# Sanjay Sharma & Ors v. Kashi Prasad & Ors

- **Citation:** (2016) 3 ILRA 657
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-02-16
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjay-sharma-ors-v-kashi-prasad-ors-43502
- **Pages:** 7

## Headnote

[Property Law -- Jurisdiction -- Civil Court vs. Revenue Court]{.underline} -- Specific Relief Act, 1963,
Sections 31; U.P. Zamindari Abolition and Land Reforms Act, 1950, Sections 331 and Schedule II;
Consolidation of Holdings Act, 1953, Sections 49, 52; U.P. Consolidation Rules, 1954, Rule 109 -- Suit
for cancellation of void document -- Civil jurisdiction -- Extent of.
658 INDIAN LAW REPORTS ALLAHABAD SERIES
Held: (Para 8, 9, 11) The suit for cancellation of a void or voidable document under Section 31 of the
Specific Relief Act, 1963, being civil in nature, is cognizable by civil court. A recorded tenure-holder
having prima facie title in his favour can claim cancellation of a void document without being required
to approach the revenue court. The determination of jurisdiction hinges on the real and substantial
cause of action, not the language used in the plaint or relief claimed. When a recorded tenure-holder
seeks cancellation of a void document affecting his title, the civil court would have jurisdiction even if
issues pertaining to tenancy rights are collaterally involved. (Para 10)

Findings recorded by a consolidation court attain finality under Section 52 of the Consolidation of
Holdings Act, 1953, and cannot be questioned in civil or revenue court except for clerical corrections.
Such records could not be corrected by revenue authorities under the Land Revenue Act as long as
the void document subsists without being declared void by a competent court. The jurisdiction of the
civil court is not ousted merely because relief pertaining to agricultural land is involved; only when a
relief enumerated in Schedule II to the 1950 Act forms the real cause of action does the revenue court
acquire exclusive jurisdiction.

Petition dismissed.

Case Law discussed:
Ram Padarath and others v. Second Additional District Judge and others (1989 (1) AWC 290
(FB));
Sri Ram v. Ist Additional District Judge (2001 (3) SCC 24);
Kamla Prasad and others v. Krishna Kant Pathak and others (2007 (4) SCC 213);
Ram Awalamb and others v. Jata Shanker and others (AIR 1969 ALL 526).

## Text

3 All. Sanjay Sharma & Ors. Vs Kashi Prasad & Ors.
657
adjudicate whether the case shall ultimately end in conviction or not. Only a prima facie
satisfaction of the court about the existence of sufficient ground to proceed in the matter is
required, while summoning a person to face trial.

13. In the case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC
736 the Hon'ble Apex Court had held as follows:

"The magistrate has been given an undoubted discretion in the matter and the
discretion has to be judicially exercised by him. Once the magistrate has exercised his
discretion it is not for the High Court, or even this Court, to substitute its own discretion for
that of the magistrate or to examine the case on merits with a view to find out whether or not
the allegations in the complaint, if proved, would ultimately end in conviction of the
accused. These considerations, in our opinion, are totally foreign to the scope and ambit of
an inquiry under Section 202 of the Code of Criminal Procedure which culminates into an
order under Section 204 of the Code."

14. In wake of above discussion, the Court does not find any justification to interfere in
the matter and to quash the complaint or the summoning order or the proceedings against
the petitioners. Hence, prayer for quashing the impugned order is refused.

15. Accordingly, the writ petition stands dismissed with no order as to cost.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.02.2016

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Matter Under Article 227 No.- 904 of 2016

Sanjay Sharma & Ors. ...Applicants
Versus
Kashi Prasad & Ors. ...Opposite Parties

Counsel for the Applicants:
Hanuman Prasad Dube

Counsel for the Opposite Parties:
Ajay Kumar Srivastava, Kunal Ravi Singh, Manjari Singh

