INDRA DEO Vs. RAM PYARI

JUDGEMENT

(1.) Plaintiffs have directed this appeal against the order of the lower appellate Court allowing the appeal of the respondents and directing return of appellant's plaint to them for presentation to proper Court on the ground that the suit is not cognizable by the Civil Court in view of the pro vision contained in Section 331 of the U. P. Zamindari Abolition and Land Reforms Act, hereinafter referred to as the Act. In the above suit the plaintiffs-appellants "claimed a decree for cancella tion of the sale deed dated July 10, 1969 executed by Smt. Ram Pvari Devi, mother of appellant No. 1 Indra Deo minor in favour of Bramha Nand respondent No. 1 in respect of certain agricultural plots. The cancellation was sought on the ground that Smt. Ram Pyari had no interest in the pro perty in suit and, therefore, she was not entitled to execute the sale deed. The appellant's claim was that they were the Bhumidhars of the land in dispute. The learned District Judge held that the allegations made in the plaint amounted to saying that the sale deed was a void document. On this basis reiving upon Section 331 of the Act and the decisions of their Lordships of the Supreme Court in Gorakh Nath v. H. N. Singh, (A. I. R 1973 S. C. 2451: 1973 R. D. 423.) and of this Court in Ram Math v. Smt. Munna, (1976 L. L. J. 52) the Court below held that the suit was cognizable by the Revenue Court only and the Civil Court had no Jurisdiction to try the same. It accordingly passed the order for return of the plaint. Sri H. S. Sahai, learned counsel for the plaintiffs-appellants argue that the allegations made in the plaint do not amount to saying that the sale deed is a void document. Alternatively he argues that even if the said allegations amount to saying that the deed is void, its cancellation is necessary because its existence casts a cloud on the title of the plaintiffs which can be removed only by cancellation of the document and this can be made by the Civil Court alone, the Revenue Court being competent only to ignore the document whenever the same is produced before it and not to cancel the same. According to the learned counsel the continuance of the cloud may cause serious prejudice to the plaintiffs inasmuch as in course of time, in the face of the registered sale deed, plaintiffs claim of title may not be accepted and recognised and thereby they may lose title to the land in dispute. The learned counsel has cited the following authorities in support of his submissions:- (1) 1968 ALJ 1108: AIR 1968 All 526 (FB ). Ram Awalamb and Others v. Jot a Shankar and Others. (2) 1970 Allahabad Weekly Reports 204, Batasar and Others v. Udit Narain Upadhayaya etc. (3) 1970 Revenue Decisions 216 (DB), Parsottam v. Narottam and Another. (4) 1972 Allahabad Weekly Reporter 623,ramdhariv. Jodhan and Others. (5) 1974 Revenue Decisions 300, Ram Kumar v. Chhotey and Others. (6) 1980 Allahabad Law Journal 113, Jagdamba Prasad Singh v. Prahlad Singh. (7) 1981 Lucknow Law Journal 137, Rameshwar Prasad v. 1st Additional District Judge Gonda and Others. Sri N. K. Pandey learned counsel for the defendants-respondents argues that the authorities relied upon by the learned counsel for the appellants are contrary to the decision rendered by their Lordships of the Supreme Court and to the Full Bench decision of this Court and cannot, therefore, be relied upon. In addition to the two authorities noticed by the lower appellate Court, the learned counsel has relied upon Sheo Pal v. Lekhpata (1979 L. L. J. 165 (D. B.) ). Accord ing to the learned counsel on the averments made in the plaint the sale-deed is void and is, therefore, a waste paper and consequently it does not affect the plaintiffs title and, as such, all that the plaintiffs are required to do in order to protect their title is to file a suit for declaration of their title which is cognizable by the Revenue Court. On this basis it is argued that the bar created under Section 331 is applicable and the Civil Court has no jurisdiction to take cognizance of the suit. In the present appeal it not necessary to decide the question whether the disputed sale deed is a void or a voidable document because I am of the opinion that in either case a suit for cancellation of sale deed will lie in the Civil Court. Section 331 which is relied upon on behalf of the respondents provides as follows:- "cognizance of suits, etc. , under this act.