Dismissed

Brijesh v. Smt. Manorama (Deceased) and 2 Others

Allahabad HC5 Oct 2018SAPL/525/2018

Case brief

AI extract

What is this about?

In second appeal, court dismissed appeal against lower appellate court decree. Bench held that since appellant had already filed a suit under Section 229-B U.P.Z.A. & L.R. Act for declaration of rights as an asami, civil court lacked jurisdiction and further relief was redundant.

What did the court decide?

Appeal dismissed. No interference with judgment and decree of lower appellate court.

Brijesh Vs Smt. Manorama (Deceased) and 2 Others — Partition | Allahabad HC (2018)

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AFR

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Court No. - 26 Case :- SECOND APPEAL No. - 525 of 2018 Appellant :- Brijesh Respondent :- Smt. Manorama (Deceased) And 2 Others Counsel for Appellant :- Awadhesh Kumar Yadav Counsel for Respondent :- Prabhakar Dubey

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Hon'ble Ajit Kumar,J.

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This appeal, under Section 100 Code of Civil Procedure, is directed is directed against the judgment and decree dated 09.02.2018 and 21.02.2018 passed by Additional District Judge, Bansi, Siddharthnagar in Civil Appeal No. 15 of 2013 and also against the judgment and decree dated 29.03.2013 whereby, original suit of the appellant herein being numbered as Original Suit No. 302 of 1991 has been dismissed.

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The case set up by the plaintiff-appellant herein is that the land originally belongs to Durgawati who succeeded the suit land from her husband Tarachand. However, subsequently she executed a registered WILL in favour of the appellant on 07.07.1985 and thereafter, Durgawati died on 25.07.1985. It is submitted that Durgawati had a daughter Manorama, who, though was married but eloped with a third person and resultantly Durgawati had started living with the plaintiffappellant and it is out of love and affection that a WILL was executed in his favour. Manorama was not concerned with the land in question, as she was living elsewhere, however, certain people in village by impersonation got the land purchased showing Manorama as Vendor. Since the land is agricultural and plaintiff-appellant was not recorded over the land, therefore, he also filed a suit under Section 229-B of U.P.Z.A. & L.R. Act, 1950 which was registered as Suit No. 206 of 1986, wherein an injunction order was passed under Section 229-D of U.P.Z.A. & L.R. Act on 02.06.1986 which was later on confirmed on 04.12.1986 after hearing Manorama and against the said order the revision filed by Manorama was also dismissed by the Commissioner on 18.08.1989. Under the injunction order she was restrained from executing any sale deed or alienating property. It is under these circumstances, the present suit came to be filed for cancellation of sale deed executed by Manorama in favour of defendant-respondent and second for injunction and cancellation of WILL allegedly executed by Durgawati in favour of Manorama. However, trial court decreed the Suit No. 302 of 1991 regarding cancellation of sale deed but the Original Suit of appellant being Suit No. 206 of 1986 regarding injunction and cancellation of WILL

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came to be dismissed. In the first set, plaintiff-appellant filed appeal against the judgment and decree of the trial court dated 02.03.2013 in respect of O.S. No. 47 of 1986 out of which the present appeal arises, whereas, defendant-respondents also preferred an appeal against the judgment and decree dated 29.03.2013 passed in O.S. No. 302 of 1991. Both the appeals bearing nos. 17 of 2013 and 15 of 2013 were clubbed together and passed by the lower appellate court which is impugned in the present appeal. Learned court had recorded the finding that land is agricultural and further the plaintiff being not recorded has a right to get declaration in respect of agricultural holding on the basis of WILL which he setting up. It has also taken notice of the fact that plaintiff-appellant also filed a suit under Section 229-B of U.P.Z.A. & L.R.Act which has been registered as O.S. No. 206 of 1986 which was still going on.

