# Chandrika v. Shivnath & Ors - **Citation:** (2016) 5 ILRA 269 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-05-24 - **Bench:** Ram Surat Ram (Maurya - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandrika-v-shivnath-ors-43815 - **Pages:** 6 ## Text 5 All. Chandrika Vs Shivnath & Ors. 269 Court Fee paid in the suit is allowed. Civil Judge (S.D.) Moradabad shall issue a certificate to the petitioner for refund of entire Court Fee paid in O.S. No. 160 of 2014 forthwith. -------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 24.05.2016 BEFORE THE HON'BLE RAM SURAT RAM (MAURYA), J. Matters Under Article 227 No.- 3406 Of 2016 Chandrika ...Petitioner Versus Shivnath & Ors. ...Respondents Counsel for Petitioner: Santosh Kumar Mishra, Vinay Kumar Mishra HELD: Suit for cancellation of sale deed is maintainable before civil court. Cancellation is main relief; revenue entries are consequential. Jurisdiction of civil court not barred. CASE LAW DISCUSSED: • Ram Padarath v. Second ADJ (FB) • Bismillah v. Janeshwar Prasad (SC) • Ram Awalamb v. Jata Shankar (FB) • Suraj Bhan v. Financial Commissioner (Delivered by Hon'ble Ram Surat Ram (Maurya), J.) 1. Heard Sri Santosh Kumar Mishra, for the petitioner. 2. This petition has been filed for setting aside the orders of Civil Judge (J.D.) dated 13.10.2014, deciding issue relating to jurisdiction of civil court to try a suit for cancellation of sale deed, in respect of agricultural land, in favour of the plaintiff and District Judge dated 13.03.2016, dismissing the revision of the petitioner against aforesaid order. 3. Shivnath (respondent-1) filed a suit (registered as Suit No. 2694 of 1997) for cancellation of sale deed dated 05.05.1997, allegedly executed by him in favour of Chandrika (the petitioner). It has been stated in the plaint that the plaintiff and defendant-2 are real brothers and original resident 270 INDIAN LAW REPORTS ALLAHABAD SERIES of village Naktapar tappa Nagta Tikar, pargana Silhat, district Deoria, where they jointly owned plots 488, 487 and 494. For earning livelihood, the plaintiff used to resides mostly at village Mailani, district Lakhimpur Kheri. Defendant-1 got sale deed dated 05.05.1997, executed through some imposter of the plaintiff and on its basis got his name mutated in revenue records also. Sale deed neither bears the thumb impression of the plaintiff nor photo affixed on it, belonged to the plaintiff. The plaintiff is still in possession of the land subject matter of the sale deed. The plaintiff has neither entered into any agreement to sell nor any sale consideration was paid to him. 4. The petitioner contested the suit and denied the plaint allegations. It has been stated by the petitioner that the plaintiff and defendant-2 were his uncle's sons. The plaintiff and defendant-2 left the village Naktapar from more than 20 years ago and permanently settled at village Mailani district Lakhimpur Kheri. The plaintiff voluntarily executed sale deed dated 05.05.1997, in favour of the petitioner after taking sale consideration of Rs. 80,000/- and handed over possession over the land to him. The name of the petitioner was also mutated in revenue record. Allegations that sale deed was obtained through some imposter of the plaintiff has been denied. Various technical pleas were raised. It has also been stated that as at present defendant-1 was recorded tenure holder and in possession of agricultural land i.e. plots 488, 487 and 494, which are subject-matter of sale deed as such the suit is essentially a suit for declaration of title and possession over agricultural land as such jurisdiction of civil court to try the suit is barred under Section 331 of U.P. Act No. 1 of 1951. On the basis of pleadings, issues were framed by Trial Court. Issue No. 7 was framed to the effect as to whether jurisdiction of civil court to try the suit is barred under Section 331 of U.P. Act No. 1 of 1951. 5. After hearing the parties, Civil Judge (J.D.), by order dated 13.10.2014, held that the suit is for cancellation of the sale deed as such civil court has jurisdiction to try it. The petitioner filed a revision (registered as Civil Revision No. 73 of 2014) against aforesaid order. District Judge, by judgment dated 10.03.2016, dismissed the revision. Hence this petition has been filed. 6. The counsel for the petitioner submitted that on the basis of sale deed dated 05.05.1997, the name of the petitioner has been recorded over plots 488, 487 and 494, which are subject-matter of sale deed and he is in possession over over it. At present, the petitioner is a recorded tenure holder and in possession of agricultural land i.e. plots 488, 487 and 494, which are subject-matter of sale deed as such the suit is essentially a suit for declaration of title and possession over agricultural land. Jurisdiction of civil court to try such suit is barred under Section 331 of U.P. Act No. 1 of 1951. He relied upon the judgments Supreme Court in Kamla Prasad v. Krishna Kant Path, (2007) 4 SCC 213 and judgment of this Court in Kundan Singh Vs. Additional District Judge and others, 2009 Rajaswa Nirnay Sangah 59. 7. I have considered the arguments of the counsel for the petitioner and examined the record. In order to appreciate the controversy, relevant provisions of Civil Procedure Code, 1908 and Specific Relief Act, 1963 are quoted below:- 5 All. Chandrika Vs Shivnath & Ors. 271 9. Courts to try all civil suits unless barred.