agricultural plots and, therefore, the civil court would have no jurisdiction, the appellate court observed that in the suit, the only relief was for cancellation of a sale deed and, therefore, given the fact that the civil courts have jurisdiction to try of suit of a civil nature except those of which its cognizance is barred under any local law, it was held that the civil court is the only competent court to declare any instrument to be null and void. Accordingly, the appeal was dismissed and the judgment and decree of the trial court were affirmed.
10. Sri I.S. Tomar, learned counsel appearing for the appellant has referred to the provisions of Section 10 of the Indian Contract Act, 1972, and stated that if the character of a document is denied, then the document is void but, if the contents of the document are denied then the document is rendered voidable; that given the averments in the suit, it is evident that the sale deed dated 29.7.1978 is void and, therefore, there was no need for seeking cancellation of a sale deed whereas a mere declaration ought to have sufficed; that a suit for declaration can well be decided by the consolidation courts and revenue courts. Learned counsel has further referred to the judgment of the Full Bench of this Court in Ram Padarath and others Vs. Second Addl. District Judge and others1 to contend that since the appellant's name was recorded in the revenue records, therefore, the plaintiff is not the recorded tenure holder and therefore, the judgment of Ram Padarath would not inure to the benefit of the plaintiff. Also referred were judgments of this court in Achhe Lal & others v. Krishna Gopal Agarwal and others2, Tribhuvan v. Vedmani3, and Sheopal & others v. Lakhpata4.
11. Sri K.R. Singh, learned counsel for the respondent, has submitted that the judgment in Ram Padarath inures to the benefit of the respondent. It is stated that cancellation of the sale deed is the sole prayer made in the plaint.
12. The aforesaid second appeal was filed in the year 1984. In the year 1988 the Full Bench decision in the case of Ram Padarath (supra) was passed on a reference made to it by a learned Single Judge of the High Court, who, after noticing the judgment in the case of Indra Deo Vs. Smt. Ram Piari5 holding that suits regarding cancellation of the void instrument and documents are cognizable by the civil court, noted that a contrary view opined by the Division Bench of the High Court in Dr. Ayodhya Prasad Vs. Gangotri Prasad6, that such suit are cognizable by the revenue court, was not taken notice of. The Full Bench in Ram Padarath noted the provisions of Section 331 of the U.P. Zamindari Abolition and Land Reforms Act, 19507 and the expressions used therein as interpreted by various decisions of Courts. It was observed that the alleged or apprehended injury or cloud on the right and title of a person by some action on the part of any other person, or interference or attempt to interfere or encroach upon the right and title of a person over a particular property by any positive or negative act or declaration etc., which gave a suitor cause of action to approach a court of law for relief or reliefs against the same. It was observed that the dispute as to the jurisdiction arises when more than one reliefs are claimed in an action on the same cause of action, one of which can be granted by a civil court. While referring to the judgment in Ram Awalamb Vs. Jata Shanker8, which judgment also was rendered by a Full Bench of this Court, it was observed that if the principal or real relief can be granted by the revenue court, then the ancillary relief or the relief which flows out from the principal relief can also be granted by a revenue court and if things are in reverse direction then all the reliefs can be granted by a civil court. But, if the so-called main relief is redundant or mere surplusage then it is the real relief involved in the matter which may or may not have been claimed as ancillary relief which will determine the jurisdiction of the court which is to entertain a particular action. It was observed that even if a plaint or the application is couched in such a language so as to oust jurisdiction of a particular court then it is the cause of action and the relief flowing out of such action which would determine the forum for entertaining the said action and not the so-called relief claimed. The Court observed as follows:
"19. The forum for action in relation to void documents or instruments regarding agricultural land depends on the real cause of action with reference to the facts averred. Void documents necessarily do not require cancellation like voidable documents. A simple suit for cancellation of a document or instrument if the same casts cloud on one's right and title or is likely to cast cloud over it or affects the same adversely in respect of agricultural property, that is, 'land' poses no difficulty provided further it does not necessitate any declaration as to the claimant's right and title over the land i.e. tenancy rights under the existing law. The difficulty arises when more than one reliefs are involved or claimed. It may be that one may get effective relief in presenti without cancellation of the document, but if a document remains uncancelled for several years its existence may give rise to new trouble and litigation. The decree of a court in which a document is declared to be void and is avoided is obviously a decree in personam and the same undoubtedly binds a party but it will not be binding to each and every person as no note of such a decree can be made in the Sub-Registrar's register as provided in Section 31 of the Specific Relief Act. Such a document may mislead many and may give rise to various transactions and litigations.
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21. The jurisdiction of the consolidation authorities is wider than civil and revenue courts. Section 5(2) of U. P. Consolidation of Holdings Act provides that any suit pending in the trial court or in appeal before any appellate court in which right, title and interest over land is involved will stand abated. In view of the said provision of any appeal, may it be a special appeal, pending before Hon'ble Supreme Court would abate. Adjudication of right, title and interest over 'land' by the consolidation authorities is final. Section 8 of the U. P. Consolidation of Holdings Act provides for revision of the village map after provisional consolidation Scheme for unit is prepared. Sec. 8-A of the said Act provides for preparation of Statement of Principles, while Sec. 9 provides for issue of extracts from records and statements and publication of records mentioned in Section 8 and Section 8-A and issue of notice for inviting objection. Section 9-A provides for disposal of cases relating to claim to land and partition of joint holding. The order passed by the consolidation officer is subject to appellate and revisional jurisdiction. Even if rights are claimed on the basis of void sale-deed or questioned before the consolidation authorities, the consolidation authorities, after recording a finding on the same that it was void sale-deed can determine the rights, title and interest in the land in accordance with law ignoring the said deed on the ground that it was void. The entries are to be corrected by the consolidation authorities themselves and one has not to approach the authorities under U. P. Land Revenue Act after decision by civil or revenue court to correct the papers in accordance with their judgment and decree. If a document is cancelled by civil court then entry is to be made by the registering officer on the copy as provided in Section 31(2) of the Specific Relief Act, which gives seal to the legal ineffectiveness of the said document. But after determination by consolidation authorities the right, title of the parties taking into consideration void document, the entries will be corrected. After consolidation operations are over, the question cannot be raised or raked up before any civil or revenue court thereafter in view of Section 49 of U. P. Consolidation of Holdings Act which puts a bar on the jurisdiction of civil or revenue court not only to adjudicate such right and title or interest over land adjudicated by consolidation authorities or which could have been raised before them, but was not raised. The jurisdiction of consolidation authorities is thus wider than that of civil court and revenue court.
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23. The jurisdiction of the consolidation authorities or courts is wider than that of civil or revenue court and adjudication by them is final and cannot be responded by any civil or revenue court in view of bar for the same contained in Section 49 of U. P. Consolidation of Holdings Act which even bars, the case which should have been raised before the consolidation authorities, but not raised. The decisions given under U P. Consolidation of Holdings Act even in respect of void documents do not throw light conclusively regarding jurisdiction of civil court and revenue court with reference to Section 331 of U. P. Zamindari Abolition and Land Reforms Act. The provisions of Section 331 of the 'Act' cannot be interpreted with reference to the provisions of or language used in U. P. Consolidation of Holdings Act. It is sound principle of interpretation that provisions of another Act are not to be taken as guide for interpreting the provisions of another Act which are not in pari materia with the former Act. The cases under U. P. Consolidation of Holdings Act regarding the jurisdiction of consolidation authorities throw great light on the question of extent or exclusiveness of the jurisdiction of revenue and civil court but they do (not?) decide or resolve this controversy fully."
After considering a gamut of decisions, the Full Bench in Ram Padarath 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 and 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 create 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' along with 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 deck 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."
It was accordingly held by the Full Bench in Ram Padarath as follows:
"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."
(emphasis supplied)
13. The Supreme Court in the case of Shri Ram and another Vs. Ist Addl. District Judge and others9 referred to its decision in the case of Smt. Bismillah Vs. Janeshwar Prasad and others10 in which the decision of the Ram Padarath was approved, observed as follows:
"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".