- (1) Except as provided or under this act no Court other than a Court mentioned in column 4 of Schedule II shall, notwithstanding anything contained in the Civil Pro cedure Code. 1908 (V of 1908), take cognizance of any suit application, or proceedings mentioned in column 3 thereof (of a suit, application or proceedings based on a cause of action in respect of which any relief could be obtained by means of any such suit or application ). Provided that where a declaration has been made under Section 143 in respect of any holding or part thereof, the provisions of Schedule II in so far as they relate to suits, applications or proceedings under Chapter VIII shall not apply to such holding or part thereof. Explanation-If the cause of action is one in respect of which relief may be granted by the revenue Court, it is immaterial that the relief asked for from the civil Court may not be identical to that which Court would have granted. " (Emphasis supplied ). The sub-section as well as the explanation speak of 'cause of action'. Proceedings which a Revenue Court is competent to entertain are mentioned in column 3 of Schedule II of the Act. In order to determine whether a proceeding falls under any of the clauses of column 3. the form in which the relief is claimed is not decisive. The decisive thing is the cause of action on which the proceeding is based. If in respect of this cause of action Revenue Court is competent to grant relief, the suit or proceedings would lie in the Civil Court, the jurisdiction under Section 331 being exclusive and not con current. Therefore, if on the basis of the cause of action pleaded in the plaint a suit is cognizable by the Revenue Court, the Revenue Court alone will have jurisdiction to entertain the same and the Civil Court will have no jurisdiction to entertain the suit. The material question, therefore, for determination is what is the cause of action in a suit for cancellation of sale deed on the ground that the executant of the deed had no title to the property conveyed through the deed. Is it the assertion of the title by the executant involving therein the denial of the title of the plaintiff or is it the execution of the deed itself. Section 31 of the Specific Relief Act, 1963 provides as follows: '''when cancellation may be ordered.- (1) Any person against whom a written instrument is void or voidable, and who has reasonable appre hension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void, and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. (2) If the instrument has been registered under the Indian Registration Act, 1908, the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered: and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation. " From the above provision it would be seen that a suit for cancellation of a deed is filed on the basis of the apprehension that the instrument if left outstanding may cause the plaintiff serious injury. If the instrument is one which has been registered a copy thereof will be maintained in the registra tion office. The holder of the instrument may negotiate for sale of the pro perty and the purchaser, in order to satisfy himself, that the holder of the deed has valid title to the property, may examine the registration record and in the absence of an endorsement of cancellation of the document, he may legitimately believe in the representation of title made to him by the holder of the deed and purchase the property. This purchaser may afterwards, claim protection of his title under Section 41 of the Transfer of Property Act on the basis that he purchased the property from ostensible owner. Further, cancellation of a void document protects the prospective purchaser of the pro perty also. If an endorsement of cancellation of the deed has been made in the registration department, a prospective purchaser would not be mislead by the representation of the holder of the deed. I am, therefore of the opinion that the real cause of action in a suit for cancellation is not the assertion of title by the executant but the cloud that is cast on the title of the actual holder of the property. In this way the cause of action is provided by the execution of the deed itself. The view that I have expressed above has been consistently followed by this Court in several decisions which may now be noted. The question was elaborately considered by a Full Bench of this Court in Ram Awalamb and Others v. Jata Shanker and Others, (1968 A. L. J. 1108 ). It is true that in this case the cancellation was sought of a voidable sale-deed but obser vations made by the Full Bench are relevant even for a suit in which can cellation is sought of a void document. At page 1125 the Bench observed as follows:- "a document under which the plaintiff's share also purports to have been transferred by a person not authorised to do so can be cancelled through Court to the extent of the plaintiff's share and after a decree has been passed in his favour information regarding it has to be sent to the registration department for making a note in their register. To have a document adjudged void or voidable is provided for under Section 31 of the Specific Relief Act and cannot be considered to be altogether unnecessary because after a lapse of several years the unchallenged existence of such documents can cause serious difficulty to the