RAGHUNATH Vs. DISTRICT JUDGE MIRZAPUR

JUDGEMENT

(1.) ONE Deo Narain was the bhumidhar of the land in dispute. On September 17, 1976, and April 24, 1980, there were registered deeds of sale executed purporting to be by Deo Narain aforesaid in favour of the Petitioners. The deed of sale dated September 17, 1976, pertains to land situate in village Atraila Shiv Gulam; the other deed of sale is in respect of certain plots situate in village Babura Bhairon Dayal. Deo Narain, along with his daughter, impleaded as Respondent No. 3, namely, Smt. Bhagwanti instituted Original Suit No. 161 of 1981 in *he Court of Munsif, Mirzapur, for cancellation of these deeds of sale on various grounds. Deo Narain died during the pendency of the suit on June 30, 1981. He died leaving his brother Jag Deo, but without the wife or a male issue. The question arose whether upon his death the suit had abated and it was also pleaded for the Petitioners (Defendants) that the civil Court did not have jurisdiction to try the suit. Preliminary issues were framed by the trial Court on this point. Both these issues were decided by the trial Court against the Petitioners on July 20, 1982, the revision filed by the Petitioners was dismissed on March 16, 1983. Aggrieved the Petitioners (Defendants) have approached this Court

(2.) LEARNED Counsel for the Petitioners raised two fold contentions in support of the petition. It was submitted in the first place that on the death of Deo Narain, his brother being the preferential heir under Section 171(f) of the UP ZA and LR Act (Act No. 1 of 1951) in comparison to married daughter, who is placed under Clause (g) and there being no application for the brother of the deceased seeking his substitution as a legal representative of the deceased, the suit could not be maintained by the surviving Plaintiff, namely Smt. Bhagwanti. The other contention is that there being averment in paragraph 7 of the plaint to the effect that the deed of sale dated April 24, 1980, may have been obtained from some imposter by the Petitioners, the jurisdiction lies in revenue Court since on that account the transaction could be void and not voidable. Both these contentions have been countered from the other side.

(3.) AS regards the other submission of Sri Srivastava for the Petitioners Order XXII Rule 3 Code of Civil Procedure runs as under: