# Premwati & Ors v. Mihilal Sharma & Ors. 1760 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2025) 5 ILRA 1759
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-08
- **Case number:** Civil Misc. Review Application No. 27 of 2025
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/premwati-ors-v-mihilal-sharma-ors-1760-indian-law-reports-allahabad-series-53343
- **Pages:** 9

## Headnote

Civil Law - Civil Procedure Code, 1908 -
Sections 114 - Order XLVII Rule 1 -
Specific Relief Act, 1963 - Sections 31 &
34 - Review - Omission to answer one of
the substantial questions of law - Error
apparent on the face of record - Scope
and maintainability of suit for cancellation
of sale deed - Distinction between suits
under Sections 31 and 34 - Effect of
cancellation of sale deed on possession -
Held,
omission
to
answer
a
framed
substantial question of law constitutes an
error apparent warranting review - Suit
for cancellation of sale deed under Section
31 maintainable by non-executant where
instrument, if left outstanding, may cause
serious injury - Once sale deed adjudged
void,
its
legal
consequences
include
extinguishment
of
all
rights
flowing
therefrom, including possession. (Paras 4,
13, 14, 17 and 18)

HELD:
Notably, it was not a suit under Section 34 of
the Specific Relief Act, 1963 (for short 'the Act,
1963) claiming a declaratory decree and,
therefore, the proviso attached to Section 34
providing that no court shall make any such
declaration where the plaintiff, being able to
seek further relief than a mere declaration of
title, omits to do so, has no application in the
present case. That is to say, that the plaintiff
was not obliged to claim either a declaration or
any further relief of possession as the cause of
action for filing suit had arisen on account of
execution of an invalid sale deed in favour of the
defendants and interference caused by them in
the possession of the plaintiff. The suit was filed
under Section 31 of the Act, 1963 which, unlike
Section 34, does not contain any such proviso
requiring claim of any further relief. Meaning
thereby, once a sale deed is adjudged to be void
or voidable or is cancelled by the civil court, no
further reliefs would be required to be claimed
and
necessary
consequences
from
such
adjudication/cancellation would ensue. As far as
the submission of applicants that a nonexecutant to a deed shall have to file a suit for
declaration, the Court may observe that Section
31 applies for "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, to apply to get it adjudged void
or voidable. Section 31 does not speak of
executant only. (Para 13)

The
consequences
of
cancellation
stand
reflected from subsection (2) of Section 31 of
the Act, 1963 where an intimation regarding
cancellation is sent by the court concerned by
sending a copy of the decree to the officer in
whose
office
the
instrument
has
been
registered.
It,
therefore,
follows
that
cancellation made by the court qua a sale deed
or any other instrument is not only made but is
also "given effect to" and recorded in the public
records and the same would nullify any rights
conferred or entitlement made under the
void/voidable instrument. Therefore, once a sale
deed is cancelled/adjudged as null and

## Text

5 All. Premwati & Ors. Vs. Mihilal Sharma & Ors.
1759

20. From perusal of the judgment of
Hon'ble Supreme Court in the case of
Laxmamma (supra) it emerges that the
Hon'ble Supreme Court has held that where
the policy of insurance is issued by an
authorised insurer to cover a vehicle on
receipt of a cheque paid towards the premium
and the cheque gets dishonoured and before
the accident of the vehicle occurs, such
insurance company cancels the policy of
insurance and sends intimation thereof to the
owner, the insurance company's liability to
indemnify the third parties which that policy
covered ceases and the insurance company is
not
liable
to
satisfy
the
awards
of
compensation in respect thereof.

21. From perusal of the judgment of
Hon'ble Supreme Court in the case of
Laxmamma (supra) it clearly emerges that
in the instant case also the accident is said to
have occurred on 08.01.2016 and the policy
which had been issued on 28.11.2014 was
cancelled on 09.01.2015 and the intimation to
the insured was sent on 11.02.2015 i.e. the
policy having been cancelled and the holder
having been informed are all events which
took place prior to the accident consequently
there cannot be any occasion for an insurance
policy to have subsisted on the date of
accident i.e. 08.01.2016 and as such, the
insurance company cannot be held liable to
pay the amount at the first instance and to
recover from the owner.

22. However, this aspect of the matter
has not been considered by the learned
Tribunal while passing the impugned award
dated 21.10.2021.

