Rajasthan High Court - Jodhpur
Sunil Bhandari And Anr vs Shakuntala Kumari And Ors on 2 July, 2018
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Revision No. 268 / 2013
1. Sunil Bhandari s/o Shri Dhanpat Raj Bhandari,
R/o Shastri Nagar, Jodhpur (Raj.).
2. Smt. Sharda w/o Shri Bhanwar Lal Choudhary,
R/o West Patel Nagar, Ratanada, Jodhpur (Raj.)
----Petitioners
Versus
1. Shakuntala Kumari alias Sangeeta Kanwar D/o Shri Prem
Singh, by caste Rajput, r/o Kaparda, presently Bilalara,
Tehsil Bilara, District Jodhpur (Raj.).
2. Puran Mal s/o Shri Ram Kumar,
3. Bihari Lal s/o Shri Puran Mal,
4. Ram Kishore s/o Shri Puran Mal,
All by caste Joshi, r/o Nawalgarh, District Jhunjhunu,
presently Phalodi, District Jodhpur (Raj.).
5. Chen Singh s/o Shri Madho Singh, by caste Rajput, r/o
Kaparda, tehsil Bilara, District Jodhpur (Raj.).
6. Daulat Ram s/o Shri Bhanwar Lal,
7. Dungar Mal s/o Shri Bhanwar Lal,
both by caste Gulguliya, r/o Nal, District Bikaner; presently -
Phalodi, Near Main Market, District Jodhpur (Raj.).
8. Kanchan Devi w/o Shri Lunkaran, by caste Oswal, r/o
Kumbhaton Ka Bas, Mahamandir, Jodhpur (Raj.).
9. Rai Singh s/o Shri Heera Chand, by caste Jain Khajanchi, r/o
Khajanchi Mohallah, Bikaner (Raj.).
10. Prem Nath s/o Shri Pyare Lal Sachdev,
11. Kumari Deepti D/o Shri Prem Nath Sachdev,
both by caste Brahmin, r/o 7, Geeta Bhawan, Jodhpur (Raj.)
12. Subhash Chopra s/o Shri Ghewar Chand Oswal, r/o
Ratanada, Jodhpur (Raj.).
13. Smt. Rekha w/o Shri Sudharshan Gupta, by caste Agarwal,
r/o Jindal House, Loco Road, Ratanada, Jodhpur (Raj.).
14. The District Collector, Jodhpur (Raj.).
15. The Tehsildar / Sub-Registrar, Bilara, District Jodhpur (Raj.)
(2 of 12)
[CR-268/2013]
16. Managing Director, Rajasthan State Electricity Transmission
Corporation Limited, Vidhyut Bhawan, Jyoti Nagar, Jaipur
(Raj.).
17. Assistant Engineer, Rajasthan State Electricity Transmission
Corporation Limited (C&M), 400 KVGSS, Bilara, District
Jodhpur (Raj.).
18. Pawan Kanwar w/o Shri Prem Singh, r/o Kaparda, presently
Village Narsana via Kishangarh, District Jalore (Raj.).
19. Praveen Kumar s/o Shri Prem Singh, by caste Rajput, r/o
Kaparda, Tehsil Bilara, District Jodhpur (Raj.)
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. O.P. Mehta.
For Respondent(s) : Mr. Prateek Rohiwal.
_____________________________________________________
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 02/07/2018 Reportable This revision petition is directed against the order dated 26.11.2013 passed by the trial court, whereby the application filed by the petitioners under Order VII, Rule 11 CPC has been rejected.
The respondent No.1 daughter of Prem Singh filed a suit for cancellation of sale deeds and permanent injunction inter-alia seeking declaration that documents No.1534 & 1533 dated 15.09.1979 to the extent of her half share be declared void and the land transferred by the documents be ordered to be recorded in her name in the revenue records.
