# Zila Panchayat & Anr v. Sri Krishna Lal Dixit

- **Citation:** (2022) 11 ILRA 287
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-29
- **Case number:** Writ-C No. 49873 of 2003
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/zila-panchayat-anr-v-sri-krishna-lal-dixit-47813
- **Pages:** 9

## Headnote

A. Civil Law - Suit for cancellation of Saledeed - Abatement of suit - Character of
document - Void and voidable document -
Distinction, how can be drawn - Smt.
Dulari Devi's case relied upon - Where
there is fraudulent misrepresentation as
to the character of a document executed
by a person, it would be a void document,
but in case where there is fraudulent
misrepresentation as to the contents of
the
document,
the
character
of
a
document
is
voidable
-
Held,
the
documents are void documents as in the
instant
case
there
was
fraudulent
misrepresentation as to the character of
the document and not to the contents
thereof. (Para 17 and 18)
B. UP Consolidation and Holdings Act,
1953 - Section 5(2)(a) - Abatement of
suit
-
Jurisdiction
of
civil
court
-
Defendant's name is recorded in revenue
record - Effect - Held, since the name of
the
petitioner/defendant
have
been
recorded in the revenue record, therefore,
the suit is not cognizable by civil court and
is cognizable by revenue court. (Para 23)
Writ petition allowed. (E-1)
List of Cases cited:-

## Text

11 All. Zila Panchayat & Anr. Vs. Sri Krishna Lal Dixit
287
this Court and he having not obtained status
information of the cases concerned as per
procedure prescribed, is himself to be
blamed. It should be duty of the every
advocate of the court concerned to know
procedure of presenting cases and getting
cases listed on board as rules of such Court
provide for. It can only be termed as
unfortunate that a lawyer himself would not
go through the rules and would find it more
convenient to seek information under Right
to Information Act, 2005 for no justifiable
reason.

28. In view of above and as I have
already held that reply by the High Court
was justified one and that appellate
authority rightly rejected the appeal holding
that Rules of the High Court provide such
informations, I do not find any force in the
present petition and accordingly dismiss the
same.
----------
(2022) 11 ILRA 287
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.08.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ-C No. 49873 of 2003

Zila Panchayat & Anr. ...Petitioners
Versus
Sri Krishna Lal Dixit ...Respondent

Counsel for the Petitioners:
Sri Anshu Chaudhary, Sri Aditya Kumar
Tripathi, Sri Anil Kumar Singh

Counsel for the Respondent:
Sri Aditya Kumar Tripathi

A. Civil Law - Suit for cancellation of Saledeed - Abatement of suit - Character of
document - Void and voidable document -
Distinction, how can be drawn - Smt.
Dulari Devi's case relied upon - Where
there is fraudulent misrepresentation as
to the character of a document executed
by a person, it would be a void document,
but in case where there is fraudulent
misrepresentation as to the contents of
the
document,
the
character
of
a
document
is
voidable
-
Held,
the
documents are void documents as in the
instant
case
there
was
fraudulent
misrepresentation as to the character of
the document and not to the contents
thereof. (Para 17 and 18)
B. UP Consolidation and Holdings Act,
1953 - Section 5(2)(a) - Abatement of
suit
-
Jurisdiction
of
civil
court
-
Defendant's name is recorded in revenue
record - Effect - Held, since the name of
the
petitioner/defendant
have
been
recorded in the revenue record, therefore,
the suit is not cognizable by civil court and
is cognizable by revenue court. (Para 23)
Writ petition allowed. (E-1)
List of Cases cited:-
1. Civil Appeal No. 2998 of 1980; Smt. Dulari
Devi Vs Janardhan Singh & ors.
2. Shri Ram & anr. Vs Ist A.D.J. & ors. 2001 (3)
SCC 24
3. Pyarelal Vs Shubhendra Pilania (Minor) & ors.
2019 (3) SCC 692
(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri Anshu Chaudhary,
learned counsel for the petitioners and Sri
Aditya Kumar Tripathi, learned counsel for
the respondent.

