Allahabad High Court
Bansraj And Others vs Moti And Others on 30 July, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 18 Reserved A.F.R. Case :- SECOND APPEAL No. - 545 of 1992 Appellant :- Bansraj And Others Respondent :- Moti And Others Counsel for Appellant :- V.K. Singh,M.N.Singh Counsel for Respondent :- V. Singh, M.K.Singh, Manoj Kumar Singh, Namwar Singh, Sanjiv Singh Hon'ble J.J. Munir,J.
1. This is a plaintiffs' second appeal from a judgment and decree of Sri K.N. Pandey, the then Third Additional District Judge, Jaunpur, dated 21.01.1992, dismissing Civil Appeal no.236 of 1982 with costs, and affirming an original decree of Sri Ashok Kumar Tiwari, the then Third Additional Munsif, Jaunpur, dated 17.09.1982, passed in Original Suit no.517 of 1980, dismissing the said suit for reliefs of permanent prohibitory injunction and cancellation. This appeal was admitted to hearing on the substantial question of law, whether the suit is barred under Section 331 of the U.P. Z.A. & L.R. Act.
2. This Appeal was heard on the said question of law on 27.02.2019 and judgment was reserved. This Court felt that some other questions of law, relative to the question last mentioned, but framed in more specific terms, that would enable parties to better address the Court on their respective case, were required to be framed. Accordingly, this Appeal was posted for further hearing on 01.05.2019. On the said date, the following substantial questions of law were framed:
"(i) Whether a suit held barred by the provisions of Section 331 of the U.P. Z.A. & L.R. Act would entail a decree of dismissal of the suit, or an order for return of the plaint to be presented to a Court of competent jurisdiction?
(ii) Whether the rights and title of parties to land concluded in terms of an order passed by the Consolidation Authorities and recorded as such in the Revenue Records can be re-agitated by the said parties in a suit before the Civil Court notwithstanding the provisions of Section 49 of the U.P. Consolidation of Land Holdings Act?
(iii) Whether an order of the Consolidation Courts deciding rights of parties in terms of a compromise, not set aside on ground of fraud or otherwise within the prescribed period of limitation is relevant evidence in a subsequent suit inter partes relating to the same land litigating under the same title under Section 44 of the Indian Evidence Act?"
3. The first question of law as rephrased takes in its fold the substantial question law, on which this Appeal was admitted to hearing. Question nos.2 & 3 are added questions with reference to different issues. The learned counsel for the parties were, accordingly, heard afresh on 01.05.2019, and judgment was reserved.
4. Heard Sri Anmol Ranjan, holding brief of Sri M.N. Singh, learned counsel for the appellants and Sri V. Singh along with Sri Manoj Singh, learned counsel appearing on behalf of the defendant-respondent.
5. It may be indicated at the outset that the suit was filed by the two plaintiffs, Heera and Jawahir, both sons of Vishwanath Kushwaha against four defendants, to wit, Moti, Rambali, Nandlal and Ram Palat. Pending appeal before the lower Appellate Court, of the two plaintiffs, Heera died and was substituted by his heirs and legal representatives, to wit, Bansraj and Hansraj. Before this Court, the Appeal was filed by Bansraj and Hansraj, and the then surviving one of the two original plaintiffs, Jawahir. Pending this Appeal, Jawahir, plaintiff/ appellant no.3 has passed away, and is represented by his heirs and legal representatives, numbering five. Likewise, amongst the original defendants, defendant/ respondent no.1, Moti and defendant/ respondent no.2, Nandlal, have died pending this Appeal and are represented on record by their respective heirs and legal representatives. The appellants in this Appeal, shall hereinafter be referred to as the plaintiffs whereas the respondents shall be called the defendants, except where they are individually referred to.
6. The suit in this case was instituted on 06.12.1980 seeking reliefs of permanent prohibitory injunction to the effect that the defendants be restrained from interfering with the plaintiffs' possession in the suit property as detailed in Schedule-A to the plaint, and to refrain in any manner from interfering with their possession or disturbing the same. By a separate relief, a decree was sought claiming cancellation of sale deed dated 11.11.1980 A.D. executed by defendant no.1 in favour of defendant nos.2 & 3, in so far as it relates to half of the area of land detailed in Schedule-A to the plaint.
7. A reference to some facts that have given rise to the present appeal is necessary. The first to be mentioned, are the two pedigrees, one being of the plaintiffs, and, the second, being of defendant no.1, Moti as propounded by the plaintiffs through an amendment to the plaint, permitted by the Court vide order dated 01.04.1981.
The pedigree of the plaintiff:
Dhannu Mallah Kanhai Vishwanath Heera Jawahir (plaintiff no.1) (plaintiff no.2) The pedigree of defendant no.1:
Gannu Mallah Mittu - Mst. Biranji @ Viyau Natthu (Tarayal son) Moti
8. It must be noticed here that the plaint as originally drawn had set out a pedigree very different from that brought through the amendment referred above. The pedigree prior to its amendment has shown the plaintiffs and the defendants to be descendants of a common ancestor, Gannu Mallah. Through the amendment brought, however, the plaintiffs and the defendants, have been claimed to be strangers, with Gannu Mallah being the predecessor-in-title of the defendants and Dhannu Mallah to be that of the plaintiffs. The pre-amended pedigree of parties, of which both Courts below have taken due note, is depicted below:
Gannu Mallah Kanhai Mittu - Biranji Vishwanath Natthu (Tarayal) Moti Heera Jawahir Chandra Shekhar Subhash
9. The case of the plaintiffs is that they are the descendants of one Dhannu Mallah, who had one son Kanhai and no other. It has been emphasized that Kanhai had no brother. Kanhai too had one son, Vishwanath. The two original plaintiffs, Heera and Jawahir are sons of Vishwanath. It has further been pleaded that the defendants' ancestor was Gannu Mallah, whose son was Mittu. Mittu was unmarried. He settled with a widow named Biranji in some kind of a relationship (may be recognised by custom, but did not marry her). Biranji had brought along her son, Natthu, begotten of her deceased husband. Natthu last mentioned is described in his relationship to Mittu, or the family that his mother became part of, as ''Tarayal', which is a word of local usage. According to the plaintiffs, the property detailed in Schedule A to the plaint was in the agricultural tenure of Kanhai, the plaintiffs' grandfather whereas property detailed in Schedule B to the plaint, was holding of Mittu, the predecessor-in-title of the defendant. It is the plaintiffs' case that Mittu did not beget a son from the relationship that he had with Biranji, and he died in the lifetime of Biranji, issuless. Biranji came to be recorded as the tenure holder of land detailed in Schedule B as Mittu's widow, after his decease. After some passage of time, Smt. Biranji passed away. It is pleaded by the plaintiffs that their grandfather, Kanhai had passed away before Smt. Biranji's death. In consequence, the tenure that was holding of Kanhai, detailed in Schedule A, devolved upon his son, Vishwanath. At the time when Biranji passed away, Vishwanath, the plaintiffs' father, in addition to the property detailed in Schedule A, that had devolved upon him from Kanhai, also took possession of the property shown in Schedule B to the plaint. All this happened before the abolition of Zamindari, as it appears from the pleadings of parties (though not specifically said so in the plaint). The Zamindar acknowledged rights of Vishwanath, vis-à-vis land detailed in Schedule B to the plaint and admitted him as a tenant/ kashtkar of land last mentioned, also. In consequence, the plaintiffs' father, Vishwanath was admitted by the Zamindar to be the tenant of both plots of lands comprising Schedule A and Schedule B to the plaint, and in possession of the same. It is also pleaded that the plaintiffs' grandfather, Vishwanath's name came to be recorded over land detailed both in Schedule A and Schedule B to the plaint. Lands comprising all that is in Schedule A and Schedule B, thereupon was registered as one Khata with the plaintiffs' grandfather as the recorded tenant.
