ASHOK KUMAR Vs. ESRAJI

JUDGEMENT

(1.) RAJES Kumar, J. The present First Appeal From Order has been filed against the order dated 16-1-1982 by the Ist Addl. District Judge, Jaunpur in Appeal No 44 of 1979 arising out of Original Suit No. 52 of 1979.

(2.) THE brief facts of the case are that the plaintiff-respondent Smt. Esraji w/o Devi Charan filed a Suit No. 52 of 1979 for declaration and cancellation of a sale-deed dated 31-8-1978 as void on the ground that she is a Bhumidhar of land in dispute and sale-deed was executed fraudulently by someone else in favour of defendant appellant. It has been alleged that in the sale-deed, neither there is any thumb impression nor signature of plaintiff and inasmuch as the plaintiff had not gone to the office of Sub- Registrar and had no knowledge about the execution of such sale- deed. Defendant filed objection, in which it had been said that the suit was not maintainable for want of jurisdiction inasmuch as it was cognizable by the Revenue Court and not by Civil Court and barred by Section 331 of U. P. Zamindari Abolition and Land Reforms Act, Munsif, Jaunpur vide its order dated 5-11- 1979 held that if is true that it in place of plaintiff someone else has executed sale-deed, is definitely void and nullity. However, he held that since the property in dispute was agricultural, hence, the case could be filed in Revenue Court for which, he relied upon the decision of this Court in the case of Ram Roop v. Smt. Boondiya, reported in 1979 A. W. C. Page 44 and in the case of Sheo Pal v. Smt. Lakhpatta reported, in 1979 A. W. C. page 524. After holding that the suit was not maintainable in the civil Court but could be filed in a Revenue Court he directed to return the plaint for presentation before the proper Court.

(3.) IN the case of Ram Roop and others v. Smt. Budhiya reported in 1979 A. L. J. page 800 a registered sale- deed dated 6-9-1963 purported to have been executed by Smt. Budhiya in favour of appellant in respect of the some agricultural plots, came into existence. IN the year, 1964 Smt. Budhiya filed a Suit, that she was an old, illiterate and blind woman, that she had not executed the said sale-deed and the sale- deed was the result of misrepresentation and fraud played upon her by the appellants; She was actually taken to Ghazipur for getting Ration Card, in that account her thumb impression was taken on the blank papers for the purposes of execution of sale- deed. She further claimed for possession of the land in the case which was found out of possession. This Court held as follows: (9) "in this way the position is that if the document is void in law, the revenue Court is the proper Court for seeking redress, but if a document is voidable, the Civil Court can take cognizance of the case for avoiding it. 11. The above allegations clearly show two things: (1) Smt. Budhiya thumb marked on some blank papers for obtaining ration card. She did not thumb mark on the papers which were meant for writing out sale-deed. Thus he challenges the very character of the document. According to her it was a forgery committed by the fathers of the defendants and (2) She had no necessity to take any loan. She was given no consideration of the sale-deed, those allegations clearly indicate that according to the plaintiff the sale-deed was in fact a void document. No doubt, there are allegations to the effect that she is an old, blind and illiterate woman but these allegations do not take away the effect of the entire allegations of the plaint which clearly show that accordingly to her it was a forged and fictious document without consideration. Therefore, in order to obtain possession or to obtain declaration of her status as order she could easily sue in the revenue Court. The lower appellate Court was not justified that the suit was essentially for adjudging the sale- deed void on the ground fraud and misrepresentation.