# Smt. Shanti alias Satiya v. Smt. Phoolan Dullaiya & Ors. 1134 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2016) 5 ILRA 1133
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-04-15
- **Bench:** Ram Surat Ram (Maurya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shanti-alias-satiya-v-smt-phoolan-dullaiya-ors-1134-indian-law-reports-43742
- **Pages:** 9

## Headnote

U.P. Z.A. & L.R. ACT, 1950 - S. 331 - BAR OF CIVIL COURT JURISDICTION - CANCELLATION OF
SALE DEED OF AGRICULTURAL LAND - DECLARATORY RELIEF AS PRIMARY RELIEF
Suit filed for cancellation of sale deeds relating to agricultural land along with injunction - Plea that widow
had remarried and was divested under S. 172 and daughters inherited land - Determination whether widow
divested and daughters succeeded is an issue of agricultural tenure and status of parties as tenure-holders -
Such declaration is the primary relief; cancellation of instruments merely ancillary - Held, suit barred by S.
331 as declaration of title required to be adjudicated by revenue court. (Paras 15, 16, 20)

CIVIL PROCEDURE CODE, 1908 - S. 9 - CIVIL SUITS - WHEN BARRED
S. 9 CPC confers jurisdiction over civil nature suits except when expressly or impliedly barred - Suit for
cancellation of written instruments generally falls within civil jurisdiction by virtue of S. 9 CPC read with S. 31
Specific Relief Act - However, where issue of tenancy/title over agricultural land lies at root, implied bar
under S. 331 operates. (Paras 7, 8, 9, 10, 11)

SPECIFIC RELIEF ACT, 1963 - S. 31 - CANCELLATION OF INSTRUMENT - VOID AND VOIDABLE
- DISTINCTION
Allegation that widow executed sale deeds without title after remarriage - No allegation of coercion, fraud or
misrepresentation vitiating consent - Under S. 19 Contract Act, fraud etc. renders transaction voidable;
absence of such allegation renders document void, not voidable - Held, on pleadings sale deeds were void
instruments and could be ignored by competent authority; civil court not the only forum. (Paras 6, 8, 19)

JURISDICTION - CAUSE OF ACTION - PLEADINGS TO BE READ IN SUBSTANCE
Jurisdiction determined by cause of action pleaded - Pleadings to be read as a whole to ascertain real nature
of suit - Stray usage of expressions like "void" or "voidable" in plaint not conclusive - Court must determine
whether plaintiff necessarily seeks declaration of right/status under U.P. Act No. 1 of 1951 - If yes, civil court
jurisdiction ousted. (Paras 11, 12, 13)

CONSOLIDATION PROCEEDINGS - ABATEMENT - EFFECT OF NOTIFICATION - S. 5(2), S. 6, S.
49, S. 52 U.P. CONSOLIDATION OF HOLDINGS ACT, 1953
Village placed under consolidation prior to filing of suit - Suits liable to abate under S. 5(2) - If consolidation
later cancelled by notification under S. 6, provisions not attracted - If consolidation closed under S. 52, then
in view of Smt. Dularia Devi, void documents can be ignored and civil suit barred under S. 49 if no claim
raised during consolidation. (Paras 4, 5, 21)

AGRICULTURAL TENURE - INHERITANCE - DIVESTING OF WIDOW ON REMARRIAGE
Death in 1951 governed by U.P. Tenancy Act, 1939 - Under S. 35 widow preferential heir in preference to
unmarried daughters - Determination whether widow remarried and divested under S. 172 of U.P. Act No. 1
of 1951 and whether daughters inherited thereafter is an issue relati

## Text

5 All. Smt. Shanti Alias Satiya Vs Smt. Phoolan Dullaiya & Ors.

1133
9. Learned counsel for the respondent has relied upon the decisions rendered in the case of
Dwaraka Das (supra), Teja Ram and others (supra), Jayalakshmi Coelho (supra), Darshan
Singh (supra), Malla Atchinaidu and others (supra) and S. N. Goyal (supra), wherein general
principle of law is involved, but the counsel for the respondent has not relied upon any case law
relating to matrimonial dispute. Where matrimonial disputes are involved and it is found that the
wife is entitled for maintenance which otherwise could not be released, then the amount is liable to
be released.

10. Power is still possessed by the Court to release the amount. The maintenance awarded
to the wife has already been approved by the Apex court. Grant of maintenance to the applicantappellant was challenged before the Apex Court and Apex Court has dismissed the SLP vide order
dated 15.4.2014 wherein orders passed by this Court dated 4.12.2012, 26.11.2013 and 3.3.2014
were put to challenge.

11. Once the maintenance has attained finality, then validity of the award of pendente lite
maintenance cannot be looked into by this Court and SLP having been dismissed, the amount fixed
by this Court has attained finality. The applicant-appellant is, therefore, entitled for withdrawal of
the amount and for receiving the pendente lite maintenance during the course of litigation. Apart
from it, looking to the long drawn litigation between the parties and also looking to the fact that
income of the husband of the applicant-appellant is very high as he is running hospital and earning
money from it coupled with the fact that the applicant-appellant has to pursue proceedings in the
Hon'ble Supreme Court by engaging Advocate, we find that the applicant-appellant is entitled for
pendente lite maintenance.

12. We accordingly allow this application and direct the Registry of this Court to release
the amount deposited in this Court within a period of one week and we further provide that the
applicant-appellant will be entitled for pendente lite maintenance during pendency of the
proceedings as has been awarded by this Court vide order dated 4.12.2012.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.05.2016

BEFORE

THE HON'BLE RAM SURAT RAM (MAURYA), J.

Matter Under Article 227 No.- 3687 Of 2016
&
Matter Under Article 227 No.- 3688 Of 2016

Smt. Shanti alias Satiya ...Petitioner
Versus
Smt. Phoolan Dullaiya & Ors. ...Respondents
1134 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Pankaj Saksena, Anupam Laloriya

Counsel for the Respondents:
Arvind Srivastava, Pushkar Srivastava

U.P. Z.A. & L.R. ACT, 1950 - S. 331 - BAR OF CIVIL COURT JURISDICTION - CANCELLATION OF
SALE DEED OF AGRICULTURAL LAND - DECLARATORY RELIEF AS PRIMARY RELIEF
Suit filed for cancellation of sale deeds relating to agricultural land along with injunction - Plea that widow
had remarried and was divested under S. 172 and daughters inherited land - Determination whether widow
divested and daughters succeeded is an issue of agricultural tenure and status of parties as tenure-holders -
Such declaration is the primary relief; cancellation of instruments merely ancillary - Held, suit barred by S.
331 as declaration of title required to be adjudicated by revenue court. (Paras 15, 16, 20)

CIVIL PROCEDURE CODE, 1908 - S. 9 - CIVIL SUITS - WHEN BARRED
S. 9 CPC confers jurisdiction over civil nature suits except when expressly or impliedly barred - Suit for
cancellation of written instruments generally falls within civil jurisdiction by virtue of S. 9 CPC read with S. 31
Specific Relief Act - However, where issue of tenancy/title over agricultural land lies at root, implied bar
under S. 331 operates. (Paras 7, 8, 9, 10, 11)

SPECIFIC RELIEF ACT, 1963 - S. 31 - CANCELLATION OF INSTRUMENT - VOID AND VOIDABLE
- DISTINCTION
Allegation that widow executed sale deeds without title after remarriage - No allegation of coercion, fraud or
misrepresentation vitiating consent - Under S. 19 Contract Act, fraud etc. renders transaction voidable;
absence of such allegation renders document void, not voidable - Held, on pleadings sale deeds were void
instruments and could be ignored by competent authority; civil court not the only forum. (Paras 6, 8, 19)

JURISDICTION - CAUSE OF ACTION - PLEADINGS TO BE READ IN SUBSTANCE
Jurisdiction determined by cause of action pleaded - Pleadings to be read as a whole to ascertain real nature
of suit - Stray usage of expressions like "void" or "voidable" in plaint not conclusive - Court must determine
whether plaintiff necessarily seeks declaration of right/status under U.P. Act No. 1 of 1951 - If yes, civil court
jurisdiction ousted. (Paras 11, 12, 13)