10. It is further pleaded by the plaintiffs that Vishwanath passed away when the plaintiffs were children/ minors, whereupon the two original plaintiffs, Heera and Jawahir, sons of Vishwanath became tenure holders in possession of all property that is shown in Schedule A and Schedule B to the plaint. After Vishwanath's decease, Natthu who had no connection with the earlier recorded tenure holder, Mittu's family, laid his claim to land comprising Schedule B to the plaint. It is pleaded that in connivance with the local Patwari, Natthu last mentioned in a clandestine manner got his name recorded by falsely portraying himself to be the son of Mittu, not only over the land comprised of Schedule B, but the entire suit property detailed at the foot of the plaint, along side the plaintiffs as a co-sharer. This fraud came to light when the plaintiffs' mother went to deposit ten times the land revenue in order to enlarge the plaintiffs' right into bhumidhari (as they were minors at that time) under the provisions of The United Provinces Agricultural Tenants (Acquisition of Privileges) Act, 1949. The plaintiffs' mother discovered the collusive entry in Natthu' name at that time, insofar as the plaintiffs' rights over land comprising Schedule A to the plaint are concerned. The aforesaid dispute was resolved with the intervention of Zamindar, and it is the plaintiffs' case that a compromise was entered into, by which the plaintiffs were acknowledged to be bhumidhars of plot no.2788, admeasuring 54 decimals, and Natthu became the bhumidhar of the land comprising Schedule B to the plaint. It is also pleaded that in accordance with the aforesaid compromise, both parties, that is to say, the plaintiffs' mother acting on their behalf and Natthu for himself deposited ten times the land revenue and a bhumidhari sanad each was issued in favour of the plaintiffs and Natthu, respectively. By the said bhumidhari sanad, the plaintiffs became the exclusive bhumidhars of all that land comprised in Schedule A to the plaint whereas Natthu became bhumidhar of all land, comprising Schedule B to the plaint.
11. At this juncture, it would be profitable to describe all that land, that is comprised in Schedule A and Schedule B to the plaint. Schedule A to the plaint bears khasra no.2788, admeasuring 54 decimals whereas land comprising Schedule B to the plaint bears khasra no.2787, admeasuring 20 decimals. The new number of khasra no.2787 (20 decimals) is 2695, and that of khasra no.2788 (54 decimals) is 2696. Though much is said about the rights of parties in property detailed in both Schedules A and B to the plaint, that is all part of the transaction giving rise to the present cause of action, as would be seen hereinafter, there is no issue in the suit about the land detailed in Schedule B to the plaint, which has been given to detail the entire background of facts and the transaction that has led to the suit. The property in dispute in the present suit is confined to that detailed in Schedule A to the plaint alone. So much for the description of the property and its detail that is the subject matter of action between parties.
12. Reverting back to the manner in which the rights of parties came to be asserted in conflict over time leading to the present suit, it was an event in that direction when Natthu passed away and his son, Moti became the sole bhumidhar of khasra no.2787, admeasuring 20 decimals (Schedule B to the plaint). Moti, unknown to the plaintiffs, sold a claimed half share of land comprised of khasra no.2788 (54 decimals) to defendants nos.2 & 3 to the suit, Rajbali and Nandlal vide registered sale deed dated 11.11.1980. The said sale deed in favour of defendants nos.2 & 3 was executed through their father, defendant no.4, Ram Palat, as defendants nos.2 & 3 to the suit last mentioned, at the time of execution of the sale deed, were minors. No sooner than the sale deed was executed by Moti in favour of the then two minor defendants, which was effectively in favour of their father, Ram Palat, that Ram Palat made a show of his right and title towards the end of November, 1980. He asserted title to a half share in property comprised of Schedule A to the plaint, and threatened to interfere with the plaintiffs' exclusive possession of the same. It is then that the plaintiffs came to know for the first time ever, as they allege, about the sale deed dated 11.11.1980 executed by defendant no.1 in favour of defendants nos.2 & 3. It is the plaintiffs' further case that defendant no.1, Moti had no interest in land comprising Schedule A to the property as that was exclusively in their bhumidhari whereas the rights of defendant no.1 were confined to land comprised in Schedule B. This clear delineation of rights came about in terms of a compromise before the Zamindar already mentioned, and in accordance with that compromise, the plaintiffs and the defendants, each had paid ten times the land revenue, in order to secure bhumidhari sanad relating to the lands comprised in Schedules A and B, respectively. It asserted, therefore, that there was no case for the first defendant to have staked claim to a half share in the property comprised in Schedule A, and on that basis, execute a sale deed in favour of defendants nos.2 & 3, then minors, through their father, defendant no.4. It is asserted in the plaint that the plaintiffs are sole owners, or more properly bhumidhars of land detailed in Schedule A to the plaint, and are in exclusive possession of the same as asserted in the plaint. It was on that basis that a relief of permanent injunction restraining the defendants from interfering in the peaceful possession and use of khasra no.2788 (now renumbered as 2696) admeasuring 54 decimals, was claimed. In addition, a further relief for cancellation of the sale deed dated 11.11.1980, executed by the defendant no.1 in favour of defendants nos.2 & 3 was also sought.
13. The written statement filed by Moti denies the plaint case, and comes up with a version that he was co-sharer in the entire property mentioned at the foot of the plaint, both Schedule A and Schedule B. He was in service in Kolkata since childhood. The property in suit, comprising both Schedules, was joint Hindu family property, of which the plaintiffs and defendant no.1, both were a part since the time of their predecessor-in-title. The plaintiffs and the party's predecessors-in-title were managing the family and its property. As such, it was not known to the first defendant, Moti about all those proceedings through which bhumidhari sanad was secured by the plaintiffs regarding Schedule A property exclusive to their names. It is also asserted that the land detailed in Schedules A and B to the plaint, is located quite far off from the defendants' house, abadi and chak, which had made it rather unviable for the first defendant to cultivate the said land. At the same time, the first defendant got a good bargain of land in the adjoining chak of another native of the village, Chandra Dev Singh, that he had purchased through a sale deed. The first defendant required funds to pay off some balance sale consideration due to Chandra Dev Singh, on account of which he sold his half share in the property described in Schedule A to the plaint in favour of defendants nos.2 & 3 vide registered sale deed dated 11.11.1980. The aforesaid sale deed was executed for a total sale consideration of Rs.7000/-. Contemporaneously, the first defendant bargained sale of his half share in land comprising Schedule B to the plaint in favour of the plaintiffs, and both sale deeds relating to the half share of defendant no.1, that is to say, the first defendant's half share in land shown in Schedule A and Schedule B to the plaint, were executed on 11.11.1980; the half share in Schedule A being sold in favour of defendants nos.2 & 3 whereas the half share comprising property detailed in Schedule B, being sold in favour of the plaintiffs. It has been further asserted in the written statement of the first defendant that both sale deeds dated 11.11.1980 were drafted under instructions of the respective vendees, including the plaintiffs, and he does not know if any manipulation in the recitals there, to suit his case have been scripted in the sale deed executed in the plaintiffs' favour. It has further been specifically averred in the written statement, in affirmation of the stand taken throughout that it is incorrectly asserted by the plaintiffs that the first defendant is bhumidhar of the entire land comprised of property in Schedule B to the plaint. Rather, the first defendant had a half share in the property described in both Schedules, both of which he has sold; one to the plaintiffs vide registered sale deed dated 11.11.1980, as detailed hereinbefore.
14. Defendant no.4, Ram Palat too filed a written statement and more or less affirmed the case of his vendor, defendant no.1. Amongst others, two pleas were raised: one about the transaction being entered into in good faith and for valuable consideration, that he contracted after making necessary inquiries in the Revenue Records, where he found defendant no.1 recorded with a half share over land detailed in Schedule A; and, the second on behalf of both defendants, a plea taken that the objections raised by the plaintiffs to impeach the title of defendant no.1 is barred by Section 49 of the U.P. Consolidation of Holdings Act (for short the Consolidation Act), inasmuch as, chakbandi operation had intervened and during that time, the name of defendant no.1, that was recorded over land detailed in Schedule A to the plaint to the extent half share was not objected to. Pleas of bar under Section 115 of the Indian Evidence Act, besides Sections 38 and 41 of the Specific Relief Act, were also raised, saying that no relief could be granted.
15. The aforesaid pleadings of parties led the Trial Court to frame the following nine issues:
"1. Whether the plaintiffs were the sole owner in possession of the land in suit?
