# Bansh Raj & Ors v. Moti & Ors

- **Citation:** (2019) 2 ILRA 758
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-30
- **Case number:** Second Appeal No. 545 of 1992
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bansh-raj-ors-v-moti-ors-44740
- **Pages:** 27

## Headnote

Reform Act, 1950 - Section 331 - Where
a suit is held barred by the provisions of
Section 331 of the UP ZA & LR Act at any
stage of the proceedings, be it in appeal
or revision - the suit cannot be dismissed
but has to be dealt with by an order
directing return of the plaint to be
presented to the proper Court.
Appeal partly allowed (E-5)
List of cases cited: -

## Text

_Characters 0–39,804 of 92,909. This is a partial read: ask again with offset=39804 for what follows._

758 INDIAN LAW REPORTS ALLAHABAD SERIES
refund to the plaintiff the earnest money
of Rs. 1800/-, together with interest @
14% per annum past and pendentelite; and
future interest @ 6% per annum. Parties
shall bear their own cost throughout.

67. Let a decree be drawn up,
accordingly.
----------

(2019)10ILR A 758

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.07.2019

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 545 of 1992

Bansh Raj & Ors. ...Appellants
Versus
Moti & Ors. ...Respondents

Counsel for the Appellants:
Sri V.K. Singh, Sri M.N. Singh

Counsel for the Respondents:
Sri V. Singh, Sri M.K. Singh, Sri Manoj
Kumar Singh, Sri Namwar Singh, Sri
Sanjiv Singh

A. U.P. Zamindari Abolition and Land
Reform Act, 1950 - Section 331 - Where
a suit is held barred by the provisions of
Section 331 of the UP ZA & LR Act at any
stage of the proceedings, be it in appeal
or revision - the suit cannot be dismissed
but has to be dealt with by an order
directing return of the plaint to be
presented to the proper Court.
Appeal partly allowed (E-5)
List of cases cited: -
1. Ram Padarath & ors. Vs Second Addl.
District Judge & ors. 1989 AWC 290 All
2. Smt. Bismillah VS Janeshwar Prasad & ors.
(1990) 1 SCC 207
3. Shri Ram & anr. Vs Ist Addl. Distt. Judge &
ors. (2001) 3 SCC 24
4. Ram Jas Singh Vs Babu Nandan Singh AIR
1922 Ald. 424 (1): ILR (1922) 44 All 686
5. Kallu vs. Phundan AIR (33) 1946 Ald. 488:
ILR 1946 All 702
6. Dr. Purshottam Vithal Vs Dr. G.V. Pandit
AIR 1950 Nag 212
7. T. Krishnaveni Ammal Vs The Corporation of
Madras AIR 1957 Mad 671
8. Chittaruvu Radhakrishna Murty Vs Bollapalli
Chandrasekhara Rao AIR 1966 AP 334
9. Sri Athmanathaswami Devasthanam Vs K.
Gopalaswami Ayyangar AIR 1965 SC 338
10. Kailash Chandra Agarwal Vs Subhash
Chand Satish Chand Viyopari AIR 1982 All 112
11. Gulab & ors. Vs Jaggan Ram Singh & ors.
AIR 1983 All 145
12. Mst. Ananti Vs Channu AIR 1930 All 193
13 Lal Bahadur Singh & anr. Vs Bagesara &
ors. AIR 1984 All 231
14 R.S.D.V. Finance Co. Pvt. Ltd. Vs Shree
Vallabh Glass Works Ltd. (1993) 2 SCC 130
15. Mattukki & ors. Vs Rajwanti (2009) 3 AWC
2771 (All)
16. Suryakant Gupta Vs B.L. Saraf & anr. 2011
SCC OnLine Chh 333
17. Prithvi Raj Jhingta Vs Gopal Singh AIR
2007 H.P. 11
(Delivered by Hon'ble J.J. Munir, J.)

1. This is a plaintiffs' second appeal
from a judgment and decree of Sri K.N.
Pandey, the then Third Additional District
Judge,
Jaunpur,
dated
21.01.1992,
dismissing Civil Appeal no.236 of 1982
with costs, and affirming an original
2 All. Bansh Raj & Ors. Vs Moti & Ors.
759
decree of Sri Ashok Kumar Tiwari, the
then Third Additional Munsif, Jaunpur,
dated 17.09.1982, passed in Original Suit
no.517 of 1980, dismissing the said suit
for reliefs of permanent prohibitory
injunction and cancellation. This appeal
was admitted to hearing on the substantial
question of law, whether the suit is barred
under Section 331 of the U.P. Z.A. & L.R.
Act.