[Property Law -- Jurisdiction -- Civil Court vs. Revenue Court]{.underline} -- Specific Relief Act, 1963,
Sections 31; U.P. Zamindari Abolition and Land Reforms Act, 1950, Sections 331 and Schedule II;
Consolidation of Holdings Act, 1953, Sections 49, 52; U.P. Consolidation Rules, 1954, Rule 109 -- Suit
for cancellation of void document -- Civil jurisdiction -- Extent of.
658 INDIAN LAW REPORTS ALLAHABAD SERIES
Held: (Para 8, 9, 11) The suit for cancellation of a void or voidable document under Section 31 of the
Specific Relief Act, 1963, being civil in nature, is cognizable by civil court. A recorded tenure-holder
having prima facie title in his favour can claim cancellation of a void document without being required
to approach the revenue court. The determination of jurisdiction hinges on the real and substantial
cause of action, not the language used in the plaint or relief claimed. When a recorded tenure-holder
seeks cancellation of a void document affecting his title, the civil court would have jurisdiction even if
issues pertaining to tenancy rights are collaterally involved. (Para 10)

Findings recorded by a consolidation court attain finality under Section 52 of the Consolidation of
Holdings Act, 1953, and cannot be questioned in civil or revenue court except for clerical corrections.
Such records could not be corrected by revenue authorities under the Land Revenue Act as long as
the void document subsists without being declared void by a competent court. The jurisdiction of the
civil court is not ousted merely because relief pertaining to agricultural land is involved; only when a
relief enumerated in Schedule II to the 1950 Act forms the real cause of action does the revenue court
acquire exclusive jurisdiction.

Petition dismissed.

Case Law discussed:
Ram Padarath and others v. Second Additional District Judge and others (1989 (1) AWC 290
(FB));
Sri Ram v. Ist Additional District Judge (2001 (3) SCC 24);
Kamla Prasad and others v. Krishna Kant Pathak and others (2007 (4) SCC 213);
Ram Awalamb and others v. Jata Shanker and others (AIR 1969 ALL 526).

(Delivered by Hon'ble Suneet Kumar, J.)

1. The applicants are assailing the orders passed by the courts below arising from
Original Suit No. 717 of 2012 (Kashi Prasad and another vs. Sanjay Sharma and others)
whereby, the issue pertaining to jurisdiction was decided in favour of the
respondent/plaintiff and against the applicant/defendants holding that the civil court would
have jurisdiction and not the revenue court. The facts in brief is that plot no. 187 admeasuring 1.67/8 acres situated in village Mahimapur, District Varanasi, was in the joint
tenure holder of the plaintiff/respondent and the defendant/respondents, each having 50%
share in the property. Both plaintiff/respondent, as well as, defendant/respondents were
entered as joint tenure holder in the revenue records.

2. Village Mahimapur was brought under consolidation proceedings, upon conclusion
of the proceedings, the competent authority i.e. Consolidation Officer recorded
plaintiff/respondent, and, defendant/respondents as joint tenure holders each having 50%
share, which attained finality upon publication of notification on 1 September 1988 under
Section 52 of the Consolidation of Holdings Act 19531. The applicants purchased the plot
in dispute from the defendant/respondents, namely Ghurey Lal and Krishna Prasad through
a registered sale deed dated 8 August 1996 to the extent of their share. The competent
authority, thereafter on 1 October 1996 mutated the name of the applicants in the revenue
record by expunging the name of the vendors viz Ghurey Lal and Krishna Prasad. The
applicants since then are in possession of the suit property to the extent of their shares.
3 All. Sanjay Sharma & Ors. Vs Kashi Prasad & Ors.
659

3. After a lapse of 16 years, the plaintiff/respondent instituted the present suit on 15
May 2012 before the Civil Judge (Senior Division), Varanasi to declare the sale-deed dated
8 August 1996, null and void. The applicants contested by filing written statement, interalia,
raising the plea of maintainability of the suit before the civil court in view of Section 331 of
U.P. Zamindari Abolition and Land Reforms Act, 19502. Accordingly, issue no. 10 was
framed by the trial court. The issue was decided in the negative holding that the suit was
not barred by Section 331 and would be maintainable before the civil court. Aggrieved, the
applicants preferred a revision before the District Judge, Varanasi, the revisional court
relying upon the documents filed by the plaintiff/respondent being Akar Patra-23, issued
during consolidation proceeding and order dated 17 May 2006 passed by the Consolidation
Officer on an application filed by the plaintiff/respondent purporting to be under Rule 109
of U.P. Consolidation Rules 1954, whereby, the names of the defendant/respondents Ghurey
Lal and Krishna Prasad was ordered to be expunged from the revenue records and the
names of plaintiff/respondents were ordered to be entered. The revisional court affirmed the
order of the trial court.