2. Whether the sale deed dated 11.11.80 is liable to be cancelled?
3. Whether the suit is barred by Section 49 of U.P. C.H. Act?
4. Whether the suit is barred by Section 115 of Indian Evidence Act?
5. To what relief, if any, the plaintiffs are entitled?
6. Is the suit barred by Section 38 and 39 of Specific Relief Act?
7. Is the suit is barred by time?
8. Had the Civil Courts no jurisdiction?
9. Are defendants 2 to 4 are entitled to the benefit of section 41 of Transfer of Property Act?"
16. The Trial Court dealt with issues nos.1, 2 & 9 together and returned findings on evaluation of evidence, in the manner that in answer to issue no.1, it was held that defendant no.1, Moti and the plaintiffs, each had a half share in land comprising both khasra plot numbers shown in Schedules A and B to the plaint. On the second issue, it was held that since the first defendant, Moti had a half share in land comprising khasra no.2596 (54 decimals), the said defendant had a right to execute the impugned sale deed dated 11.11.1980 in favour of defendants nos.2 & 3. In consequence, it was further held that the sale deed was not liable to be cancelled. During the course of these findings on issues nos.1, 2 & 9, amongst many facts noticed and relevant facts decided, besides the facts in issue, the Trial Court held that Kanhai and Mittu were brothers, that is to say, sons of the same father. In reaching this finding, the Trial Court has taken due note of the fact that the pedigree propounded in the plaint as originally framed, clearly showed Mittu to be a brother of Kanhai and the parties descended of a common ancestor. Lateron, the plaintiffs projected the first defendant as a stranger, and then a rank trespasser through an amendment to the plaint made specifically. The Trial Court in conclusion finding for the defendant on issues nos.1, 2 & 9, dismissed the suit. It must be remarked, however, that issue no.8, that is, whether the Civil Court has jurisdiction to try the suit, was decided in the affirmative and in favour of the plaintiffs, holding that the Civil Court had jurisdiction.
17. The lower Appellate Court went into a very detailed analysis of evidence on merits concurring with the Trial Court, holding for added reasons that the plaintiffs and the defendants, each had a half share in both khasra nos.2787 (20 decimals) and 2788 (54 decimals), which the first defendant was competent to transfer. It is not the jurisdiction of this Court to look into the validity of those findings of fact, that have been recorded for good and sufficient reason based on evidence, from which conclusions drawn by the lower Appellate Court are quite plausible. The matter would have ended at that, in case the lower Appellate Court, like the Trial Court, had not gone into the issue of the jurisdiction of the Civil Court to try the suit. However, the lower Appellate Court did that and came to a conclusion contrary to that of the Trial Court. It was held by the lower Appellate Court that the Civil Court had no jurisdiction to try the suit, which would be exclusively cognizable by the Revenue Court.
18. Concerning the issue of jurisdiction, the lower Appellate Court has done a commendable job of marshalling facts and evidence, and drawing conclusions tested on well supported propositions of law to conclude on the issue of jurisdiction in favour of ouster of the Civil Courts. The relevant part of the findings recorded by the lower Appellate Court would be best expressed in the words of that Court as they occur in the impugned judgment, which read thus:
"The fact of the present case is some what dissimilar as the plaintiff is seeking cancellation of the sale deed on the ground that the vendor has got no right to transfer the land as the plaintiffs are exclusive owner of the land in suit. Whereas, the name of defendant's vendor have been recorded in revenue records from 1347F up till now and even in consolidation operation no protest was made by the plaintiff nor any protest application was made in revenue court after consolidation operation for correction of records. Therefore in the garb of cancellation of sale deed plaintiffs are seeking declaration that they are exclusive owner of the land in suit. It is not possible to cancel the sale deed before finding that the defendant no.1 has been wrongly entered as co-sharer with the plaintiff on the land in suit and the plaintiffs are exclusive owner in possession of the land in suit. This act is within the jurisdiction of revenue court, under Section 229B of the Z.A. & L.R. Act.
Learned counsel for the appellant has cited 1991 Supreme Court page 2234 and argues that the compromise decree signed by counsel and not by parties in person is binding, executable and operates as resjudicata, even if it extends beyond subject matter of suit. But this ruling is not applicable in the present case because no compromise was entered into between the plaintiffs and defendant-1 in consolidation operation and the compromise entered into by the mother of the plaintiffs and Motii has been challenged and after attaining the age of majority of plaintiffs their mother had got no right to enter into compromise. Learned counsel for the appellant has cited 1984 A.L.J. page 1132 and argues that the suit for cancellation of a sale deed would lie in Civil court and the court can go into the question of title. But this ruling is applicable where some fraud had been committed to deprive real owner of his property. He has also cited 1976 A.W.C. page 585 and argues that it is open to a person to show that the entries in the record of rights prepared in accordance with sec.27(1) of C.H. Act showing some other person as Bhumidhar were not true. In the same ruling it has been held that the decision of Consolidation Authority that a person was Bhumidhar became final and such Bhumidhar transferred the land. Suit for cancellation of such deed is not barred by section 49 if the plaintiff alleges that she was in actual possession of the land in suit in lieu of maintenance. But here the fact is different where there is continuous entries in the revenue records of the name of Natththu and after his death his son Moti. In consolidation operation no protest petition was moved by the plaintiff and finally Moti was recorded as co-bhumidhar with the plaintiffs. Learned counsel for the appellant has cited AIR 1974 Supreme Court page 1657 and argues that the bar of section 49 of C.H. Act is only where the question arises out of the consolidation proceedings, but where the question is whether ''B' was the heir of ''A' which was involved in the suit such case is not barred by Section 49.
In the above circumstances seeing the fact of the present case, the pith and substance of the suit is to declare that Moti and Naththu were never Sah Khatedar co-Bhumidhar with the plaintiffs of old plot no.2788 which is nothing but declaration of title and barred by Section 331 Z.A. & L.R. Act and 49 of C.H. Act."
19. So far as this Court is concerned, this appeal was admitted to hearing primarily on the substantial question of law concerning ouster of jurisdiction of the Civil Court, which if ousted, the appropriate course to follow for the Court in accord with the law. There is also a question about the jurisdiction of the Civil Court being barred by Section 49 of the Consolidation Act.
20. This Court may remark at once that the lower Appellate Court in returning its findings about the issue of jurisdiction of the Civil Court being barred, has held it barred, both under Section 331 of the U.P. Z.A. & L.R. Act and Section 49 of the Consolidation Act. In case it were to be held that the Civil Court has no jurisdiction to try the suit in view of the bar under Section 331 of the U.P. Z.A. & L.R. Act, this Court is of opinion that there would be no further necessity for the lower Appellate Court to opine about the bar under Section 49 of the Consolidation Act. This is for more than one reason. In the event, the suit is held barred under Section 331 of the U.P. Z.A. & L.R. Act, the moment the Civil Court has reached that conclusion, it should have laid its hands off from opining about the suit being barred under Section 49 of the Consolidation Act. The Civil Court, once it holds its jurisdiction ousted, recording any other finding about the bar to that suit under some other provision of law, would be of no consequence. The Civil Court having found itself to be a Court, not competent to try the suit, all its findings on any other or further issues, would also be without jurisdiction. It is not that, that the Civil Court would on the one hand hold that it has no jurisdiction to try the suit vis-à-vis its subject matter and at the same time pronounce upon other issues of fact and law. The issue whether the plaintiffs' claim is barred under Section 49 of the Consolidation Act, is a question of law affecting the rights of the plaintiffs. It can be decided by a Court of competent jurisdiction alone; not by a Court that holds itself out of jurisdiction.
21. There is a more fundamental reason why the lower Appellate Court ought not to have decided the issue of the declaration sought by the plaintiffs being barred by Section 49 of the Consolidation Act. That reason is this. The bar under Section 331, that has been upheld by the lower Appellate Court, is a bar properly so called one as to jurisdiction of the Civil Court to try the suit. It is about the forum that would be competent, but in no way does it bar the plaintiffs' right. Once the plea of bar of the Civil Court's jurisdiction is accepted, all that happens is that instead of the Civil Court, it is the competent Revenue Court that has jurisdiction. That finding does not defeat the plaintiffs' claim, but only sends them to another forum. The bar under Section 331, therefore, is properly speaking a bar as to subject matter, which in no way defeats the plaintiffs' claim. The bar of Section 49 of the Consolidation Act that the lower Appellate Court has held attracted to the plaintiffs' suit is not a bar to the jurisdiction of the Court regarding subject matter, pecuniary or territorial. It is a bar in its nature to the plaintiffs' claim itself; it is a bar if held to apply would prevent the plaintiffs from enforcing their claim before any other Court or forum. The bar under Section 49 of the Consolidation Act destroys the plaintiffs' right and the remedy both, to enforce their claim. It is not a bar to the jurisdiction of the Court, like that under Section 331 of the U.P. Z.A. & L.R. Act. The lower Appellate Court, having found that the Civil Court had no jurisdiction, ought not have pronounced upon the bar pleaded under Section 49 of the Consolidation Act, that has the effect of destroying the plaintiffs' right and remedy. In this appeal also, by extension of the principle that a Court that holds against its jurisdiction to decide, ought not to decide anything more, this Court would refrain from answering substantial question of law no. (ii), but with the remark that the Court in a suit where it holds no jurisdiction in itself to decide, ought not to decide the question about the bar under Section 49 of the Consolidation Act. It must also be said here that the conclusions and the answer to question no. (ii) is in keeping with the conclusions and answer rendered by this Court, in reference to substantial question of law no. (i) recorded during the course of this judgment, a little later.
