Allowed

Laxman Singh v. Bhagwati Singh

Allahabad HC2 Jul 2019SAPL/2/1983

Case brief

AI extract

What is this about?

Second appeal regarding maintainability of a suit to cancel a Will. Court held Civil Court lacked jurisdiction as the suit involved declaration of tenure-holder status, a matter for Revenue Court under Section 331 of U.P. Zamindari Abolition Act. Original suit dismissed.

What did the court decide?

Impugned judgments of Munsif and Additional District Judge set aside; Original Suit No. 213 of 1972 dismissed as not maintainable.

Laxman Singh Vs Bhagwati Singh — Succession and Inheritance | Allahabad HC (2019)

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AFR

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Reserved on 27.02.2019 Delivered on 02.07.2019

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Court No. - 34

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Case :- SECOND APPEAL No. - 2 of 1983

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Appellant :- Laxman Singh (since deceased and substituted by legal heir) Respondent :- Bhagwati Singh (since deceased and substituted by legal heirs) Counsel for Appellant :- Ramesh Singh, Kunal Ravi Singh Counsel for Respondent:- G.M. Tripathi, C.M. Shukla, Indra Raj Singh, Prabhakar Dubey

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Hon'ble Sudhir Agarwal, J.

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Heard Sri Kunal Ravi Singh, Advocate, for appellant. None appeared on behalf of respondents despite the case having been called in revise. Hence, I proceed to hear and decide this case finally after hearing learned counsel for appellant.

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This is defendant's appeal filed under Section 100 Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) arising from judgment and decree dated 12.05.1978 passed by Sri S.C. Bose, Munsif, Basti in Original Suit No. 213 of 1972 decreeing the suit which has been confirmed by judgment and decree dated 19.10.1982 passed by Sri H.C. Lal, 1^st Additional District Judge, Basti in Civil Appeal No. 177 of 1978 by dismissing the same.

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Initially, this appeal was admitted on following four substantial questions of law:

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(a) Whether Civil Court had jurisdiction to try the suit ?

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(b) Whether suit was maintainable in the absence of State of U.P. and Gaon Sabha as defendants?

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(c) Whether in view of the allegation in the plaint that 'Will' was void, suit was cognizable by Revenue Court alone ?

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(d) Whether Smt. Dhrupraji became absolute owner of

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bhumidhari rights under Section 14 of Hindu Succession Act?

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(emphasis added)

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Subsequently, vide order dated 22.05.2018 one more substantial question of law was formulated as under:

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(e) Whether in view of the fact that Dhrupraji inherited property from Matwar Singh in 1945, prior to enforcement of U.P.Z.A. & L.R. Act, the claim on the basis of succession can be entertained in view of the Section 174 of U.P.Z.A.&L.R. Act?

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Facts in brief giving rise to this appeal are that Bhagwati (now deceased and substituted by legal heirs) instituted Original Suit No. 213 of 1972 in the Court of Munsif, Basti against sole defendantappellant Lakshman (now deceased and substituted by legal heirs), son of Shohrat Singh, praying for cancellation of 'Will' dated 20.06.1948 and delivery of possession of disputed property to plaintiff.

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Plaint Case set up vide plaint dated 19.07.1972 is that Bhagwati is real brother of Matwar Singh (deceased) and both are sons of Bal Karan. Bal Karan had other sons also namely Tahsildar, Shohrat and Vikrmaditya alias Uma Shanker. Dhrupraji is wife of Matwar Singh and one Hanuman is son of Tahsildar. Defendant Lakshman was son of Shohrat and Indira is wife of Vikrmaditya. That is how defendant Lakshman became real nephew of plaintiff Bhagwati. For better understanding I may provide family tree as under:

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Bal Karan

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I_ I I I I I Bhagwati Matwar Singh Tahsildar Shohrat Vikrmaditya (Plaintiff) (Dhrupraji-wife) I I alias Uma Shankar Hanuman Lakshman (Indira-wife) ( Defendant )

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Matwar Singh was Sirdar and Khudkasht holder of property stated in List-A at the bottom of plaint and tenant in the plots stated in List-B, and, in possession thereof. He died issueless in 1945 AD. Consequently, Dhrupraji, wife of Matwar Singh, entered into

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possession of aforesaid property. After enforcement of U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act No. 1 of 1951) (hereinafter referred to as “Act, 1951”), on the date of vesting, i.e., 01.07.1952 she became Bhumidhar of plots mentioned in List-A and Sirdar of plots mentioned in List-B. Dhrupraji died in 1970 AD. Other sons of Bal Karan, having predeceased Matwar Singh, on the death of Dhrupraji, plaintiff became sole heir of entire property and applied for mutation in respect of plots of Lists-A and B. Defendant contested Mutation application on the basis of a 'Will' alleging that Matwar Singh executed the same. Revenue Court while deciding mutation application, relied on 'Will', and though ordered for mutation of plaintiff's name over plots mentioned in List-B as Sirdar, but rejected his claim with respect to Bhumidhar of plots mentioned in List-A. In the circumstances, plaintiff challenged 'Will' dated 20.06.1948 on the ground that it is forged and fictitious and liable to be cancelled and possession over the plots in dispute be handed over to him.

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Defendant contested the suit stating that 'Will' was actually executed in his favour. He further pleaded that Matwar Singh had 1/5 share in the property of Bal Karan. He had separated from other brothers during his lifetime. He was in possession of disputed property during lifetime and executed 'Will' dated 20.06.1948 in favour of defendant in lieu of services rendered by defendant to Matwar Singh. 'Will' was executed by Matwar Singh and contained his signature. It was kept in the custody of Smt. Dhrupraji. Subsequently, 'Will' was handed over by Smt. Dhrupraji to defendant's wife. Plaintiff has no right to get the 'Will' cancelled and suit was barred by Section 331 of Act, 1951.

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An additional written statement was also filed claiming that Smt. Dhruprati had only a Life Estate in the property as stated in the 'Will'.

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Trial Court formulated following four issues:

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(1) Whether the will deed Dated 20-6-48 is liable to be cancelled as alleged, if so, its effect?

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(2) To what relief, if any, is the plaintiff is entitled?

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(3) Whether the defence is barred by Section 49 CH Act?

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(4) Whether the Court has no jurisdiction to try the suit?

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Trial Court held that suit is not barred by Section 49 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as “Act, 1953”) and, therefore, issue-3 was answered in favour of plaintiff. Thereafter, issue-1 was considered and it held that 'Will' is dated 20.06.1948 while Matwar Singh died on 20.10.1945 hence claim of defendant that 'Will' was executed on 20.06.1948 is not correct and it is forged and fictitious. Consequently it answered Issue-1 in favour of plaintiff. It answered Issue-4 also in favour of plaintiff and consequently suit was decreed by issuing a declaration of cancellation of 'Will' dated 20.06.1948 and defendant was directed to hand over possession of disputed property mentioned in List-A to plaintiff.

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Aggrieved by the aforesaid judgment and decree, defendant Lakshman preferred Civil Appeal No. 177 of 1978. Lower Appellate Court (hereinafter referred to as “LAC”) formulated three points for determination, as under:

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(1) Whether the will in dispute is genuine and really executed by Matwar Singh? This point includes the consideration of the fact whether the will has been executed on 20.6.48 or 20.6.42?

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(2) Whether the suit is not cognizable by Civil Court?

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(3) Whether the plaintiff has right of suit? (emphasis added)

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Concurring with the findings of Trial Court, LAC answered issue-1 in favour of plaintiff and against defendant-appellant holding that 'Will' was not genuine. It also held that suit is not barred and consequently Issue-2 was also answered in favour of plaintiff holding that Civil Court had competence to entertain the suit and decide the same. Thereafter it answered Issue-3 again in favour of plaintiff-

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respondent and against defendant-appellant. As a result thereof, appeal was dismissed vide judgment and decree dated 19.10.1982.

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Sri Kunal Ravi Singh, learned counsel for appellant, commencing his argument stated that Village in question, i.e., Village Vangarh undergone consolidation operations on 16.02.1991. Thereupon defendant-appellant filed an application under Section 5(2) of Act, 1953 on 16.02.1994 stating that proceedings of Suit have abated. The said application was registered as Application No. 719 of 1994 but dismissed vide order dated 16.11.1994.

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The first aspect which has to be examined in this appeal is “whether plaintiff's suit in question was barred by Section 331 of Act, 1951.” This will cover the substantial questions of law-(a) and (c) both.

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The contention of learned counsel for appellant is that 'Will' was relied and accepted by Revenue Court in mutation proceedings and pursuant thereto application was partly allowed and mutation was made. The suit in question basically challenges Revenue entry which is in respect to possession of the property for which mutation was allowed and, therefore, it is barred by Section 331 of Act, 1951.

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From the facts discussed above, it is evident that property in dispute i.e. List-A, was in possession of defendant throughout since plaintiff sought relief of directing defendant to hand over possession of property mentioned in the Plaint to plaintiff. It is not the case of plaintiff that after death of Dhrupraji in 1970, plaintiff got possession over entire property including that mentioned in Plaint or that even at the time of death Dhrupraji was in possession of the said property. The issue, therefore, who was in cultivatory possession on the date of vesting and what status stood conferred upon such person vis-a-vis Dhrupraji was an issue which could have been decided by Revenue Court.

