JUDGMENT :- This is a plaintiffs second appeal arising from a suit for cancellation of an instrument of sale executed by one Smt. Ujji in favour of the second defendant on the 18th April, 1963 in respect of a large number of plots of agricultural land and a house detailed at the foot of the plaint. The plaintiffs allegations were that they were members of a Hindu joint family, in which Smt. Ujji was a widowed daughter of Jokhu Lal; that the property in suit was ancestral and it was got entered in the name of Smt. Ujji after the death of Jokhu Lal for securing her maintenance; that in fact she was not the owner and was not in actual possession over any part of the land; that the sale-deed executed was fictitious and was motivated by a desire to deprive the plaintiffs of their right to the property. The defendants contested the suit on the grounds, among others that the Civil Court had no jurisdiction to try the suit and that the suit was not maintainable.

2. Of the issues framed by the trial court, issues Nos. 2 and 3, namely, " Is the suit not maintainable? and. " Is the suit not triable by this Court?" were tried as preliminary issues. The learned Munsif found that the suit is not maintainable and that the Civil Court had no jurisdiction to try it inasmuch as the substance of the relief claimed, i. e., a declaration of the rights of the parties could be obtained by the plaintiffs from the revenue courts. On appeal, the lower appellate court has said nothing about the finding of the trial court on the point of jurisdiction of the Civil Court to try the suit but has confirmed the decree of the trial court dismissing the suit on the ground that it was not maintainable under Section 31 of the Specific Relief Act.

3. On the plaint allegations, which have already been referred to above, it cannot be denied that the plaintiffs were the persons against whom the sale deed was void or voidable and they had reasonable apprehension that if the instrument was left outstanding it may cause serious injury to their rights. I have said void or voidable because the plaint allegations were that Smt. Ujji was not the real owner of the property. It is one thing to say that the suit was not maintainable and quite another thing to dismiss the suit on the ground that the plaintiffs allegations are not made out. The matter has not yet been tried at all. I entirely fail to see how the learned Civil Judge who heard the appeal came to the conclusion that the suit was not maintainable under S. 31 of the Specific Relief Act

4. The learned counsel for the respondents invited my attention to the case of Debi Prasad v. Smt. Maika, (AIR 1972 All 376). Now, in the present case if the executant of the sale-deed was holding the property in her own right, it could certainly bind the members of the Hindu joint family to which she belongs. On the otther hand, if the property was only held in her name to secure for her a right of maintenance, and she was in fact not the owner of the property as alleged in the plaint then in that case the sale-deed was certainly one which purported to wrongfully deprive the plaintiffs of their right to the property, and they were certainly entitled to have it cancelled in order to safeguard their rights. The principle laid down in that case does not, therefore, help the respondents.

5. With regard to the point about the jurisdiction of the Civil Court to try the suit, it must firstly be observed that the trial court has failed to notice in its findings, the fact that besides the plots of agricultural land, a house was also involved, and the lower appellate court has not dealt with this point at all. At any rate from a reading of the plaint allegations, and the fact that the suit was filed for cancellation of the sale-deed, it is apparent that the jurisdiction of the Civil Court was not ousted in this case by Section 331 of the U. P. Zamindari Abolition and Land Reforms Act. The plaintiff s could not get any declaration of their rights

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