A recorded tenure holder with prima facie title and in possession can file a suit in the civil Court for cancellation of a sale deed obtained on grounds of fraud or impersonation, without the need to approach the revenue Court for a declaration.

Judgment

V. N. KHARE, J.

( 1 ) THE question for decision in this appeal is whether a suit laid in the civil Court by a recorded tenure holder in possession for cancellation of the sale deed in favour of the respondents executed by some imposters in respect of the land is barred under Section 331 and Schedule II of the U. P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act ). The aforesaid question has arisen out of a suit brought by the plaintiff-appellants for cancellation of sale deed alleged to be executed in favour of respondent Nos. 3 and 4. The case of the plaintiff-appellants is that one Smt. Vidyawati Devi, who was the owner and Bhumidar of the land in dispute, transferred the said plot of land by a registered sale deed dated 12/07/1984 in their favour. Subsequently, the vendor Smt. Vidyawati Devi delivered the possession of the said plot of the land to the appellants and accordingly their names got mutated in the revenue records. The further case of the appellants is that, subsequently, defendant-respondent Nos. 3 and 4 forged an agreement for sale of the said plot of land in their favour. It is also the case of the appellants that on 24/07/1984, respondent Nos. 3 and 4 got the sale deed executed in their favour by projecting some imposter as Smt. Vidyawati Devi for an alleged consideration of Rs. 60,000. 00 and on the strength of the said forged sale deed, defendant-respondent Nos. 3 and 4 attempted to interfere with the possession of the appellants over the said plot of land. It is under such circumstances the appellants brought a suit in civil Court for cancellation of the sale deed dated 24/07/1984 as well as for grant of injunction. Before the trial Court, defendant-respondents took up the plea that the suit filed by the appellant is barred by Section 331 and Schedule II of the Act and the remedy available to the appellants is to file a suit in the revenue Court. This plea of the defendant-respondents was treated as a preliminary issue and was decided in favour of the appellants. The respondents thereafter preferred an appeal against the order of the trial Court which was dismissed. However, the writ petition filed by the respondents against the appellate order was allowed by the High Court and the orders passed by the trial Court as well as the appellate Court were set aside. The appellants thereafter filed a review petition which was dismissed by an order dated 4/10/1996. The High Court, while allowing the writ petition was of the view that since Smt. Vidyawati Devi the original owner (vendor) has not filed any suit for cancellation of the sale deed dated 24/07/1984 in the civil Court, the suit filed by the appellants was barred by Section 331 and Schedule II of the Act and the remedy available to the appellants is to file suit in the Revenue Court. The validity of the said order and judgment of the High Court is impugned in the present appeal.

( 2 ) LEARNED counsel appearing for the appellants urged that the view taken by the High Court that since vendor Smt. Vidyawati Devi has not filed any suit for cancellation in the civil Court and, therefore, the suit filed by the appellants was not maintainable in civil Court is erroneous and based on no evidence. He further argued that there was ample evidence on record to show that Smt. Vidyawati Devi has also filed a suit in Civil Court praying for cancellation of the sale deed dated 24/07/1984. We have looked into the record and find that Smt. Vidyawati Devi has also filed a suit in civil Court for cancellation of the alleged sale deed dated 24/07/1984. This is not disputed by learned counsel for the respondents. We, therefore, find that the very premise on which the writ petition was allowed is based on no evidence.

( 3 ) LEARNED counsel appearing for the respondents then urged that assuming that Smt. Vidyawati Devi did file a suit for cancellation of the sale deed dated 24/07/1984 in the civil Court still the suit filed by the appell