CONSOLIDATION PROCEEDINGS - ABATEMENT - EFFECT OF NOTIFICATION - S. 5(2), S. 6, S.
49, S. 52 U.P. CONSOLIDATION OF HOLDINGS ACT, 1953
Village placed under consolidation prior to filing of suit - Suits liable to abate under S. 5(2) - If consolidation
later cancelled by notification under S. 6, provisions not attracted - If consolidation closed under S. 52, then
in view of Smt. Dularia Devi, void documents can be ignored and civil suit barred under S. 49 if no claim
raised during consolidation. (Paras 4, 5, 21)

AGRICULTURAL TENURE - INHERITANCE - DIVESTING OF WIDOW ON REMARRIAGE
Death in 1951 governed by U.P. Tenancy Act, 1939 - Under S. 35 widow preferential heir in preference to
unmarried daughters - Determination whether widow remarried and divested under S. 172 of U.P. Act No. 1
of 1951 and whether daughters inherited thereafter is an issue relating to agricultural tenure - Such
determination falls within exclusive competence of revenue authorities. (Paras 15, 16)

IN RESULT-Civil suits for cancellation of sale deeds found barred under S. 331 - Impugned orders upheld
Writ petition stands dismissed.

List of Cases cited:
5 All. Smt. Shanti Alias Satiya Vs Smt. Phoolan Dullaiya & Ors.

1135
1. Bismillah v. Janeshwar Prasad, AIR 1990 SC 540
2. Smt. Dularia Devi v. Janardan Singh, AIR 1990 SC 1173
3. Jai Singh v. IInd Additional District Judge & Others, 2001 (45) All LR 579
4. Kishori Prasad v. IIIrd Additional District Judge & Others, AIR 2003 All 58
5. Smt. Sajarunnisha v. District Judge, (2013) 5 ADJ 343
6. Ganga Prasad v. Ram Das, (2014) 6 ADJ 677
7. Ram Padarath v. Second Additional District Judge, Sultanpur & Others, 1989 RD 21 (FB)
8. Church of North India v. Lavajibhai Ratanjibhai, (2005) 10 SCC 760
9. Ram Awalamb v. Jata Shankar, AIR 1969 All 526 (FB)
10. Azhar Hasan v. District Judge, Saharanpur, (1998) 3 SCC 246
11. Shri Ram v. Ist Additional District Judge, (2001) 3 SCC 24

 (Delivered by Hon'ble Ram Surat Ram (Maurya), J.)

1. Heard Sri Pankaj Saksena, for the petitioner and Sri Arvind Srivastava, for caveator in
both the petitions. In both the petitions, common question arise for consideration as such both the
petitions are being decided by a common order.

2. Petition no. 3687 of 2016 has been filed for setting aside the orders of Civil Judge (J.D.)
dated 29.10.2014, deciding issue relating to jurisdiction of civil court to try a suit for cancellation
of sale deed, in respect of agricultural land, against the plaintiff and Additional District Judge dated
11.04.2016, dismissing the appeal (arising out of O.S. No. 105 of 2014) of the petitioner against
aforesaid order. Petition no. 3688 of 2016 has been filed for setting aside the orders of Civil Judge
(J.D.) dated 29.10.2014, deciding issue relating to jurisdiction of civil court to try a suit for
cancellation of sale deed, in respect of agricultural land, against the plaintiff and Additional District
Judge dated 11.04.2016, dismissing the appeal (arising out of O.S. No. 102 of 2014) of the
petitioner against aforesaid order.

3. Smt. Shanti alias Satiya (the petitioner) filed a suit (registered as SuitNo. 102 of 2014)
for cancellation of sale deeds dated 05.01.1961, executed by Smt. Phoolan Dullaiya in favour of
Kunwar Raj, 15.07.1989, executed by heirs Kunwar Raj in favour of Shashi Pathak, Manish
Chandra Agrawal and Amit Agrawal and 13.02.2003, executed by Shashi Pathak in favour of
Aman Agrawal, in respect of plots 1625 Sa, 1626 Sa, 1627 Sa and 1628 Sa (total area 1.50 acre) of
village Raksa, pargana and district Jhansi and for permanent injunction, restraining defendants-1 to
9 from interfering in her possession over the land in dispute. Smt. Shanti alias Satiya (the
petitioner) filed a suit (registered as Suit No. 105 of 2014) for declaration of sale deed dated
12.06.1972, executed by Smt. Phoolan Dullaiya in favour of Siyaram, Vishwanath and Hukum
Singh, as void and to cancel it, in respect of agricultural land situated at village Raksa, pargana and
district Jhansi and for permanent injunction, restraining the defendants from interfering in her
possession over the land in dispute. In both suits, it has been stated that the disputed land belonged
to Baijnath son of Ramu, who died in 1951, leaving behind his widow Smt. Phoolan Dullaiya and
two minor daughters Shanti alias Satiya (aged about 5 years) and Kasturi (aged about 3 years).
After death of Baijnath, Smt. Phoolan Dullaiya remarried to Aman, resident of village Ranguwa,
pargana and district Jhansi. As such Shanti alias Satiya and Kasturi inherited entire property in
1136 INDIAN LAW REPORTS ALLAHABAD SERIES
dispute. Smt. Phoolan Dullaiya executed aforesaid sale deeds dated 05.01.1961 and 12.06.1972,
although, after remarriage, she was divested and left with no interest in land in dispute. Subsequent
sale deeds executed by transferees are also void, as no right accrued to them on the basis of sale
deed executed by Smt. Phoolan Dullaiya. On these allegations, the suits were filed.

4. The defendants contested the suit and denied the plaint allegations. They stated that Smt.
Phoolan Dullaiya was only heir of Baijnath and sale deeds executed by her was valid. On the basis
of sale deeds, the names of transferees were mutated in revenue record and since the date of sale
deeds, transferees were in possession of the land in dipsute. Various technical pleas were raised. It
has also been stated that as at present the defendants were recorded tenure holders and in
possession of agricultural land. The suit isessentially a suit for declaration of title and possession
over agricultural land as such jurisdiction of civil court to try the suit is barred under Section 331 of
U.P. Act No. 1 of 1951. The village has been placed under consolidation operation on 27.09.2008
and the suit is liable to be abated under Section 5 (2) of U.P. Consolidation of Holdings Act, 1953.
On the basis of pleadings, issues were framed by Trial Court. Issue Nos. 5 and 6 were framed to the
effect as to whether civil court has jurisdiction to try the suits and whether the suits are barred
under Section 331 of U.P. Act No. 1 of 1951.

5. After hearing the parties, Civil Judge (J.D.), by dated 29.10.2014, held that the suits are
for cancellation of the sale deeds. On the allegations made in the plaint, the sale deeds are void as
such revenue court court or consolidation authorities are competent to ignore it. As the village is
under consolidation operation, prior to filing of the suit as such suits are liable to be abated. The
petitioner filed two appeals (registered as Misc. Civil Appeal Nos. 84 and 85 of 2014) against
aforesaid order. Additional District Judge, by judgment dated 11.04.2016, dismissed both the
appeals. Hence these petitions have been filed.

6. The counsel for the petitioner submitted that plaint's allegations are that Smt. Phoolan
Dullaiya fraudulently executed sale deeds dated 05.01.1961 and 12.06.1972, although, after
remarriage, she was divested and left with no interest in land in dispute, which were inherited by
her minor daughters. On these allegations, sale deeds are voidable documents. Civil court alone has
jurisdiction to try such suits and suits are not barred under Section 331 of U.P. Act No. 1 of 1951.
By notification under Section 6 of U.P. Consolidation of Holdings Act, 1953, dated 16.11.2015,
notification dated 27.09.2008 has been canceled as such the suits are not liable to be abated under
Section 5 (2) of the Act. He relied upon the judgments Supreme Court in Bismillah Vs. Janeshwar
Prasad, AIR 1990 SC 540 in which it has been held suit for cancellation of void and voidable sale
deed shall lie in civil court. Smt. Dularia Devi v. Janardan Singh, AIR 1990 SC 1173, in which
it has been held that if there was fraudulent misrepresentation in respect of character of a document,
then document would be void andconsolidation authorities have jurisdiction to ignore it. If claim is
not made during consolidation, then suit would be barred under Section 49 of that Act. He also
relied upon judgment of this Court in Jai Singh Vs. IInd Additional District Judge and others,
2001 (45) All L R 579, in which it has been held that in a suit for cancellation of sale deed, relief
for cancellation of sale deed is main relief and for that relief suit before civil court is maintainable.
Kishori Prasad Vs. IIIrd Additional District Judge and others, AIR 2003 All 58, in which it
5 All. Smt. Shanti Alias Satiya Vs Smt. Phoolan Dullaiya & Ors.