2. This Appeal was heard on the said
question of law on 27.02.2019 and
judgment was reserved. This Court felt
that some other questions of law, relative
to the question last mentioned, but framed
in more specific terms, that would enable
parties to better address the Court on their
respective case, were required to be
framed. Accordingly, this Appeal was
posted for further hearing on 01.05.2019.
On the said date, the following substantial
questions of law were framed:

"(i) Whether a suit held barred by
the provisions of Section 331 of the U.P.
Z.A. & L.R. Act would entail a decree of
dismissal of the suit, or an order for
return of the plaint to be presented to a
Court of competent jurisdiction?

(ii) Whether the rights and title of
parties to land concluded in terms of an
order
passed
by
the
Consolidation
Authorities and recorded as such in the
Revenue Records can be re-agitated by
the said parties in a suit before the Civil
Court notwithstanding the provisions of
Section 49 of the U.P. Consolidation of
Land Holdings Act?

(iii) Whether an order of the
Consolidation Courts deciding rights of
parties in terms of a compromise, not set
aside on ground of fraud or otherwise
within the prescribed period of limitation
is relevant evidence in a subsequent suit
inter partes relating to the same land
litigating under the same title under
Section 44 of the Indian Evidence Act?"

3. The first question of law as
rephrased takes in its fold the substantial
question law, on which this Appeal was
admitted to hearing. Question nos.2 & 3
are added questions with reference to
different issues. The learned counsel for
the parties were, accordingly, heard afresh
on
01.05.2019,
and
judgment
was
reserved.

4. Heard Sri Anmol Ranjan, holding
brief of Sri M.N. Singh, learned counsel
for the appellants and Sri V. Singh along
with Sri Manoj Singh, learned counsel
appearing on behalf of the defendantrespondent.

5. It may be indicated at the outset
that the suit was filed by the two
plaintiffs, Heera and Jawahir, both sons of
Vishwanath
Kushwaha
against
four
defendants,
to
wit,
Moti,
Rambali,
Nandlal and Ram Palat. Pending appeal
before the lower Appellate Court, of the
two plaintiffs, Heera died and was
substituted by his heirs and legal
representatives, to wit, Bansraj and
Hansraj. Before this Court, the Appeal
was filed by Bansraj and Hansraj, and the
then surviving one of the two original
plaintiffs, Jawahir. Pending this Appeal,
Jawahir, plaintiff/ appellant no.3 has
passed away, and is represented by his
heirs and legal representatives, numbering
five. Likewise, amongst the original
defendants, defendant/ respondent no.1,
Moti and defendant/ respondent no.2,
Nandlal, have died pending this Appeal
and are represented on record by their
respective heirs and legal representatives.
The appellants in this Appeal, shall
760 INDIAN LAW REPORTS ALLAHABAD SERIES
hereinafter be referred to as the plaintiffs
whereas the respondents shall be called
the defendants, except where they are
individually referred to.

6. The suit in this case was instituted
on
06.12.1980
seeking
reliefs
of
permanent prohibitory injunction to the
effect that the defendants be restrained
from interfering with the plaintiffs'
possession in the suit property as detailed
in Schedule-A to the plaint, and to refrain
in any manner from interfering with their
possession or disturbing the same. By a
separate relief, a decree was sought
claiming cancellation of sale deed dated
11.11.1980 A.D. executed by defendant
no.1 in favour of defendant nos.2 & 3, in
so far as it relates to half of the area of
land detailed in Schedule-A to the plaint.

7. A reference to some facts that
have given rise to the present appeal is
necessary. The first to be mentioned, are
the two pedigrees, one being of the
plaintiffs, and, the second, being of
defendant no.1, Moti as propounded by
the plaintiffs through an amendment to
the plaint, permitted by the Court vide
order dated 01.04.1981.