23. Keeping in view the aforesaid
discussion, the appeal is allowed. The award
impugned dated 21.10.2021 as passed by the
learned Tribunal in M.A.C.P. No.54 of 2016
in re: Reetu Devi and others vs. Bus Owner
Kamaljeet Singh and others, is set-aside. The
matter is remitted to the learned Tribunal to
decide the matter afresh keeping in view the
observations made above.

24. Learned Tribunal shall endeavour to
decide the claim application within a period
of three months from the date a certified copy
of this order is placed on record without
granting unnecessary adjournments.

25. Needless to mention that due
opportunity of hearing shall be accorded to
all the parties before the learned Tribunal.

26. So far as the appeals filed by the
claimants praying for enhancement i.e.
F.A.F.O. Nos.125 and 126 of 2022 are
concerned, the same also stand disposed of
leaving it open to the claimants to raise any
argument
or
pleading
pertaining
to
enhancement of compensation which would
be considered in accordance with law by the
learned Tribunal.

27. The statutory deposit before this
Court as well as the amount deposited before
the learned Tribunal shall be refunded to the
insurance company within four weeks.

28. Let the trial court record be returned
as per procedure.
----------
(2025) 5 ILRA 1759
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.05.2025

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Civil Misc. Review Application No. 27 of 2025

Premwati & Ors. ...Applicants
Versus
Mihilal Sharma & Ors. ...Respondents
1760 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Applicants:
Sri Arpit Agarwal

Counsel for the Respondents:
Sri Bhanu Bhushan Jauhari

Civil Law - Civil Procedure Code, 1908 -
Sections 114 - Order XLVII Rule 1 -
Specific Relief Act, 1963 - Sections 31 &
34 - Review - Omission to answer one of
the substantial questions of law - Error
apparent on the face of record - Scope
and maintainability of suit for cancellation
of sale deed - Distinction between suits
under Sections 31 and 34 - Effect of
cancellation of sale deed on possession -
Held,
omission
to
answer
a
framed
substantial question of law constitutes an
error apparent warranting review - Suit
for cancellation of sale deed under Section
31 maintainable by non-executant where
instrument, if left outstanding, may cause
serious injury - Once sale deed adjudged
void,
its
legal
consequences
include
extinguishment
of
all
rights
flowing
therefrom, including possession. (Paras 4,
13, 14, 17 and 18)

HELD:
Notably, it was not a suit under Section 34 of
the Specific Relief Act, 1963 (for short 'the Act,
1963) claiming a declaratory decree and,
therefore, the proviso attached to Section 34
providing that no court shall make any such
declaration where the plaintiff, being able to
seek further relief than a mere declaration of
title, omits to do so, has no application in the
present case. That is to say, that the plaintiff
was not obliged to claim either a declaration or
any further relief of possession as the cause of
action for filing suit had arisen on account of
execution of an invalid sale deed in favour of the
defendants and interference caused by them in
the possession of the plaintiff. The suit was filed
under Section 31 of the Act, 1963 which, unlike
Section 34, does not contain any such proviso
requiring claim of any further relief. Meaning
thereby, once a sale deed is adjudged to be void
or voidable or is cancelled by the civil court, no
further reliefs would be required to be claimed
and
necessary
consequences
from
such
adjudication/cancellation would ensue. As far as
the submission of applicants that a nonexecutant to a deed shall have to file a suit for
declaration, the Court may observe that Section
31 applies for "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, to apply to get it adjudged void
or voidable. Section 31 does not speak of
executant only. (Para 13)

The
consequences
of
cancellation
stand
reflected from subsection (2) of Section 31 of
the Act, 1963 where an intimation regarding
cancellation is sent by the court concerned by
sending a copy of the decree to the officer in
whose
office
the
instrument
has
been
registered.
It,
therefore,
follows
that
cancellation made by the court qua a sale deed
or any other instrument is not only made but is
also "given effect to" and recorded in the public
records and the same would nullify any rights
conferred or entitlement made under the
void/voidable instrument. Therefore, once a sale
deed is cancelled/adjudged as null and void or
ineffective, possession, either obtained by the
said vendee at the strength of the sale deed or
retained by him or even an attempt to take
possession on that basis, would be of no legal
sanctity and has to be ignored and set at
naught by a court of law. There can neither be a
logical justification nor does it appeal to reason
that an instrument stands cancelled by a court
of law but beneficiary of the instrument would
continue to enjoy benefits flowing therefrom
teasing the courts of law by making a mockery
of the system that is designed and made for
delivering justice and not to leave a justiceseeker in a situation where he would always
remain a loser despite winning the legal battle.
(Para 14)

