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2010 Supreme(All) 3506
[2011(2) ADJ 661]
ALLAHABAD HIGH COURT
BEFORE : PANKAJ MITHAL, J.
Smt. CHANKALI …Appellant
Versus
DOODH NATH MANI AND OTHERS …..Respondents
(Second Appeal No. 1013 of 2010, decided on 4th October, 2010)
Counsel :
Santosh Kumar Mishra and R.C. Singh for the Appellant; R.B. Tripathi and Nitin Chandra Mishra for the Respondents.
Headnote:(A) Code of Civil Procedure, 1908—Sections 100 and 9—U.P. Zamindari Abolition and Land Reforms Act, 1950—Section 331—Specific Relief Act, 1963—Section 31—Sale-deed—Cancellation of—Permanent injunction—Decree for—Deceased bequeathed registered will in favour of plaintiff—Her name was mutated on basis of Will by Naib-Tehsildar—Defendants manipulated a sale-deed alleged to executed by deceased—Within five days of registration of alleged sale-deed defendants obtained mutation of their names—Plaintiff applied for its recall—The same was recalled—Revision against—On above ground plaintiff instituted suit for cancellation of registered sale-deed—Section 9 of Code confers jurisdiction upon Civil Court to determine all disputes of Civil nature—Unless the same are barred under statute either expressly or by necessary implication—Combined reading of Section 9 of Code and Section 31 of Act lead to inavoidable conclusion that a suit for cancellation of a void or voidable document is of a Civil nature—Which is ordinarily cognizable by a Civil Court—Unless its jurisdiction is expressly or impliedly stands ousted under a statute—Admittedly, plaintiff has not sought any declaration of his rights in land in dispute—But, only cancellation of a sale-deed/document—Entries in revenue records in no way extinguishes or creates title in favour of person recorded—Nonetheless such entries have prima facie evidentiary value—Name of plaintiff recorded by order of Naib Tehsildar remained unchallenged—She has prima facie title to land in dispute—"Amaldaramad" in respect of defendants stand recalled—Suit instituted for cancellation of sale-deed is not barred by Section 331 of Act. [Paras 2, 3, 11, 12, 13, 19, 20, 23 and 27]
(B) Specific Relief Act, 1963—Section 31—Document—Void or Voidable—Connotation of—A void document is one which is illegal from very inception and can be ignored—Whereas avoidable document is one which remains in force unless avoided at option of party. [Para 9]
(B) Specific Relief Act, 1963—Seciton 31—Cognizance—Cancellation of document—Power of Civil Court—Section 31 confers jurisdiction upon Civil Court to take cognizance of suit—For cancellation of a void or voidable document. [Para 9]
Hon’ble Pankaj Mithal, J.—Plaintiff Smt. Chankali instituted a suit for cancellation of the sale-deed dated 7.1.1983 and for a decree of permanent injunction in respect of the land covered by the aforesaid sale-deed.
2. According to the plaintiff, she is the only daughter of Ram Ashish who expired early morning at 4 a.m. on 7.1.1983. The said Ram Ashish during his life time, on 11.9.1979 had executed a registered Will bequeathing his moveable and immoveable property to her. On his death, she applied for mutation of her name on the basis of the aforesaid Will and the Naib Tehsildar vide order dated 5.5.1983 directed for recording her name.
3. The defendants manipulated a sale-deed dated 7.1.1983 alleged to have been executed by the aforesaid Ram Ashish. The sale-deed was registered on 8.4.1983 and within five days of its registration, on 13.4.1983 an order was obtained by defendants for mutation of their names. In pursuance to the said order, the defendants names were entered in the revenue record on 25.5.1983. Plaintiff acquired knowledge of the said order, applied for its recall and the same was recalled vide order dated 2.9.1984. The above order was challenged by the plaintiff in appeal. It was set aside on 16.3.1985 and the matter was remanded. The defendants challenged aforesaid order in revision which was ultimately dismissed on 16.1.2004.
4. In short, the mutation order dated 13.4.1983 passed in favour of the defendants stood recalled vide order dated 2.9.1984 against which the application of the defendants for recalling the same is pending pursuant to the order of remand dated 16.3.1985 which has been affirmed in revision.
5. The plaintiff in the above back ground instituted the suit for cancellation of the sale-deed dated 7.1.1983 registered on 8.1.1983 allegedly executed by Ram Ashish in favour of the defendants and the main ground of challenge is that it is a fraudulent document as it was not possible for Ram Ashish to execute any sale-deed on 7.1.1983 as he died very early in the morning at 4 a.m. on the said date. In the suit one of the issues raised was as to whether the suit was barred by Section 331 of the U.P. Zamindari Abolition and Land Reforms Act. The Court below held that it is not barred and is cognizable by Civil Court. The suit was decreed by the Court of first instance by judgment and order dated 24.11.2008.
6. Aggrieved by the decree so passed by the lower Court, the defendants preferred civil appeal No. 184 of 2008, Doodhnath Mani and others v. Smt. Chankali. In the appeal several points for determination were formulated but the lower appellate Court vide order dated 18th August, 2010 allowed the appeal and after setting aside the decree of the lower Court dismissed the suit of the plaintiff holding that the Civil Court lacks jurisdiction and the suit is not maintainable in view of the bar contained in Section331 of the U.P. Zamindari Abolition and Land Reforms Act. No other point was discussed.
The aforesaid judgment, order and decree of the lower appellate Court dated 18th August, 2010 has been challenged by the plaintiff in this second appeal.
7. I have heard Sri R.C.Singh, learned counsel for the plaintiff/appellant and Sri R.B.Tripathi, learned counsel for the defendant/respondents who agreed to address the Court on merits for final disposal of the appeal at the admission stage itself.
8. Counsel for the appellant has argued that the suit for cancellation of sale-deed which is based on fraud is not barred by Section 331 of the U.P. Zamindari Abolition and Land Reforms Act at the instance of the plaintiff whose name has been ordered to be mutated against the land in dispute.
9. The submission of Sri Tripathi on the other hand, is that the plaintiff is not the recorded tenure holder of the land in dispute and, therefore, merely on the basis of order of mutation, she cannot maintain the suit before the Civil Court whereas the name of the defendants has been recorded as per Amaldaramad dated
