Dismissed

Smt. Pramila Devi and 3 Ors. v. Ghura Yadav Deceased and 5 Ors.

Allahabad HC17 Apr 2019FAFO/435/2016

Case brief

AI extract

What is this about?

First appeal against an order setting aside a trial court judgment on jurisdiction. The court held that a sale deed obtained by fraud is voidable, not void ab-initio, requiring Civil Court adjudication. Section 331 does not bar Civil Court jurisdiction. Appeal dismissed.

What did the court decide?

The first appeal from the order of remand was dismissed with no interference.

Smt. Pramila Devi and 3 Ors. Vs Ghura Yadav Deceased… — Property and Title | Allahabad HC (2019)

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Court No. - 30 Case :- FIRST APPEAL FROM ORDER No. - 435 of 2016 Appellant :- Smt. Pramila Devi And 3 Ors. Respondent :- Ghura Yadav Deceased And 5 Ors. Counsel for Appellant :- Mahesh Kumar,Santosh Kumar Srivastava Counsel for Respondent :- Atul Kumar Srivastava

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Hon'ble Harsh Kumar,J.

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Rejoinder affidavit filed by learned counsel for appellants today in the Court, is taken on record.

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Heard Sri Santosh Kumar Srivastava, learned counsel for appellants, Sri Atul Kumar Srivastava, learned counsel for respondents and perused the record.

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The present first appeal from order has been filed by defendants-respondents against impugned judgment and order of remand dated 7.10.2015 by which Additional District Judge, Ghazipur in Civil Appeal No.64 of 2011, Smt. Ramrati Devi and others Vs. Smt. Pramila Devi and others, setting aside the judgment and decree dated 21.9.2011 passed in Civil Suit No.258 of 2004, Ghura Vs. Smt. Pramila Devi and others set aside findings given by trial court on the point of jurisdiction under issue no.7 and remanded the matter to trial court for disposal of suit in accordance with law. Feeling aggrieved, defendants in civil suit and respondents in civil appeal have preferred this first appeal from order.

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Learned counsel for defendants-appellants submits that learned appellate court has acted wrongly in setting aside judgment and decree dated 21.9.2011 passed by Trial Court; that trial court on its findings on issue no.7 had held that since the name of defendants has been entered in revenue records, so the suit is not maintainable before civil courts and being barred by provisions of Section 331 of U.P.Z.A. & L.R. Act, 1950, the suit is liable to be dismissed; that after execution of sale deed dated 25.3.2004 by Ghura, mutation was made in favour of defendants vendees vide order dated 5.5.2004 of A.C.O. and on date of institution of suit for cancellation of sale deed dated 10.5.2004, name of plaintiff-respondent was not there in revenue records, so the suit is not maintainable before Civil Courts; that as per averments made in plaint of Civil Suit No.258 of 2004, sale deed is not alleged to have been obtained by impersonation, rather case of plaintiff is that he was taken to office of Sub-Registrar on the pretext of executing Will deed in favour of his two daughters and heirs of his pre-deceased 3rd daughter, but instead of Will deed, a sale deed was got executed for alleged consideration of Rs.4,00,000/- which was never paid to him by playing fraud on him by defendants; that real fact is that plaintiff Ghura Yadav had borrowed a sum of Rs.4,00,000/-

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from defendants-appellants from time-to-time and in lieu of that arrears of borrowed money taking it to be sale consideration, he executed sale deed of his land in favour of defendantsappellants, who are daughters-in-law of his pre-deceased daughter Parvati; that impugned order is wrong on facts and law and is liable to be set aside and order dated 21.9.2011 passed by Additional Civil Judge (Junior Division), Court No.3, Ghazipur is liable to be restored.