In view of above discussion, the question No.
(e) is answered in the manner that even if the
plaintiff could not establish any prior agreement
to sell in his favour, there was certainly a sale
deed executed in his favour prior in point of
time, i.e. on 23.11.1981 as against the sale
deed executed in favour of the appellants
subsequent in point of time, i.e. on 25.11.1981.
The first sale deed having been found to be
validly executed and duly proved, finding on
possession recorded by the trial court would be
5 All. Premwati & Ors. Vs. Mihilal Sharma & Ors.
1761
held to be contrary to evidence on record and
perverse and even if some St.ment might have
been made by any witness as regards
defendant's possession, the same would be
inconsequential as per law and also looking
at the nature of suit that included a prayer
for
decree
for
permanent
prohibitory
injunction and cause of action arising from
the
situation
where
interference
in
possession was being made based upon a
sale deed that has ultimately been found
ineffective. The record reflects that, on the
one hand, sale deed in favour of respondents
contained a recital regarding delivery of
possession to them, on the other hand
revenue entries read in one way or the other.
Further,
witness
speaks
something
as
regards
possession,
whereas
execution
application filed in the year 1999 talks of
forcible possession taken by the appellants
on 05.07.1998 though suit was filed in 1982
alleging cause of action arising out of
interference in plaintiff's possession. In
these circumstances, nonsuiting the plaintiff
on the ground that relief of possession was
not claimed, though it was neither factual
nor a legal necessity, would be wholly unjust
and unfair to a plaintiff who succeeded to
establish title in his favour arising out of
cancellation of sale deed of defendants.
Therefore, the question No. (e) is answered
in favour of the respondents and against the
applicants. (Para 17)

Consequently,
while
allowing
the
review
application in part to the extent of earlier
omission to answer question No. (e), now
having been answered in favour of the
respondents, there would be no change in the
final decision rendered by this Court, i.e.,
dismissal of Second Appeal No. 2565 of 1984
shall remain intact. (Para 18)

Review application partly allowed. (E-14)

List of Cases cited:

1. Deccan Paper Mills Co. Ltd. Vs Regency
Mahavir Properties & ors., (2021) 4 SCC 786

2. Suhrid Singh Vs Randhir Singh, (2010) 12
SCC 112
(Delivered by Hon'ble Kshitij Shailendra, J.)

1. Heard Shri Arpit Agarwal, learned
counsel for the applicants in review and
defendant-appellants in decided second
appeal and Shri Bhanu Bhushan Jauhari,
learned counsel for the opposite parties in
review and plaintiff/ respondents decided
second appeal.

THE
JUDGMENT/
ORDER
UNDER REVIEW

2. The instant application has been
filed by defendant-appellants under Order
47 Rule 1 read with Section 114 CPC
seeking review of my final judgment and
order dated 16.12.2024, whereby I had
dismissed Second Appeal No. 2565 of 1984
(Premwati and others Vs. Mihilal Sharma
and another) on merits.

SUBMISSIONS
OF
APPLICANTS IN REVIEW

3.
Learned
counsel
for
the
applicants submits that there is an error
apparent on the face of record inasmuch as
this Court, in 6th paragraph of the
judgment
dated
16.12.2024,
though
referred 5 substantial questions of law
contained in the admission order dated
19.10.1984, being question Nos. (a) to (e),
while this Court answered questions No.
(a), (b), (c) and (d), it omitted to answer
question No. (e) which relates to possession
aspect and, therefore, the judgment is
required
to
be
reviewed.
Elaborate
submissions have been made by both sides
with reference to the said question No. (e)
and it is also urged by the applicants'
counsel that arguments were advanced
during the course of hearing of the appeal
also, however, this Court has not noted the
same in the judgment.
1762 INDIAN LAW REPORTS ALLAHABAD SERIES
4. From perusal of the judgment
under review, this Court finds substance in
the submissions made and finds an error
apparent on the face of the record to the
effect that question No. (e) was omitted
from being answered by me. Therefore, this
Court is inclined to review its judgment by
answering the left out question No. (e). For
the sake of convenience, the said question
is reproduced as under:-

 "(e) Whether in view of the
defendants' undisputed possession and the
plaintiff's failure to prove the sale deed and
prior agreement to sell in his favour the suit
could be decreed in his favour ?"

