Manoj K. Tiwari, J
1. Petitioners have challenged the order dated 12.02.2018 passed by learned Civil Judge (Senior Division), Rudrapur, Udham Singh Nagar in Civil Suit
No. 81 of 2014 and also the judgment & order dated 10.09.2018 passed by learned IIIrd Additional District Judge, Udham Singh Nagar in Civil
Revision No. 20 of 2018.
2. Smt. Prabhavati Devi (respondent no.1 herein) filed a Civil Suit seeking a declaration that the Will alleged to have been executed by her husband in
favour of defendant no. 1, 2 & 12 be declared as null and void. It was further prayed that the sale deed executed in favour of defendant no. 4 to 8 be
declared as null and void. Smt. Prabhavati Devi asserted in her plaint that the alleged Wills are forged and fabricated. It was further stated that the
sale-deeds were fraudulently obtained under the pretext of executing a thekanama and no sale consideration was paid for the land. The said suit was
registered as Civil Suit No. 81 of 2014 in the Court of Civil Judge (Senior Division, Rudrapur, Udham Singh Nagar.
3. Petitioners (defendant nos. 5 & 7 in the suit) raised the question of maintainability of the suit before a Civil Court in their Written Statement. Based
on the pleadings, learned trial Court framed 16 issues, out of which, issue nos. 9, 10, 11, 12, 13, 14 & 15 were preliminary issues regarding
maintainability of the suit. Learned trial Court decided the preliminary issues vide order dated 12.02.2018 in favour of the plaintiff (respondent no. 1
herein). Petitioners, thereafter, challenged the said order by filing Civil Revision No. 20 of 2018, which was dismissed by learned IIIrd Additional
District Judge, Udham Singh Nagar vide judgment & order dated 10.09.2018. Thus, feeling aggrieved, petitioners have approached this Court.
4. Learned Senior Counsel for the petitioners has confined his challenge only to the findings recorded on issue nos. 11 & 12. English translation of
issue nos. 11 & 12, as framed by learned trial Court, is reproduced below:
“11. Whether the suit of the plaintiff is barred by Section 49 of U.P. Consolidation of Holdings Act? If yes, then its effect.
12. Whether the suit of the plaintiff is barred by Section 331 of U.P. Zamindari Abolition and Land Reforms Act? If yes, then its effect.â€
5. Learned trial Court, after considering all relevant aspects decided issue no. 11 against defendants (petitioners herein) and held that the suit is not
barred by Section 49 of U.P. Consolidation of Holdings Act. Learned trial Court observed that although the suit property is agricultural land, however,
the parties have neither brought on record the notification issued under Section 4(2) of U.P. Consolidation of Holdings Act nor date of the notification
has been mentioned. Learned trial Court has further observed that there is no dispute between the parties regarding the fact that the consolidation
operations have come to a close. Learned revisional court has affirmed the view taken by learned trial court on issue No. 11.
6. Mr. Rajendra Dobhal, learned Senior Counsel appearing for the petitioners has not disputed the observation made by learned trial court that
consolidation proceedings have come to a close. Thus, the only logical inference would be that notification under Section 52 (1) of U.P. Consolidation
of Holdings Act was issued prior to filing of the suit.
7. Section 49 of U.P. Consolidation of Holdings Act, 1953 is reproduced below:-
“49. Bar to civil jurisdiction.-Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of
rights of tenure-holders in respect of land lying in an area, for which a notification has been issued under sub-section (2) of Section 4 or adjudication of
any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under this Act, shall be
done in accordance with the provisions of this Act and no civil or revenue court shall entertain any suit or proceeding with respect to rights in such
land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act. Provided that nothing in this
section shall preclude the Assistant Collector from initiating proceedings under Section 122-B of the Uttar Pradesh Zamindari Abolition and Land
Reforms Act, 1950 in respect of any land possession over which has been delivered or deemed to be delivered to a Gaon Sabha under or in
accordance with the provisions of this Act.â€
8. Hon’ble Supreme Court in the case of Amar Nath Vs Kewla Devi reported in (2014) 11 SCC 273 considered the question of exclusion of
jurisdiction of civil courts in revenue matters with reference to section 49 of U.P. Consolidation of Holdings Act and Section 331 of U.P.Z.A.&L.R.