plaintiff in establishing his title to the land of his share. . . . . . . . . " Repelling the argument that a co-sharer claiming cancellation of the sale deed to the extent of his share only may file a suit for partition under the Act, the Bench observed thus:- ". . . . . . . . . . . . The parties may, after the sale deeds have been cancelled, like hold the land as co-sharers. They need not in all cases be forced to get the holding partitioned. . . . . . . . . " Again repelling the argument that a suit for mere declaration of title would be enough to protect the interest of the plaintiff, the Bench observed:- ". . . . . . . . . . . . The plaintiff was not bound to ask for a mere declaration of his title in respect of the joint land when he could pay for cancella tion of the entire sale-deed or at least a part of it. In short the reliefs for declaration and partition could not be said to be effective alternative relief for the cancellation of the sale-deeds in respect of the whole or part of the joint property. . . . . . . . . " I entirely agree with the observations of the Full Bench that a decree for declaration is not an effective alternative relief which may be claimed in sub stitution of the relief for cancellation of the sale-deed. The scope of Section 331 was elaborately considered alongwith Section 31 of the Specific Relief Act by K. B. Asthana, J. , as he then was, in Batasar and Others v. Udit Narain Upadhyaya etc. , ( 1970 A. W. R. 204 ). In this case the plaintiff claimed cancellation of the sale-deed on the ground that the transferor was not the exclusive Bhumidhar of the plots transferred but was merdy a Bhumidhar along with the plaintiff and also on the ground that the sale was an illusory transaction inasmuch as neither consideration passed to the transferor nor possession has delivered to the transferee. On behalf of the defendants it was pleaded that the plaintiff could file a suit for declaration of title under the act and, therefore, the suit was not cognizable by the Civil Court. Asthana, J. came to the conclusion that Section 331 of the Act could not be so interpreted as to render nugatory the right conferred under Section 31 of the Specific Relief Act. Repelling the argument of the defendant that the plaintiff could file a suit for declaration. Asthana, J. , observed in Paragraphs 11 and 13 as follows: ". . . . . . . . . . . . . . . . . . It is for the plaintiff to decide whether for better protection of his interest he would prefer to have an instrument in writing void against him cancelled or to ignore it and proceed to seek other reliefs to secure his interests. I do not think under the scheme of Section 31 of the Specific Relief Act a Court would be justified in the exercise of its discretion to refuse the relief to a plaintiff merely for the reason that the instrument in writing sought to be cancelled being void against the plaintiff could always be ignored in the -eye of law and a decree for its cancellation was not necessary. If that were so then the right conferred by Section 31 to have an instrument in writing void against the plaintiff cancelled will be rendered nugatory and illusory. . . . . . . . . . . . . . . . To my mind, the object of the cancellation of an instrument in writing under Section 31 of the Specific Relief Act will always be to remove the cloud on the title of the plaintiff inasmuch as by the can cellation of the instrument the right and interest of the plaintiff in such property would become secure. Since the object of cancellation of a sale deed in respect of agricultural holding is for securing of his rights and interests by the plaintiff in that land, then to say any plaint presented before the Civil Court based on a cause of action on which relief for cancellation could be obtained is a facade for camouflage, would amount to defeating the right of a plaintiff conferred under Section 31 of the Specific Relief Act to obtain the equitable relief of cancellation. . . . . . . . . " I entirely agree with the above observations. The same view was expressed by K. B. Asthana, J. , in Ramdhari v. Jodhan and Others, (1972 A. W. R. 623. ). In this case he was dealing with a case in which cancellation of sale deed had been sought on the ground that the same was void. It was held that the Civil Court had jurisdiction to entertain the suit. In Jagdamba Prasad Singh v. Prahlad Singh, ( 1980 A. L. J. 1135) R. M. Sahai, J. was also dealing with a case in which cancellation of sale deed had been sought on the basis that the same was void. Repelling the argument of the defendant regard ing the jurisdiction of the Civil Court to entertain the suit, Sahai, J. observed in paragraph 3 as follows;- ". . . . . . . . . . . . . . . Examining the validity of sale deed in suit, cognizable by revenue Court is not the same thing as saying that a suit for cancella tion of void document is cognizable only in