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Under the circumstances, learned court below come to the conclusion that appellant being not recorded and so suit for even injunction will in effect amount to a suit getting declaratory rights in agricultural holding. The lower appellate court has relied upon the judgment of Supreme Court including the one in the case of Sri Ram v. First Additional District Judge 2001 All. C.J. Page 497 in which it has been held that in civil suit for injunction or cancellation, if plaintiff is not recorded tenure holder then it is a case of getting declaration in respect of title. Unless and until the tenure holder is recorded such rights can only be agitated before the revenue court under U.P.Z.A. & L.R. Act.

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Having heard learned counsels for the parties and perused the record, I am of the considered opinion that once it is admitted position that the plaintiff-appellant has already filed a suit under Section 229-B of U.P.Z.A. & L.R. Act for getting his rights declared on the basis of some WILL in respect of an agricultural holding and there he obtained some injunction initialy against Manorama who is vendor of the defendantrespondent Sri Nath, there is no occasion to agitate the matter before civil court. Revenue court has absolute jurisdiction to try a suit for declaratory rights in respect of agricultural holdings vide Section 229-B of U.P.Z.A. & L.R.Act, 1950 and such suits are specifically barred before regular civil court under Section 331 of the Act, 1950. The provisions are quoted hereunder:

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" 229B. Declaratory suit by person claiming to be an asami of a holding or part thereof. - [(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 the landholder for a declaration of his rights as asami in such holding or part, as the case may be]. (2) In any suit under sub-section (1) any other person claiming to hold as asami under the land-holder shall be impleaded as defendant. (3) The provisions of sub-sections (1) and (2)

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shall mutatis mutandis apply to a suit by a person claiming to be a [bhumidhar] [* * *] with the amendment that for the word "landholder" the words "the State Government and the [Gaon Sabha] are substituted therein.]"

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"331. Cognizance of suits, etc under this Act.- (1) Except as provided by or under this Act no court other than a court mentioned in Column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908, (V of 1908) take cognizance of any suit, application or proceedings mentioned in Column 3 thereof [or 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:]

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[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 suit, application or proceedings under Chapter VIII shall not apply to such holding or part thereof.]

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[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 the revenue court would have granted.]

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[(1-A) Notwithstanding anything in sub-section (i), an objection, that a court mentioned in Column 4 of Schedule II, or, as the case may be, a civil court, which had no jurisdiction with respect to the suit, application or, proceeding, exercised jurisdiction with respect thereto shall not be entertained by any appellate or revisional court unless the objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.]

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(2) Except as hereinafter provided no appeal shall lie from an order or [decree] passed under any of the proceedings mentioned in Column 3 of the Schedule aforesaid:

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[(3) An appeal shall lie from any decree or from an order passed under Section 47 or an order of the nature mentioned in Section 104 of the Code of Civil Procedure, 1908 (V of 1908) or in Order 43, Rule 1 of the First Schedule to that Code passed by a court mentioned in Column No. 4 of Schedule II to this Act in proceedings mentioned in Column 3 thereof to the court or authority mentioned in Column No. 5 thereof.

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(4) A second appeal shall lie on any of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 (V of 1908) from the final order or decree, passed in an appeal under sub-section (3), to the authority, if any, mentioned against it in Column 6 of the Schedule aforesaid.] "

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Revenue court has also jurisdiction to ignore a void instrument of sale while passing decree of declaration of rights/ title in respect of agricultural holdings. A deed that is null and void has no valid consequence. No rights flow for such instrument. It has been h e ld by Full Bench of this Court in Ram Padarath & Ors v. Second Addl. District Judge, Sultanpur & Ors reported in 1989 R.D. page 21 thus:

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"On the finding that a particular instrument or document was void because of any reason, it will be of no legal consequence and binding on any one without even its cancellation. But existence of such a document or instrument, more particularly for a substantial period, may cause injury to the person whose rights are affected by it and place his right and title over any property in doubt and dispute and may create complications and give rise to unnecessary litigations. But for those who are aware of any judgment holding a particular document or instrument to be void or supposed to be aware of it, others can be misled by its existence if it does not contain any endorsement of its cancellation subsequent to its execution by any competent court of law. Reasonable apprehension of serious injury from a void document provides a cause of action to a person to approach the competent court of law, that is, civil court for its cancellation. But this entitlement goes into background or becomes restricted if because of certain statutory constraints, restraints and prescription some other relief can be claimed or is to be granted by adjudging the document or instrument void and thereby declaring it to be legally ineffective and of no consequence. Such a situation can arise if apart from cancellation, some other relief is claimed which is real relief and the claim for which provides the proximate ground or reason for approaching the court of law or when any other relief can be claimed or involved in the matter cropping up because of the evidence of void document or instrument. There can be other situation also, all of which can be created by statutory provisions as the jurisdiction of civil court can be ousted only by some specific provision of law or by necessary implication sprouting out of statutory provisions. Such a situation arises when more than one relief's are claimed in any action pertaining to agricultural land. If the relief claimed or the real and the main relief is one which is mentioned in Schedule II to U.P. Zamindari Abolition and Land Reforms Act, the same can be granted by the revenue court only and the jurisdiction of civil court to grant such a relief or relief's is ousted by section 331 of the said Act."

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The Full Bench (supra) consequently concluded thus:

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"The reasons which led the State Legislature to insert section 331 (1-A) in the 'Act' show that the legislature intended to put an end to frivolous and technical pleas of jurisdiction. The reasons of the amendment father discourage plea of jurisdiction unless it is really not substantial plea. It doubtful cases the civil court's jurisdiction can easily be not ousted and a person is not to be deprived from real relief desired and made to remain satisfied with some relief in the present only.

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Section 331 (1-A)of U.P. Zamindari Abolition and Land Reform Act is analogous to Section 21 of Civil Procedure Code. Section 21 of the Civil Procedure Code is also in similar language. Section 331 (1-A) of Zamindari Abolition and Land Reforms Act, like section 21 Civil Procedure Code, requires that all the three conditions must co-exist i.e., objection is raised before the trial court before framing of the issues and that there has been no failure of justice and the appellate court or revisional court cannot entertain such an objection except when it is established that there has been failure of justice in trial of the proceedings in that court.

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The Supreme Court interpreting section 21 CPC in Koopilan Ureen's daughter Pathumma and others v. Koopilan Ureen's son Kuntalan Kutty

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dead by LRs. and others (AIR 1981 SC 1683) observed that all the three conditions mentioned in section 21 (1) of the Civil Procedure Code must coexist and the failure of justice can be inferred only from the material on record. This indicates that unless it is not established that because the lease was taken cognizance of by a particular court and a party was deprived from tendering evidence or because of procedural defect or difficulty he could not get full opportunity to substantiate his case or things of like nature and the same resulted in failure of justice; the plea of jurisdiction can be entertained only in such circumstances.

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We are of the view that the case of Indra Dev v. Smt.Ram Piari (1982 (8) A.L.R. 517) (H.C., L.B.) has been correctly decided and the said decision requires no consideration, while the Division Bench Case, Dr. Ayodhya Prasad v. Gangotri ( 1981 All WC 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 this relief permissible under law except when a declaration of right or status as a tenure-holder is necessarily needed, in which event relief for cancellation will be surplus-age 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."

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Looking to the allegations as made in the plaint and decree sought for in the suit, the only point emerges is that plaintiff is seeking his title to be declared in respect of suit land on the basis of WILL which otherwise he is not entitled to in natural course of succession. In such circumstances, I do not find any reason to take a different view from what has been taken by the court below.

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In the facts and circumstances, when the suit is still going on between the same parties in the revenue court under Section 229-B of U.P.Z.A. & L.R. Act, 1950 and the court below has already observed that it is open for the parties to agitate the matter before the appropriate forum i.e. revenue court, I do not find any good ground to interfere in the judgment and decree passed by lower appellate court. No substantial question of law arises for consideration and therefore, the appeal is liable to be dismissed and is hereby dismissed .

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Order Date :- 5.10.2018 IrfanUddin

Brijesh v. Smt. Manorama (Deceased) and 2 Others

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Brijesh v. Smt. Manorama (Deceased) and 2 Others

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