It was inter-alia claimed in the plaint that agricultural land ad measuring 2486 Bigha 10 Biswa is situated in Village Kaparda, Tehsil Bilara, District Jodhpur. In the said land the plaintiff and defendant No.20 i.e. Praveen Kumar, her brother have 2/16 share (3 of 12) [CR-268/2013] ad measuring 336 Bigha 4 Biswa, they are in possession as co- tenant and the land has not been partitioned so far. The land in question was recorded in the name of plaintiff and her brother as per their share through guardian defendant No.19 Smt. Pawan Kanwar, their mother. The plaintiff and defendant No.20 were minors and defendant No.4 Chain Singh, who is real bother of plaintiff's father, showing himself as power of attorney holder of plaintiff and defendant No.19 Pawan Kanwar as guardian of defendant No.20, fraudulently sold 75 Bigha land on 15.04.1979 through document No.1534 to defendants No.1 to 3 and 50 Bigha land to defendants No.5 & 6 through document No.1533 i.e. in all 125 Bigha land was fraudulently transferred with an intention to misappropriate plaintiff's land. It was alleged that on the date when the documents were executed, the plaintiff and her brother both were minors and the land was recorded in their name through guardian; their mother Pawan Kanwar did not execute the power of attorney in favour of the defendant No.4 and there was neither necessity for transferring the land in question nor the same was for the benefit of the minors and the land in question was transferred by the defendant No.4 under a planned fraud by claiming himself to be a power of attorney holder of plaintiff and defendant No.20.
Further averments were made seeking to indicate as to how the plaintiff came to know about the events which led to transfer of the land in question. It was claimed that no power of attorney was ever executed and no consideration against the land was received by any of the members of family and therefore, the sale (4 of 12) [CR-268/2013] deeds in question were null and void and does not create any right in favour of the defendants-transferees. The land in question has further been transferred by the transferees to the other defendants and the same have also been got recorded in the revenue records. Based on the above averments, the relief as indicated herein-before was claimed.
The petitioners-subsequent transferees, filed application under Order VII, Rule 11 CPC seeking rejection of the plaint inter- alia with the averments that already a revenue suit filed by the plaintiff with her mother and brother was under consideration before the competent revenue court and on account of the said suit already pending, the civil court does not have jurisdiction to decide the suit and therefore, the plaint deserves to be rejected.
Reply to the application was filed with the submissions that as the plaintiff has claimed cancellation of the said deeds, the suit was maintainable.
The trial court, after hearing the parties, by the impugned order came to the conclusion that the plaintiff has sought declaration of the sale deeds to the extent of her share as void and the jurisdiction to declare a sale deed pertaining to the revenue land as void is vested in the civil court and therefore, the suit was maintainable and consequently rejected the application.
It is submitted by learned counsel for the petitioners that the trial court committed grave error in rejecting the application filed by the petitioners. It is submitted that a bare look at the plaint would reveal that the suit pertained to agriculture land and as the case of the plaintiff has been that the documents in question are (5 of 12) [CR-268/2013] null & void, only the revenue courts would have jurisdiction to deal with the prayer pertaining to declaration of rights of the plaintiff and/or her brother. It was submitted that merely because a cancellation of the sale deed has been prayed for in the plaint, the same by itself cannot confer the jurisdiction on the civil court. The trial court has not dealt with the said aspect and therefore, the judgment impugned deserves to be quashed and set-aside.
Further submissions were made that the execution of sale deed has been questioned on the ground that the same was without consideration and as a transfer without consideration is void, in view of the settled law that in a case where a party claims document in question as void, in a dispute pertaining to agriculture land, exclusive jurisdiction lies before the revenue courts and therefore, on that count the order impugned deserves to be quashed and set-aside.
Reliance was placed on Pran Nath & Ors. v. Bal Kishan & Ors. : AIR 1959 Punjab 313 and Baidi Singh v. Singrai Murmu & Ors. :
AIR 1962 Orissa 170. It was prayed that the revision petition be allowed and the plaint be rejected.
Learned counsel for the respondents supported the order impugned. It was submitted that the transferor, uncle of the plaintiff claimed himself to be a power of attorney holder of guardian of the plaintiff, who was minor at the relevant time and transferred the land in question, if left unchallenged, same would be a valid transaction and therefore, it cannot be said that the transaction in question is void, instead the same is voidable and therefore, the suit is maintainable before the civil courts though (6 of 12) [CR-268/2013] the same pertains to an agriculture land. Further submissions were made that the allegation in the plaint essentially pertains to a forged power of attorney and as a consequence thereof it has been indicated that the sale took place without the owners i.e. inter-alia the plaintiff receiving any consideration and thereafter the plea raised in this regard by the petitioners regarding not maintainability of the suit on account of allegations being that of transfer without consideration are baseless and therefore, no interference is called for in the order impugned.
