JUDGMENT

A.K. Sharma, M. - This reference has been received from the learned Additional Commissioner, Rohilkhand Division, in a Revision Petition filed by Kewal, against the order of the learned Sub-Divisional Officer, Budaun, dated May 12, 1975, passed as a finding on issue No. 5 in a suit under section 229, 219, Z.A. and L.R. Act. In the reference rejection of the revision is recommended.

2. Issue No. Was: 'Whether the revenue courts are competent to try such case where the validity of the sale deed is challenged in a civil court'. The learned S.D.O. gave the finding that the Revenue courts were competent to do so. In Revision the Addl. Commissioner agreeing with the view of the Trial court has recommended on August 22, 1975 that the Revision petition be rejected and has added that only one issued has been decided so far and the Revision against this given finding was not maintainable also under section 33, Z.A. and L.R. Act.

3. The learned counsel for the revisionist has argued that the plaint shows that the relief sought is cancellation of one out of the two sale deeds and that the cause of action is the defendants sale deed on the basis of which defendant's name has already been mutated. He contended that the declaration of title and ejectment of the plaintiff or the defendant could not be ordered unless one of the sale deeds was cancelled and that for cancellation of the sale deed the revenue courts did not have the jurisdiction. He has referred to 1975 R.D. 262 in which it has been held that if a relief of declaration is based on the ground that the other sale deed is Farzi or has been fraudulently obtained, the case would be beyond the jurisdiction of the revenue court. He has also referred to 1963 A.L.J. 1108 in which at page 1110 it has been held that the cause of action for a suit for partition and for cancellation of the sale deed cannot be the same and a suit for declaration and partition cannot be said to be effective alternative relief for cancellation of the sale deeds in respect of the property and that the jurisdiction of the civil court was not barred. Further, he referred to 1963 A.L.J. 1064, In which it has been held that, if according to the facts in the case a revenue court can grant relief, it is the revenue court which the plaintiff must approach with an appropriate plaint. In the instant case, he has argued, the revenue court cannot grant the relief sought, because so long as one of the two sale deeds is not cancelled, the declaration cannot be given and therefore the jurisdiction of the revenue court was barred.

4. Learned counsel for the opposite party has argued that there was no question of cancellation of the sale deed, as the plaintiff's allegation is that execution of sale deed is denied and a Farzi person has executed the sale deed. He further contended that the mutation done in favour of the defendant was being challenged under section 229-B and so the plaintiff was seeking a declaration principally and that the cancellation of the sale deed was not the main relief sought. According to him declaration of right may involve cancellation of the sale deed, but that did not raise the question of jurisdiction of the revenue court and he cited 1971 R.D. 159 in support of his contention.

5. I have also gone through the record of the case.

6. The plaintiff cannot get declaration in his favour so long as the sale deed dated August 31, 1973 stands in favour of the defendant. The declaration of plaintiff's title involves the sale deed of August 31, 1973 in such a way that unless it is declared void or is cancelled by the competent court, the plaintiff can get no relief on the basis of his own sale deed dated November 5, 1973. The plaint itself states that the earlier sale deed is Farzi and some one has impersonated for Smt. Ram Shri. As mutation also is based on this sale deed, the challenging of mutation through a suit for declaration inevitably involves the question of the genuineness of that sale deed,