# Forward Construction Co v. Prabhat

- **Citation:** (2012) 3 ILRA 1474
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-11-22
- **Case number:** Civil Misc. Writ Petition No. 16972 of 2000
- **Bench:** B. Amit Sthalekar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/forward-construction-co-v-prabhat-42327
- **Pages:** 6

## Headnote

Constitution of India, Article 226-suit for
cancellation of sale deed-on ground of
being illiterate lady by playing fraud got
execution-Trial Court held-suit before
Civil Court maintainable rejecting the
objection of defendants regarding ban of
Section 49 of U.P. Consolidation of
Holding Act-Revisional Court reversed
the same by wrongly placing reliance of
case law contrary to view of Full Bench
decision of Ram Padarath-Trial Court
rightly held the suit maintainable before
Civil Court.

Held: Para-10

Thus
in
view
of
the
above
legal
preposition settled by the Full Bench of
the Allahabad High Court in the case of
Ram Padarath (supra) which has been
followed by the various other court and
has also been affirmed by the Supreme
Court in the case of Shri Ram (supra),
the suit filed by Masammat Aisha,
mother of the petitioners for cancellation
of the sale deed before the civil court
seeking the relief of cancellation of the
sale deed on the ground that the same
3 All] Smt. Sajrunnisha and another V. The D.J. Siddarth Nagar and Others

1475
was obtained by fraud by the respondent
no. 2 was maintainable before the civil
court and the civil court was fully
competent to adjudicate the matter.
Case Law discussed:
2001 ACJ 497; 2008 ACJ 1862; 1998 (89) RD
647

## Text

1474 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

outside, regarding which it is alleged that
they were undervalued and not paid the
proper custom duty and was guilty under
the COFEPOSA Act, 1974. Any person can
have houses and offices at different States.
Because a person carries out the business at
Ghaziabad, would not create a jurisdiction
of this Court. This should not be treated as
an integral part of the cause of action.
Therefore, the jurisdiction lies only with the
Bombay
High
Court,
within
whose
jurisdiction the cause of action arose and
lies.

19. In view of the aforesaid, we find
no force in the submissions of the
petitioner's learned counsel.

20. Here it is also important to
reiterate that the petitioner's son has already
approached the Bombay High Court
regarding the detention order, where he did
not succeed. Only thereafter, the petitioner
has approached this Court.

21. Rule 7 of the Allahabad High
Court Rules, 1952, is crystal-clear which
says that second writ petition on the same
facts would be barred. The Apex Court in
Forward Construction Co. Vs. Prabhat
Mandal (Regd), Andheri, reported in AIR
1986 SC 391, was pleased to rule that the
orders dismissing the first writ petition
operates as res judicata between the parties
and no second petition on the same facts is
maintainable.

22. In the result, we find that this
Court has no jurisdiction to entertain this
petition which is hereby dismissed on the
ground of jurisdiction alone at the
preliminary stage.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.11.2012

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.

Civil Misc. Writ Petition No. 16972 of 2000

Smt.Sajarunnisha & another

 ...Petitioners
Versus
The D.J. Siddarth Nagar and Others

 ...Respondents

Counsel for the Petitioner:
Sri Jokhan Prasad
Sri S.N. Yadav

Counsel for the Respondents:
C.S.C.
Sri D.K. Srivastava

Constitution of India, Article 226-suit for
cancellation of sale deed-on ground of
being illiterate lady by playing fraud got
execution-Trial Court held-suit before
Civil Court maintainable rejecting the
objection of defendants regarding ban of
Section 49 of U.P. Consolidation of
Holding Act-Revisional Court reversed
the same by wrongly placing reliance of
case law contrary to view of Full Bench
decision of Ram Padarath-Trial Court
rightly held the suit maintainable before
Civil Court.

Held: Para-10

Thus
in
view
of
the
above
legal
preposition settled by the Full Bench of
the Allahabad High Court in the case of
Ram Padarath (supra) which has been
followed by the various other court and
has also been affirmed by the Supreme
Court in the case of Shri Ram (supra),
the suit filed by Masammat Aisha,
mother of the petitioners for cancellation
of the sale deed before the civil court
seeking the relief of cancellation of the
sale deed on the ground that the same
3 All] Smt. Sajrunnisha and another V. The D.J. Siddarth Nagar and Others

1475
was obtained by fraud by the respondent
no. 2 was maintainable before the civil
court and the civil court was fully
competent to adjudicate the matter.
Case Law discussed:
2001 ACJ 497; 2008 ACJ 1862; 1998 (89) RD
647

(Delivered by Hon'ble B. Amit Sthalekar, J.)