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Per contra, learned counsel for plaintiff-respondents supported the impugned order and contended that ex-parte order obtained by defendant-appellants on 5.5.2004 from A.C.O., was challenged by plaintiff Ghura by way of appeal under section 11 (1) of U.P. Consolidation of Holdings Act, which was allowed and upon remand, the Consolidation Officer again passed order dated 26.8.2006 for mutation in the name of defendants and again ex-parte order was obtained by defendants on 8.2.2010; that on restoration application moved by plaintiff-respondents, the same was allowed and case was restored to its original number and is pending for disposal before Consolidation Officer; that the sale deed in question is voidable document and may not be ignored by Revenue Courts unless cancelled by a decree by Civil Courts; that the allegations of lending a sum of Rs.4,00,000/- to Ghura, deceased are absolutely false and incorrect, as neither plaintiff Ghura borrowed any money from heirs of his pre-deceased daughter Parvati nor defendantsappellants have capacity of making payment of Rs.4,00,000/- to plaintiff Ghura or lending above amount to him and the alleged sale deed, which has been obtained by fraud, is without consideration; that evidence with regard to fraud can only be led before Civil Courts and the impugned sale deed can be adjudicated void only by Civil Court only; that provisions of section 331 of U.P. Z.A. & L.R. Act are not applicable to the facts of the case and revenue courts have no jurisdiction to try the suit involving cancellation of sale deed.

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It is settled principle of law that mutation in the name of a person in revenue records does not confer any title. Undisputedly in this case, the matter of mutation is pending for disposal before Consolidation Courts. As per averments made in Civil Suit No.258 of 2004 filed just after a period of one and half month from the date of execution of alleged sale deed, Ghura, the plaintiff was undisputed owner and bhumidhar in possession over the land in question. It is the case of plaintiff Ghura aged about 85 years that he had no male child and had only three daughters viz. Smt. Ramrati, Smt. Ramavati and Smt. Parvati, out of which Parvati died in his life time leaving behind her two sons Swami Nath and Rami Nath, defendantsappellants No.3 & 4, who were married with Smt. Pramila Devi

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and Smt. Sushila Devi, defendants-appellants No.1 & 2, respectively. It is also alleged in plaint that the plaintiff was taken to office of Sub-Registrar for getting executed Will in his critically old age, as he wanted to execute a Will deed of his entire property in favour of his daughters Smt. Ramrati, Smt. Ramavati and sons of his pre-deceased daughter Parvati, defendants-appellants No.3 & 4, but instead of execution of Will deed, defendants-appellants No.3 & 4 by playing fraud on him got executed impugned sale deed in favour of their wives defendants-appellants No.1 and 2 for a consideration of Rs.4,00,000/-, which was never paid to him.

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It is also settled principle of law that when a sale deed is said to be void-ab-initio, it can be ignored by revenue courts for the purpose of declaring rights, but when the sale deed is voidable, adjudication regarding the same is required, which can be done only by Civil Courts. When a sale deed is void, there is no need for getting it declared void and it does not transfer title to vendee and can be ignored by any court of law, but when a sale deed has been obtained by practising fraud etc., the same is voidable and cannot be ignored by revenue courts unless, adjudged void by Competent Court of law. Adjudication of such issues as to (i) whether sale deed was obtained by playing fraud (ii) whether plaintiff ever borrowed a sum of Rs.4,00,000/from vendees or (iii) whether sale deed was obtained pretending it to be Will without payment of sale consideration, may be done only by Civil Courts on the basis of evidence to be produced before it.

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Upon hearing parties counsel and perusal of record as well as in view of the facts of this case, sale deed is not void, but voidable and provisions of section 331 of U.P. Z.A. & L.R. Act, 1950 do not bar jurisdiction of Civil Court. The impugned order passed by Additional District Judge, Ghazipur does not suffer from any manifest error of facts or law and learned counsel for appellants has failed to show any illegality, irregularity or perversity in the impugned order. The findings given by Trial Court on issue no.7 have been rightly set aside by the Appellate Court and there is no sufficient ground for interfering with or setting aside the impugned order or for restoring the order passed by trial court. The appeal has no force and is liable to be dismissed.

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The appeal is dismissed , accordingly.

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Let a copy of this order be sent to courts below for necessary action and expeditious disposal of critically old civil suit in accordance with law.

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Order Date :- 17.4.2019/Tamang

Smt. Pramila Devi and 3 Ors. v. Ghura Yadav Deceased and 5 Ors.

Case brief

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Smt. Pramila Devi and 3 Ors. v. Ghura Yadav Deceased and 5 Ors.

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