2. The petitioners by means of the
present writ petition have assailed the order
dated 21.08.1999 passed by the Civil Judge
(Senior Division), Etawah in Original Suit
No.12 of 1981 (Krishna Lal Dixit Vs. Zila
Parishad, Etawah and Others) whereby
288 INDIAN LAW REPORTS ALLAHABAD SERIES
application 156Ga of the petitioner to abate
the suit was rejected, and order dated
24.07.2003 passed by the Additional
District
Judge,
Court
No.4,
Etawah
rejecting the revision of the petitioner.

3. The plaintiff/respondent instituted a
suit bearing Original Suit No.12 of 1981
praying for a decree of cancellation of
document dated 27.08.1951 and sale deed
dated 30.09.1957. The suit was instituted on
the ground that the property in dispute was
owned by one Sukhi Lal and petitioner was
adopted son of Sukhi Lal. It is pleaded that
late Sukhi Lal had instituted a suit against
plaintiff/respondent before the court of
Munsif, Etawah which was dismissed, and
the adoption deed of the plaintiff/respondent
was held valid. The appeal preferred by late
Sukhi Lal against the judgement and decree
declaring the adoption deed valid was also
dismissed.

4. It is further pleaded that the
document dated 27.08.1951 was never
executed by late Sukhi Lal and sale deed
dated 30.09.1957 was also not executed by
late
Sukhi
Lal
in
favour
of
petitioner/defendant. In paragraph 8 of the
plaint, it was specifically pleaded that
petitioners/defendants
got
their
names
recorded in the revenue records by playing
fraud whereas they have no concern with the
property in dispute and were not entitled to
get their names recorded in the revenue
record. In paragraph 9 of the plaint,
plaintiff/respondent further pleaded that on
inquiry it was found that petitioner/defendant
got the document dated 30.09.1957 executed
by playing fraud. It was further pleaded that
no document was executed by late Sukhi Lal
on 30.09.1957 and said document is forged
and fabricated and was not signed by Sukhi
Lal nor he had put any impression of thumb
on that document.

5. The suit was contested by
petitioners/defendant
denying
the
averments made in the plaint.

6. The petitioners/defendants filed an
application 156Ga alleging therein that as
the village Umri, Pargana Auraiya, District
Etawah in which property in dispute is
situated was under consolidation operation,
therefore, suit is liable to be abated under
Section 5(2)(a) of the U.P. Consolidation
and Holdings Act, 1953 (hereinafter
referred to as 'Act, 1953') as after the
notification under Section 4 of the U.P.
Act,
1953
consolidation
court
is
empowered to declare the sale deed void.

7. The aforesaid application was
contested by the plaintiff/respondent by
filing objection contending inter-alia that
after publication of notification under
Section 5(2) of the Act, 1953, the suit was
instituted. The plaintiff/respondent has
stated in the plaint that the documents in
question are voidable, and therefore, suit
before the court of Civil Judge is
maintainable.

8. The trial court vide order dated
21.08.1999 accepted the objection of
plaintiff/respondent
in
holding
that
documents in question are voidable in
nature and held that till the said documents
are set aside, the character of these
documents would be voidable.

9. A revision preferred by the
petitioners/defendant against the order
dated 21.08.1999 was rejected by the
revision
court
vide
judgement dated
24.07.2003, who affirmed the finding of the
trial court.

10. Challenging the aforesaid orders,
learned counsel for the petitioners has
11 All. Zila Panchayat & Anr. Vs. Sri Krishna Lal Dixit
289
contended that both the courts below have
erred in law in holding that as it was a
specific case of the plaintiff/respondent that
late Sukhi Lal had not executed the
document dated 27.08.1951 and sale deed
dated 30.09.1957 nor he had put any
impression on the said documents, and
petitioner got those documents executed by
producing
an
impostor,
therefore,
documents
are
forged
and
once
consolidation operation had started in the
area, where property in dispute is situated,
the suit for cancellation of sale deed is
cognizable by consolidation court and not
by civil court. In support of his contention,
he has paced reliance upon the judgement
of Apex Court in the case of Smt. Dulari
Devi Vs. Janardhan Singh and Others
passed in Civil Appeal No.2998 of 1980
wherein the Apex Court has laid down
distinction between void and voidable
documents.

