# Mangoo Singh & Ors v. Ram Autar

- **Citation:** (2024) 8 ILRA 488
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-21
- **Case number:** Second Appeal No. 1035 of 1996
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mangoo-singh-ors-v-ram-autar-52382
- **Pages:** 14

## Headnote

A. Civil Law - Civil Procedure Code,1908 -
Section 9 - Specific Relief Act, 1963 - S.
31 - UP Z.A.&L.R. Act, 1950 - Ss. 229-B
and 331 - Suit of civil nature - Dispute
pertaining
to
the
cancellation
of
registered
Will-deed
in
respect
of
agricultural land - Whether cognizable by
Civil Court or Revenue court - Bar of
Section
331
of
the
Act,
1950
-
Applicability - Held, once a deed is
challenged, the plaintiff need not be
forced to seek a declaration of his title
and, hence, bar of Section 331 of the Act
of
1950
would
not
be
attracted
-
Cancellation of the registered Will is,
beyond doubt, the main relief as cause of
action for the suit was the existence of
Will itself - There is no provision under
the Act of 1950 empowering a revenue
court to cancel an instrument. Even
Section 229-B does not contemplate any
such provision whereunder an instrument
of transfer or conferring testamentary
succession can be expressly or impliedly
cancelled - Suits for cancellation of a saledeed or other instruments and documents
are essentially suits of civil nature. As per
section 9 of C.P.C., every suit of civil
nature is cognizable by a civil court except
its cognizance is expressly or impliedly
barred. (Para 15, 23, 26, 31 and 32)

B. Civil Law - Civil Procedure Code, 1908 -
Section 100 - Substantial question of law
- Concurrent finding of fact - Both the
Court below held that the Will was a result
of fraud and undue influence - Scope of
interference -- Held, the analysis of oral
and documentary evidence testing the Will
of 1985 on the touchstone as to whether it
8 All. Mangoo Singh & Ors. Vs. Ram Autar
489
was a result of fraud and whether it was
surrounded by suspicious circumstances,
as done by both the courts below, is
covered by pure findings of fact based
upon evidence and, hence, the same
cannot be upset in second appellate
jurisdiction under Section 100 CPC. (Para
33)

Appeal dismissed. (E-1)

List of Cases cited:

## Text

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488 INDIAN LAW REPORTS ALLAHABAD SERIES
case arising out of suit for specific
performance of an agreement for sale and
set aside the judgement of High Court that
had interfered with findings of fact.

Conclusion

21. In view of the above referred
decisions of the Supreme Court it is clear
that even when two views are possible, out
of which one view has been taken by the
courts after appreciating evidence on
record, second Appellate Court would not
substitute that view by its own view. Reappreciation of evidence to arrive at a
different conclusion is quite restricted in
exercise of jurisdiction under Section 100
of Code of Civil Procedure and in the
present case, finding on executability of the
agreement, proof of its contents, question
of readiness and willingness on the part of
the plaintiff-respondents to get the sale
deed executed, are pure findings of fact
based upon the material available on
record. This Court does not find any
apparent perversity in the view taken by
both the courts below so as to upset the
impugned decisions.

22. No substantial question of law
arises for consideration.

23. The second appeal has no force
and is, accordingly, dismissed at the stage
of admission itself.
----------
(2024) 8 ILRA 488
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.08.2024

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Second Appeal No. 1035 of 1996
Mangoo Singh & Ors. ...Appellants
Versus
Ram Autar ...Respondent

Counsel for the Appellants:
Smt. Shikha Singh, Ajay Shankar, Alrafio
Basir, D.K. Dwivedi, R.C. Tiwari, Shashi
Kumar Dwivedi, Triveni Shankar

Counsel for the Respondent:
Ajit Kumar, Kiran Kumar Arora, Rahul Sahai

A. Civil Law - Civil Procedure Code,1908 -
Section 9 - Specific Relief Act, 1963 - S.
31 - UP Z.A.&L.R. Act, 1950 - Ss. 229-B
and 331 - Suit of civil nature - Dispute
pertaining
to
the
cancellation
of
registered
Will-deed
in
respect
of
agricultural land - Whether cognizable by
Civil Court or Revenue court - Bar of
Section
331
of
the
Act,
1950
-
Applicability - Held, once a deed is
challenged, the plaintiff need not be
forced to seek a declaration of his title
and, hence, bar of Section 331 of the Act
of
1950
would
not
be
attracted
-
Cancellation of the registered Will is,
beyond doubt, the main relief as cause of
action for the suit was the existence of
Will itself - There is no provision under
the Act of 1950 empowering a revenue
court to cancel an instrument. Even
Section 229-B does not contemplate any
such provision whereunder an instrument
of transfer or conferring testamentary
succession can be expressly or impliedly
cancelled - Suits for cancellation of a saledeed or other instruments and documents
are essentially suits of civil nature. As per
section 9 of C.P.C., every suit of civil
nature is cognizable by a civil court except
its cognizance is expressly or impliedly
barred. (Para 15, 23, 26, 31 and 32)