22. Now, turning to the issue whether the Civil Court's jurisdiction is, indeed, barred under Section 331 of the Consolidation Act, it must be remarked that the thin line of distinction between the jurisdiction of the Civil Court to cancel a document, which power alone the Civil Court enjoys, and a case where behind the façade of cancellation what is substantially claimed, is a declaration of title to agricultural land by one of the parties, is all that would make a difference about the forum. This has always been a tricky ground for Courts to tread in individual cases, but the law about it is well settled. It would be profitable to do a survey of authority about the issue that has classically engaged the attention of Courts over a long period of time, including this Court and their Lordships of the Supreme Court. The controversy about the proposition as to circumstances in which a given suit styled as cancellation would be cognizable by the Civil Court, and where notwithstanding the form of relief, the Civil Court's jurisdiction would be ousted under Section 331 of the U.P. Z.A. & L.R. Act in favour of the Revenue Court, came up before a Full Bench of this Court in Ram Padarath and Ors. vs. Second Addl. District Judge and Ors1. Their Lordships of the Full Bench after an extensive review of authority held:
"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 (his 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."
23. The issue fell for consideration of the Supreme Court in Smt. Bismillah vs. Janeshwar Prasad and others2, where it was held thus:
"7. It is settled law that the exclusion of the jurisdiction of the civil court is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. The provisions of a law which seek to oust the jurisdiction of civil court need to be strictly construed. Section 331 of the Act has been the subject of series of pronouncements of the High Court as to the circumstances and the nature of the suits in which its exclusionary effect operates. 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 cognisable 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.
8. In the instant case, the High Court has construed, in our opinion not quite correctly, appellant's pleadings to amount to a plea of nullity of the sales and has held 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 has 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.
9. It is true that the question of jurisdiction depends upon the allegations in the plaint and not the merits or the result of the suit. However, in order to determine the precise nature of the action, the pleadings should be taken as a whole. 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. It is said "Parties do not have the farsight of prophets and their lawyers the draftsmanship of a Chalmers".
11. The assumption underlying the reasoning of the High Court is that if the action had really been one based on the need for the cancellation of the deeds, without which possession could not be granted, the civil court would have had jurisdiction. The cause of action in the appellant's suit does admit of being brought within this class of cases.
12. The common law defence of non est factum to actions on specialities in its origin was available where an illiterate person, to whom the contents of a 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. In its modern application, the doctrine has been extended to cases other than those of illiteracy and to other contracts in writing. In most of the cases in which this defence was pleaded the mistake was induced by fraud; but that was not, perhaps, a necessary factor, as the transaction is "invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signor did not accompany the signature; in other words, that he never intended to sign, and therefore, in contemplation of law never did sign, the contract to which his name is appended" [ Chitty on Contracts, 25th edn., p. 341].
13. Authorities drew a distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. It was held that the defence was available only if the mistake was as to the very nature or character of the transaction.
14. In Foster v. Mackinnon [(1869) LR 4 CP 704 : 38 LJCP 310], Mackinnon, the defendant was induced to endorse a bill of exchange on the false representation that it was a guarantee similar to one he had signed on a previous occasion. He was held not liable when sued even by an innocent endorsee of the bill. Byles, J. said:
"... The defendant never intended to sign that contract or any such contract. He never intended to put his name to any instrument that then was or thereafter might become negotiable. He was deceived, not merely as to the legal effect, but as to the ''actual contents' of the instrument."
15. This decision was referred to with approval by this Court in Ningawwa v. Byrappa [(1968) 2 SCR 797 : AIR 1968 SC 956]. It was observed: (SCR pp. 800-01) "It is well established that a contract or other transaction induced or tainted by fraud is not void, but only voidable at the option of the party defrauded. Until it is avoided, the transaction is valid, so that third parties without notice of the fraud may in the meantime acquire rights and interests in the matter which they may enforce against the party defrauded."
This would be a voidable transaction. But the position was held to be different if the fraud or misrepresentation related to the character of the document. This court held: (SCR p. 801) "The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, while in the case of the latter, it is merely voidable."
(emphasis supplied) However the House of Lords in Saunders v. Anglia Building Society [1971 AC 1004 : (1970) 3 All ER 961] reviewed the law and held that the essential features of the doctrine, as expressed by Byles, J. in Foster v. Mackinnon [Chitty on Contracts, 25th edn., p. 341] , had been correctly stated. Lord Reid, however, observed: (AC headnote at p. 1005) "The plea of non est factum could not be available to anyone who signed without taking the trouble to find out at least the general effect of the document. Nor could it be available to a person whose mistake was really a mistake as to the legal effect of the document. There must be a radical or fundamental difference between what he signed and what he thought he was signing."
16. However the distinction based on the character of the document and the contents of the document was considered unsatisfactory. The distinction based on the character and contents of a document is not without its difficulties in its practical application; for, in conceivable cases the ''character' of the document may itself depend on its contents. The difficulty is to be resolved on a case by case basis on the facts of each case and not by appealing to any principle of general validity applicable to all cases. Chitty on Contracts ["General Principles" 25th edn, para 343, page 194] has this observation to make onSaunders decision [(1968) 2 SCR 797 : AIR 1968 SC 956] :
"....It was stressed that the defence of non est factum was not lightly to be allowed where a person of full age and capacity had signed a written document embodying contractual terms. But it was nevertheless held that in exceptional circumstances the plea was available so long as the person signing the document had made a fundamental mistake as to the character or effect of the document. Their Lordships appear to have concentrated on the disparity between the effect of the document actually signed, and the document as it was believed to be (rather than on the nature of the mistake) stressing that the disparity must be "radical", "essential", "fundamental", or "very substantial."
In the instant case, prima facie appellant seems to proceed on the premises that she cannot ignore the sales but that the sales require to be set aside before she is entitled to possession and other consequential reliefs."
24. In Smt. Bismillah (supra), their Lordships of the Supreme Court approved the decision of the Full Bench of this Court in Ram Padarath (supra) though with the remark that "In any view of the matter, the present action would be covered by the pronouncement of the Full Bench. It is not necessary to go into the correctness of the view of the Full Bench as its correctness was not assailed before us."
25. The point involved here is well illustrated on the facts involved in the decision of their Lordships of the Supreme Court in Shri Ram another vs. Ist Addl. Distt. Judge and others3, where the dispute was to the effect that the plaintiff had filed a suit for cancellation of the sale deed involved there before the Civil Court to the extent of half share claimed by the plaintiff, together with recovery of possession of that half share. In that context, which is more or less similar to the context on facts here, it was held thus:
"6. The said decision is distinguishable and is of no help to the case of the respondents. The observation quoted above has to be understood in the context of the fact of the case. In the case, the plaintiff had filed a suit for cancellation of the sale deed to the extent of half-share claimed by the plaintiff and also an award of possession of the plaintiff's share. In the suit, it was alleged that the vendor had no title to the extent of half-share in the land and, therefore, the sale deed to that extent is void. In the said case there was no prima facie title in favour of the plaintiff and his title to the land and delivery of possession was required to be adjudicated.
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."
26. From the aforesaid decisions what emerges is that where a tenure holder is in recorded possession of the property relating to which a conveyance or instrument executed is sought to be cancelled on grounds like fraud, coercion or undue influence - anything that would vitiate a contract rendering the same voidable or even void, a suit in the Civil Court would be maintainable. But, in a case where in order to seek the relief of cancellation, the plaintiff has to establish his right or title to the suit property, as in the present case, where the plaintiffs claim to be the owners of the whole of the suit property detailed in Schedule A to the plaint, whereas the defendants claim a half share there and are recorded to that extent, the jurisdiction of the Civil Court would certainly be ousted in favour of the statutory jurisdiction of the Revenue Court under Section 331. In a case like the one in hand where on facts the defendants have been found recorded to the extent of a half share over the suit property detailed in Schedule A, along with the plaintiffs, the principal relief that the plaintiffs seek is to establish that they are owners of the whole of it, and not just half of Schedule A property, as the defendants assert. This is essentially a declaration of rights and title to the said property to the complete exclusion of the defendants, which the Revenue Court alone can grant. The relief of cancellation sought in the suit would be a necessary incident of an appropriate declaration in tune with the substance of the relief which the plaintiffs seek. Once relief in accordance with the substance of the plaintiffs' claim is sought before the competent Court of revenue jurisdiction, the relief of cancellation would be incidental and may be just a surplusage. In this view of the matter, this Court is in agreement with the lower Appellate Court that the suit is not maintainable before the Civil Court.