1137
has been held that executant or his heir can filed a suit for cancellation of sale deed in civil court.
Smt. Sajarunnisha Vs. District Judge, (2013) 5 ADJ 343 and Ganga Prasad Vs. Ram Das,
(2014) 6 ADJ 677, in which it has been held that sale deed obtained by committing fraud is a
voidable document and suit for its cancellation will lie in civil court.

7. I have considered the arguments of the counsel for the petitioner and examined the
record. In order to appreciate the controversy, relevant provisions of Civil Procedure Code, 1908
and Specific relief Act, 1963 are quoted below:-

9. Courts to try all civil suits unless barred.-The Courts shall (subject to the
provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of
which their cognizance is either expressly or impliedly barred.

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 it 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 has 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 fact of its cancellation.

8. In view of Section 31 of Specific Relief Act, 1963, a suit for cancellation of sale deed,
void or voidable, is a suit of civil nature and can be filed before civil court and civil court has
jurisdiction to try it under Section 9 C.P.C. A Full Bench of this Court in Ram Padarath Vs.
Second ADJ, Sultanpur and others, 1989 RD 21 (FB) held suit for cancellation of void and
voidable sale deed shall lie in civil court. This judgment has been approved by Supreme Court in
Bismillah Vs. Janeshwar Prasad, AIR 1990 SC 540.

9. Now question arises that if a sale deed is in respect of agricultural land, suit for its
cancellation is barred under Section 331 of U.P. Act No. 1 of 1951, relevant part of which is quoted
below:-

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

10. Under Section 331, jurisdiction of civil court is expressly barred for the suits mentioned
in Column 3 of Schedule II of U.P. Act No. 1 of 1951 and impliedly barred for a suit based on a
1138 INDIAN LAW REPORTS ALLAHABAD SERIES
cause of action, in respect of which, relief could be obtained by revenue court (mentioned in
column 4 of Schedule II). Column 3 of Schedule II of U.P. Act No. 1 of 1951 does not provide for
a suit for cancellation of sale deed of agricultural land as such Section 331 (1) does not expressly
bar a suit for cancellation of sale deeds.

11. Now it has to be examined as to whether suit for cancellation of a sale deed is impliedly
barred as the required relief based on the cause of action in the suit could be obtained from revenue
court. It is the cause of action, which determines jurisdiction of a court. Cause of action means the
facts which will be necessary for the plaintiff to prove, in order to obtain decree. Supreme Court in
Bismillah Vs. Janeshwar Prasad, AIR 1990 SC 540, held that in order to determine the precise
nature of the action, the pleadings should be taken as a whole. If as, indeed, is done by High Court
the expression 'void' occurring in the plaint as descriptive of the legal status of the sales is made
the constant and determinate and what is implicit, in the need for cancellation as the variable and as
inappropriate to a plea of nullity, equally, converse could be the position. The real point is not the
stray or loose expressions which abound in inartistically drafted plaints, but the real substance of
the case gathered by construing pleadings as a whole. It is said "Parties do not have the farsight of
prophets and their lawyers the draftsmanship of a Chalmers".

12. In 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. The rules of pleadings postulate that a plaint must contain material
facts.

 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. If for the purpose of grant of an appeal, the court comes to the conclusion that
the question is required to be determined or dealt with by an authority under the Act, the
jurisdiction of the civil court must be held to have been ousted. The questions which are required to
be determined are within the sole and exclusive jurisdiction of the authorities whether simple or
complicated.

13. Full Bench of this Court in Ram Awalamb Vs. Jata Shankar, AIR 1969 All 526 (FB)
held that (a) where on the basis of cause of action, the main relief is cognizable by a revenue court,
the suit would be cognizable by revenue court only. The ancillary relief would be immaterial for
determination of proper forum for the suit. (b) Where on the basis of causeof action, main relief is
cognizable by a civil court, the suit would be cognizable by civil court only. The ancillary relief
which could be granted by revenue court may also be granted by civil court.
5 All. Smt. Shanti Alias Satiya Vs Smt. Phoolan Dullaiya & Ors.