B. Civil Law - Civil Procedure Code, 1908 -
Section 100 - Substantial question of law
- Concurrent finding of fact - Both the
Court below held that the Will was a result
of fraud and undue influence - Scope of
interference -- Held, the analysis of oral
and documentary evidence testing the Will
of 1985 on the touchstone as to whether it
8 All. Mangoo Singh & Ors. Vs. Ram Autar
489
was a result of fraud and whether it was
surrounded by suspicious circumstances,
as done by both the courts below, is
covered by pure findings of fact based
upon evidence and, hence, the same
cannot be upset in second appellate
jurisdiction under Section 100 CPC. (Para
33)

Appeal dismissed. (E-1)

List of Cases cited:

1. Shri Ram & anr. Vs 1st Additional District
Judge; AIR 2001 SC 1250

2. Kamala Prasad Vs Krishna Kant Pathak; 2007
(1) AWC 1 (SC)

3. Dr. Ram Prakash Gupta Vs District Judge;
2010 (110) RD 613;

4. Mohan Lal Vs Sri Ram & anr.; 2016 (3) AWC
2696

5. Ishwaragouda & ors. Vs Mallikarjun Gowda &
ors.; 20009 (1) AWC 1 (SC)

6. Ram Padarath & ors. Vs Second Additional
District Judge, Sultanpur; 1989 RD 21 (FB)

7. Chandrika Vs Shivnath & ors.; 2016 (5) AWC
4874

8. Abdul Waheed Khan Vs Bhawani & ors.; 1968
RD 79: AIR 1966 SC 1718

9. Ram Awalamb Vs Jata Shanker; 1968 AWR 731

10. Smt. Bismillah Vs Janeshwar Prasad; AIR
1990 SC 540

11. Church of North India Vs Lavajibhai
Ratanjibhai; (2005) 10 SCC 760

12. Narendra Kumar Mittal & ors. Vs M/S Nupur
Housing Development Pvt. Ltd. & anr.; 2019 (7)
Supreme 157: 2019 (144) RD 785

13. Ram Nath Vs Munna; 1976 RD 220 (FB)

(Delivered by Hon'ble Kshitij Shailendra, J.)
THE APPEAL

1. The instant second appeal at the
instance of defendants of Original Suit
No.523 of 1989 (Ram Autar Vs. Siyawati
and others) has been filed challenging the
concurrent judgments and decrees drawn
by the trial court and the first appellate
court whereby, respectively, suit for
cancellation of a registered Will dated
20.03.1985 has been decreed and civil
appeal arising out of the decree has been
dismissed.

PLAINT CASE

2. As per the plaint case, one
Harswaroop had two sons, namely, Ram
Autar (plaintiff) and Mangoo (defendant
no.2). One Siyawati wife of defendant no.2,
was
arrayed
as
defendant
no.1.
Harswaroop, aged 90 years, used to remain
sick in his last days of life. His wife had
already died and the plaintiff and defendant
no.2 used to take care of their father. When
Harswaroop fell seriously ill in March,
1985, the plaintiff and defendant no.2 took
him
to
Modinagar
and
Meerut
for
treatment. Initially, Harswaroop got some
relief but he again fell ill and, on
20.03.1985, defendant no.2 along with his
brother-in-law
Nand
Kishore
took
Harswaroop for examination by a doctor at
Modinagar. At that time, since the wife of
plaintiff was ill, he could not accompany
his father. Defendant no.2, in collusion
with defendant no.1, i.e. his wife, and his
brother-in-law
Nand
Kishore,
took
Harswaroop to Ghaziabad for treatment and
on 20.03.1985 itself, a Will was obtained
from Harswaroop in the name of defendant
no.1, i.e. the wife of defendant no.2
pretending that the same was being
executed in favour of both plaintiff and
defendant no.2. Harswaroop died on
490 INDIAN LAW REPORTS ALLAHABAD SERIES
04.01.1989, however, plaintiff could not
get any information about the Will but
when the defendants, at the strength of the
said
Will,
expressed
their
absolute
ownership in respect of Khasra No.1007,
the plaintiff got information about the Will
and found it as having been fraudulently
executed. A plea with regard to family
settlement dated 17.01.1989 was also taken
and cause of action for filing the suit was
alleged as denial by the defendants to get
the Will cancelled, threats extended in
April, 1989 as regards possession over the
property and on not accepting family
settlement.