1. By this writ petition, the
petitioners are challenging the order dated
22.2.2000 passed by the respondent no. 1,
District Judge, Siddharth Nagar.

2. The facts of the case, in brief, are
that one Masammat Aisha, mother of the
petitioners filed a suit for cancellation of
the sale deed which was alleged to have
been executed by Massamat Aisha in
favour
of
respondent
no.
2-Smt.
Badrunnisha. The case of Smt. Massamat
Aisha was that she was an illiterate lady
and was the sole owner of the disputed
property but by fraud practised upon her,
the husband of respondent no. 2 got the
sale deed executed in favour of his wife
Smt. Badrunnisha by showing himself as
the witness in the sale deed. The
contention of Massamat Aisha was that in
the sale deed there was no consideration
mentioned and it was obtained by fraud.
She came to know of this fraud on
19.9.1986 and then she filed the suit no.
637 of 1986 for cancellation of the said
sale deed before the civil court.

3. Before the civil court, the
respondent no. 2 filed her objections that
the suit was barred by the provisions of
section 49 of the U.P. Consolidation of
Holdings Act, 1953 and further objection
of the respondent no. 2 was that her name
had been recorded in the revenue records
prior to the filing of the suit and, therefore,
the suit was not maintainable before the
civil court and if at all, only the Revenue
Court had jurisdiction. However, the
respondent no. 2 insisted that the sale deed
dated 13.1.1977 was a genuine document
and same cannot be questioned.

4. The trial court after hearing the
parties, by its order dated 17.4.1998 held
that the suit was maintainable before the
civil court and was not barred by the
provisions of Section 49 of the U.P.
Consolidation of Holdings Act. The order
dated 17.4.1998 was challenged by the
respondent no. 2 in a civil revision no. 31
of 1998 and the court below by its
impugned order dated 22.2.2000 has held
that since the name of the respondent no. 2
was already mentioned in the revenue
records and in any view of the matter the
civil court had no jurisdiction in view of
the specific bar created by Section 49 of
the U.P. Consolidation of Holdings Act. So
far as the various case law cited before the
court below, it was held that all those cases
related to the objections arising under the
U.P. Zamindari Abolition and Land
Reforms Act, 1950 wherein the objection
was that the proceedings before the civil
court were not maintainable in view of the
provisions of Section 331 of the Act of
1950 and since this matter arises out of the
proceedings under the provisions of U.P.
Consolidation of Holdings Act, therefore,
the case law cited by the petitionerrespondents before the revisional court had
no application to the facts of the case and
the civil court therefore, had no jurisdiction
to entertain the suit.

5. I have heard Shri Jokhan Prasad,
learned counsel for the petitioner. This
matter is listed in the cause list as
peremptory. No one appears on behalf of
the respondent no. 2. Learned standing
counsel appears for the respondent no. 1.
1476 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

6. The first submission of the learned
counsel for the petitioner is that since the
name of Smt. Massamat Aisha stood
recorded in the revenue records even prior
to the filing of the civil suit, therefore, it
was not necessary for her to approach the
civil court for declaration of her rights and
filing a suit under section 229-B of the
U.P. Zamindari Abolition and Land
Reforms Act, 1950 and the only remedy
available for her is to file a civil suit for
cancellation of the sale deed on the ground
that the sale deed had been obtained by
fraud. In this regard he has placed reliance
upon a decision of the Supreme Court
reported in 2001 ACJ 497 Shri Ram and
another Vs. I Addl. District Judge and
others wherein the Supreme Court while
considering the Full Bench decision of
Allahabad High Court reported in 1989
ACJ 1 Ram Padarath V. Second ADJ,
Sultanpur held that where the name of the
plaintiff already stood recorded in the
revenue records and there was necessity
for cancellation of a sale deed on the
ground that it was obtained by fraud it was
not necessary for the plaintiff to approach
the revenue authority by filing a suit for
declaration since the land already stood
recorded in his name. However in cases
where the land was never recorded in the
name of the plaintiff and yet the plaintiff
sought to challenge the sale deed by filing
a suit for declaration it is only in these
circumstances that he would have to
approach the revenue court. Relevant
paragraph 7 of the judgment of the
Supreme Court reads 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 obtained on the ground of fraud or
impersonation cannot be directed to file a
suit for declaration in the revenue Court
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."

7. The next decision cited by the
learned counsel for the petitioner is
reported in 2008 ACJ 1862 Smt.
Kalawati
and
another
Vs.
A.D.J.
Shahjahanpur and another, wherein the
learned Single Judge of this Court has held
that for the purposes of cancellation of a
void document such as a fraudulent sale
deed or a will deed, the appropriate court is
the civil court. The relevant paragraphs 8,
9 and 10 of the judgment reads as under:

"8. In the above Section, the word
'void' has been used before the word
'voidable'. Under the aforesaid Section,
there is no substantial difference between
declaring an instrument as void or
cancelling the same. By virtue of this
Section, not only cancellation of voidable
document is permissible but cancellation
of void document is also permissible.