4. Submission of the learned Senior Counsel is that the order passed by the
Consolidation Officer to expunge the name of predecessor in interest of the applicants
under Rule 109 was erroneous since the competent revenue authority under the Land
Revenue Act 1901, had directed to record the name of the applicants in the revenue record,
further, it is sought to be urged that the Court below had to decide the question of
jurisdiction which was to be determined on the assertions made in the plaint and not on the
documents that were filed by the plaintiff/respondents at the revisional stage. The land in
question admittedly is an agricultural land and the suit was instituted for declaring the saledeed null and void. But primarily the question of declaration of tenancy right in respect of
the share of the applicant is involved, which therefore, in view of Section 331 can be
granted by the revenue court alone.

5. The trial court held that the revenue court would have jurisdiction to declare a
registered document null and void, the matter pertaining to entries of the name of Ghurey
Lal and Krishna Prasad recorded in revenue record in respect of the suit property has not
been decided finally, therefore, the suit before the civil court would be maintainable.

6. The revisional court noted in the impugned order that the disputed land was
purchased in the name of Hubraji and during consolidation proceedings the land came to be
recorded in her name, however, upon her demise the name of legal heirs
(plaintiff/respondents) was entered in the revenue record but, the name of Ghurey Lal and
Krishna Prasad was also entered as co-owners due to some error which was subsequently
corrected by Consolidation Officer by order dated 17 May 2006. The legal heirs of Hubraji
instituted the suit for declaration to declare the sale deed null and void for the reason that as
long as the sale-deed would exist the name of the applicants entered in the revenue record
cannot be corrected. The revisional court opined that declaration of right and title of
Hubraji and thereafter, her legal heirs is not involved in the present suit. After consolidation
proceedings the names of Ghurey Lal and Krishna Prasad was directed to be expunged,
660 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore, the plaintiff/respondents are not required to seek declaration of their right and
title.

7. Per Contra, Sri Kunal Ravi Singh, learned counsel appearing for the
respondent/plaintiffs would submit that the impugned orders are lawful and legal, in the
facts of the case declaration of title primarily is not involved, the main purpose is to get the
sale-deed declared void.

8. Rival submissions fall for consideration.

9. Section 31 of the Specific Relief Act, 19633 makes specific provision for
cancellation of void, as well as, voidable instrument. 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.

10. 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 passing a 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 passed by a particular
court 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 it would obviously contain the note regarding its cancellation by a court of law.

11. 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 its cancellation. But a void document is not required to be cancelled
necessarily. Its legal effect if any can be put to an end to 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.

12. 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.

13. 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, more particularly for a
substantial period may cause injury to the person whose right are affected by it and place
his right and title over any property in doubt and dispute and may create complications and
give rise to unnecessary litigations.
3 All. Sanjay Sharma & Ors. Vs Kashi Prasad & Ors.
661

14. Reasonable apprehension of serious injury from a void document provides a cause
of action to a person to approach the competent court of law, that is, civil court for its
cancellation.

15. But this entitlement goes into background or becomes restricted if because of
certain statutory constraints, restraints and prescription, some other relief can be claimed or
is to be granted by adjudging the document or instrument void and thereby declaring it to
be legally ineffective and of no consequence.

16. Such a situation arises when more than one reliefs are claimed in any action
pertaining to agricultural land. If the relief claimed or the real and the main relief is one
which is mentioned in Schedule II to Act 1950, the same can be granted by the revenue
court only and the jurisdiction of civil court to grant such a relief or reliefs is ousted by
Section 331 of the said Act.

17. The law relating to right, title and interest over the agricultural land is contained in
Act 1950, which is a complete Code by itself.

18. 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. Section 331 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".

19. Section 331 of the Act which specifically ousts the jurisdiction of Civil Court in
respect of suits etc., enumerated in Schedule II makes the phrase 'cause of action' as pivotal
point for determining the jurisdiction of civil or revenue court.

20. 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 and not the language used
which may even have been so used to oust the jurisdiction of a particular court.