Defence in written statement

3. The defendants filed written
statement pleading due execution of the
Will. It was stated that the testator even till
his death remained in all good senses and
the Will was executed out of his free will.
It was further stated that the plaintiff had
never taken care of his father and even did
not participate in his last rites. Bar of
Section 331 of U.P. Zamindari Abolition
and Land Reforms Act, 1950 (for short 'the
Act of 1950') was also pleaded with a
further
statement
that
name
of
the
beneficiary, i.e. the defendant no.1, had
already been mutated in the revenue
records at the strength of Will.

TRIAL COURT'S JUDGMENT

4. The trial court decreed the suit
on 04.11.1993. It found the execution of
Will as a result of fraud and fabrication and
also recorded that the original Will was
neither filed before the Court nor proved in
accordance
with
law.
It,
however,
discarded family settlement relied upon by
the plaintiff. As regards bar of Section 331,
the trial court observed that since suit was
filed seeking cancellation of Will and
claiming
injunction
restraining
dispossession and alienation, the civil court
had jurisdiction to entertain and decide the
suit.

FIRST APPELLATE COURT'S
JUDGMENT

5. Aggrieved by the decision of
the trial court, the defendants preferred
Civil Appeal No.10 of 1993 (Mangoo
Singh and others Vs. Ram Autar) that has
been dismissed on 05.11.1996.

COUNSEL HEARD

6. I have heard Sri Triveni Shankar
along with Sri Narendra Mohan & Sri
Ramesh Chandra Tiwari, learned counsel
for the defendant-appellants and Sri Kiran
Kumar Arora, learned counsel for the
plaintiff-respondent.

ADMISSION ORDER

7. The instant second appeal, though
filed in the year 1996 when an order of
status quo was also passed, it was admitted
as late as on 05.10.2021 on the following
substantial questions of law:-

"(1) Whether in a case where the
plaintiff is not recorded in the revenue
records of an agricultural holding, a suit for
cancellation of a Will at the instance of
such an unrecorded person is maintainable
before the Civil Court ?

(2) Whether secondary evidence
of
a
document
(photostat
copy)
is
admissible in a case, where the original is
available and the two are at variance ?"

SUBMISSIONS ON BEHALF OF
APPELLANTS
8 All. Mangoo Singh & Ors. Vs. Ram Autar
491

8. Sri Triveni Shankar, learned
counsel
for
the
defendant-appellants
vehemently argued that the suit was barred
by Section 331 of the Act, 1950, inasmuch
as on the date of its institution, name of
plaintiff-respondent was not recorded in the
revenue records, whereas the name of
beneficiary, i.e. defendant no.1 (Siyawati),
stood recorded. He submits that the finding
of both the courts below holding the suit as
maintainable
is
incorrect,
inasmuch
bequeath by a bhumidhar is provided under
Section 169 of the Act, 1950 and as per
sub-section (3) of Section 169, if the Will is
in writing and attested by two persons, the
same is valid and any person who
otherwise claims himself as bhumidhar,
would have to seek a declaration under
Section 229-B of the Act, 1950 and,
therefore, it is the Court described in
Second Schedule of the Act which would
have jurisdiction to entertain such a claim
rendering the suit as barred by Section 331.
He, therefore, submits that first substantial
question of law should be answered in
favour of the appellants and the impugned
judgments and decrees should be set aside.
As regards question no.2, it is contended
that the plaintiff-respondent relied upon a
family settlement of 1989 bringing on
record its photostat copy, which was
inadmissible in evidence and, therefore, the
suit was otherwise not liable to be decreed
and, hence, the second question may also
be answered in favour of the appellants. In
support of his contention, learned counsel
has
placed
reliance
upon
following
authorities:-

(i) Shri Ram and another Vs.
1st Additional District Judge: AIR 2001
SC 1250;

(ii) Kamala Prasad Vs. Krishna
Kant Pathak: 2007 (1) AWC 1 (SC);
 (iii) Dr. Ram Prakash Gupta
Vs. District Judge: 2010 (110) RD 613;

(iv) Mohan Lal Vs. Sri Ram
and another: 2016 (3) AWC 2696;

(v) Ishwaragouda and others
Vs. Mallikarjun Gowda and others:
20009 (1) AWC 1 (SC).

9. During the course of arguments,
certified copy of a document paper No.37Ka was placed before the Court and it was
contended that it is the document dated
17.01.1989 that was termed as family
settlement but it did not contain mention of
Gata No.1007 about which the disputed
Will had been executed, rather it contains
description of other gatas and, even
otherwise, the document being a photostat
copy, it could not be relied upon. When the
Court perused the original record of
proceedings, it found that in the record of
the trial court, original family settlement
was indexed as paper No.37-Ka, however,
it was not found on record but there was a
photostat copy of the same document as
paper No.38-Ga. What was placed before
the Court was a certified copy of paper
No.37-Ka,
which
was
issued
from
Executing Court dealing with Execution
Case No.11 of 2011. As per General Rules
(Civil), no certified copy of a photostat
copy can be issued by the office of the civil
court. It, therefore, appears that paper
No.37-Ka,
in
fact,
was
an
original
document forming part of the record of trial
court but it is quite surprising as to how its
certified copy was issued by the Executing
Court. Though, it is true that the decree is
executed by the court of first instance itself,
this Court fails to understand as to how the
original Paper No.37-Ka was taken out
from the original record so as to form part
of the record of execution proceedings
which are said to be going on, whereas
original record is with this Court. Probably,
492 INDIAN LAW REPORTS ALLAHABAD SERIES
some skeleton file is being maintained by
the Executing Court about which there is
no illegality or irregularity. It is also
permissible
that
any
party
to
the
proceedings can take back any original
document
from
the
record
of
the
proceedings by moving application under
the relevant Rules and there may also be a
possibility that original Paper No.37-Ka,
indexed on the file of the trial court, was
taken away by the respondent. However,
this Court does not want to indulge itself in
the inquiry as to how original Paper No.37Ka forms part of the record of execution
proceedings and it proceeds to decide the
matter in the light of questions framed by
this Court.

SUBMISSIONS ON BEHALF OF
RESPONDENT

10. The contention of Sri K.K. Arora
is that at no point of time the bar of Section
331 was specifically pressed by the
defendants, although a vague plea was
taken in the written statement but the trial
court's judgment itself shows that the
defendants did not press the alleged bar
covered by issue No.4 on which the trial
court recorded specific finding that the
defendants had not produced any such
evidence on the basis whereof it could be
said that the civil court had no jurisdiction
to try and decide the suit. He submits that
in view of Section 331 (1-A), no such plea
can be permitted to be raised before the
second appellate court unless it was pressed
before the court of first instance at the
earliest possible opportunity. As regards
maintainability of the suit before the civil
court, it is vehemently argued that only
civil court has power to cancel a Will and it
is not a case where the plaintiff was
claiming declaration of his bhumidhari
rights in terms of Section 229-B but a case
where a void document, i.e. the Will, was
existing to the detriment of the right and
interest of the plaintiff and since the
revenue court has no jurisdiction to cancel
an instrument, the suit was very much
maintainable before the court. In support of
his submission, Sri Arora places relied
upon following judgments:-

(i) Ram Padarath and others
Vs. Second Additional District Judge,
Sultanpur: 1989 RD 21 (FB);

(ii) Chandrika Vs. Shivnath
and others: 2016 (5) AWC 4874.

11. Shri Arora further submits that
since both the courts below have discarded
the family settlement for one reason or the
other, he is not pressing his claim on that
basis and, therefore, for deciding the instant
appeal, the document dated 17.01.1989
may be kept aside and ignored and that he
would stick to his claim for cancellation of
Will and injunction on the basis of findings
recorded by both the courts below in his
favour. In view of the said submission of
Sri Arora, question no.2 as regards
admissibility of copy of family settlement
becomes redundant and it is answered in
the manner that decision in the instant
appeal would not be dependent upon
admissibility or inadmissibility of alleged
family settlement dated 17.01.1989.

12. The moot question on which the
instant appeal has been argued revolves
around bar of Section 331 of the Act, 1950
and, therefore, the Court deals with the
submissions of both the sides in the light of
first question framed in the admission order.