11. He has further contended that in
paragraph 8 of the plaint, it has been
specifically
stated
that
petitioner/defendant's name is recorded in
the
revenue
record,
and
therefore,
plaintiff/respondent
has
to
pray
for
declaration of title and thus, civil court has
no jurisdiction to try the suit. In support of
this contention, he has placed reliance upon
the judgements of Apex Court in the cases
of Shri Ram and Another Vs. Ist
Additional District Judge and Others 2001
(3) SCC 24 and Pyarelal Vs. Shubhendra
Pilania
(Minor)
through
Natural
Guardian (Father) Shri Pradeep Kumar
Pilania and Others 2019 (3) SCC 692.

12.

Rebutting
the
aforesaid
contentions,
learned
counsel
for
the
respondents has contended that the sale
deed is a voidable document and as in the
instant
case,
there
was
fraudulent
misrepresentation, therefore, the document
would fall in the category of voidable
documents and shall remain in force till it
is set aside, and such document can only be
cancelled
by
competent
civil
court,
therefore, suit is maintainable. He has
further
contended
that
consolidation
operation in the area is over, and therefore,
suit for cancellation of sale deed would lie
before the competent civil court.

13. I have considered the rival
submissions of the parties and perused the
record.

14. To ascertain the question in the
present case as to the nature of document
whether the document is void or voidable
document,
it
would
be
apposite
to
reproduce paragraphs 8, 9, 10 & 11 of the
plaint:-

"8. यह क्षक वादी को यह भी मालूम हुआ
क्षक चकबन्दी के दौराि प्रक्षतवादी गर् िे वसाक्षजश
चकबन्दी अक्षधकारी फजी िाम अपिा चढ़वाया है
और दौराि चकबन्दी, प्रक्षतवादीगर् को अपिा िाम
चढ़वािे का कोई हक िही था और चकबन्दी
आक्षफसर को कोई अख्त्त्यार क्षड० बोडण का िाम चढ़ािे
का िही था जुम्ला कायणवाही व हुक्म बावत िाम दजण
होिे कतई अवैधाक्षिक व क्षवथआउट ज्यूररन्धस्डक्शि है
और कािूिि कमफरटेक्षबल इि ल िही है और
मालूम होता है क्षक क्षड० बोडण इटावा के कमणचाररयो िे
दौराि चकबिंदी धोखा देकर व साक्षजश चकबन्दी
अक्षधकारी उपरोक्त क्षड० बोडण का िाम फजी दजण
करवाया है उि इन्द्राजात का कोई फायदा
प्रक्षतवादीगर् िही उठा सकते हैं और उपरोक्त
इन्द्राजात वादी पर काक्षबज पाबन्दी िही है और जुम्ला
इन्द्राजात कतई ज्यूररकेशि है और धोखा व
क्षमसररप्रेजेन्टेशि पर मविीय है कोई भी िोक्षटस
वगैरह भी चकबन्दी के दौराि वादी या सोखी लाल के
िाम जारी िही हुये और ि क्षवपिी व सोखी लाल कोई
िोक्षटस जारी हुयी और ि क्षकसी िोक्षटस की कोई
तामील हुयी। और ि एतराज का मौका कोई क्षदया
गया व िीज अदालत चकबन्दी अक्षधकारी को
290 INDIAN LAW REPORTS ALLAHABAD SERIES
प्रक्षतवादीगर् या क्षड० बोडण का िाम चढ़ािे का कोई
हक भी िही था और ि कोई अख्त्त्यार था।