14. In Smt. Bismillah, the case of the appellant before the Supreme Court was that she had inherited the estate of the deceased; as she was pardanshin and she on the representation of some of the respondents appointed them as her agents to manage the estate under the instrument of an agency. The document was drafted in Hindi which language was unknown to the appellant, and it was later discovered by her that that document contained an unauthorized clause empowering sale of the properties; and that taking advantage of the appellant's absence from India the agents had entered into fraudulent and collusive sales respecting the properties in favour of the other respondents who were their close relatives and confidantes. Accordingly, the suit for cancellation of the sale deeds, delivery of possession and rendition of accounts on income and profits was filed. The respondents, inter alia, pleaded bar of jurisdiction of a civil court given the provisions of Section 331 of the Act, 1951. It was observed by the Supreme Court that distinction was sought to be drawn between the class of cases where the binding effect of a deed had had to be got rid of by an appropriate adjudication on the one hand, and the class of cases in which a transaction could be said to be void in law where what the law holds to be void, there is nothing to cancel or set aside, on the other. In the former case, it was held, a suit was cognizable by the civil court while in the latter, it was not, it being open to the statutory authority to take note of the legal incidents of what was non est. The Supreme Court observed that the High Court was not quite correct to construe that the appellant's pleadings would amount to a plea of nullity of the sales and that the prayer for cancellation of the sale deeds was 'simply illusory' and that such a relief was neither necessary nor appropriate in the context of a plea of nullity. The High Court further held that the relief of possession, though appearing to be a consequential relief was really the main relief and would fall within the statutory jurisdiction.
The Supreme Court observed that though it is true that the question of jurisdiction depends upon the allegations of the plaint and not the merits of the result of a suit, however, in order to determine the precise nature of the action, the pleadings should be taken as a whole. The Supreme Court has held as follows:-
"9. ..... If as, indeed, is done by the High Court the expression 'void' occurring in the plaint as descriptive of the legal status of the sales is made the constant and determinate and what is implicit in the need for cancellation as the variable and as inappropriate to a plea of nullity, equally, converse could be the position. The real point is not the stray or loose expressions which abound in inartistically drafted plaints, but the real substance of the case gathered by construing pleadings as a whole...."
The Supreme Court elaborated the doctrine of non est factum which is a defence in common law on specialities which was available where an illiterate person, to whom the contents of the deed had been wrongly read, executed it under a mistake as to its nature and contents, he could say that it was not his deed at all. It was noted that a distinction was drawn by the authorities between the fraudulent misrepresentation as to the character of the document and fraudulent misrepresent as to the contents thereof.
It was noted therein that, prima facie, the appellant seemed to proceed on the premises that she could not ignore the sales but that the sales required to be set aside before she is entitled to possession and other consequential reliefs.
While referring to the case decided by the Allahabad High Court in Indra Dev which was approved by the Full Bench in Ram Padarath, paragraph no. 41 of the judgment of Ram Padarath was quoted by the Supreme Court and it was held that the matter would be covered by the pronouncement of the Full Bench and therefore, the civil suit was remitted to the trial court for disposal in accordance with law on the merits.
15. In the case of Narendra Kumar Mittal and others Vs. Nupur Housing Development Private Limited and another11, the question for consideration in the civil appeal before the Supreme Court was whether the suit filed by the first respondent-plaintiff for cancellation of a sale deed against the appellant-second defendant and second respondent-first defendant, and for injunction for restraining them from interfering with its possession of the property was maintainable? The Supreme Court considered the provisions of Section 331 of the Act, 1950, its judgment in Bismillah, the Full Bench of this Court in Ram Padarath and the judgment of the Supreme Court in Shri Ram, and observed as follows:
"6. In the instant case, the plaintiff has pleaded that it had purchased the disputed property under five sale deeds all dated 17-10-1998 from the first defendant. The suit was filed for cancellation of the sale deed dated 15-6-2006 on the ground of fraud and misrepresentation. The plaintiff had not sought any relief with respect to its own right and title as a tenure- holder or declaration of its title or status. As stated above, the only relief sought in the suit filed was for cancellation of the alleged sale deed dated 15-6-2006. We are of the view that Section 331 of the Act does not deprive a party of his right to approach competent court of law for getting a document cancelled, especially when, prima facie, the title of the recorded tenure-holder is not under cloud. Revenue Court does not have jurisdiction of granting relief of cancellation of a deed on the ground of fraud and misrepresentation.
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9. In the instant case, since the plaintiff claims title under sale deeds of 1998 executed by the first defendant, it need not be forced to seek a declaration of its title. Therefore, the plaintiff had filed a suit for cancellation of the subsequent sale deed executed by the first defendant in favour of the second defendant. Hence, there is no bar under Section 331 of the Act for the plaintiff to approach the civil court and the suit filed by it was maintainable."
16. In the case of Dhurandhar Prasad Singh Vs. Jai Prakash University12, the Supreme Court while considering the term 'void' and 'voidable' observed as follows:
"22. Thus the expressions "void and voidable" have been the subject-matter of consideration on innumerable occasions by courts. The expression "void" has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. The other type of void act, e.g., may be transaction against a minor without being represented by a next friend. Such a transaction is a good transaction against the whole world. So far as the minor is concerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding the transaction becomes void from the very beginning. Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made. Voidable act is that which is a good act unless avoided, e.g., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated, it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given, a transaction becomes void from the very beginning. There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable."
It needs mention that in Dhurandhar Prasad Singh, the Supreme Court was considering an appeal against a judgment of the High Court allowing a revision application while setting aside an order passed by the executing court rejecting an objection under Section 47 CPC as to the executability of a decree.
17. Before a coordinate Bench of this Court in the case of Ganga Prasad and another Vs. Ram Das Alias Pappu and others13, the order under challenge was passed in an appeal whereby an order passed by the trial court in an Original Suit deciding issue no. 8 against the plaintiffs had been set aside and the matter was remitted to the trial court to decide the suit on merits. The suit was instituted by the plaintiff-respondents against defendant-appellants for cancellation of a sale deed executed by the father of the plaintiffs on the ground that sale deed was got executed by coercion and by playing fraud on him. In the written statement filed by the defendants, it was pleaded, inter alia, that the suit was barred by Section 331 of the Act, 1950 as the property in the related sale deed was agricultural land and pursuant to the sale deed in question, the names of the defendants stood mutated in the revenue record and therefore, without seeking declaration of rights over the property, no relief could be granted by a civil court and as revenue court alone has power to declare bhumidhari rights, the suit was not maintainable before the civil court. After noticing the cases of Dhurandhar Prasad Singh, Gorakh Nath Dubey, Smt. Bismillah and Ram Padarath, it was observed as follows:
"10. From the law noticed above, it is clear that where a document is voidable it is a good act unless avoided and, therefore, its cancellation would be required, if a party seeks to avoid its natural consequences.
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14. It is equally well-settled that the question of jurisdiction depends upon the allegations in the plaint and not the merits or the result of the suit (vide Bismillah versus Janeshwar Prasad: (1990) 1 SCC 207, paragraph 9). Therefore in a suit instituted before a Civil Court for cancellation of an instrument, in respect to an agricultural land, if a plea with respect to the bar of section 331 of the UP ZA & LR Act is taken, the Court must first determine as to whether from the plaint averments the instrument, as alleged, is void or voidable. If the plaint averments go to show that the instrument is voidable at the instance of the plaintiff(s), then the suit would be maintainable in a Civil Court, but if it is alleged to be void then the Court may have to undertake a complex exercise so as to assess whether in a given set of facts a declaration of right or status of a tenure-holder is necessarily needed or not. If a declaration to that effect is necessarily needed, in that event, the relief for cancellation would be mere surplusage and redundant, because the Court, which has power to grant declaration can disregard a void document while granting a declaratory relief. In such an event a civil suit would be barred by sub-section (1) of Section 331 of the UP ZA & LR Act.
15. Coming to the facts of the instant case, from the plaint, which is on record as Annexure No.3 to the affidavit, it is found that the ground on which cancellation of the sale-deed has been sought is that the sale-deed was got executed by coercion and by playing fraud on Deepchand, the recorded tenure-holder. There is no dispute with regards to the fact that Deepchand, on the date of execution of the sale-deed, was the recorded tenure-holder. The cancellation has been sought, primarily, on ground that there was no free consent of the vendor. Section 19 of the Indian Contract Act provides that when consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused. Therefore, according to the plaint averments the sale deed in question would be voidable at the option of the plaintiffs. The effect of such a deed cannot be avoided unless it is cancelled by a decree. As the revenue Court has no power to pass a decree of cancellation of a document, the suit would lie before the Civil Court irrespective of the fact that name of the defendant-appellants have been entered in the revenue record consequent to the execution of the sale-deed. ....................."
18. In the present case, the plaintiff has filed a suit for cancellation of a sale deed in which he has denied execution of the same. In the suit filed by the plaintiff-respondent, it is stated in the plaint that the plaintiff was and is the bhumidhar of the properties in dispute; there was no talk between the defendant and the plaintiff with regard to the execution of the sale deed nor was there any question of the same; the defendant took an imposter to the office of the Sub-Registrar and got executed a sale deed dated 29.7.1978 in the mentioned disputed plots of land which was registered which is illegal, ineffective and liable to be set aside on the reasons that the aforesaid document was never executed by the plaintiff nor was any amount of money received by the plaintiff from the defendant in any manner, nor was there any talk between the plaintiff and the defendant with regard to the sale deed nor was there any need of getting the sale deed executed for want of money, nor did the plaintiff give the possession of the disputed properties to the defendant. That the defendant believed the plaintiff to be weak and poor and included the witnesses to the instrument in his conspiracy and got a person to impersonate the plaintiff for execution of the deed and for appearing before the Sub-Registrar; regarding this fact, after coming to know through rumours, the plaintiff speedily obtained a certified copy; since the defendant is not prepared to get the deed cancelled, therefore it is necessary to file the suit. Since, the sale deed is a cloud on the title of the plaintiff, its existence would affect the right of the plaintiff and the possession of the plaintiff is intact and the sale deed gives a false appearance of rights, therefore the suit for cancellation of the sale deed was necessary to be filed.
19. It is not in dispute that on the date of the execution of the sale deed, the plaintiff was the recorded owner of the plots in dispute. The plaintiff is in possession of the plots in dispute, as per the averments made in the plaint. The plaintiff, thus, would not require a declaration as to his title, but, given the sole relief sought in his plaint, he would require a decree for cancellation of the sale deed.
20. In view of the observations of the Supreme Court in the case of Narendra Kumar Mittal and the observations of the Full Court of this High Court in Ram Padarath, it is evident that the document, which is the sale deed in dispute would remain in the records of the Sub-Registrar as a valid instrument unless it is cancelled by a decree of the Civil Court which is a relief permissible under law. As noted above, the finding of fact recorded by the trial court as well as the first appellate court reflect that the thumb impression of the plaintiff was not affixed on the sale deed dated 29.7.1978. Under the circumstances the relief of cancellation of the document, was the more appropriate relief for clearing the deck of title and burying deep any dispute or controversy on its basis which may occur at any point of time.
21. It may be mentioned that the judgments cited by the learned counsel for the appellant would not be to the benefit of the appellant. In Achhe Lal, the court had noticed that there was a clear dispute of the share and title of the suit property requiring determination of co-sharers and their share, which fact distinguishes it from the present case.
In Tribhuvan, while culling the legal position regarding jurisdiction of civil court vis-a-vis consolidation courts, this court dismissed the petition while upholding the order of abatement passed in a suit seeking cancellation of a document, as well as the order of the revisional court whereby the trial court's order was affirmed. However, the judgment of the Supreme Court in the case of Narendra Kumar Mittal has dealt with the issue of jurisdiction regarding civil court vis-a-vis revenue courts, which would apply in the case at hand. Moreover, in the present case the sole relief in the plaint was of cancellation of the sale deed, which was warranted.
As regards the judgment in Sheopal, it is pertinent to mention here that that judgment was considered in the case of Ram Padarath.
22. In view of the facts and circumstances narrated hereinabove, it is held that the trial court has jurisdiction in respect of the subject suit and the substantial question of law is answered accordingly. Even otherwise, the judgments and the decrees passed by the courts are well reasoned and based on the record and require no interference. This second appeal is, accordingly, dismissed.
Order Date :- 12.2.2024 A. V. Singh (Jayant Banerji, J.)