revenue Court. If the argu ment of the learned counsel is accepted it shall mean that suit for cancella tion of voidable documents would lie in Civil Court whereas of void documents in revenue Court. This however is fallacious. Both the suits are cognizable in Civil Court. . . . . . . . . " In this case Sahai, J, referred to Sheo Pal v. Lakhpata and Gorakh Nath Dube v. Han Narain Singh and Others (supra) relied upon by the learned counsel for the respondent and observed that these decisions merely laid down general principles for determining when a document could be characterised as void and voidable. In Rameshwar Prasad v. 1st Addl. District Judge, Gonda and Others, ( 1981 L. L. J. 137.) T. S. Mfsra, J. was also dealing with a case in which the plaintiff claimed cancellation of sale deed on the ground that the same was void inasmuch as though the deed was purported to have been executed by him. he had in fact executed no such deed. The defendant's plea of want of juris diction in the Civil Court was rejected A survey of the above decisions shows that the consistent view of this Court is that the cause of action in a suit for cancellation of sale-deed is not the denial of plaintiff's title which may be said to be implicit in the execution of the sale deed by the defendant but is the execution of the deed itself. With this view of I respectfully agree. In none of the authorities cited by Sri Pandey, Section 331 of the Act or Section 31 of the Specific Relief Act came up for consideration. All these cases involved interpretation of Section 5 of the U. P. Consolidation of Holdings Act. These authorities lay down that a suit for cancellation of a void document would abate on the village being notified for consolidation operations but a suit for cancellation of a voidable document would not abate. The language of Section 5 is entirely different from the language of Section 331 of the Act. Section 5 reads as follows:- "3. Effect of notification under Section 4 (2 ).- (1) Upon the publication of the notification under sub- section (2) of Section 4 in the Official Gazette the consequences, as hereinafter set forth, shall, subject to the provisions of this Act from the date specified there under till the publication of notification under Section 52 or sub-section (1) of Section 6, as the case may be, ensure the area to which the notification under sub-section 4 (2) relates, namely- (a) the district or party thereof, as the case may be, shall be deemed to be under consolidation operations and the duty of maintaining the record-of-rights and preparing the village map, the field book and the annual register of each village shall be performed by the District Deputy Director of Consolidation who shall maintain or prepare them, as the case may be, in the manner prescribed; (2) Upon the said publication of the notification under sub-section (2) Section 4 the following further consequences shall ensure in the area to which the notification relates namely- (a) every proceeding for the correction of records and every suit and proceeding in respect of declaration of rights or interest of any land lying in the area, or for declaration or adjudification of any other right in regard to which proceeding can or ought to be taken under this Act, pending before any Court or authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the Court or authority before whom such suit or proceeding is pending, stand abated; From the above it is apparent that after the village has been notified under Section 4 for consolidation operation, the duty of maintaining the record of rights passes on to the consolidation authorities. Under the provisions of the Act the Consolidation Authorities investigate the title of the tenure holders to the various plots lying within the consolidation area and thereafter title is recorded in the record of rights. The record of rights prepared during the consolidation operations is final and even if any title vested in a tenure holder prior to the consolidation operations, the same is extinguished if it is not recognised during consolidation proceeding. Thus a sale deed acquired by tenure holder prior to consolidation operations becomes null and void if title on its basis is not asserted before the consolidation authorities and is recognised by them. It is for this reason that it has been provided in clause (a) of sub section (2) that if in regard to the right which is claimed in the suit proceeding could be taken under the Consolidation of Holdings Act, the suit shall abate. Now if a sale deed is void, it is a waste paper and it can be ignored by the consolidation authorities while proceedings to investigate the rival claims to a plot in dispute. The authorities relied upon by the learned counsel for the respondents are based upon the words "proceedings can or ought to be taken under this Act" used in clause (a) of sub-section (2 ). In my opinion, therefore, authorities under Section 5 (2) of the Consolidation of Holdings Act cannot be pressed into service for claiming ouster of jurisdiction under Section 331 of the Act. It is settled law that Civil Court has jurisdiction to try all suits of a civil nature except those of which its cognizance is barred under any local law. It is also equally well settled that a statute ousting the jurisdiction of a Civil Court must be strictly construed See Abdul Waheed Khan v. Bhawani and Others, (A. I. R. 1966 S. C. 1718, para 9.) In this context it may now be examined whether the respondents plea that the plaintiffs could file a suit for a declaration of title can be sustained. The only provision under which a Bhumidhar claiming title-to his Bhumidhari holding can file a suit for declaration of title is Section 229-B of the Act which reads as follows:- "229-B. (1) Any person claiming to be an asami of a holding or any part thereof, whether exclusively or jointly with any other person, may sue to the land holder for a declaration of his rights as asami in such holding or part, as the case may be. (2) The provisions of sub-sections (1) and (2) shall mutatis mutandis apply to a suit by a person claiming to be Bhumidhar with the amend ment that for the word 'land holder the State Government and the Gaon Sabha are substituted therein. " If the provisions of sub-section (3) adjusted in sub-section (1), the latter sub-section would read as follows:- "a Bhumidhar or Sirdar claiming title to be a Bhumidhar or Sirdar of a holding or any part thereof, whether exclusively or jointly with any other person, may she the State Government and the Gaon Sabha for a declaration of his rights as Bhumidhar or Sirdar in such holding or part, as the case may be. " From the above it is clear that Section 229-B (3) contemplates a suit for declaration by a Bhumidhar or Sirdar against the State Government and the Gaon Sabha. Such a suit would be necessary when the plaintiffs title is not recognised either by the State Government or by the Gaon Sabha. The occasion for filing such a suit will not arise when the title of the plaintiff is denied by a person other than the State Government and the Gaon Sabha. Therefore, under the provisions of the Act itself, the jurisdiction of the Civil Court would not be barred when declaration is sought against a person who has transferred agricultural property which the plaintiff claims to be his. Section 229-B does not complete all kinds of declaratory suits. It deals with declaratory suits of the specific type hereinbefore mentioned. The section came up for interpretation before a Division Bench of this Court in Parsottam v. Narottam and Another (1970 R. D. 216.) The Division Bench observed as follows - "section 229-B of the U. P. Zamindari Abolition and Land Reforms Act is the only section which deal s with declaratory suits relating to agricultural land. The question arises as to whether this section covers declaratory suits of all kinds or is limited only to suits of a particular category. Sub-section (1) of Section 229-B provides for a suit for declaration by an Asami against the land holder and says in sub section (2) that in such a suit any other person claiming Asami rights in the land in suit shall be impleaded as a defendant, sub-section (3) of that section makes the provision of sub-sections (1) and (2) applicable mutatis mutandis to a suit by a Bhumidhar or Sirdar with the amend ment that instead of the land holder "state Government and Gaon Sabha" shall be substituted. In other words a suit for the declaration of Bhumidhari or Sirdari rights is to be filed against the State Government and the Gaon Sabha and any other person who claims Bhumidhari or Sirdari rights in such land has also to be impleaded as a party. The suit contemplated by the provisions of Section 229-B is directed primarily against the State Government and the Gaon Sabha. Now such a suit would be necessary only if the State Government or the Gaon Sabha disputes the plaintiff's title as a Bhumidhar or Sirdar. If the State Government or the Gaon Sabha does not dispute the claim of the plaintiff such a suit would not lie under Section 229-B of the Act merely because some other person disputes the plaintiff's claim. " In view of the above the present suit filed by the appellants would not be barred even if it is held that a suit for declaration would be sufficient to protect the interest of the plaintiffs. In view of the above, I am of the opinion that the learned District Judge was not correct in holding that the appellants suit was not cognizable by the Civil Court. The appeal is accordingly allowed and the judgment and order passed by the learned District Judge, Gonda, are hereby set aside. It is held that the appellants suits is cognizable by the Civil Court. The costs of this appeal shall be borne by the contesting respondents. .