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IN THE HIGH COURT OF ALLAHABAD
Rajiv Joshi, J.
Kumari Reeta - Appellants
Vs.
Vivek Kumar Singh and Ors. - Respondents
Second Appeal No. 1164 of 2018
Decided On : 04-12-2018
Constitution of India, 1950 – Article 227 – Code of Civil Procedure, 1908 – Order 7 Rule 11(d) –U.P. Zamindari Abolition and Land Reforms Act – Sections 171, 331, 331(1) –Plaintiff-appellant filed suit for cancellation of sale-deed executed by her mother in favour of defendant-respondent first set – It was stated in plaint that admittedly Gorakh father of plaintiff, was recorded 'bhumidhar' of land in suit who died – After his death, his widow, defendant second set, applied for mutation which was allowed by Tahsildar vide order and her name was recorded in revenue record in place of Gorakh –Plaintiff-appellant being daughter of Gorakh and defendant second set, claims to be co-bhumidhar of the disputed land – Name of her mother has been fraudulently recorded in revenue record although she is co-sharer alongwith her mother having half share in disputed land –In plaint that her mother- had executed sale-deed in favour of defendant first set beyond her share for which she has got no right and as such sale-deed beyond her share is void and therefore, relief for cancellation of sale deed, was claimed – During pendency of suit defendant first set filed application for rejection of plaint on ground that admittedly plaintiff is not recorded tenure holder and since sale deed which is executed in their favour is claimed to be void to extent of share of plaintiff – Application filed by defendant first set for rejection of plaint, was rejected by trial Court, against which revision was preferred and same was allowed by revisional Court –Order of revisional Court was challenged by plaintiff-appellant in matter which was disposed of by this Court with direction to decide application for rejection of plaint without being influenced by finding so recorded by revisional Court –Held, There appears to be no illegality or infirmity in orders passed by both Courts –Proposed substantial questions of law framed by appellants in appeal do not involve any legal issue – Appeal Dismissed. (Para 25)
Facts of The Case:
U.P. Zamindari Abolition and Land Reforms Act – Sections 171, 331, 331(1) –Plaintiff-appellant filed suit for cancellation of sale-deed executed by her mother in favour of defendant-respondent first set – It was stated in plaint that admittedly Gorakh father of plaintiff, was recorded 'bhumidhar' of land in suit who died – After his death, his widow, defendant second set, applied for mutation which was allowed by Tahsildar vide order and her name was recorded in revenue record in place of Gorakh –Plaintiff-appellant being daughter of Gorakh and defendant second set, claims to be co-bhumidhar of the disputed land – Name of her mother has been fraudulently recorded in revenue record although she is co-sharer alongwith her mother having half share in disputed land –In plaint that her mother- had executed sale-deed in favour of defendant first set beyond her share for which she has got no right and as such sale-deed beyond her share is void and therefore, relief for cancellation of sale deed, was claimed – During pendency of suit defendant first set filed application for rejection of plaint on ground that admittedly plaintiff is not recorded tenure holder and since sale deed which is executed in their favour is claimed to be void to extent of share of plaintiff – Application filed by defendant first set for rejection of plaint, was rejected by trial Court, against which revision was preferred and same was allowed by revisional Court –Order of revisional Court was challenged by plaintiff-appellant in matter which was disposed of by this Court with direction to decide application for rejection of plaint without being influenced by finding so recorded by revisional Court.
Finding of The Court:
There appears to be no illegality or infirmity in orders passed by both Courts –Proposed substantial questions of law framed by appellants in appeal do not involve any legal issue.
Result: Appeal Dismissed.
JUDGMENT :
Rajiv Joshi, J.
1. Heard Sri Atul Kumar Srivastava, learned counsel for the appellant and Sri A.K. Shukla, Advocate holding brief of Krishnaji Khare for the respondents.
2. The present second appeal has been filed by the plaintiff-appellant challenging the judgment and decree dated 6.8.2018/20.8.2018 passed by the Additional District Judge/F.T.C. Court No. 2 Ghazipur whereby the Civil Appeal No. 50 of 2017 field by the appellant has been dismissed and the decree of the trial Court dated 25.9.2017 rejecting the plaint under Order 7 Rule 11 (d) of the Code of Civil Procedure, has been affirmed.
3. The fact as reflect from the record are that the plaintiff-appellant filed a suit for cancellation of sale-deed executed by her mother Smt. Mewati Devi on 9.12.2013 (registered on 10.12.2013) in favour of the defendant-respondent first set i.e. defendant Nos. 1 to 3 It was stated in the plaint that admittedly Gorakh father of the plaintiff, was recorded 'bhumidhar' of the land in suit who died on 16.1.2010. After his death, his widow Mewati, defendant second set, applied for mutation which was allowed by the concerned Tahsildar vide order dated 22.2.2010 and her name was recorded in the revenue record in place of Gorakh. The plaintiff-appellant being a daughter of Gorakh and the defendant second set Mewati, claims to be the co-bhumidhar of the disputed land.
4. Plaintiff's claimed that in view of Section 171 of U.P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the U.P. Z.A.& L.R. Act), the name of her mother Mewati has been fraudulently recorded in the revenue record although she is co-sharer alongwith her mother having half share in the disputed land.
5. It is further stated in the plaint that her mother-Mewati had executed the sale-deed in favour of the defendant first set beyond her share for which she has got no right and as such the sale-deed beyond her share is a void and therefore, the relief for cancellation of sale deed, was claimed.
6. During the pendency of the suit the defendant first set filed an application under order 7 Rule 11 CPC for rejection of the plaint on the ground that admittedly the plaintiff is not a recorded tenure holder and since the sale deed which is executed in their favour is claimed to be void to the extent of share of the plaintiff, therefore, the plaint should be rejected as the suit is barred by the provisions of Section 331 of U.P. Z.A.& L.R. Act.
7. The application filed by the defendant first set for rejection of the plaint, was rejected by the trial Court vide order dated 17.3.2015, against which a revision was preferred and the same was allowed by the revisional Court vide order dated 30.5.2015. The order of the revisional Court was challenged by the plaintiff-appellant in the matter under Article 227 No. 3587 of 2015 which was disposed of by this Court with the direction to decide the application for rejection of plaint under the Order 7 Rule 11 without being influenced by the finding so recorded by the revisional Court Specifically thereafter the Court proceeded with the matter and again rejected the application under Order 7 Rule 11 vide order dated 11.2.2016. Against that order a revision was filed by the defendant first set which was allowed and the matter was remanded back to the trial Judge for deciding the application for rejection of plaint afresh. Thereafter the trial Court proceeded with the case and allowed the application filed by the defendant first set and rejected the plaint under Order 7 Rule 11 (d) of C.P.C. A finding was recorded by the trial Court to the effect that from the bare reading of the plaint only, the plaintiffs not the recorded tenure holder and the sale deed executed in favour of the defendant first set to the extent of her share is void and therefore in the garb of the present suit the plaintiff wants declaration of her title in respect of agricultural land for which only the revenue Court has got the jurisdiction to declare the rights
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