ANALYSIS OF RIVAL CONTENTIONS

13. On perusal of original record, it is
found
that
Will
was
executed
on
8 All. Mangoo Singh & Ors. Vs. Ram Autar
493
20.03.1985
and
was
registered
on
08.04.1985. Copy of Khatauni relating to
1393-F to 1398-F is on record as paper
No.11-Ka. It contains description of
various gatas, viz, 873, 874, 890, 1007,
1009, 1122 and 1204. The Khatauni reveals
that pursuant to an order dated 25.03.1989
passed by Additional Tehsildar concerned,
after expunging the name of testator
Harswaroop, name of beneficiary Siyawati
(defendant no.1) was entered on the basis
of Will. Copy of this Khatauni was issued
on 13.05.1989 and the suit in question was
instituted on 18.05.1989, i.e. immediately
after five days of issuance of copy of
Khatauni. The name of beneficiary was, for
the first time, recorded just two months
prior to institution of suit, although the Will
was executed four years prior in point of
time.

14. Having heard learned counsel for
the
parties,
this
Court
proceeds
to
elaborately deal with the question as
regards maintainability of a suit for
cancellation of Will with consequential/
ancillary relief of injunction in respect of
an agricultural land.

15. The controversy regarding the
jurisdiction of Civil Court and Revenue
Court in entertaining a suit regarding
agricultural land and also entertainability of
the suit seeking cancellation of void
instruments and documents has engaged
attention of several benches of this Court
over decades. Suits for cancellation of a
sale-deed
or
other
instruments
and
documents are essentially suits of civil
nature. As per section 9 of C.P.C., every
suit of civil nature is cognizable by a civil
court except its cognizance is expressly or
impliedly barred. In Abdul Waheed Khan
Vs. Bhawani and others, 1968 RD 79:
AIR 1966 SC 1718 settled principle was
stated that it is for the party who seeks to
oust the jurisdiction of civil court to
establish his contention and that a statute
ousting the jurisdiction of a civil court must
be strictly construed.

16. Section 31 of the Specific Relief
Act, 1963 makes specific provision for
cancellation of void as well as voidable
instruments. Suits for cancellation of such
documents being of civil nature are
cognizable by a civil court and even
otherwise suits claiming relief provided
under Specific Relief Act are entertainable
only by a civil court and no revenue court
or any other court can entertain such a suit
including for cancellation of an instrument
or document. Section 31 of the Specific
Relief Act reads as under:

Section 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 if
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 bas 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
facts of its cancellation."

17. Thus one, who has reasonable
apprehension that any instrument, if left
outstanding, may cause him serious injury,
can approach a competent court of law to
get it cancelled. Sub-section (2) of Section
31 casts a mandatory duty upon the court
494 INDIAN LAW REPORTS ALLAHABAD SERIES
passing the decree to send a copy of the
same to the registering officer, who is
enjoined by law to make a note on the copy
of such document regarding the order of its
cancellation and, after such an endorsement
is made, the document becomes legally
ineffective and no benefit of the same can
be derived by any one. If a certified copy of
such a document is issued to anyone, it
would obviously contain the note regarding
its cancellation by a court of law.

18. So far as voidable documents
like those obtained by practising coercion,
fraud, misrepresentation, undue influence
etc., are concerned, their legal effect cannot
be put to an end without their cancellation.
But a void document is not required to be
cancelled necessarily. Its legal effect can be
put to an end by declaring it to be void and
granting some other relief instead of
cancelling it. Once it is held to be void, it
can be ignored by any court or authority
being of no legal effect or consequence. A
document executed without free consent or
one which is without consideration or the
object of which is unlawful or executed by
a person not competent to contract like a
minor or in excess of authority, would be a
void document. In case it is in excess of
authority, it would be void to that extent
only.
There
is
presumption
of
due
registration of a document and correctness
of the facts mentioned in the same, but the
said presumption is not conclusive and can
be dislodged. On the finding that a
particular instrument or document was void
because of any reason, it will be of no legal
consequence and binding on any one
without even its cancellation. But existence
of such a document or instrument for a
substantial period may cause injury to the
person whose rights are affected by it and
existence of such instrument may create
complications giving rise to unnecessary
litigations. But for those who are aware of
any
judgment
holding
a
particular
document or instrument to be void or are
supposed to be aware of it, others can be
misled by its existence if it does not contain
any
endorsement
of
its
cancellation
subsequent to a decision by any competent
court of law.

19. The law relating to right, title and
interest over the agricultural land is
contained in the U.P. Zamindari Abolition
and Land Reforms Act, 1950, which is a
complete Code by itself and the ScheduleII to it enumerates the suits etc., the
cognizance of which is to be taken of by
the revenue courts specified therein. The
said Act being special Act, its provisions
would prevail over the general law. The
jurisdiction of Civil Court is ousted if the
relief can be granted by the special court
conferred with jurisdiction to grant such
reliefs. In Section 331 of the Act which
specifically ousts the jurisdiction of other
courts in respect of all suits, applications
etc., enumerated in Schedule II, the main
emphasis is on the words cause of action
and any relief. The said section reads as
under:

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 Code of Civil Procedure, 1908 (V of
1908), take cognizance of any suit,
application or proceedings mentioned in
column 3 thereof, or of a suit, application
or proceedings based on a cause of action
in respect of which any relief could be
obtained by means of any such suit or
application.