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Revenue Authorities on the mutation application, though

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apparently it is said that relied on 'Will' dated 20.06.1948 in non suiting the plaintiff for mutation of his name in respect to properties mentioned in List-A, but the facts as pleaded including that plaintiff had sought a relief of handing over possession to plaintiff by defendant, show that at no point of time plaintiff was in possession of property in dispute. The status of Dhrupraji on the date of vesting visa-vis defendant, therefore, was the basic issue since only thereafter plaintiff could have claimed any right after death of Dhrupraji on the ground that there is no other legal heir to succeed property of Dhrupraji.

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In the present case, cancellation of 'Will' though appears apparently the main relief, but real relief is, possession of disputed property to be transferred from defendant to plaintiff. 20. Construing Section 331 of Act, 1951, a Full Bench of this Court in Ram Padarath and others Vs. Second Additional District Judge and others 1989 AWC 290 (All) observed that it is the real 'cause of action' which determines jurisdiction of Court to entertain particular action notwithstanding the language used in plaint or relief claimed. The strength on which Plaintiff comes to Court does not depend upon the defence or relief claimed which could determine the Forum for the entertainment of claim and grant of relief. It is the pith and substance which is to be seen and not the language used which may have been so used to oust jurisdiction of a particular Court.

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Expression 'any relief' used in Section 331 of Act, 1951 is of too wide import. It not only means the relief claimed but would also include any relief arising out of the cause of action which led the Plaintiff to invoke jurisdiction of a Court of law. The word 'relief' is not part of cause of action nor the same is related to the defence set up in the case. The relief is a remedy which a Court grants from the facts asserted and proved in an action. The 'relief' in other words means 'remedy' which a Court of justice may afford in regard to such actual

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or apprehended wrong or injury. Such remedy being large or small, as the case may be, but it is not synonymous with 'cause of action'.

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Full Bench further observed that Section 331 of Act, 1951 has enlarged scope in regard to jurisdiction of Revenue Court. The provision is not confined to specified reliefs claimed which are mentioned in Schedule-II to Act, 1951, but Explanation to it has enlarged its scope further by using the word 'any relief'. It is the cause of action alone which determines the Forum and keeps the jurisdiction of Revenue Court intact in matters referred to in respect of suit, application or proceeding mentioned in Schedule-II to Act, 1951 to the exclusion of Civil Court. The jurisdiction of Civil Court is not concurrent with that of Revenue Court by means of such suit, application or proceeding. The reliefs of the nature mentioned in Schedule-II can be obtained from Revenue Court which will take cognizance of such suit, application or proceeding notwithstanding the fact that relief provided in a different language can also be granted by the Civil Court.

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A Revenue Court may grant a relief in present, but so far as relief for future is concerned Revenue Court may not be in a position to grant such a-relief as the same may travel beyond the relief which could be granted by it mentioned in Schedule-II to Act, 1951.

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It is the alleged injury or apprehended injury or cloud on the right and title of a person by some action on the part of any other person, or interference or attempt to interfere or encroach upon the right and title of a person over a particular property by any positive or negative act or declaration etc., which give a Suitor, cause of action, to approach a Court of law for relief or reliefs against the same. The dispute as to jurisdiction arises when more than one reliefs are claimed in an action on the same cause of action one of which can be granted by a Civil Court. If the principal or real relief can be granted by Revenue Court, then ancillary relief or the relief which flows out

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from principal relief can also be granted by Revenue Court notwithstanding the fact that all the reliefs can be granted by Civil Court. If things are in reverse direction, then all the reliefs can be granted by Civil Court, but if so-called main relief is redundant or mere surplusage then it is the real relief involved in the matter which may or may not have been claimed as ancillary relief will determine the jurisdiction of Court which is to entertain a particular action. Even if a plaint or application is couched in such a language so as to oust jurisdiction of a particular Court, then it is the cause of action and relief flowing out of such cause of action which would determine the Forum for entertaining the said action and not the so-called relief claimed.