Act and held as under:-
“17. The question whether the original suit of the appellant was barred under Section 49 of the U.P. Consolidation of Land Holdings Act and
Section 331 of the U.P. Zamindari Abolition and Land Reforms Act, we answer in the negative. The suit was not barred under the aforesaid
provisions as the U.P. Zamindari Abolition and Land Reforms Act has no jurisdiction to deal with the subject-matter. On the issue of Section 49 of the
U.P. Consolidation of Land Holdings Act, we hold that the present case is not barred under this section as it is a suit for possession of the suit
scheduled property based on title, which is not within the jurisdiction of the authorities under the aforesaid Act.
18. In Suba Singh v. Mahendra Singh6, it was observed by this Court that Section 49 does not bar jurisdiction of civil courts in matters of title to the
land stating that: (SCC p. 423, para 9)
“9. … The result is that the plea of bar of the civil courts’ jurisdiction to investigate and adjudicate upon the title to the land or the sonship of
the plaintiff has no substance.â€
Therefore, since the present case too involves a question of “sonship†of the plaintiff who is the appellant herein, there is no bar to the jurisdiction
of civil courts under Section 49 of the aforesaid Act, in deciding the question of the appellant’s right to the land he has inherited from his father.â€
9. This Court in its judgment dated 02.08.2019 rendered in WPMS No. 93 of 2019 after following the law laid by Hon’ble Apex Court in the Case
of Gorakh Nath Dube v. Hari Narain Singh and others, reported in (1973) 2 SCC 53,5 and Full Bench judgment of Allahabad High Court in the case
of Ram Nath v. Smt. Munna reported in 1976 R.D. 220 has held that a suit for cancellation of a voidable sale deed relating to agricultural land pending
in a Civil Court will not abate under Section 5(2) of the U.P. Consolidation of Holdings Act. Section 5(2) of the Act provides that, upon publication of
notification under Section 4, every suit and proceeding in respect of declaration of rights or interest in any land lying in the area, or for declaration or
adjudication of any other right in regard to which proceedings can or ought to be taken under the Act, shall on an order being passed in that behalf by
the Court shall stand abated.
10. Sections 5 and 49 of the U.P. Consolidation of Holdings Act are complementary to each other. Section 5 freezes pending litigation and Section 49
forbids institution of fresh cases in respect of rights decided by Consolidation Authorities.
11. This Court finds no infirmity in the view taken by learned Courts below on Issue No. 11.
12. Another question regarding maintainability of civil suit with reference to Section 331 of U.P.Z.A. & L.R. Act was decided as issue No. 12 by
learned trial court. Learned trial court, after considering the law on the point, came to the conclusion that, in view of the nature of the relief sought, the
suit is maintainable before Civil Court. Learned revisional court affirmed the view taken by the trial court. The view taken by both the learned courts
below is in consonance with the law laid down by the Apex Court in Amar Nath Vs Kewla Devi (supra)
13. Hon’ble Supreme Court in the case of Bismillah v. Janeshwar Prasad reported in (1990) 1 SCC 207 while considering import of Section 331 of
U.P.Z.A. & L.R. Act has drawn a distinction between the suits cognizable by the Civil Court and the cases where Revenue Court has exclusive
jurisdiction. It was also held that statutory provisions ousting the jurisdiction of Civil Court needs to be strictly construed. Paras 7 to 12 of the said
judgment are extracted below:-
“7. It is settled law that the exclusion of the jurisdiction of the civil court is not to be readily inferred, but that such exclusion must either be
explicitly expressed or clearly implied. The provisions of a law which seek to oust the jurisdiction of civil court need to be strictly construed. Section
331 of the Act has been the subject of series of pronouncements of the High Court as to the circumstances and the nature of the suits in which its
exclusionary effect operates. Distinction was sought to be drawn between the class of cases where the binding effect of a deed had had to be got rid
of by an appropriate adjudication on the one hand and the class of cases in which a transaction could be said to be void in law where what the law
holds to be void, there is nothing to cancel or set aside on the other. In the former case, it was held, a suit was cognisable by the civil court while in the
latter, it was not, it being open to the statutory authority to take note of the legal incidents of what was non est.
8. In the instant case, the High Court has construed, in our opinion not quite correctly, appellant’s pleadings to amount to a plea of nullity of the
sales and has held that the prayer for cancellation of the sale deeds was ‘simply illusory’ and that such a relief was neither necessary nor
appropriate in the context of a plea of nullity. The High Court has further held that the relief of possession, though appearing to be a consequential
relief, was really the main relief and would fall within the statutory jurisdiction.
9. It is true that the question of jurisdiction depends upon the allegations in the plaint and not the merits or the result of the suit. However, in order to
determine the precise nature of the action, the pleadings should be taken as a whole. If as, indeed, is done by the High Court the expression
‘void’ occurring in the plaint as descriptive of the legal status of the sales is made the constant and determinate and what is implicit in the need
for cancellation as the variable and as inappropriate to a plea of nullity, equally, converse could be the position. The real point is not the stray or loose
expressions which abound in inartistically drafted plaints, but the real substance of the case gathered by construing pleadings as a whole. It is said
“Parties do not have the farsight of prophets and their lawyers the draftsmanship of a Chalmersâ€.
10. Indeed in Gorakh Nath Dube v. Hari Narain Singh this Court, dealing with the provisions of the U.P. Consolidation of the Holdings Act, 1954
where the provision excluding the civil court’s jurisdiction is even wider, has had occasion to observe:
‘....but, where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it could be urged that the
consolidation authorities have no power to cancel the deed, and, therefore, it must be held to be binding on them so long as it is not cancelled by a
court having the power to cancel it....†(emphasis supplied)
11. The assumption underlying the reasoning of the High Court is that if the action had really been one based on the need for the cancellation of the
deeds, without which possession could not be granted, the civil court would have had jurisdiction. The cause of action in the appellant’s suit does
admit of being brought within this class of cases.
12. The common law defence of non est factum to actions on specialities in its origin was available where an illiterate person, to whom the contents of
a deed had been wrongly read, executed it under a mistake as to its nature and contents, he could say that it was not his deed at all. In its modern
application, the doctrine has been extended to cases other than those of illiteracy and to other contracts in writing. In most of the cases in which this
defence was pleaded the mistake was induced by fraud; but that was not, perhaps, a necessary factor, as the transaction is “invalid not merely on
the ground of fraud, where fraud exists, but on the ground that the mind of the signor did not accompany the signature; in other words, that he never
intended to sign, and therefore, in contemplation of law never did sign, the contract to which his name is appendedâ€.
14. Hon’ble Supreme Court in the case of Shri Ram v. Ist ADJ reported in (2001) 3 SCC 24 has held as under:-
“7. On analysis of the decisions cited above, we are of the opinion that where a recorded tenure-holder having a prima facie title and in possession
files suit in the civil court for cancellation of sale deed having been obtained on the ground of fraud or impersonation cannot be directed to file a suit
for declaration in the Revenue Court, the reason being that in such a case, prima facie, the title of the recorded tenure- holder is not under cloud. He
does not require declaration of his title to the land. The position would be different where a person not being a recorded tenure-holder seeks
cancellation of sale deed by filing a suit in the civil court on the ground of fraud or impersonation. There necessarily the plaintiff is required to seek a
declaration of his title and, therefore, he may be directed to approach the Revenue Court, as the sale deed being void has to be ignored for giving him
relief for declaration and possession.â€
15. Hon’ble Supreme Court in the case of Horil v. Keshav reported in (2012) 5 SCC 525 while considering the bar of jurisdiction of Civil Court
under Section 331 of U.P.Z.A. & L.R. Act has held as under:
[
“13. Section 331 of the Act bars the jurisdiction of the civil court and provides that a suit under the Act can be entertained by no court other than
that the courts specified in Schedule II to the Act. A reference to Schedule II would show that the court of original jurisdiction for a suit under Section
176 of the Act for division of a holding of a bhumidhar is the Assistant Collector, First Class and the courts of first appeal and second appeal are the
Commissioner and the Board of Revenue respectively. Section 341 of the Act, of course, provides that unless otherwise expressly provided by or
under the Act, the provisions of the Court Fees Act, 1870; the Code of Civil Procedure, 1908 and the Limitation Act, 1963, including Section 5 thereof
would apply to the proceedings under the Act.