9. यह क्षक प्रक्षतवादीगर् के द्वारा व उिके
कमणचारी के द्वारा दस्तिदाजी देिे पर वादी िे
जािकारी की व जािंच पड़ताल की व मुआयिा वगैरह
करवाया तब वादी को माह क्षसतम्बर सि् 80 यह
जािकारी हुयी क्षक सोखी लाल के िाम से एक फजी,
क्षलखा पढ़ी अज क्षकस्म तमलीखािामा क्षड० बोडण
इटावा के हक मे 30.9.57 को तहरीर व तकमील
होिा जाक्षहर की गयी है और उसमे िम्बराि जो कव्ल
चकबन्दी थे उिका क्षजक्र है जो तहरीर क्षबल्कुल गलत
है व िीज प्रेसीडेन्ट क्षड० बोडण को तहरीर क्षलखािे का
कोई हक िही था और तहरीर मजकूर भी व मुक्षजव
कािूि क्षड० बोडण एक्ट िही क्षलखी गयी और ि क्षलखी
जा सकती थी सोखी लाल िे कोई तहरीर 30.9.57 को
क्षड० बोडण के हक मे िही क्षलखी है वह तहरीर फजी व
जाली है और उस पर सोखी लाल के क्षिशाि वगैरह
िहीिं है बन्धल्क फजी दुसरे आदमी के है व िीज वादी
को यह भी मालूम हुआ क्षक 27.8.51 को एक तहरीर
सोखी लाल व काली प्रसाद के िाम से बतौर बैिामा
वहक क्षशिा सक्षमक्षत भगवती गिंज ऊमरी तहरीर व
तकमील हुयी है जो तहरीर भी कतई िाजायज व
फजी है और उपरोक्त तहरीर पर काशी प्रसाद व
सोखी लाल के दस्तखत या क्षिशाि िही है बन्धल्क
फजी आदमी के है क्षबव फजण मुहाल अगर उपरोक्त
तहरीर सोखी लाल के द्वारा तहरीर होिा साक्षबत भी
हो तो वह भी िाजायज है और काक्षबल पाबन्दी वादी
िही है सोखी लाल को उपरोक्त तहरीर करिे का
कोई हक िही था व िीज उपरोक्त िम्बराि मे काशी
प्रसाद वल्द क्षमश्री लाल साक्षकि मौजा शुशरु परगिा
डेरापुर क्षजला कािपुर का िाम फजी खाता मशकूर
मे दजण था क्षजसका भी उिको कोई हक िही था
काशी प्रसाद कभी भी िम्बराि के माक्षलक व काक्षबज
िही रहे और ि उिका कब्जा दखल रहा बन्धल्क
बराबर कुल िम्बराि पर कब्जा दखल सोखी लाल
का ही उिके मरते समय तक चला आया।

10. यह क्षक दस्तावेज मु० 27.8.51 ई० को
सोखी लाल और काशी प्रसाद िे तहरीर िही क्षकया
और फजी है व िीज जो उपरोक्त तहरीर क्षशिा
सक्षमक्षत भगवती गिंज के हक़ मे क्षलखी गयी है इस
क्षकस्म की कोई सक्षमक्षत िहीिं रही और ि सोखी लाल
ऐसे क्षकसी सक्षमक्षत के प्रेसीडेन्ट रहे और ि क्षकसी
सक्षमक्षत का कोई कब्जा हुआ और ि कोई स्कूल बिा
और ि कोई स्कूल चला जुम्ला इन्द्राजात व जो तहरीर
मे क्षलखे है वह गलत व वगरज तहरीर फजी क्षलखे गये
है तहरीर मसकूर से कोई कब्जा दखल क्षशिा सक्षमक्षत
का िही हुआ कोई मुआवजा वगैरह सोखी लाल को
िही क्षमला। गरज क्षक जुम्ला इन्द्राज दस्तावेज क्षिजाई
के कतई बिावटी व फजी है दस्तावेज उपरोक्त का
कोई अमल दरामद िही हुआ और ि वह कभी एक्ट
अमीि हुआ।