1139
(Paragraph-90) A document under which the plaintiff's share also purports to have
been transferred by a person not authorized to do so, can be canceled through court to the extent of
the plaintiff's share and after a decree has been passed in his favour, information regarding the
same has to be sent to the registration department for making a note in their register. To have the
document adjudged void or voidable, the suit provided under Section 31 of Specific Relief Act,
1963 cannot be considered to be altogether unnecessary because after lapse of several years, the
unchallenged existence of such document can cause serious difficulty to the plaintiff in establishing
his title to the land. The plaintiff is not bound to ask for mere declaration of his title in respect of
the land when he could pray for cancellation of the entire sale deed.

14. The present suits are filed for cancellation of sale deeds dated 05.01.1961 and
12.06.1972, executed by Smt. Phoolan Dullaiya and subsequent sale deeds executed by her
transferees, in respect of agricultural land and for permanent injunction, restraining the defendants
from interfering in her possession over the land in dispute. In both suits, it has been stated that the
disputed land belonged to Baijnath son of Ramu, who died in 1951, leaving behind his widow Smt.
Phoolan Dullaiya and two minor daughters Shanti alias Satiya (aged about 5 years) and Kasturi
(aged about 3 years). After death of Baijnath, Smt. Phoolan Dullaiya remarried to Aman, resident
of village Ranguwa, pargana and district Jhansi. As such Shanti alias Satiya and Kasturi (minor
daughters) inherited entire disputed land. Smt. Phoolan Dullaiya executed sale deeds of agricultural
land dated 05.01.1961 and 12.06.1972, although, after remarriage, she was divested and left with
no interest in land in dispute as such sale deeds are void. Subsequent sale deeds executed by
transferees are also void, as no right accrued to them on the basis of sale deeds executed by Smt.
Phoolan Dullaiya.

15. In 1951, inheritance was governed by provisions of U.P. Tenancy Act, 1939. Under
Section 35 of this Act, widow was preferential heir in preference to unmarried daughter. As such
Phoolan Dullaiya inherited land in dispute on the death of Baijnath. For grant of required relief in
present suits, declaration that before execution of sale deeds, Smt. Phoolan Dullaiya remarried to
Aman, as such she was divested under Section 172 of U.P. Act No.1 of 1951 and the petitioner and
her sister inherited land in dispute, is necessary. This relief can only be granted by revenue court
and in view of Section 331 of U.P. Act No. 1 of 1951, jurisdiction of civil court is expressly barred.
Admittedly, the name of the petitioner and her sister were never recorded over land in dispute.
Name of Smt. Phoolan Dullaiya and thereafter, names of the transferees were recorded. Supreme
Court in Azhar Hasan v. Distt. Judge, Saharanpur, (1998) 3 SCC 246, held that whether those
persons who succeeded the recorded tenants, were rightly recorded as tenants or not, was a question
determinable by the revenue authorities.

16. Supreme Court in Bismillah Vs. Janeshwar Prasad, AIR 1990 SC 540, held that as
suit or action for cancellation of void document will generally lie in the civil court and a party
cannot be deprived of his right of 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
1140 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

17. In Shri Ram v. Ist ADJ, (2001) 3 SCC 24, held 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 been obtained on the ground of fraud or impersonation cannot be directed to file a suit for
declaration in the 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 requiredeclaration of his title to the land.
The position would be different where a person not being a recorded tenure-holder seeks
cancellation of sale deed by filing a suit in the civil court on the ground of fraud or impersonation.
There necessarily the plaintiff is required to seek a declaration of his title and, therefore, he may be
directed to approach the Revenue Court, as the sale deed being void has to be ignored for giving
him relief for declaration and possession.

