# Smt. Rama Gangwar And Others v. Shanker Lal And Others

- **Citation:** (2013) 1 ILRA 215
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-02-13
- **Case number:** Civil Misc. Writ Petition No. 5393 of 2013
- **Bench:** Sibghat Ullah Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rama-gangwar-and-others-v-shanker-lal-and-others-42429
- **Pages:** 4

## Headnote

Constitution of India, Article 226-Civil Suitfor
deceleration
of
rights-relating
to
agricultural Land? -whether maintainable
before Civil Court?-held-'Yes'.

Held: Para-9

Accordingly, there is no error in the
findings of the courts below holding the
suit to be maintainable before the civil
court.
Case Law discussed:
1989 AWC 290; AIR 1990 SC 540; 2010 (7)
ADJ 384

## Text

1 All] Smt. Rama Gangwar And Others Vs. Shanker Lal And Others.
215
relevant for the purpose. The same runs
as hereunder:-

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dk;Zokgh dh izxfr ls vius e.Myk;qDr ds ek/;e
ls ifj"kn dks ikf{kd :i ls miyC/k djkuk
lqfuf'pr djsa "

We have noticed that large number
of similar writ petitions are being filed
only for enforcement of law laid down in
the case of Jagpal Singh (supra) and
some subsequent judgements.

In view of direction noticed in the
aforesaid
circular,
we
are
of
the
considered
view
that
if
complaints
regarding unauthorized occupation over
the public ponds or other similar public
lands are received by the District
Magistrate of a District, he should take
all the required actions in view of law
already settled in the case of Jagpal Singh
and others.

In case, the District Magistrate finds
some good reasons to seek guidance from
the Members Committee indicated in
Para-2 of the aforesaid circular, then he
may refer the matter and seek guidance in
appropriate cases.

So far as the present writ petition is
concerned, we grant liberty to the
petitioner to approach respondents no. 2
and 3 again with a certified copy of this
order. The concerned respondents shall
get appropriate inquiry made and take
required action to protect public ponds as
per law laid down by the Apex Court,
expeditiously.

Let a copy of this order be furnished
to the learned Standing Counsel for the
State for communication to the Principal
Secretary, Revenue, Government of Uttar
Pradesh, who shall circulate a copy of
this
order
to
all
the
Divisional
Commissioners as well as the District
Magistrates so that number of such types
of cases coming to this Court may be
checked.

The petition is, accordingly, disposed
of."

14. In this case on the admitted
position that the petitioner has encroached
upon the land recorded as pond, which were
verified on the spot inspection by the ADM
(F & R), Jaunpur on 8.2.2010, such
constructions must be demolished and the
pond restored to the villagers.

15. The writ petition is dismissed.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.02.2013

BEFORE
THE HON'BLE SIBGHAT ULLAH KHAN,J.

Civil Misc. Writ Petition No. 5393 of 2013

Smt. Rama Gangwar And Others...Petitioner
Versus
Shanker Lal And Others ...Respondents

Counsel for the Petitioner:
Dr. G.S.D. Mishra, Sri Balendra Prata Singh
216 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Counsel for the Respondents:
...................................

Constitution of India, Article 226-Civil Suitfor
deceleration
of
rights-relating
to
agricultural Land? -whether maintainable
before Civil Court?-held-'Yes'.

Held: Para-9

Accordingly, there is no error in the
findings of the courts below holding the
suit to be maintainable before the civil
court.
Case Law discussed:
1989 AWC 290; AIR 1990 SC 540; 2010 (7)
ADJ 384

(Delivered by Hon'ble Sibghat Ullah
Khan,J.)

1. Heard learned counsel for the
petitioners.

2. Smt. Kokila Devi instituted O.S.
No.343 of 2000 against Smt. Rama
Gangwar, petitioner No.1, Ganga Devi
since
deceased
and
survived
by
petitioners No.2/1 to 2/5, Charan Singh
and Netram, who are respondents No.2 &
3 in this writ petition. The suit is pending.
The relief claimed in the suit was for
cancellation of three sale deeds dated
01.10.1999 executed by the plaintiff in
favour of Rama Gangwar, defendant
petitioner No.1. In the plaint, it was stated
that Shanker Lal was nephew of the
plaintiff and she wanted to execute Will
deed in favour of Shanker Lal and
Shanker
Lal's
wife,
however,
after
obtaining the khatauni, it transpired that
her name had been expunged from the
revenue record on the basis of sale deeds
dated 01.10.1999 which she had never
executed and she only signed/ fixed her
thumb impression on certain papers for
some other purpose. The sale deeds
pertained to agricultural land. After filing
of the suit, plaintiff died. Shanker Lal
respondent No.1 filed application for
substitution stating therein that plaintiff
had executed a Will in his favour. The
application was allowed.

3. In the suit issues were framed.
Issues No.4, 5 and 9 were decided as
preliminary issues by the trial court/ First
Additional Civil Judge (J.D.), Pilibhit on
30.04.2011 in favour of the plaintiff
holding that the suit was maintainable
before civil court and it was not barred by
Section 331 of U.P.Z.A. & L.R. Act.
Against the said order, defendants filed
Civil Revision No.25 of 2012, which was
dismissed by A.D.J. Court No.1 Pilibhit
on 18.10.2012, hence this writ petition.

4. Defendants petitioners had
contended that the suit as filed was not
maintainable before Civil Court as it was
basically a suit for declaration of rights in
agricultural land. It was also contended
that Shanker Lal, who had got himself
substituted on the basis of Will had no
right to continue to the suit in the civil
court as the very basis of his substitution
i.e. Will was denied by the defendants and
that too required a declaration. It was also
contended that after execution of the sale
deed name of the defendant No.1 had
been mutated in the revenue record hence
suit even by original plaintiff was not
maintainable.