11. यह क्षक दस्तावेज मु० 30.9.57 को भी
सोखी लाल व दीगर मुक्षकर भगवती प्रसाद क्षजसका
िाम दस्तावेज मे दजण है िे तहरीर िही क्षकया और ि
उिके दस्तखत या क्षिशाि है बन्धल्क फजी आदमी के
है व िीज़ आल्टरिेक्षटव मे भी अगर सोखी लाल का
तहरीर होिा साक्षबत भी हो तब भी यह उज्र है क्षक
सोखी लाल व दीगर मुक्षकर मुन्दजाण दस्तावेज को
तहरीर करिे का कोई हक िही था व िीज़ दस्तावेज़
मजकूर मे क्षजस कदर रकम तहरीर की गयी है। व
िीज़ जो शरायते व कान्टेंट्स क्षलखे गये है वह सब
फजी व बिावटी क्षलखे गये है और इस क्षकस्म की
कोई रकम मुन्दजाण दस्तावेज सोखी लाल को िही
क्षमली। उपरोक्त दोिो दस्तावेज कतई धोखा व
क्षमसररप्रेजेन्टशि पर भविीय है। उपरोक्त दोिो
दस्तावेज सोखी लाल व दीगर मुकराि को पढ़कर
िही सुिाये गये और ि समझाये गये और ि उन्ोिे
दफतर रक्षजस्टरी मे पेश क्षकये और ि उिकी रक्षजस्टरी
कराई और ि दफ्तर रक्षजस्टरी मे पढ़कर सुिाये गये व
समझाये गये जुम्ला कन्डोरसमेन्ट सब रक्षजस्टरर कतई
गलत वसाक्षजश कमणचारी क्षड० बोडण तहरीर हुये है व
िीज़ दस्तावेज कतई क्षफकक्षटक्षसयस व शाम दस्तावेज
है और कभी एक्ट अमीि िही हुये और काक्षबल
मिंसूखी के है। उपरोक्त दस्तावेज की क्षविाय पर कोई
कब्जा दखल माक्षलकािा क्षजला बोडण इटावा व क्षजला व
क्षजला पररषद इटावा का िम्बराि पर िही रहा।
उपरोक्त दस्तावेज कन्टेस्ट क्षबल्कुल गलत व साक्षजशी
क्षलखे गये है व िीज़ कोई कब्जा दखल सोखी लाल िे
िही क्षदया व िीज़ दस्तावेज क्षिजाई से कािूिि
जायदाद मुन्तक्षकल होिा िही मािी जावेगी और ि
एबसलूट आउिरक्षशप व हक क्षजला पररषद् क्षक्रयेट
होिा मािी जावेगी।"

15.

Reading
of
the
aforesaid
paragraphs discloses that it was a specific
case of the plaintiff/respondent that late
11 All. Zila Panchayat & Anr. Vs. Sri Krishna Lal Dixit
291
Sukhi Lal had not executed the document
dated 27.08.1951 and sale deed dated
30.09.1957 in favour of petitioner and
petitioner/defendant
got
the
aforesaid
documents executed by producing some
impostor. It is specifically pleaded in the
aforesaid paragraphs, extracted above, that
the document dated 27.08.1951 is forged
and it was never executed by late Sukhi
Lal. Similar averment has been made by
the plaintiff/respondent in respect to sale
deed dated 30.09.1957 in paragraph 11 of
the plaint, extracted above.

16. Now, whether the character of the
aforesaid documents is void or voidable, in
this regard, it would be apt to reproduce the
relevant extract of the judgement of the
Apex Court in the case of Smt. Dulari Devi
(supra):-

"In Gorakh Nath Dube, (supra),
this Court held that the object of the relevant
provision of the Act was to remove from the
jurisdiction of any civil court or revenue
court all disputes which could be decided by
the competent authority under the Act during
the consolidation proceedings. Questions
relating to the validity of a sale-deed or a gift
deed and the like had to be examined in
proceedings before the statutory authorities.
The Court, however, drew a distinction
between void and voidable documents and
said a voidable document was one which
remained in force until set aside, and such a
document could be set aside only by a
competent civil court, and a suit for that
purpose would, therefore, be maintainable.
On the other hand, a claim that a transaction
was void was a matter which could be
adjudicated upon by the consolidation courts.
This is what this Court stated:

"We think that a distinction can
be made between cases where a document
is wholly or partially invalid so that it can
be disregarded by any court or authority
and one where it has to be actually set
aside before it can cease to have legal
effect. An alienation made in excess of
power to transfer would be, to the extent of
the
excess
of
power,
invalid.
An
adjudication on the effect of such a
purported alienation would be necessarily
implied in the decision of a dispute
involving conflicting claims to rights or
interests in land which are the subject
matter of consolidation proceedings. The
existence and quantum of rights claimed or
denied will have to be declared by the
consolidation authorities which would be
deemed to be invested with jurisdiction, by
the necessary implication of their statutory
powers to adjudicate upon such rights and
interests in land, to declare such documents
effective or ineffective, but, where there is a
document the legal effect of which can only
be taken away by setting it aside or its
cancellation, it could be urged that the
consolidation authorities have no power to
cancel the deed, and, therefore, it must be
held to be binding on them so long as it is
not cancelled by a court having the power
to cancel it. In the case before us, the
plaintiffs claim is that the sale of his half
share by his uncle was invalid, inoperative,
and
void.
Such
a
claim
could
be
adjudicated upon by consolidation courts."

In Ningawwa v. Byrappa & three
others., (supra), this Court referred to the
well-established principle that a contract
or other transaction induced or tendered by
fraud is not void, but only voidable at the
option of the party defrauded. The
transaction remains valid until it was
avoided. This Court then said:

"The legal position will be
different
if
there
is
a
fraudulent
misrepresentation not merely as to the
contents of the document but as to its
character. The authorities make a clear
292 INDIAN LAW REPORTS ALLAHABAD SERIES
distinction
between
fraudulent
misrepresentation as to the character of the
document and fraudulent misrepresentation
as to the contents thereof. With reference to
the form- er, it has been held that the
transaction is void, while in the case of the
latter, it is merely voidable. In Foster v.
Mackinon, 1869 (4) C.P. 704, the action
was by the endorsee of a bill of exchange.
The defendant pleaded that he endorsed the
bill on a fraudulent representation by the
acceptor that he was signing a guarantee.
In holding that such a plea was admissible,
the Court observed:

"It (signature) is invalid not
merely on the ground of fraud, where fraud
exists, but on the ground that the mind of
the
signer
did
not
accompany
the
signature; in other words, that he never
intended
to
sign,
and
therefore
in
contemplation of law never did sign, the
contract to which his name is appended .....
The defendant never intended to sign that
contract or any such contract. He never
intended to put his name to any instrument
that then was or thereafter might become
negotiable. He was deceived, not merely as
to the legal effect, but as to the 'actual
contents' of the instrument."

 (emphasis supplied)

From the facts narrated above,
about which, as stated earlier, there is no
dispute, it is clear that this is a case where
the plaintiff appellant was totally ignorant
of the mischief played upon her. She
honestly believed that the instrument which
she executed and got registered was a gift
deed in favour of her daughter. She
believed that the thumb impressions taken
from her were in respect of that single
document. She did not know that she
executed two documents, one of which
alone was the gift deed, but the other was a
sale of the property in favour of all the
defendants. This was, therefore, a case of
fraudulent misrepresentation as to the
character of the document executed by her
and not merely as to its contents or as to its
legal effect. The plaintiff-appellant never
intended to sign what she did sign. She
never intended to enter into the contract to
which she unknowingly became a party.
Her mind did not accompany her thumb
impressions. This is a case that falls within
the principle enunciated in Ningawwa v.
Byrappa & three others (supra) and it was,
therefore, a totally void transaction.
Accordingly, as stated in Gorakh Nath
Dube (supra), the suit is not maintainable
by reason of the bar contained in the Act.

The High Court has, in our view,
rightly held that the remedy of the plaintiff
lies in the proceedings pending before the
consolidation authorities and it is open to
the
parties
to
approach
them
for
appropriate relief. In the circumstances, we
see no merit in this appeal. It is,
accordingly, dismissed, but we make no
order as to costs."

17. In the aforesaid case, the Apex
Court has drawn a distinction between void
and voidable documents and has held that
where there is fraudulent misrepresentation
as to the character of a document executed
by a person, it would be a void document,
but in case where there is fraudulent
misrepresentation as to the contents of the
document, the character of a document is
voidable.

