First appeal against an impugned order displacing the trial court's finding that civil court lacks jurisdiction over a cancellation suit. The court held the sale deed was voidable due to fraud and a civil court has jurisdiction to grant cancellation relief.
The first appeal was dismissed at the admission stage.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 40
Case :- FIRST APPEAL FROM ORDER No. - 3319 of 2018
Appellant :- Smt. Munni Devi And Another Respondent :- Anand Prakash Counsel for Appellant :- Anurag Pathak,Harshit Pathak Counsel for Respondent :- Kripa Shanker,Hari Mohan Srivastava
Hon'ble Harsh Kumar,J.
The present first appeal from order has been filed against impugned order and formal orders dated 16.5.2018 and 30.5.2018 passed by learned Additional District Judge, Court No.6, Saharanpur in Civil Appeal No.12 of 2016 whereby learned Judge setting aside judgment dated 15.2.2016 of Civil Judge (J.D.), Deoband rejecting plaint under Order VII Rule 11 of C.P.C. has remanded the matter back to trial court for disposal of Original Suit No.26 of 2004 on merits.
The brief facts relating to the case are that plaintiff-respondent filed Civil Suit No.26 of 2004 in the Court of Civil Judge (Junior Division), Deoband seeking a decree for cancellation of sale deed dated 6.10.2003 with the averments that plaintiff has 1/2 share in the property in suit since birth and rest 1/2 belonged to his father Sukkhan Singh and on death of Sukkhan Singh 1/3 out of his 1/2 i.e. 1/6th in total land from their share devolved on him while rest 2/3 i.e. 1/3rd share in total plot devolved on husband and mother-in-law of defendant no.1 and plaintiff became owner of 2/3rd in entire property but defendants who are wife and daughter-in-law of plaintiff's brother have obtained a sale deed of suit property from father of plaintiff, during his critical illness due to which he died on very next day of execution of alleged sale deed which is without payment of consideration and is liable to be cancelled. The defendants-appellants filed written statement denying allegations made in plaint and stating that civil court has no jurisdiction to try the suit. The trial court framed various issues on pleadings of parties and deciding issue no.3 regarding jurisdiction as a preliminary issue held that civil court has no jurisdiction to try the suit and consequently rejected plaint under Order VII Rule 11 of C.P.C. Feeling aggrieved plaintiff preferred Civil Appeal No.12 of 2016 which was allowed vide impugned order by displacing the findings of trial court on issue no.3 and remanding the matter for disposal on merits. Hence the defendants have come in appeal.
Heard Sri Anurag Pathak, learned counsel for appellants, Sri H.M. Srivastava, learned counsel for respondents and perused the record.
Learned counsel for defendants-appellants contended that plaintiff is not recorded tenure holder and by filing suit for cancellation of decree he has sought declaration of his Bhumidhari rights in the property; that plaintiff claims to be cosharer to the extent of 1/2 share in the property in suit since birth and having got 1/6th share by succession on death of his father claiming himself to be owner and Bhumidhar to the extent of 2/3 share in the property in suit and seeking cancellation of sale deed up to the extent of 2/3 share of plaintiff in the property in suit. In support of his arguments he has paid reliance on judgment passed by Apex Court in the case of Kamla Prasad and others Vs. Krishna Kant Pathak and others, 2007 (102) RD 378 and followed by this Court in the case of Acche Lal (deceased) through L.Rs. and others Vs. Krishna Gopal Agarwal and others, 2017 (135) RD 783.
