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IN THE HIGH COURT OF ALLAHABAD
D. K. Seth, J.
MAHABIR SINGH - Appellant
Versus
DISTRICT JUDGE, FATEHPUR - Respondents
C. M. W. P. 10339 Of 1998
Decided On : 04/07/1998
U. P. Z. A. AND L. R. ACT - SECTION 331, 5(2) - CANCELLATION OF SALE DEED - ABATEMENT OF SUIT - STAY OF SUBSEQUENTLY INSTITUTED SUIT - CIVIL COURT JURISDICTION - REVENUE COURT JURISDICTION - INTERPRETATION OF STATUTORY PROVISIONS.
Fact of the Case:
A suit was filed in a civil court seeking cancellation of a sale deed in respect of 1/45 share of the plaintiff. The defendant raised preliminary objections that the suit was barred under Section 331 of the U. P. Zamindari Abolition and Land Reforms Act, 1950 (U. P. Z. A. and L. R. Act), Section 5(2) of the U. P. Consolidation of Holdings Act, and Section 10 of the Code of Civil Procedure (C. P. C.). The trial court overruled the objections, and the revision petition filed against this order was also dismissed. The plaintiff challenged these orders in a writ petition before the High Court.
Finding of the Court:
The High Court held that the suit was not barred under Section 331 of the U. P. Z. A. and L. R. Act as the relief sought, cancellation of the sale deed, was not mentioned in Schedule II of the Act, which lists the reliefs that are cognizable by revenue courts. The court also held that the suit was not liable to be abated under Section 5(2) of the U. P. Consolidation of Holdings Act as the relief sought was not for correction of records or declaration of any right or interest in land. Finally, the court held that Section 10 of the C. P. C. did not apply as the two courts had no jurisdiction to grant the reliefs sought in the respective proceedings.
Issues: 1. Whether the suit was barred under Section 331 of the U. P. Z. A. and L. R. Act? 2. Whether the suit was liable to be abated under Section 5(2) of the U. P. Consolidation of Holdings Act? 3. Whether the suit was stayed under Section 10 of the C. P. C.?
Ratio Decidendi: 1. Section 331 of the U. P. Z. A. and L. R. Act bars civil courts from taking cognizance of suits for reliefs mentioned in Schedule II of the Act. However, the relief sought in the present case, cancellation of the sale deed, was not mentioned in Schedule II and therefore, the suit was not barred under Section 331. 2. Section 5(2) of the U. P. Consolidation of Holdings Act provides for abatement of suits for correction of records or declaration of rights or interests in land. The relief sought in the present case was not for correction of records or declaration of any right or interest in land and therefore, the suit was not liable to be abated under Section 5(2). 3. Section 10 of the C. P. C. provides for stay of subsequently instituted suits where the parties are the same and the relief claimed can be granted by the court in the first suit. However, in the present case, the two courts had no jurisdiction to grant the reliefs sought in the respective proceedings and therefore, Section 10 of the C. P. C. did not apply.
Final Decision: The writ petition was dismissed.
( 1 ) A suit being Civil Suit No. 795 of 1994 was initiated before the learned Munsif. Fatehpur. On the basis of the pleadings several issues were framed. Issue Nos. 2, 3 and 4 were taken up for decision as preliminary issues and were overruled by the learned Munsif by an order dated 20. 9. 1996. Civil Revision No. 104 of 1996 arising thereout was also dismissed by an order dated 9. 12. 1997. These two orders have been challenged before this Court by means of this writ petition.
( 2 ) MR. Akhllesh Chandra Varma, learned counsel for the petitioner assails the said orders on the ground that both the Courts have acted illegally in overruling the preliminary objections inasmuch as though the prayer was couched as a relief seeking cancellation of a sale deed in respect of 1/45 share of the plaintiff, it is in effect a relief for declaration of a share in disguise which is cognizable by a revenue court under Serial No. 16 of Schedule II inasmuch as such division can be obtained under Section 176 of the U. P. Zamindari Abolition and Land Reforms act. 1950 (hereinafter called as the U. P. Z. A. and L. R. Act ). His second ground, according to him, was that admittedly proceeding for declaration of share are pending before the revenue court and, therefore, the proceedings cannot proceed further in the civil court which was instituted subsequently between the parties claiming the relief, in view of Section 10 of the Code of Civil Procedure. His third contention is that the suit is liable to be abated by reason of Section 5 (2) of the U, P. Consolidation of Holdings Act.
( 3 ) 1 have heard Mr. Varma at length.
( 4 ) THE Issue Nos. 2, 3 and 4 are as follows : Issue No. 2--whether the suit is liable to be stayed under Section 10 of C. P. C. ; Issue No. 3--whether the suit is liable to be abated under Section 5 (2) of Consolidation of Holdings Act ; and Issue No. 4--whether the suit is barred under Section 331 of U. P. Z. A. and L. R. Act.
( 5 ) SO far Issue No. 4 is concerned, Section 331 of U. P. Z. A. and L. R. Act provides as follows :
"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 No. 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. (1a) Notwithstanding anything in sub-section (1), 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 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 has been a consequent failure of justice ;
(2) Except as hereinafter provided no appeal shall lie from an order or decree passed under any of the proceedings mentioned in Column No. 3 of the Schedule aforesaid ;
(3) An appeal shall lie from any decree or from an order passed under Section 47 or an order of the nature mentioned in Section 104 of the Code of Civil Procedure. 1908 (V of 1908) or in order XLIII, Rule 1 of the First Schedule to that Code passed by a Court mentioned in Column no. 4 of Schedule II to this Act in proceedings mentioned in Column No. 3 thereof to the Court or authority mentioned in Column No. 5 thereof ;
(4) A second appeal shall lie on any of the grounds specified in Secti
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