5.
Learned
counsel
for
the
applicants submits that once the defendantappellants were in possession over the
disputed property and their names were
also recorded at the time of institution of
the suit, the suit for cancellation of sale
deed without claiming relief of possession
was not maintainable. Submission is that
even in execution application, the decree
holder
has
prayed
for
delivery
of
possession and, therefore, the decree
holder, being out of possession since
beginning, mere cancellation of sale deed
would not suffice and, hence, the suit was
bound to fail on this ground alone. It is
further urged that when the suit was
initially dismissed and civil appeal was
filed by the plaintiffs before the District
Court, the finding recorded by the trial
court in favour of the defendants as regards
actual and physical possession, was not
challenged nor was the said finding set
aside by the first appellate court and,
therefore, the said finding stands against
the respondents even today and, hence, the
suit is bound to fail. It is further urged that
subsequent suit claiming possession would
be barred by Order 2 Rule 2 CPC and,
therefore,
neither
in
the
present
proceedings
nor
in
any
subsequent
proceedings the respondents can get a relief
of possession. Further submission is that
though this Court took note of the judgment
of Hon'ble Supreme Court in Deccan
Paper Mills Co. Ltd. Vs. Regency
Mahavir Properties and others: (2021) 4
SCC 786, the same was not dealt with and,
hence, omission to consider the ratio laid
down in the said authority also falls within
the meaning and import of "an error
apparent on the face of the record" and,
when applied, the said judgment would be
read in favour of the appellants and,
consequently, the appeal would be liable to
be allowed and not dismissed.

SUBMISSIONS OF OPPOSITE
PARTIES IN REVIEW

6. Per contra, learned counsel for
the respondents submits that inter se
dispute between the parties had arisen out
of two sale deeds, both executed and
registered in different points of time and
possession aspect is dependent upon the
rights conferred under the sale deeds and,
once this Court has found that the sale deed
by Shyam Deo Sharma in favour of the
respondents was validly executed and the
one in favour of the appellants was without
title, all consequences will follow and one
of which is that the respondents would be
entitled to get, secure and protect their
possession. With regard to the execution
application, it is urged that in 7th paragraph
of the same, specific averment of the
decree holder is that on 05.07.1998, the
appellants illegally took forcible possession
over the agricultural field and threatened
the respondents to life. It is, therefore,
urged that illegal possession obtained by
the appellants would not confer premium
on them and once sale deed in favour of the
5 All. Premwati & Ors. Vs. Mihilal Sharma & Ors.
1763
appellants has been found to be without any
right, the respondents are entitled for
possession and to maintain the same. As
regards challenge to the finding on
possession, it is urged that though the trial
court, while deciding issue No. 2, found the
defendants in possession over the property,
the entire judgment and decree of the trial
court was challenged by way of appeal
before the District Court with specific
averment that the findings were perverse
and when the first appellate court set aside
all the findings of the trial court, the same
would imply that finding on possession has
also been set aside and, consequently, there
is no force in the submission made by the
applicants.

DISCUSSION AND ANALYSIS

7. Having heard learned counsel for
the parties, I find that both the contesting
parties to the lis had claimed inter-se rights,
title and possession at the strength of
respective sale deeds executed by same
vendor Shyam Deo Sharma in their favour.
The trial court dismissed the suit, however,
the first appellate court allowed the civil
appeal and decreed the suit. The said decree
has been upheld by this Court by interpreting
Section 47 of the Registration Act, 1908 and
discussing all other relevant aspects of the
matter and the sale deed dated 23.11.1981
executed in favour of the respondents, being
prior in point of time, has been found to be
proved as duly executed.

8. As far as the challenge to the
findings of the trial court is concerned, the
first appellate court has, at internal page 6
of its judgment, recorded as under:-

 "On being aggrieved with the
decision of the learned Munsif, the present
appeal is filed by the plaintiff on the
grounds that the judgment and decree of
the lower court is against the law and
facts on record and the findings of the
learned Munsif are perverse and against
the evidence on record ......."

9. It is, therefore, clear that the
plaintiffs raised a specific challenge to the
entire judgment and decree before the first
appellate court and also to the findings
recorded by the learned Munsif terming the
same to be perverse. Therefore, it cannot be
said that the finding on possession was not
or would not be deemed to have been
challenged by them. A first appeal is an
appeal against the decree that follows the
judgment and in view of the language
incorporated in sections 2(2), 2(9) and 96
C.P.C., the argument advanced by the
applicants in this regard is found to be
hyper-technical and not sound.