9. Accordingly, it cannot be said that
suit for cancellation of void document is
not maintainable before the Civil Court as
its cancellation is not necessary and a mere
3 All] Smt. Sajrunnisha and another V. The D.J. Siddarth Nagar and Others

1477
declaration, which may be granted by
revenue Court, is sufficient.

10.Accordingly,
writ
petition
is
allowed. Impugned order passed by
revisional Court is set aside. It is held that
suit is maintainable before the civil court."

8. From a perusal of the impugned
order dated 22.2.2000 it will be seen that
the court has held that the case law cited by
the petitioner related to the proceedings
under the U.P. Zamindari Abolition and
Land Reforms Act, 1950 particularly the
bar created by the provisions of Section
331 of the said Act whereas the case in
hand related to an objection with regard to
the maintainability of the civil suit in view
of the bar created by section 49 of the U.P.
Consolidation of Holdings Act and,
therefore, the case law referred to in the
impugned judgment had no application in
the case of the petitioner. One of the cases
mentioned in the impugned order is of
Smt. Chhanga Vs. I A.D.J. Jaunpur.

9. Learned counsel for the petitioner
has placed before this Court the said
judgment which is reported in 1998 (89)
RD 647 Smt. Chhanga and another Vs.
Ist Addl. District Judge, Jaunpur. The
case of Smt. Chhanga is a case which
arises under the U.P. Consolidation of
Holdings Act wherein the objection was
raised not only with regard to the
maintainability of section 49 of the U.P.
Consolidation of Holdings Act but also the
maintainability under section 331 of the
U.P. Zamindari Abolition and Land
Reforms Act. The Court relying upon the
Full Bench decision of the Allahabad High
Court in the case of Ram Padarath (supra)
has held that the suit filed before the civil
court for cancellation of the sale deed on
the ground of the same being void was
maintainable before the civil court. The
relevant paragraphs 10, 13 and 14 reads as
under:

"10. The decision in the case of Smt.
Dulari Devi (supra) was a decision in
which the question as to the cognizance of
the suit by the consolidation authorities
under the U.P. Consolidation of Holdings
Act, 1954 was under consideration in
relation to Section 49 thereof which barred
the jurisdiction of the civil court. There it
was held that where a deed is void the
same
cannot
be
ignored
by
the
consolidation authorities and, therefore, it
can be within the jurisdiction of the
consolidation authorities to decide the
dispute and as such the said suit in respect
whereof void deed was involved was hit by
Section 49 of the U.P. Consolidation of
Holdings Act. Under Section 49 of the
U.P. Consolidation of Holdings Act the
suit which could be or ought to be brought
under the said provisions of the Act were
hit by Section 49 as being barred in the
civil court. The provisions of sub-section
49 is little different from that of Section
331 though in substance both are almost
same. But the distinguishing feature in
both Section 49 of the U.P. Consolidation
of Holdings Act and Section 331 of U.P.
Z.A. And L.R. Act is that in both cases the
court is being brought within the purview
of U.P. Consolidation of Holdings Act or
under the U.P. Z.A. And L.R. Acts for a
relief which could be had from the
authority mentioned in both the Acts were
prohibited from being proceeded with by a
civil court. Thus in one aspect both the
sections were common. Now as I have
observed above that the proceedings
involved in this case does not come within
the purview of Section 331 and, therefore,
the said provision of Section 331 cannot be
attracted in the present case and the
1478 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

decision in the case of Smt. Dulari Devi
(supra), therefore, cannot be attracted. In
the said case it has not been laid down that
wherever a void deed is involved, the suit
is to be preferred before the revenue
authority irrespective of the satisfaction of
the conditions contained in Section 49 vis a
vis Section 331 if that can be stretched to
such an extent. The said decision can be
distinguished only on the facts that the
same relates to Section 49 of the U.P.
Consolidation of Holdings Act but since
there is something common in the two
sections, in my view the distinguishing
feature is the question as to whether the
relief could be had within the ambit of
special statutes being the revenue law
concerning this case. As I have found that
it cannot be had within the ambit of any
provisions
contemplated
within
the
revenue law, therefore, that decision does
not help Mr. P. Chandra, learned counsel
for the petitioner.

11. .............

12. ............