Reliance was placed on Hasti Cement Pvt. Ltd. & Anr. v.
Sandeep Charan & Ors. : S.B. Civil Revision No.137/2015 decided on 07.03.2018.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
It would be appropriate to notice the relevant averments made in the plaint :-
^^2- ;g gS fd mijksDr Hkwfe iwoZ esa okfn;k ,oa izfroknh la- 20 izoh.k dqekj ds uke muds fgLls eqrkfcd tfj;s laj{kd izfroknh la- 19 iou daoj ntZ Fkh rRle; oknh;k ,oa izfroknh la- 20 ukckfyx Fks rFkk izfroknh la- 4 oknh;k ds firk izseflagth dk lxk HkkbZ gS ,oa mldh fu;r "kq: ls gh mijksDr Hkwfe dks gM+ius dh jgh gS blh fu;r ls mlus Lo;a dks oknh;k o izfroknh la- 20 ds lja{kd izfroknh la- 19 iou daoj dh vksj ls mudk eq[R;kj crkdj QthZ rjhds ls mijksDr Hkwfe esa ls oknh;k ds dCts ,oa fgLls dh Hkwfe esa ls [kljk ua- 6 Ng esa ls fnukad 15-4-1979 iUnzg vizSy mUuhl lkS muh;klh dks 75 fipgj ch?kk Hkwfe tfj;s cSpku nLrkost la- 1534 c,ost :i;s 3750@& v{kjs rhu gtkj lkr lkS ipkl :i;s esa izfroknh la- 1 ls 3 dks cfgLlk cjkcj dj cSpku dj fn;k rFkk 50 ipkl ch?kk Hkwfe dk cSpku izfroknhx.k la- 5 o 6 dks tfj;s cSpku nLrkost la- 1533 c,sot :i;s 2500@& v{kjs nks gtkj iakp lkS :i;s esa dj fn;k rn~uqlkj izfroknh la- 4 us mijksDr nksuksa cSpku i= ftUgsa okn i= esa vkxs oknxzLr cSpku i= ds :i esa lEcksf/kr fd;k x;k gS ds tfj;s dqy 125 ,d lkS iphl ch?kk Hkwfe dk cSpku QthZ rjhds ls vU;
izfroknhx.k ds lkFk lkaBxkaB dj oknh;k dh Hkwfe gM+ius dh fu;r ls dj fn;kA 3- ------------------------------------- mDr frfFk dks vFkok blls iwoZ dHkh Hkh oknh;k ,oa izfroknh la- 20 dh vksj ls muds lja{kd izfroknh la- 19 (7 of 12) [CR-268/2013] iou daoj us drbZ dksbZ eq[R;kjukek izfroknh la- 4 ds i{k esa fu'ikfnr ugha fd;k u oknh;k ds ifjokj esa mDr Hkwfe dks fdlh ln~Hkkoh vko";drk@vnk;xh dh vkM+ esa mijksDr oknxzLr cSpku nLrkost v/khu Hkwfe dks cSpku djus dh vko';drk gh jgh u ,slk djuk ukckfyxku ds fgr es gh Fkk blds mijkUr izfroknh la- 4 us ,d lqfu;ksftr "kM+;U= ds rgr vU; izfroknhx.k ds lkFk lkaBxkaB dj Lo;a dks QthZ rjhds ls oknh;k o izfroknh la- 20 dk eq[R;kj n'kkZdj lkt'khrksj ls diViwoZd oknxzLr QthZ cSpkuukesa fu"ikfnr fd;s ,oa buds tfj;s 125 ,d lkS iphl ch?kk Hkwfe vkxs vUrfjr dj nhA ftlesa oknh;k dk fu'pk;d :i ls 1@2 ,d@nkS fgLlk fufgr gSA 5- ;g gS fd izfroknhx.k ds i{k esa fd;s x;s fooknxzLr cSpku i= v/khu Hkwfe ds laca/k esa dHkh Hkh oknh;k vFkok mlds ifjokj ds fdlh Hkh O;fDr dh vksj ls dHkh dksbZ eq[R;kjukek fu"ikfnr ugha fd;k x;k u fooknxzLr cSpku v/khu Hkwfe ds cny dh jkf'k oknh;k vFkok mlds ifjokj ds fdlh O;fDr us izkIr gh dh gSA rn~uqlkj gj gky esa fooknxzLr cSpku i= dkuwu dh utj esa 'kqU; o vizHkkoh gSA ftlds vk/kkj ij izfroknhx.k dks drbZ dksbZ vf/kdkj mRiUu ugha gksrs gSA--------------------------------------** A bare look at the above averments would indicate that the allegations pertained to transfer of the land in question standing in the name of minors by the defendant No.4 by claiming himself to be the power of attorney holder of guardian of the two minors i.e. the plaintiff and her brother. Further allegations have been made that the transfer was not for any bonafide requirement and/or for the benefit of the minors. Ultimately, it has also been claimed that as no power of attorney was executed by the guardian/mother of the plaintiff and her brother, no consideration has been received by them/family and therefore, the sale deeds were null and void.