18. Applying the aforesaid principles
in the instant case, it is evident from the
pleadings in the plaint, extracted above,
that the case of the plaintiff/respondent is
that the documents in question were never
executed by late Sukhi Lal nor any
impression was put by him on these
documents, therefore, clearly the said
documents are void documents as in the
11 All. Zila Panchayat & Anr. Vs. Sri Krishna Lal Dixit
293
instant
case
there
was
fraudulent
misrepresentation as to the character of the
document and not to the contents thereof,
therefore, in the opinion of the Court, both
the courts below have erroneously held that
documents
in
question
are
voidable
document and are not void document.

19. The record of the case also reveals
that though on the date of institution of suit,
the area was not under the consolidation
operation, but same was brought under
consolidation operation by publication of
notification under Section 4 of the Act,
1953 on 01.10.1983 and consolidation
operation in the area was over on
03.10.2009,
therefore,
since
during
pendency of suit, consolidation operation
had commenced in the area, the suit ought
to have been abated by the court below as
the relief prayed for in the instant suit could
be granted only by consolidation court.

20. Now in the instant case, another
question
cropped
up
as
to
when
consolidation operation has ended in the
area after publication of notification under
Section 5(2)(a) of the Act, 1953 on
30.09.2009, whether petitioner is entitled to
any relief, and whether the suit is
cognizable by civil court. In this regard, it
would be relevant to peruse the paragraph 8
of the plaint, extracted above, wherein it is
a admitted case of the plaintiff/respondent
that names of the petitioner/defendant have
been recorded in the revenue records. In
such view of the fact, learned counsel for
the petitioner has urged that the suit is not
cognizable by civil court and is cognizable
by revenue court.

21. This Court finds merit in the
aforesaid submission of learned counsel for
the petitioner in view of the judgements of
Apex Court in the cases of Shri Ram and
Another (supra) and Pyarelal (supra). It
would be apt to refer paragraph 7 of the
judgement of Apex Court in the case of
Shri Ram and Another (supra) which is
reproduced herein below:-

"7. On analysis of the decisions
cited above, we are of the opinion that
where a recorded tenure-holder having a
prima facie title and in possession files suit
in the civil court for cancellation of sale
deed having obtained on the ground of
fraud or impersonation cannot be directed
to file a suit for declaration in the revenue
court reason being that in such a case,
prima facie, the title of the recorded tenure
holder is not under cloud. He does not
require declaration of his title to the land.
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."

22. The judgement of Apex Court in
the case of Shri Ram and Another (supra)
has been followed by the Apex Court in the
case of Pyarelal (supra) wherein Apex
Court placing reliance upon a case arising
out Section 207 read with Section 256 of
the Rajasthan Tenancy Act has held that
suit is cognizable by revenue court.
Paragraphs 24 to 26 of the said judgement
are being reproduced herein below:-

"24. In Shri Ram v. Addl. District
Judge, (2001) 3 SCC 24, a suit was filed
before the civil court for the cancellation of
a sale deed of an agricultural land on the
294 INDIAN LAW REPORTS ALLAHABAD SERIES
grounds of fraud and impersonation. The
defendant contended that the suit is barred
by Section 331 of the Uttar Pradesh
Zamindari Abolition and Land Reforms
Act, 1950 which reads thus:

"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 (V of
1908), take cognizance of any suit,
application, or proceedings mentioned in
Column 3 thereof or of a suit, application
or proceedings based on a cause of action
in respect of which any relief could be
obtained by means of any such suit or
application:

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

25. The question before this
Court was whether a recorded tenureholder having prima facie title in his favour
and in possession was required to file a suit
in the Revenue Court, or where the civil
court had jurisdiction to entertain and
decide
the
suit
seeking
relief
of
cancellation
of
a
void
document.
Upholding the jurisdiction of civil court to
try the suit, a two-Judge Bench of this
Court differentiated between a recorded
tenure holder, and an unrecorded tenure
holder with the following observations:

7. ...we are of the opinion 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 require declaration 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.