13. I am unable to persuade myself to
agree with the contention of Mr. Prem
Chandra in the facts and circumstances of
the case, inasmuch as in the present case
admittedly the name of the defendant was
recorded as tenure holder only by virtue of
the alleged sale deed, therefore, for the
purpose of seeking cancellation of the sale
deed prima facie the plaintiff had a title in
respect of the property which was recorded
in her name prior to the alleged execution
of the sale deed. If the name of the
defendant has been recorded subsequent to
the alleged execution of the sale deed that
will not turn the table to dispel the ratio
decided by the Full Bench in the present
case. Then again the relief that might be
claimed by the plaintiff would be only a
consequential relief, if she succeeds in
getting the sale deed cancelled. However,
she has not asked for any such relief. If
relief in the suit is granted it would not
necessarily change any status or right
between the parties. In case she fails in the
suit then also no status or right under the
revenue authority is required to be
adjudicated upon. Therefore, the ration
decided by the Full Bench as referred to in
the case of Ram Padarth (supra) applies in
the present case with full force. Same view
has been taken by this court following the
decision in the case of Ram Padarth
(supra) by a learned Single Judge in the
case of Dwarika Singh Vs. The District
Judge, Jaunpur and others. Similar view
was taken in the decision in the case of
Sadaruddin and others V. District Judge,
Allahabad and other that too by me relying
on the decision in the case of Ram Padarth
(supra). The decision in the case of Ram
Padarth (supra) was also followed in the
case of Radhey Shyam V. District Judge,
Gorakhpur and others. The decision of Full
Bench in the case of Ram Padarth (supra)
was relied upon by the Supreme Court in
the case of Bismillah Vs. Janeshwar
Prasad.

14. In view of the discussion made
above I have not been able to agree with
the contention of Mr. Prem Chandra who
argued with great vehemence. On the other
hand I am in agreement with the decision
given by the learned Addl. District Judge
Ist Court Jaunpur on 20.3.1991 in Civil
Revision No. 205 of 1989 and hold that the
present case is maintainable before a civil
court."

10. Thus in view of the above legal
preposition settled by the Full Bench of the
Allahabad High Court in the case of Ram
3 All] Sri Om Prakash V. Sri Anil Kumar

1479
Padarath (supra) which has been followed
by the various other court and has also
been affirmed by the Supreme Court in the
case of Shri Ram (supra), the suit filed by
Masammat Aisha, mother of the petitioners
for cancellation of the sale deed before the
civil court seeking the relief of cancellation
of the sale deed on the ground that the
same was obtained by fraud by the
respondent no. 2 was maintainable before
the civil court and the civil court was fully
competent to adjudicate the matter.

11. Learned counsel for the petitioner
has further raised an objection that during
the pendency of the suit proceedings which
was earlier filed in the civil court,
Siddharth Nagar, the District Siddharth
Nagar was bifurcated and a new district
Basti was created and Tehsil Bhanpur
wherein the land in dispute is situated fell
within the jurisdiction of the civil court,
Basti and, therefore after the creation of the
new district of Basti and the allocation of
Bhanpur Tehsil to district Basti, all the
proceedings pending before the judgeship
of Siddharth Nagar would now be
cognizable by the judgeship of Basti.

12. Be that as it may, it will be open
for the petitioner to raise this objection
before the concerned court which shall
consider the same and if the court is
satisfied that the matter is cognizable by
the civil court Basti it will immediately
transfer the suit no. 637 of 1986 to the
appropriate court in the district court,
Basti.

13. For the aforesaid reasons the writ
petition is allowed and the impugned order
dated 22.2.2000 is quashed.

14. There shall be no order as to cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.10.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.19834 OF 2003

Sri Om Prakash

 ...Petitioner
Versus
Sri Anil Kumar

 ...Respondent

Counsel for the Petitioner:
Sri Madhav Jain
Sri Manish Goyal
Sri Shri Krishna Shukla

Counsel for the Respondents:
S.C.
Sri M.K.Gupta
Sri Pankaj Agarwal

Uttar
Pradesh
Urban
Buildings(Regulation of Letting Rent and
Eviction)Act
1972-Section
20(4)-
eviction on default of payment in rent-on
refusal rent deposited under section
30(1) with permission of Court-first date
of hearing-by wrong interpretation held
defaulter-while on first date of hearing
i.e. on 25.08.95-if deposit under section
30
taken
into
consideration-tenant
deposited
much
more
excess
than
amount required-Revisional Court rightly
interfered by rejecting application for
ejectment.

Held: Para-28 & 30

The
amount
thus
deposited
by
respondent
tenant
upto
25.8.1995
exceed much more than what he was
required to deposit and there is no scope
of any argument that he has not
complied with requirement of Section
20(4) of Act, 1972.

In
view
of
the
above
discussion,
revisional order in so far as it has held