14. Though the provisions of the Code of Civil Procedure have been made applicable to the proceedings under the Act but that would not make the
authorities specified under Schedule II to the Act as “court†under the Code and those authorities shall continue to be “courts†of limited and
restricted jurisdiction.
15. We are of the view that the Revenue Courts are neither equipped nor competent to effectively adjudicate on allegations of fraud that have
overtones of criminality and the courts really skilled and experienced to try such issues are the courts constituted under the Code of Civil Procedure.
16. It is also well settled that under Section 9 of the Civil Procedure Code, the civil court has inherent jurisdiction to try all types of civil disputes unless
its jurisdiction is barred expressly or by necessary implication, by any statutory provision and conferred on any other tribunal or authority. We find
nothing in Order 23 Rule 3-A to bar the institution of a suit before the civil court even in regard to decrees or orders passed in suits and/or proceedings
under different statutes before a court, tribunal or authority of limited and restricted jurisdiction.
16. Similar view has been taken by Hon’ble Supreme Court in the case of Kamla Prashad and others vs. Kishna Kant Pathak and others reported
in (2007) 4 SCC 213. Para 14 of the said judgment is extracted below:-
“14. In this connection, the learned counsel for the appellant rightly relied upon a decision of this Court in Shri Ram vs. 1st ADJ. In Shri Ram, A,
the original owner of the land sold it to B by a registered sale deed and also delivered possession and the name of the purchaser was entered into
Revenue Records after mutation. According to the plaintiff, sale deed was forged and was liable to be cancelled. In the light of the above fact, this
Court held that it was only a Civil Court which could entertain, try and decide such suit. The Court, after considering relevant case law on the point,
held that where a recorded tenure holder having a title and in possession of property files a suit in Civil Court for cancellation of sale deed obtained by
fraud or impersonation could not be directed to institute such suit for declaration in Revenue Court, the reason being that in such a case, prima facie,
the title of the recorded tenure holder is not under cloud. He does not require declaration of his title to the land.â€
9. Admittedly, the plaintiff (respondent no.1 herein) is a recorded tenure-holder in respect of the land in question, therefore, in view of the law laid
down by Hon’ble Supreme Court, bar of Section 331 of U.P. Zamindari Abolition and Land Reforms Act, 1950, will not be attracted to the suit
and the suit is therefore maintainable before a civil court.â€
17. This Court vide judgment dated 29.05.2018 rendered in Civil Revision No. 31 of 2012 (Sri Khimanand Sanwal Vs Smt. Doris Parveen Singh &
others) has held that it is now well settled that the bar of Section 331 of Zamindari Abolition and Land Reforms Act, 1950, against jurisdiction of Civil
Court is not applicable in case of a recorded tenure holder having prima-facie title in his favour seeking cancellation of a sale-deed.
18. Having regard to the relief sought in the plaint, learned Courts below have rightly come to the conclusion that the suit is maintainable before a Civil
Court. Thus, there is no scope of interference in the matter.
19. Accordingly, writ petition fails and is hereby dismissed. No order as to costs.