Provided that where a declaration
has been made u/s 143 in respect of any
8 All. Mangoo Singh & Ors. Vs. Ram Autar
495
holding or part thereof; the provisions of
Schedule II in so far as they relate to suits,
applications, or proceedings under Chapter
VIII shall not apply to such holding or part
thereof.

Explanation-If the cause of action
is one in respect of which relief may be
granted by the revenue court, it is
immaterial that the relief asked for from the
civil court may not be identical to that
which the revenue court would have
granted.

(1-A) Notwithstanding anything
in Sub-section (1) an objection that a court
mentioned in column 4 of Schedule II, or,
as the case may be, a civil court, which bad
no jurisdiction with respect to the suits,
application
or
proceedings,
smelted
jurisdiction with respect thereto shall not be
entertained by any appellate of revisional
court unless the objection was taken in the
court of first instance at the earliest
possible opportunity and in all eases where
issues are settled, at or before such
settlement, and unless there has been
consequent failure of justice.

20. Section 331 of the Act makes the
phrase ''cause of action'' as pivotal point for
determining the jurisdiction of civil or
revenue court. The expression ''cause of
action'' means every fact that would be
necessary for the plaintiff to prove in order
to support his right of judgment. It is the
real ''cause of action'' which determines the
jurisdiction of the court to entertain
particular
action
notwithstanding
the
language used in the plaint or the relief
claimed. The strength on which the plaintiff
comes to the court does not depend upon
the defence or relief claimed which could
determine the forum for the entertainment
of claim and grant of relief. It is the pith
and substance which is to be seen. The
expression ''any relief'' used in Section 331
of the Act is of too wide import and would
not only mean the relief claimed but would
also include any relief arising out of the
cause of action which led the plaintiff to
invoke the jurisdiction of a court of law.
The word 'relief' is not part of cause of
action nor the same is related to the defence
set up in the case. The relief is a remedy
which the court grants from the facts
asserted and proved in an action.

21. A Full Bench of this Court, in
the case of Ram Awalamb v. Jata
Shanker 1968 AWR 731, observed that
"where in a suit, from a perusal only of the
relief claimed, one or more of them are
ostensibly cognizable only by civil court
and at least one relief is cognizable by the
revenue court, further questions which arise
are whether all the reliefs are based on the
same cause of action and if so, (a) whether
the main relief asked for on the basis of the
cause of action is such as can be granted
only by a revenue court or (b) whether any
real or substantial relief, though it may not
be identical with that claimed by the
plaintiff could be granted by the revenue
court. There can be no doubt that in all
cases contemplated under (a) and (b)
above, the jurisdiction shall vest in the
revenue court and not in the civil court."

22. Section 331 of the Act, 1950, if
read without Explanation, does not create
any
difficulty.
Difficulty
regarding
jurisdiction arises when Explanation, which
is an integral part of the section, is
interpreted and applied to the facts of a
particular case. It is well settled that the
object of Explanation to any statutory
provision is to understand the Act in the
light of the Explanation which ordinarily
does not enlarge scope of the original
section which it explains, but only makes
its meaning clear beyond dispute. The
496 INDIAN LAW REPORTS ALLAHABAD SERIES
Explanation makes the things still more
explicit and exists primarily removing
doubts and dispute which may crop up in
its absence. Section 331 of the Act along
with Explanation cannot be read so as to
oust the jurisdiction of civil court if the
primary relief on the same cause of action
can be granted by the civil court
notwithstanding the fact that consequential
relief or ancillary relief flowing out of the
main relief, the grant of which also
becomes necessary, can be granted by
revenue court alone.

23. In the case of a void document
said to have been executed by a plaintiff
during his disability or by some one
impersonating him or said to have been
executed by his predecessor whom he
succeeds, the relief of cancellation of the
document is more appropriate relief for
clearing the deck of title and burying deep
any dispute or controversy on its basis in
present or which may take place in future.
The document, after its cancellation, would
bear
such
an
endorsement
in
SubRegistrar's register and would be the basis
for correction of any paper and revenue
record. Section 31 of the Specific Relief
Act itself prescribes as to who can seek
relief of cancellation. A third person cannot
file a suit for cancellation of a void
document.