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In order to determine, therefore, as to what matter can be entertained only by Revenue Court, it is said that if more than one reliefs are claimed by a particular person, no relief can be granted to that person unless declaration of his tenancy right is made and in that situation suit will be cognizable by Revenue Court as declaration can be granted by Revenue Court. Similarly if a person claims relief of injunction and in the alternative for possession if he is found to be out of possession and his name is not on the record then without declaration that in fact he is the tenant or he is in possession of the tenancy rights no further relief can be granted and the suit is cognizable by Revenue Court. That is what has been held very categorically by Full Bench in para 18 of judgment in Ram Padarath and others Vs. Second Additional District Judge and others (supra ). It is further said that in case, suit is for injunction and/or possession, if he is out of possession, then suit will be cognizable by Revenue Court notwithstanding the fact that relief for injunction is to be granted by Civil Court. Full Bench further said:

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“The Civil Court would have no jurisdiction as the case first involved declaration of right as tenure-holder which could be

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granted by the revenue court only and thereafter relief could have been granted only if he was held to be tenure-holder by succession.” (emphasis added)

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In order to determine the Forum, when validity of a document is challenged, Court in para-19 said as under:

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“19. The forum for action in relation to void documents or instruments regarding agricultural land depends on the real cause of action with reference to the facts averred . Void documents necessarily do not require cancellation like voidable documents. A simple suit for cancellation of a document or instrument if the same casts cloud on one's right and title or is likely to cast cloud over it or affects the same adversely in respect of agricultural property, that is, 'land' poses no difficulty provided further it does not necessitate any declaration as to the claimant's right and title over the land i.e. tenancy rights under the existing law. The difficulty arises when more than one reliefs are involved or claimed. It may be that one may get effective relief in presenting without cancellation of the document, but if a document remains uncancelled for several years its existence may give rise to new trouble and litigation. The decree of a court in which a document is declared to be void and is avoided is obviously a decree in personam and the same undoubtedly binds a party but it will not be binding to each and every person as no note of such a decree can be made in the Sub-Registrar's register as provided in Section 31 of the Specific Relief Act. Such a document may mislead many and may give rise to various transactions and litigations.”

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Full Bench also held that while interpreting provisions of Act, 1951, no help can be taken from the provisions of Act, 1953 for the reason that jurisdiction of consolidation authorities or Courts is wider

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than that of Civil or Revenue Court and adjudication by them is final and cannot be responded by any Civil or Revenue Court in view of bar for the same contained in Section 49 of Act, 1953 which even bars the case which should have been raised before consolidation authorities, but not raised. In the operative part of the judgment, Court ultimately laid down the following law:

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“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 (his relief permissible under law except when a declaration of right or status of a tenure-holder is necessarily needed in which event relief for cancellation will be surplusage 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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In the present case status of Tenure Holder was necessarily involved. Therefore, in my view, in respect to property in dispute which admittedly was in possession of defendant, remedy was available only in Revenue Court and not in Civil Court, more so, when plaintiff himself pleaded that 'Will' is void. Therefore, I answer substantial questions of law-(a) and (c) holding that suit was not maintainable before Civil Court and therefore both substantial questions of law are answered in favour of appellant.

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Now coming to substantial question of law-(b), counsel for appellant could not show as to why State of U.P. or Gaon Sabha was necessary party so as to render suit, not maintainable. Hence, I answer substantial question of law-(b) against appellant.

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Now coming to substantial question of law-(d), I find that plaint case set up by plaintiff was that Bal Karan had five sons including

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Matwar Singh and after death of Matwar Singh in 1945, his holding was succeeded by his wife Dhrupraji, while defendant contended that Matwar Singh had already separated during his life time and thereafter executed a 'Will' in favour of defendant. It is admitted case of plaintiff that property in dispute was in possession of defendant and that is why relief of delivery of possession by defendant to plaintiff was sought. In these circumstances, it was necessary for Courts below to formulate an issue, “whether Dhrupraji's heir got any right over property in dispute since application of Section 14 of Hind Succession Act, 1956 (hereinafter referred to as “Act, 1956”) could have arisen only thereafter”, but both the Courts below have ignored this aspect and neither any issue has been framed on this aspect nor any finding has been recorded. However, since I have already answered substantial questions of law-(a) and (c) holding that Civil Court had no jurisdiction in the matter, I do not find that it is necessary to answer substantial question of law-(d) in this appeal since judgments in appeal have to be set aside on the ground of lack of jurisdiction and whenever any adjudication is initiated in a competent Court of jurisdiction, it will always be open to such Court to examine all relevant aspects therein. Therefore, I refrain from answering substantial question of law-(d) either way.

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In the result, appeal is allowed. Impugned judgments dated 12.05.1978 passed by Munsif, Basti and dated 19.10.1982 passed by 1^st Additional District Judge, Basti are set aside. Original Suit No. 213 of 1972 is dismissed as not maintainable.

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Dt. 02.07.2019 PS

Laxman Singh v. Bhagwati Singh

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Laxman Singh v. Bhagwati Singh

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