10. Further, the concluding part of
the first appellate court's judgment, at
internal page 18 thereof, records as under:-

 "The witness Shri Krishna is also
a witness of the above two documents has
been the close neighbour of the defendant
Prem Shanker Sharma. Such statements
have been revealed that Shyam Deo being
closely
related
to
the
defendantrespondents no. 2 to 4 obliged them by
executing such documents and that his nonappearance
has
become
of
much
importance and compels me to conclude
that he has no courage to face the plaintiff
and that he executed the documents in
favour
of
the
defendant-respondents
illegally which cannot be given any effect.
In view of the above discussion, I find
that the findings of the learned Munsif
are not sustainable as such the appeal
deserves to be allowed and the suit be
decreed."
1764 INDIAN LAW REPORTS ALLAHABAD SERIES
11. The above-referred portion of
the first appellate court's judgment reflects
that the sale deed executed in favour of the
defendants was found to be without any
effect and the findings recorded by learned
Munsif as not sustainable. Therefore, this
Court is not inclined to accept the
submission of appellants that finding on
possession was not challenged or that was
not set aside.

NATURE OF SUIT:

12. Now coming to the reliefs
claimed in the suit, it was filed claiming a
decree for cancellation of registered sale
deed as well as for permanent prohibitory
injunction on the allegation that the
defendants
were
trying
to
cause
interference in the possession of the
plaintiff-respondents. The title at the
strength of sale deed dated 23.11.1981 was
alleged by the plaintiff in himself.

13. Notably, it was not a suit under
Section 34 of the Specific Relief Act, 1963
(for short 'the Act, 1963) claiming a
declaratory decree and, therefore, the
proviso attached to Section 34 providing
that no court shall make any such
declaration where the plaintiff, being able
to seek further relief than a mere
declaration of title, omits to do so, has no
application in the present case. That is to
say, that the plaintiff was not obliged to
claim either a declaration or any further
relief of possession as the cause of action
for filing suit had arisen on account of
execution of an invalid sale deed in favour
of the defendants and interference caused
by them in the possession of the plaintiff.
The suit was filed under Section 31 of the
Act, 1963 which, unlike Section 34, does
not contain any such proviso requiring
claim of any further relief. Meaning
thereby, once a sale deed is adjudged to be
void or voidable or is cancelled by the civil
court, no further reliefs would be required
to be claimed and necessary consequences
from such adjudication/cancellation would
ensue. As far as the submission of
applicants that a non-executant to a deed
shall have to file a suit for declaration, the
Court may observe that Section 31 applies
for "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, to apply to get it
adjudged void or voidable. Section 31 does
not speak of executant only.

CONSEQUENCES
OF
CANCELLATION OF A SALE DEED:

14.
The
consequences
of
cancellation stand reflected from subsection (2) of Section 31 of the Act, 1963
where an intimation regarding cancellation
is sent by the court concerned by sending a
copy of the decree to the officer in whose
office the instrument has been registered.
It, therefore, follows that cancellation made
by the court qua a sale deed or any other
instrument is not only made but is also
"given effect to" and recorded in the
public records and the same would nullify
any rights conferred or entitlement made
under
the
void/voidable
instrument.
Therefore,
once
a
sale
deed
is
cancelled/adjudged as null and void or
ineffective, possession, either obtained by
the said vendee at the strength of the sale
deed or retained by him or even an attempt
to take possession on that basis, would be
of no legal sanctity and has to be ignored
and set at naught by a court of law. There
can neither be a logical justification nor
does it appeal to reason that an instrument
stands cancelled by a court of law but
5 All. Premwati & Ors. Vs. Mihilal Sharma & Ors.
1765
beneficiary
of
the
instrument
would
continue
to
enjoy
benefits
flowing
therefrom teasing the courts of law by
making a mockery of the system that is
designed and made for delivering justice
and not to leave a justice-seeker in a
situation where he would always remain a
loser despite winning the legal battle.