24. The controversy in issue was
extensively dealt with by a Three Judges
Full Bench of this Court in Ram Padarath
(supra). The said judgment has been
approved by Supreme Court in Smt.
Bismillah Vs. Janeshwar Prasad: AIR
1990 SC 540. This Court in Chandrika
(supra),
after
placing
reliance
upon
judgments in Ram Padarath (supra) and
Smt. Bismillah (supra), held that in view
of Section 31 of the Act, 1963, a suit for
cancellation of sale deed, void or voidable,
is a suit of civil nature and can be filed
before the Civil Court that has jurisdiction
to try it under Section 9 CPC. 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. 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.

RECONSIDERATION OF SHRI
RAM (SUPRA) AND KAMLA PRASAD
(SUPRA) BY SUPREME COURT

25. This Court may gainfully refer to
a somewhat recent decision of the Apex
Court in the case of Narendra Kumar
Mittal and others Vs. M/S Nupur
Housing Development Pvt. Ltd. and
another: 2019 (7) Supreme 157: 2019
(144) RD 785. The case before the Apex
Court had arisen out of a suit for
cancellation of sale deed dated 15.06.2006
in respect of an agricultural land filed
before the civil court. A question arose
before the Apex Court whether the decision
of the District Court and High Court
holding the civil suit as maintainable
despite bar of Section 331 of the Act of
1950 was correct. The Supreme Court, after
discussing
the
judgments
of
Ram
8 All. Mangoo Singh & Ors. Vs. Ram Autar
497
Padarath (supra), Shri Ram (supra) and
Kamla Prasad (supra), held that the suit
before the civil court was very much
maintainable. It distinguished the decisions
of the Supreme Court in the case of Shri
Ram (supra) and Kamla Prasad (supra)
in the following manner:-

"9. This Court in Shri Ram &
Anr. v. Ist Addl. Distt. Judge & Ors.,
(2001) 3 SCC 24 considered the question
relating to maintainability of a suit by a
recorded tenure holder in possession for
cancellation of the sale deed in favour of
the
respondents
executed
by
some
imposters. After noticing the aforesaid
judgment of the Full Bench of Allahabad
High Court, this Court held that where
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, it 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. However, if the plaintiff is required to
seek a declaration of title, he has to
approach the Revenue Court.

11. In Kamla Prasad & Ors. v.
Kishna Kant Pathak & Ors., (2007) 4 SCC
213 relied on by the learned counsel for the
appellant-second defendant, the plaintiff
was the co-owner and not a recorded tenure
holder. In the plaint, the plaintiff himself
had stated that he was not the sole owner of
the property and defendants 10 to 12 who
were proforma defendants had also right,
title and interest therein. He had also stated
that though his name had appeared in the
revenue record, defendants 10 to 12 also
had a right in the property. In this factual
background, this Court held that such a
question can be decided by the Revenue
Court in a suit instituted under Section 229B of the Act. It was also held that the
legality or otherwise of the insertion of
names of purchasers in records of rights
and deletion of the name of the plaintiff
from such record can only be tested by
Revenue Court, since names of the
purchasers had already been entered into
the
record.
This
judgment
has
no
application to the facts of the present case."

26.

The
Apex
Court,
while
distinguishing the earlier decisions, was of
the considered opinion that once a sale
deed is challenged, the plaintiff need not be
forced to seek a declaration of his title and,
hence, bar of Section 331 of the Act of
1950 would not be attracted. Further, in
view of the discussion made hereinabove, it
can be safely understood that Schedule-II
contained in U.P. Z.A. & L.R. Act, 1950
does
not
contemplate
any
suit
for
cancellation of a written instrument and the
power vests only in a civil court.

27. As regards the judgments cited
on behalf of the appellants, the Apex Court
in Shri Ram (supra) also placed reliance
upon Ram Padarath (supra) and its
approval in Smt. Bismillah (supra).
However, it was observed 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, he cannot be directed to file
a suit for cancellation in the revenue court
as he does not require declaration of his
title to the land but 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. It was observed that in that
498 INDIAN LAW REPORTS ALLAHABAD SERIES
case 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. In Kamla Prasad (supra),
the Supreme Court placed reliance upon
Shri Ram (supra). The Apex Court in,
Narendra Kumar Mittal Shri Ram
(supra) has already distinguished both the
said
judgments
holding
civil
suit
maintainable.

28. Dr. Ram Prakash Gupta (supra)
was a case where the suit was instituted
claiming a decree for declaration that a sale
deed executed in favour of the plaintiff was
valid. Another relief seeking declaration of
title on the basis of a Will was also claimed.
In that background of facts it was held that
the suit was barred by Section 331 of the Act
of 1950 as declaration of title can be granted
by the revenue court. Mohan Lal (supra)
was a case where a gift deed was challenged
by the plaintiff on the ground that executant
had no right to execute the same. The said
plaintiff was not recorded tenure holder of the
disputed agricultural land and placing
reliance upon judgment in Shri Ram
(supra), it was held that suit would lie before
the revenue court. Not only the facts of that
case are distinguishable, inasmuch as here the
instrument, i.e. the Will, has been challenged
on the ground of fraud, the said judgment is
prior in point of time when the Apex Court
re-considered
the
decisions
in
Ram
Padarath (supra), Shri Ram (supra) and
Kamla Prasad (supra) and held that suit for
cancellation of an instrument shall lie before
the civil court and Section 331 of the Act of
1950 would not create a bar against the suit.

29. Ishwaragouda (supra) was a
case arising out of State of Karnataka
where certain rights were claimed under the
provisions of Karnataka Land Reforms Act
and applications seeking declaration of
cultivation title were filed before the Land
Tribunal. Various proceedings were held
inter-se parties, such as determination by
Land Tribunal, the writ petition before the
High Court, demarcation proceedings, an
appeal before the Land Reforms Appellate
Tribunal
and,
thereafter,
a
suit
for
declaration of title and possession in
respect of the land before the civil court. In
that background of facts, an issue had
arisen as to whether the jurisdiction of the
civil court was ousted in view of Section
133 of the Karnataka Land Reforms Act to
decide whether an individual is a tenant or
the joint family is tenant. Under such
circumstances, after dealing with the
provisions of Section 133, the Supreme
Court found that the suit was barred as
declaration of title was within the exclusive
jurisdiction of the Land Tribunal. Not only
the facts of the said case but also nature of
the proceedings as well as provision of law
under the concerned Reforms Act were
entirely different from the facts of the
present
case
and
statutory
provision
applicable here in the State of U.P.
Therefore, with due respect, the said
judgment also has no application in the
present case and, thus, appellants cannot
get any help from it.

30. In order to test the appellants'
argument based upon non-recorded tenure
holder, in the instant case, status of
defendant no.1 being a recorded tenure
holder on the basis of the disputed Will has
to be analyzed. As noted above, the
disputed Will was executed in the year
1985 and the defendant no.1, i.e. the
beneficiary of the Will, just immediately
prior to institution of the suit in the year
1989, got her name mutated in the revenue
records. The challenge came on the 5th day
8 All. Mangoo Singh & Ors. Vs. Ram Autar
499
of obtaining certified coy of the Khatauni
Paper No.11-C. It was not a case where
since long prior to institution of the suit, the
beneficiary
was
enjoying
actual
and
physical possession as a recorded tenure
holder in its true sense but was a case
where the cause of action for institution of
suit arose in very close proximity of entry
in the revenue records on the basis of Will
which was not in the knowledge of the
plaintiff-respondent prior
to
obtaining
certified copy of the Khatauni that
contained reference of a mutation order of
the Assistant Tehsildar passed on the basis
of
Will.
Whatelse,
except
seeking
cancellation of Will, could be done by the
plaintiff under such circumstance. In the
opinion of the Court, the suit for
declaration of bhumidhari rights along with
his real brother as a joint successor from
their late father was not the necessity,
inasmuch
as
it
was
the
Will
and
consequential entry in the revenue records
which was standing against the plaintiff in
enjoyment of uninterrupted possession as a
co-bhumidhar over the agricultural land.
The plaintiff, therefore, was well within his
rights to seek cancellation of the Will on
available grounds, such as fraud, coercion
or undue influence, etc.

31. As discussed above, unless the
Will is cancelled by the civil court and, in
terms of sub-section (2) of Section 31 of
the Specific Relief Act, 1963, unless its
intimation is sent to the Sub-Registrar
concerned, the Will would remain alive for
all theoretical and practical purposes
causing injury to the person who would
have succeeded rights on the basis of
natural succession from his predecessor,
here, late Harswaroop. Thus cancellation of
the registered Will is, beyond doubt, the
main relief as cause of action for the suit
was the existence of Will itself. Mutation
order, on its basis, directing recording of
the name of the defendant therein is found
to be a consequential action based on Will.
So long as a registered instrument is not
cancelled 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).

32. It is also emphasized here that
there is no provision under the Act of 1950
empowering a revenue court to cancel an
instrument.