5. Shanker Lal stated that original
plaintiff executed Will in his favour on
24.08.2000. In the plaint, plaintiff had
described Shanker Lal as her nephew.

6. The original plaintiff before her
death had been examined as witness.
1 All] Smt. Rama Gangwar And Others Vs. Shanker Lal And Others.
217

7. In view of full Bench authority of
this Court reported in Ram Padarath Vs.
A.D.J., 1989 AWC 290 such suit is
maintainable before the civil court. The
said full Bench authority has been
approved by the Supreme Court in Smt.
Bismillah vs. Janeshwar Prasad and
Ors., AIR 1990 SC 540.

8. The facts in the Supreme Court
authority of Bismillah were that the
plaintiff had stated that she had appointed
defendants No.1 to 3 as her agents to
manage the Estate through instrument of
agency dated 17.04.1969, however later
on
it
transpired
that
defendants
respondents No.1 to 3 had got executed a
sale deed instead of deed of agency.
Supreme Court held that suit before civil
court was maintainable. Last sentence of
para-6 of the Supreme Court authority is
quoted below:

"In the instant case, prima facie
appellant seems to proceed on the
premise that she cannot ignore the sales
but that the sales require to be set aside
before she is entitled to possession and
other consequential reliefs."

Para-7 of the said authority is quoted
below:

"7.
Even in
cases
where the
transaction was assailed as, void, the
High Court of Allahabad in India Dev v.
Ram Pyari 1982 All LJ 1308, held the
Civil Court's jurisdiction not barred. The
facts in that case were that:

...plaintiff-appellants
claimed
a
decree for cancellation of the sale deed
dated 10-7-1969 executed by Smt. Ram
Pyari Devi, mother of appellant 1 Indra
Dev, minor, in favour of Bramha Nand
respondent I in respect of certain
agricultural plots. The cancellation was
sought on the ground that Smt. Ram Pyari
had no interest in the property in suit and,
therefore, she was not entitled to execute
the sale deed....

In that case the learned District
Judge had held that the allegations made
in the plaint amounted to saying that the
sale deed was a void document. The civil
Court was held to have no jurisdiction.

The
High
Court,
allowing
the
plaintiff's appeal and reversing the
finding of the District Judge, held:

A survey of the above decisions
shows that the consistent view of this
Court is that the cause of action in a suit
for cancellation of sale deed is not the
denial of plaintiff's title which may be said
to be implicit in the execution of the sale
deed by the defendant but is the execution
of the deed itself.

...Therefore, under the provisions of
the Act itself, the jurisdiction of the Civil
Court would not be barred when
declaration is sought against a person
who has transferred agricultural property
which the plaintiff claims to be his.
Section 229B does not contemplate all
kinds of declaratory suits. It deals with
declaratory suits of the specific type
hereinbefore mentioned....

This case has since been approved by
a full Bench of that Court in Ram
Padarath v. Second Addl. Dist. Judge,
Sultanpur, W.P. No. 1732 of 1982 decided
on 26-9-1988 : reported in 1989 AWC
290. The Full Bench held (Para 41):
218 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

We are of the view that the case of
India Deo v. Smt. Ram Pyari 1982 All LJ
1308 has been correctly decided and the
said decision requires no consideration,
while the Division Bench case, Dr.
Ayodhya Prasad v. Gangotri 1981 All LJ
647 is regarding the jurisdiction of
consolidation authorities, but so far as it
holds that suit in respect of void document
will lie in the Revenue Court it does not
lay down a good law. 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 this relief permissible under law
except when a declaration of right or
status and a tenure-holder is necessarily
needed
in
which
event
relief
for
cancellation will be surplusage and
redundant. A recorded tenure-holder
having prima facie title in his favour can
hardly be directed to approach the
Revenue Court in respect of seeking relief
for cancellation of a void document which
made him to approach the Court of law
and in such case he can also claim
ancillary relief even though the same can
be granted by the Revenue Court.

In any view of the matter, the present
action
would
be
covered
by
the
pronouncement of the Full Bench. It is not
necessary to go into the correctness of the
view of the Full Bench as its correctness
was not assailed before us."

9. Accordingly, there is no error in
the findings of the courts below holding
the suit to be maintainable before the civil
court.

10. Learned counsel for the
petitioner has referred to an authority of
this court reported in Tara Chand Vs.
A.D.J., 2010 (7) ADJ 384. In the said
authority, it has been held that if a suit is
filed by a stranger for cancellation of sale
deed of agricultural land then it may not
be maintainable before the civil court.
However, in the instant case, the suit was
filed by the executant of the sale deed
herself who was recorded tenure holder
till the execution of the sale deed. After
her death Shanker Lal was substituted at
her place on the basis of Will. If during
the life time of the executant of the sale
deed, any other persons would have filed
the suit for cancellation of the sale deed or
declaration of the same as void then it
would not have been maintainable before
civil court.

11. Accordingly, there is no merit in
the writ petition, hence it is dismissed.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.02.2013

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 5833 of 2013

Bodda

...Petitioner
Versus
D.D.C. And Others
 ...Respondents

Counsel for the Petitioner:
Sri Ram Swaroop Singh
Sri Shivakant Singh

Counsel for the Respondents:
C.S.C.

U.P. Consolidation of Holding Act, 1953
section
48
(2)-revision
against
condonation of delay in filing appealdismissed
being
interlocutory
orderrevision
mot
maintainable-heldmisconceived condonation of delay give
right
to
the
parties
to
address
themselves
in
appeal-could
mean