- (1.) RAJES Kumar, J. The present First Appeal From Order has been filed against the order dated 16-1-1982 by the Ist Addl. District Judge, Jaunpur in Appeal No 44 of 1979 arising out of Original Suit No. 52 of 1979.
(2.) THE brief facts of the case are that the plaintiff-respondent Smt. Esraji w/o Devi Charan filed a Suit No. 52 of 1979 for declaration and cancellation of a sale-deed dated 31-8-1978 as void on the ground that she is a Bhumidhar of land in dispute and sale-deed was executed fraudulently by someone else in favour of defendant appellant. It has been alleged that in the sale-deed, neither there is any thumb impression nor signature of plaintiff and inasmuch as the plaintiff had not gone to the office of Sub- Registrar and had no knowledge about the execution of such sale- deed. Defendant filed objection, in which it had been said that the suit was not maintainable for want of jurisdiction inasmuch as it was cognizable by the Revenue Court and not by Civil Court and barred by Section 331 of U. P. Zamindari Abolition and Land Reforms Act, Munsif, Jaunpur vide its order dated 5-11- 1979 held that if is true that it in place of plaintiff someone else has executed sale-deed, is definitely void and nullity. However, he held that since the property in dispute was agricultural, hence, the case could be filed in Revenue Court for which, he relied upon the decision of this Court in the case of Ram Roop v. Smt. Boondiya, reported in 1979 A. W. C. Page 44 and in the case of Sheo Pal v. Smt. Lakhpatta reported, in 1979 A. W. C. page 524. After holding that the suit was not maintainable in the civil Court but could be filed in a Revenue Court he directed to return the plaint for presentation before the proper Court. Aggrieved by the order of learned Munsif, an appeal was filed by the plaintiff respondent before the Addl. District Judge, Jaunpur which was allowed vide order dated 16-1-1982. Learned Addl. District Judge held that the view of learned Munsif, was not correct and the Civil Court had jurisdiction to decide the case. The appeal was accordingly allowed and the order of Munsif was set aside and the matter was sent back to the Court of Munsif to decide the Suit after hearing both the parties. Being aggrieved by the order of learned Addl. District Judge the present appeal has been filed. Heard Learned Counsel for the appellant. List has been revised but no one appeared on behalf of respondent. The short question involved in the present appeal is whether the Suit for declaration claiming a sale- deed void and nullity being fraudulently executed by someone else than by the plaintiff respondent being actual owner is cognizable by Civil Court or by Revenue Court Property in dispute was an agricultural land.
(3.) IN the case of Ram Roop and others v. Smt. Budhiya reported in 1979 A. L. J. page 800 a registered sale- deed dated 6-9-1963 purported to have been executed by Smt. Budhiya in favour of appellant in respect of the some agricultural plots, came into existence. IN the year, 1964 Smt. Budhiya filed a Suit, that she was an old, illiterate and blind woman, that she had not executed the said sale-deed and the sale- deed was the result of misrepresentation and fraud played upon her by the appellants; She was actually taken to Ghazipur for getting Ration Card, in that account her thumb impression was taken on the blank papers for the purposes of execution of sale- deed. She further claimed for possession of the land in the case which was found out of possession. This Court held as follows: (9) "in this way the position is that if the document is void in law, the revenue Court is the proper Court for seeking redress, but if a document is voidable, the Civil Court can take cognizance of the case for avoiding it. 11. The above allegations clearly show two things: (1) Smt. Budhiya thumb marked on some blank papers for obtaining ration card. She did not thumb mark on the papers which were meant for writing out sale-deed. Thus he challenges the very character of the document. According to her it was a forgery committed by the fathers of the defendants and (2) She had no necessity to take any loan. She was given no consideration of the sale-deed, those allegations clearly indicate that according to the plaintiff the sale-deed was in fact a void document. No doubt, there are allegations to the effect that she is an old, blind and illiterate woman but these allegations do not take away the effect of the entire allegations of the plaint which clearly show that accordingly to her it was a forged and fictious document without consideration. Therefore, in order to obtain possession or to obtain declaration of her status as order she could easily sue in the revenue Court. The lower appellate Court was not justified that the suit was essentially for adjudging the sale- deed void on the ground fraud and misrepresentation. In the case of Khilari and others v. III-Addl. District Judge, Banda and others, reported in 1983 A. L. J. page 369, a similar question came up for consideration. In that case, one Smt. Ratania filed Suit. In the plaint. it was alleged that her husband and brother-in-law and no power of disposal of property. Their power of disposal had been cut down by verdict of Village Panchayat. She further averred that the sale- deed was sham transaction and thus the relief sought was cancellation of sale- deed after adjudging void. The learned Single Judge relied upon the judgment of this Court held as follows: 34-" I have already referred to the fact that the present suit was instituted by Smt. Ratania who was no party to the impugned sale-deed the vendors were impleaded through a subsequent amendment. She alleged that the vendors had no power to execute the sale-deed. Their power of disposal had been cut down by verdict of Village Panchayat. Her father-in-law had also imposed a restraint on the vendors' power of disposal and had conferred rights on her and under such circumstances, the execution of the sale-deed by the vendors was simply void and a sham transaction. " 35" It is significant to note that under such circumstances when the character of transaction was itself assailed it was difficult to hold that the said sale-deed was voidable and not void. The main relief which could have been sought by plaintiffs, was the recovery of possession over the holding, that relief was within the exclusive competence of revenue Court. Without possession mere declaration or cancellation of sale-deed could have been illusory and not an efficacious relief. As the plaintiffs failed in the revenue Court so they invoked the jurisdiction of the Civil Court by circumvention of averments and in such circumstances, it has to be held that the findings recorded by the Courts below on issue 7 were erroneous. The point is well covered by Vijai Singh v. 2nd Addl. District & Sessions Judge, Bulandshahar reported in 1982 All L. J. 725. It appears that in that case Ismail Khan respondent filed a suit, being Suit No. 46 of 1980 for cancellation of a sale-deed dated 7-7-1979 purporting to have been executed by him in favour of Vijai Singh petitioner. It was in respect of an agricultural plot No. 281, the area of which was 1 bigha 18 biswas 13 biswansis situated in Village Bawanpur, Pergana Ahar, District Bulandshahar. ";