QUA DECCAN PAPER MILLS
(SUPRA):

15. As far as the judgment in
Deccan Paper Mills (supra) is concerned,
the same, alongwith other judgments, was
referred in paragraph no. 22 of my
judgment dated 16.12.2024 with reference
to maintainability of suit under Section 31
of the Act, 1963 and the plaintiff not being
executants to the sale deed. In paragraph
no. 23 of my judgment, I declined to accept
the
submission
as
regards
non-
maintainability of the suit for multiple
reasons stated therein. For a ready
reference,
paragraph
no. 23 of
my
judgment is reproduced herein under:-

 "23. The Court is not inclined to
accept the said arguments for multiple
reasons. First, that no substantial question of
law was framed in this regard and even if an
oral prayer was made to frame a question of
law to this effect, by virtue of provisions of
Rule 2 of Order 42 read with proviso attached
to sub-section (5) of Section 100 CPC, it is
not open to the appellant to urge any other
ground in the appeal without leave of the
Court
given
in
accordance
with
the
provisions of Section 100 and such a leave
can be granted for reasons to be recorded
provided the Court is satisfied that the case
involves such question. In the instant case,
non-maintainability of the suit was never an
issue or point for determination before the
two courts below nor has such ground or
question been raised in the memo of appeal
or by any application. Therefore, the Court
cannot hear the appeal on this new question
which does not emerge from the record and is
not satisfied that the case involves such
question. Even otherwise, Section 31 applies
for 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, to apply to get it adjudged void
or voidable. Section 31 does not speak of
executant only and declaration under Section
34 in absence of a suit for getting the sale
deed cancelled or adjudged void, would not
lie. As far as the judgment in Suhrid Singh
(supra) is concerned, the same had arisen out
of State of Punjab dealing with the court fees
issue and, with due regards, the same is not
applicable in the facts of the case, particularly
when no foundation is there to entertain the
challenge made to the suit. Similarly,
judgment in Anathula Sudhakar (supra)
deals with a situation where claim for
injunction as a consequential relief in a suit
for
declaration
and/or
possession
was
examined. The authority is not on the point of
Section 31 of the Specific Relief Act. The
judgment in Shri Ram (supra) is on the
issue as to whether a non-recorded tenure
holder can sue for cancellation of a sale deed
on the ground of fraud or impersonation. The
same is clearly distinguishable in the facts of
the present case where the question involved
is regarding preference to be given to one of
two sale deeds. As regards proof of sale deed,
oral testimony of PW-1 is sufficient to hold
that the sale deed was duly executed and no
infirmity is found in the statement."

16. The Court has carefully gone
through the judgment in Deccan Paper
Mills (supra) and it finds that the
observations in paragraph no. 25 of the
judgment to the effect that an executant to
1766 INDIAN LAW REPORTS ALLAHABAD SERIES
the document can approach the court under
Section 31 but a non-executant must
approach under Section 34 of the Act, 1963
were made referring an earlier decision of
Hon'ble Supreme Court in Suhrid Singh
Vs. Randhir Singh: (2010) 12 SCC 112
giving illustration of two real brothers
being owners but one executing the sale
deed and then both of them seeking to
avoid the same. Suhrid Singh (supra) had
arisen out of a dispute regarding payment
of court fees and the discussion was in
relation to the law applicable in the State of
Punjab.
The
observations
made
in
paragraph no. 25 in Deccan Paper Mills
(supra) were in relation to ratio laid down
in Suhrid Singh (supra) discussing Article
17 (iii) of the Second Schedule of the Court
Fees Act and other requirements of payment
or non-payment of ad valorem court fees.
Further, the illustration given did not deal with
a case where transferee from a lawful title
holder had filed the suit. Entire discussion was
made in a different context not arising from a
situation where the same person with valid and
undisputed title had executed two sale deeds,
one after another in quick succession in time
what has been done in the present case by the
vendor Shyam Deo Sharma in favour of two
purchasers. Therefore, the judgment in
Deccan Paper Mills (supra), with due
respect, has no direct application in the given
facts of the present case, inasmuch as the
plaintiffs had sought to establish voidness of
the sale deed against the executant as well as
the second transferee (appellants) terming the
sale as having been made without any right
after 1st execution made by the same vendor
in plaintiff's favour and, therefore, the suit for
cancellation of sale deed was maintainable.