--The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. 31. When cancellation may be ordered.--(1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. (2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation. 8. In view of Section 31 of Specific Relief Act, 1963, a suit for cancellation of sale deed, void or voidable, is a suit of civil nature and can be filed before civil court and civil court has jurisdiction to try it under Section 9 C.P.C. A Full Bench of this Court in Ram Padarath Vs. Second ADJ, Sultanpur and others, 1989 RD 21 (FB) held suit for cancellation of void and voidable sale deed shall lie in civil court. This judgment has been approved by Supreme Court in Bismillah Vs. Janeshwar Prasad, AIR 1990 SC 540. 9. Now question arises that if a sale deed is in respect of agricultural land, suit for its cancellation is barred under Section 331 of U.P. Act No. 1 of 1951, relevant part of which is quoted below:- Section 331. Cognizance of suits, etc. under this Act.-(1) Except as provided by or under this Act, no court other than a court mentioned in column 4 of Schedule II shall notwithstanding anything contained in the Civil Procedure Code, 1908 take cognizance of any suit, application or proceeding mentioned in column 3 thereof or a suit application or proceeding based on a cause of action in respect of which any relief could be obtained by means of any such suit or application. 10. Under Section 331, jurisdiction of civil court is expressly barred for the suits mentioned in Column 3 of Schedule II of U.P. Act No. 1 of 1951 and impliedly barred for a suit based on a cause of action, in respect of which, relief could be obtained by revenue court (mentioned in column 4 of Schedule II). Column 3 of Schedule II of U.P. Act No. 1 of 1951 does not provide for a suit for cancellation of sale deed of agricultural land as such Section 331 (1) does not expressly bar a suit for cancellation of sale deeds. 11. Now it has to be examined as to whether suit for cancellation of a sale deed is impliedly barred as the required relief based on the cause of action in the suit could be obtained from revenue court. It is the cause of action, which determines jurisdiction of a court. Cause of action means the facts which will be necessary for the plaintiff to prove, in order to obtain decree. Supreme Court in Bismillah Vs. Janeshwar Prasad, AIR 1990 SC 540, held that in order to determine the precise 272 INDIAN LAW REPORTS ALLAHABAD SERIES nature of the action, the pleadings should be taken as a whole. If as, indeed, is done by 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". 12. In Church of North India v. Lavajibhai Ratanjibhai, (2005) 10 SCC 760, held that a plea of bar to jurisdiction of a civil court must be considered having regard to the contentions raised in the plaint. For the said purpose, averments disclosing cause of action and the reliefs sought for therein must be considered in their entirety. The court may not be justified in determining the question, one way or the other, only having regard to the reliefs claimed dehors the factual averments made in the plaint. The rules of pleadings postulate that a plaint must contain material facts. With a view to determine the question as regards exclusion of jurisdiction of the civil court in terms of the provisions of the Act, the court has to consider what, in substance, and not merely in form, is the nature of the claim made in the suit and the underlying object in seeking the real relief therein. If for the purpose of grant of an appeal, the court comes to the conclusion that the question is required to be determined or dealt with by an authority under the Act, the jurisdiction of the civil court must be held to have been ousted. The questions which are required to be determined are within the sole and exclusive jurisdiction of the authorities whether simple or complicated. 13. Full Bench of this Court in Ram Awalamb Vs. Jata Shankar, AIR 1969 All 526 (FB) held that (a) where on the basis of cause of action, the main relief is cognizable by a revenue court, the suit would be cognizable by revenue court only. The ancillary relief would be immaterial for determination of proper forum for the suit. (b) Where on the basis of cause of action, main relief is cognizable by a civil court, the suit would be cognizable by civil court only. The ancillary relief which could be granted by revenue court may also be granted by civil court. (Paragraph-90) A document under which the plaintiff's share also purports to have been transferred by a person not authorized to do so, can be canceled through court to the extent of the plaintiff's share and after a decree has been passed in his favour, information regarding the same has to be sent to the registration department for making a note in their register. To have the document adjudged void or voidable, the suit provided under Section 31 of Specific Relief Act, 1963 cannot be considered to be altogether unnecessary because after lapse of several years, the unchallenged existence of such document can cause serious difficulty to the plaintiff in establishing his title to the land. The plaintiff is not bound to ask 5 All. Chandrika Vs Shivnath & Ors. 273 for mere declaration of his title in respect of the land when he could pray for cancellation of the entire sale deed. 14. Thus cancellation of a registered sale deed has been held to be main relief as cause of action for the suit, is the sale deed. The present suit has been filed for cancellation of sale deed dated 05.05.1997. Mutation order, on its basis, directing to record the name of the petitioner is a consequential action based on sale deed. So long as a registered sale deed is not canceled by civil court, revenue court will be bound to respect it and will not able to ignore it as held by Full Bench of this Court in Ram Nath Vs. Munna, 1976 RD 220 (FB). 