M.Katju - (1.) THE petitioners filed suit No. 79 of 1985 in the court of Munsif, Haveli against the respondent Nos. 1 and 2 with the allegations that the petitioners are recorded Bhumidhars of the plot in dispute, and are in possession of the same, and the defendant No. 1 is trying to interfere with the plaintiffs' possession. THE true copy of the plaint is annexure-1 to the writ petition. THE trial court by its border dated 6-9-1991 held that the civil court had no jurisdiction to try the suit, as it was barred by section 331 of the U.P. Zamindari Abolition and Land Reforms Act. Aggrieved, the petitioner filed a revision before the District Judge, who by his order dated 25-10- 1991 dismissed the revision. Aggrieved, the petitioner has filed the present writ petition.
(2.) LEARNED counsel for the petitioner has contended that the suit was triable by the civil court and not by the revenue court. I am not inclined to agree with this contention. A perusal of the plaint shows that the plaintiffs' allegation was that the property in dispute came to them through a family settlement dated 15-8-77, Hence, according to the plaint allegations they became the owners of the property in dispute from 15-8-1977. The plaintiffs have also alleged in the plaint that the defendant No. 2 has sold the property in dispute to defendant No. 1. Hence the plaintiffs has prayed for cancellation of the sale-deed and for injunction. It is well established by several decisions that if the sale-deed is void and a declaration of right is claimed the suit is triable by the revenue court, otherwise it is triable by the civil court vide Ram Padarath v. Ilnd Addl District Judge, 1989 AWC 290 (FB) and Smt Bismillah v. Janeshwar Prasad, 1989 ALJ 1335 (SC). In the present case, the allegations in the plaint clearly show that the plaintiffs' own allegation is that the sale-deed by defendant No. 2 in favour of defendant No 1 was voide since the property in dispute belonged to the plaintiffs and not to the defendant No. 2. If a property belongs to A and B sells to C, then the sale-deed by B in favour of C is wholly void because B was never the owner of the said property However, if A who is the owner of the property sells the property to somebody, and the sale is obtained by playing fraud on A then the sale by A is voidable at the instance of A.
(3.) THE decision of the Supreme Court in Bimillah's case (supra) is clearly distinguishable. THEre the facts were that the plaintiff; who was the owner of the disputed property, executed a document appointing the defendants 1 to 3 as her agent to manage the estate. THE plaintiff claimed that she was a pardanasheen lady, and taking advantage of her ignorance the defendants inserted an unauthorised clause in the instrument of agency empowering the defendants to sell the property, and in this way the defendants fraudulently sold the property. This case is clearly distinguishable because the defendants who sold the property were not claiming to be owners but agents of the plaintiff. In the present case a perusal of the plaint shows that the plaintiffs were claiming that the property in suit belongs to them on the basis of a family settlement dated 15' 8-1977, and they consequently alleged that the sale-deed by Mohan Lal in favour of Jagannath was wholly void, as Mohan Lal was not the owner of the property On the other hand a perusal of the written statement of the defendants shows that the case of the defendants was that the family settlement dated 15- 8-1977 was wholly farzi Thus, the central point in the Base would be whether the other alleged family settlement dated 15-8-1977 was valid or not. If it was valid then obviously the sale by Mohan Lal in favour of Jagannath was wholly void, and it could be ignored and no cancellation by the court was required.;