ABDUL SATTAR AND ANOTHER Vs. MOHAMMAD SAEED

JUDGEMENT

(1.) This appeal arises in the following circumstances. The plaintiff-respondent filed the suit alleging that Abdul Hamid was formerly a Sirdar of the land in dispute. Later on he required Bhumidhari rights in the said land and sold it to the plaintiff per sale-deed dated 5.2.1971 for a consideration of Rs. 9,500.00 and put the plaintiff to possession of the same. At the time of the execution of the sale-deed it transpired to the plaintiff that the defendant No. 2 had set up some other person posing as Abdul Hamid and got a fictitious power of attorney executed from that impersonator and then executed a sale deed in favour of his own son-in-law the defendant No. 1. The plaintiff, therefore, contended that the said sale deed executed by the defendant no. 2 in favour of the defendant No. 1 is a void, fraudulent and fictitious document. The defendants then wanted to take possession of the said land and with a view to avoid dispute the plaintiff initiated proceedings under Sec. 145 Crimial P.C. and the land was attached in those proceedings. The said proceedings, however, were decided against the plaintiff and the defendants then attempted to take possession of the land. Consequently the plaintiff filed the suit which has given rise to this appeal. He claimed in the suit a declaration that the sale deed dated 5.2.1971 executed by the defendant No. 2 in favour of the defendant No. 1 was void, illegal, fictitious and fraudulent. He also claimed permanent injunction restraining the defendants from taking possession of the said land. The suit was resisted by the defendants. The trial court on a consideration of the evidence on record found merits in the claim of the plaintiff and decreed the suit. The defendants had, inter alia, challenged the jurisdiction of the civil Court to try the suit. That plea was repelled. The matter was then taken to the appellate court below but the appeal failed and the judgment and decree pas-ed by the trial court were maintained. The defendants have now come up to this court on second appeal.

(2.) For the appellants it was urged at the outset that they should be permitted to file additional evidence in the case. I shall deal with those applications at the appropriate stage.

(3.) The learned counsel for the appellants strenuously argued that the trial court had no jurisdiction to try the suit and the matter was cognisable only by the revenue court. The submission was that the criminal court in the proceedings under Sec. 145 Crimial P.C. had found that the defendants were in possession of the land in dispute on the date of the preliminary order and two months thereto hence the plaintiff in view of this finding should have filed a suit under Sec. 229-B read with Sec. 209 of the U.P. Zamindari Abolition and Land Reforms Act, in the appropriate revenue court. Further to strengthen this argument it was submitted that according to the plaintiff himself the document executed by the defendant No. 2 in favour of the defendant No. 1 was void. That being the position the suit was not cognisable by the Civil Court because the revenue court could always ignore that document and grant appropriate relief under Sec. 229-B read with Sec. 209 of the U.P. Zamindari Abolition and Laud Reforms Act. The learned Counsel for the respondent however urged that both the courts below were justified in holding that the suit was cognisable by the Civil Court inasmuch the main reliefs sought for in the suit were the declaration that the sale deed executed by the defendant No. 2 in favour of the defendant No. 1 was illegal and void and that the defendants should be restrained from taking possession of the land in dispute. Such relief could, according to the learned counsel for the plaintiff-respondent, be granted only by the Civil Court and not by the revenue court.