CONCLUSION

17. In view of above discussion,
the question No. (e) is answered in the
manner that even if the plaintiff could not
establish any prior agreement to sell in his
favour, there was certainly a sale deed
executed in his favour prior in point of
time, i.e. on 23.11.1981 as against the sale
deed executed in favour of the appellants
subsequent in point of time, i.e. on
25.11.1981. The first sale deed having been
found to be validly executed and duly
proved, finding on possession recorded by
the trial court would be held to be contrary
to evidence on record and perverse and
even if some statement might have been
made by any witness as regards defendant's
possession,
the
same
would
be
inconsequential as per law and also looking
at the nature of suit that included a prayer
for decree for permanent prohibitory
injunction and cause of action arising from
the
situation
where
interference
in
possession was being made based upon a
sale deed that has ultimately been found
ineffective. The record reflects that, on the
one
hand,
sale
deed
in
favour
of
respondents contained a recital regarding
delivery of possession to them, on the other
hand revenue entries read in one way or the
other. Further, witness speaks something as
regards possession, whereas execution
application filed in the year 1999 talks of
forcible possession taken by the appellants
on 05.07.1998 though suit was filed in
1982 alleging cause of action arising out of
interference in plaintiff's possession. In
these
circumstances,
non-suiting
the
plaintiff on the ground that relief of
possession was not claimed, though it was
neither factual nor a legal necessity, would
be wholly unjust and unfair to a plaintiff
who succeeded to establish title in his
favour arising out of cancellation of sale
deed
of
defendants.
Therefore,
the
question No. (e) is answered in favour of
the
respondents
and
against
the
applicants.
5 All. Jugeshwar Prasad Vs. Hanuman Prasad
1767
18. Consequently, while allowing
the review application in part to the
extent of earlier omission to answer
question No. (e), now having been
answered in favour of the respondents,
there would be no change in the final
decision rendered by this Court, i.e.,
dismissal of Second Appeal No. 2565 of
1984 shall remain intact.

19. Since, despite dismissal of
Second Appeal in December 2024, the
execution proceedings have not been
concluded for about five months, may be
on account of pendency of this review
application without there being any interim
order and, considering the fact that the suit
was instituted 43 years ago in the year
1982,
it
is
directed
that
execution
proceedings will be finalized by the court
concerned
positively
on
or
before
15.07.2025 and without issuing any further
notices to any party, as both sides have
hotly contested the Second Appeal as well
as this review application by referring to
execution proceedings too and have full
knowledge
of
the
same
and
due
representation therein.
----------
(2025) 5 ILRA 1767
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.05.2025

BEFORE

THE HON'BLE JASPREET SINGH, J.

Civil Revision No. 80 of 2011

Jugeshwar Prasad ...Revisionist
Versus
Hanuman Prasad ...Opp. Party

Counsel for the Revisionist:
Aftab Ahmad, Aftab Ahmad

Counsel for the Opp. Party:
Shyam Mohan, Ankit Mishra, Mohammad
Raza Khan , Mohd. Ali

Civil Law -The Provincial Small Cause
Court Act 1887-Section 23 & 25---The
Court of Small Causes is not denuded from
considering
the
issue
of
title
which
incidentally arises in a suit before it. While
considering an application under section 23
PSCC, the SCC court is not obligated to
mechanically refer the suit to be decided by
a regular court. In all cases where the issue
of title is raised, the Court is required to
consider the case and only if it finds that
intricate questions of title are involved can it
refer and return the plaint to be presented
before
the
regular
court.
The
power
conferred under section 23 is discretionary in
nature but even discretion which is to be
exercised, should be within the four corners
of law--- A suit for arrears of rent and
ejectment is seen on the parameters of
subsistence of relationship between the
parties as that of landlord and tenant. The
question of title is never to be decided by
the SCC Court and in case if it is incidentally
raised by a party then the Court is
competent to decide the same, prima facie,
for the purposes of adjudicating a SCC Suit
and in any case any such incidental finding is
always subject to the decision of a suit filed
and decided by regular courts.

Petition dismissed. (E-15)

List of the cases referred-:

1. 2019 (12) ADJ 281 (LB), Zubair Ahmad Khan
Vs Court of Judge, Small Causes Court/A.D.J.,
Court No.4, Lakhimpur Kheri and other

2. Shamim Akhtar Vs Iqbal Ahmad & anr.2000
(2) ARC S C page 770

3. Budhu Mal Vs Mahabir Prasad & ors. AIR
1987 SC page 1772

4. Smt. Munni Devi & ors. Vs Xth Addl. District &
Sessions Judge, Agara & ors. 1990 (16) ALR
page 555,