27. This takes the matter directly to the issue that where the Civil Court holds the suit barred by Section 331 of the U.P. Z.A. & L.R. Act, what would be the proper disposition of the suit. Would it lead to a decree dismissing the suit on merits, while answering other issues referable to the merits of the plaintiffs' claim, or the Civil Court ought just return the plaint under Order VII Rule 10 CPC for presentation to the competent Court?
28. Proceeding on the well settled principle that a Court which has no jurisdiction to determine a suit ought not decide it, there is no difficulty to hold that once it is found that the Court has no jurisdiction to decide the suit, it ought not to dismiss for that reason; the plaint should instead be ordered to be returned for presentation to the competent Court. It is also not that this course is open to the Trial Court alone, or that it is confined to early stages of the Trial. The words of Order VII Rule 10 CPC express with great felicity the clear intent of the legislature that the power to return a plaint can be exercised at any stage of the suit. The explanation added to Rule 10 of Order VII CPC vide CPC Amendment Act no.104 of 1996 has made the position explicit that a Court of appeal or revision, may also direct return of the plaint after setting aside the decree passed in a suit, in the exercise of powers under the said Rule. In this connection, the provisions of Order VII Rule 10 CPC may be quoted:
"10. Return of plaint.--(1) Subject to the provisions of Rule 10-A, the plaint shall] at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.
Explanation.--For the removal of doubts, it is hereby declared that a court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint under this sub-rule.
(2) Procedure on returning plaint.--On returning a plaint the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it."
29. There is, thus, apparently no difficulty to conclude that at whatever stage of the suit, be it in appeal from the original decree, or in appeal from the appellate decree, or in revision at an interlocutory stage, wherever the Court in seisin of those proceedings finds that the suit is not cognizable by the Court, it can and must at once set aside the decree or order, and direct return of the plaint. This is most true in cases where any Court finds lack of jurisdiction with reference to subject matter of the suit. There could be some different principles in case of objection as to territorial or pecuniary jurisdiction, particularly, territorial, if it be not raised at the earliest stage, but with regard to subject matter of the suit if the Court at any stage of the proceeding, or a higher Court in appeal or revision finds that the suit is not cognizable by the Court which has determined it on merits, the determination of a Court sans jurisdiction must be nullified with an order for return of the plaint to the Court of competent jurisdiction
30. This view of the law has been preponderant except for a few decisions where the view expressed has classified cases into those where objection is taken at the earliest or considered at the earliest, and those where the entire trial of the suit has gone through. In the former class of cases, there is no discordant view expressed in any decision that a suit held to be not cognizable by the Court, must lead to a return of the plaint provided that there is a Court competent to entertain the suit. In the other class of cases where the entire trial has gone through, and may be the matter is in appeal or second appeal where all issues of law and fact have been decided, it is also found that the Court had no jurisdiction over the subject matter of the suit, the view expressed in certain authorities is that in such a case, the suit must fail. However, this line of decisions are in marginal minority, and not certainly in accord with the view of their Lordships of the Supreme Court. It would be profitable to do a survey of authorities on the point.
31. One of the earliest decisions about this issue is of a Division Bench of this Court in Ram Jas Singh vs. Babu Nandan Singh4, where the question was that the suit that was instituted by the plaintiff/ appellant in that case before the Assistant Collector, was styled as a suit under Section 160 of the Agra Tenancy Act. The Assistant Collector trying the suit, however, found it to be a suit for contribution by one judgment-debtor against others for the excess share which he had paid to the creditors. The Assistant Collector held that he had no jurisdiction to decide that suit and dismissed it. It figures in the judgment of this Court there that no evidence was recorded. The decree was affirmed by the District Judge, where the ground urged was that if the Deputy Collector found that he had no jurisdiction, he ought to have ordered return of the plaint instead of dismissing the suit. The same ground was urged before this Court, where it was held by Ryves and Stuart, JJ.:
".................... In second appeal the plaintiff presses the third ground taken in his memorandum of appeal namely that the court should have returned the plaint for presentation to the proper proper court. It seems to us that the trial court could certainly have returned the plaint to the plaintiff on finding that it had no jurisdiction to try the suit but did not do so. In the same way the appellate court we think could have done what the trial court could have done and we think under the circumstances that this was the proper procedure for the court to have adopted. Under the circumstances we allow the appeal and direct the learned District judge to order the plaint to be returned to the plaintiff for presentation to the proper court. ............"
32. The same view was expressed by another Division Bench of this Court in Kallu vs. Phundan5, where a suit for partition of a grove was dismissed by the Munsif, but on appeal by the plaintiff, the decree of dismissal was set aside with an order of remand to the Trial Court. The said order of remand was challenged in appeal to this Court by the defendant. Here, it was the defendant's case that the plaintiff had no right or title to the grove, and therefore, the Munsif held that he had no jurisdiction to entertain the suit. It was noticed that despite holding that he had no jurisdiction, the Munsif went on to record a finding on merits that the plaintiff had no title to the grove. It was also recorded by this Court that the learned Judge in appeal rightly held that the Munsif having held that the Civil Court had no jurisdiction, ought not to have determined other issues on merits. The learned Judge in appeal, however, differed from the finding of the learned Munsif that the suit was not cognizable by the Civil Court. He, therefore, remanded the suit to the Munsif to try it afresh on merits regarding question of title etc. Before this Court, the Appellate Judge's view that the suit was cognizable by the Civil Court was assailed. It was contended that the plaintiffs were not grove holders, but mere tenants according to the plaint case. This Court on consideration of the plaintiffs' case and evidence found that the parties cannot be held to be grove-holders. Their status can only be that of a tenant. It was held that the suit was one for the division of a tenant's holding, which was under the fourth Schedule to the Tenancy Act, cognizable by the specified Court. It was, therefore, not cognizable by the Civil Court. It was maintainable in the Revenue Court. The order of the lower Appellate Court remanding the case to the learned Munsif was, therefore, set aside, but agreement was expressed with the learned Judge by their Lordships of the Division Bench that the learned Munsif having held the suit not cognizable by the Civil Court should not have tried issues on merits. This Court in the circumstances held that the proper order to make was one for return of the plaint for presentation to the proper Court. The relevant part of the decision in Kallu vs. Phundan (supra) reads thus:
"6. It is not denied that a suit for the division of a tenant holding is a suit of the nature specified in sch. 4, Tenancy Act. That being so, the civil Court cannot take cognisance of such a suit. Thus the present suit, if it is maintainable (a question on which we express no opinion), can be only in the revenue Court. We are, therefore, unable to uphold the finding of the lower appellate Court that the suit was cognisable by the civil Court. We agree with the learned Judge, however, -- as we have already stated-- that the Munsif should not have recorded any finding on issue No. 2 which related to the title of the plaintiff. We also agree with him that, instead of dismissing the suit, the Munsif should have returned the plaint to the plaintiff for presentation to the proper Court. ..........."
33. The question again figured before the Nagpur High Court in Dr. Purshottam Vithal vs. Dr. G.V. Pandit6, where the issue was whether an Election Petition under Section 20-A of the C.P. and Berar Municipalities Act, 1922, that was cognizable by the Civil Judge (Class I), but had been filed in the Court of the First Additional District Judge, could be dismissed by that Court. It was held by the High Court that the proper order to make was one for return of the petition to be presented to the Court that had jurisdiction. The order of dismissal passed by the Additional District Judge was not approved. The relevant part of the decision in Dr. Purshottam Vithal (supra) reads thus:
"9. Both the petitions under consideration were presented in the Court of the First Additional District Judge and the deposits were also made in the same Court. But the Civil Judge (Class I) alone was empowered to deal with the petitions. The petitioners expressly invoked the jurisdiction of the Court of the First Additional District Judge and the petitions presented by them were received by the Judge qua the First Additional District Judge, Yeotmal. In fact the learned Civil Judge could not have dealt with the petitions which were originally on the file of the Court of the First Additional District Judge as Civil Judge (Class I) from 18th December 1947. The procedure in the Court below went wrong from that date. The corrections in the order sheets were presumably made on that date. The petitions were never presented to the Civil Judge (Class I), the original petitions were not amended and the petitioners never invoked his jurisdiction. The ptitions should first have been disposed of in the same capacity in which they were received before they could be dealt with in another capacity. So the proper order which the learned Judge could have passed on the petitions was not one of dismissal. The learned Judge felt some difficulty on the ground that there is no provision for returning the petitions to be presented to the Judge with jurisdiction to deal with them. Though O. 7, R. 10 of the CPC, does not in terms apply, that rule has to be read with S. 141 of the Code. Where a Court finds that it has no jurisdiction to deal with an application in circumstances like those present here, the order should be not one of dismissal but of returning the application for presentation to the Judge having jurisdiction to deal with the matter: see Ram Jas Singh v. Babu Nandan Singh, 44 ALL. 686 : (A.I.R. (9) 1922 ALL. 424) and Secretary of State v. Natabar Mangraj, 6 Pat. 358 : (A.I.R. (14) 1927 Pat. 254)."