21. The expression 'any relief' used in Section 331 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.

22. 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.
662 INDIAN LAW REPORTS ALLAHABAD SERIES

23. In Ram Padarath and others vs. Second Additional District Judge and others4
upon considering earlier judgments this Court held (para 41):

Suit or action for cancellation of void document will generally lie in the civil court
and a party cannot be deprived of his right getting his relief permissible under law except
when a declaration of right or status of a tenure-holder is necessarily needed in which event
relief for cancellation will be surplusage and redundant.....A recorded tenure-holder having
prima facie title in his favour can hardly be directed to approach the revenue court in
respect of seeking relief for cancellation of a void document which made him to approach
the court of law and in such case he can also claim ancillary relief even though the same
can be granted by the revenue court.

24. In Sri Ram vs. Ist ADJ Surpeme Court held that where a recorded tenure holder
having a title and in possession of property files a suit in Civil Court for cancellation of sale
deed obtained by fraud or impersonation could not be directed to institute such suit for
declaration in Revenue Court, the 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.

25. Learned counsel for the applicant placed reliance on a decision rendered by the
Supreme Court in Kamla Prasad and others vs. Kishna Kant Pathak and others6. In the
facts of that case plaintiff instituted a suit before civil court seeking cancellation of sale
deeds executed by him in favour of the defendant purchasers. The Court, on the question of
jurisdiction held that Revenue Court would have jurisdiction for the reason that mutation on
the basis of the impugned sale deed had been effected by the Revenue Authority, name of
the plaintiff had been deleted from revenue records and the names of contesting defendants
had already been entered in his place. Observing that "title follows possession" and it would
be presumed that the plaintiff was not in possession over the disputed land. Question of
possession of agricultural land could be decided only by Revenue Court and civil court had
no jurisdiction to give any finding on possession over the agricultural land.

"Courts below were right in coming to the conclusion that legality or otherwise of
insertion of names of purchasers in Record of Rights and deletion of name of the plaintiff
from such record can only be decided by Revenue Court since the names of the purchasers
had already been entered into. Only Revenue Court can record a finding whether such an
action was in accordance with law or not and it cannot be decided by a Civil Court."

26. In the facts of the case in hand it is not being disputed that the parties were recorded
in the revenue record during consolidation proceedings. Upon close of consolidation
proceedings in terms of Section 52 of Act, 1953, any proceedings in view of sub-section (2)
of Section 52, if not pending, then finality would be attached to the findings recorded
during consolidation proceedings. A finding recorded by a consolidation court cannot be
questioned either before the civil court or revenue court in view of Section 49. Only clerical
corrections are permissible, names recorded in revenue record, therefore, could not have
been directed to be deleted under Rule 109, such an order is without jurisdiction. The
3 All. Ballabh Lal Vs Kukkoo Motors Finance Pvt. Ltd. & Anr.
663
revenue record attaining finality during consolidation proceedings, therefore, could not be
corrected by the revenue authorities under Land Revenue Act, as long as, the sale deed
subsists and is not declared void by the competent court.

27. It is not being disputed that the applicants are recorded in the revenue record along
with the respondent/plaintiffs, therefore, the question of title or seeking a declaration is
primarily not involved in the facts of the present case. The respondent/plaintiffs are
aggrieved for the reason that, as long as, the void sale deed is not set aside by the competent
court, the name of the applicants in the revenue record would continue.

28. In Ram Awalamb and others vs. Jata Shanker and others7, the Full Bench
observed as follows:

A document which the Plaintiff shows also purports to have been transferred by a
person not authorized to do so can be cancelled through court to the extent of the Plaintiff's
share and after a decree has been passed in his favour, information of the same has to be
sent to Registration Department for making a note in their register.........In short the relief
for declaration or partition cannot be said to be effective alternate relief for cancellation of
sale-deed in respect of whole holding or part of holding.

29. The Full Bench did not make any distinction in this behalf in respect of void or
voidable sale deeds and according to its observation, if cause of action for cancellation of a
deed arises, the effective relief of cancellation under Section 31 of the Specific Relief Act
would be in civil court and a suit in revenue court will not be an effective substitute.

30. For the reasons and law stated herein above, I am of the view that the courts below
were justified in holding that the civil court would have jurisdiction in matter.

31. The petition being devoid of merit is, accordingly, dismissed.

32. No cost.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.02.2016

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Matters Under Article 227 No.- 1101 of 2016

Ballabh Lal ...Petitioner
Versus
Kukkoo Motors Finance Pvt. Ltd. & Anr. ...Respondents

Counsel for the Petitioner: