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SUPREME COURT OF INDIA
M.N. VENKATACHALIAH AND M.M. PUNCHHI, JJ.
Smt. Bismillah, Appellant
Versus
Janeshwar Prasad and others, Respondents.
Civil Appeal No. 4884 of 1989 (Arising out of Spl. Leave Petn. (Civil) No. 1053 of 1985), D/-5-12-1989.
Civil Procedure Code 1908 – U. P. Consolidation of Holdings Act, 1954 – U. P. Zamindari Abolition and Land Reforms Act – Section 331 – Consequential- Fraudulent- Collusive- High Court by its order was persuaded to in reversal of finding to contrary on preliminary issue as to jurisdiction recorded by trial Court that averments in plaint in substance amounted to a plea of nullity of transactions and that main-relief in suit was really one for possession grantable exclusively by Revenue Court – Accordingly High Court directed return of plaint for presentation to proper Court – Appellants case before trial Court was that she only daughter of Nawab Nurul Rahman Khan inherited his estate that as she was paradanashin she on representation of respondents appointed them as her agents to manage estate under an instrument of agency that said document drafted in Hindi a language not known to appellant was later discovered by her to have contained an unauthorised clause empowering sale of properties – Held, Case of Indra Deo v. Smt. Ram Pyari has been correctly decided and said decision requires no consideration, while the Division Bench case regarding the jurisdiction of consolidation authorities but so far as it holds that suit in respect of void document will lie in 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 recorded tenure-holder having prima facie title in can hardly be directed to approach Revenue Court in respect of seeking relief for cancellation of a void document which made him to approach Court of Law and in such case he can also claim ancillary relief even though same can be granted by Revenue Court – Appeal allowed.
The Civil Court has jurisdiction where the cause of action falls within the class of cases requiring adjudication to get rid of a deed's binding effect. The prayer for cancellation is not illusory merely because the sales may be void. (Para 3 , 4 , 5 )
Where a transaction is void, the statutory authority may take note of its legal incidents. But where relief requires setting aside a deed by adjudication, the Civil Court has jurisdiction. The substance of the case determines this, not stray expressions in the plaint. (Para 3 , 4 )
The non est factum defence concerns the validity of the transaction. Fraudulent misrepresentation as to the character of a document renders it void; as to contents, it renders it voidable. Jurisdiction depends on the nature of the relief sought, not the defence raised. (Para 6 )
A suit for cancellation of a void document will generally lie in the Civil Court. A party cannot be deprived of this permissible relief except where a declaration of right or status is necessarily needed. (Para 7 )
JUDGMENT
VENKATACHALIAH, J.:- The question raised in this petition for special leave is whether the jurisdiction of the Civil Court to entertain appellants suit No. 254 of 1980 in the Court of Additional Civil Judge, Saharanpur for cancellation of certain sale-deeds respecting agricultural lands, and for possession is barred by S. 331 of the U. P. Zamindari Abolition and Land Reforms Act, (1951 Act).
The High Court by its order dated 30th November, 1984, in Civil Revn. No. 379 of 1983 (reported in 1985 All LJ 325) was persuaded to the, view, in reversal of the finding to the contrary on the preliminary issue as to jurisdiction recorded by the trial Court that the averments in the plaint in substance amounted to a plea of nullity of the transactions and that the main-relief in the suit was really one for "possession", grantable exclusively by the Revenue Court. Accordingly, the High Court directed the return of the plaint for presentation to the proper Court.
We have heard Dr. Shankar Ghosh, learned Senior Advocate for the appellant and Shri R. K. Jain, learned Senior Advocate for the respondents. Special leave is granted. The appeal is taken up for final hearing, heard and disposed of by this judgment.
2. Appellants case before the trial Court was that she, as the, only daughter of Nawab Nurul Rahman Khan inherited his estate; that as she was paradanashin she on the representation of respondents 1 to 3 appointed them as her agents to manage the estate under an instrument of agency dated 17-4-1969, that the said document drafted in Hindi, a language not known to appellant, was later discovered by her to have contained an unauthorised clause empowering sale of the properties; and that taking advantage of appellants absence from India, the said agents had entered into fraudulent and collusive sales respecting the properties in favour of the other respondents, who are their close relatives and confidants. Appellant sought the cancellation of the sale deeds, delivery of possession and rendition of accounts of incomes and profits.
Respondents, inter alia, pleaded, that the jurisdiction of the Civil Court to take cognizance of such a suit was barred under S. 331 of the Act. The issue No. 4 framed in this behalf was tried as a preliminary issue on which the trial Court held against the respondents. The High Court, in revision, has reversed that finding and has held the suit not maintainable in the Civil Court.
3. Section 331 of the Act provides:
"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 a 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.
Provided that where a declaration has been made under Section 143 in respect of any holding or part thereof, the provisions of Schedule II in so far as they relate to suits, applications, or proceedings under Chapter VIII shall not apply to such holding or part thereof.
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 identical to that which the revenue court would have granted.
(1-A) Notwithstanding anything in subsection (i) an objection that a court mentioned in column 4 of Schedule II, or as the case may be, a civil court, which had no jurisdiction with respect to the suits, application or, proceedings, exercised jurisdiction with respect thereto shall not be entertained by any appellate or revisional court unless the objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there h
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