Per contra, learned counsel for plaintiffs-respondents supported impugned order and contended that suit filed by plaintiffrespondent is pure and simple suit for cancellation of sale deed as the sale deed in question is voidable having been obtained by defendants from father of plaintiff during his serious illness when he was on death bed by taking undue advantage of his poor medical condition as well as by exerting undue influence on him, without payment of any sale consideration; that neither vender, father of plaintiffs had any need to sell his property nor defendants had capacity to make payment of alleged sale consideration or Rs.14 Lacs which was never paid to father of plaintiffs; that vender died the very next day of alleged execution of impugned sale deed; that in para 11 of the plaint plaintiff has only demonstrated his rights and interests in the property and no declaration has been sought; that in any case from the averments made in para 11 of the plaint, the plaintiff claims at least 1/2 share in the property in suit by birth and 1/6th shares by way of succession on death of his father; that suit for cancellation of sale deed on ground of serious illness of vendor, his death very next day and non-payment of sale consideration may only be decided by civil court as no declaration is required to be made by revenue courts. In support of his arguments he paid reliance on Full Bench decision of this Court in the case of Ram Padarath Vs. Second Addl. District Judge, Sultanpur, 1989 R.D. 21 and of Apex Court in the case of Smt. Bismillah Vs. Janeshwar Prasad and others, Civil Appeal No.4884 of 1989 dated 5.12.1989.
Upon hearing parties counsel and perusal of record, I find that undisputedly over the property in suit name of father of plaintiff is recorded in revenue records. Plaintiff-respondent claims it to be ancestral property of Joint Hindu Family and claims 1/2 share since birth and 1/6th share by succession on death of his
father in the property in suit which is being adversely affected due to impugned sale deed allegedly obtained by defendants by exerting undue influence on father of plaintiff-respondent during his critical condition on account of serious illness, due to which he died on very next day of execution of impugned sale deed.
In the circumstances irrespective of claim of 1/2 share of plaintiffs in the property in suit by way of inheritance in suit he also claims share in the property on him by way of succession on death of his father. Even if plaintiff fails to prove 1/2 share in property in suit since birth, he would have got at least 1/3rd share by way of succession and has cause of action to maintain suit for cancellation. As per averments made in plaint mischief was committed by defendants in obtaining impugned sale deed from father of plaintiffs-respondents by playing fraud on him during his critical illness without payment of sale consideration and so the sale deed in question may not be considered to be void ab-initio rather is voidable and relief for cancellation of the same may be granted only by civil court and only civil court may have jurisdiction to adjudicate the matter of cancellation of sale deed on the grounds of practising of coercion, fraud, misrepresentation, undue influence etc. on vendor, as has been held by Full Bench of this Court in the case of Ram Padarath and Smt. Bismillah (supra).
The law relief by learned counsel for appellants in the cases of Kamla Prasad and Acche Lal (supra) the instrument was a void document which can be ignored and so, cases were held to be cognizable by revenue court. Since the facts of above cases are different from the case in hand, the above cases are not applicable here.
In view of discussions made above, I find that there is no illegally or incorrectness in the impugned order and is no sufficient ground for interfering with or setting it aside the impugned order. Appeal is devoid of merits and is liable to be dismissed.
The appeal is dismissed accordingly at the admission stage.
Order Date :- 16.5.2019 Kpy
2 issues framed by the court
Whether a civil court or revenue court has jurisdiction over a suit for cancellation of a sale deed in a case involving alleged undue influence and fraud by an heir.
Whether the claim of share by succession makes the plaintiff an appropriate party to maintain a suit for cancellation rather than a mere declaration of tenure rights.
Colour shows how this judgement treated each authority
Kamla Prasad and others Vs. Krishna Kant Pathak and othersDistinguished¶8
Kamla Prasad and others Vs. Krishna Kant Pathak and others, 2007 (102) RD 378
Acche Lal (deceased) through L.Rs. and others Vs. Krishna Gopal Agarwal and othersDistinguished¶8
Acche Lal (deceased) through L.Rs. and others Vs. Krishna Gopal Agarwal and others, 2017 (135) RD 783
Ram Padarath Vs. Second Addl. District Judge, SultanpurFollowed¶9
Ram Padarath Vs. Second Addl. District Judge, Sultanpur, 1989 R.D. 21
Smt. Bismillah Vs. Janeshwar Prasad and othersFollowed¶9
Smt. Bismillah Vs. Janeshwar Prasad and others, Civil Appeal No.4884 of 1989 dated 5.12.1989
2 provisions across 2 enactments
Anand Prakash
Smt. Munni Devi
Harsh Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