15. Arguments of the counsel for the petitioner is on the allegations made in the plaint, sale deed dated 05.05.1997 is a void document and can be ignored by revenue court. Supreme Court in Bismillah Vs. Janeshwar Prasad, AIR 1990 SC 540, held that as suit or action for cancellation of void document will generally lie in the civil court and a party cannot be deprived of his right of getting this relief permissible under law except when a declaration of right or status and 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." 16. So far as the arguments that on the basis of sale deed dated 05.05.1997, the name of the petitioner has been recorded over plots 488, 487 and 494, which are subject-matter of sale deed and he is in possession over it and the suit is essentially a suit for declaration of title and possession over agricultural land, is concerned, title of the plaintiff is admitted on the date of sale deed. In case sale deed is canceled, there will be no requirement for declaration of the title of the plaintiff. Relief for ejectment of the petitioner and possession of the plaintiff being an ancillary relief can be granted by civil court also as held by this Court in Ram Awalamb's case (supra). The case law relied by the counsel for the petitioner, are applicable where declaration of title would be necessary for grant of relief to the plaintiff, while in this case, as stated above, title of the plaintiff on the date of sale deed is admitted and cancellation of sale deed is main relief. Supreme Court in Suraj Bhan v. Financial Commr., (2007) 6 SCC 186, held that it is well settled that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. Entries in the revenue records or jamabandi have only "fiscal purpose" i.e. payment of land revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent civil court. 17. In view of the aforesaid discussions, the impugned orders do not suffer from any illegality. The petition has no merit and is dismissed. --------- 274 INDIAN LAW REPORTS ALLAHABAD SERIES APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 02.05.2016 BEFORE THE HON'BLE ARUN TANDON, J. THE HON'BLE ABHAI KUMAR, J. First Appeal From Order No.- 3515 Of 2011 The Oriental Insurance Co. Ltd. ...Appellant Versus Smt. Nirmala Devi & Ors. ...Respondents Counsel for Appellant: Arvind Kumar Counsel for Respondents: R.K.R. Sharma, Vinod Kumar Agarwal This appeal has been filed by the Oriental Insurance Co. Ltd. against the award of the M.A.C.T./Additional District Judge, Court No. 7, Aligarh dated 1.8.2011 under section 173 of Motor Vehicles Act, 1988. Deceased on 5.9.2008 boarded Bus Because of rash and negligent driving of bus it turned turtle resulting in fatal injuries to Chetan Swaroop (deceased). The sister of the deceased and one of his brother Gyan Swaroop filed claim petition under Sections 140 and 166 of Motor Vehicles Act, 1988. It was mentioned that the deceased has left behind him besides the claimants, three other brothers as his legal representatives. Appellant had challenged the tribunal award on the ground that in the claim petition it was mentioned that there were three other brothers of the deceased, who had not been impleaded either as claimants or as respondents to the claim petition. Therefore, having regard to Section 166 of the Act 1988 and its proviso, the claim petition itself was liable to be dismissed for non-impleadment of necessary parties. Counsel for the respondent argued that an application for compensation can only be dismissed for non-impleadment of the necessary party on grounds flowing from under Order I Rule 9 of C.P.C. and not otherwise. It is stated that none of the other brothers came forward to claim compensation or object to the right of the claimants as legal representatives of the deceased either before the Tribunal or before the High Court. Court observed that the other brothers against whom no relief has been claimed in the claim petition, can at best be said to be proper parties, they do not fall within the description of necessary party. None impleadment of proper parties will not render the application bad having due regard to the legal principles as enshrined in Order I Rule 9. The application for compensation cannot be dismissed for non impleadment/misrepresantion or non-joinder of the other brothers. Therefore, in the facts of the case, court do not think it proper to accept the plea on behalf of the appellant in that regard. The core issue as to what percentage of the income of the deceased would have been spent on himself and what percentage would have been used or utilized for the claimants. Court held that 65 % of the total income must be presumed to be consumed by the deceased for his own purposes and accordingly, for the purposes of determining the annual income over which the multiplier is to be applied, the annual income must be reduced accordingly. The total yearly income determined by the