The pedigree of the plaintiff:

Dhannu Mallah

Kanhai

Vishwanath

Heera

Jawahir

(plaintiff no.1)

(plaintiff no.2)

The pedigree of defendant no.1:

Gannu Mallah

Mittu - Mst. Biranji @ Viyau

Natthu (Tarayal son)

Moti

8. It must be noticed here that the
plaint as originally drawn had set out a
pedigree very different from that brought
through the amendment referred above.
The pedigree prior to its amendment has
shown the plaintiffs and the defendants to
be descendants of a common ancestor,
Gannu Mallah. Through the amendment
brought, however, the plaintiffs and the
defendants, have been claimed to be
strangers, with Gannu Mallah being the
predecessor-in-title of the defendants and
Dhannu Mallah to be that of the plaintiffs.
The pre-amended pedigree of parties, of
which both Courts below have taken due
note, is depicted below:

Gannu Mallah

Kanhai Mittu - Biranji

Vishwanath Natthu (Tarayal)

Moti

Heera Jawahir

Chandra Shekhar Subhash

9. The case of the plaintiffs is that
they are the descendants of one Dhannu
Mallah, who had one son Kanhai and no
other. It has been emphasized that Kanhai
had no brother. Kanhai too had one son,
Vishwanath. The two original plaintiffs,
Heera
and
Jawahir
are
sons
of
Vishwanath. It has further been pleaded
that the defendants' ancestor was Gannu
Mallah, whose son was Mittu. Mittu was
unmarried. He settled with a widow
named Biranji in some kind of a
relationship (may be recognised by
custom, but did not marry her). Biranji
had brought along her son, Natthu,
begotten of her deceased husband. Natthu
last mentioned is described in his
relationship to Mittu, or the family that
2 All. Bansh Raj & Ors. Vs Moti & Ors.
761
his mother became part of, as ''Tarayal',
which is a word of local usage. According
to the plaintiffs, the property detailed in
Schedule A to the plaint was in the
agricultural
tenure
of
Kanhai,
the
plaintiffs' grandfather whereas property
detailed in Schedule B to the plaint, was
holding of Mittu, the predecessor-in-title
of the defendant. It is the plaintiffs' case
that Mittu did not beget a son from the
relationship that he had with Biranji, and
he died in the lifetime of Biranji, issuless.
Biranji came to be recorded as the tenure
holder of land detailed in Schedule B as
Mittu's widow, after his decease. After
some passage of time, Smt. Biranji passed
away. It is pleaded by the plaintiffs that
their grandfather, Kanhai had passed
away before Smt. Biranji's death. In
consequence, the tenure that was holding
of Kanhai, detailed in Schedule A,
devolved upon his son, Vishwanath. At
the time when Biranji passed away,
Vishwanath, the plaintiffs' father, in
addition to the property detailed in
Schedule A, that had devolved upon him
from Kanhai, also took possession of the
property shown in Schedule B to the
plaint. All this happened before the
abolition of Zamindari, as it appears from
the pleadings of parties (though not
specifically said so in the plaint). The
Zamindar
acknowledged
rights
of
Vishwanath, vis-à-vis land detailed in
Schedule B to the plaint and admitted him
as a tenant/ kashtkar of land last
mentioned, also. In consequence, the
plaintiffs'
father,
Vishwanath
was
admitted by the Zamindar to be the tenant
of both plots of lands comprising
Schedule A and Schedule B to the plaint,
and in possession of the same. It is also
pleaded that the plaintiffs' grandfather,
Vishwanath's name came to be recorded
over land detailed both in Schedule A and
Schedule
B
to
the
plaint.
Lands
comprising all that is in Schedule A and
Schedule B, thereupon was registered as
one Khata with the plaintiffs' grandfather
as the recorded tenant.