34. Echoing the same principle that where the Court does not find itself possessed of jurisdiction, the proper course is not to dismiss the suit, but to make an order for return of the plaint, a Division Bench of the Madras High Court in T. Krishnaveni Ammal vs. The Corporation of Madras7, held:
"As observed by the learned Judges in Immandi Appalasami v. Rajah of Vizianagaram, 25 M.L.J. 50, the definition of rent in S. 3, Cl. 11 of the Madras Estates Land Act does not require that the raiyat in possession should actually use the land for the purpose of agriculture. We agree with the learned Judge on a reading of the plaint that the suit should be treated as one for recovery of rent due from ryoti land. The suit should have been filed in a revenue Court and not in a civil Court. As we have found that the civil Court has no jurisdiction to entertain the suit, the proper course is to direct the return of the plaint to the plaintiff for presentation in the proper Court. We allow the appeal, set aside the decree of dismissal passed by the learned Judge, and direct that the plaint be presented to the proper Court, namely, the revenue Court. There will be no order as to costs in this appeal. Costs of the suit will abide the result. The court fee paid on the memorandum of appeal will be refunded to the appellant."
35. Similarly, in Chittaruvu Radhakrishna Murty vs. Bollapalli Chandrasekhara Rao8, a learned Judge of the Andhra Pradesh High Court held in the context of the Court finding lack of territorial jurisdiction, thus:
"10. The lower Court therefore was obviously wrong in stating that Section-20 C.P.C. has no application to the facts of this case. Section 20(c), as stated above, applies. In the view which I have taken, it is not necessary to consider in this case whether the common law principle that the debtor must seek the creditor applies to a negotiable document or not. Consequently, the case cited in the judgment of the court below, S. Eshwarayva v. Devi Singh[1953 Hyd. 289.] need not be considered. That case decides that the principle that the debtor must seek the creditor does not apply to a negotiable document. Since I have held that a part of the cause of action, because of transfer arose at Vijayawada, it is unnecessary to consider that principle in this case. In any case the lower Court was wrong in dismissing the suit. Even assuming that the court at Vijayawada had no jurisdiction, the court ought to have returned the plaint for its presentation to the proper Court. The suit could not be dismissed on that ground."
36. The most authoritative pronouncement on the issue is by a three Judge Bench of their Lordships of the Supreme Court in Sri Athmanathaswami Devasthanam vs. K. Gopalaswami Ayyangar9, where their Lordships were concerned with a suit for recovery of rent and ejectment filed against a ryot by a landholder under the Madras Estates Land Act, that was triable by the Collector, but had been wrongly filed before the Civil Court. The Trial Court on the issues arisen between parties had determined the suit on merits and dismissed it. The High Court, however, also held that the suit could be instituted only in the Revenue Court, and therefore, set aside the decree with an order for return of the plaint to the plaintiff/ appellant for presentation to the proper Court. At the same time, however, the High Court proceeded to decide the cross-objection on merits and dismissed it. It was in the context of the aforesaid facts and lack of jurisdiction in the Civil Court vis-à-vis subject matter of the suit found by the High Court in appeal that their Lordships of the Supreme Court approved the order of the High Court ordering return of the plaint ruling out dismissal of the suit on merits. However, the order deciding the cross-objection on merits was set aside. It was held, thus, by their Lordships in Sri Athmanathaswami Devasthanam (supra):
"14. The last point urged is that when the civil court had no jurisdiction over the suit, the High Court could not have dealt with the cross-objection filed by the appellant with respect to the adjustment of certain amount paid by the respondent. This contention is correct. When the Court had no jurisdiction over the subject-matter of the suit it cannot decide any question on merits. It can simply decide on the question of jurisdiction and coming to the conclusion that it had no jurisdiction over the matter had to return the plaint."
(Emphasis by Court)
37. This question again arose before a Judge of this Court in Kailash Chandra Agarwal vs. Subhash Chand Satish Chand Viyopari10, where in a most eloquent statement of the law, it was held by this Court on facts in that case the question of jurisdiction could alone be decided at the end of the trial, but at the conclusion of trial, the Court having found it had no jurisdiction, could not have proceeded to dismiss the suit. It should have ordered return of the plaint. It was held by this Court, thus, in Kailash Chandra Agarwal (supra):
"3. I must also observe that this was one of those cases where the question of jurisdiction could not be decided as a preliminary issue in view of the fact that it could be decided only after recording the oral evidence of the parties, and evidence cannot be recorded piecemeal. The question of jurisdiction could thus be decided only after the entire trial had been gone through and the fact that it was thus decided along with the decision of the other issues, could not be a ground for dismissing the suit instead of ordering the return of the plaint on arriving at the finding that the court had no jurisdiction to try the suit. Under the circumstances, the only just and proper order to pass was to direct the return of the plaint for presentation to the proper court having jurisdiction to entertain the suit. For the fault of bringing the suit in wrong court the plaintiff could be penalised by making him liable to pay the defendants' costs in the trial court."
38. The aforesaid issue again came up before this Court in Gulab and others vs. Jaggan Ram Singh and others11, where this Court held that an old Full Bench Decision reported in Mst. Ananti vs. Channu12 (to which reference has been made in the context of the authority next considered in this judgment) is no longer good law in view of the authority of the Supreme Court in Sri Athmanatha-swami Devasthanam (supra). It was held by this Court in Gulab and others (supra) that the jurisdiction can be challenged anywhere, at any stage, and once it is held that the Court has no jurisdiction, it could neither decree the suit or dismiss it. It was held by this Court in Gulab and others (supra) thus:
"4. I am of the opinion that in view of Athmanathaswami Devasthanam's case (supra) decided by the Supreme Court, the Full Bench case of Mst. Ananti was no more good law. It has been held in AIR 1954 SC 340Kiran Singh v. Chaman Paswan where an order was passed without jurisdiction it could be challenged anywhere at any stage. As the Courts below have given a finding that they have no jurisdiction to entertain the suit any further finding or decision given by them would be without jurisdiction. They could neither decree the suit nor dismiss it.
5. Under the circumstances I am bound to follow the law laid down by AIR 1965 SC 338 in case of Athmanathaswami (supra).
6. The learned counsel for the respondent argued that the case of that Athmanathaswami (supra) was considered by the learned single Judge in the case of Devi Dutt Sharma (1979 All LJ 1086) (supra). From the judgment it appears that the learned single Judge referred to that case in para 3 of the judgment but how that case was not applicable is not indicated in the judgment. Consequently I hold that the Courts below were not justified in dismissing the suit."
