B.D. Agrawal, J. - (1.) ONE Deo Narain was the bhumidhar of the land in dispute. On September 17, 1976, and April 24, 1980, there were registered deeds of sale executed purporting to be by Deo Narain aforesaid in favour of the Petitioners. The deed of sale dated September 17, 1976, pertains to land situate in village Atraila Shiv Gulam; the other deed of sale is in respect of certain plots situate in village Babura Bhairon Dayal. Deo Narain, along with his daughter, impleaded as Respondent No. 3, namely, Smt. Bhagwanti instituted Original Suit No. 161 of 1981 in *he Court of Munsif, Mirzapur, for cancellation of these deeds of sale on various grounds. Deo Narain died during the pendency of the suit on June 30, 1981. He died leaving his brother Jag Deo, but without the wife or a male issue. The question arose whether upon his death the suit had abated and it was also pleaded for the Petitioners (Defendants) that the civil Court did not have jurisdiction to try the suit. Preliminary issues were framed by the trial Court on this point. Both these issues were decided by the trial Court against the Petitioners on July 20, 1982, the revision filed by the Petitioners was dismissed on March 16, 1983. Aggrieved the Petitioners (Defendants) have approached this Court
(2.) LEARNED Counsel for the Petitioners raised two fold contentions in support of the petition. It was submitted in the first place that on the death of Deo Narain, his brother being the preferential heir under Section 171(f) of the UP ZA and LR Act (Act No. 1 of 1951) in comparison to married daughter, who is placed under Clause (g) and there being no application for the brother of the deceased seeking his substitution as a legal representative of the deceased, the suit could not be maintained by the surviving Plaintiff, namely Smt. Bhagwanti. The other contention is that there being averment in paragraph 7 of the plaint to the effect that the deed of sale dated April 24, 1980, may have been obtained from some imposter by the Petitioners, the jurisdiction lies in revenue Court since on that account the transaction could be void and not voidable. Both these contentions have been countered from the other side. Taking up the issue of jurisdiction first, there can be no dispute that for adjudication thereof the averments contained in the plaint have to be taken in their entirety. The effort of the Court has to be to gather the pith and substance of what is alleged in the plaint. Considered in the light thereof it would be observed that in paragraphs 3, 4, 5 and 6 of the plaint there is allegation in substance to the effect that Deo Narain was old and infirm; that his wife had predeceased; that he had no male issue; that he reposed confidence in the Petitioners and that the transaction impugned was secured taking advantage of his physical and mental infirmity. No doubt, in paragraph 7, it has been added that it is rumored that some imposter was set up to execute the deed of sale dated April 24, 1980. But it would not be reasonable to divorce the averment contained in paragraph 7 from the rest of the plaint and to hold on the basis thereof alone that the jurisdiction rests in the revenue Court. Learned Counsel Sri S.P. Srivastava has cited in support of his contention my decision in Khamani Ram v. District Judge, Badaun (sic) Allahabad Civil Journal 617. That decision may have attracted in the instant case provided on the pith and substance of the plaint it could be said that the transaction impugned is claimed to be void. It is not difficult to discern that in the present state of pleading the predominant theme is that the transaction is vitiated on account of fraud or undue influence exercised against the executant. It is not only that para 7 of the plaint is confined to one out of the two impugned deeds of sale, the rest of the averments too suggest that the Plaintiffs' case has been that the transaction is voidable. The jurisdiction consequently lies in such a case, according to Khamani Ram's case (supra) as well, in the civil Court.
(3.) AS regards the other submission of Sri Srivastava for the Petitioners Order XXII Rule 3 Code of Civil Procedure runs as under: 3. Procedure in case of death of one of several Plaintiffs or of sole Plaintiff: (1) Where one of two or more Plaintiffs dies and the right to sue does not survive to the surviving Plaintiff or Plaintiffs alone, or a sole Plaintiff or sole surviving Plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased Plaintiff to be made a party and shall proceed with the suit. (2) Where within the time limited by law no application is made under Sub -rule (I), the suit shall abate so far as the deceased Plaintiff is concerned, and on the application of the Defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased Plaintiff.;