18. Argument of the counsel for the petitioner that Smt. Phoolan Dullaiya fraudulently
executed sale deeds as such sale deeds are voidable, is not liable to be accepted. Under Section 19
of Contract Act, 1872, when consent to an agreement is caused by coercion, fraud or
misrepresentation, the contract is voidable at the option of the party whose consent was so caused.
Or in any other enactment, transaction is held as voidable. No fraud has been committed on Smt.
Phoolan Dullaiya. In the present case, there is no allegation that sale deeds were obtained by
coercion, fraud or misrepresentation rather the allegations are that the sale deeds were executed
without having title of the land in dispute. On these allegations, sale deeds executed by Smt.
Phoolan Dullaiya and her transferees would be void and not voidable.

19. In view of aforesaid discussions, suits are barred under Section 331 of U.P. Act No. 1
of 1951, as without declaration of title of the petitioner in respect of agricultural land, no relief in
the suits can be granted. In case it is held that before execution of sale deeds, Smt. Phoolan
Dullaiya remarried to Aman as such she was divested under Section 172 of U.P. Act No.1 of 1951
and the petitioner and her sister inherited land in dispute, then sale deeds executed by Smt. Phoolan
Dullaiya and her transferees could be canceled. Declaration of title of the petitioner in the land in
dispute is main relief in the suits and adjudication of sale deeds as void would be ancillary relief.

20. The petitioner has stated that by notification under Section 6 of U.P. Consolidation of
Holdings Act, 1953, dated 16.11.2015, notification dated 27.09.2008 has been canceled. If
consolidation operation has been canceled by notification under Section 6 of the Act, then
provisions of U.P. Consolidation of Holdings Act, 1953 would not be attracted. However, if
consolidation operation was closed by notification under Section 52 of the Act, then in view of
judgment in Smt. Dularia Devi v. Janardan Singh, AIR 1990 SC 1173, the sale deeds being void
and consolidation authorities have jurisdiction to ignore it. If claim is not made during
consolidation, then suit would be barred under Section 49 of that Act.

21. In view of the aforesaid discussions, the impugned orders do not suffer from any
illegality. The petitions have no merit and are dismissed.
5 All. Narendra Kumar Sharma (deceased) Vs Nand Kishore Sharma (deceased) & Ors.

1141
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.05.2016

BEFORE

THE HON'BLE RAM SURAT RAM (MAURYA), J.

Matters Under Article 227 No.- 7035 Of 2015

Narendra Kumar Sharma (deceased) ...Petitioner
Versus
Nand Kishore Sharma (deceased) & Ors. ...Respondents

Counsel for the Petitioner:
Hem Pratap Singh

Counsel for the Respondents:
Satish Mandhyan

1. Civil Procedure Code, 1908 - O.21 R.106 - Scope & Applicability:
Order 21 Rule 106 CPC applies only to applications under O.21 R.97 and R.99 dismissed for default or decided
ex parte; it does not govern recall of dismissal of an execution application filed by the decree-holder.
Therefore, the 30-day limitation in R.106(3) and exclusion of S.5 Limitation Act do not bar a recall in such
circumstances. (Paras 6, 7, 8)

2. Civil Procedure Code, 1908 - S.141, O.9, S.151 - Restoration of Execution Proceedings:
By virtue of S.141 CPC, procedure applicable to suits applies to execution proceedings, and dismissal of an
execution application may be recalled under O.9 R.4 or R.9 CPC or under inherent powers of the court. This
view supported by Division Bench and Full Bench precedents. (Paras 8, 9, 10)

3. Civil Procedure Code, 1908 - S.151 - Inherent Power to Recall - Grounds:
Court has inherent power to recall orders obtained by fraud, orders passed when court is misled, or where the
court itself commits a mistake prejudicing a party, as recognized in Indian Bank v. Satyam Fibres and Budhia
Swain v. Gopinath Deb. (Paras 11, 12)

4. Execution Proceedings - Dismissal During Subsisting Stay - Actus Curiae:
Execution case was dismissed in default on 15.10.2011 during subsistence of an interim stay granted by the
High Court, due to which executing court could not proceed on merits; this constituted a court mistake.
Applying the maxim actus curiae neminem gravabit, the executing court was competent to recall the order
under S.151 CPC. (Paras 13, 14)

In Result : Writ Petition Stands Dismissed.

List of Cases cited:

1. Damodaran Pillai v. South Indian Bank Ltd., AIR 2005 SC 3460
2. Indian Bank v. Satyam Fibres (India) (P) Ltd., (1996) 5 SCC 550