39. This Court, however, in Lal Bahadur Singh and another vs. Bagesara and others13, went into the distinction between cases where the question as to lack of jurisdiction is raised and decided at the earliest, and those cases where parties go to trial completing the entire course, or may be in appeal where it is found that the Court had no jurisdiction to try the suit. This distinction appears to have its genesis in the Full Bench decision of this Court in Mst. Ananti vs. Channu (supra), where it was held that in cases where after trial of the suit on all issues, the Court also holds that it had no jurisdiction, the suit must be dismissed and the plaint not returned. In Lal Bahadur Singh and another (supra), the case arose out of an order of the Appellate Court where the Trial Court framed as many as eight issues in a suit for declaration that the plaintiffs were bhumidhars of the land, and the revenue entry in favour of the defendants was wrong. The Trial Court decided all issues and also held that the Civil Court had no jurisdiction to try the suit. The suit was dismissed. In appeal, the lower Appellate Court did not examine the findings on other issues, but merely dealt with the issue of jurisdiction. Expressing agreement that the suit was not triable by the Civil Court, the Appellate Court set aside the decree of dismissal, and substituted it by an order for the return of plaint for presentation to the proper Court. Two appeals, both by the plaintiffs and the defendants, were carried to this Court from the order for return of the plaint. It was in the context of the said facts that this Court in Lal Bahadur Singh and another (supra) held thus:
"6. The question that has been canvassed before me is about the form of the order that ought to be passed by the Court in such cases. No difficulty arises when an order for return of the plaint under Order 7, Rule 10, C.P.C., or of rejection of the plaint under Rule 11, is passed. The real difficulty arises in the other cases. According to Sri R.N. Singh, when once the Court enters upon adjudication of all the controversies of merit, the Court has no option left but to finally determine all these issues and if it finds that it has no jurisdiction in the matter, it must dismiss the suit instead of ordering return of the plaint for presentation to the proper Court. Sri Sankatha Rai, on the other hand, contended that once the Civil Court finds that it had no jurisdiction, it must stay its hands at once and should order return of the plaint without further venturing to decide any other issue or to express its opinion on merits. According to the following rule laid down in Athmanath Swami Devasthanam v. K. Gopalaswami Ayyangar, AIR 1965 SC 338:--
"When the Court had no jurisdiction over the subject matter of the suit, it cannot decide any question on merits. It can simply decide on the question of jurisdiction and coming to the conclusion that it had no jurisdiction over the matter had to return the plaint." He contended that return of the plaint was the only proper course for the Court.
7. This case was referred to by the learned single Judge who decided the case of Devi Datt Sharma (1979 All LJ 1086) (supra) also. According to the learned Judge where the Court, as a matter of caution, records all findings on issues touching merits of the controversy in addition to the issue of jurisdiction, the order has to be of return of plaint because the other findings in such a case have no legal effect. These are recorded only for facilitating the higher Courts and avoidance of a remand in case they come to a different conclusion on the question of jurisdiction. After briefly referring to the above Supreme Court decision, the learned Judge proceeded to consider an earlier Full Bench decision of this Court in Smt. Ananti v. Chhannu AIR 1930 All 193 and held that if after going to the trial of the suit on all the issues the Court ultimately holds that it had no jurisdiction in the matter, it must result in an order of dismissal of the suit. It may, however, be mentioned here that in Smt. Ananti's case, the controversy was raised in an altogether different manner and the facts were also quite different. There a suit had been filed in the Civil Court and after the written statement had been filed, the Munsif entertained a serious doubt as to whether the Civil Court could take cognizance of the suit. He, therefore, framed two questions and made a reference to the High Court. It was while answering the reference that the Full Bench had made the following observations which are also quoted by the learned Judge in his decision (1979 All LJ 1086).
"The plaintiff chooses his forum and files his suit. If he establishes the correctness of his facts, he will get his relief from the forum chosen. If he framed his suit in a manner not warranted by facts and goes for his relief to a Court which cannot grant him relief, on the true facts, he will have his suit dismissed. Then there will be no question of returning the plaint for presentation to the proper Court, for the plaint, as framed, would not justify the other kind of Court to grant him the relief. But we are told that although the plaintiff has chosen his forum rightly, the defendant, if he so wishes, may, merely by saying something in his defence-something the correctness of which he need not take the trouble to establish, oust the jurisdiction of the Court and compel the plaintiff to go to another Court."
8. What has been decided by the Supreme Court in Devasthanam's case (AIR 1965 SC 338) (supra) is that while holding that the Court had no jurisdiction to decide the particular suit, no decision on merit on any point involved therein should be made. It, however, does not lay down that if the Court has no jurisdiction then it had no right to dismiss the suit and must necessarily direct return of the plaint for presentation to the proper Court. The view taken to the contrary in 1983 Rev. Dec. 185 : (AIR 1983 All 145), therefore, does not appear to be wholly correct. In every case, it has to be seen whether on the allegations made in the plaint the suit was not maintainable in the Civil Court if so, the plaint had to be returned. But if the question of jurisdiction depends on decision of other questions on merit, then it is not necessary that the Court should always return the plaint. The Court has a discretion either to dismiss the suit after recording a finding that it had no jurisdiction and may in appropriate cases also direct return of the plaint without dismissing the same. It will depend upon the facts of each case and the broad principles have been rightly laid down in the Full Bench decision in Smt. Ananti's case (supra). Applying the principles laid down therein to the facts of the present case, I find that the order passed by the Court below was eminently justified and it was not incumbent on the Court to have dismissed the suit. The lower appellate Court has rightly directed that the plaint should be returned for presentation to the proper Court after recording a finding that the Civil Court had no jurisdiction in the matter."
(Emphasis by Court)
40. The point again arose before their Lordships of the Supreme Court in R.S.D.V. Finance Co. Pvt. Ltd. vs. Shree Vallabh Glass Works Ltd14. The said decision arose on an Appeal by Special Leave from a Division Bench of the Bombay High Court in a summary suit brought for recovery of money on the original side. Dealing with the defendant's plea as to lack of territorial jurisdiction with the Court at Bombay, the learned Single Judge held that the suit was maintainable at Bombay on reasoning given in the learned Judge's judgment. On Letters Patent Appeal to the Division Bench, an Application seeking to amend the plaint appears to have been brought in order to give up some part of the cause of action, that was beyond the territorial jurisdiction of the Court at Bombay. The said Application was rejected and the appeal allowed dismissing the suit. On the plaintiff's Appeal by Special Leave, it was held, thus, by their Lordships:
"7. ............. Even if there was any doubt in the mind of the Division Bench, the learned counsel for the plaintiff had made a request for allowing him to amend the plaint but such request was wrongly refused by the learned Division Bench. The Division Bench was totally wrong in passing an order of dismissal of suit itself when it had arrived to the conclusion that the Bombay Court had no jurisdiction to try the suit. The only course to be adopted in such circumstances was to return the plaint for presentation to the proper court and not to dismiss the suit. ............."
(Emphasis by Court)
41. There is still another decision of this Court in Mattukki and Ors. vs. Rajwanti15, where again classification of cases into two categories was approved; one where the suit has been tried on all issues the entire way, one of these being about jurisdiction, which is not found with the Court, and the other category being of cases where the issue about jurisdiction is considered at the earliest stage, looking to the allegations in the plaint. This Court held falling back on the Full Bench decision in Mst. Ananti vs. Channu (supra) and distinguishing the decision of their Lordships in Sri Athmanatha-swami Devasthanam (supra), that suits where the entire course of trial has gone through, it would not be the proper course to order return of the plaint, but to dismiss the suit as done by the first Appellate Court. Of course, to those conclusions, has been added a further dimension that this categorization of cases would be applicable to those causes where the plea is based on lack of jurisdiction as to subject matter, and not where it relates to territorial or pecuniary jurisdiction. It was held in Mattukki and Ors. vs. Rajwanti (supra) thus:
"15. The present case falls in the second category where the first appellate court upon deciding an issue between the parties about their status which question had a direct bearing on the question of jurisdiction has found that the class of Courts in the civil court would not have Jurisdiction to entertain the suit. It was not the case where the territorial limits or the pecuniary limits or the class of the Court within civil court was involved. It was a case where cancellation of the Will deed at the instance of a plaintiff who was not recorded in the revenue records and had not filed any evidence or substantial evidence to prove an interest in the property that the civil court held that the class of civil courts had no jurisdiction because the plaintiffs interest and title was under a cloud and it required a declaration from the competent court. Therefore, under these circumstances the discretion was exercised by the civil court when the first appellate court dismissed the suit of the plaintiff on the issue of lack of jurisdiction and did not return the plaint for presentation before the competent court because even the plaint as it stood for cancellation of a Will deed could not be entertained by the revenue court.
16. The decision cited by Sri R. N. Singh in the case of Athmanathaswami Devasthanam (supra) relates to a case where the suit was filed for recovery of damages for use and occupation of the land. The respondent therein was given possession of the land by the previous trustees of the Devasthanam trust and he started claiming acquisition of the status of ryot under Section 3(15) of the Madras Estates Land Act and acquired permanent rights of occupancy under Section 6 of the said Act. In appeal the High Court disagreed with the trial court and found that the suit as presented could be instituted only in the revenue court and civil court had no jurisdiction to entertain the same and, therefore, it ordered the return of the plaint for presentation to the proper Court. The Hon'ble Supreme Court was considering such a dispute and held that when the Court has no jurisdiction over the subject-matter of the suit it cannot decide any question on merits. The question that can be decided is only a question of jurisdiction and if it comes a conclusion that it had no jurisdiction over the matter it had to return the plaint which was on the plain averments made therein cognizable by another Court competent to entertain the suit.