This Court in the case of Hasti Cement Pvt. Ltd. (supra) after taking into consideration large number of judgments pertaining to maintainability of a suit seeking cancellation of sale deed pertaining to an agriculture land, in view of bar created by Section 207 of the Rajasthan Tenancy Act,1955 inter-alia laid down as under :-
(8 of 12) [CR-268/2013] "From what has been noticed hereinbefore, it can be safely concluded that if the allegation in the plaint/substance of the allegations in the plaint allege the instrument to be void and no cancellation is required and without seeking such cancellation the relief of declaration pertaining to tenancy rights with regard to the agricultural land in question can be obtained by the plaintiff, only the revenue courts would have jurisdiction to deal with the subject matter of the suit and consequently the jurisdiction of civil courts would be barred. However, if the allegations made in the plaint make out a case of document being voidable, relief of cancellation of such a voidable document can only be granted by civil court and irrespective of the fact that the instrument pertains to agricultural land, the suit would not be barred under Section 207 of the Tenancy Act. Therefore, the trial court in each case, where a issue in this regard is raised, based on the stage of the suit i.e. either based on the plaint averments or the evidence available on record would have to come to a conclusion as to whether the facts as alleged, if established or as established in a case where evidence has been led makes the instrument void or voidable and decide accordingly."
In view of what has been laid down in the case of Hasti Cement Pvt. Ltd. (supra), a further issue arises regarding void and voidable transaction.
Hon'ble Supreme Court in Govt. of Orissa v. Ashok transport Agency & Ors. : (2002) 9 SCC 28 after analysing the Indian & English Law on the subject, inter-alia laid down as under :-
"50. Thus the expressions "void and voidable" have been 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 good transaction against the whole world. So far 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 apparent state of affairs is 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 (9 of 12) [CR-268/2013] setting aside the same, it cannot be treated to be void but would be obviously voidable."
(emphasis supplied) The judgment in the case of Ashok Transport Agency (supra) has also been followed in Baljinder Singh v. Rattan Singh : (2008) 16 SCC 785, wherein also the issue as to whether the document is void or voidable has been discussed exhaustively.
The implication of any document being void has been explained in Rajasthan State Industrial Development & Investment Corporation v. Subhash Sindhi Cooperative Housing Society, Jaipur & Ors. : (2013) 5 SCC 427 as under :-
"15. In Smt. Kalawati v. Bisheshwar, this Court held: (AIR p. 265, para 9) ".... void [means] non-existent from its very inception...."
16. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, this Court held: (SCC p. 439, para 7) "7. ......... The word "void" has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. There are degrees of invalidity, depending upon the gravity or the infirmity, as to whether it is, fundamental or otherwise. ......"
17. The word, "void" has been defined as: ineffectual; nugatory; having no legal force or legal effect; unable in law to support the purpose for which it was intended. (Vide:
Black's Law Dictionary). It also means merely a nullity, invalid; null; worthless; cipher; useless and ineffectual and may be ignored even in collateral proceeding as if it never were.
18. The word "void" is used in the sense of incapable of ratification. A thing which is found non-est and not required to be set aside though, it is sometimes convenient to do so. There would be no need for an order to quash it. It would be automatically null and void without more ado. The continuation orders would be nullities too, because no one can continue a nullity. (Vide: Behram Khurshid Pesikaka v. State of Bombay, Pankaj Mehra & Anr. v. State of Maharashtra & Ors., Dhurandhar Prasad Singh v. Jai Prakash University and Govt. of Orissa v. Ashok Transport Agency .)"
In the case of Ashok Transport Agency (supra), it has been specifically indicated that voidable act is that, which is a good act unless avoided and example has been given that if a suit is filed for a declaration that a document is fraudulent and/or forged and (10 of 12) [CR-268/2013] fabricated, it is voidable as apparent state of affairs is real state of affairs and a party who alleges otherwise is obliged to prove it. In the present case, the plaintiff is seeking to allege that the power of attorney allegedly executed by the guardian/mother of the plaintiff and her brother which has formed the basis for execution of sale deed on behalf of the minors, is a fraudulent document and/or forged and fabricated, the same, therefore, would have to be proved and therefore voidable only and the sale deed executed based on the power of attorney unless so proved cannot be said to be void as suggested by counsel for the petitioners.
Once the allegations made in the plaint seeks to make out a case of a fraudulent / forged power of attorney, which formed the basis for execution of sale deed, the said transaction would only be voidable and cannot be said to be void and therefore, the suit for seeking cancellation of such voidable documents would only be maintainable before a civil court.
Reliance placed by learned counsel for the petitioners on the judgment in the case of Pran Nath (supra) is not of much assistance. In the said judgment, the principles laid down reads as under :-
"(20) After giving our careful consideration to the entire matter, we have arrived at the following conclusions :
(1) if a sale of a minor's property is made by a person who is not the minor's guardian either according to his personal law or by appointment by Court, such a sale is a nullity, and no suit need be brought to set aside the same;
(2) if, however, a sale is made by a natural guardian who goes beyond the scope of his authority, or if it is made by a certificated guardian without the permission of me Court, the transaction is merely voidable at the instance of the minor and will bind him till he succeeds in impeaching it;
(3) that a suit by a quondam minor to set aside an alienation of his property by his guardian is governed by Article 44 of the First Schedule of the Indian Limitation Act;
(11 of 12) [CR-268/2013] (4) that if a quondam minor brings a suit for possession of the property alienated by his guardian or for redemption of a mortgage of a property effected by his guardian, the suit will also be governed by Article 44 of the First Schedule of the Indian Limitation Act and not by Article 148 of the Indian Limitation Act;
(5) that the proposition of law that a plaintiff need not sue to set aside a transfer to which he was not a party may well apply to a case of a reversioner impugning an alienation by a Hindu widow, but cannot possibly apply to the case of at minor on whose behalf an alienation has been made by his guardian and who is for all intents and purposes regarded as a party to the transfer; and .........."
Even as per the above principles laid down in terms of Clause (2) & (5) (supra), the allegation in the plaint make out the transaction to be voidable only.
So far as the submissions made by learned counsel for the petitioners regarding the allegations made in the plaint regarding the transaction being without consideration and consequently being void and therefore, triable by the revenue courts is concerned, as already noticed herein-before, the averments made with regard to lack of consideration essentially stems from the foundational allegation that the transfer is based on forged/fabricated power of attorney which was never executed by the guardian/mother of the plaintiff and as a consequence thereof, no consideration was received by the plaintiff and/or her family. If the plea regarding consideration is taken as the foundational plea as sought to be projected by the petitioners, the same would amount to putting the cart before the horse in the present circumstances, wherein the allegations regarding a deal without consideration would necessarily mean that in so far as the deal is concerned, the same is accepted, which is not the case here.
(12 of 12) [CR-268/2013] So far as the judgment in the case of Baidi Singh (supra) relied on by learned counsel for the petitioners is concerned, in view of above discussion, though the principle laid down therein, cannot be disputed, the same would have no implication in so far as the present case is concerned.
In view of the law laid down by this Court in Hasti Cement Pvt. Ltd. (supra) and the categorical principles laid down by the Hon'ble Supreme Court in the case of Ashok Transport Agency (supra) regarding document/transaction of present nature as per the allegation contained in the plaint being voidable, it cannot be said that the suit was triable by the revenue courts and as such, the plaint was liable to be rejected under the provisions of Order VII, Rule 11(d) CPC.
Consequently, there is no substance in the revision petition and the same is, therefore, dismissed.
No order as to costs.
(ARUN BHANSALI)J. Rm/-
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