10. It is further pleaded by the
plaintiffs that Vishwanath passed away
when the plaintiffs were children/ minors,
whereupon the two original plaintiffs,
Heera and Jawahir, sons of Vishwanath
became tenure holders in possession of all
property that is shown in Schedule A and
Schedule
B
to
the
plaint.
After
Vishwanath's decease, Natthu who had no
connection with the earlier recorded
tenure holder, Mittu's family, laid his
claim to land comprising Schedule B to
the plaint. It is pleaded that in connivance
with the local Patwari, Natthu last
mentioned in a clandestine manner got his
name recorded by falsely portraying
himself to be the son of Mittu, not only
over the land comprised of Schedule B,
but the entire suit property detailed at the
foot of the plaint, along side the plaintiffs
as a co-sharer. This fraud came to light
when the plaintiffs' mother went to
deposit ten times the land revenue in
order to enlarge the plaintiffs' right into
bhumidhari (as they were minors at that
time) under the provisions of The United
Provinces
Agricultural
Tenants
(Acquisition of Privileges) Act, 1949. The
plaintiffs' mother discovered the collusive
entry in Natthu' name at that time, insofar
as
the
plaintiffs'
rights
over
land
comprising Schedule A to the plaint are
concerned. The aforesaid dispute was
resolved
with
the
intervention
of
Zamindar, and it is the plaintiffs' case that
a compromise was entered into, by which
the plaintiffs were acknowledged to be
bhumidhars of plot no.2788, admeasuring
54 decimals, and Natthu became the
762 INDIAN LAW REPORTS ALLAHABAD SERIES
bhumidhar
of
the
land
comprising
Schedule B to the plaint. It is also pleaded
that in accordance with the aforesaid
compromise, both parties, that is to say,
the plaintiffs' mother acting on their
behalf and Natthu for himself deposited
ten times the land revenue and a
bhumidhari sanad each was issued in
favour of the plaintiffs and Natthu,
respectively. By the said bhumidhari
sanad, the plaintiffs became the exclusive
bhumidhars of all that land comprised in
Schedule A to the plaint whereas Natthu
became bhumidhar of all land, comprising
Schedule B to the plaint.

11. At this juncture, it would be
profitable to describe all that land, that is
comprised in Schedule A and Schedule B
to the plaint. Schedule A to the plaint
bears khasra no.2788, admeasuring 54
decimals
whereas
land
comprising
Schedule B to the plaint bears khasra
no.2787, admeasuring 20 decimals. The
new number of khasra no.2787 (20
decimals) is 2695, and that of khasra
no.2788 (54 decimals) is 2696. Though
much is said about the rights of parties in
property detailed in both Schedules A and
B to the plaint, that is all part of the
transaction giving rise to the present cause
of action, as would be seen hereinafter,
there is no issue in the suit about the land
detailed in Schedule B to the plaint, which
has been given to detail the entire
background of facts and the transaction
that has led to the suit. The property in
dispute in the present suit is confined to
that detailed in Schedule A to the plaint
alone. So much for the description of the
property and its detail that is the subject
matter of action between parties.

12. Reverting back to the manner in
which the rights of parties came to be
asserted in conflict over time leading to
the present suit, it was an event in that
direction when Natthu passed away and
his son, Moti became the sole bhumidhar
of khasra no.2787, admeasuring 20
decimals (Schedule B to the plaint). Moti,
unknown to the plaintiffs, sold a claimed
half share of land comprised of khasra
no.2788 (54 decimals) to defendants nos.2
& 3 to the suit, Rajbali and Nandlal vide
registered sale deed dated 11.11.1980.
The said sale deed in favour of defendants
nos.2 & 3 was executed through their
father, defendant no.4, Ram Palat, as
defendants nos.2 & 3 to the suit last
mentioned, at the time of execution of the
sale deed, were minors. No sooner than
the sale deed was executed by Moti in
favour of the then two minor defendants,
which was effectively in favour of their
father, Ram Palat, that Ram Palat made a
show of his right and title towards the end
of November, 1980. He asserted title to a
half share in property comprised of
Schedule A to the plaint, and threatened
to interfere with the plaintiffs' exclusive
possession of the same. It is then that the
plaintiffs came to know for the first time
ever, as they allege, about the sale deed
dated 11.11.1980 executed by defendant
no.1 in favour of defendants nos.2 & 3. It
is
the
plaintiffs'
further
case
that
defendant no.1, Moti had no interest in
land comprising Schedule A to the
property as that was exclusively in their
bhumidhari
whereas
the
rights
of
defendant no.1 were confined to land
comprised in Schedule B. This clear
delineation of rights came about in terms
of a compromise before the Zamindar
already mentioned, and in accordance
with that compromise, the plaintiffs and
the defendants, each had paid ten times
the land revenue, in order to secure
bhumidhari sanad relating to the lands
2 All. Bansh Raj & Ors. Vs Moti & Ors.
763
comprised in Schedules A and B,
respectively. It asserted, therefore, that
there was no case for the first defendant to
have staked claim to a half share in the
property comprised in Schedule A, and on
that basis, execute a sale deed in favour of
defendants nos.2 & 3, then minors,
through their father, defendant no.4. It is
asserted in the plaint that the plaintiffs are
sole owners, or more properly bhumidhars
of land detailed in Schedule A to the
plaint, and are in exclusive possession of
the same as asserted in the plaint. It was
on that basis that a relief of permanent
injunction restraining the defendants from
interfering in the peaceful possession and
use of khasra no.2788 (now renumbered
as 2696) admeasuring 54 decimals, was
claimed. In addition, a further relief for
cancellation of the sale deed dated
11.11.1980, executed by the defendant
no.1 in favour of defendants nos.2 & 3
was also sought.

13. The written statement filed by
Moti denies the plaint case, and comes up
with a version that he was co-sharer in the
entire property mentioned at the foot of
the plaint, both Schedule A and Schedule
B. He was in service in Kolkata since
childhood.
The
property
in
suit,
comprising both Schedules, was joint
Hindu family property, of which the
plaintiffs and defendant no.1, both were a
part since the time of their predecessor-intitle. The plaintiffs and the party's
predecessors-in-title were managing the
family and its property. As such, it was
not known to the first defendant, Moti
about all those proceedings through which
bhumidhari sanad was secured by the
plaintiffs regarding Schedule A property
exclusive to their names. It is also
asserted
that
the
land
detailed
in
Schedules A and B to the plaint, is located
quite far off from the defendants' house,
abadi and chak, which had made it rather
unviable for the first defendant to
cultivate the said land. At the same time,
the first defendant got a good bargain of
land in the adjoining chak of another
native of the village, Chandra Dev Singh,
that he had purchased through a sale deed.
The first defendant required funds to pay
off some balance sale consideration due to
Chandra Dev Singh, on account of which
he sold his half share in the property
described in Schedule A to the plaint in
favour of defendants nos.2 & 3 vide
registered sale deed dated 11.11.1980.
The aforesaid sale deed was executed for
a total sale consideration of Rs.7000/-.
Contemporaneously, the first defendant
bargained sale of his half share in land
comprising Schedule B to the plaint in
favour of the plaintiffs, and both sale
deeds relating to the half share of
defendant no.1, that is to say, the first
defendant's half share in land shown in
Schedule A and Schedule B to the plaint,
were executed on 11.11.1980; the half
share in Schedule A being sold in favour
of defendants nos.2 & 3 whereas the half
share comprising property detailed in
Schedule B, being sold in favour of the
plaintiffs. It has been further asserted in
the written statement of the first defendant
that both sale deeds dated 11.11.1980
were drafted under instructions of the
respective
vendees,
including
the
plaintiffs, and he does not know if any
manipulation in the recitals there, to suit
his case have been scripted in the sale
deed executed in the plaintiffs' favour. It
has further been specifically averred in
the written statement, in affirmation of the
stand
taken
throughout
that
it
is
incorrectly asserted by the plaintiffs that
the first defendant is bhumidhar of the
entire land comprised of property in
764 INDIAN LAW REPORTS ALLAHABAD SERIES
Schedule B to the plaint. Rather, the first
defendant had a half share in the property
described in both Schedules, both of
which he has sold; one to the plaintiffs
vide
registered
sale
deed
dated
11.11.1980, as detailed hereinbefore.

14. Defendant no.4, Ram Palat too
filed a written statement and more or less
affirmed the case of his vendor, defendant
no.1. Amongst others, two pleas were
raised: one about the transaction being
entered into in good faith and for valuable
consideration, that he contracted after
making
necessary
inquiries
in
the
Revenue
Records,
where
he
found
defendant no.1 recorded with a half share
over land detailed in Schedule A; and, the
second on behalf of both defendants, a
plea taken that the objections raised by
the plaintiffs to impeach the title of
defendant no.1 is barred by Section 49 of
the U.P. Consolidation of Holdings Act
(for
short
the
Consolidation
Act),
inasmuch as, chakbandi operation had
intervened and during that time, the name
of defendant no.1, that was recorded over
land detailed in Schedule A to the plaint
to the extent half share was not objected
to. Pleas of bar under Section 115 of the
Indian Evidence Act, besides Sections 38
and 41 of the Specific Relief Act, were
also raised, saying that no relief could be
granted.

15. The aforesaid pleadings of
parties led the Trial Court to frame the
following nine issues:

"1. Whether the plaintiffs were the
sole owner in possession of the land in
suit?

2. Whether the sale deed dated
11.11.80 is liable to be cancelled?

3. Whether the suit is barred by
Section 49 of U.P. C.H. Act?

4. Whether the suit is barred by
Section 115 of Indian Evidence Act?

5. To what relief, if any, the plaintiffs
are entitled?

6. Is the suit barred by Section 38
and 39 of Specific Relief Act?

7. Is the suit is barred by time?

8.
Had
the
Civil
Courts
no
jurisdiction?

9. Are defendants 2 to 4 are entitled
to the benefit of section 41 of Transfer of
Property Act?"

16. The Trial Court dealt with issues
nos.1, 2 & 9 together and returned
findings on evaluation of evidence, in the
manner that in answer to issue no.1, it was
held that defendant no.1, Moti and the
plaintiffs, each had a half share in land
comprising both khasra plot numbers
shown in Schedules A and B to the plaint.
On the second issue, it was held that since
the first defendant, Moti had a half share
in land comprising khasra no.2596 (54
decimals), the said defendant had a right
to execute the impugned sale deed dated
11.11.1980 in favour of defendants nos.2
& 3. In consequence, it was further held
that the sale deed was not liable to be
cancelled. During the course of these
findings on issues nos.1, 2 & 9, amongst
many facts noticed and relevant facts
decided, besides the facts in issue, the
Trial Court held that Kanhai and Mittu
were brothers, that is to say, sons of the
same father. In reaching this finding, the
Trial Court has taken due note of the fact
that the pedigree propounded in the plaint
as originally framed, clearly showed
Mittu to be a brother of Kanhai and the
parties descended of a common ancestor.
Lateron, the plaintiffs projected the first
defendant as a stranger, and then a rank
2 All. Bansh Raj & Ors. Vs Moti & Ors.
765
trespasser through an amendment to the
plaint made specifically. The Trial Court
in conclusion finding for the defendant on
issues nos.1, 2 & 9, dismissed the suit. It
must be remarked, however, that issue
no.8, that is, whether the Civil Court has
jurisdiction to try the suit, was decided in
the affirmative and in favour of the
plaintiffs, holding that the Civil Court had
jurisdiction.

17. The lower Appellate Court went
into a very detailed analysis of evidence
on merits concurring with the Trial Court,
holding for added reasons that the
plaintiffs and the defendants, each had a
half share in both khasra nos.2787 (20
decimals) and 2788 (54 decimals), which
the first defendant was competent to
transfer. It is not the jurisdiction of this
Court to look into the validity of those
findings of fact, that have been recorded
for good and sufficient reason based on
evidence, from which conclusions drawn
by the lower Appellate Court are quite
plausible. The matter would have ended at
that, in case the lower Appellate Court,
like the Trial Court, had not gone into the
issue of the jurisdiction of the Civil Court
to try the suit. However, the lower
Appellate Court did that and came to a
conclusion contrary to that of the Trial
Court. It was held by the lower Appellate
Court that the Civil Court had no
jurisdiction to try the suit, which would be
exclusively cognizable by the Revenue
Court.

18. Concerning the issue of
jurisdiction, the lower Appellate Court
has
done
a
commendable
job
of
marshalling facts and evidence, and
drawing conclusions tested on well
supported propositions of law to conclude
on the issue of jurisdiction in favour of
ouster of the Civil Courts. The relevant
part of the findings recorded by the lower
Appellate Court would be best expressed
in the words of that Court as they occur in
the impugned judgment, which read thus:

"The fact of the present case is some
what dissimilar as the plaintiff is seeking
cancellation of the sale deed on the
ground that the vendor has got no right to
transfer the land as the plaintiffs are
exclusive owner of the land in suit.
Whereas, the name of defendant's vendor
have been recorded in revenue records
from 1347F up till now and even in
consolidation operation no protest was
made by the plaintiff nor any protest
application was made in revenue court
after
consolidation
operation
for
correction of records. Therefore in the
garb of cancellation of sale deed plaintiffs
are seeking declaration that they are
exclusive owner of the land in suit. It is
not possible to cancel the sale deed before
finding that the defendant no.1 has been
wrongly entered as co-sharer with the
plaintiff on the land in suit and the
plaintiffs
are
exclusive
owner
in
possession of the land in suit. This act is
within the jurisdiction of revenue court,
under Section 229B of the Z.A. & L.R.
Act.

Learned counsel for the appellant
has cited 1991 Supreme Court page 2234
and argues that the compromise decree
signed by counsel and not by parties in
person
is
binding,
executable
and
operates as resjudicata, even if it extends
beyond subject matter of suit. But this
ruling is not applicable in the present
case because no compromise was entered
into between the plaintiffs and defendant1 in consolidation operation and the
compromise entered into by the mother of
the
plaintiffs
and
Motii
has
been
766 INDIAN LAW REPORTS ALLAHABAD SERIES
challenged and after attaining the age of
majority of plaintiffs their mother had got
no right to enter into compromise.
Learned counsel for the appellant has
cited 1984 A.L.J. page 1132 and argues
that the suit for cancellation of a sale
deed would lie in Civil court and the court
can go into the question of title. But this
ruling is applicable where some fraud had
been committed to deprive real owner of
his property. He has also cited 1976
A.W.C. page 585 and argues that it is
open to a person to show that the entries
in the record of rights prepared in
accordance with sec.27(1) of C.H. Act
showing some other person as Bhumidhar
were not true. In the same ruling it has
been
held
that
the
decision
of
Consolidation Authority that a person
was Bhumidhar became final and such
Bhumidhar transferred the land. Suit for
cancellation of such deed is not barred by
section 49 if the plaintiff alleges that she
was in actual possession of the land in
suit in lieu of maintenance. But here the
fact is different where there is continuous
entries in the revenue records of the name
of Natththu and after his death his son
Moti. In consolidation operation no
protest petition was moved by the plaintiff
and finally Moti was recorded as cobhumidhar with the plaintiffs. Learned
counsel for the appellant has cited AIR
1974 Supreme Court page 1657 and
argues that the bar of section 49 of C.H.
Act is only where the question arises out
of the consolidation proceedings, but
where the question is whether ''B' was the
heir of ''A' which was involved in the suit
such case is not barred by Section 49.

In the above circumstances seeing
the fact of the present case, the pith and
substance of the suit is to declare that
Moti and Naththu were never Sah
Khatedar
co-Bhumidhar
with
the
plaintiffs of old plot no.2788 which is
nothing but declaration of title and barred
by Section 331 Z.A. & L.R. Act and 49 of
C.H. Act."

19. So far as this Court is concerned,
this appeal was admitted to hearing
primarily on the substantial question of
law concerning ouster of jurisdiction of
the Civil Court, which if ousted, the
appropriate course to follow for the Court
in accord with the law. There is also a
question about the jurisdiction of the Civil
Court being barred by Section 49 of the
Consolidation Act.

20. This Court may remark at once
that the lower Appellate Court in
returning its findings about the issue of
jurisdiction of the Civil Court being
barred, has held it barred, both under
Section 331 of the U.P. Z.A. & L.R. Act
and Section 49 of the Consolidation Act.
In case it were to be held that the Civil
Court has no jurisdiction to try the suit in
view of the bar under Section 331 of the
U.P. Z.A. & L.R. Act, this Court is of
opinion that there would be no further
necessity for the lower Appellate Court to
opine about the bar under Section 49 of
the Consolidation Act. This is for more
than one reason. In the event, the suit is
held barred under Section 331 of the U.P.
Z.A. & L.R. Act, the moment the Civil
Court has reached that conclusion, it
should have laid its hands off from
opining about the suit being barred under
Section 49 of the Consolidation Act. The
Civil Court, once it holds its jurisdiction
ousted, recording any other finding about
the bar to that suit under some other
provision of law, would be of no
consequence. The Civil Court having
found itself to be a Court, not competent
to try the suit, all its findings on any other
2 All. Bansh Raj & Ors. Vs Moti & Ors.
767
or further issues, would also be without
jurisdiction. It is not that, that the Civil
Court would on the one hand hold that it
has no jurisdiction to try the suit vis-à-vis
its subject matter and at the same time
pronounce upon other issues of fact and
law. The issue whether the plaintiffs'
claim is barred under Section 49 of the
Consolidation Act, is a question of law
affecting the rights of the plaintiffs. It can
be decided by a Court of competent
jurisdiction alone; not by a Court that
holds itself out of jurisdiction.

21. There is a more fundamental
reason why the lower Appellate Court
ought not to have decided the issue of the
declaration sought by the plaintiffs being
barred by Section 49 of the Consolidation
Act. That reason is this. The bar under
Section 331, that has been upheld by the
lower Appellate Court, is a bar properly
so called one as to jurisdiction of the Civil
Court to try the suit. It is about the forum
that would be competent, but in no way
does it bar the plaintiffs' right. Once the
plea of bar of the Civil Court's jurisdiction
is accepted, all that happens is that instead
of the Civil Court, it is the competent
Revenue Court that has jurisdiction. That
finding does not defeat the plaintiffs'
claim, but only sends them to another
forum. The bar under Section 331,
therefore, is properly speaking a bar as to
subject matter, which in no way defeats
the plaintiffs' claim. The bar of Section 49
of the Consolidation Act that the lower
Appellate Court has held attracted to the
plaintiffs' suit is not a bar to the
jurisdiction of the Court regarding subject
matter, pecuniary or territorial. It is a bar
in its nature to the plaintiffs' claim itself;
it is a bar if held to apply would prevent
the plaintiffs from enforcing their claim
before any other Court or forum. The bar
under Section 49 of the Consolidation Act
destroys the plaintiffs' right and the
remedy both, to enforce their claim. It is
not a bar to the jurisdiction of the Court,
like that under Section 331 of the U.P.
Z.A. & L.R. Act. The lower Appellate
Court, having found that the Civil Court
had no jurisdiction, ought not have
pronounced upon the bar pleaded under
Section 49 of the Consolidation Act, that
has the effect of destroying the plaintiffs'
right and remedy. In this appeal also, by
extension of the principle that a Court
that holds against its jurisdiction to
decide, ought not to decide anything
more, this Court would refrain from
answering substantial question of law
no. (ii), but with the remark that the
Court in a suit where it holds no
jurisdiction in itself to decide, ought not
to decide the question about the bar
under Section 49 of the Consolidation
Act. It must also be said here that the
conclusions and the answer to question
no. (ii) is in keeping with the conclusions
and answer rendered by this Court, in
reference to substantial question of law
no. (i) recorded during the course of this
judgment, a little later.

22. Now, turning to the issue
whether the Civil Court's jurisdiction is,
indeed, barred under Section 331 of the
Consolidation Act, it must be remarked
that the thin line of distinction between
the jurisdiction of the Civil Court to
cancel a document, which power alone
the Civil Court enjoys, and a case where
behind the façade of cancellation what is
substantially claimed, is a declaration of
title to agricultural land by one of the
parties, is all that would make a difference
about the forum. This has always been a
tricky ground for Courts to tread in
individual cases, but the law about it is
768 INDIAN LAW REPORTS ALLAHABAD SERIES
well settled. It would be profitable to do a
survey of authority about the issue that
has classically engaged the attention of
Courts over a long period of time,
including this Court and their Lordships
of the Supreme Court. The controversy
about the proposition as to circumstances
in
which
a
given
suit
styled
as
cancellation would be cognizable by the
Civil Court, and where notwithstanding
the form of relief, the Civil Court's
jurisdiction would be ousted under
Section 331 of the U.P. Z.A. & L.R. Act
in favour of the Revenue Court, came up
before a Full Bench of this Court in Ram
Padarath and Ors. vs. Second Addl.
District Judge and Ors1. Their Lordships
of the Full Bench after an extensive
review of authority held:

"41. We are of the view that the case
of Indra Deo v. Smt. Ram Piari 1982 (8)
ALR 517 has been correctly decided and
the
said,
decision
requires
no
consideration, while the Division Bench
case, Dr. Ayodhya Prasad v. Gangotri,
1981
AWC
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 (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."

23. The issue fell for consideration
of the Supreme Court in Smt. Bismillah
vs. Janeshwar Prasad and others2,
where it was held thus:

"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
2 All. Bansh Raj & Ors. Vs Moti & Ors.
769
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 Chalmers".

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
appended" [ Chitty on Contracts, 25th
edn., p. 341].

13. Authorities drew a distinction
between fraudulent misrepresentation as
to the character of the document and
fraudulent misrepresentation as to the
contents thereof. It was held that the
defence was available only if the mistake
was as to the very nature or character of
the transaction.

14. In Foster v. Mackinnon [(1869)
LR 4 CP 704 : 38 LJCP 310], Mackinnon,
the defendant was induced to endorse a
bill
of
exchange
on
the
false
representation that it was a guarantee
similar to one he had signed on a
previous occasion. He was held not liable
when sued even by an innocent endorsee
of the bill. Byles, J. said:

"...