17. The decisions cited on behalf of the respondents is with respect to the two circumstances when the Court has to return a plaint for presentation or exercise its discretion to dismiss the suit on the ground of having no jurisdiction. The present case is one of the second category where the question of jurisdiction depends upon the averments in the plaint and other questions on merit and the Court proceeded to decide the other issue relating to the claim of the plaintiff as not maintainable before the civil court due to reasons given therein and when the plaint as such could not be maintainable before the revenue court.
18. Once having decided the locus of the plaintiff Phekani in relation to the property and relationship of Gajadhar and Smt. Sugani it found that the suit for cancellation of the Will filed by the plaintiff was not maintainable before the civil court because the plaintiff first required a declaration of her interest which was possible only by the revenue courts. The first appellate court dismissed the suit in toto and did not order return of the plaint. It has, therefore, to be seen whether the plaint ought to have been returned under Order VII, Rule 10 of C.P.C. in the facts and circumstances or the discretion exercised by the first appellate court by dismissing the suit in toto without directing return of plaint is proper or not.
19. As has already been indicated above there are two categories of cases when a jurisdictional issue is involved and the Courts have to decide the same on the facts averred in the plaint. The discretion is only in the second category and in case the plaint allegations are such as falls in the second category where no issue of territorial limits or pecuniary limits or class of Courts within the civil courts is concerned the Court is free to exercise its discretion. Therefore when in the present case there was no issue of territorial limits or pecuniary limits or the class of Courts in the hierarchy of civil courts where the plaint could be maintainable the issue falls squarely where the Court has to consider the question of its jurisdiction on the averments in the plaint only after deciding the competence of the plaintiff to maintain the suit. This was a suit for cancellation of the Will deed by the plaintiff who was not recorded in the revenue records nor had filed any substantial evidence to indicate any interest in the property in question. Therefore, the plaintiff required to get a declaration of her title and remove the cloud over her relating to any right title or interest in the property in question. Hence, the plaint as it stood could not be returned since it would not be cognizable by the revenue court."
42. The question has also been the subject matter of a decision by the Chhattisgarh High Court in Suryakant Gupta vs. B.L. Saraf and another16, where in unequivocal terms, the learned Judge has held that at any stage of the proceeding once it is held that the Court had no jurisdiction, the proper course is to make an order for return of the plaint. In the aforesaid decision, N.K. Agarwal, J. relied upon a Full Bench decision of the Himachal Pradesh High Court in Prithvi Raj Jhingta vs. Gopal Singh17. The decision of the Supreme Court in R.S.D.V. Finance Co. Pvt. Ltd. (supra) was also relied on by His Lordship. It was held in Suryakant Gupta (supra) thus:
"10. The Full Bench of the High Court of Himachal Pradesh in case of Prithvi Raj Jhingta v. Gopal Singh, [AIR 2007 Himachal Pradesh 11.] considering the amended provision of Order XIV has held, to eliminate delay and to ensure expeditious disposal of the suits, both at the stage of trial as well as at the appeal stage, the legislature decided to provide for a mechanism whereby, subject to all exception created under sub-rule (2), all issues, both of law and fact were required to be decided together and the suit had to be disposed of as a whole, of course based upon the findings of the Trial Court on all the issues, both of law and fact.
11. Order XTV of C.P.C. has to be read along with Order VII, Rule 10 of C.P.C. As per explanation of Order VII, Rule 10(I), the Court of Appeal or Revision may direct, after setting aside the decree passed in a suit, return of the plaint. Even if the Court had recorded findings on all issues including the issue of jurisdiction, proper course open for the Court is to return the plaint for its presentation to proper Court. Therefore, ratio of law laid down by the High Court of Himachal Pradesh in Prithvi Raj Jhingta's (supra) case is of no help to the respondents in the facts and circumstances of the present case. For the reasons mentioned hereinabove, in the considered opinion of this Court, the judgment and decree of the Trial Court is not sustainable in law. Therefore, the appeal is allowed. The judgment and decree impugned is set aside. The matter is remitted back to the Trial Court for return of plaint to the plaintiff in terms of provisions contained in Order VII, Rule 10 of C.P.C. Parties are directed to appear before the Trial Court on 2.5.2011. Record of the Trial Court shall be sent back forthwith."
43. A consideration of all the authorities on this seemingly debatable point are preponderant that in a case where the Court at any stage of the proceeding finds that the suit is not triable by it, the proper order to make is one for return of the plaint under Order VII Rule 10 CPC, and not one of dismissal of the suit, or any kind of a decision on merits. The guidance of their Lordships of the Supreme Court, and as already said preponderant authority, certainly not in consensus, is that it does not matter whether the suit has gone through trial the whole way, or has reached the stage of appeal or second appeal. What is relevant is that lack of jurisdiction once determined at any stage, ought to lead to an order for return of the plaint with no determination on merits made. The other view which seems to be not largely subscribed is based on the Full Bench decision in Mst. Ananti vs. Channu (supra). It would be well to remember that the statutory context in which the Full Bench in Mst. Ananti vs. Channu (supra), decided way-back in 1930, was a differently phrased provision of the Code of Civil Procedure, much different from the way it is now worded after the Amendment Act of 1976. The most significant change that the 1976 Amendment has brought about is the addition of the explanation. The added explanation makes it explicit that the power to return can be exercised by virtue of the added explanation by the Court of appeal or revision, after setting aside the decree passed in the suit and by substituting it with an order for return of the plaint. The addition of the explanation brought about by CPC Amendment Act 104 of 1976 is of great significance. The purpose of an explanation is clarificatory. It is expressive of the legislative intent, where doubt has arisen in the application of a statute.
44. Amongst the various purposes that an explanation serves, one that is relevant to the context here has been referred to in Principles of Statutory Interpretation, by Justice G.P. Singh, 13th Edition (page 214) as follows:
"It is also possible that an Explanation may have been added in a declaratory form to retrospectively clarify a doubtful point in law and to serve as a proviso to the main section or ex abundanti cautela to allay groundless apprehensions."
(Note: The aforesaid statements of principle is based on the decisions of the Privy Council in Abdul Latif Khan vs. Abadi Begum (Mrs.), AIR 1934 PC 188 and the Supreme Court in Keshavji Raoji and Co. vs. Commissioner of Income-tax, AIR 1991 SC 1806).
45. A reading of the phraseology of Rule 10 which speaks about the exercise of power to return a plaint at any stage of the suit, and then the explanation clarifying that it can be exercised also by a Court of appeal or revision, in the opinion of this Court postulates that there is absolutely no class of cases or stage of proceeding where the power to return a plaint ought not to be exercised, once the Court finds that it has no jurisdiction. The fact that the power can be exercised by the Court of appeal or revision, that has been clarified through an explanation, logically takes within its fold those cases where trial has gone through the whole way. The principle that where a plaintiff moves a wrong Court that does not have jurisdiction to try the action that he has brought, must be penalized with a dismissal of his suit does not seem to fit into the scheme of things. The question of jurisdiction at times may be quite debatable, or jurisdictional facts may depend upon determination of the Court to be made during trial subject to evidence, or at times upon an application of the law which the parties did not understand to be that what the Court has concluded. If any of these contingencies where the Court finds itself to be without jurisdiction, there is simply no reason to penalize a litigant with the dismissal of his suit. Looked at from another angle, a Court that opines not to have any jurisdiction over the subject matter of the suit does not have jurisdiction to decide anything about it; a fortiori it has no jurisdiction to dismiss the suit.
46. In this view of the matter, this Court is of considered opinion that where a suit is held barred by the provisions of Section 331 of the UP ZA & LR Act at any stage of the proceedings, be it in appeal or revision, the suit cannot be dismissed but has to be dealt with by an order directing return of the plaint to be presented to the proper Court. Substantial question of law no.(i) is answered accordingly. Substantial questions of law no.(ii) has already been answered hereinabove. In view of the answers to questions nos. (i) and (ii), question no.(iii) is not required to be answered.
47. In the result, this appeal succeeds partly and allowed to the extent that the decree of dismissal of the suit passed by the lower Appellate Court is set aside, and shall stand substituted by an order directing return of the plaint for presentation in accordance with law to the proper Court. The Trial Court shall carry out the aforesaid order immediately upon receipt of records. The defendants shall be entitled to their costs from the plaintiffs throughout.
48. It is, accordingly, ordered.
Order Date :- 30.7.2019 Anoop