26. Though the above principles
emerge in the context of the bar under
Section 331 of the Uttar Pradesh
Zamindari Abolition and Land Reforms
Act, 1950, the logic of the judgment
extends to the bar under Section 207 read
with Section 256 of the of the Tenancy
Act. A recorded khatedar stands on a
different footing compared to a claimant
seeking a decree of their khatedari rights.
A claimant seeking a decree of khatedari
rights is barred from filing a suit in the
civil court prior to their khatedari right
being decreed by a Revenue Court when
the relief sought for by the civil court
includes a determination of khatedari
rights."

23. As in view of the categorical
averment made in paragraph 8 of the plaint,
name of the petitioner/defendant have been
recorded in the revenue record, therefore,
the suit is not cognizable by civil court and
is cognizable by revenue court.

24. In such view of the fact, the
impugned orders dated 21.08.1999 and
24.07.2003 are not sustainable in law and
are hereby, set aside. The writ petition is
allowed with no order as to costs.
11 All. Smt. Tulsarani & Anr. Vs. Union of India & Ors.
295

25. It is open to the plaintiff/
respondent to file suit for the relief
claimed, if so, advised, before the revenue
court.
----------
(2022) 11 ILRA 295
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.09.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Matter under Article 227 No. 56 of 2022

Smt. Tulsarani & Anr. ...Petitioners
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Nand Kishor Mishra, Shilpa Ahuja

Counsel for the Respondents:
A.S.G.I., C.S.C., Sri Jai Krishna Narain Sharma,
Sri Pranjal Mehrotra

A. Civil Law - National Highways Act,
1956-Section
3G(5)-Arbitration
and
Conciliation
Act,
1996-Section
34Commercial
Courts
Act,
2015-Section
2(1)(c)-Right to Fair Compensation and
Transparency
in
Land
Acquisition,
Rehabilitation
and
Resettlement
Act,
2013-Section
113(1)
and
67Compensation-Petitioner's land has been
acquired
for
purpose
of
a
National
Highway-petitioner
challenged
the
Statutory
award
for
seeking
enhancement-property belonging to the
petitioner
was
compulsorily
acquired
under the provisions of the Act, 1956,
therefore it is by no means a 'commercial
dispute' within the meaning of section
2(1)(c) of the Commercial Courts Act,
2015- Thus, the Application u/s 34 of Act
of 1996 would not be maintainable before
Commercial Court.(Para 1 to 20)

The writ petition is dismissed. (E-6)

List of Cases cited:
1. UOI & anr. Vs Tarsem Singh & ors. (2019) 9
SCC 304

2. Richa Bisht Vs UOI (2020) AIR Online UTR
478

(Delivered by Hon'ble J.J. Munir, J.)

1. This petition under Article 227 of
the Constitution is directed against an order
of the Presiding Officer, Commercial
Court, Jhansi dated 28.09.2021, to the
extent it directs return of Arbitration Misc.
Case No. 52 of 2021 and Arbitration Misc.
Case No. 2 of 2021, under Section 34 of the
Arbitration and Conciliation Act, 1996, for
presentation to the proper Court.

2. It is common ground between
parties that the petitioners' land comprised
in a part of Arazi No. 73 of Village
Raimalpura,
Tehsil
Kulpahar,
District
Mahoba, was acquired by the Central
Government for widening of National
Highway No. 76 from 89.600 kms. to
133.520 kms. The petitioners' land in Arazi
No. 73 aforesaid, which shall hereinafter be
called ''the land in question' was acquired
through a Notification No. 2345 dated
18.08.2017, issued and published by the
Central Government under Section 3(2) of
the National Highways Act, 1956 (for
short, ''the Act of 1956'). The notification
last
mentioned
was
followed
by
Notification No. 3378 dated 08.12.2017,
published in the Gazette Extraordinary
dated 08.12.2017 of the Government of
India. Under the said notifications, a total
0.7507 hectare of land was acquired in
Village Raimalpura, out of which 0.6587
hectare was found to be agricultural land,
while the balance 0.0920 hectare was
determined as State land. The land in